3800
 
                                          Filed July 30, 1990
 
                                          CLAIR R. CRAMER
 
            before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            DEAN MOHL,                    :
 
                                          :
 
                 Claimant,                :      File No. 801704
 
                                          :
 
            vs.                           :        A P P E A L
 
                                          :
 
            IBP, INC.,                    :      D E C I S I O N
 
                                          :
 
                 Employer,                :
 
                 Self-Insured,            :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
            3800
 
            
 
            Summary affirmance of deputy's decision, with additional 
 
            ruling that defendant's tender of checks in amount of 
 
            deputy's award after the deputy's decision did not toll 
 
            accrual of interest on the award during the pendency of the 
 
            appeal.  Interest is not a penalty, but the beneficial use 
 
            of money.  Defendants had the beneficial use of claimant's 
 
            compensation during the appeal and pursuant to 85.30 
 
            claimant is entitled to interest thereon.
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                   BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         DEAN MOHL,                               File No. 801704
 
         
 
              Claimant,                        A R B I T R A T I O N
 
         
 
         vs.                                      D E C I S I O N
 
         
 
         IBP, INC.,                                  F I L E D
 
         
 
              Employer,                             JUN 21 1989
 
              Self-Insured,
 
              Defendant.                   IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
                              STATEMENT OF THE CASE
 
         
 
              This is a proceeding in arbitration brought by Dean Mohl, 
 
         claimant, against IBP, Inc., employer (hereinafter referred to as 
 
         IBP), a self-insured defendant, for workers' compensation 
 
         benefits as a result of an alleged injury on August 5, 1985.  On 
 
         October 25, 1988, a hearing was held on claimant's petition and 
 
         the matter was considered fully submitted at the close of this 
 
         hearing.
 
         
 
              The parties have submitted a prehearing report of contested 
 
         issues and stipulations which was approved and accepted as a part 
 
         of the record of this case at the time of hearing.  Oral 
 
         testimony was received during the hearing from claimant and the 
 
         following witnesses:  Marjorie Mohl, Leon Spencer, Steven Sippel 
 
         and Daniel Hefferman.  The exhibits received into the evidence at 
 
         the hearing are listed in the prehearing report except for 
 
         defense exhibit 10 which was excluded from the evidence at the 
 
         time of hearing.
 
         
 
              According to the prehearing report, the parties have 
 
         stipulated to the following matters:
 
         
 
              1.  An employer/employee relationship existed between IBP 
 
         and claimant at the time of the alleged work injury.
 
         
 
              2.  Claimant is seeking temporary total disability or 
 
         healing period benefits from August 5, 1985 through August 11 
 
         1985 and from October 10, 1985 through April 15, 1987.
 
         
 
              3.  If the injury is found to have caused permanent 
 
         disability, the type of disability is an industrial to the body 
 
         as a whole.
 
         
 
              4.  Claimant's rate of weekly compensation in the event of 
 
         an award of weekly benefits shall be $114.57 per week.
 
         
 
              5.  With reference to the requested medical benefits, the 
 
         providers of health services to claimant would testify that their 
 
                                                
 
                                                         
 
         charges were fair and reasonable and defendant is not offering 
 
         contrary evidence.  However, the causal connection of these 
 
         expenses to a work injury remains at issue.
 
         
 
                                  ISSUES
 
         
 
              The parties submitted the following issues for determination 
 
         in this proceeding:
 
         
 
                I.  Whether claimant received an injury arising out of and 
 
         in the course of his employment;
 
         
 
               II.  Whether there is a causal relationship between the 
 
         work injury and the claimed disability;
 
         
 
              III.  The extent of claimant's entitlement to weekly 
 
         benefits for disability; and,
 
         
 
               IV.  The extent of claimant's entitlement to medical 
 
         benefits.
 
         
 
                             STATEMENT OF FACTS
 
         
 
              The following is a brief statement highlighting some of the 
 
         more pertinent evidence presented.  Whether or not specifically 
 
         referred to in this statement, all of the evidence received at 
 
         the hearing was independently reviewed and considered in arriving 
 
         at this decision.  Any conclusions about the evidence received 
 
         contained in the following statement should be viewed as 
 
         preliminary findings of fact.
 
         
 
              Claimant testified that he was employed at IBP from July 24, 
 
         1985, until his termination on November 13, 1986, as the result 
 
         of being on a leave of absence without pay for more than one 
 
         year. According to company records, claimant actually last worked 
 
         on October 10, 1985.  At the time of his initial hire, claimant 
 
         was assigned to the job of "boxing neck bones."  After only three 
 
         days on this job, claimant alleges that he sustained a back 
 
         injury. Claimant earned $6.00 per hour and was assigned to work 6 
 
         days a week Monday through Friday at the time of the alleged 
 
         injury. Normal fringe benefits did not begin well after initial 
 
         employment at IBP.  Claimant testified that he had to regularly 
 
         lift 32 pound boxes full of neck bones onto a conveyor and was 
 
         performing this job on August 5, 1985, or about that time, when 
 
         he felt a "pop" in his back and back pain began.
 
         
 
              The cut floor supervisor at IBP, Steven Sippel, testified 
 
         that claimant was not required to actually lift the boxes, only 
 
         slide them onto a scale and then onto a conveyor.  He admitted 
 
         that the box weight was 32 pounds.  The personnel director, 
 
         Daniel Hefferman, testified that according to information 
 
         provided to him, claimant was absence on August 5, 1985, and did 
 
         not call in until the sixth with back problems.
 
         
 
              Claimant testified that he had no prior back problems and he 
 
                                                
 
                                                         
 
         had a preemployment physical at IBP.  X-rays of claimant's back 
 
         as a part of this physical failed to show any back 
 
         abnormalities.
 
         
 
              Claimant testified that he reported his back pain to his 
 
         foreman when it occurred and was told that soreness was to be 
 
         expected for new employees.  Claimant said that he first obtained 
 
         treatment a few days later from a local chiropractor, Lee Meylor, 
 
         D.C.  According to Dr. Meylor, he treated claimant on August 8, 
 
         1985 who reported a work injury at IBP on the previous August 5. 
 
         The doctor noted abnormalities from a review of his x-rays but 
 
         stated that he could not determine whether these abnormalities 
 
         preexisted the August 5, 1985 injury.  According to company 
 
         records, claimant was absent from August 5 through August 8, 
 
         1985. Claimant then requested and received treatment from IBP 
 
         company physician, W. E. Erps, M.D.  On August 13, 1985, Dr. Erps 
 
         initially diagnosed back strain and placed claimant on light 
 
         duty. According to company records, claimant worked from August 
 
         9, 1985, through August 14 and then was absent again until August 
 
         27, 1985. Claimant then worked continuously until October 10, 
 
         1985.
 
         
 
              Dr. Erps saw claimant on two or three occasions following 
 
         the initial visit.  The doctor reports that claimant had a prior 
 
         existing spondylolysis condition in the low back which, according 
 
         to the radiologist, could not have been found in the 
 
         preemployment x-rays taken only a couple of weeks before.  On 
 
         October 11, 1985, claimant was evaluated by John J. Dougherty, 
 
         M.D., an orthopedic surgeon.  Dr. Dougherty agreed with Dr. Erp's 
 
         assessment and diagnosed back strain superimposed upon bilateral 
 
         spondylolysis which existed before claimant's employment at IBP.  
 
         Dr. Dougherty prescribed medication and use of a back brace.  On 
 
         October 14, 1985, claimant testified that while walking and 
 
         wearing his back brace he again felt a "pop" in his back and the 
 
         pain worsened. Claimant was then admitted to the hospital by Dr. 
 
         Dougherty on October 15, 1985, but was released early on the 17th 
 
         because IBP indicated to hospital officials that they would not 
 
         pay the bill. IBP management felt that the problems being treated 
 
         were of long-standing and prior existing.  On October 23, 1985, 
 
         claimant was placed on continuous light duty by Dr. Erps with no 
 
         lifting over 20 pounds and minimal bending and stooping.  
 
         Claimant then reported back to IBP but was placed on leave 
 
         without pay stating that IBP had no light duty work available for 
 
         claimant.  As stated above, claimant was not actually terminated 
 
         until a year later but did not work at IBP after October 10, 
 
         1985.  Claimant applied for and received unemployment 
 
         compensation benefits after leaving IBP.
 
         
 
              Claimant testified that he still cannot lift heavy objects 
 
         and has difficulty sitting in a car for more than 15 to 20 
 
         minutes.  Claimant said that his back pain comes and goes.  In 
 
         1986, claimant was seen by an orthopedic surgeon in Waterloo, 
 
         Jitu Kothari, M.D., who suggested a surgical option.  Dr. Kothari 
 
         reports that the spondylolysis probably preexisted the August 5, 
 
         1985 incident at IBP and that this condition constitutes a 10 
 
                                                
 
                                                         
 
         percent permanent partial impairment to the body as a whole. 
 
         However, Dr. Kothari also opines that claimant suffered a 
 
         permanent aggravation injury of this condition on October 14, 
 
         1985, resulting in an additional 10 percent permanent partial 
 
         impairment.
 
         
 
              In December 1986, claimant was evaluated by Peter Wirtz, 
 
         M.D., another orthopedic surgeon.  Dr. Wirtz stated in his 
 
         written report that claimant has bilateral spondylolysis and that 
 
         claimant suffered only a temporary aggravation injury on August 
 
         5, 1985.
 
         
 
              After a reexamination of claimant in February 1987, Dr. 
 
         Dougherty's views remain unchanged and although he believed 
 
         claimant suffered an aggravation injury in August of 1985 at IBP, 
 
         he opines that claimant has suffered no permanent partial 
 
         impairment from the aggravation injury.  He states that the 
 
         spondylolysis condition causes recurrent episodes of temporary 
 
         back pain such as the August 5, 1985 incident.
 
         
 
              In February 1988, claimant was examined by A. J. Wolbrink, 
 
         M.D., another orthopedic surgeon, who likewise diagnosed 
 
         spondylolysis which preexisted the August, 1985 incident at IBP. 
 
         Dr. Wolbrink stated that it was not unusual to have this 
 
         condition without symptoms until you are subjected to heavy work 
 
 
 
                             
 
                                                         
 
         and that the symptoms would then persist.  He stated in his 
 
         written report that he was under the impression that claimant had 
 
         not performed heavy work prior to the IBP employment.
 
         
 
              Claimant testified that his prior employment has almost 
 
         always involved some form of heavy work.  He began his employment 
 
         as a carpenter following completion of one year training in the 
 
         job corps.  This job only lasted for six months and, following 
 
         one year of employment, he worked stacking fuel drainage tiles 
 
         into a kiln at a tile manufacturing firm.  Claimant then worked 
 
         road construction for one season and for three or four months in 
 
         a boiler room at Land O'Lakes.  Claimant then visited his father 
 
         in California and helped him clear trees for six months.  After 
 
         this time, claimant returned to the State of Iowa and was 
 
         unemployed for a long time.  Shortly before beginning his 
 
         employment at IBP, claimant said he sold vacuum cleaners 
 
         door-to-door but that this sales activity was not successful.
 
         
 
              Vocational testing reports in evidence indicate that claimant 
 
         is mentally retarded.  Claimant admits to his difficulty in 
 
         intellectual pursuits and to difficulties with reading.  
 
         Claimant's mother testified that she did not believe that her son 
 
         was mentally retarded but admitted that he was slow.  Claimant 
 
         testified that prior to his employment at IBP he had difficulty 
 
         finding work in part due to his reading problems.
 
         
 
              Since leaving IBP, claimant began working for a gas station, 
 
         pumping gas, checking oil and other fluid levels along with 
 
         repairing tires.  He indicated that he also installs exhaust 
 
         systems.  Claimant states that he is able to make change in this 
 
         job and to handle the necessary paperwork.  He denies any heavy 
 
         mechanic work in this job.  He has stated to vocational 
 
         counselors that he has extreme difficulty performing this job due 
 
         to back pain.
 
         
 
                         APPLICABLE LAW AND ANALYSIS
 
         
 
                I.  Claimant has the burden of proving by a preponderance 
 
         of the evidence that claimant received an injury which arose out 
 
         of and in the course of employment.  The words "out of" refer to 
 
         the cause or source of the injury.  The words "in the course of" 
 
         refer to the time and place and circumstances of the injury.  
 
         See Cedar Rapids Community Sch. v. Cady, 278 N.W.2d 298 (Iowa 
 
         1979); Crowe v. DeSoto Consol. Sch. Dist., 246 Iowa 402, 68 
 
         N.W.2d 63 (1955).  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 
 
         therein.
 
         
 
              The medical experts are unanimous in agreeing that claimant 
 
         suffered at least a temporary aggravation injury on August 5, 
 
         1985.  Company records which indicate claimant's absence from 
 
         work at that time do not controvert this live testimony.  These 
 
                                                
 
                                                         
 
         records and information may be inaccurate as to when claimant 
 
         left that day.  Claimant testified that he was not positive about 
 
         the particular day but that the incident happened very close to 
 
         that time.  Claimant's histories provided to physicians in this 
 
         case are consistent as to the date of injury.  Therefore, the 
 
         preponderance of the evidence shows that claimant suffered a low 
 
         back injury on August 5, 1985 at IBP.  The fighting issue in this 
 
         case is whether claimant suffered a temporary or permanent 
 
         injury.
 
         
 
               II.  The claimant has the burden of proving by a 
 
         preponderance of the evidence that the work injury is a cause of 
 
         the claimed disability.  A disability may be either temporary or 
 
         permanent.  In the case of a claim for temporary disability, the 
 
         claimant must establish that the work injury was a cause of 
 
         absence from work and lost earnings during a period of recovery 
 
         from the injury.  Generally, a claim of permanent disability 
 
         invokes an initial determination of whether the work injury was a 
 
         cause of permanent physical impairment or permanent limitation in 
 
         work activity.  However, in some instances, such as a job 
 
         transfer caused by a work injury, permanent disability benefits 
 
         can be awarded without a showing of a causal connection to a 
 
         physical change of condition.  Blacksmith v. All- American, Inc., 
 
         290 N.W.2d 348, 354 (Iowa 1980); McSpadden v. Big Ben Coal Co., 
 
         288 N.W.2d 181 (Iowa 1980).
 
         
 
              The question of causal connection is essentially within the 
 
         domain of expert medical opinion.  Bradshaw v. Iowa Methodist 
 
         Hospital, 251 Iowa 375, 101 N.W.2d 167 (1960).  The opinion of 
 
         experts need not be couched in definite, positive or unequivocal 
 
         language and the expert opinion may be accepted or rejected, in 
 
         whole or in part, by the trier of fact.  Sondag v. Ferris 
 
         Hardware, 220 N.W.2d 903 (Iowa 1974).  The weight to be given to 
 
         such an opinion is for the finder of fact, and that may be 
 
         affected by the completeness of the premise given the expert and 
 
         other surrounding circumstances.  Bodish v. Fischer, Inc., 257 
 
         Iowa 516, 133 N.W.2d 867 (1965).
 
         
 
              Furthermore, if the available expert testimony is 
 
         insufficient along to support a finding of causal connection, 
 
         such testimony may be coupled with nonexpert testimony to show 
 
         causation and be sufficient to sustain an award.  Giere v. Asse 
 
         Haugen Homes, Inc., 259 Iowa 1065, 146 N.W.2d 911, 915 (1966). 
 
         Such evidence does not, however, compel an award as a matter of 
 
         law.  Anderson v. Oscar Mayer & Co., 217 N.W.2d 531, 536 (Iowa 
 
         1974).  To establish compensability, the injury need only be a 
 
         significant factor, not be the only factor causing the claimed 
 
         disability.  Blacksmith, 290 N.W.2d 348, 354.  In the case of a 
 
         preexisting condition, an employee is not entitled to recover for 
 
         the results of a preexisting injury or disease but can recover 
 
         for an aggravation thereof which resulted in the disability found 
 
         to exist.  Olson v. Goodyear Service Stores, 255 Iowa 1112, 125 
 
         N.W.2d 251 (1963).
 
         
 
              In the case sub judice, claimant contends that he has 
 
                                                
 
                                                         
 
         suffered disabilities as a result of the work injury due to 
 
         permanent impairment to the body as a whole.  First, the evidence 
 
         establishes that he does suffer from permanent impairment. All of 
 
         the medical experts agree in this case except for the 
 
         chiropractor that claimant has a condition called spondylolysis 
 
         which is permanent and causes recurrent episodes of pain.  
 
         However, the greater weight of evidence fails to show that this 
 
         spondylolysis was caused by the August 1985 injury.  Secondly, 
 
         the greater weight of evidence also fails to show that claimant 
 
         suffered any form of permanent impairment as a result of the 
 
         aggravation injury.  Only Dr. Kothari supports claimant's claim 
 
         of permanent disability.  Dr. Wolbrink's analysis had to be 
 
         disregarded because he was operating on an incorrect history that 
 
         claimant had not been performing heavy work before August 1985.  
 
         Claimant simply has insufficient support among the medical 
 
         experts in this case. Claimant's attorney attacks Drs. Wirtz and 
 
         Dougherty as being regular witnesses for IBP in workers' 
 
         compensation cases and suggests impropriety.  This claim is 
 
         unsupported in the record and nothing was shown to show that 
 
         these doctors are unqualified to render opinions or were acting 
 
         in an unprofessional manner in this case.
 
         
 
              Admittedly, claimant testified that he had no back problems 
 
         before August of 1985.  Whether or not this is true, his 
 
         inability to perform heavy work at the time he was hired by IBP 
 
         was demonstrated to the undersigned by the fact that he injured 
 
         his back almost immediately after performing the first job 
 
         assigned to him.  Also, a second temporary aggravation occurred 
 
         in October 1985, while claimant was walking at home.  This second 
 
         aggravation actually resulted in much more serious treatment in 
 
         the form of hospitalization.  Such a second injury is again 
 
         consistent with Dr. Dougherty's views that claimant will 
 
         experience recurrent episodes of pain as a result of his 
 
         spondylolysis.
 
         
 
              Although claimant has not shown causal connection of the 
 
         injury to permanent disability, he has shown that he was 
 
         temporary totally disabled for a short time as a result of the 
 
         injury. Claimant is entitled to weekly benefits for such 
 
         disability under Iowa Code section 85.33(1) for the time he was 
 
         off work following the temporary aggravation injury.  Company 
 
         records indicate that claimant was off work 14 days or 2 full 
 
         weeks.  The days off following the October 1985 aggravation of 
 
         his back while at home has not shown to be work related.  No 
 
         physician has stated that the October 1985 incident was in any 
 
         way connected to the August 5, 1985 aggravation.
 
         
 
              III.  Pursuant to Iowa Code section 85.27, claimant is 
 
         entitled to payment of reasonable medical expenses incurred for 
 
         treatment of a work injury.  However, claimant is entitled to an 
 
         order of reimbursement only if claimant has paid those expenses. 
 
         Otherwise,,claimant is entitled to an order directing the 
 
         responsible defendants to make such payments.  See Krohn v. 
 
         State 420 N.W.2d 463 (Iowa 1988).  Furthermore, as defendant has 
 
         denied a work injury, it does not have the right to chose the 
 
                                                
 
                                                         
 
         care.  From the list of requested medical benefits contained in 
 
         the prehearing report, only the care of the chiropractor, Dr. 
 
         Meylor, in the amount of $532 was related to the August 5, 1985 
 
         incident.  The balance of the requested expenses are the result 
 
         of treatment following the October 1985 aggravation at home and 
 
         to care of the underlying permanent spondylolysis condition which 
 
         was not shown to be work related.
 
         
 
                            FINDINGS OF FACT
 
         
 
              1.  On August 5, 1985, claimant suffered an injury to the 
 
         low back which arose out of and in the course of employment with 
 
         IBP. This injury was an aggravation of a preexisting permanent 
 
         condition of the spine called spondylolysis.  This condition 
 
         results in recurrent episodes of back pain with back activity.
 
         
 
              2.  The work injury of August 5, 1985, was a cause of a 
 
         period of temporary total disability from work beginning on 
 
         August 5, 1985 and ending on August 26, 1985, at which time 
 
         claimant returned to work.  Claimant had briefly returned to work 
 
         between August 9, 1985 through August 14, 1985.  Claimant was off 
 
         work as a result of the August 5, 1985 injury for a total of 14 
 
         days or 2 full weeks.
 
         
 
              3.  The work injury of August 5, 1985, was not shown to be a 
 
         cause of permanent partial impairment or of permanent 
 
         restrictions upon claimant's physical activity.  Claimant has not 
 
         shown that the spondylolysis condition was work related or caused 
 
         by any employment at IBP.  This condition preexisted claimant's 
 
         employment at IBP.  Claimant had almost immediate problems with 
 
         his first job at IBP which evidences that the spondylolysis 
 
         condition was well developed by the time of the injury.
 
         
 
                            
 
                                                         
 
              4.  As a result of the August 5, 1985 injury, claimant 
 
         received reasonable and necessary treatment from a chiropractor, 
 
         Lee Meylor, D.C., for which he charged a fair and reasonable 
 
         amount of $532.  Defendant in this case has always denied the 
 
         existence of a work injury or.causal connection of any work 
 
         injury to the condition treated by Dr. Meylor.
 
         
 
                            CONCLUSION OF LAW
 
         
 
              Claimant has established under law entitlement to specific 
 
         disability and medical benefits awarded below.
 
         
 
                                   ORDER
 
         
 
              1.  Defendant shall pay to claimant two (2) weeks of 
 
         temporary total disability benefits at the rate of one hundred 
 
         fourteen and 57/100 dollars ($114.57) per week.
 
         
 
              2.  Defendant shall pay the expenses of claimant's 
 
         chiropractor care by Lee Meylor, D.C., following the injury in the 
 
         amount of five hundred thirty-two and no/100 dollars ($532.00).  
 
         If claimant has paid this amount, claimant shall be reimbursed. 
 
         Otherwise, defendant shall pay the doctor directly along with. 
 
         reasonable late charges.
 
         
 
              3.  Defendant shall pay accrued weekly benefits in a lump 
 
         sum.
 
         
 
              4.  Defendant shall pay interest on weekly benefits awarded 
 
         herein as set forth in Iowa Code section 85.30 from August 26, 
 
         1985.
 
         
 
              5.  Defendant shall pay the cost of this action pursuant to 
 
         Division of Industrial Services Rule 343-4.33.
 
         
 
              6.     Defendant shall file activity reports on the 
 
         payment of this award as requested by this agency pursuant to 
 
         Division of Industrial Services Rule 343-3.1.
 
         
 
              Signed and filed this 21st day of June, 1989.
 
         
 
         
 
         
 
         
 
         
 
         
 
                                       LARRY P. WALSHIRE
 
                                       DEPUTY INDUSTRIAL COMMISSIONER
 
         
 
         Copies To:
 
         
 
         Mr. Willis J. Hamilton
 
         Attorney at Law
 
         606 Ontario St.
 
         P. 0. Box 188
 
                                                
 
                                                         
 
         Storm Lake, Iowa  50588
 
         
 
         Mr. Harry W. Dahl
 
         Attorney at Law
 
         974 73rd St.
 
         Suite 16
 
         Des Moines, Iowa  50312
 
         
 
         
 
         
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
                                                
 
 
            
 
 
 
 
 
 
 
               
 
                                            51800
 
                                            Filed June 21, 1989
 
                                            LARRY P. WALSHIRE
 
         
 
                 BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         DEAN MOHL,
 
         
 
              Claimant,
 
                                                 File No. 801704
 
         vs.
 
                                               A R B I T R A T I 0 N
 
         IBP, INC. ,
 
                                                  D E C I S I 0 N
 
              Employer,
 
              Self-Insured,
 
              Defendant.
 
         
 
         
 
         51800 - Nonprecedential
 
         
 
              Claimant failed to establish causal connection of injury to 
 
         permanent disability due to a prior existing spondylolysis 
 
         condition and the lack of supportive expert medical opinion.  A 
 
         small amount of temporary total disability and medical benefits 
 
         were awarded for a temporary aggravation of the preexisting 
 
         condition.
 
         
 
         
 
         
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
                                                
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         RUSSELL F. WEYANT,
 
         
 
              Claimant,                               File No. 801718
 
         
 
         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 from an arbitration decision awarding 
 
         permanent partial disability benefits based upon an occupational 
 
         hearing loss.
 
         
 
              The record on appeal consists of the transcript of the 
 
         arbitration hearing and joint exhibits 1 through 14.  Both 
 
         parties filed briefs on appeal.
 
         
 
                                      ISSUES
 
         
 
              Defendant states the following issues on appeal:
 
         
 
              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(l), as well as being contrary to the statutory 
 
              purposes in establishing the two year statute of 
 
              limitations.
 
         
 
              2.  The decision of the deputy 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.
 
         
 
                             REVIEW OF THE EVIDENCE
 
         
 
              The arbitration decision adequately and accurately reflects 
 
         the pertinent evidence and it will not be totally reiterated 
 
         herein.
 
         
 
              Briefly stated, claimant is 62 years old and was employed by 
 
         defendant from January 27, 1959 until retirement on September 1, 
 
         1983.  Over the course of his employment with defendant, claimant 
 
         has been exposed to noise levels as high as 91 decibels and has 
 
         held more than forty positions at defendant's plant.  Since 1970 
 
         claimant has been exposed to noise levels as high as 89 decibels 
 

 
         and as low as 73 decibels.  Claimant's last position was tool 
 
         crib attendant.  Claimant held this position from November 15, 
 
         1982 to August 30, 1983.
 
         
 
              Claimant had several audiograms while employed by 
 
         defendant.  The results of those audiograms are summarized as 
 
         follows:
 
         
 
                                         Percent hearing loss:
 
                   Date                    Total, Binaural   
 
         
 
                  09/23/71                     39.7  %
 
                  04/23/74                     32.2  %
 
                  12/06/79                     34.38%
 
                  03/05/81                     25.3  %
 
                  09/08/82                     23.8  %
 
                  09/15/82                     20.0  %
 
                  09/28/82                     21.9  %
 
                  06/10/85                     31.6 % after retirement
 
         
 
         (Exhibits  4,  5, 6, 7, 8, 9, 12, 13)
 
         
 
              Exhibit 1 is a record of physical examination taken at the 
 
         time defendant first hired claimant.  Exhibit 1 reveals no 
 
         evidence that claimant suffered any hearing problems at that 
 
         time.
 
         
 
              Mervin McClenahan, M.D., testified that he is employed by 
 
         defendant and that he was involved with the hearing testing of 
 
         claimant.  Dr. McClenahan revealed that he is not an 
 
         otolarynologist and that he referred claimant to James Spoden, 
 
         M.D., and James White, M.D., otolarynologists.  Dr. McClenahan 
 
         opined that noise levels less than 90 decibels can cause 
 
         hearing loss. (Tr., p. 23) Dr. McClenahan also opined that 
 

 
         
 
         
 
         
 
         WEYANT V. JOHN DEERE DUBUQUE WORKS OF DEERE & COMPANY
 
         Page   3
 
         
 
         
 
         claimant's hearing loss was most likely noise induced.(Tr., p. 
 
         49)
 
         
 
              Dr. Spoden examined claimant on September 28, 1982, and he 
 
         opines in his examination report that claimant has 
 
         "sensorineural deafness most likely noise induced of moderate 
 
         severity."  See joint exhibit 12, page 1.  Dr. Spoden 
 
         recommends in his report that claimant use a hearing aid and 
 
         wear hearing protection. See joint exhibit 12, page 1.
 
         
 
              Dr. White examined claimant on June 10, 1985, and he 
 
         opines in his examination report that: "The hearing test shows 
 
         a mild progressional loss since 1982.  He has considerable 
 
         history of noise exposure.  Would feel his hearing loss is 
 
         related to noise induced difficulty.  The recm was for a HAE." 
 
         (Jt. Ex. 13)
 
         
 
              Claimant testified that before he went to work for 
 
         defendant he was a farmer.  Claimant opined that as a farmer he 
 
         was exposed to noise while operating tractors, but that noise 
 
         from operating tractors on the farm was different from the 
 
         noise at defendant's plant because on the farm he operated the 
 
         tractors out doors.
 
         
 
              Robert Havertape, safety director at defendant's plant, 
 
         testified that joint exhibit 14 was prepared under his 
 
         direction and supervision.  Patricia Gage, industrial hygienist 
 
         at defendant's plant, testified concerning the methods and 
 
         instruments used to obtain the noise level measurements set out 
 
         in joint exhibit 14.
 
         
 
                                 APPLICABLE LAW
 
         
 
              Iowa Code section 85B.8 states:
 
         
 

 
         
 
         
 
         
 
         WEYANT V. JOHN DEERE DUBUQUE WORKS OF DEERE & COMPANY
 
         Page   4
 
         
 
         
 
                 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:
 
         
 
                 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.
 
         
 
              Under In Re Declaratory Ruling of John Deere Dubuque 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 nonexposure 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 
 

 
         
 
         
 
         
 
         WEYANT V. JOHN DEERE DUBUQUE WORKS OF DEERE & COMPANY
 
         Page   5
 
         
 
         
 
         Decision June 20, 1987.
 
         
 
                                     ANALYSIS
 
         
 
              Defendant contends that claimant experienced a transfer from 
 
         excessive noise level employment when he was moved from the 
 
         inspector job (89 dBA) to the tool crib job (73 dBA) on November 
 
         14, 1982 and, therefore, claimant's hearing loss claim is 
 
         barred.
 
         
 
              However, the record reveals that claimant was subject to 
 
         reassignment to varying levels of noise exposure.  He experienced 
 
         those transfers numerous times throughout his employment with 
 
         defendant.  Claimant's move from the inspector position to the 
 
         tool crib attendant position was not a transfer within the 
 
         meaning of section 85B.8.  Rather, such action was merely a 
 
         reassignment within the same work force and subject to change.
 
         
 
              The remaining issue for consideration is the extent of 
 
         claimant's hearing loss.  The deputy based this determination on 
 
         the audiogram taken on September 28, 1982.  No audiograms taken 
 
         prior to the date of injury, retirement in this case, can be 
 
         considered.  Only the lowest threshold audiogram taken subsequent 
 
         to the filing of notice of occupational hearing loss claim can be 
 
         used to determine the extent of claimant's hearing loss.  See 
 
         Iowa Code section 85B.9; Dale Furry v. John Deere Dubuque Works 
 
         of Deere and Company, Appeal Decision, November 12, 1986.
 
         
 
              The audiogram taken on June 10, 1985 is the only audiogram 
 
         which was taken after the filing of the notice of an occupational 
 
         hearing loss claim.  The June 1985 audiogram reveals that 
 
         claimant suffers a 31.6 percent total binaural hearing loss.  
 
         Therefore, claimant is entitled to 55.3 weeks of benefits for 
 
         occupational hearing loss.
 
         
 
                                 FINDINGS OF FACT
 
         
 
              1.  Claimant has been employed by the John Deere Dubuque 
 
         Works of Deere and Company for over 23 years.
 
         
 
              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 retired on September 1, 1983.
 
         
 
              5.  Claimant has a noise induced hearing loss.
 
         
 
              6.  The duration and intensity of claimant's work noise 
 
         exposure resulted in prolonged exposure to excessive noise 
 
         levels.
 
         
 
              7.  Claimant's binaural sensorineural hearing loss as 
 
         reflected on his audiogram was 31.6 percent June 10, 1985.
 
         
 
                                CONCLUSIONS OF LAW
 
         
 

 
         
 
         
 
         
 
         WEYANT V. JOHN DEERE DUBUQUE WORKS OF DEERE & COMPANY
 
         Page   6
 
         
 
         
 
              Claimant has established that he sustained an occupational 
 
         hearing loss arising out of and in the course of his employment 
 
         with defendant on September 1, 1983.
 
         
 
              Claimant has established an occupational hearing loss in the 
 
         amount of 31.6 percent for which he is entitled to 55.3 weeks of 
 
         occupational hearing loss benefits.
 
         
 
              WHEREFORE, the decision of the deputy is affirmed and 
 
         modified.
 
         
 
                                      ORDER
 
         
 
              THEREFORE, it is ordered:
 
         
 
              That defendant pay claimant fifty-five point three (55.3) 
 
         weeks of occupational hearing loss benefits at the rate of two 
 
         hundred eighty-three and 76/100 dollars ($283.76) per week.
 
         
 
              That defendant pay accrued amounts in a lump sum together 
 
         with interest pursuant to Iowa Code section 85.30.
 
         
 
              That defendant pay costs of this proceeding including the 
 
         cost of the transcript on appeal pursuant to Division of 
 
         Industrial Services Rule 343-4.33.
 
         
 
              That defendant file claim activity reports as requested by 
 
         this agency pursuant to Division of Industrial Services Rule 
 
         343-3.1.
 
         
 
         
 
              Signed and filed this 22nd day of February, 1988.
 
         
 
         
 
         
 
         
 
         
 
         
 
                                               DAVID E. LINQUIST
 
                                               INDUSTRIAL COMMISSIONER
 
         
 
         Copies To:
 
         
 
         Mr. David A. Lemanski
 
         Mr. Michael J. Coyle
 
         Attorneys at Law
 
         200 Security Building
 
         Dubuque, Iowa 52001
 
         
 
         Mr. Leo A. McCarthy
 
         Attorney at Law
 
         222 Fischer Building
 
         P.O. Box 239
 
         Dubuque, Iowa 52004-0239
 
         
 
         
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                                1402.20-1402.40-1803
 
                                                2208-2402
 
                                                Filed February 22, 1988
 
                                                DAVID E. LINQUIST
 
         
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         RUSSELL F. WEYANT,
 
         
 
              Claimant,                            File No. 801718
 
         
 
         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.
 
         
 
         
 
         
 
         1402.20 - 2208
 
         
 
              Claimant established that he suffered a hearing loss as a 
 
         result of noise exposure in his employment with defendant.
 
         
 
         1402.40 - 1803
 
         
 
              Claimant awarded permanent partial disability benefits based 
 
         on a 31.6 percent binaural hearing loss as revealed in claimant's 
 
         audiogram taken after the filing of the notice of an occupational 
 
         hearing loss claim.  Only the lowest threshold audiogram taken 
 
         subsequent to the filing of notice of occupational hearing loss 
 
         claim can be used to determine the extent of claimant's hearing 
 
         loss.  See Iowa Code section 85B.4; Dale Furry v. John Deere 
 
         Dubuque Works of Deere and Company, Appeal Decision, November 12, 
 
         1986.
 
         
 
         2402
 
         
 
              Contrary to defendant's arguments claimant did not transfer 
 
         from excessive noise level employment when moved from a job at 89 
 
         dBA to a tool crib position at 73 dBA.  The record revealed that 
 
         claimant had been subject to frequent reassignment to varying 
 
         levels of noise exposure and had, in fact, experienced such 
 
         reassignments numerous times throughout his employment.  Held 
 
         that claimant's job change to 73 dBA was merely a reassignment 
 
         within the same workforce.
 
 
 
         
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                  BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         
 
         DAVID MORRIS,
 
         
 
              Claimant,                            File No.  801727
 
         
 
         vs.                                     A R B I T R A T I O N
 
         
 
         SWIFT INDEPENDENT PACKING CO.             D E C I S I O N
 
         
 
              Employer,
 
         
 
         and
 
         
 
         NATIONAL UNION FIRE
 
         INSURANCE COMPANY,
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
                                        
 
                                   INTRODUCTION
 
         
 
              This is a proceeding in arbitration brought by David Morris 
 
         against Swift Independent Packing Company, his former employer, 
 
         and National Union Fire Insurance Company, the employer's 
 
         insurance carrier.
 
         
 
              The case was heard and fully submitted on December 1, 1987 
 
         at Des Moines, Iowa.  The record in the proceeding consists of 
 
         testimony from David Morris, Jack Simpson and Steve Hobbs.  The 
 
         record also contains joint exhibits A, B, C, D and E.
 
         
 
                                      ISSUES
 
         
 
              The claimant seeks compensation for permanent partial 
 
         disability and payment of medical expenses based upon an alleged 
 
         injury sustained through lugging beef.  The issues presented by 
 
         the parties for determination are whether claimant sustained an 
 
         injury arising out of and in the course of employment, the date 
 
         of the alleged injury, determination of whether the alleged 
 
         injury caused permanent disability and, if so, the degree of 
 
         permanent disability, the rate of compensation in the event of an 
 
         award and claimant's entitlement to benefits under section 85.27 
 
         of The Code.  Defendants assert that the claim was not timely 
 
         filed under the provisions of Iowa Code section 85.26, that the 
 
         alleged injury is not a proximate cause of the medical care that 
 
         the claimant received and that the care received was not 
 
         authorized by the defendants.
 
         
 
                             SUMMARY OF EVIDENCE
 
         
 
              The following is a summary of evidence presented in this 
 
         case.  Only the evidence most pertinent to this decision is 
 
         discussed, but all of the evidence received at the hearing was 
 
         considered in arriving at this decision.  Conclusions about what 
 

 
         
 
         
 
         
 
         MORRIS V. SWIFT INDEPENDENT PACKING CO.
 
         PAGE   2
 
         
 
         
 
         the evidence showed are inevitable with any summarization.  The 
 
         conclusions in the following summary should be considered to be 
 
         preliminary findings of fact.
 
         
 
              Many of the evidentiary facts which are material to the 
 
         determination of this case appear in the record without 
 
         contradiction and are essentially undisputed.
 
         
 
              David Morris is a 30-year-old, unmarried man who has lived 
 
         in the Des Moines, Iowa area all of his life, other than for this 
 
         service in the army.  He is a graduate of Des Moines Technical 
 
         High School where he studied carpentry.  His work history starts 
 
         when he was in the seventh grade and worked for three or four 
 
         years for a janitorial service sweeping floors, picking up trash 
 
         and performing other janitorial duties four to five hours every 
 
         night.  He worked as a gas station attendant from the tenth 
 
         through twelfth grades, working primarily at nights.  After 
 
         graduation from high school, he entered the United States Army 
 
         where he was initially trained as an infantryman, but later 
 
         became a light-vehicle mechanic.  When claimant returned from the 
 
         army in 1979, he worked as a construction laborer until the 
 
         employer went out of business in January, 1980.  After an 
 
         extended period of unemployment, he worked at a temporary job as 
 
         part of a survey crew.
 
         
 
              Morris was hired to work as a beef lugger for Swift 
 
         Independent Packing Company in January, 1981.  Work as a beef 
 
         lugger involved carrying beef quarters which weigh 150-250 pounds 
 
         on the person's shoulder.  Within the classification of beef 
 
         lugger, there were three subclassifications, those being hooker, 
 
         driver and cutter.  According to claimant, the lugging buggy was 
 
         not used very often because lugging by hand was faster.  Morris 
 
         stated that he was employed by Swift for more than four years and 
 
         that he always worked on the loading dock in one of the lugger 
 
         positions.  He stated that he seldom worked as the cutter.
 
         
 
              Morris testified that he had no physical problems when he 
 
         commenced work for Swift, but began to develop problems in his 
 
         neck and back within the first year.  He testified that he always 
 
         thought it was just a pulled muscle or a strain until x-rays were 
 
         taken a few months before he resigned.  Morris stated that he 
 
         noticed the problem coming on through pain in his left shoulder, 
 
         in the back of his neck and down his arm.  He stated that it came 
 
         on when lugging or when he had weight on his shoulder.  He 
 
         recalled no particular episode or incident and stated that it 
 
         just kept building up.  Claimant testified that he saw the 
 
         company doctor one or two times a year for the problem and was 
 
         taken off lugging by the doctor and placed on alternate duty on 
 
         occasion.  Claimant testified that, around Christmas of 1984, his 
 
         back started to get real bad and he was again placed on alternate 
 
         duty.  Claimant stated that his foreman, Mark Tomlinson, and the 
 
         company physician, Robert W. Hoffmann, M.D., recommended that he 
 
         seek a different job.
 
         
 
              Claimant resigned from his employment with Swift on May 7, 
 
         1985.  Up to that date, he had not missed any time from work due 
 
         to the condition, other than for the medical appointments.  
 
         Claimant testified that the main reason he resigned was because 
 
         he could not put up with the pain he was having and that Swift 
 
         would not help him change to a different job within the plant.  
 
         Claimant testified that he bid on other jobs, but that they were 
 
         not awarded to him.  Claimant described his physical stature as 
 
         510" in height and 150 pounds in weight.  He stated that Dr. 
 

 
         
 
         
 
         
 
         MORRIS V. SWIFT INDEPENDENT PACKING CO.
 
         PAGE   3
 
         
 
         
 
         Hoffmann told him the only way his back would get better would be 
 
         for him to change jobs or quit.
 
         
 
              Claimant testified that, after leaving Swift, he worked 
 
         construction for a few weeks and experienced pain in his upper 
 
         back and arms when doing overhead work.  He enrolled in an 
 
         automotive and diesel mechanic course at Lincoln Technical 
 
         Institute during the summer of 1985.  He attended the training 
 
         four hours per day and completed the course in October, 1986.  
 
         Claimant stated that the neck and shoulder problems were not much 
 
         of a problem when he was attending school.
 
         
 
              In October, 1985, while attending school, claimant obtained 
 
         a part-time job at Monarch Foods, a food warehouse distributor.  
 
         He initially worked part-time as needed as a mechanic.  In 
 
         February, 1987, he became employed full-time working in the 
 
         warehouse where he loads canned goods, vegetables, boxed meat and 
 
         paper products onto a skid.  Claimant stated that the heaviest 
 
         weight is approximately 50 pounds, except that a box of meat can 
 
         weigh 80 or 90 pounds.  Claimant testified that, at Monarch, he 
 
         has missed no work due to neck, back or shoulder problems and 
 
         that he gets along well if he does not overdo.  He stated that 
 
         his condition is a lot better now than it was when he was working 
 
         at Swift, but that he is still bothered if he does a lot of 
 
         lifting or overhead work.
 
         
 
              Claimant testified that he was paid $5.00 per hour when he 
 
         commenced employment with Swift and $8.55 per hour when he 
 
         resigned.  In his employment with Monarch, he started at $7.00 
 
         per hour and was earning $11.71 per hour at the time of hearing.
 
         
 
              Claimant had been in the army reserve until approximately a 
 
         month prior to the date of the hearing in this case.  In 1985, he 
 
         was commended for his leadership role in a building renovation 
 
         project (exhibit A, page 176).  In 1985, he was excused from 
 
         performing physical training due to a condition described as 
 
         acute brachial neuritis.  In June of 1985 he was authorized to 
 
         perform physical training (exhibit A, pages 86 and 87).
 
         
 
              Jack Simpson, claimant's supervisor at Monarch Foods, 
 
         testified that the weights claimant would handle as an order 
 
         selector would average approximately 40 pounds and would not 
 
         exceed 50 pounds, except for fresh meat which would weigh 75 or 
 
         80 pounds.  Simpson stated that claimant is a good, industrious 
 
         worker, that claimant has never mentioned having any physical 
 
         problems with his work and that he has not observed claimant 
 
         having any problems performing the work.
 
         
 
              Steve Hobbs, the Monarch Foods personnel manager, testified 
 
         that it appears likely that claimant will be able to continue 
 
         working at Monarch well into the future.  Hobbs stated that he 
 
         has observed claimant working and has not observed him to have 
 
         any problems performing the job.  He stated that claimant has not 
 
         made any complaint of injuries at Monarch Foods.  Hobbs stated 
 
         that the company file does not show if claimant had a 
 
         pre-employment physical.  Morris testified that he did not have a 
 
         physical, that he completed the employment application showing no 
 
         physical ailments as suggested by the supervisor who had been at 
 
         Monarch prior to the time Simpson became the supervisor and that 
 
         the prior supervisor knew of the problems that claimant had with 
 
         his upper back, neck and shoulder (exhibit D).
 
         
 
              Claimant testified that, in February of 1984, he sought 
 

 
         
 
         
 
         
 
         MORRIS V. SWIFT INDEPENDENT PACKING CO.
 
         PAGE   4
 
         
 
         
 
         medical care for pain in his elbows and hands, that diagnostic 
 
         tests were run and that he was diagnosed as having carpal tunnel 
 
         syndrome.  Claimant stated that it has not been repaired.  
 
         Claimant estimated he had seen Dr. Hoffmann approximately 20 
 
         times for various reasons during his years of employment with 
 
         Swift.
 
         
 
              Claimant testified that, when treating with Dr. Hoffmann for 
 
         his neck, upper back and shoulder complaints, he was given pain 
 
         pills and a prescription at times.  Claimant stated that, after 
 
         Dr. Hoffmann discontinued the pain pills, the treatment did not 
 
         seem to be helping and that he sought care from Robert Shelton, 
 
         D.C., a chiropractor, where he received four or five treatments 
 
         and found them to be beneficial.  Claimant stated that he paid 
 
         the charges himself.  Claimant testified that the pain from 
 
         lugging beef was the only condition for which he sought care from 
 
         Dr. Shelton.
 
         
 
              Claimant identified exhibit A, page 40, the statement from 
 
         John S. Barakat, D.O., as being charges with Dr. Shelton and 
 
         claimant had paid the entire fees, except for the $5.00 charged 
 
         to the attorney.
 
         
 
              Claimant testified that, on one occasion, his back had 
 
         worsened during the week prior to the time he was scheduled to go 
 
         on vacation and that, while on vacation, he tried to arrange an 
 
         appointment to see Dr. Hoffmann, but the nurse denied his 
 
         request.  Claimant testified that he then sought care from Robert 
 
         Pettit, D.O., and that, when his vacation ended, he resumed 
 
         obtaining care from Dr. Hoffmann.  Claimant testified that Swift 
 
         had paid $20.00 of the $40.00 bill from Dr. Pettit and that the 
 
         claimant himself had paid the balance.  Claimant testified that, 
 
         in approximately August of 1987, he experienced arm and shoulder 
 
         problems and sought care from Dr. Pettit.  Claimant stated that 
 
         exhibit A, page 36 shows the charges from Dr. Pettit and that 
 
         claimant has paid the balance of the total, except for the $20.00 
 
         paid by Swift.
 
         
 
              Claimant testified that he was sent to Martin S. Rosenfeld, 
 
         D.O., by his attorney and that the bill was $245.00.  He requests 
 
         that it be paid.
 
         
 
              Claimant testified that he was sent by Swift to see Peter D. 
 
         Wirtz, M.D., and was told that his build was too small to perform 
 
         the work of a beef lugger.
 
         
 
              The primary medical evidence in the case comes from Drs. 
 
         Hoffmann, Rosenfeld and Wirtz.  In a report found in exhibit A, 
 
         page 1, Dr. Hoffmann states:
 
         
 
              On March 8, 1985, I advised Mr. Morris to attempt to 
 
              bid off the lugging job since at that time we had the 
 
              results of his x-rays showing some degenerative changes 
 
              and.narrowed discs in the cervical spine.  The nature 
 
              of the physical condition that prompted me to do this 
 
              was, as stated, the early degenerative arthritis, the 
 
              narrowed discs, the fact that this man had a chronic 
 
              shoulder pain from lugging, and also was developing 
 
              some neck pain.
 
         
 
              * * *
 
         
 
              My only restriction on his work activity was that of 
 

 
         
 
         
 
         
 
         MORRIS V. SWIFT INDEPENDENT PACKING CO.
 
         PAGE   5
 
         
 
         
 
              heavy lifting, as the lugging put considerable strain 
 
              on his shoulders.  Since there is no real light work at 
 
              the packing company, all I suggest is that he be placed 
 
              on alternative productive duty with the limitations on 
 
              his lifting.
 
         
 
              In a report dated April 8, 1987 found in exhibit A, page 29, 
 
         Dr. Rosenfeld summarizes:
 
         
 
              There appears to be obvious causal relationship of Mr. 
 
              Morriss complaints with the heavy work that he was 
 
              doing at Swift and Company.  He denies any problems 
 
              with his neck, shoulders, arms, or elbows prior to 
 
              working there and it would appear that the work that 
 
              was involved was too heavy for this gentleman's 
 
              physiologic status.  The x-ray changes most probably 
 
              preceded the injury and aggravated this pre-existing 
 
              degenerative process in his neck.
 
         
 
              In regard to the impairment rating, I would feel that 
 
              he has significant change in his neck and complaints 
 
              consistent with the findings of a five (5) percent 
 
              permanent impairment to the body as a result of the 
 
              continuous lifting while at work for Swift and Company. 
 
               This rating is made using the Manual for Orthopaedic 
 
              Surgeons in evaluating physical impairment.  It is 
 
              obvious to me that he could not return to his previous 
 
              occupation as a beef lugger at Swift Independent 
 
              Packing, and that any over head [sic] work or heavy 
 
              lifting would have to be avoided.
 
         
 
              In a report found at exhibit A, page 37 dated November 26, 
 
         1986, Dr. Wirtz states:
 
         
 
              Diagnosis:  (1) Continued cervical disc degeneration 
 
              with radicular symptoms to the shoulder blade areas. 
 
              (2) Bilateral flexor tendon origin tendonitis secondary 
 
              to strain.
 
         
 
              These diagnoses are symptomatic with stress and strain 
 
              on a temporary basis.  These conditions are not 
 
              significant to cause any restriction in work capability 
 
              within his physiologic strength and dexterity.
 
         
 
              These areas of symptoms have not left this patient with 
 
              any permanent impairment.
 
         
 
              A radiology report dated February 25, 1985 shows the 
 
         existence of degenerative changes in claimant's lower cervical 
 
         spine (exhibit A, page 50).  Robert Shelton, D.C., found similar 
 
         changes in early 1985 (exhibit A, pages 40-43).
 
         
 
                           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 words "arising out of" refer to the proximate cause of 
 
         the injury.Sheerin v. Holin Co., 380 N.W.2d 415, 417 (Iowa 1986); 
 
         McClure v. Union County, 188 N.W.2d 283, 287 (Iowa 1971); 
 

 
         
 
         
 
         
 
         MORRIS V. SWIFT INDEPENDENT PACKING CO.
 
         PAGE   6
 
         
 
         
 
         Musselman v. Central Telephone Co., 261 Iowa 352, 154 N.W.2d 
 
         128,130 (1967).
 
         
 
              The claimant's appearance and demeanor were observed as he 
 
         testified and his testimony was considered in light of all the 
 
         other evidence in the case.  The claimant is found to be a fully 
 
         credible witness in spite of the denial of back problems made on 
 
         his employment application with Monarch Foods.  It is therefore 
 
         found that claimant developed a medical problem in his cervical 
 
         spine as a result of the stresses he endured while lugging beef 
 
         as part of the duties of his employment with Swift Independent 
 
         Packing Company.  It is further found and concluded that claimant 
 
         did sustain an injury which arose out of and in the course of his 
 
         employment with Swift Independent Packing Company as a result of 
 
         the cumulative trauma of lugging beef.
 
         
 
              Claimant's last day of work was May 7, 1985.  It is at that 
 
         time that his physical complaints and condition were such that he 
 
         resigned rather than to continue to injure himself.  He had not 
 
         missed any time from work, other than for medical appointments, 
 
         prior to the date of his resignation.  Until such time as the 
 
         injury was sufficiently severe to cause him to miss work, he 
 
         would not be held under the discovery rule to have recognized the 
 
         nature, seriousness and probable compensable character of the 
 
         injury.  In accordance with McKeever Custom Cabinets v. Smith, 
 
         379 N.W.2d 368 (1985), May 7, 1985 is determined to be the date 
 
         of injury in this case.
 
         
 

 
         
 
         
 
         
 
         MORRIS V. SWIFT INDEPENDENT PACKING CO.
 
         PAGE   7
 
         
 
         
 
              Dr. Hoffmann's diagnosis of the condition as early 
 
         degenerative arthritis is accepted as correct.  It is consistent 
 
         with the assessment of the case made by the other physicians in 
 
         the record.  Drs. Rosenfeld and Wirtz both indicated that the 
 
         work claimant performed with Swift exceeded his physiologic 
 
         strength.  That assessment is likewise adopted as being correct.  
 
         Clearly, David Morris was not well-suited to working as a beef 
 
         lugger.  It is not unexpected that he would sustain an injury of 
 
         the type that he sustained as a result of performing that type of 
 
         employment.  The injury sustained is probably an aggravation of a 
 
         preexisting condition.
 
         
 
              When an aggravation occurs in the performance of an 
 
         employer's work and a causal connection is established, claimant 
 
         may recover to the extent of the impairment.  Ziegler v. United 
 
         States Gypsum Co., 252 Iowa 613, 620, 106 N.W.2d 591, 595 
 
         (1960).
 
         
 
              This case involves no claim for healing period or temporary 
 
         total disability.  The only claim is for permanent partial 
 
         disability.  Claimant's injury is to the upper cervical spine, a 
 
         part of the body as a whole.
 
         
 
              If claimant has an impairment to the body as a whole, an 
 
         industrial disability has been sustained. industrial disability 
 
         was defined in Diederich v. Tri-City Railway Co.,219 Iowa 587, 
 
         593, 258 N.W. 899, 902 (1935) as follows:  "It is therefore plain 
 
         that the legislature intended the term 'disability' to mean 
 
         'industrial disability' or loss of earning capacity and not a 
 
         mere 'functional disability' to be computed in the terms of 
 
         percentages of the total physical and mental ability of a normal 
 
         man."
 
         
 
              Functional impairment is an element to be considered in 
 
         determining industrial disability which is the reduction of 
 
         earning capacity, but consideration must also be given to the 
 
         injured employee's age, education, qualifications, experience and 
 
         inability to engage in employment for which he is fitted.  Olson 
 
         v. Goodyear Service Stores, 255 Iowa 1112, 1121, 125 N.W.2d 251, 
 
         257 (1963).
 
         
 
              A change of employment duties as a result of a physical 
 
         affliction may justify an award of disability.  McSpadden v. Big 
 
         Ben Coal Co., 288 N.W.2d 181 (Iowa 1980); Blacksmith v. All 
 
         American, Inc., 290 N.W.2d 348 (Iowa 1980).  Dr. Rosenfeld 
 
         assigned claimant a five percent permanent impairment rating of 
 
         the body as a whole.  Dr. Wirtz and Dr. Hoffmann specifically 
 
         stated that claimant had no permanent impairment, but they did 
 
         recommend that claimant's work activity be restricted to avoid 
 
         heavy lifting, such as lugging.
 
         
 
              The claimant himself has testified to having difficulties 
 
         when performing overhead work.  Overall, however, the claimant's 
 
         physical impairment is quite minimal.  Claimant is earning more 
 
         now than he earned at the time of the injury.  Post-injury 
 
         earnings are not synonymous with earning capacity, but do create 
 
         a presumption of earning capacity commensurate with them.  The 
 
         presumption is rebuttable by evidence showing the earnings to be 
 
         an unreliable basis for estimating earning capacity.  A.person 
 
         may have a loss of earning capacity even though post-injury 
 
         earnings are greater than the earnings at the time of injury.  2 
 
         Larson Workmen's Compensation Law, sections 57.21 and 57.31; 
 
         Hankins v. Phil Hunget d/b/a Friends and Neighbors Supper Club, 
 

 
         
 
         
 
         
 
         MORRIS V. SWIFT INDEPENDENT PACKING CO.
 
         PAGE   8
 
         
 
         
 
         II Iowa Industrial Commissioner Report, 181 (1981); Michael 
 
         v.Harrison County, 34th Biennial Report, Iowa Industrial 
 
         Commissioner, 218 (1979).
 
         
 
            David Morris is impaired in his ability to work with his hands 
 
         overhead and also in his ability to perform heavy labor.  While 
 
         this does not greatly affect his earning capacity, it cannot be 
 
         said that it has no effect whatsoever.  Accordingly, it is 
 
         determined that David Morris has a five percent permanent partial 
 
         disability, when the same is evaluated industrially, as a result 
 
         of the injuries to his cervical spine and shoulder that he 
 
         sustained in the course of his employment with Swift Independent 
 
         Packing Company.
 
         
 
              The injury date is May 7, 1985.  The petition was filed 
 
         September 9, 1985, well within the requirements of Iowa Code 
 
         section 85.26.
 
         
 
              The parties stipulated that the rate of compensation should 
 
         be $230.70 per week, if the last day of work were to be 
 
         determined to be the date of injury.  Such is the determination 
 
         that has been made and the stipulation is accepted as being 
 
         correct.
 
         
 
              With regard to section 85.27 benefits, defendants have 
 
         denied that the claimant sustained an injury which arose out of 
 
         and in the course of employment.  Accordingly, they are not 
 
         entitled to direct the medical care and the defense of lack of 
 
         authorization fails.  Barnhart v. MAC, Inc., I Iowa Industrial 
 
         Commissioner Report, 16 (1981).  Accordingly, the only standard 
 
         is reasonableness.  It was most certainly reasonable for claimant 
 
         to seek treatment from Dr. Pettit in early 1985 when Dr. Hoffmann 
 
         refused to see him and also on the other occasion in early 1985 
 
         when claimant saw Dr. Pettit.  The charges with Dr. Shelton were 
 
         likewise incurred in early 1985 when claimant's condition was 
 
         most symptomatic.  The charges do not appear to be unreasonable 
 
         in nature or in the duration of the treatment that was provided.  
 
         Claimant found the treatment to be beneficial.  Accordingly, 
 
         defendants are responsible for payment of Dr. Shelton's charges 
 
         in the amount of $145.00.  The record clearly shows that 
 
         claimant's evaluation by Dr. Rosenfeld was primarily for purposes 
 
         of litigation and not for treatment.  Accordingly, defendants are 
 
         not responsible for the charges under the provisions of section 
 
         85.27.  They may very well be responsible, however, under section 
 
         85.39 of The Code.  However, it was not raised as an issue at the 
 
         time of the pre-hearing conference and no decision thereon is 
 
         rendered.  The most recent charges with Dr. Pettit incurred in 
 
         1987 are sufficiently remote in time from the time of the 
 
         original injury that it is determined to be more likely that they 
 
         were due to some aggravation rather than to the original injury.  
 
         Accordingly, defendants are not responsible. in summary, 
 
         defendants are responsible to pay to claimant the sum of $165.00 
 
         in section 85.27 benefits representing reimbursement of the 
 
         amounts he has paid to Drs. Pettit and Shelton.
 
         
 
              The issue of whether or not permanent partial disability 
 
         would result is one of the primary issues in the case.  The early 
 
         indications from Drs. Hoffmann and Wirtz were that there would be 
 
         rio permanency.  It was not until Dr. Rosenfeld assignee a rating 
 
         that defendants should be held responsible for being able to 
 
         determine, in the exercise of reasonable diligence, that some 
 
         degree of permanency may have resulted.  Accordingly, this award, 
 
         and the interest thereon, runs from the date of Dr. Rosenfeld's 
 

 
         
 
         
 
         
 
         MORRIS V. SWIFT INDEPENDENT PACKING CO.
 
         PAGE   9
 
         
 
         
 
         report, April 8, 1987.  Schwarz v. Des Moines Metropolitan 
 
         Transit Authority, file number 664461, Appeal Decision, November 
 
         25. 1986.
 
         
 
                                 FINDINGS OF FACT
 
         
 
              1.  David Morris is a resident of the state of Iowa who was 
 
         employed by Swift Independent Packing Company in Des Moines, Iowa 
 
         from January 30, 1981 to May 7, 1985 when he voluntarily quit due 
 
         to his difficulties doing the work.  This was the only job he has 
 
         ever had that required him to carry large weights on his back.
 
         
 
              2.  Claimant's date of injury is May 7, 1985, the last day 
 
         that he worked for the employer.
 
         
 
              3.  The injury claimant sustained was a cumulative injury 
 
         process.
 
         
 
              4.  Claimant probably had a preexisting degenerative 
 
         condition and aggravated that condition through his day-to-day 
 
         work activities without suffering any particular incident of 
 
         injury and without, missing any time from work.
 
         
 
              5.  Claimant's physical stature is such that he is not 
 
         well-suited to lugging beef.
 
         
 
              6.  Claimant applied for and received unemployment 
 
         benefits.
 
         
 
              7.  Claimant's condition has improved since he left the 
 
         employment of Swift Independent Packing Company.
 
         
 
              8.  Drs. Hoffmann and Wirtz concluded that claimant suffered 
 
         no permanent impairment as a result of his injury while Dr. 
 
         Rosenfeld found a five percent impairment.  It is determined that 
 
         the claimant has some permanent impairment, although it is an 
 
         amount no greater than five percent of the body as a whole.
 
         
 
              9.  Claimant's injury is to his cervical spine, upper back 
 
         and shoulders.
 
         
 
             10.  Claimants appearance and demeanor were observed and 
 
         considered while he testified.  The claimant is a fully credible 
 
         witness.
 
         
 
             11.  Claimant is highly motivated and, through a change to a 
 
         different type of work, now earns more than he earned at the time 
 
         of injury.
 
         
 
             12.  Claimant has lost the ability to work for extended 
 
         periods with his hands overhead and to perform heavy physical 
 
         labor as a result of the injury.
 
         
 
                                CONCLUSIONS OF LAW
 
         
 
              1.  This agency has jurisdiction of the subject matter of 
 
         this proceeding and its parties.
 
         
 
              2.  Claimant sustained injury to his neck, upper back and 
 
         shoulders and also carpal tunnel syndrome with the date of injury 
 
         being May 7, 1985, the day that he voluntarily resigned from his 
 
         employment due to the injurious effects of the employment.
 
         
 

 
         
 
         
 
         
 
         MORRIS V. SWIFT INDEPENDENT PACKING CO.
 
         PAGE  10
 
         
 
         
 
              3.  Claimant is entitled to receive 25 weeks of compensation 
 
         for permanent partial disability representing a five percent 
 
         permanent partial disability of the body as a whole as a result 
 
         of the injuries.
 
         
 
              4.  Where the existence of permanent disability could not be 
 
         determined through the exercise of reasonable diligence until 
 
         April 8, 1987, interest on the award runs from April 8, 1987 
 
         rather than from the date of injury.
 
         
 
              5.  The fact that an injury has not produced actual 
 
         disability from working does not prevent a claim for the injury, 
 
         upon the termination of employment, where the employment is 
 
         terminated in order to prevent further injury from occurring.
 
         
 
              6.  Where the employer denies liability for an alleged 
 
         injury, it does not have the right to choose the care the 
 
         employee will receive.
 
         
 
              7.  The claim was timely filed within the provision of Iowa 
 
         Code section 85.26.
 
         
 
                                      ORDER
 
         
 
              IT IS THEREFORE ORDERED that defendants pay claimant 
 
         twenty-five (25) weeks of compensation for permanent partial 
 
         disability at the stipulated rate of two hundred thirty and 
 
         70/100 dollars ($230.70) per week payable commencing April 8, 
 
         1987.
 
         
 
              IT IS FURTHER ORDERED that the entire amount thereof is past 
 
         due and shall be paid to claimant in a lump sum together with 
 
         interest from April 8, 1987 pursuant to section 85.30 of The 
 
         Code.
 
         
 
              IT IS FURTHER ORDERED that defendants pay claimant one 
 
         hundred sixty-five and 00/100 dollars ($165.00) as reimbursement 
 
         for medical expenses he has incurred and paid.
 
         
 
              IT IS FURTHER ORDERED that defendants pay the costs of this 
 
         action pursuant to Division of Industrial Services Rule 
 
         343-4.33.
 
         
 
              IT IS FURTHER ORDERED that defendants file Claim Activity 
 
         Reports as requested by this agency pursuant to Division of 
 
         Industrial Services Rule 343-3
 
         
 
              Signed and filed this 22nd day of September, 1988.
 
         
 
         
 
         
 
         
 
         
 
         
 
                                         MICHAEL G. TRIER
 
                                         DEPUTY INDUSTRIAL COMMISSIONER
 
         
 
         Copies To:
 
         
 
         Mr. Channing L. Dutton
 
         Attorney at Law
 
         West Tower Office Complex
 
         1200 35th Street, Suite 500
 

 
         
 
         
 
         
 
         MORRIS V. SWIFT INDEPENDENT PACKING CO.
 
         PAGE  11
 
         
 
         
 
         West Des Moines, Iowa 50265
 
         
 
         Mr. Michael R. Hoffmann
 
         Attorney at Law
 
         1000 Des Moines Building
 
         Des Moines, Iowa 50309
 
         
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                                 1402.30, 1803, 2209, 
 
                                                 2402
 
                                                 Filed September 22, 1988
 
                                                 MICHAEL G. TRIER
 
         
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         DAVID MORRIS,
 
         
 
              Claimant,                              File No. 801727
 
         
 
         vs.                                      A R B I T R A T I O N
 
         
 
         SWIFT INDEPENDENT PACKING CO.,              D E C I S I O N
 
         
 
              Employer,
 
         
 
         and
 
         
 
         NATIONAL UNION FIRE
 
         INSURANCE COMPANY,
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
         
 
         1402.30, 1803, 2209, 2402
 
         
 
              Claimant sustained injury to his upper back, neck and 
 
         shoulders and also developed carpal tunnel syndrome during the 
 
         period of approximately four years he was employed by Swift 
 
         Independent Packing Company.  As the condition worsened, he 
 
         resigned from the employment upon the recommendation of the 
 
         company physician in order to prevent further injury and to 
 
         permit recovery.
 
         
 
              The medical evidence was conflicting regarding whether he 
 
         sustained any permanent impairment as a result of the injury, but 
 
         he did have residual problems in working with his hands overhead 
 
         and in performing heavy labor.  The claimant was, however, 
 
         earning considerably more in his new occupation at the time of 
 
         hearing than he was at the time of injury.  It was held that the 
 
         claimant had a five percent permanent partial disability in 
 
         industrial terms.  Payment of the award was held to commence on 
 
         the date of the first medical rating which found any permanent 
 
         impairment rather than the date he resigned from the employment.  
 
         The date of resignation was held to be the date of injury.
 
         
 
 
        
 
 
 
 
 
                       BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
        
 
        
 
        ROY ALLEN KRAMER,
 
        
 
            Claimant,                   File Nos. 801734
 
                                                   801735
 
        
 
        vs.                                 A P P E A L
 
        
 
        JOHN MORRELL & COMPANY,          D E C I S I O N
 
        
 
            Employer,
 
            Self-Insured,
 
            Defendant.
 
        
 
        
 
                                 STATEMENT OF THE CASE
 
        
 
        Claimant appeals from an arbitration decision awarding 
 
        occupational hearing loss benefits but denying permanent partial 
 
        disability benefits.
 
        
 
        The record on appeal consists of the transcript of the 
 
        arbitration proceeding; claimant's exhibits 1 through 12 and A 
 
        through F; and defendant's exhibits A, B, C and 1 and 2.
 
        
 
        Both parties filed briefs on appeal.
 
        
 
                                      ISSUES
 
        
 
        Claimant states the following issues on appeal in file number 
 
        801734:
 
        
 
        1. The preponderance or weight of the evidence supports the 
 
        finding in favor of the workman for workers' compensation 
 
        benefits.
 
        
 
        2. The record establishes a finding of aggravation of a 
 
        preexisting condition as contemplated within the McKeever case.
 
        
 
        3. The evidence is without conflict that the workman sustained a 
 
        compensable injury arising out of and in the course of his 
 
        employment.
 
        
 
        4. The record supports a finding of Industrial Disability for the 
 
        workman.
 
        
 
        Claimant states the following issues on appeal in file number 
 
        801735:
 
        
 
        1. The record supports a finding of additional hearing impairment 
 
        as measured by the audiologist
 
        
 
        KRAMER V. JOHN MORRELL & COMPANY
 
        Page 2
 
        
 
        
 
        considering all of the evidence in this case.
 
        
 
        2. The affirmative defense alleging naturally occurring disease 
 
        processes as a causative factor of hearing impairment fails for 
 
        lack of sufficient evidence in this record.
 

 
        
 
 
 
 
 
        
 
        The arbitration decision adequately and accurately reflects the 
 
        pertinent evidence and it will not be set forth herein. An error 
 
        on page 3 of the decision is hereby corrected to show that 
 
        claimant received a pre-employment physical examination on 
 
        February 15, 1977.
 
        
 
                                 APPLICABLE LAW
 
        
 
        The citations of law in the arbitration decision are appropriate 
 
        to the issues and the evidence.
 
        
 
                                      ANALYSIS
 
        
 
        The analysis of the evidence in conjunction with the law is 
 
        adopted. In addition, claimant on appeal has advanced an argument 
 
        that claimant's condition is the result of a cumulative injury 
 
        pursuant to McKeever Custom Cabinets v. Smith, 379 N.W.2d 368 
 
        (Iowa 1985). Claimant did not raise this issue in his original 
 
        notice and petition, or at the time of the prehearing report, or 
 
        at the arbitration hearing itself. Claimant cannot raise an 
 
        issue for the first time on appeal. In addition, the record 
 
        fails to show the type of repetitive trauma contemplated by 
 
        McKeever. Rather, claimant's evidence showed a traumatic injury 
 
        in the form of a fall from a ladder on April 11, 1985. Claimant 
 
        did not prove by a preponderance of the evidence that his present 
 
        condition was caused by a cumulative injury.
 
        
 
        It is also noted that claimant's second issue on appeal in file 
 
        number 801735, claimant's occupational hearing loss case, is moot 
 
        in that the arbitration decision ruled that the affirmative 
 
        defense of naturally occurring disease failed. Defendant has not 
 
        appealed that ruling. The ruling sought by claimant on this issue 
 
        on appeal has already been rendered in the arbitration decision.
 
        
 
                                 FINDINGS OF FACT
 
        
 
        l. Claimant was employed by employer from February 15, 1977 to 
 
        April 27, 1985.
 
        
 
        2. Claimant sustained an injury to his neck that arose out of and 
 
        in the course of his employment when he slipped on a ladder on 
 
        April 11, 1985.
 
        
 
        3. Claimant did not suffer any permanent disability as a result 
 
        of his injury of April 11, 1985.
 
        
 
        KRAMER V. JOHN MORRELL & COMPANY
 
        Page 3
 
        
 
        
 
        4. Claimant did not sustain an injury to his lower spine on April 
 
        11, 1985.
 
        
 
        5. Claimant's lumbar spine problem began in 1979 when he was hit 
 
        with a hog carcass and claimant has experienced spine symptoms 
 
        since that time.
 
        
 
        6. Claimant lost no time from work due to the injury to his neck 
 
        on April 11, 1985.
 
        
 
        7. Nineteen days after this injury claimant was able to canoe 
 
        down a river for six hours.
 
        
 
        8. Claimant was exposed to high levels of noise during his eight 
 
        years of employment with employer.
 

 
        
 
 
 
 
 
        
 
        9. Claimant's hearing loss was consistent with prolonged exposure 
 
        to high noise levels.
 
        
 
        10. Defendant had actual knowledge of claimant's hearing loss.
 
        
 
        11. Claimant terminated his employment on April 27, 1985 when the 
 
        plant closed.
 
        
 
        12. Claimant has sustained a five percent binaural hearing loss.
 
        
 
        13. Claimant would benefit from a hearing aid.
 
        
 
                                 CONCLUSIONS OF LAW
 
                                                
 
        Claimant did sustain the burden of proof by a preponderance of 
 
        the evidence that he sustained an injury to his neck on April 11, 
 
        1985.
 
        
 
        Claimant did not prove that his neck injury was the cause of any 
 
        temporary or permanent disability.
 
        
 
        Claimant did not sustain the burden of proof by a preponderance 
 
        of the evidence that he sustained an injury to his lumbar spine 
 
        on April 11, 1985.
 
        
 
        Claimant is not an odd-lot employee.
 
        
 
        Claimant did not prove entitlement to the medical bills for Dr. 
 
        Carnignan's charges in the amount of $72.
 
        
 
        Claimant sustained a five percent occupational hearing loss as 
 
        defined in Chapter 85B, Code of Iowa, which arose out of and in 
 
        the course of his employment with the employer.
 
        
 
        KRAMER V. JOHN MORRELL & COMPANY
 
        Page 4
 
        
 
        
 
        The hearing loss was caused by claimant's employment with the 
 
        employer.
 
        
 
        Claimant is entitled to five percent of 175 weeks of occupational 
 
        hearing loss compensation.
 
        
 
        The date of hearing injury is April 27, 1985 when claimant 
 
        terminated his employment with employer.
 
        
 
        Claimant's action was timely commenced.
 
        
 
        Claimant's compensable hearing loss entitles claimant to a 
 
        hearing aid.
 
        
 
        WHEREFORE, the decision of the deputy is affirmed.
 
        
 
                                      ORDER
 
                                                
 
        THEREFORE, it is ordered:
 
        
 
        That defendant pay unto claimant eight point seven-five (8.75) 
 
        weeks (.05 x 175) of occupational hearing loss compensation at 
 
        the rate of two hundred two and 67/100 dollars ($202.67) per week 
 
        in the total amount of one thousand seven hundred~ seventy-three 
 
        and 36/100 dollars ($1,773.36) (8.75 x $202.67) commencing on 
 
        April 27, 1985.
 
        
 

 
        
 
 
 
 
 
        That these benefits are to be paid in a lump sum. 
 
        
 
        That interest will accrue under Iowa Code section 85.30.
 
        
 
        That defendant provide claimant with a binaural hearing aid at a 
 
        cost of between nine hundred dollars ($900) to one thousand 
 
        dollars ($1,000).
 
        
 
        That pursuant to Division of Industrial Services Rule 343-4.33, 
 
        the costs of both parties for the alleged injury of April 11, 
 
        1985 are taxed to claimant.
 
        
 
        That the costs of both parties for the occupational hearing loss 
 
        of April 27,1985 are taxed to defendant.
 
        
 
        That the costs of the attendance of the certified shorthand 
 
        reporter at the hearing are taxed to defendant and the cost of 
 
        the transcription of the hearing proceeding taxed to claimant.
 
        
 
        That defendant will remain liable for future medical expenses as 
 
        a result of the occupational hearing loss.
 
        
 
        That defendant shall file claim activity reports as required by 
 
        this agency pursuant to Division of Industrial Services Rule 
 
        343-3.1(2).
 
        
 
        KRAMER V. JOHN MORRELL & COMPANY 
 
        Page 5
 
        
 
        
 
        Signed and filed this 21st day of September, 1988.
 
        
 
        
 
        
 
                                        DAVID E. LINQUIST
 
                                     INDUSTRIAL COMMISSIONER
 
        
 
        
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         _________________________________________________________________
 
         
 
         ROY ALLEN KRAMER,
 
         
 
              Claimant,
 
                                                  FILE NOS. 801735 & 
 
                                                           801734
 
         VS.
 
                                                 A R B I T R A T I 0 N 
 
         JOHN MORRELL & COMPANY,
 
                                                    D E C I S I O N
 
              Employer,
 
              Self-Insured,
 
              Defendant.
 
         _________________________________________________________________
 
         
 
                                   INTRODUCTION
 
         
 
              This is a proceeding in arbitration brought by Roy Allen 
 
         Kramer, claimant, against John Morrell & Company, self-insured 
 
         employer and defendant for benefits as a result of an alleged 
 
         injury due to a fall on April 11, 1985 and for an alleged 
 
         occupational hearing loss on April 27, 1985.  A hearing was held 
 
         in Storm Lake, Iowa on November 26, 1986 and the case was fully 
 
         submitted at the close of the hearing.  The record consists of 
 
         the testimony of Roy Allen Kramer (claimant); Charles B. 
 
         Carnignan, M.D. (claimant's doctor); Ron Hampson (claimant's 
 
         co-employee); Vickie Henderson (claimant's co-employee); Roger 
 
         Marquardt (claimant's vocational rehabilitation consultant); and, 
 
         Dennis L. Howrey (employer's personnel and labor relations 
 
         manager).  There are two sets of exhibits.  The exhibits for the 
 
         fall injury on April 11, 1985 are claimant's exhibits 1 through 
 
         12 and defendant's exhibits A, B, and C. The exhibits for the 
 
         occupational hearing loss are claimant's exhibits A through F and 
 
         defendant's exhibits 1 and 2. Both attorneys submitted excellent 
 
         briefs.
 
         
 
                                STIPULATIONS
 
         
 
              The parties stipulated to the following matters:
 
         
 
              That an employer/employee relationship existed between 
 
         claimant and employer at the time of both alleged injuries.
 
         
 
              That the type of permanent disability, in the event of a 
 
         finding of permanent disability, for the alleged fall injury on 
 
         April 11, 1985, is industrial disability to the body as a whole.
 
         
 
              That the disability for the alleged hearing loss is 
 
         occupational hearing loss as provided in Iowa Code section 85B.
 
         
 
              That the rate of weekly compensation in the event of an 
 
         award is $202.67 per week.
 
         
 
              That no credits are claimed and that there are no bifurcated 
 

 
         
 
         
 
         
 
         KRAMER V. JOOHN MORRELL & COMPANY
 
         Page   2
 
         
 
         
 
         issues.
 
         
 
                                   ISSUES
 
         
 
              The issues presented by the parties for determination at the 
 
         time of the hearing are as follows:
 
         
 
              Whether the claimant sustained an injury on April 11, 1985 
 
         and an occupational hearing loss on April 27, 1985 which arose 
 
         out of and in the course of his employment with employer.
 
         
 
              Whether the alleged fall injury of April 11, 1985 is the 
 
         cause of any temporary or permanent disability.
 
         
 
              Whether the claimant's employment was the cause of an 
 
         alleged occupational hearing loss on April 27, 1985.
 
         
 
              Whether the claimant is entitled to temporary disability 
 
         benefits during a period of recovery for the alleged fall injury 
 
         of April 11, 1985.
 
         
 
              Whether claimant is entitled to any permanent disability 
 
         benefits for either the alleged fall injury of April 11, 1985 or 
 
         the alleged occupational hearing loss of April 27, 1985.
 
         
 
              Whether claimant is an odd-lot employee.
 
         
 
              Whether claimant gave notice of both injuries as required by 
 
         Iowa Code section 85.23 is asserted as an affirmative defense.
 
         
 
              Whether claimant commenced this action in a timely manner as 
 
         required by Iowa Code section 85.26 as to both injuries is also 
 
         asserted as an affirmative defense.
 
         
 
              Whether claimant is entitled to $72 in medical charges of 
 
         Dr. Carnignan for four office visits at $18 each.
 
         
 
              Whether claimant is entitled to a hearing aid as provided by 
 
         Iowa Code section 85B.12.
 
         
 
                           SUMMARY OF THE EVIDENCE
 
         
 
              All of the evidence was examined and considered.  The 
 
         following is a summary of the pertinent evidence.
 
         
 
              Claimant is 31 years old, married and has one small child.  
 
         He is a high school graduate.  Prior employments include working 
 
         as a mechanic in a bowling alley, doing body work for U-Haul and 
 
         putting vinyl tops on cars.  Claimant began work for employer in 
 
         February of 1977 (Transcript pages 8-11).  Claimant's 
 
         pre-employment physical examination on February 15, 1987 
 
         indicated no back or hearing problems (Exhibit 1).  Claimant 
 
         denied any back or hearing problems prior to his employment for 
 
         employer (Tr. p. 11).  In the course of his employment claimant 
 
         transported 100 pound dried blood bags, pulled carts, shoveled, 
 
         stacked boxes, and loaded train cars and semis (Tr. p. 133).  
 
         Claimant worked in both the beef plant and the pork plant from 
 
         rendering to the kill floor (Tr. pp. 12-15).  During the last 
 
         year and a half that claimant worked he performed the job of 
 

 
         
 
         
 
         
 
         KRAMER V. JOOHN MORRELL & COMPANY
 
         Page   3
 
         
 
         
 
         shaving hams.  For the four year period prior to that he worked 
 
         on the kill floor at the head table.  Prior to that he worked on 
 
         the beef kill floor and in rendering (Tr. p. 132).
 
         
 
              The noisiest job was working with an air knife at the head 
 
         table.  The second noisiest job was shaving hams by the polisher 
 
         (Tr. p. 134).  Earplugs were made available in 1982 but you had 
 
         to get time off and go.to the nurse in the personnel office in 
 
         order to get them.  About one year before the plant closed on 
 
         April 27, 1985, earplug dispensers were placed on the wall in the 
 
         plant.  Claimant testified he used the earplugs when they were 
 
         made available but he did not specify whether he meant in 1982 or 
 
         in 1984 (Tr. pp. 15 & 16).
 
         
 
              Claimant testified that sometime before the plant closed on 
 
         April 27, 1985, the plant nurse performed a hearing test.  She 
 
         told claimant that he had a great deal of hearing loss and that 
 
         he should see a specialist.  Claimant's family doctor, Dr. Ford 
 
         (full name unknown), also told him to see a specialist.  However, 
 
         claimant could not afford to see a specialist at that time (Tr. 
 
         pp. 21-23).  Claimant denied any childhood head injuries, 
 
         listening to rock music or other loud music, family history of 
 
         hearing problems, hunting, driving tractors or farming (Tr. pp. 
 
         36 & 37).  Claimant stated that an audiologist told him that his 
 
         hearing could be helped by a hearing aid (Tr. p. 42).
 
         
 
              The back injury under consideration allegedly occurred on 
 
         April 11, 1985.  Claimant fell while descending a ladder near his 
 
         work station (original notice and petition).  However, two other 
 
         incidents occurred prior to that which are significant in this 
 
         case.  On October 3, 1979, as claimant walked under the rail, a 
 
         stringer broke, and a hog carcass came off and hit claimant in 
 
         the back (Defendant's Ex.  C, p. 3 and Tr. p. 16).  Claimant saw 
 
         the plant physician, William J. Moreau, D.C., in Estherville.  
 
         Claimant immediately returned to work and lost no time from work 
 
         on account of this injury (Def.  Ex.  C, pp. 3 & 7 and Tr. p. 
 
         17).  There is no treatment record from Dr. Moreau for this 
 
         incident.
 
         
 
         
 
              On August 3, 1981, claimant hurt his back picking up a pail 
 
         (Def.  Ex.  C, p. 3 and Tr. p. 18).  It should be noted also that 
 
         the employee injury record card shows that on February 12, 1981 
 
         claimant hurt his back moving boxes and saw Dr. Moreau and that 
 
         on November 4, 1981, claimant hurt his back pulling a barrel and 
 
         was seen by Medical Center (Def.  Ex.  C, p. 3).  After the pail 
 
         injury Dr. Moreau referred claimant to Robert S. Hranic, M.D.,, 
 
         in Estherville.  On August 4, 1981, Dr. Hranic recorded the 
 
         following information: "8-4-81 Has back trouble for last 2 yrs. 2 
 
         yrs ago a hog hit him in the back & threw him over table - Has 
 
         been seeing Dr. Moreau about every other work.  Developed a pain 
 
         in right side of back Dr. Moreau unable to help him now." 
 
         (Claimant's Ex. 3, p. 3).
 
         
 
              Dr. Hranic prescribed medication; out-patient physical 
 
         therapy at Estherville Hospital; had claimant fitted for a back 
 
         brace; and referred claimant to an orthopedic surgeon by the name 
 
         of Dr. Giebink (full name unknown) in Sioux Falls, South Dakota 
 
         (Cl.  Ex. 3, p. 2).  There is no medical data in evidence from 
 

 
         
 
         
 
         
 
         KRAMER V. JOOHN MORRELL & COMPANY
 
         Page   4
 
         
 
         
 
         Dr. Giebink himself.  Dr. Hranic noted on September 9, 1981, that 
 
         Dr. Giebink said claimant could work; there was the possibility 
 
         of a disc in the dorsal spine; but, normally these work out (Cl.  
 
         Ex. 3, p. 2).  Dr. Moreauls notes of October, 1981, also reflect 
 
         that claimant saw Dr. Giebink in Sioux Falls but claimant did not 
 
         remember the diagnosis (Cl.  Ex. 4, p. 4).  Claimant testified 
 
         that he missed two weeks of work.  The employee absence record 
 
         indicates claimant lost 15 days of work due to injury in early 
 
         August of 1981 (Def.  Ex.  C, p. 6).
 
         
 
              Claimant testified that after each of these incidents in 
 
         1979 and 1981 he returned to full time strenuous work.  No 
 
         permanent impairment rating was given for either injury and he 
 
         was not paid any workers' compensation benefits for either of 
 
         these injuries (Tr. pp. 18, 20, 142 & 143).
 
         
 
              Employer's injury record card (Def.  Ex.  C, p. 3) and Dr. 
 
         Hranic's office notes (Cl.  Ex. 3, p. 1) show that again on 
 
         November 4, 1981, claimant was pulling on a barrel, heard 
 
         something pop, and it made his lower back sore and tight.  The 
 
         employee's absence record for November of 1981 reflects that 
 
         claimant lost approximately three days of work due to this low 
 
         back incident (Def.  Ex.  C, p. 6).
 
         
 
              The Moreau Chiropractic Clinic records show that claimant 
 
         received a number of treatments for cervical and thoracic pain in 
 
         1982, 1984, and 1985 (Cl.  Ex. 4, pp. 2-12).  The employer's 
 
         injury record card also shows that claimant reported neck or 
 
         shoulder problems approximately five times at work in 1982, 1983 
 
         and 1984 (Def.  Ex.  C, p. 3).  However, no time was lost from 
 
         work due to these injuries (Def.  Ex.  C, pp. 5 & 6).
 
         
 
         
 
              Claimant received another company physical examination when 
 
         he returned to work from a shut down on July 13, 1983.  He 
 
         reported no deafness or hearing problems at that time.  He did 
 
         report the back injury at work in 1981 for which he wore a back 
 
         brace, but it was okay at the time of the physical examination 
 
         with no recurrence of the problem (Cl.  Ex. 2).
 
         
 
              The injury which is the subject of this action occurred on 
 
         April 11, 1985, just a few days before the plant closed 
 
         permanently on April 27, 1985.  Claimant's job at that time was 
 
         shaving hams.  Claimant descended a ladder from his upper level 
 
         work station to go on morning break.  There was a piece of fat on 
 
         the first step.  Claimant slipped on it, swung around, tried to 
 
         hold on with one hand, but hit something and lost his grip on the 
 
         ladder and then he fell to the floor approximately six feet 
 
         below., When claimant got up Ron Hampson, his co-worker, was 
 
         there.  The foreman sent him to the nurse.  She arranged an 
 
         appointment with Dr. Moreau, but he could not get in until 9:00 
 
         p.m. that night.  Claimant said his whole spine was very painful.  
 
         Nevertheless, he continued to work until the plant closed on 
 
         April 27, 1985 (Tr. p. 128).  Claimant did not lose any time from 
 
         work due to this fall (Tr. pp. 23-27).  No absence for this 
 
         injury is shown on the employee absence record (Def.  Ex.  C, p. 
 
         4).
 
         
 
              Defendant points out that Dr. Moreau and other medical 
 

 
         
 
         
 
         
 
         KRAMER V. JOOHN MORRELL & COMPANY
 
         Page   5
 
         
 
         
 
         reports at the Mayo Clinic verify only that claimant slipped on a 
 
         ladder but did not confirm that he hit anything or fell to the 
 
         floor six feet below (Cl.  Ex. 4, p. 3).  Dr. Moreau recorded 
 
         that he saw claimant for lumboalgia and cervicalgia on April 11, 
 
         1985.  Dr. Moreauls records also show that he had seen claimant a 
 
         number of times in the previous 12 month period for cervical and 
 
         thoracic pain.  The dates of treatment are: March 26, 1984; March 
 
         29, 1984; April 26, 1984; April 30, 1984; July 17, 1984; October 
 
         3, 1984; December 12, 1984; April 2, 1985; April 4, 1985; and, 
 
         that claimant cancelled his appointment for April 8, 1985 (Cl.  
 
         Ex. 4, pp. 3 & 4).  Dr. Moreau then saw claimant for this injury 
 
         of April 11, 1985.  After that Dr. Moreau continued to treat 
 
         claimant on April 13, 1985; April 16, 1985; April 18, 1985; April 
 
         20, 1985; April 25, 1985; April 30, 1985; and, May 6, 1985 with a 
 
         diagnosis of subluxation of the right sacroiliac joint with 
 
         associated myalgia (Cl.  Ex. 4, p. 2).
 
         
 
              Dr. Moreau then sent claimant to Dr. Hranic again who looked 
 
         at the x-rays and sent claimant to Mayo Clinic (Cl.  Ex. 5; Tr. 
 
         p. 27).  There is no medical report from Dr. Hranic for this 
 
         examination in evidence.  Claimant was examined by a number of 
 
         doctors in a number of departments at the Mayo Clinic.
 
         
 
              H.K. Ivy,, M.D., noted on May 24, 1985, that claimant's 
 
         problem began when he was hit by the hog carcass six years ago 
 
         (1979) and that his distress has continued to the present time.  
 
         Claimant felt that recent vigorous chiropractic manipulations 
 
         aggravated his discomfort.  He described his low back pain as a 
 
         dull ache.  Over the years there has been no tendency for this 
 
         problem to improve.  About a month ago claimant slipped while 
 
         descending a ladder but caught himself with a sudden jerk which 
 
         caused cervical pain.  For several years claimant has been aware 
 
         of a sense of ataxia (lack of muscle coordination) that caused 
 
         people to comment that he looks drunk when he walks.  Dr. Ivy 
 
         said claimant's lumbar extension was (-2) and his rotation of his 
 
         neck to the right (-2).  Dr. Ivy diagnosed that claimant had (1) 
 
         chronic lumbar strain, and (2) muscular pain at right cervical 
 
         area (Cl.  Ex. 6, p. 3; Cl.  Ex. 9, p. 2).
 
         
 
              Claimant was also examined on May 24, 1985 at the Mayo 
 
         Clinic by S. N. Bell, M.D. Dr. Bell examined claimant and 
 
         recorded (1) chronic low back pain and, (2) right neck pain.  He 
 
         said he has had the chronic low back pain since the injury six 
 
         years ago (1979).  He said that the neck pain occurred when he 
 
         slipped from a ladder catching himself with his arms and jolting 
 
         his neck (Cl.  Ex. 6, p. 4).  Dr. Bell diagnosed (1) mechanical 
 
         low back pain and, (2) slowly resolving cervical strain (Cl.  Ex. 
 
         6, p. 10).  He noted (-2) lumbar and (-l) cervical limitation of 
 
         motion (Cl.  Ex. 6, p. 4).
 
         
 
              On May 29, 1985, J. D. Bartleson, M.D., in the neurology 
 
         department, noted that about six and one-half years ago claimant 
 
         was knocked forward by a hog carcass and developed soreness all 
 
         over.  The pain settled in his low back and he has had 
 
         fluctuating low back pain ever since.  Two months ago he 
 
         developed neck pain when he fell from a ladder, grabbed with his 
 
         hands and his head was snapped backward.  Chiropractic treatments 
 
         seemed to make his neck worse (Cl.  Ex. 6, p. 14).  Dr. Bartleson 
 
         diagnosed musculoskeletal neck and low back pain.  He recommended 
 

 
         
 
         
 
         
 
         KRAMER V. JOOHN MORRELL & COMPANY
 
         Page   6
 
         
 
         
 
         conservative measures.  He suggested that claimant should avoid 
 
         heavy manual labor and should lose a few pounds (Cl.  Ex. 6, p. 
 
         17).
 
         
 
              Dr. Lowell F. A. Peterson, M.D., supplied medical 
 
         information by his notes of July 1, 1985 (Cl.  Ex. 6, p. 11) and 
 
         by his deposition on march 17, 1986 (Def.  Ex.  A).  In his 
 
         medical notes Dr. Peterson stated claimant felt his symptoms all 
 
         started when he was knocked forward by the hog carcass (Cl.  Ex. 
 
         6, p. 11).  He said there was no evidence of skeletal trauma on 
 
         the roentgenograms (Cl.  Ex. 6, p. 9).
 
         
 
              In his deposition, Dr. Peterson testified that he is a board 
 
         certified orthopedic surgeon who has practiced medicine for 32 
 
         years at the Mayo Clinic since October 1, 1954.  He also serves 
 
         as a professor of orthopedic surgery at the Mayo Clinic.  He has 
 
         written approximately 90 articles for publication and medical 
 
         journals (Def.  Ex.  A, pp. 1-5).  He first saw claimant in July 
 
         of 1985.  He stressed that claimant did not fall off the ladder 
 
         when he slipped.  Also, that when claimant wore his back brace it 
 
         relieved his back discomfort (Def.  Ex.  A, pp. 6 & 7).  Claimant 
 
         had no muscle spasm at the time of his examination which is an 
 
         indication that he was relatively pain free (Def.  Ex.  A, p. 8).  
 
         The minor limitations of motion recorded by Dr. Ivy and Dr. Bell 
 
         on May 24, 1985 were no longer present (Def.  Ex.  A, pp. 19 & 
 
         20).  Dr. Peterson reviewed the roentgenograms and concluded 
 
         claimant  had facet degeneration changes at the lumbosacral joint 
 
         evidenced by  some overriding of the facets and some mild 
 

 
         
 
         
 
         
 
         KRAMER V. JOOHN MORRELL & COMPANY
 
         Page   7
 
         
 
         
 
         sclerosis.  This was relatively early, meaning it was not 
 
         advanced in its nature.  Dr. Peterson testified: "My final 
 
         conclusion was that the patient had degenerative arthritic 
 
         changes in the lumbosacral facet joints and that his pain was 
 
         mechanical on the basis of the facet arthritis."  (Def.  Ex.  A, 
 
         p. 9).
 
         
 
              Dr. Peterson said that mechanical means that it is related 
 
         to the arthritis rather than nerve root pressure.  This is purely 
 
         a wear and tear phenomenon (Def.  Ex.  C, pp. 9 & 10).
 
         
 
              Dr. Peterson said the problem for which he examined claimant 
 
         is historically related to claimant's 1979 injury.  The 10 
 
         percent permanent partial disability rating (Cl.  Ex. 6, p. 11) 
 
         that Dr. Peterson awarded claimant was due to the 1979 incident 
 
         when the hog fell on him.  Dr. Peterson testified that claimant 
 
         had no impairment from the injury which occurred on April 11, 
 
         1985.  Dr. Peterson further testified that this injury did not 
 
         aggravate the claimant's preexisting neck or back problems.  The 
 
         minor limitations of motion noted by Dr. Ivy and Dr. Bell were no 
 
         longer present (Def.  Ex.  A, pp. 18-20).
 
         
 
              Dr. Peterson said that claimant had reached maximum medical 
 
         recovery at the time of his examination on July 1, 1985.  Dr. 
 
         Peterson declared that the only complication claimant suffered 
 
         from the incident that occurred on April 11, 1985 was in regard 
 
         to his neck, and that basically was a problem that went away or 
 
         was not a major problem at the time of his examination on July 1, 
 
         1985.  He did not impose any weight restrictions on claimant 
 
         (Def.  Ex.  C, pp. 10 & 11).  Claimant had a full range of motion 
 
         of the lumbar spine and a normal straight leg raising test on 
 
         both sides (Def.  Ex.  A, p. 25).
 
         
 
              Claimant testified that he retained an attorney to represent 
 
         him on his back problem and his hearing problem in late 1985 or 
 
         early 1986.  His attorney sent him to see C. B. Carnignan, M.D. 
 
         He consulted with him about his back and hearing problems.  Dr. 
 
         Carnignan prescribed pain pills for his back pain (Tr. pp. 32 & 
 
         33).
 
         
 
              Dr. Carnignan examined claimant on October 21, 1985 and made 
 
         a report on October 26, 1985.  Dr. Carnignan reviewed claimant's 
 
         1979, 1981 and 1985 back injuries.  He also found that the neck 
 
         injury from the fall on April 11, 1985 did not bother him very 
 
         much.  However, the back continued to cause him pain and caused 
 
         him to stand or sit in a hunched over position of about five 
 
         degrees of flexion.  The pain was localized over the L-4, L-5 
 
         vertebra area.  Claimant had a full range of motion in his sPine, 
 
         no radicular pain, and his reflexes, strength, and neurological 
 
         findings were all within normal limits.  Dr. Carnignan said 
 
         claimant is suffering a 10 percent permanent whole body 
 
         impairment due to limited motion and pain from his multiple back 
 
         injuries during his employment with employer (Cl.  Ex. 8).
 
         
 
              In his hearing testimony, Dr. Carnignan said that he was a 
 
         board certified family practitioner in Okoboji, Iowa (Tr. pp. 45 
 
         & 46).   His history showed that claimant landed on his back when 
 
         he fell from the ladder on April 11, 1985 (Tr. p. 48).  The neck 
 
         had improved but he was still having trouble with his back.  He 
 

 
         
 
         
 
         
 
         KRAMER V. JOOHN MORRELL & COMPANY
 
         Page   8
 
         
 
         
 
         had trouble standing erect and was most comfortable with about a 
 
         20 percent flexion of the back (Tr. p. 49).  Dr. Carnignan 
 
         believed claimant's hearing loss was due to exposure to high 
 
         noise levels at work.  There was nothing else in his history that 
 
         would cause the hearing loss (Tr. pp. 51, 52 & 101).
 
         
 
              Dr. Carnignan raised the impairment rating on claimant's 
 
         back from 10 percent to 16 percent in his hearing testimony (Tr. 
 
         p.54).  Dr. Carnignan requested Jim Myerly, M.D., a radiologist, 
 
         to examine earlier x-rays taken by Dr. Moreau of claimant's neck 
 
         and back.   Dr. Mylerly found no arthritic changes in the 
 
         cervical area and only minor narrowing at the L-5, S-1 disc space 
 
         (Tr. pp. 55-59).  Dr. Carnignan granted that back problems do not 
 
         always show up on x-rays (Tr. pp. 86 & 87).  Dr. Carnignan formed 
 
         the opinion that claimant did not have any permanent impairment 
 
         from the 1979 and 1981 injuries because claimant always returned 
 
         to heavy labor (Tr. pp. 55-66).  Dr. Carnignan felt claimant was 
 
         just now reaching maximum medical improvement (Tr. pp. 66 & 67).  
 
         Claimant should avoid heavy lifting and should not lift over 30 
 
         to 35 pounds (Tr. p. 68).  Dr. Carnignan stated that claimant 
 
         would require medication for his low back for the rest of his 
 
         life (Tr. p. 71).
 
         
 
              Dr. Carnignan stated that his examination of the claimant in 
 
         October of 1985 was for the purpose of evaluation.  He charged 
 
         $50 and the claimant paid it himself.  Claimant also had four 
 
         office visits on April 1, 1986; May 5, 1986; October 3, 1986; 
 
         and, November 7, 1986.  Dr. Carnignan charged $18 for each of 
 
         these office visits for a total amount of $72.  Defendant 
 
         objected to the payment of these medical bills because Dr. 
 
         Carnignan was not an authorized physician and the purpose of the 
 
         office visits were for trial preparation (Tr. pp. 71, 72 and 76).  
 
         Dr. Carnignan acknowledged that he evaluates a number of workers' 
 
         compensation cases for claimant's counsel in this case and also 
 
         for other attorneys.  He admitted that claimant had not 
 
         previously been a patient of his prior to that time (Tr. p. 75).  
 
         Dr. Carnignan granted that the first two office visits in 1986 
 
         (April 1, 1986 and May 5, 1986) were for trial preparation.  He 
 
         also admitted that he did in fact raise the impairment rating 
 
         that he had made earlier in October of 1985 by six percent (Tr. 
 
         pp. 76-80).  Dr. Carnignan also agreed that the 30 to 35 pound 
 
         weight restriction that he felt appropriate today was no 
 
         different than Dr. Giebink felt was appropriate back in 1981 (Tr. 
 
         pp. 80 & 81).  Dr. Carnignan testified that claimant's neck 
 
         problems were not sufficient to assign an impairment rating (Tr. 
 
         pp. 88 & 89).  The doctor conceded that he did not see the 
 
         claimant after his 1979 and 1981 injuries.  He said that he based 
 
         his opinion that there was no impairment on the fact that 
 
         claimant returned to strenuous work after each of these injuries 
 
         (Tr. pp. 89 & 90).  The witness stated that the 10 decibel 
 
         increase in loss of low tones in the claimant's hearing between 
 
         his audiogram in October of 1985 and Daniel L. Jorgensen, M.D.,'s 
 
         audiogram in July, 1986, could be a situation in the eustacion 
 
         tube, operator error, or a number of other factors (Tr. pp. 
 
         92-94).  Dr. Carnignan testified that if the fall on April 11 did 
 
         not cause a new injury, it would certainly have aggravated 
 
         claimant's preexisting back injuries (Tr. p. 100) .
 
         
 
              Ron Hampson, a 29 year employee of employer, who now works 
 

 
         
 
         
 
         
 
         KRAMER V. JOOHN MORRELL & COMPANY
 
         Page   9
 
         
 
         
 
         at the Sioux Falls, South Dakota plant, testified that he worked 
 
         with claimant on the kill floor shaving hams on April 11, 1985.  
 
         He testified that claimant left for break just two or three 
 
         seconds ahead of him.  When he got to the end of the platform he 
 
         saw claimant laying on the floor flat on his back.  He went to 
 
         the plant nurse but returned to his work station and finished the 
 
         day.  Claimant did not miss any work due to this fall (Tr. pp. 
 
         108-113).  He said the job of shaving hams involved relatively no 
 
         lifting (Tr. p. 117).  However, it was noisy because the 
 
         polisher, which is a high speed washer, made a high pitched 
 
         scream (Tr. p. 118).
 
         
 
              Vickie Henderson testified that she worked for employer from 
 
         May 14, 1979 until the plant closed permanently on April 27, 
 
         1985.  In April of 1985, she worked on the pork kill floor.  From 
 
         her station she could see claimant hanging on the ladder in 
 
         between the hogs as they went by.  His feet were possibly three 
 
         feet off the ground (Tr. p. 150).  He looked like he was having 
 
         problems.  She signaled a co-worker to get help and when she 
 
         looked back he was laying on the floor (Tr. pp. 145-148).  She 
 
         did not know the length of the ladder but she is five foot six 
 
         inches tall and she can walk under it (Tr. 147-148).  He did not 
 
         appear to have any back problems before the fall but was having a 
 
         great deal of problem after the fall (Tr. pp. 148 & 149).
 
         
 
              Claimant testified that he has to wear a back brace all of 
 
         the time now.  He ceased to wear it after his 1981 injury.  
 
         However, he got it out the day after the April 11, 1985 injury on 
 
         his own initiative and has been wearing it ever since.  He 
 
         testified that he cannot shovel snow.  His wife mows the lawn and 
 
         rakes the yard and does the gardening.  He can no longer play 
 
         volleyball, basketball or baseball.  The only thing he does now 
 
         is a lot of walking and physical therapy exercises.  He regularly 
 
         takes pain pills now prescribed by Dr. Carnignan (Tr. pp. 39-42).  
 
         Claimant testified that his back has gotten progressively worse 
 
         since the April 11, 1985 injury (Tr. pp. 134 & 135).  Claimant 
 
         could not tell if his hearing had changed or not (Tr. pp. 135 & 
 
         136).
 
         
 
              When the plant closed on April 27, 1985 claimant elected to 
 
         terminate with employer and take a severance pay rather than 
 
         transfer to Sioux Falls, South Dakota.  He stated he chose to 
 
         terminate because the doctors at Mayo Clinic told him that he 
 
         could run into a lot of trouble if he continued to do manual 
 
         labor in the packing plant (Tr. p. 30).  Claimant testified that 
 
         he tried to join the military service but was rejected because of 
 
         his back (Tr. p. 139).  Since then he has tried to find work with 
 
         several employers in the community but he has not been 
 
         successful.  When they see the back brace they are not 
 
         interested.  He began wearing the brace of his own volition the 
 
         day after the April 11, 1985 fall (Tr. pp. 31 & 32).  He 
 
         testified that he drew unemployment compensation as long as he 
 
         could (Tr. p. 128).  Claimant now works five hours a day, four 
 
         days a week as an assistant teacher with four and five year olds 
 
         in the head start program.  The State of Iowa requires this 
 
         employment in order for him to draw aid to dependent children 
 
         benefits and food stamp assistance (Tr. pp. 33 & 34).  Claimant 
 
         tried to return to two former jobs he had done working for 
 
         farmers during previous plant shut downs of milking cows and 
 

 
         
 
         
 
         
 
         KRAMER V. JOOHN MORRELL & COMPANY
 
         Page  10
 
         
 
         
 
         working in a hog confinement facility.  However, he testified 
 
         that he was unable to do these jobs (Tr. pp. 37, 38, 44 & 142).
 
         
 
              Claimant has no formal training after high school other than 
 
         a one week mechanic course (Tr. p. 43).  Claimant testified that 
 
         the economic situation in Estherville is sad.  There is no 
 
         employment available there (Tr. p. 128).
 
         
 
              Roger F. Marquardt, a vocational rehabilitation specialist, 
 
         testified he was retained by claimant's counsel to make a 
 
         vocational capacity evaluation in August of 1986 (Tr. pp. 
 
         152-155).  He reviewed claimant's medical information and 
 
         interviewed claimant for about one and one-half hours to two 
 
         hours (Tr. p. 156).  Marquardt believed that claimant had lost 
 
         approximately 29 percent of his access to jobs because he cannot 
 
         do heavy work or semi-skilled work in the meat packing industry 
 
         (Tr. pp. 160 & 161).  There are jobs claimant could do in the 
 
         meat packing industry but he would have to update his skills a 
 
         little farther in order to engage in other employment (Tr. 169).
 
         
 
              Marquardt said claimant was earning $8.25 per hour at the 
 
         time of the injury and he felt that claimant could now earn $6.50 
 
         per hour.  Therefore, claimant has encountered a 23 percent loss 
 
         of earning capacity (Tr. pp. 161 & 162).  Also, Marquardt felt 
 
         that due to his recurring medical problems to his back, Marquardt 
 
         would advise claimant to seek employment other than in the meat 
 
         packing industry (Tr. p. 164).  The witness thought claimant 
 
         should try to vocationally rehabilitate himself through 
 
         sharpening his skills rather than just look for a job (Tr. pp. 
 
         167 & 173).  The unemployment rate for Estherville is low, but 
 
         that might mean that the unemployed people have moved out.  
 
         Marquardt said it would be very difficult to go out and find a 
 
         job tomorrow (Tr. p. 171).
 
         
 
              Dennis L. Howrey, personnel and public relations manager for 
 
         employer, testified that from a skill level claimant was an 
 
         average employee.  From his attendance records he was below 
 
         average because of his repeated absences from work (Tr. pp. 174 & 
 
         175).  When the plant closed claimant could have transferred to 
 
         Sioux Falls but chose instead to receive $2,640,in severance pay 
 
         and $220.03 in vacation pay (Tr. p. 180).  He stated that Dr. 
 
         Moreau, Dr. Hranic and Mayo Clinic were designated as treating 
 
         physicians in this case (Tr. p. 181).  Howrey agreed that on the 
 
         noise level surveys that the area of the wizard knives at the 
 
         head table was 95 decibels and that the shaving hams table was 90 
 
         decibels.  He agreed that claimant worked eight hours a day five 
 
         or six days a week from 1977 up until the plant closed in 1985 
 
         (Tr. p. 186).
 
         
 
              R. David Nelson, M.A., an audiologist, tested claimant's 
 
         hearing on October 24, 1985.  His audiometric test results 
 
         disclosed a mild bilateral sensorineural hearing loss in the low 
 
         and mid frequency region and severe bilateral sensorineural 
 
         hearing loss in the high frequencies.  This pattern, especially 
 
         the higher frequencies, is similar to that observed in known 
 
         noise hearing losses.  He said that claimant is a candidate for 
 
         amplification (Cl.  Ex.  D, p. 1).  Dr. Carnignan interpreted the 
 
         tests results and wrote that it was equal to a five percent 
 
         binaural hearing impairment (Cl.  Ex.  D, p. 2).  Binaural 
 

 
         
 
         
 
         
 
         KRAMER V. JOOHN MORRELL & COMPANY
 
         Page  11
 
         
 
         
 
         hearing aids of the behind the ear type would cost $1,350; 
 
         binaural in the ear type hearing aids would cost $1,250 (Cl.  Ex.  
 
         F).
 
         
 
              Claimant was also tested on September 16, 1986 by Jean 
 
         Rudkin, M.S., who is an audiologist in the office of Daniel 
 
         Jorgensen, M.D., an otolaryngologist and head and neck surgeon 
 
         (Def.  Ex. 1, Deposition Ex. 2).  Dr. Jorgensen testified by 
 
         deposition on November 10, 1986 (Def.  Ex. 1).  He also wrote a 
 
         letter on November 20, 1986 (Def.  Ex. 2).  Dr. Jorgensen 
 
         testified that he examined claimant on September 15, 1986.  He 
 
         found claimant had a mild low frequency sensorineural loss which 
 
         sloped to a severe high frequency loss.  The classic up sign at 
 
         8,000 hertz is consistent with a noise induced loss.  It was 
 
         unusual to see the low frequencies below the normal range.  That 
 
         raises the possibility of congenital loss or some other cause for 
 
         a bilateral hearing loss.  With a symmetric problem you have to 
 
         think of diseases which could cause that.  A classic noise 
 
         induced loss would be normal in the low frequencies but then drop 
 
         off in the higher frequencies (Def.  Ex. 1, pp. 5-9).  In order 
 
         to determine the amount of noise induced loss it would be 
 
         necessary to see an audiogram performed prior to any noise insult 
 
         (Def.  Ex. 1, pp. 9 & 10).  The doctor tried to locate some 
 
         earlier audiograms taken when claimant was in school but he was 
 
         unable to do so (Def.  Ex. 1, pp. 14 & 15).  Claimant told the 
 
         doctor that he had no abnormal hearing at the time of the school 
 
         hearing tests (Def.  Ex. 1, p. 10).  When claimant's counsel 
 
         pointed out a variation in the audiogram results between the left 
 

 
         
 
         
 
         
 
         KRAMER V. JOOHN MORRELL & COMPANY
 
         Page  12
 
         
 
         
 
         ear and the right ear Dr. Jorgensen said that five decibels is 
 
         certainly within the constraints of test error and depends 
 
         somewhat on the patients' own responses (Def.  Ex. 1, p. 15).
 
         
 
              Dr. Jorgensen did not find any family history or hearing 
 
         problems, no history of head or ear trauma or any preexisting 
 
         hearing problems (Def.  Ex. 1, pp. 17 & 18).  He said there was a 
 
         wide variance in the ability of earplugs to protect the wearer 
 
         (Def.  Ex. 1, p. 18).  The witness said that the only way he 
 
         could find a congenital loss would be to examine a prior hearing 
 
         test.  From the records he had all he could do was suspect that 
 
         claimant had a congenital component to his hearing loss (Def.  
 
         Ex. 1, pp. 18 & 19).  Dr. Jorgensen felt claimant should have 
 
         hearing aids.  The cost would be less than $1,000 for two aids -- 
 
         probably between $900 and $1000 (Def.  Ex. 1, pp. 23 & 24).
 
         
 
              In his letter dated November 20, 1986, Dr. Jorgensen said 
 
         that he compared the hearing test performed by Mr. Nelson on 
 
         October 24, 1985 with the one performed in his office on 
 
         September 15, 1986 and he found a 10 decibel difference in the 
 
         lower frequencies which claimant sustained during a period of 
 
         unemployment.  He said this raised the possibility of underlying 
 
         causes for claimant's hearing loss other than noise which 
 
         predisposed him to a progressive hearing loss at quite an early 
 
         age.  He concluded by saying that noise can be a contributing 
 
         factor but he did not believe it was the only factor (Def. 
 
         Ex.2).
 
         
 
              The results of Mr. Nelson's hearing test on October 24, 
 
         1985, are as follows:
 
         
 
                      Left Ear         Frequency      Right Ear
 
                    Hearing Level      in Hertz     Hearing Level
 
               
 
                        30                500              
 
              25
 
                        25               1000              
 
              25
 
                        30               2000              
 
              25
 
                        45               3000              
 
              35
 
         
 
              (Cl. Ex. D, p. 2)
 
         
 
              Applying the formula in Iowa Code section 85B.9 this results 
 
         in a binaural hearing loss of five percent.
 
         
 
              The results of Ms. Rudkinst hearing test dated September 16, 
 
         1986, were as follows:
 
         
 
                      Left Ear          Frequency         Right Ear
 
                   Hearing Level        in Hertz        Hearing Level
 
               
 
                        40                500                30
 
                        35               1000                30
 
                        40               2000                35
 
                        50               3000                50
 
         
 

 
         
 
         
 
         
 
         KRAMER V. JOOHN MORRELL & COMPANY
 
         Page  13
 
         
 
         
 
              (Def. Ex. 1, Dep. Ex.2)
 
         
 
              Applying the formula in Iowa Code section 85B.9 this results 
 
         in a binaural hearing loss of 18.12 percent.
 
         
 
                        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(l).
 
         
 
              Claimant has the burden of proving by a preponderance of the 
 
         evidence that he received an injury on April 11, 1985 and an 
 
         occupational hearing loss on April 27, 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 injuries of April 11, 1985 and April 27, 
 
         1985 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. 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 73 (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).
 
         
 
              When an aggravation occurs in the performance of an 
 
         employer's work and a causal connection is established, claimant 
 
         may recover to the extent of the impairment.  Ziegler v. United 
 
         States Gypsum Co., 252 Iowa 613, 620, 106 N.W.2d 591, 595 
 
         (1960).
 
         
 
              The employee injury record card shows a number of incidents.  
 
         However, there is no entry for the injury of April 11, 1985 (Def.  
 
         Ex. C, p. 3).  Nevertheless, claimant testified that he slipped 
 
         on the ladder and fell to the floor that day.  Hampson testified 
 
         he saw claimant laying on the floor.  Henderson testified that 
 
         she saw claimant hanging on the ladder as if he were in trouble, 
 
         then later saw him laying on the floor.  Dr. Moreauls office 
 
         notes of April 11, 1985 recorded that the patient stepped off a 
 
         ladder today at work at 10:00 a.m. with resultant inferior 
 
         lumbalgia and right cervicalgia.
 
         
 

 
         
 
         
 
         
 
         KRAMER V. JOOHN MORRELL & COMPANY
 
         Page  14
 
         
 
         
 
              Claimant's lumbar pain was improved on April 15, 1985 but 
 
         returned again on April 16, 1985 and April 18, 1985 (Cl.  Ex. 4, 
 
         p. 3).   Then on April 20, 1985, Dr. Moreau noted that his lumbar 
 
         spine is better.  But then Dr. Moreau mentioned his lumbosacral 
 
         spine again on April 25, 1985 and stated that it is idiopathic 
 
         (Cl.  Ex. 4, p. 2).  On April 30, 1985, Dr. Moreau commented that 
 
         the intensity of his neck pain is decreased, does not occur in 
 
         the morning but returns in the afternoon.  He also related that 
 
         the lumbosacral pain persists over the inferior lumbar spine with 
 
         forward flexion or extension.  Significantly, he added the remark 
 
         that claimant is sunburned after canoeing six hours down the 
 
         river (Cl.  Ex. 4, p. 2).  On May 6, 1985, claimant's neck was 
 
         more improved with even less pain in the afternoon.  Dr. Moreau 
 
         then discontinued his treatment of claimant and referred him to 
 
         an orthopedist because there was no real improvement in the 
 
         lumbosacral spine (Cl.  Ex. 4, p. 2).  Therefore, from Dr. 
 
         Moreauls records it is concluded that by April 30, 1985, 
 
         approximately 19 days after the injury, that the neck pain was 
 
         significantly improved, did not occur in the morning and that its 
 
         recurrence in the afternoon was diminishing.  The lumbosacral 
 
         pain, which Dr. Moreau characterized as idiopathic, seemed to 
 
         alternately get better than reoccur.  Neither complaint, either 
 
         the neck or the back, apparently limited claimant's ability to 
 
         canoe down the river for six hours.
 
         
 
              Dr. Moreau referred claimant to Dr. Hranic.  Dr. Hranic 
 
         referred claimant to the Mayo Clinic.  There is no report from 
 
         Dr. Hranic introduced into evidence for this examination.  In the 
 
         Mayo Clinic reports, Dr. Ivy, Dr. Bell, Dr. Bartleson, and Dr. 
 
         Peterson all clearly state that the history which claimant gave 
 
         to each of them is that his back pain originated and has been 
 
         continuous since he was hit by the hog carcass in 1979.  None of 
 
         these doctors reported that claimant associated his back 
 
         complaints with the fall of April 11, 1985.  Claimant did tell 
 
         the doctors, however, that the neck pain originated with the fall 
 
         of April 11, 1985 (Cl.  Ex. 6, pp. 3, 4, 11, 14 & 18).
 
         
 
              Dr. Peterson testified that the injury of April 11, 1985, 
 
         did not aggravate any preexisting condition in claimant's lumbar 
 
         spine (Def.  Ex.  A, pp. 18 & 19).  Dr. Peterson said that when 
 
         he saw claimant on July 1, 1985, claimant's neck was better and 
 
         that claimant had no impairment of the cervical area (Def.  Ex.  
 
         A, pp. 18 through 20).  From the foregoing evidence it is 
 
         determined that claimant did slip on the ladder on April 11, 1984 
 
         even though the employer did not record an incident on that date.  
 
         There is a conflict as to whether claimant fell and landed on his 
 
         back at this time or simply slipped and jerked his neck when he 
 
         caught himself with his hands.  Claimant testified that he hit 
 
         something and fell to the ground and landed on his back.  Hampson 
 
         and Henderson testified that they saw claimant laying on his back 
 
         on the floor below the ladder.  Yet, the recorded office notes of 
 
         Dr. Moreau, Dr. Ivy, Dr. Bell, Dr. Bartleson and Dr. Peterson 
 
         establish only that claimant slipped, caught himself with his 
 
         hands, and jerked his neck (Cl.  Ex. 4, p. 3; Cl.  Ex. 6, pp. 3, 
 
         4, 11, 14 & 18).  Consequently, it is found that claimant did 
 
         sustain an injury that arose out of and in the course of 
 
         employment with employer on April 11, 1985 when he slipped on a 
 
         ladder at work, caught himself with his hands and jerked his neck 
 
         and that this injury had resolved itself by the time claimant was 
 

 
         
 
         
 
         
 
         KRAMER V. JOOHN MORRELL & COMPANY
 
         Page  15
 
         
 
         
 
         seen by Dr. Peterson on July 1, 1985.  It is further found that 
 
         any neck problems that arose after that date are probably a 
 
         continuation of the neck problems that claimant had suffered from 
 
         prior to this injury and which Dr. Moreau had treated for many 
 
         years with chiropractic adjustments (Cl.  Ex. 4, pp. 6 & 7).
 
         
 
              It is further found that claimant did not sustain an injury 
 
         to his lumbar spine on April 11, 1985.  All of the medical 
 
         reports of all of the doctors, including Dr. Carnignan, traced 
 
         the origin of claimant's lumbar spine problems back to 1979 and 
 
         add that these problems have persisted continuously up until the 
 
         present time (Cl.  Ex. 4 & 6).  When Dr. Hranic saw claimant in 
 
         1981 when he injured his back pulling up a pail, the doctor said 
 
         that claimant had a back problem for the past two years since the 
 
         hog hit him in the back in 1979 and that he had been seeing Dr. 
 
         Moreau about every other week (Cl.  Ex. 3, p. 3).  Dr. Moreau 
 
         characterized claimant's back problems as idiopathic (Cl.  Ex. 4, 
 
         p. 2). Dr. Ivy called it chronic lumbar back strain.  Dr. Bell 
 
         called it mechanic low back pain.  Dr. Bartleson said it was 
 
         musculoskeletal low back pain.  Dr. Peterson said it was 
 
         degenerative arthritic changes in the lumbosacral facet joints, 
 
         that his pain was mechanical on the basis of facet arthritis, and 
 
         that it was a wear and tear problem.  Dr. Peterson, with 32 years 
 
         of experience as an orthopedic surgeon and professor of 
 
         orthopedics at the Mayo Clinic declared that claimant's back 
 
         problem was historically related to his 1979 injury when the hog 
 
         fell on him.  Dr. Peterson said that claimant was 10 percent 
 
         impaired, but the impairment was due to the 1979 incident.  Dr. 
 
         Peterson flatly stated that the April 11, 1985 incident did not 
 
         cause any impairment.  Claimant had a full range of motion and a 
 
         normal straight leg raising test.  Dr. Peterson did not impose 
 
         any weight restrictions or any other restrictions on claimant 
 
         (Cl.  Ex.  E; Def.  Ex.  A).
 
         
 
              Even Dr. Carnignan at the time of his first report said that 
 
         claimant's 10 percent impairment rating was due to claimant's 
 
         multiple back injuries during his employment (Cl.  Ex. 8, p. 3).  
 
         When Dr. Carnignan testified in person he then said he did not 
 
         feel claimant had any impairment from the 1979 or 1981 injuries 
 
         because claimant always returned to strenuous work (Tr.'pp. 
 
         55-66).  First of all, this appears to be an opinion based upon 
 
         every day logic rather than any scientific or professional 
 
         medical expertise.  Secondly, it is contrary to every day 
 
         experience. it is not uncommon for injured workers with 
 
         impairment ratings and who are awarded permanent partial 
 
         disability benefits to return to their old job or other strenuous 
 
         work and be able to perform it at the same or even higher level 
 
         of compensation even though they are impaired in their ability to 
 
         do so.  Claimant has always performed his job, however, Dr. 
 
         Peterson characterized shaving hams as light work.  Howrey 
 
         testified that claimant was often absent from work.  Also 
 
         claimant's chiropractic record shows that he required many 
 
         treatments in order to be able to continue to do his job.  
 
         Claimant's absentee record and his medical record with the 
 
         chiropractor bear out Dr. Peterson's opinion that claimant's 10 
 
         percent impairment occurred in 1979 or at least at a much earlier 
 
         point in time than April 11, 1985.
 
         
 
              Claimant argued that Dr. Ivy's interpretation of the Mayo 
 

 
         
 
         
 
         
 
         KRAMER V. JOOHN MORRELL & COMPANY
 
         Page  16
 
         
 
         
 
         Clinic's x-rays was different than that of Dr. Peterson's.  
 
         Claimant also argued that Dr. Moreauls x-rays, as interpreted by 
 
         Dr. Myerly, did not agree with Dr. Peterson.  It is found here 
 
         that each doctor is entitled to his own interpretation of the 
 
         x-rays upon which the doctor formed his own individual opinion.  
 
         The interpretation of x-rays, like beauty, is often in the eye of 
 
         the beholder.  Each doctor is entitled to his own personal 
 
         individual professional interpretation of what the x-ray he is 
 
         examining reveals to him in his own professional experience.  Dr. 
 
         Peterson's opinion is not tarnished by what Dr. Ivy saw or said 
 
         about the x-rays which he examined.  Nor is Dr. Peterson's 
 
         opinion tarnished by what Dr. Myerly saw or said about Dr. 
 
         Moreauls x-rays.  In support of Dr. Peterson, Dr. Myerly did find 
 
         narrowing at L-4, L-5.
 
         
 
              Claimant did not sustain the burden of proof by a 
 
         preponderance of the evidence that he sustained any temporary or 
 
         permanent impairment or disability from the injury to his neck 
 
         which occurred on April 11, 1985.  Claimant lost no time from 
 
         work due to this injury.  He worked from the date of the injury 
 
         until the time the plant closed without any loss of time from 
 
         this injury or any other reason (Def.  Ex.  C, p. 4).  Claimant 
 
         further testified that he lost no time from work due to this 
 
         injury on April 11, 1985.  Dr. Moreau, Dr. Hranic, and none of 
 
         the doctors at the Mayo Clinic ordered claimant not to work.  
 
         There is no evidence in the record of a release to return to work 
 
         after a period of inability to work from any doctor.  On the 
 
         contrary, Dr. moreau found that it was significant enough to 
 

 
         
 
         
 
         
 
         KRAMER V. JOOHN MORRELL & COMPANY
 
         Page  17
 
         
 
         
 
         record on April 30, 1985, which is 19 days after the injury, that 
 
         claimant was able to canoe down the river for six hours (Cl.  Ex. 
 
         4, p. 2).  Consequently, as stated, it is found that claimant did 
 
         not sustain the burden of proof by a preponderance of the 
 
         evidence that the fall of April 11, 1985 was the cause of either 
 
         temporary or permanent impairment or disability and for this 
 
         reason claimant is not entitled to any temporary or 
 
         permanent disability benefits for the injury of April 11, 1985.
 
         
 
              Claimant did not make out a prima facie case that he is an 
 
         odd-lot employee.  First of all, he was not disabled.  Secondly, 
 
         the evidence indicates that claimant's inability to find work is 
 
         more due to the economy, claimant's limited skills and his 
 
         unwillingness to work away from Estherville rather than any 
 
         impairment or disability that he may suffer from this or any of 
 
         his prior injuries.  Guyton v. Irving Jensen Co., 373 N.W.2d 101 
 
         (Iowa 1985).
 
         
 
              Defendant did not sustain the burden of proof by a 
 
         preponderance of the evidence that claimant failed to give notice 
 
         as required by Iowa Code section 85.23 or to timely bring this 
 
         action as provided by Iowa Code section 85.26(l). As to notice, 
 
         claimant reported the fall of April 11, 1985 to the nurse and she 
 
         sent him to Dr. Moreau that same night.  This was not 
 
         controverted.  As to the statute of limitations, the fall 
 
         occurred on April 11, 1985 and claimant filed this petition on 
 
         August 11, 1985.  Therefore, this action is not untimely but was 
 
         brought well within the two year period of limitations.  Claimant 
 
         did not contend his disability arose out of his 1979 or 1981 
 
         injuries.  Claimant at all times asserted that his disability 
 
         arose out of the April 11, 1985 fall because he always returned 
 
         to strenuous work after the previous incidents.
 
         
 
              Since it has been determined that claimant's neck was 
 
         essentially well when he saw Dr. Peterson on July 1, 1985, and 
 
         that any subsequent neck problem was a continuation of the neck 
 
         problem for which claimant had been treating for many years with 
 
         Dr. Moreau prior to April 11, 1985, then claimant is not entitled 
 
         to recover for any medical treatment to his neck by Dr. Carnignan 
 
         in late 1985 and in early 1986.  Dr. Carnignan also found that 
 
         claimant's neck problems were minor and any impairment was not 
 
         measurable.  Claimant is not entitled to recover for any 
 
         treatments to his back by Dr. Carnignan because claimant did not 
 
         prove that his back problems were an injury that arose out of and 
 
         in the course of his employment on April 11, 1985.
 
         
 
              Defendant's argument that claimant is not entitled to 
 
         recover his medical expenses with Dr. Carnignan because Dr. 
 
         Carnignan was not an authorized physician is without merit.  
 
         Defendant has denied liability for an injury and an occupational 
 
         hearing loss which arose out of and in the course of claimant's 
 
         employment.  Defendants are not allowed to deny liability on one 
 
         hand and at the same time control the course of the medical 
 
         treatment.  Barnhart v. MAQ Incorporated, I Iowa Industrial 
 
         Commissioner Reports 16, 17 (Appeal Decision 1981).
 
         
 
              Chapter 85B, Code of Iowa, provides benefits for 
 
         occupational hearing loss.  Section 85B.41. defines occupational 
 

 
         
 
         
 
         
 
         KRAMER V. JOOHN MORRELL & COMPANY
 
         Page  18
 
         
 
         
 
         hearing loss as permanent sensorineural loss of hearing in one or 
 
         both ears in excess of 25 decibels which arises out of and in the 
 
         course of employment caused by prolonged exposure to excessive 
 
         noise levels.  Iowa Code section 85B.4 2. states that excessive 
 
         noise level means sound capable of producing occupational hearing 
 
         loss.  Iowa Code section 85B.5 states that excessive noise level 
 
         is sound which exceeds the times and intensities published in the 
 
         table in that section of the Code.
 
         
 
              Claimant testified that he had no hearing problems prior to 
 
         his employment with employer.  At his pre-employment physical 
 
         examination on February 15, 1987 and again at the time of his 
 
         physical examination on July 13, 1983, claimant stated that he 
 
         had no deafness or ear problems (Cl.  Ex. 1 & 2).  Claimant may 
 
         not have been aware of his hearing loss at that time.  Claimant's 
 
         first knowledge of a hearing loss was when the plant nurse tested 
 
         his hearing sometime before the plant closed and told him to see 
 
         a specialist because he had a great deal of hearing loss.  
 
         Claimant testified that he worked the last year and a half 
 
         shaving hams.  For the four years prior to that he worked on the 
 
         kill floor at the head table using a wizard knife.  Therefore, 
 
         claimant was shaving hams from approximately October of 1984 
 
         until April of 1985.  He worked on the kill floor at the head 
 
         table with the wizard knife then from approximately October of 
 
         1980 until October of 1984.  Claimant testified that the head 
 
         table was the most noisey job and that shaving hams was the 
 
         second noisiest job.  According to the noise level survey (Cl.  
 
         Ex. C) the noise level at the head table - wizard knives is 95 
 
         decibels.  Howrey confirmed this.  Much of his employment was 
 
         before hearing protection was seriously provided to the employees 
 
         in 1984.  Howrey also confirmed that the job of shaving hams was 
 
         at an area where the noise level was 90 decibels.  Howrey agreed 
 
         that claimant worked in these areas eight hours a day, five or 
 
         six days a week (Tr. p. 186).  It was claimant's testimony that 
 
         he always wore hearing protection after it was provided by the 
 
         employer.
 
         
 
              R. David Nelson said that claimant's loss in the higher 
 
         frequencies was similar to that observed in known noise induced 
 
         hearing losses (Cl.Ex.D,p.1).  Dr. Carnignan's interpretation of 
 
         Mr. Nelson's test results was that claimant sustained a five 
 
         percent binaural hearing impairment.  Even though some of Dr. 
 
         Carnignan's intermittent numbers do not appear to be correct, his 
 
         final determination of a five percent loss is correct (Cl.Ex. DI, 
 
         p.2).  Dr. Carnignan testified that claimant's loss of hearing 
 
         was caused by high noise levels at work (Tr.pp.51 & 52).  Mr. 
 
         Nelson said that claimant was a candidate for amplification 
 
         (Cl.Ex.D, p.1). He stated that the cost of binaural hearing aids 
 
         would be $1,250 to $1,350 (Cl.Ex.F).
 
         
 
              Dr. Jorgensen examined the test of Ms. Rudkin and determined 
 
         that the loss pattern was consistent with noise induced loss.  
 
         However, claimant's loss in the lower ranges was unusual and 
 
         suggested some other possible cause for claimant's loss in the 
 
         low frequencies (Def.  Ex. 1, pp. 5-9).  Dr. Jorgensen said that 
 
         he suspected a congenital component in claimant's hearing loss 
 
         (Def.  Ex. 1, p. 19).  However, in order to make any kind of a 
 
         determination as to other causes, it would be necessary to 
 
         examine prior audiograms, but none could be found.  Claimant 
 

 
         
 
         
 
         
 
         KRAMER V. JOOHN MORRELL & COMPANY
 
         Page  19
 
         
 
         
 
         denied any abnormal hearing as a child or while in school (Def.  
 
         Ex. 1, p. 10).  Claimant also denied head injuries, listening to 
 
         rock music, family history of hearing loss, hunting, driving a 
 
         tractor or farming (Tr. pp. 36 & 37; Def.  Ex. 1, pp. 16 & 17).  
 
         Dr. Jorgensen felt that claimant should have hearing aids.  He 
 
         estimated that they would cost between $900 to $1000 (Def.  Ex. 
 
         1, pp. 23 & 24).  Dr. Jorgensen said that he compared Ms. 
 
         Rudkin's test with Mr. Nelson's test and found a 10 decibel 
 
         difference in the lower frequencies which apparently occurred 
 
         during a period of unemployment because Ms. Rudkin's test was 
 
         taken about a year later.  This suggested some other cause for 
 
         claimant's hearing loss (Def.  Ex. 2).  However, Dr. Jorgensen 
 
         also said earlier that a five decibel difference was within 
 
         normal test error and could be due to the claimant's own 
 
         responses (Def.  Ex. 1, p. 15).  Dr. Carnignan said a 10 decibel 
 
         variation could be an eustacion tube situation, operator error or 
 
         a number of factors (Tr. pp. 92-94).  Claimant can only be 
 
         reimbursed on the basis of the lowest audiogram (Iowa Code 
 
         section 85A.9). Defendant did not establish any other cause for 
 
         claimant's hearing loss.  At best, defendant's evidence only 
 
         raises a suggestion of the possibility of some other cause.  The 
 
         10 decibel difference does not appear to be great and neither 
 
         doctor thought that a small decibel difference was significant.  
 
         The greater weight of the evidence then -- the testimony of both 
 
         doctors, the noise level surveys claimant's testimony, Howrey's 
 
         testimony -- do establish that claimant sustained the burden of 
 
         proof by a preponderance of the evidence that he did sustain an 
 
         occupational hearing loss which arose out of and in the course of 
 
         his employment with employer do to a prolonged exposure to 
 
         excessive noise levels as specified in Iowa Code section 85B.5.
 
         
 
              Iowa Code section 85B.14 provides that the provisions of the 
 
         workers' compensation law in Chapter 85 also apply to 
 
         occupational hearing loss insofar as applicable and when not 
 
         inconsistent with Chapter 85B.  Therefore, the notice requirement 
 
         of Iowa Code section 85.23 applies to occupational hearing losses 
 
         because Chapter 85B has no specific notice requirement of its 
 
         own.  Iowa Code section 85.23 generally provides that unless the 
 
         employer has actual knowledge, the employee must give notice 
 
         within 90 days of the occurrence of an injury.
 
         
 
              The sole purpose of the notice requirement is to give the 
 
         employer the opportunity to investigate the injury or hearing 
 
         loss.  Robinson v. Department of Transp., 296 N.W.2d 809, 811 
 
         (Iowa 1-980); Hobbs v. Sioux City, 231 Iowa 860, 862, 2 N.W.2d 
 
         275, 276 (1942).
 
         
 
              Under the facts of this case it appears that the employer 
 
         was equally, if not more aware of claimant's work related hearing 
 
         loss than the employee.  The audiogram that was performed by the 
 
         plant nurse that revealed the hearing loss in this employee was 
 
         known by the employer before the employer made it known to the 
 
         employee.    Consequently, it is determined that the employer in 
 
         this case had actual knowledge of the claimant's occupational 
 
         hearing loss and pursuant to Iowa Code section 85.23, and 
 
         claimant is relieved of giving notice to employer.  This is true 
 
         even though defendant had actual knowledge of the loss prior to 
 
         the injury date that is prescribed by statute.  Dillinger v. City 
 
         of Sioux City, 368 N.W.2d 176, 179 (Iowa 1985).  Failure to give 
 

 
         
 
         
 
         
 
         KRAMER V. JOOHN MORRELL & COMPANY
 
         Page  20
 
         
 
         
 
         notice is an affirmative defense.  Defendant has not sustained 
 
         the burden of proof by a preponderance of the evidence that 
 
         claimant failed to give notice pursuant to Iowa Code section 
 
         85.23.
 
         
 
              Iowa Code section 85B.8 provides as follows:
 
         
 
              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.
 
         
 
              In this case the employee-employer relationship terminated 
 
         on April 27, 1985 when the plant closed.  Claimant was not 
 
         transferred and did not retire.  Therefore, the date of injury is 
 
         April 27, 1985.  The hearing loss action was commenced on 
 
         September 12, 1985.  The action then was commenced within two 
 
         years of the date of the injury.  It is also noted that the 
 
         action was commenced a few days less than six months after the 
 
         separation from employment but no harm is perceived to the 
 
         employer from this slight premature commencement of the action at 
 
         this point in time.
 
         
 
              Claimant did sustain the burden of proof by a preponderance 
 
         of the evidence that he is entitled to a hearing aid by 
 
         establishing that he does have a compensable hearing loss.  Iowa 
 
         Code section 85B.12 provides as follows: "...An employer who is 
 
         liable for occupational hearing loss of an employee is required 
 
         to provide the employee with a hearing aid unless it will not 
 
         materially improve the employee's ability to communicate."
 
         
 
              Both doctors testified that claimant would benefit from a 
 
         hearing aid.  Therefore, it is determined that claimant is 
 
         entitled to a binaural hearing aid.  The lowest cost estimate was 
 
         submitted by Dr. Jorgensen.  He said the cost would be 
 
         approximately $900 to $1,000.  Claimant than is entitled to a 
 
         hearing aid in this price range.  The employer may, of course, 
 
         select the source of the aids and the audiologist.
 
         
 
                              FINDINGS OF FACT
 
         
 
              WHEREFORE, based upon the evidence presented, the following 
 
         findings of fact are made:
 
         
 
              That claimant was employed by employer from February 15, 
 
         1977 to April 27, 1585.
 
         
 

 
         
 
         
 
         
 
         KRAMER V. JOOHN MORRELL & COMPANY
 
         Page  21
 
         
 
         
 
              That claimant slipped on a ladder on April 11, 1985 and 
 
         caught himself with his hands and jerked his neck.
 
         
 
              That as a result of this incident, claimant sustained an 
 
         injury that arose out of and in the course of his employment.
 
         
 
              That this injury had resolved itself by July 1, 1985 when 
 
         claimant saw Dr. Peterson at the Mayo Clinic.
 
         
 
              That any subsequent neck pain after July 1, 1985 was a 
 
         recurrence of the neck pain for which claimant had been receiving 
 
         chiropractic treatments for several years prior to this injury.
 
         
 
              That claimant did not sustain an injury to his lower spine 
 
         on April 11, 1985 which arose out of and in the course of his 
 
         employment with employer.
 
         
 
              That claimant told Dr. Hranic, Dr. Ivy, Dr. Bell, Dr. 
 
         Bartleson, and Dr. Peterson that his lumbar spine problem began 
 
         in 1979 when he was hit with a hog carcass and that his lumbar 
 
         spine symptoms have continued since that time.
 
         
 
              That Dr. Moreau said that claimant's lumbar spine problems 
 
         were:idiopathic.
 
         
 
              That Dr. Peterson's interpretation of the x-rays he examined 
 
         is no way impugned by Dr. Ivy's interpretation of the same x-rays 
 
         or Dr. Myerly's interpretation of Dr. Moreauls x-rays.
 

 
         
 
         
 
         
 
         KRAMER V. JOOHN MORRELL & COMPANY
 
         Page  22
 
         
 
         
 
         
 
              That Dr. Peterson testified that claimant had degenerative 
 
         arthritic changes in the lumbosacral facet joints.
 
         
 
              That claimant lost no time from work due to the injury to 
 
         his neck on April 11, 1985.
 
         
 
              That no doctor ordered claimant not to work as a result of 
 
         the injury to his neck on April 11, 1985.
 
         
 
              That 19 days after this injury claimant was able to canoe 
 
         down the river for six hours.
 
         
 
              That claimant was exposed to high levels of noise during his 
 
         eight years of employment with employer from February 15, 1977 to 
 
         April 27 1985.
 
         
 
              That claimant was exposed to excessive noise levels of 95 
 
         decibels when he worked at the head table with a wizard knife for 
 
         approximately four years and that much of this period of time was 
 
         before hearing protection was provided.
 
         
 
              That Dr. Jorgensen and Dr. Carnignan concurred that 
 
         claimant's hearing loss was consistent with prolonged exposure to 
 
         high noise levels.
 
         
 
              That defendant had actual knowledge of claimant's hearing 
 
         loss before defendant notified claimant of it from the audiogram 
 
         that was taken by the plant nurse.
 
         
 
              That claimant terminated his employment on April 27, 1985 
 
         when the plant closed.
 
         
 
              That claimant has sustained a five percent binaural hearing 
 
         loss.
 
         
 
              That claimant would benefit from a hearing aid.
 
         
 
                                  CONCLUSIONS OF LAW
 
         
 
              THEREFORE, based on the evidence presented and the 
 
         principles of law previously discussed, the following conclusions 
 
         of law are made:
 
         
 
              That claimant did sustain the burden of proof by a 
 
         preponderance of the evidence that he sustained an injury to his 
 
         neck on April 11, 1985.
 
         
 
              That claimant did not prove that his neck injury was the 
 
         cause of any temporary or permanent disability.
 
         
 
              That claimant did not prove any entitlement either temporary 
 
         or permanent disability benefits for his neck injury.
 
         
 
              That claimant did not sustain the burden of proof by a 
 
         preponderance of the evidence that he sustained an injury to his 
 
         lumbar spine on April 11, 1985.
 
         
 
              That claimant did not make out a prima facie case that he is 
 

 
         
 
         
 
         
 
         KRAMER V. JOOHN MORRELL & COMPANY
 
         Page  23
 
         
 
         
 
         an odd-lot employee.
 
         
 
              That claimant did not prove entitlement to the medical bills 
 
         for Dr. Carnignan's charges in the amount of $72.
 
         
 
              That claimant sustained an occupational hearing loss as 
 
         defined in Chapter 85B, Code of Iowa, which arose out of and in 
 
         the course of his employment with the employer (Iowa Code section 
 
         85B.4).
 
         
 
              That the hearing loss was caused by claimant's employment 
 
         with the employer.
 
         
 
              That the amount of the loss is five percent of a total loss 
 
         of hearing (Iowa Code section 85B.9).
 
         
 
              That claimant is entitled to five percent of 175 weeks of 
 
         occupational hearing loss compensation (Iowa Code section 
 
         85B.6).
 
         
 
              That the date of injury is April 27, 1985 when claimant 
 
         terminated his employment with employer (Iowa Code section 
 
         85B.8).
 
         
 
              That defendant had actual knowledge of the loss (Iowa Code 
 
         sections 85B.14 and 85.23).
 
         
 
              That claimant's action was timely commenced (Iowa Code 
 
         sections 85B.8 and 85.26(l)).
 
         
 
              That claimant's compensable hearing loss entitles claimant 
 
         to a hearing aid (Iowa Code section 85B.12).
 
         
 
                                         ORDER
 
         
 
              THEREFORE, IT IS ORDERED:
 
         
 
              That defendant pay to claimant eight point seven-five (8.75) 
 
         weeks (.05 x 175) of occupational hearing loss compensation at 
 
         the rate of two hundred two and 67/100 dollars ($202.67) per week 
 
         in the total amount of one thousand seven hundred seventy-three 
 
         and 36/100 dollars ($1,773.36) (8.75 x $202.67) commencing on 
 
         April 27, 1987.
 
         
 
              That these benefits are to be paid in a lump sum.
 
         
 
              That interest will accrue under Iowa Code section 85.30.
 
         
 
              That defendant provide claimant with a binaural hearing aid 
 
         at a cost of between nine hundred dollars ($900) to one thousand 
 
         dollars ($1,000).
 
         
 
              That pursuant to Division of Industrial Services Rule 
 
         343-4.33 the costs of both parties for the alleged injury of 
 
         April 11, 1985 are taxed to claimant.
 
         
 
              That the costs of both parties for the occupational hearing 
 
         loss of April 27, 1985 are taxed to employer.
 
         
 

 
         
 
         
 
         
 
         KRAMER V. JOOHN MORRELL & COMPANY
 
         Page  24
 
         
 
         
 
              That the costs of both parties for the attendance of the 
 
         certified shorthand reporter at the hearing are taxed to 
 
         employer.
 
         
 
              That defendant will remain liable for future medical 
 
         expenses as a result of the occupational hearing loss.
 
         
 
              That defendant will file claim activity reports as requested 
 
         by this agency pursuant to Division of Industrial Services Rule 
 
         343-3.1.
 
         
 
         
 
         
 
         Signed and filed this 21st day of July, 1987.
 
         
 
         
 
         
 
         
 
         
 
                                           WALTER R. McMANUS, JR.
 
                                           DEPUTY INDUSTRIAL COMMISSIONER
 
         
 
         
 
         Copies To:
 
         
 
         Mr. E. W. Wilcke
 
         Attorney at Law
 
         826 1/2 Lake Street
 
         P. 0. Box 455
 
         Spirit Lake, Iowa 51360
 
         
 
         Mr. E. J. Kelly
 
         Attorney at Law
 
         STE 111, Terrace Center
 
         2700 Grand Ave.
 
         Des Moines, Iowa 50312
 
         
 
         Mr. Dick Montgomery
 
         Attorney at Law Professional Bldg.
 
         P. 0. Box 7038
 
         Spencer, Iowa 51301
 
         
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                            1106; 1402.20; 1402.30 
 
                                            1402.40; 1402.50; 1402.60 
 
                                            1403.30; 1801; 1802; 1803 
 
                                            1808.50; 2200; 2401; 2501 
 
                                            2801; 2802; 2803; 4100
 
                                            Filed July 21, 1987
 
                                            WALTER R. McMANUS, JR.
 
         
 
                   BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         _________________________________________________________________
 
         
 
         ROY ALLEN KRAMER,
 
         
 
              Claimant,
 
                                                FILE NOS. 801735 & 801734
 
         VS.
 
                                                 A R B I T R A T I 0 N
 
         JOHN MORRELL & COMPANY,
 
                                                    D E C I S I 0 N
 
              Employer,
 
              Self-Insured,
 
              Defendant.
 
         _________________________________________________________________
 
        
 
         1106; 1808.50; 1402.20; 1402.30; 1402.40; 2200
 
         
 
              Claimant said he slipped on a ladder and fell injuring both 
 
         his cervical spine and his lumbar spine.  After reviewing 
 
         evidence of 5 lay witnesses and 6 doctors, it was determined that 
 
         the neck injury was an injury that arose out of and in the course 
 
         of employment but the lumbar complaints were not.
 
         
 
              Claimant did sustain the burden of proof by his own 
 
         testimony, noise level surveys, the defendants personnel manager, 
 
         two doctors and an audiologist that he sustained a binaural 
 
         hearing loss of 5% that arose out of and in the course of his 
 
         employment.
 
         
 
         1801; 1802; 1803
 
         
 
              Claimant lost no time from work and no doctor stated 
 
         claimant had any temporary disability during a period of recovery 
 
         or any permanent disability due to the cervical injury.
 
         
 
              Claimant was entitled to 8.75 weeks of occupational hearing 
 
         loss compensation.
 
         
 
         4100
 
         
 
              Claimant was not odd-lot because he was not disabled.  Also 
 
         poor economy and possibly claimant's own poor efforts were 
 
         primarily why he was not working.
 
         
 
                                                
 
                                                         
 
         1402.50; 1403.30; 2401; 2801; 2802; 2803
 
         
 
              Claimant notified employer of the fall at the time it 
 
         happened and was sent to the doctor the same day.  The action was 
 
         timely brought a few months later.
 
         
 
              Employer knew of the hearing loss prior to the employee due 
 
         to employer administered hearing test.  Termination of employment 
 
         was date of injury under ICS 85B.8. Action was brought a few days 
 
         short of 6 months after date of injury but no,prejudice seen to 
 
         employer.
 
         
 
         1402.60; 2501
 
         
 
              Employer not liable for 4 office visits to claimant's 
 
         doctor.  Two of the visits were admittedly trial preparation and 
 
         all four were for the lumbar complaints which were determined not 
 
         to be an injury arising out of and in the course of employment.
 
         
 
              Claimant was entitled to binaural hearing aid at lowest cost 
 
         estimate submitted.