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                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            EVERETT L. JEWELL,            :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :         File No. 810008
 
            C.R.S.T., INC.,               :
 
                                          :      A R B I T R A T I O N
 
                 Employer,                :
 
                                          :         D E C I S I O N
 
            and                           :
 
                                          :
 
            LIBERTY MUTUAL INSURANCE      :
 
            COMPANY,                      :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ____________________________________________________________
 
            
 
                                   introduction
 
            
 
                 This is a proceeding in arbitration brought by Everett 
 
            L. Jewell, claimant, against Cedar Rapids Steel Transport, 
 
            a/k/a C.R.S.T., Inc., employer, and Liberty Mutual Insurance 
 
            Company, insurance carrier, defendants, for benefits as the 
 
            result of an injury that occurred on November 6, 1985.  A 
 
            hearing was held in Davenport, Iowa on September 18, 1990 
 
            and the case was fully submitted at the close of the 
 
            hearing.  Claimant was represented by Mark A. Tarnow.  
 
            Defendants were represented by Greg A. Egbers.
 
            
 
                 The record consists of the testimony of Everett L. 
 
            Jewell, claimant; William Bailey, former terminal manager; 
 
            and, joint exhibits A through K.
 
            
 
                                   stipulations
 
            
 
                 The parties stipulated to the following matters:
 
            
 
                 That an employer-employee relationship existed between 
 
            claimant and employer at the time of the injury;
 
            
 
                 That claimant sustained an injury on November 6, 1985 
 
            which arose out of and in the course of employment with 
 
            employer;
 
            
 
                 That the injury was the cause of temporary disability; 
 
            that claimant was paid temporary disability benefits from 
 
            November 7, 1985 to February 26, 1987; and, that temporary 
 
            disability benefits are no longer a disputed matter in this 
 
            case at this time;
 
            
 
                 That the type of permanent disability, if the injury is 
 
            found to be a cause of permanent disability, is industrial 
 

 
            
 
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            disability to the body as a whole;
 
            
 
                 That the commencement date for permanent disability 
 
            benefits, in the event such benefits are awarded, is 
 
            February 27, 1987;
 
            
 
                 That the rate of compensation, in the event of an 
 
            award, is $331.70 per week;
 
            
 
                 That the fees charged for medical services or supplies 
 
            rendered are fair and reasonable;
 
            
 
                 That defendants seek no credit for employee 
 
            nonoccupational group health benefits paid to claimant prior 
 
            to hearing;
 
            
 
                 That defendants seek no credit for workers' 
 
            compensation permanent disability benefits paid to claimant 
 
            prior to hearing; and,
 
            
 
                 That there are no bifurcated claims.
 
            
 
                                      issues
 
            
 
                 The parties submitted the following issues for 
 
            determination:
 
            
 
                 Whether the injury was the cause of permanent 
 
            disability;
 
            
 
                 Whether claimant is entitled to permanent disability 
 
            benefits, and, if so, the extent of benefits to which he is 
 
            entitled;
 
            
 
                 Whether claimant is entitled to certain medical 
 
            expenses attached to the prehearing report and future 
 
            physical rehabilitation and physical therapy expenses.
 
            
 
                                 findings of fact
 
            
 
               causal connection--entitlement--permanent disability
 
            
 
                 Claimant, born July 16, 1940, was 45 years old at the 
 
            time of the injury and 50 years old at the time of the 
 
            hearing.  He graduated from high school in 1958 and served 
 
            in the United States Army from 1958 to 1963.  His civilian 
 
            employments include maintenance person, production line 
 
            worker, truck driver, and machine operator.  Claimant 
 
            attended semi-truck driving school and graduated in November 
 
            of 1983 as the top graduate in his class.  He started to 
 
            work for employer on January 19, 1984 and continued to work 
 
            there until the time of his injury on November 6, 1985.  He 
 
            was terminated by employer in February of 1987.  Claimant's 
 
            primary job for employer was over-the-road truck driver.  
 
            For a portion of his time with employer, he was chosen to be 
 
            a trainer and evaluator of new drivers.  His selection for 
 
            this position was considered to be a mark of excellence for 
 
            him.
 

 
            
 
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                 Claimant was injured on November 6, 1985 in a truck 
 
            accident when he swerved to miss an automobile, lost control 
 
            and the right side of his body struck the doghouse.  
 
            Claimant testified that a brief case also hit him on the 
 
            back of the head.  Claimant was taken to Jane Lamb Health 
 
            Center at Clinton, Iowa and received emergency treatment by 
 
            John M. O'Shea, M.D.  Claimant was hospitalized from 
 
            November 6, 1985 to November 9, 1985.  His chief complaint 
 
            was lower back pain on the right side and right thigh pain.  
 
            X-rays of the skull and the cervical, thoracic and lumbar 
 
            spine were normal.  Claimant was admitted for bed rest, pain 
 
            control, moist heat and evaluation.  Dr. O'Shea diagnosed 
 
            acute lumbosacral back strain (exhibit A, pages 1-4).
 
            
 
                 On returning home to Martinsville, Illinois, claimant 
 
            saw Ramana M. Reddy, M.D., an orthopaedic surgeon, in nearby 
 
            Terra Haute, Indiana for soreness in the right lumbar region 
 
            which radiated down to the right thigh region.  Dr. Reddy 
 
            found a satisfactory lumbosacral spine range of motion and 
 
            no neurological deficit.  He did comment that x-rays brought 
 
            by the patient showed avulsion fracture of the transverse 
 
            process of L-2 and L-3.  On November 14, 1985, Dr. Reddy 
 
            said claimant could work if he felt like it.  On December 
 
            10, 1985, at the follow-up examination, he took claimant off 
 
            work for six weeks because of needle-like symptoms in the 
 
            right lower back (exhibit B, pages 1 and 2).
 
            
 
                 Dr. Reddy ordered a lumbar myelogram on January 28, 
 
            1986 which showed no evidence of intrinsic or extrinsic 
 
            abnormalities in the contrast column.  The radiologist 
 
            reported, "Normal Amipaque lumbar myelogram."  (Exhibit B, 
 
            page 3)  Lumbar spine x-rays on the same day, January 28, 
 
            1986, reported, "There are nonrecent fractures of the 
 
            transverse processes on the right of L2 and L3 some mild 
 
            distraction of the fracture fragments."  (Exhibit B, page 4)  
 
            On February 3, 1986, Dr. Reddy referred claimant to Oscar G. 
 
            Limcaco, M.D., a neurosurgeon (exhibit B, page 9).  Dr. 
 
            Limcaco became claimant's main treating physician from 
 
            January of 1986 until May 29, 1987.
 
            
 
                 A bone scan performed on January 31, 1986 said that the 
 
            cause of the back pain was not apparent.  The examiner saw 
 
            no activity in the lumbar vertebral bodies (exhibit C, page 
 
            2).  An EMG was performed on February 2, 1986, but the 
 
            results are not discernable because of the faint copy of the 
 
            report introduced into evidence (exhibit C, page 3).  A 
 
            second amipaque myelogram on February 4, 1986 showed no 
 
            encroachment upon the lumbar subarachnoid space and no 
 
            intradural abnormality was evidenced.  A water soluble 
 
            contrast enhanced CT scan on the same date was reported as 
 
            essentially normal (exhibit C, pages 4 and 5).  Dr. Limcaco 
 
            referred claimant to Henry Feuer, M.D., a neurosurgeon, on 
 
            April 1, 1986 for a second opinion (exhibit C, page 6).
 
            
 
                 Dr. Feuer said claimant feels the right leg was 
 
            slightly weak, but the doctor could not note any specific 
 
            muscle weakness.  He said the right L2 and L3 transverse 
 

 
            
 
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            process fractures appeared to be healing.  He diagnosed a 
 
            proximal lumbosacral plexus lesion as the cause of the 
 
            continued paresthesias of the right lower extremity and the 
 
            reduced ankle reflex.  He said very little could be done for 
 
            the problem, but recommended that claimant start increasing 
 
            his activities around the house with the goal of returning 
 
            to work in the near future (exhibit D, pages 1 and 2).  Dr. 
 
            Feuer saw claimant again on September 11, 1986 and said his 
 
            examination was really quite unremarkable.  He stated there 
 
            was no indication for any surgery.  The doctor stated that 
 
            the bulges seen on various studies were of no significance 
 
            in regard to his problem.  Since claimant had not returned 
 
            to work, he recommended a formal back rehabilitation program 
 
            (exhibit D, page 3).
 
            
 
                 On June 4, 1986, Dr. Limcaco recommended that claimant 
 
            try driving a truck with a view to returning to work in two 
 
            weeks with restrictions of no loading and unloading.  On 
 
            June 19, 1986, claimant reported to the doctor that he bent 
 
            over to pick up a screwdriver and experienced pain down his 
 
            left leg that felt like he was hit with a sledge hammer.  
 
            Examination of his back and spine was unremarkable.  Dr. 
 
            Limcaco recommended an MRI scan at St. Louis (exhibit C, 
 
            pages 7 and 8).
 
            
 
                 Dr. Limcaco referred claimant to see Robert E. Kuhlman, 
 
            M.D., an orthopaedic surgeon in St. Louis.  On July 21, 
 
            1986, Dr. Kuhlman reported that there was evidence of an old 
 
            evulsion of the transverse process along the right side of 
 
            L-2 and L-3.  The doctor said, "This appears to be an old 
 
            process as the margins about the transverse process are 
 
            smooth and there is some sclerosis about them."  (Exhibit E, 
 
            page 2)  Dr. Kuhlman concluded his report as follows:
 
            
 
                 CONCLUSIONS:  This man has objective findings of 
 
                 old transverse process fractures along the right 
 
                 side of L-2 and L-3.  Whether they are related to 
 
                 the incident of 11-6-85 or not is difficult to 
 
                 establish.  However, their appearance on 1-6-86 
 
                 and the interim change would suggest that they 
 
                 probably predated that 11-6-85 incident.  A 
 
                 definite statement would require review of films 
 
                 made in November of 1985.  Multiple x-rays were 
 
                 submitted with the man from Union Hospital of 
 
                 Indiana which included two normal myelograms, one 
 
                 dated 1-6-86 and the other 2-4-86.  A CT scan 
 
                 dated 1-31-86 appeared normal as far as the spine 
 
                 is concerned and generally speaking all the rest 
 
                 of the body components appear normal as near as I 
 
                 can tell.  There was diffuse bulging of all the 
 
                 lower segments of the spine seen on the lateral 
 
                 view of the myelogram consistent with some degree 
 
                 of mild degenerative disc disease.  All of these 
 
                 conditions, in my opinion, predated the alleged 
 
                 incident.
 
            
 
            (Exhibit E, page 2)
 
            
 

 
            
 
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                 On August 11, 1986, Dr. Kuhlman stated:
 
            
 
                 This man likely had no objective findings of 
 
                 residual injury as a result of the 11-6-85 
 
                 incident.  Orthopaedically there are no findings 
 
                 which I can see to prevent him from returning to 
 
                 work.  Whether he will be able to do so and what 
 
                 his course will be if he attempts to is difficult 
 
                 to predict.  In my opinion the man has no residual 
 
                 disability as a result of the 11-6-85 incident 
 
                 except the possible presence of transverse process 
 
                 fractures.  These have now resolved to the point 
 
                 where it is impossible to be sure if they occurred 
 
                 on 11-6-85 or previously.  The man has about 20% 
 
                 permanent partial disability of the man as a whole 
 
                 in connection with those fractures.
 
            
 
            (Exhibit E, page 3)
 
            
 
                 On July 31, 1986, claimant reported another 
 
            exacerbation of his back to Dr. Limcaco and the doctor 
 
            arranged for the MRI scan (exhibit C, page 9).  The MRI scan 
 
            was performed at Washington University School of Medicine in 
 
            St. Louis, Missouri on August 4, 1986.  The scan results 
 
            were as follows:
 
            
 
     
 
            
 
            
 
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            OPINION:
 
            
 
                 1.  Degenerative disease of L3-L4, L4-5, and 
 
                 L5-S1; that at the level of L4-5 is most 
 
                 prominent.
 
            
 
                 2.  Minimal bulging of L4-L5 disc.
 
            
 
                 3.  Mild narrowing of right neural formanen [sic] 
 
                 of L4-5, by disc bulging and a spur.
 
            
 
            (Exhibit C, page 11)
 
            
 
                 On August 22, 1986, Dr. Limcaco reported:
 
            
 
                 8-22-86....Mr. Jewell was informed about the 
 
                 results of his MRI scan.  The patient was favoring 
 
                 exploratory surgery which we do not feel is 
 
                 advisable with the minimum findings that he has.  
 
                 I told the patient that we have little to offer 
 
                 here except supportive management and was advised 
 
                 to go back to Dr. Feuer to see what further 
 
                 recommendations he has to offer.
 
            
 
            (Exhibit C, pages 9 and 12)
 
            
 
                 As previously mentioned, Dr. Feuer reported on 
 
            September 11, 1986 that his examination was quite 
 
            unremarkable, claimant had a good range of motion of the 
 
            lumbar spine, and there was no indication for any surgery.  
 
            He felt the bulges were insignificant (exhibit D, page 3).
 
            
 
                 On September 29, 1986, Dr. Limcaco said he had very 
 
            little to offer at that point except to send claimant to a 
 
            formal back rehabilitation program as Dr. Feuer had 
 
            suggested (exhibit C, page 13).  On October 7, 1986, Dr. 
 
            Limcaco reported that claimant did not want to go to a 
 
            formal back rehabilitation program at that time.  Instead, 
 
            he wanted to go back to work.  Conditioning exercises were 
 
            prescribed for four weeks at the conclusion of which Dr. 
 
            Limcaco said he would not hesitate to release claimant to go 
 
            back to work (exhibit C, page 15).  On November 3, 1986, Dr. 
 
            Limcaco released claimant to return to work as of November 
 
            10, 1986 (exhibit C, pages 14 and 15).  Claimant testified 
 
            at the hearing that in June of 1986 he personally asked the 
 
            doctor to release him to return to work, even though he was 
 
            not getting any better.  Claimant said he was willing to 
 
            work with the pain.
 
            
 
                 Claimant testified that employer told him they had no 
 
            jobs for him within Dr. Limcaco's restrictions and Dr. 
 
            Limcaco would not back off from the restrictions.  Dr. 
 
            Limcaco reported on November 17, 1986 that the employer 
 
            would not hire claimant with the limitation that he was 
 
            unable to load and unload any trailers.  The doctor refused 
 
            to lift the restriction because he felt claimant's situation 
 
            was a high-risk situation for another six months to a year.
 
            
 

 
            
 
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                 Claimant testified that he called several people in an 
 
            attempt to be reemployed by employer.  He called a former 
 
            supervisor, he called the manager of the company and he 
 
            called the insurance adjustor.
 
            
 
                 William Bailey, a former terminal manager, testified 
 
            that he received instructions from employer to call claimant 
 
            to return to work as a second driver, in which capacity it 
 
            would not be necessary to load or unload the vehicle.  
 
            Bailey said he received these instructions from the company 
 
            manager.  At this point, there is a conflict of testimony 
 
            about what Bailey said and what claimant said.
 
            
 
                 Claimant testified that he had never heard of Bailey 
 
            and did not know that Bailey was his boss.  Claimant 
 
            testified that Bailey told him to report to Schererville, 
 
            Indiana (near Chicago) in four hours to pick up a load.  
 
            Claimant said it took six hours to make this trip.  Bailey 
 
            denied that he told claimant to be there in four hours and 
 
            he denied that claimant was to pick up a load.  Bailey said 
 
            he told claimant to return for a two-day training session 
 
            that all drivers must receive before driving again after 
 
            they have been off work.  Claimant testified that Bailey 
 
            told the job would pay 4 1/2 cents per mile.  Bailey 
 
            testified that he told claimant the job would pay 25 1/2 
 
            cents per mile which he had to split with the other driver 
 
            which left claimant with 12 3/4 cents per mile.
 
            
 
                 Claimant testified that he talked to the insurance 
 
            adjustor and learned that he could receive temporary partial 
 
            disability benefits in the amount of 66 2/3 percent of the 
 
            difference between his former pay and the offered pay and 
 
            that he called Bailey on January 28, 1987 and said he would 
 
            accept the job and that he was ready to come back to work.  
 
            Claimant also testified that he had received a letter from 
 
            adjustor Walljasper dated January 21, 1987 which was a 
 
            30-day notice prior to cutting off his workers' compensation 
 
            benefits because a doctor had released claimant to return to 
 
            work and the company had a job that he could do.
 
            
 
                 Claimant called employer on February 4, 1987 and stated 
 
            he needed to do some things around the house and when his 
 
            workers' compensation benefits ended on February 20, 1987, 
 
            he would be willing to return to work.  Both claimant and 
 
            Bailey agreed that Bailey talked to claimant later in the 
 
            day and told claimant he was terminated as of January 15, 
 
            1987 for refusing to return to work at that time (exhibit I, 
 
            pages 2 and 4).  There were a number of other conflicts 
 
            between the testimony of claimant and the testimony of 
 
            Bailey which are not necessary to mention at this time.
 
            
 
                 Dr. Limcaco reported on February 16, 1987 that claimant 
 
            reported he stepped off his back door and developed a 
 
            knife-like pain sensation in his lower thoracic area on the 
 
            left and started having pain in the left side of his neck 
 
            and headaches (exhibit C, pages 15 and 18).  On December 8, 
 
            1986 and again on February 11, 1987, Dr. Limcaco refused to 
 
            give an impairment rating to the insurance carrier (exhibit 
 

 
            
 
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            C, pages 16 and 17).  On February 16, 1987, Dr. Limcaco said 
 
            that the left neck and left thoracic problems were unrelated 
 
            to his back pain (exhibit C, pages 15 and 18).  A cervical 
 
            spine x-ray on February 25, 1987 indicated claimant had a 
 
            cervical muscle spasm.  The thoracic spine x-ray on that 
 
            date showed degenerative changes (exhibit C, page 19).  On 
 
            April 6, 1987, Dr. Limcaco said that he could not rule out 
 
            that claimant's thoracic problems were not related to the 
 
            incident of November 6, 1985.  He recommended a Mayo Clinic 
 
            evaluation for claimant (exhibit C, page 20).  On May 29, 
 
            1987, Dr. Limcaco had changed his mind and said that the 
 
            thoracic problems were directly related to the truck 
 
            accident because claimant had absolutely no problem whatever 
 
            prior to that accident (exhibit C, pages 21 and 22).  This 
 
            was the last time that claimant saw Dr. Limcaco.
 
            
 
                 Claimant was examined by Louis Dean, M.D., an 
 
            orthopaedic surgeon at Loma Linda, California, and he 
 
            reported on February 1, 1988 that claimant's chief 
 
            complaints were lower back and right lower extremity.  He 
 
            reviewed all of claimant's records in some detail.  He 
 
            stated:
 
            
 
                 In any event, it does not appear as though the 
 
                 patient is a surgical candidate.  I question the 
 
                 validity of the intensity of the patient's 
 
                 complaints, though I do believe he has some 
 
                 residuals.  The fractures of the transverse 
 
                 process, whether they occurred as a result of the 
 
                 November 6, 1985 injury or pre-existed, has [sic] 
 
                 no bearing on the patient's symptomatology.  There 
 
                 is no associated disability as the result of the 
 
                 transverse process fractures.
 
            
 
            (Exhibit F, page 7)
 
            
 
            Dr. Dean said that claimant's condition is permanent and 
 
            stationary.  Claimant should avoid repetitive heavy lifting 
 
            and repetitive bending and stooping.  He said future 
 
            treatment might require periodic use of non-steroidal 
 
            anti-inflammatory agents and non-narcotic analgesics 
 
            (exhibit F, page 8).
 
            
 
                 An extremely detailed physical examination was 
 
            performed by Dale Schutte, M.D., and he reported on April 5, 
 
            1988.  Dr. Schutte determined that claimant had a low back 
 
            syndrome.  He said claimant does not have any radicular 
 
            signs or symptoms of severe instability.  He said claimant 
 
            might benefit from some therapy and job retraining, but 
 
            otherwise, his function appears to be limited mainly by his 
 
            pain, which as mentioned, is nonradicular and somewhat 
 
            variable in its intensity and duration (exhibit G, page 4).
 
            
 
                 Robert W. Hartung, M.D., a radiologist, stated that it 
 
            was impossible to tell with certainty whether the fracture 
 
            of the transverse processes predated the accident or were 
 
            caused by the accident.  However, his final conclusion was 
 
            that the lack of secondary signs of a current fracture on 
 

 
            
 
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            the first films on November 6, 1985 caused him to prefer the 
 
            position that the transverse fractures were a preexisting 
 
            lesion (exhibit H, page 1).
 
            
 
                 Claimant was examined by Richard A. Roski, M.D., a 
 
            neurosurgeon, on August 29, 1990.  Dr. Roski pointed out 
 
            that, after myelograms, CT scans and an MRI scan, no 
 
            objective findings were made other than the fracture of the 
 
            transverse process at L3.  He said the problem is that all 
 
            of the complaints are subjective.  The doctor suggested that 
 
            claimant avoid repetitive bending and lifting in view of his 
 
            present complaints.  He said claimant has been doing 
 
            part-time truck driving and he saw no reason why he should 
 
            not continue to do that profession.  Dr. Roski assigned a 
 
            five percent permanent impairment of the whole person based 
 
            upon the AMA Guides to the Evaluation of Permanent 
 
            Impairment (exhibit J, pages 1 and 2).
 
            
 
                 Claimant was examined on August 28, 1990 by Charles T. 
 
            Cassel, M.D., an orthopaedic surgeon.  Dr. Cassel concluded 
 
            that claimant has probable mechanical low back pain with 
 
            mild irritation of the S1 nerve root.  He said review of the 
 
            myelogram and CT scan does not show significant stenosis or 
 
            bulging disc that would require surgical decompression.  He 
 
            recommended conservative treatment of a low back brace or 
 
            possibly a transcutaneous nerve stimulator for pain control.  
 
            He recommended exercises and said claimant would have 
 
            difficulty doing repetitive lifting or bending for prolonged 
 
            periods of time or riding in a truck for long periods of 
 
            time.  On September 17, 1990, Dr. Cassel calculated an 
 
            impairment rating of 15 percent.  Ten percent of this rating 
 
            is for the transverse process fractures at L2 and L3.  Two 
 
            percent was for loss of range of motion of the lumbar spine.  
 
            Three percent of the impairment rating was for degenerative 
 
            disc disease without a significant bulge.  Dr. Cassel did 
 
            not say whether any of these impairments were caused by this 
 
            injury or whether they were not caused by this injury.  His 
 
            report on September 17, 1990 is silent on the point of 
 
            causal connection (exhibit K, pages 3 and 4).
 
            
 
                 Claimant testified that, after he moved to California 
 
            in July of 1987, he worked as a plumber for approximately 
 
            three months.  He was paid by the job and worked 
 
            approximately five to eight hours per day.  He stated that 
 
            he was terminated from this job because he was not turning 
 
            out enough work.
 
            
 
                 Claimant took another job as a trucker hauling steel 
 
            from California to Arizona.  Again, he was paid by the job.  
 
            He was terminated because he could do only one trip a day 
 
            whereas the employer wanted him to do two trips a day.  
 
            Claimant performed these two jobs in either late 1987 or 
 
            early 1988.  He worked only a few days in 1988 and he did 
 
            not work at all in 1989.
 
            
 
                 Claimant testified that he was supported by his wife 
 
            during this period of time.  His next employment occurred in 
 

 
            
 
            Page  10
 
            
 
            
 
            
 
            
 
            
 
            
 
            May of 1990 driving trucks again with double trailers.  
 
            Since this job involved hooking up the trailers and loading 
 
            and unloading, he was able to do it only until July of 1990, 
 
            a period of approximately two months.  Claimant's employment 
 
            at the time of the hearing was for a steel company.  The 
 
            base pay is $4.75 per hour, but he is able to work only a 
 
            few hours a day and possibly 15, 20 or 25 hours per week.  
 
            If he worked 40 hours per week, he would make $190.00, but 
 
            he is not able to work a full week.  Claimant stated that 
 
            his gross wage for employer was $538.00 per week.
 
            
 
                 Claimant said that he has been restricted in a number 
 
            of his activities, such as bowling, playing baseball, 
 
            hunting, dancing and playing tennis.  Claimant stated that 
 
            he applied for Social Security supplemental income benefits, 
 
            but was denied these benefits.
 
            
 
                 A worker 45 years of age who sustains a permanent 
 
            impairment suffers a more severe industrial disability than 
 
            a younger worker just beginning in the employment market or 
 
            an older worker preparing to retire from the employment 
 
            market.  McCoy v. Donaldson Co., file numbers 782670 and 
 
            805200 (App. Decn., April 28, 1989); Walton v. B & H Tank 
 
            Corp., II Iowa Industrial Commissioner Report 426 (1981); 
 
            Becke v. Turner-Busch, Inc., Thirty-fourth Biennial Report 
 
            of the Industrial Commissioner 34 (1979).
 
            
 
                 Claimant has the benefit of a high school education 
 
            which is the norm for most Americans in order to obtain a 
 
            job in the employment market.  In addition, he has performed 
 
            truck driving, production work, maintenance work and a 
 
            number of other kinds of employment.  Claimant is versatile 
 
            and appears to be an achiever type of person since he was 
 
            the top graduate in his semi-truck driving school and 
 
            because employer chose him to be a trainer-evaluator for new 
 
            drivers.  Claimant is an impressive person, being six foot, 
 
            eight inches tall and weighing approximately 260 pounds.  He 
 
            has a deep tan.
 
            
 
                 Claimant did not sustain the burden of proof by a 
 
            preponderance of the evidence that the injury of November 6, 
 
            1985 was the cause of the fractured transverse processes of 
 
            L2 and L3.  The very first radiologist reported to Dr. Reddy 
 
            that these fractures were non-recent (exhibit B, page 4).  
 
            Dr. Kuhlman said the fracture of L3 transverse process was 
 
            old (exhibit E, pages 2 and 3).  Dr. Dean said that these 
 
            fractures, whenever they occurred, had no bearing on 
 
            claimant's symptomatology.  Furthermore, there was no 
 
            associated disability as a result of the transverse process 
 
            fractures (exhibit F, page 7).  Dr. Hartung, the radiologist 
 
            retained for the express purpose of determining whether the 
 
            transverse process fractures were caused by this injury, 
 
            stated that it was impossible to say for sure, but he 
 
            preferred to believe that, of the two choices, they were 
 
            preexisting this injury (exhibit H, page 1).  Dr. Roski said 
 
            it was impossible to determine when they occurred (exhibit 
 

 
            
 
            Page  11
 
            
 
            
 
            
 
            
 
            
 
            
 
            J).
 
            
 
                 Therefore, none of the many physicians established that 
 
            they were caused by this injury.  Most of the doctors said 
 
            they were not caused by this injury and, if the doctor 
 
            cannot tell for sure, then that doctor's evidence does not 
 
            support the conclusion that the fractures were caused by 
 
            this injury.
 
            
 
                 The evidence is inconclusive as to whether the incident 
 
            when claimant exacerbated his pain on June 19, 1986 picking 
 
            up a screwdriver or the incident on February 16, 1987 when 
 
            he stepped off his back door and developed a knife-like 
 
            sensation in his lower thoracic area were sequelae of the 
 
            November 6, 1985 injury or whether they were separate, 
 
            intervening incidents not related to this injury.  Dr. 
 
            Limcaco treated both incidents as if they were related to 
 
            this injury, but never stated they were causally connected 
 
            to it specifically, nor did any of the many doctors 
 
            attribute any permanent impairment or restrictions to either 
 
            of these incidents.
 
            
 
                 Although claimant saw at least ten doctors, eight of 
 
            whom were either neurosurgeons or orthopaedic surgeons, only 
 
            two of the doctors gave claimant a permanent impairment 
 
            rating for this injury.  Dr. Kuhlman, although he said 
 
            claimant sustained a 20 percent permanent impairment for the 
 
            fracture of the transverse processes, also said that these 
 
            fractures were not caused by this injury.  Furthermore, Dr. 
 
            Kuhlman said that claimant had no residual impairment 
 
            otherwise from this injury.  Dr. Kuhlman did not impose any 
 
            permanent restrictions.
 
            
 
                 Dr. Feuer did not award a permanent impairment rating 
 
            or impose any permanent restrictions.  Dr. Limcaco, although 
 
            he gave impairment ratings for the patients on which he had 
 
            performed surgery, nevertheless refused to give claimant a 
 
            permanent impairment rating even though he was claimant's 
 
            long-term treating physician and apparently he was capable 
 
            of doing so if he chose to do so.  Dr. Dean did not assess 
 
            any permanent impairment, nor did Dr. Schutte.
 
            
 
                 Dr. Roski did determine that claimant had a 5 percent 
 
            permanent impairment to the body as a whole.  Dr. Cassel 
 
            determined that claimant had a 15 percent permanent 
 
            impairment to the body as a whole, but when 10 percent is 
 
            subtracted for the fracture of the transverse processes and 
 
            3 percent is subtracted for degenerative disc disease, which 
 
            the doctor did not say was caused by this injury, that 
 
            leaves a 2 percent impairment rating for loss of range of 
 
            motion to the lumbar spine for this injury.
 
            
 
                 No doctor has imposed severe restrictions.  Dr. Limcaco 
 
            said claimant should not load and unload trucks, but there 
 
            are a number of truck driving jobs which do not include 
 
            loading and unloading.  Dr. Dean said claimant should avoid 
 
            repetitive heavy lifting, bending and sitting.
 
            
 

 
            
 
            Page  12
 
            
 
            
 
            
 
            
 
            
 
            
 
                 Dr. Roski recommended against repetitive bending and 
 
            lifting.  Dr. Cassel said that claimant should not 
 
            repetitively bend, lift or ride for prolonged periods of 
 
            time.  Dr. Roski clearly summarized claimant's situation 
 
            accurately when he pointed out that numerous objective 
 
            tests, two myelograms, two CT scans, countless x-rays and an 
 
            MRI produced no substantive evidence of objective findings 
 
            of permanent impairment or injury.  Claimant's bulges and 
 
            degenerative disc disease were determined to be mild and 
 
            essentially within normal limits, according to Dr. Kuhlman 
 
            (exhibit E, pages 1-3).
 
            
 
                 Pain that is not substantiated by physical findings is 
 
            not a substitute for impairment.  Waller v. Chamberlain 
 
            Mfg., II Iowa Industrial Commissioner Report 419, 425 
 
            (1981).
 
            
 
                 Although claimant has had difficulty keeping employment 
 
            since he was released to return to work, there is no 
 
            supporting statement from any medical doctor that the cause 
 
            is due to his injury or any disability flowing from it.  
 
            Claimant was encouraged to increase his activities and try 
 
            to return to work by several of the physicians in the course 
 
            of his treatment.  Others recommended that he consider 
 
            physical rehabilitation if he claims he is unable to work.
 
            
 
                 Claimant's sincerity about wanting to return to work is 
 
            impugned by the fact that he did not take advantage of the 
 
            opportunity when it was offered to him on January 15, 1987.  
 
            Employer's sincerity about providing employment for claimant 
 
            is impugned by the fact that they did not accept him back to 
 
            work within his restrictions when he was released by Dr. 
 
            Limcaco and again when they made his termination retroactive 
 
            to January 15, 1987 after he had agreed to return to work on 
 
            February 20, 1987.
 
            
 
                 None of the physicians recommended surgery, even when 
 
            claimant volunteered for exploratory surgery.  On the 
 
            contrary, most of the surgeons recommended against surgery 
 
            because of claimant's minimal objective symptomatology.
 
            
 
                 There is a common misconception that industrial 
 
            disability is greater than functional impairment and is an 
 
            add-on; something to be examined on top of functional 
 
            impairment, but such is not the case.  Industrial disability 
 
            can be the same as, more than or less than functional 
 
            impairment.  Birmingham v. Firestone Tire & Rubber Co., II 
 
            Iowa Industrial Commissioner Report 39 (App. Decn., 1981).
 
            
 
                 Wherefore, based upon the foregoing evidence, and all 
 
            of the factors used to determine industrial disability and 
 
            relying upon agency expertise pursuant to Iowa 
 
            Administrative Procedure Act 17A.14(5), it is determined 
 
            that claimant has sustained a ten percent industrial 
 
            disability to the body as a whole caused by the injury of 
 
            November 6, 1985 and is entitled to 50 weeks of permanent 
 
            partial disability benefits.
 
            
 

 
            
 
            Page  13
 
            
 
            
 
            
 
            
 
            
 
            
 
                 causal connection--entitlement--medical benefits
 
            
 
                 The parties stipulated that the fees charged by Dr. 
 
            Dean and Dr. Cassel were reasonable.  Defendants refused to 
 
            stipulate that the fees were for treatment or that they were 
 
            caused by this injury.  The issue is whether claimant is 
 
            entitled to payment of these medical expenses under Iowa 
 
            Code section 85.27.
 
            
 
     
 
            
 
            
 
            Page  14
 
            
 
            
 
            
 
            
 
            
 
            
 
            Dr. Dean's charges are as follows:
 
            
 
                 Initial comprehensive examination        $  800.00
 
                 Records review                              100.00
 
                 Preparation of report                       175.00
 
                 X-ray of the lumbar spine                    92.50
 
                 Total                                    $1,167.50
 
            
 
            To this, Dr. Dean has added on another sheet of paper 
 
            $116.75 as 10 percent penalty charges, making his total 
 
            balance due at this time $1,284.25.  These bills were not 
 
            introduced as exhibits, but were attached to the prehearing 
 
            report.
 
            
 
                 Dr. Cassel's charges are as follows:
 
            
 
                 Initial comprehensive history and
 
                   examination and office visit           $  133.50
 
                 X-ray of the lumbar spine, 2 views           60.00
 
                 Examination and report for attorney         250.00
 
                 Total                                    $  443.50
 
            
 
            To this, Dr. Cassel added a charge of $100.00 for the 
 
            impairment rating dated September 17, 1990, making his total 
 
            charges $543.50.
 
            
 
                 An examination of Dr. Dean's charges and his reports 
 
            and Dr. Cassel's charges and his reports clearly indicates 
 
            that these charges were for evaluation and not treatment.  
 
            Therefore, these charges cannot be allowed as reasonable 
 
            medical treatment under the provisions of Iowa Code section 
 
            85.27.
 
            
 
                 Whether these charges for either doctor are allowable 
 
            under Iowa Code section 85.39 is not addressed by this 
 
            decision because that issue was not designated as a hearing 
 
            issue on the hearing assignment order.  Presswood v. Iowa 
 
            Beef Processors, Inc., file number 735442 (App. Decn., 
 
            November 14, 1986).
 
            
 
                 Claimant contends he is entitled to reimbursement for 
 
            nonprescription pain relievers in the amount of $30.00 per 
 
            month from and after February 26, 1987 (43 months to date) 
 
            and in the future.  Claimant testified that he estimates he 
 
            spends about $20.00 or $30.00 per month for over-the-counter 
 
            pain relievers.  However, no itemized bills were presented 
 
            to support claimant's testimony.  The burden of proof is on 
 
            the claimant to prove his entitlement to medical expenses.  
 
            The customary method of doing this is by presenting itemized 
 
            bills which have been paid by claimant.  In the absence of 
 
            itemized bills or even an itemized list of the medications 
 
            or some accounting for the amount claimed, it is not 
 
            possible to make an accurate award of benefits.  Therefore, 
 
            in the absence of any proof of the amount expended for these 
 
            medications and what they were, no award can be made.
 
            
 
                 Claimant also asserts a claim for future physical 
 

 
            
 
            Page  15
 
            
 
            
 
            
 
            
 
            
 
            
 
            rehabilitation and physical therapy expenses after the 
 
            hearing.
 
            
 
                 It is true that during the course of claimant's 
 
            treatment, a number of the doctors did recommend physical 
 
            rehabilitation.  At one point, claimant refused to attend 
 
            physical rehabilitation.  According to Dr. Limcaco, claimant 
 
            indicated he did not want to go to the Mayo Clinic pain 
 
            center.  At the hearing, claimant testified that he wants to 
 
            receive this physical rehabilitation training at this time.  
 
            Claimant's request for physical rehabilitation at this time 
 
            is not specific enough, nor is there a current 
 
            recommendation or prescription from an authorized treating 
 
            physician.  The proper method to obtain physical 
 
            rehabilitation would be to present claimant to the 
 
            authorized treating physician to make a determination of 
 
            whether additional physical rehabilitation is in order at 
 
            this time.  Defendants contend that the time for beneficial 
 
            physical rehabilitation has passed and that it would no 
 
            longer be effective.  In any event, the answer to this 
 
            question properly rests in the hands of the authorized 
 
            treating physician.  Claimant has not presented sufficient 
 
            evidence to determine whether future physical rehabilitation 
 
            is in order at this time.
 
            
 
                                conclusions of law
 
            
 
                 Wherefore, based upon the evidence presented and the 
 
            foregoing and following principals, these conclusions of law 
 
            are made.
 
            
 
                 That the injury of November 6, 1985 is the cause of 
 
            permanent disability.  Bodish v. Fischer, Inc., 257 Iowa 
 
            516, 133 N.W.2d 867 (1965); Lindahl v. L. O. Boggs, 236 Iowa 
 
            296, 18 N.W.2d 607 (1945).
 
            
 
                 That claimant has sustained an industrial disability of 
 
            ten percent to the body as a whole.  Diederich v. Tri-City 
 
            Ry. Co., 219 Iowa 587, 593, 258 N.W.2d 899, 902 (1935); 
 
            Olson v. Goodyear Serv. Stores, 255 Iowa 1112, 125 N.W.2d 
 
            251 (1963).
 
            
 
                 That claimant is entitled to 50 weeks of permanent 
 
            partial disability benefits.  Iowa Code section 85.34(2)(u).
 
            
 
                 That claimant did not sustain the burden of proof by a 
 
            preponderance of the evidence that he is entitled to recover 
 
            the charges of Dr. Dean in the amount of $1,284.25 or the 
 
            charges of Dr. Cassel in the amount of $543.50, or that 
 
            claimant is entitled to reimbursement for nonprescription 
 
            pain relievers purchased over the counter with out-of-pocket 
 
            funds.
 
            
 
                 That claimant has not sustained the burden of proof by 
 
            a preponderance of the evidence that he is entitled to an 
 
            order for immediate physical rehabilitation or physical 
 
            therapy at this time.
 
            
 

 
            
 
            Page  16
 
            
 
            
 
            
 
            
 
            
 
            
 
                                      order
 
            
 
                 THEREFORE, IT IS ORDERED:
 
            
 
                 That defendants pay to claimant fifty (50) weeks of 
 
            permanent partial disability benefits at the rate of three 
 
            hundred thirty-one and 70/100 dollars ($331.70) per week in 
 
            the total amount of sixteen thousand five hundred 
 
            eighty-five and 00/100 dollars ($16,585.00) payable 
 
            commencing on February 27, 1987 as stipulated by the 
 
            parties.
 
            
 
                 That these benefits are to be paid in a lump sum.
 
            
 
                 That interest will accrue pursuant to Iowa Code section 
 
            85.30.
 
            
 
                 That the costs of this action are charged to defendants 
 
            pursuant to Division of Industrial Services Rule 343-4.33.
 
            
 
                 That defendants file claim activity reports as 
 
            requested by this agency pursuant to Division of Industrial 
 
            Services Rule 343-3.1.
 
            
 
                 Signed and filed this ______ day of ____________, 1990.
 
            
 
                 
 
            
 
                 
 
                 
 
                                          ______________________________
 
                                          WALTER R. McMANUS, JR.
 
                                          DEPUTY INDUSTRIAL COMMISSIONER
 

 
            
 
            Page  17
 
            
 
            
 
            
 
            
 
            
 
            
 
            
 
            Copies To:
 
            
 
            Mr. Mark A. Tarnow
 
            Attorney at Law
 
            400 Black Hawk Federal Building
 
            P.O. Box 4300
 
            Rock Island, Illinois  61204
 
            
 
            Mr. Greg A. Egbers
 
            Attorney at Law
 
            600 Union Arcade Building
 
            111 East Third Street
 
            Davenport, Iowa  52801
 
            
 
            
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                               5-1401, 5-1402.30, 5-1803
 
                                               5-2501, 5-2502, 5-2700
 
                                               Filed October 1, 1990
 
                                               WALTER R. McMANUS, JR.
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            EVERETT L. JEWELL,            :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :         File No. 810008
 
            C.R.S.T., INC.,               :
 
                                          :      A R B I T R A T I O N
 
                 Employer,                :
 
                                          :         D E C I S I O N
 
            and                           :
 
                                          :
 
            LIBERTY MUTUAL INSURANCE      :
 
            COMPANY,                      :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ____________________________________________________________
 
            
 
            5-1401, 5-1402.30, 5-1803
 
            Truck driver, who injured his back in an accident, failed to 
 
            prove any objective evidence of injury after seeing 10 
 
            doctors (mostly neurosurgeons and orthopaedic surgeons), a 
 
            bone scan, two myelograms, two CT scans, an MRI and numerous 
 
            x-rays.  He volunteered for exploratory surgery, but was 
 
            turned down.  Eventually he acquired two impairment ratings, 
 
            one for five percent and one for two percent, and 
 
            restrictions of no repetitive lifting, bending or stooping, 
 
            and no loading and unloading trucks for at least a year.  
 
            Claimant was age 45, high school education, and no medical 
 
            reason was shown why he could not work even though he 
 
            claimed he was severely limited in what he could do.  
 
            Claimant awarded 10 percent industrial disability.
 
            
 
            5-2501, 5-2502, 5-2700
 
            Claimant denied two large medical bills because they were 
 
            determined to be evaluations rather than treatment.  Section 
 
            85.39 was not designated as an issue on the hearing 
 
            assignment order.  Claimant denied nonprescription 
 
            medications which he testified cost him $20 or $30 per week 
 
            because he did not supply any itemized bills or an itemized 
 
            list.  Claimant denied an order for further physical therapy 
 
            or physical rehabilitation because there was no evidence it 
 
            was currently recommended by any of the doctors; this matter 
 
            was left to the discretion of the currently authorized 
 
            treating physician.
 
            
 
 
            
 
 
 
 
 
               
 
 
 
                   BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         SARAH SMITH,
 
         
 
              Claimant,
 
         
 
         VS.                                         File No. 810107
 
         
 
         JASPER COUNTY CARE FACILITY,             A R B I T R A T I O N
 
         
 
              Employer,                              D E C I S I O N
 
         
 
         and
 
         
 
         NORTHWESTERN NATIONAL INS. CO.,
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         
 
                                   INTRODUCTION
 
         
 
              This is a proceeding in arbitration brought by Sarah Smith 
 
         against Jasper County Care Facility, her former employer, and 
 
         Northwestern National Insurance Company, its insurance carrier.  
 
         The case was consolidated for hearing with file number 810108 and 
 
         was heard and fully submitted on June 8, 1988.  The record in 
 
         this proceeding consists of testimony from Sarah Smith, Patty 
 
         Harper and Floyd Gardner.  The record also contains exhibits 1 
 
         through 8.
 
         
 
                                      ISSUES
 
         
 
              The parties stipulated that the claimant sustained an injury 
 
         which arose out of and in the course of her employment on 
 
         November 6, 1984 and that claimant is entitled to one day of 
 
         healing period for the time she was off work as a result of the 
 
         injury.  Claimant claims an entitlement to permanent partial 
 
         disability compensation as a result of the injuries sustained on 
 
         November 6, 1984, which entitlement is disputed by defendants.
 
         
 
                               SUMMARY OF EVIDENCE
 
         
 
              The following is a summary of evidence presented in this 
 
         case.  Of all the evidence received at the hearing, only that 
 
         considered most pertinent to this decision is discussed.  
 
         Conclusions about what the evidence showed are inevitable with 
 
         any summarization.  The conclusions in the following summary 
 
         should be considered to be preliminary findings of fact.
 
         
 
              Sarah Smith testified that she was struck on the left side 
 
         of the head by a patient.  She was seen at the Skiff Memorial 
 
         Hospital Emergency Room in Newton, Iowa where the nurse noted
 
         that claimant complained of ringing in her ears.  Claimant 
 
         testified that she has continued to experience ringing and loss 
 
         of hearing in her ears, particularly in the left ear.
 
         
 
              Claimant was examined and evaluated by Walter B. Eidbo, 
 

 
         
 
         
 
         
 
         SMITH V. JASPER COUNTY CARE FACILITY
 
         Page   2
 
         
 
         
 
         M.D., for the complaints regarding her hearing, and other 
 
         complaints which will not be discussed in this decision.  Dr. 
 
         Eidbo's notes of September 2, 1986 indicate that an.audiogram 
 
         was taken and the records received into evidence show . an 
 
         undated audiogram report.  Since the results are part of Dr. 
 
         Eidbo's records and an audiogram is referred to in those 
 
         records, the audiogram results are determined to be those of 
 
         September 2, 1986.  The tests results show a moderate hearing 
 
         loss in claimant's left ear and a mild loss in the right ear.
 
         
 
              In a report dated November 13, 1986 (exhibit 1A, page 8), 
 
         Dr. Eidbo indicates that claimant has a definite bilateral 
 
         hearing loss with a 5%-10% loss in the right ear and a 10%-20% 
 
         loss in the left ear.  On the second page of the report, Dr. 
 
         Eidbo states:
 
         
 
              She has a hearing loss of the left ear which very probably 
 
              was related to the injuries she describes in which she was 
 
              struck in the left ear by a patient.  She does, however, 
 
              also have some hearing loss in the other ear.
 
         
 
              In a subsequent report dated December 10, 1986, Dr. Eidbo 
 
         states that claimant has a hearing loss of the left ear which is 
 
         equivalent to a four percent permanent disability of the total 
 
         body.  Dr. Eidbo's report of May 18, 1988 acknowledges the 
 
         existence of some discrepancies in the medical history regarding 
 
         claimant's back, but it identifies no discrepancies regarding 
 
         claimant's hearing loss and the November, 1984 injury.
 
         
 
                           APPLICABLE LAW AND ANALYSIS
 
         
 
              The claimant has the burden of proving by a preponderance of 
 
         the evidence that the injury of November 6, 1984 is casually 
 
         related to the disability on which she now bases her claim.  
 
         Bodish v. Fischer, Inc., 257 Iowa 516, 133 N.W.2d 867 (1965). 
 
         Lindahl v. L.O. Boggs, 236 Iowa 296, 18 N.W.2d 607 (1945).  A 
 
         possibility is insufficient; a probability is necessary.  Burt 
 
         v. John Deere Waterloo Tractor Works, 247 Iowa 691, 73 N.W.2d 732 
 
         (1955).  The question of casual connection is essentially within 
 
         the domain of expert testimony.  Bradshaw v. Iowa Methodist 
 
         Hospital, 251 Iowa 375, 101 N.W.2d 167 (1960).
 
         
 
              However, expert medical evidence must be considered with all 
 
         other evidence introduced bearing on the casual connection.  
 
         Burt, 247 Iowa 691, 73 N.W.2d 732.  The opinion of experts need 
 
         not be couched in definite, positive or unequivocal language.  
 
         Sondag v. Ferris Hardware, 220 N.W.2d 903 (Iowa 1974).  However 
 
         the expert opinion may be accepted or rejected, in whole or in 
 
         part, by the trier of fact.  Id. at 907.  Further, the weight to 
 
         be given to such an opinion is for the finder of fact, and that 
 

 
         
 
         
 
         
 
         SMITH V. JASPER COUNTY CARE FACILITY
 
         Page   3
 
         
 
         
 
         may be affected by the completeness of the premise given the 
 
         expert and other surrounding circumstances.  Bodish, 257 Iowa 
 
         516, 133 N.W.2d 867.  See also Musselman v. Central Telephone 
 
         Co., 261 Iowa 352, 154 N.W.2d 128 (1967).
 
         
 
              The evidence from Dr. Eidbo casually connects the hearing 
 
         loss in claimant's left ear to the November 6, 1984 injury.  
 
         Claimant places the onset of her hearing problems at the time of 
 
         that November 6, 1984 injury.  There is no contradicting direct 
 
         evidence in the record.  There is evidence, however, that 
 
         claimant has some hearing loss in her right ear, which apparently 
 
         was uninjured in that incident.  The audiograms in evidence show 
 
         only a mild hearing loss in claimant's right ear.  Some hearing 
 
         loss normally comes about as part of the aging process 
 
         experienced by most individuals.  Dr. Eidbo's report of November 
 
         13, 1986 is accepted as being correct for purposes of determining 
 
         claimant's traumatically induced hearing loss.  He found the left 
 
         ear to have a 10%-20% hearing loss and the right ear to have a 
 
         5%-10%.hearing loss.  Claimant's right ear is determined by the 
 
         undersigned to merely show the hearing loss that results from 
 
         normal aging, while the left is determined to show a combination 
 
         of both normal aging and trauma.  It is therefore determined that 
 
         claimant has a ten percent loss of hearing in her left ear which 
 
         was traumatically induced by the November 6, 1984 injury.  The 
 
         remaining portion of the hearing loss in her left ear and all of 
 
         the hearing loss in her right ear is not shown to have been a 
 
         result of that November 6, 1984 incident.
 
         
 
              The right of a worker to receive compensation for injuries 
 
         sustained which arose out of and in the course of employment is 
 
         statutory.  The statute conferring this right can also fix .the 
 
         amount of compensation to be paid for different specific 
 
         injuries, and the employee is not entitled to compensation except 
 
         as provided by the statute.  Soukup v. Shores Co., 222 Iowa 272, 
 
         268 N.W. 598 (1936).
 
         
 
              Since the hearing loss is determined to have resulted from a 
 
         single incident of trauma, rather than long-term exposure to high 
 
         noise levels, the compensation is to be determined under the 
 
         provisions of Code section 85.34(2)(r).  Ten percent of 50 weeks 
 
         is five weeks.  It is therefore determined that claimant is 
 
         entitled to receive five weeks of compensation for permanent 
 
         partial disability at the stipulated rate payable commencing 
 
         November 8, 1984.
 
                                 FINDINGS OF FACT
 
         
 
              1.  On November 6, 1984, Sarah Smith was a resident of the 
 
         state of Iowa employed by the Jasper County Care Facility in the 
 
         state of Iowa.
 
         
 
              2.  Claimant was injured on November 6, 1984 when she was 
 
         struck on the left side of the head by a resident at the care 
 
         facility.
 
         
 
              3.  Following the injury, claimant was medically incapable 
 
         of performing work in employment substantially similar to that 
 
         she performed at the time of injury from November 6, 1984 until 
 
         November 8, 1984 when she returned to work.
 
         
 

 
         
 
         
 
         
 
         SMITH V. JASPER COUNTY CARE FACILITY
 
         Page   4
 
         
 
         
 
              4.  Sarah Smith has a ten percent permanent loss of hearing 
 
         in her left ear which was traumatically induced in that November 
 
         6, 1984 incident.
 
         
 
                                CONCLUSIONS OF LAW
 
         
 
              1.  This agency has jurisdiction of the subject matter of 
 
         this proceeding and its parties.
 
         
 
              2.  Claimant is entitled to receive five weeks of 
 
         compensation for permanent partial disability under the 
 
         provisions of Code section 85.34(2)(r) representing the ten 
 
         percent loss of hearing in claimant's left ear that was 
 
         proximately caused by the injury she sustained on November 6, 
 
         1984.
 
         
 
                                      ORDER
 
         
 
              IT IS THEREFORE ORDERED that defendants pay claimant 
 
         one-seventh (1/7) week of compensation for healing period at the 
 
         stipulated rate of one hundred forty-four and 62/100 dollars 
 
         ($144.62) per week payable commencing November 7, 1984.
 
         
 
              IT IS FURTHER ORDERED that defendants pay claimant five (5) 
 
         weeks of compensation for permanent partial disability at the 
 
         stipulated rate of one hundred forty-four and 62/100 dollars 
 
         ($144.62) per week payable commencing November 8, 1984.  The 
 
         entire amount thereof is past due and owing and shall be paid in 
 
         a lump sum together with interest pursuant to Code section 85.30 
 
         from the date each payment came due until the date of actual 
 
         payment.
 
         
 
              IT IS FURTHER ORDERED that defendants pay the costs of this 
 
         action pursuant to Division of Industrial Services Rule 343-4.33 
 
         including reimbursement of claimant's counsel for the cost of a 
 
         medical report from Dr. Eidbo in the amount of one hundred and 
 
         00/100 dollars ($100.00).
 
         
 
              IT IS FURTHER ORDERED that defendants file Claim Activity 
 
         Reports as requested by this agency pursuant to Division of 
 
         Industrial Services Rule 343-3.1
 
         
 
         
 
         
 
              Signed and filed this 15th day of March, 1989.
 
         
 
         
 
         
 
         
 
         
 
         
 
                                            MICHAEL G. TRIER
 
                                            DEPUTY INDUSTRIAL 
 
                                            COMMISSIONER
 
         
 
         
 
         Copies To:
 
         
 
         Mr. Thomas M. Werner
 

 
         
 
         
 
         
 
         SMITH V. JASPER COUNTY CARE FACILITY
 
         Page   5
 
         
 
         
 
         Attorney at Law
 
         1150 Polk Blvd.
 
         Des Moines, Iowa  50311
 
         
 
         Mr. William P. Scherle
 
         Attorney at Law
 
         803 Fleming Building
 
         Des Moines, Iowa 50309
 
         
 
         
 
         
 
 
         
 
 
 
 
 
 
 
 
 
 
 
                                            1108.50, 1402.40, 1803, 2208
 
                                            Filed March 15, 1989
 
                                            MICHAEL G. TRIER
 
         
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         SARAH SMITH,                       :
 
                                            :
 
                Claimant,                   :
 
                                            :
 
          VS.                                         File No. 810107
 
                                            :
 
          JASPER COUNTY CARE FACILITY,      :    A R B I T R A T I O N
 
                                            :
 
                Employer,                   :    D E C I S I O N
 
                                            :
 
          and                               :
 
                                            :
 
          NORTHWESTERN NATIONAL INS. CO., :
 
          
 
                Insurance Carrier,
 
                Defendants.
 
         
 
         
 
         1108.50, 1402.40
 
         
 
              Claimant's testimony placing the onset of her hearing loss 
 
         at the time she was struck on the side of the head by a patient 
 
         and uncontradicted testimony from a physician were sufficient to 
 
         establish that claimant's hearing disability was proximately 
 
         caused by the incident.
 
         
 
         1803, 2208
 
         
 
              Claimant exhibited a hearing loss in both ears, with 
 
         approximately twice as much loss in the injured ear as was found 
 
         in the uninjured ear.  The uninjured ear was used as a baseline 
 
         for determining the amount of permanent hearing loss which 
 
         resulted from the traumatic incident.  Claimant had exhibited a 
 
         20% loss in the injured left ear and a 10% loss in the uninjured 
 
         right ear.  She was awarded 10% under Code section 85.34(2)(r).
 
         
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
 
         
 
 
 
 
 
 
 
 
 
 
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         SARAH SMITH,
 
              Claimant,
 
         vs.                                          File No. 810108
 
         JASPER COUNTY CARE FACILITY,            A R B I T R A T I O N
 
              Employer,             :
 
                                    :               D E C I S I O N
 
          and                       :
 
                                    :
 
          NORTHWESTERN NATIONAL INS. CO.,
 
                                    :
 
               Insurance Carrier,   :
 
               Defendants.          :
 
         
 
         
 
                                   INTRODUCTION
 
                                        
 
              This is a proceeding in arbitration brought by Sarah Smith 
 
         against Jasper County Care Facility, her former employer, and 
 
         Northwestern National Insurance Company, its insurance carrier.  
 
         The case was heard and fully submitted at Des Moines, Iowa on 
 
         June 8, 1988.  The record in the proceeding consists of testimony 
 
         from Sarah Smith, Patty Harper and Floyd Gardner.  The record 
 
         also contains exhibits 1 through 8..
 
         
 
                                      ISSUES
 
                                        
 
              The issues presented by the parties at the time of hearing 
 
         are: Whether claimant sustained an injury on January 15, 1985 
 
         which arose,.out of and in the course of her employment; 
 
         determination of claimant's entitlement to compensation for 
 
         healing period; determination of claimant's entitlement to 
 
         compensation for permanent partial disability; and, whether the 
 
         claim is barred by Code section 85.23.
 
         
 
                               SUMMARY OF EVIDENCE
 
                                        
 
              The following is a summary of evidence presented in this 
 
         case.of all the evidence received at the hearing, only that 
 
         considered most pertinent to this decision is discussed.  
 
         Conclusions about what the evidence showed are inevitable with 
 
         any summarization.  The conclusions in the following summary 
 
         should be considered to be preliminary findings of fact.
 
         
 
              Sarah Smith is a 56-year-old divorced lady who lives at 
 
         Newton, Iowa.  Smith's formal education is limited to the eighth 
 
         grade.  Her primary career has been in the field of nurse's aide 
 
         work in nursing homes.  Smith was hired at the Jasper
 
         
 
         
 
         
 
         SMITH V. JASPER COUNTY CARE FACILITY 
 
         Page 2
 
         
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         County Care Facility in 1972 as a nurse's aide and in 1976 became 
 
         a medication aide.  Smith's work involved distributing 
 
         medications to patients.  Her work also included standard nurse's 
 
         aide work of bathing, feeding, dressing, lifting and handling 
 
         patients.  Claimant stated that all the residents at the Jasper 
 
         County Care Facility are elderly, mentally retarded or otherwise 
 
         disabled.
 
         
 
              Claimant testified that she had not sustained any work 
 
         injuries prior to commencing employment at the Jasper County Care 
 
         Facility, but that she had sustained a number of injuries at the 
 
         facility prior to November 6, 1984.  Claimant stated that she did 
 
         not file a workers' compensation claim for any of those prior 
 
         injuries.  She could not recall if any of the prior injuries had 
 
         required her to be off work for more than approximately two days.  
 
         She stated that none of them had caused any permanent problems 
 
         for her.  Claimant stated that she was injured when struck on the 
 
         side of her head by a patient on November 6, 1984.
 
         
 
              Claimant testified that, on January 15, 1985, she injured 
 
         her back lifting a patient from a wheelchair to the toilet.  
 
         Claimant stated that she experienced a "pop" in her lower left 
 
         back and right shoulder, but that it was not particularly painful 
 
         at the time.  She stated that it felt as if something slipped out 
 
         of place.  Claimant stated that pain developed in a week or so 
 
         and that it worsened to where she could not straighten up after 
 
         bending over.  Claimant stated that she went to her doctor, H. M. 
 
         Perryman, D.O., approximately one month after the incident.  
 
         Claimant denied experiencing any intervening injury.  She denied 
 
         ever experiencing prior pain or problems as severe as the spasms 
 
         and pain that she experienced in early 1985.
 
         
 
              Claimant testified that she informed her supervisor about 
 
         one month later by telling her secretary, Debbie Moeller, that 
 
         she was going to the doctor for a work-related injury to her back 
 
         which was getting worse.  Claimant stated that she was given time 
 
         off to go to the doctor.
 
         
 
              Claimant testified that Dr. Perryman provided a 10-pound 
 
         weight restriction and that absence reports were filled out in 
 
         February, 1985 when she was absent from work under Dr. Perryman's 
 
         treatment.  Claimant stated that she was off work 11 days and was 
 
         treated with a cortisone shot, heat and an adjustment.  Claimant 
 
         stated that she did not keep her supervisors advised of her 
 
         progress and did not recall any further conversations regarding 
 
         the injury.  Claimant testified that she did discuss returning to 
 
         work with her supervisor Lorraine Vonk and that she did in fact 
 
         return to work on March 10, 1985 at her medication aide job.  
 
         Claimant testified that she did not discuss what had happened on 
 
         January 15, 1985 with any of her supervisors.
 
         
 
         
 
         
 
         SMITH V. JASPER COUNTY CARE FACILITY
 
         Page 3
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
         
 
              Claimant denied telling Walter B. Eidbo, M.D., that she 
 
         sustained two separate injuries in 1985.  Claimant stated that 
 
         the incident report from February, 1985 reported only a little 
 
         slap on the side of her head which did not aggravate any of her 
 
         other problems.  Claimant stated that when she did return to work 
 
         on March 10, 1985, she could perform.-.ell the functions of a 
 
         medication aide adequately, but had problems with bending and 
 
         reaching and that her right arm would not go above her shoulder.  
 
         At hearing, claimant denied having any prior right arm problems.  
 
         Claimant stated that any extra heavy lifting caused pain to shoot 
 
         up and down her spine and that activities such as lifting 
 
         patients or even staying on her feet and walking caused pain in 
 
         her low back.  Claimant testified that she did not complain of 
 
         her symptoms to her supervisors because she wanted to carry her 
 
         share of the load and also because she was afraid that they might 
 
         fire her.
 
         
 
              Claimant left the Jasper County Care Facility in July under 
 
         circumstances wherein she was accused of being physically and 
 
         verbally abusive to patients.. Although claimant disputed the 
 
         allegation, she resigned from the position.
 
         
 
              Claimant testified that she applied for work at several 
 
         places during the following months, but did not apply for any 
 
         nurse's aide work until January, 1988 because she was unhappy 
 
         with the work.  Claimant related that the only income she has had 
 
         since leaving the facility is a distribution from IPERS, proceeds 
 
         from the sale of a car and some revenues from babysitting.
 
         
 
              Claimant testified that she continues to have pain in her 
 
         shoulder joint and is still unable to lift her arm very far above 
 
         her head.  Claimant stated that she has constant back pain in her 
 
         lower back which at times runs down her left leg.  Claimant 
 
         stated that her back has worsened since 1985.
 
         
 
              Claimant stated that early in 1984 she had muscle spasms and 
 
         that she would go to the doctor when she was unable to stand the 
 
         pain.  Claimant stated that the pain would come on at night and 
 
         that she was not sure of what caused it.
 
         
 
              At the Jasper County Care Facility, claimant took an annual 
 
         physical examination.  The examination conducted May 4, 1984 
 
         showed claimant to have tenderness in the lumbar area of her 
 
         spine (exhibit 5, page 87).  The next report dated May 8, 1985 
 
         indicates that she exhibited normal function of her back (exhibit 
 
         5, page 88).
 
         
 
              Patty Harper, claimant's daughter, stated that she resides 
 
         with the claimant.  Harper stated that she recalled claimant 
 
         coming home in January, 1985 and stating that her back had 
 
         "popped," but that she snapped out of it and went back to work.  
 
         Harper stated that, in the following three or four weeks, 
 
         claimant's back worsened to the extent that she had to help 
 
         claimant dress.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
         
 
         
 
         SMITH V. JASPER COUNTY CARE FACILITY 
 
         Page 4
 
         
 
         
 
         Harper recalled prior incidents when claimant had been injured, 
 
         but did not recall claimant ever missing more than a day or two 
 
         from work for any of them.  Harper stated that, after the lifting 
 
         incident of 1985, claimant has been unable to do as much as she 
 
         did prior to that time and that the witness has had to assist 
 
         claimant with day-to-day activities.  Harper stated that 
 
         claimant's back and shoulder-have gotten worse, but that she 
 
         knows of no intervening incidents.
 
         
 
              Floyd Gardner, the administrator of the Jasper County Care 
 
         Facility from December 22, 1983 until November 1, 1987, testified 
 
         that all injuries at the facility were to be reported and that 
 
         there is no incident or absence report for January 15, 1985 
 
         involving claimant.  Gardner stated that the facility has a 
 
         policy that a person cannot work if they have a weight 
 
         restriction and that claimant would not have been allowed to work 
 
         if limitations were in force.  Gardner had no reason to argue, 
 
         however, with claimant's testimony regarding a telephone call 
 
         between claimant and Debbie Moeller wherein claimant stated that 
 
         she told Moeller' she was going to the doctor for a work-related 
 
         problem.  Gardner testified that he had discussed the matter with 
 
         Moeller and Moeller had no recall of such a telephone 
 
         conversation.  Gardner stated that he first became aware of 
 
         claimant's alleged January 15, 1985 injury two or three months 
 
         after her employment had been terminated.
 
         
 
              Exhibit 1B contains records from Dr. Perryman, but the 
 
         records are largely illegible.  On.page 16, the dates of the left 
 
         column 1985 entries were cut off when the records were 
 
         photocopied.  An examination of all three entries bearing the 
 
         date of 1985 on the left-hand side of page 16 fails to show any 
 
         discernable reference to claimant's low back, although there are 
 
         writings which appear to.contain the word "shoulder."
 
         
 
              Claimant was evaluated by Walter B. Eidbo, M.D., in late 
 
         1986.  He originally felt that claimant had experienced a strain 
 
         of her cervical, dorsal and lumbar spine (exhibit IC, page 8). In 
 
         a report dated December 10, 1986, Dr. Eidbo indicated that 
 
         claimant had an impairment of her spine which was equivalent to 
 
         five percent of the body as a whole and an impairment of her 
 
         right shoulder which was equivalent to a three percent impairment 
 
         of the body as a whole.  He then deducted three percent of the 
 
         body as a whole for nonwork-related conditions leaving a five 
 
         percent permanent impairment rating of the body as a whole.  
 
         Subsequently, on May 18, 1988, Dr. Eidbo recognized discrepancies 
 
         in claimant's medical history and stated that he was unable to 
 
         determine a cause for the impairments which he had found (exhibit 
 
         1A, page 12).
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
                           APPLICABLE LAW AND ANALYSIS
 
                                        
 
              Claimant has the burden of proving by a preponderance of the 
 
         evidence that he received an injury on January 15, 1985 which 
 
         arose out of and in the course of her employment.  McDowell
 
         
 
         
 
         
 
         SMITH V. JASPER COUNTY CARE FACILITY
 
         Page 5
 
         
 
         
 
         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 testified to an incident of injury on January 15, 
 
         1985 that occurred while handling a patient.  There were no 
 
         witnesses who corroborated claimant's testimony.  There are no 
 
         medical reports in evidence which were made at or about the time 
 
         of the incident wherein she gave that scenario as the source for 
 
         the onset of her symptoms.  When claimant had her physical 
 
         examination in 1984, she exhibited back complaints, yet in the 
 
         May, 1985 examination, her back was noted to be normal.  Claimant 
 
         did not miss any work for approximately a month following the 
 
         alleged incident, but then missed approximately ten days from 
 
         work.  She then returned to work and resumed the normal duties of 
 
         her employment.  She continued to perform those duties until her 
 
         employment was terminated.  None of these facts corroborate 
 
         claimant's claim of having suffered a substantial injury on 
 
         January 15, 1985.
 
         
 
              Claimant's testimony regarding having sustained an injury on 
 
         January 15, 1985 is not corroborated by any evidence in the 
 
         record, other than claimant's statements made to Dr. Eidbo in 
 
         late 1986 and whatever information was provided to Floyd Gardner 
 
         subsequent to July of 1985 when claimant left her employment at 
 
         the facility.  It is certainly possible that claimant could have 
 
         been injured in the manner she described.  Such an event would 
 
         not be highly unlikely in view of the nature of the work 
 
         performed at the facility.  On the other hand, claimant has the 
 
         burden of introducing evidence showing it to be more likely than 
 
         not that she was injured in the manner she described.  When 
 
         considering the appearance and demeanor of the witnesses who 
 
         testified at hearing and all the other evidence in the record, it 
 
         is determined that claimant has failed to prove, by a 
 
         preponderance of the evidence, that she was injured on January 
 
         15, 1985.
 
         
 
                                 FINDING OF FACT
 
                                        
 
              1.  Claimant has failed to introduce evidence showing it to 
 
         be more likely than not that she sustained any injury while 
 
         handling a patient on January 15, 1985.
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
                                CONCLUSIONS OF LAW
 
                                        
 
              1.  This agency has jurisdiction of the subject matter of 
 
         this proceeding and its parties.
 
         
 
         2    .   Claimant has failed to prove, by a preponderance of the 
 
         evidence, that she sustained an injury which arose out of and in 
 
         the course of her employment with Jasper Care Facility on January 
 
         15, 1985.
 
         
 
         
 
         
 
         SMITH V. JASPER COUNTY CARE FACILITY
 
         Page 6
 
         
 
         
 
                                      ORDER
 
                                        
 
              IT IS THEREFORE ORDERED that claimant take nothing from this 
 
         proceeding.
 
         
 
              IT IS FURTHER ORDERED that the costs of this action are 
 
         assessed against claimant pursuant to Division of Industrial 
 
         Services Rule 343-4.33.
 
         
 
              Signed and filed this 15th day of March, 1989.
 
         
 
         
 
         
 
         
 
         
 
         
 
                                         MICHAEL G. TRIER
 
                                         DEPUTY INDUSTRIAL COMMISSIONER
 
         
 
         Copies To:
 
         
 
         Mr. Thomas M. Werner
 
         Attorney at Law
 
         1150 Polk Blvd.
 
         Des Moines, Iowa  50311
 
         
 
         Mr. William D. Scherle
 
         Attorney at Law
 
         803 Fleming Building
 
         Des Moines, Iowa 50309
 
         
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
 
         
 
 
 
 
 
 
 
 
 
 
 
                                                 1402.20
 
                                                 Filed March 15, 1989
 
                                                 MICHAEL G. TRIER
 
         
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         SARAH SMITH,                    :
 
                                         :
 
               Claimant,                 :
 
                                         :
 
          VS.                            :       File No. 810108
 
                                         :
 
          JASPER COUNTY CARE FACILITY,   :       A R B I T R A T I O N
 
                                         :
 
               Employer,                 :       D E C I S I O N
 
                                         :
 
          and                            :
 
                                         :
 
          NORTHWESTERN NATIONAL INS. CO., :
 
                                         :
 
               Insurance Carrier,        :
 
               Defendants.               :
 
         
 
         
 
         
 
         1402.20
 
         
 
              Claimant's uncorroborated testimony concerning suffering an 
 
         injury which would have been in the nature of a strain was held 
 
         to be insufficient to carry the burden of proof wherein she did 
 
         not leave work for approximately a month after the incident and 
 
         then resumed work within two weeks thereafter and remained at 
 
         work until her employment was terminated for reasons unrelated to 
 
         the alleged injury.
 
         
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                      BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         DONALD LUEKEN,
 
         
 
              Claimant,
 
                                                    File No. 810114
 
         VS.
 
                                                      A P P E A L
 
         JOHN DEERE DUBUQUE WORKS
 
         OF DEERE & COMPANY,                        D E C I S I O N
 
         
 
              Employer,
 
              Self-Insured,
 
              Defendant.
 
         
 
         
 
         
 
                              STATEMENT OF THE CASE
 
         
 
              Defendant appeals and claimant cross-appeals from an 
 
         arbitration decision dismissing claimant's petition.
 
         
 
              The record on appeal consists of the transcript of the 
 
         arbitration proceeding and joint exhibits 1 through 19.  Both 
 
         parties filed briefs on appeal.
 
         
 
                                      ISSUE
 
         
 
              Defendant's issue on appeal is whether the deputy properly 
 
         dismissed claimant's petition as prematurely filed.  Claimant's 
 
         issues on cross-appeal are whether defendant is estopped from 
 
         asserting the statute of limitations, and whether the discovery 
 
         rule applies to his claim.
 
         
 
                              REVIEW OF THE EVIDENCE
 
         
 
              The arbitration decision adequately and accurately reflects 
 
         the pertinent evidence and it will not be totally reiterated 
 
         herein.
 
         
 
              Briefly stated, claimant began working for defendant in 
 
         1969.  On May 1, 1972, he began duties in an engine test 
 
         department, a position which exposed him to a noise level of 95 
 
         dBA.  He was laid off February 21, 1982.  He resumed work 
 
         November 1, 1982, as a mechanic.  On March 3, 1982, he began 
 
         operating a "super sucker" vacuum, with a noise exposure of 76 
 
         dBA.
 
         
 
              Joint exhibit 19 established that claimant has held 
 
         numerous job classifications with defendant and has been 
 
         transferred several times.  Noise level exposures in these 
 
         positions varied
 

 
         
 
         
 
         
 
         LUEKEN V. JOHN DEERE DUBUQUE WORKS OF DEERE & COMPANY
 
         Page   2
 
         
 
         
 
         from 69 dBA to 99 dBA.  Mervin McClenahan, M.D., stated that 
 
         noise level exposure as low as 82 dBA could cause hearing 
 
         loss.
 
         
 
              Claimant brought his hearing loss to the attention of 
 
         defendant's medical department in 1982.  He was advised by Dr. 
 
         McClenahan, on February 7, 1983, that he had a noise-induced, 
 
         work-related hearing loss.  In May of 1984, he was advised by 
 
         defendant's safety director that the statute of limitations 
 
         barred any claim for workers' compensation hearing loss 
 
         benefits.  In June of 1985, he re-inquired as to hearing loss 
 
         benefits, based on his exposure to the vacuum noise, but was 
 
         again told by the safety director that his claim was barred.  
 
         His most recent work assignment has a noise exposure of 78 dBA.  
 
         Claimant filed his original notice and petition on January 2, 
 
         1986.
 
         
 
                                APPLICABLE LAW
 
         
 
              Iowa Code section 85B.8 states:
 
         
 
                 Date of Occurrence.  A claim for occupational 
 
              hearing loss due to excessive noise levels may be filed 
 
              six months after separation from the employment in 
 
              which the employee was exposed to excessive noise 
 
              levels.  The date of the injury shall be the date of 
 
              occurrence of any one of the following events:
 
                 1.  Transfer from excessive noise level employment 
 
              by an employer.
 
                 2.  Retirement.
 
                 3.  Termination of the employer-employee 
 
              relationship.
 
         
 
                 The date of injury for a layoff which continues for 
 
              a period longer than one year shall be six months after 
 
              the date of the layoff.  However, the date of the 
 
              injury for any loss of hearing incurred prior to 
 
              January 1, 1981 shall not be earlier than the 
 
              occurrence of any one of the above events.
 
         
 
              Iowa Code section 85.26(l) states:
 
         
 
                 Limitation of actions.
 
                 1.  An original proceeding for benefits under this 
 
              chapter or chapter 85A, 85B, or 86, shall not be 
 
              maintained in any contested case unless the proceeding 
 
              is commenced within two years from the date of the 
 
              occurrence of the injury for which benefits are claimed 
 
              or, if weekly compensation benefits are paid under 
 
     
 
         
 
         
 
         
 
         
 
         LUEKEN V. JOHN DEERE DUBUQUE WORKS OF DEERE & COMPANY
 
         Page   3
 
         
 
         
 
              section 86.13, within three years from the date of the 
 
              last payment of weekly compensation benefits.
 
         
 
             Under In Re Declaratory Ruling of John Deere Dubuque Works 
 
         of Deere & Company, III Iowa Industrial Commissioner Report, 147 
 
         (1983), if a worker who has been exposed to permanent 
 
         sensorineural hearing loss is transferred from the area of 
 
         exposure to a non-exposure area, the statute of limitations under 
 
         Iowa Code section 85.26 begins to run from the date of such 
 
         transfer; if a worker is not transferred from the area of 
 
         exposure, the statute of limitations would not begin to run until 
 
         retirement or termination of the employment relationship.  The 
 
         first of these events to occur will "trigger" the running of the 
 
         statute of limitations.
 
         
 
              Excessive noise level means sound capable of producing 
 
         occupational hearing loss.  Section 85B.4(2), The Code.
 
         
 
              The noise levels set forth under section 85B.5, The Code, 
 
         are presumptive only.  They do not constitute minimum levels at 
 
         which a noise level will be viewed as excessive.  Muscatine 
 
         County v. Morrison, 409 N.W.2d 685 (Iowa 1987).
 
         
 
              Because the times and intensities under section 85B.5, The 
 
         Code, are not minimum levels for excessive noise, a change in 
 
         work assignment from an area where the noise level exceeds the 
 
         times and intensities set forth in section 85B.5, The Code, to an 
 
         area where said times and intensities are not exceeded would not 
 
         necessarily constitute a transfer under section 85B.8, The Code.  
 
         Daughetee v. John Deere Dubuque Works, File No. 779848, Appeal 
 
         Decision June 30, 1987.
 
         
 
                                     ANALYSIS
 
         
 
              Claimant alleges he has suffered a hearing loss arising out 
 
         of and in the course of his employment.  Iowa Code section 85B.8 
 
         states that a claim of hearing loss may be filed six months after 
 
         separation from the employment in which the employee was exposed 
 
         to excessive noise levels.  The date of the injury is the date of 
 
         the earliest of three events -- retirement, termination of the 
 
         employment relationship or transfer from the excessive noise 
 
         level employment by the employer.
 
         
 
              In the instant case, claimant is still employed by defendant 
 
         and, thus, neither retirement nor termination of the employment 
 
         relationship has occurred.  Defendant alleges that claimant was 
 
         transferred from excessive noise level employment by his employer 
 
         when he was laid off on February 21, 1982.  Defendant argues that 
 
         when claimant returned to work, his noise level exposure was 
 
         76-78 dBA, less than the 82 dBA which Dr. McClenahan indicated as 
 
         a minimum for the occurrence of hearing loss, and therefore a 
 
         transfer occurred.
 
         
 
              However, the record shows that claimant is subject to 
 
         reassignment to varying levels of noise exposure.  He has been so 
 
         transferred numerous times in the history of his employment with 
 
         defendant.  His layoff on February 21, 1982 and recall on 
 
         November 1, 1982 to work with noise exposure, albeit less noise 
 
         exposure, was not a transfer within the meaning of section 85B.8.  
 

 
         
 
         
 
         
 
         LUEKEN V. JOHN DEERE DUBUQUE WORKS OF DEERE & COMPANY
 
         Page   4
 
         
 
         
 
         Rather, such action was merely a reassignment within the same 
 
         work force, and is subject to change.
 
         
 
              Claimant works in an environment that continues to expose 
 
         him to potentially excessive noise levels.  He is subject to 
 
         transfer to even greater noise exposure at any time.  His action 
 
         is thus premature and it follows that it is not barred by the 
 
         statute of limitations under Iowa Code section 85.26.  In light 
 
         of this determination, all other issues on appeal are moot at 
 
         this time and will not be addressed.
 
         
 
                                 FINDINGS OF FACT
 
         
 
              1.  Claimant has been employed by the John Deere Dubuque 
 
         Works of Deere and Company for 23 years.
 
         
 
              2.  Throughout his employment with defendant, claimant has 
 
         held several positions and has been transferred numerous times.
 
         
 
              3.  Claimant's exposure to noise has varied according to the 
 
         positions he has held.
 
         
 
              4.  Claimant is currently exposed to a noise level of 78 
 
         dBA.
 
         
 
              5.  Claimant is currently subject to transfer to other 
 
         departments with excessive noise levels.
 
         
 
              6.  Claimant has not retired or terminated his employment.
 
         
 
              7.  Claimant has not been permanently transferred from 
 
         excessive noise level employment by the employer.
 
         
 
                                CONCLUSION OF LAW
 
         
 
              Claimant has failed to prove, by a preponderance of the 
 
         evidence, that six months has passed after one of the three 
 
         triggering events set forth in section 85B.8, The Code, and thus 
 
         this matter is not ripe for adjudication under Chapter 85B, The 
 
         Code.
 
         
 
              WHEREFORE, the decision of the deputy is affirmed.
 
         
 
                                      ORDER
 
         
 
              THEREFORE, it is ordered:
 
         
 
              That this matter be and the same is hereby dismissed without 
 
         prejudice.
 
         
 
              That the costs of the arbitration proceeding are taxed 
 
         one-half to claimant and one-half to defendant and that the costs 
 
         of the appeal, including the transcription of the hearing 
 
         proceeding, are taxed to defendant.
 
         
 
              Signed and filed this 27th day of January, 1988.
 
         
 
         
 
         
 

 
         
 
         
 
         
 
         LUEKEN V. JOHN DEERE DUBUQUE WORKS OF DEERE & COMPANY
 
         Page   5
 
         
 
         
 
         
 
         
 
         
 
                                              DAVID E. LINQUIST
 
                                              INDUSTRIAL COMMISSIONER
 
         
 
         Copies To:
 
         
 
         Mr. David A. Lemanski
 
         Attorney at Law
 
         200 Security Building
 
         Dubuque, Iowa 52001
 
         
 
         Mr. Leo A. McCarthy
 
         Ms. Jane Mylrea
 
         Attorneys at Law
 
         222 Fischer Building
 
         Dubuque, Iowa 52004-0239
 
         
 
         
 
         
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                                       2208; 2906; 2901
 
                                                       Filed 1-27-88
 
                                                       David E. Linquist
 
         
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         DONALD LUEKEN,
 
         
 
              Claimant,
 
                                                   File No. 810114
 
         VS.
 
                                                     A P P E A L
 
         JOHN DEERE DUBUQUE WORKS
 
         OF DEERE & COMPANY,                       D E C I S I 0 N
 
         
 
              Employer,
 
              Self-Insured,
 
              Defendant.
 
         
 
         
 
         
 
         
 
         2208; 2906; 2901
 
         
 
              Claimant alleged an occupational hearing loss.  The record 
 
         showed that he had been transferred between departments numerous 
 
         times and exposed to various levels of noise.  It was held that, 
 
         since he was still subject to being transferred to a department 
 
         with excessive noise levels, he had not been transferred from 
 
         excessive noise level employment.  As six months had not passed 
 
         since one of the three triggering events under section 85B.8, the 
 
         case was dismissed without prejudice as not being ripe for 
 
         adjudication.
 
 
 
         
 
         
 
 
        
 
 
 
 
 
                       BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
        
 
        
 
        
 
        ROBERT L. PHELAN,
 
        
 
            Claimant,
 
        
 
        vs.                               File No. 810124
 
        
 
        DUBUQUE PACKING CO.,                A P P E A L
 
        
 
            Employer,                    D E C I S I O N
 
        
 
        and
 
        
 
        SENTRY INSURANCE,
 
        
 
            Insurance Carrier,
 
            Defendants.
 
        
 
        
 
        
 
                                 STATEMENT OF THE CASE
 
        
 
        Claimant appeals from an arbitration decision denying claimant 
 
        any disability benefits as a result of a work injury.
 
        
 
        The record on appeal consists of the transcript of the 
 
        arbitration hearing and the exhibits listed in the prehearing 
 
        report. Both parties filed briefs on appeal.
 
        
 
                                      ISSUE
 
        
 
        The issue on appeal is whether there is a causal relationship 
 
        between the alleged work injury and the claimed disability.
 
        
 
                                 REVIEW OF THE EVIDENCE
 
        
 
        The arbitration decision adequately and accurately reflects the 
 
        pertinent evidence and it will not be totally reiterated herein.
 
        
 
        Claimant was employed by defendant employer from September 8, 
 
        1975 through January 4, 1986. His job during 1584 was to work the 
 
        graveyard shift. The job on each shift involved loading "offal" 
 
        using a power lift for an hour and a half, cutting beef 
 
        carcasses into two parts for approximately four hours, and 
 
        pushing the carcasses on an overhead rail. The cutting involved 
 
        use of a saw, overhead reaching, and repetitive use of both hands 
 
        and shoulders.
 
        
 
        Claimant testified that beginning in 1984 he began to experience 
 
        pain and numbness in his neck, left shoulder and
 
        
 
        PHELAN V. DUBUQUE PACKING CO.
 
        Page 2
 
        
 
        
 
        arm. Claimant sought treatment from Daryl Doorenbos, M.D., and 
 
        Wayne Meylor, D.C. He further testified that he resigned January 
 
        4, 1986 from work with defendant employer due to the neck and 
 
        shoulder pain which he experienced. After claimant left his 
 
        employment with defendant employer he eventually acquired 
 

 
        
 
 
 
 
 
        employment in Alaska operating farm machinery approximately 100 
 
        hours per week.
 
        
 
        Claimant revealed that he has seen chiropractor A. D. Krull, off 
 
        and on since high school. He further revealed that he had been 
 
        treated for neck pain in 1975 following a fall in the mud in a 
 
        farm accident. He disclosed that he had received 30 chiropractic 
 
        therapies in August 1977 following another accident.
 
        
 
        An office note from Dr. Doorenbos' office dated June 4, 1984 
 
        reads in part:
 
        
 
        Mr. Phelan is 30-years-old, presents with a 6-month history of 
 
        pain of his left elbow, along with pain of his left 
 
        shoulder....Most of the pain's exacerbated with exercise and 
 
        hasn't had much difficulty in sleeping with it; no history of 
 
        trauma or injury could be elicited.
 
        
 
        An office note by Dr. Doorenbos dated December 26, 1985 reads in 
 
        part:
 
        
 
        Patient's in with pain in his back/left shoulder area; sometimes 
 
        going down the left shoulder. It's been going on most of the time 
 
        for the last 2 years. He's seen a number of doctors, and 
 
        chiropractors, for the problem since that time...and most have 
 
        related it to the physical activity required in his job, which I 
 
        think is entirely possible.
 
        
 
        A letter by Dr. Meylor dated December 26, 1985 reads in part:
 
        
 
        I have been treating Robert Phelan for a neck, arm, shoulder 
 
        condition since November 10, 1984.
 
        
 
        In my opinion, the patient's neck, arm, shoulder condition is 
 
        aggravated [sic] by his employment, and is of a permanent [sic] 
 
        nature.
 
        
 
                                 APPLICABLE LAW
 
        
 
        The citations of law in the arbitration decision are appropriate 
 
        to the issues and evidence.
 
        
 
        PHELAN V. DUBUQUE PACKING CO.
 
        Page 3
 
        
 
        
 
                                      ANALYSIS
 
        
 
        The issue to be resolved in this case for purposes of this appeal 
 
        is whether claimant has proved a causal connection between his 
 
        alleged work injury and his claimed disability. Dr. Doorenbos 
 
        merely indicated that it was possible that physical activity on 
 
        the job could be the cause of claimant's problems. The office 
 
        notes from Dr. Doorenbos' office which are 18 months apart 
 
        indicate that there is no history of trauma or injury but that 
 
        some doctors and chiropractors relate claimant's problems to 
 
        physical activity of the job. The opinions of those doctors and 
 
        chiropractors are absent from the record. Furthermore, these 
 
        opinions were based upon an apparent assumption that there was a 
 
        work trauma or injury. The assumption is inconsistent with the 
 
        office note indicating that there is no history of trauma or 
 
        injury. These opinions are based upon an inaccurate history and 
 
        cannot be relied upon. Dr. Doorenbos' opinion which as stated was 
 
        only a possibility in agreeing with those other opinions cannot 
 
        be relied upon either.
 
        
 

 
        
 
 
 
 
 
        Dr. Meylor offered an opinion that claimant's condition was 
 
        aggravated by his employment. While Dr. Meylor thought the 
 
        condition was aggravated, it is unclear whether Dr. Meylor 
 
        thought that claimant's condition was permanent and caused by the 
 
        aggravation of his employment.
 
        
 
        These two medical opinions do not demonstrate that the probable 
 
        cause of claimant's alleged permanent disability was a work 
 
        injury. There is no medical evidence that can be relied upon 
 
        that shows a causal connection between claimant's alleged work 
 
        injury and his claimed disability.
 
        
 
        Furthermore, claimant's own testimony indicates that he had had 
 
        prior injuries to his neck in 1975 and 1977 unrelated to his work 
 
        with defendant employer. He had had chiropractic treatments on 
 
        and off since high school. Claimant's testimony and the medical 
 
        evidence leaves considerable doubt as to whether there is a 
 
        causal connection between a work injury and an alleged permanent 
 
        disability. Claimant has not met his burden of proving the causal 
 
        connection.
 
        
 
                                 FINDINGS OF FACT
 
        
 
        1. Claimant was employed by defendant employer from September 8, 
 
        1975 through January 4, 1986.
 
        
 
        2. Claimant's work involved overhead reaching and the repetitive 
 
        use of both hands and shoulders in the operation of a saw used to 
 
        cut beef carcasses into two parts.
 
        
 
        3. Beginning in 1984 claimant began to experience pain and 
 
        numbness in his neck, left shoulder, and left arm.
 
        
 
        PHELAN V. DUBUQUE PACKING CO.
 
        Page 4
 
        
 
        
 
        4. Claimant had injuries to his neck in 1975 and 1977 which were 
 
        unrelated to his employment with defendant employer.
 
        
 
        5. Claimant had received chiropractic treatments for his neck off 
 
        and on since high school.
 
        
 
        6. Dr. Doorenbos thought that it was possible that claimant's 
 
        condition was related to physical activity of claimant's job with 
 
        defendant employer.
 
        
 
        7. It is unclear whether Dr. Meylor was of the opinion that 
 
        claimant's neck, arm, and shoulder condition was caused by his 
 
        employment.
 
        
 
        8. There is no causal connection between a work injury during 
 
        1984 with defendant employer and claimant's alleged permanent 
 
        condition.
 
        
 
                                 CONCLUSION OF LAW
 
        
 
        Claimant has failed to prove by the preponderance of the evidence 
 
        that there is a causal connection between his alleged work injury 
 
        and the claimed disability.
 
        
 
        WHEREFORE, the decision of the deputy is affirmed.
 
        
 
                                      ORDER
 
        
 
        THEREFORE, it is ordered:
 

 
        
 
 
 
 
 
        
 
        That claimant take nothing from this proceeding.
 
        
 
        That claimant pay the costs of this proceeding including the 
 
        costs of the transcription of the arbitration hearing.
 
        
 
        
 
        Signed and filed this 30th day of January, 1989.
 
        
 
        
 
        
 
                                              DAVID E. LINQUIST
 
                                           INDUSTRIAL COMMISSIONER
 
        
 
        
 
 
            
 
 
 
 
 
 
 
 
 
                  BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         ROBERT L. PHELAN,
 
         
 
              Claimant,                              File No. 810124
 
         
 
         vs.                                           A P P E A L
 
         
 
         DUBUQUE PACKING CO.,                        D E C I S I O N
 
         
 
              Employer,
 
                                                        F I L E D
 
         and
 
                                                       JAN 30 1989
 
         SENTRY INSURANCE,
 
                                               IOWA INDUSTRIAL 
 
         COMMISSIONER
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
                              STATEMENT OF THE CASE
 
         
 
              Claimant appeals from an arbitration decision denying 
 
         claimant any disability benefits as a result of a work injury.
 
         
 
              The record on appeal consists of the transcript of the 
 
         arbitration hearing and the exhibits listed in the prehearing 
 
         report.  Both parties filed briefs on appeal.
 
         
 
                                    ISSUE
 
         
 
              The issue on appeal is whether there is a causal 
 
         relationship between the alleged work injury and the claimed 
 
         disability.
 
         
 
                          REVIEW OF THE EVIDENCE
 
         
 
              The arbitration decision adequately and accurately reflects 
 
         the pertinent evidence and it will not be totally reiterated 
 
         herein.
 
         
 
              Claimant was employed by defendant employer from September 
 
         8, 1975 through January 4, 1986.  His job during 1984 was to work 
 
         the graveyard shift.  The job on each shift involved loading 
 
         "offal" using a power lift for an hour and a half, cutting beef 
 
         carcasses into two parts for approximately four hours, and 
 
         pushing the carcasses on an overhead rail.  The cutting involved 
 
         use of a saw, overhead reaching, and repetitive use of both hands 
 
         and shoulders.
 
         
 
              Claimant testified that beginning in 1984 he began to 
 
         experience pain and numbness in his neck, left shoulder and arm. 
 
         Claimant sought treatment from Daryl Doorenbos, M.D., and Wayne 
 
                                                
 
                                                         
 
         Meylor, D.C.  He further testified that he resigned January 4, 
 
         1986 from work with defendant employer due to the neck and 
 
         shoulder pain which he experienced.  After claimant left his 
 
         employment with defendant employer he eventually acquired 
 
         employment in Alaska operating farm machinery approximately 100 
 
         hours per week.
 
         
 
              Claimant revealed that he has seen chiropractor A. D. Krull, 
 
         off and on since high school.  He further revealed that he had 
 
         been treated for neck pain in 1975 following a fall in the mud in 
 
         a farm accident.  He disclosed that he had received 30 
 
         chiropractic therapies in August 1977 following another 
 
         accident.
 
         
 
              An office note from Dr. Doorenbos' office dated June 4, 1984 
 
         reads in part:
 
         
 
              Mr. Phelan is 30-years-old, presents with a 6-month history 
 
              of pain of his left elbow, along with pain of his left 
 
              shoulder....Most of the pain's exacerbated with exercise and 
 
              hasn't had much difficulty in sleeping with it; no history 
 
              of trauma or injury could be elicited.
 
         
 
         An office note by Dr. Doorenbos dated December 26, 1985 reads in 
 
         part:
 
         
 
              Patient's in with pain in his back/left shoulder area; 
 
              sometimes going down the left shoulder.  It's been going on 
 
              most of the time for the last 2 years.  He's seen a number 
 
              of doctors, and chiropractors, for the problem since that 
 
              time...and most have related it to the physical activity 
 
              required in his job, which I think is entirely possible.
 
         
 
              A letter by Dr. Meylor dated December 26, 1985 reads in 
 
         part:
 
         
 
                   I have been treating Robert Phelan for a neck, arm, 
 
              shoulder condition since November 10, 1984.
 
         
 
                   In my opinion, the patient's neck, arm, shoulder 
 
              condition is aggrevated [sic] by his employment, and is of a 
 
              permanant [sic] nature.
 
         
 
                                APPLICABLE LAW
 
         
 
              The citations of law in the arbitration decision are 
 
         appropriate to the issues and evidence.
 
         
 
                                     ANALYSIS
 
         
 
              The issue to be resolved in this case for purposes of this 
 
         appeal is whether claimant has proved a causal connection between 
 
         his alleged work injury and his claimed disability.  Dr. 
 
         Doorenbos merely indicated that it was possible that physical 
 
         activity on the job could be the cause of claimant's problems.  
 
                                                
 
                                                         
 
         The office notes from Dr. Doorenbos' office which are 18 months 
 
         apart indicate that there is no history of trauma or injury but 
 
         that some doctors and chiropractors relate claimant's problems to 
 
         physical activity of the job.  The opinions of those doctors and 
 
         chiropractors are absent from the record.  Furthermore, these 
 
         opinions were based upon an apparent assumption that there was a 
 
         work trauma or injury.  The assumption is inconsistent with the 
 
         office note indicating that there is no history of trauma or 
 
         injury.  These opinions are based upon an inaccurate history and 
 
         cannot be relied upon.  Dr. Doorenbos' opinion which as stated 
 
         was only a possibility in agreeing with those other opinions 
 
         cannot be relied upon either.
 
         
 
              Dr. Meylor offered an opinion that claimant's condition was 
 
         aggravated by his employment.  While Dr. Meylor thought the 
 
         condition was aggravated, it is unclear whether Dr. Meylor 
 
         thought that claimant's condition was permanent and caused by the 
 
         aggravation of his employment.
 
         
 
              These two medical opinions do not demonstrate that the 
 
         probable cause of claimant's alleged permanent disability was a 
 
         work injury.  There is no medical evidence that can be relied 
 
         upon that shows a causal connection between claimant's alleged 
 
         work injury and his claimed disability.
 
         
 
              Furthermore, claimant's own testimony indicates that he had 
 
         had prior injuries to his neck in 1975 and 1977 unrelated to his 
 
         work with defendant employer.  He had had chiropractic treatments 
 
         on and off since high school.  Claimant's testimony and the 
 
         medical evidence leaves considerable doubt as to whether there is 
 
         a causal connection between a work injury and an alleged 
 
         permanent disability.  Claimant has not met his burden of proving 
 
         the causal connection.
 
         
 
              1.  Claimant was employed by defendant employer from 
 
         September 8, 1975 through January 4, 1986.
 
         
 
              2.  Claimant's work involved overhead reaching and the 
 
         repetitive use of both hands and shoulders in the operation of a 
 
         saw used to cut beef carcasses into two parts.
 
         
 
              3.  Beginning in 1984 claimant began to experience pain and 
 
         numbness in his neck, left shoulder, and left arm.
 
         
 
              4.  Claimant had injuries to his neck in 1975 and 1977 which 
 
         were unrelated to his employment with defendant employer.
 
         
 
              5.  Claimant had received chiropractic treatments for his 
 
         neck off and on since high school.
 
         
 
              6.  Dr. Doorenbos thought that it was possible that 
 
         claimant's condition was related to physical activity of 
 
         claimant's job with defendant employer.
 
         
 
              7.  It is unclear whether Dr. Meylor was of the opinion that 
 
                                                
 
                                                         
 
         claimant's neck, arm, and shoulder condition was caused by his 
 
         employment.
 
         
 
              8.  There is no causal connection between a work injury 
 
         during 1984 with defendant employer and claimant's alleged 
 
         permanent condition.
 
         
 
         CONCLUSION OF LAW
 
         
 
              Claimant has failed to prove by the preponderance of the 
 
         evidence that there is a causal connection between his alleged 
 
         work injury and the claimed disability.
 
         
 
              WHEREFORE, the decision of the deputy is affirmed.
 
         
 
                                      ORDER
 
         
 
              THEREFORE, it is ordered:
 
         
 
              That claimant take nothing from this proceeding.
 
         
 
              That claimant pay the costs of this proceeding including the 
 
         costs of the transcription of the arbitration hearing.
 
         
 
                                
 
                                                         
 
              Signed and filed this 30th day of January, 1989.
 
         
 
         
 
         
 
         
 
         
 
         
 
                                               DAVID E. LINQUIST
 
                                            INDUSTRIAL COMMISSIONER
 
         
 
         Copies To:
 
         
 
         Mr. Harry H. Smith
 
         Mr. Dennis M. McElwain
 
         Attorneys at Law
 
         P.O. Box 1194
 
         Sioux City, Iowa  51102
 
         
 
         Mr. John M. Bickel
 
         Mr. Douglas R. Oelschlaeger
 
         Attorneys at Law
 
         500 MNB Bldg.
 
         P.O. Box 2107
 
         Cedar Rapids, Iowa  52406
 
         
 
         
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
                                                
 
 
            
 
 
 
         
 
 
 
                                            1108 - 1402.40
 
                                            Filed January 30, 1989
 
                                            DAVID E. LINQUIST
 
         
 
                  BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         ROBERT L. PHELAN,
 
         
 
              Claimant,
 
         
 
         vs.                                          File No. 810124
 
         
 
         DUBUQUE PACKING CO.,                           A P P E A L
 
         
 
              Employer,                               D E C I S I 0 N
 
         
 
         and
 
         
 
         SENTRY INSURANCE,
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
         1108 - 1402.40
 
         
 
              Claimant presented no reliable medical evidence that 
 
         demonstrated a causal relationship between his alleged work 
 
         injury and his claimed permanent disability.  In addition, 
 
         claimant's own testimony indicates that he had had prior injuries 
 
         unrelated to his work with defendant employer and he had had 
 
         chiropractic treatments on and off since high school.  On appeal 
 
         deputy's denial of benefits was affirmed.
 
         
 
         
 
         
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
                                                
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         _________________________________________________________________
 
        
 
         ROBERT L. PHELAN,
 
         
 
              Claimant,
 
         
 
         VS.
 
                                                      FILE NO. 810124
 
         DUBUQUE PACKING CO.,
 
                                                    A R B I T R A T I 0 N
 
              Employer,
 
                                                      D E C I S I 0 N
 
         and
 
         
 
         SENTRY INSURANCE,
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         _________________________________________________________________
 
         
 
                              STATEMENT OF THE CASE
 
         
 
              This is a proceeding in arbitration brought by Robert 
 
         Phelan, claimant, against Dubuque Packing Company, employer 
 
         (hereinafter referred to as Dubuque Pack), and Sentry Insurance 
 
         Company, insurance carrier, defendants, for workers' compensation 
 
         benefits as a result of an alleged injury on November 16, 1985.  
 
         On August 15, 1987, a hearing was held on claimant's petition and 
 
         the matter was considered fully submitted at the close of this 
 
         hearing.
 
         
 
              The parties have submitted a prehearing report of contested 
 
         issues and stipulations which was approved and accepted as a part 
 
         of the record of this case at the time of hearing.  Oral 
 
         testimony was received during the hearing from claimant and the 
 
         following witnesses: Shirley Patterson and Richard Ernst.  The 
 
         exhibits received into the evidence at the hearing are listed in 
 
         the prehearing report.  All of the evidence received at the 
 
         hearing was considered in arriving at this decision.
 
         
 
              The prehearing report contains the following stipulations:
 
         
 
              1.  Claimant is not seeking temporary total disability or 
 
         healing period benefits in this proceeding and claimant last 
 
         worked at Dubuque Pack on January 4, 1986.
 
         
 
              2.  Claimant's rate of compensation in the event of an award 
 
         of weekly benefits from this proceeding shall be $209.00 per 
 
         week.
 
         
 
              The prehearing report submits the following issues for 
 
         determination in this decision:
 
         
 
                I. Whether the claimant received an injury arising out of 
 
         and in the course of employment;
 
         
 
               II.  Whether there is a causal relationship between the 
 

 
         alleged work injury and the claimed disability; and,
 
         
 
              III.  The extent of claimant's entitlement to weekly 
 
         benefits for permanent disability.
 
         
 
                              FINDINGS OF FACT
 
         
 
              1.  Claimant was a credible witness.
 
         
 
              From his demeanor while testifying claimant appeared to be 
 
         truthful.
 
         
 
              2. Claimant was employed by Dubuque Pack from September 8, 
 
         1975 through January 4, 1986, primarily as a shroud puller.
 
         
 
              There was little dispute among the parties as to the nature 
 
         of claimant's employment with Dubuque Pack.  Claimant testified 
 
         that, for the most part, he was a shroud puller for almost 10 
 
         years with Dubuque Pack and for two years with Iowa Beef, the 
 
         previous owner of the Dubuque Pack plant in LeMars, Iowa.  
 
         Claimant testified that most of his time he cut carcasses of beef 
 
         lengthwise into two parts for approximately one-half of his eight 
 
         hour shift.  This work involved overhead reaching and the 
 
         repetitive use of both hands and shoulders in the operation of a 
 
         well saw.  Claimant processed 850 to 1,000 carcasses each night.  
 
         Also, for approximately one and one-half hours before meat 
 
         cutting, he would load "offal" using a power lift and finished 
 
         out his shift at the end of the night pushing carcasses on an 
 
         overhead rail into a truck trailer.  Claimant worked the 
 
         graveyard shift during his employment at Dubuque Pack.  Claimant 
 
         resigned and last worked at Dubuque Pack on January 4, 1987.  
 
         Claimant testified that he resigned due to his chronic neck and 
 
         shoulder pain which he experienced from his work activity.
 
         
 
              3.  On January 4, 1986, claimant suffered an injury which 
 
         arose out of and in the course of his employment with Dubuque 
 
         Pack.
 
         
 
              Claimant testified that beginning in 1984, he began to 
 
         experience chronic pain and numbness in this neck, left shoulder 
 
         and left arm.  He sought treatment from a Dr. Krull, a 
 
         chiropractor, after the pain became continuous.  In June, he 
 
         received treatment from Daryl Doorenbos, M.D., in the form of 
 
         prescribed medication and physical therapy.  In his office notes, 
 
         Dr. Doorenbos stated that claimant had seen many doctors over the 
 
         last two years and that most of these doctors have related 
 
         claimant's problems to claimant's physical activity at work which 
 
         he states is entirely possible.  Subsequently, Wayne Meylor, 
 
         D.C., began to treat claimant.
 
         
 
              In November, 1985, claimant asked for a medical leave to see 
 
         if his left sided pain would subside and was denied this leave.  
 
         Claimant then took vacation for two weeks.  This rest improved 
 
         claimant's condition but claimant's symptoms returned upon 
 
         resuming work.  Claimant then went to Horst Blume, M.D., a 
 
         neurosurgeon.  According to his report, Dr. Blume opines that 
 
         claimant has a nerve root irritation in his cervical spine and 
 
         myofascitis at the elbow.  Dr. Blume suggests further testing of 
 
         claimant's cervical spine.  Dr. Blume could find no definite 
 
         evidence of thoracic outlet syndrome and although he notes good 
 
         range of motion, he states that claimant "may be 10 percent 
 
         impaired."
 
         
 
              Claimant left his employment at Dubuque Pack and looked for 
 

 
         
 
         
 
         
 
         PHELAN V. DUBUQUE PACKING CO.
 
         Page   3
 
         
 
         
 
         work in the geographical area of his residence but could find 
 
         none.  Finally, he recently acquired employment in the State of 
 
         Alaska operating farm machinery for the last six months.  
 
         Claimant testified that he works approximately 100 hours per week 
 
         in the cultivating of crops and clearing of farmland.
 
         
 
              The only causal connection medical opinion submitted into 
 
         the evidence is from Dr. Meylor.  Dr. Meylor states as follows: 
 
         "In my opinion, the patient's neck, arm, shoulder condition is 
 
         aggravated [sic] by his employment, and is of a permanent 
 
         nature." Without deciding the issue of permanency, claimant by 
 
         the above uncontroverted opinion of Dr. Meylor has at least 
 
         established that he suffered an aggravation injury to his neck, 
 
         arm and shoulder condition from pulling shroud at Dubuque Pack.  
 
         Claimant's credible testimony established that the injury process 
 
         was gradual or the result of repeated use of his hands and arms 
 
         at work.
 
         
 
              The injury date found in this case coincides with the time 
 
         claimant was finally compelled by his pain to leave his 
 
         employment.  The alleged injury date in claimant's petition bore 
 
         little relation to the claimed disability in this proceeding.
 
         
 
              4.  The preponderance of the evidence does not establish 
 
         that the work injury of January 4, 1986 was a cause of 
 
         significant permanent partial impairment or disability.
 
         
 
              Claimant's primary difficulty in establishing his case for 
 
         permanency stems from his own testimony in which he indicated 
 
         that he has had neck problems requiring chiropractic adjustments 
 
         since high school and that he has had prior injuries to his neck 
 
         unrelated to his employment.  One such injury occurred in 1975 
 
         from a fall in the mud on his family farm.  Claimant had 30 
 
         chiropractic treatments in 1977 following another injury to his 
 
         neck and back.  Given these prior complaints, this agency must 
 
         rely heavily upon the views of the medical experts on the issue 
 
         of causal connection.
 
         
 
              The only causal connection opinion offered by claimant in 
 
         support of his claim is that of Dr. Meylor.  However, Dr. 
 
         Meylor's written opinion set forth above is very vague.  The 
 
         doctor only called the injury an "aggravation [sic]" of an 
 
         apparent preexisting neck, arm and shoulder condition.  Dr. 
 
         Meylor had treated claimant for neck problems prior to 1984.  His 
 
         reference to permanency appears to be a reference to the 
 
         preexisting condition rather than the aggravation.  Admittedly, 
 
         claimant was able to work for almost 10 years with this condition 
 
         but his own testimony indicates that claimant has had neck 
 
         problems for almost as long.  Claimant's condition may have been 
 
         preexisting to the extent that he experienced pain immediately 
 
         during his initial employment and simply tolerated the pain over 
 
         the years.  On the other hand, the work may have aggravated his 
 
         neck causing permanent damage to his spine.  Claimant's testimony 
 
         and the single opinion of Dr. Meylor leaves the undersigned in 
 
         considerable doubt on the causal question.  As claimant has the 
 
         burden of persuasion, he cannot prevail on the question of the 
 
         cause of his current chronic neck and shoulder problems.
 
         
 
                             CONCLUSIONS OF LAW
 

 
         
 
         
 
         
 
         PHELAN V. DUBUQUE PACKING CO.
 
         Page   4
 
         
 
         
 
         
 
              The foregoing findings of fact were made under the following 
 
         principles of law:
 
         
 
              I. Claimant has the burden of proving by a preponderance of 
 
         the evidence that claimant received an injury which arose out of 
 
         and in the course of employment.  The words "out of" refer to the 
 
         cause or source of the injury.  The words "in the course of" 
 
         refer to the time and place and circumstances of the injury.  See 
 
         Cedar Rapids Community Sch. v. Cady , 278 N.W.2d 298 (Iowa 1979) 
 
         , Crowe v. DeSoto Consol.  Sch.  Dist., 246 Iowa 402, 68 N.W.2d 
 
         63 (1955).  An employer takes an employee subject to any active 
 
         of dormant health impairments, and a work connected injury which 
 
         more than slightly aggravates the condition is considered to be a 
 
         personal injury.  Ziegler v. United States Gypsum Co., 252 Iowa 
 
         613, 620, 106 N.W.2d 591 (1960) and cases cited therein.
 
         
 
              It is not necessary that claimant prove his disability 
 
         results from a sudden unexpected traumatic event.  It is 
 
         sufficient to show that the disability developed gradually or 
 
         progressively from work activity over a period of time.  McKeever 
 
         Custom Cabinets v. Smith, 379 N.W.2d 368 (Iowa 1985).  The 
 
         McKeever court also held that the date of injury in gradual 
 
         injury cases is the time when pain prevents the employee from 
 
         continuing to work.  In McKeever the injury date coincides with 
 
         the time claimant was finally compelled to give up his job.  This 
 
         date was then utilized in determining rate and the timeliness of 
 
         claimant's claim under Iowa Code section 85.26 and notice under 
 
         Iowa Code section 85.23.
 
         
 
              II.  The claimant has the burden of proving by a 
 
         preponderance of the evidence that the work injury is a cause of 
 
         the claimed disability.  A disability may be either temporary or 
 
         permanent.  In the case of a claim for temporary disability, the 
 
         claimant must establish that the work injury was a cause of 
 
         absence from work and lost earnings during a period of recovery 
 
         from the injury.  Generally, a claim of permanent disability 
 
         invokes an initial determination of whether the work injury was a 
 
         cause of permanent physical impairment or permanent limitation in 
 
         work activity.  However, in some instances, such as a job 
 
         transfer caused by a work injury, permanent disability benefits 
 
         can be awarded without a showing of a causal connection to a 
 
         physical change of condition.  Blacksmith v. All-American, Inc., 
 
         290 N.W.2d 348, 354 (Iowa 1980); McSpadden v. Big Ben Coal 
 
         Co.,288 N.W.2d 181 (Iowa 1980).
 
         
 
              The question of causal connection is essentially within the 
 
         domain of expert medical opinion.  Bradshaw v. Iowa Methodist 
 
         Hospital, 251 Iowa 375, 101 N.W.2d 167 (1960).  The opinion of 
 
         experts need not be couched in definite, positive or unequivocal 
 
         language and the expert opinion may be accepted or rejected, in 
 
         whole or in part, by the trier of fact.  Sondag v. Ferris 
 
         Hardware, 220 N.W.2d 903 (Iowa 1974).  The weight to be given to 
 
         such an opinion is for the finder of fact, and that may be 
 
         affected by the completeness of the premise given the expert and 
 
         other surrounding circumstances.  Bodish v. Fischer, Inc., 257 
 
         Iowa 516, 133 N.W.2d 867 (1965).
 
         
 
              Furthermore, if the available expert testimony is 
 

 
         
 
         
 
         
 
         PHELAN V. DUBUQUE PACKING CO.
 
         Page   5
 
         
 
         
 
         insufficient alone to support a finding of causal connection, 
 
         such testimony may be coupled with nonexpert testimony to show 
 
         causation and be sufficient to sustain an award.  Giere v. Aase 
 
         Haugen Homes, Inc., 259 Iowa 1065, 146 N.W.2d 911, 915 (1966).  
 
         Such evidence does not, however, compel an award as a matter of 
 
         law.  Anderson v. Oscar Mayer & Co., 217 N.W.2d 531, 536 (Iowa 
 
         1974).  To establish compensability, the injury need only be a 
 
         significant factor, not be the only factor causing the claimed 
 
         disability.  Blacksmith, 290 N.W.2d 348, 354.  In the case of a 
 
         preexisting condition, an employee is not entitled to recover for 
 
         the results of a preexisting injury or disease but can recover 
 
         for an aggravation thereof which resulted in the disability found 
 
         to exist.  Olson v. Goodyear Service Stores, 255 Iowa 1112, 125 
 
         N.W.2d 251 (1963).
 
         
 
              In the case sub judice, a finding could not be made causally 
 
         connecting the work injury to claimant's chronic neck, shoulder, 
 
         arm and back difficulties or to permanent functional impairment 
 
         to his body as a whole.  As claimant is basing his claim upon 
 
         such a causal connection, no further findings are necessary and 
 
         claimant cannot be awarded benefits from this proceeding. 
 
         
 
              Although claimant did not prevail in this proceeding, he was 
 
         sincere in his testimony presented at the hearing and his claim 
 
         was at least arguably supported by the medical evidence.  
 
         Therefore, claimant shall be awarded the costs of this action.
 
                                         
 
                                         ORDER
 
         
 
              1.  Claimant's claim and his petition is hereby dismissed.
 
         
 
              2.  Defendants shall pay the costs of this action pursuant 
 
         to Division of Industrial Services Rule 343-4.33.
 
         
 
         
 
                  Signed and filed this 29th day of September, 1987.
 
         
 
         
 
         
 
         
 
                                          LARRY P. WALSHIRE
 
                                          DEPUTY INDUSTRIAL COMMISSIONER
 
         
 
         
 
         Copies to:
 
         
 
         Mr. Harry Smith
 
         Mr. Dennis M. McElwain
 
         Attorneys at Law
 
         632-640 Badgerow Bldg.
 
         P.O. Box 1194
 
         Sioux City, Iowa 51102
 
         
 
         Mr. John M. Bickel
 
         Mr. Douglas R Oelschlaeger
 
         Attorneys at Law
 
         500 MNB Bldg.
 
         P.O. Box 2107
 
         Cedar Rapids, Iowa 52406
 
         
 
 
            
 
 
 
 
 
 
 
 
 
                                                1108
 
                                                Filed September 29, 1987
 
                                                LARRY P. WALSHIRE
 
         
 
                   BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         _________________________________________________________________
 
         
 
         ROBERT L. PHELAN,
 
         
 
              Claimant,
 
         
 
         VS.
 
                                                      FILE NO. 810124
 
         DUBUQUE PACKING CO.,
 
                                                    A R B I T R A T I 0 N
 
              Employer,
 
                                                      D E C I S I 0 N
 
         and
 
         
 
         SENTRY INSURANCE,
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         _________________________________________________________________
 
         
 
         1108
 
         
 
              Claimant denied permanent disability benefits for failure to 
 
         establish a causal connection between his work activity and a 
 
         permanent chronic neck and shoulder condition.  Although a 
 
         temporary aggravation injury was found to have occurred from work 
 
         activity of this prior existing condition claimant did not seek 
 
         temporary total disability benefits and none were awarded.