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.