1108.50; 2200; 1802; 1801.1;
 
                                        1803
 
                                        Filed February 14, 1994
 
                                        Helenjean M. Walleser
 
            
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
                      
 
            LINDA R. ELLINGSON, 
 
                      
 
                 Claimant, 
 
                      
 
            vs.       
 
                                            File Nos. 805094 1015070
 
            FLEETGUARD, INC.,   
 
                                             A R B I T R A T I O N
 
                 Employer, 
 
                                               D E C I S I O N
 
            and       
 
                      
 
            LIBERTY MUTUAL INSURANCE CO., 
 
                      
 
                 Insurance Carrier,  
 
                 Defendants.    
 
            ___________________________________________________________
 
            1108.50; 2200; 1802; 1801.1; 1803
 
            
 
                 Per treating physician's opinion testimony, claimant's 
 
            continuing complaints and need for additional surgery 
 
            related back to her original injury and did not constitute a 
 
            new injury by way of cumulative aggravation of a preexisting 
 
            condition resulting from the original injury.  
 
            
 
                 Claimant entitled to temporary partial disability 
 
            benefits during those periods of time in which claimant 
 
            worked less than an eight hour day pursuant to an express 
 
            medical restriction.  
 
            
 
                 Claimant entitled to healing period benefits for those 
 
            days when claimant was actually off work on account of the 
 
            work-related injury and its sequela or actually off work for 
 
            a full day on account of the need for treatment for the 
 
            work-related injury.  Held that the workers' compensation 
 
            law does not provide for payment of time lost for less than 
 
            a full day for treatment under section 85.27.  The deputy 
 
            declined to quasi-judicially legislate as regards this 
 
            issue.  
 
            
 
                 Held that claimant whose personal perception of her 
 
            limitations differed significantly from her treating 
 
            physician's opinion as to the level of discomfort she should 
 
            experience while engaging in various work-related activities 
 
            and activities of daily living and whose lifting restriction 
 
            of 20 pounds resulted from self-limitation which was 
 
            substantially less [approximately one-third] of that which 
 
            objective mechanized testing established claimant 
 
            objectively should have been able to perform, awarded 20 
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            percent permanent partial disability subsequent to second 
 
            cervical fusion.  Claimant remained at work albeit on a 
 
            part-time basis.  The employer had made substantial efforts 
 
            to accommodate claimant which efforts claimant often 
 
            thwarted given claimant's self perceptions as to those 
 
            activities in which she could engage.
 
            
 
 
         
 
         
 
         
 
         
 
         
 
         
 
                      BEFORE THE IOWA INDUSTRIAL COMMISSIONER 
 
         _________________________________________________________________
 
                                         
 
         LINDA R. ELLINGSON,             :
 
                                         :
 
              Claimant,                  :
 
                                         :   File Nos. 805094/1015070
 
         vs.                             :
 
                                         :           O R D E R
 
         FLEETGUARD, INC.,               :
 
                                         :            N U N C
 
              Employer,                  :
 
                                         :             P R O
 
         and                             :
 
                                         :            T U N C
 
         LIBERTY MUTUAL INSURANCE CO.,   :
 
                                         :
 
              Insurance Carrier,         :
 
              Defendants.                :
 
         _________________________________________________________________
 
         
 
              The appeal decision filed June 30, 1994, ordered defendants 
 
         to pay claimant weekly permanent partial disability benefits for 
 
         20 weeks instead of one hundred weeks as set forth in the 
 
         analysis portion of the decision.
 
         
 
              THEREFORE, it is ordered:
 
         
 
              That defendants shall pay claimant one hundred (100) weeks 
 
         of permanent partial disability benefits at a rate of one hundred 
 
         ninety-two and 12/100 dollars ($192.12) commencing on August 12, 
 
         1993.
 
         
 
              Signed and filed this ____ day of July, 1994.
 
         
 
         
 
         
 
         
 
                                       ________________________________
 
                                                BYRON K. ORTON
 
                                           INDUSTRIAL COMMISSIONER
 
         
 
         Copies To:
 
         
 
         Mr. Mark S. Soldat
 
         Attorney at Law
 
         714 E. State St.
 
         Algona, Iowa 50511
 
         
 
         Mr. Tito Trevino
 
         Attorney at Law
 

 
         
 
         Page   2
 
         
 
         
 
         
 
         
 
         
 
         
 
         
 
         P.O. Box 1680
 
         Fort Dodge, Iowa 50501
 
         
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                    BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         
 
         MARTHA MCCOY,
 
         
 
              Claimant,
 
                                               FILE NOS. 805200 & 752670
 
         VS.
 
                                                A R B I T R A T I 0 N
 
         DONALDSON COMPANY, INC.,
 
                                                   D E C I S I 0 N
 
              Employer,
 
         
 
         and
 
         
 
         TRAVELERS INSURANCE COMPANY,
 
         
 
              Insurance Carrier,
 
         
 
         and
 
         
 
         SECOND INJURY FUND,
 
         
 
              Defendants.
 
         
 
         
 
         
 
                              STATEMENT OF THE CASE
 
         
 
              This is a proceeding in arbitration brought by Martha McCoy, 
 
         claimant, against Donaldson Company, Inc., employer (hereinafter 
 
         referred to as Donaldson), Travelers Insurance Company, the 
 
         insurance carrier for Donaldson, and the Second Injury Fund for 
 
         workers compensation benefits as a result of alleged injuries on 
 
         September 1, 1982 and June 25, 1984.  On January 4, 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 
 
         Wayne Funk.  The exhibits received into the evidence at  the 
 
         hearing are listed in the prehearing report.  According to the 
 
         prehearing report, the parties have stipulated to the following 
 
         matters:
 
         
 
              1.  With reference to defendant Donaldson only, on September 
 
         1, 1982 and again on June 25, 1984, claimant received an injury 
 
         which arose out of and in the course of her employment with 
 
         Donaldson.
 
              
 
              2.  With reference to defendant Donaldson only, claimant's 
 
         rate,of weekly compensation in the event of an award of weekly 
 
         benefits from this proceeding shall be $236.68 for the June, 
 

 
         
 
         
 
         
 
         MCCOY V.DONALDSON COMPANY, INC.
 
         Page   2
 
         
 
         
 
         1984, injury and $224.21 for the September, 1982, injury.
 
         
 
              3.  Claimant is not seeking additional temporary total 
 
         disability or healing period benefits in this proceeding.
 
         
 
              Taken under advisement at the hearing was an objection by 
 
         defendant Second Injury Fund to a portion of the deposition 
 
         testimony of Thomas B. Summers, M.D., Exhibit I, and 
 
         specifically Dr. Summers' answer to the question "Can you give 
 
         us some examples of jobs which would not be suitable for her 
 
         based upon complaints of either or both hands?"  Defendant 
 
         Second Injury Fund argues that this is an improper question of 
 
         a medical doctor as it calls for a question beyond his 
 
         expertise and that the doctor was not shown to be a qualified 
 
         rehabilitation specialist.  This objection is overruled as the 
 
         objection goes to the weight that the undersigned should give 
 
         to Dr. Summers' opinions rather than to its admissibility in an 
 
         administrative proceeding.  In any event, the answers are not 
 
         particularly probative as it identifies jobs involving 
 
         "vibrating tools" in the course of industries which the doctor 
 
         was familiar with.  The doctor did not identify what types of 
 
         industry he was familiar with.
 
         
 
              Also, taken under advisement was an objection from the 
 
         defendant Second Injury Fund to any application of a cumulative 
 
         trauma theory to this case as first applied by the Iowa Supreme 
 
         Court in the case entitled McKeever Custom Cabinets v. Smith, 
 
         379 N.W.2d 368 (Iowa 1985).  Defendant Second Injury Fund 
 
         argues that claimant has not plead such a theory before the 
 
         hearing and no other injury dates were plead in this case.  
 
         This objection is likewise overruled.  First, legal theories 
 
         need not be plead before they can be applied by a tribunal to 
 
         the facts of a contested case.  Second, the operative facts 
 

 
         
 
         
 
         
 
         MCCOY V.DONALDSON COMPANY, INC.
 
         Page   3
 
         
 
         
 
         relied upon by claimant in this case and specifically the 
 
         factual setting of a gradual onset or worsening of carpal 
 
         tunnel syndromes over time were well known to all parties to 
 
         this case long before the hearing.  In fact, the McKeever case 
 
         itself arose from a carpal tunnel type of work injury.  Third, 
 
         any requirement that a claimant is limited at hearing to only 
 
         the injury dates pled in an overuse syndrome type of case would 
 
         be unusually harsh and contrary to the humanitarian principles 
 
         of the Iowa Workers' Compensation Acts.  Cumulative trauma 
 
         theory is extremely complicated and difficult to apply even by 
 
         specialists in the workers' compensation law.  The guidance of 
 
         McKeever is not definitive for all factual settings and a 
 
         tribunal may choose from several differing dates over a long 
 
         period of time and differing injury dates may result depending 
 
         upon the types of disability requested by the claimant.  Given 
 
         claimant's long history of medical treatment for overuse 
 
         syndrome, the multiple reports of injury involved in this case 
 
         and the depositions from physicians taken in this case 
 
         describing a long process of gradual injury, defendant Second 
 
         Injury Fund was not mislead nor did it lack reasonable notice 
 
         that claimant had cumulative or gradual injury claim.  
 
         Defendants, as well as claimant, are presumed to know the law 
 
         before they arrive at a hearing.
 
         
 
                                    ISSUES
 
         
 
              The parties submitted the following issues for determination 
 
         at the hearing:
 
         
 
              I.  Whether claimant received an injury arising out of and 
 
         in the course of employment;
 
         
 
             II.  Whether there is a causal relationship between the work 
 
         injury and the claimed disabilities;
 
         
 
            III.  The extent of weekly disability benefits to which 
 
         claimant is entitled; and,
 
         
 
             IV.  The weekly rate of compensation to which claimant is 
 
         entitled.
 
         
 
                             SUMMARY OF THE EVIDENCE
 

 
         
 
         
 
         
 
         MCCOY V.DONALDSON COMPANY, INC.
 
         Page   4
 
         
 
         
 
         
 
              The following is a summary of evidence presented in this 
 
         case.  For the sake of brevity, only the evidence most pertinent 
 
         to this decision is discussed.  Whether or not specifically 
 
         referred to in this summary, all of the evidence received at the 
 
         hearing was considered in arriving at this decision.  As will be 
 
         the case any attempted summarization, conclusions about what the 
 
         evidence may show are inevitable.  Such conclusions, if any, in 
 
         the following summary should be considered as preliminary 
 
         findings of fact.
 
         
 
              Claimant testified that she worked for Donaldson from 
 
         November 7, 1972 until November 9, 1984.  She stated that she 
 
         performed many jobs at Donaldson such as making boxes, common 
 
         laborer work, assembly press, "saws", "heliarc" and work on the 
 
         paint line.  Claimant testified that she earned $9.37 per hour in 
 
         her job at the time of the alleged work injuries in this case in 
 
         1984.  Claimant stated that in addition she received 
 
         approximately three hours of extra pay per week for a reward for 
 
         meeting production quotas.  Claimant testified that most of her 
 
         work at Donaldson's involved repetitive hand work which was at 
 
         times heavy.
 
         
 
              The facts surrounding the alleged work injuries are in 
 
         dispute.  Claimant testified that she first began to experience 
 
         difficulties with her right arm and wrist following work activity 
 
         in 1980 while "making boxes" at a rapid pace.  She said that her 
 
         right hand would occasionally fall asleep after repetitive 
 
         activity but she didn't "think much about itO at first.  However, 
 
         claimant said that her hand problems gradually grew worse with 
 
         pain and tingling in the right hand following her work on her 
 
         shift and during the night.  She reported her problems at that 
 
         time to her supervisors and she was referred to the company 
 
         doctor.  According to her medical records, claimant was 
 
         subsequently referred to an orthopedic surgeon, Carl 0. Lester, 
 
         M.D., who treated claimant over the next several years for carpal 
 
         tunnel problems in both the right and left hands and arms.  After 
 
         his treatment consisting of medication and wrist splints, Dr. 
 
         Lester first imposed work restrictions on claimant's activities 
 
         as a result of her right hand problems in March, 1980.  However, 
 
         Dr. Lester noted in April, 1980, that claimant also had left hand 
 
         difficulties at that time.  Claimant said that despite her left 
 
         hand problems, the right hand symptoms were much worse and 
 
         eventually in September, 1980, she received carpal tunnel release 
 
         surgery to the right hand.  After a few weeks following the 
 
         surgery, claimant returned to work.  In May, 1981, Dr. Lester 
 
         stated that claimant should avoid, in the future, jobs involving 
 
         pushing with the palm of the right hand or any repetitive act 
 
         that applies pressure to the palm while pushing with the right 
 
         hand.  However, he opined that claimant suffered no permanent 
 
         partial disability to her right arm as a result of the carpal 
 
         tunnel problems.  Dr. Lester also recommended that claimant 
 
         continue wearing wrist splints.
 
         
 
              Claimant testified that despite the restrictions imposed by 
 
         Dr. Lester in 1981, her work at Donaldson after that time would 
 
         occasionally violate these restrictions and she continued to 
 
         experience bilateral arm and wrist pain.  Dr. Lester continued to 
 
         impose the same restrictions which eventually prohibited heavy 
 

 
         
 
         
 
         
 
         MCCOY V.DONALDSON COMPANY, INC.
 
         Page   5
 
         
 
         
 
         lifting in excess of 25,pounds.  According to Dr. Lester's 
 
         medical records, claimant's right arm difficulties continued into 
 
         1982.  In September, 1982, claimant testified that she began to 
 
         experience greater difficulties with numbness, tingling and pain 
 
         in her left wrist and arm.  At that time Dr. Lester treated 
 
         claimant with injections into the left arm.  In November, 1982, 
 
         Dr. Lester indicated that claimant's work limitations as a result 
 
         of her left hand injury are the same as limitations imposed for 
 
         right hand problems.  Claimant continued to be treated 
 
         periodically by Dr. Lester for both left and right hand problems 
 
         but mostly for her left pain in 1983.  Also, during 1983, Dr. 
 
         Lester imposed gradually more restrictive limitations on her work 
 
         activity consisting of no lifting over 25 pounds and a 
 
         prohibition against several repetitive jobs at Donaldson which 
 
         became more numerous as time went on.  However, claimant 
 
         testified that she was still occasionally assigned to these jobs 
 
         when she was needed by Donaldson.  Finally, in December, 1983, 
 
         Dr. Lester performed a carpal tunnel release surgery on 
 
         claimant's left hand.
 
         
 
              According to the records of Dr. Lester, claimant continued 
 
         to experience both left and right hand and arm problems in 1984. 
 
          Following the left hand surgery, Dr. Lester first indicated that 
 
         his restrictions against several jobs at Donaldson and the 
 
         prohibition against lifting over 25 pounds was permanent.  
 
         Claimant was last seen by Dr. Lester on August 17, 1984, for left 
 
         hand and arm pain.  At that time, claimant apparently became 
 
         dissatisfied with Dr. Lester's inability to solve her problems 
 
         and she requested and obtained a second opinion from Scott Neff, 
 
         D.O., another orthopedic surgeon.  After his evaluation of 
 
         claimant, Dr. Neff continued to see claimant a few times in 1984.  
 
         Claimant was last seen by Dr. Neff in January, 1985.
 
         
 
              According to Dr. Neff, claimant did not complain to him 
 
         about left hand problems when she first saw him on August 31, 
 
         1984, 14 days after claimant was last treated for left arm and 
 
         hand pain by Dr. Lester.  Dr. Neff states that in his report and 
 
         in his deposition that the focus of his attention was on the 
 
         right hand pain and a possible reoccurrence of carpal tunnel 
 
         problems and what appeared to be new ulnar nerve problems.  After 
 
         his conservative therapy failed to alleviate claimant's 
 
         difficulties, Dr. Neff referred claimant to a specialist in hand 
 
         surgery at the University of Iowa, Bruce Sprague, M.D.  After his 
 
         examination of claimant in October, 1984, Dr. Sprague concluded 
 
         that claimant had a good result from surgery on the left.  
 
         However, with reference to the right extremity, Dr. Sprague 
 
         states in his report of August 15, 1984, that there was scarring 
 
         around the mid-palmar or palmar cutaneous nerve and tendonitis in 
 
         the extensor compartments of the right wrist along with 
 
         irritation of the ulnar nerve.  Dr. Sprague notes that nerve 
 
         conduction studies, however, were normal.  Dr. Sprague concluded 
 
         that claimant would not be able to continue performing any 
 
         repetitive type of work due to these problems.  Dr. Sprague noted 
 
         that claimant had not been able to work since September 10, 1984, 
 
         because of these right hand problems.
 
         
 
              In October, 1984, claimant returned to work at Donaldson in 
 
         a special light duty status in which she worked as a janitor on a 
 
         part-time basis and received partial workers' compensation 
 

 
         
 
         
 
         
 
         MCCOY V.DONALDSON COMPANY, INC.
 
         Page   6
 
         
 
         
 
         benefits.  Claimant testified that she was assigned to scrub 
 
         floors, vacuum floors and perform other general cleaning 
 
         janitorial duties.  She also was assigned on occasion as needed 
 
         back to the various assembly jobs at Donaldson that she performed 
 
         before September 10, 1984.  Unfortunately, this special 
 
         arrangement for claimant did not last.  In November, 1984, 
 
         claimant was laid off in a general plant wide economic layoff.  
 
         However, when she was recalled in December, 1984, she was 
 
         informed at a meeting, attended by the plant manager at Donaldson 
 
         and the union president that work was no longer available to 
 
         claimant under her work restrictions.  Company officials 
 
         indicated that they needed a person who would be available to 
 
         perform occasionally regular work in the plant on an as needed 
 
         basis.  Claimant testified that she was unhappy with Donaldson's 
 
         decision to terminate her and that she felt that there were jobs 
 
         she could do despite her disability.  The union president 
 
         testified that a person with less seniority than claimant was 
 
         hired for a janitorial position after claimant was terminated by 
 
         Donaldson.
 
         
 
              In January, 1985, Dr. Neff opined that claimant suffered 
 
         from a three percent permanent partial impairment to her right 
 
         extremity as a result of her continuing problems.  He later 
 
         raised this rating in June, 1987, to five percent due to 
 
         claimant's continuing problems.  Dr. Neff felt that the claimant 
 
         had no disability to the left arm because she did not complain to 
 
         him of left hand problems.  In his deposition, Dr. Neff 
 
         attributed claimant's hand problems to claimant's work at 
 
         Donaldson but noted in his records that claimant also suffered 
 
         pain while washing walls and peeling potatoes at home.  On one 
 
         occasion in October, 1984, Dr. Neff complained that claimant's 
 
         pain complaints were not consistent.
 
         
 
              On December 6, 1986, claimant was evaluated by a 
 
         neurologist, Thomas B. Summers, M.D.  Dr. Summers arrived at 
 
         similar conclusions as those of Dr. Neff concerning the extent of 
 
         claimant's impairment to the right arm.  Although he did not have 
 
         Dr. Neff's medical reports or deposition, Dr. Summers was aware 
 
         of Dr. Neff's opinion as to the extent of claimant's right and 
 
         left hand impairments.  Contrary to Dr. Neff's opinions, Dr. 
 
         Summers concluded that claimant has at least "minimalO impairment 
 
         to the left arm.  He rates this impairment at two percent of the 
 
         left arm.  He felt that it was most likely that the overuse of 
 
         the left arm was caused by the claimant's right hand difficulties 
 
         in 1980, as claimant is right handed and transferred many of her 
 
         hand work from the right to the left at that time.  Finally, Dr. 
 
         Summers pointed out under the new AMA Guidelines for measuring 
 
         impairment, unlike before, subjective symptoms of pain and loss 
 
         of sensation can be utilized to arrive at an impairment rating.
 
         
 
              At the present time claimant is still taking Motrin for her 
 
         pain four times a day and her right arm bothers her more than her 
 
         left arm although she insists that she continues to experience 
 
         left hand difficulties.  Claimant is 44 years of age and has a 
 
         high school education.  Claimant testified that she was a OCO 
 
         student in high school.  Claimant said that she had no other 
 
         formal training.  Prior to working at Donaldson claimant worked 
 
         as a waitress and as a clerk in a shoe store and a grocery store 
 
         earning approximately $.75 per hour.  Before working at 
 

 
         
 
         
 
         
 
         MCCOY V.DONALDSON COMPANY, INC.
 
         Page   7
 
         
 
         
 
         Donaldson, claimant said that she has never earned more than $.75 
 
         per hour.  Claimant and the president of the union at Donaldson 
 
         testified that since claimant's termination, the union contract 
 
         provided for a cut,in wages to the extent of $1.76 per hour but 
 
         the union president testified that he was planning an upcoming 
 
         negotiation to reinstate this wage cut.  Claimant was limited in 
 
         testifying as to her efforts to look for suitable work after her 
 
         termination at Donaldson due to rulings at hearing by the 
 
         undersigned that she should not testify inconsistently with her 
 
         answers to interrogatories which had not been supplemented as 
 
         required by applicable procedural rules.  However, in response to 
 
         defendant Second Injury Fund's question, claimant testified that 
 
         she was unsuccessful in seeking work since December of 1987.  Her 
 
         job seeking efforts have consisted of monitoring the local 
 
         newspaper and making an application to a local electric utility 
 
         company for the position of meter reader.
 
         
 
              Since September, 1986, claimant has been working as a 
 
         self-employed babysitter and is currently taking care of three 
 
         small children.  She denies the ability to hold the heavier 
 
         children in this work.  Claimant testified that since she now has 
 
         three children, she has gross earnings of approximately $150 per 
 
         week from her babysitting work.
 
         
 
              Claimant's appearance and demeanor at the hearing indicated 
 
         that she was testifying truthfully.
 
         
 
                           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 
 
         l979); Crowe v. DeSoto Consol. Sch. Dist., 246 Iowa 402, 68 
 
         N.W.2d 63 (1955).  An employer takes an employee subject to any 
 
         active of 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.
 
         
 
              It is not necessary that claimant prove her disability 
 
         results from a sudden unexpected traumatic event.  It is 
 
         sufficient to show that the disability developed gradually or 
 
         progressively from work activity over a period of time.  
 
         McKeever Custom Cabinets v. Smith, 379 N.W.2d 368 (Iowa 1985).  
 
         The McKeever court held that the date of injury in gradual injury 
 
         cases is a time when pain prevents the employee from continuing 
 
         to work.  In McKeever the injury date coincided with the time 
 
         claimant was finally compelled to give up his job.  This date was 
 
         then utilized in determining the rate and the timeliness of 
 
         claimant's claim under time limitation provisions.
 
         
 
              In the case sub judice, the greater weight of the evidence 
 
         shows that claimant had a longstanding ongoing injury process to 
 
         each of her extremities.  Whether or not there were two separate 
 
         injuries to the right arm is not important.  What is important is 
 

 
         
 
         
 
         
 
         MCCOY V.DONALDSON COMPANY, INC.
 
         Page   8
 
         
 
         
 
         the injury date for purposes of rate and awarding permanent 
 
         disability for the right arm impairment.  Obviously, claimant 
 
         permanently left her employment at Donaldson when she was finally 
 
         terminated in December, 1984.  Under the McKeever, doctrine this 
 
         could be considered as the time of injury.  However, she was in a 
 
         part-time job at that time and her gross weekly earnings would 
 
         not be reflective of the proper rate for her disability.  The 
 
         evidence indicates that she permanently left her normal work at 
 
         Donaldson on September 10, 1984.  After that time she was placed 
 
         in a light duty janitor job on a part-time basis.  The alleged 
 
         date in the petition for the right arm injury certainly was one 
 
         of the many injury dates and a part of the overall cumulative 
 
         injury process but she returned to work after that time for a 
 
         short period of time and continued to suffer additional 
 
         cumulative injuries.  Therefore, the correct date of injury under 
 
         the McKeever doctrine for the cumulative injury process to 
 
         claimant's right extremity is September 10, 1984.
 
         
 
              The next question is the injury date for the left hand 
 
         problems.  Although claimant's left hand difficulties were less 
 
         severe, it does appear from the record that claimant's work 
 
         restrictions were, in part, at least attributable to claimant's 
 
         left hand difficulties according to the records of Dr. Lester.  
 
         However, it is apparent from the records of Dr. Neff that 
 
         claimant did not leave for normal work at Donaldson on September 
 
         10, 1984 due to pain and difficulties from her left hand.  
 
         Therefore, that injury date would not be appropriate for the left 
 
         hand difficulties.  There is actually a multitude of possible 
 

 
         
 
         
 
         
 
         MCCOY V.DONALDSON COMPANY, INC.
 
         Page   9
 
         
 
         
 
         injury dates in the left hand cumulative injury process and a 
 
         problem arises as to choosing one of those dates to be 
 
         representative of the entire process.  It appears to this deputy 
 
         that the only logical way to approach the problem is to realize 
 
         that each absence of work or period of disability during this 
 
         process would have its own injury date.  Consequently, each type 
 
         of disability will have its own injury date.  If there were 
 
         periods of temporary disability during this process, the injury 
 
         date for that temporary disability would have a different date 
 
         than later periods of disability.  If permanency is ultimately 
 
         found, the logical injury date for any award of permanent 
 
         disability benefits should be the time when it became reasonably 
 
         apparent that claimant suffered permanent impairment.  Defendants 
 
         should not be expected to pay permanent disability benefits prior 
 
         to that time.  The matter of injury date for permanency will be 
 
         discussed below.
 
         
 
              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 alone 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. Aase 
 
         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 
 

 
         
 
         
 
         
 
         MCCOY V.DONALDSON COMPANY, INC.
 
         Page  10
 
         
 
         
 
         N.W.2d 251 (1963).
 
         
 
              Defendant Donaldson does not really dispute the fact that 
 
         claimant suffered at least a five percent permanent partial 
 
         impairment to the right arm.  The record supports such a finding 
 
         as all doctors except for Dr. Lester agree with this rating.  Dr. 
 
         Lester's views in 1981 that claimant had no impairment is not 
 
         convincing as to a rating of claimant's current condition.  Also, 
 
         it is unusual in the experience of this agency for a physician to 
 
         impose permanent work restrictions due to a work injury and then 
 
         to conclude that the work injury failed to cause any permanent 
 
         loss of use or impairment.
 
         
 
              The extent of permanency for the left hand is highly 
 
         contested by the parties.  However, the greater weight of the 
 
         credible evidence establishes that such an impairment, albeit a 
 
         small amount, does exist.  First, Dr. Lester rendered no opinion 
 
         as to the extent of claimant's left hand impairment following the 
 
         December, 1983, surgery.  However, Dr. Lester imposed 
 
         restrictions on claimant's work activity which continued 
 
         throughout his treatment of claimant's left hand problems and 
 
         this treatment continued until 14 days before claimant was 
 
         examined by Dr. Neff.  Dr. Neff failed to give claimant a rating 
 
         for her left hand because she did not complain to him.  However, 
 
         there was a clear history of complaints for left hand pain.  
 
         Claimant testified that she still had hand difficulties.  In the 
 
         face of this testimony and Dr. Summers' clear opinions, Dr. 
 
         Neff's opinions are not convincing.  Also, Dr. Summers is more 
 
         convincing on the issue of permanent impairment ratings because 
 
         only he recognized the change in the new AMA Guidelines which now 
 
         recognizes that patients can have a rateable permanent impairment 
 
         with only subjective pain and loss of sensation complaints in 
 
         nerve type injuries.  Therefore, claimant will be awarded 
 
         permanent partial disability benefits for a five and two percent 
 
         permanent partial impairment to the right and left arms 
 
         respectively.
 
         
 
              We now arrive at the issue of the proper injury date for 
 
         purposes awarding permanent disability benefits for the left 
 
         hand.  As discussed previously, the most appropriate date would 
 
         be the time when it became reasonably apparent that claimant's 
 
         left hand difficulties were permanent.  Employers should not be 
 
         expected to pay permanent benefits prior to that time.  The views 
 
         and reports of Dr. Lester would be determinative of this issue as 
 
         he was the only treating physician for claimant's left hand 
 
         problems.  He issued no permanent impairment rating for 
 
         claimant's left hand and probably was never asked to do so.  
 
         However, the most appropriate time for an injury date given his 
 
         records would be the time when Dr. Lester considered claimant's 
 
         work restrictions as permanent restrictions.  The available 
 
         evidence in this case is admittedly unclear and confused by the 
 
         fact that the November, 1982, restrictions imposed for the left 
 
         hand were the same as those imposed for the right hand.  However, 
 
         there is one report of Dr. Lester that is dispositive of the 
 
         matter.  On April 30, 1984, Dr. Lester noted in his treatment 
 
         report following the carpal tunnel surgery in December, 1983, to 
 
         the left hand that the restrictions were now permanent.  This was 
 
         the first time that Dr. Lester used the words "permanent" in 
 
         imposing work restrictions referring to the left hand problems.  
 

 
         
 
         
 
         
 
         MCCOY V.DONALDSON COMPANY, INC.
 
         Page  11
 
         
 
         
 
         Therefore, April 30, 1984, shall be considered the injury date 
 
         for the purposes of awarding permanent disability benefits for 
 
         the left hand cumulative trauma.
 
         
 
              Claimant also seeks additional disability benefits from the 
 
         Second Injury Fund under Iowa Code section 85.63-85.69.  This 
 
         Fund was created to compensate an injured worker for a permanent 
 
         industrial disability resulting from the combined effect of two 
 
         separate injuries to a scheduled member.  The purpose of such a 
 
         scheme of compensation was to encourage employers to hire or 
 
         retain handicapped workers.  See Anderson v. Second Injury Fund, 
 
         262 N.W.2d 789 (Iowa 1978).  There are three requirements under 
 
         the statute to invoke Second Injury Fund liability.  First, there 
 
         must be a permanent loss or loss of use of one hand, arm, foot, 
 
         leg or eye.  Secondly, there must be a permanent loss of use of 
 
         another such member or organ through a compensable subsequent 
 
         injury.  Third, there must be permanent industrial disability to 
 
         the body as a whole arising from both the first and second 
 
         injuries which is greater in terms of relative weeks of 
 
         compensation than the sum of the scheduled allowances for those 
 
         injuries.
 
         
 
              According to the Supreme Court decision rendered in Second 
 
         Injury Fund v. Mich. Coal Co., 274 N.W.2d 300, 304 (Iowa 1979), 
 
         if this agency finds as to claimant's present condition an 
 
         industrial disability to the body as a whole, the agency must 
 
         also make a finding "as to the degree of disability to the body 
 
         as a whole of the claimant caused by the second injury."  Such 
 
         language appears to make employers at the time of the second 
 
         injury liable for disability benefits in excess of the prescribed 
 
         scheduled amounts set forth in Iowa Code section 85.34(2)(a-s).  
 
         However, Mich. Coal merely stands for the proposition that when 
 
         the Second Injury Fund effects loss of use of a member and also 
 
         extends into the body as a whole, a determination must be made as 
 
         to the degree of industrial disability caused by the second 
 
         injury.  It does not mean that a scheduled loss is to be rated 
 
         industrially.  Fulton v. Jimmy Dean Meat Co., filed July 23, 
 
         1986, appeal decision, appeal to the District Court pending.  
 
         Therefore, it is found that the degree of industrial disability 
 
         due to the combined effects of the prior loss and the second 
 
         injury loss is greater than the disability caused by the prior 
 
         and secondary losses combined, whether the loss is measured 
 
         functionally or industrially, then the fund will be charged with 
 
         the difference.  Id. at 5 & 6. Defendant Second Injury Fund 
 
         argues that Fulton is incorrect.  However, this agency precedent 
 
         by the industrial commissioner is binding upon the undersigned 
 
         deputy until the decision is reversed by the Supreme Court.
 
         
 
              In the case sub judice, we have already determined that 
 
         claimant suffered a compensable permanent disability on September 
 
         10, 1984, as a result of cumulative trauma to the right 
 
         extremity.  Also, it was found that claimant suffered a prior 
 
         compensable permanent disability on April 30, 1984, as a result 
 
         of cumulative trauma to the left extremity.  The Iowa Supreme 
 
         Court has directed that the laws of workers compensation should 
 
         be construed liberally in favor of the claimant due to the 
 
         humanitarian purposes of the act.  Beier Glass Co. v. Brundige, 
 
         329 N.W.2d 280, 283 (Iowa 1983).  Defendant Second Injury Fund 
 
         argues that although the fund was created to hire the 
 

 
         
 
         
 
         
 
         MCCOY V.DONALDSON COMPANY, INC.
 
         Page  12
 
         
 
         
 
         handicapped, it was not intended to be applied in this case to 
 
         aid the retention of handicapped people in their employment.  The 
 
         undersigned can see no distinction between the encouragement of 
 
         employment of handicapped people and the retention of handicapped 
 
         people.  When the statutory language is applicable to the 
 
         operative facts, the courts or administrative agency should not 
 
         adopt strained interpretations to artificially road block an 
 
         injured worker's recovery of benefits.  See Iowa Beef Processors 
 
         v. Miller, 312 N.W.2d 530, 532 (Iowa 1981).  Therefore, claimant 
 
         is entitled to Second Injury Fund benefits provided her 
 
         industrial disability exceeds the combined scheduled member 
 
         disability benefits.
 
         
 
              III.  A disability to the body as a whole or an "industrial 
 
         disability" is a loss of earning capacity resulting from the work 
 
         injury.  Diederich v. Tri-City Railway Co., 219 Iowa 587, 593, 
 
         258 N.W. 899 (1935).  A physical impairment or restriction on 
 
         work activity may or may not result in such a loss of earning 
 
         capacity.  The extent to which a work injury and a resulting 
 
         medical condition has resulted in an industrial disability is 
 
         determined from examination of several factors.  These factors 
 
         include the employee's medical condition prior to the injury, 
 
         immediately after the injury and presently; the situs of the 
 
         injury, its severity and the length of healing period; the work 
 
         experience of the employee prior to the injury, after the injury 
 
         and potential for rehabilitation; the employee's qualifications 
 
         intellectually, emotionally and physically; earnings prior and 
 
         subsequent to the injury; age; education; motivation; functional 
 
         impairment as a result of the injury; and inability because of 
 
         the injury to engage in employment for which the employee is 
 
         fitted.  Loss of earnings caused by a job transfer for reasons 
 
         related to the injury is also relevant.  Olson, 255 Iowa 1112, 
 
         1121, 125 N.W.2d 251, 257 (1963).  See Peterson v. Truck Haven 
 
         Cafe, Inc., (Appeal Decision, February 28, 1985).
 
         
 
              Before the combined effects of claimant's compensable 
 
         injuries in this case, claimant was able to perform her work 
 
         although she experienced chronic pain and difficulties in so 
 
         doing.  Following the permanent injuries in this case, claimant's 
 
         physicians have imposed permanent restrictions of claimant's work 
 
         activity by prohibiting tasks such as heavy lifting, repetitive 
 
         lifting, and most repetitive tasks involving twisting or movement 
 
         of the arms while at work.  Claimant's medical condition prevents 
 
         her from returning to her former work or any other work which 
 
         requires claimant to violate these restrictions.  Claimant's 
 
         laborer and assembly work at Donaldson was the type of work for 
 
         which she is best suited given her education and past working 
 
         experience.  Claimant's only past working experience has been in 
 
         unskilled work prior to being employed by Donaldson.
 
         
 
              Although it is unclear what efforts claimant has made to 
 
         seek suitable work, it is clear that her babysitting work is not 
 
         a suitable replacement for earning capacity or the loss of her 
 
         job at Donaldson.  Aside from the loss of weekly earnings she has 
 
         lost important fringe benefits.  Of importance to the decision as 
 
         to the extent of claimant's disability, is evidence concerning 
 
         claimant's actual employability outside of Donaldson and the 
 
         extent and nature of available work in the geographical area of 
 
         her residence.  Claimant has not availed herself of the burden 
 

 
         
 
         
 
         
 
         MCCOY V.DONALDSON COMPANY, INC.
 
         Page  13
 
         
 
         
 
         shifting aspects of the so-called "odd-lot doctrineO, in the 
 
         Guyton v. Irving Jensen Co., 373 N.W.2d 101 (Iowa 1985).  
 
         However, there is one critical fact that is very probative as to 
 
         the lack of available work to claimant.  Despite the availability 
 
         of a broader array of jobs at Donaldson, Donaldson saw fit to 
 
         terminate her because there was no work available within her 
 
         restrictions.  Also, claimant appeared to be willing and ready to 
 
         work at that time and at the time of the hearing in this case and 
 
         to date her only income is from babysitting.  Despite some rather 
 
         obvious evidentiary problems claimant had in this case, these 
 
         operative facts are clear evidence of a substantial industrial 
 
         disability.
 
         
 
              Claimant is 44 years of age and at the end of her working 
 
         career.  Her loss of future earnings from employment due to her 
 
         disability is more severe than would be the case for an older or 
 
         a younger individual.  See Becke v. Turner-Busch, Inc., 
 
         Thirty-Fourth Biennial Report of the Iowa Industrial Commissioner 
 
         34 (1979) and Walton v. B & H Tank Corp., II Iowa Industrial 
 
         Commissioner Report 426 (1981).
 
         
 
              Although claimant has a high school education and exhibited 
 
         average intelligence at the hearing, little is shown in the 
 
         evidence as to claimant's potential for vocational 
 
         rehabilitation.
 
         
 
              After examination of all of the factors, it is found as a 
 
         matter of fact as a result of the combined effects of the 
 

 
         
 
         
 
         
 
         MCCOY V.DONALDSON COMPANY, INC.
 
         Page  14
 
         
 
         
 
         cumulative injuries of April 30, 1984 and September 10, 1984, 
 
         claimant has suffered a 60 percent loss in her earning capacity.
 
         
 
              Therefore, Donaldson shall be ordered to pay 12.5 weeks of 
 
         permanent partial disability benefits from September 10, 1984 and 
 
         five weeks of permanent partial disability benefits from April 
 
         30, 1984 (credit to be given for benefits already paid), under 
 
         Iowa Code section 85.34(2)(m) which is five percent and two 
 
         percent respectively of 250 weeks, the maximum allowable number 
 
         of weeks for an injury to the arm in that subsection.
 
         
 
              Based upon the finding of industrial disability for the 
 
         combined effects of the two injuries, claimant is entitled as a 
 
         matter of law to 300 weeks of permanent partial disability 
 
         benefits from the Second Injury Fund under Iowa Code section 
 
         85.34(2)(u) which is 60 percent of 500 weeks, the maximum 
 
         allowable number of weeks for an injury to the body as a whole in 
 
         that subsection.  Deducted from this amount pursuant to statute 
 
         it is 17.5 weeks of disability benefits to be paid by Donaldson. 
 
          Therefore, the Second Injury Fund shall be ordered to pay to 
 
         claimant 282.5 weeks of permanent partial disability benefits 
 
         beginning 17.5 weeks after the second injury, September 10, 
 
         1984.
 
         
 
              None of the stipulated rates of compensation could be 
 
         utilized in this award.  Claimant credibly testified that she 
 
         earned $9.37 per hour over a normal 40 hour work week plus three 
 
         additional hours of pay on average for meeting production quotas.  
 
         The union president indicated a figure of $9.04 per hour but he 
 
         was unsure as to this amount.  Therefore, it is felt that 
 
         claimant's testimony is probably more accurate and it will be 
 
         found that claimant's gross weekly earnings are $402.91 per week 
 
         during 1984.  Claimant testified that she was married with one 
 
         dependent child.  The amount of gross weekly earnings combined 
 
         with claimant's entitlement to three exemptions on her tax 
 
         returns entitles claimant to a rate of compensation pursuant to 
 
         the industrial commissioner's rate benefit schedule book to 
 
         $253.73 per week for both cumulative injuries found in this 
 
         case.
 
         
 
                                 FINDINGS OF FACT
 
         
 
              1.  Claimant was a credible witness.
 
         
 
              2.  Claimant was in the employ of Donaldson prior to 
 
         December, 1984, as a general laborer and assembly operator.  Such 
 
         work involved repetitive and at times heavy repetitive work with 
 
         claimant's hands.
 
         
 
              3.  On April 30, 1984, claimant suffered an injury to the 
 
         left arm which arose out of and in the course of her employment 
 
         at Donaldson.  This injury consisted of a cumulative injury in 
 
         the form of carpal tunnel syndrome over a number of years from 
 
         repetitive heavy work at Donaldson.  This injury resulted in a 
 
         two percent permanent partial impairment to the left extremity 
 
         and permanent work restrictions against repetitive work and work 
 
         involving lifting over 25 pounds.  April 30, 1984, was the first 
 
         time it became reasonably apparent to claimant's treating 
 
         physician and to Donaldson that claimant's left hand impairment 
 

 
         
 
         
 
         
 
         MCCOY V.DONALDSON COMPANY, INC.
 
         Page  15
 
         
 
         
 
         and work restrictions were permanent.
 
         
 
              4.  On September 10, 1984, claimant suffered an injury to 
 
         the right arm which arose out of and in the course of her 
 
         employment at Donaldson.  This injury consisted of cumulative 
 
         injury in the form of a carpal tunnel syndrome and ulnar nerve 
 
         irritation over a number of years from repetitive heavy work at 
 
         Donaldson.  This injury resulted in a two percent permanent 
 
         partial impairment to the right extremity and permanent work 
 
         restrictions against repetitive work and work involving lifting 
 
         over 25 pounds. on September 10, 1984, claimant permanently left 
 
         her usual work at Donaldson and she returned to work in October, 
 
         1984, in a part-time light duty janitor job.  Claimant was then 
 
         informed in December, 1984, that she was terminated by Donaldson 
 
         because there was no longer work available to her given her 
 
         restrictions.
 
              
 
              5.  The combined effect of cumulative trauma work injuries 
 
         of April 30, 1984 and September 10, 1984 and the resulting 
 
         permanent partial impairment caused by these cumulative traumas 
 
         was a cause of a 60 percent loss of earning capacity.  Claimant 
 
         is 44 years of age and has a high school education but no other 
 
         formal training.  Claimant's only work experience prior to being 
 
         employed by Donaldson in 1972 was work as a waitress and as a 
 
         store clerk for $.75 per hour.   Claimant was earning $9.37 per 
 
         hour over a 40 hour work week plus additional pay for three hours 
 
         each week on average during the year 1984.  Claimant was 
 
         terminated in December, 1984, by Donaldson due to her work 
 
         limitations caused by her cumulative traumas caused by her work 
 
         at Donaldson.  As a result of her cumulative injuries, claimant 
 
         cannot return to her regular work or any other work to which she 
 
         is best suited.  Subject up to December, 1987, claimant made an 
 
         unsuccessful effort to look for suitable work and remains willing 
 
         to work at the present time.  Since September, 1986, claimant's 
 
         only work activity has been as a babysitter in which she 
 
         currently earns approximately $150.00 per week.
 
         
 
              6.  Claimant's gross weekly earnings at Donaldson during the 
 
         year 1984 was $402.91 per week.
 
         
 
                                CONCLUSIONS OF LAW
 
         
 
              Claimant has established by a preponderance of the evidence 
 
         entitlement to permanent partial disability benefits awarded 
 
         below.
 
         
 
                                      ORDER
 
         
 
              1.  Defendant Donaldson shall pay to claimant five (5) weeks 
 
         of permanent partial disability benefits at the rate of two 
 
         hundred fifty-three and 73/100 dollars ($253.73) per week from 
 
         April 30, 1984 and twelve point five (12.5) weeks of permanent 
 
         partial disability benefits at the rate of two hundred 
 
         fifty-three and 73/100 dollars ($253.73) per week from September 
 
         10, 1984.
 
         
 
              2.  Defendant Second Injury Fund shall pay to claimant two 
 
         hundred eighty-two point five (282.5) weeks of permanent partial 
 
         disability benefits at the rate of two hundred fifty-three and 
 
         73/100 dollars ($253.73) per week beginning seventeen point five 
 

 
         
 
         
 
         
 
         MCCOY V.DONALDSON COMPANY, INC.
 
         Page  16
 
         
 
         
 
         (17.5) weeks after September 10, 1984.
 
         
 
              3.  Defendants shall pay accrued weekly benefits in a lump 
 
         sum and shall receive credit against this award for all benefits 
 
         previously paid.
 
         
 
              4.  Defendants shall pay interest on benefits awarded herein 
 
         as set forth in Iowa Code section 85.30.
 
         
 
              5.  Defendants, Donaldson and Second Injury Fund, shall pay 
 
         the costs of this action pursuant to Division of Industrial 
 
         Services Rule 343-4.33 and the cost of providing the undersigned 
 
         with a trial transcript in proportion to their liabilities for 
 
         the awards made in this decision.  As defendant Donaldson 
 
         voluntarily paid twelve point five (12.5) weeks of permanent 
 
         partial disability benefits before the hearing in this case, it 
 
         shall pay only two percent (2%) of these costs and defendant 
 
         Second Injury Fund shall pay the balance.
 
         
 
              6.  All defendants shall file activity reports on the 
 
         payment of this award as requested by this agency pursuant to 
 
         Division of Industrial Services Rule 343-3.1.
 
         
 
             
 
          Signed and filed this 22nd day of March, 1988.
 
         
 
         
 
         
 
         
 
         
 
         
 
         
 
         
 
                                         LARRY P. WALSHIRE
 
                                         DEPUTY INDUSTRIAL COMMISSIONER
 
         
 
         Copies To:
 
         
 
         Mr. Arthur C. Hedberg
 
         Attorney at Law
 
         840 Fifth Ave.
 
         Des Moines, Iowa 50309
 
         
 
         Mr. William D. Scherle
 
         Attorney at Law
 
         803 Fleming Bldg.
 
         Des Moines, Iowa 50309
 
         
 
         Mr. Robert D. Wilson
 
         Assistant Attorney General
 
         Hoover State Office Bldg.
 
         Des Moines, Iowa 50319
 
         
 
         
 
         
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                                  2209; 3201
 
                                                  Filed March 22, 1988
 
                                                  LARRY P. WALSHIRE
 
         
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         MARTHA MCCOY,
 
         
 
              Claimant,
 
                                             FILE NOS. 805200 & 752670
 
         VS.
 
                                               A R B I T R A T I 0 N
 
         DONALDSON COMPANY, INC.,
 
                                                 D E C I S I 0 N
 
              Employer,
 
         
 
         and
 
         
 
         TRAVELERS INSURANCE COMPANY,
 
         
 
              Insurance Carrier,
 
         
 
         and
 
         
 
         SECOND INJURY FUND,
 
         
 
              Defendants.
 
         
 
         
 
         
 
         2209; 3201
 
         
 
              It was held that claimant suffered two cumulative traumas to 
 
         the right and left extremities at different times as a result of 
 
         carpal tunnel syndromes.  The Second Injury Fund was then held 
 
         liable for a difference between the combined effect of the two 
 
         disabilities in the form of a 60 percent industrial disability 
 
         and the small amount of permanent disability benefits to be paid 
 
         by claimant's employer for the scheduled member injuries 
 
         involved.
 
 
 
         
 
         
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         MARTHA MCCOY,
 
         
 
              Claimant,
 
                                               FILE NOS. 805200 & 752670
 
         VS.
 
                                                          N U N C
 
         DONALDSON COMPANY, INC.,
 
                                                           P R O
 
              Employer,
 
                                                          T U N C
 
         and
 
                                                         0 R D E R
 
         TRAVELERS INSURANCE COMPANY,
 
         
 
              Insurance Carrier,
 
         
 
         and
 
         
 
         SECOND INJURY FUND,
 
         
 
              Defendants.
 
         
 
              To correct minor typographical errors, the arbitration 
 
         decision filed in this matter on March 22, 1988 is amended as 
 
         follows:
 
         
 
              1.  The third sentence of the first full unnumbered 
 
         paragraph on page 8 should read:
 
         
 
              However, it is apparent from her lack of complaints in 
 
              the records of Dr. Neff that claimant did not leave 
 
              for her normal work at Donaldson on September 10, 1984 
 
              due to pain and difficulties from her left hand.
 
         
 
              2.  The second from last sentence contained in finding 
 
         number 5 on page 15 should read:
 
         
 
              Subject up Subsequent to December, 1987, claimant made 
 
              an unsuccessful effort to look for suitable work and 
 
              remains willing to work at the present time.
 
         
 
         
 
              Signed and filed this 30th day of March, 1988.
 
         
 
         
 
         
 
         
 
                                          LARRY P. WALSHIRE
 
                                          DEPUTY INDUSTRIAL COMMISSIONER
 
         
 
         
 
         
 
         Copies To:
 
         
 
         Mr. Arthur C. Hedberg
 
         Attorney at Law
 
         840 Fifth Ave.
 
         Des Moines, Iowa 50309
 

 
         
 
         
 
         
 
         MCCOY V. DONALDSON COMPANY, INC.
 
         Page   2
 
         
 
         
 
         Mr. William D. Scherle
 
         Attorney at Law
 
         803 Fleming Bldg.
 
         Des Moines, Iowa 50309
 
         
 
         Mr. Robert D. Wilson
 
         Assistant Attorney General
 
         Hoover State Office Bldg.
 
         Des Moines, Iowa 50319
 
         
 
         
 
         
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                    BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         WILTON CROFT,
 
                                               FILE NO. 805211
 
              Claimant,
 
                                            A R B I T R A T I 0 N
 
         VS.
 
                                               D E C I S I 0 N
 
         JOHN MORRELL & COMPANY,
 
         
 
              Employer,
 
              Self-Insured ,
 
              Defendant.
 
         
 
         
 
                                   INTRODUCTION
 
         
 
              This is a proceeding in arbitration brought by Wilton Croft, 
 
         claimant, against John Morrell & Company, employer and 
 
         self-insured defendant, for benefits for an alleged occupational 
 
         hearing loss under Iowa Code section 85B which occurred on April 
 
         27, 1985.  A hearing was held on November 25, 1986 at Storm Lake, 
 
         Iowa and the case was fully submitted at the close of the 
 
         hearing.  The record consists of the testimony of Ronald 
 
         Mortensen (former co-employee); Wilton Croft (claimant); Darlene 
 
         Croft (claimant's wife); Warren Evans (former co-employee); 
 
         Dennis L. Howrey (employer's personnel and labor relations 
 
         manager); claimant's exhibits 1 through 7; and defendant's 
 
         exhibits A and B. Both attorneys submitted good briefs.
 
         
 
                                   STIPULATIONS
 
         
 
              The parties stipulated to the following matters:
 
         
 
              That an employer/employee relationship existed between the 
 
         claimant and the employer at the time of the alleged injury.
 
         
 
              That temporary disability is not an issue in this case.
 
         
 
              That the commencement date for permanent disability, in the 
 
         event such benefits are awarded, is April 27, 1985.
 
         
 
              That the rate of weekly compensation, in the event of an 
 
         award, is $193.46 per week.
 
         
 
             That no credits or bifurcated claims are in issue.
 
         
 
                                      ISSUES
 
         
 
              The issues presented by the parties for determination at 
 
         the
 
         time of the hearing are as follows:
 
         
 
              Whether the claimant sustained an occupational hearing 
 

 
         
 
         
 
         
 
         CROFT V. JOHN MORRELL & COMPANY
 
         Page   2
 
         
 
         
 
         loss on April 27, 1985 which arose out of and in the course of 
 
         employment with the employer.
 
         
 
              Whether the alleged occupational hearing loss is the cause 
 
         of any permanent hearing loss is included in the issue of 
 
         whether claimant received an occupational hearing loss in the 
 
         foregoing paragraph.
 
         
 
              Whether the claimant is entitled to any disability 
 
         benefits for occupational hearing loss.
 
         
 
              Whether the claimant is entitled to a hearing aid as a 
 
         medical benefit under Iowa Code section 85B.12.
 
         
 
              Whether the claimant gave notice of the loss as required 
 
         by Iowa Code section 85.23 is asserted as an affirmative 
 
         defense.
 
         
 
              Whether the claimant's hearing loss is a result of a 
 
         natural occurring disease process is also included in the first 
 
         issue of whether claimant sustained an occupational hearing 
 
         loss.
 
         
 
                        SUMMARY OF THE EVIDENCE
 
         
 
              Claimant is 56 years old.  He went to ninth or tenth grade 
 
         in high school and finished high school by correspondence.  He 
 
         worked for John Morrell & Company for a short time in 1945 or 
 
         1946.  He started to work full time for the employer in 1947 and 
 
         continued for a period of 38 years until he retired on April 27, 
 
         1985, except for two years from 1951 to 1953 when he served in 
 
         the military service in Korea.  Claimant testified that he worked 
 
         in loud noise continuously from the time he started until he 
 
         retired.  A pre-employment physical examination dated May 19, 
 
         1947 did not indicate any hearing problems, nor did two other 
 
         company physical examinations dated October 7, 1947 and May 25, 
 
         1953.  Claimant worked in the Ottumwa plant until it closed in 
 
         1973.  He then transferred to the Estherville plant at that time. 
 
          Claimant testified that he could hear alright when he came to 
 
         Estherville.
 
         
 
              Claimant testified he first experienced pressure in his ear 
 
         at home at night.  He misunderstood what his daughter and wife 
 

 
         
 
         
 
         
 
         CROFT V. JOHN MORRELL & COMPANY
 
         Page   3
 
         
 
         
 
         said in conversation around the dinner table.  He turned the TV 
 
         up loud in order to hear it.  If they played the radio and TV at 
 
         the same time to get a storm warning the noise was confusing.
 
         
 
              Claimant testified that at the Estherville plant he 
 
         performed various jobs (the length and dates are 
 
         approximations):
 
         
 
         
 
                 Job                    Length             Dates
 
         
 
         Cutting spermatic cords          6 yrs.        1973  -  1979
 
         Popping kidneys and
 
         removing spreader hooks          2 yrs.        1979  -  1981
 
         Splitting hogs                   1 yr.         1981  -  1982
 
         Cutting kidneys and
 
         marking leaf lard                1 yr.         1984  &  1985
 
         
 
              Claimant's exhibit 3 contains two noise level surveys.  Only 
 
         the first one with the letterhead of John Morrell & Company was 
 
         used at the hearing.  Claimant testified that most of the time at 
 
         Estherville he worked closest to the splitter. . He circled the 
 
         word splitter on exhibit 3 in blue ink to designate the station 
 
         closest to where he worked.  The survey shows that the noise 
 
         level at this station was 94 to 95 decibels.  After January of 
 
         1984, when claimant was cutting kidneys and marking leaf lard, he 
 
         was closest to the wizard knives - head table.  The exhibit shows 
 
         that the noise level at this station was 95 decibels.  Claimant 
 
         testified that he worked in loud noise for eight hours a day, 
 
         five or more days a week for approximately 11 years at the 
 
         Estherville plant.
 
         
 
              Dennis Howrey, personnel and labor relations manager for the 
 
         employer, agreed that claimant's job of cutting spermatic cords 
 
         was closest to the splitter which showed a noise level of 94 to 
 
         95 decibels.  Howrey also agreed that the job of popping kidneys 
 
         and removing spreader hooks was also closest to the splitter.  
 
         Howrey differed with the claimant about the location of his job 
 
         cutting kidneys and marking leaf lard.  Howrey testified that 
 
         this job was closest to the station marked chisel heads which 
 
         showed a noise level of 90 decibels, rather than near the wizard 
 
         knives - head table which showed a noise level of 95 decibels.  
 
         Howrey, nevertheless, agreed that any reading over 80 decibels 
 
         could cause hearing damage.  He also granted that the kill floor 
 
         is a very noisy place and that the noise is continuous.
 
         
 
              Both claimant and Howrey agreed that hearing tests were 
 
         administered by the employer to the employees in 1983.  Claimant 
 
         testified that the nurse told him that he had something the 
 
         matter with his hearing.  She made him sign a paper that he would 
 
         wear earplugs or be subject to disciplinary action.  Claimant 
 
         testified he worked from 1973 to 1983 before hearing protection 
 
         was provided.  Howrey said earplugs were provided in 1978, but 
 
         that they were made more available in 1983.
 
         
 
              Claimant denied any major surgeries or operations, hunting, 
 
         farming, listening to rock music, taking medications that would 
 
         cause hearing loss or a family history of hearing loss.  Claimant 
 
         said that he did have his ear lanced as a child due to an ear 
 

 
         
 
         
 
         
 
         CROFT V. JOHN MORRELL & COMPANY
 
         Page   4
 
         
 
         
 
         infection.
 
              
 
              A company doctor told him a hearing aid would help but he 
 
         has not tried one yet.  Claimant is now employed as a watchman.
 
         
 
              Ronald Mortensen testified that he is an 18 year employee of 
 
         John Morrell & Company from 1966 until the plant closed on April 
 
         27, 1985.  He worked on the kill floor.  It was very loud and 
 
         noisy.  The floor and ceiling were concrete.  The building had 
 
         steel beams.  There were no baffles or barriers to control the 
 
         noise.  It was necessary to shout to be heard in many places.  
 
         The witness said that he knew the claimant in 1973 and that the 
 
         claimant had normal hearing at that time.  Hearing protection was 
 
         provided in 1982 or 1983 when OSHA made an issue of it but it was 
 
         not strictly enforced.  Witness said that he faithfully wore the 
 
         hearing protection after it was provided,but still suffered a 
 
         hearing loss.
 
         
 
              Warren Evans testified that he is a 21 year employee of the 
 
         employer from 1964 to when the plant closed on April 27, 1985.  
 
         He said the kill floor is one big room with a lot of noise with 
 
         no blocking barriers from one station to the next.  The De-hairer 
 
         and wizard knives were very loud.  Hearing protection was not 
 
         provided until 1983.
 
         
 
              Darlene Croft, wife of claimant, testified that she worked 
 
         at John Morrell & Company from 1973 until the temporary plant 
 
         shut down which occurred in about June of 1982.  She said the 
 
         plant is just one large room.  It was real noisy with nothing to 
 
         block noise from one station to the next.  Earplugs were provided 
 
         in the late 70's or early 80's.  She only wore the ear protection 
 
         part of the time.  She did not like wearing the earplugs and 
 
         therefore did not wear them.  At home if two or more people would 
 
         speak at the same time, or if the radio and TV were both on at 
 
         the same time, it would confuse claimant's hearing.  She said he 
 
         had no other loud noise exposure other than the plant.  She 
 
         testified that she has buzzing in her ears a lot of the time.
 
         
 
              R. David Nelson, M.A., an audiologist who operates Nelson 
 
         Hearing Aid Service, performed an audiological evaluation on the 
 
         claimant on July 23, 1986.  He determined that claimant sustained 
 
         a mild bilateral hearing impairment.  The pattern of loss in the 
 
         high frequencies is similar to those observed in individuals with 
 
         a known history of noise exposure.  The loss of hearing 
 
         sensitivity in both ears would result in poor comprehension for 
 
         speech in areas where there is competing noise or soft speech.  
 
         He stated that hearing aids are recommended if claimant is to 
 
         work in a situation where communication skills are an essential 
 
         part of the employment.  His audiogram test results are attached 
 
         to his report (Exhibit 5).  On November 7, 1986, Mr. Nelson 
 
         stated that claimant would benefit from binaural amplification 
 
         and estimated the cost of hearing aids as follows: (1) behind the 
 
         ear hearing aids would cost $1,350, and (2) in the ear hearing 
 
         aids would cost $1,250.
 
              Claimant was examined by C. B. Carignan, Jr., M.D., a family 
 
         practice physician, on November 4, 1986.  Dr. Carignan's 
 
         interpretation of Mr. Nelson's audiogram determined that claimant 
 
         sustained a 7.2 percent binaural hearing impairment.  He declared 
 
         that it is reasonably medically certain that claimant's present 
 
         hearing loss was caused by exposure to loud noise at John Morrell 
 

 
         
 
         
 
         
 
         CROFT V. JOHN MORRELL & COMPANY
 
         Page   5
 
         
 
         
 
         packing plants.  Dr. Carignan also mentioned that claimant was 
 
         exposed to gunfire a few times while in the military service, 
 
         exposed to his wife's woodworking equipment and claimant had a 
 
         childhood ear infection.
 
         
 
              Daniel L. Jorgensen, M.D., an otolaryngologist, examined 
 
         claimant on April 2, 1986.  He noted that claimant worked in a 
 
         high noise level environment splitting hogs without earplugs for 
 
         several years before hearing protection was provided.  He also 
 
         noted that the employer documented a hearing loss in both ears.  
 
         He recorded that claimant had no trauma to his ears, no prior 
 
         surgery, no chronic ear infection, no high dose IV antibiotics, 
 
         and no family history of hearing loss.  Claimant was in the 
 
         Korean conflict with an artillery unit but he was in the 
 
         communications portion of the battalion.  Dr. Jorgensen concluded 
 
         that claimant's hearing loss was consistent with a noise induced 
 
         hearing loss.  Claimant stated he was not interested in a hearing 
 
         aid at that time (Ex. A).  Dr. Jorgensen's evaluation of 
 
         claimant's audiogram resulted in a .3 percent of total binaural 
 
         loss of hearing (Ex. B).
 
         
 
                           APPLICABLE LAW AND ANALYSIS
 
         
 
              Chapter 85B, Code of Iowa, provides benefits for 
 
         occupational hearing loss.  Section 85B.4 1. defines occupational 
 
         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 worked in a high level noise 
 
         continuously from the time he started at John Morrell & Company 
 
         in 1947 until he retired on April 27, 1985.  Howrey testified 
 
         claimant worked closest to the splitter when he was cutting 
 
         spermatic cords.  The noise level survey shows the noise level at 
 
         the splitter as 94 to 95 decibels.  Claimant stated he worked 
 
         there approximately six years from 1973 to 1979.  Howrey also 
 
         verified that claimant's job of popping kidneys and removing 
 
         spreader hooks was closest to the splitter.  Claimant said he 
 
         performed this job for approximately two years from 1979 to 1981.  
 
         Claimant then split hogs for approximately one year right at the 
 
         splitter in 1981 and 1982.  This represents approximately nine 
 
         years of work at or near the splitter with the noise level of 94 
 
         to 95 decibels, eight hours a day, five or six days a wee before 
 
         hearing protection was seriously offered to employees.
 
         
 
              Claimant testified that his job-of cutting kidneys and 
 
         marking leaf lard from January of 1984 until his retirement on 
 
         April 27, 1985 was nearest the wizard knives - head table which 
 
         showed a noise level reading of 95 decibels on the noise level 
 
         survey.  Howrey, however, stated that claimant was closest to the 
 
         chisel heads of which showed noise level readings of 90 decibels.  
 
         Howrey did acknowledge, however, that any reading over 80 
 
         decibels can cause hearing loss.  Hearing loss can sometimes 
 
         result from noise exposure to even less than 90 decibels.  
 

 
         
 
         
 
         
 
         CROFT V. JOHN MORRELL & COMPANY
 
         Page   6
 
         
 
         
 
         Morrison v. County of Muscatine, No. 702385 (1985).
 
         
 
              Mortensen, Evans and Darlene Croft all testified that the 
 
         plant was a very noisy environment and that hearing loss was not 
 
         uncommon.  Mr. Nelson, Dr. Carignan and Dr. Jorgensen all 
 
         believed that claimant's hearing loss was consistent with noise 
 
         induced hearing loss from long exposure to high noise levels.  
 
         Dr. Carignan actually attributed the claimant's loss of hearing 
 
         to exposure to loud noise while employed by John Morrell & 
 
         Company.
 
         
 
              Defendant did not prove that claimant sustained a hearing 
 
         loss from a natural occurring disease process or otherwise.  Dr. 
 
         Carignan referred to claimant's military service, his wife's 
 
         woodworking equipment and claimant's childhood ear infection but 
 
         attributed none of claimant's hearing loss to these conditions.
 
         
 
              Dr. Jorgensen ruled out any loss from other trauma, 
 
         surgeries, ear infections, medications, family history and 
 
         military service.  Claimant stated that he has never hunted or 
 
         engaged in farming.
 
         
 
              Claimant has 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 the employer due to prolonged exposure to 
 
         excessive noise levels as specified in Iowa Code section 85B.5 
 
         and other harmful levels of noise for prolonged periods.
 
         
 
              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 
 
         requirements of Iowa Code section 85.23 apply 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 1980); 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 the claimant's work related 
 
         hearing loss than the employee.  Claimant noticed that he 
 
         misunderstood his wife and daughter at the dinner table, that he 
 
         played the television loud to hear it, and that he had confusion 
 
         of sounds when both the radio and television played at the same 
 
         time.  The employer on the other hand was aware of a plant wide 
 
         noise problem; took noise level surveys; took audiograms of its 
 
         employees; informed employees of their hearing loss; provided 
 
         hearing protection to its employees; and in the case of the 
 
         claimant had him sign a paper that required him to wear his 
 
         earplugs under the threat of disciplinary action.  The audiogram 
 
         performed by the employer that revealed the hearing loss in this 
 
         employee was known by the employer before the employer made it 
 

 
         
 
         
 
         
 
         CROFT V. JOHN MORRELL & COMPANY
 
         Page   7
 
         
 
         
 
         known to the employee.  Consequently, it is determined that the 
 
         employer in this case had actual knowledge of claimant's 
 
         occupational hearing loss and pursuant to Iowa Code section 85.23 
 
         claimant is relieved of giving notice to the 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 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.
 

 
         
 
         
 
         
 
         CROFT V. JOHN MORRELL & COMPANY
 
         Page   8
 
         
 
         
 
         
 
              In this case claimant retired on April 27, 1985.  Therefore, 
 
         the date of injury is April 27, 1985.  The statute of limitations 
 
         was not asserted as an affirmative defense in the answer nor was 
 
         it designated as an issue on the hearing assignment order.  The 
 
         fact that it was designated as a hearing issue on the prehearing 
 
         report then is treated as an oversight or a clerical mistake.
 
         
 
              Occupational hearing loss is measured  by  a  statutory  
 
         formula set out in Iowa Code section 85B.9.  Both Dr. Carignan 
 
         and Dr. Jorgensen followed the statutory formula to arrive at 
 
         their respective evaluations of the claimant's percent of hearing 
 
         loss.
 
         
 
              Iowa Code section 85B.9 also provides, in part, as follows: 
 
         "...If more than one audiogram is taken following notice of an 
 
         occupational hearing loss claim, the audiogram having the lowest 
 
         threshold shall be used to calculate occupational tearing loss."
 
         
 
              Defendant asserts that the agency must accept the lowest 
 
         audiogram as a statutory requirement.  Claimant asserts that the 
 
         agency is nevertheless empowered with discretion in determining 
 
         which of two or more audiograms to accept.  Both parties are 
 
         correct.  The agency is required to accept the lowest audiogram 
 
         if it is first determined that all audiograms under consideration 
 
         are equally reliable.  The agency is also still required to use 
 
         its fact finding power to determine if the audiograms under 
 
         consideration are equally reliable.  In the instant case, both 
 
         audiograms appear to be equally reliable.  Each one was prepared 
 
         by a qualified audiologist and each one was interpreted by a 
 
         medical doctor.  There was no evidence that one audiogram was 
 
         more or less reliable than the other audiogram.  The audiogram 
 
         produced by Mr. Nelson of Nelson Hearing Aid Service yielded a 
 
         binaural hearing loss of 7.1 percent when it was interpreted by 
 
         Dr. Carignan, a general practitioner.  The audiogram of Jean 
 
         Rudkin, MS, an audiologist in the office of Dr. Jorgensen, an 
 
         otolaryngologist, yielded a total binaural hearing loss of .3 
 
         percent when it was interpreted by Dr. Jorgensen.  Therefore, the 
 
         audiogram of Ms. Rudkin as interpreted by Dr. Jorgensen is 
 
         accepted to determine the defendant's liability in this case 
 
         pursuant to Iowa Code section 85B.9.  It might be added that Dr. 
 
         Jorgensen is also the most qualified doctor in the area of 
 
         hearing since he is an otolaryngologist and judging from the 
 
         letterhead on the audiogram it appears that Ms. Rudkin works with 
 
         him or under his supervision.
 
         
 
              Claimant's entitlement then to compensation is calculated by 
 
         applying the percentage of occupational hearing loss of .3 
 
         percent to the maximum allowance of 175 weeks resulting in an 
 
         allowance of 52.5 weeks of compensation (175 x .3) pursuant to 
 
         Iowa Code section 85B.6.
 
         
 
              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 has 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.
 

 
         
 
         
 
         
 
         CROFT V. JOHN MORRELL & COMPANY
 
         Page   9
 
         
 
         
 
         
 
              Defendant did not demonstrate that a hearing aid would not 
 
         materially improve the employee's ability to communicate.  Dr. 
 
         Jorgensen's report states that as of April 2, 1986, when he asked 
 
         the claimant if he wanted a hearing aid, that claimant felt that 
 
         it was not necessary at that time and that he would just as soon 
 
         get along without it.  Defendant also brought to light that 
 
         claimant had not purchased a hearing aid on his own and was not 
 
         wearing one at the time of the hearing.  However, claimant at the 
 
         time of the hearing on November 25, 1986 asserted that he was 
 
         seeking a hearing aid.
 
         
 
              Mr. Nelson stated, (1) a hearing aid was recommended if 
 
         claimant is to work in a situation where communication skills are 
 
         an essential part of the employment (Ex. 5); and, (2) that 
 
         claimant would benefit from binaural amplification (Ex. 7).  
 
         Additionally, it would seem that since defendant retained the 
 
         services of an otolaryngologist it would have been a simple 
 
         matter to obtain his opinion on this point but for reasons of 
 
         their own choosing defendant did not do this (Ex. A. & B).  Also, 
 
         defendant could have obtained an opinion from Dr. Carignan on 
 
         this point if it chose to do so, but did not introduce any direct 
 
         evidence from Dr. Carignan.  Therefore, it is found that 
 
         defendant has failed to show that a hearing aid would not improve 
 
         claimant's ability to communicate.  Therefore, claimant is 
 
         entitled to a binaural amplification hearing aid in the amount of 
 
         $1,250 which is the lowest cost device for binaural amplification 
 
         (Ex. 7).
 
         
 
                                 FINDINGS OF FACT
 
         
 
              WHEREFORE, based upon the evidence presented, the following 
 
         findings of fact are made:
 
         
 
              That claimant was employed by the employer from 1947 until 
 
         he retired on April 27, 1985.
 
         
 
              That claimant was exposed to high noise levels during this 
 
         entire 38 year period of employment.
 
         
 
              That claimant was exposed to excessive noise levels of 94 to 
 
         95 decibels for nine years at the Estherville plant from 1973 to 
 
         1982 when he worked cutting spermatic cords; popping kidneys and 
 
         removing spreader hooks; and splitting hogs before hearing 
 
         protection was provided.
 
         
 
              That claimant was exposed to high levels of noise of at 
 
         least 90 decibels from January of 1984 until his retirement on 
 
         April 27, 1985 when he performed the job of cutting kidneys and 
 
         marking leaf lard.
 
         
 
              That Mr. Nelson, Dr. Carignan and Dr. Jorgensen all 
 
         concluded that claimant's hearing loss was consistent with 
 
         prolonged exposure to high noise levels.
 
         
 
              That Dr. Carignan found that it was reasonably, medically 
 
         certain that claimant's hearing loss was caused by exposure to 
 
         loud noise at his jobs at Morrell packing plants.
 
         
 

 
         
 
         
 
         
 
         CROFT V. JOHN MORRELL & COMPANY
 
         Page  10
 
         
 
         
 
              That defendant did not demonstrate any other cause for 
 
         claimant's hearing loss or that it resulted from a natural 
 
         occurring disease process.
 
         
 
              That in 1983 defendant was aware of a plant wide problem; 
 
         took noise level surveys; took audiograms of this employee and 
 
         other employees; informed this employee of his hearing loss; 
 
         provided this employee and other employees with hearing 
 
         protection; and required this employee to wear hearing protection 
 
         under the threat of disciplinary action.
 
         
 
              That claimant retired on April 27, 1983.
 
         
 
              That claimant sustained a binaural hearing loss of .3 
 
         percent.
 
         
 
              That defendant did not show that a hearing aid would not 
 
         materially improve claimant's ability to communicate.
 
         
 
                                CONCLUSIONS OF LAW
 
         
 
              WHEREFORE, based upon the evidence presented and the 
 
         principles of law previously discussed, the following conclusions 
 
         of law are made:
 
         
 
              That claimant sustained an occupational hearing loss as 
 
         defined in Chapter 85B, Code of Iowa, which arose out of and in 
 
         the course of employment with the employer (Iowa Code section 
 
         85B.4).
 
         
 
              That the loss was caused by his employment with the 
 
         employer.
 
         
 
              That the amount of loss is .3 percent of a total loss of 
 
         hearing (Iowa Code section 85B.9).
 
         
 
              That claimant is entitled to .3 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
 
         retired from employment with the 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 compensable hearing loss entitles claimant 
 
         to a hearing aid (Iowa Code section 85B.12).
 
         
 
                                      ORDER
 
         
 
              THEREFORE, IT IS ORDERED:
 
         
 
              That defendant pay to claimant point five-two-five (.525) 
 
         weeks (.3 x 175) of occupational hearing loss compensation at the 
 
         rate of one hundred ninety-three and 46/100 dollars (193.46) per 
 
         week in the total amount of one hundred one and 57/100 dollars 
 
         ($101.57) ($193.46 x .525) commencing on April 27, 1985.
 
         
 

 
         
 
         
 
         
 
         CROFT V. JOHN MORRELL & COMPANY
 
         Page  11
 
         
 
         
 
              That these benefits be paid in a lump sum.
 
         
 
              That interest will accrue under Iowa Code section 85.30.
 
         
 
              That the defendant pay to claimant or to the provider of 
 
         services one thousand two hundred fifty and no/100 dollars 
 
         ($1,250.00) for the cost of a binaural hearing aid.
 
         
 
              That defendant pay the costs of this action pursuant to 
 
         Division of Industrial Services Rule 343-4.33.
 
         
 
              That defendant will remain liable for future medical 
 
         expenses as a result of this 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 17th of June, 1987.
 
         
 
         
 
         
 
         
 
                                           WALTER R. McMANUS, JR.
 
                                           DEPUTY INDUSTRIAL COMMISSIONER
 
         
 
         
 
         Copies To:
 
         
 
         Mr. Ernest W. Wilcke
 
         Attorney at Law
 
         826 1/2 Lake Street
 
         P. 0. Box 455
 
         Spirit Lake, Iowa 51360
 
         
 
         Mr. Dick H. Montgomery
 
         Attorney at Law
 
         Professional Bldg.
 
         Spencer, Iowa 51301
 
         
 
         
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                               1106; 1108.50; 1402.30
 
                                               1402.40; 1402.50; 1403.30
 
                                               1803; 2208; 2401; 2402
 
                                               2501; 2503; 2504; 2505
 
                                               2801; 2802; 2803
 
                                               Filed June 17, 1987
 
                                               WALTER R. McMANUS, JR.
 
         
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         WILTON CROFT,
 
                                                     FILE NO. 805211
 
              Claimant,
 
                                                  A R B I T R A T I 0 N
 
         VS.
 
                                                    D E C I S I 0 N
 
         JOHN MORRELL & COMPANY,
 
         
 
              Employer,
 
              Self-Insured,
 
              Defendant.
 
         
 
         1106; 1108.50; 1402.30; 1402.40; 1402.50; 1403.30; 1803; 2208
 
         
 
              Packinghouse employee was exposed to excessive noise levels 
 
         in excess of statutory standards for nine or more years before 
 
         hearing protection was provided.  Defendant suggested but failed 
 
         to prove other causes or contributing factors.  Both claimant's 
 
         and defendant's doctor said it was noise induced.  Claimant's 
 
         doctor said it was this employment.  Held: Claimant sustained an 
 
         occupational hearing loss that arose out of and in the course of 
 
         his employment with the employer. (Iowa Code sections 85B.4, 
 
         85B.5, 85B.6 and 85B.9)
 
         
 
         2401; 2801; 2802; 2803
 
         
 
              Hearing test performed by employer put employer on actual 
 
         notice of the hearing loss even before employer informed claimant 
 
         of the test results relieving claimant of giving notice. (Iowa 
 
         Code sections 85B.14 and 85.23)
 
         
 
         2402
 
         
 
              Date of injury was retirement date and action was timely 
 
         filed. (Iowa Code sections 85B.8, 85B.14 and 85.26(l))
 
         
 
         2501; 2503; 2504 and 2505
 
         
 
              Defendant did not show a hearing aid would not materially 
 
         improve claimant's compensable hearing loss.  Claimant's 
 
         audiologist said it would.  Lowest cost hearing aids allowed. 
 
         (Iowa Code section 85B.12)
 
         
 
         
 
                                                         
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                    BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         LEROY SLINGERLAND,
 
         
 
              Claimant,                             File No.  805240
 
         
 
         vs.                                     A R B I T R A T I 0 N
 
         
 
         JOHN MORRELL AND COMPANY,                  D E C I S I 0 N
 
         
 
              Employer,
 
              Self-Insured,
 
              Defendant.
 
         
 
         
 
         
 
                                   INTRODUCTION
 
         
 
              This is a proceeding in arbitration brought by Leroy 
 
         Slingerland, claimant, against John Morrell and Company, employer 
 
         and self-insured defendant for benefits as a result of an alleged 
 
         occupational hearing loss which occurred while employed by 
 
         employer.  A hearing was held on April 14, 1987 at Storm Lake, 
 
         Iowa and the case was fully submitted at the close of the 
 
         hearing.  The record consists of the testimony of Leroy 
 
         Slingerland (claimant) and joint exhibits one, two and three.  
 
         Exhibit two is a deposition which contains deposition exhibits A, 
 
         B, C, and D. Both attorneys submitted excellent briefs.
 
         
 
                                   STIPULATIONS
 
         
 
              The parties stipulated to the following matters at the time 
 
         of the hearing.
 
         
 
              That an employer-employee relationship existed between 
 
         claimant and employer at the time of the alleged hearing loss.
 
         
 
              That a pork plant noise survey, which is marked exhibit one, 
 
         and which is undated, would have been done in approximately the 
 
         latter part of 1982 or in 1983.
 
         
 
              That the plant was closed for a layoff from June of 1982 to 
 
         July of 1983,
 
         
 
              That the weekly rate of compensation, in the event of an 
 
         award, is $196.87 per week.
 
         
 
              That the commencement date for occupational hearing loss 
 
         compensation, in the event such benefits are awarded, is April 
 
         27, 1985.
 
         
 
                                     ISSUES
 
         
 
              The parties submitted the following issues for determination 
 

 
         
 
         
 
         
 
         SLINGERLAND V. JOHN MORRELL AND COMPANY
 
         Page   2
 
         
 
         at the time of the hearing.
 
         
 
              Whether claimant sustained an occupational hearing loss on 
 
         April 27, 1985 which arose out of and in the course of his 
 
         employment with employer.
 
         
 
              Whether the alleged noise exposure was the cause of any 
 
         statutory occupational hearing loss.
 
         
 
              Whether claimant is entitled to weekly compensation for 
 
         occupational hearing loss benefits.
 
         
 
              Whether this claim is barred because claimant failed to give 
 
         timely notice as required by Iowa Code section 85.23.
 
         
 
              Whether this claim is barred because claimant failed to 
 
         commence this action in the time specified in the statute of 
 
         limitations in Iowa Code section 85.26(l).
 
         
 
              Whether the alleged occupational hearing loss is actually 
 
         due to a naturally occurring disease process, as asserted by 
 
         defendant, is an issue that is already included in whether 
 
         claimant sustained an injury which arose out of and in the course 
 
         of his employment with employer.
 
         
 
         
 
                             SUMMARY OF THE EVIDENCE
 
         
 
              All of the evidence was examined and considered.  The 
 
         following is a summary of the pertinent evidence.
 
         
 
              Claimant is 57 years old and is a high school graduate.  He 
 
         started to work for employer in November 1957.  He was employed 
 
         there continuously, except for layoffs, for approximately 28 
 
         years until the plant closed on April 27, 1985.  Claimant had no 
 
         other employment during this period of time.  Claimant testified 
 
         that all of his jobs were on the kill floor.  A pork plant noise 
 
         level survey done in late 1982 or in 1983 showed the following 
 
         noise levels for the kill floor.
 
         
 
              Kill Floor
 
         
 
              Stunner, shackle & dehairer                      98 to  99
 
              Gam table                                        91 to  92
 
              Heading area                                     91 to  92
 
              Openers                                          90 to  91
 
              Gutters                                          91 to  92
 
              Head table whizard knife area                    97 to  98
 
              Opener saw                                       94 to  97
 
              Back saw                                         95 to 101
 
              Head table - chisel heads                        90 to  91
 
         
 
         (Joint Exhibit 1)
 
         
 
              There is no indication that the noise levels have changed 
 
         over the years.
 
         
 
              Claimant testified that he performed the following jobs 
 
         eight hours a day and five days a week for employer.
 
         
 

 
         
 
         
 
         
 
         SLINGERLAND V. JOHN MORRELL AND COMPANY
 
         Page   3
 
         
 
              1. Clean up (kill floor)                  2-3 years
 
              2. Tub (kill floor)                         9 years
 
              3. Liver Bench                            2-3 years
 
              4. Shaving sides                            1 year
 
              5. Trimming front feet                      1 year
 
              6. Trimming livers and hearts             2-3 years
 
              7. Sack gullets                             2 years
 
              8. Drove hogs                              10 years
 
         
 
              The tub area where claimant worked for approximately nine 
 
         years, from approximately 1962 to 1970, was near the stunner, 
 
         shackle and dehairer where the noise level was 98 to 99 decibels. 
 
          Trimming front feet and trimming livers and hearts for a total 
 
         of three to four years was near the openers with a decibel level 
 
         of 90 to 91 decibels and it was also near the back saw with a 
 
         decibel level of 95 to 101 decibels.  Driving hogs for ten years, 
 
         from approximately 1975 to 1985, was near the stunner, shackle 
 
         and dehairer where the noise level again was 98 to 99 decibels.  
 
         Claimant testified that the noisiest jobs were trimming livers 
 
         and driving hogs.  The least noisy job was clean up.
 
         
 
              Claimant grew up on a farm and for approximately four years 
 
         drove the tractor four months out of the year planting and 
 
         cultivating.  He testified that it was a new tractor and had a 
 
         good muffler.  He testified that he also worked as a maintenance 
 
         man in a creamery for five years and spent a limited amount of 
 
         time near the boilers which were noisy but were not too bad.  He 
 
         also testified that he worked on a road crew for a year but 
 
         denied any significant exposure to loud noise in that job.  He 
 
         testified that he also worked as a carpenter for awhile but 
 
         denied that it was noisy.
 
         
 
              Claimant related that he was 27 years old when he started 
 
         work for employer in November of 1957.  He took a preemployment 
 
         physical examination but a hearing test was not administered.  
 
         Claimant testified that he did not have any hearing problems at 
 
         that time.  He believed that he first detected a hearing loss in 
 
         approximately 1972.  In other testimony, he indicated it might 
 
         have been 1975 or 1976.  At that time, he experienced ringing in 
 
         his ears, difficulty hearing his wife and hearing the telephone. 
 
          He said he started wearing hearing protection on his own 
 
         initiative before employer provided it and before employer 
 
         administered hearing tests and posted signs.  After employer 
 
         issued earplugs he wore them even though he was not required to 
 
         do so by employer.  He stated that earplugs did significantly 
 
         reduce the noise.  He estimated that he wore earplugs for 
 
         approximately eight years before the plant closed.  Claimant 
 
         never did notify employer of a hearing loss other than to file 
 
         his petition in this case.
 
         
 
              It was stipulated that joint exhibit one, the pork plant 
 
         noise level survey, was conducted in late 1982 or in 1983.  It is 
 
         most likely that the survey was done in late 1983 because the 
 
         plant was closed for a layoff from June of 1982 until July of 
 
         1983.
 
         
 
              When returning from the layoff claimant took a preemployment 
 
         physical on July 13, 1983.  At that time he stated on item 11 of 
 
         the medical questionaire 'yes" he did have deafness or ear 
 
         trouble.  J.D. Powers, M.D., commented at the bottom of the 
 

 
         
 
         
 
         
 
         SLINGERLAND V. JOHN MORRELL AND COMPANY
 
         Page   4
 
         
 
         questionaire that claimant had a moderate reduction in hearing 
 
         (joint ex. 3).  An audiogram was not performed at that time.
 
         
 
              Employer administered a hearing test in April of 1984 (Ex. 
 
         2, deposition exhibit C).  Daniel Jorgensen, M.D., an 
 
         otolaryngologist, interpreted the results of this audiogram in 
 
         his testimony as follows (Jt. ex. 2, dep. ex.  C);(Jt. ex. 2, p. 
 
         18):
 
         
 
         
 
                                 LOSS IN DECIBELS
 
         
 
              Frequency              Left Ear              Right Ear
 
         
 
                 500                   10                     5-10
 
               1,000                   10                     5-10
 
               2,000                   55                       40
 
               3,000                   85                       80    
 
         
 
                                      160                      140
 
         
 
              The left ear totals 160 and the right ear totals 140 using 
 
         ten decibels rather than five decibels as the amount of loss 
 
         using the higher number where a choice is available.
 
         
 
              Claimant testified that he was not notified of the results 
 
         of this test.  He did receive a graph but no explanation of it 
 
         was given.  Signs were posted to wear hearing protection, but he 
 
         already had a problem and was already wearing hearing protection. 
 
          Employer never notified him at any time that he was exposed to 
 
         excessive noise levels or the results of his audiogram test.
 
         
 
              Another audiogram test was administered at the Mayo Clinic 
 
         on March 18, 1985.  Dr. Jorgensen interpreted these results as 
 
         follows (Jt. ex. 2, depo ex. D); (Jt. ex. 2, p. 19):
 
         
 
         
 
                                 LOSS IN DECIBELS
 
         
 
              Frequency               Left Ear            Right Ear
 
         
 
                  500                 7 1/2-10             7 1/2-10
 
                1,000                   15                    15
 
                2,000                   55                    45
 
                3,000                 70-75                  70-75  
 
         
 
                                       155                    145
 
         
 
              The left ear then totals 155 decibels and the right ear 
 
         totals 145 decibels, using the higher numbers where a choice is 
 
         available.
 
         
 
              The plant closed on April 27, 1985 and claimant retired at 
 
         that time at $600.00 per month instead of transferring to the 
 
         plant in Sioux Falls, South Dakota.  Since then, claimant has 
 
         been employed driving a small tractor at the country club mowing 
 
         greens and fareways from April to November each year.  He did 
 
         this in 1985, 1986, and 1987.  He does not wear hearing 
 
         protection while doing this job.  Claimant admitted that he was 
 
         hit in the head at age 12 with a baseball bat and suffered a 
 

 
         
 
         
 
         
 
         SLINGERLAND V. JOHN MORRELL AND COMPANY
 
         Page   5
 
         
 
         concussion.  He also admitted that he owned a motorcycle, a 
 
         snowmobile and a chain saw.  He testified that he had never 
 
         ridden the snowmobile and he has not ridden the motorcycle more 
 
         than a 100 miles in the last ten years.  He granted that he used 
 
         to hunt pheasants.  He conceded that he owns 1/4 inch drill but 
 
         rarely uses it.  He only cuts about four cords of wood with the 
 
         chain saw and buys the rest of the wood.  He does not wear 
 
         :earplugs when using the chain saw.  Claimant testified that 
 
         nothing else he has ever done was as loud or noisy as his 
 
         employment with employer.  His parents have no hearing loss.  His 
 
         children have no hearing loss.  Dr. Jorgensen told him that a 
 
         hearing aid would help him in one ear.
 
         
 
              Dr. Jorgensen testified by deposition on December 11, 1986
 
         (Ex. 2).  He stated that his audiologist administered an 
 
         audiometric test on March 18, 1986 (Ex. 2, dep. ex. B).  Dr. 
 
         Jorgensen interpreted the results of his own test as follows (Ex. 
 
         2, pp. 7 & 8); (Ex. 2, dep. ex. A):
 
         
 
                                 LOSS IN DECIBELS
 
         
 
              Frequency              Left Ear              Right Ear
 
         
 
                 500                   20                     10
 
               1,000                   10                     10
 
               2,000                   65                     50
 
               3,000                   85                     85  
 
         
 
                                      180                    155
 
         
 
              The left ear then totals 180 decibels and the right ear 
 
         totals 155 decibels.
 
         
 
              Dr. Jorgensen further testified that approximately 50 
 
         percent of his practice is concerned with the ear.  Claimant's 
 
         history disclosed that claimant had ringing in his ears and was 
 
         aware of a possible hearing loss for approximately 15 years.  
 
         Claimant told the doctor that he had encountered 27 years of 
 
         noise with employer, about five years with the creamery, and he 
 
         grew up on a farm.  The doctor added that claimant's audiogram 
 
         and speech reception threshold indicated a noise induced loss 
 
         (Ex. 2, p. 7).  It was most likely due to noise exposure from his 
 
         history over many years.  Each insult seems to add to the process 
 
         of deterioration of hearing (Ex. 2, p. 8).
 
         
 
              Dr. Jorgensen said that driving a tractor for the country 
 
         club now and riding a snowmobile could contribute to his problem. 
 
          He said that riding a motorcycle was not too bad because the 
 
         noise is fired out behind; however, chain saws are real bad.  
 
         Guns can also contribute.  Earplugs can diminish the sound by as 
 
         much as 40 to 50 decibels.  A blow on the head as a child could 
 
         cause loss too.  Every insult seems to add up a little bit (Ex. 
 
         2, pp. 9, 10 and 11).
 
         
 
              Defendant's counsel asked Dr. Jorgensen the following 
 
         question and received the following answer.
 
         
 
              Q.  Doctor, based upon the history that has been 
 
              presented to you is it possible to make a determination 
 
              as to which of the noise insults has caused the hearing 
 

 
         
 
         
 
         
 
         SLINGERLAND V. JOHN MORRELL AND COMPANY
 
         Page   6
 
         
 
              loss Mr. Slingerland has today?
 
         
 
              A.  I think it would be difficult to single out any one 
 
              cause as being the -- as being the leading cause or 
 
              even the exclusive cause.  I think as I've said, all 
 
              the -- all along it's a cumulative sort of problem, 
 
              additive sort of problem.  And he's certainly added 
 
              more than one noise insult to his ear.
 
         
 
         (Ex. 2, p. 11)
 
         
 
              Dr. Jorgensen admitted to claimant's counsel that he did not 
 
         go into detail as to how much, if any, noise the claimant 
 
         encountered working on the farm or in the creamery (Ex. 2, p. 
 
         15).  Claimant's attorney then quizzed Dr. Jorgensen on the pork 
 
         plant noise level survey in the following colloquy:
 
         
 
              Q.  Do you rely on those test results in determining in 
 
              a worker from John Morrell as to what percentage of 
 
              loss was caused by his work experience?
 
         
 
              A.  No, I don't.  I don't determine what percentage was 
 
              caused by their work experience.  I can only say that 
 
              if you have noise exposure then you can have 
 
              noise-induced hearing loss.  And it doesn't matter 
 
              whether the noise exposure is from exploding weapons or 
 
              exploding engines or in the work environment where the 
 
              machinery is running at a certain decibel level.
 
         
 
         (Ex. 2, p. 16)
 
         
 
              Dr. Jorgensen granted that the noise of squealing hogs 
 
         probably was an excessive noise exposure.
 
         
 
              Q.  Mr. Slingerland told us at his deposition that he 
 
              had worked for 10 to 12 years driving hogs out at John 
 
              Morrell.  Did he explain to you the noise level 
 
              associated with that type of work?
 
         
 
              A.  I have to think back.  But I do recall one of these 
 
              people taking about driving hogs and saying that indeed 
 
              the squealing was phenomenal.
 
         
 
              Q.  40 hours a week for 12 years of driving hogs, would 
 
              you consider that excessive exposure to noise?
 
         
 
              A.  Without looking at those numbers from the testing 
 
              service I'd still suspect it was high level noise, and 
 
              that is excessive noise exposure indeed.
 
         
 
         (Ex. 2, pp. 16 & 17)
 
         
 
              Dr. Jorgensen testified to a number of variables that can 
 
         influence the results of an audiometric test and estimated that a 
 
         five to ten percent decibel margin of error could occur even 
 
         using the same audiologist, audiometer and sound booth (Ex. 2, p. 
 
         19).
 
         
 
              Dr. Jorgensen's final remark on the cumulative effect of 
 
         hearing insult as applied to this case is capsulized as follows:
 

 
         
 
         
 
         
 
         SLINGERLAND V. JOHN MORRELL AND COMPANY
 
         Page   7
 
         
 
         
 
              Q.  It's your opinion within a reasonable degree of 
 
              medical certainty, Doctor, that Mr. Slingerland's 
 
              hearing loss in noise-induced?
 
         
 
              A.  Yes.
 
         
 
              Q.  You're saying it's pure speculation to attempt to 
 
              decipher in terms of his past what particular noise 
 
              caused what percent of his loss?
 
         
 
              A.  I'd say it would be difficult to put percentages on 
 
              it.  Somebody can always come up with a formula.  I 
 
              would say they've all added to the problem.
 
         
 
         (Ex. 2, pp. 21 & 22)
 
         
 
                           APPLICABLE LAW AND ANALYSIS
 
         
 
              Chapter 85B, Code of Iowa, provides benefits for 
 
         occupational hearing loss.  Section 85B.4(l) defines occupational 
 
         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) defines excessive noise 
 
         level as sound capable of producing occupational hearing loss.  
 
         Iowa Code section 85B.5 further defines excessive noise level as 
 
         sound which exceeds the times and intensities published in that 
 
         table in that section of the code.
 
         
 

 
         
 
         
 
         
 
         SLINGERLAND V. JOHN MORRELL AND COMPANY
 
         Page   8
 
         
 
              Claimant's testimony coupled with exhibit one, the noise 
 
         level survey, discloses that claimant was exposed to excessive 
 
         noise levels on the kill floor.  His exposure was not only for a 
 
         few hours a day, as suggested by the table in Iowa Code section 
 
         85B.5, rather, claimant's exposure was eight hours a day, five 
 
         days a week (40 hours a week) for his entire adult working 
 
         lifetime.  Work at excessive noise levels occurred from the 
 
         period from November of 1957 to April 27, 1985, a total of 
 
         approximately 28 years.  Most of this excessive noise level 
 
         exposure occurred prior to the time when a noise level survey was 
 
         taken in 1983, audiometric tests were administered in 1984 and 
 
         hearing protection was provided by employer.  Claimant testified 
 
         that he had no hearing problems when he began work in 1957.  
 
         Then, 26 years later, on July 13, 1983 on his medical examination 
 
         questionaire, he indicated he did have a hearing loss and 
 
         deafness in item number 11.  The company doctor confirmed that he 
 
         did have a moderate hearing loss.  Claimant did not have any 
 
         other employment during this period of time.
 
         
 
              Dr. Jorgensen follows a cumulative insult theory of hearing 
 
         loss.  Every insult adds to the overall loss.  Defendant did not 
 
         prove how much, if any, noise existed when claimant was driving a 
 
         tractor while farming with his family, or while he was working as 
 
         a maintenance man at the creamery, or while he was driving the 
 
         lawn tractor for the country club.  Claimant denied that there 
 
         was excessive noise in any of these jobs.  Defendant did not 
 
         demonstrate more than occasional use of his motorcycle, 
 
         snowmobile, chain saw or the use of his guns in hunting.  There 
 
         was no evidence that a hearing problem developed as a result of 
 
         the childhood concussion.  Defendant did not introduce any 
 
         evidence of the noise level for any of these other possible 
 
         sources of hearing loss.  Defendant did not prove that claimant 
 
         lost any hearing as a result of these activities, let on a 
 
         percentage of loss from any of these other possible causes of 
 
         loss.
 
         
 
              On the contrary, claimant proved 28 years of employment at 
 
         excessive noise levels, constantly, every day, eight hours a day, 
 
         five days a week.  Following Dr. Jorgensen's cumulative theory of 
 
         hearing loss in which every insult adds to the overall loss it is 
 
         readily apparent that claimant's employment was probably the 
 
         primary, if not the only, cause of his hearing loss.  The 
 
         cumulative insults from employment certainly far out weigh the 
 
         cumulative insults from any other activity.  Claimant's other 
 
         activities are only suggested contributing causes.  The amount of 
 
         contribution from them, if any, was not demonstrated.
 
         
 
              By comparison, claimant's work on a daily basis, all day 
 
         long for 20 or more years before he began wearing hearing 
 
         protection on his own initiative, in noise levels that are 
 
         defined by statute as excessive, then sustained the burden of 
 
         proof by a preponderance of the evidence that he sustained an 
 
         occupational hearing loss under Iowa Code section 85B.4(l) which 
 
         arose out of and in the course of his employment with employer.  
 
         The employment was the cause of occupational hearing loss.
 
         
 
              Once claimant had proven an injury that arose out of and in 
 
         the course of his employment, then the burden shifted to employer 
 
         to prove any affirmative defenses.  Reddick v. Grand Union Tea 
 
         Co., 230 Iowa 108, 195 N.W. 800 (1941).
 

 
         
 
         
 
         
 
         SLINGERLAND V. JOHN MORRELL AND COMPANY
 
         Page   9
 
         
 
         
 
              As to the affirmative defense of notice, Iowa Code section 
 
         85B.14 provides that the provisions of the workers' compensation 
 
         law in chapter 85 also apply to occupational hearing loss in so 
 
         far 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 it's 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 a notice requirement is to give 
 
         employer the opportunity to investigate the injury or hearing 
 
         loss.  Robinson v. Department of Transp., 296 N.W.2d 809, 811 
 
         (Iowa 1980); Hobbs v. Sioux City, 231 Iowa 860, 862, 2 N.W.2d 
 
         275, 276 (1942).
 
         
 
              In this case it would appear that defendant knew of the 
 
         noise danger in the plant.  They conducted a noise level survey, 
 
         tested claimant and posted signs.  As a result of the audiogram 
 
         they took in April of 1984 they had actual knowledge claimant had 
 
         sustained a compensable hearing loss before he did.  Claimant 
 
         testified that he knew he had a hearing problem as early as 1972 
 
         and started to wear earplugs at work.  However, there was no 
 
         evidence that he knew it was work related, serious or 
 
         compensable.
 
         
 
              Claimant might have been put on notice if defendant had 
 
         complied with a number of the requirements in Iowa Code section 
 
         85B, but defendant did not supply claimant this statutorily 
 
         required information.
 
         
 
              Iowa Code section 85B.5 prescribes:  "An employer shall 
 
         immediately inform an employee if the employer learns that the 
 
         employee is being subjected to sound levels and duration in 
 
         excess in the above table."  Claimant denied that he was ever 
 
         given this information.  Claimant's testimony was not 
 
         contradicted.
 
         
 
              Iowa Code section 85B.10 requires that an employee be 
 
         informed of an audiometric test in the following words:
 
         
 
                 The employer shall communicate to the employee, in 
 
              writing, the results of an audiometric examination or 
 
              physical examination of an employee which reflects an 
 
              average hearing loss of the employee in one or both 
 
              ears in excess of twenty-five decibels ANSI or ISO for 
 
              the test frequencies of five hundred, one thousand, two 
 
              thousand, and three thousand Hertz, as soon as 
 
              practicable after the examination.  The communication 
 
              shall include the name and address of the person 
 
              conducting the audiometric examination or physical 
 
              examination, the kind or type of test or examinations 
 
              given, the results of each, the average decibel loss, 
 
              in the four frequencies, in each ear, if any, and, if 
 
              known to the employer, whether the loss is 
 
              sensorineural hearing loss and, if the hearing loss 
 
              resulted from another cause, the name of the cause.
 
         
 
              Claimant testified that all he received was a graph without 
 
         any explanation of it.  Therefore, it is determined that the 
 

 
         
 
         
 
         
 
         SLINGERLAND V. JOHN MORRELL AND COMPANY
 
         Page  10
 
         
 
         employer had actual knowledge of the claimant's occupational 
 
         hearing loss pursuant to Iowa Code section 85.23.  Therefore, 
 
         claimant is relieved from giving notice to employer.  This is 
 
         true even though defendant had actual knowledge of an 
 
         occupational hearing loss prior to the injury date which in this 
 
         case is prescribed by statute in Iowa Code section 85B.8.  
 
         Dillinger v. City of Sioux City, 368 N.W.2d 176, 179 (Iowa 
 
         1985).
 
         
 
              Failure to give notice is an affirmative defense.  Mefferd 
 
         v. Ed Miller and Sons, Inc., 33 Bienniel Report of the Industrial 
 
         Commissioner 191 (Appeal Decision 1977).  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.
 
         
 
               Again, as to the affirmative defense of the statute of 
 
         limitations, Iowa Code section 85B.14 provides that the 
 
         provisions of the workers' compensation law in chapter 85 apply 
 
         to occupational hearing loss cases in so far as applicable and 
 
         when not inconsistent with chapter 85B.  Therefore, the statute 
 
         of limitations of Iowa Code section 85.26(l) is applicable to 
 
         this hearing loss claim because there is no separate statute of 
 
         limitations in Iowa Code section 85B.  Chapter 85.26(l) then is 
 
         applicable and is not inconsistent.  Iowa Code section 85.26(l) 
 
         requires an original proceeding be commenced within two years of 
 
         the date of injury.  Iowa Code section 85B.8 provides special 
 
         statutory dates of injury for hearing loss cases.
 
         
 
                 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:
 
         
 
                 l.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.
 
         
 
              One possible injury date is six months after the layoff that 
 
         lasted more than one year from June of 1982 to July of 1983.  
 
         This provision of the statute would suggest an injury then of 
 
         December of 1982.  Two years from December of 1982 is December of 
 
         1984.  This petition was filed October 25, 1985.  Using six 
 
         months after the layoff date would result in this action being 
 
         untimely.
 
         
 
              Two other possible injury dates in Iowa Code section 85B.8 
 
         are the date of retirement and the date of termination of an 
 
         employer-employee relationship, which two dates in this case both 
 
         occurred on April 27, 1985.  This petition was filed on October 
 
         25, 1985.  Using retirement date or termination date then would 
 

 
         
 
         
 
         
 
         SLINGERLAND V. JOHN MORRELL AND COMPANY
 
         Page  11
 
         
 
         result in this action being timely.
 
         
 
              While Iowa Code section 85B.8 lists four occurrences it does 
 
         not state whether the statute of limitations begins to run 
 
         following the first or the last of such occurrences.  Nor does it 
 
         specify that failure to file using a date of injury six months 
 
         after a layoff that continues for more than one year prohibits a 
 
         subsequent filing after retirement or termination of employment.
 
         
 
              The Iowa Supreme Court recently held in a case concerning a 
 
         hearing loss under Iowa Code section 85B, that when two or more 
 
         interpretations of a statue of limitations are possible, the one 
 
         giving the longest period to a litigant is to be preferred and 
 
         applied.  John Deere Dubuque Works v. Meyers, 410 N.W.2d 255 
 
         (Iowa 1987); See also Henderson v. John Morrell & Co., file 
 
         number 825137, filed November 20, 1987.  Therefore, claimant's 
 
         number 825137, filed retirement date and date of termination of 
 
         employment on April 17, 1985 is determined to be the injury date 
 
         in this case.  The original notice and petition was filed on 
 
         October 25, 1985.  It is therefore timely.
 
              
 
              The use of the latest date in Iowa Code section 85B.8 is 
 
         also consistent with Iowa Code section 85B.9 that requires the 
 
         audiogram with the lowest threshold be used in the calculation of 
 
         the loss.  Usually the latest calculation will be the lowest 
 
         because it is performed after the claimant has been removed from 
 
         the noisy environment for sometime.  In addition, using the 
 
         latest date of loss is consistent with the reason that no action 
 
         can be filed for six months after the date of injury as 
 
         prohibited by Iowa Code section 85B.8, paragraph one.  The 
 
         general idea is to remove claimant from the noisy environment for 
 
         a period of time in order to determine how much of his hearing 
 
         will return after he is removed from an excessive noise level 
 
         environment.
 
         
 
              Also, if it were to be determined that claimant discovered 
 
         the nature, seriousness and compensability of this injury in 
 
         April of 1984 when defendant administered the hearing test and 
 
         supplied him with a graph of the result, then claimant would have 
 
         timely filed his action on October 25, 1985.  The application of 
 
         the discovery rule would give claimant until April of 1986 to 
 
         commence an action.  Orr v. Lewis Cent. Sch. Dist., 298 N.W.2d 
 
         256, 261 (Iowa 1980); Robinson, 296 N.W.2d 809, 812; Jacques v. 
 
         Farmers Lbr. & Sup. Co., 242 Iowa 548, 47 N.W.2d 236 (1951).  It 
 
         has been specifically determined that the discovery rule applies 
 
         to hearing loss cases.  John Deere Dubuque Works, 410 N.W.2d 
 
         255.
 
         
 
              Handing a graph with audiometric test results to a packing 
 
         house worker might possibly fall short of the requirements of the 
 
         discovery rule.  The best evidence, in this case, as to when 
 
         claimant determined that his hearing loss was serious, work 
 
         related and compensable was when he filed the original notice and 
 
         petition on October 25, 1985.  Therefore, if the discovery rule 
 
         is applied, the date of occurrence of the injury and the 
 
         commencement of the action both occurred on the same day and the 
 
         action would be timely commenced.
 
         
 
              Occupational hearing loss is measured by a statutory formula 
 
         set out in Iowa Code section 85B.9.  When this formula is applied 
 
         to the results of the audiometric test performed by the employer 
 

 
         
 
         
 
         
 
         SLINGERLAND V. JOHN MORRELL AND COMPANY
 
         Page  12
 
         
 
         in April of 1984 (Ex. 2, dep. ex. C), as interpreted by Dr. 
 
         Jorgensen in his deposition, using the decibel loss shown in 
 
         summary of facts above, it results in a 16.25 total binaural 
 
         hearing loss.  When the formula is applied to the Mayo Clinic 
 
         audiogram dated March 18, 1985, as interpreted by Dr. Jorgensen 
 
         in his deposition and using the decibel losses shown in the 
 
         summary of facts above, it results in a binaural hearing loss of 
 
         17.5 decibels.  When the formula is applied to Dr. Jorgensen's 
 
         interpretation of his own audiologist it results in a binaural 
 
         occupational hearing loss of 22.1875, which is the lowest loss 
 
         determination following notice of an occupational hearing loss 
 
         claim as prescribed by Iowa Code section 85B.9.  Therefore, it is 
 
         determined that claimant has sustained a 22.1875 binaural 
 
         occupational hearing loss based on Dr. Jorgensen's audiogram and 
 
         his interpretation of it which was taken after employee had been 
 
         away from the excessive noise environment for over a year.
 
         
 
              Claimant's entitlement to compensation is calculated by 
 
         applying the percentage of loss of 22.1875 to the maximum 
 
         allowance of 175 weeks as provided in Iowa Code section 85B.10. 
 
         This results in an allowance of 38.83 weeks of hearing loss 
 
         compensation (175 x .221875).
 
         
 
              Defendants did not sustain the burden of proof by a 
 
         preponderance of the evidence that claimant's hearing loss came 
 
         about through a naturally occurring disease process.
 
         
 
         
 
                                 FINDINGS OF FACT
 
         
 
              WHEREFORE, based upon the evidence presented the following 
 
         findings of fact are made.
 
         
 
              That claimant was employed by employer from November of 1957 
 
         to April 27, 1985 when the plant closed.
 
         
 
              That claimant was exposed to excessive noise levels in 
 
         excess of 90 decibels and sometimes up to 101 decibels eight 
 
         hours a day, five days a week for approximately 28 years.
 
         
 
              That Dr. Jorgensen found that claimant sustained a binaural 
 
         noise induced hearing loss in excess of 25 decibels.
 
         
 
              That there was no substantial evidence that any of 
 
         claimant's prior employments or off work activities contributed 
 
         significantly to his loss of hearing, if at all.
 
         
 
              That claimant first knew he had a hearing loss in 
 
         approximately 1972 and began wearing hearing protection on his 
 
         own initiative at that time.
 
         
 
              That claimant was laid off from June of 1982 to July of 
 
         1983.
 
         
 
              That defendant first tested claimant and gave him a copy of 
 
         the audiogram results in the form of an unexplained graph in 
 
         April of 1984.
 
         
 
              That claimant retired and terminated his employment with 
 
         employer on April 27, 1985 when the plant closed.
 

 
         
 
         
 
         
 
         SLINGERLAND V. JOHN MORRELL AND COMPANY
 
         Page  13
 
         
 
         
 
              That claimant filed this petition and this action was 
 
         commenced on October 25, 1985.
 
         
 
              That claimant sustained a 22.1875 percent binaural hearing 
 
         loss.
 
         
 
         
 
         
 
                                CONCLUSIONS OF LAW
 
         
 
              WHEREFORE, based upon the evidence presented and the 
 
         principles of law previously discussed the following conclusions 
 
         of law are made.
 
         
 
              That claimant sustained an occupational hearing loss which 
 
         arose out of and in the course of his employment with employer 
 
         (Iowa Code section 85B.4).
 
         
 
              That the occupational hearing loss was caused by his 
 
         employment with employer.
 
         
 
              That the amount of loss is 22.1875 percent following the 
 
         statutory formula to determine occupational hearing loss (Iowa 
 
         Code section 85B.9).
 
         
 
              That claimant is entitled to 38.83 weeks of occupational 
 
         hearing loss compensation (Iowa Code section 85B.10).
 
         
 
              That defendant had actual knowledge of claimant's hearing 
 

 
         
 
         
 
         
 
         SLINGERLAND V. JOHN MORRELL AND COMPANY
 
         Page  14
 
         
 
         loss (Iowa Code section 85B.14 and 85.23).
 
         
 
              That the date of injury is April 27, 1985, the date of 
 
         retirement and termination of employment (Iowa Code section 
 
         85B.8).
 
         
 
              That this action was timely commenced on October 25, 1985.
 
         
 
         
 
                                      ORDER
 
         
 
              WHEREFORE, IT IS ORDERED:
 
         
 
              That defendant pay to claimant thirty-eight point eight 
 
         three (38.83) weeks (175 x .221875) of occupational hearing loss 
 
         compensation at the rate of one hundred ninety-six and 87/100 
 
         dollars ($196.87) per week in the total amount of seven thousand 
 
         six hundred forty-four. and 46/100 ($ 7,644.46) (38.83x 196.87) 
 
         commencing on April 27, 1985 which is the date stipulated to for 
 
         the commencement of benefits by the parties.
 
         
 
              That these benefits be,paid in a lump sum.
 
         
 
              That interest will accrue under Iowa Code section 85.30.
 
         
 
              That the costs of this action are charged to defendant 
 
         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 19th day of January, 1988.
 
         
 
         
 
         
 
         
 
         
 
                                           WALTER R. McMANUS, JR.
 
                                           DEPUTY INDUSTRIAL COMMISSIONER
 
         
 
         Copies To:
 
         
 
         Mr. Duane Hoffmeyer
 
         Attorney at Law
 
         1721 Jackson St.
 
         P.O. Box 2051
 
         Sioux City, Iowa 51104
 
         
 
         Mr. Dick Montgomery
 
         Attorney at Law
 
         Professional Building
 
         Spencer, Iowa 51104
 
         
 
         
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                                  1106; 1108.50; 1402.20;
 
                                                  1402.30; 1402.40; 2208;
 
                                                  2209; 1803; 1402.50;
 
                                                  1403.30; 2401; 2802; 
 
                                                  2803; 2402
 
                                                  Filed January 19, 1988
 
                                                  WALTER R. McMANUS, JR.
 
         
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         LEROY SLINGERLAND,
 
         
 
              Claimant,                               File No. 805240
 
         
 
         vs.                                      A R B I T R A T I 0 N
 
         
 
         JOHN MORRELL AND COMPANY,                   D E C I S I 0 N
 
         
 
              Employer,
 
              Self-Insured,
 
              Defendant.
 
         
 
         
 
         
 
         1106; 1108.50; 1402.20; 1402.40; 2208; 2209
 
         
 
              Twenty-eight years of employment on the kill floor at 
 
         excessive noise levels, much of it before hearing protection was 
 
         provided, was the cause of occupational hearing loss which arose 
 
         out of and in the course of employment with employer.
 
         
 
         1803
 
         
 
              Claimant awarded 38.83 weeks of occupational hearing loss 
 
         compensation.
 
         
 
         1402.50; 1403.30; 2401; 2802; 2803
 
         
 
              Employer had actual knowledge of hearing loss before the 
 
         employee from an employer administered hearing test.
 
         
 
         1403.30; 2402
 
         
 
              Employer failed to prove that the action was not timely 
 
         filed applying either the discovery rule or all the possible 
 
         injury dates in ICS 85B.8.
 
         
 
         
 
         
 
 
 
 
 
 
 
                                                
 
 
            
 
 
 
 
 
 
 
               
 
                    
 
                    BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         CLARENCE BLAND,                              File No. 805241
 
         
 
              Claimant,                            A R B I T R A T I O N
 
         
 
         vs.                                          D E C I S I O N
 
         
 
         JOHN MORRELL & COMPANY,                         F I L E D
 
         
 
              Employer,                                 JAN 19 1988
 
              Self-Insured,
 
              Defendant.                       IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
                                 INTRODUCTION
 
         
 
              This is a proceeding in arbitration brought by Clarence 
 
         Bland, claimant, against John Morrell & Co., employer and 
 
         self-insured defendant for benefits for an alleged occupational 
 
         hearing loss which occurred while claimant was employed by 
 
         employer.  A hearing was held on April 14, 1987 at Storm Lake, 
 
         Iowa and the case was fully submitted at the close of the 
 
         hearing.  The record consists of joint exhibits 1 through 5 and 
 
         the testimony of Clarence Bland (claimant).
 
         
 
                                 STIPULATIONS
 
         
 
              The parties stipulated to the following matters at the time 
 
         of the hearing:
 
         
 
              An employer-employee relationship existed between employer 
 
         and claimant at the time of the alleged hearing loss.
 
         
 
              That the weekly rate of compensation in the event of an 
 
         award is $230.56 per week.
 
         
 
              That the commencement date of occupational hearing loss 
 
         compensation, in the event such benefits are awarded, is April 
 
         27, 1985.
 
         
 
                                   ISSUES
 
         
 
              The parties submitted the following issues for determination 
 
         at the time of the hearing.
 
         
 
              Whether claimant sustained an occupational hearing loss on 
 
         or about April 27, 1985 which arose out of and in the course of 
 
         his employment with employer.
 
         
 
              Whether the alleged hearing loss was the cause of any 
 
         permanent disability.
 
                                                       
 
                                                                
 
         
 
              Whether claimant is entitled to weekly compensation benefits 
 
         for occupational hearing loss.
 
         
 
              Whether the claim is barred because claimant failed to give 
 
         timely notice as required by Iowa Code section 85.23.
 
         
 
              Whether the claim is barred because claimant failed to 
 
         commence action within the time specified by the statue of 
 
         limitations.
 
         
 
              Whether the alleged occupational hearing loss is actually 
 
         due to a naturally occurring disease process as asserted by 
 
         defendant is an issue already included in the issue of whether 
 
         claimant sustained an occupational hearing loss that arose out of 
 
         and in the course of employment with employer.
 
         
 
                             SUMMARY OF THE EVIDENCE
 
         
 
              All of the evidence was examined and considered.  The 
 
         following is a summary of the pertinent evidence.
 
         
 
              Claimant is 56 years old, married and a high school 
 
         graduate. He started to work for employer at approximately age 26 
 
         on December 3, 1956.  He terminated and retired from employer at 
 
         approximately age 55 when the plant closed on April 27, 1985.  
 
         For 29 years of his adult life this employer was his only 
 
         employer. All of his jobs were on or near the kill floor.  A pork 
 
         plant noise level survey done in late 1982 or early 1983 showed 
 
         the following noise levels for the kill floor.
 
         
 
              Kill Floor
 
         
 
              Stunner, shackle & dehairer       98 to 99
 
              Gam table                         91 to 92
 
              Heading area                      91 to 92
 
              Openers                           90 to 91
 
              Gutters                           91 to 92
 
              Head table wizard knife area      97 to 98
 
              Opener saw                        94 to 97
 
              Back saw                          95 to 101
 
              Head table - chisel heads         90 to 91
 
         
 
         (Exhibit 1)
 
         
 
              Claimant testified that he performed six different jobs on 
 
         the kill floor.  He normally worked eight hours a day five days a 
 
         week.  The jobs claimant performed and the noise level at or near 
 
         those stations for eight hours per day are as follows:
 
         
 
         
 
         JOB                 AREA             LENGTH           LEVEL
 
         
 
         Knife Job           Head Table -
 
                             Chisel Heads       6 mos.          90 - 91
 
                                                       
 
                                                                
 
         Trimming eyelids
 
         and lips            Heading Area       2 - 2 1/2 mos.  91 - 92
 
         Removed Viscera     Openers            2 years         90 - 91
 
         Headed Hogs         Gambel Table      11 years         91 - 92
 
         Stuck Hogs          Stunner, Shackle
 
                             and Dehairer      10 years         98 - 99
 
         Utility Man         All over kill
 
                             floor              5 - 6 years     90 - 101
 
         
 
              Claimant further testified that when he headed hogs for 11 
 
         years it was also near the dehairer where the sound level was 98 
 
         - 99 decibels.  Also, that when he worked as a utility man he 
 
         spent many hours working on retained hogs near the back saw where 
 
         the noise level was 95 - 101 decibels.  He believed that the 
 
         noisiest jobs were sticking hogs for 10 years and heading hogs 
 
         for 11 years.  The least noisy job was the knife job and the head 
 
         table for six months.
 
         
 
              Claimant stated that he took a preemployment physical 
 
         examination but a hearing test was not administered at that time. 
 
         He alleged that his hearing was good when he started to work in 
 
         1956 but he has a permanent hearing loss today.
 
         
 
              There was a layoff at the plant from June of 1982 until 
 
         August of 1983.  In his brief claimant's counsel said that the 
 
         precise dates were June 25, 1982 until July 19, 1983.  On July 
 
         11, 1983, prior to returning to work after the layoff, claimant 
 
         took a company physical examination.  At that time claimant 
 
         checked "no" that he did not have or ever have any deafness or 
 
         ear trouble at item 11 on the questionaire.  The physician also 
 
         checked that his ears were normal (Ex. 3).
 
         
 
              Claimant related that at some point in time the plant nurse, 
 
         Trish Merrill, administered a hearing test but that he did not 
 
         know the date when this was done.  Exhibit five is a result of an 
 
         audiometric test performed on February 28, 1984 by initials T.M. 
 
         Claimant acknowledged that this was probably the test that he 
 
         took.  He testified that the results of the test were not 
 
         provided to him.  He further testified that he was never told 
 
         that he worked in excessive noise levels at anytime.  He did 
 
         admit that he was told by the nurse that he had a little damage 
 
         and that he should were earplugs.  Claimant testified that he did 
 
         wear earplugs after that until the plant closed.  Claimant 
 
         testified that this was the first knowledge that he had of a 
 
         hearing loss. He did admit that his wife also complained about 
 
         his hearing but no point in time was established as to when this 
 
         occurred.  Signs were posted in the plant then also.  There was 
 
         no testimony as to what was written on the signs.  Claimant 
 
         acknowledged that he signed his name to a sheet of paper on March 
 
         22, 1984 which read as follows:
 
         
 
                   Your recent hearing test has indicated that your 
 
              hearing has decreased as was explained to you at the time of 
 
              your test.  This change in hearing requires one or more of 
 
              the following.
 
                                                       
 
                                                                
 
              Those that are checked apply to you.
 
         
 
              __XX__  Mandatory ear protection is required at all times 
 
                      when working in the production area.
 
         
 
              __XX__  Referral to your physician for evaluation is 
 
                      recommended to further delineate the nature of your 
 
                      change in hearing.
 
         
 
              __XX__  Strongly recommend use of ear protection for all 
 
                      non-work related noisy activities:  e.g. shooting, 
 
                      chain saw, motor cycling, etc.
 
         
 
         (Ex. 4)
 
         
 
              Claimant testified that employer did not arrange for him to 
 
         see a doctor or offer to pay for a visit to the doctor; nor did 
 
         he go to the doctor on his own.
 
         
 
              The plant closed on April 17, 1985.  Claimant testified he 
 
         was only given one choice and that choice was to retire at 
 
         $580.00 per month.  Claimant filed his original notice and 
 
         petition on October 25, 1985.  Claimant granted that this was the 
 
         first time that he gave notice to the employer of his hearing 
 
         loss.
 
 
 
                             
 
                                                                
 
         
 
              Claimant asserted that the degree of his hearing loss was 
 
         never revealed to him until he was examined by Daniel Jorgensen, 
 
         M.D., an otolaryngologist, on March 18, 1986.  Claimant testified 
 
         that he first learned that his hearing loss was compensable at 
 
         the time of Dr. Jorgensen's examination.
 
         
 
              Dr. Jorgensen testified by deposition on December 11, 1986 
 
         that 50 percent of his medical practice deals with hearing.  He 
 
         saw claimant on March 18, 1986 and took a history at that time. 
 
         Claimant denied any childhood hearing problems.  Dr. Jorgensen 
 
         noted that claimant worked for employer on the kill floor during 
 
         his entire employment.  Claimant told him that he used hearing 
 
         protection in the National Guard when he was in the field 
 
         artillery.  Dr. Jorgensen's audiogram (Ex. 2, Deposition Ex. A) 
 
         showed a configuration consistent with noise induced hearing loss 
 
         with speech reception thresholds in the low normal range (Ex. 2, 
 
         page 6 & 7).  Dr. Jorgensen added that the configuration of his 
 
         pure tones was classic for a noise induced sensorineural loss.  
 
         Dr. Jorgensen testified that it was likely that noise exposure was 
 
         a contributing factor (Ex. 2, p. 9).  The loss was permanent (Ex. 
 
         2, p. 10).  Dr. Jorgensen reported claimant's hearing loss as 
 
         follows:
 
         
 
         CLARENCE BLAND HEARING LOSS
 
         
 
         Frequency in Hz    Right Ear Hearing Loss    Left Ear Hearing 
 
         Loss
 
         
 
              500                    20                       10
 
         
 
            1,000                    20                       10
 
         
 
            2,000                    30                       35
 
         
 
            3,000                    45                       55
 
         
 
         (Ex. 2, Dep. Ex. A)
 
         
 
              Claimant testified that his prior employment with a meat 
 
         packer on the liver bench for four to five years was away from 
 
         the kill floor and was not noisy.  His prior employment as a feed 
 
         salesman driving a truck for one and one-half years was not 
 
         noisy. His part-time farm work in high school for his stepfather 
 
         did not involve the use of machinery and was not noisy.  Claimant 
 
         did concede that he was in the field artillery in the Army 
 
         National Guard for five or six years.  At that time he fired a 
 
         105 millimeter howitzer, which is a two wheeled cannon, during 
 
         his two week summer camps.  The army provided hard shelled 
 
         mufflers for his ears and he wore them.  He wore earplugs at the 
 
         plant after he was told to do so, but he did not wear them away 
 
         from the plant. He used to hunt pheasants but he has not done so 
 
         in recent years.
 
         
 
              Claimant averred that he gets ringing in his ears now.  His 
 
                                                       
 
                                                                
 
         wife complains that he turns the television up to loud.  He does 
 
         not wear a hearing aid.  His mother and father have no hearing 
 
         problems, nor do any of his three children.  Claimant testified 
 
         that he has been working for a coop elevator for about four and 
 
         one-half months since his retirement.  In his opinion his hearing 
 
         is the same now as it was when he retired on April 27, 1985.
 
         
 
                          APPLICABLE LAW AND ANALYSIS
 
         
 
              Chapter 85B, Code of Iowa, provides benefits for 
 
         occupational hearing loss.  Section 85B.4 definitions, paragraph 
 
         one, defines occupational 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) defines excessive noise level as sound capable of 
 
         producing occupational hearing loss.  Iowa Code section 85B.5 
 
         further defines excessive noise level as sound which exceeds the 
 
         times and intensities published in the table found in that 
 
         section of the code.
 
         
 
              Exhibit one, the noise level survey for the kill floor, 
 
         demonstrates that the claimant was exposed to highly excessive 
 
         noise levels not only for a few hours a day, as suggested by the 
 
         table in Iowa Code section 85B.5, but that claimant was exposed 
 
         to excessive noise levels eight hours a day, five days a week for 
 
         29 years.  According to the evidence in this case there was no 
 
         time in 29 years that claimant did not work in an excessive noise 
 
         level environment as defined in Iowa Code section 85B.5.
 
         
 
              Employer did not seriously insist on claimant wearing ear 
 
         protection until February or March of 1984 (Ex. 4 and 5). 
 
         Therefore, claimant worked in excessive noise level employment 
 
         for approximately 28 years from 1956 to 1984 without any hearing 
 
         protection.  Claimant stated that he wore hearing protection from 
 
         February or March of 1984 until the plant closed and he retired 
 
         on April 27, 1985.
 
         
 
              Dr. Jorgensen testified that claimant's loss was 
 
         sensorineural and permanent (Ex. 2, pp. 9 and 10).  The doctor 
 
         also testified that the hearing loss was noise induced (Ex. 2, 
 
         pp. 7 and 9).  According to Dr. Jorgensen's findings the loss 
 
         exceeded 25 decibels in both ears (Ex. 2, Dep. Ex. A).
 
         
 
              There is no evidence of childhood loss of hearing or a loss 
 
         of hearing for any other reason.  In the field artillery claimant 
 
         wore hard shelled hearing protection ear mufflers during those 
 
         annual two week summer camps for five or six years.  Claimant's 
 
         former employments did not involve loud noise.  It was not shown 
 
         that claimant had suffered any hearing loss from any other 
 
         source, let on the amount of any such loss.
 
         
 
              Therefore, it is found that claimant did sustain an 
 
         occupational hearing loss as defined in Iowa Code section 85B.4 
 
         Definitions, paragraph one, which arose out of and in the course 
 
                                                       
 
                                                                
 
         of his employment with employer which is the cause of permanent 
 
         sensorineural loss of hearing in excess of 25 decibels in both 
 
         ears.
 
         
 
              Once claimant has established an injury that arose out of 
 
         and in the course of employment with employer, the burden shifts 
 
         to employer to prove any affirmative defenses.  Reddick v. Grand 
 
         Union Tea Co., 230 Iowa 108, 195 N.W. 800 (1941).
 
         
 
              Iowa Code section 85B.14 provides that the provisions of the 
 
         workers' compensation law in chapter 85 also apply to 
 
         occupational hearing loss in so far as applicable and when not 
 
         inconsistent with chapter 85B.  Therefore, the notice requirement 
 
         of Iowa Code section 85.23 generally applies to occupational 
 
         hearing losses because chapter 85B has no specific notice 
 
         requirement of it's 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 a 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 1980); Hobbs v. Sioux City, 231 Iowa 860, 862, 2 N.W.2d 
 
         275, 276 (1942).
 
         
 
              Under the facts of this case, it is apparent that employer 
 
         was more aware of claimant's possible work-related hearing loss 
 
         than was claimant himself.  Claimant testified that his first 
 
         knowledge of a decrease in his hearing was in February or March 
 
         of 1984 after the employer's nurse took the hearing test.  This 
 
         is supported by his statement on the preemployment medical 
 
         questionaire on July 11, 1983 which was completed prior to 
 
         returning to work after the layoff.  On that form claimant 
 
         checked that he did not have and did not ever have any deafness 
 
         or hearing loss (Ex. 3).  Employer on the other hand, was 
 
         apparently aware of a plant wide problem as evidenced by (1) the 
 
         noise level survey done in late 1982 or early 1983; (2) the 
 
         audiogram administered to claimant on February 28, 1984 (Ex. 5); 
 
         (3) the notice to claimant to wear earplugs (Ex. 4); (4) posting 
 
         signs in the plant.
 
         
 
              Therefore, it is determined that employer had actual 
 
         knowledge of claimant's occupational hearing loss in 85.23. 
 
         Therefore, claimant is relieved from giving notice to employer. 
 
         This is true even though defendant had actual knowledge of an 
 
         occupational hearing loss prior to the injury date which in this 
 
         case is prescribed by statue and Iowa Code section 85B.8. 
 
         Dillinger v. City of Sioux City, 368 N.W.2d 176, 179 (Iowa 
 
         1985).
 
         
 
              Failure to give notice is an affirmative defense.  Mefferd 
 
         v. Ed Miller and Sons, Inc., 33 Biennial Reports of the 
 
         Industrial Commissioner 191, (Appeal Decision 1977).  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.
 
                                                       
 
                                                                
 
         
 
              As to the defense of the statute of limitations, again, Iowa 
 
         Code section 85B.14 provides that the provisions of the workers' 
 
         compensation law in chapter 85 apply to occupational hearing loss 
 
         cases in so far as applicable and when not inconsistent with 
 
         chapter 85B.  Therefore, the statute of limitations of Iowa Code 
 
         section 85.26(1) is applicable to this hearing loss claim because 
 
         there is no separate statute of limitations in Iowa Code section 
 
         85B.
 
         
 
              Iowa Code section 85.26(1) then is applicable and is not 
 
         inconsistent.  This section requires an original proceeding to be 
 
         commenced within two years of the date of the injury.  Iowa Code 
 
         section 85B.8 provides special statutory dates of injury for 
 
         occupational hearing loss cases.
 
         
 
                   A claim for occupational hearing loss due to excessive 
 
              noise levels may be filed six months after separation from 
 
              employment in which the employee was exposed to excessive 
 
              noise levels.  The date of injury shall be the date of 
 
              occurrence of any one of the following events:
 
         
 
                   l.  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 there was a layoff which continued for a period 
 
         longer than one year from June 1982 until August of 1983. 
 
         Claimant's attorney more precisely defined these dates in his 
 
         brief as June 25, 1982 until July 19, 1983.  A literal 
 
         application of Iowa Code section 85B.8 to this layoff would then 
 
         statutorily set the injury date at six months after June of 1982 
 
         (June 25, 1982) at December of 1982 (December 25, 1982).
 
         
 
              While Iowa Code section 85B.8 lists four occurrences it does 
 
         not state whether the statute of limitations begins to run with 
 
         the first or last of these occurrences; or whether failure to 
 
         file upon a layoff that continues for more than one year 
 
         prohibits a subsequent filing upon retirement or termination of 
 
         employment. The Iowa Supreme Court has indicated, however, in a 
 
         recent decision that when two or more interpretations of a 
 
         limitations statute are possible, then the one giving the longer 
 
         period to a litigant is to be preferred and applied.  John Deere 
 
         v. Meyers, 410 N.W.2d 255 (Iowa 1987).  See also Hendersen v. 
 
         John Morrell & Co., file number 825137 arbitration decision filed 
 
         November 20, 1987.
 
         
 
              In any event, the discovery rule would apply to any one of 
 
         the four statutory dates in Iowa Code section 85B.8.  The 
 
         discovery rule has been held applicable to the two year statute of 
 
         limitations in workers' compensation cases other than hearing 
 
         losses.  Orr v. Lewis Cent. Sch. Dist., 298 N.W.2d 256, 261 (Iowa 
 
         1980); Robinson, 296 N.W.2d 809, 812 (Iowa 1980); Jacques v. 
 
         Farmers Lbr. & Sup. Co., 242 Iowa 548, 47 N.W.2d 236 (1951).  The 
 
         Iowa Supreme Court has also recently held that the discovery rule 
 
         does apply to hearing loss cases under Iowa Code section 85B.  
 
         John Deere Dubuque Works, 410 N.W.2d 255.
 
         
 
              Although the Robinson case is a notice case, the supreme 
 
         court cited it in the Orr case which was a statute of limitations 
 
         case.  In Robinson, the court said at page 812:
 
         
 
              Substantially the same statement of the discovery rule 
 
              appears in 3 A. Larson, supra,  78.41 at 15-65 to 15-66: 
 
              "The time period for notice or claim does not begin to run 
 
              until the claimant, as a reasonable man, should recognize 
 
              the nature, seriousness and probable compensable character 
 
              of his injury or disease."  This statement accurately 
 
              delineates when the employee's duty to give notice arises.  
 
              The reasonableness of the claimant's conduct is to be judged 
 
              in the light of his own education and intelligence.  He must 
 
              know enough about the injury or disease to realize it is 
 
              both serious and work-connected, but positive medical 
 
              information is unnecessary if he has information from any 
 
              source which puts him on notice of its probable 
 
              compensability.
 
         
 
              Applying these discovery principles to the case at hand, 
 
         then claimant testified that his first knowledge of a hearing 
 
         decrease was February or March of 1984 after the employer 
 
                                                       
 
                                                                
 
         administered the hearing test, but his first knowledge that it 
 
         was compensable was not until Dr. Jorgensen administered his 
 
         audiometric test and told him the result.  Claimant testified 
 
         that he was not told the actual results of the employer 
 
         administered test; he was not told the degree of loss; he was not 
 
         given a copy of the audiometric test result; and he was never 
 
         told that he was working in an excessive noise environment as 
 
         defined in Iowa Code section 85B.5. Claimant testified that he 
 
         was only told of a decrease in his hearing, given a 
 
         recommendation to see his own doctor; and told to wear hearing 
 
         protection (Ex. 4).  This limited information would not 
 
         constitute discovery of a serious and compensable hearing loss.  
 
         It did convey that he suffered a decrease in his hearing but it 
 
         did not convey that is was serious or compensable.
 
         
 
              The information which claimant received fell short of the 
 
         requirement of Iowa Code section 85B.5 which prescribes:  "An 
 
         employer shall immediately inform an employee if the employer 
 
         learns that the employee is being subjected to sound levels and 
 
         duration in excess of those indicated in the above table."  The 
 
         parties agreed that the noise level survey was done in late 1982 
 
         or early 1983 but claimant was never told that he worked in 
 
         excessive noise levels.
 
         
 
              The information that was provided claimant in exhibit four 
 
         falls far short of meeting the requirements of Iowa Code section 
 
         85B.10 which states:
 
         
 
              The employer shall communicate to the employee, in
 
              writing, the results of an audiometric examination or 
 
              physical examination of an employee which reflects an 
 
              average hearing loss of the employee in one or both ears in 
 
              excess of twenty-five decibels ANSI or ISO for the test 
 
              frequencies of five hundred, one thousand, two thousand, and 
 
              three thousand Hertz, as soon as practicable after the 
 
              examination.  The communication shall include the name and 
 
              address of the person conducting the audiometric examination 
 
              or physical examination, the kind or type of test or 
 
              examinations given, the results of each, the average decibel 
 
              loss in the four frequencies, in each ear, if any, and, if 
 
              known to the employer, whether the loss is sensorineural 
 
              hearing loss and, if the hearing loss resulted from another 
 
              cause, the name of the cause.
 
         
 
              Although there was no interpretation of the audiogram 
 
         results of the employer administered hearing test on February 28, 
 
         1984 by a medical doctor or an audiologist, it appears that the 
 
         loss in the left ear definitely exceeded 25 decibels and that the 
 
         loss in the right ear might have exceeded 25 decibels.
 
         
 
              Claimant's testimony that he first learned that the hearing 
 
         loss was compensable after Dr. Jorgensen's test on March 18, 1986 
 
         is not accepted as the discovery date.  Claimant filed an 
 
         original notice and petition on October 25, 1985.  The filing of 
 
         a petition is certainly evidence that claimant believed he had a 
 
                                                       
 
                                                                
 
         compensable case.  This is the best evidence in this case of when 
 
         claimant learned that he had both a serious and compensable 
 
         hearing loss. Therefore, the date of occurrence based on the 
 
         discovery rule, the date that claimant determined the nature, 
 
         seriousness and compensable character of his hearing loss, is 
 
         determined to be October 25, 1985.  Since the discovery date and 
 
         the date of the commencement of this action are simultaneous, 
 
         then the action is timely filed.
 
         
 
              Even if the discovery date were determined to be February or 
 
         March 1984 after employer administered the hearing test (Ex. 5) 
 
         and employer obtained claimant's signature on the written notice 
 
         (Ex. 4), then the original notice and petition in this case filed 
 
         on October 25, 1985 is still timely.
 
         
 
              Even if the injury date is determined to be the date of 
 
         retirement or termination of employment of April 27, 1985, as 
 
         defined in Iowa Code section 85B.8, the original notice and 
 
         petition was still timely filed on October 25, 1985.
 
         
 
              The statute of limitations is an affirmative defense. 
 
         Defendant failed to sustain the burden of proof by a 
 
         preponderance of the evidence that claimant did not commence this 
 
         action in a timely manner as required by Iowa Code section 
 
         85.26(1) within two years of any of the possible dates which 
 
         could be used to trigger the running of the statute.
 
         
 
              Occupational hearing loss is measured by a statutory formula 
 
         set out in Iowa Code section 85B.9.  The work sheets in the 
 
         briefs of both attorneys are a correct application of the 
 
         statutory formula.  However, defendant's calculation even though 
 
         it results in a higher loss of hearing, cannot be used due to a 
 
         mathematical error.  Claimant's application of the formula to Dr. 
 
         Jorgensen's hearing loss findings is mathematically correct.  It 
 
         results in a hearing loss of 4.063 percent.
 
         
 
              Claimant's entitlement to compensation is calculated by 
 
         applying the percentage of loss of 4.063 percent to the maximum 
 
         allowance of 175 weeks as provided in Iowa Code section 85B.10. 
 
         This results in an allowance of 7.11 weeks of occupational 
 
         hearing loss compensation (175 x .04063).
 
         
 
              There is no substantial evidence which supports defendant's 
 
         contention that claimant's hearing loss came about through a 
 
         naturally occurring disease process.
 
         
 
                              FINDINGS OF FACT
 
         
 
              WHEREFORE, based upon the evidence presented the following 
 
         findings of fact are made.
 
         
 
              That claimant was employed by employer for 29 years from 
 
         December 3, 1956 to April 27, 1985.
 
         
 
              That claimant was exposed to excessive noise levels in 
 
                                                       
 
                                                                
 
         excess of 90 decibels and sometimes as high as 105 decibels eight 
 
         hours per day five days a week for 29 years.
 
         
 
              That Dr. Jorgensen found that claimant sustained a permanent 
 
         sensorineural hearing loss in excess of 25 decibels in both 
 
         ears.
 
         
 
              That the configuration of the test results demonstrated a 
 
         noise induced hearing loss.
 
         
 
              That there was no substantial evidence that claimant's 
 
         hearing loss was due to any other cause other than his 29 years 
 
         of employment for employer at excessive noise levels.
 
         
 
              That employer had actual knowledge of claimant's hearing 
 
         loss in February of 1984 through the employer administered 
 
         audiogram.
 
         
 
              That claimant was never informed that he had suffered a work 
 
         related, serious or compensable hearing loss in February or March 
 
         of 1984.
 
         
 
              That the best evidence and the only evidence of when 
 
         claimant learned that his loss was both serious and compensable 
 
         was when he filed the original notice and petition on October 25, 
 
         1985.
 
         
 
              That claimant terminated his employment and retired on April 
 
         27, 1985.
 
         
 
              That this action was commenced on October 25, 1985.
 
         
 
              That claimant sustained a permanent binaural sensorineural 
 
 
 
                              
 
                                                                
 
         hearing loss of 4.063 percent.
 
         
 
              That defendants did not demonstrate that claimant's loss of 
 
         hearing was due to any other cause.
 
         
 
                             CONCLUSIONS OF LAW
 
         
 
              WHEREFORE, based upon the evidence presented and the 
 
         principles of law previously discussed, the following conclusions 
 
         of law are made.
 
         
 
              That claimant sustained an occupational hearing loss as 
 
         defined in Iowa Code section 85B.4 which arose out of and in the 
 
         course of employment with employer.
 
         
 
              That the loss was caused by claimant's employment with 
 
         employer.
 
         
 
              That the amount of the loss is 4.063 percent following the 
 
         formula provided in Iowa Code section 85B.9.
 
         
 
              That claimant is entitled to 7.11 weeks of occupational 
 
         hearing loss compensation pursuant to Iowa Code section 85B.10.
 
         
 
              That defendant had actual knowledge of the loss as required 
 
         by Iowa Code section 85B.14 and 85.23.
 
         
 
              That defendant failed to prove that this action was not 
 
         timely filed.
 
         
 
              That the date of occurrence is October 25, 1985 as 
 
         determined by Iowa Code section 85B.8 and the application of the 
 
         discovery rule to the facts of this case and therefore claimant's 
 
         action was timely filed when it was filed on October 25, 1985.
 
         
 
                                   ORDER
 
         
 
              THEREFORE, IT IS ORDERED:
 
         
 
              That defendant pay to claimant seven point one one (7.11) 
 
         weeks (175 x .04063) of occupational hearing loss compensation at 
 
         the rate of two hundred thirty and 56/100 dollars ($230.56) per 
 
         week in the total amount of one thousand six hundred thirty-nine 
 
         and 28/100 dollars ($1,639.28) (7.11 x 230.56) commencing on 
 
         April 27, 1985 as stipulated to by the parties as a commencement 
 
         date for benefits even though it was found that the date of 
 
         occurrence was October 25, 1985 for purposes of the discovery 
 
         rule.
 
         
 
              That these benefits be paid in a lump sum.
 
         
 
              That interest will accrue pursuant to Iowa Code section 
 
         85.30.
 
         
 
              That the costs of this action are charged to defendant 
 
                                                       
 
                                                                
 
         pursuant to Division of Industrial Services Rule 343-4.33.
 
         
 
              That defendant file claim activity reports as requested by 
 
         this agency pursuant to Industrial Services Rule 343-3.2.
 
         
 
              Signed and filed this 19th day of January, 1988.
 
         
 
         
 
         
 
         
 
         
 
         
 
                                            WALTER R. McMANUS, JR,
 
                                            DEPUTY INDUSTRIAL COMMISSIONER
 
         
 
         Copies To:
 
         
 
         Mr. Duane Hoffmeyer
 
         Attorney at Law
 
         1721 Jackson St.
 
         PO Box 2051
 
         Sioux City, Iowa  51104
 
         
 
         Mr. Dick Montgomery
 
         Attorney at Law
 
         Professional Building
 
         Spencer, Iowa  51301
 
 
 
         
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                            1106; 1108.50; 1402.20; 
 
                                            1402.30; 1402.40; 2208;
 
                                            2209; 1803; 1402.50; 1403.30 
 
                                            2401; 2802; 2803; 2402
 
                                            Filed January 19, 1988
 
                                            WALTER R. McMANUS, JR.
 
         
 
                  BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         CLARENCE BLAND,
 
         
 
              Claimant,                              File No. 805241
 
         
 
         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; 1108.50; 1402.20; 1402.30; 1402.40; 2208; 2209
 
         
 
              Twenty-nine years of employment on the kill floor at 
 
         excessive noise levels, much of it before hearing protection was 
 
         provided, was the cause of occupational hearing loss which arose 
 
         out of and in the course of employment with employer.
 
         
 
         1803
 
         
 
              Claimant awarded 7.11 weeks of occupational hearing loss 
 
         compensation.
 
         
 
         1402.50; 1403.30; 2401; 2802; 2803
 
         
 
              Employer had actual notice of the hearing loss before the 
 
         employee from an employer administered hearing test.
 
         
 
         1403.30; 2402
 
         
 
              Employer failed to prove that the action was not timely 
 
         filed applying either the discovery rule or all of the possible 
 
         injury dates in ICS 85B.8.
 
 
 
         
 
 
            
 
 
 
 
 
                         
 
 
 
                    
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         NORMAN BISGARD,                            File No. 805242
 
         
 
              Claimant,                          A R B I T R A T I O N
 
         
 
         vs.                                        D E C I S I O N
 
         
 
         JOHN MORRELL & CO.,                           F I L E D
 
         
 
              Employer,                               JAN 21 1988
 
              Self-Insured,
 
              Defendant.                     IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
                                   INTRODUCTION
 
         
 
              This is a proceeding in arbitration brought by Norman 
 
         Bisgard, claimant, against John Morrell & Co., employer, and 
 
         self-insured defendant for benefits as a result of an alleged 
 
         occupational hearing loss which occurred while claimant was 
 
         employed by employer.  A hearing was held on April 14, 1987 at 
 
         Storm Lake, Iowa and the case was fully submitted at the close of 
 
         the hearing.  The record consists of joint exhibits one through 
 
         four and the testimony of Norman Bisgard (claimant).  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 the alleged injury.
 
         
 
              That the commencement date for occupational hearing loss 
 
         compensation, in the event such benefits are awarded, is April 
 
         27, 1985.
 
         
 
              That the weekly rate of compensation, in the event of an 
 
         award, is $226.05 per week.
 
         
 
                                     ISSUES
 
         
 
              The parties submitted the following issues for determination 
 
         at the time of the hearing.
 
         
 
              Whether claimant sustained an occupational hearing loss on 
 
         April 27, 1985 which arose out of and in the course of his 
 
         employment with employer.
 
         
 
              Whether the alleged hearing loss was the cause of any 
 
         permanent disability.
 
         
 
                                                
 
                                                         
 
              Whether claimant is entitled to weekly compensation benefits 
 
         for occupational hearing loss.
 
         
 
              Whether the claim is barred because claimant failed to give 
 
         timely notice as required by Iowa Code section 85.23.
 
         
 
              Whether the claim is barred because claimant failed to 
 
         commence the action within the time specified by Iowa Code 
 
         section 85.26(1).
 
         
 
              Whether the alleged occupational hearing loss is actually 
 
         due to a natural occurring disease process as asserted by 
 
         defendants is an issue that is already included within whether 
 
         claimant sustained an occupational hearing loss which arose out 
 
         of and in the course of his employment with employer.
 
         
 
                            SUMMARY OF THE EVIDENCE
 
         
 
              All of the evidence was examined and considered.  The 
 
         following is a summary of the pertinent evidence.
 
         
 
              Claimant was 54 years old at the time of the hearing and is 
 
         a high school graduate.  Claimant started to work for employer on 
 
         December 3, 1956 at the age of 23.  He worked for employer 
 
         continuously for approximately 29 years until the plant closed on 
 
         April 27, 1985.  Claimant was 51 years old at that time.  
 
         Employer was claimant's only employer during this entire period 
 
         of time. All of claimant's jobs, except unloading the elevator 
 
         for approximately six months to one year around 1978 or 1979, 
 
         were on the kill floor.  A pork plant noise level survey was 
 
         conducted in late 1982 or early 1983 (Exhibit 1).  It showed the 
 
         following noise levels for the kill floor.
 
         
 
              Kill Floor
 
         
 
              Stunner, shackle & dehairer    98  to   99
 
              Gam table                      91  to   92
 
              Heading area                   91  to   92
 
              Openers                        90  to   91
 
              Gutters                        91  to   92
 
              Head table whizard knife area  97  to   98
 
              Opener saw                     94  to   97
 
              Back saw                       95  to  101
 
              Head table - chisel heads      90  to   91
 
          
 
         (Ex. 1)
 
         
 
              Claimant testified that he performed the following 
 
         jobs.eight hours a day, five days a week in the areas and at the 
 
         noise levels indicated below.
 
         
 
         JOB              AREA          PERIOD       LENGTH     NOISE 
 
         LEVEL
 
         
 
         Removed tongues  Head table-
 
                                                
 
                                                         
 
         and ears         chisel heads  1956-1961    4 years       90-91
 
         
 
         Stunning hogs    Stunner
 
                          shackle &
 
                          dehairer      1961-1977    16 1/2 years  98-99
 
         
 
         Grading hams     Cut floor
 
                          general area  1977 - 1985   8 years      85-86
 
         
 
              Claimant also testified that the latter job of grading hams 
 
         was also near the back saw which has a noise level of 95 to 101 
 
         decibels.
 
         
 
              Claimant testified that the noisiest job was stunning hogs 
 
         for 16 1/2 years from 1961 to 1977 due to the constant high 
 
         pitched squealing of the hogs who were being slapped and prodded 
 
         along with electric prods.  Claimant stated that this area was 
 
         always avoided by visitors from Chicago.  The least noisy job was 
 
         removing ears and tongues for four years from 1956 to 1961 at the 
 
         head table.
 
         
 
              Claimant added that he was away from the kill floor for 
 
         approximately six months to one year unloading the elevator in 
 
         approximately 1978 or 1979.  He stated that this was not a noisy 
 
         job and he did not wear hearing protection while doing that job.
 
         
 
              Claimant related that he grew up on a family farm.  
 
         Sometimes he would operate one of the tractors all day Saturday 
 
         or two hours in the evening after school.  He also worked at home 
 
         in the summers.  He left home after graduation from high school.  
 
         He did not work away from home during high school.
 
         
 
              Claimant said he was in the Marines approximately 18 months. 
 
         He fired an M-1 rifle, a carbine and a .45 pistol, but he wore 
 
         the headset type of hearing protection over his ears at those 
 
         times.
 
         
 
              Claimant testified that he started to work for employer on 
 
         December 3, 1956.  He passed a preemployment physical 
 
         examination. He had no hearing problems at that time.  The first 
 
         hearing test that claimant took was in late 1984 approximately 
 
         six months before the plant closed.  Exhibit four is an audiogram 
 
         test result dated October 29, 1984.  It was performed by T.M. who 
 
         claimant identified as Trish Merrill, L.P.N, the plant nurse. 
 
         Claimant stated that he signed a paper the same day as the 
 
         hearing test. Exhibit three is dated October 29, 1984 the same 
 
         day as the hearing test and it reads as follows.
 
         
 
                   Your recent hearing test has indicated that your 
 
              hearing has decreased as was explained to you at the time of 
 
              your test.  This change in hearing requires one or more of 
 
              the following.  Those that are checked apply to you.
 
         
 
              __XX__ Mandatory ear protection is required at all time when 
 
                     working in the production area.
 
                                                
 
                                                         
 
         
 
              __XX__ Referral to your physician for evaluation is 
 
                     recommended to further delineate the nature of your 
 
                     change in hearing.
 
         
 
              __XX__ Strongly recommend use of ear protection for all 
 
                     non-work related noisy activities:  e.g. shooting, 
 
                     chain saw, motor cycling, etc.
 
         
 
         (Ex. 3)
 
         
 
              The audiogram performed October 29, 1984 by employer 
 
         produced the following results.
 
         
 
              DECIBELS          LEFT EAR          RIGHT EAR
 
               
 
              500                  10                 5
 
              1,000                25                10
 
              2,000                50                40
 
              3,000                55                50    
 
         
 
                                  140               105
 
                                  (TM) 4               (TM) 4      
 
         
 
                                   35 decibels       26.25 decibels
 
 
 
                            
 
                                                         
 
         
 
              Claimant testified that he did not get a copy of the test 
 
         results.  Claimant stated that the nurse told him that he had 
 
         some loss and that it was permanent.  She did not tell him how 
 
         much it was or what caused it.  She did not say it was noise 
 
         induced. Claimant stated that he was never notified by employer 
 
         that he worked in excessive noise level employment.  Claimant 
 
         said that the nurse told him that he lost some hairs in his ears 
 
         permanently and that they would not come back.
 
         
 
              Claimant asserted that he first noticed a loss of hearing in 
 
         the late 1960's or early 1970's.  His wife suspected it first. 
 
         Claimant first noticed it when he had trouble picking up some of 
 
         the words on television.  Claimant testified that he began to 
 
         wear hearing protection at work in the mid 1970's when it was 
 
         offered by employer.  Employer did not require hearing protection 
 
         to be worn at that time.  It was optional.  Claimant estimated he 
 
         wore hearing protection for approximately eight to ten years 
 
         before the plant closed.
 
         
 
              Claimant stated that he first learned of the amount of 
 
         decibel loss, that it was noise induced and was probably work 
 
         related, when he saw Daniel Jorgensen, M.D., an otolaryngologist, 
 
         on March 18, 1986.  Claimant testified that he did not know of 
 
         anything else in his life experience that would have caused a 
 
         hearing loss other than his work for employer.  Claimant added 
 
         that Dr. Jorgensen told him that he would benefit by a hearing aid 
 
         for both ears.  Claimant asserted that his hearing loss was caused 
 
         by his employment with employer.  He said that his father, mother, 
 
         sister, brother and three sons have no hearing loss.  Claimant 
 
         testified that when the plant closed on April 27, 1985 he was 
 
         given the option of transferring to Sioux Falls, South Dakota or 
 
         taking retirement. Claimant testified that he chose to retire.  He 
 
         stated that he receives $612.00 per month as a retirement benefit 
 
         plus medical insurance which includes his teeth and his eyes.  
 
         Claimant said that he currently works at the Hy-Vee store where he 
 
         keeps the dairy and juice counter stocked.  He said this is not a 
 
         noisy job. Claimant admitted he has owned a drill, a skill saw, a 
 
         vibrating sander and a Honda 50 moped for sometime.  Claimant 
 
         acknowledged that the first notice of a hearing loss that he gave 
 
         to employer was when he filed his original notice and petition.  
 
         The original notice and petition were received in the industrial 
 
         commissioner's office on October 25, 1985.
 
         
 
              Dr. Jorgensen testified by deposition on January 28, 1987 
 
         that he is an otolaryngologist.  About 50 percent of his practice 
 
         is devoted to the ear.  He examined claimant on March 18, 1986. 
 
         Claimant gave a ten year history of hearing problems.  Claimant 
 
         first noticed problems hearing conversation, especially in 
 
         crowds, and especially women's and children's voices.  Claimant 
 
         denied any pain, drainage, or vertigo.  Claimant gave a 29 year 
 
         history of working for employer on the kill floor.  He began to 
 
         wear hearing protection when it was first offered by employer.  
 
         Claimant had no prior history of head injury, ear surgery, 
 
         serious infection, childhood ear diseases or family history of 
 
                                                
 
                                                         
 
         ear disease.  Claimant admitted growing up on a farm but the 
 
         noise level was not significant (Ex. 2, page 13).  Claimant was 
 
         also in military service but all of his duty was stateside and 
 
         claimant did not have much to do with weapons (Ex. 2, p. 1-6 and 
 
         14 & 15).
 
         
 
              Dr. Jorgensen interpreted the audiogram taken in his office 
 
         on March 18, 1986 by his audiologist, Jean Rudkin.  The doctor 
 
         described it as a symmetric loss demonstrating probably a noise 
 
         induced component (Ex. 2, p. 6; Ex. 2, deposition ex. 2).  
 
         Exhibit two, deposition exhibit one entitled "Norman Bisgard 
 
         Hearing Loss" converts the graph to actual numbers as follows:
 
         
 
         NORMAN BISGARD HEARING LOSS
 
         
 
         Frequency in Hz   Right Ear Hearing Level   Left Ear Hearing 
 
         Level
 
         
 
              500                   15                        15
 
            1,000                   20                        15
 
            2,000                   45                        45
 
            3,000                   55                        55
 
          
 
         (Ex. 2, Deposition Ex. 1)
 
         
 
              Dr. Jorgensen testified that repeated insults cause 
 
         cumulative damage to the ear over time (Ex. 2, page 7).
 
         
 
              This dialogue on causal connection transpired between Dr. 
 
         Jorgensen and defendant's counsel.
 
         
 
              Q.  Doctor, did you come to a determination in regard to 
 
                  what is the result of the hearing loss which was 
 
                  exhibited by Norman Bisgard?
 
         
 
              A.  I feel because it's symmetric and fairly normal through 
 
                  the low frequencies and then drops off fairly rapidly in 
 
                  the high frequencies that it's a noise-induced loss.
 
         
 
              Q.  Is there any specific noise that you can attribute that 
 
                  loss to?
 
         
 
              A.  As I said it's all the additive and so there can be 
 
                  noises earlier in his life than when he started work at 
 
                  John Morrell.  But I can say that with his work history 
 
                  being as long as it was in a noisy environment that John 
 
                  Morrell certainly contributed to his hearing loss.
 
         
 
         (Ex. 2, p. 7)
 
         
 
              Dr. Jorgensen also said that military weaponry and farm 
 
         machinery can also cause hearing loss (Ex. 2, p. 9).  The doctor 
 
         said that five decibels is not considered a significant margin of 
 
         error on the reliability of an audiogram.  A ten decibel 
 
         difference would call for a repeat test (Ex. 2, pp. 10 and 11).
 
                                                
 
                                                         
 
         
 
              The following dialogue on causal connection transpired 
 
         between Dr. Jorgensen and claimant's counsel.
 
         
 
              Q.  Now, assuming that he worked continuously for the same 
 
                  employer other than lay offs [sic], are you able to say 
 
                  with any degree of medical probability what percentage 
 
                  of his noise-induced hearing loss is attributable to 
 
                  that employment?
 
         
 
              A.  The only way you could be real accurate is to have an 
 
                  audiogram prior to the onset of his employment.  But you 
 
                  have to say that if he's prone to noise-induced loss 
 
                  that that has contributed a great deal, the employment 
 
                  at John Morrell has contributed a great deal simply 
 
                  because that's more noise over longer period of time 
 
                  than anything else that he's encountered.
 
         
 
         (Ex. 2, pp. 15 & 16)
 
         
 
              Dr. Jorgensen agreed that stunning hogs has a significant 
 
         noise level and that doing it for a long period of time is a big 
 
         factor.  The doctor said even if he entered employer's employment 
 
         with a hearing loss he believed John Morrell employment further 
 
         contributed the problem and probably is the largest contributer 
 
         to the problem (Ex. 2, pp. 17 & 18).  Dr. Jorgensen said wearing 
 
         a protective device could dampen as much as 40 to 50 decibels of 
 
         noise (Ex. 2, p. 19).  Dr. Jorgensen testified that claimant 
 
         would benefit from binaural hearing aids (Ex. 2, p. 18).
 
         
 
                          APPLICABLE LAW AND ANALYSIS
 
         
 
              Chapter 85B, Code of Iowa, provides benefits for 
 
         occupational hearing loss.  Section 85B.4(1) defines occupational 
 
         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) defines excessive noise 
 
         level to mean sound capable of producing occupational hearing 
 
         loss.  Iowa Code section 85B.5 further defines excessive noise 
 
         level as sound which exceeds the times and intensities published 
 
         in that section of the code.
 
         
 
              Claimant's testimony and Exhibit one, the pork plant level 
 
         noise survey, established that claimant was exposed to excessive 
 
         noise level on the kill floor.  This excessive exposure was not 
 
         for just a few hours a day, as indicated in the table in Iowa Code 
 
         section 85B.5, but rather, claimant was exposed to these excessive 
 
         noise levels eight hours a day, five days a week for most of his 
 
         entire adult working lifetime.  This excessive exposure occurred 
 
         from December 3, 1956, when claimant started with employer, until 
 
         April 27, 1985 when claimant elected to retire rather than 
 
         transfer to Sioux Falls, South Dakota.  This is a period of 
 
         approximately 28 1/2 years of excessive noise level employment 
 
         every working day all day long, except for the six months to one 
 
                                                
 
                                                         
 
         year when claimant unloaded the elevator around 1978 or 1979.  
 
         Even if claimant did wear hearing protection after it was offered 
 
         by employer in approximately 1977, claimant still had 21 years of 
 
         exposure to highly excessive noise levels every single work day 
 
         for 21 years. Claimant testified that he had no hearing problems 
 
         when he began his employment in 1956 at age 23.  Claimant did have 
 
         a compensable hearing loss when employer took the audiogram on 
 
         October 29, 1984, however, employer did not disclose this 
 
         information to claimant at that time.
 
         
 
              Dr. Jorgensen clearly testified that claimant's long history 
 
         in the noisy employment environment, especially stunning hogs, 
 
         was probably the largest contributing factor to claimant's 
 
         hearing loss (Ex. 2, pp. 17 & 18).
 
         
 
              Defendant brought out that claimant fired weapons in the 
 
         Marines on the rifle range and drove a tractor on the family farm 
 
         during high school, that he owned some power tools and a Honda 50 
 
         moped.  However, defendant's evidence did not establish that 
 
         these exposures were sufficiently loud or long enough in duration 
 
         to cause any hearing loss.  Also, Dr. Jorgensen did not feel 
 
         claimant's farming or military service were significant factors 
 
         from the history he took from claimant.  These exposures are 
 
         miniscule when compared to 28 1/2 years of day in and day out 
 
         exposure to excessive noise levels at work on the kill floor. 
 
         Approximately seventy-five percent of claimant's exposure to 
 
         excessive noise levels was prior to when employer supplied 
 
         protection to employees.
 
         
 
              Claimant testified that while grading hams in 1977 and 
 
         thereafter he wore hearing protection.  Defendant brought out 
 
         that hearing protection dampens sound approximately 40 to 50 
 
         decibels. Even so, 21 years of exposure, prior to hearing 
 
 
 
                          
 
                                                         
 
         protection, at highly excessive noise levels, all of the time is 
 
         more than enough to cause claimant's hearing loss.  It is 
 
         surprising that claimant's loss of hearing is not worse than it 
 
         is.  Indeed, the hearing protection which claimant wore may have 
 
         greatly reduced his ultimate loss.
 
         
 
              Claimant testified that grading hams was near the back saws 
 
         where the noise level was recorded to be 95-101 decibels, but he 
 
         also testified that it was near the general area with readings of 
 
         85 to 86 decibels.  Readings of 85 to 86 decibels are below the 
 
         noise levels shown in Iowa Code section 85B.5, however, noise 
 
         levels less than those designated in the statute can be 
 
         determined to establish the occurrence of occupational hearing 
 
         loss, especially when exposure occurs over a long period of time 
 
         without any hearing protection.  Duration and intensity of 
 
         exposure will be helpful to prove the necessary level between 
 
         noise at work and the hearing loss.  Muscatine County v. 
 
         Morrison, 409 N.W.2d 685 (Iowa 1987).
 
         
 
              The six months to one year that claimant unloaded the 
 
         elevator around 1978 or 1979 would appear to have no significant 
 
         impact in light of the other evidence summarized above.
 
         
 
              Therefore, claimant has sustained the burden of proof by a 
 
         preponderance of the evidence that he sustained a permanent, 
 
         binaural, occupational hearing loss that arose out of and in the 
 
         course of his employment with employer as defined in Iowa Code 
 
         section 85B.4(1).  The employment was the primary cause of the 
 
         hearing loss.  Bodish v. Fischer, Inc., 257 Iowa 516, 133 N.W.2d 
 
         867 (1965).  The employment need only be one cause; it does not 
 
         have to be the only cause.  Blacksmith v. All-American, Inc., 290 
 
         N.W.2d 348, 354 (Iowa 1980).
 
         
 
              Once claimant has proven an occupational hearing loss that 
 
         arose out of and in the course of employment, the burden shifted 
 
         to employer to prove any affirmative defenses.  Reddick v. Grand 
 
         Union Tea Co. 230 Iowa 108, 296 N.W. 800 (1941).
 
         
 
              As to the defense of notice, Iowa Code section 85B.14 
 
         provides that the provisions of the workers' compensation law, 
 
         Chapter 85, also apply to occupational hearing loss in so far as 
 
         applicable and not when 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 it's 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 a notice requirement is to give 
 
         the employer the opportunity to investigate the injury of hearing 
 
         loss.  Robinson v. Department of Transp., 296 N.W.2d 809, 811 
 
         (Iowa 1980); Hobbs v. Sioux City, 231 Iowa 860, 862, 2 N.W.2d 
 
         275, 276 (1942).
 
         
 
              In this case, it would appear that defendant was actually 
 
         aware of the noise danger in its plant.  A noise level survey was 
 
                                                
 
                                                         
 
         performed in late 1982 or early 1983 (Ex. 1).  Employees were 
 
         tested for hearing loss (Ex. 4).  Employees were asked to sign a 
 
         statement (Ex. 3).  As a result of the audiogram taken on October 
 
         29, 1984, defendant had actual knowledge that claimant sustained 
 
         a compensable hearing loss in excess of 25 decibels in each ear 
 
         (Ex. 4).  Defendant had actual knowledge even before claimant was 
 
         given the audiogram results (Ex. 4).  Defendant knew the results 
 
         of the test before they requested claimant to sign the statement 
 
         (Ex. 3). From an examination of the squiggles which represent the 
 
         audiogram test result and an examination of the statement that 
 
         claimant was requested to sign, it would not be clear to the 
 
         ordinary, reasonable and prudent packing house employee that he 
 
         had sustained a serious, work related, compensable hearing loss. 
 
         Claimant knew he had a hearing problem for possibly ten years 
 
         before he retired and wore hearing protection from when it was 
 
         first provided; however, there is no evidence that claimant knew 
 
         that his hearing loss was serious, work related or compensable. 
 
         Indeed, his failure to see his own personal physician after it 
 
         was recommended is some evidence that claimant did not consider 
 
         the results of the audiogram to be serious, work related or 
 
         compensable.
 
         
 
              Claimant might have been put on notice if defendant had 
 
         complied with the requirements of Iowa Code section 85B.5 which 
 
         specify;  "An employer shall immediately inform an employee if 
 
         the employer learns that the employee is being subjected to sound 
 
         levels and duration in excess of those indicated in the above 
 
         table."
 
         
 
              Claimant testified that he was never told by Trish Merrill, 
 
         the plant nurse,or anyone else that he worked in excessive noise 
 
         levels.  Claimant's testimony was not controverted.
 
         
 
              Iowa Code section 85B.10 requires that an employee be 
 
         informed of audiometric examination results as follows:
 
         
 
              The employer shall communicate to the employee,
 
              in writing, the results of an audiometric examination or 
 
              physical examination of an employee which reflects an 
 
              average hearing loss of the employee in one or both ears in 
 
              excess of twenty-five decibels ANSI or ISO for the test 
 
              frequencies of five hundred, one thousand, two thousand, and 
 
              three thousand Hertz, as soon as practicable after the 
 
              examination.  The communication shall include the name and 
 
              address of the person conducting the audiometric examination 
 
              or physical examination, the kind or type of test or 
 
              examinations given, the results of each, the average decibel 
 
              loss, in the four frequencies, in each ear, if any, if known 
 
              to the employer, whether the loss is sensorineural hearing 
 
              loss and, if the hearing loss resulted from another cause, 
 
              the name of the cause.
 
         
 
              Claimant testified that all he received was the audiometric 
 
         test results in graph form without any explanation of it.  
 
         Claimant testified that he first learned that he had a hearing 
 
                                                
 
                                                         
 
         loss in excess of 25 decibels, and that it might be work related, 
 
         when he talked to Dr. Jorgensen on March 18, 1986.  This testimony 
 
         was not controverted.
 
         
 
              Therefore, it is determined that employer had actual 
 
         knowledge of claimant's occupational hearing loss pursuant to 
 
         Iowa Code section 85.23.  Therefore, claimant is relieved from 
 
         giving notice to employer.  This is true even though defendant 
 
         had actual knowledge of an occupational hearing loss prior to the 
 
         injury date, which in this case is prescribed by statute in Iowa 
 
         Code section 85B.8.  Dillinger v. City of Sioux City, 368 N.W.2d 
 
         176, 179 (Iowa 1985).
 
         
 
              Failure to give notice is an affirmative defense.  Mefferd 
 
         v. Ed Miller and Sons, Inc., 33 Biennial Reports of the 
 
         Industrial Commissioner, 191 (Appeal Decision 1977).  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.
 
         
 
              As to the defense of the statute of limitations, again, Iowa 
 
         Code section 85B.14 provides that the provisions of the workers' 
 
         compensation law in chapter 85 apply to occupational hearing loss 
 
         cases in so far as applicable and when not inconsistent with 
 
         chapter 85B.  Therefore, the statute of limitations of Iowa Code 
 
         section 85.26(1) is applicable to this hearing loss claim because 
 
         there is no separate statute of limitations in Iowa Code section 
 
         85B.  Chapter 85.26(1) then is applicable and is not 
 
         inconsistent. Iowa Code section 85.26(1) requires an original 
 
         proceeding to be commenced within two years of the date of 
 
         injury.  Iowa Code section 85B.8 provides special statutory dates 
 
         of injury for occupational hearing loss cases.
 
         
 
                   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.
 
         
 
              One possible injury date might be claimant's reassignment 
 
         from excessive noise level on the kill floor in 1978 or 1979 to 
 
         the place where he unloaded the elevator for possibly one year. 
 
         However, since no specific date of the reassignment is in 
 
         evidence, and the duration of the reassignment is not in 
 
         evidence, then there is not sufficient evidence to say that this 
 
                                                
 
                                                         
 
         temporary reassignment constituted an injury date.  Also, it 
 
         precedes January 1, 1981.
 
         
 
              Furthermore, while Iowa Code section 85B.8 lists four 
 
         occurrences it does not specify whether the statute of limitations 
 
         begins to run following the first or the last of these events.  
 
         Nor does it specify that failure to file using a date of injury 
 
         following a transfer from excessive noise level employment 
 
         prohibits a subsequent filing after retirement or termination of 
 
         employment.  The Supreme Court did hold recently in a hearing loss 
 
         case that when two or more interpretations of a limitations 
 
         statute are possible, then the one giving the longest period to a 
 
         litigant is to be preferred.  John Deere Dubuque Works v. Meyers, 
 
         410 N.W.2d 255, 257 (Iowa 1987); See also Henderson v. John 
 
         Morrell, File No. 825137, filed November 20, 1987.
 
         
 
              The injury date in this case is April 27, 1985.  That is the 
 
         date that claimant both terminated his employment with employer 
 
         and retired from this employment.  Two years from April 27, 1985 
 
         is April 26, 1987.  This action was filed with the industrial 
 
         commissioner on October 25, 1985.  Hence, the action was timely 
 
         filed within two years of the date of injury.  The fact that the 
 
         action was filed approximately two days less than six months 
 
         after the date of injury, although this is not in accordance with 
 
         the recommendation of the first sentence in Iowa Code section 
 
         85B.8, nevertheless, results in no prejudice to defendant.
 
         
 
              Failure to file an action in a timely manner within the 
 
         limitations statute is an affirmative defense.  Defendant did not 
 
         sustain the burden of proof by a preponderance of the evidence 
 
         that claimant failed to commence the action in a timely manner as 
 
         required by Iowa Code section 85.26(1).
 
         
 
                          
 
                                                         
 
              Even if it were to be held that claimant discovered the 
 
         nature, seriousness and compensable character of this injury on 
 
         October 29, 1984, when Nurse Merrill gave claimant the 
 
         unexplained graph and obtained his signed statement, this action 
 
         would still be timely filed on October 25, 1985.  The application 
 
         of the two year rule would give claimant until October 28, 1986 
 
         to file a petition.  This petition was filed on October 25, 1985 
 
         well within the statute of limitations.  Orr v. Lewis Cent. Sch. 
 
         Dist., 298 N.W.2d 256, 261 (Iowa 1980); Robinson, 296 N.W.2d 809, 
 
         812; Jacques v. Farmers Lbr. & Sup. Co., 242 Iowa 548, 47 N.W.2d 
 
         236 (1951).  The discovery rule now specifically applies to 
 
         hearing loss cases.  John Deere Dubuque Works, 410 N.W.2d 255, 
 
         257.
 
         
 
              Handing the results of an audiometric test in graph form to 
 
         a packing house worker might possibly fall short of the 
 
         requirements of the discovery rule.  The best evidence in this 
 
         case as to when claimant determined that his hearing loss was 
 
         serious, work related and compensable was when claimant filed the 
 
         original notice and petition on October 25, 1985.  In that case, 
 
         both the occurrence of the injury and the commencement of the 
 
         action occurred on the same day.
 
         
 
              Occupational hearing loss is measured by a statutory formula 
 
         set out in Iowa Code section 85B.9.  This formula cannot be 
 
         applied to the audiogram done by Merrill, the plant nurse, 
 
         because she is a licensed practical nurse (L.P.N.).  Iowa Code 
 
         section 85B.9 requires an interpretation by employer's regular or 
 
         consulting physician or a licensed audiologist.  Merrill is not a 
 
         physician or a licensed audiologist.  Therefore, her audiogram 
 
         cannot be used to compute hearing loss in this case.
 
         
 
              When the statutory formula is applied to the audiogram of 
 
         Jean Rudkin, a licensed audiologist, and interpreted by Dr. 
 
         Jorgensen, an otolaryngologist, it results in a 11.562 percent 
 
         binaural hearing loss as shown by the calculations of both 
 
         attorneys in their respective briefs (Ex. 2, pp. 6 & 7; Ex. 2, 
 
         depo. ex. 1).  Therefore, it is determined that claimant 
 
         sustained an 11.562 percent permanent binaural hearing loss.  The 
 
         fact that the test was performed almost a year after termination 
 
         of employment gives employer the advantage of the likelihood that 
 
         the loss is permanent loss and not just temporary fatigue loss.  
 
         McVay v. John Deere Dubuque Works, File No. 799446, filed August 
 
         20, 1986.
 
         
 
              Claimant's entitlement to compensation was calculated by 
 
         applying the percentage of loss of 11.562 percent to the maximum 
 
         allowance of 175 weeks as provided by Iowa Code section 85B.10. 
 
         This results in an allowance of 20.2335 weeks of hearing loss 
 
         compensation (175 x .11562).
 
         
 
              Defendant did not sustain the burden of proof by a 
 
         preponderance of the evidence that claimant's hearing loss came 
 
         about through a naturally occurring disease process.
 
         
 
                                                
 
                                                         
 
              Iowa Code section 85B.12 provides:
 
         
 
                   A reduction of the compensation payable to an employee 
 
              for occupational hearing loss shall not be made because the 
 
              employee's ability to communicate may be improved by the use 
 
              of a hearing aid.  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.
 
         
 
              Dr. Jorgensen testified that claimant would benefit from a 
 
         binaural hearing aid.  Therefore, claimant is entitled to a 
 
         binaural hearing aid.
 
         
 
                               FINDINGS OF FACT
 
         
 
              WHEREFORE, based upon the evidence presented the following 
 
         findings of fact are made.
 
         
 
              That claimant was employed by employer from December 3, 1956 
 
         to April 27, 1985 when the plant closed.
 
         
 
              That claimant was exposed to excessive noise levels in 
 
         excess of 90 decibels for approximately 21 years from 1956 to 
 
         1977 before hearing protection was offered by employer to 
 
         employees at the plant.
 
         
 
              That Dr. Jorgensen found claimant sustained a binaural noise 
 
         induced hearing loss in excess of 25 decibels.
 
         
 
              That there was no substantial evidence that any of 
 
         claimant's prior employments or other activities contributed 
 
         significantly to the loss of hearing, if at all.
 
         
 
              That claimant first knew he had a hearing loss in 
 
         approximately 1975, which is approximately ten years before he 
 
         retired.
 
         
 
              That claimant began to wear hearing protection when it was 
 
         offered by employer in approximately 1977.
 
         
 
              That employer first tested claimant and gave him a copy of 
 
         the audiogram test results in graph form and had claimant sign a 
 
         statement on October 29, 1984.
 
         
 
              That claimant both retired and terminated his employment 
 
         with employer on April 27, 1985 when the plant closed.
 
         
 
              That claimant filed this petition on October 25, 1985.
 
         
 
              That claimant sustained an 11.562 percent hearing loss.
 
         
 
              That claimant would benefit from binaural hearing aids.
 
                                        
 
                                CONCLUSIONS OF LAW
 
                                                
 
                                                         
 
         
 
              WHEREFORE, based upon the evidence presented and the 
 
         principles of law previously discussed the following conclusions 
 
         of law are made.
 
         
 
              That claimant sustained an occupational hearing loss which 
 
         arose out of and in the course of his employment with employer 
 
         (Iowa Code section 85B.4).
 
         
 
              That the occupational hearing loss was caused by his 
 
         employment with employer.
 
         
 
              That the amount of occupational hearing loss is 11.562 
 
         percent pursuant to the statutory formula employed to determine 
 
         occupational hearing loss (Iowa Code section 85B.9).
 
         
 
              That claimant is entitled to 20.2335 weeks of hearing loss 
 
         compensation (Iowa Code section 85B.10).
 
         
 
              That claimant is entitled to binaural hearing aids (Iowa 
 
         Code section 85B.12).
 
         
 
              That defendant had actual knowledge of claimant's hearing 
 
         loss (Iowa Code section 85B.14 and 85.23).
 
         
 
              That the date of injury is April 27, 1985 which is the date 
 
         of retirement and termination of employment (Iowa Code section 
 
         85B.8).
 
         
 
              That this action was timely commenced on October 25, 1985 
 
         [Iowa Code section 85.26(1)].
 
         
 
                                      ORDER
 
         
 
              WHEREFORE, IT IS ORDERED:
 
         
 
              That defendant pay to claimant twenty point two three three 
 
         five (20.2335) weeks of hearing loss compensation at the rate of 
 
         two hundred twenty-six and 05/100 dollars ($226.05) per week in 
 
         the total amount of four thousand five hundred seventy-three and 
 
         78/100 dollars ($4,573.78) commencing on April 27, 1985.
 
         
 
              That these benefits be paid in a lump sum.
 
         
 
              That interest will accrue pursuant to Iowa Code section 
 
         85.30.
 
         
 
              That defendant provide claimant with binaural hearing aids.
 
         
 
              That the costs of this action are charged to defendant 
 
         pursuant to Division of Industrial Services Rule 343-4.33.
 
         
 
              That defendant file claim activity reports as requested by 
 
         this agency.
 
         
 
                                                
 
                                                         
 
              Signed and filed this 21st day of January, 1988.
 
         
 
         
 
         
 
         
 
         
 
         
 
         
 
                                            WALTER R. McMANUS, JR.
 
                                            DEPUTY INDUSTRIAL COMMISSIONER
 
         
 
         Copies To:
 
         
 
         Mr. Duane Hoffmeyer
 
         Attorney at Law
 
         1721 Jackson Street
 
         PO Box 2051
 
         Sioux City, Iowa  51104
 
         
 
         Mr. Dick H. Montgomery
 
         Attorney at Law
 
         Professional Building
 
         Spencer, Iowa  51301
 
 
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                            1106; 1108.50; 1402.20; 
 
                                            1402.30; 1402.40; 2208;
 
                                            2209; 1803; 1402.50; 1403.30 
 
                                            2401; 2802; 2803; 1403.30
 
                                            2402
 
                                            Filed January 21, 1988
 
                                            WALTER R. McMANUS, JR.
 
         
 
                  BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         NORMAN BISGARD,
 
         
 
              Claimant,                             File No. 805242
 
         
 
         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; 1108.50; 1402.20; 1402.30; 1402.40; 2208; 2209
 
         
 
              Twenty-nine years of employment on the kill floor at 
 
         excessive noise levels, much of it before hearing protection was 
 
         provided, was the cause of occupational hearing loss which arose 
 
         out of and in the course of employment with employer.
 
         
 
         1803
 
         
 
              Claimant awarded 20.2335 weeks of occupational hearing loss 
 
         compensation.
 
         
 
         1402.50; 1403.30; 2401; 2802; 2803
 
         
 
              Employer had actual notice of the hearing loss before the 
 
         employee from an employer administered hearing test.
 
         
 
         1403.30; 2402
 
         
 
              Employer failed to prove that the action was not timely 
 
         filed applying either the discovery rule or all of the possible 
 
         injury dates in ICS 85B.8.