BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         __________________________________________________________________
 
         
 
         STEVEN C. PELZ,
 
                                                 File No. 799408
 
              Claimant,
 
                                                   R E V I E W
 
         VS.
 
                                                R E 0 P E N I N G 
 
         WEBSTER CITY CUSTOM MEATS, INC.,
 
                                                     A N D
 
              Employer,
 
                                                  M E D I C A L
 
         and
 
                                                 B E N E F I T S
 
         FIREMAN'S FUND INSURANCE
 
                                                D E C I S I 0  N
 
             Insurance Carrier,
 
             Defendants.
 
         _________________________________________________________________
 
         
 
                                   INTRODUCTION
 
         
 
              This is a proceeding  in review-reopening and pursuant to 
 
         section 85.27 brought by  Steven C. Pelz, claimant, against 
 
         Webster City Custom Meats, Inc., employer, and Fireman's Fund, 
 
         insurance carrier, for the recovery of further benefits as a 
 
         result of an injury claimant received on September 28, 1984.  
 
         This matter was heard before the undersigned on April 20, 1987 at 
 
         the courthouse in Fort Dodge, Webster County, Iowa.  It was 
 
         considered fully submitted at the conclusion of the hearing.
 
         
 
              The record in this matter consists of the testimony of 
 
         claimant and Perry Hefty, D.C.; claimant's exhibits 1 through 23; 
 
         and, defendants' exhibits A, B, C and D. Defendants' objections 
 
         to claimant's exhibits 21, 22 and 23 are hereby overruled.
 
         
 
                            STIPULATIONS AND ISSUES
 
         
 
              Pursuant to the pre-hearing report and order approving same, 
 
         submitted by the parties on April 20, 1987, the parties stipulate 
 
         as to the employer-employee relationship and to the fact that 
 
         claimant received an injury arising out of and in the course of 
 
         his employment on September 28, 1984.  The parties indicated that 
 
         the claimant is not making a claim for additional healing period 
 
         benefits or permanent partial disability benefits.  The issues to 
 
         be determined in this proceeding are whether or not there is a 
 
         causal relationship between certain medical treatment rendered by 
 
         Dr. Hefty; whether such treatment was related to the
 
         
 
         
 
         
 
         
 
         condition from which claimant suffers; and, whether or not such 
 
         treatment was authorized by the defendants.
 
         
 
                                EVIDENCE PRESENTED
 
 
 

 
         PELZ V. WEBSTER CITY CUSTOM MEATS, INC.                             
 
         Page   2
 
 
 
         
 
              Perry Hefty, D.C., testified that he is a chiropractor 
 
         practicing in Webster City, Iowa.  Dr. Hefty outlined his 
 
         educational training and experience.  The doctor stated that he 
 
         first saw the claimant on November 12, 1985 at which time he took 
 
         a history from the claimant.  According to that history, 
 
         claimant's main concern was soreness in the left shoulder which 
 
         was affecting his sleep.  Claimant reported to the doctor that he 
 
         had received an injury in October, 1984, when he fell backwards 
 
         at work and put his hands behind his back to stop his fall.
 
         
 
              Dr. Hefty said he conducted an examination of the claimant 
 
         and identified a posture problem with the neck to the right.  He 
 
         stated that there was a negative examination for a problem with 
 
         the bracheal plexus, but that claimant did have a limited range 
 
         of motion in the arm and weakness in the deltoid muscle.  Based 
 
         upon the examination, the doctor diagnosed a shoulder 
 
         sprain/strain complex with cervical irritation affecting the 
 
         shoulder.  He stated that he believed it would take an injury 
 
         such as that described by the claimant to cause the problem from 
 
         which the claimant suffered.
 
         
 
              Dr. Hefty stated that he treated the claimant from January 
 
         of 1985 through March of 1986 with four or five office visits per 
 
         month.  He said that exhibit 21 is a copy of his bills for the 
 
         services rendered and stated that they were fair and reasonable 
 
         as well as reasonably necessary to treat the condition from which 
 
         claimant suffered.  Dr. Hefty said he did not receive notice of 
 
         nonauthorization of treatment from the employer or the insurance 
 
         carrier.
 
         
 
              On cross-examination, the doctor stated that the claimant 
 
         referred himself for treatment and was not sent by a referring 
 
         physician.  He stated that all communications between himself and 
 
         the insurance company were through the claimant's attorney.  He 
 
         also stated that he was aware of the fact that claimant Was 
 
         receiving other treatment.
 
         
 
              Claimant testified that he resides in Nevada, Iowa.  He 
 
         stated that he now works for Story Construction in Ames, Iowa.  
 
         He is age 28.
 
         
 
              Claimant testified that he began his employment with the 
 
         defendant in April, 1984 and worked for them for six or seven 
 
         months before his injury.  Claimant said his injury occurred 
 
         while he was putting hams on a line, a job he had done since he 
 
         was hired by the employer, with the exception of one week.
 
         
 
              Claimant stated that the injury occurred on September 28, 
 
         1984 when he was cleaning up.  He said he was pulling on a table 
 
         and slipped on a piece of meat on the floor and put his hands 
 
         behind his back to break his fall.  He reported that this 
 
         occurred on a Friday, that the problem got worse over the weekend 
 
         and that he reported the injury on Monday.  Claimant said he was 
 
         sent to the company doctor who placed a splint on his wrist and 
 
         placed claimant on light duty.  After ten days, the claimant was 
 
         released to return to work at his regular job which he continued 
 
         to do until February, 1985 when he returned to the company 
 
         doctor.  He said the doctor treated him with cortisone injections 
 

 
         PELZ V. WEBSTER CITY CUSTOM MEATS, INC.                             
 
         Page   3
 
 
 
 
 
         and he saw him four or five times.  Claimant stated he did not 
 
         believe he was getting any better so he consulted Dr. Hefty.  
 
         Claimant said that his medical doctor recommended physical 
 
         therapy so he called the hospital to inquire.  He reported, 
 
         however, that at that time he was fed up with medical doctors and 
 
         decided to seek chiropractic help.  The claimant stated he 
 
         received chiropractic treatments for four or five months and got 
 
         better.  He stated that one of the doctors, referred by the 
 
         employer, was not paid in full and it was stipulated at the 
 
         hearing that the insurance company would pay that bill.  Claimant 
 
         said he saw yet another doctor who stated that the chiropractic 
 
         treatments were probably helping his condition.
 
         
 
              Claimant stated that during the time he was seeing the 
 
         chiropractor he received no notice from the insurer that the 
 
         treatment was unauthorized.  Further, he was not offered 
 
         alternate care.
 
         
 
              On cross-examination, claimant admitted that he did not 
 
         consult the insurance carrier prior to obtaining the services of 
 
         Dr. Hefty.  Claimant advised that he played softball in the 
 
         summer of 1985, but that this did not aggravate his shoulder.  
 
         Claimant said his attorney did notify the defendants in December, 
 
         1985 that he was receiving chiropractic care.  He denied knowing 
 
         whether or not his attorney was advised that the insurance 
 
         company would not pay for the chiropractic treatment.  He said he 
 
         did not receive notice until February, 1986 that the insurance 
 
         company would not pay the chiropractor's bill.
 
         
 
              A review of the claimant's exhibits which were submitted 
 
         indicates that the medical doctors diagnosed claimant's problem 
 
         as biceps tendonitis (see exhibit 8).  It would appear that the 
 
         medical doctors do not believe claimant suffered permanent 
 
         physical impairment (see exhibit 9).  These exhibits also 
 
         indicate that claimant was advised to seek physical therapy.
 
         
 
              Exhibit 16 is a letter dated November 11, 1986 from R. R. 
 
         Reschly, M.D., consisting of two pages.  According to Dr. 
 
         Reschly, he believed that claimant's chiropractic treatments 
 
         probably did help the patient as much as medical treatment would 
 
         have done.
 
         
 
              Claimant's exhibit 23 outlines the mileage expenses incurred 
 
         by claimant in order to seek medical treatment.  Exhibit 21 is a 
 
         bill from Dr. Hefty in the amount of $1,706.00.
 
         
 
              The defendants' exhibits have been fully reviewed and appear 
 
         to be primarily duplicates of those exhibits offered by the 
 
         claimant and need not be set forth in any great detail.
 
         
 
                          APPLICABLE LAW AND ANALYSIS
 
         
 
              Iowa Code section 85.27 states, in part:
 
         
 
              For purposes of this section, the employer is obliged 
 
              to furnish reasonable services and supplies to treat an 
 
              injured employee, and has the right to choose the care.  
 
              The treatment must be offered promptly and be 
 
              reasonably suited to treat the injury without undue 
 

 
          PELZ V. WEBSTER CITY CUSTOM MEATS, INC.                             
 
          Page   4
 
 
 
 
 
              inconvenience to the employee.  If the employee has 
 
              reason to be dissatisfied with the care offered, he 
 
              should communicate the basis of such dissatisfaction to 
 
              the employer, in writing if requested, following which 
 
              the employer and the employee may agree to alternate 
 
              care reasonably suited to treat the injury.  If the 
 
              employer and employee cannot agree on such alternate 
 
              care, the commissioner may, upon application and 
 
              reasonable proofs of the necessity therefor, allow and 
 
              order other care.  In an emergency, the employee may 
 
              choose his care at the employer's expense, provided the 
 
              employer or his agent cannot be reached immediately.
 
         
 
              The defendants have previously stipulated that they will pay 
 
         claimant's medical expenses, with the exception of those incurred 
 
         for Dr. Hefty's treatment.  Defendants accordingly should not 
 
         only pay for the stipulated treatment expenses, but also for the 
 
         mileage expenses which claimant incurred in seeking treatment, 
 
         with the exception of that provided by Dr. Hefty.  Claimant sets 
 
         forth his mileage expenses in claimant's exhibit 23.
 
         
 
              It is apparent, in this case, that claimant did not follow 
 
         proper procedure in seeking treatment from Dr. Hefty.  It is 
 
         equally clear that the chiropractic treatments provided by Dr. 
 
         Hefty were not authorized by the defendants and that claimant did 
 
         not take proper steps to advise defendants that he sought 
 
         treatment from Dr. Hefty or that he had any reason to be 
 
         dissatisfied with the treatment being offered by the defendants. 
 
          Claimant contends that he was not offered alternative care, 
 
         however, this is clearly contrary to the fact that doctors 
 
         provided by the defendants recommended physical therapy and 
 
         claimant simply chose to not follow their advice.  The troubling 
 
         aspect of this case is that Dr. Reschly concluded the 
 
         chiropractic treatments
 
         
 
         provided to claimant were beneficial to him and equivalent to 
 
         that which could have been offered by the medical community.  
 
         What is absent, however, is whether or not the $1,706.00 incurred 
 
         by Dr. Hefty would have been the same had physical therapy been 
 
         undertaken.  It is also unclear whether or not the physical 
 
         therapy would have continued for the period of time that Dr. 
 
         Hefty continued treatment of the claimant.  Another problem which 
 
         is apparent is that the diagnosis offered by Dr. Hefty is 
 
         different from the biceps tendonitis diagnosed by the medical 
 
         providers.  Nevertheless, defendants should not be unjustly 
 
         enriched by the fact that claimant sought chiropractic treatments 
 
         instead of physical therapy as directed by the doctors.  
 
         Defendants accordingly will be ordered to pay $500 of Dr. Hefty's 
 
         bill and to reimburse the claimant for $40 in mileage.
 
         
 
                                 FINDINGS OF FACT
 
         
 
              WHEREFORE IT IS FOUND that:
 
         
 
              1.  On September 28, 1984 claimant suffered an injury 
 
         arising out of and in the course of his employment.
 
         
 
              2.  As a result of this injury, it was recommended that 
 
         claimant obtain physical therapy treatments to relieve the pain 
 

 
         PELZ V. WEBSTER CITY CUSTOM MEATS, INC.                             
 
         Page   5
 
 
 
 
 
         suffered as a result of the injury.
 
         
 
              3.  Claimant sought chiropractic treatment, which was not 
 
         authorized by the defendants, instead of physical therapy.
 
         
 
              4.  Defendants have stipulated that they will pay all 
 
         medical expenses, other than for chiropractic care, incurred by 
 
         the claimant.
 
         
 
              5.  The chiropractic treatment provided by Dr. Hefty did 
 
         improve claimant's condition.
 
         
 
              6.  The reasonable value of services rendered to claimant by 
 
         Dr. Hefty in connection with the work-related problem from which 
 
         he suffered is equivalent to $500.
 
         
 
              7.  Claimant incurred necessary travel expenses for 
 
         treatment by Dr. Hefty in the amount of $40.
 
         
 
                                CONCLUSIONS OF LAW
 
         
 
              IT IS THEREFORE CONCLUDED that:
 
         
 
              1.  Claimant has proven by a preponderance of the evidence 
 
         that the services rendered by Dr. Hefty were fair reasonable and 
 
         reasonably necessary for treatment of his condition.  Claimant 
 
         has, however, failed to prove that all of the treatments 
 
         undertaken by Dr. Hefty were required or that the value of 
 
         services rendered by Dr. Hefty were equivalent to that 
 
         which would have been incurred had he sought physical 
 
         therapy as required by the defendants' medical providers.
 
         
 
              2.  Claimant has proven that the value of services rendered 
 
         by Dr. Hefty was $500.
 
         
 
                                     ORDER
 
         
 
              IT IS THEREFORE ORDERED that defendants pay unto claimant 
 
         five hundred dollars ($500) for services rendered by,Dr. Hefty.
 
         
 
              IT IS FURTHER ORDERED that defendants pay unto claimant
 
         forty dollars ($40) as reimbursement for travel expenses incurred 
 
         to receive that treatment.
 
         
 
              IT IS FURTHER ORDERED that defendants, pursuant to their 
 
         stipulation, shall pay all other medical expenses, including 
 
         mileage, which claimant incurred as a result of his condition.
 
         
 
              IT IS FURTHER ORDERED that all costs of this action are 
 
         taxed to the defendants.
 
         
 
         
 
                     Signed and filed this 30th day of June, 1987.
 
                                               
 
         
 
                                           STEVEN E. ORT
 
                                           DEPUTY INDUSTRIAL COMMISSIONER
 

 
          PELZ V. WEBSTER CITY CUSTOM MEATS, INC.                             
 
          Page   6
 
 
 
 
 
                      
 
         Copies To:
 
         
 
         Mr. Steven G. Kersten 
 
         Attorney at Law 
 
         7th Floor, Snell Building 
 
         Fort Dodge, Iowa 50501
 
         
 
         Mr. Richard G. Book
 
         Attorney at Law
 
         1000 Des Moines Building
 
         Des Moines, Iowa 50309
 
         
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                                    1402.60
 
                                                    Filed June 30, 1987
 
                                                    STEVEN E. ORT
 
         
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         _________________________________________________________________
 
         
 
         STEVEN C. PELZ,
 
                                                 File No. 799408
 
              Claimant,
 
                                                   R E V I E W
 
         VS.
 
                                                R E 0 P E N I N G 
 
         WEBSTER CITY CUSTOM MEATS,
 
         INC.,
 
                                                     A N D
 
             Employer,
 
                                                  M E D I C A L
 
         and
 
                                                B E N E F I T S
 
         FIREMAN'S FUND INSURANCE,
 
                                                D E C I S I 0 N
 
         
 
             Insurance Carrier,
 
             Defendants.
 
         _________________________________________________________________
 
         
 
         1402.60
 
         
 
              Claimant obtained chiropractic treatment (unauthorized) 
 
         instead of physical therapy.  Medical doctor said chiropractic 
 
         treatments helped as would have physical therapy.  Allowed $500 
 
         for chiropractor.
 
 
 
         
 
 
         
 
 
 
 
 
 
 
 
 
 
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         JERRY D. WILLIAMS,
 
          
 
              Claimant,
 
          
 
          VS.                                     File  No.799412
 
          
 
          FISHER CONTROLS INTERNATIONAL,        A R B I T R A T I 0 N
 
          
 
              Employer,                           D E C I S I 0 N
 
          
 
          and
 
          
 
          CIGNA,
 
          
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
                                   INTRODUCTION
 
         
 
              This is a proceeding in arbitration brought by Jerry D. 
 
         Williams against Fisher Controls International, his employer, and 
 
         Cigna, the employer's insurance carrier.  The case was heard and 
 
         fully submitted at Des Moines, Iowa on June 20, 1988.  The record 
 
         in this proceeding consists of testimony from Jerry D. Williams, 
 
         Wilma Williams, Curtis Weist, M.D., Kenneth Picard, Larry Case 
 
         and Pat Jordan, R.N. The record also contains claimant's exhibit 
 
         I and defendants' exhibits A, B, C, D and E.
 
         
 
                                      ISSUES
 
         
 
              The issues presented by the parties for determination are 
 
         whether claimant sustained an injury which arose out of and in 
 
         the course of employment; whether the alleged injury is a cause 
 
         of temporary disability or permanent disability; determination of 
 
         claimant's entitlement to compensation for healing period and 
 
         permanent partial disability.  Claimant also seeks to recover 
 
         $328.00 under the provisions of section 85.39.  By way of 
 
         affirmative defense, defendants claim that the claimant's action 
 
         is barred by the provisions of Code sections 85.23 and 85.26. It 
 
         was stipulated that, in the event of an award, the correct rate 
 
         of compensation is $323.68 per week.  It was further stipulated 
 
         that this case be decided based upon the evidence as it existed 
 
         at the end of February, 1988.  Subsequent to that time, claimant 
 
         has been off work and received additional medical care and 
 
         treatment.
 
         
 
         
 
         
 
         WILLIAMS V. FISHER CONTROLS INTERNATIONAL
 
         Page 2
 
         
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
                               SUMMARY OF EVIDENCE
 
         
 
              The following is a summary of evidence presented in this 
 
         case of all the evidence received at the hearing, only that 
 
         considered most pertinent to this decision is discussed.  
 
         Conclusions about what the evidence showed are inevitable with 
 
         any summarization.  The conclusions in the following summary 
 
         should be considered to be preliminary findings of fact.
 
         
 
              Jerry D. Williams is a 45-year-old, married man who lives at 
 
         Beaman, Iowa and is employed at Fisher Controls International at 
 
         Marshalltown, Iowa.
 
         
 
              Williams has a long history of problems with his back 
 
         starting in approximately 1960 when he was in high school.  He 
 
         experienced an injury to his back while he was in the Navy in 
 
         approximately 1964 or 1965.  Williams then commenced employment 
 
         at Fisher Controls in 1966 where he has been employed 
 
         continuously.  Williams commenced having regular, recurrent 
 
         problems with his back in the early 1970's (exhibit A, pages 
 
         21-25).  He was hospitalized for acute back pain in 1972 and 
 
         again in 1974 (exhibit A, pages 76-84).  He was again 
 
         hospitalized for back pain in 1981 (exhibit A, pages 92 and 93).  
 
         In 1981, his treating physicians indicated that he had a chronic 
 
         recurrent lumbosacral strain and probable low grade disc disease.  
 
         It was further indicated that claimant may have further disc 
 
         problems in the future (exhibit A, page 100).
 
         
 
              Claimant testified that, during his period of employment 
 
         with Fisher Controls, he has operated a number of different 
 
         machines.  He stated that, in 1982, he was placed in a position 
 
         of operating a 3-L turret.  He described the job as requiring a 
 
         lot of bending and twisting when putting parts into and taking 
 
         them out of the machine.  He stated that it required bending over 
 
         the machine with extended arms and that the parts could weigh 
 
         from 10-80 pounds.
 
         
 
              Claimant testified that his back gradually worsened while he 
 
         was operating the turret and that it was really bothering by the 
 
         summer of 1983 causing him to see Curtis Weist, M.D., the company 
 
         doctor.  The employer's records contained in exhibit 1 show a 
 
         record dated July 26, 1983 wherein it is indicated in the upper 
 
         left-hand corner, that the condition was occupational, rather 
 
         than nonoccupational, and that claimant reported he hurt his 
 
         upper back yesterday lifting yokes and now has pain in his low 
 
         back and left leg.  Claimant consulted John W. Hughes, M.D., an 
 
         orthopaedic surgeon.  A CT scan was performed which showed a 
 
         small ruptured disc.  At that time, surgery or other substantial 
 
         treatment was not recommended.  Claimant continued to work until 
 
         1985.
 
         
 
              Williams testified that, during 1985, his back worsened.  He 
 
         returned to Dr. Hughes.  On June 20, 1985, a CT scan showed a 
 
         probable herniated disc at the L5-Sl level of his spine on
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
         
 
         WILLIAMS V. FISHER CONTROLS INTERNATIONAL 
 
         Page 3
 
         
 
         
 
         the left.  On June 26, 1985, a laminectomy was performed upon 
 
         claimant's spine at the Marshalltown Area Community Hospital by 
 
         Dr. Hughes.  Following the surgery, claimant's condition 
 
         improved.
 
         
 
              Claimant was released to resume light-duty work and then to 
 
         full duty.  His symptoms increased and Dr. Hughes again placed 
 
         claimant in a light-duty status.  After a second attempt to 
 
         resume full-duty employment, a permanent light-duty status was 
 
         arranged.' Claimant was placed in a position sitting at a bench 
 
         where he assembles, tests and ships small electrical motors.  As 
 
         of the end of February, 1988, claimant was getting along well in 
 
         that position.
 
         
 
              Claimant's former position as a turret operator was a grade 
 
         11 position which paid $7.05 per hour, but the new position is a 
 
         pay grade 4 which provides $6.24 per hour.
 
         
 
              Claimant had felt that there was some relationship between 
 
         his employment and his back problems as early as 1980, or perhaps 
 
         earlier (exhibit A, pages 8-15).  He stated that he did not bring 
 
         any action under workers' compensation for his back until 1985 
 
         because he did not know how bad it would be and he did not have 
 
         surgery until 1985.  Claimant indicated that he had previously 
 
         thought his back was work-related, but that he was unable to 
 
         prove that it was, so he made claim for medical expenses and 
 
         disability income insurance under the group nonoccupational plans 
 
         which were provided by his employer.  On several occasions, 
 
         claimant signed group benefit applications which indicated that 
 
         the condition for which benefits were sought was not work-related 
 
         (defendants' exhibit A, pages 85-134).
 
         
 
              Claimant stated that his back would be aggravated by 
 
         activities such as bowling, golfing or vacuuming.  He stated that 
 
         he has tried to do them, but does not at the present time.  
 
         Claimant indicated that his first experience with having a great 
 
         deal of pain in his legs was in the summer of 1983 and that 1983 
 
         is when his activity level changed.  He stated that he considered 
 
         the incidents which occurred prior to 1983 to simply to be 
 
         strains (defendants' exhibit A, page 14).
 
         
 
              Wilma Williams, claimant's spouse of 29 years, generally 
 
         confirmed claimant's testimony regarding the progression of 
 
         problems involving claimant's back.  She confirmed that his 
 
         activities have changed.  She feels that the surgery improved him 
 
         somewhat, but that after a couple of months, his condition began 
 
         deteriorating and has continued to do so.  Wilma stated that 
 
         claimant tried golfing once, in 1985, in a UAW tournament, but 
 
         that he did not feel well after the event.  Wilma also stated 
 
         that claimant had been bowling regularly for four or five years 
 
         prior to 1983, but that when he tried it after 1983, it did not 
 
         work out for him.  She felt that he would still be bowling and 
 
         golfing now if it were not for his back problems.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
         
 
         
 
         WILLIAMS V. FISHER CONTROLS INTERNATIONAL
 
         Page 4
 
         
 
         
 
              John W. Hughes, M.D., an orthopaedic surgeon, was claimant's 
 
         treating physician.  Dr. Hughes has rated claimant as having a 
 
         ten percent permanent partial impairment of the body as a whole 
 
         due to the laminectomy and condition of his back (exhibit B, page 
 
         4).  When claimant was admitted to Marshalltown Medical and 
 
         Surgical Center for the back surgery, Dr. Hughes indicated:
 
         
 
              Patient can report no specific episodes at his work 
 
         activities which relate to the onset of his pain.  However he 
 
         reports that at times certain lifting has caused increased 
 
         problems.  It is my feeling that probably to some degree the 
 
         situation in his back has been certainly work aggravated.
 
         
 
         (Exhibit 1-MMSC)
 
         
 
              In a subsequent report dated October 21, 1985, Dr. Hughes 
 
         recommended that claimant be restricted indefinitely from 
 
         performing repetitive bending or lifting of more than 50 pounds 
 
         (exhibit 1). Dr. Hughes indicated that a herniated disc is 
 
         commonly caused by cumulative trauma (exhibit B, page 22).  Dr. 
 
         Hughes was further questioned regarding the source of claimant's 
 
         problems as follows:
 
         
 
              Q.  Is there any way for you, Doctor, to differentiate 
 
              between what would have been Jerry Williams' preexisting 
 
              condition before his employment ever began with Fisher and 
 
              any non-work-related injuries when he had been picking up 
 
              ladders or sneezing or the like on the one hand and on the 
 
              other hand the aggravation of his condition caused 
 
              specifically by employment?
 
              
 
              A.  I am as a physician unable to do more than believe what 
 
              the patient tells me as it relates to the reason why he is 
 
              there at that time.  If he said I picked up a bolt at work 
 
              and my back hurt, that's what I believe.  If he said I 
 
              picked up a ladder at home and my back hurt, that's what I 
 
              believe.
 
              
 
              I personally feel, and I think many physicians would agree 
 
              with me, that low back pain and disc disease is a continuum 
 
              and it is not a process which, as far as a disease is 
 
              concerned, is particularly always related to the last 
 
              episode that caused the pain.
 
              
 
         
 
         (Defendants' exhibit B, page 14)
 
         
 
              On claimant's group medical claim forms, Dr. Hughes either 
 
         indicated that the condition was not work-related or left the 
 
         question unanswered (exhibit A, pages 120-134).
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              Claimant was evaluated by Peter Wirtz, M.D., a Des Moines 
 
         orthopaedic surgeon, in early 1986.  Dr. Wirtz found claimant
 
         
 
         
 
         
 
         WILLIAMS V. FISHER CONTROLS INTERNATIONAL 
 
         Page 5
 
         
 
         
 
         to be status postoperative partial discectomy, L5-Sl.  He rated 
 
         claimant as having a five percent impairment of the body as a 
 
         whole due to the laminectomy and neurological impairment.  In a 
 
         subsequent report dated February 27, 1987, Dr. Wirtz stated:
 
         
 
              This disability is related to the condition that developed 
 
              in the left leg in the year 1983.  This condition developed 
 
              with activities and it is assumed, as it not [sic] noted in 
 
              my record, that this condition developed at work.
 
         
 
              Curtis Weist, M.D., the in-house company doctor for Fisher 
 
         Controls, testified that he was acquainted with claimant.  Dr. 
 
         Weist referred to the first page of the employee records which 
 
         are part of exhibit 1 and stated that the typewritten portion was 
 
         dictated by himself and that whether claimant indicated that the 
 
         problem was work-related is not shown in the record.  Dr. Weist 
 
         stated that the nurse's notes contained on the exhibit were 
 
         prepared by Sally Seely, a temporary employee.
 
         
 
              Kenneth Picard, claimant's foreman in 1983, confirmed that 
 
         claimant's normal job during 1983 was the 3-L turret.  He stated 
 
         that on one occasion, claimant reported a back injury while 
 
         operating the lathe and that Picard sent claimant to the nurse.  
 
         Picard stated that Fisher Controls has adjusted claimant's job a 
 
         number of times in order to accommodate claimant's physical 
 
         problems.
 
         
 
              Larry Case, claimant's most recent foreman, agreed that 
 
         Fisher Controls accommodated claimant's limitations and that at 
 
         the most recent job claimant was free to stand, sit or move 
 
         about.  Case testified that claimant bowled some in 1986.  Case 
 
         testified that claimant learns new things more quickly than the 
 
         average person.
 
         
 
              Pat Jordan, R.N., the head nurse at Fisher Controls since 
 
         1983, indicated that, to her knowledge, this case is the only 
 
         workers' compensation claim which has been made by claimant.
 
         
 
              Claimant's counsel introduced a professional statement, 
 
         which was not contradicted by defense counsel.  Counsel stated 
 
         that, in December, 1985, claimant requested to be seen by a 
 
         different physician regarding work restrictions and requested Dr. 
 
         Bashara.  Defense counsel objected to Dr. Bashara and both 
 
         counsel then agreed that claimant could see Dr. Wirtz.  Dr. Wirtz 
 
         evaluated claimant and assigned an impairment rating.  Claimant 
 
         then requested an independent examination under Code section 
 
         85.39 from John R. Walker, M.D. The request was denied and 
 
         claimant saw Dr. Walker on his own.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
         
 
         
 
         WILLIAMS V. FISHER CONTROLS INTERNATIONAL
 
         Page 6
 
         
 
         
 
                           APPLICABLE LAW AND ANALYSIS
 
         
 
              Claimant has the burden of proving by a preponderance of the 
 
         evidence that he received an injury which arose out of and in the 
 
         course of his employment.  McDowell v. Town of Clarksville, 241 
 
         N.W.2d 904 (Iowa 1976); Musselman v. Central Telephone Co., 261 
 
         Iowa 352, 154 N.W.2d 128 (1967).
 
         
 
              The injury must both arise out of and be in the course of 
 
         the employment.  Crowe v. DeSoto Consol. Sch. Dist., 246 Iowa 
 
         402, 68 N.W.2d 63 (1955,1 and cases cited at pp. 405-406 of the 
 
         Iowa Report.  See also Sister Mary Benedict v. St. Mary's 
 
         Corp., 255 Iowa 847, 124 N.W.2d 548 (1963) and Hansen v. State of 
 
         Iowa, 249 Iowa 1147, 91 N.W.2d 555 (1958).
 
         
 
              The words "arising out of" refer to the cause or source of 
 
         the injury, while the words "in the course of" refer to the time, 
 
         place and circumstances of the injury.  Sheerin v. Holin Co., 380 
 
         N.W.2d 415, 417 (Iowa 1986); Crowe v. Desoto Consol. Sch. Dist., 
 
         246 Iowa 402, 68 N.W.2d 63 (1955).
 
         
 
              The supreme court of Iowa in Almquist v. Shenandoah 
 
         Nurseries, 218 Iowa 724, 254 N.W. 35 (1934) at 731-32, discussed 
 
         the definition of personal injury in workers' compensation cases 
 
         as follows:
 
         
 
              While a personal injury does not include an occupational 
 
              disease under the workmen's Compensation Act, yet an injury 
 
              to the health may be a personal injury [Citations omitted.] 
 
              Likewise a personal injury includes a disease resulting from 
 
              an injury .... The result of changes in the human body 
 
              incident to the general processes of nature do not amount to 
 
              a personal injury.  This must follow, even though such 
 
              natural change may come about because the life has been 
 
              devoted to labor and hard work.  Such result of those 
 
              natural changes does not constitute a personal injury even 
 
              though the same brings about impairment of health or the 
 
              total or partial incapacity of the functions of the human 
 
              body.
 
              
 
                   ....
 
              
 
              A personal injury, contemplated by the Workmen's 
 
              Compensation Law, obviously means an injury to the body, the 
 
              impairment of health, or a disease, not excluded by the act, 
 
              which comes about, not through the natural building up and 
 
              tearing down of the human body, but because of a traumatic 
 
              or other hurt or damage to the health or body of an 
 
              employee. [Citations omitted.] The injury to the human body 
 
              here contemplated must be something, whether an accident or 
 
              not, that acts extraneously to the natural processes of 
 
              nature and thereby impairs the health, overcomes, injures,
 

 
              
 
 
 
 
 
 
 
 
 
 
 
         
 
         
 
         
 
         WILLIAMS V. FISHER CONTROLS INTERNATIONAL
 
         Page 7
 
         
 
         
 
              interrupts, or destroys some function of the body, or 
 
              otherwise damages or injures a part or all of
 
              the body.
 
         
 
              Injuries which occur of a number of relatively injury under 
 
         the workers' is a result of cumulative for giving notice and for 
 
         to run until such time as as the result of the cumulative effects 
 
         minor traumas can constitute a compensable compensation laws.  
 
         When the injury trauma, the statute of limitations commencing the 
 
         action does not begin the employee is rendered disabled from 
 
         performing the normal duties of his employment.  McKeever Custom 
 
         Cabinets v. Smith, 379 N.W.2d 368 (Iowa 1985).  Aggravation of a 
 
         preexisting condition is one form of compensable injury.  While a 
 
         claimant is not entitled to compensation for the results of a 
 
         preexisting injury or disease, the mere existence at the time of 
 
         a subsequent injury is not a defense.  Rose v. John Deere Ottumwa 
 
         Works, 247 Iowa 900, 908, 76 N.W.2nd 756 (1956).  If the claimant 
 
         had a preexisting condition or disability that is aggravated, 
 
         accelerated, worsened or lighted up so that it results in 
 
         disability, claimant is entitled to recover.  Nicks v Davenport 
 
         Produce Co., 254 Iowa 130, 115 N.W.2d 812 (1962).
 
         
 
              The defenses provided by Code sections 85.23 and 85.26 are 
 
         affirmative defenses and the burden of proof rests on the 
 
         defendants.  Missing a day or two of work intermittently does not 
 
         trigger the running of section 85.26. Smith v. French & Hecht, 
 
         file number 750419, (App.  Decn., August 23, 1988).  A cause of 
 
         action does not accrue until the plaintiff is entitled to a 
 
         recovery.  Stroller Fisheries, Inc. v. American Title Insurance 
 
         Co., 258 N.W.2d 336 (Iowa 1977); Dean v. Iowa Des Moines National 
 
         Bank & Trust Co., 227 Iowa 1239, 281 N.W. 714 (1938); Ward v. 
 
         Meredith, 186 Iowa 1108, 173 N.W. 246 (1919).  Where resultant 
 
         injuries are recurring and successive actions lie, the limitation 
 
         period runs from the occurrence of each injury.  Anderson v. 
 
         Yearous, 249 N.W.2d 855 (Iowa 1977).
 
         
 
              Code section 85.23 requires an employee to give the employer 
 
         notice of injury within 90 days from the date of occurrence of 
 
         the injury.  If the date of occurrence of injury is determined 
 
         under McKeever, claimant would have been required to give notice 
 
         within 90 days following June 25, 1985, the date claimant became 
 
         disabled from working due to the back condition.  Claimant's 
 
         petition was filed July 26, 1985, well within 90 days from the 
 
         date of disability.  Accordingly, if June 25, 1985 is applied as 
 
         the date of occurrence of injury, then the claim is not barred by 
 
         Code section 85.23.
 
         
 
              According to the court in Robinson v. Department of 
 
         Transp., 296 N.W.2d 809, 811 (Iowa 1980), the actual knowledge 
 
         alternative to the employee giving notice is satisfied if the 
 
         employer has information from which a reasonably conscientious 
 
         manager should recognize that the possibility for a workers' 
 
         compensation claim exists.  In this case, the first page of the 
 
         employee
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
         
 
         
 
         WILLIAMS V. FISHER CONTROLS INTERNATIONAL 
 
         Page 8
 
         
 
         
 
         records found in plaintiff's exhibit 1 shows nurse's notes which 
 
         indicate that, on July 26, 1983, the nurse indicated that the 
 
         condition for which claimant was seen was a new occupational 
 
         condition, that claimant hurt his upper back yesterday lifting 
 
         yokes and that the pain had moved to his low back.  There was 
 
         apparently sufficient question about whether or not it was a 
 
         work-related condition to cause Dr. Weist to indicate in his 
 
         diagnosis that there was no evidence that the condition was 
 
         definitely.work-related. If there are sufficient indications that 
 
         a condition may be work-related to cause the employer's agents to 
 
         make a determination as to whether or not they consider the 
 
         condition to be work-related, those same facts are adequate to 
 
         give the employer actual notice of the possibility of a workers' 
 
         compensation claim.  Accordingly, even if a 1983 injury date is 
 
         applied, the claim is not barred by Code section 85.23.
 
         
 
              Claimant was seen on July 26, 1983.  His petition was filed 
 
         July 26, 1985, a date which is two years to the day from the date 
 
         when claimant first consulted the company physician.  It was not 
 
         until subsequent to that time that claimant was diagnosed as 
 
         having a herniated disc.  Accordingly, claimant's claim was 
 
         timely filed under the provisions of Code section 85.26 
 
         regardless of whether an injury date of June 25, 1985 or some 
 
         earlier date based upon the discovery rule is applied in 1983.  
 
         The claim is therefore not barred by the provisions of Code 
 
         section 85.26.
 
         
 
              The evidence presented in this case fails to show that 
 
         claimant missed any substantial periods of time from work due to 
 
         disability until he left work for surgery on June 25, 1985.  The 
 
         report from Dr. Wirtz dated February 27, 1987 indicates that 
 
         claimant's back condition developed with activities.  Dr. Hughes 
 
         stated that back problems are a continuum.  He stated that 
 
         herniated discs frequently occur from cumulative trauma.  The 
 
         line dividing cumulative trauma injuries from the natural changes 
 
         in the human body attributable to labor and hard work can be a 
 
         very fine line.  In this case, however, the development of the 
 
         herniated disc is determined to be an injury rather than natural 
 
         changes resulting from hard work.  It is therefore determined 
 
         that claimant did sustain an injury from cumulative trauma which 
 
         arose out of and in the course of his employment with Fisher 
 
         Controls International.  It is further determined that the date 
 
         of occurrence of injury for purposes of Code section 85.23 and 
 
         85.26 is June 24, 1985, the last day claimant worked before 
 
         entering the hospital for laminectomy surgery.
 
         
 
              Claimant is entitled to recover compensation for healing 
 
         period for the stipulated period which commenced June 25, 1985 
 
         and runs through August 17, 1985, a span of 7 5/7 weeks.  The 
 
         employer is responsible for payment of claimant's medical 
 
         expenses under the provisions of Code section 85.27, but that 
 
         liability has previously been satisfied by group payments for 
 
         which the employer is entitled to credit under Code section 
 
         85.38(2).
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
         
 
         
 
         WILLIAMS V. FISHER CONTROLS INTERNATIONAL
 
         Page 9
 
         
 
         
 
         The employer is also entitled to credit in the sum of $1,250.10 
 
         against the healing period award under Code section 85.38(2).
 
         
 
              The claimant has the burden of proving by a preponderance of 
 
         the evidence that the injury of June 24, 1985 is causally related 
 
         to the disability on which he now bases his claim.  Bodish v. 
 
         Fischer, Inc., 257 Iowa 516, 133 N.W.2d 867 (1965). Lindahl v. 
 
         L.O. Boggs, 236 Iowa 296, 18 N.W.2d 607 (1945).  A possibility is 
 
         insufficient; a probability is necessary. Burt v. John Deere 
 
         Waterloo Tractor Works, 247 Iowa 691, 73 N.W.2d 732 (1955).  The 
 
         question of causal connection is essentially within the domain of 
 
         expert testimony.  Bradshaw v. Iowa Methodist Hospital, 251 Iowa 
 
         375, 101 N.W.2d 167 (1960).
 
         
 
              However, expert medical evidence must be considered with all 
 
         other evidence introduced bearing on the causal. connection.  
 
         Burt, 247 Iowa 691, 73 N.W.2d 732.  The opinion of experts need 
 
         not be couched in definite, positive or unequivocal language. 
 
         Sondag v. Ferris Hardware, 220 N.W.2d 903 (Iowa 1974).  However, 
 
         the expert opinion may be accepted or rejected, in whole or in 
 
         part, by the trier of fact.  Id. at 907.  Further, the weight to 
 
         be given to such an opinion is for the finder of fact, and that 
 
         may be affected by the completeness of the premise given the 
 
         expert and other surrounding circumstances.  Bodish, 257 Iowa 
 
         516, 133 N.W.2d 867.  See also Musselman v. Central Telephone Co.
 
         , 261 Iowa 352, 154 N.W.2d 128 (1967).
 
         
 
              The group insurance benefit claim forms which were signed by 
 
         both claimant and Dr. Hughes are certainly evidence that the 
 
         condition of claimant's back was considered to not be 
 
         work-related.  However, there is often a misunderstanding with 
 
         regard to whether an aggravation is an injury or whether the 
 
         question deals with the underlying preexisting condition.  
 
         Accordingly, the indications made that the condition is not 
 
         work-related are not highly probative on the issue.  They are 
 
         less reliable than the explanations given by claimant in his 
 
         testimony and also less reliable than the information from Drs.  
 
         Hughes and Wirtz wherein causation is more thoroughly explained.
 
         
 
              As claimant has an impairment to the body as a whole, an 
 
         industrial disability has been sustained.  Industrial disability 
 
         was defined in Diederich v. Tri-City Railway Co., 219 Iowa 587, 
 
         593, 258 N.W. 899, 902 (1935) as follows: "It is therefore plain 
 
         that the legislature intended the term 'disability"to mean 
 
         'industrial disability' or loss of earning capacity and not a 
 
         mere 'functional disability' to be computed in the terms of 
 
         percentages of the total physical and mental ability of a normal 
 
         man."
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              Functional impairment is an element to be considered in 
 
         determining industrial disability which is the reduction of 
 
         earning capacity, but consideration must also be given to the 
 
         injured employee's age, education, qualifications, experience
 
         
 
         
 
         
 
         WILLIAMS V. FISHER CONTROLS INTERNATIONAL 
 
         Page 10
 
         
 
         
 
         and inability to engage in employment for which he is fitted. 
 
         Olson v. Goodyear Service Stores, 255 Iowa 1112, 1121 125 N.W.2d 
 
         251, 257 (1963).
 
         
 
              Industrial disability or loss of earning capacity is a 
 
         concept that is quite similar to impairment of earning capacity, 
 
         an element of damage in a tort case.  Impairment of physical 
 
         capacity creates an inference of lessened earning capacity.  The 
 
         basic element to be determined, however, is the reduction in 
 
         value of the general earning capacity of the person, rather than 
 
         the loss of wages or earnings in a specific occupation.  
 
         Post-injury earnings create a presumption of earning capacity.  
 
         The earnings are not synonymous with earning capacity and the 
 
         presumption may be rebutted by evidence showing the earnings to 
 
         be an unreliable indicator.  Carradus v. Lange, 203 N.W.2d 565 
 
         (Iowa 1973); Holmquist v. Volkswagon of America, Inc., 261 N.W.2d 
 
         516 (Iowa App. 1977) A.L.R.3d 143; Michael v. Harrison County, 
 
         34th Biennial Report, 218 (1979): 2 Larson Workmen's Compensation 
 
         Law, sections 57.21 and 57.31.
 
         
 
              A plaintiff is not charged with the burden of proving the 
 
         actual apportionment of damages between a preexisting condition 
 
         and an injury which aggravates that preexisting condition.  Any 
 
         burden of that nature must be assumed by the defendant since the 
 
         defendant is the party standing to gain by litigating the 
 
         apportionment issue.  If it is unable to be apportioned, the 
 
         defendant is responsible for the entire disability.  Varied 
 
         Enterprises, Inc. v. Sumner, 353 N.W.2d 407 (Iowa 1984); Becker 
 
         v. D & E Distributing Co., 247 N.W.2d 727, 731 (Iowa 1976).
 
         
 
              In this case, Jerry Williams clearly had a preexisting 
 
         condition affecting his back.  It was not dormant or 
 
         asymptomatic.  It was aggravated by many things, some of which 
 
         occurred at work and some of which occurred during his non-work 
 
         activities.  Claimant clearly had a preexisting propensity for 
 
         injury in his back.  The cumulative effect of all of his 
 
         activities, both at work and away from work, contributed to the 
 
         herniated disc which ultimately occurred.  Since the work is 
 
         something that claimant performed eight hours per day, five days 
 
         per week, it cannot be said that the work activities were of no 
 
         consequence.  For a cause to be proximate, it must be a 
 
         substantial factor in bringing about the result.  It need not be 
 
         the only cause.  Blacksmith v. All-American, Inc., 290 N.W.2d 
 
         348, 354 (Iowa 1980).  Claimant's current rate of pay is 87.5% of 
 
         what the rate of pay would have been if he had been able to 
 
         remain at the 3-L turret operator position.  The change in job 
 
         duties is-attributable to claimant's back condition and in 
 
         particular the worsening of the condition that has occurred since 
 
         claimant was placed on the turret lathe in 1982, which position 
 
         led to the injury which is now under litigation.  It is likely 
 
         that claimant was not physically capable of performing that job 
 
         without injuring himself, as occurred.  Likewise, he is not 
 
         capable of performing that job at the current time without 
 
         injuring himself.  Nevertheless, he has sustained some loss
 

 
         
 
 
 
 
 
 
 
 
 
 
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
         
 
         
 
         WILLIAMS V. FISHER CONTROLS INTERNATIONAL 
 
         Page 11
 
         
 
         
 
         of earning capacity as a result of the herniated disc which he 
 
         sustained, the surgery and resulting increased symptoms and 
 
         disability.  The disability in this case has been limited by the 
 
         employer's action in retaining claimant in its workforce.  If 
 
         claimant were forced to seek employment in the open, competitive 
 
         labor market, the impact upon his actual earnings would certainly 
 
         be much more adverse than the change of pay grades that has 
 
         occurred within the Fisher Controls organization.  It is 
 
         therefore determined that claimant sustained a 15% loss of 
 
         earning capacity as a result of the June 24, 1985 injury.
 
         
 
              The record shows that Dr. Hughes was claimant's own chosen 
 
         physician.  Further, when claimant sought a second opinion 
 
         regarding his restrictions, he contacted the employer and it was 
 
         agreed that claimant would be seen by Dr. Wirtz.  It is noted 
 
         that all three reports from Dr. Wirtz are addressed to claimant's 
 
         counsel, rather than to the employer.  There is no indication on 
 
         the reports that Dr. Wirtz sent the employer a copy of those 
 
         reports.  It is therefore determined that the evaluation by Dr. 
 
         Wirtz is in substantial. compliance with the employer's liability 
 
         to provide an independent examination under section 85.39. The 
 
         fact that the employer consented at a time when it would not have 
 
         needed to, since the treating physician had not yet provided an 
 
         impairment rating, does not subject the employer to paying for 
 
         two independent examinations.  The fact that claimant's counsel 
 
         allowed input from defendants' counsel in selecting the 
 
         physician, rather than possibly litigating the matter, likewise 
 
         does not render defendants responsible for the costs of two 
 
         independent evaluations.  Claimant's claim for the cost of the 
 
         independent evaluation from Dr. Walker is therefore denied.
 
         
 
                                 FINDINGS OF FACT
 
         
 
              1. On June 24, 1985, Jerry D. Williams was a resident of the 
 
         state of Iowa, employed by Fisher Controls International at 
 
         Marshalltown, Iowa.
 
         
 
              2. Jerry D. Williams was injured on June 24, 1985 as a 
 
         result of a cumulative injury process.
 
         
 
              3. The injury was an aggravation of a preexisting condition 
 
         or a preexisting propensity to develop back injuries.
 
         
 
              4. The injury process had occurred throughout the term of 
 
         claimant's employment, but worsened substantially in 1983 when 
 
         claimant developed leg pain and was diagnosed as having a 
 
         herniated disc.  The injury process continued until claimant left 
 
         work on June 24, 1985 for the purpose of receiving corrective 
 
         surgery.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              5. The employer had actual knowledge sufficient to alert a 
 
         reasonably conscientious manager to the possibility of a workers' 
 
         compensation claim on July 26, 1983 as reported in
 
         
 
         
 
         
 
         WILLIAMS V. FISHER CONTROLS INTERNATIONAL
 
         Page 12
 
         
 
         
 
         the employee records found at plaintiff's exhibit 1.
 
         
 
              6. Jerry D. Williams is a 45-year-old, married man.
 
         
 
              7. Williams has suffered a 12.5% reduction in his actual 
 
         earnings as a result of the injury.
 
         
 
              8. Williams has a 15% loss of earning capacity as a result 
 
         of the injury of June 24, 1985.
 
         
 
              9. The testimony from Jerry and Wilma Williams is accepted 
 
         as being substantially correct.
 
         
 
                                CONCLUSIONS OF LAW
 
                                        
 
              1.This agency has jurisdiction of the subject matter of this 
 
         proceeding and its parties.
 
         
 
              2. Jerry D. Williams sustained an injury to his back on June 
 
         24, 1985 which arose out of and in the course of his employment 
 
         with Fisher Controls International.
 
         
 
              3. Williams is entitled to recover 7 5/7 weeks of 
 
         compensation for healing period and 75 weeks of compensation for 
 
         permanent partial disability under the provisions of Code 
 
         sections 85.34(l) and 85.34(2)(u), respectively.
 
         
 
              4. Claimant has been previously provided with an independent 
 
         medical examination at the employer's expense and no further 
 
         entitlement to a subsequent examination exists under the 
 
         provisions of Code section 85.39.
 
         
 
                                      ORDER
 
         
 
              IT IS THEREFORE ORDERED that defendants pay claimant seven 
 
         and five-sevenths (7 5/7) weeks of compensation for healing 
 
         period at the stipulated rate of three hundred twenty-three and 
 
         68/100 dollars ($323.68) per week payable commencing June 25, 
 
         1985.  Defendants are entitled to credit under the provisions of 
 
         Code section 85.38(2) in the amount of one thousand two hundred' 
 
         fifty and 10/100 dollars ($1,250.10) against the healing period 
 
         compensation awarded.
 
         
 
              IT IS FURTHER ORDERED that defendants pay claimant 
 
         seventy-five (75) weeks of compensation for permanent partial 
 
         disability at the stipulated rate of three hundred twenty-three 
 
         and 68/100 dollars ($323.68) per week payable commencing August 
 
         18, 1985.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              IT IS FURTHER ORDERED that defendants pay all past due 
 
         accrued amounts in a lump sum together with interest pursuant to 
 
         Code section 85.30 from the date each payment came due.
 
         
 
              IT IS FURTHER ORDERED that defendants pay the costs of this 
 
         action pursuant to Division of Industrial Services Rule 343-4.33.
 
         
 
         WILLIAMS V. FISHER CONTROLS INTERNATIONAL
 
         Page 13
 
         
 
         
 
              IT IS FURTHER ORDERED that defendants file Claim Activity 
 
         Reports as requested by this agency pursuant to Division of 
 
         Industrial Services Rule 343-3.1
 
         
 
              Signed and filed this 23rd day of March, 1989.
 
         
 
         
 
         
 
                                         MICHAEL G. TRIER
 
                                         DEPUTY INDUSTRIAL COMMISSIONER
 
         
 
         Copies To:
 
         
 
         Mr. Theodore R. Hoglan
 
         Attorney at Law
 
         34 South First Avenue
 
         Marshalltown, Iowa 50158
 
         
 
         Mr. John B. Grier
 
         Mr. Joel T. S. Grier
 
         Attorneys at Law
 
         112 West Church Street
 
         P.O. Box 496
 
         Marshalltown, Iowa 50158
 
         
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
 
         
 
 
 
 
 
 
 
 
 
 
 
                                         2206, 2209, 2401,
 
                                         2502, 2803
 
                                         Filed March 23, 1989
 
                                         MICHAEL G. TRIER
 
         
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         JERRY D. WILLIAMS,
 
          
 
              Claimant,
 
          
 
         vs.                                 File No. 799412
 
          
 
          FISHER CONTROLS INTERNATIONAL,     A R B I T R A T I 0 N
 
          
 
              Employer,                        D E C I S I 0 N
 
          
 
          and
 
          
 
          CIGNA,
 
          
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
         2401, 2803
 
         
 
              Defendants failed to establish notice defense under section 
 
         85.23..  The company nurse's notes related an on-the-job injury 
 
         and characterized the visit to the nurse's station as 
 
         occupational. The in-house company physician, in his notes, 
 
         stated that there was no definite evidence that the condition was 
 
         work-related.  The fact that the employer apparently had 
 
         sufficient information to render it necessary to make a 
 
         determination as to whether or not there was evidence that the 
 
         condition was work-related was held sufficient under Robinson v. 
 
         Department of Transp., to constitute actual notice.
 
         
 
         2206, 2209
 
         
 
         Claimant had a long-standing history of recurrent back problems.  
 
         The injury date was determined to be the last day he worked prior 
 
         to entering the hospital for surgery, despite the fact that he 
 
         had been quite symptomatic for approximately two years.  The 
 
         injury was held to be an aggravation of a preexisting condition 
 
         which had resulted from cumulative trauma.  Claimant awarded 15% 
 
         permanent partial disability, an amount substantially equal to 
 
         claimant's reduction in earnings resulting from a change to a 
 
         lighter job.
 
         
 
         2 5 02
 
         
 
         Claimant's counsel and defense counsel agreed to send claimant to 
 
         a Des Moines orthopaedic surgeon for an evaluation in response to 
 
         claimant's request for an independent evaluation by a different 
 
         physician, to whom the employer's counsel objected.  Such was 
 
         held to satisfy the employer's obligation to provide an 85.39 
 
         examination despite the fact that a prior impairment had not yet 
 
         been rendered by the treating physician.
 

 
         
 
 
 
 
 
 
 
 
 
 
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
         
 
         
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
 
 
 
 
          ROGER HINGTGEN,
 
 
 
               Claimant,
 
                                             File Nos. 799425/767792
 
          vs.
 
                                                   A P P E A L
 
          FDL FOODS, INC.,
 
                                                  D E C I S I O N
 
               Employer,
 
               Self-Insured,                         F I L E D
 
               Defendant.
 
                                                    JUL 31 1989
 
 
 
                                           IOWA INDUSTRIAL COMMISSIONER
 
 
 
 
 
                           STATEMENT OF THE CASE
 
 
 
               Claimant appeals from an arbitration decision denying 
 
          claimant any benefits.  The deputy in her arbitration decision 
 
          decided that claimant could amend the original notice and 
 
          petition to change the alleged injury date from December 20, 1982 
 
          to April 25, 1983.
 
 
 
               The record on appeal consists of the transcript of the 
 
          arbitration hearing and joint exhibits 1 through 3.  Both parties 
 
          filed briefs on appeal.
 
 
 
                                   ISSUE
 
 
 
               The issue on appeal is whether there is a causal connection 
 
          between claimant's alleged injuries on April 25, 1983 and January 
 
          23, 1984 and his claimed permanent disability.
 
 
 
                           REVIEW OF THE EVIDENCE
 
 
 
               The arbitration decision dated February 1, 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.
 
 
 
                             FINDING OF FACT
 
 
 
                                                               
 
                                                               
 
               1.  Claimant did not sustain permanent or temporary injuries 
 
          to his right and left shoulders as a result of two work related 
 
          incidents which occurred on April 25, 1983 and on January 23, 
 
          1984.
 
 
 
                             CONCLUSION OF LAW
 
 
 
               Claimant has not established a causal connection between 
 
          alleged injuries on April 25, 1983 and January 23, 1984 and a 
 
          permanent disability.
 
 
 
               WHEREFORE, the decision of the deputy is affirmed.
 
 
 
                                 ORDER
 
 
 
               THEREFORE  it is ordered:
 
 
 
               That claimant takes nothing from these proceedings.
 
 
 
               That claimant pay the costs of this proceedings including 
 
          transcription of the arbitration hearing pursuant to Division
 
 
 
               Signed and filed this 31st day of July, 1989.
 
 
 
 
 
 
 
 
 
 
 
 
 
                                                DAVID E. LINQUIST
 
                                             INDUSTRIAL COMMISSIONER
 
 
 
          Copies To:
 
 
 
          Mr. Nick J. Avgerinos
 
          Attorney at Law
 
          101 N. Wacker Dr.
 
          Suite 740
 
          Chicago, Illinois  60606
 
 
 
          Mr. James M. Heckmann
 
          Mr. David C. Bauer
 
          Attorneys at Law
 
          One Cycare Plaza
 
          Suite 216
 
          Dubuque, Iowa 52001
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
                                                               
 
 
         
 
 
 
 
 
 
 
 
 
 
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         ROGER HINGTGEN,
 
         
 
              Claimant,
 
                                            File Nos. 799425/767792
 
         vs.
 
                                                  A P P E A L
 
         FDL FOODS, INC.,
 
                                                 D E C I S I O N
 
              Employer,
 
              Self-Insured,                         F I L E D
 
              Defendant.
 
                                                   JUL 31 1989
 
         
 
                                          IOWA INDUSTRIAL COMMISSIONER
 
                                  
 
                                  
 
                              STATEMENT OF THE CASE
 
         
 
              Claimant appeals from an arbitration decision denying 
 
         claimant any benefits.  The deputy in her arbitration decision 
 
         decided that claimant could amend the original notice and 
 
         petition to change the alleged injury date from December 20, 1982 
 
         to April 25, 1983.
 
         
 
              The record on appeal consists of the transcript of the 
 
         arbitration hearing and joint exhibits 1 through 3.  Both parties 
 
         filed briefs on appeal.
 
         
 
                                      ISSUE
 
         
 
              The issue on appeal is whether there is a causal connection 
 
         between claimant's alleged injuries on April 25, 1983 and January 
 
         23, 1984 and his claimed permanent disability.
 
         
 
                              REVIEW OF THE EVIDENCE
 
         
 
              The arbitration decision dated February 1, 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.
 
         
 
                                 FINDING OF FACT
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
              1.  Claimant did not sustain permanent or temporary injuries 
 
         to his right and left shoulders as a result of two work related 
 
         incidents which occurred on April 25, 1983 and on January 23, 
 
         1984.
 
         
 
                                CONCLUSION OF LAW
 
         
 
              Claimant has not established a causal connection between 
 
         alleged injuries on April 25, 1983 and January 23, 1984 and a 
 
         permanent disability.
 
         
 
              WHEREFORE, the decision of the deputy is affirmed.
 
         
 
                                      ORDER
 
         
 
              THEREFORE  it is ordered:
 
         
 
              That claimant takes nothing from these proceedings.
 
         
 
              That claimant pay the costs of this proceedings including 
 
         transcription of the arbitration hearing pursuant to Division
 
         
 
              Signed and filed this 31st day of July, 1989.
 
                                  
 
         
 
         
 
         
 
         
 
         
 
                                               DAVID E. LINQUIST
 
                                            INDUSTRIAL COMMISSIONER
 
         
 
         Copies To:
 
         
 
         Mr. Nick J. Avgerinos
 
         Attorney at Law
 
         101 N. Wacker Dr.
 
         Suite 740
 
         Chicago, Illinois  60606
 
         
 
         Mr. James M. Heckmann
 
         Mr. David C. Bauer
 
         Attorneys at Law
 
         One Cycare Plaza
 
         Suite 216
 
         Dubuque, Iowa 52001
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
 
            
 
 
 
                         
 
 
 
 
 
                                                     1803
 
                                                     Filed July 31, 1989
 
                                                     DAVID E. LINQUIST
 
         
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         ROGER HINGTGEN,
 
         
 
              Claimant,
 
                                                  File Nos. 799425/767792
 
         vs.
 
                                                        A P P E A L
 
         FDL FOODS, INC.,
 
                                                      D E C I S I O N
 
              Employer,
 
              Self-Insured,
 
              Defendant.
 
         
 
         
 
         1803
 
         
 
              Claimant failed to show a causal connection between the 
 
         claimed disability and two separate work incidents.  Deputy 
 
         affirmed on appeal.
 
         
 
         
 
         
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
                                                
 
 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
                                            1803
 
                                            Filed July 31, 1989
 
                                            DAVID E. LINQUIST
 
         
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         ROGER HINGTGEN,
 
         
 
              Claimant,
 
                                                  File Nos. 799425/767792
 
         vs.
 
                                                        A P P E A L
 
         FDL FOODS, INC.,
 
                                                      D E C I S I O N
 
              Employer,
 
              Self-Insured,
 
              Defendant.
 
         
 
         
 
         1803
 
         
 
              Claimant failed to show a causal connection between the 
 
         claimed disability and two separate work incidents.  Deputy 
 
         affirmed on appeal.
 
         
 
         
 
         
 
         
 
         
 
         
 
         
 
         
 
         
 
         
 
         
 
         
 
                                                                                                                    
 
         
 
         
 
         
 
         
 
         
 
         
 
         
 
         
 
         
 
         
 
         
 
         
 
         
 
         
 
         
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
         
 
         
 
                                                                                       
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                   BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         ROGER HINGTGEN,
 
                                               File Nos. 799425 & 767792
 
              Claimant,
 
                                                 A R B I T R A T I O N
 
         vs.
 
                                                    D E C I S I O N
 
         FDL FOODS, INC.,
 
                                                       F I L E D
 
              Employer,
 
              Self- Insured                           FEB 1 1989
 
              Defendant.
 
                                             IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
                                   INTRODUCTION
 
         
 
              These are proceedings brought by Roger Hingtgen, claimant, 
 
         against FDL Foods, Inc., self-insured employer.  These cases come 
 
         upon petitions for arbitration for benefits as a result of 
 
         alleged injuries occurring on December 20, 1982 and on January 
 
         23, 1984. The cases were heard by the undersigned on September 
 
         26, 1988 in Dubuque, Iowa.
 
         
 
              The record consists of the testimony of claimant.  The 
 
         following witnesses testified for defendant at the hearing:  
 
         Melvin Kieber, former employee of defendant, and Tom J. Osterholz, 
 
         safety, security, and workers' compensation manager at 
 
         defendant's.  The record also consists of joint exhibits 1, 2 and 
 
         3.
 
         
 
                                       ISSUES
 
         
 
              The issues presented by the parties at the time of the 
 
         prehearing and the hearing are:
 
         
 
              1) Whether claimant can amend the injury date in file no. 
 
         767792 to reflect the injury date of April 25, 1983;
 
         
 
              2) Whether proper notice has been given under section 85.23;
 
         
 
              3) Whether claimant has complied with the provisions of 
 
         section 85.26;
 
         
 
              4) Whether claimant has received an injury which arose out of 
 
         and in the course of employment;
 
         
 
              5) Whether there is a causal relationship between the alleged 
 
         injury and the disability;
 
         
 
              6) Whether claimant is entitled to temporary 
 
         disability/healing period benefits or permanent partial or total 
 
         disability benefits; and,
 
         
 
                                                
 
                                                         
 
              7) Whether claimant is entitled to medical benefits under 
 
         section 85.27.
 
         
 
                                  FACTS PRESENTED
 
         
 
              Claimant has been employed by defendant since October 25, 
 
         1982.  Prior to that date, claimant had worked for Dubuque 
 
         Packing Co., the predecessor of defendant.  Since the date of his 
 
         employment with defendant, claimant has worked in the bacon 
 
         department.  He has worked on the bacon crew and on the bacon 
 
         shaper crew.  Claimant's job responsibilities include pulling 
 
         bacon from stainless steel trees which are above claimant's head, 
 
         pulling pins out of bacon, placing bacon on the work table, and 
 
         pushing the bacon to the person on the shaper crew.  Also 
 
         included in claimant's duties are responsibilities involving 
 
         pushing empty trees out of the bacon room and out of the 
 
         freezer.
 
         
 
              Claimant's description of the alleged incident in December 
 
         of 1982 is sketchy, at best.  He cannot recall what event might 
 
         have precipitated his alleged shoulder injury.  Under 
 
         cross-examination claimant revealed he "very possibly could have 
 
         been hurt on December 20, 1982."  Claimant reported he received 
 
         this date from the nurse's office as the correct injury date.
 
         
 
              Claimant can recall the incident which occurred on April 25, 
 
         1983, the date he alleges is the correct injury date in file no. 
 
         767792.  He has testified he was pushing four empty bacon trees 
 
         out the door from the bacon shaping crew room.  The floor was 
 
         made of red brick.  There was a glaze of ice on the floor which 
 
         was difficult to see.  Claimant slipped on the ice, grabbed the 
 
         trees, fell onto the trees and injured both shoulders at that 
 
         time. According to claimant, his boot slid away from him, the 
 
         trees flew forward and claimant stated the weight of his body was 
 
         placed on his shoulders.  Claimant reports he was in very severe 
 
         pain after that time.  He visited the plant medical department 
 
         for shoulder pain on June 8, 1983 and reported that his injury 
 
         had occurred approximately six weeks prior.
 
         
 
              With respect to file no. 799425, claimant reports that on 
 
         January 23, 1984, he was carrying a box of bacon weighing 75 
 
         pounds.  He fell over a jeep, struck his left shoulder and knee 
 
         and fell straight forward.  Claimant states he felt a severe pain 
 
         in his left shoulder which tingled from the top of his left 
 
         shoulder area down to his bicep muscle.  Claimant relates he 
 
         reported the accident to the plant nurse.  On the succeeding day 
 
         the claimant was examined by the plant physician, L. C. Faber, 
 
         M.D.
 
         
 
                                  APPLICABLE LAW
 
         
 
              An employee is entitled to compensation for any and all 
 
         personal injuries which arise out of and in the course of the 
 
         employment.  Section 85.3(1).
 
         
 
                                                
 
                                                         
 
              Claimant has the burden of proving by a preponderance of the 
 
         evidence that he received injuries on December 20, 1982, and/or 
 
         April 25, 1983 and January 23, 1984 which arose out of and in the 
 
         course of his employment.  McDowell v. Town of Clarksville, 241 
 
         N.W.2d 904 (Iowa 1976); Musselman v. Central Telephone Co., 261 
 
         Iowa 352, 154 N.W.2d 128 (1967).
 
         
 
              The injury must both arise out of and be in the course of 
 
         the employment.  Crowe v. DeSoto Consol. Sch. Dist., 246 Iowa 
 
         402, 68 N.W.2d 63 (1955) and cases cited at pp. 405-406 of the 
 
         Iowa Report.  See also Sister Mary Benedict v. St. Mary's Corp., 
 
         255 Iowa 847, 124 N.W.2d 548 (1963) and Hansen v. State of Iowa, 
 
         249 Iowa 1147, 91 N.W.2d 555 (1958).
 
         
 
              The words "out of" refer to the cause or source of the 
 
         injury.  Crowe, 246 Iowa 402, 68 N.W.2d 63 (1955).
 
         
 
              The words "in the course of" refer to the time and place and 
 
         circumstances of the injury.  McClure v. Union et al. Counties, 
 
         188 N.W.2d 283 (Iowa 1971); Crowe, 246 Iowa 402, 68 N.W.2d 63 
 
         (1955).
 
         
 
              "An injury occurs in the course of the employment when it is 
 
         within the period of employment at a place the employee may 
 
         reasonably be, and while he is doing his work or something 
 
         incidental to it."  Cedar Rapids Comm. Sch. Dist. v. Cady, 278 
 
         N.W.2d 298 (Iowa 1979); McClure, 188 N.W.2d 283 (Iowa 1971); 
 
         Musselman, 261 Iowa 352, 154 N.W.2d 128 (1967).
 
         
 
              The supreme court of Iowa in Almquist v. Shenandoah 
 
         Nurseries, 218 Iowa 724, 254 N.W. 35 (1934) at 731-32, discussed 
 
         the definition of personal injury in workers' compensation cases 
 
         as follows:
 
         
 
              While a personal injury does not include an occupational 
 
              disease under the workmen's Compensation Act, yet an injury 
 
              to the health may be a personal injury [Citations omitted.] 
 
              Likewise a personal injury includes a disease resulting from 
 
              an injury....The result of changes in the human body 
 
              incident to the general processes of nature do not amount to 
 
              a personal injury.  This must follow, even though such 
 
              natural change may come about because the life has been 
 
              devoted to labor and hard work.  Such result of those 
 
              natural changes does not constitute a personal injury even 
 
              though the same brings about impairment of health or the 
 
              total or partial incapacity of the functions of the human 
 
              body.
 
         
 
                  ....
 
         
 
              A personal injury, contemplated by the Workmen's 
 
              Compensation Law, obviously means an injury to the body, the 
 
              impairment of health, or a disease, not excluded by the act, 
 
              which comes about, not through the natural building up and 
 
              tearing down of the human body, but because of a traumatic 
 
                                                
 
                                                         
 
                   or other hurt or damage to the health or body of an 
 
              employee.  [Citations omitted.]  The injury to the human 
 
              body here contemplated must be something, whether an 
 
              accident or not, that acts extraneously to the natural 
 
              processes of nature and thereby impairs the health, 
 
              overcomes, injures, interrupts, or destroys some function of 
 
              the body, or otherwise damages or injures a part or all of 
 
              the body.
 
         
 
              The claimant has the burden of proving by a preponderance of 
 
         the evidence that the injuries of December 20, 1982, and/or April 
 
         25, 1983 and January 23, 1984 are causally related to the 
 
         disability on which he now bases his claim.  Bodish v. Fischer, 
 
         Inc., 257 Iowa 516, 133 N.W.2d 867 (1965).  Lindahl v. L.O. 
 
         Boggs, 236 Iowa 296, 18 N.W.2d 607 (1945).  A possibility is 
 
         insufficient; a probability is necessary.  Burt v. John Deere 
 
         Waterloo Tractor Works, 247 Iowa 691, 73 N.W.2d 732 (1955).  The 
 
         question of causal connection is essentially within the domain of 
 
         expert testimony.  Bradshaw v. Iowa Methodist Hospital, 251 Iowa 
 
         375, 101 N.W.2d 167 (1960).
 
         
 
              However, expert medical evidence must be considered with all 
 
         other evidence introduced bearing on the causal connection.  
 
         Burt, 247 Iowa 691, 73 N.W.2d 732.  The opinion of experts need 
 
         not be couched in definite, positive or unequivocal language.  
 
 
 
              
 
                                                         
 
         Sondag v. Ferris Hardware, 220 N.W.2d 903 (Iowa 1974).  However, 
 
         the expert opinion may be accepted or rejected, in whole or in 
 
         part, by the trier of fact.  Id. at 907.  Further, the weight to 
 
         be given to such an opinion is for the finder of fact, and that 
 
         may be affected by the completeness of the premise given the 
 
         expert and other surrounding circumstances.  Bodish, 257 Iowa 
 
         516, 133 N.W.2d 867.  See also Musselman, 261 Iowa 352, 154 
 
         N.W.2d 128 (1967).
 
         
 
              An employer takes an employee subject to any active or 
 
         dormant health impairments, and a work connected injury which 
 
         more than slightly aggravates the condition is considered to be a 
 
         personal injury.  Ziegler v. United States Gypsum Co., 252 Iowa 
 
         613, 620, 106 N.W.2d 591 (1960), and cases cited.
 
         
 
              The right of a worker to receive compensation for injuries 
 
         sustained which arose out of and in the course of employment is 
 
         statutory.  The statute conferring this right can also fix the 
 
         amount of compensation to be paid for different specific 
 
         injuries, and the employee is not entitled to compensation except 
 
         as provided by the statute.  Soukup v. Shores Co., 222 Iowa 272, 
 
         268 N.W. 598 (1936).
 
         
 
              An injury to a scheduled member may, because of after 
 
         effects (or compensatory change), result in permanent impairment 
 
         of the body as a whole.  Such impairment may in turn form the 
 
         basis for a rating of industrial disability.  Dailey v. Pooley 
 
         Lumber Co., 233 Iowa 758, 10 N.W.2d 569 (1943).  Soukup, 222 Iowa 
 
         272, 268 N.W. 598 (1936).
 
         
 
              An injury to a scheduled member which, because of 
 
         after-effects (or compensatory change), creates impairment to the 
 
         body as a whole entitles claimant to industrial disability.  
 
         Barton v. Nevada Poultry Co., 253 Iowa 285, 110 N.W. 2d 660 
 
         (1961).  Dailey, 233 Iowa 758, 10 N.W.2d 569 (1943).
 
         
 
              An injury is the producing cause; the disability, however, 
 
         is the result, and it is the result which is compensated.  
 
         Barton, 253 Iowa 285, 110 N.W.2d 660 (1961); Dailey, 233 Iowa 
 
         758, 10 N.W.2d 569 (1943).
 
         
 
              If a claimant contends he has industrial disability he has 
 
         the burden of proving his injury results in an ailment extending 
 
         beyond the scheduled loss.  Kellogg v. Shute and Lewis Coal Co., 
 
         256 Iowa 1257, 130 N.W.2d 667 (1964).
 
         
 
                                       ANALYSIS
 
         
 
              At the hearing claimant moved to amend the petition so as to 
 
         conform it to the proof.  Specifically, claimant requested leave 
 
         to amend the injury date in case file no. 767792 from December 
 
         20, 1982 to April 25, 1983.  Defendant resisted.  The matter was 
 
         taken under advisement.
 
         
 
              It is the decision of the undersigned that claimant is 
 
                                                
 
                                                         
 
         allowed to amend the injury date in file no. 767792.  Rule 
 
         343-4.9(5) of the rules for the Division of Industrial Services 
 
         provides:
 
         
 
              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.
 
         
 
              In the case at bar, claimant testified he obtained the 
 
         December 20, 1982 alleged injury date from the defendant.  
 
         Claimant was not physically shown the medical records prior to 
 
         initiating this action.
 
         
 
              Additionally, the events which were alleged as occurring on 
 
         December 20, 1982 were the same events which were alleged to have 
 
         occurred on April 25, 1983.  There was no element of surprise 
 
         involved as the correct date and the relevant events were 
 
         rectified at claimant's deposition two years prior to the date of 
 
         the hearing.  Since there was no element of surprise, defendant 
 
         cannot argue any prejudice.  Therefore, pursuant to the Rule, 
 
         leave to amend is freely given.  Likewise, notice under section 
 
         85.23 was properly given since as of June 8, 1983, the defendant 
 
         had actual knowledge of the alleged injury.  This was within the 
 
         90 day period.
 
         
 
              The next issue to address is whether claimant has received 
 
         injuries arising out of and in the course of his employment.  The 
 
         record supports the occurrence of the events in question.  There 
 
         is claimant's testimony concerning how and where the injuries 
 
         occurred.  Claimant detailed the sequence of events.  There was no 
 
         testimony disputing the occurrence of the incidents.  
 
         Additionally, there are notations in the medical records 
 
         maintained by defendant but in claimant's name.  Specifically, the 
 
         record reflects the following with respect to the injury occurring 
 
         on April 25, 1983:
 
         
 
              6/8   6:20  Req.  See Dr F - States about 6 wks ago
 
                          slipped on ice in freezer, grabbed to
 
                          prevent fall - Not reported @ time - Now
 
                          c/o pain @ night in R. sh.  Will See Dr 
 
                          F in AM                               SP
 
              6/9   8:40  Prev R. sh.  Seen by Dr F given Zomax 100
 
                          mg(21) divided by TiD                 SP
 
              6/17  6:25  Prev R. sh. still sore.  Req see Dr. F.
 
                          Adv will call.                        EH
 
              6/17  7:40  Prev. R. Sh.  Seen by Dr. F. Motrin 600
 
                          (28) divided QiD.                     EH
 
              6/28  8:30  Prev per Dr F - Motrin 600 mg(28) divided 
 
                          by TiD                                SP
 
                                                
 
                                                         
 
              7/8   6:15  Prev Motrin 600 mg(25) divided by TiD per
 
                          Dr. F                                 SP
 
         
 
              The medical records for the date of January 23, 1984 also 
 
         reflect an injury on that date.  The relevant notations reveal 
 
         the subsequent information:
 
         
 
              1/23 3:10  Just reporting  States fell on slippery
 
              floor in Bacon dept. - Fell forward striking left
 
              knees on floor & falling on L. shoulder - Cold paks
 
              to knee for 10 mins - R.T.W Adv. ret. if continues
 
              painful                                          DG
 
         
 
              1/27 7:50  Prev fall - Seen by Dr. F Motrin 400 mg(24)
 
              divided by Qd
 
         
 
              2/3  8:17  Prev fall Seen by Dr F  X Ray L Knee & L
 
              Shoulder taken given Motrin 400 mg(28) divided by Qd  DK
 
         
 
              3/13 7:54  Prev. Shoulders - Seen by Dr F given Darvocet
 
              N 100 divided by (21) - to take tid.                  SP
 
         
 
              4/3  8:30  Prev shoulders - Seen by Dr F given Darvocet
 
              N-100(21) P.R.N. pain.                                DK
 
         
 
              4/10 8:25  Prev per ok Dr F - given Feldene(100) (Ordered
 
              by fam phys for joint pains)                           SP
 
         
 
              As a consequence of all of the above, the undersigned 
 
         determines that claimant has received injuries arising out of and 
 
         in the course of his employment on both April 25, 1983 and on 
 
         January 23, 1984.
 
         
 
              The third issue to address is whether there is a causal 
 
         relationship between the alleged injuries and the claimed 
 
         disability.  Claimant alleges he is currently physically impaired 
 
         because of the two injuries which occurred.
 
         
 
              Dr. Faber, company physician, referred claimant to Julian G. 
 
         Nemmers, M.D., on September 12, 1984 for purposes of examination 
 
         and evaluation.  Dr. Nemmers diagnosed claimant as having 
 
         "bilateral rotator cuff tears."
 
         
 
              Dr. Nemmers, in his letter of March 20, 1985, wrote the 
 
         following to claimant's attorney:
 
         
 
              It is my experience that most of these types of tears are 
 
              degenerative in nature and not necessarily related to any 
 
              specific incident or injury.  I referred Mr. Hingtgen back 
 
              to his company physician for determination of 
 
              compensability.  I am not in a position to determine causal 
 
              relationship between Mr. Hingtgen's history of injury and 
 
              his current physical condition because of the length of time 
 
              between his injury and the date I examined him.
 
         
 
                                                
 
                                                         
 
              Later, in his deposition on August 18, 1987, Dr. Nemmers 
 
         opined:
 
         
 
              Q.  Do you still have that same opinion today, that you're 
 
                  unable to determine what the cause is?
 
         
 
              A.  Yes, sir.
 
         
 
              Q.  I think you also indicate there that you were, and 
 
                  correct me if I'm wrong since I'm not looking at the 
 
                  exhibit, my recollection is that you indicated that too 
 
                  much time had passed between the purported injury and 
 
                  your examination of Mr. Hingtgen to reach any conclusion 
 
                  as to causation, is that correct?
 
         
 
              A.  Yes, sir.
 
         
 
              Q.  Do you still have that same opinion today, that you're 
 
                  unable to determine what the cause is?
 
         
 
              A.  Yes, sir.  In other words, I don't know what his 
 
                  situation was at the time that he fell, whether he went 
 
                  to the plant physician, what his examination showed at 
 
                  that time.  My experience has been that Dr. Faber 
 
                  generally goes ahead and does an arthrogram at that time 
 
                  to see what the problem is and with other patients he 
 
                  does arthrograms, and if he's got a leak he sends them 
 
                  up, otherwise he continues treatment on his own.  So I 
 
                  don't know what the situation was as to why this patient 
 
                  had fallen in '83 and I didn't see him, or maybe he's 
 
                  seen other orthopedic surgeons earlier on right after 
 
                  the injury.  I don't know.  In other words, I have a 
 
                  difficult time when somebody comes to me telling whether 
 
         
 
              
 
                                                         
 
                  something is a compensable issue or not, he's been to 
 
                  other doctors, there's a long lapse of time involved in 
 
                  here and we all know that time adds to further 
 
                  degeneration, and so it's difficult for me to say, and 
 
                  that's why I referred him back to Dr. Faber as to 
 
                  compensability here.
 
         
 
              Q.  Well, compensability and causation are two different 
 
                  issues.  The former is a legal issue and the latter is a 
 
                  medical issue, and all I'm trying to do is determine 
 
                  whether you had at that time an opinion as to causation 
 
                  and if so, what it was, and evidently you --
 
         
 
              A.  In my opinion, with bilateral shoulder problems I 
 
                  believe that the most probable cause or the biggest 
 
                  factor, I'll say that the biggest factor involved is 
 
                  degeneration. That's what I would say.
 
         
 
              Q.  All right.
 
         
 
              A.  The biggest factor is degeneration.
 
         
 
              Q.  All right.  I appreciate the answer, but let me be a 
 
                  little bit more specific and ask the question in a 
 
                  different way.  Do you have an opinion based on a 
 
                  reasonable degree of medical certainty what caused Roger 
 
                  Hingtgen's rotator cuff tears?
 
         
 
              A.  I do have an opinion.
 
         
 
              Q.  And what is the opinion, sir?
 
         
 
              A.  My opinion is it's a degenerative cause.
 
         
 
         (Joint Exhibit 3, page 26, line 9 might change to page 27, line 
 
         23)
 
         
 
              Also, in his deposition, Dr. Nemmers stated it was not 
 
         possible to determine the cause of claimant's rotator cuff injury 
 
         by reviewing x-rays or arthrograms.  (Jt. Ex. 3, p. 19, 11, 18 to 
 
         21).  Dr. Nemmers opined the following:
 
         
 
              Q.  Did you reach a conclusion with regard to Roger Hingtgen 
 
                  as to whether his rotator cuff was [sic] tear was 
 
                  trauma-induced or caused by some other means, such as 
 
                  aging or degeneration?
 
         
 
              A.  I really did not reach a conclusion on whether it was 
 
                  due to the injury or not.  I do feel that wear was a 
 
                  factor involved in it because of his impingement, but 
 
                  how much trauma played in this or a definite injury, 
 
                  specific injury, I do not know.  I thought it was 
 
                  unusual that he said he had a fall and he had both 
 
                  rotator cuffs torn. That to me, I don't know -- I don't 
 
                  remember how he fell, but to me it would be unusual to 
 
                                                
 
                                                         
 
                           have two rotator cuffs torn in the same fall, not 
 
                  impossible, but unusual.
 
         
 
         (Jt. Ex. 3, p. 20, 11. 8 to 21)
 
         
 
              Claimant was also seen by his own physician, R. Scott 
 
         Cairns, M.D., on three separate occasions:  June 4, 1984; January 
 
         20, 1986; and December 22, 1986.  Dr. Cairns diagnosed claimant 
 
         as having "...a known ruptured rotator cuff on the left side.  He 
 
         has a suspected ruptured rotator cuff on the right side, and he 
 
         has a ruptured biceps tendon on the right."  (Jt. Ex. 2, p. 18, 
 
         11. 16 to 19).
 
         
 
              During his deposition, Dr. Cairns was asked if he had an 
 
         opinion based on a reasonable degree of medical certainty whether 
 
         the injury which occurred on April 25, 1983 caused or could have 
 
         caused claimant's alleged disability.  Dr. Cairns determined it 
 
         was possible.  (Jt. Ex. 2, p. 21, 11. 1-15)  He did not determine 
 
         it was probable as mandated by Burt.
 
         
 
              Nor was Dr. Cairns able to determine the date claimant tore 
 
         his rotator cuff.  Additionally, Dr. Cairns could not establish 
 
         which of the two alleged injury dates, if any, resulted in the 
 
         torn rotator cuff.  (Jt. Ex. 2, p. 27, 11. 7 to 22)  Finally, Dr. 
 
         Cairns was unable to diagnose the condition of claimant's right 
 
         shoulder.  (Jt. Ex. 2, p. 29, 11. 13 to 18).
 
         
 
              Given the medical opinions from both Dr. Nemmers and Dr. 
 
         Cairns, it is not possible to state that claimant's alleged 
 
         disability was proximately caused by the two work incidents.  The 
 
         evidence as to causation as it relates to claimant's alleged 
 
         disability is minimal at best.  There is not even evidence to 
 
         establish whether claimant has an injury to his right shoulder. 
 
         Claimant has not sustained his burden of proof as to the issue of 
 
         causation.  Therefore, it is unnecessary to discuss the nature 
 
         and extent of the alleged disability.
 
         
 
                                    FINDING OF FACT
 
         
 
              WHEREFORE, based on the evidence presented and the 
 
         principles of law previously cited, the following finding of fact 
 
         and conclusion of law are made:
 
         
 
              FINDING 1.  Claimant did not sustain permanent or temporary 
 
         injuries to his right and left shoulders as a result of two work 
 
         related incidents which occurred on April 25, 1983 and on January 
 
         23, 1984.
 
         
 
                                   CONCLUSION OF LAW
 
         
 
              Claimant has not established by a preponderance of the 
 
         evidence that he is entitled to any benefits under the Iowa 
 
         Workers' Compensation laws.
 
         
 
                                         ORDER
 
                                                
 
                                                         
 
         
 
              THEREFORE, IT IS ORDERED:
 
         
 
              Claimant takes nothing from these proceedings.
 
         
 
              Claimant pays the costs of these proceedings pursuant to 
 
         Division of Industrial Services Rule 343-4.33.
 
         
 
         
 
              Signed and filed this 1st day of February, 1989.
 
         
 
         
 
         
 
         
 
                                            MICHELLE A. McGOVERN
 
                                            DEPUTY INDUSTRIAL 
 
                                            COMMISSIONER
 
         
 
         Copies to:
 
         
 
         Mr. Nick J. Avgerinos
 
         Attorney at Law
 
         101 N. Wacker Dr.
 
         Suite 740
 
         Chicago, Illinois  60606
 
         
 
         Mr. James M. Heckmann
 
         Mr. David C. Bauer
 
         Attorneys at Law
 
         One Cycare Plaza
 
         Suite 216
 
         Dubuque, Iowa  52001
 
         
 
         
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
                                                
 
 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         ROGER HINGTGEN,
 
                                               File Nos. 799425 & 767792
 
              Claimant,
 
                                                 A R B I T R A T I O N
 
         vs.
 
                                                    D E C I S I O N
 
         FDL FOODS, INC.,
 
                                                       F I L E D
 
              Employer,
 
              Self- Insured                           FEB 1 1989
 
              Defendant.
 
                                             IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
                                   INTRODUCTION
 
                                        
 
              These are proceedings brought by Roger Hingtgen, claimant, 
 
         against FDL Foods, Inc., self-insured employer.  These cases come 
 
         upon petitions for arbitration for benefits as a result of 
 
         alleged injuries occurring on December 20, 1982 and on January 
 
         23, 1984. The cases were heard by the undersigned on September 
 
         26, 1988 in Dubuque, Iowa.
 
         
 
              The record consists of the testimony of claimant.  The 
 
         following witnesses testified for defendant at the hearing:  
 
         Melvin Kieber, former employee of defendant, and Tom J. 
 
         Osterholz, safety, security, and workers' compensation manager at 
 
         defendant's.  The record also consists of joint exhibits 1, 2 and 
 
         3.
 
         
 
                                      ISSUES
 
                                        
 
              The issues presented by the parties at the time of the 
 
         prehearing and the hearing are:
 
         
 
              1) Whether claimant can amend the injury date in file no. 
 
         767792 to reflect the injury date of April 25, 1983;
 
         
 
              2) Whether proper notice has been given under section 85.23;
 
         
 
              3) Whether claimant has complied with the provisions of 
 
         section 85.26;
 
         
 
              4) Whether claimant has received an injury which arose out 
 
         of and in the course of employment;
 
         
 
              5) Whether there is a causal relationship between the 
 
         alleged injury and the disability;
 
         
 
              6) Whether claimant is entitled to temporary 
 
         disability/healing period benefits or permanent partial or total 
 
         disability benefits; and,
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              7) Whether claimant is entitled to medical benefits under 
 
         section 85.27.
 
         
 
                                 FACTS PRESENTED
 
         
 
              Claimant has been employed by defendant since October 25, 
 
         1982.  Prior to that date, claimant had worked for Dubuque 
 
         Packing Co., the predecessor of defendant.  Since the date of his 
 
         employment with defendant, claimant has worked in the bacon 
 
         department.  He has worked on the bacon crew and on the bacon 
 
         shaper crew.  Claimant's job responsibilities include pulling 
 
         bacon from stainless steel trees which are above claimant's head, 
 
         pulling pins out of bacon, placing bacon on the work table, and 
 
         pushing the bacon to the person on the shaper crew.  Also 
 
         included in claimant's duties are responsibilities involving 
 
         pushing empty trees out of the bacon room and out of the freezer.
 
         
 
              Claimant's description of the alleged incident in December 
 
         of 1982 is sketchy, at best.  He cannot recall what event might 
 
         have precipitated his alleged shoulder injury.  Under 
 
         cross-examination claimant revealed he "very possibly could have 
 
         been hurt on December 20, 1982."  Claimant reported he received 
 
         this date from the nurse's office as the correct injury date.
 
         
 
              Claimant can recall the incident which occurred on April 25, 
 
         1983, the date he alleges is the correct injury date in file no. 
 
         767792.  He has testified he was pushing four empty bacon trees 
 
         out the door from the bacon shaping crew room.  The floor was 
 
         made of red brick.  There was a glaze of ice on the floor which 
 
         was difficult to see.  Claimant slipped on the ice, grabbed the 
 
         trees, fell onto the trees and injured both shoulders at that 
 
         time. According to claimant, his boot slid away from him, the 
 
         trees flew forward and claimant stated the weight of his body was 
 
         placed on his shoulders.  Claimant reports he was in very severe 
 
         pain after that time.  He visited the plant medical department 
 
         for shoulder pain on June 8, 1983 and reported that his injury 
 
         had occurred approximately six weeks prior.
 
         
 
              With respect to file no. 799425, claimant reports that on 
 
         January 23, 1984, he was carrying a box of bacon weighing 75 
 
         pounds.  He fell over a jeep, struck his left shoulder and knee 
 
         and fell straight forward.  Claimant states he felt a severe pain 
 
         in his left shoulder which tingled from the top of his left 
 
         shoulder area down to his bicep muscle.  Claimant relates he 
 
         reported the accident to the plant nurse.  On the succeeding day 
 
         the claimant was examined by the plant physician, L. C. Faber, 
 
         M.D.
 
         
 
                                  APPLICABLE LAW
 
                                        
 
              An employee is entitled to compensation for any and all 
 
         personal injuries which arise out of and in the course of the 
 
         employment.  Section 85.3(1).
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
              Claimant has the burden of proving by a preponderance of the 
 
         evidence that he received injuries on December 20, 1982, and/or 
 
         April 25, 1983 and January 23, 1984 which arose out of and in the 
 
         course of his employment.  McDowell v. Town of Clarksville, 241 
 
         N.W.2d 904 (Iowa 1976); Musselman v. Central Telephone Co., 261 
 
         Iowa 352, 154 N.W.2d 128 (1967).
 
         
 
              The injury must both arise out of and be in the course of 
 
         the employment.  Crowe v. DeSoto Consol. Sch. Dist., 246 Iowa 
 
         402, 68 N.W.2d 63 (1955) and cases cited at pp. 405-406 of the 
 
         Iowa Report.  See also Sister Mary Benedict v. St. Mary's Corp., 
 
         255 Iowa 847, 124 N.W.2d 548 (1963) and Hansen v. State of Iowa, 
 
         249 Iowa 1147, 91 N.W.2d 555 (1958).
 
         
 
              The words "out of" refer to the cause or source of the 
 
         injury.  Crowe, 246 Iowa 402, 68 N.W.2d 63 (1955).
 
         
 
              The words "in the course of" refer to the time and place and 
 
         circumstances of the injury.  McClure v. Union et al. Counties, 
 
         188 N.W.2d 283 (Iowa 1971); Crowe, 246 Iowa 402, 68 N.W.2d 63 
 
         (1955).
 
         
 
              "An injury occurs in the course of the employment when it is 
 
         within the period of employment at a place the employee may 
 
         reasonably be, and while he is doing his work or something 
 
         incidental to it."  Cedar Rapids Comm. Sch. Dist. v. Cady, 278 
 
         N.W.2d 298 (Iowa 1979); McClure, 188 N.W.2d 283 (Iowa 1971); 
 
         Musselman, 261 Iowa 352, 154 N.W.2d 128 (1967).
 
         
 
              The supreme court of Iowa in Almquist v. Shenandoah 
 
         Nurseries, 218 Iowa 724, 254 N.W. 35 (1934) at 731-32, discussed 
 
         the definition of personal injury in workers' compensation cases 
 
         as follows:
 
         
 
              While a personal injury does not include an occupational 
 
              disease under the workmen's Compensation Act, yet an injury 
 
              to the health may be a personal injury [Citations omitted.] 
 
              Likewise a personal injury includes a disease resulting from 
 
              an injury....The result of changes in the human body 
 
              incident to the general processes of nature do not amount to 
 
              a personal injury.  This must follow, even though such 
 
              natural change may come about because the life has been 
 
              devoted to labor and hard work.  Such result of those 
 
              natural changes does not constitute a personal injury even 
 
              though the same brings about impairment of health or the 
 
              total or partial incapacity of the functions of the human 
 
              body.
 
              
 
                  ....
 
              
 
              A personal injury, contemplated by the Workmen's 
 
              Compensation Law, obviously means an injury to the body, the 
 
              impairment of health, or a disease, not excluded by the act, 
 
              which comes about, not through the natural building up and 
 
              tearing down of the human body, but because of a traumatic 
 
              or other hurt or damage to the health or body of an 
 
              employee.  [Citations omitted.]  The injury to the human 
 
              body here contemplated must be something, whether an 
 
              accident or not, that acts extraneously to the natural 
 
              processes of nature and thereby impairs the health, 
 
              overcomes, injures, interrupts, or destroys some function of 
 
              the body, or otherwise damages or injures a part or all of 
 
              the body.
 

 
              
 
 
 
 
 
 
 
 
 
 
 
              
 
              The claimant has the burden of proving by a preponderance of 
 
         the evidence that the injuries of December 20, 1982, and/or April 
 
         25, 1983 and January 23, 1984 are causally related to the 
 
         disability on which he now bases his claim.  Bodish v. Fischer, 
 
         Inc., 257 Iowa 516, 133 N.W.2d 867 (1965).  Lindahl v. L.O. 
 
         Boggs, 236 Iowa 296, 18 N.W.2d 607 (1945).  A possibility is 
 
         insufficient; a probability is necessary.  Burt v. John Deere 
 
         Waterloo Tractor Works, 247 Iowa 691, 73 N.W.2d 732 (1955).  The 
 
         question of causal connection is essentially within the domain of 
 
         expert testimony.  Bradshaw v. Iowa Methodist Hospital, 251 Iowa 
 
         375, 101 N.W.2d 167 (1960).
 
              
 
              However, expert medical evidence must be considered with all 
 
         other evidence introduced bearing on the causal connection.  
 
         Burt, 247 Iowa 691, 73 N.W.2d 732.  The opinion of experts need 
 
         not be couched in definite, positive or unequivocal language.  
 
         Sondag v. Ferris Hardware, 220 N.W.2d 903 (Iowa 1974).  However, 
 
         the expert opinion may be accepted or rejected, in whole or in 
 
         part, by the trier of fact.  Id. at 907.  Further, the weight to 
 
         be given to such an opinion is for the finder of fact, and that 
 
         may be affected by the completeness of the premise given the 
 
         expert and other surrounding circumstances.  Bodish, 257 Iowa 
 
         516, 133 N.W.2d 867.  See also Musselman, 261 Iowa 352, 154 
 
         N.W.2d 128 (1967).
 
              
 
              An employer takes an employee subject to any active or 
 
         dormant health impairments, and a work connected injury which 
 
         more than slightly aggravates the condition is considered to be a 
 
         personal injury.  Ziegler v. United States Gypsum Co., 252 Iowa 
 
         613, 620, 106 N.W.2d 591 (1960), and cases cited.
 
              
 
              The right of a worker to receive compensation for injuries 
 
         sustained which arose out of and in the course of employment is 
 
         statutory.  The statute conferring this right can also fix the 
 
         amount of compensation to be paid for different specific 
 
         injuries, and the employee is not entitled to compensation except 
 
         as provided by the statute.  Soukup v. Shores Co., 222 Iowa 272, 
 
         268 N.W. 598 (1936).
 
              
 
              An injury to a scheduled member may, because of after 
 
         effects (or compensatory change), result in permanent impairment 
 
         of the body as a whole.  Such impairment may in turn form the 
 
         basis for a rating of industrial disability.  Dailey v. Pooley 
 
         Lumber Co., 233 Iowa 758, 10 N.W.2d 569 (1943).  Soukup, 222 Iowa 
 
         272, 268 N.W. 598 (1936).
 
              
 
              An injury to a scheduled member which, because of 
 
         after-effects (or compensatory change), creates impairment to the 
 
         body as a whole entitles claimant to industrial disability.  
 
         Barton v. Nevada Poultry Co., 253 Iowa 285, 110 N.W. 2d 660 
 
         (1961).  Dailey, 233 Iowa 758, 10 N.W.2d 569 (1943).
 
              
 
              An injury is the producing cause; the disability, however, 
 
         is the result, and it is the result which is compensated.  Barton
 
         , 253 Iowa 285, 110 N.W.2d 660 (1961); Dailey, 233 Iowa 758, 10 
 
         N.W.2d 569 (1943).
 

 
         
 
 
 
 
 
 
 
 
 
 
 
              
 
              If a claimant contends he has industrial disability he has 
 
         the burden of proving his injury results in an ailment extending 
 
         beyond the scheduled loss.  Kellogg v. Shute and Lewis Coal Co., 
 
         256 Iowa 1257, 130 N.W.2d 667 (1964).
 
              
 
                                     ANALYSIS
 
                                        
 
              At the hearing claimant moved to amend the petition so as to 
 
         conform it to the proof.  Specifically, claimant requested leave 
 
         to amend the injury date in case file no. 767792 from December 
 
         20, 1982 to April 25, 1983.  Defendant resisted.  The matter was 
 
         taken under advisement.
 
              
 
              It is the decision of the undersigned that claimant is 
 
         allowed to amend the injury date in file no. 767792.  Rule 
 
         343-4.9(5) of the rules for the Division of Industrial Services 
 
         provides:
 
              
 
              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.
 
              
 
              In the case at bar, claimant testified he obtained the 
 
         December 20, 1982 alleged injury date from the defendant.  
 
         Claimant was not physically shown the medical records prior to 
 
         initiating this action.
 
              
 
              Additionally, the events which were alleged as occurring on 
 
         December 20, 1982 were the same events which were alleged to have 
 
         occurred on April 25, 1983.  There was no element of surprise 
 
         involved as the correct date and the relevant events were 
 
         rectified at claimant's deposition two years prior to the date of 
 
         the hearing.  Since there was no element of surprise, defendant 
 
         cannot argue any prejudice.  Therefore, pursuant to the Rule, 
 
         leave to amend is freely given.  Likewise, notice under section 
 
         85.23 was properly given since as of June 8, 1983, the defendant 
 
         had actual knowledge of the alleged injury.  This was within the 
 
         90 day period.
 
              
 
              The next issue to address is whether claimant has received 
 
         injuries arising out of and in the course of his employment.  The 
 
         record supports the occurrence of the events in question.  There 
 
         is claimant's testimony concerning how and where the injuries 
 
         occurred.  Claimant detailed the sequence of events.  There was 
 
         no testimony disputing the occurrence of the incidents.  
 
         Additionally, there are notations in the medical records 
 
         maintained by defendant but in claimant's name.  Specifically, 
 
         the record reflects the following with respect to the injury 
 
         occurring on April 25, 1983:
 

 
         
 
 
 
 
 
 
 
 
 
 
 
              
 
              6/8   6:20  Req.  See Dr F - States about 6 wks ago
 
                          slipped on ice in freezer, grabbed to
 
                          prevent fall - Not reported @ time - Now
 
                          c/o pain @ night in R. sh.  Will See Dr 
 
                          F in AM                               SP
 
              6/9   8:40  Prev R. sh.  Seen by Dr F given Zomax 100
 
                          mg(21) divided by TiD                 SP
 
              6/17  6:25  Prev R. sh. still sore.  Req see Dr. F.
 
                          Adv will call.                        EH
 
              6/17  7:40  Prev. R. Sh.  Seen by Dr. F. Motrin 600
 
                          (28) divided QiD.                     EH
 
              6/28  8:30  Prev per Dr F - Motrin 600 mg(28) divided 
 
                          by TiD                                SP
 
              7/8   6:15  Prev Motrin 600 mg(25) divided by TiD per
 
                          Dr. F                                 SP
 
              
 
              The medical records for the date of January 23, 1984 also 
 
         reflect an injury on that date.  The relevant notations reveal 
 
         the subsequent information:
 
              
 
              1/23 3:10  Just reporting  States fell on slippery
 
              floor in Bacon dept. - Fell forward striking left
 
              knees on floor & falling on L. shoulder - Cold paks
 
              to knee for 10 mins - R.T.W Adv. ret. if continues
 
              painful                                          DG
 
              
 
              1/27 7:50  Prev fall - Seen by Dr. F Motrin 400 mg(24)
 
              divided by Qd
 
              
 
              2/3  8:17  Prev fall Seen by Dr F  X Ray L Knee & L
 
              Shoulder taken given Motrin 400 mg(28) divided by Qd  DK
 
              
 
              3/13 7:54  Prev. Shoulders - Seen by Dr F given Darvocet
 
              N 100 divided by (21) - to take tid.                  SP
 
              
 
              4/3  8:30  Prev shoulders - Seen by Dr F given Darvocet
 
              N-100(21) P.R.N. pain.                                DK
 
              
 
              4/10 8:25  Prev per ok Dr F - given Feldene(100) (Ordered
 
              by fam phys for joint pains)                           SP
 
              
 
              As a consequence of all of the above, the undersigned 
 
         determines that claimant has received injuries arising out of and 
 
         in the course of his employment on both April 25, 1983 and on 
 
         January 23, 1984.
 
              
 
              The third issue to address is whether there is a causal 
 
         relationship between the alleged injuries and the claimed 
 
         disability.  Claimant alleges he is currently physically impaired 
 
         because of the two injuries which occurred.
 
              
 
              Dr. Faber, company physician, referred claimant to Julian G. 
 
         Nemmers, M.D., on September 12, 1984 for purposes of examination 
 
         and evaluation.  Dr. Nemmers diagnosed claimant as having 
 
         "bilateral rotator cuff tears."
 

 
         
 
 
 
 
 
 
 
 
 
 
 
              
 
              Dr. Nemmers, in his letter of March 20, 1985, wrote the 
 
         following to claimant's attorney:
 
              
 
              It is my experience that most of these types of tears are 
 
              degenerative in nature and not necessarily related to any 
 
              specific incident or injury.  I referred Mr. Hingtgen back 
 
              to his company physician for determination of 
 
              compensability.  I am not in a position to determine causal 
 
              relationship between Mr. Hingtgen's history of injury and 
 
              his current physical condition because of the length of time 
 
              between his injury and the date I examined him.
 
              
 
              Later, in his deposition on August 18, 1987, Dr. Nemmers 
 
         opined:
 
              
 
              Q.  Do you still have that same opinion today, that you're 
 
              unable to determine what the cause is?
 
              
 
              A.  Yes, sir.
 
              
 
              Q.  I think you also indicate there that you were, and 
 
              correct me if I'm wrong since I'm not looking at the 
 
              exhibit, my recollection is that you indicated that too 
 
              much time had passed between the purported injury and 
 
              your examination of Mr. Hingtgen to reach any conclusion 
 
              as to causation, is that correct?
 
              
 
              A.  Yes, sir.
 
              
 
              Q.  Do you still have that same opinion today, that you're 
 
              unable to determine what the cause is?
 
              
 
              A.  Yes, sir.  In other words, I don't know what his 
 
              situation was at the time that he fell, whether he went 
 
              to the plant physician, what his examination showed at 
 
              that time.  My experience has been that Dr. Faber 
 
              generally goes ahead and does an arthrogram at that time 
 
              to see what the problem is and with other patients he 
 
              does arthrograms, and if he's got a leak he sends them 
 
              up, otherwise he continues treatment on his own.  So I 
 
              don't know what the situation was as to why this patient 
 
              had fallen in '83 and I didn't see him, or maybe he's 
 
              seen other orthopedic surgeons earlier on right after 
 
              the injury.  I don't know.  In other words, I have a 
 
              difficult time when somebody comes to me telling whether 
 
              something is a compensable issue or not, he's been to 
 
              other doctors, there's a long lapse of time involved in 
 
              here and we all know that time adds to further 
 
              degeneration, and so it's difficult for me to say, and 
 
              that's why I referred him back to Dr. Faber as to 
 
              compensability here.
 
              
 
              Q.  Well, compensability and causation are two different 
 
              issues.  The former is a legal issue and the latter is a 
 
              medical issue, and all I'm trying to do is determine 
 
              whether you had at that time an opinion as to causation 
 
              and if so, what it was, and evidently you --
 

 
              
 
 
 
 
 
 
 
 
 
 
 
              
 
              A.  In my opinion, with bilateral shoulder problems I 
 
              believe that the most probable cause or the biggest 
 
              factor, I'll say that the biggest factor involved is 
 
              degeneration. That's what I would say.
 
              
 
              Q.  All right.
 
              
 
              A.  The biggest factor is degeneration.
 
              
 
              Q.  All right.  I appreciate the answer, but let me be a 
 
              little bit more specific and ask the question in a 
 
              different way.  Do you have an opinion based on a 
 
              reasonable degree of medical certainty what caused Roger 
 
              Hingtgen's rotator cuff tears?
 
              
 
              A.  I do have an opinion.
 
              
 
              Q.  And what is the opinion, sir?
 
              
 
              A.  My opinion is it's a degenerative cause.
 
              
 
         (Joint Exhibit 3, page 26, line 9 might change to page 27, line 
 
         23)
 
         
 
              Also, in his deposition, Dr. Nemmers stated it was not 
 
         possible to determine the cause of claimant's rotator cuff injury 
 
         by reviewing x-rays or arthrograms.  (Jt. Ex. 3, p. 19, 11, 18 to 
 
         21).  Dr. Nemmers opined the following:
 
              
 
              Q.  Did you reach a conclusion with regard to Roger Hingtgen 
 
              as to whether his rotator cuff was [sic] tear was 
 
              trauma-induced or caused by some other means, such as 
 
              aging or degeneration?
 
              
 
              A.  I really did not reach a conclusion on whether it was 
 
              due to the injury or not.  I do feel that wear was a 
 
              factor involved in it because of his impingement, but 
 
              how much trauma played in this or a definite injury, 
 
              specific injury, I do not know.  I thought it was 
 
              unusual that he said he had a fall and he had both 
 
              rotator cuffs torn. That to me, I don't know -- I don't 
 
              remember how he fell, but to me it would be unusual to 
 
              have two rotator cuffs torn in the same fall, not 
 
              impossible, but unusual.
 
              
 
         (Jt. Ex. 3, p. 20, 11. 8 to 21)
 
         
 
              Claimant was also seen by his own physician, R. Scott 
 
         Cairns, M.D., on three separate occasions:  June 4, 1984; January 
 
         20, 1986; and December 22, 1986.  Dr. Cairns diagnosed claimant 
 
         as having "...a known ruptured rotator cuff on the left side.  He 
 
         has a suspected ruptured rotator cuff on the right side, and he 
 
         has a ruptured biceps tendon on the right."  (Jt. Ex. 2, p. 18, 
 
         11. 16 to 19).
 

 
         
 
 
 
 
 
 
 
 
 
 
 
              
 
              During his deposition, Dr. Cairns was asked if he had an 
 
         opinion based on a reasonable degree of medical certainty whether 
 
         the injury which occurred on April 25, 1983 caused or could have 
 
         caused claimant's alleged disability.  Dr. Cairns determined it 
 
         was possible.  (Jt. Ex. 2, p. 21, 11. 1-15)  He did not determine 
 
         it was probable as mandated by Burt.
 
              
 
              Nor was Dr. Cairns able to determine the date claimant tore 
 
         his rotator cuff.  Additionally, Dr. Cairns could not establish 
 
         which of the two alleged injury dates, if any, resulted in the 
 
         torn rotator cuff.  (Jt. Ex. 2, p. 27, 11. 7 to 22)  Finally, Dr. 
 
         Cairns was unable to diagnose the condition of claimant's right 
 
         shoulder.  (Jt. Ex. 2, p. 29, 11. 13 to 18).
 
              
 
              Given the medical opinions from both Dr. Nemmers and Dr. 
 
         Cairns, it is not possible to state that claimant's alleged 
 
         disability was proximately caused by the two work incidents.  The 
 
         evidence as to causation as it relates to claimant's alleged 
 
         disability is minimal at best.  There is not even evidence to 
 
         establish whether claimant has an injury to his right shoulder. 
 
         Claimant has not sustained his burden of proof as to the issue of 
 
         causation.  Therefore, it is unnecessary to discuss the nature 
 
         and extent of the alleged disability.
 
              
 
                                 FINDING OF FACT
 
                                        
 
              WHEREFORE, based on the evidence presented and the 
 
         principles of law previously cited, the following finding of fact 
 
         and conclusion of law are made:
 
              
 
              FINDING 1.  Claimant did not sustain permanent or temporary 
 
         injuries to his right and left shoulders as a result of two work 
 
         related incidents which occurred on April 25, 1983 and on January 
 
         23, 1984.
 
              
 
                                CONCLUSION OF LAW
 
              
 
              Claimant has not established by a preponderance of the 
 
         evidence that he is entitled to any benefits under the Iowa 
 
         Workers' Compensation laws.
 
              
 
                                      ORDER
 
              
 
              THEREFORE, IT IS ORDERED:
 
              
 
              Claimant takes nothing from these proceedings.
 
              
 
              Claimant pays the costs of these proceedings pursuant to 
 
         Division of Industrial Services Rule 343-4.33.
 
              
 
              
 
              Signed and filed this 1st day of February, 1989.
 
              
 
              
 

 
         
 
 
 
 
 
 
 
 
 
 
 
              
 
              
 
                                            MICHELLE A. McGOVERN
 
                                            DEPUTY INDUSTRIAL COMMISSIONER
 
         
 
         Copies to:
 
         
 
         Mr. Nick J. Avgerinos
 
         Attorney at Law
 
         101 N. Wacker Dr.
 
         Suite 740
 
         Chicago, Illinois  60606
 
         
 
         Mr. James M. Heckmann
 
         Mr. David C. Bauer
 
         Attorneys at Law
 
         One Cycare Plaza
 
         Suite 216
 
         Dubuque, Iowa  52001
 
              
 
         
 
         
 
         
 
         
 
         
 
         
 
         
 
         
 
                                                                                                                    
 
         
 
         
 
         
 
         
 
         
 
         
 
         
 
         
 
         
 
         
 
         
 
         
 
         
 
         
 
         
 
         
 
         
 
         
 
         
 
                                                                                       
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                            1803
 
                                            Filed February 1, 1989
 
                                            MICHELLE A. McGOVERN
 
         
 
                   BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         ROGER HINGTGEN,
 
         
 
              Claimant,
 
         
 
                                            File Nos. 799425 & 767792
 
         vs.
 
                                              A R B I T R A T I 0 N
 
         FDL FOODS, INC.,
 
                                                 D E C I S I 0 N
 
              Employer,
 
              Self-Insured,
 
              Defendant.
 
         
 
         
 
         1803
 
         
 
              Claimant failed to show a causal connection between the 
 
         claimed disability and two separate work incidents.
 
         
 
         
 
         
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
                                                
 
 
                                            
 
 
 
 
 
 
 
 
 
 
 
                                            1803
 
                                            Filed February 1, 1989
 
                                            MICHELLE A. McGOVERN
 
         
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         ROGER HINGTGEN,
 
         
 
              Claimant,
 
         
 
                                            File Nos. 799425 & 767792
 
         vs.
 
                                              A R B I T R A T I 0 N
 
         FDL FOODS, INC.,
 
                                                 D E C I S I 0 N
 
              Employer,
 
              Self-Insured,
 
              Defendant.
 
         
 
         
 
         1803
 
         
 
              Claimant failed to show a causal connection between the 
 
         claimed disability and two separate work incidents.
 
         
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         _________________________________________________________________
 
         
 
         GEAROLD T. PARKS,
 
                                                 File No. 799431
 
             Claimant,
 
                                               A R B I T R A T I 0 N
 
         VS.
 
                                                 D E C I S I O N
 
         OSCAR MAYER FOODS CORPORATION,
 
         
 
             Employer,
 
             Self-Insured,
 
             Defendant.
 
         _________________________________________________________________
 
        
 
         
 
                                INTRODUCTION
 
         
 
              This is a proceeding in arbitration brought by Gearold T. 
 
         Parks, claimant, against Oscar Mayer Foods Corporation, 
 
         self-insured employer for benefits as the result of an alleged 
 
         injury that occurred on January 11, 1985.  A bearing was held in 
 
         Des Moines, Iowa on January 26, 1987 and the case was fully 
 
         submitted at the close of the bearing.  The record consists of 
 
         the testimony of Gearold I. Parks (claimant), Phil Schumacher 
 
         (personnel manager) and joint exhibits 1 through 8.
 
         
 
                                   STIPULATIONS
 
         
 
              The parties stipulated to the following matters:
 
         
 
              That an employer-employee relationship existed between 
 
         claimant and employer at the time of the alleged injury.
 
         
 
              That no claim is made for temporary disability benefits.
 
         
 
              That the type of permanent disability, if the injury is 
 
         found to be a cause of permanent disability, is scheduled member 
 
         disability to both upper extremities.
 
         
 
              That the commencement (sate for permanent partial disability 
 
         benefits in the event of an award such benefits, is January 11, 
 
         1985.
 
         
 
              That the rate of compensation in the event of an award is 
 
         $166.05 per week.
 
         
 
              That all requested medical benefits have been or will be 
 
         paid.
 
              That defendant makes no claim for credit for benefits paid 
 
         prior to the hearing.
 
         
 
         
 
         That there are no bifurcated claims.
 
         
 
                                      ISSUES
 
         
 
              The parties submitted the following issues for determination 
 

 
         
 
                                        
 
         
 
         PARKS V. OSCAR MAYER FOODS CORPORATION
 
         Page   2
 
         
 
         
 
         at the time of the bearing.
 
         
 
              Whether claimant sustained an injury on January 11, 1985 
 
         which arose out of and in the course of his employment with 
 
         employer.
 
         
 
              Whether the alleged injury was the cause of any Permanent 
 
         disability.
 
         
 
              Whether claimant is entitled to permanent partial disability 
 
         benefits.
 
         
 
                        SUMMARY OF THE EVIDENCE
 
         
 
              Claimant is age 25.  His past employments included assembly 
 
         line work for four months, smelter operator for three months, 
 
         laborer for two months and a farm band for two years (Exhibit 8, 
 
         page 2).  He began work for employer on November 26, 1984 as a 
 
         body boner.  This is a paced job.  He removed the body bone from. 
 
         hams with a knife as they came down the line.  He demonstrated a 
 
         rather strenuous and extensive cut with the right arm across     
 
         the top, down the side, then under the ham and back up the other 
 
         side.  He then threw the ham bone over his shoulder and sent     
 
         the ham down the line.  It was a hard lob and he had to burry to 
 
         keep up.  When the knife struck the bone it dulled the knife     
 
         and made it hard to remove the bone.  He also had to sharpen the 
 
         knife with hand movements against a steel (sharpener).  The room 
 
         temperature was cool.  Other employees did the same job at this 
 
         point on the line.
 
         
 
              In January of 1985 he noticed swelling in his fingers and 
 
         numbness and tingling in his hands.  He first detected symptoms 
 
         in his right hand and arm and then shortly thereafter they 
 
         occurred in the left hand and arm.  He reported this to employer, 
 
         was examined by the nurse twice and then she sent him to see 
 
         Robert F. Deranleau, M.D. on January 1.1, 1985 Dr. Deranleau 
 
         recorded that after two hours of work all of his fingers got 
 
         numb.  Both bands and both wrists hurt and cause pain up his arm 
 
         to the elbows.  On April 25, 1985 Dr. Deranleau recorded that 
 
         claimant's fourth and fifth finders were stiff and would lock up.  
 
         His left shoulder hurt and his arm goes to sleep.  The doctor 
 
         diagnosed early trigger fingers and muscle strain.  On May 6, 
 
         1985 claimant's fingers were worse and Dr. Deranleau referred, 
 
         claimant to Arnis B. Grundberg, M.D., an orthopedic surgeon 
 
         (Exhibit 7).
 
         
 
         
 
         
 
         
 
              On May 31, 1985 Dr. Grundberg reported that he examined 
 
         claimant's hands and arms extensively and recorded his complaints 
 
         and symptoms in detail.  He concluded that claimant had bilateral 
 
         carpal tunnel syndrome, bilateral ulnar tunnel. syndrome and 
 
         flexor synovitis of the right thumb, ring and little finger from 
 
         gradual onset.  He stated that the injury did occur at work.  He 
 
         stated that claimant was able to work and should continue 
 
         working.  He recommended cortisone shots, but claimant refuses to 
 
         take them (Exhibit 3).  Claimant testified that he refused the 
 
         cortisone shots because of certain information that other 
 

 
         
 
                                        
 
         
 
         PARKS V. OSCAR MAYER FOODS CORPORATION
 
         Page   3
 
         
 
         
 
         employees had told him.  Claimant also felt that it would just 
 
         cover up the pain and not heal it.  An EMG ordered by Dr. 
 
         Grundberg from Marvin Hurd, M.D., was normal (Exhibit 4).
 
         
 
              Claimant then saw Peter D. Wirtz, M.D., an orthopedic 
 
         surgeon, on June 17, 1985.  Dr. Wirtz diagnosed thoracic outlet 
 
         syndrome, which was temporary in nature, aggravated by body 
 
         boning, and Dr. Wirtz recommended different employment (Exhibit 
 
         2, pages 6 and 7).  Dr. Wirtz referred claimant to be examined by 
 
         David H. Stubbs, M.D., a vascular surgeon.  Dr. Stubbs could find 
 
         no evidence of thoracic outlet syndrome but instead found carpal 
 
         tunnel syndrome.  He recommended a change of occupation, possible 
 
         steroid injections an(i possible surgical. relief (Exhibit 5, 
 
         page 2).  On November 20, 1985 Dr. Wirtz then changed his 
 
         diagnosis from thoracic outlet syndrome to overuse syndrome of 
 
         the muscles and tendons of the upper extremity.  He recommended 
 
         against continued repetitive band activity. He added that 
 
         claimant was not suffering any permanent impairment at that time 
 
         (Exhibit 2, page 3).
 
         
 
              Claimant was evaluated by Thomas B. Summers, M.D., a 
 
         neurosurgeon on April 23, 1986.  Dr. Summers rather 
 
         comprehensively examined claimant and determined that claimant 
 
         sufferers from carpal tunnel syndrome bilaterally due to his 
 
         work.  He stated that claimant did not desire surgery and 
 
         Dr.Summers did not think it was indicated either.  Dr. Summers 
 
         found claimant had a functional impairment of 10% of the right 
 
         upper extremity and 5% of the left upper extremity.  He did not 
 
         characterize the impairment as permanent.  On July 17, 1986 Dr. 
 
         Summers wrote that claimant had carpel tunnel. syndrome 
 
         bilaterally that was work related due to repetitive trauma in his 
 
         everyday activities (Exhibit 1, page 1).
 
         
 
              Again on August 27, 1986 Dr. Wirtz stated that there are no 
 
         signs and symptoms to support a permanent impairment in either 
 
         extremity (Exhibit 2, page 1).
 
         
 
              Defendant requested that claimant be evaluated by Alfredo D. 
 
         Socarras, M.D., on November 3, l986.  Dr. Socarras reviewed the 
 
         reports of Drs. Grundberq, Wirtz, Stubbs and Summers and also the 
 
         EMG report of Dr. Hurd dated May 28, l985.  Claimant described 
 
         his symptoms indicating that sometimes they bothered him and
 
         
 
         sometimes they did not.  He felt improved after transfer from 
 
         body boning to trimming loins using a two handled knife instead 
 
         of one knife in his right hand all of the time.  It would appear 
 
         that Dr. Socarras made a careful examination. 14(- determined 
 
         that claimant had a mild irritation of the median nerve at the 
 
         level of the wrist bilaterally.  He too commented that claimant's 
 
         symptoms will persist as long as he performs repetitive manual 
 
         activity in his lob (Exhibit 6).
 
         
 
              Claimant received a 15 day suspension on July 21, l985 for 
 
         missing work excessively and poor workmanship.  Claimant 
 
         testified that the pain in his hand caused the poor.attendance 
 
         and the poor workmanship.  Claimant related that he felt better 
 
         during the suspension but the problems returned when he returned 
 
         to work.  He now trims loins with a two handle knife.  The loins 
 
         are in a saddle.  Each person makes a different cut.  He trims 
 

 
         
 
                                        
 
         
 
         PARKS V. OSCAR MAYER FOODS CORPORATION
 
         Page   4
 
         
 
         
 
         the shine bevel.  It is a different move from body boning.  It is 
 
         not repetitive and there is less bending and turning.  He 
 
         testified that he had far less problems trimming loins.  Now he 
 
         only suffers a light tingling that comes and goes.  It is worse 
 
         after he works a long time.  It goes away after work.  He does 
 
         not notice it at night or on other occasions anymore.  Claimant 
 
         said that he planned to continue to work for employer.  He did 
 
         not plan to go to school or to take another job.  The last doctor 
 
         which he saw was Dr. Socarras in November of 1986.  Prior to that 
 
         he saw Dr. Summers in April of 1986.  These examinations were for 
 
         evaluation purposes rather than treatment.  Claimant testified 
 
         that he does not take medicine today for this condition.  Be 
 
         stated that he did not have surgery and did not plan to have 
 
         surgery in the future.  He said he no longer has the "catching" 
 
         effect in his fingers.  The snapping made noise when it occurred 
 
         but it did not cause pain.  He added that since he has been 
 
         trimming loins his condition has stabilized.
 
         
 
              Schumacher, the personnel manager, testified that the pace 
 
         of the line was approximately 1,266 hams per day. He added that 
 
         this figured out to be 165 barns per hour.  He calculated that 
 
         claimant then processed slightly less than 3 hams per minute.  
 
         Claimant was given a slower pace when the doctors ordered it.  No 
 
         doctor ever stated that claimant should be removed from the job 
 
         entirely. Claimant has improved his attendance and has had no 
 
         further disciplinary problems.  Claimant is making more money now 
 
         than he was on January 11, 1985.  Schumacher related that 
 
         practically all new employees start in as a body boner.
 
         
 
                         APPLICABLE LAW AND ANALYSTS
 
         
 
              Claimant has the burden of proving by a preponderance of the 
 
         evidence that he received an injury on January 11, 1985 which 
 
         arose out of and in the course of his employment.  McDowell v. 
 
         Town of Clarksville, 241 N.W.2d 904 (Iowa 1976); Musselman v. 
 
         Central Telephone Co., 261 Iowa 352,, 154 N.W.2d 128 (1967).
 
         
 
         
 
              The claimant has the burden of proving by a preponderance of 
 
         the evidence that the injury of January 11, 1985 is causally 
 
         related to the disability on which he now bases his claim. Bodish 
 
         v. Fischer, Inc., 257 Iowa 516, 131 N.W.2d 867 (1965).  Lindahl 
 
         v. L. 0. Boggs, 236 Iowa 296, 18 N.W.2d 607 (1945).  A 
 
         possibility is insufficient; a probability is necessary.  Burt v. 
 
         John Deere Waterloo Tractor Works, 247 Iowa 691, 73 N.W.2d 732 
 
         (1955).  The question of causal connection is essentially within 
 
         the domain of expert testimony.  Bradshaw v. Iowa Methodist 
 
         Hospital, 251 Iowa 375, 101 N.W.2d 167 (1960).
 
         
 
              However, expert medical evidence must be considered with all 
 
         other evidence introduced bearing on the causal connection. Burt, 
 
         247 Iowa 691, 73 N.W.2d 732.  The opinion of experts need not be 
 
         couched in definite, positive or unequivocal language. Sondag v. 
 
         Ferris Hardware, 220 N.W.2d 903 (Iowa 1974).  However, the expert 
 
         opinion may be accepted or rejected, in whole or in part, by the 
 
         trier of fact.  Id. at 907.  Further, the weight to be given to 
 
         such an opinion is for the finder of fact, and that may be 
 
         affected by the completeness of the premise given the expert and 
 
         other surrounding circumstances.  Bodish, 257 Iowa 516, 133 
 

 
         
 
                                        
 
         
 
         PARKS V. OSCAR MAYER FOODS CORPORATION
 
         Page   5
 
         
 
         
 
         N.W.2d 867. See also Musselman 261 Iowa 352, 154 N.W.2d 128.
 
         
 
              Claimant did sustain the burden of proof by a preponderance 
 
         of the evidence that he sustained an injury that arose out of and 
 
         in the course of his employment with employer on January 11, 
 
         1985.  There was no evidence that claimant had any related 
 
         problems with his hands and wrists prior to this employment or 
 
         prior to January of 1985.  His job as a body boner involved 
 
         repetitive use of both hands and wrists, especially his right 
 
         dominant hand and wrist.  The implication is that body boning 
 
         must be one of the least desirable jobs because almost all of the 
 
         new employees are hired for that job.  Claimant followed proper 
 
         procedures.  He reported his early symptoms to employer.  He saw 
 
         the company nurse twice.  He went to all of the doctors that the 
 
         employer requested him to see which were Dr. Deranleau, Dr. 
 
         Grundberg, Dr. Wirtz, Dr. Stubbs, and Dr. Socarras.  Claimant's 
 
         symptoms in his fingers, hands and wrists were all classic carpal 
 
         tunnel syndrome symptoms.  Dr. Deranleau described claimant's 
 
         symptoms as work related, diagnosed early trigger fingers and 
 
         sent claimant to Dr. Grundberg (Exhibit 7).  Dr. Grundberg, an 
 
         orthopedic surgeon, who further specializes in hand and arm 
 
         surgery, diagnosed carpal tunnel syndrome from gradual onset.  He 
 
         stated that it did occur at work (Exhibits 3 and 4).  Dr. Wirtz 
 
         preferred to call it overuse syndrome after Dr. Stubbs ruled out 
 
         thoracic outlet syndrome.  By repeatedly associating claimant's 
 
         condition with claimant's repetitive activities at work, Dr. 
 
         Wirtz established by implication that the injury was work related 
 
         (Exhibit 2).
 
         
 
              Dr. Stubbs not only ruled out thoracic outlet syndrome but 
 
         clearly ruled in that it was carpal tunnel syndrome.  He 
 
         recommended a change of occupation.  This recommendation 
 
         implicates claimant's work as the cause of his condition (Exhibit 
 
         5).  Dr. Summers, claimant's evaluating Doctor, identified 
 
         claimant's condition as carpal tunnel syndrome caused by his work 
 
         (Exhibit 1).  Dr. Socarras, defendant's evaluating doctor, said 
 
         that claimant had a mild median nerve irritation at the level of 
 
         the wrist bilaterally.  By stating that the symptoms would 
 
         persist as long as claimant performs repetitive activity he 
 
         indirectly attributes the cause of claimant's condition to 
 
         claimant's job activities.  All of the doctors then either 
 
         directly or directly found that claimant suffered from carpal 
 
         tunnel syndrome or overuse syndrome caused by the repetitive 
 
         nature of his work.  No other cause or reason for claimant's 
 
         condition is raised or suggested by any of the evidence.  
 
         Consequently claimant has established that he sustained an injury 
 
         to this fingers, hands and wrists which arose out of and in the 
 
         course of his employment with employer on January 11, 1985.
 
         
 
              Claimant did not establish that the injury was the cause of 
 
         either temporary or permanent disability.  The parties stipulated 
 
         that temporary disability was not an issue in this case.  As to 
 
         permanent disability claimant did not prove that he lost any time 
 
         from work due to this injury.  He testified that the injury was 
 
         the cause of his absenteeism and poor workmanship but this 
 
         statement was not corroborated by any other evidence.  No doctor 
 
         ever released claimant from work.  Claimant is doing repetitive 
 
         work now with his hands trimming loins and plans to continue to 
 
         do this job for the indefinite and immediate future. He testified 
 

 
         
 
                                        
 
         
 
         PARKS V. OSCAR MAYER FOODS CORPORATION
 
         Page   6
 
         
 
         
 
         that this job gives him far less problems than body boning.  He 
 
         experiences only light tingling that comes and goes, and is only 
 
         worse after working long hours.  It goes away after work and he 
 
         does not notice it at night anymore.  He has not consulted a 
 
         doctor about it.  The last doctors which claimant saw for 
 
         diagnosis and treatment were Dr. Wirtz and Dr. Stubbs in 
 
         approximately June of 1985 more than one and one half years prior 
 
         to the hearing.  Claimant declined to take cortisone.  Claimant 
 
         declined the surgery option that was proposed.  His EMG was 
 
         normal.
 
         
 
              Dr. Summers said that claimant was 10% impaired in the right 
 
         upper extremity and 5% impaired in the left upper extremity.  
 
         However, nothing in Dr. Summers narrative report supports these 
 
         impairment ratings either factually or symptomatically.  
 
         Furthermore, defendant's counsel points out that Dr. Summers did 
 
         not state that claimant's impairment was permanent impairment.  
 
         Auxier v Woodward State Hospital School, 266 N.W.2d 139 (Iowa 
 
         1978).  Consequently it is determined that claimant did not 
 
         sustain the burden of proof by the preponderance of the evidence 
 
         that the injury was the cause of any permanent disability.  
 
         Therefore, claimant is not entitled to any permanent partial 
 
         disability benefits.
 
         
 
                             FINDINGS OF FACT
 
         
 
              WHEREFORE, based upon the evidence presented the following 
 
         findings of fact are made.
 
         
 
              That claimant was employed by employer as a body boner on 
 

 
         
 
                                        
 
         
 
         PARKS V. OSCAR MAYER FOODS CORPORATION
 
         Page   7
 
         
 
         
 
         January 11, 1985.
 
         
 
              That body boning requires extensive and strenuous use of the 
 
         hands, especially the dominant hand.
 
         
 
              That claimant experienced swelling in his fingers and 
 
         numbness and tingling in his hands in January of 1985.  That all 
 
         six doctors who examined claimant described claimant's symptoms 
 
         as carpal tunnel syndrome or overuse syndrome and either directly 
 
         or indirectly related it to his repetitive hand activities in his 
 
         employment with employer.
 
         
 
              That claimant lost no time from work for the injury and was 
 
         not released from work by any of the doctors, but on the contrary 
 
         he was directed to continue to work.
 
         
 
              That claimant continues to work for employer trimming loins 
 
         which requires repetitive use of his hands but he encounters very 
 
         few problems from this job.
 
         
 
              That claimant has sought no medical attention since June of 
 
         1985.
 
         
 
              That claimant's EMG was normal, he refused to take 
 
         cortisone, and he declined surgery for his condition.
 
         
 
              That Dr. Wirtz said there was no permanent impairment in 
 
         either extremity.
 
         
 
                            CONCLUSIONS OF LAW
 
         
 
              WHEREFORE, based upon the evidence presented and the 
 
         principles of law previously discussed the following conclusions 
 
         of law are made.
 
         
 
              That claimant sustained the burden of proof by a 
 
         preponderance of the evidence that he sustained an injury on 
 
         January 11, 1985 that arose out of and in the course of his 
 
         employment with employer.
 
         
 
              That claimant did not sustain the burden of proof by a 
 
         preponderance of the evidence that the injury was the cause of 
 
         any permanent disability.
 
         
 
              That claimant is not entitled to any permanent partial 
 
         disability benefits.
 
         
 
              THEREFORE, IT IS ORDERED:
 
         
 
              That no amounts are due from defendant to claimant for this 
 
         injury.
 
         
 
              That each party is to pay their own respective costs and 
 
         that defendant pay for the cost of the attendance of the court 
 
         reporter at the hearing.
 
         
 
              That defendant file claim activity reports as requested by 
 
         this agency pursuant to Division of Industrial Rule 343-3.1.
 
         
 

 
         
 
                                        
 
         
 
         PARKS V. OSCAR MAYER FOODS CORPORATION
 
         Page   8
 
         
 
         
 
              Signed and filed this 24th day of November, 1987.
 
         
 
         
 
         
 
         
 
                                          WALTER R. McMANUS, JR.
 
                                          DEPUTY INDUSTRIAL COMMISSIONER
 
         Copies To:
 
         
 
         Mr. Arthur Hedberg, Jr
 
         Attorney at Law
 
         840 Fifth Avenue
 
         Des Moines, Iowa 50309
 
         
 
         Mr. Harry Dahl
 
         Attorney at Law
 
         974 73rd Street, Suite 16
 
         Des Moines, Iowa 50312
 
         
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                                 1106; 1108.50; 1401;
 
                                                 1402.20; 1402.30; 
 
                                                 1402.40;
 
                                                 1801; 1803; 2209
 
                                                 Filed November 24, 1987 
 
                                                 WALTER R. McMANUS, JR.
 
         
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         _________________________________________________________________
 
         _
 
         GEAROLD I. PARKS,
 
              
 
              Claimant,
 
                                                    File No. 799431
 
         VS.
 
                                                 A R B I T R A T I 0 N 
 
         OSCAR MAYER FOODS CORPORATION
 
                                                    D E C I S I 0 N
 
             Employer,
 
             Self-Insured,
 
             Defendant.
 
         _________________________________________________________________
 
         
 
         1106; 1108.50; 1401; 1402.20; 1402.30; 1402.40; 1801; 1803; 2209
 
         
 
              It was found that claimant did sustain an injury arising out 
 
         of and in the course of employment from body boning on the 
 
         production line.  Four employer doctors diagnosed bilateral 
 
         carpel tunnel.  One employer doctor called it overuse syndrome.  
 
         All six doctors said either directly or indirectly that it was 
 
         work related.
 
         
 
              Claimant did not prove impairment or permanent partial 
 
         disability.  Four employer doctors did not comment on impairment.  
 
         One employer doctor said there was no permanent impairment.  
 
         Employee's doctor awarded some impairment but did not 
 
         characterize it as permanent.  Claimant continued to work for 
 
         employer trimming loins on the production line without any real 
 
         difficulty and planned to continue doing it into the indefinite 
 
         future.  Claimant refused cortisone shots and surgery.  The 
 
         treating physicians ordered claimant to continue working.  The 
 
         weight of the evidence was no impairment and no permanent partial 
 
         disability.
 
 
 
         
 
 
         
 
 
 
 
 
 
 
 
 
 
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         IRVIN EUGENE STEARNS,
 
         
 
              Claimant,                               File No. 799442
 
         
 
         vs.                                       A R B I T R A T I O N
 
         
 
         MINNESOTA RUBBER COMPANY,                    D E C I S I O N
 
         
 
              Employer,
 
                                                         F I L E D
 
         and
 
                                                        MAR 28 1989
 
         TRAVELERS INSURANCE COMPANY,
 
                                               IOWA INDUSTRIAL 
 
         COMMISSIONER
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
                              STATEMENT OF THE CASE
 
         
 
              This is a proceeding in arbitration brought by Irvin Eugene 
 
         Stearns, claimant, against Minnesota Rubber Company, employer, 
 
         and Travelers Insurance Company, insurance carrier, to recover 
 
         benefits under the Iowa Workers' Compensation Act as a result of 
 
         an injury sustained on August 18, 1983.  This matter came on for 
 
         hearing before the undersigned deputy industrial commissioner 
 
         October 10, 1988 and was considered fully submitted at the close 
 
         of the hearing.  The record in this case consists of the 
 
         testimony of claimant, Priscilla Waitek, and Steve Bledsoe; 
 
         claimant's exhibits 1 through 6, inclusive; and defendants' 
 
         exhibits 1 and 2.
 
         
 
              The parties to the action filed a stipulation for submission 
 
         of additional exhibits with the undersigned on February 6, 1989. 
 
         The undersigned is unable to consider the parties' additional 
 
         exhibits pursuant to Division of Industrial Services Rule 
 
         343-4.31 which provides "no evidence shall be taken after the 
 
         hearing."  The undersigned considers this rule to be mandatory 
 
         and does not allow her discretion in the matter.  Therefore, the 
 
         parties' additional exhibits submitted on February 6, 1989 have 
 
         not been considered in making a decision in this matter but will 
 
         be retained with the file in the event of further review.
 
         
 
                                      ISSUES
 
         
 
              Pursuant to the prehearing report and order submitted and 
 
         approved October 10, 1988, the following issues are presented for 
 
         resolution:
 
         
 
              1.  The extent of claimant's entitlement to permanent 
 
         partial disability benefits stipulated to be an industrial 
 
         disability;
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              2. The applicability of the odd-lot     doctrine;
 
              
 
              3.  Claimant's entitlement to certain benefits under Iowa 
 
         Code section 85.27; and
 
              
 
              4.  Claimant's appropriate rate of compensation.
 
              
 
              The parties also list on the prehearing report and order 
 
         that claimant's entitlement to healing period benefits is also in 
 
         dispute.  However, the parties agreed at the conclusion of the 
 
         hearing that claimant's entitlement to healing period benefits 
 
         runs from the date of the injury, August 18, 1983, to August 5, 
 
         1987, inclusive, with the exception of the periods of time 
 
         claimant returned to work for defendant employer.  The parties 
 
         further agreed that claimant has been paid all the healing period 
 
         benefits to which he is entitled.  Based upon this agreement, the 
 
         issue of claimant's entitlement to healing period benefits will 
 
         not be further addressed.
 
         
 
                                 FACTS PRESENTED
 
         
 
              Claimant sustained an injury which arose out of and in the 
 
         course of his employment on August 14, 1983 when one of the molds 
 
         on which he was working jammed and he pushed it with his right 
 
         arm while grabbing a rail with his left hand.  Claimant stated he 
 
         began experiencing back pain and saw a physician who recommended 
 
         he see Wayne Janda, M.D.  Claimant testified he got no relief 
 
         from his back pain, and, after getting approval from the plant 
 
         manager, "called in" his own physician, Sterling J. Laaveg, M.D., 
 
         who prescribed traction to "build up the back."  Claimant stated 
 
         he has returned to work off and on since the time of his injury, 
 
         at times on the employer's light duty 90 day program, but that 
 
         the employer has advised him no work is available on a permanent 
 
         basis which would be within his medical restrictions.
 
         
 
              Claimant testified that in January 1986, he had a spinal 
 
         fusion on "both sides," that the "left side did not take," and 
 
         that further surgery "is being discussed."  Claimant stated he 
 
         has looked for work but that there are "not too many places [he] 
 
         can get jobs within the restrictions."  Claimant stated he has 
 
         signed up with the Iowa Department of Job Service, gone out of 
 
         state, specifically to Minnesota and Illinois, looking for work 
 
         and that one employer, AT&T, told him "not to bother" after they 
 
         received the medical report.  Claimant testified that "everybody 
 
         tells me they will not hire" him because of the work 
 
         restrictions.  Claimant asserted he has been involved with his 
 
         vocational rehabilitation, that he cooperated with vocational 
 
         rehabilitation counselors and that he exercised by using a health 
 
         club membership to the extent he was able.  Claimant admitted on 
 
         cross-examination that at one point he advised his vocational 
 
         rehabilitation counselor he was going to Texas and that when he 
 
         did not go he did not recontact her to advise that he was 
 
         remaining in the area.  Claimant acknowledged his G.I. benefits 
 
         expired in March 1987 without being used, that although he was 
 
         aware he was eligible for services from the state's vocational 
 
         rehabilitation he did not pursue that opportunity and that his 
 
         current plan is to pursue an insurance/auto appraiser career 
 
         which endeavor has consisted of making one phone call to a local 
 
         insurance agent.  Claimant stated he is currently taking daily 
 
         medication for depression and for pain on an as-needed basis. 
 
         Claimant explained he is willing to work for defendant employer 
 
         if he is given the opportunity and that he did not voluntarily 
 
         cease his employment there.  Claimant stated he is capable of 
 
         doing some work, depending on the type of schooling he receives, 
 
         that he is "willing to give anything a try," that he would "like 
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         to" go back to school although he does not know if he can or not 
 
         but that within his restrictions there is not an open employment 
 
         field. Claimant stated that he last applied for a job "a couple 
 
         of months" prior to hearing.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              Priscilla Waitek, who identified herself as a rehabilitation 
 
         specialist/coordinator with Intracorp, testified she met with 
 
         claimant October 8, 1988, reviewed medical records, 
 
         rehabilitation records, claimant's work history and his efforts 
 
         to secure employment and concluded claimant is able to perform up 
 
         to light work which is available in claimant's employment area at 
 
         an entry level wage of $3.35 to $6.00 per hour.  Although she did 
 
         not do a labor market survey, Ms. Waitek stated claimant would be 
 
         capable of employment at an auto parts store, as one example, 
 
         that claimant qualifies for all services from the State of Iowa 
 
         Vocational Rehabilitation Services, the Iowa Department of Job 
 
         Service, the Job Training Partnership Act, and that work in the 
 
         light category of employment is not severely restricted in 
 
         claimant's employment area.  Ms. Waitek testified claimant needs 
 
         to stress his capabilities rather than his limitations 
 
         particularly with regard to his resume and opined that claimant 
 
         is capable of doing some semi-skilled work and of learning and of 
 
         retaining knowledge.
 
         
 
              Steve Bledsoe, who identified himself as the production 
 
         superintendent with defendant employer with experience as a 
 
         molder, lead worker, foreman and production supervisor, testified 
 
         most of the jobs with defendant employer are medium to heavy and 
 
         that even the "girls" have to lift 50 to 60 pounds.  Mr. Bledsoe 
 
         acknowledged the employer has a return-to-work program but it is 
 
         a temporary program of 90 days duration and that employees cannot 
 
         be permanently placed on the program as a result of its temporary 
 
         nature.  Mr. Bledsoe opined that given claimant's medical 
 
         restrictions claimant cannot return to work for defendant 
 
         employer.
 
         
 
              On August 5, 1987, Sterling J..Laaveg, M.D., orthopedic 
 
         surgeon, opined:
 
         
 
                   Irvin Stearns has reached maximum healing following his 
 
              fusion.  He has plateaued in his work hardening program 
 
              lifting 15-20 pounds only and at that has some back pain and 
 
              spasm.
 
         
 
                   The patient still has limitation of motion of the back. 
 
              He is very tender at L4-5 and L5 S1.  He has forward flexion 
 
              to 45o of the back.  Neurologically he is intact.  There is 
 
              no atrophy of his lower extremities.
 
         
 
                   A final physical impairment rating has been done of 22% 
 
              for the back and whole person.  The patient should not be in 
 
              a job in which he would lift off the floor over 15 pounds or 
 
              carry over 20 pounds.  He should not do frequent bending or 
 
              twisting.  He should not do prolonged standing or prolonged 
 
              sitting for over one hour without being able to change 
 
              position.
 
         
 
         (Claimant's Exhibit 4)
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
              On February 23, 1987, John R. Walker, M.D., of Orthopaedic 
 
         Specialists, who saw claimant for the purposes of evaluation, 
 
         reported to claimant's attorney:
 
         
 
              OPINION:  This man is in extremely poor condition.  He has 
 
              the following problems:
 
         
 
                   1.)  He has some affectation and chronic pain in the 
 
              right sacroiliac joint.
 
                   
 
                   2.) His main problem, of course, is in at L-4 and L-5 
 
              and L-5, S-1 where he has persistent pains which apparently 
 
              have not been relieved by surgical intervention.
 
                   
 
                   3.)  The patient seems to have a sciatica and some 
 
              involvement of both the right and the left legs, 
 
              particularly the right leg, in the form of a radiculitis.
 
                   
 
                   4.)  I cannot be sure but it appears that this man may 
 
              be started on the road to some habituation or addiction to 
 
              some of these drugs that he is taking.  He does tell me that 
 
              the doctor is switching these around the best he can, but to 
 
              repeat, by the time that I got through he seemed to be a 
 
              little shakey [sic] and I am not sure but what he was having 
 
              a little withdrawal at this point.  Again, this is only an 
 
              observation which I certainly would not want to stand upon 
 
              for final proof.
 
         
 
                   This man is in need of further surgery.  Basically, he 
 
              probably should have another myelogram, CT scan, and 
 
              probably an MRI and I believe that this would be best 
 
              handled by the following procedure:
 
         
 
                   1.)  He should have a total laminectomy of L-4, L-5 and 
 
              a bilateral, lateral fusion of Mc Elroy extending from L-4 
 
              through the sacrum.
 
         
 
                   2.)  He may need some treatment to the right sacroiliac 
 
              joint.  It is possible that Marcaine, Celestone and 
 
              Aristospan injections would relieve this.  It is also 
 
              possible that he might need a sacroiliac fusion of the 
 
              Smith-Peterson type.  (Emphasis original)
 
         
 
                   At this point, the number one recommendation is 
 
              paramount in my mind.  The patient in my mind, is 100% 
 
              disabled at this time and impaired and is unable to do any 
 
              job that I can think of, but is in need of further treatment 
 
              as indicated above.
 
         
 
                   His permanent, partial impairment, after proper 
 
              treatment and fairly good success, might run at around 30 to 
 
              35 percent of the body as a whole.  We will be glad to help 
 
              in any way that we can to relieve this mans [sic] problems 
 
              if we can get proper authority.
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         (Defendants' Exhibit 1, Item 2, pages 4-5)
 
         
 
              On October 7, 1987, Dr. Walker opined:
 
         
 
                   Mr. Stearns was down today and apparently Dr. Laaveg 
 
              has turned in a 22% permanent, partial impairment or 
 
              disability on the patient.  This is probably about right if 
 
              you were to have successful surgery and I am indicating of 
 
              course the surgery that I have suggested in my original 
 
              letter to you dated 2-23-87.  This man is standing around 
 
              with his back flexed, leaning on things and is totally 
 
              disabled at the present time.  Unfortunately this 22% does 
 
              not take care of him as far as getting him over his present 
 
              problem.  His temporary, partial impairment at this time is 
 
              100%.  I would hope that we could get some authority to go 
 
              ahead and get him improved.
 
         
 
         (Def. Ex. 1, Item 23)
 
         
 
              Claimant met with Clark Borland, February 5, 1987 for an 
 
         employability evaluation.  Mr. Borland concluded:
 
         
 
                   Mr. Stearns has a vocational history which is in the 
 
              unskilled and semi-skilled level of complexity.  Relative to 
 
              strength requirement, he has done work which was in the 
 
              medium or heavy level - medium indicating a maximum lifting 
 
              of 50 lbs., and heavy meaning a maximum lifting of 100 lbs. 
 
              The job activities in his work history have also required 
 
              considerable twisting and bending with the exception of 
 
              those jobs where he was engaged as a vehicle operator.  In 
 
              reviewing his past vocational history, then, it does not 
 
              appear that there is any previous work experience that he 
 
              can return to.  This is due to his current medical 
 
              condition.
 
         
 
                   Relative to future employment, one has to consider his 
 
              age, education, work experience, ability to learn new work 
 
              activity, and the state of his medical condition.  His age 
 
              is 29 and this should be a positive factor in his 
 
              employability. Relative to his education, he has completed 
 
              the 10th grade and, as stated previously, it is unclear as 
 
              to whether he completed the G.E.D. certificate testing or 
 
              not.  The G.E.D. is not critical in his employability but it 
 
              certainly would be helpful if he had that certification.  
 
              His work experience is somewhat negative as there does not 
 
              appear to be anything specific he can go back to work 
 
              activity-wise, and none of his past work seems to provide 
 
              any transferable work skills. Transferable work skills refer 
 
              to work skills and techniques that can be utilized in 
 
              another setting - leaving behind certain activities that one 
 
              might not be able to do in the future.  Mr. Stearns' ability 
 
              to learn new employment is somewhat restricted as indicated 
 
              by his performance on the Differential Aptitude Test.  When 
 
              one examines his work history, it appears that he has been 
 
              employed on "appropriate" levels as far as his ability is 
 
              concerned, i.e., unskilled and semi-skilled work.  His 
 
              ability to learn new work, then, is somewhat limited and 
 
              cannot be considered a strong positive factor in his 
 
              re-employability.  Relative to the aforementioned factors, 
 
              Mr. Stearns could work in the following job areas:
 

 
              
 
 
 
 
 
 
 
 
 
 
 
         
 
                   Weigher, Production, DOT Code 929.587
 
                   Gate Guard, DOT Code 372.667
 
                   Assembler, DOT Code 723.684
 
                   Guard, Security, DOT Code 372.667
 
         
 
                   All of the above jobs are classified in the light range 
 
              relative to lifting and, for the most part, would provide 
 
              settings where Mr. Stearns could move about as dictated by 
 
              his back condition.  There is the possibility, however, that 
 
              any one of these jobs in a given setting might have some 
 
              sort of activity unique to that setting which would prohibit 
 
              Mr. Stearns from doing that particular job.  It is 
 
              important, therefore, that any future employer know of his 
 
              restrictions and have some sort of general agreement that he 
 
              will work as much as possible with this client to provide 
 
              work activity within his capability.  I should note that the 
 
              above list is partial and there are probably other similar 
 
              sorts of employment that Mr. Stearns could do.  The 
 
              availability of the type of work that this subject can do in 
 
              the current labor market is at least moderately restricted 
 
              and in some communities is severely restricted.  In my 
 
              opinion, his income potential for employment in these areas 
 
              is in the range of $3.35 per hour to $6.00 per hour.
 
         
 
         (Def. Ex. 1, Item 24)
 
         
 
              Claimant's wage records are reflected in the record under 
 
         defendants' exhibit 1 as:
 
         
 
              WEEK ENDING     GROSS PAY       OTHER TYPES OF PAY
 
                                          INCLUDED IN GROSS 
 
              AMOUNT
 
              
 
              Aug 21, 1983     $299.20
 
              Aug 14, 1983      299.20
 
              Aug  7, 1983      244.97       absent - sick
 
              July 31, 1983     299.20
 
              July 24, 1983     281.25       absent - dr. appt.
 
              July 17, 1983     239.36       absent - Leave of Absence
 
              July 10, 1983     278.63       absent - sick
 
              July  3, 1983     278.63       absent - funeral
 
              June 26, 1983     278.63       absent - sick
 
              June 19, 1983     299.20
 
              June  5, 1983     501.16       includes sick pay
 
              May 29, 1983       -0-         absent - tooth surgery
 
              May 22, 1983      258.06       absent - dr. appt & sick
 
              May 15, 1983      299.20
 
              May  8, 1983      299.20
 
              May  1, 1983      299.20
 
              Apr 24, 1983      299.20
 
              Apr 17, 1983      299.20
 
              Mar 27, 1983      281.60
 
              Mar 20, 1983      281.60
 
              Mar 13, 1983      281.60
 

 
              
 
 
 
 
 
 
 
 
 
 
 
              Mar  6, 1983      281.60
 
         
 
         (Def. Ex. 1)
 
         
 
                           APPLICABLE LAW AND ANALYSIS
 
         
 
              An employee is entitled to compensation for any and all 
 
         personal injuries which arise out of and in the course of the 
 
         employment.  Section 85.3(1).
 
         
 
              As the parties have stipulated that claimant sustained an 
 
         injury arising out of and in the course of his employment which 
 
         is both the cause of temporary.and permanent disability, it is 
 
         necessary to consider only the issue of the extent of claimant's 
 
         permanent disability which includes the related issue of whether 
 
         or not claimant is an odd-lot employee as contemplated by Guyton 
 
         v. Irving Jensen Co., 373 N.W.2d 101 (Iowa 1985).
 
         
 
              Under the odd-lot doctrine, which was formally adopted by 
 
         the Iowa Supreme Court in Guyton, supra, a worker becomes an 
 
         odd-lot employee when an injury makes the worker incapable of 
 
         obtaining employment in any well-known branch of the labor 
 
         market.  An odd-lot worker is thus totally disabled if the only 
 
         services the worker can perform are so limited in quality, 
 
         dependability, or quantity that a reasonably stable market for 
 
         them does not exist.  Id., citing Lee v. Minneapolis Street 
 
         Railway Company, 230 Minn.315, 320, 41 N.W.2d 433, 436 (1950).  
 
         The rule of odd-lot allocates the burden of production of 
 
         evidence.  If the evidence of degree of obvious physical 
 
         impairment, coupled with other facts such as claimant's mental 
 
         capacity, education, training or age, places claimant prima facie 
 
         in the odd-lot category, the burden should be on the employer to 
 
         show that some kind of suitable work is regularly and 
 
         continuously available to the claimant.  Certainly in such a case 
 
         it should not be enough to show that claimant is physically 
 
         capable of performing light work and then round out the case for 
 
         non-compensable by adding a presumption that light work is 
 
         available.  Guyton, 373 N.W.2d at 105.
 
         
 
              When a worker makes a prima facie case of total disability 
 
         by producing substantial evidence that the worker is not 
 
         employable in the competitive labor market, the burden to produce 
 
         evidence of suitable employment shifts to the employer.  If the 
 
         employer fails to produce such evidence and the trier of fact 
 
         finds the worker falls in the odd-lot category, the worker is 
 
         entitled to a finding of total disability.  Even under the 
 
         odd-lot doctrine, the trier of fact is free to determine the 
 
         weight and credibility of the evidence in determining whether the 
 
         worker's burden of persuasion has been carried.  Only in an 
 
         exceptional case would evidence be sufficiently strong to compel 
 
         a finding of total disability as a matter of law.  Guyton, 373 
 
         N.W.2d at 106.  The court went on to state:
 
         
 
                   The commissioner did not in his analysis address any of 
 
              the other factors to be considered in determining industrial 
 
              disability.  Industrial disability means reduced earning 
 
              capacity.  Bodily impairment is merely one factor in a 
 
              gauging industrial disability.  Other factors include the 
 
              worker's age, intelligence, education, qualifications, 
 
              experience, and the effect of the injury on the worker's 
 
              ability to obtain suitable work.  See Doerfer Division of 
 
              CCA v. Nicol, 359 N.W.2d 428, 438 (Iowa 1984).  When the 
 
              combination of factors precludes the worker from obtaining 
 
              regular employment to earn a living, the worker with only a 
 
              partial functional disability has a total disability.  See 
 
              McSpadden v. Big Ben Coal Co., 288 N.W.2d 181, 192 (Iowa 
 

 
              
 
 
 
 
 
 
 
 
 
 
 
              1980).
 

 
              
 
 
 
 
 
 
 
 
 
 
 
         
 
              Of first concern is whether or not claimant has established 
 
         he is an odd-lot employee under Guyton, meaning has claimant made 
 
         a prima facie case of total disability by producing substantial 
 
         evidence that he is not employable in the competitive labor 
 
         market.  It cannot go without comment that claimant has been 
 
         employed since the date of his injury.  Claimant, by his own 
 
         testimony, admits that he is capable of some type of employment. 
 
         Clark Borland, who rendered an opinion on claimant's 
 
         employability, has stated that there are jobs which exist that 
 
         claimant is capable of performing within his medical restrictions 
 
         which, although they may be somewhat restricted, are available in 
 
         claimant's competitive labor market.  Priscilla Waitek did not do 
 
         a labor market survey but also found jobs which claimant would be 
 
         capable of doing within his employment area.  Claimant appears to 
 
         the undersigned only to want to return to work for defendant 
 
         employer in his previous position at his previous wage, a 
 
         position which will be discussed later in this decision.  
 
         However, simply because claimant may not be capable of returning 
 
         to work in his regular occupation for defendant employer does not 
 
         lead the undersigned to a conclusion that claimant is not 
 
         employable. Claimant has not been prohibited from working in any 
 
         manner.  A careful review of the evidence shows clearly that 
 
         claimant can perform services which are not so limited in 
 
         quality, dependability or quantity that a reasonably stable labor 
 
         market for them does not exist.  Therefore, claimant has failed 
 
         to establish that the odd-lot doctrine is applicable in this 
 
         case.
 
         
 
              Accordingly, the question becomes the extent of claimant's 
 
         industrial disability.  The undersigned does not dispute that 
 
         claimant has sustained a permanent partial impairment as a result 
 
         of the work injury.
 
         
 
              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 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).
 
         
 
              Claimant is currently 31 years of age (25 at the time of 
 
         injury) who completed the eleventh grade and secured his GED 
 
         while serving two years in the military as an infantry/truck 
 
         driver/demolition expert.  Claimant has previous work experience 
 
         as a farm laborer, rural letter and newspaper carrier, wrecker 
 
         driver/mechanic and in construction along with a variety of jobs 
 
         he held for defendant employer.  Claimant has medical 
 
         restrictions on his employability particularly with regard to the 
 
         amount of lifting he is able to do, bending, twisting, standing 
 
         and sitting. Clearly, claimant, as a result of his injury and 
 
         restrictions, is prohibited from engaging in some of the work for 
 
         which he is fitted.  However, certain observations of the 
 
         undersigned of claimant and the evidence presented at hearing 
 
         cannot go without comment.
 
         
 
              This deputy commissioner finds claimant to have little or no 
 
         motivation to return to the competitive labor market unless it is 
 
         with defendant employer in his old job at his old rate of pay. 
 
         Claimant appears totally unwilling to accept his current status 
 
         and further appears to expect defendant employer to maintain him 
 
         for the rest of his life.  Defendants are clearly liable for the 
 
         affect of claimant's injury on claimant's earning capacity. 
 
         However, claimant seems to totally reject any notion that he, 
 
         too, must play a part in recovering, both economically and 
 
         physically, from this injury.  Claimant had to have been aware 
 
         for some time that he would not be in the same physical condition 
 
         he was in prior to his injury.  Yet, claimant has totally failed 
 
         to avail himself of opportunities that might have lessened the 
 
         injury's impact on him.  Claimant allowed his G.I. Bill benefits 
 
         to run out.  These benefits were available for some four years 
 
         after his injury and completely expired without claimant 
 
         utilizing the benefits thereof.  Claimant would have the 
 
         undersigned believe he wants to pursue a career as an insurance 
 
         adjuster.  Yet, his actions towards this endeavor have consisted 
 
         of making one phone call.  One phone call does not lead to a 
 
         conclusion that claimant's representations are sincere.  Claimant 
 
         had a state vocational rehabilitation counselor's name for months 
 
         before he made any contact with her.  Claimant was aware of his 
 
         eligibility for services from the state, without charge to him, 
 
         but did nothing to avail himself of those services.  Claimant 
 
         advised the rehabilitation counselor with ConServCo he was going 
 
         to Texas.  As a consequence of that advice, the file was closed.  
 
         When he did not go to Texas, claimant took no action to attempt 
 
         to reactivate the file by.contacting the counselor.  Claimant 
 
         clearly is stressing his limitations rather than any capabilities 
 
         he might possess.  While the undersigned does not dispute that 
 
         limitations are present and problematic to securing employment, 
 
         it cannot be concluded that those limitations are the absolute 
 
         limiting factor in claimant securing employment.  Claimant's own 
 
         attitude appears to be what is limiting him from securing some 
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         type of employment. None of the above speaks well for claimant's 
 
         motivation particularly in light of his relative young age.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              Defendant employer has eliminated as a possibility 
 
         claimant's return to work there due to the injury.  It has been 
 
         held that a defendant employer's refusal to give any sort of work 
 
         to a claimant after he suffers his affliction may justify an 
 
         award of disability.  McSpadden v. Big Ben Coal Co., 288 N.W.2d 
 
         181 (Iowa 1980).
 
         
 
              Claimant appears to be of at least average intelligence and 
 
         capable of retraining should he have the motivation to do so. 
 
         Claimant had an intermittent healing period over the course of 
 
         some four years and asserts that further surgery may be 
 
         necessary.
 
         
 
              Iowa Code subsection 85.34(2)(u) provides:
 
         
 
                   In all cases of permanent partial disability other than 
 
              those hereinabove described or referred to in paragraphs "a" 
 
              through "t" hereof, the compensation shall be paid during 
 
              the number of weeks in relation to five hundred weeks as the 
 
              disability bears to the body of the injured employee as a 
 
              whole.
 
         
 
                   If it is determined that an injury has produced a 
 
              disability less than that specifically described in said 
 
              schedule, compensation shall be paid during the lesser 
 
              number of weeks of disability determined, as will not exceed 
 
              a total amount equal to the same percentage proportion of 
 
              said scheduled maximum compensation.
 
         
 
              Claimant's injury of August 18, 1983 has caused both a loss 
 
         of actual earnings and a loss of claimant's earning capacity. 
 
         Considering then all the elements of industrial disability, it is 
 
         found that claimant has sustained a permanent partial disability 
 
         of 30 percent for industrial purposes entitling claimant to 150 
 
         weeks of permanent partial disability benefits.
 
         
 
              Iowa Code section 85.27 provides, in part:
 
         
 
                   The employer, for all injuries compensable under this 
 
              chapter or chapter 85A, shall furnish reasonable surgical, 
 
              medical, dental, osteopathic, chiropractic, podiatric, 
 
              physical rehabilitation, nursing, ambulance and hospital 
 
              services and supplies therefor and shall allow reasonably 
 
              necessary transportation expenses incurred for such 
 
              services.
 
         
 
              Claimant, at his exhibit 2, has submitted three bills which 
 
         he alleges were incurred as a result of his injury.  The 
 
         undersigned can find nothing in the record which would support 
 
         claimant's contention and therefore will not issue any order 
 
         directing defendants liable for the payments thereof.
 
              
 
              Iowa Code section 85.36(6) provides:
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
                   In the case of an employee who is paid on a daily, or 
 
              hourly basis, or by the output of the employee, the weekly 
 
              earnings shall be computed by dividing by thirteen the 
 
              earnings, not including overtime or premium pay, of said 
 
              employee earned in the employ of the employer in the last 
 
              completed period of thirteen consecutive calendar weeks 
 
              immediately preceding the injury.
 
         
 
              The final issue for resolution is that of rate.  The parties 
 
         have agreed that at the time of his injury claimant was married 
 
         and entitled to three exemptions.  Iowa Code section 85.36(6) 
 
         call for the employee's earnings, from that employer, in the last 
 
         completed period of thirteen consecutive calendar weeks 
 
         immediately preceding the injury to be used in the calculation of 
 
         rate.  It has been this agency's interpretation in an advisory 
 
         opinion that a "...completed period of thirteen consecutive 
 
         calendar weeks..." means the most recent thirteen weeks prior to 
 
         the injury in which the employee worked for that employer the 
 
         hours regularly required by that employer.
 
         
 
              Applying that interpretation, any week during the thirteen 
 
         weeks immediately preceding the injury which was not completed 
 
         due to reasons personal to the employee such as illness or 
 
         vacation are not included in the thirteen week calculation.  Any 
 
         such noncompleted weeks should be removed from the calculation 
 
         and another prior completed week should be added to arrive at a 
 
         period of thirteen weeks.  Therefore, the appropriate weeks that 
 
         should be utilized in the calculation of rate are August 21, 
 
         August 14, July 31, June 19, and May 15 back to March 6, 1983.  
 
         Using these figures, claimant had an average weekly gross wage of 
 
         $293.78 thereby entitling him to a rate of $191.58 per week.
 
         
 
                                 FINDINGS OF FACT
 
         
 
              Wherefore, based on all of the evidence presented, the 
 
         following findings of fact are made:
 
         
 
              1.  Claimant sustained an injury to his back which arose out 
 
         of and in the course of his employment on August 18, 1983.
 
         
 
              2.  In January 1986, claimant underwent a lumbar fusion.
 
              
 
              3. Claimant reached maximum medical recovery August 5, 1987 
 
         and was restricted in the amount he can carry, bend, twist, stand 
 
         and sit.
 
              
 
              4.  Claimant, during his healing period, had returned to 
 
         work for defendant employer on its return-to-work program.
 
              
 
              5.  Defendant employer's program is one of a temporary 
 
         nature, 90 days duration, and employees cannot be permanently 
 
         assigned to it.
 
              
 
              6.  Defendant employer has no work for claimant within his 
 
         medical restrictions.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              7.  Claimant has a permanent partial impairment as a result 
 
         of the work injury.
 
         
 
              8.  Claimant has had an actual loss of earnings and a loss 
 
         of earning capacity as a result of the work injury.
 
              
 
              9.  Claimant can perform services which are not so limited 
 
         in quality, dependability or quantity that a reasonably stable 
 
         labor market for them does not exist.
 
              
 
              10.  Claimant is currently 31 years old (25 at the time of 
 
         injury) who acquired his GED while in the military after 
 
         completing the eleventh grade.
 
              
 
              11.  Claimant, with previous work experience as a farm 
 
         laborer, rural letter and newspaper carrier, wrecker 
 
         driver/mechanic and in construction along with a variety of jobs 
 
         held for defendant employer, is prohibited from engaging in some 
 
         of the work for which he is fitted as a result of his injury and 
 
         restrictions.
 
         
 
              12.  Claimant has little to no motivation to return to the 
 
         competitive labor market.
 
         
 
              13.  Claimant has a permanent partial disability of 30 
 
         percent for industrial purposes.
 
         
 
              14.  Claimant has an average weekly wage of $293.78, was 
 
         married and entitled to three exemptions at the time of his 
 
         injury.
 
         
 
                                CONCLUSIONS OF LAW
 
         
 
              Therefore, based on the principles of law previously stated, 
 
         the following conclusions of law are made:
 
         
 
              1.  Claimant has established that as a result of the work 
 
         injury of August 18, 1983, he sustained a permanent partial 
 
         disability of 30 percent for industrial purposes.
 
         
 
              2.  Claimant has not established he is an odd-lot employee.
 
              
 
              3.  Claimant has not established entitlement to medical 
 
         benefits (Exhibit 2) under Iowa Code section 85.27.
 
         
 
              4.  Claimant's appropriate rate of compensation is $191.58 
 
         per week.
 
         
 
                                      ORDER
 
         
 
              THEREFORE, it is ordered:
 
         
 
              Defendants shall pay unto claimant one hundred fifty (150) 
 
         weeks of permanent partial disability benefits at the rate of one 
 
         hundred ninety-one and 58/100 dollars ($191.58) commencing August 
 
         6, 1987.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              Defendants shall pay all healing benefits at the rate of one 
 
         hundred ninety-one and 58/100 dollars ($191.58).
 
         
 
              Defendants shall receive full credit for all amounts paid as 
 
         disability benefits.
 
         
 
              Payments which have accrued shall be paid in a lump sum 
 
         together with statutory interest thereon pursuant to Iowa Code 
 
         section 85.30.
 
         
 
              A claim activity report shall be filed upon payment of this 
 
         award.
 
         
 
              Costs of this action are assessed against defendants 
 
         pursuant to Division of Industrial Services Rule 343-4.33.
 
         
 
              Signed and filed this 28th day of March, 1989.
 
         
 
         
 
         
 
         
 
         
 
                                            DEBORAH A. DUBIK
 
                                            DEPUTY INDUSTRIAL COMMISSIONER
 
         
 
         Copies to:
 
         
 
         Mr. Rolf Aronsen
 
         Attorney at Law
 
         200 Brick & Tile Bldg
 
         P.O. Box 1501
 
         Mason City, IA  50401
 
         
 
         Mr. Mark A. Wilson
 
         Mr. C. Bradley Price
 
         Attorneys at Law
 
         30 Fourty St NW
 
         P.O. Box 1953
 
         Mason City, IA  50401
 
         
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
 
                                            
 
 
 
 
 
 
 
 
 
 
 
                                            1803; 4100; 3000
 
                                            Filed March 29, 1989
 
                                            Deborah A. Dubik
 
                                            
 
                        BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         IRVIN EUGENE STEARNS,
 
         
 
              Claimant,
 
                                                      File No. 799442
 
         vs.
 
         
 
         MINNESOTA RUBBER COMPANY,                 A R B I T R A T I 0 N
 
         
 
              Employer,                               D E C I S I 0 N
 
         
 
         and
 
         
 
         TRAVELERS INSURANCE COMPANY,
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
         1803
 
         
 
              Claimant sustained an injury to his back which arose out of 
 
         and in the course of his employment.  Claimant underwent a fusion 
 
         after which he had restrictions on his employability with regard 
 
         to lifting, twisting and turning.  Claimant found to have little 
 
         or no motivation to return to the competitive labor market 
 
         outside of returning to his former job with his former employer 
 
         at his former rate of pay.  Employer failed to provide claimant 
 
         with any employment that was within his working restrictions.  
 
         Claimant was found to have a permanent partial disability of 30 
 
         percent for industrial purposes.
 
         
 
         4100
 
         
 
              Claimant failed to meet his burden of proof that he was an 
 
         odd-lot employee as claimant failed to show that the services 
 
         which he can perform are not so limited in quality, dependability 
 
         or quantity that a reasonably stable labor market for them does 
 
         not exist.
 
         
 
         3000
 
         
 
              Claimant's rate was computed by using the thirteen weeks 
 
         prior to his injury during which time he had worked the regular 
 
         amount of hours.  The weeks prior to his injury wherein claimant 
 
         was absent for personal reasons, including doctor appointments, 
 
         illnesses and funerals were not used in the thirteen week 
 
         calculation.
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
         
 
         
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         
 
         WILFRED E. McVAY,
 
         
 
              Claimant,
 
                                                   File No. 799446
 
         VS.
 
                                                      A P P E A L
 
         JOHN DEERE DUBUQUE WORKS
 
         OF DEERE & COMPANY,                       D E C I S I 0 N
 
         
 
              Employer,
 
              Self-Insured,
 
              Defendant.
 
         
 
         
 
         
 
         
 
                              STATEMENT OF THE CASE
 
         
 
         
 
              Defendant appeals and claimant cross-appeals from an 
 
         arbitration decision dismissing claimant's petition.
 
         
 
              The record on appeal consists of the transcript of the 
 
         arbitration proceeding and joint exhibits 1 through 10.  Both 
 
         parties filed briefs on appeal and defendants filed a reply 
 
         brief.
 
         
 
                                      ISSUES
 
         
 
              Defendant's issues, as stated on appeal, are:
 
         
 
              1.  The decision of the deputy industrial commissioner 
 
              should be reversed as contrary to the statute of 
 
              limitations, Iowa Code section 85B.5, 85B.8, and, 
 
              85.26(1), as well as being contrary to the statutory 
 
              purposes in establishing the two year statute of 
 
              limitations.
 
         
 
              2.  The decision of the deputy Iowa Industrial 
 
              Commissioner should be reversed because the decision 
 
              was unsupported by substantial evidence that the 
 
              claimant met his burden of proof to show that the 
 
              hearing loss arose out of and in the course of 
 
              employment and that there was any causal connection 
 
              between claimant's hearing loss and the disability 
 
              claimed.
 
         
 
              Claimant stated the following issues on cross-appeal.
 
         
 
              I.  The decision of the deputy industrial
 
              commissioner that the statute of limitations as 
 
              contained in chapters 85 and 85B of the 1985 Code of 
 
              Iowa as amended had not run against the claimant was 
 
              correct.
 
         
 
              II.  The claimant met his burden of proof to show that 
 

 
              the hearing loss arose out of and in the course of his 
 
              employment and that there was a causal connection 
 
              between his hearing loss and the disability claimed.
 
         
 
              III.  Even if the deputy commissioner is incorrect and 
 
              a transfer has occurred nonetheless the statute of 
 
              limitations does not run until the employee discovers 
 
              that there has been an injury.
 
         
 
         
 
                           REVIEW OF THE EVIDENCE
 
         
 
              The arbitration decision adequately and accurately reflects 
 
         the pertinent evidence and it will not be totally reiterated 
 
         herein.
 
         
 
              Briefly stated, claimant began his present employment with 
 
         defendant in 1960.  Joint exhibit 10 established that claimant 
 
         has held numerous job classifications with defendant and has been 
 
         transferred several times.  Noise level exposures in these 
 
         positions varied from 60 dBA to 89 dBA.  Claimant was still 
 
         employed by defendant and at the time of the hearing, worked at a 
 
         task that exposed him to a noise level of 76 dBA.  Mervin 
 
         McClenahan, M.D., stated that noise level exposures less than 
 
         those set forth in Chapter 85B could cause hearing loss.  
 
         Claimant filed this action on August 16, 1985.
 
         
 
         
 
                                  APPLICABLE LAW
 
         
 
              Iowa Code section 85B.8 states:
 
         
 
                 Date of Occurrence.  A claim for occupational 
 
              hearing loss due to excessive noise levels may be filed 
 
              six months after separation from the employment in 
 
              which the employee was exposed to excessive noise 
 
              levels.  The date of the injury shall be the date of 
 
              occurrence of any one of the following events:
 
         
 
              1.  Transfer from excessive noise level employment by an 
 
         employer.
 
         
 
              2.  Retirement.
 
         
 
              3.  Termination of the employer-employee relationship.
 
         
 
              The date of injury for a layoff which continues for a 
 
              period longer than one year shall be six months after 
 
              the date of the layoff.  However, the date of the 
 
              injury for any loss of hearing incurred prior to 
 
              January 1, 1981 shall not be earlier than the 
 
              occurrence of any one of the above events.
 
         
 
              Iowa Code section 85.26(l) states:
 
         
 
                 Limitation of actions.
 
                 1.  An original proceeding for benefits under this 
 
              chapter or chapter 85A, 85B, or 86, shall not be 
 
              maintained in any contested case unless the proceeding 
 
              is commenced within two years from the date of the 
 
              occurrence of the injury for which benefits are claimed 
 
              or, if weekly compensation benefits are paid under 
 
              section 86.13, within three years from the date of the 
 
              last payment of weekly compensation benefits.
 
         
 
              Pursuant to In Re Declaratory Ruling of John Deere Dubuque 
 

 
         
 
         
 
         
 
         McVAY V. JOHN DEERE DUBUQUE WORKS OF DEERE & COMPANY
 
         Page   3
 
         
 
         Works of Deere & Company, III Iowa Industrial Commissioner 
 
         Report, 147 (1983), if a worker who has been exposed to permanent 
 
         sensorineural hearing loss is transferred from the area of 
 
         exposure to a non-exposure area, the statute of limitations under 
 
         Iowa Code section 85.26 begins to run from the date of such 
 
         transfer; if a worker is not transferred from the area of 
 
         exposure, the statute of limitations would not begin to run until 
 
         retirement or termination of the employment relationship.. The 
 
         first of these events to occur will "trigger" the running of the 
 
         statute of limitations.
 
         
 
              Excessive noise level means sound capable of producing 
 
         occupational hearing loss.  Section 85B.4(2), The Code.
 
         
 
              The noise levels set forth under section 85B.5, The Code, 
 
         are presumptive only.  They do not constitute minimum levels at 
 
         which a noise level will be viewed as excessive.  Muscatine 
 
         County v. Morrison, 409 N.W.2d 685 (Iowa 1987).
 
         
 
              Because the times and intensities under section 85B.5, The 
 
         Code, are not minimum levels for excessive noise, a change in 
 
         work assignment from an area where the noise level exceeds the 
 
         times and intensities set forth in section 85B.5, The Code, to an 
 
         area where said times and intensities are not exceeded would not 
 
         necessarily constitute a transfer under section 85B.8, The Code.  
 
         Daughetee v. John Deere Dubuque Works, File No. 779848, Appeal 
 
         Decision June 30, 1987.
 
         
 
                                     ANALYSIS
 
         
 
              Claimant alleges he has suffered a hearing loss arising out 
 
         of and in the course of his employment.  Iowa Code section 85B.8 
 
         states that a claim of hearing loss may be filed six months after 
 
         
 
         
 
         separation from the employment in which the employee was exposed 
 
         to excessive noise levels.  The date of the injury is the date of 
 
         the earliest of three events -- retirement, termination of the 
 
         employment relationship or transfer from the excessive noise 
 
         level employment by the employer.
 
         
 
              In the instant case, claimant is still employed by defendant 
 
         and thus, neither retirement or termination of the employment 
 
         relationship has occurred.  Defendant alleges that claimant was 
 
         transferred from excessive noise level employment on June 15, 
 
         1980, when his noise exposure was reduced from 87 dBA to 80 dBA, 
 
         and his claim is therefore barred by section 85.26(l), The Code.
 
         
 
              However, the record shows that claimant is subject to 
 
         reassignment to varying levels of noise exposure.  He has been so 
 
         reassigned numerous times in the history of his employment with 
 
         defendant.  His job change on June 15, 1980 was merely a 
 
         reassignment within the same work force.  It has been changed 
 
         five times since 1980, and is subject to further reassignment.
 
         
 
              Claimant works in an environment that continues to expose 
 
         him to potentially excessive noise levels.  He is subject to 
 
         transfer to even greater noise exposure at any time.  His action 
 
         is thus premature and it follows that it is not barred by the 
 
         statute of limitations under Iowa Code section 85.26. In light of 
 

 
         
 
         
 
         
 
         McVAY V. JOHN DEERE DUBUQUE WORKS OF DEERE & COMPANY
 
         Page   4
 
         
 
         this determination, the other issues on appeal are moot at this 
 
         time and will not be addressed.
 
         
 
         
 
                                 FINDINGS OF FACT
 
         
 
              1.  Claimant has been employed by the John Deere Dubuque 
 
         Works of Deere and Company since 1960.
 
         
 
              2.  Throughout his employment with defendant, claimant has 
 
         held several positions and has been transferred numerous times.
 
         
 
              3.  Claimant's exposure to noise has varied according to the 
 
         positions he has held.
 
         
 
              4.  Claimant is currently exposed to a noise level of 76 
 
         dBA.
 
         
 
              5.  Claimant is currently subject to transfer to other 
 
         departments with excessive noise levels.
 
         
 
              6.  Claimant has not retired or terminated his employment.
 
         
 
              7.  Claimant has not been permanently transferred from 
 
         excessive noise level employment by the employer.
 
         
 
         
 
         
 
                                        
 
                                CONCLUSION OF LAW
 
         
 
              Claimant has failed to prove, by a preponderance of the 
 
         evidence, that six months has passed after one of the three 
 
         triggering events set forth in section 85B.8, The Code, and thus 
 
         this matter is not ripe for adjudication under Chapter 85B, The 
 
         Code.
 
         
 
              WHEREFORE, the decision of the deputy is affirmed.
 
         
 
                                      ORDER
 
         
 
              THEREFORE, it is ordered:
 
         
 
              That this matter be and the same is hereby dismissed without 
 
         prejudice.
 
         
 
              That the costs of the appeal, including the transcription of 
 
         the hearing proceeding, are taxed to defendant.
 
         
 
         
 
              Signed and filed this 22nd day of February, 1988.
 
         
 
         
 
         
 
         
 
         
 
         
 
                                                  DAVID E. LINQUIST
 
                                                  INDUSTRIAL COMMISSIONER
 
         
 

 
         
 
         
 
         
 
         McVAY V. JOHN DEERE DUBUQUE WORKS OF DEERE & COMPANY
 
         Page   5
 
         
 
         Copies To:
 
         
 
         Mr. David A. Lemanski
 
         Attorney at Law
 
         200 Security Building
 
         Dubuque, Iowa 52001
 
         
 
         Mr. Leo A. McCarthy
 
         Ms. Jane Mylrea
 
         Attorneys at Law
 
         222 Fischer Building
 
         P.O. Box 239
 
         Dubuque, Iowa 52004-0239
 
         
 
         
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                               2208 - 2906 2901
 
                                               Filed February 22, 1988
 
                                               DAVID E. LINQUIST
 
         
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         WILFRED E. McVAY,
 
         
 
              Claimant,
 
                                                    File No. 799446
 
         VS.
 
                                                       A P P E A L
 
         JOHN DEERE DUBUQUE WORKS
 
         OF DEERE & COMPANY,                        D E C I S I 0 N
 
         
 
              Employer,
 
              Self-Insured,
 
              Defendant.
 
         
 
         
 
         
 
         2208 - 2906 - 2901
 
         
 
              Claimant alleged an occupational hearing loss.  The record 
 
         showed that he had been transferred between departments numerous 
 
         times and exposed to various levels of noise.  It was held that, 
 
         since he was still subject to being transferred to a department 
 
         with excessive noise levels, he had not been transferred from 
 
         excessive noise level employment.  As six months had not passed 
 
         since one of the three triggering events under section 85B.8, the 
 
         case was dismissed without prejudice as not being ripe for 
 
         adjudication.