BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         LARRY ACKERMAN,
 
         
 
              Claimant,
 
                                                     File Nos. 806005
 
         vs.                                                   806006
 
         
 
         WEISS CONSTRUCTION CO.,                       A P P E A L
 
         
 
              Employer,                              D E C I S I O N
 
         
 
         and
 
                                                        F I L E D
 
         FIREMAN'S FUND INSURANCE CO.,
 
                                                       JUN 28 1988
 
              Insurance Carrier,
 
              Defendants.                     IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
                              STATEMENT OF THE CASE
 
         
 
              Defendants appeal from an arbitration decision awarding 
 
         healing period benefits, permanent partial disability benefits 
 
         representing an industrial disability of 40 percent, and medical 
 
         expenses.
 
         
 
              The record on appeal consists of the written decision of the 
 
         deputy of the arbitration hearing; claimant's exhibits 1 through 
 
         10; and defendants' exhibits A and B.
 
         
 
                                    ISSUES
 
         
 
              The issues on appeal are whether claimant received an injury 
 
         that arose out of and in the course of his employment; whether 
 
         there is a causal connection between claimant's alleged injury 
 
         and his alleged disability; when healing period ended; and the 
 
         extent of permanent partial disability.
 
         
 
                            REVIEW OF THE EVIDENCE
 
         
 
              It should be noted that in a stipulation and order dated 
 
         December 17, 1986, which was signed by representatives of both 
 
         parties, it was stipulated that for purposes of review on appeal, 
 
         the only official record of the oral proceeding will be the 
 
         exhibits received into evidence and the written decision of the 
 
         deputy.  The court reporter provided by defendants to report the 
 
         hearing was not certified.  Defendants, in a motion filed April 
 
         29, 1987, requested that the transcript of the hearing be allowed 
 
         as part of the evidence.  That motion was overruled in a ruling 
 
         dated May 11, 1987.
 
         
 
              Claimant testified that he is 36 years old and was employed 
 
                                                
 
                                                         
 
         by defendant employer in October 1985 as a heavy construction 
 
         worker.  He has a twelfth grade education.  He received an 
 
         honorable discharge after four years in the U.S. Navy.  He 
 
         obtained jet engine mechanic experience in the navy.  He 
 
         sustained no injuries prior to October 1985 and characterizes his 
 
         health as excellent prior to October 1985.
 
         
 
              Claimant testified that on October 17, 1985 (a Thursday) he 
 
         stepped in some mud while lifting a bag of cement that weighed 
 
         about 100 pounds and injured his low back when he twisted with 
 
         the bag in hand.  The next day he went to a chiropractor.  On 
 
         October 22, 1985, claimant was shoveling sand at a construction 
 
         site and experienced low back pain as a result.  Claimant 
 
         testified that he was told by defendant employer that he could go 
 
         to the doctor of his choice for treatment of his back problem.  
 
         On October 24, 1985, claimant saw Steven L. Funk, D.O.  He was 
 
         treated by Dr. Funk from October 24, 1985 through January 6, 1986 
 
         and received weekly workers' compensation benefits during this 
 
         time period.  On January 6, 1986, claimant tried to go back to 
 
         work and told defendant employer about his restrictions on that 
 
         date.  Defendant employer informed claimant that they could not 
 
         take him back given his medical or physical restrictions.
 
         
 
              Claimant testified that on January 6, 1986, he saw Raymond 
 
         W. Dasso, M.D., and was ultimately evaluated by Barry Lake 
 
         Fischer, M.D.  On April 6, 1986, claimant felt he could go back 
 
         to work and did so doing "light cleanup" for $230 per week.  His 
 
         medical restrictions "limited the amount of work" he could do.  
 
         In January 1986, claimant had a 25 pound weight restriction with 
 
         no repetitive lifting or squatting.  Claimant was paid $550 per 
 
         week prior to October 17, 1986.  Claimant currently has severe 
 
         pain in his lower back.  After October 17, 1985, claimant no 
 
         longer hunted, fished, or "roughhoused" with his children.
 
         
 
              On cross-examination, claimant acknowledged that he selected 
 
         Dr. Funk.  Dr. Funk ultimately told claimant to go back to work 
 
         and to "lift to tolerance."  Claimant thought that perhaps Dr. 
 
         Dasso imposed the 25 pound weight restriction.
 
         
 
              On cross-examination, claimant acknowledged that he 
 
         "returned" to work for a construction company other than 
 
         defendant employer; this company called claimant.
 
         
 
              Claimant testified that he went to see Dr. Dasso; D.D. 
 
         Stierwalt, D.C.; Thomas A. Brozovich, D.C.; and Irwin T. Barnett, 
 
         M.D., for evaluations rather than treatment or therapy.
 
         
 
              Claimant was seen and treated by Steven L. Funk, D.O.  In a 
 
         letter dated January 8, 1986, Dr. Funk wrote:
 
         
 
              [Claimant] slipped in the mud and fell into a hole and 
 
              immediately had sharp pain in the low back radiating to both 
 
              legs and severe weakness....He had severely torn ligaments 
 
              in the upper lumbar spine and tight restriction of the 
 
              sacroiliac and fifth lumbar joints.  The nerve signs which 
 
                                                
 
                                                         
 
                   were originally present are gone at this point and the fifth 
 
              lumbar and sacrum symptoms are completely gone, but the 
 
              injury at the second and third lumbar segments persists. 
 
              Larry definitely has weakening of the ligamentous and 
 
              muscular structures in this area, which is probably 
 
              permanent.
 
         
 
         (Claimant's Exhibit 1)
 
         
 
              In a letter dated April 22, 1986, Dr. Funk wrote:
 
         
 
                   It is my impression that Larry has suffered a very 
 
              serious lumbar injury which caused straining and tearing of 
 
              the musculature and the ligaments of the lumbar area and the 
 
              restraining ligaments of the fourth and fifth lumbar discs 
 
              with resultant bulging of the fifth lumbar disc, creating 
 
              nerve symptoms.  This chronic lumbar strain creates pain and 
 
              reduction of range-of-motion and muscle strength and 
 
              stability throughout the lumbar spine.  I feel that this 
 
              injury represents 30% disability to the body as a whole....I 
 
              feel that Larry will never improve to the point that he can 
 
              do heavy labor without severe back pain....and certainly [I] 
 
              would not certify him able to return to his original work.
 
         
 
         (Cl. Ex. 2, p. 3)
 
         
 
         Dr. Funk's office notes read in part in chronological order:
 
         
 
                   11/18/85 S:  Was improved for a few days and then 
 
              lifted an automobile battery which put him back in the same 
 
              condition he was several treatments ago.
 
         
 
                   12/23/85 S:  Broke left great toe when he dropped a 
 
              large log on it while cutting wood.  Cutting wood did not, 
 
              however, inflame back.  Back is tender, but improved.
 
         
 
                   1/6/86 S:  Continues to improve, wants to try return to 
 
              original job as brick layer.  Has job opportunity at this 
 
              point he can't miss, financial problems from being out of 
 
              work and apparent loss of workman's [sic] compensation 
 
              payments.  Still has aching with exertion with activity such 
 
              as cutting firewood, but no severe pain and he does indicate 
 
              persistent improvement in the injured area as well as marked 
 
              improvement in other areas of his spine.
 
         
 
                   1/29/86 S:  Returned to work pooring [sic] concrete as 
 
              planned.  He states that when any amount of forward bending, 
 
              whether bearing weight or not, is doen [sic] that the upper 
 
              lumbar spine aches severely and it's only through endurance 
 
              and fear of loss of his job that he continues through the 
 
              day.  He says that the pain begins within the first hour of 
 
              the work day and is relieved by standing up or laying down, 
 
              but immediately returns on forward bending.
 
         
 
                   2/12/86 S:  Larry had to go back to work for financial 
 
                                                
 
                                                         
 
                   reasons, was pitching hay and had upper lumbar pain while 
 
              throwing hay bales to the left.
 
         
 
                   3/18/86 S:  Has been working at light construction with 
 
              tolerable amount of pain which persists through his rest 
 
              period in the evening into the next day's work.
 
         
 
         (Defendants' Exhibit A)
 
         
 
              Claimant was examined by Barry L. Fischer, M.D., on May 1, 
 
         1986.  In a letter dated May 20, 1986, Dr. Fischer opined: 
 
         "[T]his patient sustained an injury to his lower back which has 
 
         resulted in permanent partial functional impairment to the person 
 
         as a whole of 30%"  (Cl. Ex. 3, p. 3)
 
         
 
              Claimant was examined by Raymond W. Dasso, M.D., on February 
 
         28, 1986 and in a letter dated the same day, Dr. Dasso stated:
 
         
 
                   SURGERY:  The patient states that he has had no surgery 
 
              on his spine.
 
         
 
                   HOSPITALIZATION:  The patient states that he has not 
 
              been hospitalized for care of his back.
 
         
 
                   ....
 
 
 
                            
 
                                                         
 
         
 
                   DISABILITY:  The patient has totally been disabled from 
 
              the date of the injury until the present time.  In my 
 
              opinion he has permanent partial disability with no 
 
              restrictions of no lifting over 25 pounds and no excessive 
 
              bending, stooping or twisting; however, he will probably 
 
              have an additional six months or so of total disability 
 
              before recovering to the degree that he can do light work.
 
         
 
         (Cl. Ex. 5, pp. 2,3)
 
         
 
              Claimant was examined by Thomas A. Brozovich, D.C., and in a 
 
         letter dated March 14, 1986, Dr. Brozovich wrote:  "At the date 
 
         of this report, with respect to the loss of lumbar range of 
 
         motion only, I have calculated a temporary impairment of the 
 
         whole man to be 13%.  Some six to twelve months should be 
 
         permitted before a competent estimation of any degree of 
 
         permanent impairment can be made."  (Cl. Ex. 4)  Claimant was 
 
         examined by Irwin T. Barnett, M.D., on September 2, 1986 and in a 
 
         letter dated the same day, Dr. Barnett opined:  "Mr. Ackerman has 
 
         a moderate loss of use of the man as a whole on an industrial 
 
         basis."  (Cl. Ex. 6, p. 2) On August 5, 1986, claimant was 
 
         examined by D.D. Stierwalt, D.C., who wrote in a letter dated 
 
         August 6, 1986:  "Based on findings at the time of examination, I 
 
         place the permanent impairment level at 22 to 25% of the whole 
 
         man.  It is my opinion that with this corrective surgery or 
 
         corrective rehabilitation, he will still be faced with a minimum 
 
         of 15% whole man impairment." (Cl. Ex. 7, p. 2)
 
         
 
                                 APPLICABLE LAW
 
         
 
              The citations of law in the arbitration decision are 
 
         appropriate to the issues and evidence.
 
         
 
                                   ANALYSIS
 
         
 
              Before discussing the issues raised on appeal one thing 
 
         should be emphasized.  Defendants, in their appeal brief, make 
 
         reference to facts that are not in the record, particularly facts 
 
         that are given in the transcript.  As noted earlier, the record 
 
         in this matter is limited to the written decision of the deputy 
 
         and to exhibits received into evidence.  The issues raises on 
 
         appeal will be resolved based upon only those facts that are in 
 
         the record.
 
         
 
              The evidence is uncontroverted that claimant injured his low 
 
         back at work on October 17, 1985 and that he aggravated his low 
 
         back injury at work on October 22, 1985.  Claimant sought medical 
 
         treatment within two days of each of the injuries.  The history 
 
         claimant gave, the medical treatment he received, and the 
 
         impressions given by doctors all are consistent with an injury to 
 
         the lower back.  Claimant has established by a preponderance of 
 
         the evidence that he sustained injuries that arose out of and in 
 
         the course of his employment.
 
         
 
                                                
 
                                                         
 
              The medical evidence is uncontroverted that claimant has 
 
         sustained a permanent impairment because of his injury.  
 
         Impairment ratings by examining doctors range from "moderate" to 
 
         36 percent of the body as a whole.  Claimant's treating doctor 
 
         gives a "disability" rating of 30 percent.  It should be noted 
 
         that a physician is not qualified to make a determination of a 
 
         claimant's disability, but is only qualified to make a 
 
         determination of impairment.  Claimant has sustained a permanent 
 
         impairment because of his injury.
 
         
 
              The next issue to be decided is when the healing period 
 
         ended.  Claimant has the burden of proving the extent of his 
 
         healing period.  Claimant acknowledged that he returned to work 
 
         for a construction company.  Dr. Funk states in his notes that on 
 
         January 6, 1986 claimant wanted to try to return to his original 
 
         job as bricklayer and on January 29, 1986 and March 18, 1986 
 
         claimant returned to construction work as planned.  From this it 
 
         can be concluded that claimant planned to return to work and did 
 
         so.  In the absence of any proof by the claimant to the contrary, 
 
         it is concluded that claimant returned to work on January 7, 
 
         1986. Claimant's healing period ended on January 6, 1986.
 
         
 
              The last issue to be discussed is the extent of claimant's 
 
         industrial disability.  Claimant's permanent impairment is only 
 
         one of the factors used to determine industrial disability. 
 
         Claimant is 36 years of age and has a high school education and 
 
         has had experience as a jet engine mechanic in his four years of 
 
         service with the U.S. Navy.  He has a work history of manual labor 
 
         jobs and was able to perform these jobs prior to October 1985.  
 
         The treating physician, Dr. Funk, stated that claimant cannot 
 
         return to heavy labor without severe back pain.  Claimant did, 
 
         however, return to manual labor in the construction job within 
 
         approximately three months of his injury.  Prior to that time he 
 
         did engage in cutting firewood and lifting an automobile battery.  
 
         Lifting the battery did affect his back but cutting the firewood 
 
         did not inflame his back.  Shortly after returning to his 
 
         construction job he undertook other physical work of throwing hay 
 
         bales and light construction, both of which caused him some pain.  
 
         Also, claimant has had no surgery and has not been hospitalized 
 
         for his back.  Although there is evidence that claimant should not 
 
         return to heavy labor but limit himself to sedentary-type work 
 
         claimant has returned to heavy labor.  Claimant is well motivated.  
 
         The fact that claimant has not required surgery and has continued 
 
         to be employed in construction demonstrates that his injury is not 
 
         as severe as what his restrictions may indicate.  Taking all 
 
         appropriate factors into account, it is concluded that claimant's 
 
         industrial disability is 25 percent.
 
         
 
                               FINDINGS OF FACT
 
         
 
              1.  Claimant is 36 years old.
 
         
 
              2.  Claimant sustained no physical injuries of any 
 
         consequence prior to October 17, 1985.
 
         
 
                                                
 
                                                         
 
              3.  On October 17, 1985, claimant injured his back while 
 
         working for defendant employer.
 
         
 
              4.  On October 22, 1985, claimant aggravated his low back 
 
         while working for defendant employer.
 
         
 
              5.  As a result of the work incidents of October 17, 1985 
 
         and October 22, 1985, claimant sustained a whole body impairment 
 
         of 30 percent.
 
         
 
              6.  Claimant has a work history of heavy manual labor jobs.
 
         
 
              7.  Work restrictions were imposed on claimant because of 
 
         the work-related injuries sustained in October 1985.
 
         
 
              8.  Claimant returned to his construction job within 
 
         approximately three months of his injury even though he continued 
 
         to have some pain.
 
         
 
              9.   Claimant has had no surgery nor has he been 
 
         hospitalized for his back.
 
         
 
              10.  Defendant employer informed claimant that he could 
 
         choose his own treating physician and he did so.
 
         
 
              11.  Claimant returned to work on January 7, 1986.
 
         
 
              12.  Claimant's industrial disability is 25 percent.
 
         
 
              13.  Claimant's stipulated weekly rate of compensation is 
 
         $331.19.
 
         
 
                               CONCLUSIONS OF LAW
 
         
 
              Claimant has established by a preponderance of the evidence 
 
         that he sustained injuries that arose out of and in the course of 
 
         his employment.
 
         
 
              Claimant has established by a preponderance of the evidence 
 
         that there is a causal connection between his work-related 
 
         injuries and his asserted disability.
 
         
 
              Claimant has established entitlement to healing period 
 
         benefits and permanent partial disability with permanent partial 
 
         disability benefits commencing on January 7, 1986.
 
         
 
              Defendants' authorization and causal connection arguments 
 
         regarding the contested medical bills are without merit and, 
 
         therefore, defendants shall pay these bills.
 
         
 
              WHEREFORE, the decision of the deputy is affirmed and 
 
         modified.
 
         
 
                                    ORDER
 
         
 
                                                
 
                                                         
 
              THEREFORE, it is ordered:
 
         
 
              That defendants pay healing period benefits from October 17, 
 
         1985 through January 6, 1986, and then pay one hundred 
 
         twenty-five (125) weeks of permanent partial disability benefits 
 
         commencing on January 7, 1986 at the stipulated rate of three 
 
         hundred thirty-one and 19/100 dollars ($331.19).
 
         
 
              That defendants pay accrued benefits in a lump sum and pay 
 
         interest pursuant to section 85.30, The Code.
 
         
 
              That defendants be given credit for benefits already paid.
 
         
 
              That defendants pay the contested medical bills.
 
         
 
              That defendants pay the costs of this proceeding including 
 
         the costs of transcription of the arbitration hearing.
 
         
 
              That defendants file claim activity reports pursuant to 
 
         Division of Industrial Services Rule 343-3.1(2).
 
         
 
              Signed and filed this 28th day of June, 1988.
 
         
 
         
 
         
 
         
 
         
 
         
 
                                               DAVID E. LINQUIST
 
                                            INDUSTRIAL COMMISSIONER
 
         
 
         Copies To:
 
                  
 
                                                         
 
         
 
         Mr. Peter M. Soble
 
         Attorney at Law
 
         1705 2nd Avenue
 
         Rock Island, Illinois  61201
 
         
 
         Mr. Steven L. Udelhofen
 
         Attorney at Law
 
         1000 Des Moines Building
 
         Des Moines, Iowa  50309
 
 
 
         
 
         
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                                 1108.50; 1402.40;
 
                                                 1802
 
                                                 Filed June 28, 1988
 
                                                 David E. Linquist
 
         
 
                   BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         LARRY ACKERMAN,
 
         
 
              Claimant,
 
                                                     File Nos. 806005
 
         vs.                                                   806006
 
         
 
         WEISS CONSTRUCTION CO.,
 
                                                      A P P E A L
 
              Employer,
 
                                                    D E C I S I 0 N
 
         and
 
         
 
         FIREMAN'S FUND INSURANCE CO.,
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
         1108.50
 
         
 
              Claimant established by means of uncontroverted evidence 
 
         that he injured his low back at work and aggravated his low back 
 
         also at work five days later.  He sought treatment within two 
 
         days of each of the injuries.  The history he gave, the medical 
 
         treatment he received, and the impressions given by doctors all 
 
         are consistent with an injury to the lower back.
 
         
 
         1402.40; 1803
 
         
 
              The medical evidence was uncontroverted that claimant 
 
         sustained a permanent impairment.  Claimant returned to manual 
 
         labor in the construction job within approximately three months 
 
         of his injury.  Claimant had had no surgery and had not been 
 
         hospitalized for his back.  Although there was evidence that 
 
         claimant should not return to heavy labor but should limit 
 
         himself to sedentary-type work, claimant had returned to heavy 
 
         labor.  The facts that claimant had not required surgery and had 
 
         continued to be employed in construction demonstrated that his 
 
         injury was not as severe as what his restrictions may indicate.  
 
         Industrial disability was 25 percent.
 
         
 
         1802
 
         
 
              Claimant acknowledged he had returned to work.  A doctor's 
 
         note indicated that claimant wanted to return to work and a later 
 
         note indicated he had returned to work or planned to.  In the 
 
         absence of any proof by the claimant to the contrary, it was 
 
                                                
 
                                                         
 
         concluded that claimant returned to work the day after the first 
 
         doctor's note which stated claimant wanted to return to work.
 
 
 
         
 
         
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                     
 
         
 
                    BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         LARRY ACKERMAN,
 
         
 
              Claimant,                           File  Nos.  806005
 
                                                              806006
 
         VS.
 
         
 
         WEISS CONSTRUCTION CO.,                 A R B I T R A T I 0 N
 
         
 
               Employer,                            D E C I S I 0 N
 
         
 
         and
 
         
 
         FIREMAN'S FUND INSURANCE CO.,
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
         
 
                              STATEMENT OF THE CASE
 
         
 
              These are proceedings in arbitration brought by Larry 
 
         Ackerman, claimant, against Weiss Construction Co. (Weiss), 
 
         employer, and Fireman's Fund Insurance Co., insurance carrier, 
 
         for benefits as a result of alleged injuries on October 17, 1985 
 
         (No. 806005) and on October 22, 1985 (No. 806006).  A hearing was 
 
         held in Davenport, Iowa, on December 17, 1986 and the case was 
 
         submitted on that date.
 
         
 
              The record consists of the testimony of claimant; claimant's 
 
         exhibits 1 through 10; and defendants' exhibits A and B.  The 
 
         court reporter at hearing was not certified in Iowa; however, she 
 
         was allowed to stay in the hearing room.  The parties stipulated 
 
         as follows at time of hearing:
 
         
 
                 The parties stipulate, pursuant to section 17A.10(2) of 
 
              the Code of Iowa, that they waive the requirements for 
 
              recording oral proceedings and maintaining the record of 
 
              oral proceedings contained within section 17A.12(7) of the 
 
              code.
 
         
 
            It is further stipulated that no official verbatim record of 
 
         the oral proceeding will be made or maintained and that for 
 
         purposes of review on appeal the only official record of the 
 
         oral proceeding will be the exhibits received into evidence and 
 
         the written decision of the deputy industrial commissioner.
 
              
 
              The parties stipulated that claimant's weekly rate is 
 

 
         
 
         
 
         
 
         ACKERMAN V. WEISS CONSTRUCTION CO.
 
         Page   2
 
         
 
         
 
         $331.19; and that the medical bills at issue are reasonable in 
 
         amount.  Defendants waived their Iowa Code section 85.23 defense 
 
         at time of hearing.  The rate issue was informally resolved at 
 
         time of hearing.
 
         
 
              The contested issues are:
 
         
 
              1)  Whether claimant received an injury which arose out of 
 
         and in the course of his employment with Weiss;
 
         
 
              2)  Whether there is a causal relationship between 
 
         claimant's alleged injury or injuries and his asserted 
 
         disability;
 
         
 
              3)  Nature and extent of disability; claimant argues that 
 
         any permanency benefits which may be awarded commence on April 6, 
 
         1986; defendants argue that any permanency benefits which may be 
 
         awarded commence on January 8, 1986; and
 
         
 
              4)  Whether claimant is entitled to benefits under Iowa Code 
 
         section 85.27 and, if so, the extent of those benefits.
 
         
 
                             SUMMARY OF THE EVIDENCE
 
         
 
              Claimant testified that he is 36 years old and was employed 
 
         by Weiss in October 1985 as a heavy construction worker.  He has 
 
         a twelfth grade education.  He received an honorable discharge 
 
         after four years in the U.S. Navy.  He obtained jet engine 
 
         mechanic experience in the navy.  He sustained no injuries prior 
 
         to October 1985 and characterized his health as excellent prior 
 
         to October 1985.
 
         
 
              Claimant testified that on October 17, 1985 (a Thursday) he 
 
         stepped in some mud while lifting a bag of cement that weighed 
 
         about 100 pounds and injured his low back when he twisted with 
 
         the bag in hand.  The next day he went to a chiropractor.  On 
 
         October 22, 1985, claimant was shoveling sand at a construction 
 
         site and experienced low back pain as a result.  Claimant 
 
         testified that he was told by Weiss that he could go to the 
 
         doctor of his choice for treatment of his back problem.  On 
 
         October 24, 1985, claimant saw Steven L. Funk, D.O.; he was 
 
         treated by Dr. Funk from October 24, 1985 through January 6, 1986 
 
         and received weekly workers' compensation benefits during this 
 
         time period.  On January 6, 1986, claimant tried to go back to 
 
         work and told Weiss about his restrictions on that date.  Weiss 
 
         informed claimant that they could not take him back given his 
 
         medical or physical restrictions.
 
         
 
              Claimant testified that on January 6, 1986, he saw Raymond 
 
         W. Dasso, M.D., and was ultimately evaluated by Barry Lake 
 
         Fischer, M.D.  On April 6, 1986, claimant felt he could go back 
 
         to work and did so doing "light cleanup" for $230 per week.  His 
 
         medical restrictions "limited the amount of work" he could do.  
 
         In January 1986, claimant had a 25 pound weight restriction with 
 
         no repetitive lifting or squatting.  Claimant was paid $550 per 
 
         week prior to October 17, 1985.  Claimant currently has severe 
 
         pain in his lower back.  After October 17, 1985, claimant no 
 
         longer hunted, fished, or "roughhoused" with his children.
 
         
 

 
         
 
         
 
         
 
         ACKERMAN V. WEISS CONSTRUCTION CO.
 
         Page   3
 
         
 
         
 
              On cross-examination, claimant acknowledged that he selected 
 
         Dr. Funk.  Dr. Funk ultimately told claimant to go back to work 
 
         and to "lift to tolerance."  Claimant thought that perhaps Dr. 
 
         Dasso imposed the 25 pound weight restriction.
 
         
 
              On cross-examination, claimant acknowledged that he 
 
         "returned" to work for a construction company other than Weiss; 
 
         this company called claimant.  Claimant testified that he went to 
 
         see Dr. Dasso; D. D. Stierwalt, D.C.; Thomas A. Brozovich, D.C.; 
 
         and Irwin T. Barnett, M.D., for evaluations rather than treatment 
 
         or therapy.  Claimant testified as to the amount of his earnings 
 
         in 1981 through 1985.
 
         
 
              Exhibit 1 (dated January 8, 1986) is authored by Dr. Funk 
 
         and reads in part:
 
         
 
              (Claimant] slipped in the mud and fell into a hole and 
 
              immediately had sharp pain in the low back radiating to both 
 
              legs and severe leg weakness....He had severely torn 
 
              ligaments in the upper lumbar spine and tight restriction of 
 
              the sacroiliac and fifth lumbar joints.  The nerve signs 
 
              which were originally present are gone at this point and the 
 
              fifth lumbar and sacrum symptoms are completely gone, but 
 
              the injury at the second and third lumbar segments persists. 
 
               Larry definitely has weakening of the ligamentous and 
 
              muscular structures in this area, which is probably 
 
              permanent.
 
         
 
              Exhibit 2, page 3 (dated April 22, 1986), is authored by Dr. 
 
         Funk and contains a 30 percent whole body rating.  Dr. Funk also 
 
         commented on page 3: "I feel that Larry will never improve to the 
 
         point that he can do heavy labor without severe back pain ... and 
 
         certainly [I] would not certify him able to return to his 
 
         original work.O
 
         
 
              Exhibit 3, page 3 (dated May 20, 1986), is authored by Dr. 
 
         Fischer and contains a 30 percent whole body rating.
 
         
 
              Exhibit 5, page 3 (dated February 28, 1986), is authored by 
 
         Dr. Dasso and reads in part:
 
         
 
              DISABILITY: The patient has totally been disabled from the 
 
              date of the injury until the present time.  In my opinion he 
 
              has permanent partial disability with no restrictions of no 
 
              lifting over 25 pounds and no excessive bending, stooping or 
 
              twisting; however, he will probably have an additional six 
 
              months or so of total disability before recovering to the 
 
              degree that he can do light work.
 
         
 
                           APPLICABLE LAW AND ANALYSIS
 
         
 
              I. Claimant has the burden of proving by a preponderance of 
 
         the evidence that he received an injury which arose out of and in 
 
         the course of his employment.  McDowell v. Town of Clarksville, 
 
         241 N.W.2d 904 (Iowa 1976); Musselman v. Central Telephone Co., 
 
         261 Iowa 352, 154 N.W.2d 128 (1967).
 
         
 
              Claimant's testimony that he injured his low back at work on 
 
         October 17, 1985 is believed.  Claimant's testimony that he 
 

 
         
 
         
 
         
 
         ACKERMAN V. WEISS CONSTRUCTION CO.
 
         Page   4
 
         
 
         
 
         aggravated his low back injury at work on October 22, 1985 is 
 
         also believed.  Claimant established by a preponderance of the 
 
         evidence that he sustained an injury which arose out of and in 
 
         the course of his employment.
 
         
 
              II. The claimant has the burden of proving by a 
 
         preponderance of the evidence that his work-related injury is 
 
         causally related to the disability on which he now bases his 
 
         claim.  Bodish v. Fischer, Inc., 257 Iowa 516, 133 N.W.2d 867 
 
         (1965).  Lindahl v. L. 0. Boggs, 236 Iowa 296, 18 N.W.2d 607 
 
         (1945).  A possibility is insufficient; a probability is 
 
         necessary.  Burt v. John Deere Waterloo Tractor Works, 247 Iowa 
 
         691, 73 N.W.2d 732 (1955).  The question of causal connection is 
 
         essentially within the domain of expert testimony.  Bradshaw v. 
 
         Iowa Methodist Hospital, 251 Iowa 375, 101 N.W.2d 167 (1960).
 
         
 
              A treating physician's testimony is not entitled to greater 
 
         weight as a matter of law than that of a physician who later 
 
         examines claimant in anticipation of litigation.  Weight to be 
 
         given testimony of physician is a fact issue to be decided by the 
 
         industrial commissioner in light of the record the parties 
 
         develop.  In this regard, both parties may develop facts as to 
 
         the physician's employment in connection with litigation, if so; 
 
         the physician's examination at a later date and not when the 
 
         injuries were fresh; the arrangement as to compensation; the 
 
         extent and nature of the physician's examination; the physician's 
 
         education, experience, training, and practice; and all other 
 
         factors which bear upon the weight and value of the physician's 
 
         testimony may be considered.  Both parties may bring all this 
 
         information to the attention of the factfinder as either 
 
         supporting or weakening the physician's testimony and opinion.  
 
         All factors go to the value of the physician's testimony as a 
 
         matter of fact, not as a matter of law.  Rockwell Graphic 
 
         Systems, Inc. v. Prince, 366 N.W.2d 187, 192 (Iowa 1985).
 
         
 
         
 
              Dr. Funk's causal connection opinion is found to be 
 
         persuasive as is his 30 percent whole body rating.  Dr. Funk 
 
         started treating claimant shortly after the incidents in October 
 
         1985. See exhibit 1, page 1.
 
         
 
              III.  Functional disability is an element to be considered 
 
         in determining industrial disability which is the reduction of 
 
         earning capacity, but consideration must also be given to the 
 
         injured employee's age, education, qualifications, experience and 
 
         inability to engage in employment for which he is fitted.  Olson 
 
         v. Goodyear Service Stores, 255 Iowa 1112, 125 N.W.2d 251 (1963). 
 
         Barton v. Nevada Poultry, 253 Iowa 285, 110 N.W.2d 660 (1961).
 
         
 
              A finding of impairment to the body as a whole found by a 
 
         medical evaluator does not equate to industrial disability.  This 
 
         is so as impairment and disability are not synonymous.  Degree of 
 
         industrial disability can in fact be much different than the 
 
         degree of impairment because in the first instance reference is 
 
         to loss of earning capacity and in the later to anatomical or 
 
         functional abnormality or loss.  Although loss of function is to 
 
         be considered and disability can rarely be found without it, it 
 
         is not so that a degree of industrial disability is 
 
         proportionally related to a degree of impairment of bodily 
 

 
         
 
         
 
         
 
         ACKERMAN V. WEISS CONSTRUCTION CO.
 
         Page   5
 
         
 
         
 
         function.
 
         
 
              Factors to be considered in determining industrial 
 
         disability include the employee's medical condition prior to the 
 
         injury, immediately after the injury, and presently; the situs of 
 
         the injury, its severity and the length of healing period; the 
 
         work experience of the employee prior to the injury, after the 
 
         injury and potential for rehabilitation; the employee's 
 
         qualifications intellectually, emotionally and physically; 
 
         earnings prior and subsequent to the injury; age; education; 
 
         motivation; functional impairment as a result of the injury; and 
 
         inability because of the injury to engage in employment for which 
 
         the employee is fitted.  Loss of earnings caused by a job 
 
         transfer for reasons related to the injury is also relevant.  
 
         These are matters which the finder of fact considers collectively 
 
         in arriving at the determination of the degree of industrial 
 
         disability.
 
         
 
              There are no weighting guidelines that indicate how each of 
 
         the factors are to be considered.  There are no guidelines which 
 
         give, for example, age a weighted value of ten percent of the 
 
         total value, education a value of fifteen percent of total, 
 
         motivation - five percent; work experience - thirty percent, etc.  
 
         Neither does a rating of functional impairment directly correlate 
 
         to a degree of industrial disability to the body as a whole.  In 
 
         other words, there are no formulae which can be applied and then 
 
         added up to determine the degree of industrial disability.  It 
 
         therefore becomes necessary for the deputy or commissioner to 
 
         draw upon prior experience, general and specialized knowledge to 
 
         make the finding with regard to degree of industrial disability. 
 
         See Christensen v. Hagen, Inc., (Appeal Decision, March 26, 1985); 
 
         Peterson v. Truck Haven Cafe, Inc., (Appeal Decision, February 
 
         28, 1985).
 
         
 
              Claimant is 36 years of age and is not well educated.  He 
 
         has a work history of manual labor jobs and was able to perform 
 
         these jobs prior to October 1985 as his health was good.  His 
 
         testimony that he sustained no injuries prior to October 1985 is 
 
         believed.  Dr. Funk stated that claimant cannot return to "heavy 
 
         labor without severe back pain.O  See exhibit 2, page 3.  This 
 
         evidence is also believed.  It would appear from the evidence of 
 
         record that claimant is not a particularly good candidate for 
 
         vocational rehabilitation.
 
         
 
              Taking all appropriate factors into account, it is concluded 
 
         that claimant is entitled to 200 weeks of permanent partial 
 
         disability benefits based on an industrial disability of 40 
 
         percent.  Permanency benefits commence on April 6, 1986 as 
 
         claimant returned to work on that date.  I am not convinced that 
 
         claimant had reached maximum healing on January 8, 1986.  
 
         Claimant is, therefore, entitled to healing period benefits from 
 
         October 17, 1985 through April 5, 1986.
 
         
 
              IV.  Defendants' authorization arguments are rejected.  A 
 
         finding of fact will be made that the employer told claimant that 
 
         he could select his treating physician.  He did so.  Any causal 
 
         connection arguments are also rejected for the reasons stated 
 

 
         
 
         
 
         
 
         ACKERMAN V. WEISS CONSTRUCTION CO.
 
         Page   6
 
         
 
         
 
         above.  In sum, all contested medical bills are to be paid by 
 
         defendants.  Also, defendants' authorization arguments fail 
 
         because they did not admit that claimant has a compensable 
 
         injury, and therefore cannot control the course of medical 
 
         treatment.
 
         
 
         
 
                                 FINDINGS OF FACT
 
         
 
              1.  Claimant is thirty-six (36) years old.
 
         
 
              2.  Claimant sustained no physical injuries of any 
 
         consequence prior to October 17, 1985.
 
         
 
              3.  On October 17, 1985, while working for Weiss, claimant 
 
         injured his low back when he picked up a bag of cement that 
 
         weighed about 100 pounds; he slipped into a mud hole with his 
 
         right foot and fell on his left side with a resulting low back 
 
         injury.
 
         
 
              4.  On October 22, 1985, claimant materially aggravated the 
 
         October 17, 1985 low back injury while working for Weiss; he was 
 
         shoveling sand on October 22, 1985 at the time of his 
 
         aggravation.
 
         
 
         
 
              5.  As a result of the work incidents of October 17, 1985 
 
         and October 22, 1985, claimant sustained whole body impairment in 
 

 
         
 
         
 
         
 
         ACKERMAN V. WEISS CONSTRUCTION CO.
 
         Page   7
 
         
 
         
 
         the range of thirty percent (30%).
 
         
 
              6.  Claimant has a work history of heavy manual labor jobs.
 
         
 
              7.  Claimant is not currently able to do heavy labor because 
 
         of medically imposed restrictions; these restrictions were 
 
         imposed because of the work-related injuries sustained in October 
 
         1985.
 
         
 
              8.  Claimant will not be able to do heavy labor in the 
 
         future because his physical impairment relating to his low back 
 
         is permanent.
 
         
 
              9.  Claimant is a poor candidate for vocational 
 
         rehabilitation.
 
         
 
              10.  Claimant is well motivated to work and to improve his 
 
         physical condition.
 
         
 
              11.  Weiss informed claimant that he could choose his own 
 
         treating physician and he did so.
 
         
 
              12.  Claimant had not yet reached maximum healing on January 
 
         8, 1986.
 
         
 
              13.  Claimant's industrial disability is forty percent 
 
         (40%).
 
         
 
              14.  Claimant's stipulated weekly rate of compensation is 
 
         three hundred thirty-one and 19/100 dollars ($331.19).
 
         
 
         
 
                                CONCLUSIONS OF LAW
 
         
 
              1.  Claimant established by a preponderance of the evidence 
 
         that he sustained injuries that arose out of and in the course of 
 
         his employment.
 
         
 
              2.  Claimant established by a preponderance of the evidence 
 
         that there is a causal connection between his work-related 
 
         injuries and his asserted disability.
 
         
 
              3.  Claimant established entitlement to healing period 
 
         benefits and permanent partial disability with permanent partial 
 
         disability benefits commencing on April 6, 1986.
 
         
 
              4  .Defendants' authorization and causal connection 
 
         arguments regarding the contested medical bills are without merit 
 
         and, therefore, defendants shall pay these bills.
 
         
 
         
 
                                      ORDER
 
         
 
              IT IS THEREFORE ORDERED:
 
         
 
              That defendants pay healing period benefits from October 17, 
 
         1985 through April 5, 1986, and then pay two hundred (200) weeks 
 
         of permanent partial disability benefits commencing on April 6, 
 
         1986.
 

 
         
 
         
 
         
 
         ACKERMAN V. WEISS CONSTRUCTION CO.
 
         Page   8
 
         
 
         
 
         
 
              That defendants pay accrued benefits in a lump sum and pay 
 
         interest pursuant to section 85.30, The Code.
 
         
 
              That defendants be given credit for benefits already paid to 
 
         claimant.
 
         
 
              That defendants pay the contested medical bills.
 
         
 
              That defendants pay the costs of this action pursuant to 
 
         Industrial Services Rule 343-4.33.
 
         
 
              That defendants shall file claimant activity reports, 
 
         pursuant to Industrial Services Rule 343-3.1(2), formerly 
 
         Industrial Commissioner Rule 500-3.1(2), as requested by the 
 
         agency.
 
         
 
         
 
              Signed and filed this 23rd day of February, 1987.
 
         
 
         
 
         
 
         
 
         
 
         
 
                                         T. J. McSWEENEY
 
                                         DEPUTY INDUSTRIAL COMMISSIONER
 
         
 
         Copies to:
 
         
 
         Mr. Peter M. Soble
 
         Attorney at Law
 
         1705 2nd Ave.
 
         Rock Island, Illinois 61201
 
         
 
         Mr. Steven L. Udelhofen
 
         Attorney at Law
 
         1000 Des Moines Building
 
         Des Moines, Iowa 50309
 
         
 
         
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                                    1402.40; 1803; 2501
 
                                                    Filed 2-23-87
 
                                                    T. J. McSweeney
 
         
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         LARRY ACKERMAN,
 
         
 
              Claimant,                            File Nos. 806005
 
                                                             806006
 
         VS.
 
         
 
         WEISS CONSTRUCTION CO.,                 A R B I T R A T I 0 N
 
         
 
              Employer,                             D E C I S I 0 N
 
         
 
         and
 
         
 
         FIREMAN'S FUND INSURANCE CO.,
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
         
 
         1402.40; 1803; 2501
 
         
 
              Held in arbitration that claimant established the requisite 
 
         causal connection and entitlement to 200 weeks of permanent 
 
         partial disability.  Defendants' authorization arguments were 
 
         rejected because they had not admitted that claimant had a 
 
         compensable injury.
 
         
 
              Claimant had lifted a bag of cement that weighed about 100 
 
         pounds and injured his low back when he twisted with the bag in 
 
         hand; this occurred on October 17, 1985.  On October 22, 1985, 
 
         claimant aggravated his low back condition while shoveling sand 
 
         at a construction site.
 
 
 
         
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         _________________________________________________________________
 
         
 
         BENJAMIN J. KOSTER,
 
         
 
              Claimant,
 
                                                 FILE NO. 806022
 
         VS.
 
                                               A R B I T R A T I 0 N
 
         JOHN DEERE DUBUQUE WORKS OF
 
         DEERE & COMPANY,
 
                                                 D E C I S I O N
 
              Employer,
 
              Self-Insured
 
              Defendant.
 
         _________________________________________________________________
 
         
 
                                   INTRODUCTION
 
         
 
              This is a proceeding in arbitration brought by Benjamin J. 
 
         Koster, claimant, against John Deere Dubuque Works of Deere & 
 
         Company, employer and self-insured defendant for an alleged 
 
         occupational hearing loss and an occupational disease which 
 
         occurred on December 1, 1984.  A hearing was held on November 13, 
 
         1986 at Dubuque, Iowa and the case was fully submitted at the 
 
         close of the hearing.  The record consists of the testimony 
 
         (employer's medical director), Mary Koster (claimant's wife), 
 
         Ronald D. Drish (supervisor), engineer), and Clement J. 
 
         Koerperich through 20; and claimant's of Mervin L. McClenahan, 
 
         M.D., Benjamin J. Koster (claimant), Robert J. Kaiser 
 
         (supervisor), Gary W. Bundenthal (industrial supervisor); joint 
 
         exhibits 1 exhibits 21 and 22.
 
         
 
                               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 hearing loss 
 
         and alleged occupational disease.
 
         
 
              That the rate of weekly compensation in the event of an 
 
         award is $345.30.
 
         
 
              That the claimant's entitlement to medical benefits is no 
 
         longer in dispute.
 
         
 
                                    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 loss 
 
         and an occupational disease on December 1, 1984, which arose out 
 
         of and in the course of his employment with the employer.
 
         
 
              Whether the occupational hearing loss and the occupational 
 
         disease were the cause of any temporary or permanent disability.
 

 
         
 
              Whether the claimant is entitled to temporary disability 
 
         benefits or permanent disability benefits as a result of either 
 
         the occupational hearing loss or the occupational disease.
 
         
 
              Whether the alleged occupational hearing loss claim is 
 
         barred by Iowa Code section 85.23 and 85B.14 because the employer 
 
         did not have actual knowledge of the loss and the employee or 
 
         someone on his behalf did not give notice within 90 days of the 
 
         occurrence of the loss to the employer.
 
         
 
              Whether the alleged occupational hearing loss is barred by 
 
         Iowa Code section 85.26, 85B.8 and 85B.14 because it was not 
 
         commenced within two years from the occurrence of the injury.
 
         
 
              Whether the alleged occupational disease claim is barred by 
 
         Iowa Code section 85.23, 85A.16 and 85A.18 because the employer 
 
         did not have knowledge of the loss and the employee did not give 
 
         written notice to the employer within 90 days of the first 
 
         distinct manifestation of the occupational disease.
 
         
 
              Whether the alleged occupational disease claim is barred by 
 
         Iowa Code section 85.26 and 85A.16 because it was not commenced 
 
         within two years from the occurrence of an occupational disease.
 
         
 
                                 TRANSCRIPT
 
         
 
              Defendant ordered a transcript of the hearing.  It was made 
 
         available to the agency in order to review the testimony more 
 
         carefully in this very complex case and to show where in the 
 
         record the pertinent evidence may be found.  The transcript has 
 
         been returned to the defendant and is not a part of the official 
 
         industrial commissioner's file.
 
         
 
                            SUMMARY OF THE EVIDENCE
 
         
 
              Claimant was born on November 28, 1923 and was 62 years old 
 
         at the time of the hearing.  He went to country school through 
 
         the eighth grade.  He has had no education or training after that 
 
         and was not in the military service.  He farmed on rented land 
 
         until he was 35 years old.  He started to work for John Deere on 
 
         April 16, 1958.  He worked in the foundry for approximately 18 
 
         years until June 13, 1976.  On June 14, 1976, he transferred to 
 
         the assembly change over department and worked there until he 
 
         retired on December 1, 1984 after 26 years of laboring type of 
 
         work with the employer.  John Deere has been his only employer 
 
         since 1958 when he was 35 years of age.  The assembly change over 
 
         department is sometimes also referred to as the tractor repair 
 
         department.  The terms are used interchangeably (Transcript pages 
 
         101, 102 & 138).
 
         
 
              Claimant was exposed to noise levels in excess of 90 dBA 
 
         almost continuously from August 25, 1958 through June 13, 1976 
 
         which is a period of approximately 18 years when he worked in the 
 
         foundry.  From October 28, 1968 through June 13, 1976, which is a 
 
         period of approximately eight years, claimant was exposed to 105 
 
         dBA for 1,832 days when he worked in the foundry.  From June 14, 
 
         1976 to November 30, 1984 the exposure ranged from 80 dBA to 88 
 
         dBA (Exhibit 8).
 
         
 
              A survey done on November 21, 1985 for several departments 
 
         in the plant show generally high noise levels, many of which 
 
         exceed 90 dBA (Ex. 13).
 
         
 

 
         
 
         
 
         
 
         KOSTER V. JOHN DEERE DUBUQUE WORKS OF DEERE & COMPANY
 
         Page   3
 
         
 
         
 
              Four audiometric examinations of the claimant in evidence 
 
         reveal the following results:
 
         
 
          DATE          PERCENTAGE        SOURCE          EXHIBIT #
 
         
 
         10-19-71        46.56           John Deere          12
 
         05-24-74        45.90           John Deere          11
 
         08-20-82        42.50           John Deere          10
 
         08-27-82        40.32           Dr. Gschwendtner     9
 
         
 
              Mervin L. McClenahan, M.D., who was the plant physician at 
 
         that time, reviewed the audiogram that was taken on August 20th 
 
         1982.  The doctor then notified the claimant on August 23, 1982 
 
         of his hearing loss (Ex. 5). (Iowa Code section 85BlO).  In 
 
         addition, the doctor set up an appointment for claimant with John 
 
         F. Gschwendtner, M.D., a hearing specialist in Dubuque.  Dr. 
 
         McClenahan entered in the claimant's dispensary notes at that 
 
         time that the type of loss was probably sensorineural and 
 
         probably work related (Ex. 4, p. 13).
 
         
 
              Dr. Gschwendtner saw claimant on August 27, 1982.  He 
 
         confirmed that the loss was sensorineural and bilateral.  He 
 
         stated that claimant would benefit from the use of a hearing aid.  
 
         Although Dr. Gschwendtner thought the loss was not related to the 
 
         place of employment, Dr. McClenahan told Dr. Gschwendtner that it 
 
         was work related because of the claimant's 18 years of employment 
 
         in the foundry (Ex. 6 & 7).  Claimant also testified that the 
 
         noise in the foundry caused his hearing loss (Tr. 92).  Claimant 
 
         also testified that Dr. Gschwendtner told him that his hearing 
 
         loss was noise induced and work related (Tr. 117).
 
         
 
              Dr. McClenahan then recorded on the claimant's dispensary 
 
         notes on August 31, 1982 that the loss was work related.  He also 
 
         made an entry on September 10, 1982 that he informed claimant 
 
         that his hearing loss was considered work related (Ex. 4, p. 13).  
 
         Dr. McClenahan testified at the hearing that the claimant's 
 
         hearing loss was due to the length of time that claimant spent in 
 
         the foundry, that it was noise induced, that it was probably due 
 
         to the noise to which he was exposed in the foundry without 
 
         hearing protection and that the safety department of the company 
 
         agreed with him (Tr. 46, 66 & 67).  Furthermore, claimant's loss 
 
         was sensorineural and permanent (Tr. 46).
 
         
 
              Although claimant had farmed for about 20 years before 
 
         working for the employer, the claimant's pre-employment physical 
 
         examination dated April 15, 1958, under the classification ears 
 
         showed no otitis media or other deafness (Ex. 21).  Claimant 
 
         testified that he also worked part-time for approximately 10 
 
         years as a roofer installing asphalt shingles with a hammer and 
 
         nails (Tr. 110-113) but there was no evidence that this affected 
 
         claimant's hearing or his breathing.  Claimant testified he wore 
 
         an air hood for hearing protection after they were required to 
 
         wear them in 1969 or 1971 until he left the foundry.  Claimant 
 
         was not sure of the exact year that air hoods became mandatory 
 
         (Tr. 113-115).  Claimant verified that his hearing problem dated 
 
         back to before 1976 and before he left the foundry (Tr. 116).  He 
 
         also confirmed that Dr. McClenahan tested him, sent him to Dr. 
 
         Gschwendtner and told him that the hearing problem was caused by 
 
         work (Tr. 92, 116 & 117).  The testimony of both claimant and Dr. 
 

 
         
 
         
 
         
 
         KOSTER V. JOHN DEERE DUBUQUE WORKS OF DEERE & COMPANY
 
         Page   4
 
         
 
         
 
         McClenahan indicated that the results of the audiograms taken in 
 
         1971 and 1974 were not communicated to claimant (Tr. 44 & 91).
 
         
 
              Gary W. Bundenthal, an industrial engineer, supervised 
 
         claimant from mid 1974 until he left the foundry on June 13, 1976 
 
         when claimant was a chipper and grinder in the foundry.  He said 
 
         air hoods were mandatory then and testified that claimant wore 
 
         his hood as required (Tr. 150-153).  Bundenthal also testified 
 
         that mandatory hearing protection was in effect and that claimant 
 
         also wore a green rubber type earplug (Tr. 154).  Claimant was 
 
         never disciplined for a hearing protection violation (Tr. 155).
 
         
 
              Clement J. Koerperich, production general supervisor, 
 
         supervised claimant in 1974 and 1976.  He said that mandatory 
 
         hearing protection became effective December 15, 1971.  He 
 
         testified that claimant wore his protection and air hood until he 
 
         left the foundry (Tr. 156-160).
 
         
 
              Apparently, a hand bill was circulated by the union alerting 
 
         workers to possible hearing loss claims.  Claimant testified that 
 
         he contacted the union about it on the day before Thanksgiving in 
 
         1982.  The union president went with him to see the safety man at 
 
         John Deere in January, February or March of 1983.  This unknown 
 
         safety man told claimant that he had some money coming due to his 
 
         hearing loss and that he would figure it up and get in touch with 
 
         him.  When nothing happened, the union representative told 
 
         claimant to wait until he retired to make any further claim (Tr. 
 
         93-99).  Claimant could not identify the safety man who promised 
 
         him money.  The union representative was with him when the 
 
         promise was made.  When he did not get paid the union 
 
         representative told him to wait until he retired to make a 
 
         claim.
 
         
 
         The claimant relied on what the union representative told him to 
 
         do (Tr. 118-121).
 
         
 
              Dennis W. Rajtora, M.D., an allergist, saw claimant on May 
 
         12, 1986, May 14, 1986 and May 19, 1986.  Dr. Rajtora noted that 
 
         claimant spent 16 years in the chip and grind process exposed to 
 
         silica dust when at times the air was filled with dust (Ex. 14, 
 
         p. 3). The doctor's history recorded that in 1968, 1969 and 1970 
 
         claimant worked 12 hours a day, six days a week for approximately 
 
         three or four years where he had excessive and significant 
 
         exposure to silica (Ex. 14, p. 3).  Dr. Rajtora concluded his 
 
         examination with the following diagnosis: "Patient's diagnosis is 
 
         that of (1) pneumoconiosis (pulmonary silicosis); (2) obstructive 
 
         airways disease secondary to smoking, aggravated and perpetuated 
 
         by inhalation of non-organic dust." (Ex. 3, p. 2).
 
         
 
              Dr. Rajtora awarded a 30 percent permanent impairment rating 
 
         based on the silicosis and exclusive of the claimant's smoking 
 
         difficulties (Ex. 2 & 3).
 
         
 
              Dr. McClenahan stated on June 11, 1986 that claimant 
 
         suffered from pulmonary silicosis that resulted from chronic 
 
         exposure to foundry dust at the employer's place of employment 
 
         over a number of years.  He declared that claimant suffered a 35 
 
         percent permanent impairment but part of it was due to smoking 
 
         (Ex. 1).  The doctor testified that the employer either knew or 
 

 
         
 
         
 
         
 
         KOSTER V. JOHN DEERE DUBUQUE WORKS OF DEERE & COMPANY
 
         Page   5
 
         
 
         
 
         should have known that foundry dust contained silica from sand 
 
         and that it was harmful more than 15 years ago.  Claimant's job 
 
         of chip and grind in the foundry was both noisy and dusty, more 
 
         so than the environment in general (Tr. 23-27).  The extensive 
 
         history taken by Dr. Rajtora disclosed that claimant had 
 
         pulmonary problems of coughing, heaviness in the chest and would 
 
         bring up black, dark sand after 15 years of exposure.  This would 
 
         be approximately 1973.  In 1976, claimant had pneumonia and tests 
 
         at that time disclosed some fibrosis.  Claimant continued to have 
 
         shortness of breath, coughing and wheezing and gradual 
 
         progression of difficulties up to his retirement in 1984 (Ex. 14, 
 
         p.3). Claimant quit smoking after he had pneumonia in 1976 (Tr. 
 
         89).
 
         
 
              When claimant had cataract surgery in October of 1982, a 
 
         routine chest x-ray revealed spots on his lungs.  At the time of 
 
         a second cataract surgery in February or March of 1983, a 
 
         specialist diagnosed this as silicosis (Tr. 88 & 107).  On direct 
 
         examination, claimant testified he was not told where it came 
 
         from and that he did not know that he might have a workers' 
 
         compensation claim available (Tr. 88).  Nevertheless, on 
 
         cross-examination the following colloquy transpired between 
 
         claimant and opposing council:
 
         
 
              Q.  Now, did they discuss with you where you worked?
 
         
 
              A.  Yes.
 
         
 
              Q.  Did they discuss with you your background and your 
 
              history?
 
         
 
              A.  No. Yes, well, yes, he did in a way.
 
         
 
              Q.  Did he know you worked at the John Deere foundry?
 
         
 
              A. Yes.
 
         
 
              Q.  And he was your treating physician?
 
         
 
              A.  Yes.
 
         
 
              Q.  He told you you had silicosis and that it was coming 
 
              from working at the foundry?
 
         
 
              A.  Yes.  Well, he didn't say directly, but that's
 
              what I got out of it anyhow.
 
         
 
              Q.  That was your understanding?
 
         
 
              A.  Yes.
 
         
 
              Q.  Now, did you go see the John Deere people at that time 
 
              to tell them that your doctor was reporting that you had 
 
              silicosis?
 
         
 
              A.  No, I didn't.
 
         
 
              Q. Did you tell your bosses, Mr. Kaiser or Ron
 
              Drish?
 

 
         
 
         
 
         
 
         KOSTER V. JOHN DEERE DUBUQUE WORKS OF DEERE & COMPANY
 
         Page   6
 
         
 
         
 
         
 
              A.  No. No. That was when I was down in the foundry, in 176.  
 
              I was down there when I had my cataract.  No, I wasn't 
 
              either.  Oh, gee.  I had cataract operation before I got 
 
              down there under Kaiser.  There was other ones there before 
 
              I got a hold of Drish or Kaiser.
 
         
 
              (Tr. 107 & 108)
 
         
 
              At the time of the cataract surgery by Dr. Pechous (full 
 
         name unknown) claimant was also under the care of his own 
 
         personal physician, John W. Moberly, M.D., an internist, who saw 
 
         him every six months for silicosis (Tr. 104-108).
 
         
 
              Dr. Moberly wrote a letter to claimant on November 1, 1982 
 
         and enclosed a copy of an x-ray report.  Dr. Moberly's letter 
 
         said:
 
         
 
              Attached is a copy of the chest examination of your 
 
              x-ray done on January 6, 1982, which still reveals 
 
              extensive nodular inflammatory process consistent with 
 
              the silicosis that you have been aware of for a long 
 
              period of time.
 
         
 
              There appears to be some slowly progressing changes, 
 
              but there is no evidence that there is anything new in 
 
              this process at this time.
 
              (Ex. 16)
 
         
 
              Dr. Moberly wrote to the claimant again a year later on 
 
         January 17, 1983 as follows: "The chest x-ray examination done on 
 
         January 12, 1983, revealed no change from January of 1982.  It 
 
         would therefore appear that the silicosis is stable and is doing 
 
         well at the present time." (Ex. 15).
 
         
 
              Claimant gave the following testimony about these two 
 
         letters:
 
         
 
              Q.  Exhibits 15 and 16 are Dr. Moberly's letters that are 
 
              addressed to you., January 11, 1982 and January 17, 1983.  
 
              Do you remember those letters?
 
         
 
              A.  Yes, I do.
 
         
 
              Q.  What caused those to be written to you?
 
         
 
              A.  That was after I had the cataract taken out. The 
 
              specialist there found out what I had.
 
         
 
              Q.  He told you in those letters that you had silicosis?
 
         
 
              A.  Yes.
 
         
 
              Q.  And why did he write the letters to you?
 
         
 
              A.  To let me know.  That's all I got out of it.
 
         
 
              Q.  What did you do with the letters?
 
         
 

 
         
 
         
 
         
 
         KOSTER V. JOHN DEERE DUBUQUE WORKS OF DEERE & COMPANY
 
         Page   7
 
         
 
         
 
              A.  I kept them.
 
         
 
              Q.  Did you take them to Dr. McClenahan?
 
         
 
              A.  No, I didn't.  I didn't think I had to
 
         
 
              Q.  Pardon me?
 
         
 
              A.  I didn't think it was necessary.
 
         
 
              (Tr. 117 & 118)
 
         
 
              Dr. McClenahan testified that as his plant physician it was 
 
         his opinion that claimant did not know that he had silicosis (Tr. 
 
         136).
 
         
 
              Claimant testified that his first knowledge that silicosis 
 
         was something involved with workers' compensation was when Dr. 
 
         McClenahan called him out to the plant to discuss it in April of 
 
         1986 which was after the claimant had retired and after this 
 
         action had been commenced (Tr. 88)
 
         
 
              Dr. McClenahan testified his first knowledge of claimant's 
 
         silicosis was when the original notice and petition was filed on 
 
         November 7, 1985.  There was nothing in claimant's entire 
 
         dispensary record (Ex. 4) to indicate a history of silicosis or 
 
         any breathing problems (Tr. 32, 33, 61 & 75).
 
         
 

 
         
 
         
 
         
 
         KOSTER V. JOHN DEERE DUBUQUE WORKS OF DEERE & COMPANY
 
         Page   8
 
         
 
         
 
              Dr. McClenahan testified that a chest x-ray taken on June 
 
         26, 1973 was taken when the defendant started doing routine 
 
         silica examinations.  It indicated that claimant's lung fields 
 
         were clear and that he had a normal chest at that time (Ex. 20; 
 
         Tr. 75-80).
 
         
 
              Another x-ray taken on June 11, 1976 at Finley Hospital when 
 
         claimant was treated for hand fractures reported fibrotic and 
 
         emphysematous changes bilaterally (Ex. 19).  Dr. McClenahan said 
 
         that this would be an indication that claimant may have had a 
 
         silicotic process starting at that time (Tr. 78).  Claimant's 
 
         dispensary record showed no indication of the results of this 
 
         chest x-ray but mentioned only the fractures to the hand (Ex. 4, 
 
         p.11).  There was no evidence that this x-ray report or any 
 
         indications of the fibrotic condition of the lungs was or was not 
 
         reported to the employer.
 
         
 
              Another x-ray dated June 22, 1977, taken at John Deere 
 
         showed an increased reticulo-nodular pattern in both mid lung 
 
         fields (Ex. 18).  Dr. McClenahan said that this was not a normal 
 
         chest x-ray but that the reticulo-nodular pattern could be caused 
 
         by sources other than silicosis such as from smoking (Tr. 81 & 
 
         82).  He said that this x-ray report was equivocal (Tr. 134).  
 
         The x-ray report that was the most indicative of silicosis was 
 
         the one that was taken at Finley Hospital on June 11, 1976 (Tr. 
 
         133 & 134).
 
         
 
              When Dr. McClenahan interviewed claimant for a blood lead 
 
         test back on March 30, 1983, claimant reported that he had 
 
         shortness of breath and he was taking a pill for shortness of 
 
         breath but claimant did not mention silicosis (Ex. 17 & 22).  Dr. 
 
         McClenahan granted that shortness of breath is an indication of 
 
         silicosis and that silicosis is a form of pneumoconiosis (Tr. 
 
         135).
 
         
 
              Claimant testified that he never had any trouble doing his 
 
         work and that he worked right up to the time that he retired on 
 
         December 1, 1984.  He never reported any breathing problems to 
 
         the medical department (Tr. 104).  He retired voluntarily and not 
 
         because he could not handle the work (Tr. 108 & 109).  Dr. 
 
         McClenahan testified that the claimant would not be hired today 
 
         to do unrestricted labor (Tr. 31) or just any work (Tr. 72 & 73) 
 
         at John Deere, but claimant would not be incapacitated from 
 
         performing the job he was doing at the time he retired (Tr. 64 & 
 
         72).  In his opinion claimant could perform his former assembly 
 
         repair work job and he exhibited this by doing it.  Furthermore, 
 
         he believed that the claimant could do his old change over and
 
         repair job at the time of the pulmonary examination in 1986 (Tr. 
 
         82 & 83).
 
         
 
              Robert J. Kaiser, a production supervisor for whom claimant 
 
         worked from November of 1982 until retirement at the end of 
 
         November 1984, testified that claimant never exhibited breathing 
 
         problems or any other problems that prevented him from doing his 
 
         job except that his driving was restricted due to poor eyesight 
 
         (Tr. 139, 144 & 145).  Kaiser further testified that there were a 
 
         lot of jobs claimant could do at John Deere (Tr. 143 & 144).
 
         
 
              Ronald D. Drish, another supervisor during the same period 
 

 
         
 
         
 
         
 
         KOSTER V. JOHN DEERE DUBUQUE WORKS OF DEERE & COMPANY
 
         Page   9
 
         
 
         
 
         of time, testified that claimant performed his duties up to the 
 
         time he retired with no indication of breathing or other physical 
 
         problems except for poor eyesight (Tr. 147 & 148).
 
         
 
                         APPLICABLE LAW AND ANALYSIS
 
         
 
              At the close of the hearing claimant moved to amend the 
 
         petition to conform to the proof.  Claimant contended that 
 
         defendant was estopped from denying claimant's hearing loss claim 
 
         because the unknown safety man had promised payment which was 
 
         never forthcoming.  Defendant objected to this motion because 
 
         this issue was not raised at the prehearing conference and was 
 
         not included on the hearing assignment order.  Defendant further 
 
         pointed out that paragraph eight of the hearing assignment order 
 
         provides as follows: "Additional Amendments to Pleadings.  No 
 
         further amendments to a party's pleading which materially change 
 
         the issues of the hearing will be allowed without a modification 
 
         of this order."
 
         
 
              Estoppel is a significant issue.  An issue not raised at the 
 
         prehearing conference and included on an hearing assignment order 
 
         is waived.  Joseph Presswood v. Iowa Beef Processors, Inc., filed 
 
         November 14, 1989, (Appl.  Decn).  Therefore, claimant's motion 
 
         to amend the pleadings to conform to the proof is denied.
 
         
 
              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 excess 
 
         noise level means sound capable of producing occupational hearing 
 
         loss.  Iowa Code section 85B.5 states that excess noise level is 
 
         sound which exceeds the times and intensities published in that 
 
         table and section of the Code.
 
         
 
              Exhibit 8 demonstrates that claimant was exposed to 
 
         excessive noise levels for 18 years from 1958 to 1976.  The 
 
         company apparently provided no hearing protection for the first 
 
         13 years until 1971.  Iowa Code section 85B.5 shows that exposure 
 
         to more than one hour of sound at 105 dBA is excessive, but 
 
         claimant was exposed to this level of sound eight hours a day for 
 
         1,832 days from 1968 to 1976 (Ex. 8; Tr. 43).  Much of this time 
 
         was before hearing protection was provided in 1971.  The first 
 
         audiomoniter test in 1971 showed a 46.56 percent loss of hearing 
 
         (Ex. 12).  Dr. McClenahan tested claimant in 1982, sent him to a 
 
         hearing specialist, talked with claimant, and talked with the 
 
         employer's safety department and it was determined that claimant 
 
         had sustained a permanent sensorineural bilateral hearing loss 
 
         caused by his work in the foundry.  Claimant testified that this 
 
         was when his hearing loss occurred in his opinion.  Claimant also 
 
         testified that Dr. Gschwendtner told him the same thing.  Dr. 
 
         McClenahan considered that the claimant's other life time 
 
         activities such as farming, roofing and hunting were not 
 
         sufficient to cause this hearing loss.
 
         
 
              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 
 

 
         
 
         
 
         
 
         KOSTER V. JOHN DEERE DUBUQUE WORKS OF DEERE & COMPANY
 
         Page  10
 
         
 
         
 
         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.  In the instant case, all four of the audiometric 
 
         examinations from 1971 through 1982 placed the employer on actual 
 
         notice of the occurrence of a hearing loss.  Dr. McClenahan had 
 
         no problem in 1982 concluding that the claimant's years in the 
 
         foundry before hearing protection was provided was the cause of 
 
         the claimant's hearing loss.  Dr. McClenahan even reversed Dr. 
 
         Gschwendtner's opinion that it was not work related.  Therefore, 
 
         defendant had actual knowledge of the occurrence of this 
 
         occupational hearing loss as required by Iowa Code sections 85.23 
 
         and 85B.14. In fact, from the evidence the employer was the first 
 
         to know about it and to discover it but there is no evidence that 
 
         they provided this information to the claimant as required by 
 
         section 85B.10. Claimant denied that he had been informed of the 
 
         results of the prior hearing tests before Dr. McClenahan notified 
 
         him in 1982.
 
         
 
              Iowa Code section 85B.14 makes the statutes of limitations 
 
         of Iowa Code section 85.26(l) applicable to hearing loss claims.  
 
         Iowa Code section 85.26(l) requires an original proceeding to be 
 
         commenced within two years from the date of occurrence of an 
 
         injury.  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.
 
         
 
              Defendant's contention that this claim is barred by the 
 
         statute of limitations because the claimant did not file his 
 
         claim within two years after he discovered or knew he had a 
 
         hearing loss is not correct.  Dale J. Furry v. John Deere Dubuque 
 
         Works of Deere & Company, filed November 12, 1986 (ApplDecn.) 
 
         held that the statute of limitations begins to run on the date of 
 
         the injury and the date of the injury is any one of the three 
 
         events specified in Iowa Code section 85B.8. In this case, the 
 
         date of injury is retirement on December 1, 1984 and the claim 
 
         was filed on November 15, 1985 within the two year period of 
 
         limitations.
 
         
 
              The claimant's transfer from the excessive noise level 
 

 
         
 
         
 
         
 
         KOSTER V. JOHN DEERE DUBUQUE WORKS OF DEERE & COMPANY
 
         Page  11
 
         
 
         
 
         environment on June 14, 1976, and also all of the transfers shown 
 
         on exhibit 8 cannot be considered the date of injury because it 
 
         was not proven that any of these transfers were permanent 
 
         transfers without reasonable expectation of being returned to a 
 
         high noise level at work.  Claimant still remained a member of 
 
         the blue collar work force in a laboring capacity and could have 
 
         been transferred back to the foundry or any other department 
 
         described in exhibit 13 which has excessive noise levels or high 
 
         noise levels approaching excessive noise levels that could also 
 
         produce occupational hearing loss.  Wilfred E. McVay v. John 
 
         Deere Dubuque Works of Deere & Company, decided by Deputy 
 
         Industrial Commissioner Michael G. Trier and filed August 20, 
 
         1986 and Donald Lueken v. John Deere Dubuque Works of Deere 
 
         Company, filed August 29, 1986 decided by Deputy Industrial 
 
         commissioner Steven E. Ort.  The rationale and reasoning of these 
 
         decisions will not be repeated in this decision because they have 
 
         already been stated twice in almost identical form in those two 
 
         cases.
 
         
 
              This decision adopts the four factors used in those two 
 
         cases from which it could be determined that a transfer would 
 
         constitute a date of injury under Iowa Code section 85B.8. Those 
 
         factors are as follows: (1) a clearly recognizable change in 
 
         employment status; (2) which provides a reduction of noise 
 
         exposure to a level not capable of producing occupational hearing 
 
         loss; (3) that is permanent or indefinite in the sense that there 
 
         is no reasonable expectation that the worker will be returned to 
 
         a position with excessive noise level exposure in the ordinary 
 
         course of operations in the employer's business; and (4) that the 
 
         change must have actually continued for not less than six 
 
         months.
 
         
 
              Exhibits 8 and 13 demonstrate that as long as claimant 
 
         remained a factory worker he was subject to noise levels that 
 
         could possibly produce occupational hearing loss.  Loss can 
 
         sometimes result from noise exposure of less than 90 dBA.  
 
         Morrison v. Muscatine County, Iowa, No. 702385 (1985).
 
         
 
              It cannot be said that the date of injury was the date that 
 
         mandatory hearing protection was provided to employees on 
 
         December 15, 1971 because this is not one of the events specified 
 
         in Iowa Code section 85B.8.
 
         
 
              Consequently, it is determined that defendant had actual 
 
         notice of the hearing loss and that this action is timely filed.  
 
         Claimant did suffer a permanent sensorineural bilateral hearing 
 
         loss in excess of 25 dBA 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.  
 
         Claimant's loss is determined to be 40.32 percent which is Dr. 
 
         Gschwendtner's evaluation of August 27, 1982 because it is the 
 
         only audiogram taken after Dr. McClenahan gave notice to claimant 
 
         on August 23, 1982 that he had a hearing loss claim (Iowa Code 
 
         section 85B.9). Furthermore, it is probably the most reliable 
 
         since it was the last one taken and it therefore afforded the 
 
         claimant the opportunity to recuperate from what has been 
 
         described as temporary fatigue loss.
 
         
 
              Chapter 85A, Code of Iowa, provides benefits for 
 

 
         
 
         
 
         
 
         KOSTER V. JOHN DEERE DUBUQUE WORKS OF DEERE & COMPANY
 
         Page  12
 
         
 
         
 
         occupational disease.  Section 85A.8 defines occupational disease 
 
         in some detail.  A shorter working definition is provided by 
 
         Lawyer & Higgs, Iowa Workers' Compensation -- Law and Practice, 
 
         section - where occupational disease is described as disease 
 
         peculiar to employment typically resulting from exposure over a 
 
         number of years.
 
         
 
              To prove causation of an occupational disease, claimant need 
 
         only meet two basic requirements imposed by the statutory 
 
         definition of occupational disease: (1) the disease must be 
 
         related to the exposure to harmful conditions in the field of 
 
         employment and (2) the harmful condition must be more prevalent 
 
         in the employment than in everyday life or in other occupations. 
 
         McSpadden v. Big Ben Coal Co., 288 N.W.2d 181 (Iowa 1980).
 
         
 
              Chapter 85A, Code of Iowa, provides both compensation and 
 
         medical benefits (Iowa Code section 85A.5). The occupational 
 
         disease law also provides for temporary disability and permanent 
 
         total disability and permanent partial disability (Iowa Code 
 
         section 85A.17). The same criteria that is used to determine 
 
         industrial disability in an injury case under Chapter 85 can be 
 
         applied in an occupational disease case under Chapter 85A of the 
 
         Code.  McSpadden, 288 N.W.2d 181 (Iowa 1980).
 
         
 
              The report of Dr. Rajtora and Dr. McClenahan and the 
 
         testimony of Dr. McClenahan proved that claimant did suffer an 
 
         industrial disease as defined in Iowa Code section 85A.8 which 
 
         was caused by his employment.  Claimant acquired silicosis, a 
 

 
         
 
         
 
         
 
         KOSTER V. JOHN DEERE DUBUQUE WORKS OF DEERE & COMPANY
 
         Page  13
 
         
 
         
 
         form of pneumoconiosis due to his work in the foundry and chronic 
 
         exposure to silica dust (Ex. 1, 2, 3, 14; Tr. 23-27).  Therefore, 
 
         claimant has sustained the burden of proof by a preponderance of 
 
         the evidence that he sustained an occupational disease.
 
         
 
              The provisions of the workers' compensation law so far as 
 
         applicable and not inconsistent with the occupational disease law 
 
         shall apply (Iowa Code section 85A.16). Therefore, the 90 day 
 
         notice requirement applicable to workers' compensation cases is 
 
         also applicable to occupational disease cases.  Furthermore, the 
 
         discovery rule is applicable to occupational disease cases.  
 
         Jacques v. Farmers Lbr. & Sup.  Co., 242 Iowa 548, 552, 47 N.W 
 
         2d, 236, 239-40 1951).  Even though Iowa Code section 85A.18 
 
         imposes a specific obligation on an employee to give written 
 
         notice of an occupational disease within 90 days of the first 
 
         manifestation of an occupational disease, a careful reading of 
 
         this code section and a review of the workers' compensation cases 
 
         indicate that actual knowledge of the employer is probably enough 
 
         to satisfy the notice requirement in an occupational disease 
 
         case.  Robinson v Department of Transp., 296 N.W.2d 809, 811 
 
         (Iowa 1980); Hobbs v. Sioux City, 231 Iowa 860, 861-62, 2 N.W.2d 
 
         275, 276 (1942).  In this case, it is determined that the 
 
         employer had actual knowledge of the occupational disease.  Dr. 
 
         McClenahan said that the employer knew or should have known of a 
 
         silicosis problem at least 15 years ago (Tr. 25).  That would be 
 
         in 1973.  Claimant had a chest x-ray in 1973 presumably as a 
 
         silicosis evaluation according to Dr. McClenahan which was clear 
 
         at that time (Ex. 20; Tr. 75 & 80).  An x-ray taken at the time 
 
         of the hand injury on June 11, 1976 definitely showed fibrotic 
 
         changes indicative of silicosis, but since it was taken at Finley 
 
         Hospital and there was no evidence of whether this information 
 
         was given to the employer or was not given to the employer, then 
 
         this x-ray cannot be used as evidence of actual knowledge (Ex. 
 
         19; Tr. 77 & 78).  However, the x-ray taken at John Deere on 
 
         April 22, 1977 was not a normal chest x-ray. it showed increased 
 
         reticulo-nodular pattern in both mid lung fields.  This 
 
         information was not given to the claimant.  It could have been 
 
         evidence of silicosis or smoking or both (Ex. 18; Tr. 78-80).  
 
         This result was equivocal.  It should have been followed up but 
 
         nobody did that back in 1977 (Tr. 134).  When claimant reported 
 
         shortness of breath and that he was taking a pill for shortness 
 
         of breath at the time of the blood lead test on March 30, 1983, 
 
         the employer was placed on reasonable notice of a possible case 
 
         of silicosis when all of this evidence is considered together.  
 
         Therefore, it is determined that there was actual knowledge of a 
 
         possible occupational disease in this case to a reasonably 
 
         conscientious employer that this might involve a potential 
 
         compensation claim.  Robinson, 296 N.W.2d 809, 811 (Iowa 1980).
 
         
 
              Moreover, it is determined that claimant did not discover 
 
         that his occupational disease was serious, work related and 
 
         compensable until this action was filed for him by counsel on 
 
         November 7, 1985.  Actually, claimant personally did not realize 
 
         or discover that he had a workers' compensation claim until Dr. 
 
         McClenahan called him out to the plant in April of 1986 (Tr. 
 
         88).
 
         
 
              The colloquy between claimant and opposing counsel at 
 
         transcript pages 107 and 108 is considered more the testimony of 
 

 
         
 
         
 
         
 
         KOSTER V. JOHN DEERE DUBUQUE WORKS OF DEERE & COMPANY
 
         Page  14
 
         
 
         
 
         counsel than the testimony of claimant because claimant was 
 
         responding to leading questions.  The last question and answer in 
 
         the series shows how easily claimant became confused.  He was 
 
         confused also about the sequence of events and dates with the 
 
         union representative and the safety man (Tr. 93-99).  At one 
 
         point he gave the wrong retirement date (Tr. 101).  The claimant 
 
         often demonstrated poor memory and recollection.  His manner and 
 
         demeanor was that of a gentle, fragile man who spoke in a weak 
 
         voice, with poor eyesight, poor hearing and who was easily 
 
         confused.  If he testified that he did not know that he had a 
 
         workers' compensation claim until he talked with Dr. McCenahan at 
 
         the plant in April of 1986, then this is believable.  Claimant's 
 
         ingeniousness was illustrated by the colloquy between him and 
 
         opposing counsel when he said he kept the letters of Dr. Moberly 
 
         because he did not think he had to give them to the employer (Tr. 
 
         117 & 118).  Dr. McClenahan knew the claimant and dealt with him 
 
         a number of times.  Therefore, great weight is placed upon Dr. 
 
         McClenahan's testimony when he said that the claimant did not 
 
         know that he had silicosis (Tr. 136).  Even if claimant knew that 
 
         he had a lung ailment known as silicosis, there is nothing in the 
 
         record to indicate that he knew or understood the nature, source 
 
         or cause of the ailment.  There is nothing which indicates that 
 
         claimant was aware that silicosis was definitely a work related 
 
         condition.  Consequently, it is determined that claimant did not 
 
         discover that he had a serious, work related and compensable 
 
         claim until his counsel filed a petition on his behalf on 
 
         November 7, 1985.
 
         
 
              By the same token claimant filed this claim within two years 
 
         of when he discovered it because the action was filed on the same 
 
         day that his legal representative determined that he had a claim 
 
         even though the claimant did not personally discover it until 
 
         sometime later. Orr v. Lewis Cent.  Sch.  Dist., 298 N.W.2d 256, 
 
         261 (Iowa 1980).
 
         
 
              Iowa Code section 85A.4 defines disablement for purposes of 
 
         occupational disease as follows:
 
         
 
              ... Disablement as that term is used in this chapter is 
 
              the event or condition where an employee becomes 
 
              actually incapacitated from performing his work or from 
 
              earning equal wages in other suitable employment 
 
              because of an occupational disease as defined in this 
 
              chapter in the last occupation in which such employee 
 
              is injuriously exposed to the hazards of such disease.
 
         
 
              Iowa Code section 85A.12 further provides that an employee 
 
         is not liable for compensation for an occupational disease unless 
 
         disablement results within three years after the last injurious 
 
         exposure to pneumoconiosis.
 
         
 
              Claimant has failed to sustain the burden of proof by 
 
         preponderance of the evidence that he was disabled as that term 
 
         is used in this chapter of the Code because he did not prove that 
 
         he was actually incapacitated from performing his work or from 
 
         earning equal wages in other suitable employment because of the 
 
         occupational disease.  The testimony of claimant was that he 
 
         could perform his job right up to the time of retirement and that 
 
         he retired voluntarily and not because he could not do the work 
 

 
         
 
         
 
         
 
         KOSTER V. JOHN DEERE DUBUQUE WORKS OF DEERE & COMPANY
 
         Page  15
 
         
 
         
 
         (Tr. 104, 108 & 109).  Kaiser and Drish testified that claimant 
 
         performed his job right up to the time of retirement and did not 
 
         exhibit any breathing problems (Tr. 139, 144, 145, 147 & 148).  
 
         Dr. McClenahan said claimant could still perform his old job and 
 
         a number of other jobs for the employer at the time of the 
 
         hearing (Tr. 64, 72, 82 & 83).  Kaiser testified there were a lot 
 
         of jobs that claimant could do at John Deere (Tr. 143 & 144).  
 
         There was no evidence that claimant had tried any other jobs in 
 
         the employment market since his retirement.  Therefore, claimant 
 
         has failed to prove by a preponderance of the evidence that he 
 
         was "actually incapacitated from performing his work or from 
 
         earning equal wages in other suitable employment" as disablement 
 
         is defined in Iowa Code section 85A.4.
 
         
 
              Since it has been determined that there is no disablement it 
 
         is not necessary or possible to decide if disablement occurred 
 
         within three years of the last injurious exposure as required by 
 
         Iowa Code section 85A.12. Furthermore, the date of the last 
 
         injurious exposure is not crystal clear.  Dr. McClenahan 
 
         testified that the last exposure to silica was in the foundry in 
 
         1976 (Tr. 133).  However, since claimant's condition continued to 
 
         worsen after that he may have had some other injurious exposure 
 
         within the plant (Ex. 14, p. 3).
 
         
 
              Even though claimant has not proven disablement for purposes 
 
         of compensation, nevertheless, claimant has proven that he did 
 
         sustain an occupational disease and that he is entitled to 
 
         medical benefits (Iowa Code section 85A.5, paragraph 2).
 
         
 
                              FINDINGS OF FACT
 
         
 
              WHEREFORE, based upon the evidence presented, the following 
 
         findings of fact are made:
 
         
 
              That claimant was employed by the employer from April 16, 
 
         1958 until he retired on December 1, 1984.
 
         
 
              That claimant was exposed to excessive noise levels in 
 
         excess of the statutory standards for long periods of time.  That 
 
         claimant suffered a 40.32 percent permanent noise induced 
 
         sensorineural bilateral hearing loss due to his work in the 
 
         foundry as a chipper and grinder before hearing protection was 
 
         provided on December 15, 1971.
 
         
 
              That defendant had actual knowledge of the hearing loss from 
 
         the audiometric examinations that were conducted in 1971, 1974 
 
         and 1982.
 
         
 
              That the date of injury for the hearing loss is the 
 
         retirement date of December 1, 1984 and that this action was 
 
         filed on November 7, 1985.
 
         
 
              That claimant's transfer from the foundry or his other 
 
         transfers were not proven to be permanent transfers with no 
 
         reasonable expectation of being returned to a high level noise of 
 
         work because claimant remained a laborer in the blue collar work 
 
         force and actually remained in areas with a high level of noise 
 
         even though it did not exceed 90 dBA.
 
         
 

 
         
 
         
 
         
 
         KOSTER V. JOHN DEERE DUBUQUE WORKS OF DEERE & COMPANY
 
         Page  16
 
         
 
         
 
              That claimant suffered the occurrence of the industrial 
 
         disease of silicosis, a form of pneumoconiosis, caused by his 
 
         chronic exposure to silica dust in the foundry before,air hoods 
 
         and breathing protection was provided.
 
         
 
              That the defendant had actual knowledge that the claimant 
 
         sustained this disease at the time of the x-ray on April 22, 
 
         1977, which demonstrated a reticulo-nodular pattern in both mid 
 
         lung fields, when this information is combined with the fact that 
 
         the employer already considered the claimant a suspect for 
 
         silicosis since an x-ray was taken for that purpose in 1973.
 
         
 
              That claimant did not discover the significance of silicosis 
 
         until April of 1986.
 
         
 
              That counsel for claimant, however, did understand the 
 
         significance and filed an original notice and petition on 
 
         November 7, 1985.
 
         
 
              That claimant did not prove that he was incapacitated from 
 
         performing his work at the employer's plant or from earning equal 
 
         wages in other suitable employment.
 
         
 
              That claimant performed his job without difficulty or 
 
         complaint up till his retirement on December 1, 1984.
 
         
 
              That claimant has not sought any other work since he retired 
 
         from the employer.
 
         
 
              That there was no evidence that the claimant left the 
 
         foundry due to breathing problems or silicosis.
 
         
 
                            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 by Chapter 85B, Code of Iowa, which arose out of and in 
 
         the course of his employment with the employer.
 
         
 
              That the loss was caused by his employment with the 
 
         employer.
 
         
 
              That the amount of the loss is 40.32 percent of 175  weeks 
 
         pursuant to Iowa Code section 85B.6.
 
         
 
              That the employer had actual knowledge of the loss pursuant 
 
         to Iowa Code section 85B.14 and Iowa Code section 85.23.
 
         
 
              That the date of injury pursuant to Iowa Code section 85B.8 
 
         is the retirement date of the claimant of December 1, 1984 and 
 
         since this action was commenced on November 7, 1985 it was timely 
 
         filed to satisfy the limitation requirements of Iowa Code section 
 
         85B.14 and Iowa Code section 85.26(l).
 
         
 
              That claimant sustained an occupational disease as defined 
 
         by Chapter 85A, Code of Iowa, which arose out of and in the 
 

 
         
 
         
 
         
 
         KOSTER V. JOHN DEERE DUBUQUE WORKS OF DEERE & COMPANY
 
         Page  17
 
         
 
         
 
         course of his employment with the employer.
 
         
 
              That the disease was caused by his employment with the 
 
         employer.
 
         
 
              That the employer had actual knowledge of the occupational 
 
         disease as required by Iowa Code section 85.23 and Iowa Code 
 
         section 85A.18.
 
         
 
              That claimant timely filed this action within two years of 
 
         when he discovered he sustained an occupational disease as 
 
         required by Iowa Code sections 85A.16, 85A.18 and 85.26(l) when 
 
         his counsel filed the petition for him on November 7, 1985.
 
         
 
              That claimant did not sustain the burden of proof by a 
 
         preponderance of the evidence that he was disabled by the 
 
         silicosis as defined in Iowa Code section 85A.4, Iowa Code 
 
         section 85A.5, paragraph 1, and Iowa Code section 85A.12.
 
         
 
              That since claimant did sustain the burden of proof that he 
 
         sustained an occupational disease as defined by Chapter 85A of 
 
         the Code of Iowa, he is entitled to medical benefits as provided 
 
         by Iowa Code section 85A.5, paragraph 2.
 
         
 
                                      ORDER
 
         
 
              THEREFORE IT IS ORDERED:
 
         
 

 
         
 
         
 
         
 
         KOSTER V. JOHN DEERE DUBUQUE WORKS OF DEERE & COMPANY
 
         Page  18
 
         
 
         
 
              That defendant pay to claimant seventy point five-six 
 
         (70.56) (40.32 x 175) weeks of compensation at the rate of three 
 
         hundred forty-five and 30/100 dollars ($345.30) per week in the 
 
         total amount of twenty-four thousand three hundred sixty-four and 
 
         37/100 dollars ($24,364.37) commencing on December 1, 1984 for 
 
         occupational hearing loss.
 
         
 
              That these benefits be paid in a lump sum.
 
         
 
              That interest will accrue under Iowa Code section 85.30.
 
         
 
              That defendant will pay the costs of this action pursuant to 
 
         Division of Industrial Services Rule 343-4.33.
 
         
 
              That defendant remain liable for any future medical expenses 
 
         due to silicosis or the sensorineural hearing loss.
 
         
 
              That defendant file claim activity report as requested by 
 
         this agency pursuant to Division of Industrial Services Rule 
 
         343-3.1.
 
         
 
         
 
                  Signed and filed this 30th day of April, 1987.
 
         
 
         
 
         
 
         
 
         
 
         
 
         
 
                                          WALTER R. McMANUS, JR.
 
                                          DEPUTY INDUSTRIAL COMMISSIONER
 
         
 
         Copies To:
 
         
 
         Mr. Michael J. Coyle
 
         Attorney at Law
 
         200 Security Building
 
         Dubuque, Iowa 52001
 
         
 
         Mr. Leo A. McCarthy
 
         Attorney at Law
 
         222 Fischer Building
 
         P. 0. Box 239
 
         Dubuque, Iowa 52004-0239
 
         
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                            1108.40; 1108.50; 1402.20 
 
                                            1402.30; 1402.40; 1402.50 
 
                                            1402.60; 1803; 2208 2401; 
 
                                            2402
 
                                            Filed April 30, 1987
 
                                            WALTER R. McMANUS, JR.
 
         
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         _________________________________________________________________
 
         
 
         BENJAMIN J. KOSTER,
 
         
 
              Claimant,
 
                                                    FILE NO. 806022
 
         VS.
 
                                                 A R B I T R A T I 0 N
 
         JOHN DEERE DUBUQUE WORKS OF
 
         DEERE & COMPANY,
 
                                                    D E C I S I 0 N
 
         
 
              Employer,
 
              Self-Insured,
 
              Defendant.
 
         _________________________________________________________________
 
         
 
         1108.50; 1402.20; 1402.30; 1402.40; 1402.60; 1803; 2208
 
         
 
              Employee exposed to high noise levels for 26 years, 18 of 
 
         which were in the foundry (and some of those before hearing 
 
         protection was provided) all above 80 dBA and several years above 
 
         the standards in 85B.5, found to have an occupational hearing 
 
         loss that arose out of and in the course of employment.  Awarded 
 
         70.56 weeks of disability benefits in the amount of $24,364.37 
 
         based on lowest audiogram after notice as provided in 85B.9.
 
         
 
         1402.50; 2401
 
         
 
              Employer held to have actual notice from their own 
 
         audiograms under 85.23 and 85B.14.
 
         
 
         2401
 
         
 
              Date of injury was held to be retirement date pursuant to 
 
         85B.8 and the action was held to be timely brought under 85. 
 
         26(l), 85B.14 and 85B.8. Employer's contention that employee was 
 
         required to commence action within 2 years of when he discovered 
 
         the hearing loss was rejected.  Employer's contention that 
 
         various transfers within the plant to different blue collar jobs 
 
         constituted a transfer under 85B.8 was rejected.  Employer's 
 
         contention that the date mandatory hearing protection was 
 
         provided was the date of injury was rejected because it was not 
 
         one of the dates enumerated in 85B.8.
 
         
 
                                                
 
                                                         
 
         1108.40; 1402.20; 1402.30; 1402.40; 1402.60; 1803
 
         
 
              Two medical doctors (1) pulmonary specialist and (2) 
 
         employer's medical director testified claimant had silicosis from 
 
         years of exposure to silica in the foundry before breathing 
 
         protection hoods were provided and this evidence was not 
 
         controverted.  Claimant held to have sustained an occupational 
 
         disease under 85A.8 arising out of and in the course of 
 
         employment.  Medical benefits awarded but no disability benefits 
 
         because claimant worked right up to the day of his voluntary 
 
         retirement and did not prove disablement as required by 85A.4.
 
         
 
         1402.50; 2401
 
         
 
              Discovery rule held to apply to occupational disease cases 
 
         pursuant to 85.23, 85A.16, and 85A.18. Written notice under 85A. 
 
         18 not required when employer had actual knowledge and employer 
 
         was held to have actual knowledge from x-rays and employees 
 
         medical records.  Also claimant gave written notice within 90 
 
         days of when he "discovered" the disease by filing of petition.
 
         
 
         2402
 
         
 
              Claimant held to have timely commenced action pursuant to 
 
         85. 26(l) and 85A.16 by the filing of petition within two years 
 
         of the date he "discovered" the occupational disease.