BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
          RICHARD GRANDSTAFF,
 
         
 
               Claimant,                 :            File No. 814501
 
         
 
          VS. :                                     A R B I T R A T I O N
 
         
 
          IOWA POWER AND LIGHT COMPANY, :                    D E C I S I O N
 
         
 
               Employer,                 :
 
               Self-Insured,             :
 
               Defendant.                :
 
         
 
         
 
         
 
                              STATEMENT OF THE CASE
 
         
 
              This is a proceeding in arbitration upon claimant's petition 
 
         filed February 10, 1986.  Claimant alleges that he sustained an 
 
         injury or occupational disease arising out of and in the course 
 
         of his employment on September 30, 1985 in that he has developed 
 
         chronic obstructive pulmonary disease (COPD).  He now seeks 
 
         benefits under the Iowa Workers' Compensation Act from defendant 
 
         self-insured employer Iowa Power and Light Company.
 
         
 
              Hearing on the petition for arbitration was had in Des 
 
         Moines, Iowa, on July 20, 1989.  The record consists of 
 
         claimant's exhibits 1 through 7, defendant's exhibits A through 
 
         H, and the testimony of claimant, Gregory Hicklin, M.D., Mayank 
 
         Kothari, M.D., and Mary Nelson.
 
         
 
                                      ISSUES
 
         
 
              Pursuant to the prehearing report, the parties have 
 
         stipulated: that an employment relationship existed between 
 
         claimant and defendant at the time of the alleged injury; that if 
 
         claimant is entitled to permanent disability benefits, he has 
 
         sustained an industrial disability to the body as a whole and the 
 
         commencement date for benefits is October 1, 1985; that the 
 
         proper rate of weekly benefits is $375.67; that claimant's 
 
         entitlement to medical benefits is no longer in dispute.
 
         
 
              Issues presented for resolution include: whether claimant 
 
         sustained an  injury or occupational disease on September 30, 
 
         1985 arising out of and in the course of his employment; whether 
 
         the alleged injury/disease caused permanent disability and the 
 
         extent thereof; whether
 
         
 
         
 
         
 
         GRANDSTAFF v. IOWA POWER AND LIGHT COMPANY
 
         Page 2
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
         claimant failed to give notice under Iowa Code section 85.23 or 
 
         85A.18; taxation of costs.
 
         
 
                                 FINDINGS OF FACT
 
         
 
              The undersigned deputy, having heard the testimony and 
 
         considered all of the evidence, finds:
 
         
 
              Claimant was born in 1933 and is a high school graduate, 
 
         having attained average grades.  He has also taken community 
 
         college classes as a machinist and in welding.  His demeanor 
 
         while testifying indicated that he is of at least average 
 
         intelligence.
 
         
 
              After holding several short-term positions following high 
 
         school, claimant came to work for defendant on June 4, 1953.  At 
 
         that time he enjoyed excellent health.  Claimant held numerous 
 
         positions during his career with defendant as set forth in 
 
         exhibit 7.  These positions include laborer, truck driver, 
 
         welder's helper, ash handler, operator of boilers and turbines, 
 
         fireman, control room operator, station equipment operator, fuel 
 
         handler, apprentice electrician and machinist.  Claimant took 
 
         advantage of an early retirement program offered by defendant 
 
         when his station was closed for business reasons, retiring 
 
         effective October 1, 1985.  Although claimant took advantage of 
 
         that retirement program only in the last hour possible, he 
 
         testified that he could not have continued his work due to 
 
         pulmonary problems.
 
         
 
              At the time of his retirement, claimant had never given 
 
         written or verbal notice to defendant of a claimed injury or 
 
         occupational disease stemming from exposure to toxic substances.  
 
         He concedes that his first notice was service of the original 
 
         notice and petition in this case.  No return of service was 
 
         filed, but the petition was filed on February 10, 1986.  
 
         Defendant's answer was filed March 5, 1986.
 
         
 
              Claimant was exposed to numerous toxic and/or foreign 
 
         substances during his long tenure with defendant.  In particular, 
 
         all of the jobs he held between May 13, 1957 and February 22, 
 
         1983 involved exposure to and inhalation of coal dust, although 
 
         the amount varied considerably with the particular job claimant 
 
         was working at various times and the demand for generated power.  
 
         Other substances to which claimant claims to have been exposed 
 
         include welding fumes, trisodium phosphate, fly ash (after 
 
         December 30, 1957; claimant could feel ash in his mouth and could 
 
         feel himself breathing and even after weekends would expel dust 
 
         when he sneezed or coughed), solvents, asbestos, chlorine gas 
 
         (with respect to the latter two, claimant testified that he 
 
         became short of breath during exertion in hot, humid weather and
 
         
 
         
 
         
 
         GRANDSTAFF v. IOWA POWER AND LIGHT COMPANY 
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         Page 3
 
         
 
         
 
         that airborne dust while he operated a turbine during that year 
 
         in his opinion caused breathing problems), hydrazine, halon, 
 
         brine acid mix, ammonia, diesel fuel, and trichloroethylene.  
 
         Claimant also alleged exposure to sulfuric acid, and suffered 
 
         facial burns on one occasion.  Claimant testified that he was a 
 
         fuel handler and weigh master in 1968, which exposed him to 
 
         substantial airborne coal dust.  Although he wore a cotton mask, 
 
         claimant testified that he coughed coal dust up even after a 
 
         two-week vacation, that he suffered chest tightness, discomfort 
 
         in his lungs and nose, felt like he had a chest cold, had a black 
 
         productive cough, and in general felt at least that early that 
 
         coal dust caused him to suffer breathing problems.  Claimant also 
 
         testified that exposure to asbestos caused, in his opinion, 
 
         coughing and tightness of the chest.
 
         
 
              Claimant began smoking cigarettes before he was twenty, and 
 
         has smoked off and on, but mostly on, since then, well over 
 
         thirty years.  He continued to smoke against medical advice 
 
         offered as early as his first diagnosis of emphysema in 1977.
 
         
 
              Claimant indicated that when he accepted early retirement 
 
         effective October 1, 1985, it was because he believed that he 
 
         could not continue to carry on due to his pulmonary condition and 
 
         tendency to become easily fatigued (also attributable to the 
 
         pulmonary condition).  Claimant indicated that he would probably 
 
         have sought long-term disability benefits if retirement had not 
 
         been offered.
 
         
 
              Claimant's treating physician for his pulmonary disorder is 
 
         Mayank Kothari, M.D., a board-certified internist.  Dr. Kothari 
 
         first saw claimant in 1977, and at that time in collaboration 
 
         with Paul From, M.D., diagnosed chronic obstructive pulmonary 
 
         disease.  This was moderate at first, but Dr. Kothari felt that 
 
         claimant's COPD became severe by 1981.  However, Dr. Kothari also 
 
         testified that claimant's pulmonary function tests had not 
 
         changed since 1977, and that claimant had developed no additional 
 
         disability during the intervening years.
 
         
 
              Dr. Kothari testified that hydrazine, welding fumes, 
 
         sulfuric acid, chlorine fumes, trisodium phosphate or muriatic 
 
         acid, brine acid mix and trichloroethylene cause acute and 
 
         temporary pulmonary problems. ; However, he further was of the 
 
         view that claimant's 30-year exposure to asbestos and coal dust 
 
         caused and materially aggravated his pulmonary disorder to the 
 
         extent that claimant is now totally disabled from any type of 
 
         employment.  Of claimant's functional loss, he attributed 10 
 
         percent to preexisting and non-industrially caused scoliosis, 10 
 
         percent to claimant's history of cigarette smoking and 80 percent 
 
         to industrial exposure.
 
         
 
         
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         GRANDSTAFF v. IOWA POWER AND LIGHT COMPANY
 
         Page 4
 
         
 
         
 
         
 
              However, this writer observes certain weaknesses in Dr. 
 
         Kothari's testimony.  In particular, his belief that claimant 
 
         worked with asbestos on a regular basis for 30 years is not 
 
         supported in the record.  Dr. Kothari also testified that 
 
         claimant never complained of coal dust and asbestos exposure 
 
         during some 80 office visits over the years.  Dr. Kothari further 
 
         testified that he had not gone into depth with claimant as to the 
 
         extent of his cigarette smoking, even though agreeing that this 
 
         is a very important factor.  Dr. Kothari noted that COPD is the 
 
         same thing as emphysema.  He had advised claimant in 1977 to quit 
 
         smoking, and apparently was under the belief that, while claimant 
 
         may still have continued smoking substantially, he was not 
 
         inhaling very much.
 
         
 
              Dr. Kothari (or his office) gave claimant a return to work 
 
         without restrictions in August, 1985.  Although the undersigned 
 
         found his testimony a little unclear, Dr. Kothari apparently 
 
         tried to disassociate himself from this return to work slip 
 
         issued over his signature.
 
         
 
              Gregory Hicklin, M.D., is a specialist in pulmonary disease, 
 
         board certified in that subspecialty and certified by the 
 
         National Institute of Occupational Safety and Health as a B 
 
         reader (for reading chest x-rays to specifically look for the 
 
         lung disease pneumoconiosis).
 
         
 
              Dr. Hicklin saw claimant for evaluation in 1986 and found 
 
         his pulmonary function at that time more or less stable as 
 
         opposed to 1977 or 1978, although quite abnormal.  However, he 
 
         found that claimant has deteriorated in condition since then.  He 
 
         believed that claimant had severely impaired pulmonary function 
 
         on the basis of three factors: severe kyphoscoliosis and fusion 
 
         of the ribs, severe pulmonary emphysema and bronchial asthma.
 
         
 
              Dr. Hicklin indicated that kyphoscoliosis is an abnormality 
 
         of the spine and ribs causing an S-shape and resulting in a 
 
         stiffening of the chest cage.  Claimant also had an associated 
 
         fusion of the ribs which reduces normal motion with breathing.  
 
         Claimant's scoliosis and rib abnormalities have made his chest 
 
         wall less compliant and have limited his ability to breath.. He 
 
         agreed with Dr. Kothari that this is a congenital condition 
 
         having no relationship to the work environment.
 
         
 
              Dr. Hicklin indicated that emphysema (or COPD) is a disorder 
 
         of the lungs defined as an enlargement of the respiratory space 
 
         associated with loss of alveolar capillary surface area.  It is a 
 
         chronic disease usually accompanied by a cough and air hunger and 
 
         the body typically compensates by enlargement of the lungs and a 
 
         loss of elasticity.
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
         
 
         GRANDSTAFF v. IOWA POWER AND LIGHT COMPANY 
 
         Page 5
 
         
 
         
 
         
 
         Claimant's emphysema is complicated by the abnormality of his 
 
         chest wall due to scoliosis which inhibits this enlargement; Dr. 
 
         Hicklin felt his ultimate condition was much worse because of the 
 
         combination of these factors.
 
         
 
              Dr. Hicklin believed to a reasonable degree of medical 
 
         certainty that claimant's current condition of emphysema was 
 
         caused by cigarette smoking.
 
         
 
              Dr. Hicklin also discussed claimant's condition of intrinsic 
 
         bronchial asthma, that is nonallergic bronchial asthma with no 
 
         known cause.  He did not believe that irritants to which claimant 
 
         was exposed through his employment caused his asthmatic 
 
         condition.
 
         
 
              Dr. Hicklin specifically disagreed with Dr. Kothari's 
 
         conclusion that exposure to coal dust and asbestos were causally 
 
         related to claimant's emphysema or COPD.  He indicated that 
 
         emphysema is not caused by coal dust.  Coal dust causes 
 
         pneumoconiosis, but this disorder is always associated with a 
 
         very different chest x-ray appearance.  Claimant had no evidence 
 
         on his chest x-ray of pneumoconiosis and "certainly his degree of 
 
         emphysema is far, far out of proportion of any kind of emphysema 
 
         that you would expect from coal workers' pneumoconiosis without a 
 
         horrible, awful looking chest x-ray."  In addition, he noted that 
 
         asbestos has never been shown to cause emphysema and that there 
 
         was no evidence on claimant's chest x-ray of any significant 
 
         exposure to or disease related to asbestos.
 
         
 
              With respect to the various other toxic substances to which 
 
         claimant alleges exposure, Dr. Hicklin indicated that claimant 
 
         could have suffered acute and temporary pulmonary problems, but 
 
         that there had not been a long-term detrimental effect from such 
 
         exposures.
 
         
 
              There is a direct conflict in the medical evidence as to 
 
         whether claimant's chronic obstructive pulmonary disease was 
 
         caused by exposure to coal dust, asbestos and the other toxic or 
 
         foreign substances to which he alleges exposure, or by cigarette 
 
         smoking and the.effects of his congenital kyphoscoliosis and 
 
         bronchial asthma.  It is found that Dr. Hicklin's testimony is 
 
         the more persuasive.  Dr. Hicklin is board certified in the 
 
         subspecialty of pulmonary disease, while Dr. Kothari is not.  
 
         Normally, the rating of a board-certified physician is preferred 
 
         in cases of conflict. Dickey v. ITT Continental Baking Co., 34th 
 
         Biennial Report of the Industrial Commissioner 89 (1979); 
 
         Richland v. Palco, Inc., 32nd Biennial Report of the Industrial 
 
         Commissioner 56 (1975).  Dr. Hicklin is a NIOSH certified B 
 
         reader, well experienced and certified in reading x-rays.  It is 
 
         his finding that x-rays do not indicate pneumoconiosis from coal
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
         
 
         
 
         GRANDSTAFF v. IOWA POWER AND LIGHT COMPANY 
 
         Page 6
 
         
 
         
 
         dust exposure or fibrosis from asbestos exposure.  Dr. Kothari's 
 
         testimony is weakened by his misunderstanding of claimant's 
 
         exposure to asbestos and disinterest in claimant's history of 
 
         cigarette consumption.
 
         
 
              It is therefore held that claimant's current pulmonary 
 
         difficulties are causally related to kyphoscoliosis, a congenital 
 
         condition, bronchial asthma of unknown etiology, and COPD or 
 
         emphysema caused by cigarette smoking.  It has not been shown 
 
         that claimant's clearly severe disability is causally related to 
 
         exposure to coal dust, asbestos or other toxic or foreign 
 
         substances in the course of his employment.
 
         
 
                                CONCLUSIONS OF LAW
 
         
 
              Claimant has the burden of proving by a preponderance of the 
 
         evidence that he received an injury which arose out of and in the 
 
         course of his employment.  McDowell v. Town of Clarksville, 241 
 
         N.W.2d 904 (Iowa 1976); Musselman v. Central Telephone Co., 261 
 
         Iowa 352, 154 N.W.2d 128 (1967).
 
         
 
              The injury must both arise out of and be in the course of 
 
         the employment.  Crowe v. DeSoto Consol. Sch. Dist., 246 Iowa 
 
         402, 68 N.W.2d 63 (1955) and cases cited at pp. 405-406 of the 
 
         Iowa Report.  See also Sister Mary Benedict v. St. Mary's Corp., 
 
         255 Iowa 847, 124 N.W.2d 548 (1963) and Hansen v. State of Iowa, 
 
         249 Iowa 1147, 91 N.W.2d 555 (1958).
 
         
 
              The supreme court of Iowa in Almquist v. Shenandoah 
 
         Nurseries, .218 Iowa 724, 731-32, 254 N.W. 35, 38 (1934) 
 
         discussed the definition of personal injury in workers' 
 
         compensation cases as follows:
 
         
 
              While a personal injury does not include an occupational 
 
              disease under the Workmen's Compensation Act, yet an injury 
 
              to the health may be a personal injury. [Citations omitted.] 
 
              Likewise a personal injury includes a disease resulting from 
 
              an injury .... The result of changes in the human body 
 
              incident to the general processes of nature do not amount to 
 
              a personal injury.  This must follow, even though such 
 
              natural change may come about because the life has been 
 
              devoted to labor and hard work.  Such result of those 
 
              natural changes does not constitute a personal injury even 
 
              though the same brings about impairment of health or the 
 
              total or partial incapacity of the functions of the human 
 
              body.
 
         
 
              
 

 
              
 
 
 
 
 
 
 
 
 
 
 
              
 
         GRANDSTAFF v. IOWA POWER AND LIGHT COMPANY 
 
         Page 7
 
         
 
         
 
              A personal injury, contemplated by the Workmen's 
 
              Compensation Law, obviously means an injury to the body, the 
 
              impairment of health, or a disease, not excluded by the act, 
 
              which comes about, not through the natural building up and 
 
              tearing down of the human body, but because of a traumatic 
 
              or other hurt or damage to the health or body of an 
 
              employee. [Citations omitted.] The injury to the human body 
 
              here contemplated must be something, whether an accident or 
 
              not, that acts extraneously to the natural processes of 
 
              nature, and thereby impairs the health, overcomes, injures, 
 
              interrupts, or destroys some function of the body, or 
 
              otherwise damages or injures a part or all of the body.
 
         
 
              The claimant has the burden of proving by a preponderance of 
 
         the evidence that his injury is causally related to the 
 
         disability on which he now bases his claim.  Bodish v. Fischer, 
 
         Inc., 257 Iowa 516, 133 N.W.2d 867 (1965).  Lindahl v. L. 0. 
 
         Boggs, 236 Iowa 296, 18 N.W.2d 607 (1945).  A possibility is 
 
         insufficient; a probability is necessary.  Burt v. John Deere 
 
         Waterloo Tractor Works, 247 Iowa 691, 73 N.W.2d 732 (1955).  The 
 
         question of causal connection is essentially within the domain of 
 
         expert testimony.  Bradshaw v. Iowa Methodist Hospital, 251 Iowa 
 
         375, 101 N.W.2d 167 (1960).
 
         
 
              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).
 
         
 
              It is clear that claimant suffers from chronic obstructive 
 
         pulmonary disease, which is, in his case, further complicated by 
 
         kyphoscoliosis and bronchial asthma.  The fighting issue in this 
 
         case is whether claimant's COPD or emphysema has been shown to 
 
         have been caused by exposure to coal dust, asbestos or other 
 
         toxic or foreign substances at work as opposed to his substantial 
 
         history of tobacco consumption.  A question of this sort is 
 
         peculiarly within the province of expert testimony.  By far the 
 
         more persuasive expert testimony establishes that claimant's 
 
         emphysema was caused by his cigarette consumption and not by
 
         
 
         
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         GRANDSTAFF v. IOWA POWER AND LIGHT COMPANY 
 
         Page 8
 
         
 
         
 
         his claimed exposure to toxic substances at work.  Therefore, 
 
         claimant has not established either an injury arising out of and 
 
         in the course of his employment or an occupational disease under 
 
         Chapter 85A.  Therefore, he cannot recover on this claim.
 
         
 
              Yet, defendant also raises an affirmative defense based on 
 
         failure to give statutory notice.  Claimant alleges either an 
 
         injury compensable under Chapter 85 or an occupational disease 
 
         compensable under Chapter 85A of the Iowa Code.  He can recover 
 
         under one, but not both chapters.  Peters v. Lamoni Auto 
 
         Assemblies, Inc., file number 809203 (App. Decn. March 31, 1989).  
 
         In either case, there is a notice requirement.  Iowa Code section 
 
         85-23 requires, in the absence of actual knowledge of the 
 
         occurrence of an injury on the part of the employer, notice 
 
         within 90 days from the date.of the occurrence of the injury.  In 
 
         cases of cumulative injury, such as the dispute under review, the 
 
         injury date is when claimant, due to pain or physical inability, 
 
         is no longer able to work.  McKeever Custom Cabinets v. Smith, 
 
         379 N.W.2d 368 (Iowa 1985).  In cases of occupational disease, 
 
         written notice must be given to the employer by the claimant 
 
         within 90 days "after the first distinct manifestation thereof."  
 
         However, the Iowa Court of Appeals has recently held that the 
 
         date for beginning the 90-day notice period under 85A.18 is when 
 
         the disease progresses to the point that the employee, because of 
 
         pain or physical inability, is no longer able to work.  Croft v. 
 
         John Morrell & Co., 451 N.W.2d 501 (Iowa App. 1989).  Thus, 
 
         accepting claimant's testimony that he was no longer able to 
 
         continue work following his retirement effective October 1, 1985, 
 
         the 90-day notice requirement began ticking under either theory 
 
         on that date.
 
         
 
              It is undisputed that claimant gave no notice to defendant 
 
         of his claim prior to service of the original notice and petition 
 
         in this case, which was after February 10, 1986.  Obviously, this 
 
         is more than 90 days from October 1, 1985.  Failure of notice is 
 
         an affirmative defense with the burden of proof on defendant.  
 
         Mefford v. Ed Miller & Sons, Inc., 33rd Biennial Report of the 
 
         Industrial Commissioner 191 (1977).  However, Iowa has.adopted 
 
         the "discovery rule with respect to notice defenses.  The 90-day 
 
         time period does not begin to run until the worker knows or 
 
         should know that his injury is both serious and work connected.  
 
         Jacques v. Farmers Lumber & Supply Co., 242 Iowa 548, 47 N.W.2d 
 
         236 (1951).  The appropriate standard in determining whether an 
 
         individual should know the injury is serious and work connected 
 
         is that of a reasonable person with claimant's education and 
 
         intelligence.  Robinson v. Dep't of Transp., 296 N.W.2d 809 (Iowa 
 
         1980).
 
         
 
         
 
         
 
         GRANDSTAFF V. IOWA POWER AND LIGHT COMPANY
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         Page 9
 
         
 
         
 
              Claimant has a high school diploma and is of at least 
 
         average intelligence.  He testified to his belief that coughing 
 
         and pulmonary difficulties were causally related to the work, 
 
         pointing to such graphic instances as continuing to cough up 
 
         black phlegm after a two-week vacation.  It is obvious to this 
 
         observer that he in his own mind believed that his injury was 
 
         work connected, and he certainly knew it was serious as of 
 
         October 1, 1985, because he cites it as his reason for accepting 
 
         early retirement.  Therefore, the discovery rule does not avail 
 
         claimant in this instance.  If claimant had sustained a work 
 
         injury or compensable occupational disease, it would be barred by 
 
         the notice requirements of either section 85.23 or 85A.18.
 
         
 
              It is unnecessary to resolve whether claimant's chronic 
 
         obstructive pulmonary disease constitutes an injury as opposed to 
 
         an occupational disease, because claimant has failed to establish 
 
         that it is causally related to his employment in any event.
 
         
 
                                      ORDER
 
         
 
              THEREFORE, IT IS ORDERED:
 
         
 
              Claimant shall take nothing from this proceeding.
 
         
 
              Costs of this action shall be assessed to defendant pursuant 
 
         to Division of Industrial Services Rule 343-4.33.
 
         
 
              Signed and filed this 19th day of June, 1990.
 
         
 
         
 
         
 
         
 
         
 
         
 
                                         DAVID RASEY
 
                                         DEPUTY INDUSTRIAL COMMISSIONER
 
         
 
         Copies To:
 
         
 
         Mr. Steven L. Udelhofen
 
         Attorney at Law
 
         Breakwater Building
 
         3708 75th Street
 
         Des Moines, Iowa 50322
 
         
 
         Mr. Cecil L. Goettsch
 
         Attorney at Law
 
         1100 Des Moines Building
 
         Des Moines, Iowa 50309
 
         
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                               1108.30, 2401
 
                                               Filed June 19, 1990
 
                                               DAVID RASEY
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            RICHARD GRANDSTAFF,           :
 
                                          :
 
                 Claimant,                :         File No. 814501
 
                                          :
 
            vs.                           :      A R B I T R A T I O N
 
                                          :
 
            IOWA POWER AND LIGHT COMPANY, :         D E C I S I O N
 
                                          :
 
                 Employer,                :
 
                 Self-Insured,            :
 
                 Defendant.               :
 
            ____________________________________________________________
 
            
 
            2401
 
            Notice defense prevailed when original notice served more 
 
            than 90 days after retirement date (allegedly forced by 
 
            emphysema) was first notice of injury or occupational 
 
            disease.  Discovery rule did not apply because claimant 
 
            should have known of potential claim for years, given his 
 
            normal intelligence and belief emphysema was work connected.
 
            
 
            1108.30
 
            Emphysema was not shown to be caused by exposure to coal 
 
            dust, asbestos or numerous other foreign substances.
 
            
 
 
            
 
 
 
 
 
           
 
 
 
                   BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         PAMELA PULJU,
 
                                                    File Nos. 804656
 
              Claimant,                                       814502
 
         
 
         vs.                                            O R D E R
 
         
 
         IBP, INC.,                                      N U N C
 
         
 
              Employer,                                   P R O
 
         
 
         and                                             T U N C
 
         
 
         SECOND INJURY FUND OF IOWA,                    F I L E D
 
         
 
              Defendants.                              JUL 26 1989
 
         
 
                                              IOWA INDUSTRIAL 
 
                                              COMMISSIONER
 
         
 
         
 
              The appeal decision filed July 21, 1989, contained a 
 
         conclusion of law stating that claimant's overall industrial 
 
         disability as a result of the injuries of June 10, 19073, 
 
         September 1, 1984, and August 1, 1985, was 75 percent.  
 
         Claimant's actual industrial disability as a result of those 
 
         injuries was 25 percent.
 
         
 
              THEREFORE, it is ordered:
 
         
 
              The appeal decision is hereby amended and corrected to 
 
         reflect a conclusion of law that claimant's overall industrial 
 
         disability as a result of the injuries of June 10, 1973, 
 
         September 1, 1984, and August 1, 1985, was 25 percent.
 
         
 
              Signed and filed this 26th day of July, 1989.
 
         
 
         
 
         
 
         
 
         
 
                                                    DAVID E. LINQUIST
 
                                                 INDUSTRIAL COMMISSIONER
 
         
 
         Copies to:
 
         
 
         Mr. Steven Hamilton
 
         Attorney at Law
 
         606 Ontario St.
 
         Storm Lake, IA  50588
 
         
 
         
 
         
 
                                                
 
                                                         
 
         
 
         
 
         
 
         
 
         
 
         
 
         
 
         
 
                                                                                                                    
 
         
 
         
 
         
 
         
 
         
 
         
 
         
 
         
 
         
 
         
 
         
 
         
 
         
 
         
 
         
 
         
 
         
 
         
 
         
 
         
 
                                                                                       
 
         
 
         
 
         
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
                                                
 
 
        
 
 
 
 
 
                       BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
        
 
        
 
        LEONARD PEARSON,
 
        
 
            Claimant,
 
        
 
        vs.                               File No. 814511
 
        
 
        IOWA CONCRETE PRODUCTS INC.,         A P P E A L
 
        
 
            Employer,                     D E C I S I O N
 
        
 
        and
 
        
 
        WAUSAU INSURANCE COMPANIES,
 
        
 
            Insurance Carrier,
 
            Defendants.
 
        
 
        
 
                                 STATEMENT OF THE CASE
 
        
 
        Claimant appeals from an arbitration decision regarding an 
 
        alleged injury on December 5, 1985 which found claimant failed to 
 
        prove an injury arising out of and in the course of his 
 
        employment.
 
        
 
        The record on appeal consists of the transcript of the 
 
        arbitration proceeding and joint exhibits 1 through 20 inclusive.
 
        
 
                                      ISSUE
 
        
 
        The issue on appeal is whether claimant sustained a gradual 
 
        injury which culminated on or about December 5, 1985.
 
        
 
                                 REVIEW OF THE EVIDENCE
 
        
 
        The arbitration decision adequately and accurately reflects the 
 
        pertinent evidence and it will not be set forth herein.
 
        
 
                                 APPLICABLE LAW
 
        
 
        The citations of law contained in the arbitration decision are 
 
        appropriate to the issues and evidence.
 
        
 
                                      ANALYSIS
 
        
 
        The analysis of the evidence in conjunction with the law is 
 
        adopted.
 
        
 
        PEARSON v. IOWA CONCRETE PRODUCTS INC.
 
        Page 2
 
        
 
        
 
                                 FINDINGS OF FACT
 
        
 
        1. In May 1980, claimant sustained an injury arising out of and 
 
        in the course of his employment, injuring his left shoulder.
 
        
 
        2. Claimant continues to experience pain in the shoulder and 
 
        sought additional treatment therefor with Dr. Robb Fulton in 
 
        November 1985.
 

 
        
 
 
 
 
 
        
 
        3. Dr. Fulton related the pain back to the incident wherein 
 
        claimant fell off the ladder.
 
        
 
        4. Claimant was evaluated by Dr. Jerome Bashara and Dr. Robert 
 
        Breedlove, both of whom relate claimant's shoulder pain to the 
 
        fall from the ladder as well as multiple surgical procedures 
 
        performed on the upper left extremity.
 
        
 
        5. Claimant relates his current pain to the 1980 fall.
 
        
 
        6. Claimant incurred no new injury December 5, 1985.
 
        
 
                                 CONCLUSION OF LAW
 
        
 
        Claimant has failed to sustain his burden of establishing that he 
 
        sustained an injury on December 5, 1985 which arose out of and in 
 
        the course of his employment.
 
        
 
        WHEREFORE, the decision of the deputy is affirmed.
 
        
 
                                      ORDER
 
        
 
        THEREFORE, it is ordered:
 
        
 
        That claimant take nothing from this proceeding.
 
        
 
        That costs of this action are assessed against defendants 
 
        pursuant to Division of Industrial Services Rule 343-4.33.
 
        
 
        Signed and filed this 13th day of December, 1988.
 
        
 
        
 
                                          DAVID E. LINQUIST
 
                                       INDUSTRIAL COMMISSIONER
 
        
 
        
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                   BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         LEONARD PEARSON,
 
         
 
              Claimant,
 
         
 
         vs.                                       File No. 814511
 
         
 
         IOWA CONCRETE PRODUCTS INC.,                A P P E A L
 
         
 
              Employer,                            D E C I S I O N
 
         
 
         and
 
         
 
         WAUSAU INSURANCE COMPANIES,
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
                              STATEMENT OF THE CASE
 
         
 
              Claimant appeals from an arbitration decision regarding an 
 
         alleged injury on December 5, 1985 which found claimant failed to 
 
         prove an injury arising out of and in the course of his 
 
         employment.
 
         
 
              The record on appeal consists of the transcript of the 
 
         arbitration proceeding and joint exhibits 1 through 20 
 
         inclusive.
 
         
 
                                      ISSUE
 
         
 
              The issue on appeal is whether claimant sustained a gradual 
 
         injury which culminated on or about December 5, 1985.
 
         
 
                              REVIEW OF THE EVIDENCE
 
         
 
              The arbitration decision adequately and accurately reflects 
 
         the pertinent evidence and it will not be set forth herein.
 
         
 
                                  APPLICABLE LAW
 
         
 
              The citations of law contained in the arbitration decision 
 
         are appropriate to the issues and evidence.
 
         
 
                                     ANALYSIS
 
         
 
              The analysis of the evidence in conjunction with the law is 
 
         adopted.
 
         
 
                                  FINDINGS OF FACT
 
         
 
              1.  In May 1980, claimant sustained an injury arising out of 
 
         and in the course of his employment, injury his left shoulder.
 
         
 
              2.  Claimant continues to experience pain in the shoulder 
 
         and sought additional treatment therefor with Dr. Robb Fulton in 
 
         November 1985.
 
         
 
              3.  Dr. Fulton related the pain back to the incident wherein 
 
         claimant fell off the ladder.
 
         
 

 
         
 
         
 
         
 
         PEARSON V. IOWA CONCRETE PRODUCTS, INC.
 
         PAGE   2
 
         
 
              4.  Claimant was evaluated by Dr. Jerome Bashara and Dr. 
 
         Robert Breedlove, both of whom relate claimant's shoulder pain to 
 
         the fall from the ladder as well as multiple surgical procedures 
 
         performed on the upper left extremity.
 
         
 
              5.  Claimant relates his current pain to the 1980 fall.
 
         
 
              6.  claimant incurred no new injury December 5, 1985.
 
         
 
                                CONCLUSION OF LAW
 
         
 
              Claimant has failed to sustain his burden of establishing 
 
         that he sustained an injury on December 5, 1985 which arose out 
 
         of and in the course of his employment.
 
         
 
              WHEREFORE, the decision of the deputy is affirmed.
 
         
 
                                      ORDER
 
         
 
              THEREFORE, it is ordered:
 
         
 
              That claimant take nothing from this proceeding.
 
         
 
              That costs of this action are assessed against defendants 
 
         pursuant to Division of Industrial Services Rule 343-4.33.
 
         
 
         
 
              Signed and filed this 13th day of December, 1988.
 
         
 
         
 
         
 
         
 
         
 
         
 
                                               DAVID E. LINQUIST
 
                                               INDUSTRIAL COMMISSIONER
 
         
 
         
 
         Copies To:
 
         
 
         Mr. Barry Moranville
 
         Attorney at Law
 
         974 73rd St., Suite 16
 
         Des Moines, Iowa 50312
 
         
 
         Mr. Marvin E. Duckworth
 
         Attorney at Law
 
         2700 Grand Ave., Suite 111
 
         Des Moines, Iowa 50312
 
         
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                                 1100-1108.50-1402.30
 
                                                 Filed December 13, 1988
 
                                                 DAVID E. LINQUIST
 
         
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         LEONARD PEARSON,
 
         
 
              Claimant,
 
         
 
         vs.                                    File No. 814511
 
         
 
         IOWA CONCRETE PRODUCTS INC.,             A P P E A L
 
         
 
              Employer,                         D E C I S I O N
 
         
 
         and
 
         
 
         WAUSAU INSURANCE COMPANIES,
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
         
 
         1100 - 1108.50 - 1402.30
 
         
 
              Claimant injured his left shoulder in a fall in 1980.  He 
 
         was periodically treated for pain from 1980 to 1986.  Medical 
 
         evidence and claimant's own testimony related pain in 1985 to the 
 
         1980 injury.  Deputy's determination that claimant had failed to 
 
         establish a new injury or an aggravation in 1985 was affirmed on 
 
         appeal.
 
         
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                    BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         LEONARD PEARSON,
 
         
 
              Claimant,
 
         
 
         VS.                                         File No. 814511
 
         
 
         IOWA CONCRETE PRODUCTS INC.,             A R B I T R A T I 0 N
 
         
 
              Employer,                              D E C I S I 0 N
 
         
 
         and
 
         
 
         WAUSAU INSURANCE COMPANIES,
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
                              STATEMENT OF THE CASE
 
         
 
              This is a proceeding in arbitration brought by Leonard 
 
         Pearson, claimant, against Iowa Concrete Products, Inc., 
 
         employer, and Wausau Insurance Companies, insurance carrier, to 
 
         recover benefits under the Iowa Workers' Compensation Act as a 
 
         result of an alleged injury sustained December 5, 1985.  The 
 
         matters addressed in file numbers 738738, 783442, 636855 and 
 
         814511 came on for hearing before the undersigned deputy 
 
         industrial commissioner January 27, 1988.  The record was 
 
         considered fully submitted at the close of  the hearing.  The 
 
         record in this case consists of the testimony  of claimant and 
 
         Debra Pearson, his wife; and joint exhibits 1 through 20, 
 
         inclusive.
 
         
 
                                    ISSUES
 
         
 
              Pursuant to the prehearing report and order approved January 
 
         27, 1988, the issues presented for determination are:
 
         
 
              1.  Whether claimant sustained an injury arising out of and 
 
         in the course of his employment December 5, 1985;
 
         
 
              2.  Whether the alleged injury is causally connected to the 
 
         disability on which claimant now bases his claim;
 
         
 
              3.  The extent, if any, of claimant's entitlement to 
 
         temporary total disability/healing period benefits;
 
         
 
              4.  The nature and extent, if any, of permanent partial 
 
         disability benefits; and
 
         
 
              5.  Claimant's entitlement to certain medical expenses 
 
         pursuant to Iowa Code section 85.27.
 
         
 
                                 FACTS PRESENTED
 
         
 
              On May 6, 1980, claimant fell off a ladder onto a solid 
 

 
         
 
         
 
         
 
         PEARSON V. IOWA CONCRETE PRODUCTS, INC.
 
         Page   2
 
         
 
         cement floor landing on his left arm and shoulder.  Claimant 
 
         testified he was off work for an extensive period of time, 
 
         underwent at least three different surgical procedures on his 
 
         left elbow and hand and returned to work in approximately August 
 
         1981 after receiving a settlement on permanent partial disability 
 
         benefits.  On July 18, 1983, while putting a fork on a forklift, 
 
         claimant's left foot was injured when a fork fell across it.  
 
         Claimant explained he had two surgical procedures done on his 
 
         foot during which "hardware" was put in.  On December 13, 1984, 
 
         bilateral carpal tunnel surgery was performed.  Defendants agree 
 
         all three of these injuries arose out of and in the course of 
 
         claimant's employment.
 
         
 
              Claimant testified December 5 was the last day he worked in 
 
         1985 and that he had been having trouble with his shoulder 
 
         throughout the months of November and December 1985.  He 
 
         explained he had been rolling and patching pipe and running a 
 
         material truck using a pick and shovel.  Claimant stated he saw 
 
         Robb Fulton, M.D., who prescribed pain medication and physical 
 
         therapy and that he was released to return to work January 31, 
 
         1986.
 
         
 
              Claimant testified he continues to experience pain in his 
 
         shoulder, that he has a loss of grip in both hands, and that he 
 
         is able to reach above his head but not without pain.  He 
 
         acknowledged he is able to perform all of the responsibilities of 
 
         his job, that he is under no restrictions, and that he fully 
 
         intends to continue in his employment with Iowa Concrete 
 
         Products.  Claimant relates his pain to the accident of 1980 and 
 
         admitted he is not now under any current medical treatment for 
 
         any of these injuries.
 
         
 
              Debra Pearson testified she was aware of no problems 
 
         claimant had with his hands, wrists, shoulder, or left foot prior 
 
         to his work injuries.  She opined claimant tends to "baby" 
 
         himself and put restrictions on himself as a result of perceived 
 
         pain.  She did not describe these symptoms of pain as constant or 
 
         continual but rather testified that claimant "feels pretty good 
 
         most generally."
 
         
 
              X-rays taken following claimant's July 18, 1983 foot injury 
 
         dirl not reveal evidence of fracture but showed diastasis of the 
 
         4th and 5th metatarsals.  William Boulden, M.D., operated on 
 
         claimant November 9, 1983 for repair of this condition and, when 
 
         claimant did not recover as expected, performed an open reduction 
 
         and internal fixation of metatarsal diastasis and fusion using 3 
 
         AO screws to solidify the fixation.  Claimant was given a 10 
 
         percent permanent partial impairment rating of the left foot from 
 
         Dr. Boulden on June 6, 1984.  Claimant was also given a 45 
 
         percent permanent partial disability rating due to the injury 
 
         from Dr. Charles Parker, Podiatrist, on November 1, 1984.
 
         
 
              Claimant has had multiple operations on his left upper 
 
         extremity since his fall from the ladder in May 1980, including 
 
         two left carpal tunnel releases, two cubital tunnel compressions 
 
         and a left lateral epicondylitis release.  On July 17, 1981, 
 
         claimant underwent surgery by J.D. Bell, D.O., fora nerve 
 
         entrapment syndrome on the left.  Farther surgery was done 
 
         October 19, 1982 by Peter D. Wirtz, M.D., for tendon removal at 
 
         the left elbow.  Arnis Grundberg, M.D., performed an ulnar nerve 
 

 
         
 
         
 
         
 
         PEARSON V. IOWA CONCRETE PRODUCTS, INC.
 
         Page   3
 
         
 
         exploration and transfer at the elbow and in the wrist area.  Dr. 
 
         Wirtz released claimant to return to work opining claimant had no 
 
         permanent partial impairment.  Dr. Grundberg gave claimant a five 
 
         percent permanent partial impairment rating of the upper left 
 
         extremity.
 
         
 
              Claimant was evaluated February 10, 1987 by Robert 
 
         Breedlove, M.D., who concluded:
 
         
 
                 I feel that the 10% permanent partial impairment of 
 
              the left foot is appropriate at this point considering 
 
              the patient's inability to walk long distances and the 
 
              difficulty he has with kneeling and bending forward 
 
              which is required in part of his job.  I would rate the 
 
              permanent partial impairment of his left shoulder at 7% 
 
              of the left upper extremity.  I base this on the fact 
 
              that he has 120 degrees of abduction for a 3% permanent 
 
              partial impairment.  He has 150 degrees of forward 
 
              flexion but he also has moderate pain for the last 60 
 
              degrees and would rate that at 2% permanent partial 
 
              impairment.  Internal rotation 1% and extension 1%.
 
         
 
         (Joint Exhibit 8, page 5)
 
         
 
              Dr. Breedlove recommended:
 
         
 
                 Treatment for the patient's left foot pain would 
 
              include obtaining Rockport shoes in order to better 
 
              cushion his feet when he is walking.  They do not make 
 
              steel toed Rockport shoes, so I feel Sorbothane full 
 
              sole inserts would be applicable for his work boots.
 
         
 
         (Jt. Ex. 8, p. 5)
 
         
 
              With regard to claimant's alleged December 1985 injury,
 
         
 
         Dr. Breedlove writes:
 
         
 
                 Mr. Pearson states that either in November or 
 
              December 1985 he was unloading frozen sand off of a 
 
              truck using a pick and shovel and then began 
 
              experiencing left shoulder pain.  On further 
 
              questioning, the patient denies having had left 
 
              shoulder pain previous to this accident.  He did 
 
              mention the multiple carpal tunnel releases and ulnar 
 
              nerve releases.  In reviewing the records that I have 
 
              available from December 13, 1985, by Dr. Fulton, he 
 
              states that Mr. Pearson had pain in the left shoulder 
 
              in the fall of 1984.  He also states that in 1983 
 
              following an accident at work in which he fell off of a 
 
              ladder onto the concrete floor landing on his left 
 
              shoulder he did experience some difficulty with pain.
 
         
 
         (Jt. Ex. 8, p. 3)
 
         
 
              Claimant was seen for evaluation February 6, 1987, by Jerome 
 
         G. Bashara, M.D., who concluded:
 
         
 
                 In reviewing the history and all of the records on 
 
              this patient, it is my opinion that the patient has a 
 

 
         
 
         
 
         
 
         PEARSON V. IOWA CONCRETE PRODUCTS, INC.
 
         Page   4
 
         
 
              15% permanent partial physical impairment of his left 
 
              upper extremity.  I believe that 10% of this impairment 
 
              rating is related to an injury which he sustained at 
 
              work on May 10, 1980 to his shoulder and elbow.
 
         
 
                 I believe that 5% of the above 15% rating is related 
 
              to repetitive trauma to his wrist which he sustained at 
 
              work over the next several year period resulting in the 
 
              development of a carpal tunnel syndrome with subsequent 
 
              surgery.
 
         
 
         (Jt. Ex. 6, p. 1)
 
         
 
              Dr. Bashara makes no note of any alleged December 1985 
 
         injury.
 
         
 
              Claimant saw Robb Fulton, D.O., November 27, 1985 for pain 
 
         in the left shoulder radiating to the left elbow.  Dr. Fulton 
 
         notes the onset of pain was in 1983 "following an accident at 
 
         work in which he fell off a ladder onto concrete floor on his 
 
         left shoulder."  Dr. Fulton found "tenderness to palpation of 
 
         left shoulder muscles in general and on the tendon of the long 
 
         head of left biceps in particular.  There is significant weakness 
 
         of left grip, forearm, triceps and biceps; however, range of 
 
         motion is essentially normal." (Jt. Ex. 8, p. 2)
 
         
 
         
 
                                  APPLICABLE LAW
 
         
 
              An employee is entitled to compensation for any and all 
 
         personal injuries which arise out of and in the course of the 
 
         employment.  Section 85.3(l).
 
         
 
              Claimant has the burden of proving by a preponderance of the 
 
         evidence that he received an injury on December 5, 1985 which 
 
         arose out of and in the course of his employment.  McDowell v. 
 
         Town of Clarksville, 241 N.W.2d 904 (Iowa 1976); Musselman v. 
 
         Central Telephone Co., 261 Iowa 352, 154 N.W.2d 128 (1967).
 
         
 
              The words "out of" refer to the cause or source of the 
 
         injury.  Crowe v. DeSoto Consol. Sch. Dist., 246 Iowa 402, 68 
 
         N.W.2d 63 (1955).
 
         
 
              The words "in the course of" refer to the time and place and 
 
         circumstances of the injury.  McClure v. Union et al. Counties, 
 
         188 N.W.2d 283 (Iowa 1971); Crowe, 246 Iowa 402, 68 N.W.2d 63.
 
         
 
              "An injury occurs in the course of the employment when it is 
 
         within the period of employment at a place the employee may 
 
         reasonably be, and while he is doing his work or something 
 
         incidental to it."  Cedar Rapids Comm. Sch. Dist. v. Cady, 278 
 
         N.W.2d 298 (Iowa 1979), McClure,188 N.W.2d 283, Musselman, 261 
 
         Iowa 352, 154 N.W.2d 128.
 
         
 
         
 
                                     ANALYSIS
 
         
 
              As stated above, Iowa Code section 85.3(l) entitles a 
 
         claimant to compensation for any and all personal injuries which 
 
         arise out of and in the course of the employment.  Claimant must, 
 

 
         
 
         
 
         
 
         PEARSON V. IOWA CONCRETE PRODUCTS, INC.
 
         Page   5
 
         
 
         therefore, in order to be entitled to compensation, establish an 
 
         injury which arose out of and in the course of employment 
 
         occurred at or about the time pled in the original notice and 
 
         petition.  The question in this case thus becomes whether 
 
         claimant has met this burden of proof.  With regard to December 
 
         5, 1985, the answer must be no.  Claimant has failed to establish 
 
         a new injury which arose out of and in the course of his 
 
         employment occurred on December 5, 1985, be it traumatic, 
 
         cumulative or gradual.
 
         
 
              Claimant asserts the shoulder pain for which he sought 
 
         treatment with Dr. Fulton in November 1985 is the result of a 
 
         gradual injury caused by repeated use which manifested itself at 
 
         that time.  Neither the evidence nor claimant's own testimony 
 
         support this theory.  It is more probable than not that 
 
         claimantOs problems stem from the 1980 fall off the ladder than 
 
         from any other source.  During his testimony, claimant related 
 
         the pain he was feeling in his shoulder and hands to the 1980 
 
         accident.  Dr. Fulton relates the onset of pain for which 
 
         claimant sought treatment to the work accident when claimant fell 
 
         off the ladder onto the concrete floor.  Dr. Bashara related 10 
 
         percent of the 15 percent impairment in claimant's upper left 
 
         extremity to the 1980 accident and makes no mention of any 1985 
 
         accident or injury.  Likewise, Dr. Breedlove fails to relate any 
 
         of claimant's symptoms to use of his shoulders at work during 
 
         1985.  Clearly, claimant injured himself in 1980 and has been 
 
         compensated therefor in file number 686855.  Claimant cannot 
 
         assert a new injury merely because he continues to feel pain from 
 
         an old injury.  Since this pain has been continual, although 
 
         irregular, claimant also has not established an aggravation of 
 
         the injury.  Claimant has, therefore, failed to establish any new 
 
         injury arising out of and in the course of his employment.  
 
         Regardless of whether claimant asserts a traumatic, gradual or 
 
         cumulative injury, his petition must fail.
 
         
 
                                 FINDINGS OF FACT
 
         
 
              Wherefore, based on all the evidence presented, the 
 
         following facts are found:
 
         
 
              1.  In May 1980, claimant sustained an injury arising out of 
 
         and in the course of his employment, injuring his left shoulder.
 
         
 
              2.   Claimant continues to experience pain in the shoulder 
 
         and sought additional treatment therefor with Dr. Robb Fulton in 
 
         November 1985.
 
         
 
              3.  Dr. Fulton related the pain back to the incident wherein 
 
         claimant fell off the ladder.
 
         
 
              4.  Claimant was evaluated by Dr. Jerome Bashara and Dr. 
 
         Robert Breedlove, both of whom relate claimant's shoulder pain to 
 
         the fall from the ladder as well as multiple surgical procedures 
 
         performed on the upper left extremity.
 
         
 
              5.  Claimant relates his current pain to the 1980 fall.
 
         
 
              6.  Claimant incurred no new injury December 5, 1985.
 
         
 
         
 

 
         
 
         
 
         
 
         PEARSON V. IOWA CONCRETE PRODUCTS, INC.
 
         Page   6
 
         
 
                                CONCLUSIONS OF LAW
 
         
 
              Wherefore, based on the principles of law previously stated, 
 
         the following conclusion of law is made:
 
         
 
              Claimant has failed to sustain his burden of establishing 
 
         that he sustained an injury on December 5, 1985 which arose out 
 
         of and in the course of his employment.
 
         
 
         
 
                                      ORDER
 
         
 
              THEREFORE, IT IS ORDERED:
 
         
 
              Claimant take nothing from this proceeding.
 
         
 
              Costs of this action are assessed against defendants 
 
         pursuant to Division of Industrial Services Rule 343-4.33.
 
         
 
              Signed and filed this 26th day of February, 1988.
 
         
 
         
 
         
 
         
 
         
 
         
 
                                       DEBORAH A. DUBIK
 
                                       DEPUTY INDUSTRIAL COMMISSIONER
 
         
 
         Copies to:
 
         
 
         Mr. Barry Moranville
 
         Attorney at Law
 
         974 73rd Street, Suite 16
 
         Des Moines, Iowa 50312
 
         
 
         Mr. Marvin Duckworth
 
         Attorney at Law
 
         Terrace Center, Suite 111
 
         2700 Grand Avenue
 
         Des Moines, Iowa 50312
 
         
 
         
 
         
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                                          1100; 1402.30
 
                                                          Filed 2-26-88
 
                                                          Deborah A. Dubik
 
         
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         LEONARD PEARSON,
 
         
 
              Claimant,
 
                                                     File No. 814511
 
         VS.
 
         
 
         IOWA CONCRETE PRODUCTS INC.,            A R B I T R A T I 0 N
 
         
 
              Employer,                             D E C I S I 0 N
 
         
 
         and
 
         
 
         WAUSAU INSURANCE COMPANIES,
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
         
 
         1100; 1402.30
 
         
 
              Claimant fell from a ladder in 1980 and continued to 
 
         experience pain in his left shoulder.  Claimant was periodically 
 
         treated from 1980 to 1986 for that pain.  Claimant, as a result 
 
         of the 1980 fall, had multiple operations on his left upper 
 
         extremity.  Claimant asserted a new injury in December 1985.  Ail 
 
         medical evidence as well as claimant's own testimony related his 
 
         1985 pain to the 1980 injury.  Held claimant failed to establish 
 
         a new injury or an aggravation which arose out of and in the 
 
         course of his employment in December 1985.
 
 
 
         
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                  BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         BETSY GRAUSE,
 
         
 
              Claimant,                         File Nos.  814524,
 
                                                           785892
 
         vs.
 
                                             A R B I T R A T I O N
 
         WILSON FOODS,
 
                                                D E C I S I O N
 
         
 
              Employer,
 
              Self-Insured,
 
              Defendant.
 
         
 
         
 
         
 
                                   INTRODUCTION
 
         
 
              This is a proceeding in arbitration brought by Betsy Grause, 
 
         claimant against Wilson Foods, employer and self-insured 
 
         defendant for benefits as a result of an alleged fall injury that 
 
         occurred on January 4, 1985 (file no. 814524) and another alleged 
 
         repetitive injury which occurred on January 23, 1985 (file no. 
 
         785892), both of which allegedly injured claimant's right hand.  
 
         A hearing was held in Storm Lake, Iowa on September 3, 1987 and 
 
         the case was fully submitted at the close of the hearing.  The 
 
         record consists of the testimony of Betsy Grause (claimant), 
 
         David Van Roekel (kill floor foreman), Mary Kitterman (plant 
 
         nurse) and John Ketelson (union representative) and Joint 
 
         Exhibits 1 through 17 and A through F.  A letter brief was 
 
         submitted by claimant's attorney.  Defendant's attorney failed to 
 
         file a brief as ordered in the post hearing order.
 
         
 
                                PREHEARING MATTERS
 
         
 
              Claimant moved to delete all reference to the left hand in 
 
         her petition for the repetitive injury of January 23, 1985 (file 
 
         no. 785892).  This leaves the petition alleging only an injury to 
 
         the right hand.  Claimant further stated that she had 
 
         previously.received a full and complete settlement for any injury 
 
         to her left hand based on an injury date of January 19, 1985.  
 
         This settlement was agreed to on September 25, 1985 and was 
 
         approved by the industrial commissioner on October 22, 1985.  
 
         However, claimant still contended and maintained that she 
 
         sustained a repetitive injury to her right hand as alleged by 
 
         this petition.  Defendant had no objection to this motion but 
 
         rather concurred in it.  Therefore the motion was granted and it 
 
         was ruled that this petition would be considered only to allege a 
 
         repetitive injury to the right hand.  The settlement for the 
 
         injury to the left hand used file no. 785892 as a file number and 
 
         the new alleged injury of repetitive injury to the right hand 
 
         also uses the same claim number, file no. 785892.
 
         
 
                                STIPULATIONS
 
         
 
              The parties stipulated to the following matters:
 
         
 

 
         
 
         
 
         
 
         GRAUSE V. WILSON FOODS
 
         PAGE   2
 
         
 
              That an employer-employee relationship existed between 
 
         claimant and employer at the time of the alleged fall injury on 
 
         January 4, 1985 and again at the time of the alleged repetitive 
 
         right hand injury on January 23, 1985;
 
         
 
              That the type of permanent disability, if the injury is 
 
         found to be a cause of permanent disability, is scheduled member 
 
         disability to the right arm;
 
         
 
              That the rate of compensation, in the event of an award, is 
 
         $193.29 per week;
 
         
 
              That the provider of medical services and supplies would 
 
         testify that the fees charged were fair and reasonable and 
 
         defendants are not offering contrary evidence.
 
         
 
              That defendant makes no claim for credits for benefits paid 
 
         prior to hearing either under an employee nonoccupational group 
 
         health plan or as workers' compensation benefits on the right 
 
         hand; and
 
         
 
              That, there are no bifurcated claims.
 
         
 
                                      ISSUES
 
         
 
              The parties submitted the following issues for determination 
 
         at the time of the hearing:
 
         
 
              Whether claimant sustained an injury on January 4, 1985 and 
 
         again on January 23, 1985 to her right hand which arose out of 
 
         and in the course of employment with employer;
 
         
 
              Whether either alleged injury is the cause of either 
 
         temporary or permanent disability;
 
         
 
              Whether claimant is entitled to either temporary or 
 
         permanent disability benefits from either one or both of these 
 
         alleged injuries and if so the nature and extent of entitlement;
 
         
 
              Whether claimant is entitled to medical benefits for either 
 
         of these injuries;
 
         
 
              Whether claimant is entitled to an Iowa Code section 85.39 
 
         independent medical examination, and if so, the proper amount for 
 
         which defendant is liable; and
 
         
 
              Whether defendant has proven the affirmative defense of 
 
         claimant's failure to give notice as required by Iowa Code 
 
         section 85.23.
 
         
 
                             SUMMARY OF THE EVIDENCE
 
         
 
              All of the evidence was examined and considered.  The 
 
         following is a summary of the pertinent evidence:
 
         
 
              Claimant testified that she started to work for employer in 
 
         November of 1972.  She worked for employer for approximately 12 
 
         years until January of 1988.  She had no trouble with her hands 
 
         prior to her employment with employer.  She took a preemployment 
 
         physical examination before starting to work.  She worked in the 
 

 
         
 
         
 
         
 
         GRAUSE V. WILSON FOODS
 
         PAGE   3
 
         
 
         smoke house for approximately 4 1/2 years packing and preparing 
 
         meat to be shipped out.  She said that this was heavy work.  
 
         After that, she worked on the kill floor for 7 1/2 years.  She 
 
         stated that she first had trouble with her wrists in 1982.  She 
 
         was trimming hogs heads with a wizard knife at that time.  She 
 
         said that her right hand is her dominant hand.  The trouble 
 
         started in her left hand, which holds the heads, and not in the 
 
         right hand, which holds the knife.  From time to time she 
 
         reported hand problems to one of the three nurses (1) Mary 
 
         Kitterman; (2) Gerry Fletcher or a third nurse whose name she 
 
         could not recall.
 
         
 
              Claimant testified that in November of 1982, she had serious 
 
         trouble with both her left and right hand.  She further testified 
 
         that she had trouble with both hands again in November of 1984.  
 
         She testified that she reported this to Keith 0. Garner, M.D., at 
 
         the plant in November of 1984.  Dr. Garner is a company doctor 
 
         who has an office at the plant and comes to the plant to see 
 
         employees.  Claimant further testified that her left hand was 
 
         worse than her right hand, that she had to treat it first and did 
 
         not want both hands disabled at the same time.
 
         
 
              John Connolly, M.D., had previously performed surgery on her 
 
         left hand in early 1983.  That earlier surgery enabled lier to 
 
         return to work and perform her job.  An injury date of January 
 
         23, 1985, was chosen for this alleged repetitive right hand 
 
         injury apparently because that was claimant's last day of work, 
 
         except for a short period of a few days later in March of 1985.
 
         
 
              Claimant testified that on Friday night, January 4, 1985, 
 
         when she was the last person in the department and was working 
 
         alone cleaning up equipment, she slipped on some fat and injured 
 
         her right wrist when she caught herself when she fell.  There 
 
         were no witnesses to this incident.  Claimant stated that as she 
 
         was coming down the stairs she met her foreman, Dave Van Roekel, 
 
         as he came out of the locker room.  She testified that she 
 
         reported this fall to him.  He told her to report it to the 
 
         nurse.  Claimant said that she reported it to the nurse on Monday 
 
         morning, January 7, 1985.  But she could not recall which of the 
 
         three nurses that she reported it to.  She thought it might be 
 
         Gerry Fletcher but she could not be sure.  Claimant testified 
 
         that the nurse filled out a report and that she signed it.
 
         
 
              Claimant further testified that Van Roekel asked her on 
 
         Tuesday, January 8, 1985, if she had reported the fall injury.  
 
         Claimant replied that she had reported it on Monday.  On this 
 
         occasion she discussed her injury in the houseman shack with 
 
         other employees.  Van Roekel kidded her and said old ladies ought 
 
         to be more careful.
 
         
 
              Claimant testified that she did not discuss this injury with 
 
         John Ketelson, the union representative, until after she learned 
 
         that an accident report could not be found.
 
         
 
              Claimant testified that she was off work from January 24, 
 
         1985 to March 3, 1985.  She worked again from March 4, 1985 to 
 
         March 12, 1985.  The latter date was the last day that she worked 
 
         for employer.
 
         
 
              Claimant testified that surgery was performed on her left 
 

 
         
 
         
 
         
 
         GRAUSE V. WILSON FOODS
 
         PAGE   4
 
         
 
         hand for the second time in April of 1985 by Thomas Ferlic, M.D., 
 
         an orthopedic surgeon.  Claimant said that she never returned to 
 
         work after the second surgery.
 
         
 
              Claimant testified that she settled a claim for a repetitive 
 
         injury to her left hand.  This injury occurred on January 19, 
 
         1985.  The settlement agreement was dated September 25, 1985.  
 
         Claimant admitted that from January 23, 1985 to September 25, 
 
         1985, she did not work for employer at the plant, except for the 
 
         short period from March 4, 1985 to March 12, 1985.  Claimant 
 
         conceded that she did not mention a claim to the right hand 
 
         during the period from January of 1985 to September of 1985.  She 
 
         did not mention a claim for injury to the right hand at the time 
 
         she settled the claim to her left hand on September 25, 1985.  
 
         She explained that she did not think it was necessary because she 
 
         had reported the fall on Monday, January 1, 1985 to the nurse and 
 
         the company already had a record of it.  Claimant agreed that she 
 
         next mentioned the right hand to Dr. Garner on September 18, 
 
         1985.  She also granted that she filed her original notice and 
 
         petition on February 18, 1986 and she first asked Dr. Garner to 
 
         be considered for disability on May 9, 1986.
 
         
 
              Claimant testified that she took vocational rehabilitation 
 
         tests at the Mental Health Center in Cherokee.  They recommended 
 
         that she become a librarian.  Claimant said she started school at 
 
         Iowa Lakes Community College in late February 1986, but she 
 
         discontinued her studies due to the health of her son.
 
         
 
              Claimant said her right hand aches; is numb; has no grip and 
 
         it wakes her up at night.  She cannot use it as well as she would 
 
         like.  She cannot do dishes, clean windows or do anything that 
 
         requires repetitive use with her hands.
 
         
 
              Claimant was examined by Horst G. Blume, M.D., for an 
 
         independent medical examination.  She said that on her first 
 
         visit he took a history, examined her for an hour and took a 
 
         thermogram.  On the second visit, he gave her the results of the 
 
         thermogram and sent her for an EMG in South Sioux City.
 
         
 
              Claimant was examined by Scott Neff, D.O., at the request of 
 
         employer.  She said he spent four minutes with her and his 
 
         therapist spent ten minutes with her.  She was there a total of 
 
         15 minutes.  She testified that by comparison Dr. Blume spent 
 
         three hours with her the first time and two and one-half hours 
 
         with her the second time.
 
         
 
              Claimant denied that she suffered any new injury to her 
 
         right hand subsequent to her employment with employer.
 
         
 
              Van Roekel testified that in January of 1985, he was the 
 
         kill floor foreman.  He said that he was in the court room and 
 
         heard claimant's testimony.  He had no recollection of this 
 
         conversation with her on either Friday, January 4, 1985 or on 
 
         Tuesday, January 8, 1985.  He said it is possible that it 
 
         happened, but if it did, that he had no recollection of it.
 
         
 
              Mary Kitterman, R.N., testified that she is a plant nurse 
 
         and also the workers' compensation administrator.  She testified 
 
         that she was in court and heard claimant's testimony.  Kitterman 
 
         testified that she never personally received a report of injury 
 

 
         
 
         
 
         
 
         GRAUSE V. WILSON FOODS
 
         PAGE   5
 
         
 
         for an injury date of January 4, 1985 from claimant.  Kitterman 
 
         testified that she first received a report of a fall that 
 
         occurred on January 4, 1985, when she received a note from 
 
         claimant which was dated September 19, 1985 (Exhibit A).  
 
         Kitterman said she researched the company records and could not 
 
         find a report made out by anyone in the nurses office for an 
 
         injury on January 4, 1985.  Kitterman testified that she was 
 
         involved in settlement of the claim on the left hand injury for 
 
         the injury date of January 19, 1985.  This settlement was dated 
 
         September 25, 1985.  Kitterman did not recall claimant making any 
 
         mention of a claim on her right hand at that time (Ex. C).  
 
         Kitterman testified that she knows of no instance where an 
 
         accident report has ever been lost since she started to work for 
 
         employer in October of 1983.  Furthermore, she added that when an 
 
         accident is reported this information is also added to the 
 
         employee's health card.  Kitterman completed an accident report 
 
         on September 19, 1985 which reads as follows:
 
         
 
              States she fell on 1-4-85 - claims she reported fall to 
 
              Dave Van Roekel & Maybe one of the nurses.  9-18-85 saw 
 
              Doctor Garner & wanted R hand evaluated for carpal 
 
              tunnel. - had been off work since Jan. 24, 1985 worked 
 
              1 week March of 1985.  Incident not reported to nurses 
 
              office - no record anyway.
 
              written by M. Kitterman.
 
         (Ex. F)
 
         
 
              John Ketelson, union representative, testified that he 
 
         handles workers' compensation for the union.  He testified that 
 
         the company has lost accident reports.  In September of 1984, he 
 
         smashed his thumb.  He reported it to the company and a form was 
 
         filed.  When he returned to work the following Monday, the report 
 
         was gone.  He testified that he also knew of two other 
 
         instances--one was in 1982 or 1983 and the other was in 1983 or 
 
         1984.  He did not have the names of those individuals with him.
 
         
 
              The records of Dr. Garner show that he saw claimant 
 
         beginning on April 9, 1984 for her left wrist.  She was then seen 
 
         again for her left wrist on January 21, 1985.  After that, she 
 
         was seen on January 23, 1985, January 24, 1985, January 28, 1985, 
 
         February 8, 1985, February 13, 1985, February 20, 1985, March 13, 
 
         1985, April 10, 1985, April 17, 1985, April 19, 1985, April 22, 
 
         1985, April 26, 1985, May 10, 1985, June 7, 1985, June 21, 1985, 
 
         July 5, 1985, a total of 17 times after the alleged date of the 
 
         fall on January 4, 1985.  No mention is made of a fall injury 
 
         that occurred on January 4, 1985 or at any other time.  No 
 
         mention is may of any right upper extremity complaints or any 
 
         complaints to the right hand or wrist.  No mention is made of any 
 
         bilateral problems on any one of these dates (Ex. 1).
 
         
 
              The first mention of any right upper extremity problem 
 
         occurred on September 18, 1985.  At that time, Dr. Garner 
 
         recorded Oseen at WilsonOs: right hand numb." (Ex. 1).
 
         
 
              John Connolly, M.D., reported on February 28, 1985 that he 
 
         saw claimant on that day for left hand complaints.  No mention is 
 
         made of claimant's right hand, arm or any bilateral problems (Ex. 
 
         8).
 
         
 
              The records of Thomas T. Ferlic, M.D., an orthopedic 
 

 
         
 
         
 
         
 
         GRAUSE V. WILSON FOODS
 
         PAGE   6
 
         
 
         surgeon, show that he examined claimant extensively on March 18, 
 
         1985, for left hand complaints that began in 1983.  He gives a 
 
         detailed history and examination concerning her left hand.  Dr. 
 
         Ferlic diagnosed carpal tunnel syndrome.  No mention is made of 
 
         the right hand or wrist and no mention is made of any bilateral 
 
         problems (Ex. 7).  Dr. Ferlic performed the second carpal tunnel 
 
         release surgery on the left hand and wrist on April 15, 1985 (Ex. 
 
         6).  He reported to Dr. Garner on April 16, 1985 (Ex. 5). Dr. 
 
         Ferlic reexamined claimant on April 25, 1985 and again on June 5, 
 
         1985 (Ex. 4).  He rated the left wrist on July 12, 1985 (Ex. 3).  
 
         He corrected and explained his rating on the left hand and wrist 
 
         on August 13, 1985 (Ex. 2).  The right hand or wrist is not 
 
         mentioned in any of these reports nor is there any mention of any 
 
         bilateral problems.
 
         
 
              An x-ray was made of the left hand only on January 23, 1985 
 
         for Dr. Garner at the Sioux City Radiological Group (Ex. 9).
 
         
 
              Claimant saw Dr. Blume on August 4, 1986 and again on August 
 
         12, 1986 with complaints of pain in both hands.  On November 25, 
 
         1986, Dr. Blume reports an extensive left hand history and also 
 
         states that claimant is suffering from carpal tunnel syndrome on 
 
         the right side.  He rated the right hand with an eight percent 
 
         permanent functional impairment rating (Exs. 11 & 12).  Dr. Blume 
 
         made extensive notations of his office visit with claimant on 
 
         August 41 1986 (Ex. 14).  In none of these notes or reports does 
 
         Dr. Blume say what caused claimant's problem on either the right 
 
         or left side.  He makes no mention of the cause or etiology of 
 
         her hand and wrist problems based upon his professional medical 
 
         opinion (Ex. 11, 12, & 14).  He charged $575.00 for his tests and 
 
         his examinations that took place on August 4, 1986 and August 12, 
 
         1986 (Ex. 15).
 
         
 
              Dr. Neff examined claimant on May 7, 1987.  Dr. Neff wrote 
 
         detailed reports both on May 7, 1987 and again on May 27, 1987 
 
         (Ex. 10 & B).  Dr. Neff said that based on  range of motion, 
 
         claimant did not incur any percentage of permanent functional 
 
         impairment.  Based upon her EMG report, he concluded that 
 
         claimant sustained a 14 percent permanent functional impairment 
 
         of the right hand.  In neither report did he say what caused her 
 
         impairment.  He did not give a professional. medical opinion on 
 
         the cause or etiology of her impairment.  In fact, claimant's 
 
         employment is not even mentioned in either of these two letters.  
 
         Both letters are silent on the etiology of claimant's bilateral 
 
         wrist and hand complaints at the time of his examination.
 
         
 
                           APPLICABLE LAW AND ANALYSIS
 
         
 
              An employee is entitled to compensation for any and all 
 
         personal injuries which arise out of and in the course of the 
 
         employment.  Section 85.3(l).
 
         
 
              Claimant has the burden of proving by a preponderance of the 
 
         evidence that she received an injury on January 4, 1985 and 
 
         January 23, 1985 which arose out of and in the course of her 
 
         employment.  McDowell v. Town of Clarksville, 241 N.W.2d 904 
 
         (Iowa 1976); Musselman v. Central Telephone Co., 261 Iowa 352, 
 
         154 N.W.2d 128 (1967).
 
         
 
              The injury must both arise out of and be in the course of 
 

 
         
 
         
 
         
 
         GRAUSE V. WILSON FOODS
 
         PAGE   7
 
         
 
         the employment.  Crowe v. DeSoto Consol. Sch. Dist., 246 Iowa 
 
         402, 68 N.W.2d 63 (1955) and cases cited at pp. 405-406 of the 
 
         Iowa Report.  See also Sister Mary Benedict v. St. Mary's Corp., 
 
         255 Iowa 847, 124 N.W.2d 548 (1963) and Hansen v. State of Iowa, 
 
         249 Iowa 1147, 91 N.W.2d 555 (1958).
 
         
 
              The claimant has the burden of proving by a preponderance of 
 
         the evidence that the injuries of January 4, 1985 and January 23, 
 
         1985 are 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).
 
         
 
              However, expert medical evidence must be considered with all 
 
         other evidence introduced bearing on the causal connection.  
 
         Burt, 247 Iowa 691, 73 N.W.2d 732.  The opinion of experts need 
 
         not be couched in definite, positive or unequivocal language.  
 
         Sondag v. Ferris Hardware, 220 N.W.2d 903 (Iowa 1974).  However, 
 
         the expert opinion may be accepted or rejected, in whole or in 
 
         part, by the trier of fact.  Id. at 907.  Further, the weight to 
 
         be given to such an opinion is for the finder of fact, and that 
 
         may be affected by the completeness of the premise given the 
 
         expert and other surrounding circumstances.  Bodish, 257 Iowa 
 
         516, 133 N.W.2d 867.  See also Musselman, 261 Iowa 352, 154 
 
         N.W.2d 128.
 

 
         
 
         
 
         
 
         GRAUSE V. WILSON FOODS
 
         PAGE   8
 
         
 
         
 
              Claimant did not sustain the burden of proof by a 
 
         preponderance of the evidence that she sustained an injury on 
 
         either January 4, 1985 or January 23, 1985, that arose out of and 
 
         in the course of employment with employer.  Claimant testified 
 
         that she fell on January 4, 1985 and injured her right hand.  
 
         Claimant also testified that she had bilateral hand problems for 
 
         several years.  Claimant's testimonial assertions are not 
 
         supported by the medical evidence.  Claimant was seeing Dr. 
 
         Garner regularly from January 21, 1985 to September 18, 1985.  
 
         She saw him a total of 17 times.  Never once is a fall injury 
 
         recorded.  Never once is a right hand or right wrist complaint 
 
         recorded.  Never once is there any mention of bilateral hand or 
 
         wrist problems.  Claimant first mentioned her right hand was numb 
 
         on September 18, 1985 approximately eight months after the 
 
         alleged injury dates of January 4, 1985 and January 23, 1985 (Ex. 
 
         1).
 
         
 
              Claimant saw Dr. Connolly on February 18, 1985.  A fall is 
 
         not recorded.  Right hand complaints or bilateral complaints were 
 
         not mentioned in his report (Ex. 8).
 
         
 
              Claimant saw Dr. Ferlic on March 18, 1985.  He performed the 
 
         second carpal tunnel release on her left hand on April 15, 1985.  
 
         Dr. Ferlic saw claimant again on April 25, 1985 and June 5, 1985.  
 
         A fall is not recorded.  There is no record of right hand, right 
 
         wrist or bilateral complaints in any of Dr. Ferlic's notes or 
 
         reports (Exs. 4 to 7).
 
         
 
              Van Roekel had no recollection that claimant reported a fall 
 
         injury to him.  Kitterman denied that the fall injury was 
 
         reported to her.  Kitterman also had no record that either a fall 
 
         injury or a repetitive injury to the right hand was ever reported 
 
         to the nurse's office.
 
         
 
              There were no depositions from Dr. Garner, Dr. Ferlic or Dr. 
 
         Connolly.
 
         
 
              The first evidence, other than claimant's own testimony, 
 
         that claimant sustained a fall injury, is the note from claimant 
 
         to Kitterman dated September 19, 1985, just shortly before 
 
         claimant signed the settlement agreement for her left hand injury 
 
         on September 25, 1985.
 
         
 
              Claimant's testimony is contradicted in effect by a lack of 
 
         documentation in the doctor's medical records and employer 
 
         records, in particular, the medical records when claimant had 17 
 
         opportunities to mention her right hand to Dr. Garner, one 
 
         opportunity to mention it to Dr. Connolly and four opportunities 
 
         to mention it to Dr. Ferlic.  Claimant also had from January to 
 
         September of 1985 to try to make a settlement of the right hand 
 
         injury while the settlement on the left hand injury was being 
 
         processed, but claimant made no mention of the right hand or a 
 
         possible settlement on it until September of 1985, shortly before 
 
         the left hand settlement.
 
         
 
              Based upon the foregoing evidence claimant did not sustain 
 
         the burden of proof by a preponderance of the evidence that she 
 
         sustained a fall injury to her right hand on January 4, 1985 or a 
 
         repetitive injury to her right hand on January 23, 1985.  In 
 

 
         
 
         
 
         
 
         GRAUSE V. WILSON FOODS
 
         PAGE   9
 
         
 
         addition, claimant failed to prove that either her left or right 
 
         hand carpal tunnel syndrome was caused by her employment (Exs. 
 
         10, 11, 12, 14, & B).
 
         
 
              Failure to give notice is an affirmative defense and the 
 
         burden of proof is upon the employer.  Mefferd v. Ed Miller & 
 
         Sons, Inc., Thirty-third Biennial Report of the Industrial 
 
         Commissioner 191, 192 (Appeal Decision 1977).  Defendant did 
 
         sustain the burden of proof by a preponderance of the evidence 
 
         that claimant failed to give proper notice as required by Iowa 
 
         Code section 85.23.  The failure of claimant to document a right 
 
         hand injury or even bilateral complaints after 22 appointments 
 
         with doctors and an eight month period of time with employer, 
 
         coupled with the testimony of Van Roekel and Kitterman, as well 
 
         as Kitterman's office records (Exs. A & F), are sufficient to 
 
         outweigh claimant's testimony that she reported the fall injury 
 
         to Van Roekel and the nurse's office and reported the repetitive 
 
         injury to Dr. Garner.
 
         
 
              Since claimant has not established liability, then claimant 
 
         is not entitled to an Iowa Code section 85 39 examination.  
 
         McSpadden v. Big Ben Coal Co., 288 N.W.2d 181 (Iowa 1980). 
 
         Bjorkland v. Pittsburgh-Des Moines Steel Co., Thirty-third 
 
         Biennial Report of the Industrial Commissioner 101 (Appeal Order 
 
         1977).  Assuming that claimant had proven entitlement to an Iowa 
 
         Code section 85.39 examination, claimant nevertheless, failed to 
 
         justify the reasonableness in having two appointments in order to 
 
         complete the examination.  It would appear that all of the work 
 
         done by Dr. Blume could have been done by one office visit and 
 
         that it was not necessary to have two office visits.
 
         
 
                                 FINDINGS OF FACT
 
         
 
              Wherefore, based upon the evidence presented the following 
 
         findings of fact are made:
 
         
 
              That claimant testified that she reported a repetitive right 
 
         hand injury to Dr. Garner in November of 1984; however, Dr. 
 
         Garner does not record any office visit with claimant in November 
 
         of 1984;
 
         
 
              That claimant testified that she sustained a fall injury to 
 
         her right hand on January 4, 1984; however, Dr. Garner saw 
 
         claimant 17 times after January 4, 1985 and 16 tunes on and after 
 
         January 23, 1985 and his office notes do not record either a fall 
 
         injury or any injury to the right hand or any bilateral injury.
 
         
 
              Claimant testified that she reported the fall injury of 
 
         January 4, 1985 to her foreman; that she mentioned the injury to 
 
         him again on January 8, 1985; however, Van Roekel testified that 
 
         he had no recollection of either of these conversations.
 
         
 
              Claimant testified that she reported the injury of January 
 
         4, 1985 to a nurse; however, Kitterman reported that claimant did 
 
         not report the injury to her.  Kitterman ,said she had searched 
 
         the nurse's office records and had found no report of a fall 
 
         injury of January 4, 1985.  Kitterman further testified that the 
 
         nurse's office had no knowledge of a repetitive injury to the 
 
         right hand for January 23, 1985;
 
         
 

 
         
 
         
 
         
 
         GRAUSE V. WILSON FOODS
 
         PAGE  10
 
         
 
              That claimant saw Dr. Connolly one time and Dr. Ferlic four 
 
         times for left hand carpal tunnel syndrome but neither doctor 
 
         made any notation of a fall or of any right hand problems or any 
 
         bilateral complaints of carpal tunnel syndrome; and
 
         
 
              That Dr. Blume and Dr. Neff both found permanent functional 
 
         impairment but neither doctor made any causal connection between 
 
         the impairment and claimantOs employment with employer.
 
         
 
                                CONCLUSIONS OF LAW
 
         
 
              WHEREFORE, based upon the evidence presented and the 
 
         foregoing principles of law, the following conclusions of law are 
 
         made:
 
         
 
              That claimant did not sustain the burden of proof by a 
 
         preponderance of the evidence that she sustained an injury 
 
         arising out of and in the course of her employment on either 
 
         January 4, 1985 or January 23, 1985;
 
         
 
              That claimant did not sustain the burden of proof by a 
 
         preponderance of the evidence that either alleged injury to her 
 
         right hand was the cause of any disability;
 
         
 
              That claimant is not entitled to either temporary or 
 
         permanent disability benefits as a result of the alleged injuries 
 
         on January 4, 1985 and January 23, 1985;
 
         
 
              That claimant is not entitled to medical benefits for either 
 
         of these alleged injuries;
 
         
 
              That claimant is not entitled to an Iowa Code section 85.39 
 
         examination for either of these alleged injuries, and
 
         
 
              That defendant did sustain the burden of proof by a 
 
         preponderance of the evidence that claimant did not give notice 
 
         as required by Iowa Code section 85.23.
 
         
 
                                      ORDER
 
         
 
              THEREFORE, IT IS ORDERED:
 
         
 
              That claimant take nothing from this proceeding;
 
         
 
              That the costs of this action are charged to claimant 
 
         pursuant to Division of Industrial Services Rule 343-4.33; and
 
         
 
              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 29th day of July, 1988.
 
         
 
         
 
         
 
         
 
         
 
                                      WALTER R. McMANUS, JR.
 
                                      DEPUTY INDUSTRIAL COMMISSIONER
 
         
 

 
         
 
         
 
         
 
         GRAUSE V. WILSON FOODS
 
         PAGE  11
 
         
 
         
 
         Copies to:
 
         
 
         Mr. Harry Smith
 
         Attorney at Law
 
         P.O. Box 1194
 
         Sioux City, Iowa  51102
 
         
 
         Mr. David Sayre
 
         Attorney at Law
 
         223 Pine St.
 
         P.O. Box 535
 
         Cherokee, Iowa 51012
 
 
            
 
 
 
 
 
 
 
                                      1106, 1108.50, 1402.20, 1402.30
 
                                      1402.40, 1402.50, 1402.60, 1801,
 
                                      1802, 1803, 2502
 
                                      Filed July 29, 1988
 
                                      WALTER R. McMANUS, JR.
 
         
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         BETSY GRAUSE,
 
         
 
              Claimant,                         File Nos. 814524,
 
                                                          785892,
 
         vs.
 
                                             A R B I T R A T I 0 N
 
         WILSON FOODS,
 
                                               D E C I S I 0 N
 
              Employer,
 
              Self-Insured,
 
              Defendant.
 
         
 
         
 
         
 
         1106, 1108.50, 1402.20, 1402.30, 1402.40. 1402.50, 1402.60, 1801, 
 
         1802, 1803, 2502.
 
         
 
              Claimant failed to sustain the burden of proof by a 
 
         preponderance of the evidence she sustained an injury on either 
 
         date or that her disability was caused by her employment and 
 
         therefore she has awarded no weekly benefits, medical benefits or 
 
         an independent medical examination.
 
         
 
         2401, 2801, 2802, 2803
 
         
 
              Employer did sustain the burden of proof by a preponderance 
 
         that claimant failed to give notice of either alleged injury.
 
         
 
         2907
 
         
 
              Cost charged to claimant.
 
         
 
 
 
 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         HENRY J. SCHAAPVELD,
 
         
 
              Claimant,                                File No. 814525
 
         
 
         vs.                                             A P P E A L
 
         
 
         UNIVERSITY OF IOWA,                           D E C I S I O N
 
         
 
              Employer,
 
                                                          F I L E D
 
         and
 
                                                         AUG 15 1989
 
         STATE OF IOWA,
 
                                                     INDUSTRIAL SERVICES
 
              Insurance Carrier,
 
              Defendants.
 
         
 
                                                           
 
                              STATEMENT OF THE CASE
 
         
 
              Defendants appeal from an arbitration decision granting 
 
         claimant medical benefits as a result of an alleged injury on 
 
         June 5, 1985.
 
         
 
              The record on appeal consists of the transcript of the 
 
         arbitration hearing and claimant's exhibits 1 and 2.  Both 
 
         parties filed briefs on appeal.
 
         
 
                                      ISSUES
 
         
 
              Defendants state the following issues on appeal:
 
         
 
              A.  Did the deputy commit error when he found that Claimant 
 
              had proven a causal connection between his alleged injury 
 
              and subsequent hospitalization and a work-related event 
 
              where Claimant did not present medical evidence establishing 
 
              the causal relation?
 
         
 
              B.  Did the deputy err in awarding Claimant amounts for 
 
              medical service where the Claimant failed to present any 
 
              evidence regarding the amounts that were charged?
 
         
 
                              REVIEW OF THE EVIDENCE
 
         
 
              The arbitration decision adequately and accurately reflects 
 
         the pertinent evidence and it will not be set forth herein.
 
         
 
                                  APPLICABLE LAW
 
         
 
              The citations of law in the arbitration decision are 
 
         appropriate to the issues and the evidence.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
                                     ANALYSIS
 
         
 
              The analysis of the evidence in conjunction with the law is 
 
         adopted.
 
         
 
                                 FINDINGS OF FACT
 
         
 
              1.  Claimant started to work for employer on July 27, 1983.
 
         
 
              2.  Claimant was employed by employer on June 5, 1985, as a 
 
         custodian at the Medical Research Center.
 
         
 
              3.  One of claimant's supervisors surreptitiously kept 
 
         turning off the lights in the areas where claimant was working at 
 
         night.
 
         
 
              4.  Late at night, when claimant was in a room with only one 
 
         door, the supervisor mysteriously appeared on the other side of 
 
         the opaque window material of the door with his hand upraised as 
 
         if to stab someone.
 
         
 
              5.  Claimant had a preexisting angina heart condition and 
 
         had suffered a heart attack in 1976.
 
              
 
              6.   Within seconds of this frightening incident, claimant 
 
         developed chest pain, pain down the left arm, shortness of 
 
         breath, rapid breathing and inability to get his breath.  Two 
 
         nitroglycerin pills provided temporary relief, but claimant 
 
         continued to have pain.
 
         
 
              7.  Claimant sustained an injury arising out of and in the 
 
         course of his employment from the shock and fear caused by this 
 
         incident.
 
         
 
              8.  Claimant's supervisor, Robinson, and possible other 
 
         employer representatives sent claimant to the University of Iowa 
 
         Hospital adjacent to the Medical Research Center and refused 
 
         claimant's request to go to the Veterans Administration Hospital.
 
         
 
              9.  This injury was the cause of claimant's emergency 
 
         hospitalization for these life threatening symptoms.
 
         
 
              10.  Claimant was hospitalized on June 5, 6, & 7, 1985.
 
              
 
              11.  Claimant incurred hospital and doctor expenses at the 
 
         University of Iowa Hospitals and Clinics for his care and 
 
         treatment there.
 
         
 
              12.  Defendant employer and the hospital are one and the 
 
         same person.
 
              
 
              13.  Defendants have known at all times and know now how 
 
         much the charges for hospital and doctor expenses amount to 
 
         because defendants provided these services and prepared the 
 
         statement of charges for these services.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
              
 
              14.  Defendant employer chose the University of Iowa 
 
         Hospitals and Clinics as the provider of medical services and 
 
         denied claimant his choice of hospital and doctors.
 
              
 
              15.  The original notice and petition alleges that the 
 
         hospital expenses are $3,495.60 and the doctors' charges are 
 
         $105.
 
              
 
              16.  These services were ordered by employer's supervisor 
 
         and its representatives rather than by claimant or his 
 
         representatives.
 
              
 
              17.  Claimant did not initiate or participate in horseplay.
 
              
 
              18.  There is no evidence that Supervisor Stuart menaced and 
 
         victimized claimant for reasons personal to such employee.
 
              
 
              19.  There is no evidence concerning the supervisor's 
 
         motivation and that his behaviour was totally unexplained.
 
              
 
                                CONCLUSIONS OF LAW
 
                                        
 
              Claimant did sustain the burden of proof by a preponderance 
 
         of the evidence that he sustained an injury on June 5, 1985, when 
 
         he experienced chest pain, pain down his left arm and breathing 
 
         problems after being menaced and frightened by his supervisor.
 
              
 
              The injury was the cause of claimant's immediate emergency 
 
         hospitalization at the University of Iowa Hospitals and Clinics.
 
              
 
              Claimant is entitled to have these medical expenses for the 
 
         hospital and the doctors paid for by defendant employer and 
 
         defendants are ordered to hold claimant harmless from any further 
 
         or future prosecution for payment of these charges.
 
              
 
              Claimant did not initiate or participate in horseplay, but 
 
         rather was the victim of his supervisor's unexplained unusual 
 
         behavior.
 
              
 
              Defendants did not sustain the burden of proof by a 
 
         preponderance of the evidence that the injury was the result of a 
 
         willful act of a third party directed against the employee for 
 
         reasons personal to such employee.
 
         
 
              WHEREFORE, the decision of the deputy is affirmed.
 
         
 
                                      ORDER
 
         
 
              THEREFORE, it is ordered:
 
         
 
              That defendants pay to claimant or the provider of services 
 
         the hospital and doctor expenses for claimant's care at the 
 
         University of Iowa Hospitals and clinics on June 5, 6 & 7, 1985.
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
              That defendants hold claimant harmless from any further or 
 
         future prosecution for these medical expenses.
 
         
 
              That the costs of this action are charged to defendants 
 
         pursuant to Division of Industrial Services Rule 343-4.33.
 
         
 
              That defendants file claim activity reports as requested by 
 
         this agency pursuant to Division of Industrial Services
 
         Rule  343-3.1.
 
         
 
              Signed and filed this 15th day of August, 1989.
 
         
 
         
 
         
 
         
 
         
 
         
 
                                               DAVID E. LINQUIST
 
                                            INDUSTRIAL COMMISSIONER
 
         
 
         Copies To:
 
         
 
         Mr. Charles Lavorato
 
         Assistant Attorney General
 
         Tort Claims Division
 
         Hoover State Office Bldg.
 
         Des Moines, Iowa  50319
 
         
 
         Mr. James R. Keele
 
         Attorney at Law
 
         104 E. 3rd Street
 
         P.O. Box 156
 
         West Liberty, Iowa  52776
 
         
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
 
                                            
 
 
 
 
 
 
 
 
 
 
 
                                            1108.10,1402.30,1402.60,2202, 
 
                                            1105,1603,2501,2505,
 
                                            Filed August 15, 1989
 
                                            DAVID E. LINQUIST
 
         
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         HENRY J. SCHAAPVELD,
 
         
 
              Claimant,
 
         
 
         vs.
 
                                                      File No. 814525 
 
         UNIVERSITY OF IOWA,
 
         
 
              Employer,                                  A P P E A L
 
         
 
         and
 
                                                      D E C I S I 0 N
 
         STATE OF IOWA,
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
         
 
         1108.10, 1402.30, 1402.60, 2202
 
         
 
              Claimant sustained the burden of proof by a preponderance of 
 
         the evidence that he sustained an injury arising out of and in 
 
         the course of his employment when he experienced chest pain, pain 
 
         down his arm and breathing problems after being menaced and 
 
         frightened by his supervisor at work.
 
         
 
              Claimant was not required to prove causation between the 
 
         injury and his hospitalization by medical evidence because the 
 
         causation was so obvious from the facts themselves.
 
         
 
         1105
 
         
 
              Claimant did not initiate or participate in horseplay; but 
 
         was rather the innocent victim of his supervisor's peculiar 
 
         unexplained behavior (horseplay).
 
         
 
         1603
 
         
 
              Defendants did not prove willful act of a third party 
 
         directed against the employee for reasons personal to such 
 
         employee.
 
         
 
         2501, 2505
 
         
 
              Claimant was entitled to payment of his hospital bill and 
 
         doctor charges which defendant directed and ordered.  Claimant 
 
         did not have to prove the amount of his medical expenses when 
 
         claimant was treated by defendant's own hospital and doctors.  
 
         The medical charges originated and were generated by defendants 
 
         themselves and therefore, were available to them at all times.  
 
         Defendants were ordered to pay or otherwise internally dispose of 
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         the medical expenses and to hold claimant harmless from future or 
 
         further prosecution.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                    BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         VIOLET GOLLIDAY,
 
         
 
              Claimant,                      File  Nos.  814527
 
                                                         814528
 
         vs.                                             814529
 
                                                         826932
 
         YOUNKERS, INC.
 
         
 
              Employer,                    A R B I T R A T I O N
 
         
 
         and                                  D E C I S I O N
 
         
 
         AETNA  CASUALTY & SURETY COMPANY,
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
         
 
                              STATEMENT OF THE CASE
 
         
 
              This is a proceeding in arbitration brought by Violet 
 
         Golliday, claimant, against Younkers, Inc., employer, and Aetna 
 
         Casualty & Surety Company, insurance carrier, to recover benefits 
 
         under the Iowa Workers' Compensation Act as a result of injuries 
 
         sustained on October 15, 1977, August 15, 1980 and August 14, 
 
         1981, and an alleged injury of March 14, 1985.  This matter came 
 
         on before the undersigned deputy industrial commissioner 
 
         September 2, 1988.  The matter was considered fully submitted at 
 
         the close of the hearing.  The record in this case consists of 
 
         the testimony of claimant and joint exhibits 1 through 12.
 
         
 
                                      ISSUES
 
         
 
              Pursuant to the prehearing reports and orders submitted and 
 
         approved September 2, 1988, the following issues are presented 
 
         for resolution:
 
         
 
              1.  Whether claimant sustained an injury which arose out of 
 
         and in the course of her employment on March 14, 1985 and, if so, 
 
         whether claimant gave notice of such injury as required by Iowa 
 
         Code section 85.23;
 
         
 
              2.  Whether claimant's claims as a result of injuries 
 
         sustained on October 15, 1977, August 15, 1980 and August 14, 
 
         1981 are barred under Iowa Code section 85.26;
 
         
 
              3.  Whether the work injuries of October 15, 1977, August 
 
         15, 1980 and August 14, 1981 and the alleged injury of March 
 
         14, 1985 are causally connected to the disability on which 
 
         claimant now bases her claim; and,
 
         
 

 
         
 
         
 
         
 
         GOLLIDAY V. YOUNKERS, INC.
 
         PAGE   2
 
         
 
 
 
              4.  Claimant's entitlement, if any, to permanent partial 
 
         disability benefits.
 
         
 
                             FACTS PRESENTED
 
         
 
              Claimant testified she began employment with defendant 
 
         Younkers in the late 1950Os and that this was her only employment 
 
         since emigrating to the United States in 1954.  Claimant 
 
         explained she held a variety of positions with Younkers, 
 
         eventually working her way up to the position of assistant buyer 
 
         and, when that position was eliminated, she became the senior 
 
         sales supervisor, the position she held until her separation from 
 
         employment in April 1985.  Claimant described her job duties as 
 
         being in charge of many areas, overseeing personnel in those 
 
         areas, and getting merchandise ready for sales.
 
         
 
              Claimant testified that in October 1977 while getting ready 
 
         for a "sale of the century" she was pulling racks and tables and 
 
         "overdid" and experienced pain in her neck and back.  Claimant 
 
         recalled seeing Dr. Joe M. Krigsten at that time who advised her 
 
         that she "pulled something" and who provided her with a "neck 
 
         brace" which claimant stated she wore for "quite a long time" and 
 
         that she still does wear on occasion.  Claimant testified she 
 
         continued to work in her regular job although she may have been 
 
         off "a day or so."
 
         
 
              Claimant explained that in August 1980 while working on a 
 
         "back to school sale" she fell on her right knee while walking up 
 
         a ramp.  Claimant recalled she again saw Dr. Krigsten and that 
 
         although her knee was wrapped with an ace bandage and she was on 
 
         crutches for about three days, she continued working at her 
 
         regular job.
 
         
 
              Claimant testified that in August 1981, she "went down" on 
 
         her knee again on some "loose" carpeting and that she again saw 
 
         Dr. Krigsten who wrapped her knee and that she returned to work 
 
         in her regular job.  Claimant explained that she continued to be 
 
         involved in getting ready for sales, unloading merchandise and 
 
         getting that merchandise to the floor, and that in early 1985 
 
         there were many sales from January to Easter plus sales on 
 
         seasonal merchandise.
 
         
 
              Claimant recalled that on March 15, 1985, she returned to 
 
         see Dr. Krigsten for the "same problems" and that at this time he 
 
         made a change in her medication which she had been taking "over 
 
         the years."  Claimant stated that from 1981 on she "always hurt" 
 
         and that she "took pain pills every day."
 
         
 
              Claimant testified she left her employment in April 1985 
 
         when the employer advised her that her job was being eliminated. 
 
          Claimant was given the option of leaving with three months 
 
         severance pay plus vacation (which was about six weeks) or taking 
 
         a position on the sales floor which claimant estimated meant a 
 
         $6,000 reduction in annual salary and a cut in hours and vacation 
 
         benefits.  After consulting with her family, claimant decided 
 
         against returning to the sales floor and explained that she has 
 
         not worked since.  Claimant testified that as a supervisor she 
 
         had the option to sit or stand, to work at a desk or on the floor 
 
         at will.  Claimant explained she has been unsuccessful at finding 
 
         any employment in a retail establishment because of an inability 
 

 
         
 
         
 
         
 
         GOLLIDAY V. YOUNKERS, INC.
 
         PAGE   3
 
         
 
         to lift, stand and because of a dissatisfaction with the 
 
         prevailing wage since it is not substantially similar to the wage 
 
         she had been earning with defendant employer.
 
         
 
              Claimant testified she has continued to see Dr. Krigsten for 
 
         problems with her back, neck, hip and knee and that she 
 
         experiences pain and stiffness in her shoulder, that she cannot 
 
         lift and cannot "keep going up and down" stairs.
 
         
 
              On cross-examination, claimant revealed her husband retired 
 
         in May 1987, that they purchased a van and have taken some trips. 
 
          Claimant also revealed that she has had a myriad of health 
 
         problems over the years and that she fell on the ice at one time 
 
         hurting her ribs.  Claimant acknowledged she has no "written 
 
         restrictions" from her physician and that she was told to "take 
 
         it easy," "put [her] legs up," and "not to lift so much."  
 
         Claimant denied ever receiving any weekly workers' compensation 
 
         benefits and admitted petitions for benefits for the 1977, 1980 
 
         and 1981 injuries were not filed until February 1986.  Claimant 
 
         opined she was a loyal employee to defendant employer, that she 
 
         is still a loyal associate and that she gave up many things for 
 
         her work.  Claimant stated she was hurt by the way she was 
 
         treated by defendant employer after being there for so many 
 
         years.  Claimant, age 54, testified she had had no plans to leave 
 
         her employment but rather that she had planned on staying until 
 
         she was 65.
 
         
 
                           APPLICABLE LAW AND ANALYSIS
 
         
 
              There is no dispute that claimant sustained injuries on 
 
         October 15, 1977, August 15, 1980 and August 14, 1981 which arose 
 
         out of and in the course of her employment.  Claimant filed 
 
         petitions for benefits on account of these injuries on February 
 
         20, 1986.  Claimant was paid no weekly benefits for any of these 
 
         injuries and no agreements for settlement nor memorandums of 
 
         agreement are on file.  Consequently, the operative question then 
 
         becomes whether claimant has brought these actions timely within 
 
         the provisions of Iowa Code section 85.26(l).  That section of 
 
         the law remained unchanged from 1977 through 1981 and it 
 
         provides:
 
         
 
                 No original proceedings for benefits under this 
 
              chapter,,chapter 85A or 86, shall be maintained in any 
 
              contested case unless such proceedings shall be 
 
              commenced within two years from the date of the 
 
              occurrence of the injury for which benefits are claimed 
 
              except as provided by section 86.20.
 
         
 
              It is a well settled principle of workers' compensation law 
 
         in Iowa that payment by an employer's insurer of hospital and 
 
         medical expenses of the injured employee does not toll the 
 
         statute of limitations where no memorandum of agreement is filed 
 
         and a petition for arbitration is not filed within the statutory 
 
         period.  Powell v. Bestwall Gypsum Co., 255 Iowa 937, 124 N.W.2d 
 
         448 (1963).  See also Rankin v. National Carbide Co., 254 Iowa 
 
         611, 118 N.W.2d 570 (1962).
 
         
 
              Claimant clearly did not file her petitions within the time 
 
         limits provided under Iowa Code section 85.26(l) and therefore 
 
         claimant's actions for benefits as a result of injuries sustained 
 

 
         
 
         
 
         
 
         GOLLIDAY V. YOUNKERS, INC.
 
         PAGE   4
 
         
 
         on October 15, 1977, August 15, 1980 and August 14, 1981 are 
 
         barred by the statute of limitations.  This appears so obvious to 
 
         the undersigned as to not warrant any further discussion.
 
         
 
              Consideration is next given to whether claimant has 
 
         established she sustained an injury on March 14, 1985 which arose 
 
         out of and in the course of her employment.
 
         
 
              The claimant must prove by a preponderance of the evidence 
 
         that her injury arose out of and in the course of her employment. 
 
         Musselman v. Central Telephone Co., 261 Iowa 352, 154 N.W.2d 128 
 
         (1967).
 
         
 
              In the course of employment means that the claimant must 
 
         prove her injury occurred at a place where she reasonably may be 
 
         performing her duties.  McClure v. Union, et al., Counties, 188 
 
         N.W.2d 283 (Iowa 1971).
 
         
 
              Arising out of suggests a causal relationship between the 
 
         employment and the injury.  Crowe v. DeSoto Consolidated School 
 
         District, 246 Iowa 402, 68 N.W.2d 63 (1955).
 
         
 
              The supreme court of Iowa in Almquist v. Shenandoah 
 
         Nurseries, 218 Iowa 724, 254 N.W. 35 (1934) at 731-32, discussed 
 
         the definition of personal injury in workers' compensation cases 
 
         as follows:
 
         
 
              While a personal injury does not include an 
 
              occupational disease under the workmen's Compensation 
 
              Act, yet an injury to the health may be a personal 
 
              injury [Citations omitted.]  Likewise a personal injury 
 
              includes a disease resulting from an injury .... The 
 
              result of changes in the human body incident to the 
 
              general processes of nature do not amount to a personal 
 
              injury.  This must follow, even though such natural 
 
              change may come about because the life has been devoted 
 
              to labor and hard work.  Such result of those natural 
 
              changes does not constitute.a personal injury even 
 
              though the same brings about impairment of health or 
 
              the total or partial incapacity of the functions of the 
 
              human body.
 
         
 
                 ....
 
         
 
              A personal injury, contemplated by the Workmen's 
 
              Compensation Law, obviously means an injury to the 
 
              body, the impairment of health, or a disease, not 
 
              excluded by the act, which comes about, not through the 
 
              natural building up and tearing down of the human body, 
 
              but because of a traumatic or other hurt or damage to 
 
              the health or body of an employee. [Citations omitted.]  
 
              The injury to the human body here contemplated must be 
 
              something, whether an accident or not, that acts 
 
              extraneously to the natural processes of nature and 
 
              thereby impairs the health, overcomes, injures, 
 
              interrupts, or destroys some function of the body, or 
 
              otherwise damages or injures a part or all of the 
 
              body.
 
         
 
              Claimant argues that:
 

 
         
 
         
 
         
 
         GOLLIDAY V. YOUNKERS, INC.
 
         PAGE   5
 
         
 
         
 
              According to Claimant's treating physician, Claimant's 
 
              continued performance of "heavy work," such as pushing 
 
              clothes racks, "aggravated the results of these 
 
              injuries."  And finally, those aggravations of her 
 
              earlier injuries culminated in Claimant seeking medical 
 
              care and losing the only work offered to her by the 
 
              Employer due to those injuries.  These facts, Claimant 
 
              urges, support the conclusion Claimant has sustained a 
 
              compensable injury under the "cumulative injury rule," 
 
              since they show Claimant gradually developed her 
 
              disabling condition over time due to her performance of 
 
              recurring heavy work. 9/ McKeever Custom Cabinets v. 
 
              Smith, 379 N.W.2d 368, 373-74 (Iowa 1985).
 
         
 
                 ....
 
         
 
              9  Claimant rests her claims primarily upon this rule.
 
         
 
              The undersigned does not find that McKeever is convincing to 
 
         the facts and circumstances of this case.  What has happened to 
 
         claimant herein was the continuation of long-standing 
 
         symptomology rather than either an aggravation of a preexisting 
 
         condition or a cumulative trauma.  Medical evidence submitted at 
 
         hearing establishes that claimant continually had the same 
 
         complaints and symptoms from the beginning of her complaints 
 
         right through until the time of hearing.  Claimant did not cease 
 
         working on March 15,,1985, the alleged injury date, as the result 
 
         of an inability to continue working as did the claimant in 
 
         McKeever, but rather claimant discontinued working because her 
 
         position was eliminated in April 1985.  The undersigned firmly 
 
         believes that had claimant's position not been eliminated there 
 
         is no question claimant would have continued working.  A 
 
         comparison of the medical evidence which began to accumulate as 
 
         early as 1977 with that of 1985 and beyond shows that there has 
 
         been little, if any, change in claimant's condition.
 
         
 
              The undersigned agrees with defendants' contention that the 
 
         filing of this claim on the part of claimant is not the result of 
 
         an injury but rather the result of claimant's disappointment with 
 
         and in her employer.  This disappointment was evident both 
 
         through claimant's testimony at the time of hearing and through 
 
         claimant's deposition.  Claimant's testimony is replete with 
 
         references to her loyalty and her sacrifices and her 
 
         disappointment with the manner in which she was treated.  No 
 
         judgment is rendered with regard to the manner in which claimant 
 
         was treated as the undersigned does not have equitable powers.  
 
         Jurisdiction is limited to allowing compensation only for 
 
         injuries which arise out of and in the course of employment.  The 
 
         undersigned does not know of any precedent which allows for 
 
         compensation for hurt feelings.
 
         
 
              The chronology of claimant's actions is also interesting 
 
         when determining whether claimant sustained an injury which arose 
 
         out of and in the course of employment.  As indicated above, 
 
         claimant filed petitions for benefits on February 20, 1986 for 
 
         injuries sustained in 1977, 1980 and 1981.  In August 1986, 
 
         following defendants' filing of a motion for summary judgment, 
 
         claimant amended her pleadings to allege an injury of March 14, 
 
         1985.  No mention was made of this date prior to the amended 
 

 
         
 
         
 
         
 
         GOLLIDAY V. YOUNKERS, INC.
 
         PAGE   6
 
         
 
         pleadings.  This is curious in light of claimant's deposition 
 
         testimony where claimant was asked on July 15, 1986 whether she 
 
         had any incidences, accidents or injuries other than those in 
 
         1977, 1980 and 1981.  Claimant responded that she could not 
 
         recall any further accidents, incidents or injuries.  Yet, 
 
         approximately one month later, claimant alleged another injury.  
 
         It is clear to the undersigned that claimant's amended pleading 
 
         alleging an injury in March 1985 was clearly an attempt to 
 
         circumvent the statute of limitations problem.  Claimant has not 
 
         convinced the undersigned that she sustained an injury which 
 
         arose out of and in the course of her employment on March 14, 
 
         1985 be that from a traumatic or cumulative event.  Therefore, 
 
         claimant has failed to meet her burden of proof.
 
         
 
              However, even if claimant had met her burden of proof that 
 
         she sustained an injury on March 14, 1985 which arose out of and 
 
         in the course of her employment, the undersigned would have to 
 
         conclude that claimant failed to give notice of such an injury to 
 
         defendant employer within the meaning of Iowa Code section 85.23. 
 
         That section of the law states:
 
         
 
                 Unless the employer or the employer's representative 
 
              shall have actual knowledge of the occurrence of an 
 
              injury received within ninety days from the date of the 
 
              occurrence of the injury, or unless the employee or 
 
              someone on the employee's behalf or a dependent or 
 
              someone on the dependent's behalf shall give notice 
 
              thereof to the employer within ninety days from the 
 
              date of the occurrence of the injury, no compensation 
 
              shall be allowed.
 
         
 
              Claimant argues that defendant employer possessed actual 
 
         knowledge of claimant's "cumulative injury" and therefore 
 
         claimant was not obligated to provide the employer with any 
 
         further notice.  The undersigned cannot agree.  The record 
 
         establishes that claimant discontinued her employment in April 
 
         1985 as a result of her position being eliminated.  Claimant 
 
         stopped working, but the reason she did had little to do with her 
 
         physical condition.  Although claimant maintained that she was 
 
         physically unable to return to work on the sales floor, the 
 
         record is conspicuously absent of medical evidence which would 
 
         support claimant's contention.  Claimant candidly acknowledged 
 
         she is under no restrictions or limitations with regard to her 
 
         employment outside of taking it easy, putting her legs up, and 
 
         not lifting so much.  Claimant's inability to work is not 
 
         supported by the medical evidence presented.  Consequently, the 
 
         employer cannot be found to have actual knowledge of a 
 
         work-related condition where that condition is not supported by 
 
         medical evidence, where claimant had so many other health 
 
         problems and where claimant chose to leave rather than accept 
 
         other employment.  If one would accept the fact claimant 
 
         sustained an injury on March 14, 1985 which arose out of and in 
 
         the course of her employment, and the fact that defendants did 
 
         not have actual knowledge of claimant's alleged cumulative 
 
         injury, the record is clear that the first notice defendants 
 
         received that claimant intended to file a claim for benefits as a 
 
         result of an injury of March 14, 1985 was when claimant filed her 
 
         amended petition in August 1986.  This is clearly beyond the 90 
 
         day period allowed under Iowa Code section 85.23 and, therefore, 
 
         if even claimant had met her burden that she sustained an injury 
 

 
         
 
         
 
         
 
         GOLLIDAY V. YOUNKERS, INC.
 
         PAGE   7
 
         
 
         which arose out of and in the course of her employment, claimant 
 
         would not be entitled to recover benefits because she did not 
 
         give notice of an injury arising out of and in the course of her 
 
         employment as required by Iowa Code section 85.23.
 
         
 
              Were it necessary, the undersigned would also conclude, 
 
         after reviewing all of the medical evidence submitted in the 
 
         record, that claimant has failed to sustain her burden of 
 
         establishing a causal connection between the injuries and alleged 
 
         injuries and the disability on which she now bases her claim.  
 
         However, in light of the conclusions reached above, it is 
 
         unnecessary to discuss this issue any further.
 
         
 
         
 
                                 FINDINGS OF FACT
 
         
 
              Wherefore, based on all the evidence presented, the 
 
         following findings of fact are made:
 
         
 
              1.  Claimant sustained an injury which arose out of and in 
 
         the course of her employment on October 15, 1977.
 
         
 
              2.  Claimant filed a petition for benefits as a result of 
 
         that work-related injury on February 20, 1986.
 
         
 
              3.  Claimant was paid no weekly benefits.  There was no 
 
         agreement for settlement nor a memorandum of agreement on file.
 

 
         
 
         
 
         
 
         GOLLIDAY V. YOUNKERS, INC.
 
         PAGE   8
 
         
 
         
 
              4.  Claimant sustained an injury which arose out of and in 
 
         the course of her employment on August 15, 1980.
 
         
 
              5.  Claimant filed a petition for benefits as a result of 
 
         that work-related injury on February 20, 1986.
 
         
 
              6.  Claimant was paid no weekly benefits.  There was no 
 
         agreement for settlement nor a memorandum of agreement on file.
 
         
 
              7.  Claimant sustained an injury which arose out of and in 
 
         the course of her employment on August 14, 1981.
 
         
 
              8.  Claimant filed a petition for benefits as a result of 
 
         that work-related injury on February 20, 1986.
 
         
 
              9.  Claimant was paid no weekly benefits.  There was no 
 
         agreement for settlement nor a memorandum of agreement on file.
 
         
 
             10.  Claimant ceased working with defendant employer in April 
 
         1985 because her position was eliminated.
 
         
 
             11.  Claimant, although offered the opportunity to return to 
 
         the sales floor, declined to accept such opportunity.
 
         
 
             12.  Claimant alleged she sustained an injury on March 14, 
 
         1985 which arose out of and in the course of her employment.
 
         
 
             13.  From 1977 through the present, claimant has complained 
 
         of no new symptomology and continues to voice substantially 
 
         similar complaints of long-standing symptomology.
 
         
 
             14.  Claimant is resentful of the manner in which she was 
 
         treated by defendant employer particularly with regard to her 
 
         separation from employment.
 
         
 
             15.  On July 15, 1986, claimant testified that she sustained 
 
         no injuries other than those in 1977, 1980 and 1981.
 
         
 
             16. On August 18, 1986, defendants filed a motion for summary 
 
         judgment asserting that claimant's claims for benefits were 
 
         barred by the statute of limitations.
 
         
 
             17.  On August 20, 1986, claimant amended her pleadings so as 
 
         to allege an injury date of March 14, 1985.
 
         
 
             18.  Claimant's credibility is suspect.
 
         
 
                                CONCLUSIONS OF LAW
 
         
 
              Wherefore, based on the principles of law previously stated, 
 
         the following conclusions of law are made:
 
         
 
              1.  Claimant's claims for benefits as a result of injuries 
 
         sustained on October 15, 1977, August 15, 1980 and August 14, 
 
         1981 are barred under Iowa Code section 85.26.
 
         
 
              2.  Claimant has not established she sustained an injury 
 
         which arose out of and in the course of her employment on March 
 
         14, 1985.
 

 
         
 
         
 
         
 
         GOLLIDAY V. YOUNKERS, INC.
 
         PAGE   9
 
         
 
         
 
                                      ORDER
 
         
 
              THEREFORE, IT IS ORDERED:
 
         
 
              Claimant take nothing from further from these proceedings.
 
         
 
              Costs are assessed against claimant pursuant to Division of 
 
         Industrial Services Rule 343-4.36.
 
         
 
              Signed and filed this 28th day of November, 1988.
 
         
 
         
 
         
 
         
 
         
 
                                     DEBORAH A. DUBIK
 
                                     DEPUTY INDUSTRIAL COMMISSIONER
 
         
 
         
 
         Copies to:
 
         
 
         Mr. MacDonald Smith
 
         Attorney at Law
 
         P.O. Box 1194
 
         Sioux City, IA 51102
 
         
 
         Ms. Judith Ann Higgs
 
         Attorney at Law
 
         200 Home Federal Bldg
 
         P.O. Box 3086
 
         Sioux City, IA 51102
 
         
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                             2400; 2403; 1100
 
                                             Filed November 28, 1988
 
                                             Deborah A. Dubik
 
         
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         VIOLET GOLLIDAY,
 
         
 
              Claimant,                      File  Nos.  814527
 
                                                         814528
 
         vs.                                             814529
 
                                                         826932
 
         YOUNKERS, INC.,
 
         
 
              Employer,                    A R B I T R A T I O N
 
         
 
         and                                 D E C I S I O N
 
         
 
         AETNA CASUALTY & SURETY COMPANY,
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
         
 
         2400; 2403
 
         
 
              Claimant sustained injuries which arose out of and in the 
 
         course of employment in 1977, 1980 and 1981 and filed her 
 
         original notice and petition on February 20, 1986.  No memorandum 
 
         of agreement or agreement for settlement was filed and no weekly 
 
         benefits were paid.  Found:  Claimant's actions barred under Iowa 
 
         Code section 85.26(l).
 
         
 
         1100
 
         
 
              Claimant failed to establish she sustained an injury arising 
 
         out of and in the course of employment on March 14, 1985, one 
 
         month before she left work due to job elimination.  Claimant's 
 
         reliance on McKeever was rejected.
 
         
 
 
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         _________________________________________________________________
 
         
 
         RUSSELL LEE SCHOONOVER,
 
         
 
             Claimant,
 
                                                    File No. 814532
 
         VS.
 
                                                 A R B I T R A T I 0 N
 
         PROGRESSIVE TRANSPORTATION CORP.,
 
                                                    D E C I S I 0 N
 
              Employers,
 
              Defendant.
 
         _________________________________________________________________
 
         
 
                                   INTRODUCTION
 
         
 
              This is a proceeding in arbitration brought by the claimant, 
 
         Russell Lee Schoonover against his employer, Progressive 
 
         Transportation Corp., to recover benefits under the Iowa Workers' 
 
         Compensation Act as a result of an injury allegedly sustained 
 
         September 10, 1985.  This matter came on for hearing before the 
 
         undersigned deputy industrial commissioner in Burlington, Iowa, 
 
         on March 18, 1987.  No first report of injury has been filed.  
 
         The record was considered fully submitted at close of hearing.
 
         
 
              The record in this proceeding consists of the testimony of 
 
         claimant and of Susan Weber, as well as of joint exhibits 1 
 
         through 8. Joint exhibit 1 is a statement of Macomb Clinic, Ltd., 
 
         in the amount of $40.  Joint exhibit 2 is a medical report 
 
         identified as of the clinic relative to claimant.  Joint exhibit 
 
         3 is radiology report of Lyle E. Adams, M.D., of February 12, 
 
         1986.  Joint exhibit 4 is a McHugh Drug Store statement for Soma 
 
         and McPomen in the amount of $35.60. Joint exhibit 5 is a 
 
         McDonough District Hospital statement for lumbar spine x-rays in 
 
         the amount of $83.  Joint exhibit 6 is the deposition of Donald 
 
         Dexter, M.D., taken July 31, 1986.  Joint exhibit 7 is a 
 
         statement for the deposition of Dr. Dexter in the amount of 
 
         $61.20. Joint exhibit 8 is a statement for sheriff fees in the 
 
         amount of $33.20.
 
         
 
                                    ISSUES
 
         
 
              Pursuant to the prehearing report, the parties stipulated 
 
         that claimant received an injury on September 10, 1985 which 
 
         arose out of and in the course of his employment.  They 
 
         stipulated that an employer-employee relationship exists between 
 
         claimant and the named defendant.  They stipulated that claimant 
 
         has been off work since his injury date to December 7, 1986 and 
 
         that the commencement date for any permanent partial disability 
 
         benefits
 
         
 
         
 
         
 
         owed claimant would be December 7, 1986.  They further stipulated 
 
         that claimant received $3,270 in gross earnings in the thirteen 
 
         weeks immediately preceding his injury and that claimant is 
 
         entitled to five exemptions.  The issues remaining to be decided 
 

 
         are:
 
         
 
              1)  Claimant's rate of weekly compensation in the event of 
 
         an award;
 
         
 
              2)  Whether a causal relationship exists between claimant's 
 
         injury and his claimed disability;
 
         
 
              3)  Whether claimant is entitled to benefits and the nature 
 
         and extent of any benefit entitlement, including the related 
 
         question of whether claimant is an odd-lot worker under the 
 
         Guyton doctrine; and
 
         
 
              4)  Whether claimant's claim fails for failure to give 
 
         notice as provided in section 85.23.
 
         
 
                          REVIEW OF THE EVIDENCE
 
         
 
              Claimant testified that he was driving for Progressive 
 
         Transportation under a trip lease with Prairie Transport on 
 
         September 10, 1985, hauling 555 pound barrels of corn syrup for 
 
         the Hubinger Company.  He reported that in Greenville, South 
 
         Carolina, he opened the back of the tractor-trailer and two 
 
         barrels fell out.  He testified that the first barrel pushed him 
 
         over backwards, but the second did not hit him.  Claimant 
 
         indicated that another individual unloaded the remaining barrels.  
 
         Claimant then proceeded to North Carolina where he spent the 
 
         night in his sleeper.  Claimant testified he had a hard time 
 
         getting out of the sleeper the following morning and that he then 
 
         called Progressive and talked to Junior, the dispatcher.  
 
         Claimant testified that he told Junior what had happened and that 
 
         his back was hurting and then signed off the lease.  Claimant 
 
         continued trucking for a time following the September incident.  
 
         He took another trip lease with Progressive to Arkansas and 
 
         reported that he there unloaded sacks of starch.  Claimant agreed 
 
         that that caused him back problems, but stated he did not call 
 
         Progressive concerning them.
 
         
 
              Claimant initially saw Donald Dexter, M.D., of the Macomb 
 
         Clinic, Ltd., on February 11, 1986.  Claimant was off work at 
 
         that time and continues to be off work at the present.  Claimant 
 
         testified that his condition is stable and will not improve 
 
         unless he has surgery which he cannot presently afford.
 
         
 
              Claimant is 43 years old and completed tenth grade; he was a 
 
         C and D student.  Claimant attended diesel repair school and at 
 
         one time owned a diesel and auto repair shop.  Claimant has also 
 
         run heavy equipment, worked in construction, and farmed.  He has 
 
         trucked for approximately twenty years.  Claimant testified that 
 
         he how has a 45 pound lifting restriction and has difficulty 
 
         bending.  He reported that he could not do diesel work as that 
 
         requires heavy lifting and that he could not handle the juggling 
 
         involved in riding tractor-trailers, farm tractors, or heavy 
 
         equipment.  He indicated he could not do the bending required in 
 
         construction work.  Claimant testified he had had no physical 
 
         limitations before his injury.  He reported that he cannot cut 
 
         wood or rake his yard.  Claimant agreed that he had tried to dig 
 
         post holes following his injury, but reported that he had only 
 
         completed three and then "his boy finished up." Claimant denied 
 
         that he had farmed in 1984.
 
         
 
              Susan Webster reported that she owns Progressive 
 
         Transportation with her husband.  Ms. Webster indicated that her 
 
         office files do not reflect a reported injury and stated she had 
 

 
         
 
         
 
         
 
         SCHOONOVER V. PROGRESSIVE TRANSPORTATION CORP.
 
         Page   3
 
         
 
         
 
         no idea claimant had had an injury until his petition was served 
 
         on February 19, 1986.  She reported that she never received a 
 
         call regarding an injury and that she was sure that someone would 
 
         have told her of an injury.  She testified she saw claimant when 
 
         he took the Arkansas load for Progressive and was then unaware 
 
         anything was wrong.  She agreed that both she and Junior act as 
 
         dispatchers.
 
         
 
              Ms. Webster stated that claimant's alleged injury was the 
 
         only time that problems had developed with Hubinger's syrup 
 
         barrels.  Hubinger apparently loads the barrels.  She testified 
 
         that the barrels are generally stacked three feet from the back 
 
         door of the trailer.  Ms. Webster testified that Hubinger would 
 
         charge Progressive Transportation for any destroyed barrels.  She 
 
         recalled signing the bill of lading for the corn syrup trip 
 
         claimant drove and indicated that the bill reported damage to a 
 
         barrel but did not report a destroyed barrel.  She stated that 
 
         she was "positive" that Hubinger had made no claim for the value 
 
         of the syrup and the barrel.
 
         
 
              Dr. Dexter's notes for February 11, 1986 indicate that 
 
         claimant reports a back injury in September 1984 when a barrel 
 
         full of corn syrup rolled out of the truck and hit his hands.  It 
 
         states claimant tried to hold the barrel but then let it fall, 
 
         but wasn't knocked over.  He states, "strained it." Claimant 
 
         reported pain radiating down both posterior thighs to the knees, 
 
         especially on standing and bending.  The note states "Unable to 
 
         work since injury hasn't notified company..." At hearing, 
 
         claimant could not recall telling his physician this but stated 
 
         he had notified the company of his injury even though he had not 
 
         notified them he was off work.  Claimant's gait was guarded; he 
 
         had back pain on toe walking as well as on heel walking.  Flexion 
 
         was 30 to 40 degrees.  Leg length appeared equal.  Straight leg 
 
         raising was positive apparently bilaterally at 60 to 70 degrees.  
 
         The impression was of chronic lumbar sacral strain.  Soma and 
 
         Meclomen as well as heat were prescribed.
 
         
 
              Lyle E. Adams, M.D., interpreted lumbar spine x-rays of 
 
         February 12, 1986 as showing that the last lumbar disc space was 
 
         quite narrow and had some reactive body change due to 
 
         longstanding abnormal weight bearing likely related to a 
 
         degenerated disc.  The disc space above was very slightly 
 
         narrowed as well, but there were no other areas of abnormality 
 
         and no evidence of fracture.
 
         
 
              In his deposition, Dr. Dexter agreed with the radiological 
 
         interpretation that claimant had a longstanding degenerative 
 
         condition in his back.  He opined that on the basis of the 
 
         history claimant had given the doctor, claimant's injury 
 
         certainly could have aggravated the preexisting degenerative 
 
         condition.  He further opined that claimant has a five to ten 
 
         percent permanent partial "disability" as a result of his injury.  
 
         Dr. Dexter is a board certified general surgeon.
 
         
 
              The balance of the evidence was reviewed and considered in 
 
         the disposition of this matter.
 
         
 
                       APPLICABLE LAW AND ANALYSIS
 
         
 

 
         
 
         
 
         
 
         SCHOONOVER V. PROGRESSIVE TRANSPORTATION CORP.
 
         Page   4
 
         
 
         
 
              Our first concern is whether claimant failed to give notice 
 
         as required under section 85.23.
 
         
 
              Defendants have raised the issue of lack of notice of the 
 
         work injury within 90 days from the date of the occurrence of the 
 
         injury under section 85.23. Lack of such notice is an affirmative 
 
         defense.  DeLong v. Iowa State Highway Commission, 229 Iowa 700, 
 
         295 N.W. 91 (1940).  In Reddick v. Grand Union Tea Co., 230 Iowa 
 
         108, 295 N.W. 800 (1941) the Iowa Supreme Court has ruled that 
 
         once claimant sustains the burden of showing that an injury arose 
 
         out of and in the course of employment, claimant prevails unless 
 
         defendant can prove by a preponderance of the evidence an 
 
         affirmative defense.  Although an employer may have actual 
 
         knowledge of an injury, the actual knowledge requirement under 
 
         section 85.23 is not satisfied unless the employer has 
 
         information putting him on notice that the injury may be 
 
         work-related.  Robinson v. Dept. of Transportation, 296 N.W.2d 
 
         809, 811 (Iowa 1980).  The time period for notice of claim does 
 
         not begin to run until claimant, as a reasonable person should 
 
         recognize the nature, seriousness and probable compensable 
 
         character of his injury or disease.  Reasonableness is judged on 
 
         the basis of claimant's own intelligence and education.  Id.
 
         
 
              Claimant testified he called Junior, who with Mrs. Webster, 
 
         was a company dispatcher, the morning following his work incident 
 
         and told him what had happened and that his back was hurting.  
 
         Defendant did not cross-examine claimant as to the exact content 
 
         of his conversation with Junior.  Furthermore, Junior was not 
 
         called to testify regarding that conversation.  We find this 
 
         surprising as notice to Junior of a work incident would certainly 
 
         constitute notice to Progressive.  The company dispatcher would 
 
         be the individual with whom claimant would communicate while on 
 
         the road.  The obligation to pass information received regarding 
 
         a work injury on to management would rest with Junior and not 
 
         claimant.  Hence, even though Mrs. Webster testified she had no 
 
         knowledge of claimant's injury, defendant has not proved it 
 
         lacked actual knowledge of claimant's work incident since 
 
         claimant's testimony that he notified Junior is credible and 
 
         accepted.  Dr. Dexter's report of claimant's initial medical 
 
         visit substantially reports the accident as claimant described.  
 
         It also states "claimant hasn't notified company." While claimant 
 
         could not recall this conversation, he did state he had not 
 
         notified the company he was off work on account of his injury yet 
 
         reiterated that he had notified it of the incident, itself.  If 
 
         claimant had been a full-time Progressive employee one would, of 
 
         course, expect that he had notified the employer he was off work.  
 
         As claimant worked for Progressive only intermittently, and 
 
         apparently was able to continue working for Progressive and other 
 
         trucking firms for a time after his injury, it is not 
 
         inconsistent that claimant would not have notified Progressive 
 
         immediately when he was compelled to leave work on account of the 
 
         injury.  Dr. Dexter's report then is not seriously detrimental to 
 
         claimant's overall credible testimony that he actually reported 
 
         his work incident to Junior.  Likewise, we attach little 
 
         significance to the fact that the bill of lading characterized 
 
         the barrel as damaged rather than destroyed.  The mention of the 
 
         barrel, of itself, substantiates that some incident occurred on 
 
         the Hubinger trip.  Defendants have failed to prove lack of 
 
         notice of claimant's injury.
 

 
         
 
         
 
         
 
         SCHOONOVER V. PROGRESSIVE TRANSPORTATION CORP.
 
         Page   5
 
         
 
         
 
         
 
              We reach the causation question.
 
         
 
              The claimant has the burden of proving by a preponderance of 
 
         the evidence that the injury of September 10, 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. 0. Boggs, 236 Iowa 296, 18 N.W.2d 607 (1945).  A 
 
         possibility is insufficient; a probability is necessary. Burt v. 
 
         John Deere Waterloo Tractor Works, 247 Iowa 691, 73 N.W.2d 732 
 
         (1955).  The question of causal connection is essentially within 
 
         the domain of expert testimony.  Bradshaw v. Iowa Methodist 
 
         Hospital, 251 Iowa 375, 101 N.W.2d 167 (1960).
 
         
 
              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).
 
         
 
              While a claimant is not entitled to compensation for the 
 
         results of a preexisting injury or disease, the mere existence at 
 
         the time of a subsequent injury is not a defense.  Rose v. John 
 
         Deere Ottumwa Works, 247 Iowa 900, 908, 76 N.W.2d 7561, 760-761 
 
         (1956).  If the claimant had a preexisting condition or 
 
         disability that is aggravated, accelerated, worsened or lighted 
 
         up so that it results in disability, claimant is entitled to 
 
         recover.  Nicks v. Davenport Produce Co., 254 Iowa 130, 115 
 
         N.W.2d 812, 815 (1962).
 
         
 
              Claimant waited approximately five months following his 
 
         injury before he visited Dr. Dexter.  The history claimant gave 
 
         the doctor was generally consistent with that given at hearing, 
 
         however.  No evidence of other accidents or work incidents was 
 
         presented.  Dr. Dexter opined that claimant's September 1984 
 
         injury "certainly could have" aggravated claimant's preexisting 
 
         longstanding degenerative back changes.  That opinion is not 
 
         couched in absolute probabilities.  Claimant has worked without 
 
         apparent difficulties and had carried on various life activities 
 
         until his injury, however.  He testified he is unable to drive 
 
         over the road now and that he can neither cut wood or rake his 
 
         yard.  These activity limitations, with Dr. Dexter's 
 
         uncontroverted opinion testimony, are sufficient to establish 
 
         that claimant's current disability is related to the injury on 
 
         which he bases his claim.
 
         
 
              We reach the benefit entitlement question.
 
         
 
              Initially, claimant has not made a prima facie showing he is 
 
         an odd-lot worker.
 
         
 
              In Guyton v. Irving Jensen Co., 373 N.W.2d 101 (Iowa 1985), 
 

 
         
 
         
 
         
 
         SCHOONOVER V. PROGRESSIVE TRANSPORTATION CORP.
 
         Page   6
 
         
 
         
 
         the Iowa court formally adopted the "odd-lot doctrine." Under 
 
         that doctrine a worker becomes an odd-lot employee when an injury 
 
         makes the worker incapable of obtaining employment in any well 
 
         known branch of the labor market.  An odd-lot worker is thus 
 
         totally disabled if the only services the worker can perform are 
 
         "so limited in quality, dependability, or quantity that a 
 
         reasonably stable market for them does not exist.
 
         
 
              The burden of persuasion on the issue of industrial 
 
         disability always remains with the worker.  However, when a 
 
         worker makes a prima facie case of total disability by producing 
 
         substantial evidence that the worker is not employable in the 
 
         competitive labor market, the burden to produce evidence of 
 
         suitable employment shifts to the employer.  If the employer 
 
         fails to produce such evidence and the trier of fact finds the 
 
         worker does fall in the odd-lot category, the worker is entitled 
 
         to a finding of total disability.  Id. Even under the odd-lot 
 
         doctrine, the trier of fact is free to determine weight and 
 
         credibility of evidence in determining whether the worker's 
 
         burden of persuasion has been carried, and only in an exceptional 
 
         case would evidence be sufficiently strong to compel a finding of 
 
         total disability as a matter of law.  Id. In Guyton, the court 
 
         also stated the following regarding determination of a worker's 
 
         industrial loss.
 
         
 
                   The question is more than the one posed by the 
 
              commissioner concerning what the evidence shows Guyton 
 
              "can or cannot do." The question is the extent to which 
 
              the injury reduced Guyton's earning capacity.  This 
 
              inquiry cannot be answered merely by exploring the 
 
              limitations on his ability to perform physical activity 
 
              associated with employment.  It requires consideration 
 
              of all the factors that bear on his actual 
 
              employability.  See New Orleans (Gulfwide) Stevadores 
 
              v. Turner, 661 F.2d 1031, 1042 (5th Cir.1981) (are 
 
              there jobs in the community that the worker can do for 
 
              which he could realistically compete?) Id.
 
         
 
              Claimant testified he could not now drive a truck or engage 
 
         in any of his other various past jobs.  He testified he has a 45 
 
         pound lifting restriction and is limited in bending.  Claimant's 
 
         testimony as to jobs he cannot do is not shored up with expert 
 
         vocational testimony; neither are his self expressed physical 
 
         restrictions supported by medical reports in the record.  
 
         Claimant's unsubstantiated testimony as regards these matters is 
 
         given less weight than it would receive were it supported by 
 
         appropriate expert opinion.  Furthermore, the record does show 
 
         claimant has skills in diesel and auto repair, farming, heavy 
 
         equipment and construction work.  Each of these past work 
 
         experiences likely involve skills which claimant could use in 
 
         vocations involving lifting of less than 45 pounds and limited 
 
         bending.  Likewise, the record is devoid of evidence that 
 
         claimant has actually sought work.  His physical impairment of 
 
         five to ten percent is not so great as to preclude his seeking 
 
         and attempting some kind of employment.  His failure to do so is 
 
         further evidence that no prima facie case that claimant is an 
 
         odd-lot worker is made.
 
         
 
              We consider the industrial disability question.
 

 
         
 
         
 
         
 
         SCHOONOVER V. PROGRESSIVE TRANSPORTATION CORP.
 
         Page   7
 
         
 
         
 
         
 
              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).
 
         
 
              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 ) .
 
         
 
              Many of the factors relating to industrial disability were 
 
         analyzed as regards the odd-lot issue.  Additionally, claimant is 
 
         43 years old and has completed tenth grade.  He was a low average 
 
         student.  His self-described limitations do not preclude most 
 
         moderately strenuous employment.  He has practical work 
 
         experience and formal training which likely could be used in 
 
         employments within his physical capacities.  He has not sought 
 
         work either with his former employer or otherwise.  While 
 
         claimant believes back surgery is necessary, the record does not 
 
         show his treating physician recommends surgery.  Claimant's 
 
         permanent partial impairment is modest.  All factors suggest a 
 
         loss of earning capacity of 20 percent.
 
         
 

 
         
 
         
 
         
 
         SCHOONOVER V. PROGRESSIVE TRANSPORTATION CORP.
 
         Page   8
 
         
 
         
 
              Claimant apparently seeks healing period benefits to which 
 
         he is entitled under section 85.34(l). Claimant has not returned 
 
         to work.  The parties stipulated claimant was off work from his 
 
         injury date to December 7, 1986 with permanent partial disability 
 
         benefits to commence as of that date.  Healing period benefits 
 
         will run from claimant's injury date to December 7, 1986 for 
 
         those days on which claimant was actually not working on account 
 
         of his injury.
 
         
 
              The rate issue remains.  Claimant received $3,270 in gross 
 
         earnings in the thirteen weeks immediately preceding his injury 
 
         and is entitled to five exemptions.  No evidence was presented 
 
         suggesting claimant's rate should be decided other than under 
 
         section 85.36(6). Claimant's rate then is found to be $171.70.
 
         
 
                              FINDINGS OF FACT
 
         
 
              WHEREFORE, IT IS FOUND:
 
         
 
              Claimant injured his back on September 10, 1985 when barrels 
 
         rolled from the back of the trailer truck he was lease driving 
 
         for defendant employer.
 
         
 
              Claimant called the company dispatcher the following morning 
 
         and told him of the incident and that claimant's back was 
 
         hurting.
 
         
 
              Claimant continued to work for a time after his injury.
 
         
 
              Claimant eventually was unable to work but did not renotify 
 
         the company.
 
         
 
              Claimant first saw Dr. Dexter on February 11, 1986.
 
         
 
              Claimant has longstanding degenerative changes in his back.
 
         
 
              Claimant worked as a trucker and engaged in various life 
 
         activities prior to his injury but has been unable to work as a 
 
         trucker or engage in those activities following his injury.
 
         
 
              Claimant's injury aggravated claimant's degenerative back 
 
         condition.
 
         
 
              Claimant is 43 years old and has completed tenth grade.
 
         
 
              Claimant was a low average student.
 
         
 
              Claimant has training as diesel mechanic and once operated a 
 
         diesel and auto mechanic shop.
 
         
 
              Claimant has farmed, trucked, worked construction, and 
 
         operated heavy equipment.
 
         
 
              Claimant has self-described limitations on bending and 
 
         lifting more than 45 pounds.
 
         
 
              Claimant has knowledge and skills which would transfer to 
 
         work within those restrictions.
 
         
 

 
         
 
         
 
         
 
         SCHOONOVER V. PROGRESSIVE TRANSPORTATION CORP.
 
         Page   9
 
         
 
         
 
              Claimant has not sought work since his injury.
 
         
 
              Claimant has a modest permanent partial impairment of the 
 
         body as a whole.
 
         
 
              Claimant reached maximum medical healing on December 6, 
 
              1986.
 
         
 
              Claimant earned $3,270 in the thirteen weeks immediately 
 
         preceding his injury and was entitled to five exemptions.
 
         
 
                           CONCLUSIONS OF LAW
 
         
 
              THEREFORE, IT IS CONCLUDED:
 
         
 
              Defendant has not established that claimant failed to give 
 
         notice of his injury as required under section 85.23.
 
         
 
              Claimant has established that his September 10, 1985 injury 
 
         is causally related to the disability on which he bases his 
 
         claim.
 
         
 
              Claimant has not established he is an odd-lot worker.
 
                                        
 
              Claimant is entitled to permanent partial disability  
 
         resulting from his September 10, 1985 injury of twenty percent
 
         (20%) with those benefits to commence December 7, 1986.
 
         
 
              Claimant is entitled to healing period benefits from 
 
         September 10, 1985 to December 7, 1986 for those days he was 
 
         actually off work on account of his injury.
 
         
 
              Claimant's rate of weekly compensation is one hundred 
 
         seventy-one and 70/100 dollars ($171.70).
 
         
 
                                   ORDER
 
         
 
              THEREFORE, IT IS ORDERED:
 
         
 
              Defendant pay claimant permanent partial disability benefits 
 
         for one hundred (100) weeks at the rate of one hundred 
 
         seventy-one and 70/100 dollars ($171.70) with those benefits to 
 
         commence December 7, 1986.
 
         
 
              Defendant pay claimant healing period benefits from his 
 
         injury date to December 7, 1986 for those days he was actually 
 
         off work on account of his injury.
 
         
 
              Defendants pay accrued amounts in a lump sum.
 
         
 
              Defendants pay interest pursuant to section 85.30
 
         
 
              Defendants pay costs pursuant to Industrial Services 
 
              Division
 
         Rule 343-4.33.
 
         
 
              Defendants file claim activity reports as required by the
 
         agency.
 
         
 

 
         
 
         
 
         
 
         SCHOONOVER V. PROGRESSIVE TRANSPORTATION CORP.
 
         Page  10
 
         
 
         
 
              Signed and filed this 7th day of April, 1987.
 
         
 
         
 
                                            HELEN JEAN WALLESER
 
                                            DEPUTY INDUSTRIAL COMMISSIONER
 
         
 
         Copies to:
 
         
 
         Mr. James P. Hoffman
 
         Attorney at Law
 
         P.O. Box 1066
 
         Middle Road
 
         Keokuk, Iowa 52632-1066
 
         
 
         Mr. Thomas D. Marion
 
         Attorney at Law
 
         P.O. Box 408
 
         30 N. 4th Street
 
         Keokuk, Iowa 52632
 
         
 
 
            
 
 
 
 
 
 
 
               
 
                
 
                                                 1803; 4100
 
                                                 Filed 4-7-87
 
                                                 Helen Jean Walleser
 
         
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         _________________________________________________________________
 
         
 
         
 
         RUSSELL LEE SCHOONOVER,
 
         
 
             Claimant,
 
                                                 File No. 814532
 
         VS.
 
                                               A R B I T R A T I 0 N
 
         PROGRESSIVE TRANSPORTATION CORP.,
 
                                                 D E C I S I 0 N
 
         
 
             Employers,
 
             Defendant.
 
         
 
         _________________________________________________________________
 
         
 
         1803; 4100
 
         
 
              Middle-aged claimant awarded 20% industrial disability for 
 
         aggravation of preexisting degenerative back condition.  Claimant 
 
         who had not sought work and showed limited motivation not found 
 
         an odd-lot worker.
 
 
 
 
            
 
            Page   1
 
            
 
            
 
            
 
            
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            RONALD KUEHN,                 :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :         File No. 814538
 
                                          :
 
            FISHER CONTROLS               :      A R B I T R A T I O N
 
            INTERNATIONAL, INC.,          :
 
                                          :         D E C I S I O N
 
                 Employer,                :
 
                                          :
 
            and                           :
 
                                          :
 
            CIGNA INSURANCE COMPANIES,    :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ____________________________________________________________
 
            
 
                              statement of the case
 
            
 
                 This is a proceeding in arbitration upon claimant's 
 
            petition filed February 24, 1986.  Claimant alleges that he 
 
            developed an occupational disease "up to January, 1985" from 
 
            exposure to toxic substances in the course of his employment 
 
            with Fisher Controls.  He now seeks benefits under the Iowa 
 
            Workers' Compensation Act.
 
            
 
                 Hearing on the arbitration petition was held in Des 
 
            Moines, Iowa, on July 19, 1989.  The record consists of 
 
            joint exhibits 1 through 51, defendants' exhibits 1, 2 and 
 
            4, and the testimony of the following witnesses:  claimant, 
 
            Earl Cronk, Jerry Gilge, Maryanne Schmidt, Charles Kellogg 
 
            and Ronald Allen.
 
            
 
                                      issues
 
            
 
                 Pursuant to the prehearing report submitted at the 
 
            arbitration hearing, the parties have stipulated:  that an 
 
            employment relationship existed at the time of the alleged 
 
            injury; that the appropriate rate of weekly compensation is 
 
            $338.90; that defendant is not entitled to credits for 
 
            voluntarily paid benefits or under Iowa Code section 
 
            85.38(2).
 
            
 
                 Issues presented for resolution include:  whether 
 
            claimant sustained an injury or occupational disease in 
 
            January, 1985 arising out of and in the course of 
 
            employment; whether the alleged injury or disease caused 
 
            temporary or permanent disability, the extent of each and 
 
            the nature of the latter; whether asserted affirmative 
 
            defenses pursuant to Iowa Code sections 85.23, 85.26 and 
 
            85A.18 are valid; taxation of costs.
 
            
 
                 With respect to claimant's entitlement to medical 
 
            benefits, defendants stipulated that if the injury were 
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            found compensable, they would pay all claimant's 
 
            out-of-pocket medical costs asserted in the attachment to 
 
            his petition and Dr. Thoman's charges for treatment.  
 
            Defendants stipulated that the providers of medical services 
 
            would testify that the fees were reasonable and incurred for 
 
            reasonable and necessary treatment and no contrary evidence 
 
            was offered.  Defendants disputed that the expenses were 
 
            causally connected to the work injury or authorized.  
 
            However, defendants are not entitled to assert an 
 
            authorization defense to medical expenses where they have 
 
            denied liability on the claim.  Barnhart v. MAQ, Inc., I 
 
            Iowa Industrial Commissioner Report 16 (1981).
 
            
 
                                 findings of fact
 
            
 
                 The undersigned deputy, having heard the testimony and 
 
            considered all of the evidence, finds:
 
            
 
                 Claimant, age 46 at the time of hearing, has been 
 
            employed with Fisher Controls for some 22 years and is so 
 
            employed today.  He has held several jobs, but in 
 
            approximately 1980 began working as an instrumentation 
 
            mechanic.  His duties included repairing and cleaning air 
 
            conditioning equipment, hoists and other fixtures.  Cleaning 
 
            commonly involved the use of two solvents:  1,1,1 
 
            trichloroethane ("TCE") and Barton Sur Dri, also known as 
 
            solvent 140 ("140").  Solvent 140 is a liquid solvent which 
 
            claimant described as having a pleasant odor, but one he was 
 
            unable to further describe.  It was used with a sprayer to 
 
            remove dirt and grease.  If it proved unable to remove a 
 
            particular accumulation, claimant used TCE, which he 
 
            described as having a very distinctive sweet smell.  Solvent 
 
            140 does not contain the chemical benzene, although two 
 
            physicians in this case base their opinions about the 
 
            physical effects of 140 on the misunderstanding that 140 
 
            basically is benzene.  However, as pointed out by Jeffrey H. 
 
            Mandel, M.D., 140's effects would be similar to those of 
 
            benzene anyway.  Even though exposure to benzene itself may 
 
            result in a higher risk of contracting leukemia, there is no 
 
            indication that claimant suffers from that disorder.
 
            
 
                 Although claimant had more or less regular exposure to 
 
            these solvents over a period of years, he in particular 
 
            makes complaint of relatively major incidents on or about 
 
            October 14 and November 4, 1984.
 
            
 
                 He had, however, noticed some symptomatology prior to 
 
            these exposures.  In July, 1984, he began noticing symptoms 
 
            of light-headedness and nausea, a swollen leg, back and 
 
            joint pains, diarrhea, headaches and inability to grasp with 
 
            normal strength.  Claimant saw a number of physicians in 
 
            search of a diagnosis.  However, toxic exposure was not 
 
            diagnosed.  During a two-week vacation, claimant's 
 
            symptomatology improved, but worsened again upon his return 
 
            to work.
 
            
 
                 On October 14, 1984, claimant was assigned to clean an 
 
            air conditioning unit.  After about one hour, he felt 
 
            light-headed and sick to his stomach.  He quit spraying and 
 
            checked his suction gun, noting what he felt to be the 
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            distinctive odor of TCE rather than, as he expected, 140.  
 
            Earl Cronk, who noted that claimant's actions were erratic 
 
            and becoming more so, arrived about an hour after claimant 
 
            began work cleaning the air conditioning units.  Claimant 
 
            seemed dizzy and uncoordinated.  Cronk noticed the strong 
 
            odor of a solvent, but felt that it was sharper than 140, 
 
            stronger and more pungent.  Cronk testified that several 
 
            other people smelled the container and believed it to have 
 
            an odd odor.  However, Charles Kellogg, a maintenance 
 
            planning scheduler, testified that although the smell was 
 
            indeed unusual, the solvent was tested and found to actually 
 
            be 140.  He also indicated that claimant had in the past 
 
            often questioned the odor of solvents and believed they were 
 
            causing him difficulty.
 
            
 
                 Claimant and Cronk subsequently checked a large vat of 
 
            140 solvent at another plant (although not where the 
 
            supposed 140 had been drawn the night before) and discovered 
 
            the following sign on the vat:  "Do not use, bad solvent."  
 
            Claimant reported this incident immediately to the first aid 
 
            room and left work on the telephone advice of his family 
 
            doctor.  His "shaking" stopped after about two hours, but he 
 
            still suffered headache and nausea.  However, he returned to 
 
            work on the following day.
 
            
 
                 On approximately November 4-7, 1984, claimant suffered 
 
            another solvent exposure.  He was assigned to clean a 
 
            degreasing pit with a power washer and water.  This tank was 
 
            some 3-4 feet deep and normally contained TCE.  Claimant 
 
            smelled leaking TCE while cleaning the pit and developed 
 
            nausea and dizziness.  Claimant complained of the exposure 
 
            to machine operator Jerry Gilge shortly after the incident.  
 
            Gilge agreed that the tank had previously leaked on a number 
 
            of occasions.
 
            
 
                 Some of claimant's symptoms are not inconsistent with 
 
            previous experiences.  In 1981, for example, neurologist 
 
            Michael J. Kitchell, M.D., reported complaints of blurred 
 
            vision, headaches and dizziness along with fatigue and 
 
            feeling cold.
 
            
 
                 Claimant was seen at St. Paul-Ramsey Medical Center in 
 
            May, 1988.  Janet Zander, M.D., diagnosed (on Axis I) 
 
            possible major depression, improving and possible delusional 
 
            disorder.  Staff psychologist Linda Roberts, Ph.D., 
 
            interpreted a Minnesota Multiphasic Personality Inventory in 
 
            the following language:
 
            
 
                 To the extent that this profile may validly 
 
                 reflect the patient's clinical status, it suggests 
 
                 intense somatic and health concerns and raises the 
 
                 question of a somatization disorder.  Classical 
 
                 hysterical conversion symptoms may be present.  
 
                 The patient may be experiencing feelings of low 
 
                 mood, fatigue and loss of initiative but a full 
 
                 depressive syndrome is not likely.  Rather, he may 
 
                 tend to experience anxiety in physiological terms 
 
                 with an exacerbation of symptoms when he is under 
 
                 stress.
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
            
 
                 Although claimant testified that he had no history of 
 
            breathing problems before his solvent exposures, it is 
 
            undisputed that he has been a cigarette smoker for many 
 
            years.  Dr. Zander's history was that claimant smoked 
 
            three-fourths of a pack per day.  Gregory A. Hicklin, M.D., 
 
            a pulmonary disease specialist, was given in 1986 a history 
 
            of consumption of one pack per day for 25 years.  Pulmonary 
 
            specialist Steven Zorn, M.D., had a history of one and 
 
            one-half packs per day for 25 years (over a quarter million 
 
            cigarettes, or 37.5 "pack years").
 
            
 
                 Mark E. Thoman, M.D., testified by deposition taken 
 
            December 15, 1987.  Dr. Thoman specializes and is board 
 
            certified in pediatrics and clinical toxicology, which he 
 
            defined as the study of poisons in human beings.  Dr. Thoman 
 
            first saw claimant on November 21, 1984.  Claimant 
 
            complained of headache, muscle weakness, edema, indigestion, 
 
            restlessness at night, weight loss and hazy memory.  On 
 
            December 20, 1984, Dr. Thoman wrote defendant to advise that 
 
            claimant was currently a toxicology patient and, because it 
 
            would be in his best interests to work in an environment 
 
            free from chemical pollution, to request that he be 
 
            transferred to such an area.  On January 9, 1985, Dr. Thoman 
 
            wrote company physician C. G. Wuest, M.D., that it was 
 
            medically necessary that claimant be transferred to an area 
 
            where he would have less exposure to chemical inhalants and 
 
            to note that he was presenting symptoms and signs showing a 
 
            correlation with exposure to various chemicals and solvents.  
 
            Unsigned handwritten notes at the bottom of the December 20 
 
            letter indicate that a phone call was placed to physician's 
 
            assistant Andra Kennedy on January 9, 1985, and that advice 
 
            was received to the effect that claimant had been seen on a 
 
            consultation basis, that there was some suspicion of toxic 
 
            exposure to TCE and benzene, and that, "It is their 
 
            recommendation that he be removed from poss. further 
 
            exposure.  Letter will be sent."  Since this writing appears 
 
            to have originated in the Fisher Controls office (and 
 
            motivated the letter to Dr. Wuest on the same date), it is 
 
            found that defendant was notified no later than January 9, 
 
            1985, that claimant alleged an exposure to solvents at work 
 
            resulting in the necessity of medical treatment.
 
            
 
                 Dr. Thoman testified that claimant's symptoms and 
 
            complaints were consistent with exposures to benzene and 
 
            TCE.  He saw claimant on several occasions, his 
 
            symptomatology gradually improving.  Dr. Thoman agreed that 
 
            claimant currently has no objective evidence of impairment 
 
            except for abnormal spirometry and methacholine challenge 
 
            tests, each of which are indicative of asthma or reactive 
 
            airway disease, but remains of the view that claimant has 
 
            sustained permanent disability and impairment based upon his 
 
            reported symptomatology.
 
            
 
                 In this discussion, "symptom" will refer to subjective 
 
            evidence of disease or a condition perceived by the patient 
 
            and "sign" will indicate objective evidence of a disease or 
 
            condition.
 

 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
            
 
                 Dr. Thoman pointed out that toxic exposures will cause 
 
            alterations in certain organ systems, some of which will not 
 
            improve to the normal state had the toxic exposure not 
 
            occurred.  Thus, when the individual is around certain 
 
            fumes, situations or solvent odors, sensitization due to 
 
            previous exposure may be boosted so that the individual is 
 
            limited and will incur additional or more serious symptoms 
 
            and signs.  Dr. Thoman believed that claimant has sustained 
 
            a 25-30 percent permanent impairment or disability to the 
 
            body as a whole, and that 25-30 percent of this was due to 
 
            exposure to solvents (including benzene, although the 
 
            evidence shows that claimant was not so exposed).
 
            
 
                 Dr. Thoman specified that following exposure to 
 
            solvents, claimant may have a greater chance of respiratory 
 
            tract infections and that irritations caused by other 
 
            compounds (such as organic chemicals, halogenated compounds 
 
            or hydrocarbons) might have a greater physiological effect, 
 
            so that such patients should be carefully monitored.  
 
            Potentially, the central nervous system could have increased 
 
            problems (difficulty in memory patterns or other specific 
 
            functions), and the intestinal tract may also demonstrate an 
 
            increased incidence of such gastrointestinal disturbances as 
 
            abdominal pain, intestinal irritation, nausea, vomiting or 
 
            diarrhea.  The upper respiratory tract may be prone to 
 
            having irritation and allergic patterns.  The skin will have 
 
            a greater likelihood of superficial infection as manifested 
 
            by sores.  When asked specifically if he knew of any studies 
 
            showing the central nervous system to be permanently 
 
            depressed by halogenated hydrocarbonated solvent (apparently 
 
            speaking of TCE), Dr. Thoman indicated he had an extensive 
 
            literature base consisting of several hundred references, 
 
            "many of which cite case histories which talk about 
 
            irreversible problems of this nature."
 
            
 
                 On cross-examination, Dr. Thoman conceded that his 
 
            impairment evaluation was based entirely upon two factors:  
 
            claimant's history of symptoms developing upon exposure to 
 
            various chemicals and the possibility of future dysfunction.  
 
            The doctor also noted bronchial reactivity of the 
 
            respiratory tract upon taking the methacholine challenge.  
 
            Dr. Thoman conceded that this reactivity is consistent with 
 
            asthma, but pointed out that no asthma preexisted the 
 
            solvent exposure.  While asthma can be brought on by a 
 
            history of cigarette smoking, Dr. Thoman felt that it 
 
            usually evolved insidiously rather than appearing acutely.
 
            
 
                 When asked if he had ruled out hysterical or emotional 
 
            factors as contributing to claimant's symptomatology, Dr. 
 
            Thoman indicated that these factors are "heavily ingrained 
 
            in any toxic exposure," but also conceded that symptoms such 
 
            as claimant's may on occasion arise on an hysterical and 
 
            emotional basis even absent toxic exposure.
 
            
 
                 Steven K. Zorn, M.D., testified by deposition on 
 
            February 3, 1988.  Dr. Zorn is a pulmonary medicine 
 
            specialist, board certified in internal medicine and 
 
            pulmonary medicine.  He saw claimant on December 19, 1984 
 

 
            
 
            Page   6
 
            
 
            
 
            
 
            
 
            and wrote of a history of symptoms consistent with TCE 
 
            exposure, although he was not at that time able to 
 
            objectively document residual damage.  He noted that 
 
            claimant had a positive methacholine challenge and a history 
 
            of increased shortness of breath when near TCE.  He believed 
 
            it probable that TCE, which is an irritant to the mucous 
 
            membranes, produced increased bronchospasm and shortness of 
 
            breath when claimant was exposed to it.  He wrote that he 
 
            was unaware of any evidence to support a chronic asthmatic 
 
            state induced by a transient exposure to TCE, and felt that 
 
            the minor airway disease seen on pulmonary function testing 
 
            was most likely secondary to cigarette smoking.  As did Dr. 
 
            Thoman, he recommended reassignment to an area in the plant 
 
            where claimant was less likely to be exposed to TCE.  This 
 
            occasion was the only time that he saw claimant. 
 
            
 
                 In his deposition testimony, Dr. Zorn reiterated that 
 
            the predominant likelihood was that claimant's "minimal 
 
            small airway disease" was caused by cigarette smoking.  He 
 
            noted that claimant's baseline pulmonary functions were not 
 
            at all severe, but his reaction to methacholine challenge 
 
            indicated evidence of a hyperreactive airway disease so 
 
            claimant "could certainly have a possibility of an 
 
            underlying asthmatic state."  Dr. Zorn also testified that 
 
            claimant would not have an ongoing hypersensitivity state 
 
            because of exposure to TCE and that he would not expect to 
 
            find any long-term damage, although on the short-term, 
 
            claimant might have some increased cough or nasal congestion 
 
            as TCE does cause mild mucous membrane irritation.  He 
 
            further was of the belief that the exposure described to him 
 
            by claimant would not cause increased risk of infection and 
 
            that low back pain, upper back pain and shoulder pain were 
 
            consistent with claimant's previous history of 
 
            osteoarthritis, for which he had been treated.
 
            
 
                 Gregory A. Hicklin, M.D., testified by deposition on 
 
            January 26, 1988.  Dr. Hicklin is a pulmonary specialist and 
 
            is board certified in internal medicine and pulmonary 
 
            diseases and has certification pending in critical care.  He 
 
            saw claimant on July 10, 1986 and shortly thereafter issued 
 
            a report.  Claimant complained of previous symptoms of 
 
            dizziness, fatigue and the sensation of feeling cold.  He 
 
            also complained of previous pain in the chest on exertion, 
 
            headaches, blurred vision, weakness, sore joints, poor 
 
            memory, hearing difficulty, shortness of breath, diarrhea 
 
            and swelling, but had none of those symptoms at the time of 
 
            his examination, having in fact no complaints whatsoever.  
 
            Dr. Hicklin found claimant to show mild obstruction of the 
 
            smaller airways with complete normalization following 
 
            inhaled bronchial dilator, a pattern consistent with 
 
            bronchial asthma.  Bronchial asthma is a term that is 
 
            somewhat difficult to define, but Dr. Hicklin noted that the 
 
            American Thoracic Society's definition includes reversible 
 
            airways obstruction associated with bronchial 
 
            hyperreactivity.  Etiologies of that condition are best 
 
            divided into two major subgroups, intrinsic (no known 
 

 
            
 
            Page   7
 
            
 
            
 
            
 
            
 
            etiology) and extrinsic (thought to be mainly allergic).  
 
            Dr. Hicklin opined that claimant shows intrinsic bronchial 
 
            asthma, but further concluded that claimant shows no 
 
            evidence of permanent impairment.  He testified:
 
            
 
                 Q.  And, Doctor, what would you expect if there 
 
                 was permanent impairment, what findings would you 
 
                 expect to find?
 
            
 
                 A.  I would expect symptoms of shortness of 
 
                 breath, of course.  I would expect limitation of 
 
                 what he could do.  I would expect a decrease in 
 
                 his FEV-1 on his pulmonary function test, as 
 
                 reflecting a severity of his obstruction.  His 
 
                 FEV-1 was normal.  His obstruction was extremely 
 
                 mild.
 
            
 
                 I would expect some sort of functional impairment 
 
                 in that he couldn't do his job.
 
            
 
                 Q.  Now, Doctor, you indicated in your report that 
 
                 Mr. Kuehn avoid chemicals.  What's the rationale 
 
                 for that caution?
 
            
 
                 A.  Well, in bronchial asthma the airways are 
 
                 hyperreactive, and nonspecific irritants which may 
 
                 be perfume, cologne, hair spray.
 
            
 
                 Any odors can cause an acute exacerbation of his 
 
                 asthma.
 
            
 
                 Q.  Was the asthma that you diagnosed, Doctor, a 
 
                 result of the inhalation exposure to chemicals he 
 
                 told you about?
 
            
 
                 A.  I do not believe so.
 
            
 
                 Q.  And, by the same token, Doctor, the caution 
 
                 that he should stay away from certain chemicals, 
 
                 was that a caution because of the exposure that he 
 
                 told you about?
 
            
 
                 A.  No.  Anybody who has asthma that I see who has 
 
                 a substance that they think or feel makes the 
 
                 asthma worse, and has a strong odor to it, or an 
 
                 unpleasant odor to it, if it makes them worse they 
 
                 should stay away from it.
 
            
 
            (Dr. Hicklin deposition, page 15, line 2 through page 16, 
 
            line 9)
 
            
 
                 With respect to TCE and 140 exposure, Dr. Hicklin 
 
            testified that he would not expect any long-term impact 
 
            whatsoever from TCE, but benzene (Dr. Hicklin was then under 
 
            the mistaken impression that solvent 140 was benzene) could 
 
            increase the risk of leukemia and certain urinary tract 
 
            cancers.  He noted claimant's history of smoking ("a strong 
 
            irritant to the tracheal bronchial tree"), and that smoking 
 
            would exacerbate and may be the cause of claimant's asthma.
 
            
 

 
            
 
            Page   8
 
            
 
            
 
            
 
            
 
                 On cross-examination, Dr. Hicklin agreed that his 
 
            diagnosis of intrinsic bronchial asthma did not account for 
 
            claimant's complaints of headaches, blurred vision, 
 
            weakness, sore joints, poor memory, hearing problems, 
 
            dyspnea, diarrhea or edema, and that he had no diagnosis as 
 
            to the source of those complaints.
 
            
 
                 Jeffrey H. Mandel, M.D., testified by deposition on 
 
            September 30, 1988.  Dr. Mandel is employed by the Ramsey 
 
            Clinic in St. Paul, Minnesota, and is the section leader for 
 
            the Division of Occupational Medicine.  Occupational 
 
            medicine was described as the discipline of medicine that 
 
            deals with any injuries or illnesses resulting from the work 
 
            place setting.  Dr. Mandel was not formally trained in 
 
            toxicology, but has taken various courses in toxicology, was 
 
            in residency training in occupational medicine and 
 
            toxicology is a common application within his specialty of 
 
            occupational medicine.  Dr. Mandel is board certified in 
 
            internal medicine and occupational medicine.
 
            
 
                 Dr. Mandel saw claimant on June 22, 1988, for an 
 
            evaluation and an opinion as to whether his complaints were 
 
            causally related to solvent exposure.
 
            
 
                 Upon examination, claimant was found to have some 
 
            hyperpigmented lesions on the legs and some surgical scars 
 
            in the back and left flank.  Neither of those were seen as 
 
            relevant to claimant's solvent exposure and no other 
 
            abnormalities were detected, except for a slight decrease in 
 
            left ankle reflex (which may have been a residual from a 
 
            previous herniated disc).
 
            
 
                 Dr. Mandel concluded that claimant's history of 
 
            exposure to TCE and 140 had not left any detectable residual 
 
            abnormalities.
 
            
 
                 Dr. Mandel did not think claimant's complaints of 
 
            short-term memory problems were well substantiated.  He 
 
            agreed that TCE exposure could cause memory disturbances, 
 
            but felt that this would have to be in the context of a 
 
            massive exposure which would immediately create not only 
 
            memory problems but a whole series of neurologic 
 
            abnormalities.
 
            
 
                 When asked specifically whether, to a reasonable degree 
 
            of medical certainty, exposure to TCE or 140 either 
 
            aggravated or caused claimant's mild reactive airway 
 
            disease, Dr. Mandel opined that exposure to those chemicals 
 
            may have on a short-term basis aggravated preexisting 
 
            asthma, but that he knew of no data to support the claim 
 
            that ongoing asthmatic problems resulting from those 
 
            exposures would exist over the long term.  He further noted 
 
            that Dr. Thoman's impairment rating appeared to be primarily 
 
            based on subjective symptoms without much or anything in the 
 
            way of objective data.  With regard to memory disturbance, 
 
            he noted that accurate tests to exist to determine the 
 
            existence of memory abnormalities, but such had not been 
 
            performed in this case.
 
            
 
                 When asked if he had an opinion within a reasonable 
 

 
            
 
            Page   9
 
            
 
            
 
            
 
            
 
            degree of medical certainty as to whether claimant might 
 
            develop future disease processes as a result of his 
 
            exposures, he testified:
 
            
 
                 A.  I would say that it would be very difficult to 
 
                 answer that question with any sort of degree of 
 
                 accuracy.  Based on what I know about the 
 
                 chemicals that he was reportedly exposed to, and 
 
                 based on the fact that he has a normal physical 
 
                 examination and the testing that has been done, 
 
                 including blood tests, cardiology tests, and so 
 
                 forth, I see no reason to think that he is at any 
 
                 particular risk for developing problems subsequent 
 
                 to those exposures.  I might also point out that 
 
                 in my opinion, again from an epidemiologic 
 
                 standpoint, it would be extremely difficult, if 
 
                 not impossible, to speculate on which person would 
 
                 develop diseases following those types of 
 
                 exposures.
 
            
 
                 Q.  Doctor, based on all the information and data, 
 
                 both your own background and what you have been 
 
                 provided, including your examination of Mr. Kuehn, 
 
                 is there any reason to believe that he is at risk 
 
                 for any subsequent disease as a result of the 
 
                 exposure that he described?
 
            
 
                 A.  Not that I can think of.
 
            
 
            (Dr. Mandel deposition, page 29, line 13 through page 30, 
 
            line 7)
 
            
 
                 Claimant's records were also reviewed by Richard 
 
            Kingston, Pharm.D., Director and Staff Clinical Toxicologist 
 
            of the Minnesota Regional Poison Center and Assistant 
 
            Professor at the University of Minnesota.  He wrote on 
 
            September 11, 1987 that the poison center receives numerous 
 
            reports each year of patients inadvertently developing acute 
 
            toxic symptoms after using industrial or consumer products 
 
            containing TCE.  He had yet to see any patient claim 
 
            long-term residual damage as a result of those exposures.  
 
            Symptoms in these cases were described as usually 
 
            self-limiting and quickly subsiding when excessive exposure 
 
            was terminated.  Kingston indicated that he was unaware of 
 
            any report in the medical literature suggesting that TCE 
 
            causes asthma.
 
            
 
                                conclusions of law
 
            
 
                 It is claimant's burden to establish by a preponderance 
 
            of the evidence that he sustained an injury or has developed 
 
            an occupational disease arising out of and in the course of 
 
            his employment with Fischer Controls.  McDowell v. Town of 
 
            Clarksville, 241 N.W.2d 904 (Iowa 1976).
 
            
 
                 The injury must both arise out of and be in the course 
 
            of the employment.  Crowe v. DeSoto Consol. Sch. Dist., 246 
 
            Iowa 402, 68 N.W.2d 63 (1955) and cases cited at pp. 405-406 
 
            of the Iowa Report.  See also Sister Mary Benedict v. St. 
 
            Mary's Corp., 255 Iowa 847, 124 N.W.2d 548 (l963) and Hansen 
 

 
            
 
            Page  10
 
            
 
            
 
            
 
            
 
            v. State of Iowa, 249 Iowa 1147, 91 N.W.2d 555 (1958).
 
            
 
                 The words "out of" refer to the cause or source of the 
 
            injury.  Crowe v. DeSoto Consol. Sch. Dist., 246 Iowa 402, 
 
            68 N.W.2d 63 (1955). 
 
            
 
                 "An injury occurs in the course of the employment when 
 
            it is within the period of employment at a place the 
 
            employee may reasonably be, and while he is doing his work 
 
            or something incidental to it."  Cedar Rapids Comm. Sch. 
 
            Dist. v. Cady, 278 N.W.2d 298 (Iowa 1979), McClure v. Union 
 
            et al. Counties, 188 N.W.2d 283 (Iowa 1971); Musselman v. 
 
            Central Telephone Co., 261 Iowa 352, 154 N.W.2d 128 (1967). 
 
            
 
                 The supreme court of Iowa in Almquist v. Shenandoah 
 
            Nurseries, 218 Iowa 724, 731-32, 254 N.W. 35, 38 (1934) 
 
            discussed the definition of personal injury in workers' 
 
            compensation cases as follows:
 
            
 
                 While a personal injury does not include an 
 
                 occupational disease under the Workmen's 
 
                 Compensation Act, yet an injury to the health may 
 
                 be a personal injury.  [Citations omitted.]  
 
                 Likewise a personal injury includes a disease 
 
                 resulting from an injury....The result of changes 
 
                 in the human body incident to the general 
 
                 processes of nature do not amount to a personal 
 
                 injury.  This must follow, even though such 
 
                 natural change may come about because the life has 
 
                 been devoted to labor and hard work.  Such result 
 
                 of those natural changes does not constitute a 
 
                 personal injury even though the same brings about 
 
                 impairment of health or the total or partial 
 
                 incapacity of the functions of the human body. 
 
            
 
                    ....
 
                 
 
                 A personal injury, contemplated by the Workmen's 
 
                 Compensation Law, obviously means an injury to the 
 
                 body, the impairment of health, or a disease, not 
 
                 excluded by the act, which comes about, not through the 
 
                 natural building up and tearing down of the human body, 
 
                 but because of a traumatic or other hurt or damage to 
 
                 the health or body of an employee.  [Citations 
 
                 omitted.]  The injury to the human body here 
 
                 contemplated must be something, whether an accident or 
 
                 not, that acts extraneously to the natural processes of 
 
                 nature, and thereby impairs the health, overcomes, 
 
                 injures, interrupts, or destroys some function of the 
 
                 body, or otherwise damages or injures a part or all of 
 
                 the body.
 
            
 
                 The claimant has the burden of proving by a 
 
            preponderance of the evidence that the injury "up to 
 
            January, 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 
 

 
            
 
            Page  11
 
            
 
            
 
            
 
            
 
            (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).
 
            
 
                 Claimant developed symptomatology in early 1984, and 
 
            then again after exposures in October and November of that 
 
            year.  He has not established that he missed work resulting 
 
            from any of these exposures, and for that reason has failed 
 
            to establish entitlement to temporary total disability 
 
            benefits under Iowa Code sections 85.32 and 85.33 or healing 
 
            period benefits under 85.34(1).
 
            
 
                 The major dispute in this case is whether claimant has 
 
            established an occupational disease or injury resulting in 
 
            permanent disability.  Occupational diseases are defined in 
 
            Iowa Code section 85A.8 as follows:
 
            
 
                 Occupational diseases shall be only those diseases 
 
                 which arise out of and in the course of the 
 
                 employee's employment.  Such diseases shall have a 
 
                 direct causal connection with the employment and 
 
                 must have followed as a natural incident thereto 
 
                 from injurious exposure occasioned by the nature 
 
                 of the employment.  Such disease must be 
 
                 incidental to the character of the business, 
 
                 occupation or process in which the employee was 
 
                 employed and not independent of the employment.  
 
                 Such disease need not have been foreseen or 
 
                 expected but after its contraction it must appear 
 
                 to have had its origin in a risk connected with 
 
                 the employment and to have resulted from that 
 
                 source as an incident and rational consequence.  A 
 
                 disease which follows from a hazard to which an 
 
                 employee has or would have been equally exposed 
 
                 outside of said occupation is not compensable as 
 
                 an occupational disease.
 
            
 
                 A condition may be an occupational disease or an 
 
            injury, but not both.  See, as persuasive authority, Hoffman 
 
            v. Second Injury Fund of Iowa, file numbers 831136 and 
 
            869798 (Arb. Decn., August 10, 1990).  However, in either 
 
            case, this writer is of the view that claimant has failed to 
 
            establish any permanent condition causally connected to the 
 
            employment.
 
            
 
                 There is obviously a dispute in the medical evidence on 
 

 
            
 
            Page  12
 
            
 
            
 
            
 
            
 
            this issue.  Dr. Thoman, board certified in clinical 
 
            toxicology, has opined that claimant sustained physical 
 
            impairment as the result of his exposures to TCE and 140, 
 
            pointing out that certain organ systems may be altered by 
 
            toxic exposure and that sensitization due to previous 
 
            exposure may be boosted.  In particular, Dr. Thoman pointed 
 
            out that claimant's symptomatology in early 1984 and again 
 
            in October and November was consistent with such exposure.  
 
            However, Dr. Thoman conceded that claimant demonstrated no 
 
            objective evidence of impairment whatsoever, except for 
 
            abnormal spirometry and methacholine challenge tests, and 
 
            agreed that this condition can be brought on by a history of 
 
            cigarette smoking.  As has been seen, claimant has a 
 
            substantial history of heavy cigarette smoking.
 
            
 
                 Dr. Zorn and Dr. Hicklin, both board certified in 
 
            internal medicine and pulmonary medicine, believe that 
 
            claimant's mild or minimal airway obstruction or disease, 
 
            the only objective sign of impairment, was probably caused 
 
            by cigarette smoking (Dr. Zorn) or would be exacerbated and 
 
            possibly caused by smoking (Dr. Hicklin).  Dr. Hicklin 
 
            further opined that claimant's reversible airway obstruction 
 
            associated with bronchial hyperreactivity was of no known 
 
            etiology.  Dr. Mandel, board certified in internal and 
 
            occupational medicine, concluded that claimant's history of 
 
            exposure to TCE and 140 had not left any detectable residual 
 
            abnormalities and knew of no data to support the claim that 
 
            ongoing asthmatic problems, as opposed to temporary 
 
            aggravation, resulted from exposure to TCE or 140.  Dr. Zorn 
 
            also was unaware of any evidence to support a chronic 
 
            asthmatic state induced by a transient exposure to TCE and 
 
            Dr. Hicklin indicated that he would not expect any long-term 
 
            impact whatsoever from TCE (benzene might increase the risk 
 
            of leukemia and certain urinary tract cancers, but claimant 
 
            has shown no sign of these diseases).  Dr. Thoman believes 
 
            the medical literature to cite case histories "which talk 
 
            about irreversible problems of this nature," but appeared to 
 
            be referring to depression of the central nervous system, 
 
            rather than reversible airways disease.
 
            
 
                 While the physicians generally believe that claimant 
 
            should be protected from further exposure to solvents, the 
 
            evidence does not establish a heightened sensitivity to such 
 
            exposure causally related to the previous exposures.  No 
 
            objective testing of claimant's current degree of 
 
            sensitivity appears of record.  With all due respect to Dr. 
 
            Thoman's learned opinion, the greater weight of 
 
            authoritative medical opinion is to the contrary.  While 
 
            claimant may have sustained damage to various organ systems, 
 
            it cannot be objectively measured at this time.  Claimant 
 
            has not shown that his reactivity to solvents has been 
 
            heightened by the previous exposures and his only 
 
            impairment, mild or minimal reversible airways obstruction 
 
            and bronchial hyperreactivity, are believed by pulmonary 
 
            specialists to be related to his extensive history of 
 
            cigarette smoking or of unknown etiology (but aggravated and 
 
            possibly caused by smoking).
 
            
 
                 Claimant in this decision is found to have sustained an 
 
            injury, even though he has not established entitlement to 
 

 
            
 
            Page  13
 
            
 
            
 
            
 
            
 
            temporary or permanent disability.  Nonetheless, Dr. 
 
            Thoman's view may prove to be correct and evidence of organ 
 
            system impairment may develop at a later time.
 
            
 
                 Since claimant has at this time failed to establish any 
 
            permanent impairment, it cannot be said that he suffers from 
 
            an occupational disease.  Nonetheless, Dr. Thoman's view 
 
            that his transient symptoms were causally related to solvent 
 
            exposures stands unrebutted and is persuasive.  Thus, 
 
            claimant has established that he sustained an injury arising 
 
            out of and in the course of his employment.  Those transient 
 
            exposures caused claimant to incur medical expense in the 
 
            search for a diagnosis (which was eventually successful, 
 
            since Dr. Thoman recommended that he be isolated from 
 
            further solvent exposure) and such expenses are compensable 
 
            under Iowa Code section 85.27.
 
            
 
                 Thus, it is necessary to consider the affirmative 
 
            defenses raised by defendants under Iowa Code sections 85.23 
 
            and 85.26.
 
            
 
                 Some of claimant's medical expenses were incurred well 
 
            before either of the two substantial exposures in late 1984.  
 
            As will be recalled, defendants stipulated to liability for 
 
            the medical expenses attached to claimant's petition if the 
 
            injury is found compensable.  Yet, there was no diagnosis 
 
            indicating to claimant that he may have suffered an 
 
            injurious exposure to solvents (even if only transient in 
 
            nature) until Dr. Thoman was seen on November 21, 1984.  
 
            Iowa has adopted a discovery rule with respect to these 
 
            defenses.  Jacques v. Farmer's Lumber & Supply Co., 242 Iowa 
 
            548, 47 N.W.2d 236 (1951).  The 90-day time period for 
 
            giving notice does not begin until the worker should know 
 
            his injury is both serious and work connected.  Robinson v. 
 
            Dep't of Transp., 296 N.W.2d 809 (Iowa 1980).  The same test 
 
            applies with respect to the two-year statute of limitations 
 
            set forth in section 85.26.  Orr v. Lewis Cent. School 
 
            Dist., 298 N.W.2d 256 (Iowa 1980).  A reasonable person 
 
            standard is to be applied, taking into account the 
 
            intelligence and education of the worker.  Robinson, supra.  
 
            This observer does not believe a reasonable person would 
 
            have recognized claimant's symptomatology in 1984 was 
 
            causally related to the work absent medical advice.  In this 
 
            case, such medical advice could not have come before 
 
            claimant first saw Dr. Thoman.  Because the petition in this 
 
            case was filed within two years from that first visit, the 
 
            statute of limitations defense under Iowa Code section 85.26 
 
            must fail.  Dr. Thoman wrote to defendants on December 20, 
 
            1984 to advise that claimant was currently a toxicology 
 
            patient and it would be in his best interests to work in an 
 
            environment free from chemical pollution.  While it is a 
 
            close question as to whether this constitutes adequate 
 
            notice of the occurrence of an injury, this observer 
 
            believes on balance that the test is met.  The fact that 
 
            claimant was a toxicology patient combined with a 
 
            recommendation that he be removed from chemicals should have 
 
            been sufficient to put defendants on notice of a possible 
 
            causal relationship between such exposures and claimant's 
 
            status as a toxicology patient.  Therefore, the notice 
 
            defense under section 85.23 also fails.
 

 
            
 
            Page  14
 
            
 
            
 
            
 
            
 
            
 
                                      order
 
            
 
                 THEREFORE, IT IS ORDERED:
 
            
 
                 Defendants shall pay Dr. Thoman's charges for treatment 
 
            and the medical expenses listed in the attachment to 
 
            claimant's petition as per their stipulation at hearing.
 
            
 
                 The costs of this action shall be assessed to 
 
            defendants pursuant to Division of Industrial Services Rule 
 
            343-4.33.
 
            
 
                 Signed and filed this ______ day of ____________, 1990.
 
            
 
                 
 
            
 
                 
 
                 
 
                                          ______________________________
 
                                          DAVID RASEY
 
                                          DEPUTY INDUSTRIAL COMMISSIONER
 
            
 
            Copies To:
 
            
 
            Mr. William D. Baker
 
            Mr. David R. Elkin
 
            Attorneys at Law
 
            315 East Fifth Street
 
            Suite 5
 
            Des Moines, Iowa  50309
 
            
 
            Mr. E. J. Giovannetti
 
            Attorney at Law
 
            Suite 111, Terrace Center
 
            2700 Grand Avenue
 
            Des Moines, Iowa  50312
 
            
 
            
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                               1108.30, 1402.60, 2205
 
                                               2401, 2402, 2801
 
                                               Filed September 17, 1990
 
                                               DAVID RASEY
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            RONALD KUEHN,                 :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :         File No. 814538
 
                                          :
 
            FISHER CONTROLS               :      A R B I T R A T I O N
 
            INTERNATIONAL, INC.,          :
 
                                          :         D E C I S I O N
 
                 Employer,                :
 
                                          :
 
            and                           :
 
                                          :
 
            CIGNA INSURANCE COMPANIES,    :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ____________________________________________________________
 
            
 
            1108.30, 1402.60, 2205
 
            In toxic exposure case, claimant failed to show temporary or 
 
            permanent disability, but was awarded medical expenses.
 
            
 
            2401, 2402
 
            In toxic exposure case, discovery rule was applied from date 
 
            of diagnosis.
 
            
 
            2801
 
            Notice in toxic exposure case was held (barely) sufficient 
 
            where physician advised employer that claimant was a 
 
            toxicology patient and should be placed in an environment 
 
            free from chemical pollution.
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                       BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         ROGER SCRIVEN,
 
         
 
             Claimant,
 
         VS.
 
                                                 File No. 736203
 
         WILSON FOODS CORPORATION,
 
         
 
              Employer,
 
         
 
              Self-Insured,
 
              Defendant.
 
         _______________________________
 
         
 
         ROGER L. SCRIVEN,
 
         
 
              Claimant,
 
         
 
         VS.
 
                                                 File No. 773539
 
         CEDAR RAPIDS MEATS,
 
                                                  A P P E A L
 
         Employer,
 
                                                  R U L I N G
 
         and
 
         
 
         SENTRY INSURANCE
 
         
 
              Insurance Carrier,
 
              Defendant.
 
         _______________________________
 
         
 
         ROGER L. SCRIVEN,
 
         
 
              Claimant,
 
         
 
         VS.
 
         
 
         FARMSTEAD FOODS,
 
                                                 File No. 814542
 
         
 
              Employer,
 
         
 
         and
 
         
 
         SENTRY INSURANCE,
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
         SCRIVEN V. WILSON FOODS CORP/CEDAR RAPIDS MEATS/FARMSTEAD FOODS 
 
         Page 2
 
                                                
 
                                                         
 
         
 
         
 
              Rule 500-4.27 states in part: "No appeal shall be separately 
 
         taken under this or 4.25 (17A, 86) from an interlocutory 
 
         decision, order or ruling of a deputy industrial commissioner.  A 
 
         decision, order or ruling is interlocutory if it does not dispose 
 
         of the contested case."
 
         
 
              The ruling filed June 2, 1987 which is the subject matter of 
 
         this appeal is not dispositive of the contested case and 
 
         therefore interlocutory.
 
         
 
         THEREFORE, the appeal filed July 16, 1987 is hereby dismissed.
 
         
 
         Signed and filed this 28th day of July, 1987.
 
         
 
         
 
         
 
         
 
                                            DAVID E. LINQUIST
 
                                            ACTING INDUSTRIAL 
 
                                            COMMISSIONER
 
         
 
         Copies To:
 
         
 
         Mr. Thomas B. Read
 
         Attorney at Law
 
         1710 IE Tower
 
         Cedar Rapids, Iowa 52401
 
         
 
         Mr. Harry W. Dahl
 
         Attorney at Law
 
         974 73rd St., Suite 16
 
         Des Moines, Iowa 50312
 
         
 
         Mr. John M. Bickel
 
         Attorney at Law
 
         500 MNB Bldg.
 
         P.O. Box 2107
 
         Cedar Rapid, Iowa 52406