Page 1 before the iowa industrial commissioner ____________________________________________________________ : ROBERT C. STOUFFER, : : Claimant, : : vs. : : File No. 814736 SWIFT INDEPENDENT PACKING : COMPANY, : A P P E A L : Employer, : D E C I S I O N : and : : NATIONAL UNION FIRE : INSURANCE COMPANY, : : Insurance Carrier, : Defendants. : ___________________________________________________________ statement of the case Claimant appeals from an arbitration decision denying claimant temporary total benefits and industrial disability benefits for an alleged mental injury on November 23, 1984. The record on appeal consists of the transcript of the arbitration hearing and joint exhibits 1 through 33. Both parties filed briefs on appeal. issue The issue on appeal is whether or not claimant suffered a compensable injury? review of the evidence The arbitration decision filed May 18, 1989 adequately and accurately reflects the pertinent evidence and it will not be reiterated herein. applicable law The citations of law in the arbitration decision are appropriate to the issue and evidence. analysis The issue to be resolved is whether or not claimant suffered a compensable injury. In order to prevail, claimant must prove that he suffered an injury which arose out of and in the course of his employment. Recent agency precedent lays out the frame work necessary to determine whether claimant suffered a Page 2 mental-mental injury that arose out of and in the course of his employment. The standard for determining whether a mental injury arose out of and in the course of employment was discussed in Ohnemus v. John Deere Davenport Works, (Appeal Decision, February 26, 1990). In order to prevail claimant must prove that he suffered a non-traumatically caused mental injury that arose out of and in the course of his employment. This matter deals with what is referred to as a mental-mental injury and does not deal with a mental condition caused by physical trauma or a physical condition caused by mental stimulus. The supreme court in Schreckengast v. Hammer Mills, Inc., 369 N.W.2d 809 (Iowa 1985), recognized that issues of causation can involve either causation in fact or legal causation. As stated in footnote 3 at 369 N.W.2d 810: We have recognized that in both civil and criminal actions causation in fact involves whether a particular event in fact caused certain consequences to occur. Legal causation presents a question of whether the policy of the law will extend responsibility to those consequences which have in fact been produced by that event. State v. Marti, 290 N.W.2d 570, 584-85 (Iowa 1980). Causation in fact presents an issue of fact while legal causation presents an issue of law. Id. That language was the basis of the language in Desgranges v. Dept of Human Services, (Appeal Decision, August 19, 1988) which discussed that there must be both medical and legal causation for a nontraumatic mental injury to arise out of and in the course of employment. While Desgranges used the term medical causation the concept involved was factual causation. Therefore, in this matter it is necessary for two issues to be resolved before finding an injury arising out of and in the course of employment - factual and legal causation. Proving the factual existence of an injury may be accomplished by either expert testimony or nonexpert testimony. Page 3 .... Not only must claimant prove that his work was the factual cause of his mental injury, claimant must also prove that the legal cause of his injury was his work. In order to prove this legal causation claimant must prove that his temporary mental condition "resulted from a situation of greater dimensions than the day to day mental stresses and tensions which all employees must experience." Swiss Colony v. Department of ICAR, 240 N.W.2d 128, 130 (Wisc. 1976). Williams Kostelac v. Feldman's, Inc., Appeal Decision, June 13, 1990. First, the claimant must prove factual causation between his alleged mental injury and his employment. Craig Rypma, Ph.D., treated claimant for his depression. Dr. Rypma is a clinical psychologist. Even if Dr. Rypma were a physician, his opinion of causation was not based upon full medical information. Dr. Rypma did not know that Orville Jacobs, M.D., treated claimant in 1977. Dr. Rypma was informed during his deposition that claimant was on antidepressive medication in the past. Dr. Rypma testified that this fact would be significant and would be a factor to consider in determining causation. Claimant was treated by Kelly S. Bast, M.D. Dr. Bast is a family practitioner. Dr. Bast testified that medical causation existed between claimant's work and his alleged mental injury. Dr. Bast testified, however, that a psychiatrist would have greater expertise in evaluating a psychological disorder than a family practitioner. Claimant was examined twice by Michael Taylor, M.D., a psychiatrist. In a December 6, 1985 report, Dr. Taylor stated that the issue of causation was not clear cut. At his deposition, Dr. Taylor was informed that claimant had been treated by Dr. Jacobs and that claimant had been taking antidepressive medication during that time. Dr. Taylor testified in response to questions by defendants' counsel: Q. Now, Dr. Taylor, do you have an opinion, based upon a reasonable degree of psychiatric certainty, as to whether Mr. Stauffer's [sic] need for treatment and present inability to work in a stressful environment is a direct result of his depressive disorder which arose independently of his employment with Swift Independent Packing Company, or whether it is a direct result of the conditions of his employment with Swift Independent Packing Company? A. Yes. Page 4 Q. What is your opinion? A. His current difficulties are a result of his depressive illness which arose independently of any employment situation. Q. And that is a biochemical disorder? A. Yes. Q. When we say "biochemical disorder," how would you explain that to a layman? A. We know that there are changes that take place in the chemistry of certain areas of the central nervous system in people who suffer from this disorder. The chemicals are chemicals which are important in the transmission of the electrical impulses within the brain, which is the basis for everything we do. (Deposition of Michael Taylor, Exhibit 10, pages 24-25) Claimant failed to prove factual causation between his alleged mental injury and his work. Dr. Rypma, is a psychologist, not a physician. Even if Dr. Rypma was a physician, his opinion of causation was based upon incomplete medical records. Kelly S. Bast, M.D., a family practitioner, testified as to causation between claimant's alleged mental injury and his work. In addition, Dr. Bast testified that a psychiatrist would have greater expertise to evaluate a psychological disorder than a family practitioner. Dr. Taylor, after learning that claimant had been treated in the past with antidepressants, testified that claimant's depression was the result of a biochemical condition and not the result of his employment. Dr. Taylor is a physician and a psychiatrist. Therefore, his opinion as to factual causation is given greater weight. Claimant failed to prove factual causation between his employment and his alleged mental injury. Even if claimant sustained his burden of proof and established factual causation, claimant still has the burden of proving that there is legal causation between claimant's work and his alleged mental injury. In order to prove this legal causation claimant must prove that his temporary mental condition "resulted from a situation of greater dimensions than the day to day mental stresses and tensions which all employees must experience." Swiss Colony v. Department of ICAR, 240 N.W.2d 128, 130 (Wisc. 1986). Ohnemus v. John Deere Davenport Works, Appeal Decision, February 26, 1990. Claimant returned to work with defendant employer in December of 1980. During this time, claimant worked long hours with little breaks. In 1981 claimant did not receive Page 5 a raise he was expecting. Claimant testified that his supervisor told him that Swift was a young man's plant and suggested that claimant look for other work. In October 1981, claimant was publicly reprimanded and demoted for an incident on the kill floor to the receiving department. Claimant became a grey hat which is a management support position. Claimant's pay did not decrease. Claimant did not receive a raise nor was he allowed to work overtime while a grey hat. Claimant was still being paid a blue hat rate while working as a grey hat. Claimant worked in receiving from 1981 until 1984. Claimant testified that he liked his job in receiving. In 1984 claimant was promoted to a blue hat position in the hide department. Part of claimant's responsibilities included record keeping. Claimant had a difficult time accurately completing his assignments as he made errors in composing numbers and errors in mathematics. In October 1984, claimant was passed over for a promotion in the hide cellar and a person who he had trained was promoted. Changes were implemented in the department during this time. Claimant's personnel file contained references in November 1984 to claimant's attitude and his inability to get along with his new supervisor. Claimant's supervisor noted incidents in November 1984 where claimant failed to properly complete his job. On November 23, 1984 claimant was demoted to grey hat, was transferred to another area, and received a pay decrease as a result of his work performance. Claimant was upset by the turn of events and sought a week's vacation which was denied. Claimant did not return to work with the defendant employer. Dr. Taylor testified at his deposition concerning the events prior to claimant's demotion. Claimant's attorney posed the following question: Q. So in your view then, what he perceived as broken promises regarding promotions and raises would not have any bearing on his symptoms? A. Mr. Stouffer, because of his depression, was susceptible to being more upset by those sorts of things than he would have been had he not been depressed. (Dep., Dr. Taylor, p. 41) Claimant testified that he had trouble sleeping and did not eat normally during August and September 1984. Claimant testified that in the middle of November 1984 that he had a difficult time functioning and felt "owly" with his children. Claimant had family problems throughout 1984. Claimant's sister-in-law was diagnosed with a brain tumor in March of 1984. Claimant' wife testified that the news upset the entire family. Claimant failed to prove that the mental stress that he suffered from on November 23, 1984 is greater than that of normal work life. A demotion may be a stressful situation, Page 6 however, it is the type of situation which is a common part of the workplace. Claimant's personnel file indicates that claimant had been making errors in his job and had a difficult time working with his supervisor. Evidence appears to support claimant's demotion. Incidents that occurred in 1981 which included a public reprimand by claimant's supervisor and working overtime are too remote in time to be considered factors in claimant's alleged disability. In addition, evidence exists that claimant's home life was stressful. Claimant was having trouble sleeping and was upset over the news that his sister-in-law had brain cancer. Claimant failed to prove factual causation between his alleged mental injury and his employment. Claimant failed to meet his burden of proof that his employment caused greater stress than normal employment life and was the legal cause of a mental injury. Therefore, claimant failed to prove that he suffered an injury which arose out of and in the course of his employment with defendants on November 23, 1984. findings of fact 1. Claimant was born November 29, 1935. The majority of claimant's work experience was in the meat packing business. 2. Claimant was treated by Orville Jacobs, M.D., in 1978 for anxiety and depression. Dr. Jacobs prescribed antidepressant medication for these conditions which evidence that claimant has endogenous depression or a mental depression caused by a chemical imbalance in the brain which can only be adequately treated by long-term medication over a period of several months. 3. Claimant was rehired at Swift in December 1980 when the plant reopened. Claimant was required to work overtime during the start up period. 4. In 1981 claimant was publicly reprimanded and demoted from a supervisory position to an assistant supervisory position in the receiving department. Claimant did not receive a pay cut when he was demoted, however, claimant did not receive raises nor was he allowed to work overtime as he made more money than the other grey hats. 5. Claimant enjoyed working in the receiving department and remained there until 1984 when he was offered a promotion to blue hat in the hide department. 6. In 1984 claimant began working in the hide department. Claimant experienced difficulties accurately completing the paperwork involved with his job. 7. Claimant was passed over for a promotion in the hide department. A person claimant trained in the hide department was given the promotion and implemented changes in department procedure. Page 7 8. Claimant's personnel file contains memoranda accounting claimant's attitude and inability to get along with his supervisor in the beginning of November 1984. Additional memoranda refer to errors claimant made in loading shipments and failure to report mechanical malfunctions. 9. On November 23, 1984, claimant was demoted from a blue hat supervisor to a grey hat in the purchasing department which would result in a cut of pay and loss of status as a result of his inadequate job performance while a supervisor in the hide department. 10. Claimant reacted adversely to the demotion and requested a vacation which was denied by his employer. 11. Claimant testified that he experienced loss of appetite and loss of sleep during August and September of 1984. Dr. Taylor testified that loss of sleep and appetite are among the symptoms a person experiences when he or she suffers from depression. 12. Dr. Taylor testified that claimant's depression was the result of a biochemical imbalance. Claimant's depressive disorder was not the result of his employment. 13. Dr. Taylor is a physician and a psychiatrist. Dr. Taylor's diagnosis of a biochemical imbalance which resulted in claimant's depression is given greater weight. 14. Claimant's employment was not the factual cause of claimant's depression. 15. The mental work stress and tensions claimant experiences during his employment with defendant employer were not greater than the day to day mental stresses and tensions which all employees must experience. 16. Claimant's mental condition was not the result of a work injury. conclusion of law Claimant failed to prove that he suffered a mental injury that arose out of and in the course of his employment on November 23, 1984. WHEREFORE, the decision of the deputy is affirmed. order THEREFORE, it is ordered: That claimant take nothing from this proceeding. That claimant pay the cost of this action including the cost of transcribing the arbitration hearing. Signed and filed this ____ day of December, 1990. Page 8 ________________________________ CLAIR R. CRAMER ACTING INDUSTRIAL COMMISSIONER Page 9 Copies To: Mr. Wendell J. Harms Attorney at Law 4215 Hubbell Avenue Des Moines, Iowa 50317-4507 Mr. Richard G. Book Attorney at Law 500 Liberty Building Des Moines, Iowa 50309-2421 1108.20 Filed December 20, 1990 LPW Clair R. Cramer before the iowa industrial commissioner ____________________________________________________________ : ROBERT C. STOUFFER, : : Claimant, : : vs. : : File No. 814736 SWIFT INDEPENDENT PACKING : COMPANY, : A P P E A L : Employer, : D E C I S I O N : and : : NATIONAL UNION FIRE : INSURANCE COMPANY, : : Insurance Carrier, : Defendants. : ___________________________________________________________ 1108.20 In order to prevail on a claim for a mental-mental injury, claimant must prove that he sustained an injury which arose out of and in the course of his employment with defendants. First, claimant must prove factual causation between his employment and his alleged injury. Michael Taylor, M.D., testified that claimant suffered from a biochemical disorder. Claimant failed to prove factual causation. Even if claimant had established factual causation, claimant failed to prove legal causation. In order to prove legal causation, claimant must prove greater stress and tension then all employees experience. Ohnemus v. John Deere Davenport Works, Appeals Decision, February 26, 1990. Claimant was demoted on November 23, 1984. Evidence appears to support claimant's demotion. In addition, evidence exists that claimant's home life was stressful. Claimant failed to prove legal causation between his alleged injury and his employment. Therefore, claimant failed to prove that he suffered an injury which arose out of and in the course of his employment with defendants on November 23, 1984. BEFORE THE IOWA INDUSTRIAL COMMISSIONER ROBERT C. STOUFFER, Claimant, File No. 814736 VS. A R B I T R A T I 0 N INDEPENDENT PACKING CO.,: : D E C I S I 0 N Employer, and NATIONAL UNION FIRE INSURANCE : COMPANY, : Insurance Carrier, : Defendants. STATEMENT OF THE CASE This is a proceeding in arbitration brought by Robert C. Stouffer, claimant, against Swift Independent Packing Company, employer (hereinafter referred to as Swift), and National Union Fire Insurance Company, insurance carrier, defendants, for workers' compensation benefits as a result of an alleged injury on November 23, 1984. on July 21, 1988, a hearing was held on claimant's petition and the matter was considered fully submitted at the close of this hearing. The parties have submitted a prehearing report of contested issues and stipulations which was approved and accepted as a part of the record of this case at the time of hearing. Oral testimony was received during the hearing from claimant and the following witnesses: Robert Harris, Carol Von Stein, Sheryl Stouffer, Stanford Wells and Frank Walker. The exhibits received into the evidence at the hearing are listed in the prehearing report. According to the prehearing report, the parties have stipulated that at the time of the alleged injury, claimant was employed by Swift. ISSUES The parties submitted the following issues for determination in this proceeding: I. Whether claimant received an injury arising out of and in the course of his employment at Swift; STOUFFER V. SWIFT INDEPENDENT PACKING CO. Page 2 II. Whether there is a causal relationship between the alleged work injury and the claimed disability; III. The extent of claimant's entitlement to weekly benefits for disability; and, IV. The extent of claimant's entitlement to medical benefits. STATEMENT OF FACTS The following is a brief statement highlighting some of the more pertinent evidence presented. Whether or not specifically referred to in this statement, all of the evidence received at the hearing was independently reviewed and considered in arriving at this decision. Any conclusions about the evidence received contained in the following statement should be viewed as preliminary findings of fact. Claimant testified that he worked for Swift on two occasions. Between 1964 and 1979, he worked for Swift & Company, a predecessor company to Swift Independent. The plant operated by Swift & Company closed in 1979 and claimant's job at the time was a utility man on the kill floor. Claimant said that he was told that he would be foreman a few months before the plant closed but Jerry McKinney was hired instead of him. Claimant testified that he had a heated argument with McKinney before the plant closed but he could not remember as to what precipitated the argument. Claimant was hired as a plant superintendent with Des Moines Packing Company after he left Swift in 1979. Claimant testified that he worked very long hours in this management job. He stated that he sought medical treatment during this time for high blood pressure and exhaustion. Claimant said that he was discharged by the owners from this job for the reason that he was doing too much physical work in the plant. Claimant stated that the actual reason was that he disagreed with an operational change proposed by the owners concerning the butchering of cattle rather than swine. After claimant was fired, claimant stated that he was hired in September 1980, to return to a new company called Swift Independent which was opening a new plant. Claimant testified that he was hired by Jerry McKinney who was the slaughter superintendent, as a "blue hat" or a supervisor for waste water treatment. It should be noted that the Swift Independent plant had three different colored hats which depicted status. A blue hat denotes a supervisor. A grey hat indicates that the person is management support. A white hat denotes an hourly employee. STOUFFER V. SWIFT INDEPENDENT PACKING CO. Page 3 Initially, claimant testified that he was required to work unusually long hours as a waste water supervisor and as a trainer of personnel on the kill floor. Most of the employees testified in this case that claimant, along with other supervisors, put in very long days during the initial start up of the plant. Supervisors were expected at that time to not only supervise, but fill in where needed on the line and cleanup during breaks. Claimant said that he had few, if any, breaks during this period of time. Claimant testified that he was promised regular raises by Superintendent McKinney. Claimant's immediate supervisor at this time was Ray Estep, the general foreman. Estep, who is no longer employed by Swift, testified that claimant was a good employee but he had problems with Jerry McKinney for some reason unknown to him. Claimant testified that he did not receive his raises and was informed of this fact by Estep during one of their regular beer stops one day after work. Estep stated that he did not have a problem with claimant's performance but McKinney did have such a problem. Estep admitted in his testimony that he told claimant that Swift was looking for young, aggressive types rather than claimant. Estep also warned claimant that he may have problems in the future and should considered alternative employment. Sometime in 1981, McKinney became upset with claimant while claimant was working in the kill area and publicly reprimanded him. Claimant said that he was blamed for a problem with the hide pulling machines. Estep testified that he was not present or involved in this incident. Claimant said that McKinney publicly humiliated him by taking away his "blue hat" and handing him a grey one. McKinney testified that claimant was weak in supervision at the time and not sufficiently aggressive. He felt that a change was necessary. McKinney stated that he discussed these problems with Estep before the demotion but Estep denies this. However, McKinney stated that claimant was not demoted in pay, only in his responsibility. Sometime after he was demoted, claimant was transferred by McKinney to the receiving department as a grey hat or management support person in that area. Claimant again received no pay reduction from the transfer and worked along side other grey hats in the area. McKinney testified that claimant was happy about the transfer and claimant testified that he was glad to be out of McKinney's area. Claimant worked in the receiving department operating a forklift and loading and unloading trucks over the next few years. Claimant's superiors in the area were satisfied with his performance in his.job. Fellow employees who knew him when claimant was a blue hat said that claimant felt that he was treated unfairly by McKinney on the demotion. Claimant also felt that he was treated unfairly by management in the STOUFFER V. SWIFT INDEPENDENT PACKING CO. Page 4 receiving department because he never received raises or a chance to work overtime. Receiving department management testified that claimant was being paid more than the other grey hats in the area for doing the same work and they wanted to equalize the pay as much as possible. McKinney then left for another management position in the Swift Company and he was replaced by Stanford Wells. Wells testified that in early 1984, upper management directed him to adjust the extra pay claimant was receiving as a grey hat. Upon the recommendations of the management of the receiving department in March 1984, claimant was offered another supervisory or blue hat position in the hide department to avoid a pay reduction. Although there was already a blue hat in the department, Robert Long, this supervisor would be leaving the department. Claimant said that he understood from Wells that claimant would take over the department when Long left. Claimant accepted this job but soon after he arrived in the department, claimant began to experience problems. In written reports Long noted his dissatisfaction with claimant's ability and motivation to learn the job. Long repeatedly complained of claimant leaving work before his duties were done and of repeated mistakes in completing written statistical reports. Wells testified that the company relies heavily upon the income from its hide operation and the accuracy of these reports is essential to operations. Merle Schaver was then assigned as a blue hat to the hide department when Long left. Schaver testified that Wells placed him "in charge" over claimant who was to be his assistant. Wells testified that claimant was not placed in charge due to insufficient performance. Schaver testified that claimant's performance declined while he was in the hide department. Claimant continued to make serious mistakes in his reports and these mistakes were verified by others in the plant. According to Schaver, claimant appeared to become more nervous and withdrawn as time went by and his mistakes increased. Schaver was then transferred back to the kill floor and upon the joint recommendation of claimant and Schaver, a white hat or hourly employee by the name of Mike Tomlinson was promoted to blue hat. However, Wells placed Tomlinson, not claimant, in charge of the department when Schaver left because according to Wells, Tomlinson was more aggressive and able to complete the paperwork accurately. Schaver testified that while he, assumed that claimant would be placed in charge when he left, he was not surprised by Wells' actions. In claimant's personnel file, Tomlinson also began to write written notes regarding poor performance on the part of claimant in his lack of supervision over employees and mistakes in his reports. Claimant testified that although he admitted to some mistakes, he felt that he was blamed for many mistakes committed by others STOUFFER V. SWIFT INDEPENDENT PACKING CO. Page 5 and that he was not adequately trained to prepare the reports. He denies any laxity in his supervisory abilities. He stated that he was again denied raises in the hide department. He stated that he became upset when Tomlinson and not himself was placed in charge after Schaver left. On November 23, 1984, claimant was demoted by Wells to a grey hat and transferred back to receiving. The reasons Wells stated in the personnel file was that claimant had not worked out as a supervisor in the hide department. Wells testified that there was not to be more than one blue hat supervisor in the hide department. This time claimant's demotion involved diminished responsibility but reduced pay as well-to the regular pay for grey hats, approximately $2,000 less a year in salary. Claimant testified that Wells told him that the reason why Tomlinson was given the head supervisor job in the hide department was that Tomlinson was younger and more aggressive. Wells admitted to stating that claimant was not sufficiently aggressive but denies that age had anything to do with his decision. Claimant did not deal with his demotion in November of 1984 very well. Claimant testified that he immediately became very anxious and depressed. On the day of the demotion he called his wife several times which he rarely did before. Claimant asked Wells for vacation time to deal with the problem but was denied such time off. Claimant was told to report for work the following Monday. Claimant then returned home and became even more anxious and depressed. Claimant began to have crying spells and became very withdrawn. According to claimant's wife and witnesses, this was unusual behavior for claimant who was normally "happy go lucky." Claimant's wife then became very concerned and called a friend, a local attorney who referred claimant to Kelly S. Bast, M.D. Claimant did not return to.Swift after that time upon the advice of his physicians. Claimant was diagnosed by Dr. Bast as suffering from acute anxiety depression caused by his employment at Swift. Claimant was treated by Dr. Bast over the next several months consisting of a few weeks of medication and then a long period of regular psychotherapy sessions with a clinical psychologist, Craig Rypma, Ph.D. Dr. Bast and Dr. Rypma both testified by deposition that the demotion on November 23, 1984, was a major contributing factor to claimant's mental illness at that time. Both also testified that although claimant was able to return to light stress employment such as farm work in May of 1985, claimant today is still unable to handle the stress that he received at Swift or any management or other position that would involve significant job stress. Claimant has worked in farm work since leaving Swift and is currently seeking alternative employment. STOUFFER V. SWIFT INDEPENDENT PACKING CO. Page 6 Claimant was evaluated by Michael Taylor, M.D., a board certified psychiatrist, in December 1985, and again in December 1986. Dr. Taylor is the chairman of the Iowa Lutheran Hospital Psychiatric Department. Dr. Taylor has diagnosed claimant as suffering from a major depressive disorder and notes that the symptoms were worse between October 1984 and May 1985. Although he admits that claimant is not able to fully return to stressful occupations at the present time, he believes that claimant's condition is not permanent and with adequate chemotherapy can fully recover. He does not believe that claimant's current psychotherapy sessions are of any help. Dr. Taylor initially felt that claimant's demotion in November of 1984 aggravated the preexisting depression but upon being provided with past records indicating that claimant had received antidepressant and antianxiety medications in the late 1970's with a history of mental and physical fatigue in 1980, he now does not believe that claimant's employment contributed in any manner to his current condition. He opines that claimant has endogenous depression or an illness of the brain caused solely by a chemical imbalance, not environmental factors. According to Dr. Taylor, this is the current or modern view in the field of psychiatry. Dr. Taylor believes that claimant would have experienced his problems regardless of his employment setting although he recognized that claimant's depressive state would make claimant more sensitive to criticism such as received by claimant from supervisors in the hide department. Dr. Taylor felt that claimant's problems in performance in his job were probably due to his depression problems. Although they were not aware of the claimant's past history of taking antidepressant and antianxiety medications in the 1970's before their respective depositions, Dr. Rypma and Dr. Bast maintained their causal connection views and disagree extensively with Dr. Taylor on the causal connection when they were informed of this history. They both dispute that the field of psychiatry or psychology has rejected, in total, the theory that environmental factors cannot cause depression. However, Dr. Bast agreed that Dr. Taylor, as a specialist in the field of psychiatry, would be better able to determine the causal connection of psychiatric problems. Dr. Bast was only a family practice physician although she had considerable experience in the field of the treatment of mental patients. Dr. Rypma was adamant in maintaining his theories of causal connection and testified that from his examination and testing of claimant, claimant has environmentally induced depression because the medication approach was tried by Dr. Bast without success. Another clinical psychologist, David Sample, Ph.D., examined claimant and diagnosed from his MMPI test that claimant is a passive dependant person. Dr. Sample believes that claimant STOUFFER V. SWIFT INDEPENDENT PACKING CO. Page 7 is the type of person who would be resentful of authority, blames others and has difficulty accepting responsibility for his own behavior. A vocational rehabilitation consultant, Frank Walker, testified at hearing that testing by him indicates that claimant is the low average range, of functional performance and has fairly low math skills. However, he opines that claimant is able to return to work in the same occupation that he had at Swift, but admits that the history of mental problems and intolerance to stress adversely effects his employability. APPLICABLE LAW AND ANALYSIS I. Claimant has the burden of proving by a preponderance of the evidence that claimant received an injury which arose out of and in the course of employment. The words "out of" refer to the cause or source of the injury. The words "in the course of" refer to the time and place and circumstances of the injury. See Cedar Rapids Community Sch. v. Cady, 278 N.W.2d 298 (Iowa 1979); Crowe v. DeSoto Consol. Sch..Dist., 246 Iowa 402, 68 N.W.2d 63 (1955). An employer takes an employee subject to any active or dormant health impairments, and a work connected injury which more than slightly aggravates the condition is considered to be a personal injury. Ziegler v. United States Gypsum Co., 252 Iowa 613, 620, 106 N.W.2d 591 (1960) and cases cited therein. II. The question of causal connection is essentially within the domain of expert medical opinion. Bradshaw v. Iowa Methodist Hospital, 251 Iowa 375, 101 N.W.2d 167 (1960). The opinion of experts need not be couched in definite, positive or unequivocal language and the expert opinion may be accepted or rejected, in whole or in part, by the trier of fact. Sondag v. Ferris Hardware, 220 N.W.2d 903 (Iowa 1974). The weight to be given to such an opinion is for the finder of fact, and that may be affected by the completeness of the premise given the expert and other surrounding circumstances. Bodish v. Fischer, Inc., 257 Iowa 516, 133 N.W.2d 867 (1965). Furthermore, if the available expert testimony is insufficient along to support a finding of causal connection, such testimony may be coupled with nonexpert testimony to show causation and be sufficient to sustain an award. Giere v. Asse Haugen Homes, Inc., 259 Iowa 1065, 146 N.W.2d 911, 915 (1966). Such evidence does not, however, compel an award as a matter of law. Anderson v. Oscar Mayer & Co., 217 N.W.2d 531, 536 (Iowa 1974). To establish compensability, the injury need only be a significant factor, not be the only factor causing the claimed disability. Blacksmith, 290 N.W.2d 348, 354. In the case of a preexisting condition, an employee is not entitled to recover for the results of a preexisting injury or disease but can recover for an aggra- STOUFFER V. SWIFT INDEPENDENT PACKING CO. Page 8 vation thereof which resulted in the disability found to exist. Olson v. Goodyear Service Stores, 255 Iowa 1112, 125 N.W.2d 251 (1963). In this case, claimant contends that he has suffered a mental injury from mental stress at work. In cases involving alleged mental injuries which are not the result of physical trauma, a required showing to establish a compensable mental injury arising out of employment varies from state to state. See Sersland Mental Disability Caused by Mental Stress: Standard of Proof in Workers' Compensation Cases, Thirty-Three Drake Law Review 751 (1984). The Iowa Supreme Court has not as yet decided what rule applies in this state. The court has only stated that claimant's employment must provide more than a "stage for the nervous injury." Newman v. John Deere Ottumwa Works, 373 N.W.2d 199 (Iowa 1985). However, this agency has indicated preference for the so-called "objective" or "Wisconsin" rule which was first expressed in School District No. 1 v. Department of Industries, Labor and Human Resources, 62 Wis. 2d 370, 215 N.W.2d 373 (1974) and later in Swiss Colony v. Department of ILAR, 72 Wis. 2d 46, 240 N.W.2d 128 (1976). Schreckengast v. Hammermills, Inc., IV Iowa Industrial Commissioner Report 305 (Appeal Decision 1983). The agency decision in Schreckengast, is a binding agency precedent upon the undersigned. The Wisconsin rule is favored by Professor Larson in his treatise on workers' compensation law. See Larson, The Law of Workers' Compensation Law Vol. 1B, p. 7-637 et seq. section 42.23(b). The rule insures that the claimed emotional difficulty is truely work related given the difficulties surrounding proof of the existence and nature of emotional harm. It should be noted that the rule is consistent with the concept in personal injury cases long recognized in Iowa that damages are more difficult to recover in cases involving only emotional injury. Barnhill v. Davis, 300 N.W.2d 104 (Iowa 1981), negligent infliction of emotional harm; Barnett v. Collection Service Company, 214 Iowa 1303, 1312, 242 N.W. 225, 228 (1932), intentional infliction of emotional harm. Under the Wisconsin rule, a nontraumatically caused mental injury is compensable only when the injury "resulted from a situation of greater dimensions than the day-to-day mental stresses and tensions which all employees must experience." Swiss Colony, 240 N.W.2d 130. In other words, there are two issues which must be resolved before finding a mental injury arising out of employment. These issues are medical and legal causation. The medical causation issue is strictly an examination into the cause and effect relationship between the stresses and tensions at work and to mental difficulties. If the medical causation issue is resolved in favor of claimant, the legal causation is then examined. This determination concerns the issue of whether the work stresses and strains (viewed objectively STOUFFER V. SWIFT INDEPENDENT PACKING CO. Page 9 and not as perceived by a claimant) were "out of the ordinary from the countless emotional strains and differences that employees encounter daily without serious mental injuries." School District No. 1, 215 N.W.2d 377. First, in this case, the experts, Dr. Taylor, Dr. Best and Dr. Rypma, are unanimous in recognizing that claimant has significant mental problems which currently require treatment and which prevent a full return to the work force. Secondly, claimant has shown by the preponderance of the evidence that there is a cause and effect relationship between the events of November 23, 1984 and claimant's current depression and anxiety problems. Claimant has shown that he simply could not deal emotionally with the demotion. Although Dr. Taylor stated that he could not find a causal connection between the work and the depressive disorder, he admitted that the depressive disorder makes claimant more susceptible to criticism. Although the work is not the cause of the underlying disorder, apparently, according to Dr. Taylor, the underlying disorder made claimant more susceptible to criticism. To state that the demotion had nothing to do with the claimant's illness is to wholly ignore the obvious facts presented before and after the events of November of 1984. There was, however, no showing that the events prior to November 1984 at Swift were in any way a significant contributing factor to his problems. Claimant was able to handle the previous discharges and demotions and problems at Swift without medical treatment and disability from work. If claimant had suffered a back injury rather than a mental injury, the causal connection issue would be resolved in favor of claimant. However, as stated above, this agency has adopted a much more rigid standard of compensability for mental injuries. If given the option, the undersigned would opt that mental injuries not be treated differently than back injuries or any other physical injury. There certainly is no statutory exception in Chapter 85 of the Code for mental injuries caused by normal work stress. Also, it can be argued that the so-called Wisconsin or "objective" legal test is not really all that objective. This additional test appears to involve a subjective decision by a court as to whether or not a particular work stress is or is not "unusual" in the workplace. Such decisions can easily vary from judge to judge without meaningful consistency depending upon each judge's personal experience and background. However, this agency's adoption of the Wisconsin rule is binding upon the undersigned. Therefore, in the case sub judice, for claimant's disability to be compensable, the undersigned would have to find that his demotion in November 1984, "viewed objectively" was unusual stress in the workplace. Turning to the demotion, we are mindful that any disciplinary act, especially a demotion by a superior, is highly stressful. However, the question is whether this is not the type of stress STOUFFER V. SWIFT INDEPENDENT PACKING CO. Page 10 faced everyday in the workplace. The undersigned finds that such demotions are not unusual or uncommon in the workplace. First, the evidence does not show that claimant's supervisors were unjustified in their actions. Sufficient evidence was offered to show that claimant was indeed not aggressive and was making regular mistakes in his paperwork. Nonassertiveness and inaccurate work product are common criteria used by supervisors to evaluate performance in the workplace. Claimant failed to show that he was the subject of age discrimination. Secondly, the demotion in status and salary did not appear to be with unusual disregard for common decency and in utter disregard of claimant's feelings. Claimant was not humiliated publicly or treated with unusual callousness during or after the event. Claimant failed to demonstrate the denial of time off or the reduction in pay was unusual or intentionally designed by Wells to aggravate the situation. The facts and circumstances surrounding claimant's demotion in 1981 by McKinney might have exceeded this standard but a cause and effect relationship could not be found for this demotion and claimant's current disability due to the time lag and claimant's ability to work without treatment for three years thereafter. FINDINGS OF FACT 1. On November 23, 1984, claimant suffered a mental injury in the form of acute depression and anxiety after being demoted by Swift management to a nonsupervisory position. Claimant had been repromoted to that position in March 1984, after being previously demoted in 1981. Claimant had originally been hired at Swift into a supervisory position but was not reduced in pay until the demotion in November 1984. 2. There is a cause and effect relationship between the demotion of November 23, 1984 and claimant's current mental problems and resulting disability. Claimant has received extensive psychiatric therapy since November 1984, but is currently only able to return to jobs which are not significantly stressful. Claimant, however, can recover from his psychiatric illness with adequate treatment in the form of both chemotherapy and psychological counseling. 3. Claimant was treated unfairly by Swift management in 1981 in a demotion by Jerry McKinney, but claimant was able to return to work following such treatment and there is no cause and effect relationship between that demotion and claimant's current mental problems. 4. Claimant had a problem with anxiety and depression in 1978 and 1979 and received medication for these conditions which evidenced that claimant has endogenous depression or STOUFFER V. SWIFT INDEPENDENT PACKING CO. Page 11 a mental depression caused by a chemical imbalance in the brain which can only be adequately treated by long-term medication over a period of several months. 5. The stresses experienced by claimant from his demotion on November 23, 1984, consisting of a loss of pay and status was the result of inadequate job performance while a supervisor in the hide department at Swift. Claimant has low aptitude for math skills and this resulted in paperwork errors. 6. Claimant failed to show that the demotion in November 1984 was unjustified or made in callous disregard of his feelings. There was no showing that claimant was unusually humiliated or unusually treated during or after the demotion. CONCLUSIONS OF LAW Claimant has not shown a compensable mental injury and is not entitled under law to disability or medical benefits. ORDER 1. The petition of claimant is denied. 2. Each party shall pay their own costs of this action pursuant to Division of Industrial Services Rule 343-4.33. Signed and filed this 18th day of May, 1989. LARRY P. WALSHIRE DEPUTY INDUSTRIAL COMMISSIONER Copies To: Mr. Wendell J. Harms Attorney at Law 4215 Hubbell Ave. Des Moines, Iowa 50317 Mr. Richard G. Book Attorney at Law 500 Liberty Bldg. Des Moines, Iowa 50309 1108.20 Filed May 18, 1989 LARRY P. WALSHIRE BEFORE THE IOWA INDUSTRIAL COMMISSIONER ROBERT C. STOUFFER, Claimant, File No. 814736 vs. SWIFT INDEPENDENT PACKING CO.,: A R B I T R A T I O N : Employer, : D E C I S I O N : and : : NATIONAL UNION FIRE INSURANCE : COMPANY, : : Insurance Carrier, : Defendants. : 1108.20 Claimant's claim for benefits as a result of a psychological injury induced solely by mental stresses was denied on the grounds that claimant failed to show by a preponderance of the evidence that the stresses were more than what is experienced on a day-to-day basis by all employees. Claimant had been demoted by a supervisor for inadequate job performance. Claimant also had failed to receive raises as other employees but claimant was receiving more pay than other persons in the area for doing comparable work. BEFORE THE IOWA INDUSTRIAL COMMISSIONER PAM ATTERBERG, File No. 814741 Claimant, A R B I T R A T I O N vs. D E C I S I O N SHELLER-GLOBE CORPORATION, F I L E D Employer, APR 19 1988 Self -Insured, Defendant. IOWA INDUSTRIAL COMMISSIONER STATEMENT OF THE CASE This is a proceeding in arbitration brought by Pam Atterberg, claimant, against Sheller-Globe Corporation (Sheller-Globe), self-insured employer, for benefits as a result of an alleged material aggravation of a preexisting back condition on February 19, 1986. A hearing was held in Burlington, Iowa on March 8, 1988 and the case was submitted on that date. The record consists of the testimony of Mike Jones, Cindy Jones, Jerry Kearns, Pam Atterberg, Barbara Crane and Andy Edgar; claimant's exhibits 1 through 18; and defendant's exhibits A through D. Claimant filed a brief on March 17, 1988. Defendant's brief was filed on April 4, 1988. The parties stipulated that the weekly rate of compensation is $245.36; that on June 18, 1984, claimant again started working for Sheller-Globe; that on September 28, 1984, claimant was laid off due to a reduction in the work force; that on November 27, 1984, claimant was recalled to work by Sheller-Globe; that on February 7, 1985, claimant injured her back at home and had to take a leave of absence from Sheller-Globe as a result; that on January 29, 1986, claimant's leave of absence ended and she returned to work for Sheller-Globe; that on February 19, 1986, claimant left her employment with Sheller-Globe except for a return to work at Sheller-Globe from June 16, 1986 through June 17, 1986 for one and one-half days of work. ISSUES The contested issues are: 1) Whether claimant received an injury on or about February 19, 1986 which arose out of and in the course of her Sheller-Globe employment; that is, whether claimant materially aggravated her preexisting back condition on or about February 19, 1986 while employed by Sheller-Globe; 2) Whether there is a causal connection between claimant's alleged work-related injury and her asserted disability; and 3) Nature and extent of disability. In this regard, claimant asserts the odd-lot doctrine; also, defendant argues that permanent partial disability benefits, if awarded, should commence on June 16, 1986 while claimant asserts that any permanent partial disability benefits awarded should commence on April 8, 1987. SUMMARY OF THE EVIDENCE Michael Jones testified that he is the ten year old son of claimant and that he is in fifth grade. Jones testified that his mother fell at home in 1985 and went to the hospital, and ultimately had surgery as a result. After her 1985 surgery, claimant was able to help him and his father, but this was before she went back to work with Sheller-Globe. Michael Jones testified that claimant did such things as cleaning the house and carrying wood before she went back to work for Sheller-Globe on January 29, 1986. Michael Jones testified that after an incident at work in February 1986 at Sheller-Globe his mother was "basically off work." He also testified that claimant could not vacuum the floor, had trouble washing dishes, and could not mow the lawn anymore after the work incident in early 1986. On cross-examination, Michael Jones testified that his mother started working at a gas station in November 1987. Cindy Jones testified that she is the sister of claimant. She testified that claimant had an early 1985 injury at home and had surgery in Iowa City as a result. This home incident caused claimant to be off work for about a year. Claimant then returned to work at Sheller-Globe. Cindy Jones testified that after claimant's back surgery, which resulted from the 1985 incident at home, claimant was able to do "most things" prior to returning to work for Sheller-Globe in early 1986. She said that claimant appeared normal prior to returning to work for Sheller-Globe in early 1986 and could do such things as swim, go for walks, mow the lawn, and play games. Cindy Jones testified that after February 19, 1986, claimant missed work and could no longer do such things as swim, throw a frisbee, clean her house, and mow grass. Claimant no longer takes walks and doesn't do any mopping or carrying wood. Claimant currently complains of her back; claimant did not complain of her back after her 1985 back surgery. Jerry Kearns testified that he is the union president at Sheller-Globe and that claimant is a union member. Kearns testified that claimant had a lower back injury at home in 1985. Kearns testified that claimant's last day of work at Sheller-Globe was February 19, 1986, except for one and one-half days of work in June 1986. Kearns testified that claimant is presently attempting to go back to work at Sheller-Globe. Kearns testified that the union has filed a grievance on behalf of claimant asking Sheller-Globe to take claimant back. Sheller-Globe has taken the position that there is no work available for claimant given her work restrictions imposed by medical personnel. Kearns testified that similarly situated individuals have been taken back by Sheller-Globe, however. He described two other women with problems similar to claimant's problem that have been taken back by Sheller-Globe. He described one woman who had surgery at the Mayo Clinic and was allowed to return to Sheller-Globe working four-hour days initially, and ultimately was allowed to complete eight-hour days. Kearns also described another woman who returned to work at Sheller-Globe after being in the hospital for 46 days with a back injury and being off work for a total of ten and one-half months. The second woman had restricted hours initially and then ultimately worked her way into full days of work. Kearns stated that claimant is willing to go back to work at Sheller-Globe. On cross-examination, Kearns was shown claimant's lifting and motion restrictions. Kearns testified that in 1986 claimant was a finish operator. Kearns testified that 50 to 60 percent of the jobs at Sheller-Globe are finish operator jobs. Many of these finish operator jobs require twisting and lifting. It was pointed out that the various doctors involved in this matter had given different opinions on the appropriate lifting restrictions for claimant. Kearns stated his opinion that claimant would be capable of working as a finish operator in some capacity at Sheller-Globe. On redirect, Kearns testified that claimant would be willing to work a four-hour day at Sheller-Globe. Claimant testified that she is 29 years old with a ten year old son residing with her. Claimant testified that she has an eighth grade education and obtained a GED. Claimant testified that she again started working at Sheller-Globe on June 18, 1984; she had worked there on a prior occasion but quit because of a pregnancy. Claimant testified that she was a waitress at A & W as a teenager. Claimant characterized the job after June 18, 1984 at Sheller-Globe as press operator and finish operator. She characterized this work as labor production work or manual work. Claimant testified that on February 7, 1985, she fell at home with a resulting lumbar back injury and ultimately had surgery for this problem in Iowa City in 1985. Claimant testified she was off work for approximately one year as a result of the 1985 back injury, and that she ultimately got to the point where she could do "most everything" after her surgery. Specifically, claimant testified that after the surgery she could mow lawns, do housework, go for walks, and go swimming; she could also run after the surgery but not very fast. She was also able to haul wood after her 1985 surgery. Claimant testified that she went back to work at Sheller-Globe on January 29, 1986 as a finish operator and her specific duty was to put clips on inserts. Claimant testified this job should have taken two or three people rather than just herself, and that she got hurt as a result of having to do a job that should have been assigned to more than one person. Claimant testified that after she got hurt doing this finish operator job, Sheller-Globe modified the job. Claimant testified this job performed by her at the time of her injury in early 1986 was hard on both the hands and the body as a whole. Claimant testified that her middle to lower back was hurt as a result of doing this finish operator job in early 1986. Her problem started in the middle back and she was put on medication for two months. William R. Pontarelli, M.D., prescribed this medication for claimant and ultimately referred her to James Worrell, M.D. Claimant was released to return to work on April 8, 1987. Claimant testified that her left leg was affected by her 1986 work injury at Sheller-Globe. Claimant testified that she has to rest when she does things and that she limps if she overdoes it. Claimant testified that in February 1986, she saw a chiropractor. Claimant also testified that she did not limp after her 1985 surgery, but that she would limp on occasion after the 1986 Sheller-Globe work-related incident. Claimant currently cannot do much vacuuming. She now has pain medication, but was not taking medication when she returned to Sheller-Globe on January 29, 1986. Claimant testified that she had no problem reaching until her return to work for Sheller-Globe on January 29, 1986. Claimant testified that she would like to return to work for Sheller-Globe. She stated that she was paid $10.36 per hour at Sheller-Globe. Claimant described a grievance she filed because Sheller-Globe will not allow her to return to work at Sheller-Globe. Claimant's gas station job that she currently has pays $3.50 per hour and has no fringe benefits; she started this job in November 1987. Claimant had 80 percent-20 percent coinsurance medical coverage at Sheller-Globe. They also paid her dental bills, and she had life insurance coverage. Claimant stated that she has done a work search and that she would accept a job anywhere. Claimant stated that she also applied for work at a mall and for a factory job. She stated that she had gone to Job Service to seek employment. Claimant testified that she had a conversation with Barbara Crane, but that she has not heard back from Ms. Crane. Claimant described in further detail what she was doing on February 19, 1986. Claimant stated she was putting clips on inserts and that this process involved a belt moving at a high rate of speed. Claimant stated that there was twisting involved and that she was getting behind. She stated that two persons had previously helped her with this task. Claimant testified that in October 1987 she had some "medical tests" by a chiropractor and she thought she did well on these tests. Claimant saw Peter D. Wirtz, M.D., in Des Moines, Iowa, at Sheller-Globe's request. In regard to the February 1986 incident, claimant testified it began in a "different spot" than her 1985 injury and then moved to the 1985 surgery spot. Claimant described her current job as a checkout clerk and a person who stocks the cooler. Claimant testified that she does not currently work with industrial equipment and that she stands all day, but is allowed to walk around. On cross-examination, claimant described her current physical problems as "getting it in the back and left leg" when she overdoes it. She has left leg pain when she overdoes it and also experiences neck pain. Claimant was unable to state her medical restrictions on cross-examination because she said she has seen so many doctors she doesn't know what they have all said. Claimant stated that she can lift from 15 to 25 pounds currently, but cannot do a great deal of twisting. She testified that there are jobs at Sheller-Globe that she could currently perform such as a trimming job where she could move around. Claimant stated that she didn't know whether these jobs are filled on a seniority basis or not. Claimant stated that she is five foot nine inches and weighs 120 pounds. Claimant admitted on cross-examination that she changes her residence a lot and that she moved several times in 1986. She acknowledged that she did some packing and unpacking during these moves. Claimant stated that she currently cleans her house and does some cooking. Claimant acknowledged that she could be a cook in a restaurant. Claimant described her 1985 incident at home and the resulting left leg pain. Claimant stated that the surgery took away her left leg pain. She further testified that she could do the job performed by one of the women described by Mr. Kearns; she described this as a four-hour-a-day job. Claimant stated that she thinks she could do a washer-and-paint spray job at Sheller-Globe. Claimant acknowledged that she could get reinjured if she returned to work at Sheller-Globe. Claimant testified that she went to Job Service three or four months ago in order to look for work and was told that jobs were scarce in the Keokuk area. Claimant was aware of the scarceness of jobs in the area from her own job search. Barbara Crane testified that she is a registered nurse and is hired to assist mentally or physically disabled individuals with vocational rehabilitation. Crane evaluated claimant and is qualified to read medical reports in order to define a claimant's restrictions. Crane testified that she also knows about the availability of jobs; she testified that there is a job search specialist in the Des Moines home office of her employer that assists her in this regard. Crane testified that she uses newspapers, Job Service, radio hot lines, and contacts with employers to obtain a job within a claimant's physical or mental capabilities. Crane testified that she had a conference with claimant on February 19, 1988 and has reviewed claimant's medical history. Crane stated her opinion that claimant is able to do housework given her 10 to 15 pound weight restriction and that she has other restrictions, but that there are differences of opinion by the various doctors as to what restrictions are appropriate in claimant's case. Crane testified that claimant felt fine at the time of the interview she had with claimant. Crane also commented that some medical personnel have limited claimant's stooping and bending. Crane testified that claimant currently works for a gas station in Keokuk and lifts some cases of pop to restock shelves. Crane testified this is a 40 hour a week job and that she has interviewed claimant about her past jobs. Crane testified that given claimant's age, experience, and other factors, claimant is able to find restaurant work or assembly line/factory work. Crane testified that claimant is well motivated and states that obtaining a GED in 1987 is evidence of that motivation. Crane testified that she talked to a Job Service counselor in Keokuk and was told that the Keokuk unemployment rate is 10.5 percent. Crane was shown some of the jobs available in the Keokuk area by Job Service. Crane personally went out and talked to various employers and felt that there were jobs available for claimant at restaurants and discount stores in the Keokuk area doing waitress or clerk work. Crane testified there are also grocery store jobs available, and most of these jobs pay $3.35 per hour. Crane testified about retraining opportunities at an area college in Keokuk; it was pointed out that claimant currently resides in Illinois, however. Crane also testified that claimant had returned to Sheller-Globe in June 1986 for a brief period but could not handle the work. Crane testified that given claimant's age and motivation, she could go to an area college and that a rehabilitation program could pay her tuition. Crane testified that claimant could become a medical assistant after a year in an area college. On cross-examination, Crane was asked whether Sheller-Globe paid for retraining and Crane testified she didn't know. Crane admitted on cross-examination that she does not know claimant's "intelligence level." Crane testified that claimant is trained to be an assembler, but that she might not physically be able to do such a job currently. Crane acknowledged on cross-examination that she has not talked to Sheller-Globe at all and that she was not asked to talk to them. Crane acknowledged on cross-examination that without retraining claimant would have a difficult time making the same wages she was making while at Sheller-Globe. It was also pointed out to Crane that claimant got C's and D's in school. Crane stated her opinion that claimant has "normal intelligence." Andy Edgar testified that he is the environmental and safety supervisor at Sheller-Globe in Keokuk and that he administers their workers' compensation program. He then stated his educational background. Edgar acknowledged that a grievance is pending as to whether claimant will return to work for Sheller-Globe and he described in broad terms the grievance procedure and the stage it is currently in. Edgar stated there is no position currently available to claimant at Sheller-Globe given claimant's restrictions and time of service with Sheller-Globe. Edgar did acknowledge, however, that 28 new people will be hired by Sheller-Globe in the near future; Edgar then stated that given claimant's medical restrictions, she could not fill the positions that the 28 new people would be filling. Edgar stated his opinion that the two women described by other witnesses, that had returned to Sheller-Globe after medical problems, were different in some respects from claimant. Specifically, he stated that these two women had no restrictions except for a limitation to work only four hours a day. He stated regarding any proposed return to work that "seniority is the big issue." Edgar also described the clip job that claimant was doing at the time of her alleged injury. On cross-examination, Edgar acknowledged that the union contract has a provision in it for employees with work-related injuries. He stated, however, that claimant would not be allowed to return to work for Sheller-Globe unless she prevailed through the grievance procedure. On redirect, he stated that Sheller-Globe was not taking claimant back because they want to prevent further injury to her. On recross-examination, Edgar acknowledged that Sheller-Globe was not taking claimant back because they want to protect the company as well as claimant. William R. Pontarelli, M.D., states in exhibit 2 that claimant injured her back on February 7, 1985 at home and had surgery on May 20, 1985 as a result. Exhibit 5 (dated January 29, 1986) contains the following statement from Dr. Pontarelli: "Pam Atterberg may return to her regular job, with the only restriction being a 40 hour work week - 8 hours per day." Exhibit 5 states that the May 1985 surgery was for decompression of the lumbar spine because of a fractured coccyx; claimant had been experiencing increasingly severe pain in the left leg. Exhibit 9 (dated September 26, 1986) contains the following statement from James B. Worrell, M.D.: "About 2 years ago you (Dr. Pontarelli) did a laminectomy on her following a fall down some stairs with excellent results. She had a pinched nerve down her left leg then. She went back to work feeling fine. She twisted and bent at work quite a bit and her pain returned very quickly." Dr. Worrell stated in a report dated October 10, 1986 that his impression was that claimant had recurrent left lumbosacral radiculitis with some L-5 findings. Exhibit 12 is the results of tests done by chiropractor Gary M. Crank, which are dated October 19, 1987. Exhibit 13 is a report dated May 27, 1987 by Keith W. Riggins, M.D., and contains the following diagnosis: "Herniated intervertebral disk with sciatica." Exhibit 14 contains the restrictions given by Peter D. Wirtz, M.D. Exhibit 15 contains a five to eight percent whole body rating from Dr. Worrell. Exhibit 15 reads in part, from Dr. Worrell, and is dated July 16, 1987: I would like very much to see the official consultation dictated by Dr. Riggins. You indeed have had lumbar disc disease as evidenced by your previous surgery but at this time you were doing well and there is no current evidence of disc rupture. Dr. Riggins evidently felt that if you tried to go back to work you would precipitate your symptomatology again. This means simply that if you tried to work you would re-rupture a disc and pinch the sciatic nerve. He felt your restrictions in that likelihood were permanent and therefore Sheller Globe will not let you return. According to his notes, even very light duty was not acceptable. I feel that light duty status would be perfectly acceptable and you should be able to get back to some type of activity. Please take this up with your attorney. Dr. Worrell also stated on November 20, 1987 as part of Exhibit 15: "I would tend to agree with the opinion of Dr. Peter Wirtz that you could return to work but that you limit the degree of heavy activities that you do." Exhibit 17 is the deposition of Dr. Worrell taken on May 21, 1987. This deposition reads in part on pages 6-8: Q. Doctor, do you have an opinion within a reasonable degree of medical certainty as to whether or not she has a permanent partial impairment of the body as a whole. A. Yes, I would be able to state that. Q. Do you at this time have an opinion as to what percentage of the body of the whole that would be? A. I would have to look that up specifically in the AMA guidelines. I would be able to estimate it at approximately five or six percent, but I would have to look that up in the guidelines specifically. Q. All right. Could that be done and that just sent to me? A. Yes. Q. All right. Doctor, do you have an opinion within a reasonable degree of medical certainty as to whether or not this lady given her medical history that she related to you, taking it as truthful and factual, as to whether or not she did in fact either suffer an independent injury of the laminectomy she previously had or aggravated that pre-existing condition? A. I would -- MR. DAHL: First of all, Doctor, would you just say whether you have an opinion? THE WITNESS: Yes, I would have an opinion. BY MR. HOFFMAN (Continuing): MR. DAHL: I would object to that. There's no proper foundation laid as to what, if anything, occurred at work or elsewhere after the surgery by Dr. Pontarelli; and, therefore, any opinion by the Doctor would be without proper foundation, irrelevant and not sufficient to support an award. BY MR. HOFFMAN (Continuing): Q. You can go ahead, Doctor. A. I would feel that her situation aggravated her previous condition. MR. HOFFMAN: That's all, Doctor. Exhibit 17, page 12, reads in part: Q. And as far as you can tell, probably the fractured coccyx resulted from this fall in February of 1985; would that be reasonable? A. That would be reasonable. Q. And how about the rest of these conditions that Dr. Pontarelli had diagnosed or given an impression of? Would you have an opinion as to whether or not those resulted from injury or from congenital or growth matters? A. Yes. Q. What would be your opinion? A. Basically most of the findings that he describes there would be longstanding or perhaps, you know, partly congenital. Generally what happens with those people, there is a certain amount of congenital stenosis, especially the retrolisthesis of L4 on 5 and that congenitally bad disk. With time there's a gradual buildup of arthritic spurs and things which produces the symptomatology. Q. What is the retrolisthesis? A. That simply means that instead of the lumbar bodies sitting one on top of the other like they normally do, one is sort of slid back on the other. Q. Somebody has described that to me in another deposition as a person sliding off his or her own lap. Is that about what it amounts to? A. That is really virtually something like that. Q. I think Dr. Pontarelli at one point diagnosed these or stated these as congenital spine stenosis. Is that pretty much a short way of stating that the conditions were besides the fractured coccyx. A. Yes, most of the -- the basic abnormality would have been congenital. Q. Was it your impression then that what Dr. Pontarelli did in his surgery was to relieve pressure on the spinal cord or spinal nerves that were resulting from either a congenital condition or boney [sic] growth as a result of the way she was put together? A. That would be basically his intent with that. I did not -- and this it [sic] not in here. The operative note is not really in here to say if he found a ruptured disk in addition to that. It was not included in the discharge summary anyway. On page 15 of Exhibit 17, the following appears: Q. You, of course, did not see her right after the surgery to evaluate what her permanent impairment would be, so you wouldn't have any way of separating what permanent impairment would be from the coccydual [sic] fracture plus Dr. Pontarelli's operation as opposed to any symptoms of pain she might have when she went back to work; right? A. No. I did not evaluate her at that time, so I could not state accurately. On page 16 of Exhibit 17, Dr. Worrell stated: There's no way to separate the two out." Exhibit B, page 4, lists claimant's jobs down through the years. APPLICABLE LAW AND ANALYSIS I. 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 756, 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). The Iowa Supreme Court cites, apparently with approval, the C.J.S. statement that the aggravation should be material if it is to be compensable. Yeager v. Firestone Tire & Rubber Co., 253 Iowa 369, 112 N.W.2d 299 (1961); 100 C.J.S. Workmen's Compensation 555(17)a. An employer takes an employee subject to any active or dormant health impairments, and a work connected injury which more than slightly aggravates the condition is considered to be a personal injury. Ziegler v. United States Gypsum Co., 252 Iowa 613, 620, 106 N.W.2d 591 (1960), and cases cited. Claimant herein had a congenital back condition and sustained a back injury at home prior to her alleged work-related injury of February 19, 1986. Claimant had surgery in 1985 due to her back injury at home and this remedied her problems to the extent she was able to return to work at Sheller-Globe. Claimant testified that in February 1986 Sheller-Globe had her perform a job that should have been performed by more than one person and that after her back injury the job was modified. A finding of fact will be made that claimant was required to perform a job by herself that should have been performed by more than one person. An additional finding of fact will be made that claimant materially aggravated her preexisting back condition on February 19, 1986. Claimant was able to do her job when she returned to work at Sheller-Globe on January 29, 1986. The performance of her job duties on February 19, 1986 materially aggravated her condition when she was required to twist at a fast pace to put clips on inserts. II. The claimant has the burden of proving by a preponderance of the evidence that the injury of February 19, 1986 is causally related to the disability on which she now bases her claim. Bodish v. Fischer, Inc., 257 Iowa 516, 133 N.W.2d 867 (1965). Lindahl v. L. O. Boggs, 236 Iowa 296, 18 N.W.2d 607 (1945). A possibility is insufficient; a probability is necessary. Burt v. John Deere Waterloo Tractor Works, 247 Iowa 691, 73 N.W.2d 32 (1955). The question of causal connection is essentially within the domain of expert testimony. Bradshaw v. Iowa Methodist Hospital, 251 Iowa 375, 101 N.W.2d 167 (1960). A cause is proximate if it is a substantial factor in bringing about the result. It need not be the only cause. Blacksmith v. All-American, Inc., 290 N.W.2d 348 (Iowa 1980). The question arises whether apportionment is appropriate in this case as a finding of fact will be made that only a portion of claimant's permanent whole body impairment is causally related to her work-related injury of February 19, 1986. In Darrel L. Crain v. Nevada Rural Fire Protection Association and AID Insurance Service (Appeal Decision, File No. 719428, filed February 26, 1988), the following appears on page 12: "Apportionment is appropriate where a prior injury or illness independently produces some ascertainable portion of the ultimate industrial disability which exists following the current injury. Varied Enterprises, Inc. v. Sumner, 343 N.W.2d 407 (Iowa 1984)." In Dean Creasy v. Peterson Business Accounting and American Mutual Ins. Co. (Appeal Decision, file No. 725325, filed January 28, 1988), the following appears on pages 3 and 4: When all factors, including claimant's limited motivation, are considered, claimant has a permanent partial disability of 45% overall. It is necessary to consider what portion, if any, of the overall disability resulted from his pre-injury condition. Although claimant argues otherwise, there is evidence on which to base such a decision. The record discloses claimant's age before his injury as well as his education. The record discloses the type of work he had been performing and any working restrictions. The record shows clearly that the deputy was not basing a decision on speculation, but on facts received into evidence. Dr. Arford opined claimant had a permanent partial impairment of five percent of the body as a whole from his Colorado injury, but claimant worked in Iowa at his earlier vocation of truck driving. His Iowa injury now precludes him from doing certain activities, such as driving a truck. The deputy correctly concluded "that 10 percent of claimant's current industrial disability results from his preexisting disability and not from his December 1981 work injury." The deputy further correctly concluded: Defendants, therefore, are liable for permanent partial disability benefits of 35 percent. Defendants have paid claimant permanent partial disability benefits of 20 percent for which they receive credit. Defendants, therefore, are liable for an additional 15 percent permanent partial disability benefits. The majority opinion in Marose v. Maislin Transport, 413 N.W.2d 507, 513 (Minn. 1987) reads in part: Employee must also prove on remand the quantum of disability attributable to each injury. The WCCA has affirmed the compensation judge's determination that the employee's present permanent partial disability is 35% of the back, but the portion of that disability attributable to each injury must be determined so that the amount of permanent partial disability compensation payable on account of each injury can be calculated properly. While the scheduled compensation for permanent injury to the back (percentage of 350 weeks) has not changed from the time of the first to that of the last of employee's injuries, his wages undoubtedly have changed from time to time. The process of attributing a specific permanency rating to each of several work-related injuries for which the employee seeks compensation in a single proceeding is sometimes termed "apportionment." That process, however, has nothing to do with equitable apportionment--the proportionate allocation of liability among various employers and insurers--and arguments based on equitable apportionment are inapposite here. While the amount of compensation payable is unaffected by equitable apportionment, to relieve the employee of his obligation to assign a percentage of disability to each injury might change the amount of permanent partial disability compensation to which he is entitled. The amount of compensation payable for permanent partial disability should not depend on the number of employers or insurers implicated in the contributing injuries. Although employee's medical history spans both several years and several injuries, none of the medical experts were unable to rate the disability resulting from his various injuries. The disparity in the ratings seems to be attributable primarily to the employee's apparent inability to give a consistent account of his injuries--a problem which can no doubt be resolved on remand by furnishing the examining physicians an accurate medical history. (Emphasis added.) Justice Scott concurred in part and dissented in part and stated on page 513 in Marose: I respectfully dissent from the conclusion that the employee's permanent partial disability must be apportioned among his various injuries. Here, the employee suffered a variety of injuries for which he never received permanent partial disability but which the employer now claims contributed to this disability. I would hold that any uncompensated disability resulting from these earlier injuries is a preexisting condition, which, if substantially aggravated by his last work injury, should be fully compensable at the rate applicable to that final injury. In Vanda v. Minnesota Mining & Manufacturing Co., 300 Minn. 515, 516, 218 N.W.2d 458, 458 (1974), we stated: [W]hen the usual tasks ordinary to an employee's work substantially aggravate, accelerate, or combine with a preexisting disease or latent condition to produce a disability, the entire disability is compensable, no apportionment being made on the basis of relative causal contribution of the preexisting condition and the work activitis. (Citations omitted). I would, therefore, reverse the WCCA with regard to apportionment and hold that, in this case, there should be no apportionment of the employee's permanent partial disability but instead the whole permanent partial disability should be compensated at the rate applicable to the last compensable personal injury. (Emphasis added.) The medical experts in this case did not apportion claimant's whole body impairment between her congenital condition, her 1985 injury at home and her 1986 work-related injury. The appeal decision in Crain states that apportionment is appropriate "where a prior injury or illness independently produces some ascertainable portion of the ultimate industrial disability which exists following the current injury." (Emphasis added.) In Creasy, a medical expert stated the whole body permanent partial impairment attributable to claimant's "first injury" or "prior condition." A finding of fact will be made, in this case, based on Dr. Worrell's testimony, that it is not medically possible in this case to ascertain the portion of claimant's whole body impairment attributable to claimant's congenital back condition and/or 1985 back injury at home. The question then confronting this deputy is whether or not to adopt the majority opinion in Marose, or whether Justice Scott's position is found to be more persuasive. I adopt Justice Scott's position. This conclusion is supported by the following language from Varied Enterprises, Inc. v. Sumner, 353 N.W.2d 407, 410-11 (Iowa 1984): PCP's last contention is that the commissioner erred in not limiting the award of benefits to only that part of Sumner's total disability caused by the aggravation which his experts related to the continued driving. Stated somewhat differently, it is their position that the commissioner and the court were required to carve out some portion of the total disability as attributable to the original onset of the infarction which all parties agree was a noncompensable event. The primary authority relied upon by appellants in making this contention pertains to circumstances where two distinct injuries are suffered, each with a correlative measure of disability. See Rose v. John Deere Ottumwa Works, 247 Iowa 900, 76 N.W.2d 756 (1956). A clear and helpful discussion of the precision problem which is presented is contained in 2 A. Larson, The Law of Workmen's Compensation 59.22, at 10-365 (1981) where the author states: Apart from special statute, apportionable "disability" does not include a prior nondisabling defect or disease that contributes to the end result. Nothing is better established in compensation law than the rule that, when industrial injury precipitates disability from a latent prior condition, such as heart disease, cancer, back weakness and the like, the entire disability is compensable.... The essential distinction at stake here is between a pre-existing disability that independently produces all or part of the final disability, and the pre-existing condition that in some way combines with or is acted upon by the industrial injury.... To be apportionable, then, an impairment must have been independently producing some degree of disability before the accident.... (Emphasis by the court.) The principle which Larson describes limits apportionment to those situations where a prior injury or illness, unrelated to the employment, independently produces some ascertainable portion of the ultimate industrial disability which exists following the employment related aggravation. This is consistent with the rule which we adopted in Rose, 247 Iowa at 908, 76 N.W.2d at 760-61. In the present case, the employer's claim for apportionment is not based upon Sumner's prior atherosclerotic condition which precipitated the myocardial infarction. The industrial commissioner found that there was no evidence from which it could be found that this diseased condition of Sumner's arteries independently produced an ascertainable industrial disability. That finding, which is not challenged, precludes apportionment based on the evidence of previously diseased arteries. But the employer argues that the initial infarction produced by the diseased arteries, which the parties agree was not a compensable event under Sondag, would have independently provided some portion of Sumner's ultimate industrial disability even in the absence of the aggravating activities upon which his claim has been allowed. While we believe that the legal premises upon which the employer's arguments are based state a claim for apportionment under the principles previously discussed, we are convinced that the commissioner declined to apportion the disability because of his view of the facts rather than any misapplication of legal theory. The commissioner spoke directly to this point, stating: Since the medical opinions could not differentiate between the amount of damage caused by the continued exertions, this agency cannot interject or speculate on the apportionment of damage between the onset of the infarction and the aggravation caused by continued exertion. We believe that this is a negative finding of fact by the commissioner which undercuts the legal premise upon which any claim of apportionment must rest. The appellants have presented no basis for overturning the decision of the commissioner or the district court. In this case, claimant's congenital condition and/or 1985 back injury produced part of what Professor Larson calls the "final disability;" however, the percentage of the final functional impairment attributable to claimant's congenital back condition and/or 1985 back injury, as opposed to her 1986 work-related injury, is not ascertainable. It is concluded that under the circumstances of this case, it was defendant's burden to produce sufficient evidence to allow the finder of fact to ascertain the percentage of functional impairment attributable to the various conditions or incidents in this case. Defendant failed to carry its burden in this regard. It is therefore not possible to apportion claimant's industrial disability in this case. The extent of claimant's industrial disability will now be determined . III. As claimant has an impairment to the body as a whole, an industrial disability has been sustained. Industrial disability was defined in Diederich v. Tri-City Railway Co., 219 Iowa 587, 593, 258 N.W. 699, 902 (1935) as follows: "It is therefore plain that the legislature intended the term 'disability' to mean 'industrial disability' or loss of earning capacity and not a mere 'functional disability' to be computed in the terms of percentages of the total physical and mental ability of a normal man." Functional disability is an element to be considered in determining industrial disability which is the reduction of earning capacity, but consideration must also be given to the injured employee's age, education, qualifications, experience and inability to engage in employment for which he is fitted. Olson v. Goodyear Service Stores, 255 Iowa 1112, 125 N.W.2d 251 (1963). Barton v. Nevada Poultry, 253 Iowa 285, 110 N.W.2d 660 (1961). A finding of impairment to the body as a whole by a medical evaluator does not equate to industrial disability. This is so as impairment and disability are not synonymous. The degree of industrial disability can in fact be much different than the degree of impairment because in the first instance reference is to loss of earning capacity and in the later to anatomical or functional abnormality or loss. Although loss of function is to be considered and disability can rarely be found without it, it is not so that a degree of industrial disability is proportionally related to a degree of impairment of bodily function. Factors to be considered in determining industrial disability include the employee's medical condition prior to the injury, immediately after the injury, and presently; the situs of the injury, its severity and the length of healing period; the work experience of the employee prior to the injury, after the injury and potential for rehabilitation; the employee's qualifications intellectually, emotionally and physically; earnings prior and subsequent to the injury; age; education; motivation; functional impairment as a result of the injury; and inability because of the injury to engage in employment for which the employee is fitted. Loss of earnings caused by a job transfer for reasons related to the injury is also relevant. These are matters which the finder of fact considers collectively in arriving at the determination of the degree of industrial disability. There are no weighting guidelines that indicate how each of the factors are to be considered. There are no guidelines which give, for example, age a weighted value of ten percent of the total value, education a value of fifteen percent of total, motivation - five percent; work experience - thirty percent, etc. Neither does a rating of functional impairment directly correlate to a degree of industrial disability to the body as a whole. In other words, there are no formulae which can be applied and then added up to determine the degree of industrial disability. It therefore becomes necessary for the deputy or commissioner to draw upon prior experience, general and specialized knowledge to make the finding with regard to degree of industrial disability. See Christensen v. Hagen, Inc., (Appeal Decision, March 26, 1985); Peterson v. Truck Haven Cafe, Inc., (Appeal Decision, February 28, 1985). First of all, it is determined that permanent partial disability benefits commence on June 16, 1986 because claimant returned to work on that date. Secondly, it is concluded that as a matter of law claimant is not an odd-lot employee as she is currently employed. See Walter H. Ferrand, Jr. v. Iowa Beef Processors, Inc., (Appeal Decision, in File Numbers 645545 and 703477, filed November 25, 1985). This case could be labeled a reverse odd-lot case. The claimant is seeking to return to work while the employer is barring her from returning to work because it is concerned that further injury will cause her to become an odd-lot worker or otherwise render her permanently totally disabled. However, a defendant employer's refusal to give any sort of work to a claimant after he or she suffers an affliction may justify an award of disability. McSpadden v. Big Ben Coal Co., 288 N.W.2d 181 (Iowa 1980). Similarly, a claimant's inability to find other suitable work after making bona fide efforts to find such work may indicate that relief would be granted. Id. In Parr v. Nash Finch Co., (Appeal decision, October 31, 1980) the Industrial Commissioner stated after analyzing the decisions of McSpadden, 228 N.W.2d 181 and Blacksmith v. All-American, Inc., 290 N.W.2d 348 (Iowa 1980): Although the court stated that they were looking for the reduction in earning capacity it is undeniable that it was the "loss of earnings" caused by the job transfer for reasons related to the injury that the court was indicating justified a finding of "industrial disability." Therefore, if a worker is placed in a position by his employer after an injury to the body as a whole and because of the injury which results in an actual reduction in earning, it would appear this would justify an award of industrial disability. This would appear to be so even if the worker's "capacity" to earn has not been diminished. A finding of fact will be made that claimant is currently physically able to do some of the full-time finish operator jobs being performed at Sheller-Globe. It is unclear whether seniority is a total bar to claimant's return to work as the defendant did not introduce sufficient evidence for a determination to be made on this fact question. The refusal of Sheller-Globe to return claimant to work at its Keokuk plant has resulted in a substantial loss of earning capacity by claimant. Taking all appropriate factors into account, it is concluded that claimant's industrial disability is 75 percent. FINDINGS OF FACT 1. Claimant is 29 years old. 2. Claimant obtained an eighth grade education and then subsequently obtained a GED. 3. Claimant has a congenital back condition. 4. Claimant injured her back at home in 1985. 5. Claimant had back surgery in 1985 as a result of her 1985 back injury at home. 6. Claimant was off work from February 7, 1985 through January 28, 1986 because of her back injury at home in 1985. 7. Claimant's 1985 surgery was a success and as a result she was able to do her job when she returned to Sheller-Globe on January 29, 1986. 8. Claimant was required to do a job at Sheller-Globe on February 19, 1986 at a high rate of speed that should have been performed by more than one person. 9. Claimant materially aggravated a preexisting back condition on February 19, 1986 while working for Sheller-Globe with resulting whole body impairment. 10. The job that claimant was performing at Sheller-Globe on February 19, 1986 was modified after claimant injured herself on that date. 11. Claimant's current whole body impairment is attributable in part to 1) her congenital back condition; 2) her 1985 back injury at home; and 3) her 1986 work-related injury. 12. Claimant is currently physically able to do some full-time jobs at Sheller-Globe. 13. Sheller-Globe currently refuses to allow claimant to do a full-time job at its Keokuk plant because of fear of further injury to claimant. 14. Claimant returned to work at Sheller-Globe on June 16, 1986. 15. Claimant's industrial disability is 75 percent. 16. Claimant's stipulated weekly rate of compensation is $245.36. CONCLUSIONS OF LAW Claimant has established by a preponderance of the evidence that she materially aggravated her preexisting back condition on February 19, 1986 while working for Sheller-Globe. Claimant has established by a preponderance of the evidence that there is a causal connection between her work-related injury of February 19, 1986 and some of her whole body impairment. Defendant herein had the burden to produce sufficient evidence to allow for apportionment in this case and it failed to carry its burden in this regard. Claimant has established by a preponderance of the evidence that she is entitled to healing period benefits from February 19, 1986 through June 15, 1986. Claimant has established by a preponderance of the evidence that she is entitled to 375 weeks of permanent partial disability benefits commencing on June 16, 1986 at a rate of $245.36. ORDER IT IS THEREFORE ORDERED: That defendant pay healing period benefits from February 19, 1986 through June 15, 1986 at a weekly rate of two hundred forty-five and 36/100 dollars ($245.36). That defendant pay claimant three hundred seventy-five (375) weeks of permanent partial disability benefits commencing on June 16, 1986 at a weekly rate of two hundred forty-five and 36/100 dollars ($245.36). That defendant pay accrued benefits in a lump sum and pay interest pursuant to section 85.30, The Code. That defendant be given credit for benefits already paid to claimant. That defendant pay the costs of this action pursuant to Division of Industrial Services Rule 343-4.33. That defendant shall file claim activity reports, pursuant to Division of Industrial Services Rule 343-3.1(2), as requested by the agency. Signed and filed this 19th day of April, 1988. T. J. McSWEENEY DEPUTY INDUSTRIAL COMMISSIONER Copies to: Mr. James P. Hoffman Attorney at Law P.O. Box 1066 Middle Road Keokuk, Iowa 52632-1066 Mr. Harry W. Dahl Attorney at Law 974 73rd St, Suite 16 Des Moines, Iowa 50312 1802; 1803; 2206 Filed 4-19-88 T. J. McSweeney BEFORE THE IOWA INDUSTRIAL COMMISSIONER PAM ATTERBERG, Claimant, File No. 814741 vs. A R B I T R A T I 0 N SHELLER-GLOBE CORPORATION, D E C I S I 0 N Employer, Self-Insured, Defendant. 1802; 1803; 2206 Held in arbitration that claimant was entitled to healing period benefits and 375 weeks of permanent partial disability benefits based on industrial disability of 75 percent. Claimant was physically able to do some full-time jobs for Sheller-Globe; however, Sheller-Globe decided not to allow her to return because of fear she would injure herself again. Liability was imposed in this case on a material.aggravation theory because claimant had a preexisting back condition and had injured her back at home. Apportionment was not allowed as it was concluded that defendant had the burden on this issue and failed to carry its burden. BEFORE THE IOWA INDUSTRIAL COMMISSIONER THOMAS J. BREITBACH, Claimant, File No. 814804 vs. A R B I T R A T I O N FDL FOODS, INC., D E C I S I O N Employer, Self-Insured, F I L E D Defendant. FEB 15 1989 INDUSTRIAL SERVICES STATEMENT OF THE CASE This is a proceeding in arbitration brought by claimant Thomas J. Breitbach against defendant self-insured employer FDL Foods, Inc., to recover benefits under the Iowa Workers' Compensation Act as the result of an injury sustained on December 27, 1985 (originally set forth in the petition as December 7, 1985). This matter came on for hearing before the undersigned deputy industrial commissioner in Dubuque, Iowa, on December 8, 1988, and was considered fully submitted on that date. Claimant appeared by his attorney, Joseph Bitter. Defendant appeared by attorney James Heckmann. The evidence in this case consists of claimant's exhibits 1 through 4, defendant's exhibit 1, and the testimony of the following witnesses: Claimant, Helen Breitbach, Dawn Hocking, and Red Rouse. ISSUES Pursuant to the prehearing report approved by the deputy, the following issues remain for determination: Whether claimant sustained an injury on December 27, 1985, arising out of and in the course of his employment; whether the alleged injury was a cause of permanent disability; whether claimant is entitled to compensation for temporary, healing period or permanent disability; the commencement date for permanent partial disability, if awarded; whether asserted affirmative defenses under Iowa Code sections 85.16(1) and (3) preclude recovery; whether claimant is entitled to medical benefits; whether medical expenses are causally connected to the work injury; and, taxation of costs. The parties stipulated to: The existence of an employer-employee relationship at the time of the alleged injury; that the alleged injury caused temporary disability; that claimant's injury is an industrial disability to the body as a whole; that in the event of an award of weekly benefits, the appropriate rate of weekly compensation is $115.89; and, that fees charged for medical services or supplies are fair and reasonable and incurred for reasonable and necessary treatment. REVIEW OF THE EVIDENCE Claimant testified that he was employed by FDL Foods, Inc., in a meat cutting operation on the "gut line" at the time of his injury, and that his duties involved separating intestines and shaving the sides of hogs. He had done the same job during the course of his employment, nearly five years at the time of his injury. Claimant was working the second shift on December 27, 1985, which began approximately 4:00 p.m. The job did not end at precisely the same time each day, but depended upon completion of the available work for a particular day. At the time of his injury, claimant had finished his work, but was cleaning up and had not yet punched out. Claimant testified that he works in white clothes and a hard hat furnished by the employer. He testified that while hosing off his apron and picking it up from the floor on the hog kill main floor some 50 or 60 feet from his regular work station, while still wearing his whites and yellow rubbers, he was sprayed with water by a fellow employee unexpectedly, causing him to jump backwards and fall into a sterilizing tank of hot water approximately two feet deep. He testified that he was startled by being sprayed with water which he described as not extremely high pressure, but "enough to make you move." He was standing only about one foot from the sterilizing tank at the time. Claimant further testified that he fell backwards into the tank and burned his lower back, thighs and buttocks. Medical records of the Finley Hospital where claimant was treated reflect second degree burns to the buttocks, low back and upper posterior thighs. Claimant testified that it was part of his routine to change clothes before and after the day's work, that he had a locker and obtained clean company-supplied clothing from the company laundry room each day. It is undisputed that the person who sprayed claimant with water was a fellow employee known as Dawn Hocking, and that her act was intentional. Claimant testified that he was located where he usually cleaned his apron at the end of his shift at the time of his injury. However, all of the events preceding the injury were not routine. While maintaining that he did not have any idea why Ms. Hocking chose to spray him with water, claimant conceded that earlier that day, before a break (known as an "Avalon"), various employees were spraying each other with water. Further, claimant agreed that he.had himself sprayed Dawn Hocking "a couple times" with water earlier that day deliberately, and that he had also thrown (meat) product at her "a couple times." However, he maintained that Ms. Hocking had been the first person to spray or engage in such horseplay. Mr. Breitbach conceded that he knew his conduct was in violation of company policy and that he faced discipline; in fact, both he and Dawn Hocking were suspended by the employer after this incident. In rebuttal testimony, claimant testified that no such horseplay had taken place within the one to two hours prior to his injury. Dawn Hocking also testified. She confirmed that both she and claimant had engaged in throwing meat and spraying water at one another during the work shift prior to claimant's injury. However, she believed that the horseplay occurred after the Avalon break, rather than before that break. The Avalon occurred at approximately 6:30 p.m., while claimant indicated in his testimony that the injury was perhaps 8:30 p.m. Ms. Hocking testified that she did in fact spray claimant with water while he was picking up his apron as a means of "getting back" at claimant for spraying her earlier. She also agreed that the incident occurred at approximately 8:30 p.m. While Ms. Hocking testified that she "usually" did not spray fellow employees with water unless she was sprayed first, she did not specifically testify as to who began the exchange of horseplay incidents on this occasion. She further indicated that she was engaged in cleaning her own apron and boots with a hose and that claimant was facing her approximately fifteen feet away when she sprayed him, "a matter of a couple seconds." Red Rouse testified that he was labor relations director of FDL Foods on December 27, 1985, and that it was his responsibility to investigate the injury. He testified that he interviewed claimant at the hospital on December 30, 1985 and January 2, 1986. His notes were contained in defendant's exhibit 1. Those contemporaneous notes are consistent with the testimony of claimant and Dawn Hocking. Claimant is quoted as stating that about one-half way through the night shift, he tossed a piece (presumably of meat) back and hit Dawn, but that she kept throwing at him; that she threw some and hit him in the neck and it ran down the inside of his shirt. Further, that claimant told "Butch" (apparently a supervisor) who told them to stop. That Butch stands overhead to see if he can catch them, but that participants look up first to see if he is there before throwing meat. When asked why he thought Ms. Hocking sprayed him, claimant is paraphrased as indicating a lack of knowledge, unless some water got on her when he was spraying his apron. Claimant further indicated that Ms. Hocking stated "knock it off" just before spraying him. APPLICABLE LAW AND ANALYSIS The real fighting issue in this case is whether claimant is entitled to any relief at all by reason of his participation in the horseplay that was the clear and obvious cause of his injury. This question must be viewed in two separate lights. The claimant must prove by a preponderance of the evidence that his injury arose out of and in the course of his 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 his injury occurred at a place where he reasonably may be performing his 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). Also, defendant has raised affirmative defenses under Iowa Code sections 85.16(1) and (3) which provide: No compensation under this chapter shall be allowed for an injury caused: 1. By the employee's willful intent to injure the employee's self or to willfully injury another. .... 3. By the willful act of a third party directed against the employee for reasons personal to such employee. Under each subsection defendant bears the burden of establishing the affirmative defense. Reddick v. Grand Union Tea Co., 230 Iowa 108, 296 N.W. 800 (1941). Although both issues will be discussed in this decision, it is appropriate first to turn to the "arising out of and in the course of" issue. Of course, these are two separate concepts. While the "in the course of" requirement relates to an injury occurring 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, McClure, supra., the "arising out of" element refers to the cause and origin of an injury; the injury must be a natural incident of the work, meaning that it must be a rational consequence of a hazard connected with the employment. Musselman, supra.; Burt v. John Deere Tractor Works, 247 Iowa 691, 73 N.W.2d 732 (1956). Professor Larson discusses horseplay incidents at section 23.20, 1A Larson's Workmen's Compensation Law. He indicates that the problem can be reduced to four possible lines: (l) The "aggressor defense," resulting in denial of compensation in all such cases. (2) The New York rule: even the initiator or participant may recover if the horseplay was a regular incident of the employment as distinguished from an isolated act. (3) The view that the instigator should be treated the same as the non-participant, since it is the conditions of the employment that induce the horseplay. (4) The rule suggested in the headnote to this section: the participant should recover, if, by ordinary course-of-employment standards, his indulgence in horseplay does not amount to a substantial deviation from the employment. At section 23.00 of his treatise, Professor Larson indicates that the current trend is to treat the problem as a "course of employment" issue rather than a "arising out of" issue. However, the Iowa Court has so far viewed the problem as a "arising out of" problem. Wittmer v. Dexter Mfg. Co., 204 Iowa 180, 214 N.W. 700 (1927). See also Cedar Rapids Community School v. Cady, 278 N.W.2d 298 (1979) and Ford v. Barcus, 261 Iowa 616, 155 N.W.2d 507 (1968). The Wittmer case was a horseplay case. Claimant was injured while racing or wrestling with another employee to reach the time clock at the end of the day's work. Another employee endeavored to prevent claimant from reaching the time clock, causing him to fall and resulting in a fractured leg. The court indicated that both participates acted in a friendly spirit of fun and with no ill will. The court noted that the sole ultimate question in the case was whether the injury arose out of the employment relationship. Finding that there was substantial evidence to support the industrial commissioner's finding that claimant was a voluntary participant in the horseplay, benefits were denied. Expanding on that holding, the Court in Ford v. Barcus, supra., held: Horseplay which an employee voluntarily instigates and aggressively participates in does not arise out of and in the course of his employment and therefore is not compensable. The evidence is in some dispute as to how much time elapsed between isolated instances of horseplay on the date of claimant's injury. However, what this deputy finds significant is that there was an ongoing pattern of repeated incidents on that date. There is no evidence indicating that the employer condoned the conduct, while there.is specific evidence that the employer did not (claimant avoided the watchful eye of "Butch," and both participants were disciplined). Where multiple acts of at least two different types of horseplay, throwing meat and spraying water, occurred over a period of several hours and without any indication whatsoever that claimant at any time sought to withdraw from this pattern of conduct, it seems clear that claimant was a voluntary participant. The mere fact that one or two hours may have elapsed between horseplay incidents is of no real significance. As claimant was a voluntary participant in the horseplay that led to his injury, he has failed to meet his burden of proof in establishing that the injury arose out of his employment relationship. The deputy further is of the view that even if claimant had established that this injury arose out of the employment relationship, his claim must still fail. This is so by reason of the affirmative defense set forth in Iowa Code section 85.16(3). Defendant employer has failed to meet its burden of proof under section 85.16(1) of showing claimant's willful intent to injure himself or another. No evidence in this record reflects any intent to injure, but merely a series of friendly if ill-advised horseplay incidents. Yet, section 85.16(3) mandates a different result. The evidence in this case conclusively establishes that claimant's injury was caused by the willful act of a third party directed against claimant for reasons personal to him. This subsection does not require any willful intent to injure, as does 85.16(1), but only a willful act "directed against the employee." while benefits have keen allowed where an insane coemployee murdered claimant's decedent, Cedar Rapids Community School v. Cady, supra., the affirmative defense was not established in that case because, as the court noted, the attack was not motivated by reasons personal to claimant's decedent. There is no indication in this record that Dawn Hocking is deranged and her testimony indicated that she is a rational and reasonable person, although her judgment might perhaps be criticized by reason of the result of her horseplay participation. All of the evidence shows that her reason for spraying claimant with water was personal to him, and related to the earlier incidents of horseplay in which the two had repeatedly participated over the course of the work shift. Her act was willful, directed against claimant, and undertaken for reasons personal to claimant. Therefore, the affirmative defense set forth in Iowa Code section 85.16(3) has been established. FINDINGS OF FACT THEREFORE, based upon the evidence presented, the following ultimate facts are found: 1. Claimant was employed by defendant FDL Foods, Inc., on December 27, 1985. 2. On that date, claimant and fellow employee Dawn Hocking both participated in repeated acts of horseplay, both throwing pieces of meat and spraying water at one another. 3. While claimant was cleaning up at the end of his assigned duties, he was sprayed once again with water by Ms. Hocking, which startled him and caused him to fall into a sterilizing tank full of hot water, causing burn injuries. 4. During the course of his shift on the date of his injury, claimant at no time indicated an intent to discontinue his voluntary participation in the repeated and multiple acts of horseplay. 5. Fellow employee Hocking intended to spray water at claimant at the time of his injury and did so for reasons personal to claimant, that is, by way of continuing the pattern of horseplay that had developed over the work shift. CONCLUSIONS OF LAW WHEREFORE, based upon the principles of law previously cited, the following conclusions of law are made: 1. Claimant has failed to meet his burden of proof in establishing that his injury of December 27, 1985 arose out of his employment with defendant FDL Foods. 2. Defendant has met its burden of proof under Iowa Code section 85.16(3) in establishing that claimant's injury was caused by the willful act of a third party directed against claimant for reasons personal to him. ORDER THEREFORE, IT IS ORDERED: Claimant shall take nothing from this hearing. Costs are taxed to claimant pursuant to Division of Industrial Services Rule 343-4.33. Signed and filed this 15th day of February, 1989. DAVID RASEY DEPUTY INDUSTRIAL COMMISSIONER Copies To: Mr. Joseph J. Bitter Attorney at Law 5th & Locust Dubuque,Iowa 52001 Mr. James M. Heckmann Attorney at Law One CyCare Plaza, Suite 216 Dubuque, Iowa 52001 1105, 1403.30, 1603 Filed February 15, 1989 DAVID RASEY BEFORE THE IOWA INDUSTRIAL COMMISSIONER THOMAS J. BREITBACH, Claimant, File No. 814804 vs. A R B I T R A T I O N FDL FOODS, INC., D E C I S I O N Employer, Self-Insured, Defendant. 1105, 1403.30, 1603 Benefits denied where claimant was injured by willful act of horseplay directed against him by fellow employee; claimant was a voluntary participant. Denial was based on claimant's failure to prove injury arising out of employment and affirmative defense established by defendant. Unlike section 85.16(1), the defense of 85.16(3) does not require an intent to injure, but only a willful act directed at claimant. BEFORE THE IOWA INDUSTRIAL COMMISSIONER EUGENE A. DOBSON, Claimant, File No. 815036 vs. A R B I T R A T I O N SMITHWAY MOTOR EXPRESS, D E C I S I O N Employer, F I L E D and AUG 1 1989 LIBERTY MUTUAL INSURANCE CO., INDUSTRIAL SERVICES Insurance Carrier, Defendant. STATEMENT OF THE CASE This is a proceeding in arbitration brought by claimant Eugene A. Dobson against defendant employer Smithway Motor Express and defendant insurance carrier Liberty Mutual Insurance Company to recover benefits under the Iowa Workers' Compensation Act for an alleged injury of January 21, 1986. This matter was scheduled to come on for hearing at 1:00 p.m. on July 31, 1989, at the industrial commissioner's office in Des Moines, Iowa. The undersigned was present. Neither claimant nor defendant appeared. REVIEW OF THE EVIDENCE Claimant failed to present any evidence in support of the allegations found in his original notice and petition. At the time of hearing, neither an agreement for settlement nor a request for continuance was on file. Claimant has the burden of proving by a preponderance of the evidence that he sustained 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). FINDINGS OF FACT WHEREFORE, it is found: 1. Neither claimant nor defendant appeared at the scheduled time and place of hearing. 2. The undersigned deputy industrial commissioner was present and prepared to proceed to hearing. 3. At the time of the hearing, neither an agreement for settlement nor a request for continuance was on file with the industrial commissioner. 4. Claimant failed to present any evidence to support allegations of a compensable work injury. ORDER THEREFORE, IT IS ORDERED: Claimant has failed to meet his burden of proof that he sustained an injury which arose out of and in the course of his employment. Claimant take nothing from this hearing. Costs are taxed to the claimant pursuant to Division of Industrial Services Rule 343-4.33. Signed and filed this 1st day of August, 1989. DAVID RASEY DEPUTY INDUSTRIAL COMMISSIONER Copies To: Mr. Harold B. Heslinga Attorney at Law 118 North Market Street Oskaloosa, Iowa 52577 Mr. Jon Kurt Hoffmann Attorney at Law 500 Liberty Building Des Moines, Iowa 50309 1400, 1402 Filed August 1, 1989 DAVID RASEY BEFORE THE IOWA INDUSTRIAL COMMISSIONER EUGENE A. DOBSON, Claimant, File No. 815036 vs. A R B I T R A T I O N SMITHWAY MOTOR EXPRESS, D E C I S I O N Employer, and LIBERTY MUTUAL INSURANCE CO., Insurance Carrier, Defendant. 1400, 1402 Neither claimant nor counsel appeared at the hearing. No evidence in support of allegations of a compensable work injury was presented and claimant therefore failed to meet his burden of proof. BEFORE THE IOWA INDUSTRIAL COMMISSIONER IRWIN CUNNINGHAM, Claimant, File No. 815189 VS. A R B I T R A T I 0 N THATCHER PLASTICS, D E C I S I 0 N Employer, and U. S. INSURANCE GROUP, Insurance Carrier, Defendants. INTRODUCTION This is a proceeding in arbitration brought by the claimant, Irwin Cunningham, against his employer, Thatcher Plastics, and its insurance carrier, U.S. Insurance Group, to recover benefits under the Iowa Workers' Compensation Act as a result of an injury allegedly sustained July 25, 1985. This proceeding was held before the undersigned deputy industrial commissioner at Davenport, Iowa on May 21, 1987. A first report of injury was filed January 31, 1986. The record was considered fully submitted at close of hearing. The record consists of the testimony of claimant, of Roberta Cunningham and of Keith Herrick, as well as joint exhibits A through I and defendants' exhibits J through 0, all as identified on the exhibit lists submitted at hearing and part of the official file in this matter. ISSUES Pursuant to the prehearing report filed by the parties, the parties stipulated that claimant's rate of weekly compensation is $275.93, and that the provider of medical treatment would testify that the fees were reasonable and that treatment provided was reasonable and necessary treatment for the condition. The issues remaining for resolution are: 1. Whether claimant received an injury which arose out of and in the course of his employment; 2. Whether a causal relationship exists between the claimed injury and the claimed disability; 3. Whether claimant is entitled to benefits and the nature and extent of any benefit entitlement; CUNNINGHAM V. THATCHER PLASTICS Page 2 4. Whether claimant is entitled to payment of certain medical costs pursuant to section 85.27; and, 5. Whether notice of claimant's injury was appropriate under section 85.23. REVIEW OF THE EVIDENCE Claimant is 55 years old and a high school graduate who has also taken a community college math course. Claimant served in the air force. Claimant worked for the employer Thatcher Plastics from June 1954 through late 1985. He testified that he had worked thirty-one years as an auto trim setup and machine maintenance worker until that department closed in June 1985. Claimant reported that he was happy with that job and that it required no further retraining although he stated that he was always learning something new on the job. He reported that his employer was satisfied with his performance. Apparently, claimant was hired into that position as a swing shift worker, but routinely only worked the department one shift per five day week. Claimant's department was closed as part of a general shutdown of Thatcher Plastics' original production line. The department closing was posted in January 1985. Thatcher was a union employer and claimant was approximately 13th or 14th on the whole plant seniority list. He had approximately thirteen jobs from which he could bid as a result of his seniority. Claimant chose a new position as a tube department code printer. He characterized that position as entirely different. it involved a seven-day swing shift and six weeks on-the-job training. Claimant reported that he was learning his job "okay" and had no complaints from his supervisors. He indicated that his foreman said he was doing okay and that he himself didn't mind the job, but did feel under a strain learning to do it right. Claimant reported that the seven-day swing shift interfered with his life, that his friends were off when he was working, and that he was unable to attend church more than one Sunday per month. He reported that he could not sleep while working the 11:00 p.m. to 7:00 a.m. shift and that he would "cry all the way home." Claimant agreed that he had worked a five-day week 7:00 to 3:00 shift from May 20, 1985 to May 25, 1985 and that he had then worked the 11:00 p.m. to 7:00 a.m. shift. The Thatcher plant was shut down from June 29, 1985 through July 16, 1985. At that time claimant was then scheduled to return to work on the 3:00 p.m. to 11:00 p.m. shift. He was off work through July 22, 1985 for an upset stomach. Claimant returned to work on July 24, 1985 on the 3:00 to 11:00 shift. on July 25, 1985, claimant experienced pain at approximately 10:00 a.m. while at home. He reported that he had an uptight, hurting feeling in his chest and into his arm. He was admitted to the hospital intensive care unit between 1:00 and 2:00 p.m. Claimant was hospitalized under the care of William J. Chen, M.D., for approximately one week. Dr. Chen continued to care for claimant after his discharge and referred him to Philip A. I Habak, M.D., a cardiologist. CUNNINGHAM V. THATCHER PLASTICS Page 3 Dr. Chen released claimant for work on an eight hour work day on October 16, 1985. Claimant characterized that release as Dr. Chen stating he thought claimant should try to work. Claimant testified that he called Keith Herrick, Director of Industrial Relations at Thatcher Plastics, and questioned him concerning a work return. Claimant reported that he was offered the tube department code printer position with an offer of additional retraining. Claimant chose to take a voluntary layoff. Claimant apparently was subsequently offered a recall on a job "in molds.O Claimant refused that position, and pursuant to Thatcher's union contract, was voluntarily terminated. Claimant's exit interview, defendants' exhibit 0, states that claimant's reason for leaving was poor health due to stress caused by seven-day swing. As to whether working conditions are satisfactory, claimant further stated that he did not like to work the seven-day swing shift. Under comments, claimant stated: "After all those years I worked at Thatcher I think you could have found me a job I could have done, or gave me a leave of absence. I feel I was forced out." Claimant testified that he has not applied for work at Thatcher's since it returned to five-day shifts. He indicated that he might have tried to stay on his Thatcher job if he had known Thatcher was going to return to regular shifts. Subsequent to his voluntary termination, claimant apparently received a medical restriction from Dr. Chen that he work five-day weeks only. Claimant was awarded unemployment compensation benefits on that basis. Claimant reported that he looked for work that had no physical restrictions except he stated that he did not wish to work 11:00 p.m. to 7:00 a.m. Claimant found work as an exterminator. He earns $5.00 per hour in that employment and stated that he had earned $10.86 per hour at Thatcher. Claimant reported that he now tires easily although the physical exertion required on his current position is less than on his previous position. Claimant testified that he was unaware that Dr. Chen had diagnosed him as hypertensive prior to January or February 1985. Notes of Dr. Chen in evidence indicate the doctor noted that claimant had hypertension in May, August, and November, 1984. Claimant reported that Dr. Chen prescribed "LO-Pressor", as a medication to treat his hypertension in February 1985 and that the hypertension subsequently resolved. Claimant reported that prior to his job changes, he had no life stresses which might have created his high blood pressure or any other health problems. He reported that he neither smoked nor drank, but agreed that he had had previous problems with stomach pain and a potential ulcer. Claimant claims $40 in loss wages and $20 in expenses and mileage for a section 85.39 exam which Paul From, M.D., performed. He claims $25 in mileage expenses for his treatment by Philip A. Habak, M.D. Claimant testified that his wife had told Thatcher Plastics' nurse that claimant had had a heart attack. Claimant testified CUNNINGHAM V. THATCHER PLASTICS Page 4 that he felt [his employers] knew he wasn't at work and knew why. He testified that Mr. Herrick had stated he knew something like this would happen when the plant closed. Roberta Cunningham, claimant's wife, testified that she was also unaware of claimant's hypertension prior to January 1985. She reported that after January 1985, claimant was nervous, uptight, restless, and had trouble sleeping. She testified that nothing in the family's home situation accounted for those conditions. She characterized claimant as tired after his July 25, 1985 hospitalization. Keith Herrick testified that Thatcher Plastics employees are paid on an hourly and not a piece-work basis. He reported that the training period for any job is a function of the job itself, but that effort is made to accommodate workers who are trying to learn the job albeit with some difficulty. He characterized claimant as a little slower at learning, but as someone who would have learned his job in time. Mr. Herrick indicated that all jobs available as of April 23, 1985 required work on a seven-day [swing] shift. Herrick stated that the company anticipated that sixty-year-old, long-term employees, would have some difficulties adjusting to the change, but that the company was willing to work with its employees although it did not anticipate health problems. Herrick reported that claimant received weekly disability following July 25, 1985 and that paperwork for such disability did not indicate that the condition was work-related. He reported that Thatcher Plastics would consider claimant for a job if claimant were to apply. William Chen, M.D., reported on December 31, 1985 that claimant's blood pressure readings from his records were: 10-18-83, blood pressure 128/98; 2-1-84, blood pressure 120/90; 8-10-84, blood pressure 138/92; 2-4-85, blood pressure 144/100; 5-8-85, blood pressure 145/90; and 7-17-85, blood pressure 150/100. When Dr. Chen had last seen claimant on October 28, 1985, claimant's blood pressure was 104/70. Robert Weis, M.D., examined claimant on July 25, 1985, reporting that he was presented at the Muscatine General Hospital with the onset of right-sided anterior chest pain with some radiation into his upper arm and to the right side of his neck. Claimant denied dyspnea, palpations, syncope, but may have had some nausea and was diaphoretic. Dr. Weis reported that claimant's social history included that he had been employed for thirty-one and one-half years at the same company and had a job change six months ago which had caused claimant some severe stress. Philip A. Habak, M.D., reported on August 14, 1985 that claimant's electrocardiograms as well as cardiac enzymes performed on his Muscatine Hospital admission were all negative. He reported that a PYP infarction scan performed was interpreted as being positive. He reported that a treadmill stress test performed following claimant's discharge was negative. He CUNNINGHAM V. THATCHER PLASTICS Page 5 indicated that claimant apparently had an episode of hyperventilation after his discharge for which he required an emergency admission on an outpatient basis. Claimant's symptoms subsided after fifteen minutes of breathing deeply in a bag. Arterial blood gases obtained showed significant abnormalities and, thereby, confirmed the diagnosis of hyperventilation. A cardiac examination of August 14, 1985 by Dr. Habak revealed no over-accessibility or thrills. The left border was inside the mid-clavicular line and the first sound was split. The second sound was physiologically split. No murmurs were heard. Dr. Habak reexamined claimant on April 8, 1986. Claimant's blood pressure was then 130/84. Cardiac examination showed no over-accessibility or thrills, the first sound was split and the second sound was single. No murmurs were heard. Dr. Habak then opined that the data available appeared to be conflicting but it did not appear claimant had suffered any significant coronary event. He opined that a myocardial infarction had not occurred or was extremely minimal. He stated that the relationship between the event claimant had in July and his employment at that time was doubtful. Paul From, M.D., reviewed medical data concerning claimant submitted to him and examined claimant in his office on January 19, 1987. In a report of March 3, 1987, he stated that upon review of the medical data and his own examination, his impression was that claimant may have had a myocardial infarction in the past, but that he now had essentially no residuals. Dr. From indicated that a thallium stress test indicated a persistent perfusion defect of the posterior wall of the left ventricle as seen on exercise scans and on delayed scans. He reported that this was not an ischemic area which reperfused but was a fixed area of decreased perfusion most likely representing scarring involving the posterior wall of the left ventricle. Isotope ventriculogram had indicated a normal ejection fraction and normal ejection wave. Dr. From reported that as of the March 3, 1987 report, claimant had a completely normal electrocardiogram and that claimant was medically capable of returning to his usual employment. He further stated that there may have been some cardiac event in the past, as very sophisticated studies in the form of the PYP scan and the thallium treadmill scans suggest some scarring, but that there was no certainty as to when this might have occurred. He reported that even if claimant did have some problems, he did not appear to have any impairment as of March 3, 1987. He characterized claimant as capable of returning to the same work with Thatcher Plastics as he did before. APPLICABLE LAW AND ANALYSIS Of first concern is whether claimant received an injury which arose out of and in the course of his employment. Claimant has the burden of proving by a preponderance of the evidence that he received an injury on July 25, 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). CUNNINGHAM V. THATCHER PLASTICS Page 6 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 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 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 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.O 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). CUNNINGHAM V. THATCHER PLASTICS Page 7 Claimant has the burden of establishing causal connection between the employment and the injury. Bodish v. Fischer, Inc., 257 Iowa 516, 133 N.W.2d 867 (1965). A mere possibility is insufficient, a probability is necessary. A causal connection must exist. The injury must be a rational consequence of the hazard connected with the employment. Burt v. John Deere Waterloo Tractor Works, 247 Iowa 691, 73 N.W.2d 732 (1955); Sondag v. Ferris Hardware, 220 N.W.2d 903 (Iowa 1974). 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). Additionally, the court stated the following in Sondag at 905: II. In this jurisdiction a claimant with a pre-existing circulatory or heart condition has been permitted, upon proper medical proof, to recover workmen's compensation under at least two concepts of work-related causation. In the first situation the work ordinarily requires heavy exertions which, superimposed on an already-defective heart, aggravates or accelerates the condition, resulting in compensable injury. See Littell v. Lagomarcino Grupe Co., 235 Iowa 523, 17 N.W.2d 120 (1945). Claimant in such a case is aided by our liberal rule permitting compensation for personal injury even though it does not arise out of an 'accidentO or 'special incident' or 'unusual occurrence.' Olson v. Goodyear Service Stores, 255 Iowa 1112, 1116 125 N.W.2d 251, 254 (1963); Jacques v. Farmers Lumber & Supply Co.,242 Iowa 548, 552 47 N.W.2d 236, 239 (1951); Almquist v. Shenandoah Nurseries, 218 Iowa 724, 729, 254 N.W. 35, 38 (1934). IowaOs Littell rationale is paralleled in a portion of Professor Arthur Larson's attempt to fashion a logical working rule in heart cases. See 1A Larson's Workmen's Compensation Law S 38-83, p. 7-172: But when the employee contributes some personal element of risk--e.g., by having ... a personal disease--we have seen that the employment must contribute something substantial to increase the risk ... CUNNINGHAM V. THATCHER PLASTICS Page 8 In heart cases the effect of applying this distinction would be forthright: If there is some personal causal contribution in the form of a previously weakened or diseased heart, the employment contribution must take the form of an exertion greater than that of nonemployment life. ... Note that the comparison is not with this employeeOs usual exertion in his employment but with the exertions of normal nonemployment life of this or any other person. See also Beck v. State, 184 Neb. 477, 168 N.W.2d 532 (1969). Claimant's claim apparently is that the change in his job responsibilities and the accompanying change from work on a day shift only to swing-shift employment produced his July 25, 1985 hospitalization. Initially, we note that under Sondag principles, work on a swing shift as opposed to work during regular daytime hours only might well result in exertions beyond those of normal nonemployment life of this claimant or of any other person. We note, also, that we have no expressed medical diagnosis as to what actual condition claimant was treated for on his alleged injury date. Dr. Habak has indicated that while, claimant had a positive PYP infarction scan, he had a negative treadmill test and it did not appear that a significant coronary event had occurred. He further opined that claimant had either had no myocardial infarction or an extremely minimal infarction. He expressed the opinion that any relationship between the July, 1985 event and claimant's employment was doubtful. Dr. From, who examined claimant only, opined that, based upon findings in the medical record, claimant may have had a myocardial infarction in the past, but that he essentially had no residuals and that there would be no certainty as to when that infarction may have occurred. Dr. Weis examined claimant on his hospital admission and noted that he had had the onset of right-sided anterior chest pain with some radiation into his upper arm and to the right side of his neck. He reported that claimant's social history did include a job change six months earlier which had caused claimant some severe stress. Dr. Weis' assessment was of atypical chest pain. He reported that it seemed unlikely that it would be a myocardial infarction given claimant's relatively few risk factors. Dr. Chen's medical records also do not reveal any conclusive diagnosis of a myocardial infarction. Hence, claimant has not shown that he received a myocardial infarction on July 25, 1985 which arose out of and in the course of his employment. Further, claimant has not established that, whatever the nature of the incident of that date, the incident, of itself, arose out of and in the course of his employment. Dr. Chen's records do show inconsistent increases in claimant's blood pressure readings from an October 18, 1983 examination through July 17, 1985. Claimant's blood pressure subsequently had dropped to 104/70 as of October 28, 1985. Dr. Chen had prescribed "LO-Pressor" for claimant's hypertension in February, 1985. Claimant was apparently taking that medication in October, 1985 as well. CUNNINGHAM V. THATCHER PLASTICS Page 9 Claimant and his wife reported that, prior to his job change, claimant had had no life stresses which might have created his high blood pressure or any other health problems. However, no physician has opined that claimant's increases in his blood pressure to July 17, 1985 related to the change in his working conditions. Causal relationship is in the realm of expert testimony and is a question "with respect to which only a medical expert can express an intelligent opinion.O Bradshaw v. Iowa Methodist Hospital, 251 Iowa 375, 101 N.W.2d 167 (1960). Consequently, we do not accept claimant's and his spouse's lay opinion testimony as sufficient to establish that a causal connection existed and the claimant's injury was a rational consequence of the hazard connected with the employment. We note also that the time, place and circumstances of claimant's alleged injury do not suggest an injury occurring in the course of the employment. Claimant's onset of chest pains was at home at approximately 10:00 a.m. That time was both considerably after claimant had ended his previous evening's work shift and considerably prior to when claimant would begin working the 3:00 p.m. to 11:00 p.m. shift to which he was apparently assigned for July 25, 1985. Claimant had only worked July 24, 1985 after an absence from work from June 29, 1985 through July 22, 1985 either because of unrelated illness or because of a plant shutdown. That fact also suggests that claimant, as of the morning of July 25, 1985, was not under such significant stress related to his working conditions that those conditions would have causally contributed to the incident of that date. We do not find that claimant has established an injury arising out of and in the course of his employment. We note that, had claimant so established an injury, his claim would have failed on other grounds. The record does not establish that claimant gave notice to his employers. Claimant testified that his wife told the company nurse that claimant had had a heart attack. Claimant further testified that he felt his employers knew he was not at work and that they knew why. Keith Herrick testified that the company had anticipated that long-term, older employees would have some difficulties adjusting to the change, but had not anticipated health problems. He reported that claimant received weekly disability following the July, 1985 incident and that paper work for such disability did not indicate that the condition was work related. 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. Department of Transportation, 296 N.W.2d 809, 811 (Iowa 1980). ClaimantOs employer did not have sufficient information to suggest that claimant's condition resulted from his employment. Hence, the actual knowledge requirement under section 85.23 was not satisfied. Likewise, as is noted above, no physician has conclusively stated that claimant had a myocardial infarction or that claimant had any condition resulting in either permanent physical impairment or permanent disability. Dr. From, who last examined claimant, indicated that claimant could return to his usual duties with Thatcher Plastics. The record suggests that claimant CUNNINGHAM V. THATCHER PLASTICS Page 10 left work with Thatcher Plastics because he did not choose to work swing shifts. The only medical opinion suggesting that working those shifts would not be in claimant's physical best interests was the opinion of Dr. Chen rendered after claimant left work and rendered in relationship to claimant's unemployment compensation benefit appeal. We do not believe that that alone would have been sufficient to establish any industrial disability resulting from claimant's decision to leave Thatcher Plastics' employ. FINDINGS OF FACT WHEREFORE, IT IS FOUND: Claimant is 55 years old. Claimant worked 31 years as an auto trim setup and machine maintenance worker with Thatcher Plastics. Claimant received notice from Thatcher Plastics in January, 1985 that that department would close in June, 1985. Claimant was 13th or 14th on the plant's seniority list and was able to select a new position as a tube department code printer. That job involved a seven-day swing shift and six weeks of on-the-job training. Claimant learned the job okay and had no complaints from the supervisors. Claimant had difficulty adjusting to the swing shifts. Claimant's blood pressure increased inconsistently from October 18, 1983 through July 17, 1985. Dr. Chen prescribed "LO-Pressor" for claimant's hypertension in February, 1985. Claimant did not work from June 29, 1985 through July 22, 1985 on account of either a plant shutdown or due to medical reasons. Claimant returned to work July 24, 1985 on the 3:00 p.m. to 11:00 p.m. shift. On July 24, 1985, claimant experienced pain at approximately 10:00 a.m. Claimant was admitted to the Muscatine General Hospital between 1:00 and 2:00 p.m. on July 25, 1985. Claimant then had right-sided anterior chest pain with some radiation into his upper arm and to the right side of his neck. Any myocardial infarction which claimant sustained was an insignificant coronary event and cannot be placed with certainty as to time of occurrence. CUNNINGHAM V. THATCHER PLASTICS Page 11 Medical testimony relating claimant's increased hypertension to work-related stresses is lacking. CONCLUSIONS OF LAW THEREFORE, IT IS CONCLUDED: Claimant has not established an injury of July 25, 1985 which arose out of and in the course of his employment. ORDER THEREFORE, IT IS ORDERED: Claimant take nothing from this proceeding. Claimant is assessed costs of this proceeding. Signed and filed this 18th day of September, 1987. CUNNINGHAM V. THATCHER PLASTICS Page 12 HELEN JEAN WALLESER DEPUTY INDUSTRIAL COMMISSIONER Copies To: Mr. David W. Newell Attorney at Law 323 East Second Street P.O. Box 175 Muscatine, Iowa 52761 Ms. Dorothy L. Kelley Attorney at Law 1000 Des Moines Building Des Moines, Iowa 50309 1108.10, 2202 Filed September 18, 1987 HELEN JEAN WALLESER BEFORE THE IOWA INDUSTRIAL COMMISSIONER IRWIN CUNNINGHAM, Claimant, File No. 815189 VS. A R B I T R A T I 0 N THATCHER PLASTICS, D E C I S I 0 N Employer, and U. S. INSURANCE GROUP, Insurance Carrier, Defendants. 1108.10, 2202 No injury which arose out of and in the course of claimant's employment was found as a result of claimant's hospitalization. No medical testimony related claimant's increased hypertension to a change in work position and a change from day shift to swing shift work and where no medical testimony supported claimant's claim of myocadial infarction at the time of hospitalization. BEFORE THE IOWA INDUSTRIAL COMMISSIONER ISAAC WYANT, Claimant, File Nos. 815193 867537 vs. A R B I T R A T I O N CENTURY MOTOR FREIGHT, D E C I S I O N Employer, and F I L E D FARMERS INSURANCE GROUP, MAR 05 1990 Insurance Carrier, INDUSTRIAL SERVICES Defendants. INTRODUCTION This decision addresses two proceedings in arbitration which have been brought by Isaac Wyant against Century Motor Freight, his former employer, and Farmers Insurance Group, the employer's insurance carrier. File number 815193 deals with a back injury which occurred on January 24, 1986. File number 867537 deals with a shoulder injury which occurred on September 24, 1987. The two proceedings were consolidated and heard at Des Moines, Iowa on August 18, 1989. The record in the proceedings consists of jointly offered exhibits 1 through 13 and defendants' exhibits A through L. The record also contains testimony from Isaac Wyant, John Van Arsdale, and Kent Jayne. ISSUES The only issue presented by the parties is determination of the extent of permanent disability which resulted from each of the injuries. Claimant asserts that he is permanently, totally disabled and relies upon the odd-lot doctrine. It was stipulated that the rate of compensation applicable to the January 24, 1986 injury is $457.95 per week and that for the September 24, 1987 injury the correct rate of compensation is $485.00 per week. It was stipulated that healing period compensation had been paid whenever due in both cases and that any permanent partial disability compensation which is awarded for the 1986 injury is payable commencing July 7, 1986. It was stipulated that any permanent disability compensation payable for the 1987 injury should commence on May 6, 1988. It was further stipulated that 51 5/7 weeks of permanent partial disability compensation has been paid for the 1986 injury and that 60 weeks of permanent partial disability compensation has been paid for the 1987 injury. No claim was made for additional medical expenses. SUMMARY OF EVIDENCE All the evidence referred to in the Introduction, as well as the demeanor of those who testified at hearing, was considered when deciding this case. The lack of a reference to any particular part of the record does not indicate that it was overlooked. The evidentiary facts in this case are not seriously disputed by the parties except with regard to some of the events which occurred in 1988 dealing with the offer made by the employer to provide work for claimant and also with regard to the general availability of work which claimant is capable of performing and obtaining. The pertinent medical evidence is provided by claimant's treating physicians, William R. Boulden, M.D., and Scott B. Neff, D.O., without contradiction from any other physician. Isaac Wyant is a 57-year-old married man who has five grown children. Wyant stated that his formal education ended with the eighth grade, although the record at one point reflects he had represented that he had completed the tenth grade.. Wyant denied having any further formal education or having served in the military. Wyant's work history contains some remote experience working on a farm, coal yard, lumberyard and department store. Approximately 35 years ago, he began driving a truck for Rock Island Motor Transit Company where he remained employed for 25 years until the company closed. He worked briefly for American Freight Systems, Inc., and then moved to Century Motor Freight approximately 10 years ago. Wyant stated that he worked the dock, performed delivery and pickup of freight, and also performed over-the-road driving. Wyant's health history as described by him includes normal childhood diseases, a left shoulder problem which resolved with treatment several years ago, a left thumb injury that occurred in 1950, an appendectomy in the early 1960's and pneumonia in 1984 (exhibit 1, page 81). Claimant specifically denied having any problem with his right shoulder or back prior to January of 1986. On January 24, 1986, Isaac Wyant was making a delivery in Rock Island, Illinois when the track of an overhead type door failed and the door fell on him. Initially, he received conservative medical treatment from Scott Q. Carver, M.D., and William R. Boulden, M.D. A CT scan was interpreted as being normal. The diagnosis of a lumbosacral strain was made (exhibit 1, page 13). Claimant was released to return to work on March 24, 1986 (exhibit 1, page 12). Claimant continued to complain of his back after he resumed employment. He was taken off work a second time by Dr. Carver on August 8, 1986 (exhibit 1, pages 73 and 80). On August 13, 1986, Dr. Carver prescribed that the seat in the truck which claimant drove be replaced (exhibit 1, pages 73 and 79). By August 25, 1986, claimant had improved and was released to return to work (exhibit 1, pages 22, 73 and 79). On September 24, 1987, Wyant injured his right shoulder while hooking a double-bottom trailer. He was treated with medication, but was not immediately taken off work. When claimant's complaints did not resolve he was referred to Scott B. Neff, D.O., who initially diagnosed subacromial impingement of the right shoulder (exhibit 1, page 30). After diagnostic testing had been completed, a further diagnosis of a complete tear of the right rotator cuff was made and surgery was recommended (exhibit 1, pages 29, 101 and 102). On January 6, 1988, impingement syndrome release with rotator cuff repair surgery was performed by Dr. Neff (exhibit 1, pages 29 and 91-100). Claimant's shoulder was noted to be extensively deteriorated. While recuperating from shoulder surgery, claimant was again seen by Dr. Boulden regarding his back. Dr. Boulden diagnosed claimant as having degenerative disc disease of the lumbar spine. Conservative treatment was provided. Dr. Boulden stated that claimant could not return to heavy physical work due to the problems with his back (exhibit 1, page 28). On April 6, 1988, Dr. Neff indicated that claimant would have permanent impairment of his shoulder as well as in his back. He confirmed that claimant would not be able to return to his former occupation of a truck driver (exhibit 1, pages 24 and 26). On April 22, 1988, Dr. Boulden reported that claimant's problems are related to the original injury (exhibit 1, page 26). On April 28, 1988, Dr. Boulden reported that claimant would reach maximum improvement regarding his back condition on May 9, 1988. He indicated that claimant should observe permanent restrictions to avoid bending, twisting, and prolonged sitting of more than 30 minutes. He assigned a 10 percent permanent impairment rating (exhibit 1, page 25). On June 3, 1988, Dr. Neff reported that maximum healing from the shoulder surgery had occurred on May 6, 1988 (exhibit 1, page 25; exhibits H and L). Claimant has not returned to work since being taken off for the shoulder injury. In early May of 1988, claimant met with Century Motor Freight representative John Van Arsdale and possibly with Andy Selenia. According to claimant, he was told at that meeting that the employer's policy was to not take anyone back to work with restrictions. Claimant stated that after that meeting, vocational consultant Kent Jayne became involved and in early July, Jayne advised claimant that Century would not reemploy him with restrictions. Claimant stated that on July 12, 1988 he sent a letter to John Van Arsdale asking for a retirement application. Claimant stated that approximately two months later he was informed by his employer that a run had been arranged for him. Claimant stated that he had held that same run in the past, but that it proved to be unreliable and that in time so much of the freight was diverted to other runs that he was working only one day per week. He then used his seniority to bump out to a different run. Claimant stated that he asked his employer if he would be able to move into a different run if the St. Paul runs dwindled and that he was told he could not move. Claimant stated that he had some concern that certain parts of the work such as blocking, tie downs and pulling chain binders might exceed the restrictions which his doctor had recommended. The job description for the job offered indicated that it would be necessary for claimant to block and brace freight, hook and drop trailers, and that he would have to drive for up to two hours between breaks (exhibits B and 5). Claimant acknowledged that when he was deposed, he had stated that the job did meet Dr. Boulden's restrictions. Claimant also stated at hearing that he felt the company was not sincere in its job offer. Claimant elected to take an early retirement with a pension of $1,000 per month. He stated that if he had remained employed and worked until age 65, as he had hoped to do, his pension would be $2,000 per month. John Van Arsdale confirmed that if claimant had retired at age 65, the pension would be $2,000 per month. Van Arsdale stated that retirement in the range of age 60 or 62 is more common than at age 65, but that he had no reason to doubt claimant's testimony of wanting to wait until age 65 to retire. John Van Arsdale stated that when he met with claimant in May of 1988 he told claimant that the medical information did not look good for permitting claimant to return to work as a driver or dock worker and that he suggested claimant look for other employment. Van Arsdale testified that he then started the process to obtain vocational rehabilitation services for claimant and that Kent Jayne became involved as a result. Van Arsdale stated that after working with Jayne and union representatives, a job proposal was developed in July, but that due to scheduling conflicts, a meeting with claimant could not be arranged until September 8, 1988. Van Arsdale stated that the job which is described in exhibit B was offered and that questions were asked at the meeting. Van Arsdale stated that claimant was told that the company would accommodate him, even to the extent of hiring someone locally to assist if claimant broke down while on the road. Van Arsdale stated that the job was available and had been available and that it had been run on a daily basis. Van Arsdale stated that on the day following the meeting, he received notice that claimant had declined the job and had elected to retire. Van Arsdale stated that Andy Selenia, a company representative at the Des Moines terminal for Century Motor Freight, had been of the understanding that employees with restrictions would not be allowed to return to work, but that he then made Selenia aware that his understanding had been incorrect. Kent Jayne testified that when he became involved in this case, his initial goal was to clarify claimant's medical status and possibly arrange a return to work with Century Motor Freight. Jayne related that the optimum choice for seeking return to work of an injured employee is with the employer, but that when he initially contacted Andy Selenia, the manager of the Des Moines terminal, Selenia told him that company policy would not allow a return to work with restrictions. Jayne stated that he was subsequently advised by Van Arsdale that work with restrictions was a possibility. Jayne stated that he obtained information from Drs. Neff and Boulden which would permit claimant to return to truck driving with restrictions. Jayne confirmed Van Arsdale's testimony regarding the offer of the Des Moines to St. Paul run and of the company's assurance that claimant would not be required to violate his medical restrictions. Jayne testified that on the day following the meeting, he was informed by claimant's attorney that the offer was declined and that the employer deserved a "pat on the back" for its efforts. Jayne stated that he was then informed that claimant wanted to continue with other job placement efforts. Jayne stated that claimant's restrictions would place him in the light work status. Jayne stated that, within the Des Moines area, there were 900-1,000 jobs per year which would be open and available to claimant. Jayne stated that he had checked with employers and found several positions open, including positions in security, courier service and limo driver. He stated that the pay scale would range from $3.87 per hour to $10.00 per hour. Jayne stated that he had not given those job leads to claimant prior to the time of hearing. Jayne stated that Nancy Hendricks, one of his subordinates, had sent claimant a computer printout of targeted occupational areas based upon a transferrable skills analysis. A review of the list, which is found at exhibit 2, pages 154-156, shows it to contain a large number of positions. No evidence was introduced regarding whether or not any of the jobs such as "stand-in, balcony worker, scoreboard operator, raw juice weigher, flash adjuster, hat blocker, powder truck driver, dinkey operator, yeast distiller, coke crusher operator" or any of the others exist in appreciable numbers in the Des Moines area. Following his decision to decline the job which had been offered by Century Motor Freight, claimant did seek other jobs (exhibit 6). Claimant continued to have problems with his back which led to Dr. Boulden performing surgery on May 10, 1989. Dr. Boulden described the surgery as a decompression laminectomy of L5-S1 for decompression of the nerves of L5. Dr. Boulden reported that the surgery had resulted in some reduction of claimant's pain and that the prognosis was good. He stated that he expected claimant to have a 10 percent impairment when the recuperative process was completed. Dr. Boulden related that claimant could possibly drive a truck if he would be able to get out frequently (exhibit 1, page 3; exhibit I). Claimant agreed that the surgery had taken away his pain, but that he still experienced numbness in his leg. At the time of hearing, claimant had not yet been released by Dr. Boulden to resume employment. On July 14, 1989, Dr. Boulden reported that claimant's disability had increased from 10 percent to 15 percent as a result of the surgery. He recommended restrictions against bending, twisting or lifting and also against sitting for more than 45 minutes (exhibit 1, page 14). On April 7, 1988, Dr. Neff provided a rating for claimant's shoulder of 12 percent of the body as a whole (exhibit 1, pages 44 and 45). APPLICABLE LAW AND ANALYSIS Since claimant has an impairment to the body as a whole, an industrial disability has been sustained. Industrial disability was defined in Diederich v. Tri-City Railway Co., 219 Iowa 587, 593, 258 N.W.2d 899, 902 (1935) as follows: "It is therefore plain that the legislature intended the term 'disability' to mean 'industrial disability' or loss of earning capacity and not a mere 'functional disability' to be computed in the terms of percentages of the total physical and mental ability of a normal man." Functional impairment is an element to be considered in determining industrial disability which is the reduction of earning capacity, but consideration must also be given to the injured employee's age, education, qualifications, experience and inability to engage in employment for which he is fitted. Olson v. Goodyear Service Stores, 255 Iowa 1112, 1121, 125 N.W.2d 251, 257 (1963). Industrial disability or loss of earning capacity is a concept that is quite similar to impairment of earning capacity, an element of damage in a tort case. Impairment of physical capacity creates an inference of lessened earning capacity. The basis element to be determined, however, is the reduction in value of the general earning capacity of the person, rather than the loss of wages or earnings in a specific occupation. Post-injury earnings create a presumption of earning capacity. The earnings are not synonymous with earning capacity and the presumption may be rebutted by evidence showing the earnings to be an unreliable indicator. Carradus v. Lange, 203 N.W.2d 565 (Iowa 1973); Holmquist v. Volkswagon of America, Inc., 261 N.W.2d 516 (Iowa App. 1977) A.L.R.3d 143; Michael v. Harrison County, 34th Biennial Report, 218 (1979); 2 Larson Workmen's Compensation Law, sections 57.21 and 57.31. According to claimant's testimony, his gross wages for 1985, 1986 and 1987 have been approximately $42,000, $32,000 and $39,000, respectively. Of those totals, he related that taxes had consumed approximately $13,000, $10,000 and $14,000, respectively. The evidence showed that, when claimant was receiving his pension, and workers' compensation permanent partial disability benefits, there were times when he actually had more spendable income than what had been available to him while he was actually working. It appears as though claimant might have been capable of performing the St. Paul run which was offered to him, although there is also ample evidence in the record from which claimant could have reasonably believed that the offer was not made in good faith. At the time the offer was made, Dr. Boulden's restriction of 30 minutes of sitting while driving was apparently in effect and it is difficult for the undersigned to reconcile that restriction with over-the-road truck driving. In any event, if claimant had accepted the offered job, if the job had provided regular work, and if claimant would have been capable of performing that work on a long-term, sustained basis, the reduction in earnings which claimant has experienced would have been avoided. The fact that a major reduction in earnings had been avoided would not, however, relieve the employer from all liability for industrial disability. on the other hand, there is no certainty in the record of this case with regard to claimant's ability to perform that work on a long-term, sustained basis. If anything, the evidence from Drs. Neff and Boulden does not provide any basis for particular optimism. The fact that claimant has sustained a substantial degree of industrial disability is clearly demonstrated by his lack of success in obtaining work of any type with any other employer. The fact that Century Motor Freight is the only employer who has offered him a job is strong evidence of a very substantial degree of disability. Claimant urges application of the odd-lot doctrine. Making a bona fide search for work and finding none is one method of making a prima facie showing of permanent total disability. That showing has been made in this case. The burden of showing availability of suitable employment has therefore shifted to the defendants. The evidence of available suitable employment as provided by Kent Jayne, when coupled with the offer of employment from Century Motor Freight, is sufficient to rebut the prima facie showing of total disability. It is not sufficient, however, to limit claimant's recovery to the amount of permanent partial disability which has been voluntarily paid by the defendants. The computer printout of potential jobs is found to not be of any material value since there is no showing with regard to how many, if any, of those jobs exist in the Des Moines, Iowa area or of how frequently openings in those jobs become available. The jobs of which Kent Jayne testified provided a level of earnings which was well below the level that claimant had enjoyed as a driver for Century Motor Freight. The pay scale which he described would appear to have an average somewhere in the range of $6.00 per hour, an amount which is only approximately one-third of what would be claimant's hourly rate of earnings if his total 1987 earnings were based upon a 40-hour work week. On that same basis, even the higher range of potential hourly earnings would still be only half of claimant's 1987 hourly earning equivalent. Truck driving is not light work. The bouncing and extended sitting can be quite troublesome for someone with a back condition. Claimant had worked as a truck driver for 35 years and was 57 years of age at the time of hearing. It was certainly not unreasonable for him to elect to retire rather than risk further injury. The fact that he chose to retire does not significantly detract from his credibility or motivation. There was ample reason for him to do so. When all the foregoing considerations are taken into account, it appears, in the final analysis, that there was some chance that claimant could have maintained his prior level of earnings if he had accepted the Century Motor Freight job, but that chance is not sufficiently strong to be considered as being probable rather than merely possible. The greater likelihood is that he would not have been able to physically perform all the duties of the employment, that the employer would have become disillusioned with providing additional assistance to him, or that he would have sustained further injury. It appears as though Wyant remains capable of performing light work which would pay in the range of $5.00-$6.00 per hour and that such work exists in the Des Moines, Iowa area. It is therefore determined that Isaac Wyant has a 60 percent permanent partial disability under the provisions of Iowa Code section 85.34(2)(u). The shoulder injury was quite severe. The most recent impairment rating from Dr. Neff rates it at 12 percent impairment of the body as a whole (exhibit 1, page 45). The back injury is responsible for a 15 percent impairment of the body as a whole according to Dr. Boulden (exhibit 1, page 14). It appears that the back condition is the one which provides the primary barrier to claimant resuming work as a truck driver. Were his only impairment the shoulder injury, it is quite likely that he could have performed the job which was offered in 1988 and could possibly have resumed normal duties (exhibit 1, pages 42-48). It is determined that one-third of the industrial disability is attributable to the shoulder injury and the remaining two-thirds is attributable to the back injury. Defendants are, of course, entitled to credit for the 111 5/7 weeks which was paid prior to hearing. FINDINGS OF FACT 1. Isaac Wyant has experienced a 60 percent loss of his earning capacity as a result of the injuries that he sustained on January 24, 1986 and September 24, 1987. 2. Of that total, one-third is attributable to the shoulder injury of September 24, 1987. The remaining two-thirds is attributable to the back injury. CONCLUSIONS OF LAW 1. This agency has jurisdiction of the subject matter of this proceeding and its parties. 2. Isaac Wyant is entitled to recover 300 weeks of permanent partial disability compensation under the provisions of Iowa Code section 85.34(2)(u). 3. One hundred weeks are payable at the rate of $485.00 per week commencing May 6, 1988. 4. Two hundred weeks are payable at the rate of $457.95 per week commencing July 7, 1986. ORDER IT IS THEREFORE ORDERED that defendants pay Isaac Wyant one hundred (100) weeks of compensation for permanent partial disability in file number 867537 at the stipulated rate of four hundred eighty-five and 00/100 dollars ($485.00) per week payable commencing May 6, 1988. IT IS FURTHER ORDERED that defendants pay Isaac Wyant two hundred (200) weeks of compensation for permanent partial disability in file number 815193 at the stipulated rate of four hundred fifty-seven and 95/100 dollars ($457.95) per week payable commencing July 7, 1986. IT IS FURTHER ORDERED that defendants pay all accrued past due amounts in a lump sum together with interest pursuant to Iowa Code section 85.30 after crediting the prior payments of permanent partial disability compensation. IT IS FURTHER ORDERED that defendants pay the cost of this action pursuant to Division of Industrial Services Rule 343-4.33. IT IS FURTHER ORDERED that defendants file claim activity reports in each of the respective cases as requested by this agency pursuant to Division of Industrial Services Rule 343-3.1. Signed and filed this 5th day of March, 1990. MICHAEL G. TRIER DEPUTY INDUSTRIAL COMMISSIONER Copies To.: Mr. Channing L. Dutton Mr. Tom Drew Attorneys at Law West Towers Office Complex 1200 35th Street, Suite 500 W. Des Moines, Iowa 50265 Mr. Roy M. Irish Attorney at Law 729 Insurance Exchange Building Des Moines, Iowa 50309 5-1803 Filed March 5, 1990 MICHAEL G. TRIER BEFORE THE IOWA INDUSTRIAL COMMISSIONER ISAAC WYANT, Claimant, vs. File Nos. 815193 867537 CENTURY MOTOR FREIGHT, A R B I T R A T I 0 N Employer, D E C I S I 0 N and FARMERS INSURANCE GROUP, Insurance Carrier, Defendants. 5-1803 Fifty-seven-year-old truck driver whose injuries caused him to retire, rather than accept a modified job which might not have been within his capabilities, was awarded 60 percent permanent partial disability. He had made an extensive work search and the likelihood was that any potential alternate employment would result in a two-thirds reduction in actual earnings. In view of claimant's physical condition, retirement was held to be a reasonable option and not an indicator of any lack of motivation. Page 1 5-1803 Filed March 5, 1990 MICHAEL G. TRIER before the iowa industrial commissioner ____________________________________________________________ : ISAAC WYANT, : : Claimant, : : vs. : File Nos. 815193 : 867537 CENTURY MOTOR FREIGHT, : : A R B I T R A T I O N Employer, : : D E C I S I O N and : : FARMERS INSURANCE GROUP, : : Insurance Carrier, : Defendants. : ____________________________________________________________ 5-1803 Fifty-seven-year-old truck driver whose injuries caused him to retire, rather than accept a modified job which might not have been within his capabilities, was awarded 60 percent permanent partial disability. He had made an extensive work search and the likelihood was that any potential alternate employment would result in a two-thirds reduction in actual earnings. In view of claimant's physical condition, retirement was held to be a reasonable option and not an indicator of any lack of motivation. BEFORE THE IOWA INDUSTRIAL COMMISSIONER CARROLL MONSEN, Claimant, File No. 815283 VS. A R B I T R A T I 0 N JOHN MORRELL & COMPANY, D E C I S I 0 N Employer, Self-Insured, Defendant. STATEMENT OF THE CASE This is a proceeding brought by Carroll Monsen, claimant, against John Morrell & Company (Morrell), a self-insured employer, for benefits under chapter 85B, Code of Iowa. A hearing was held in Storm Lake, Iowa, on February 3, 1987 and the case was submitted on that date. The record consists of the testimony of Edgar Nitchals, John Whitacre, and Larry Bebo; claimantOs exhibits A through H; and Defendant's exhibits 1 and 2. Claimant did not testify in person. Exhibits G and 2 are his deposition testimony. Both parties filed a brief. The exhibit list given to the hearing deputy at hearing reads as follows: RE: Carroll Monsen vs. John Morrell & Company - File #815283 Plaintiff's Exhibits: A. Physical examination given workman for employment with John Morrell & Company - employed 5-20-57. B. Noise level survey conducted at the John Morrell plant in Estherville by OSHA. C. Noise level survey conducted at the John Morrell plant in Estherville by John Morrell & Company. D. Letter from R. David Nelson, M.A., Audiologist of Nelson Hearing Aid Service dated 4-25-86. E. Letter from C. B. Carignan, M.D. dated January 12, 1987 consisting of 2 pages. F. Letter from R. David Nelson, M.A., Audiologist stating estimated cost of hearing aid for Claimant dated 1-15-87. G. Court reported testimony of Carroll Monsen. MONSEN V. JOHN MORRELL & COMPANY Page 2 H. Photograph of Claimant, Carroll Monsen. Defendant's Exhibits: Daniel Jorgensen's hearing loss calculations and audiology report dated 11-11-86. (Deposition Exhibit #1) 1. Deposition of Daniel Jorgensen dated 1-29-87. 2. Deposition of Carroll Monsen, dated October 13, 1986. (Deposition Exhibit #2) The parties stipulated that claimant's weekly rate of compensation is $241.17 and that any weekly benefits awarded would commence on April 27, 1985. ISSUES The contested issues are: 1) Whether this action is barred by Iowa Code section 85.23 because the employer herein was not given notice of, nor did this employer have actual knowledge of, claimant's alleged occupational hearing loss; 2) Whether this action is barred by Iowa Code section 85.26 because it was not timely filed; 3) Whether claimant sustained an occupational hearing loss under chapter 85B, Code of Iowa; that is, whether claimant is entitled to occupational hearing loss benefits under chapter 85B, Code of Iowa; 4) Nature and extent of disability; that is, the number of weeks of permanent partial disability benefits owing; and 5) Whether defendant shall pay the cost of a hearing aid or aids pursuant to Iowa Code section 85B.12. SUMMARY OF THE EVIDENCE Claimant testified in exhibit G (taken on February 3, 1987 by telephone) that he is 53 years old and started working for John Morrell in 1957 on the cut floor. He worked on the cut floor and in the boning room for 21 years. His last day of work at Morrell's Estherville plant was on April 27, 1985 when the plant closed. His hearing was good when he started working for John Morrell. He was in the military from 1953-55 and sustained no hearing impairment as a result of his work as a cook or driver. After his discharge, he farmed with his father for a short period of time and then went to work for Morrell. He had a physical examination when he started at morrell and his hearing was normal at that time. At Morrell, claimant worked on the cut floor at the "head table, break up table." Id. at 6. At the head table the noise level exceeded 90 decibels. He worked full-time MONSEN V. JOHN MORRELL & COMPANY Page 3 at John Morrell. On page 7, he stated: [M]y hearing started to get bad as the years went on." His ears now ring. Claimant testified that a company nurse tested his hearing prior to April 27, 1985 and he stated on page 9: "They knew that I had a hearing problem." on page 11, he stated that he knows of no personal basis for a hearing loss, and also stated that the ammonia compressors at Morrell caused the most noise, making it necessary to scream or shout. He has been told that he needs a hearing aid. On cross-examination, claimant testified on page 14 that he worked around the ammonia compressors at Morrell from 1978 until the plant closed in 1985. These compressors were in the engine room. On page 17, he stated that he has had a hearing problem for the last eight years or so. He does not currently wear a hearing aid. Both of claimant's parents had hearing problems. Claimant testified in exhibit 2 (taken on October 13, 1986) that he started at Morrell on May 20, 1957. His first job was cleanup, which he did for about one year. He has worked a number of different jobs and was in the boning room running a band saw until 1978. He worked as a boiler operator near or with ammonia compressors. He was in the engine room from 1978 until the plant closed in 1985. On the cut floor, he operated the band saw on the break table. In sum, between 1950-1978 he worked "all different jobs." He worked near the ammonia compressors from 1978 through 1985. He spent four hours or more per day in the ammonia compressor room from 1978 through 1985. Claimant testified on page 13 that he noticed a hearing problem around 1984 as "it just started coming on gradually." He talked with the plant nurse about his hearing problem. Id. at 14. On page 15, he stated that he does not wear a hearing aid, nor has one been recommended. On page 18, he stated he thinks that noisy machinery caused his hearing loss, but admitted that the ammonia compressor area is not set out in one of the noise level surveys. on page 21, he stated that he learned of his hearing problem in 1983 when a hearing test was conducted. Edgar Nitchals testified that he is a former employee of Morrell in Estherville. He started working there in 1952 and has known claimant for thirty years. He stated his opinion that claimant did not have any hearing loss when he started working at Morrell. They worked together in the boiler room and compressor room. The compressors at the pork plant were noisy for the last ten to twelve years. The compressor room was so noisy that it was not possible to talk to coworkers. The room was about sixty feet by eighty feet and was open. Hearing protection was provided in 1983 and hearing tests were conducted by Morrell prior to the plant closure in 1985. A company nurse requested the hearing tests. The foreman was told about the hearing loss situation. Claimant worked in the compressor room. The pork plant was noisier than the beef plant and Nitchals worked in both. John Whitacre testified that he worked for Morrell in Estherville from January 1957 through April 1985 and that he knows claimant. He stated his opinion that claimant did not have MONSEN V. JOHN MORRELL & COMPANY Page 4 a hearing loss when claimant started at Morrell; they worked together in the boning room and engine room which had "very high noise." The noisiest area was the engine room around the compressors. On occasion, the mufflers were taken off the wizard knives. A notice was posted on a bulletin board to come in for hearing tests. Nitchals had a general discussion with a foreman and plant nurse about occupational hearing loss at Morrell prior to the plant closure in 1985. Larry Bebo testified that he worked for Morrell from April 1966 through April 1985 and knows claimant as he has worked with him. On the cut floor, the sound level was high and that made it necessary to shout. Bebo met claimant in 1965 and claimant had no hearing loss at that time in BeboOs opinion. In about 1982 or 1983, a plant nurse administered hearing loss tests. Exhibit E, page 2 (dated January 12, 1987), is authored by C. B. Carignan, Jr., M.D., and reads in part: A recent audiogram for Mr. Monsen performed by R. David Nelson, a certified audiologist at Spencer, Iowa on April 22, 1986 revealed a pattern of hearing loss typically associated with noise induced hearing loss. This revealed a 145 decibel sum hearing loss of the right ear and a 130 decibel sum hearing loss of the left ear, equivalent to a 12.2% binaural Hearing impairment .... In view of his history and physical examination and the Audiogram which I examined I feel that with reasonable medical certainty, Mr. Monsen's hearing impairment resulted from his continued exposure to the high noise environment at his workplace at the John Morrell packing plant at Estherville, Iowa. Exhibit F, page 1, states R. David Nelson's estimate as to the cost of a hearing aid. Exhibit 1 is the deposition of Daniel Jorgensen, M.D., taken on January 29, 1987. Dr. Jorgensen is an otolaryngologist. He has a soundproof booth and an audiometer. He has a person with a master's degree in audiology do the audiograms. Dr. Jorgensen examined claimant on November 11, 1986 and took a history. Deposition exhibit 1 is an audiogram performed on November 11, 1986. On page 10, Dr. Jorgensen stated: Q. And if one has a predisposition towards a hearing loss then that may show up on an audiogram as below the normal hearing levels in the low frequencies, say, frequencies 125 through 750 or 1,000; is that correct? A. It's possible that these low frequencies or that all of his hearing was below the normal level when he began work at John Morrell. And the noise-induced component is represented by this high frequency loss. It's hard to determine that anything different has occurred without having prior audiograms. People who grew up with their hearing at this level rarely notice any difference. They MONSEN V. JOHN MORRELL & COMPANY Page 5 accommodate quite well and they are comfortable with that. So it's only as he started losing the high frequencies that he may have been aware of a problem. On page 14, Dr. Jorgensen stated: Q. And in fact is it fair to say, Doctor, that this exposure at John Morrell & Company is really the major factor in the history and examination as far as demonstrating what caused this man's hearing loss? A. I think that's fair to say, yes. Can I --again can I clarify that? I think it's fair to say that that's what contributed to this high frequency loss. When I see the low frequencies outside the normal range I have to think of other causes as well. On pages 14-15, Dr. Jorgensen stated that claimant has tinnitus (ringing in the ears) which he characterized as a symptom of hearing loss. He thought that claimant's tinnitus was due to noise. On page 16, he stated that the hearing loss could be a "congenital loss" or a "familial loss." APPLICABLE LAW AND ANALYSIS I. Does Iowa Code section 85.23 apply to occupational hearing loss cases? It is concluded that section 85.23 does apply to this class of case as it is not inconsistent with chapter 85B. See Iowa Code section 85B.14. The Iowa Supreme Court stated in Dillinger v. City of Sioux City, 368 N.W.2d 176, 179 (Iowa 1985): I. Notice under section 85.23. In pertinent part, section 85.23 requires the employee to give the employer notice within 90 days after the occurrence of the injury Ounless the employer or his representative shall have actual knowledge of the occurrence of an injury." Consequently, an employee who fails to give a timely notice may still avoid the sanction of section 85.23 if the employer had "actual knowledge of the occurrence of the injury." The discovery rule delays the commencement of a limitation period, for bringing a cause of action or for giving notice, until the injured person has in fact discovered his injury or by exercise of reasonable diligence should have discovered it. Orr, 298 N.W.2d at 257. It will be found in this case that the defendant had actual knowledge of claimant's alleged hearing loss prior to the Ooccurrence of an injury" in this case. The injury did not "occur" in this case until the plant closed on April 27, 1985. Dillinger is authority for the proposition that Iowa Code section 85.23 may be complied with prior to the occurrence of an injury. Id. at 180. Claimant did not realize the compensable nature of his hearing loss until a hearing test was conducted by MONSEN V. JOHN MORRELL & COMPANY Page 6 a company nurse in the early 1980Os. This hearing test provided the defendant with actual knowledge of claimant's alleged occupational hearing loss. II. Is this claim time barred by Iowa Code section 85.26? Section 85B.8 provides in part: A claim for occupational hearing loss due to excessive noise levels may be filed six months after separation from the employment in which the employee was exposed to excessive noise levels. The date of the injury shall be the date of occurrence of any one of the following events: 1. Transfer from excessive noise level employment by an employer. 2. Retirement. 3 Termination of the employer-employee relationship. (Emphasis Supplied.) Claimant in this case separated from his Morrell employment on April 27, 1985 and as stated above his cause of action accrued MONSEN V. JOHN MORRELL & COMPANY Page 7 at that time. His petition was filed on May 9, 1986. The Iowa Supreme Court held in Chrisohilles v. Griswold, 260 Iowa 453, 461 150 N.W.2d 94, 100 (1967) that a statute of limitations "cannot commence to run until the cause of action accrues.O In this case the cause of action did not accrue until April 27, 1985 when claimant separated from Morrell. Claimant filed his petition within two years of April 27, 1985. This claim is not time barred. In accordance with Iowa Code section 85B.8 claimant waited until six months after his separation from Morrell to file this action. III. The question of whether claimant sustained an occupational hearing loss, by definition, includes the question of whether a causal relationship exists between claimant's industrial noise exposure and his current hearing loss. Section 85B.4(l) provides: Occupational hearing loss means a permanent sensorineural loss of hearing in one or both ears in excess of twenty-five decibels if measured from international standards organization or American National standards institute zero reference level, which arises out of and in the course of employment caused by prolonged exposure to excessive noise levels. In the evaluation of occupational hearing loss, only the hearing levels at the frequencies of five hundred, one thousand, two thousand, and three thousand Hertz shall be considered. Section 85B.4(l) requires that a claimant's hearing loss both be a permanent sensorineural loss in excess of 25 decibels and that it arise out of and in the course of his employment because of prolonged exposure to excessive noise levels. Claimant has the burden of proving by a preponderance of the evidence that he received an injury which arose out of and in the course of his employment. McDowell v. Town of Clarksville, 241 N.W.2d 904 (Iowa 1976); Musselman v. Central Telephone Co., 261 Iowa 352, 154 N.W.2d 128 1967). Section 85B.6 provides maximum compensation of 175 weeks for total occupational hearing loss with partial occupational hearing loss compensation proportionate to total hearing loss. Claimant has established by the greater weight of the evidence that he sustained hearing loss from his work at Morrell and that all of his hearing loss is attributable to his Morrell employment. IV. Claimant's binaural hearing loss is 12.2 percent entitling him to 21.35 weeks (12.2 percent of 175 weeks) of permanent partial disability benefits at a rate of $241.17. V. Claimant has not established entitlement to the cost of a hearing aid. FINDINGS OF FACT MONSEN V. JOHN MORRELL & COMPANY Page 8 1. Claimant is 53 years old. 2. Claimant started working for Morrell in Estherville, Iowa in 1957. 3. All of claimant's hearing loss was sustained as a result of his Morrell employment. 4. Claimant did not realize that his hearing loss was work-related until Morrell did a hearing test in the early 1980's; this test provided Morrell with actual knowledge of claimant's alleged occupational hearing loss. 5. Claimant's binaural hearing loss is 12.2 percent. 6. Claimant's stipulated weekly rate of compensation is $241.17. CONCLUSIONS OF LAW Claimant has established entitlement to twenty-one point thirty-five (21.35) weeks of permanent partial disability benefits commencing on April 27, 1985 at a rate of two hundred forty-one and 17/100 dollars. ORDER IT IS THEREFORE ORDERED: That defendant pay the benefits described above. That defendant pay accrued benefits in a lump sum and pay interest pursuant to section 85.30, The Code. That defendant pay the costs of this action pursuant to Division of Industrial Services Rule 343-4.33, formerly Industrial Commissioner Rule 500-4.33. That defendant shall file claim activity reports, pursuant to Industrial Services Rule 343-3.1(2), formerly Industrial Commissioner Rule 500-3.1(2), as requested by the agency. Signed and filed this 17th day of March, 1987. T.J. McSWEENEY DEPUTY INDUSTRIAL COMMISSIONER Copies To: Mr. E. W. Wilcke Attorney at Law P.O. Box 455 826 1/2 Lake Street MONSEN V. JOHN MORRELL & COMPANY Page 9 Spirit Lake, Iowa 51360 Mr. Dick H. Montgomery Attorney at Law P.O. Box 7038 Spencer, Iowa 51301 2208 Filed 3-17-87 T. J. McSweeney BEFORE THE IOWA INDUSTRIAL COMMISSIONER CARROLL MONSEN, Claimant, File No. 815283 VS. A R B I T R A T I 0 N JOHN MORRELL & COMPANY, D E C I S I 0 N Employer, Self-Insured, Defendant. 2208 Held in occupational hearing loss case as follows 1) That Iowa Code section 85.23 applied in occupational hearing loss cases; 2) That claimant's action is not barred by Iowa Code section 85.23 because defendant had actual knowledge of claimant's alleged occupational hearing loss within ninety (90) days of claimant discovering its compensable nature; 3) That claimant's action is not barred by Iowa Code section 85.26 because this action was filed within two years of the accrual of claimant's cause of action, which accrued when the Morrell plant closed on April 27, 1985; 4) That claimant established by a preponderance of the evidence that he sustained some hearing loss and that all of this loss was attributable to his Morrell employment; and 5) Claimant is not entitled to the cost of a hearing aid.