BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         DONNA LAWRENCE,
 
         
 
              Claimant,
 
         
 
         vs.
 
                                                  File No. 811077
 
         QUALITY CLEANING, INC.,
 
                                               A R B I T R A T I O N
 
              Employer,
 
                                                  D E C I S I O N
 
         and
 
         
 
         WEST BEND MUTUAL INSURANCE COMPANY,
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
         
 
                                   INTRODUCTION
 
         
 
              This is a proceeding in arbitration brought by Donna 
 
         Lawrence against Quality Cleaning, Inc., her former employer, and 
 
         West Bend Mutual Insurance Company, the employer's insurance 
 
         carrier.
 
         
 
              Claimant seeks compensation for permanent partial disability 
 
         as a result of the injuries she sustained on November 25, 1985.  
 
         The only issue for determination is determination of the 
 
         claimant's entitlement to compensation for permanent partial 
 
         disability.  Included within that are the issues of proximate 
 
         cause as the same relates to claimant's back complaints and 
 
         whether the injury is limited to a scheduled member or extends 
 
         into the body as a whole.
 
         
 
              The case was heard and fully submitted at Cedar Rapids, Iowa 
 
         on October 24, 1988.  The record in this proceeding consists of 
 
         testimony from Donna Lawrence and Marilyn Pritchet.  The record 
 
         also contains claimant's exhibits 1 through 8 and defendants' 
 
         exhibits A and B.
 
         
 
                               SUMMARY OF EVIDENCE
 
         
 
              The following is a summary of evidence presented in this 
 
         case.  Only the evidence most pertinent to this decision is 
 
         discussed, but all of the evidence received at the hearing was 
 
         considered in arriving at this decision. conclusions about what 
 
         the evidence showed are inevitable with ally summarization.  The 
 
         conclusions in the following summary should be considered to be 
 
         preliminary findings of fact.
 
         
 
              Donna Lawrence is a 60-year-old lady whose formal education 
 
         ends at the mid-point of the tenth grade.  She married shortly 
 
         after leaving school.  She has been married on two occasions and 
 
         has four children, all of whom are adults.
 
         
 
              Donna Lawrence was a homemaker until her second marriage 
 
         ended.  At that time, she obtained employment working as a maid 
 
         or housekeeper at the Howard Johnson's Motel in Cedar Rapids.  
 

 
         
 
         
 
         
 
         LAWRENCE V. QUALITY CLEANING, INC.
 
         PAGE   2
 
         
 
         
 
         The duties of a motel housekeeper include vacuuming, cleaning 
 
         bathrooms, making beds, and general cleaning of motel rooms.  She 
 
         worked for Howard Johnsons for approximately six months and then 
 
         became employed at the Colony Motel in Cedar Rapids, Iowa.  The 
 
         motel changed ownership, but the claimant continued to work there 
 
         as an employee of a cleaning company that contracted to clean the 
 
         motel.  In approximately April of 1985, Quality Cleaning, Inc. 
 
         obtained the contract to clean the Colony Motel and claimant 
 
         became its employee.  Quality Cleaning, Inc. has now been 
 
         inactive for approximately one and one-half years, although the 
 
         corporate entity continues to exist.  Claimant was employed by 
 
         Quality Cleaning, Inc. for the entire two years that it had the 
 
         contract to clean the Colony Motel.
 
         
 
              Marilyn Pritchet testified that claimant often worked by 
 
         herself without direct supervision.  Pritchet considered claimant 
 
         to be a trustworthy and honest employee who got her work done.
 
         
 
              Claimant testified that, on November 25, 1985, she was 
 
         working at the Colony Motel and that ice had formed on the 
 
         sidewalks.  Claimant related that she was preparing to put salt 
 
         on the ice, but slipped and fell, injuring her left elbow, left 
 
         knee and back.  Claimant sought medical treatment and was found 
 
         to have fractured her elbow.  She reported the incident to 
 
         Marilyn Pritchet.
 
         
 
              The emergency room records show that claimant made 
 
         complaints of her elbow and back, but the records do not reflect 
 
         complaints of her knee (exhibit 3).
 
         
 
              Claimant received her treatment for the injury from Warren 
 
         N. Verdeck, M.D., an orthopaedic surgeon.  Dr. Verdeck's records 
 
         do not report complaints regarding claimant's knee and back at 
 
         the first appointment, but during the initial course of treatment 
 
         for the injury, claimant did complain of pain in her knee and 
 
         back.
 
         
 
              After a period of recuperation, Dr. Verdeck released 
 
         claimant to return to work without imposing any specific work 
 
         restrictions.  Dr. Verdeck indicated that claimant's elbow and 
 
         back had completely resolved, but that she had a mild degree of 
 
         disability in her knee (exhibit 7).  Claimant continued to have 
 
         problems with the knee, underwent arthroscopic surgery at which 
 
         time a small tear of the medial meniscus was found and repaired.  
 
         Dr. Verdeck rated claimant as having a five percent permanent 
 
         impairment of her left leg as a result of the condition of her 
 
         knee.  Dr. Verdeck related the disability in claimant's knee to 
 
         the fall she sustained on November 25, 1985.  In a report dated 
 
         July 8, 1986, Dr. Verdeck indicated that claimant's back and 
 
         elbow seemed to have completely recovered, but that she did have 
 
         a five percent impairment of the left leg (exhibit 2).
 
         
 
              Claimant was evaluated in 1986 by Patrick Collalto, M.D. His 
 
         report shows claimant to have represented that her back and left 
 
         elbow problems had completely resolved (exhibit 4).
 
         
 
              Claimant testified that she has had difficulty and pain with 
 
         her back ever since the injury in 1985.  She stated that it is 
 
         not appreciably different now than it was when she resumed 
 
         employment after the injury.
 
         
 
              Subsequent to her resumption of normal employment, claimant 
 
         sought further treatment for her back.  She was evaluated by 
 

 
         
 
         
 
         
 
         LAWRENCE V. QUALITY CLEANING, INC.
 
         PAGE   3
 
         
 
         
 
         diagnostic tests and procedures including a CT scan and x-rays, 
 
         all of which were essentially normal.  On April 10, 1987, Dr. 
 
         Verdeck indicated that claimant's back problems began at the time 
 
         of her fall on November 25, 1985 and that she would likely have 
 
         only a small permanent impairment, in the range of one or two 
 
         percent (exhibit 8).  On June 25, 1987, Dr. Verdeck estimated 
 
         that claimant had a permanent impairment rating regarding her 
 
         back of one percent based entirely upon subjective complaints of 
 
         pain together with objective findings of decreased range of 
 
         motion (exhibit 1).
 
         
 
              Dr. Verdeck indicated that claimant might be impaired or 
 
         restricted with regard to repetitive bending, twisting or heavy 
 
         lifting as a result of her back problem (exhibit 6).
 
         
 
              Claimant resumed employment following the injury on March 
 
         31, 1986 and remained employed by Quality Cleaning, Inc. until it 
 
         lost the Colony Motel contract in April, 1987.  Marilyn Pritchet 
 
         testified that she conversed with claimant occasionally following 
 
         the accident, but that claimant never, on any occasion, made 
 
         mention of having injured her back or of having any continuing 
 
         difficulty with her back.
 
         
 
              Copies of claimant's W-2 forms from 1983 through 1986 are in 
 
         the record as exhibit B.  Her earnings in 1986 are essentially 
 
         equal to what she earned in 1984 and 1985.  Claimant testified 
 
         that she was earning $4.25 per hour and working approximately 36 
 
         hours per week at the time she was injured.  Claimant related 
 
         that she is now employed at the Stouffer Motel in Cedar Rapids 
 
         where she earns $4.15 per hour working a 40-hour week.  Claimant 
 
         related that she also has paid vacation with her new employment 
 
         and receives a meal during her work shift.
 
         
 
              Claimant testified that her back continues to bother her 
 
         when she performs activities such as making beds and bending.  
 
         She related that her elbow is essentially all right, but catches 
 
         occasionally.  She related that she has residual pain in.her 
 
         knee.  Claimant testified that her back is the most troublesome 
 
         of the three.  Claimant testified that she is able to perform her 
 
         work at the Stouffer Motel and that she apparently performs it to 
 
         the satisfaction of her employer.
 
         
 
              Claimant testified that, in early summer of 1986, she was 
 
         involved in an automobile accident which totalled her vehicle, 
 
         but that she was not injured in the accident.
 
         
 
                           APPLICABLE LAW AND ANALYSIS
 
         
 
              The appearance and demeanor of both witnesses who testified 
 
         at hearing was observed.  Both are found to be fully credible 
 
         witnesses.
 
         
 
              The claimant has the burden of proving by a preponderance of 
 
         the evidence that the injury of November 25, 1985 is causally 
 
         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 causal connection is essentially within 
 
         the domain of expert testimony.  Bradshaw v. Iowa Methodist 
 
         Hospital, 251 Iowa 375, 101 N.W.2d 167 (1960).
 
         
 

 
         
 
         
 
         
 
         LAWRENCE V. QUALITY CLEANING, INC.
 
         PAGE   4
 
         
 
         
 
              However, expert medical evidence must be considered with all 
 
         other evidence introduced bearing on the causal connection.  
 
         Burt, 247 Iowa 691, 73 N.W.2d 732.  The opinion of experts need 
 
         not be couched in definite, positive or unequivocal language.  
 
         Sondag v. Ferris Hardware, 220 N.W.2d 903 (Iowa 1974).  However, 
 
         the expert opinion may be accepted or rejected, in whole or in 
 
         part, by the trier of fact.  Id. at 907.  Further, the weight to 
 
         be given to such an opinion is for the finder of fact, and that 
 
         may be affected by the completeness of the premise given the 
 
         expert and other surrounding circumstances.  Bodish, 257 Iowa 
 
         516, 133 N.W.2d 867.  See also Musselman v. Central Telephone 
 
         Co., 261 Iowa 352, 154 N.W.2d 128 (1967).
 
         
 
              There is no real dispute with regard to claimant's knee 
 
         having been injured.  The only dispute relates to her back.  Dr. 
 
         Verdeck related the back problems to the fall in his report dated 
 
         April 10, 1987.  His assessment is consistent with claimant's 
 
         testimony.  It is therefore determined that claimant injured her 
 
         back in the fall that occurred on November 25, 1985 and that she 
 
         has a one percent permanent impairment of the back as a result of 
 
         that incident.
 
         
 
              As claimant has an impairment to the body as a whole, an 
 
         industrial disability has been sustained.  Industrial disability 
 
         was defined in Diederich v. Tri-City Railway Co., 219 Iowa 587, 
 
         593, 258 N.W. 899, 902 (1935) as follows:  "It is therefore plain 
 
         that the legislature intended the term 'disability' to mean 
 
         'industrial disability' or loss of earning capacity and not a 
 
         mere 'functional disability, to be computed in the terms of 
 
         percentages of the total physical and mental ability of a normal 
 
         man."
 
         
 
              Functional disability is an element to be considered in 
 
         determining industrial disability which is the reduction of 
 
         earning capacity, but consideration must also be given to the 
 
         injured employee's age, education, qualifications, experience and 
 
         inability to engage in employment for which he is fitted.  Olson 
 
         v. Goodyear Service Stores, 255 Iowa 1112, 1121 125 N.W.2d 251, 
 
         257 (1963).
 
         
 
              Industrial disability or loss of earning capacity is a 
 
         concept that is quite similar to impairment of earning capacity, 
 
         an element of damage in a tort case.  Impairment of physical 
 
         capacity creates an inference of lessened earning capacity.  The 
 
         basic element to be determined, however, is the reduction in 
 
         value of the general earning capacity of the person, rather than 
 
         the loss of wages or earnings in a specific occupation.  
 
         Post-injury earnings create a presumption of earning capacity.  
 
         The earnings are not synonymous with earning capacity and the 
 
         presumption may be rebutted by evidence showing the earnings to 
 
         be an unreliable indicator.  Carradus v. Lange, 203 N.W.2d 565 
 
         (Iowa 1973); Holmquist v. Volkswagon of America, Inc., 261 N.W.2d 
 
         516 (Iowa App. 1977) A.L.R.3d 143; Michael v. Harrison County, 
 
         34th Biennial Report, 218 (1979): 2 Larson Workmen's Compensation 
 
         Law, sections 57.21 and 57.31.
 
         
 
              The only physical restrictions that have been imposed upon 
 
         claimant are those that have been suggested regarding avoidance 
 
         of repetitive bending and heavy lifting.  Such activities are not 
 
         particularly remarkable since they would probably be advisable 
 
         activity restrictions for many 60-year-old individuals.  There is 
 
         no significant difference between claimant's pre-injury and 
 
         post-injury earnings.  The cessation of claimant's employment 
 

 
         
 
         
 
         
 
         LAWRENCE V. QUALITY CLEANING, INC.
 
         PAGE   5
 
         
 
         
 
         with Quality Cleaning, Inc., was solely a result of lack of work 
 
         and was in no way related to her injuries.  Claimant has resumed 
 
         the same type of employment that she performed at the time of 
 
         injury.  Nevertheless, claimant does have residual difficulties 
 
         regarding her knee and her back.  She has an extremely limited 
 
         education.  When all the appropriate factors of industrial 
 
         disability are evaluated, it is determined that claimant has a 
 
         five percent permanent partial disability that was proximately 
 
         caused by the fall that she sustained on November 25, 1985.  This 
 
         determination includes claimant's back, knee and elbow problems. 
 
         This entitles claimant to receive 25 weeks of compensation for 
 
         permanent partial disability less the 11 weeks which have been 
 
         previously paid with the balance due being 14 weeks.
 
         
 
              An issue was identified with regard to when the disability 
 
         in claimants back arose.  The normal rule with regard to dates of 
 
         payment and interest is that compensation for permanent partial 
 
         disability becomes payable commencing at the end of the healing 
 
         period.  Teel v. McCord, 394 N.W.2d 405 (Iowa 1986).  It has also 
 
         been held, however, that an employer should not be charged with 
 
         interest where the existence of permanent disability was not 
 
         discoverable in the exercise of reasonable diligence at the end 
 
         of the healing period.  Schwartz v. Des Moines Metropolitan 
 
         Transit Authority, file number 664461, Appeal Decision (Nov. 25, 
 
         1986).  The evidence in this case discloses that the employer and 
 
         its insurance carrier voluntarily and timely paid part of the 
 
         compensation for permanent partial disability which has been 
 
         awarded.  It was apparent that some permanent partial disability 
 
         existed as evidenced by the payment.  Accordingly, it is 
 
         determined that claimant's entitlement to compensation for the 
 
         additional 14 weeks of permanent partial disability is payable 
 
         commencing on June 16, 1986, eleven weeks after March 30, 1986 
 
         when the healing period ended, and draws interest from that date 
 
         pursuant to the provisions of Iowa Code section 85.30.
 
         
 
                                 FINDINGS OF FACT
 
         
 
              1.  Donna Lawrence and Marilyn Pritchet are fully credible 
 
         witnesses.
 
         
 
              2.  Dr. Verdeck's most recent assessment of claimant's 
 
         condition is correct.
 
         
 
              3.  The injuries which Donna Lawrence sustained on November 
 
         25, 1985 left her with a residual one percent impairment of her 
 
         back, a five percent impairment of her left leg, and minor 
 
         complaints regarding her left elbow.
 
         
 
               4.  Claimant's earning capacity has been reduced by five 
 
         percent as a result of the injuries she sustained on November 25, 
 
         1985.
 
         
 
                                CONCLUSIONS OF LAW
 
         
 
              1. This agency has jurisdiction of the subject matter of 
 
         this proceeding and its parties.
 
         
 
              2.  Claimant has a five percent permanent partial disability 
 
         in industrial terms which entitles her to receive 25 weeks of 
 
         compensation for permanent partial disability under the 
 
         provisions of Iowa Code section 85.34(2)(u).
 
         
 
              3.  The employer is entitled to credit for the 11 weeks of 
 

 
         
 
         
 
         
 
         LAWRENCE V. QUALITY CLEANING, INC.
 
         PAGE   6
 
         
 
         
 
         compensation for permanent partial disability which were 
 
         previously paid.
 
         
 
              4.  Claimant is entitled to receive an additional 14 weeks 
 
         of compensation for permanent partial disability payable 
 
         commencing June 16, 1986, together with interest thereon from the 
 
         date each payment came due until the date it is actually paid.
 
         
 
                                      ORDER
 
         
 
              IT IS THEREFORE ORDERED that defendants pay claimant 
 
         fourteen (14) weeks of compensation for.permanent partial 
 
         disability at the stipulated rate of ninety-three and 34/100 
 
         dollars ($93.34) per week payable commencing June 16, 1986.
 
         
 
              IT IS FURTHER ORDERED that defendants pay interest on the 
 
         unpaid amounts computed from the date each payment came due 
 
         pursuant to Iowa Code section 85.30.
 
         
 
              IT IS FURTHER ORDERED that defendants pay the costs of this 
 
         action pursuant to Division of Industrial Services Rule 
 
         343-4.33.
 
         
 
              IT IS FURTHER ORDERED that defendants file Claim Activity 
 
         Reports as requested by this agency pursuant to Division of 
 
         Industrial Services Rule 343-3.1.
 
         
 
              Signed and filed this 2nd day of November, 1988.
 

 
         
 
         
 
         
 
         LAWRENCE V. QUALITY CLEANING, INC.
 
         PAGE   7
 
         
 
         
 
         
 
         
 
         
 
         
 
                                       MICHAEL G. TRIER
 
                                       DEPUTY INDUSTRIAL COMMISSIONER
 
         
 
         
 
         
 
         Copies To:
 
         
 
         Mr. Robert F. Wilson
 
         Attorney at Law
 
         810 Dows Building
 
         Cedar Rapids, Iowa  52401
 
         
 
         Mr. John M. Bickel
 
         Attorney at Law
 
         500 MNB Building
 
         P.O. Box 2107
 
         Cedar Rapids, Iowa  52406-2107
 
         
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                               1803, 3800
 
                                               Filed November 2, 1988
 
                                               MICHAEL G. TRIER
 
         
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         DONNA LAWRENCE,
 
         
 
              Clamant,
 
         
 
         vs.
 
                                                  File No. 811077
 
         QUALITY CLEANING, INC.,
 
                                               A R B I T R A T I O N
 
              Employer,
 
                                                  D E C I S I O N
 
         and
 
         
 
         WEST BEND MUTUAL INSURANCE COMPANY,
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
         
 
         1803, 3800
 
         
 
              Claimant, a 60-year-old lady at the time of hearing, injured 
 
         her back, elbow and knee in a fall at her place of employment.  
 
         She was rated by her treating physician as having a five percent 
 
         impairment of the leg and a one percent impairment of her back as 
 
         a result of the incident.  Claimant's only restrictions and 
 
         complaints were minimal.  Claimant was able to remain gainfully 
 
         employed in the same occupation in which she had been employed 
 
         prior to the injury with no significant change in her actual 
 
         earnings.  Claimant was awarded five percent permanent partial 
 
         disability.
 
         
 
              The existence of permanent partial disability in claimant's 
 
         leg was recognized and was voluntarily paid by the employer in a 
 
         timely manner.  The treating physician initially indicated that 
 
         the back injury had completely resolved.  It was held that the 
 
         entitlement to all permanent partial disability compensation ran 
 
         from the end of the healing period.
 
         
 
 
            
 
            Page   1
 
            
 
            
 
            
 
            
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            TOMMY TUCKER, JR.,            :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :         File No. 811078
 
            WARREN PACKAGING CO.,         :
 
                                          :      A R B I T R A T I O N
 
                 Employer,                :
 
                                          :         D E C I S I O N
 
            and                           :
 
                                          :
 
            AETNA CASUALTY & SURETY CO.,  :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
            
 
                              statement of the case
 
            
 
                 This is a proceeding in arbitration upon the petition 
 
            of claimant, Tommy Tucker, Jr., against his employer, Warren 
 
            Packaging Company, and its insurance carrier, Aetna Casualty 
 
            & Surety Company, defendants.  The case was heard on May 24, 
 
            1990, in Davenport, Iowa at the Bicentennial Building.  The 
 
            record consists of the testimony of claimant as well as the 
 
            testimony of Mary Gates, claims supervisor for 
 
            defendant-insurance carrier, and Steven Schaefer, 
 
            superintendent for defendant-employer.  Also, the record 
 
            consists of claimant's exhibits 1-8, 14, 18, 20, 21, 22 and 
 
            defendants' exhibits 2-22.
 
            
 
                                      issues
 
            
 
                 The only issues to be determined are:  1) whether there 
 
            is a causal relationship between the alleged injury and the 
 
            disability; and, 2) whether claimant is entitled to 
 
            temporary disability/healing period benefits or permanent 
 
            partial disability benefits.
 
            
 
                                 findings of fact
 
            
 
                 The deputy, having heard the testimony and considered 
 
            all the evidence, finds:
 
            
 
                 Claimant will be 29 years old.  He has completed the 
 
            eleventh grade but he has no other training.  In September 
 
            of 1982, claimant commenced his employment with 
 
            defendant-employer.  He was hired as a baler operator which 
 
            was a laborer position.
 
            
 
                 On December 3, 1985, claimant was loading bales of 
 
            paper into a boxcar.  He was using a forklift to stack 1000 
 
            pound bales.  One of the bales fell and struck claimant in 
 
            the middle of his back.  The steering wheel of the forklift 
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            hit claimant in the chest area.  Claimant was then 
 
            transported to the hospital by ambulance.
 
            
 
                 Richard A. Roski, M.D., a neurosurgeon, was assigned to 
 
            treat claimant.  Dr. Roski diagnosed claimant as having a 
 
            compression fracture of the T-10 vertebral body.  Claimant 
 
            was assigned bed rest for four weeks after having been 
 
            placed in a molded body jacket.  Physical therapy was also 
 
            prescribed.  Dr. Roski rated claimant as having a three 
 
            percent permanent impairment.  He also referred claimant to 
 
            John M. Hoffman, M.D., for a second opinion.
 
            
 
                 Dr. Hoffman evaluated claimant on March 19, 1987.  He 
 
            found claimant had sustained a compression fracture.  
 
            However, Dr. Hoffman also believed claimant was exaggerating 
 
            some of his complaints.  Dr. Hoffman did not provide an 
 
            impairment rating for claimant.  The physician did not feel 
 
            comfortable rating claimant.  Nor did Dr. Hoffman determine 
 
            there was any neurological problem.
 
            
 
                 Dr. Roski also referred claimant to the University of 
 
            Iowa.  He was examined by Harold P. Adams, Jr., M.D., a 
 
            neurologist.  Dr. Adams opined claimant had post-traumatic 
 
            back pain but that claimant had "little in the way of major 
 
            neurological abnormalities."
 
            
 
                 While at the University of Iowa, claimant was evaluated 
 
            for the spine rehabilitation program by Eugene Gauron, 
 
            Ph.D.,  Dr. Gauron did not recommend claimant for the clinic 
 
            because of claimant's overall emotional attitude.
 
            
 
                 Claimant was also seen at the University of Iowa for a 
 
            functional capacity evaluation.  He left the clinic before 
 
            the tests were completed.  In his report of November 17, 
 
            1988, Ted Wernimont, M.S.W., wrote:
 
            
 
                 Therefore, at the present time, we are unable to 
 
                 speculate on either a healing period or impairment 
 
                 rating, however, we do want to make it very clear 
 
                 to you that we feel that in the vast majority of 
 
                 cases that we see here, which are very similar to 
 
                 yours, primary problem causing disability is 
 
                 severe lack of physical conditioning, a 
 
                 significantly decreased muscle strength as the 
 
                 result of inactivity and over-protection and a 
 
                 great deal of fear of reinjury and fear of 
 
                 activity and exercise.  I do feel very comfortable 
 
                 saying to you that we feel that you should begin 
 
                 an aggressive exercise and activity program which 
 
                 was discussed with you by Mary Lou Fairchild in 
 
                 Physical Therapy.  we realize that this has been a 
 
                 very difficult situation for you over the last 
 
                 several years, however, it may very well be that 
 
                 the world of conventional medicine is not going to 
 
                 be able to offer you any type of a [sic] 
 
                 intervention which is going to provide you a cure.  
 
                 The answer to your getting well and becoming 
 
                 active again will probably depend a great deal on 
 
                 getting involved in a very strict and formal 
 
                 exercise and aerobic program which will slowly 
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
                 work on increasing the amount of flexibility and 
 
                 strength in your back, stomach and lower 
 
                 extremities.  I sincerely hope that you pursue 
 
                 this type of a program, as I do feel it will be 
 
                 very much in your best interest.
 
            
 
                 Claimant also attended a work hardening program at 
 
            Mercy Hospital in Davenport, Iowa.  He did not complete the 
 
            program.  Additionally, claimant had a work capacity 
 
            evaluation performed by Loren L. Arp, LPT, at River 
 
            Rehabilitation.  This was pursuant to Dr. Roski's request.  
 
            Mr. Arp determined in his report to Dr. Roski of October 28, 
 
            1987:
 
            
 
                 This patient was given a work capacity evaluation 
 
                 on 10-20-10-21-87.  His test showed the following 
 
                 work limits:
 
            
 
                    1.  Overhead lifting limit of 10#.
 
                 2.  Pushing at shoulder height limit of 20#.
 
                 3.  Pulling at and above shoulder height limit                
 
            of 20#.
 
                 4.  He was unable to lift up from floor height.               
 
            When testing his floor to shoulder height lift,          
 
            I had to start his lift at 18 inches above the                
 
            floor because he was unable to bend down and                  
 
            lift.  Therefore he is unable to lift from floor         
 
            height.
 
                 5.  His lifting from 18 inches to shoulder 
 
            height           limit = 10#.
 
                 6.  Unlimited walking tolerance.
 
                 7.  No execessive [sic] bending or twisting.
 
                 8.  Uninterupted [sic] driving up to 1-2 hours.
 
            
 
                 In closing I must add that any endurance work will 
 
                 not be successful because during the testing he 
 
                 was able to do only 1-5 repetitions.  This 
 
                 corresponds to extremely poor endurance 
 
                 capabilities.
 
            
 
                 For purposes of an evaluation, claimant, at the request 
 
            of his attorney, was examined by Ralph H. Congdon, M.D., on 
 
            September 7, 1988.  Dr. Congdon opined:
 
            
 
                 My IMPRESSION is one of probable minimal 
 
                 compression fracture of T-10 with unsubstantiated 
 
                 subjective complains [sic] that have apparently 
 
                 been evaluated appropriately although the results 
 
                 of EMGs, myelogram, and other specialized 
 
                 information is not available.
 
            
 
                 I feel the patient is, in fact, to be severely 
 
                 decondition from his injury, but does not show 
 
                 substantial objective evidence for the etiology of 
 
                 his severe pain dysfunction.
 
            
 
                 This patient has one potential salvation in his 
 
                 problem in that it might be appropriate for him to 
 
                 be seen in the back clinic at the University of 
 
                 Iowa for reconditioning and return to normal 
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
                 function.  Certainly, his fair level of 
 
                 dysfunction cannot be explained apparently on the 
 
                 basis of objective evidence from x-rays and other 
 
                 supportive testing.
 
            
 
                 Claimant was also scheduled for an examination at Mayo 
 
            Clinic.  The appointment was made through Dr. Roski's office 
 
            but claimant did not keep his appointment.  No follow-up was 
 
            arranged by claimant nor by his treating physician.
 
            
 
                 Claimant attempted to return to work with 
 
            defendant-employer.  Given his work restrictions, claimant 
 
            was not offered employment.  As of the date of the hearing, 
 
            claimant had not been employed.
 
            
 
                                conclusions of law
 
            
 
                 The claimant has the burden of proving by a 
 
            preponderance of the evidence that the injury of December 3, 
 
            1985, is causally related to the disability on which he now 
 
            bases his claim.  Bodish v. Fischer, Inc., 257 Iowa 516, 133 
 
            N.W.2d 867 (1965).  Lindahl v. L. O. Boggs, 236 Iowa 296, 18 
 
            N.W.2d 607 (1945).  A possibility is insufficient; a 
 
            probability is necessary.  Burt v. John Deere Waterloo 
 
            Tractor Works, 247 Iowa 691, 73 N.W.2d 732 (1955).  The 
 
            question of causal connection is essentially within the 
 
            domain of expert testimony.  Bradshaw v. Iowa Methodist 
 
            Hospital, 251 Iowa 375, 101 N.W.2d 167 (1960). 
 
            
 
                 However, expert medical evidence must be considered 
 
            with all other evidence introduced bearing on the causal 
 
            connection.  Burt, 247 Iowa 691, 73 N.W.2d 732.  The opinion 
 
            of experts need not be couched in definite, positive or 
 
            unequivocal language.  Sondag v. Ferris Hardware, 220 N.W.2d 
 
            903 (Iowa 1974).  However, the expert opinion may be 
 
            accepted or rejected, in whole or in part, by the trier of 
 
            fact.  Id. at 907.  Further, the weight to be given to such 
 
            an opinion is for the finder of fact, and that may be 
 
            affected by the completeness of the premise given the expert 
 
            and other surrounding circumstances.  Bodish, 257 Iowa 516, 
 
            133 N.W.2d 867.  See also Musselman v. Central Telephone 
 
            Co., 261 Iowa 352, 154 N.W.2d 128 (1967).
 
            
 
                 An injury is the producing cause; the disability, 
 
            however, is the result, and it is the result which is 
 
            compensated.  Barton v. Nevada Poultry Co., 253 Iowa 285, 
 
            110 N.W.2d 660 (1961); Dailey v. Pooley Lumber Co., 233 Iowa 
 
            758, 10 N.W.2d 569 (1943).
 
            
 
                 If a claimant contends he has industrial disability he 
 
            has the burden of proving his injury results in an ailment 
 
            extending beyond the scheduled loss.  Kellogg v. Shute and 
 
            Lewis Coal Co., 256 Iowa 1257, 130 N.W.2d 667 (1964).
 
            
 
                 A finding of impairment to the body as a whole found by 
 
            a medical evaluator does not equate to industrial disabil
 
            ity.  This is so as impairment and disability are not syn
 
            onymous.  Degree of industrial disability can in fact be 
 
            much different than the degree of impairment because in the 
 
            first instance reference is to loss of earning capacity and 
 

 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
            in the latter to anatomical or functional abnormality or 
 
            loss.  Although loss of function is to be considered and 
 
            disability can rarely be found without it, it is not so that 
 
            a degree of industrial disability is proportionally related 
 
            to a degree of impairment of bodily function.
 
            
 
                 Factors to be considered in determining industrial dis
 
            ability include the employee's medical condition prior to 
 
            the injury, immediately after the injury, and presently; the 
 
            situs of the injury, its severity and the length of healing 
 
            period; the work experience of the employee prior to the 
 
            injury, after the injury and potential for rehabilitation; 
 
            the employee's qualifications intellectually, emotionally 
 
            and physically; earnings prior and subsequent to the injury; 
 
            age; education; motivation; functional impairment as a 
 
            result of the injury; and inability because of the injury to 
 
            engage in employment for which the employee is fitted.  Loss 
 
            of earnings caused by a job transfer for reasons related to 
 
            the injury is also relevant.  These are matters which the 
 
            finder of fact considers collectively in arriving at the 
 
            determination of the degree of industrial disability.
 
            
 
                 There are no weighting guidelines that indicate how 
 
            each of the factors are to be considered.  There are no 
 
            guidelines which give, for example, age a weighted value of 
 
            ten percent of the total value, education a value of fifteen 
 
            percent of total, motivation - five percent; work experience 
 
            - thirty percent, etc.  Neither does a rating of functional 
 
            impairment directly correlate to a degree of industrial 
 
            disability to the body as a whole.  In other words, there 
 
            are no formulae which can be applied and then added up to 
 
            determine the degree of industrial disability.  It therefore 
 
            becomes necessary for the deputy or commissioner to draw 
 
            upon prior experience, general and specialized knowledge to 
 
            make the finding with regard to degree of industrial dis
 
            ability.  See Peterson v. Truck Haven Cafe, Inc., (Appeal 
 
            Decision, February 28, 1985);  Christensen v. Hagen, Inc., 
 
            (Appeal Decision, March 26, l985).
 
            
 
                 For example, a defendant employer's refusal to give any 
 
            sort of work to a claimant after he suffers his affliction 
 
            may justify an award of disability.  McSpadden v. Big Ben 
 
            Coal Co., 288 N.W.2d 181 (Iowa 1980).
 
            
 
                 Similarly, a claimant's inability to find other 
 
            suitable work after making bona fide efforts to find such 
 
            work may indicate that relief would be granted.  McSpadden, 
 
            388 N.W.2d 181 (Iowa 1980).
 
            
 
                 Claimant has proven by a preponderance of the evidence 
 
            that he has sustained a permanent impairment which was the 
 
            result of his work injury on December 3, 1985.  There was 
 
            minimal evidence of a compression fracture at T-10.  
 
            Claimant had less than a 15 percent deformity at T-10.  
 
            Claimant was provided with work restrictions.  Dr. Roski had 
 
            opined that claimant had a three percent functional 
 
            impairment.
 
            
 
                 Claimant contends he has an industrial disability.  
 
            Claimant is not highly motivated.  He has voluntarily 
 

 
            
 
            Page   6
 
            
 
            
 
            
 
            
 
            terminated his physical therapy.  He has refused to 
 
            participate with the rehabilitation program at the 
 
            University of Iowa.  Claimant has done little in the way of 
 
            job seeking.  He has not been employed since the injury, nor 
 
            does claimant seem amenable to counseling or biofeedback.
 
            
 
                 Claimant is a young man.  He does not have a high 
 
            school education, yet he is employable.  There are no 
 
            physicians who have determined claimant is incapable of 
 
            gainful employment.  His refusal to work is his decision.  
 
            Claimant has not taken any positive steps for retraining.  
 
            Nor have defendants offered employment.  Therefore, in light 
 
            of the foregoing, it is the determination of the undersigned 
 
            that claimant has a permanent partial disability of five 
 
            percent.
 
            
 
                 The next issue to address is the extent of healing 
 
            period benefits to which claimant is entitled.  As of 
 
            November of 1986, claimant had reached maximum medical 
 
            improvement.  He was released to return to work at that time 
 
            by Dr. Roski, the treating physician.  Therefore, claimant 
 
            is entitled to healing period benefits from December 3, 1985 
 
            through November 30, 1986.  This is a period of 51.857 
 
            weeks.  Claimant is to be paid at the stipulated rate of 
 
            $101.67 per week.
 
            
 
                 The third issue to determine is the medical bill of 
 
            $130.00 from River Rehabilitation, Inc.  The medical expense 
 
            is to be paid by defendants.  Dr. Roski, the authorized 
 
            treating physician, referred claimant to Mr. Arp for a work 
 
            capacity evaluation.  Therefore, the evaluation was 
 
            authorized.  Defendants are responsible for the same.
 
            
 
                                      order
 
            
 
                 THEREFORE, IT IS ORDERED:
 
            
 
                 Defendants are to pay claimant permanent partial 
 
            disability benefits for the period starting December 1, 1986 
 
            for twenty-five (25) weeks at the stipulated rate of one 
 
            hundred one and 67/l00 dollars ($101.67).
 
            
 
                 Defendants are to pay claimant healing period benefits 
 
            for the period from December 3, 1985 through November 30, 
 
            1986,  a period of fifty-one point eight-five-seven (51.857) 
 
            weeks at the stipulated rate of one hundred one and 67/l00 
 
            dollars ($101.67) per week.
 
            
 
                 Defendants shall receive credit for all benefits 
 
            previously paid and not credited.
 
            
 
                 Payments that have accrued shall be paid in a lump sum 
 
            together with statutory interest thereon pursuant to Iowa 
 
            Code section 85.30.
 
            
 
                 Defendants are to pay claimant's medical expenses in 
 
            the sum of one hundred thirty and no/l00 dollars ($130.00).
 
            
 
                 Costs of the action shall be assessed to defendants 
 
            pursuant to Division of Industrial Services Rule 343-4.33.  
 

 
            
 
            Page   7
 
            
 
            
 
            
 
            
 
            These include:
 
            
 
                      Deposition of John Hoffman, M.D.      $125.00
 
                 Reporting Services                      96.50
 
                   Linda Faurote-Egbers                  23.40
 
                                                       $244.90
 
            
 
                 Defendants shall file a claim activity report upon 
 
            payment of this award.
 

 
            
 
            Page   8
 
            
 
            
 
            
 
            
 
            
 
            
 
            
 
            
 
            
 
            
 
                 Signed and filed this ____ day of September, 1990.
 
            
 
            
 
            
 
            
 
            
 
                                          ______________________________               
 
            MICHELLE A. McGOVERN
 
                                          DEPUTY INDUSTRIAL COMMISSIONER
 
            
 
            Copies To:
 
            
 
            
 
            Mr. Seymore M. Raben
 
            Attorney at Law
 
            121 W Locust St #102
 
            Davenport  IA  52803
 
            
 
            Mr. Thomas J. Shields
 
            Attorney at Law
 
            600 Davenport Bank Bldg
 
            Davenport  IA  52801
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                               5-1803
 
                                               September 18, 1990
 
                                               MICHELLE A. McGOVERN
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            TOMMY TUCKER, JR.,            :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :         File No. 811078
 
            WARREN PACKAGING CO.,         :
 
                                          :      A R B I T R A T I O N
 
                 Employer,                :
 
                                          :         D E C I S I O N
 
            and                           :
 
                                          :
 
            AETNA CASUALTY & SURETY CO.,  :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
            
 
            5-1803
 
            
 
                 Claimant was awarded a five percent permanent partial 
 
            disability.  Claimant is not highly motivated.  He has 
 
            voluntarily terminated his physical therapy.  He has refused 
 
            to participate with the rehabilitation program at the 
 
            University of Iowa.  Claimant has done little in the way of 
 
            job seeking.  He has not been employed since the injury, nor 
 
            does claimant seem amenable to counseling or biofeedback.
 
            
 
                 Claimant is a young man.  He does not have a high 
 
            school education, yet he is employable.  There are no 
 
            physicians who have determined claimant is incapable of 
 
            gainful employment.  His refusal to work is his decision.  
 
            Claimant has not taken any positive steps for retraining.  
 
            Nor have defendants offered employment.  Therefore, in light 
 
            of the foregoing, it is the determination of the undersigned 
 
            that claimant has a permanent partial disability of five 
 
            percent.
 
            
 
 
         
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
         
 
                     before the iowa industrial commissioner
 
         ____________________________________________________________
 
                                       :
 
         TOMMY TUCKER, JR.,            :
 
                                       :         File No. 811078
 
              Claimant,                :
 
                                       :             N U N C
 
         vs.                           :
 
                                       :              P R O
 
         WARREN PACKAGING CO.,         :
 
                                       :             T U N C
 
              Employer,                :
 
                                       :            O R D E R
 
         and                           :
 
                                       :
 
         AETNA CASUALTY & SURETY CO.,  :
 
                                       :
 
              Insurance Carrier,       :
 
              Defendants.              :
 
         ___________________________________________________________
 
         
 
         There was an inadvertent error in the decision and order of 
 
         September 18, 1990.  The costs should include the following:
 
               Reporting Services
 
                    deposition of Dr. Roski      $176.00
 
         All other portions of the decision and order remain the same.
 
         
 
         
 
              Signed and filed this ____ day of September, 1990.
 
         
 
         
 
         
 
         
 
         
 
                                       ______________________________               
 
         MICHELLE A. McGOVERN
 
                                       DEPUTY INDUSTRIAL COMMISSIONER
 
         
 
         Copies To:
 
         
 
         Mr. Seymore M. Raben
 
         Attorney at Law
 
         121 W Locust St #102
 
         Davenport  IA  52803
 
         
 
         Mr. Thomas J. Shields
 
         Attorney at Law
 
         600 Davenport Bank Bldg
 
         Davenport  IA  52801
 
         
 
 
        
 
 
 
 
 
                       BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
        
 
        
 
        WARREN EVANS,
 
        
 
            Claimant,                    File No. 81141
 
        
 
        vs.                                 A P P E A L
 
        
 
        JOHN MORRELL & COMPANY,           D E C I S I O N
 
        
 
            Employer,
 
            Self-Insured,
 
            Defendant.
 
        
 
                                 STATEMENT OF THE CASE
 
        
 
        Defendant appeals from an arbitration decision awarding permanent 
 
        partial disability benefits based on a binaural hearing loss of 
 
        5.9 percent and the cost of hearing aids.
 
        
 
        The record on appeal consists of the transcript of the 
 
        arbitration hearing; claimant's exhibits A through F; and 
 
        defendant's exhibit 1. Both parties filed briefs on appeal.
 
        
 
                                      ISSUE
 
        
 
        The issue on appeal is whether claimant incurred an occupational 
 
        hearing loss that arose out of and in the course of employment. 
 
        More specifically stated, the issue is whether the deputy erred 
 
        in choosing one audiogram over another for calculating the 
 
        occupational hearing loss.
 
        
 
                                 REVIEW OF THE EVIDENCE
 
        
 
        Claimant began work for defendant in 1964. He worked various jobs 
 
        for defendant until the plant closed in April 1985. Prior to the 
 
        time the plant closed claimant saw the plant nurse to have his 
 
        hearing tested.
 
        
 
        R. David Nelson, M.A., audiologist, conducted an audiological 
 
        evaluation at Nelson's office on May 5, 1986. In a letter dated 
 
        May 6, 1986, Nelson described the results of the air-conduction 
 
        sensitivity in both ears at "borderline levels between normal 
 
        range and mild hearing impairment. His high frequencies, 3000 H 
 
        through 8000 H , show more hearing loss." The test frequencies in 
 
        Hz (Claimant's Exhibit E) were:
 
        
 
                                    500       1k       2k       3k
 
        
 
                        R          30       20       25       45
 
                        L          25       20       20       50
 
        
 
        EVANS V. JOHN MORRELL & COMPANY
 
        Page 2
 
        
 
        
 
        Daniel Jorgensen, M.D., otolaryngologist, examined claimant on 
 
        October 28, 1986. As a part of that examination, Jean Rudkin, 
 
        M.S., audiologist, conducted an audiogram using a soundproof 
 
        booth and an audiometer. The pure tone threshold audiogram 
 
        frequencies in Hz and decibels ANSI 1969 were
 
        
 

 
        
 
 
 
 
 
                 500     1000      2000      3000
 
        
 
        R         20      15        15        30 
 
        L         25      20        15        40
 
        
 
        The file in this matter shows the following: The original notice 
 
        and petition was filed May 9, 1986 and the affidavit of mailing 
 
        notice states that the original notice and petition was served on 
 
        May 8, 1986.
 
        
 
                                 APPLICABLE LAW
 
        
 
        Iowa Code subsection 85B.4(1) (1985) provides in relevant part:
 
        
 
        In the evaluation of occupational hearing loss, only the hearing 
 
        levels at the frequencies of five hundred, one thousand, two 
 
        thousand, and three thousand Hertz shall be considered.
 
        
 
        Iowa Code section 85B.9 (1985) provides:
 
        
 
        Pure tone air conduction audiometric instruments, properly 
 
        calibrated according to accepted national standards used to 
 
        define occupational hearing loss shall be used for measuring 
 
        hearing levels, and the audiograms shall be taken and the tests 
 
        given in an environment as prescribed by accepted national 
 
        standards. If more than one audiogram is taken following notice 
 
        of an occupational hearing loss claim, the audiogram having the 
 
        lowest threshold shall be used to calculate occupational hearing 
 
        loss. If the measured levels of hearing average less than those 
 
        levels that constitute an occupational hearing loss, the losses 
 
        of hearing are not a compensable hearing disability. Audiometric 
 
        examinations shall be made by, a person who is certified by the 
 
        council of accreditation in occupational hearing conservation or 
 
        by persons trained by formal course work in air conduction 
 
        audiometry at an accredited educational institution or licensed 
 
        as audiologists under chapter 147, as physicians under chapter 
 
        148, as osteopathic physicians under chapter 150, or as 
 
        osteopathic physicians and surgeons under chapter l5OA if such 
 
        licensed persons are trained in air conduction audiometry. The 
 
        interpretation of the audiometric examination shall be by the 
 
        employer's
 
        
 
        EVANS V. JOHN MORRELL & COMPANY
 
        Page 3
 
        
 
        
 
        regular or consulting physician who is trained and has had 
 
        experience with such interpretation, or by a licensed 
 
        audiologist. If the employee disputes the interpretation, the 
 
        employee may select a physician similarly trained and experienced 
 
        or a licensed audiologist to give an interpretation of the 
 
        audiometric examination. This section is applicable in the event 
 
        of partial permanent or total permanent occupational hearing loss 
 
        in one or both ears. (Emphasis added)
 
        
 
        The Iowa Supreme Court has applied general rules of statutory 
 
        construction. One of those rules is that where language is clear 
 
        and plain, there is no room for construction. See American Home 
 
        Products v. Iowa State Board of Tax Review, 302 N.W.2d 140 (Iowa 
 
        1981). A court in searching for legislative intent looks at what 
 
        the legislature said, not what it might or should have said. See 
 
        Dolezal v. City of Cedar Rapids, 326 N.W.2d 355 (Iowa 1982).
 
        
 
                                      ANALYSIS
 
        
 
        Defendant argues on appeal that the lower threshold of the two 
 

 
        
 
 
 
 
 
        audiograms (the one taken by Jorgensen) which showed no 
 
        compensable loss should be the one used. Claimant responds that 
 
        the deputy correctly used the second audiogram (the one taken by 
 
        Nelson) which showed a compensable loss. Claimant argues that the 
 
        deputy was correct because he had discretion to accept or reject 
 
        evidence he deems appropriate. Claimant further argues that 
 
        legislative history is contrary to defendant's interpretation.
 
        
 
        Defendant's argument is persuasive for two reasons. The first 
 
        reason is that the language in section 85B.9 supra, is clear and 
 
        there is no room for construction. The unambiguous language of 
 
        the statute is that the audiogram having the lowest threshold 
 
        taken following the notice of a claim shall be used to calculate 
 
        occupational hearing loss. The audiogram taken by Jorgensen has 
 
        the lower threshold of the two and it should be used to calculate 
 
        the hearing loss. If this audiogram is used there is no 
 
        compensable hearing disability when the calculation provided for 
 
        in Iowa Code section 85B.9 (1985) is performed.
 
        
 
        The second reason that the Jorgensen audiogram should be used is 
 
        that it is the only one taken subsequent to the filing of notice 
 
        of occupational hearing loss claim and consequently it is the 
 
        lowest one conducted after the notice of the claim. The file in 
 
        this case indicates that the notice of an occupational hearing 
 
        loss claim would be the original notice and petition which was 
 
        served on May 8, 1986 and was filed on May 9, 1986. The audiogram 
 
        taken by Nelson was on May 5, 1986 and the audiogram taken by 
 
        Jorgensen was on October 28, 1986. Only the lowest threshold 
 
        audiogram taken subsequent
 
        
 
        EVANS V. JOHN MORRELL & COMPANY
 
        Page 4
 
        
 
        to the filing of notice of occupational hearing loss claim can be 
 
        used to determine the extent of claimant's hearing loss. Weyant 
 
        v. John Deere Dubuque Works of Deere and Company, (Appeal 
 
        Decision, February 22, 1988) and Furry v. John Deere Dubuque 
 
        Works of Deere and Company, (Appeal Decision, November 12, 1986).
 
        
 
        It should be noted that claimant has not demonstrated and does 
 
        not argue that the audiogram taken by Jorgensen does not comply 
 
        with the requirements of section 85B.9. It should also be noted 
 
        that for the applicable frequencies of 500, 1000, 2000, and 3000 
 
        Hertz, the two audiograms show generally the same patterns, 
 
        namely, that the thresholds for the right and left ears at each 
 
        frequency are within five decibels of one another and the decibel 
 
        thresholds are higher at the upper and lower frequency than they 
 
        are at the middle frequency. There is nothing indicated which 
 
        would lead to the conclusion that the audiogram taken by 
 
        Jorgensen is erroneous. The audiogram taken by Jorgensen complies 
 
        with the requirements of section 85B.9.
 
        
 
                                 FINDINGS OF FACT
 
        
 
        1. Claimant started working for defendant in 1964.
 
        
 
        2. Claimant's original notice and petition alleging an 
 
        occupational hearing loss was filed on May 9, 1986.
 
        
 
        3. The only audiogram after May 9, 1986 was taken by Dr. 
 
        Jorgensen on October 28, 1986.
 
        
 
        4. The audiogram taken by Dr. Jorgensen had a lower threshold 
 
        than the audiogram taken by R. David Nelson.
 
        
 
        5. Based on the calculation provided in section 85B.9, claimant 
 

 
        
 
 
 
 
 
        has no hearing loss in excess of 25 decibels.
 
        
 
        6. Claimant has no compensable hearing disability.
 
        
 
                                 CONCLUSION OF LAW
 
                                                
 
        Claimant has not proved by the greater weight of evidence that he 
 
        incurred a compensable occupational hearing loss that arose out 
 
        of and in the course of his employment with defendant.
 
        
 
        WHEREFORE, the decision of the deputy is reversed.
 
        
 
                                      ORDER
 
                                                
 
        THEREFORE, it is ordered:
 
        
 
        That claimant take nothing from this proceeding.
 
        
 
        EVANS V. JOHN MORRELL & COMPANY
 
        Page 5
 
        
 
        
 
        That defendant pay the costs including the costs of transcription 
 
        of the arbitration hearing pursuant to Division of Industrial 
 
        Services Rule 343-4.33.
 
        
 
        
 
        Signed and filed this 25th day of August, 1988.
 
        
 
        
 
        
 
                                           DAVID E. LINQUIST
 
                                        INDUSTRIAL COMMISSIONER
 
        
 
        
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         WARREN EVANS,
 
         
 
              Claimant,
 
                                               File No. 811414
 
         vs.
 
         
 
         JOHN MORRELL & COMPANY,                 A P P E A L
 
         
 
              Employer,                        D E C I S I 0 N
 
              Self-Insured,
 
              Defendant.
 
         
 
                              STATEMENT OF THE CASE
 
         
 
              Defendant appeals from an arbitration decision awarding 
 
         permanent partial disability benefits based on a binaural hearing 
 
         loss of 5.9 percent and the cost of hearing aids.
 
         
 
              The record on appeal consists of the transcript of the 
 
         arbitration hearing; claimant's exhibits A through F; and 
 
         defendant's exhibit 1.  Both parties filed briefs on appeal.
 
         
 
                                      ISSUE
 
         
 
              The issue on appeal is whether claimant incurred an 
 
         occupational hearing loss that arose out of and in the course of 
 
         employment.  More specifically stated, the issue is whether the 
 
         deputy erred in choosing one audiogram over another for 
 
         calculating the occupational hearing loss.
 
         
 
                              REVIEW OF THE EVIDENCE
 
         
 
              Claimant began work for defendant in 1964.  He worked 
 
         various jobs for defendant until the plant closed in April 1985.  
 
         Prior to the time the plant closed claimant saw the plant nurse 
 
         to have his hearing tested.
 
         
 
              R. David Nelson, M.A., audiologist, conducted an 
 
         audiological evaluation at Nelson's office on May 5, 1986.  In a 
 
         letter dated May 6, 1986, Nelson described the results of the 
 
         air-conduction sensitivity in both ears at "borderline levels 
 
         between normal range     and mild hearing impairment.  His high 
 
         frequencies, 3000 H z through 8000 H  z, show more hearing loss."  
 
         The test frequencies in H z (ClaimantOs.Exhibit E) were:
 
         
 
                       500          1k           2k         3k
 
         
 
              R         30          20           25         45
 
              L         25          20           20         50
 
         
 
              Daniel Jorgensen, M.D., otolaryngologist, examined claimant 
 
         on October 28, 1986.  As a part of that examination, Jean Rudkin, 
 
         M.S., audiologist, conducted an audiogram using a soundproof 
 
         booth and an audiometer.  The pure tone threshold audiogram 
 
         frequencies in H z and decibels ANSI 1969 were:
 
         
 
                     500          1000           2000        3000
 
         
 

 
         
 
         
 
         
 
         EVANS V. JOHN MORRELL & COMPANY
 
         PAGE   2
 
         
 
              R       20            15             15          30
 
              L       25            20             15          40
 
         
 
              The file in this matter shows the following:  The original 
 
         notice and petition was filed May 9, 1986 and the affidavit of 
 
         mailing notice states that the original notice and petition was 
 
         served on May 8, 1986.
 
         
 
                                  APPLICABLE LAW
 
         
 
              Iowa Code subsection 85B.4(l) (1985) provides in relevant 
 
         part:
 
         
 
                 In the evaluation of occupational hearing loss, only 
 
              the hearing levels at the frequencies of five hundred, 
 
              one thousand, two thousand, and three thousand Hertz 
 
              shall be considered.
 
         
 
              Iowa Code section 85B.9 (1985) provides:
 
         
 
                 Pure tone air conduction audiometric instruments, 
 
              properly calibrated according to accepted national 
 
              standards used to define occupational hearing loss 
 
              shall be used for measuring hearing levels, and the 
 
              audiograms shall be taken and the tests given in an 
 
              environment as prescribed by accepted national 
 
              standards.  If more than one audiogram is taken 
 
              following notice of an occupational hearing loss claim, 
 
              the audiogram having the lowest threshold shall be used 
 
              to calculate occupational hearing loss.  If the 
 
              measured levels of hearing.average less than those 
 
              levels that constitute an occupational hearing loss, 
 
              the losses of hearing are not a compensable hearing 
 
              disability..  Audiometric examinations shall be made by 
 
              a person who is certified by the council of 
 
              accreditation in occupational hearing conservation or 
 
              by persons trained by formal course work in air 
 
              conduction audiometry at an accredited educational 
 
              institution or licensed as audiologists under chapter 
 
              147, as physicians under chapter 148, as osteopathic 
 
              physicians under chapter 150, or as osteopathic 
 
              physicians and surgeons under chapter 150A if such 
 
              licensed persons are trained in air conduction 
 
              audiometry.  The interpretation of the audiometric 
 
              examination shall be by the employer's regular or 
 
              consulting physician who is trained and has had 
 
              experience with such interpretation, or by a licensed 
 
              audiologist.  If the employee disputes the 
 
              interpretation, the employee may select a physician 
 
              similarly trained and experienced or a licensed 
 
              audiologist to give an interpretation of the 
 
              audiometric examination.  This section is applicable in 
 
              the event of partial permanent or total permanent 
 
              occupational hearing loss in one or both ears. 
 
              (Emphasis added)
 
         
 
              The Iowa Supreme Court has applied general rules of 
 
         statutory construction. one of those rules is that where language 
 
         is clear and plain, there is no room for construction.  See 
 
         American Home Products v. Iowa State Board of Tax Review, 302 
 

 
         
 
         
 
         
 
         EVANS V. JOHN MORRELL & COMPANY
 
         PAGE   3
 
         
 
         N.W.2d 140 (Iowa 1981).  A court in searching for legislative 
 
         intent looks at what the legislature said, not what it might or 
 
         should have said.  See Dolezal v. City of Cedar Rapids, 326 
 
         N.W.2d 355 (Iowa 1982).
 
         
 
                                     ANALYSIS
 
         
 
              Defendant argues on appeal that the lower threshold of the 
 
         two audiograms (the one taken by Jorgensen) which showed no 
 
         compensable loss should be the one used.  Claimant responds that 
 
         the deputy correctly used the second audiogram (the one taken by 
 
         Nelson) which showed a compensable loss.  Claimant argues that 
 
         the deputy was correct because he had discretion to accept or 
 
         reject evidence he deems appropriate.  Claimant further argues 
 
         that legislative history is contrary to defendant's 
 
         interpretation.
 
         
 
              Defendant's argument is persuasive for two reasons.  The 
 
         first reason is that the language in section 85B.9 supra, is 
 
         clear and there is no room for construction.  The unambiguous 
 
         language of the statute is that the audiogram having the lowest 
 
         threshold taken following the notice of a claim shall be used to 
 
         calculate occupational hearing loss.  The audiogram taken by 
 
         Jorgensen has the lower threshold of the two and it should be 
 
         used to calculate the hearing loss.  If this audiogram is used 
 
         there is no compensable hearing disability when the calculation 
 
         provided for in Iowa Code section 85B.9 (1985) is performed.
 
         
 
              The second reason that the Jorgensen audiogram should be 
 
         used is that it is the only one taken subsequent to the filing of 
 
         notice of occupational hearing loss claim and consequently it is 
 
         the lowest one conducted after the notice of the claim.  The file 
 
         in this case indicates that the notice of an occupational hearing 
 
         loss claim would be the original notice and petition which was 
 
         served on May 8, 1986 and was filed on May 9, 1986.  The 
 
         audiogram taker) by Nelson was on May 5, 1986 and the audiogram 
 
         taken by Jorgensen was on October 28, 1986. only the lowest 
 
         threshold audiogram taken subsequent to the filing of notice of 
 
         occupational hearing loss claim can be used to determine the 
 
         extent of claimant's hearing loss.  Weyant v. John Deere Dubuque 
 
         Works of Deere and Company, (Appeal Decision, February 22, 1988) 
 
         and Furry v. John Deere Dubuque Works of Deere and Company, 
 
         (Appeal Decision, November 12, 1986).
 
         
 
              It should be noted that claimant has not demonstrated and 
 
         does not argue that the audiogram taken by Jorgensen does not 
 
         comply with the requirements of section 85B.9.  It should also be 
 
         noted that for the applicable frequencies of 500, 1000, 2000, and 
 
         3000 Hertz, the two audiograms show generally the same patterns, 
 
         namely, that the thresholds for the right and left ears at each 
 
         frequency are within five decibels of one another and the decibel 
 
         thresholds are higher at the upper and lower frequency than they 
 
         are at the middle frequency.  There is nothing indicated which 
 
         would lead to the conclusion that the audiogram taken by 
 
         Jorgensen is erroneous.  The audiogram taken by Jorgensen 
 
         complies with the requirements of section 85B.9.
 
         
 
                                 FINDINGS OF FACT
 
         
 
              1.  Claimant started working for defendant in 1964.
 

 
         
 
         
 
         
 
         EVANS V. JOHN MORRELL & COMPANY
 
         PAGE   4
 
         
 
         
 
              2.  Claimant's original notice and petition alleging an 
 
         Occupational hearing loss was filed on May 9, 1986.
 
         
 
              3.  The only audiogram after May 9, 1986 was taken by Dr. 
 
         Jorgensen on October 28, 1986.
 
         
 
              4.  The audiogram taken by Dr. Jorgensen had a lower 
 
         threshold than the audiogram taken by R. David Nelson.
 
         
 
              5.  Based on the calculation provided in section 85B.9, 
 
         claimant has no hearing loss in excess of 25 decibels.
 
         
 
              6.  Claimant has no compensable hearing disability.
 
         
 
                                CONCLUSION OF LAW
 
         
 
              Claimant has not proved by the greater weight of evidence 
 
         that he incurred a compensable occupational hearing loss that 
 
         arose out of and in the course of his employment with defendant.
 
         
 
              WHEREFORE, the decision of the deputy is reversed.
 
         
 
                                      ORDER
 
         
 
              THEREFORE, it is ordered:
 
         
 
              That claimant take nothing from this proceeding.
 
         
 
              That defendant pay the costs including the costs of 
 
         transcription of the arbitration hearing pursuant to Division of 
 
         Industrial Services Rule 343-4.33.
 
         
 
         
 
              Signed and filed this 25th day of August, 1988.
 
         
 
         
 
         
 
         
 
                                               DAVID E. LINQUIST
 
                                               INDUSTRIAL COMMISSIONER
 
         
 
         
 
         Copies to:
 
         
 
         Mr. E. W. Wilcke
 
         Attorney at Law
 
         826 1/2 Lake St
 
         P.O. Box 455
 
         Spirit Lake, IA 51360
 
         
 
         Mr. Dick H. Montgomery
 
         Attorney at Law
 
         Professional Bldg.
 
         P.O. Box 7038
 
         Spencer, IA 51301
 
         
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                              2208
 
                                              Filed August 25, 1988
 
                                              DAVID E. LINQUIST
 
         
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         WARREN EVANS,
 
         
 
              Claimant,
 
                                                File No. 811414
 
         vs.
 
         
 
         JOHN MORRELL & COMPANY,                 A P P E A L
 
         
 
              Employer,                         D E C I S I 0 N
 
              Self-Insured,
 
              Defendant.
 
         
 
         
 
         
 
         2208
 
         
 
              The only audiogram conducted after the notice of the 
 
         occupational hearing loss claim was relied upon to find that 
 
         claimant had no occupational hearing loss.  In this case the 
 
         notice of the occupational hearing loss claim was the original 
 
         notice and petition.  The appeal decision followed the holding in 
 
         Dale J. Furry, Appeal Decision, November 12, 1986.
 
 
 
         
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                           
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         WARREN EVANS,
 
         
 
              Claimant,                            File  No.  811414
 
         
 
         VS.
 
                                                A R B I T R A T I 0 N
 
         JOHN MORRELL & COMPANY,
 
                                                   D E C I S I 0 N
 
              Employer,
 
              Self-Insured,
 
              Defendant.
 
         
 
                              STATEMENT OF THE CASE
 
         
 
              This is a proceeding brought by Warren Evans, claimant, 
 
         against John Morrell & Company (Morrell), a self-insured 
 
         employer, for benefits under chapter 85B, Code of Iowa.  A 
 
         hearing was held in Storm Lake, Iowa, on February 3, 1987 and the 
 
         case was submitted on that date.
 
         
 
              The record consists of the testimony of claimant, Patricia 
 
         Evans, Wayne Christophel and Larry Bebo; claimant's exhibits A 
 
         through F; and defendant's exhibit 1.  Both parties filed a 
 
         brief.  The exhibit list given to the hearing deputy at time of 
 
         the hearing reads as follows:
 
         
 
              RE:  Warren Evans vs. John Morrell & Company - File
 
              #811414
 
         
 
              Plaintiff's Exhibits:
 
         
 
              A.  Physical examination given workman for 
 
              employment with John Morrell & Company employed 
 
              12-16-64.
 
         
 
              B.  Noise level survey conducted at the John 
 
              Morrell plant in Estherville by OSHA.
 
         
 
              C.  Noise level survey conducted at the John 
 
              Morrell plant in Estherville by John Morrell & 
 
              Company.
 
         
 
              D.   Report from C. B. Carignan, M.A., dated 
 
              11-12-86.
 
         
 
              E.   Letter of R. David Nelson, M.A., Audiologist 
 
              of Nelson Hearing Aid Service dated 5-6-86 with
 
         
 
              hearing report attached.
 
         
 
              F.  Estimate of cost of hearing aid by R. David
 
                Nelson,- Audiologist dated 7-15-86.
 
         
 
              Defendant's Exhibits:
 
         
 
              Report of Daniel L. Jorgensen dated 10-28-86. (Deposition 
 

 
              Exhibits included in Exhibit 1.)
 
         
 
              1.  Deposition of Daniel L. Jorgensen dated 1-29-.87.
 
         
 
              The parties stipulated that claimant's weekly rate of 
 
         compensation is $218.49 and that any weekly benefits awarded 
 
         would commence on April 27, 1985.
 
         
 
                                      ISSUES
 
         
 
              The contested issues are:
 
         
 
              1)  Whether this action is barred by Iowa Code section 85.23 
 
         because the employer herein was not given notice of, nor did this 
 
         employer have actual knowledge of, claimant's alleged 
 
         occupational hearing loss;
 
         
 
              2)  Whether this action is barred by Iowa Code section 85.26 
 
         because it was not timely filed;
 
         
 
              3)  Whether claimant sustained an occupational hearing loss 
 
         under chapter 85B, Code of Iowa; that is, whether claimant is 
 
         entitled to occupational hearing loss benefits under chapter 85B, 
 
         Code of Iowa;
 
         
 
              4)  Nature and extent of disability; that is, the number of 
 
         weeks of permanent partial disability benefits owing; and
 
         
 
              5)  Whether defendant shall pay the cost of a hearing aid or 
 
         aids pursuant to Iowa Code section 85B.12.
 
         
 
                             SUMMARY OF THE EVIDENCE
 
         
 
              Claimant testified that he was born on March 21, 1942 and 
 
         served nearly four years in the U.S. Air Force.  In the military, 
 
         he worked in an office and was discharged in 1964 without a 
 
         hearing problem that he knew of.  In 1964, he started work for 
 
         Morrell and was given a physical examination which determined 
 
         that his hearing was normal.  See exhibit A.  Initially, at 
 
         Morrell he tied hides in the cellar but ultimately worked on a 
 
         head table on the beef kill floor.  He also worked in the 
 
         fabrication department and on night cleanup at the pork plant.
 
         
 
              Claimant testified that the noisiest area was in the pork 
 
         plant near a dehairer on the kill floor.  In 1982 or 1983, 
 
         hearing protection devices were first provided after noise level 
 
         studies were done.  A plant nurse gave claimant a hearing loss 
 
         test and told him he had a Ohigh hearing loss."  He stated that 
 
         it was not possible to carry on a normal conversation near the 
 
         dehairer station. on cleanup, a grinder made a lot of noise.  
 
         After leaving the fabrication room, claimant would have ringing 
 
         in his ears.  Dr. Jorgensen has attempted to sell claimant a 
 
         hearing aid.  His hearing is getting worse every year; his 
 
         hearing problem started in 1980.  He currently manages a coffee 
 
         shop and pool hall in Estherville, Iowa.
 
         
 
              Patricia Evans married claimant in 1966 and he had no 
 
         hearing loss at that time.  He had ringing in his ears when he 
 
         came home from his work at Morrell and she knows of no other 
 
         source of his hearing loss.
 
         
 
              Wayne Christophel testified that he worked at Morrell in 
 
         Estherville starting on December 3, 1956.  He started on pork 
 
         kill and then went to pork cut and then beef fabricating.  He 
 
         knows claimant; they first worked together at Morrell in 1964 at 
 

 
         
 
         
 
         
 
         EVANS V. JOHN MORRELL & COMPANY
 
         Page   3
 
         
 
         
 
         which time claimant had no hearing problem.  Christophel 
 
         testified that the beef fabricating room was the noisiest area.
 
         
 
             Larry Bebo testified that he worked in both the beef plant 
 
         and the pork plant.  He met claimant in the 1960's and claimant 
 
         had no hearing problem at the time they met.  Claimant now has a 
 
         hearing problem.
 
         
 
              Exhibit D, page 1 (dated November 12, 1986), is authored by
 
         C. B. Carignan, Jr., M.D., and reads in part:
 
         
 
              When Mr. Evans was employed at the Morrell packing 
 
              plant at Estherville, Iowa in October 1964 his 
 
              hearing was normal.  In May of 1965 he began 
 
              working at the head table at the packing plant 
 
              where he worked with and near power saws in an 
 
              extremely noisy area.  He was employed at this 
 
              location until 1970 when he was transferred to 
 
              fabrication, an equally noisy environment.  He 
 
              worked there until 1983 when he transferred to a 
 
              general cleanup job at the beef plant.
 
         
 
              In 1982 or 1983 his hearing was tested at the 
 
              plant and hearing protection was issued to the 
 
              workers at the plant after that time until the 
 
              plant closed.
 
         
 
              Exhibit D, page 2, describes a binaural hearing impairment 
 
         of 5.9 percent and also reads in part:
 
         
 
              In view of this report and the history I obtained 
 
              from Mr. Evans I feel that with reasonable medical 
 
              certainty, Mr. Evans' hearing impairment resulted 
 
              from his continued exposure to the high noise 
 
              environment at his workplace at the John Morrell 
 
              packing plant at Estherville, Iowa.
 
         
 
              Exhibit F, page 1, states R. David Nelson's estimate as to 
 
         the cost of a hearing aid.
 
         
 
              Exhibit 1 is the deposition of Daniel Jorgensen, M.D., taken 
 
         on January 29, 1987.  Dr. Jorgensen is an otolaryngologist.  He 
 
         has a soundproof booth and an audiometer.  He has a person with a 
 
         master's degree in audiology do the audiograms.  Dr. Jorgensen 
 
         examined claimant on October 28, 1986 and took a history.  
 
         Deposition exhibit 1 describes and audiogram performed on October 
 
         28, 1986.
 
         
 
              On page 8-10, Dr. Jorgensen stated:
 
         
 
              A.  As I look at an audiogram like that I have to 
 
              say that from his history noise has contributed to 
 
              some of his hearing loss when we see this high 
 
              frequency drop off as it does.  Not having an 
 
              upslope at 8000 doesn't make it classic.  The fact 
 
              that he is below normal in the lower frequencies 
 
              again is not consistent with a noise-induced loss.  
 
              It would imply some sort of predisposition either 
 
              due to age or familial factors.
 

 
         
 
         
 
         
 
         EVANS V. JOHN MORRELL & COMPANY
 
         Page   4
 
         
 
         
 
         
 
              On page 11, Dr. Jorgensen stated that claimant's Morrell 
 
         work was a "contributing factor" to his hearing loss.  On page 
 
         12, he stated that he did not know the extent of claimant's noise 
 
         exposure at Morrell nor did he know the condition of claimant's 
 
         hearing when he started Morrell.
 
         
 
                           APPLICABLE LAW AND ANALYSIS
 
         
 
              I.  Does Iowa Code section 85.23 apply to occupational 
 
         hearing loss cases?  It is concluded that section 85.23 does 
 
         apply to this class of case as it is not inconsistent with 
 
         chapter 85B.  See Iowa Code section 85B.14. The Iowa Supreme 
 
         Court stated in Dillinger v. City of Sioux City, 368 N.W.2d 176, 
 
         179 (Iowa 1985):
 
         
 
              I.  Notice under section 85.23.  In pertinent 
 
              part, section 85.23 requires the employee to give 
 
              the employer notice within 90 days after the 
 
              occurrence of the injury "unless the employer or 
 
              his representative shall have actual knowledge of 
 
              the occurrence of an injury.O  Consequently, an 
 
              employee who fails to give a timely notice may 
 
              still avoid the sanction of section 85.23 if the 
 
              employer had "actual knowledge of the occurrence 
 
              of the injury."  The discovery rule delays the 
 
              commencement of a limitation period, for bringing 
 
              a cause of action or for giving notice, until the 
 
              injured person has in fact discovered his injury 
 
              or by exercise of reasonable diligence should have 
 
              discovered it.  Orr, 298 N.W.2d at 257.
 
         
 
              It will be found in this case that the defendant had actual 
 
         knowledge of claimant's alleged hearing loss prior to the the 
 
         occurrence of an injury" in this case.  The injury did not 
 
         Ooccur" in this case until the plant closed on April,27, 1985.  
 
         Dillinger is authority for the proposition that Iowa Code 
 
         section 85.23 may be complied with prior to the occurrence of an 
 
         injury.  Id. at 180.  Claimant did not realize the compensable 
 
         nature of his hearing loss until a hearing test was conducted by 
 
         a company nurse in the early 1980's.  This hearing test provided 
 
         the defendant with actual knowledge of claimant's alleged 
 
         occupational hearing loss.
 
         
 
              II.  Is this claim time barred by Iowa Code section 85.26? 
 
         Section 85B.8 provides in part:
 
         
 
              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.
 
         
 

 
         
 
         
 
         
 
         EVANS V. JOHN MORRELL & COMPANY
 
         Page   5
 
         
 
         
 
                   3.  Termination of the employer-employee relationship.  
 
              (Emphasis supplied.)
 
         
 
              Claimant in this case separated from his Morrell employment 
 
         on April 27, 1985 and as stated above his cause of action accrued 
 
         at that time.  His petition was filed on May 9, 1986.  The Iowa 
 
         Supreme Court held in Chrisohilles v. Griswold, 260 Iowa 453, 461 
 
         150 N.w.2d 94, 100 (1967) that a statute of limitations "cannot 
 
         commence to run until the cause of action accrues.O  In this case 
 
         the cause of action did not accrue until April 27, 1985 when 
 
         claimant separated from Morrell.  Claimant filed his petition 
 
         within two years of April 27, 1985.  This claim is not time 
 
         barred.  In accordance with Iowa Code section 85B.8 claimant 
 
         waited until six months after his separation from Morrell to file 
 
         this action.
 
         
 
              III.  The question of whether claimant sustained an 
 
         occupational hearing loss, by definition, includes the question 
 
         of whether a causal relationship exists between claimant's 
 
         industrial noise exposure and his current hearing loss.  Section 
 
         85B.4(l) provides:
 
         
 
              Occupational hearing loss means a permanent sensorineural 
 
              loss of hearing in one or both ears in excess of twenty-five 
 
              decibels if measured from international standards 
 
              organization or American National standards institute zero 
 
              reference level, which arises out of and in the course of 
 
              employment caused by prolonged exposure to excessive noise 
 
              levels.
 
         
 
              In the evaluation of occupational hearing loss, only the 
 
              hearing levels at the frequencies of five hundred, one 
 
              thousand, two thousand, and three thousand Hertz shall be 
 
              considered.
 
         
 
              Section 85B.4(l) requires that a claimant's hearing loss 
 
         both be a permanent sensorineural loss in excess of 25 decibels 
 
         and that it arise out of and in the course of his employment 
 
         because of prolonged exposure to excessive noise levels.
 
         
 
              Claimant has the burden of proving by a preponderance of the 
 
         evidence that he received an injury which arose out of and in the 
 
         course of his employment.  McDowell v. Town of Clarksville, 241 
 
         N.W.2d 904 (Iowa 1976); Musselman v. Central Telephone Co., 261 
 
         Iowa 352, 154 N.W.2d 128 (1967).
 
         
 
              Section 85B.6 provides maximum compensation of 175 weeks for 
 
         total occupational hearing loss with partial occupational hearing 
 
         loss compensation proportionate to total hearing loss.
 
         
 
              Claimant has established by the greater weight of the 
 
         evidence that he sustained hearing loss from his work at Morrell 
 
         and that all his hearing loss is attributable to his Morrell 
 
         employment.
 
         
 
              IV.  Claimant's binaural hearing loss is 5.9 percent 
 
         entitling him to 10.325 weeks (5.9 percent of 175 weeks) of 
 
         permanent partial disability benefits at a rate of $218.49.
 
         
 

 
         
 
         
 
         
 
         EVANS V. JOHN MORRELL & COMPANY
 
         Page   6
 
         
 
         
 
               V.  Claimant is entitled to the least expensive hearing aid 
 
         provided by Dr. Jorgensen, Mr. Nelson, or another provider, at 
 
         the cost of the defendant.
 
         
 
                                 FINDINGS OF FACT
 
         
 
              1.  Claimant was born on March 21, 1942.
 
         
 
              2.  Claimant started working for Morrell in Estherville, 
 
         Iowa in 1964.
 
         
 
              3.  All of claimant's hearing loss was sustained as a result 
 
         of his Morrell employment.
 
         
 
              4.  Claimant did not realize that his hearing loss was 
 
         work-related until Morrell did a hearing test in the early 
 
         1980's; this test provided defendant with actual knowledge of 
 
         claimant's alleged occupational hearing loss.
 
         
 
              5.  Claimant's binaural hearing loss is 5.9 percent.
 
         
 
              6.  Claimant's stipulated weekly rate of compensation is 
 
         $218.49.
 
         
 
         
 
                                CONCLUSIONS OF LAW
 
         
 
              1.  Claimant established entitlement to ten point three 
 
         twenty-five (10.325) weeks of permanent partial disability 
 
         benefits commencing on April 27, 1985 at a rate of two hundred 
 
         eighteen and 49/100 dollars ($218.49).
 
         
 
              2.  Claimant established entitlement to the cost of the 
 
         least expensive hearing aid or aids.
 
         
 
         
 
                                      ORDER
 
         
 
              IT IS THEREFORE ORDERED:
 
         
 
              That defendant pay the benefits described above.
 
         
 
              That defendant pay accrued benefits in a lump sum and pay 
 
         interest pursuant to section 85.30, The Code.
 
         
 
              That defendant pay the costs of this action pursuant to 
 
         Division of Industrial Services Rule 343-4.33, formerly 
 
         Industrial Commissioner Rule 500-4.33.
 
         
 
              That defendant shall file claim activity reports, pursuant 
 
         to Industrial Services Rule 343-3.1(2), formerly Industrial 
 
         Commissioner Rule 500-3.1(2), as requested by the agency.
 
         
 
         
 
              Signed and filed this 18th day of March, 1987.
 
         
 
         
 
         
 
         
 

 
         
 
         
 
         
 
         EVANS V. JOHN MORRELL & COMPANY
 
         Page   7
 
         
 
         
 
         
 
         
 
         
 
                                        T. J. McSWEENEY
 
                                        DEPUTY INDUSTRIAL COMMISSIONER
 
         
 
         
 
         
 
         Copies to:
 
         
 
         Mr. E. W. Wilcke
 
         Attorney at Law
 
         P.O. Box 455
 
         826 1/2 Lake Street
 
         Spirit Lake, Iowa 51360
 
         
 
         Mr. Dick H. Montgomery
 
         Attorney at Law
 
         P.O. Box 7038
 
         Spencer, Iowa 51301
 
         
 
         
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                                          2208
 
                                                          Filed 3-18-87
 
                                                          T. J. McSweeney
 
         
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         WARREN EVANS,
 
         
 
              Claimant,                             File No. 811414
 
         VS.
 
                                                 A R B I T R A T I 0 N
 
         JOHN MORRELL & COMPANY,
 
                                                    D E C I S I 0 N
 
              Employer,
 
              Self-Insured,
 
              Defendant.
 
         
 
         
 
         
 
         2208
 
         
 
              Held in occupational hearing loss case as follows
 
         
 
              1)  That Iowa Code section 85.23 applied in occupational 
 
         hearing loss cases;
 
         
 
              2)  That claimant's action is not barred by Iowa Code 
 
         section 85.23 because defendant had actual knowledge of 
 
         claimant's alleged occupational hearing loss within ninety (90) 
 
         days of claimant discovering its compensable nature;
 
         
 
              3)  That claimant's action is not barred by Iowa Code 
 
         section 85.26 because this action was filed within two years of 
 
         the accrual of claimant's cause of action, which accrued when the 
 
         Morrell plant closed on April 27, 1985;
 
         
 
              4)  That claimant established by a preponderance of the 
 
         evidence that he sustained some hearing loss and that all of this 
 
         loss was attributable to his Morrell employment; and
 
         
 
             5)  That claimant is entitled to the cost of a hearing aid.
 
 
 
         
 
         
 
 
         
 
         
 
         
 
         
 
         
 
         
 
                    BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         _________________________________________________________________
 
                     
 
         THOMAS HANIGAN,       
 
                     
 
              Claimant,   
 
                     
 
         vs.         
 
                                                 File No. 811620
 
         HEDSTROM CONCRETE PRODUCTS,     
 
         INC.,                                    A P P E A L
 
                            
 
              Employer,                         D E C I S I O N 
 
                            
 
         and         
 
                     
 
         FIREMAN'S FUND INSURANCE,       
 
                     
 
              Insurance Carrier,    
 
              Defendants.      
 
         _________________________________________________________________
 
         The record, including the transcript of the hearing before the 
 
         deputy and all exhibits admitted into the record, has been 
 
         reviewed de novo on appeal.  The decision of the deputy filed 
 
         December 18, 1990 is affirmed and is adopted as the final agency 
 
         action in this case with the following additional analysis:
 
         The only issues on appeal are the rate of claimant's weekly 
 
         compensation benefits and whether defendants are liable for 
 
         medical expenses for treatment of claimant's right ankle.
 
         The correct rate of weekly compensation for claimant is $127.71.  
 
         Claimant was hired on an intermittent basis.  There is evidence 
 
         in the record that claimant was employed on the same basis as 
 
         other drivers who worked for defendant employer.  See testimony 
 
         of DeLoris Hedstrom.  There is no reliable evidence in the record 
 
         to indicate the usual earnings of the regular full-time adult 
 
         laborer in the line of industry in which employee worked.  
 
         Therefore, Iowa Code section 85.36(10) is not applicable.
 
         Claimant's rate is to be calculated pursuant to Iowa Code section 
 
         85.36(7).  The rate is calculated by dividing his total wages in 
 
         the thirteen weeks prior to his injury by the number of weeks he 
 
         did work.  See Anderson v. High Rise Construction Specialists, 
 
         Inc., Appeal Decision July 31, 1990 and Barker v. City Wide 
 
         Cartage, I Iowa Industrial Commissioner Reports 12, 15 (App. 
 
         Decision, 1980).  Under this fact situation, the only rational 
 
         method of determining a representative rate for claimant is to 
 
         divide total wages in the thirteen weeks preceding his injury by 
 
         the number of weeks worked.  Defendants' exhibit B shows that 
 
         claimant's wages for the weeks June 19, 1984 and August 23, 1984 
 
         were $200.00 and $166.95 respectively.  The average for these two 
 

 
         
 
         Page   2
 
         
 
         
 
         
 
         
 
         weeks is $183.48.  Gross weekly earnings of $184 results in a 
 
         compensation rate of $127.71 for a married individual with four 
 
         exemptions.
 
         Claimant's ankle injury clearly is not work related.  There is no 
 
         reliable medical evidence that claimant's medication was the 
 
         reason for his fall.  The more likely cause of his fall was 
 
         claimant's nonwork-related activities.  The defendants are not 
 
         liable for the medical expenses for treatment of claimant's right 
 
         ankle.
 
         Claimant shall pay the costs of the appeal, including the 
 
         preparation of the hearing transcript.
 
         Signed and filed this ____ day of November, 1992.
 
         
 
         
 
         
 
         
 
                                    ________________________________
 
                                           BYRON K. ORTON
 
                                      INDUSTRIAL COMMISSIONER
 
         
 
         Copies To:
 
         
 
         Mr. Lyle A. Rodenburg
 
         Attorney at Law
 
         101 Park Building
 
         Council Bluffs, Iowa 51503
 
         
 
         Ms. Dorothy L. Kelley
 
         Attorney at Law
 
         500 Liberty Bldg.
 
         Des Moines, Iowa 50309
 
         
 
 
            
 
 
 
 
 
 
 
 
 
                                               5-1100; 5-3001
 
                                               Filed November 6, 1992
 
                                               Byron K. Orton
 
            
 
                      BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
            THOMAS HANIGAN,       
 
                        
 
                 Claimant,   
 
                        
 
            vs.         
 
                                                    File No. 811620
 
            HEDSTROM CONCRETE PRODUCTS,     
 
            INC.,                                    A P P E A L
 
                               
 
                 Employer,                         D E C I S I O N 
 
                               
 
            and         
 
                        
 
            FIREMAN'S FUND INSURANCE,       
 
                        
 
                 Insurance Carrier,    
 
                 Defendants.      
 
            ____________________________________________________________
 
            
 
            5-1100
 
            No medical evidence that claimant's fall was caused by 
 
            medication claimant was taking for work-related injury.  
 
            Claimant's fall outside a bar was not work related and 
 
            defendants not liable for medical treatment of ankle injury.
 
            
 
            5-3001
 
            Claimant's rate was calculated pursuant to Iowa Code section 
 
            85.36(7).  The gross earnings from the two weeks claimant 
 
            worked in the 13 weeks preceding claimant's injury were 
 
            averaged to determine gross earnings.
 
            Claimant was a truck driver who worked for employer on an 
 
            intermittent as needed basis.  Only other drivers for 
 
            employer were hired on same basis.  Claimant was not a 
 
            part-time employee and rate was not calculated pursuant to 
 
            Iowa Code section 85.36(10).
 
            
 
 
            
 
            Page   1
 
            
 
            
 
            
 
            
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            THOMAS E. HANIGAN,            :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :         File No. 811620
 
            HEDSTROM CONCRETE             :
 
            PRODUCTS, INC.,               :      A R B I T R A T I O N
 
                                          :
 
                 Employer,                :         D E C I S I O N
 
                                          :
 
            and                           :
 
                                          :
 
            FIREMAN'S FUND INSURANCE,     :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
            
 
                              STATEMENT OF THE CASE
 
            
 
                 This is a proceeding in arbitration upon the petition 
 
            of claimant, Thomas E. Hanigan, against his employer, 
 
            Hedstrom Concrete Products, and its insurance carrier, 
 
            Fireman's Fund Insurance Company, defendants.  The case was 
 
            heard in Des Moines, Iowa at the office of the industrial 
 
            commissioner.  The record consists of the testimony of 
 
            claimant and the testimony of DeLoris M. Hedstrom.  
 
            Additionally, the record consists of claimant's exhibits 
 
            1-30, 32 and defendants' exhibits A-R.
 
            
 
                                      issues
 
            
 
                 The issues to be determined are:  1)  whether claimant 
 
            is entitled to temporary disability/healing period benefits 
 
            or permanent partial disability benefits; 2) the appropriate 
 
            rate to use for weekly benefits; and, 3) whether claimant is 
 
            entitled to medical benefits under section 85.27.
 
            
 
                                 findings of fact
 
            
 
                 The deputy, having heard the testimony and considered 
 
            all the evidence, finds:
 
            
 
                 At the time of the hearing, claimant was 62 years old.  
 
            He sustained a work related injury on September 11, 1984, 
 
            when he was involved in a motor vehicle accident in Montana.  
 
            At the time claimant was working as an over-the-road truck 
 
            driver for defendant-employer.  In addition, claimant had 
 
            been employed as a farmer.
 
            
 
                 Claimant sustained extensive injuries.  The injuries 
 
            included problems with his ribs, heart problems, a ruptured 
 
            spleen and a closed head injury.  Subsequent to the injury, 
 
            claimant developed double and blurred vision, hearing 
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            problems, hoarseness in his voice, and balance problems.  
 
            Claimant participated in physical therapy.
 
            
 
                 On April 1, 1985, claimant was admitted to Jennie 
 
            Edmundson Memorial Hospital for a comminuted trimalleolar 
 
            fracture of the right ankle.  Claimant left the bar, slipped 
 
            on ice and fell where he suffered the right ankle injury.  
 
            The hospital records indicate claimant had been drinking and 
 
            that he had ingested approximately five vodkas before the 
 
            accident.  At the hearing, claimant testified it was snowing 
 
            and he slipped on the ice.  He attributed his fall to a loss 
 
            of balance as a result of his injury on September ll, 1984.  
 
            Claimant, during cross-examination, could not recall whether 
 
            he had had anything to drink.  Claimant had surgery on his 
 
            right ankle.
 
            
 
                 At the time of the hearing, claimant had not returned 
 
            to work.  He described his symptoms as no peripheral vision 
 
            as having tunnel vision, left ear hearing impairment, poor 
 
            balance, stiffness in legs, numbness in the left arm and 
 
            leg, heart problems, back problems, memory problems and 
 
            comprehension problems when reading.  Claimant also 
 
            testified that at the time of the hearing, he did drink to 
 
            excess and that he did frequent bars on a daily basis.
 
            
 
                                conclusions of law
 
            
 
                 The evidence is overwhelming.  Claimant is permanently 
 
            and totally disabled.  He has the requisite medical evidence 
 
            to sustain a permanent and total disability under Diederich 
 
            v. Tri-City Railway Co., 219 Iowa 587, 258, N.W. 899, 902 
 
            (1935).  in Diederich, at 593, the Iowa Supreme Court 
 
            defined industrial disability.  The Court stated:  "It is 
 
            therefore plain that the legislature intended the term 
 
            `disability' to mean `industrial disability' or loss of 
 
            earning capacity and not a mere `functional disability' to 
 
            be computed in the terms of percentages of the total 
 
            physical and mental ability of a normal man."
 
            
 
                 The Court in Diederich went on to address the meaning 
 
            of permanent total disability.  The Court indicated:
 
            
 
                    What is "permanent total disability"?  Does 
 
                 this clause refer to "functional disability" or to 
 
                 "industrial disability"?
 
            
 
                    For clearness we shall use the term "industrial 
 
                 disability" as referring to disability from 
 
                 carrying on a gainful occupation--inability to 
 
                 earn wages.  By "functional disability" we shall 
 
                 refer to the disability to perform one or more of 
 
                 the physical movements which a normal human being 
 
                 can perform.
 
            
 
                    ....
 
            
 
                    It is obvious that "disability" here used 
 
                 cannot refer to mere "functional disability",...
 
            
 
                    It is...plain that the legislature intended the 
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
                 term "disability" to mean "industrial disability" 
 
                 or loss of earning capacity and not a mere 
 
                 "functional disability" to be computed in terms of 
 
                 percentages of the total physical and mental 
 
                 ability of a normal man.
 
            
 
                    ....
 
            
 
                 ...(T)he Compensation law was passed for the 
 
                 purpose of compensating the working man when 
 
                 injured.  The loss which this claimant suffered 
 
                 due to the injury which he received while in the 
 
                 employ of the company is the inability to carry on 
 
                 the work he was doing prior to the time of the 
 
                 injury, or any work which he could perform.  This 
 
                 man at fifty-nine years of age, after thirty years 
 
                 as a street car motorman, with little education, 
 
                 cannot find or hold a position that would not 
 
                 require some, manual labor, and, of course, due to 
 
                 the condition of his back, he cannot perform such 
 
                 work.  To say that he might become a stenographer 
 
                 or a lawyer or a clerk or a bookkeeper is to 
 
                 suppose the impossible, for a fifty-nine-year old 
 
                 man, with no education, is not capable of securing 
 
                 or filling any such position.  His disability may 
 
                 be only a twenty-five or thirty per cent [sic] 
 
                 disability compared with the one hundred per cent 
 
                 [sic] perfect man, but, from the standpoint of his 
 
                 ability to go back to work to earn a living for 
 
                 himself and his family, his disability is a total 
 
                 disability, for he is not able to again operate 
 
                 the street car and perform the work which the 
 
                 company demanded of him prior to the time of the 
 
                 accident.
 
            
 
                 The evidence supports the testimony of claimant 
 
            relative to his physical condition.  Claimant's condition 
 
            renders him incapable of engaging in regular gainful 
 
            employment.  He has had some brain damage, according to B. 
 
            L. Cogley, M.S.W., Ph.D.  Dr. Cogley found that claimant 
 
            exhibited such symptoms as "apathy, and lack of volition, 
 
            confusion in the face of multiple stimuli, a certain 
 
            puplexity over the familiar, and a certain degree of 
 
            aphasia.  Short-term memory is also a problem, but this has 
 
            not been outstandingly disruptive."
 
            
 
                 Defendants' retained expert, Samuel L. Graham, Ph.D., 
 
            even found that:
 
            
 
                 The Neuropsychological Test Battery results are 
 
                 indicative of an individual who has significant 
 
                 cognitive impairment which appears to be the 
 
                 result of cerebral damage.  All tests in the 
 
                 battery completed were in the impaired range with 
 
                 the summary index scores for the 
 
                 Neuropsychological Deficit Scale and the 
 
                 Impairment Index both falling in the severe range 
 
                 of neuropsychological impair- ment. [sic]  
 
                 Likewise, the Tactual Performance Total time score 
 
                 and Tactual Perform- ance [sic] Location scores, 
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
                 the Trails B score, the Speech Sounds Perception 
 
                 Test, the Seashore Rhythm Test, and the Finger 
 
                 Oscillation Test scores all fall in the range of 
 
                 serious neuropsychological impairment.  The 
 
                 Categories Test and Tactual Performance Memory 
 
                 section fall in the range of mild impairment.  The 
 
                 results of testing suggest that the damage is more 
 
                 severe in the right cerebral hemisphere than in 
 
                 the left.  Indications of right cerebral 
 
                 involvement to be more serious than in the left 
 
                 cerebral hemisphere include the Fingertip Number 
 
                 Writing with the non-dominant hand showing 9 
 
                 errors as compared to 5 on the dominant hand; the 
 
                 Tactile Form Recognition Test in which the 
 
                 non-dominant hand shows 6 errors and the dominant 
 
                 hand l; the Tactual Performance Test wherein the 
 
                 performance with the non-dominant hand was 
 
                 significantly worse than the dominant hand when 
 
                 one would normally anticipate it should be better; 
 
                 and indications of constructional dyspraxia and 
 
                 dysgraphia from the Reitan-Indiana Screening 
 
                 Battery.
 
            
 
                 The composite test battery is suggestive of an 
 
                 individual who has significant impairment in motor 
 
                 speed, attention and concentration, complex 
 
                 psychomotor tasks and visual motor integration or 
 
                 sequencing tasks.  Mild impairment in judgment and 
 
                 reasoning and short term memory are also 
 
                 suggested.
 
            
 
                 On the Wechsler Adult Intelligence Scale-Revised, 
 
                 Mr. Hanigan achieved a Verbal Scale Score of 96, a 
 
                 Performance Scale Score of 81, and a Full Scale 
 
                 Score of 89.  The Verbal Scale Score is in the 
 
                 average range of intellectual ability and the 
 
                 Performance and Full Scale Scores fall in the low 
 
                 average range of intellectual ability.  The 
 
                 disparity between the Verbal and
 
            
 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
            Performance Subtests of the Wechsler further 
 
            supports the conclusion of right cerebral 
 
            hemisphere involvement.
 
            
 
                 The Beck Depression Inventory Score of 36 is 
 
                 consistent with a depressive disorder which could 
 
                 be either Major Depressive Disorder or an 
 
                 Adjustment Reaction with Depressed Mood.
 
            
 
                 The pattern of psychological test results obtained 
 
                 from Mr. Hanigan's evaluation are consistent with 
 
                 the sequelae of closed head injury.  There are 
 
                 additional factors which appear to contribute to 
 
                 Mr. Hanigan's neuropsychological impairment.  
 
                 These include chronic pain, aging, and alcohol 
 
                 use.  Mr. Hanigan complains of chronic pain since 
 
                 the accident, particularly in the chest area, and 
 
                 this may well have contributed to the picture of 
 
                 impaired performance on tests utilizing motor 
 
                 components such as the Tactual Performance Test, 
 
                 the Finger Oscillation Test, and the Trails B 
 
                 subtest.  Mr. Hanigan acknowledged frequent social 
 
                 use of alcohol with periodic binge drinking at a 
 
                 frequency of approximately once every three 
 
                 months.  It is noted in his medical records that 
 
                 when he broke his ankle and was treated at Jennie 
 
                 Edmundson Hospital, the family reported to the 
 
                 attending physician that he had been drinking a 
 
                 significant amount that day.
 
            
 
                 It should be further noted that cognitive skills 
 
                 decline with normal aging.  The onset of that for 
 
                 those who are not college-educated typically 
 
                 begins in the fifth and sixth decades of their 
 
                 lives.  Undoubtedly, some of the results we are 
 
                 seeing for Mr. Hanigan are the effects of normal 
 
                 aging, but it is my opinion that the severity of 
 
                 impairment in the current neuropsychological 
 
                 testing is dramatically beyond that which can be 
 
                 accounted for on the basis of normal aging alone 
 
                 or normal aging plus alcohol misuse.  The 
 
                 distribution of the test results as well as the 
 
                 severity of them leads me to conclude that we are 
 
                 looking at primarily the results of his head 
 
                 injury.
 
            
 
                 In reference to the effects of the limitations in 
 
                 Mr. Hanigan's cognitive abilities to sustain 
 
                 gainful employment, it is my opinion that he 
 
                 clearly does not have the necessary cognitive 
 
                 abilities to learn to perform any minimally 
 
                 complex tasks.  The problems with storing new 
 
                 information would make formal training for gainful 
 
                 employment impractical.  His motor slowing would 
 
                 impair his ability to do many gainful jobs that 
 
                 would require even normal motor speed.  I do feel 
 
                 he could be retrained for very light, very 
 
                 low-stress employment such as a janitor.  It is 
 
     
 
            
 
            
 
            Page   6
 
            
 
            
 
            
 
            
 
                 likely that he would need a vocational counselor 
 
                 to work with him to help him develop certain 
 
                 routine coping skills such as specific check lists 
 
                 and memory aid devices to assist him in 
 
                 remembering to complete the tasks necessary on an 
 
                 independent basis.
 
            
 
                 Thank you for the opportunity to evaluate this 
 
                 most interesting gentleman.  Should you have 
 
                 additional questions, please feel free to contact 
 
                 me.
 
            
 
                 Therefore, in light of the foregoing, in light of the 
 
            opinions of the medical experts, as well as in light of the 
 
            observations of claimant, he is permanently and totally 
 
            disabled from September 11, 1984, the date of the injury.  
 
            He is unable to return to competitive employment due to his 
 
            physical and psychological condition.  Benefits under 
 
            section 85.34(3) are due to claimant during the period of 
 
            his disability.
 
            
 
                 The next issue to address is the rate at which claimant 
 
            is to be paid weekly benefits during the period of his 
 
            disability.
 
            
 
                 Claimant was hired by employer on an intermittent basis 
 
            as an over-the-road driver.  He was hired by the trip.  
 
            While claimant was hired irregularly, he was paid the usual 
 
            and customary rate for truck drivers in that vicinity, $.15 
 
            per mile.  Even though, claimant was hired on an 
 
            intermittent basis, he was expected to perform the same 
 
            duties and functions as other truck drivers similarly hired.  
 
            Claimant was not expected to drive only several days a week, 
 
            or several hours a day.  Claimant was expected to complete 
 
            the trip in the same time frame in which any other driver 
 
            would be expected to complete the trip.  Claimant worked 
 
            full-time whenever he was employed by defendant-employer.  
 
            Claimant was not a part-time employee.  He earned the usual 
 
            weekly earnings of other regular full time over-the-road 
 
            truckers in that locality.  Therefore, section 85.36(10) is 
 
            inapplicable.
 
            
 
                 There is no question claimant had not been in the 
 
            employ of defendant-employer for 13 calendar weeks 
 
            immediately preceding the injury.  Therefore, claimant's 
 
            earnings are computed under section 85.36(7).  Using 
 
            85.36(7) claimant would have earned $2,385.18 or $183.47 per 
 
            week.  See:  Barker v. City Wide Cartage, 1 Iowa Indus. 
 
            Comm'r Rep. 12, 15 (Appeal Dec. 1980)  At the time, claimant 
 
            was married and entitled to four exemptions.  Using the 
 
            Worker's Compensation Benefit Schedule for July 1, 1984, 
 
            claimant's weekly benefit rate is calculated as $127.71.  
 
            Claimant is entitled to be paid at this rate.
 
            
 
                 The next issue to address is whether claimant is 
 
            entitled to certain medical expenses under section 85.27.  
 
            Claimant is requesting payment for: 
 
            
 
                  University of Iowa (eye clinic)                unknown
 
                  Lewistown Doctors Building, P.C.            $   245.00
 

 
            
 
            Page   7
 
            
 
            
 
            
 
            
 
                  Bishop Clarkson Memorial Hospital            11,030.00
 
                  Midwest ENT                                      30.00
 
            
 
                 All of the expenditures are causally related to 
 
            claimant's work injury on September 11, 1984.  These include 
 
            the surgery and care for the double vision.  Defendants are 
 
            to reimburse claimant $976.13 for charges paid by claimant 
 
            to Bishop Clarkson Memorial Hospital.  If defendants 
 
            believed charges by the hospital were unreasonable, 
 
            defendants should have offered evidence as to the 
 
            reasonableness of those charges.  Claimant is not liable for 
 
            the same.
 
            
 
                 Additionally, with respect to charges or medical 
 
            expenses relative to claimant's right ankle, defendants are 
 
            not liable for those charges.  The undersigned determines 
 
            that claimant's fall was not attributable to his injury of 
 
            September 11, 1984.  Rather the fall was more than likely 
 
            related to the icy conditions of the ground and/or to 
 
            claimant's alleged condition upon leaving the bar.  
 
            Defendants are not liable for any expenses related to the 
 
            slip and fall.
 
            
 
                                      order
 
            
 
                 THEREFORE, IT IS ORDERED:
 
            
 
                 Defendants are to pay unto claimant weekly benefits for 
 
            the duration of claimant's period of permanent total 
 
            disability with said benefits commencing on September 11, 
 
            1984 and running continuously at the rate of one hundred 
 
            twenty-seven and 71/l00 dollars ($127.71) per week.
 
            
 
                 Defendants shall take credit for benefits previously 
 
            paid claimant.
 
            
 
                 Accrued benefits are to be paid in a lump sum together 
 
            with statutory interest at the rate of ten percent (10%) per 
 
            year pursuant to section 85.30, Iowa Code, as amended.
 
            
 
                 Defendants are also liable for medical expenses as 
 
            aforementioned, including reimbursement to claimant in the 
 
            sum of nine hundred seventy-six and 13/l00 dollars 
 
            ($976.13).
 
            
 
                 Costs are taxed to defendants pursuant to Division of 
 
            Industrial Services Rule 343 IAC 4.33.
 
            
 
                 Defendants shall file a claim activity report upon 
 
            payment of this award.
 
            
 
            
 
            
 
                 Signed and filed this ____ day of December, 1990.
 
            
 
            
 
            
 
            
 
            
 
                                          ______________________________               
 

 
            
 
            Page   8
 
            
 
            
 
            
 
            
 
            MICHELLE A. McGOVERN
 
                                          DEPUTY INDUSTRIAL COMMISSIONER
 
            
 
            Copies To:
 
            
 
            Mr. Lyle A. Rodenburg
 
            Attorney at Law
 
            100 - 101 Park Bldg
 
            Council Bluffs  IA  51501
 
            
 
            Mrs. Dorothy L. Kelley
 
            Attorney at Law
 
            500 Liberty Bldg
 
            Des Moines  IA  50309
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                           5-1804; 3000
 
                           Filed December 18, 1990
 
                           MICHELLE A. McGOVERN
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            THOMAS E. HANIGAN,            :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :         File No. 811620
 
            HEDSTROM CONCRETE             :
 
            PRODUCTS, INC.,               :      A R B I T R A T I O N
 
                                          :
 
                 Employer,                :         D E C I S I O N
 
                                          :
 
            and                           :
 
                                          :
 
            FIREMAN'S FUND INSURANCE,     :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
            5-1804
 
            Claimant was awarded a permanent total disability due to a 
 
            motor vehicle accident. Claimant sustained a closed head 
 
            injury with multiple problems.
 
            
 
            
 
            3000
 
            Claimant's rate for weekly benefits was calculated according 
 
            to Barker v. City Wide Cartage, l Iowa Indus. Comm'r Rep. 12 
 
            (Appeal Dec. 1980).
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                            
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         JOHN F. BLANCHARD,
 
         
 
              Claimant,
 
                                                      File No. 811621
 
         VS.
 
         
 
         GIESE CONSTRUCTION,
 
                                                   A R B I T R A T I 0 N
 
              Employer,
 
         
 
         and
 
                                                     D E C I S I 0 N
 
         IOWA CONTRACTORS WORKERS'
 
         COMPENSATION GROUP,
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
         
 
         
 
                                   INTRODUCTION
 
         
 
              This is a proceeding in arbitration brought by John F. 
 
         Blanchard, claimant, against his former employer, Giese 
 
         Construction, and the employer's insurance carrier, the Iowa 
 
         Contractors Workers' Compensation Group, to recover benefits as a 
 
         result of an injury sustained on October 31, 1985.
 
         
 
              The record in this case consists of testimony from John F. 
 
         Blanchard and Kelly Blanchard, claimant's exhibit A with subparts 
 
         one through seven, and defendants' exhibits 2, 3 and 4.
 
         
 
                             ISSUES AND STIPULATIONS
 
         
 
              It was stipulated that the injury arose out of and in the 
 
         course of claimant's employment with the employer and that, in 
 
         the event of an award, claimant is entitled to a weekly 
 
         compensation rate of $181.32.  It was agreed that all medical 
 
         bills have been paid by the employer and insurance carrier and 
 
         that claimant was paid weekly healing period benefits until May 
 
         13, 1986, which the parties have stipulated is the appropriate 
 
         healing period in this case.
 
         
 
              The issue to be determined in this proceeding is the 
 
         nature and extent of permanent disability sustained by claimant 
 
         as a result of his work-related injury of October 31, 1985.
 
         
 
                             SUMMARY OF EVIDENCE
 
         
 
              The following is only a brief summary of pertinent evidence. 
 

 
         
 
         
 
         
 
         BLANCHARD V. GIESE CONSTRUCTION
 
         Page   2
 
         
 
         
 
          All evidence received at the hearing was considered when 
 
         deciding the case even though it may not necessarily be referred 
 
         to in this decision.
 
         
 
              The claimant, John F. Blanchard, age 24, was, on October 31, 
 
         1985, an employee of the employer, Giese Construction.  At the 
 
         time of his injury, claimant was a laborer for Giese Construction 
 
         and was lifting a paving form when he suddenly felt pain in his 
 
         low back.  The paving forms weigh approximately 125 pounds each. 
 
          Claimant tried to continue working, but was unable to do so.  
 
         Claimant told his foreman that he had injured himself and was 
 
         told to see a doctor.
 
         
 
              Claimant was first seen by a local chiropractor for what 
 
         claimant then believed to be a pulled muscle.  Claimant had pain 
 
         in his low back and into his legs.  He was later referred to Gary 
 
         LeValley, M.D.  Dr. LeValley prescribed physical therapy, which 
 
         claimant took on an outpatient basis.  Claimant was subsequently 
 
         hospitalized by Dr. LeValley at Trinity Regional Hospital 
 
         (claimant's exhibit A-2).
 
         
 
              The discharge summary by Dr. LeValley reads as follows:
 
         
 
              This is 23 year old admitted for treatment of a back 
 
              strain and after failure of therapy at home.  He was 
 
              started on analgesics and anti-inflammatories and sent 
 
              to physical therapy, continued to have an extreme 
 
              amount of pain in spite of the fact that x-rays were 
 
              normal.  A CT of the lumbosacral spine was interpreted 
 
              as normal.  Consultation was obtained with Dr. Wahby 
 
              who felt a myelogram was indicated.  Myelogram was 
 
              performed and was also negative.  It is the feeling 
 
              that he had lumbosacral spasm.  It is going to require 
 
              time to improve.  He elected to treat this at home and 
 
              was discharged to outpatient management, with 
 
              analgesics and muscle relaxants. He is to return to see 
 
              Dr. Wahby in 1
 
              week for followup.
 
         
 
              FINAL DIAGNOSIS: Acute lumbosacral strain.
 
         
 
              Following his release from the hospital, claimant received 
 
         treatment from Samir Wahby, M.D., an orthopaedic surgeon in Fort 
 
         Dodge.  In his letter report dated May 5, 1986 (claimant's 
 
         exhibit A-3), Dr. Wahby noted the following:
 
         
 
              He was followed in my office on several occasions. In 
 
              the beginning there was no improvement and towards the 
 
              end of February patient started improving some, 
 
              however, 
 
         
 
              he continued to have pain and discomfort.  During that 
 
              time there was still no neurological findings.
 
         
 
              The patient was seen in the beginning of March, he was 
 
              doing better and had improved a lot than previously.  
 
              The patient was last seen on April 7, 1986.  At the 
 
              time his back pain and discomfort had completely 
 
              subsided.  There were no neurological findings noted.  
 

 
         
 
         
 
         
 
         BLANCHARD V. GIESE CONSTRUCTION
 
         Page   3
 
         
 
         
 
              Mr. Blanchard was given a slip to return to work.  He 
 
              was advised not to do heavy lifting for a period of 
 
              time.
 
         
 
              Dr. Wahby went on to state in his report that claimant might 
 
         have a recurrence of low back pain, particularly with his type of 
 
         work, and that, because of that, claimant would have 
 
         approximately a five percent permanent partial disability.
 
         
 
              Claimant testified that he never told Dr. Wahby he was "pain 
 
         free," but only asked Dr. Wahby for a release to return to work 
 
         since he was having a hard time making ends meet on his weekly 
 
         workers' compensation benefit checks.  Claimant testified he had 
 
         improved "a littleO from his hospitalization until seen by Dr. 
 
         Wahby in April, 1986.
 
         
 
              After claimant obtained his work release from Dr. Wahby, he 
 
         commenced employment, in May, 1986, as a driver for a trucking 
 
         business in Fort Dodge.  However, this work was painful for 
 
         claimant and he worked at this job for only approximately one 
 
         month.  He then applied unsuccessfully for several jobs.  
 
         Claimant found a new job in July, 1986 working as a regular 
 
         laborer for Fort Dodge Asphalt Company.  That job was extremely 
 
         strenuous and taxing on claimant.  He was required to get on and 
 
         jump off an end loader most of the day.  In addition, he helped 
 
         load bags of cement and drove company trucks.  He was paid at the 
 
         rate of $5.00 per hour.
 
         
 
              In September, 1986, claimant began working for Decker Truck 
 
         Lines in Fort Dodge.  At the time of hearing, claimant was still 
 
         employed with Decker as an over-the-road truck driver in the flat 
 
         bed division.  This job requires claimant to haul steel and 
 
         wallboard to various locations in the Chicago area.  Claimant 
 
         makes five trips every two weeks.
 
         
 
              Currently, claimant earns approximately $900 in gross 
 
         earnings every two weeks.  His net pay is approximately $675 
 
         every two weeks.  When claimant first began his employment with 
 
         Decker in September, 1986, he was given a route that required a 
 
         lot of physical exertion.  This resulted in pain and discomfort 
 
         for claimant so he accepted an "easier" route at the beginning of 
 
         1987.
 
         
 
         
 
              Claimant described his present employment as extremely 
 
         strenuous and difficult.  It also involves tying down tarps and 
 
         unloading trucks.  He stated that his present job involves eight 
 
         hours of driving per day with approximately five hours of sitting 
 
         and waiting for new loads.  He stated that, due to family 
 
         obligations and the press of outstanding bills, he has no choice 
 
         but to continue working, despite his continued low back pain.
 
         
 
              Claimant's present symptoms include inability to sleep for 
 
         any extended period of time.  On days off, he rests at home in 
 
         order to build up enough energy and to relieve the pain to the 
 
         point he can return to his truck driving job.  He normally gets 
 
         Sundays off.  Claimant continues to work for Decker Truck Lines 
 
         and is making approximately $450 per week in gross income.  He 
 
         stated that he cannot make ends meet for his family on the weekly 
 

 
         
 
         
 
         
 
         BLANCHARD V. GIESE CONSTRUCTION
 
         Page   4
 
         
 
         
 
         compensation of $181.32 and thus, he has had no choice but to 
 
         continue working for Decker.
 
         
 
              Claimant was seen in April, 1987 by Dr. Wahby.  According to 
 
         a letter report dated June 19, 1987, Dr. Wahby stated that 
 
         claimant is still complaining of pain in his lower back.  There 
 
         were no neurological findings and x-rays of the lumbosacral 
 
         region were normal.  Once again, Dr. Wahby estimated that 
 
         claimant had sustained a five percent permanent partial 
 
         disability as a result of his October 31, 1985 accident.  Dr. 
 
         Wahby provided claimant with a back brace which claimant still 
 
         uses.
 
         
 
              On November 17, 1986, claimant was examined by William 
 
         Boulden, M.D., a Des Moines orthopaedic surgeon.  In his report, 
 
         Dr. Boulden indicated that, at the time of his examination, 
 
         claimant was doing another type of truck driving and was 
 
         tolerating it better, although he had occasional back pain.  
 
         X-rays taken by Dr. Boulden were normal, although claimant 
 
         complained of pain in his low back.  Dr. Boulden stated as 
 
         follows:
 
         
 
              Impression:  Status post lumbar strain with residual 
 
              tightness.
 
         
 
              Discussion:  At this point in time, I discussed with 
 
              him that his main problem is that he is still stiff and 
 
              that is probably what is causing most of his 
 
              discomfort.  I also discussed that driving a truck is 
 
              hard on his back, so therefore he needs to keep his 
 
              back in tip-top shape.  I discussed with him the 
 
              importance of proper biomechanics of the back.  I have 
 
              also discussed with him that he needs to exercise his 
 
              back twice a day, rather than twice a week.  Therefore, 
 
              I feel, from an orthopedic standpoint, he has not 
 
              sustained any structural damage and can continue 
 
              working.
 
         
 
              Claimant is married and has one child.  His wife does not 
 
         work outside the home.  Claimant still complains of lower back 
 
         pain and stiffness and cannot do many of the things that he used 
 
         to do previously, such as ride a motorcycle or mow the lawn.  
 
         This testimony was supported by claimant's wife.
 
         
 
                           APPLICABLE LAW AND ANALYSIS
 
         
 
              As noted earlier in this decision, defendants have conceded 
 
         the issue of employer-employee relationship as well as the issue 
 
         of arising out of and in the course of employment.  Therefore, 
 
         the only issue remaining is causation as well as the nature and 
 
         extent of disability.
 
         
 
              Claimant has the burden of proving by a preponderance of the 
 
         evidence that the injury of October 31, 1985 is a cause of the 
 
         disability on which he now basis his claim.  Bodish v. 
 
         Fischer,Inc., 257 Iowa 516, 133 N.W.2d 867 (1965).  A 
 
         possibility is insufficient; a probability is necessary.  Burt v. 
 
         John Deere Waterloo Tractor Works, 247 Iowa 691, 73 N.W.2d 732 
 
         (1956).  A question of causal connection is essentially within 
 

 
         
 
         
 
         
 
         BLANCHARD V. GIESE CONSTRUCTION
 
         Page   5
 
         
 
         
 
         the domain of expert testimony.  Bradshaw v. Iowa Methodist 
 
         Hospital, 251 Iowa 375, 101 N.W.2d 167 (1960).
 
         
 
              There can be no question from the evidence that there is a 
 
         causal relationship between claimant's work-related injury and 
 
         his resulting industrial disability.  Inasmuch as this injury 
 
         involves the back, this case involves an injury to the body as a 
 
         whole as defined under Iowa Code section 85.34(2)(u).
 
         
 
              Industrial disability was defined in Diederich v. Tri-City 
 
         Railway Co., 219 Iowa 587, 593, 258 N.W. 899, 902 (1935) as 
 
         follows:  "It is therefore plain that the legislature intended 
 
         the term 'disability' to mean 'industrial disability' or loss of 
 
         earning capacity and not a mere 'functional disability' to be 
 
         computed in the terms of percentages of the total physical and 
 
         mental ability of a normal man."
 
         
 
              Functional impairment is an element to be considered in 
 
         determining industrial disability which is the reduction of 
 
         earning capacity, but consideration must also be given to the 
 
         injured employee's age, education, qualifications, experience and 
 
         inability to engage in employment for which he is fitted.  Olson 
 
         v. Goodyear Service Stores, 255 Iowa 1112, 1121, 125 N.W.2d 251, 
 
         257 (1963).
 
         
 
              A defendant employer's refusal to give any sort of work to a 
 
         claimant after he suffers his affliction may justify an award of 
 
         disability.  McSpadden v. Big Ben Coal Co., 288 N.W.2d 181 (Iowa 
 
         1980).
 
         
 
         
 
              Claimant has been examined by two qualified orthopaedic 
 
         surgeons, Dr. Wahby and Dr. Boulden.  Dr. Wahby indicated in his 
 
         written report that, although he could find no abnormalities, due 
 
         to the possibility of recurrent symptoms, claimant has sustained 
 
         a permanent disability in the amount of five percent.  Dr. 
 
         Boulden did not give a rating, but felt that claimant should be 
 
         able to do well on a long-term basis.
 
         
 
              Claimant's entire work history is in  the areas of truck 
 
         driving and general manual labor.  There  are clearly jobs which 
 
         are no longer available to him due to his ailment.  His education 
 
         is limited to the ninth grade and he is not qualified for most 
 
         jobs which require a good educational background.  He is 
 
         generally limited to jobs which call for physical, rather than 
 
         mental, exertion.
 
         
 
              Claimant is now working as a truck driver for Decker Truck 
 
         Lines, although with difficulty.  Fortunately, claimant has been 
 
         able to find a job that pays well and claimant intends to 
 
         continue working for Decker.  In fact, he earns more now than he 
 
         has earned at any other job he has held.  Post injury earnings 
 
         create an inference of earning capacity commensurate with them, 
 
         but they are rebuttable by evidence showing them to be an 
 
         unreliable basis for estimating earning capacity.  2 Larson 
 
         Workmen's Compensation Law, section 57.21(d).  Post injury 
 
         earnings are not synonymous with earning capacity.  2 Larson, 
 
         sections 57.21, 57.31.
 
         
 

 
         
 
         
 
         
 
         BLANCHARD V. GIESE CONSTRUCTION
 
         Page   6
 
         
 
         
 
              Industrial disability, or loss of earning capacity, in a 
 
         workers' compensation case is quite similar to impairment of 
 
         earning capacity, an element of damages in a tort case.  
 
         Impairment of physical capacity creates an inference of lessened 
 
         earning capacity.  The basic element to be determined, however, 
 
         is the reduction in value of the general earning capacity of the 
 
         person rather than the loss of wages or earnings in a specific 
 
         occupation.  Holmquist v. Volkswagon of America, Inc., 261 N.W.2d 
 
         516 (Iowa App. 1977) 100 A.L.R.3rd 143; 2 Larson, sections 57.21, 
 
         57.31.
 
         
 
              Based upon the record as a whole, claimant has sustained an 
 
         industrial disability to the extent of 10% of the body as a 
 
         whole.
 
         
 
                                 FINDINGS OF FACT
 
         
 
              1.  Claimant suffered an admitted industrial injury to his 
 
         back on October 31, 1985 in Webster County, Iowa.
 
         
 
              2.  As a result of that incident, claimant has a permanent 
 
         functional impairment of five percent of the body as a whole as 
 
         determined by Dr. Wahby.
 
         
 
         
 
         
 
             3.  Defendants failed to provide claimant with any employment 
 
         in accordance with his impairment and limitations.
 

 
         
 
         
 
         
 
         BLANCHARD V. GIESE CONSTRUCTION
 
         Page   7
 
         
 
         
 
         
 
              4.  Claimant has found substitute employment with another 
 
         employer with higher earnings than his earnings with the 
 
         defendant employer.
 
         
 
              5.  Claimant has a 10% loss of earning capacity as a result 
 
         of the injuries sustained on October 31, 1985, primarily due to 
 
         his reduced access to heavy labor types of employment.
 
         
 
         
 
                                CONCLUSIONS OF LAW
 
         
 
              1.  This agency has jurisdiction of the subject matter of 
 
         this proceeding and its parties.
 
         
 
              2.  On October 31, 1985, claimant sustained an injury to his 
 
         low back which arose out of and in the course of his employment 
 
         with the defendant, Giese Construction.
 
         
 
              3.  The work-related injury of October 31, 1985 is a 
 
         proximate cause of claimant's disability.
 
         
 
              4.  Based upon the record as a whole and taking into 
 
         consideration the industrial disability considerations as set out 
 
         in the case law previously cited, it is concluded that claimant 
 
         has sustained a permanent partial disability to the extent of 10% 
 
         of the body as a whole which entitles claimant to 50 weeks of 
 
         benefits under section 85.34(2)(u).
 
         
 
         
 
                                      ORDER
 
         
 
              IT IS THEREFORE ORDERED that defendants pay claimant fifty 
 
         (50) weeks of permanent partial disability compensation at the 
 
         stipulated rate of one hundred eighty-one and 32/100 dollars 
 
         ($181.32) per week payable commencing May 13, 1986.  The entire 
 
         amount is accrued and shall be paid in a lump sum.
 
         
 
              IT IS FURTHER ORDERED that defendants also pay interest on 
 
         all past due amounts to the date of payment pursuant to section 
 
         85.30, with the interest computed from the date each payment came 
 
         due.
 
         
 
              IT IS FURTHER ORDERED that costs are assessed against 
 
         defendants pursuant to Division of Industrial Services Rule 
 
         343-4.33.
 
         
 
         
 
              IT IS FURTHER ORDERED that defendants file Claim Activity
 
         Reports pursuant to Division of Industrial Services Rule 
 
         343-3.1.
 
         
 
         
 
              Signed and filed this 23rd day of December, 1987.
 
         
 
         
 
         
 
         
 
         
 

 
         
 
         
 
         
 
         BLANCHARD V. GIESE CONSTRUCTION
 
         Page   8
 
         
 
         
 
         
 
                                          MICHAEL G. TRIER
 
                                          DEPUTY INDUSTRIAL COMMISSIONER
 
         
 
         
 
         Copies To:
 
         
 
         Mr. Tito Trevino
 
         Attorney at Law
 
         Suite 503, Snell Building
 
         P.O. Box 1680
 
         Fort Dodge, Iowa 50501
 
         
 
         Mr. Paul C. Thune
 
         Attorney at Law
 
         218 Sixth Avenue, Suite 300
 
         P.O. Box 9130
 
         Des Moines, Iowa 50306
 
         
 
         
 
         
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                               1402.40, 1803
 
                                               Filed December 23, 1987
 
                                               MICHAEL G. TRIER
 
         
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         JOHN F. BLANCHARD,
 
         
 
              Claimant,
 
                                                    File No. 811621
 
         VS.
 
         
 
         GIESE CONSTRUCTION,
 
                                                A R B I T R A T I 0 N
 
              Employer,
 
         
 
         and
 
                                                  D E C I S I 0 N
 
         IOWA CONTRACTORS WORKERS'
 
         COMPENSATION GROUP,
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
         1402.40, 1803
 
         
 
              Twenty-three-year-old claimant awarded 10% permanent partial 
 
         disability based on five percent impairment, a ninth grade 
 
         education, and a work history of truck driving and manual labor, 
 
         even though he now earns more than he earned at the time of 
 
         injury.
 
 
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         JOHN F. BLANCHARD,
 
          
 
              Claimant,                               File No. 811621
 
         
 
         vs.                                            A P P E A L
 
         
 
         GIESE CONSTRUCTION,                            R U L I N G
 
         
 
              Employer,
 
                                                         F I L E D
 
         and
 
                                                        JUN 03 1988
 
         IOWA CONTRACTORS WORKERS'
 
         COMPENSATION GROUP,                   IOWA INDUSTRIAL COMMISSIONER
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
              On April 29, 1988 claimant filed a motion to dismiss 
 
         defendants' appeal in the above entitled action.  There being no 
 
         resistance, the same comes on for determination.
 
         
 
              Defendants have not filed an affidavit as required by 
 
         section 86.24 of the Code of Iowa.  From claimant's motion and a 
 
         review of the file it is also apparent that defendants have not 
 
         complied with Division of Industrial Services Rule 343-4.30.  
 
         Defendants have not made any indication as to why they have 
 
         failed to comply with the statute or rule.
 
         
 
              WHEREFORE, claimant's motion to dismiss is sustained.
 
         
 
         
 
              Signed and filed this 3rd day of June, 1988.
 
         
 
         
 
         
 
         
 
         
 
         
 
                                               DAVID E. LINQUIST
 
                                            INDUSTRIAL COMMISSIONER
 
         
 
         Copies To:
 
         
 
         Mr. Tito Trevino
 
         Attorney at Law
 
         P.O. Box 1680
 
         Fort Dodge, Iowa  50501
 
         
 
         Mr. John A. Templer, Jr.
 
                                                
 
                                                         
 
         Mr. Dean C. Mohr
 
         Attorneys at Law
 
         3737 Woodland, Suite 437
 
         West Des Moines, Iowa  50265