BEFORE THE IOWA INDUSTRIAL COMMISSIONER _________________________________________________________________ CLARENCE UKASICK, Claimant, File No. 815284 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 Clarence Ukasick, claimant, against John Morrell & Company (Morrell), a self-insured employer, for benefits under chapter 85B, Code of Iowa. A hearing was held in Storm Lake, Iowa, on February 3, 1987 and the case was submitted on that date. The record consists of the testimony of claimant, Shirley Ukasick, John Mollenhour, and John L. Hauschen; claimant's exhibits A through F; and defendant's exhibit 1. Both parties filed a brief. The exhibit list given to the hearing deputy at time of hearing reads as follows: RE: Clarence Ukasick vs. John Morrell & Company - File #815284 Plaintiff's Exhibits: A. Physical exam given workman for employment with John Morrell & Company - employed 4-13-58. 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 with attached hearing report dated 4-25-86. E. Report from C. B. Carignan, M.D. consisting of two pages dated 11-28-86. F. Estimate of cost of hearing aid for Claimant from R. David Nelson, Audiologist dated July 1, 1986. Defendant's Exhibits: Report of Daniel L. Jorgensen dated 10-22-86. (Deposition Exhibits included in Exhibit 1.) 1. Deposition of Daniel L. Jorgensen dated 1-29-87. The parties stipulated that claimant's weekly rate of compensation is $200.14 and that any weekly benefits awarded would commence on April 27, 1985. ISSUES The contested issues are: 1) Whether this action is barred by Iowa Code section 85.23 because the employer herein was not given notice of, nor did this employer have actual knowledge of, claimant's alleged occupational hearing loss; 2) Whether this action is barred by Iowa Code section 85.26 because it was not timely filed; 3) Whether claimant sustained an occupational hearing loss under chapter 85B, Code of Iowa; that is, whether claimant is entitled to occupational hearing loss benefits under chapter 85B, Code of Iowa; 4) Nature and extent of disability; that is, the number of weeks of permanent partial disability benefits owing; and 5) Whether defendant shall pay the cost of a hearing aid or aids pursuant to Iowa Code section 85B.12. SUMMARY OF THE EVIDENCE Claimant testified that he is 55 years old and completed the eighth grade. He helped his father farm for twenty-one years. He then was in the U.S. Army from 1953-55. He was given a physical examination when he entered the military and had no hearing problem at that time. He was a mail clerk in the army and had no hearing problem when he was discharged. Claimant started working for Morrell on April 13, 1959. Prior to starting work for Morrell, claimant had worked as a "highway road builder" in Iowa and had also worked in Colorado. He was given a physical examination when he started at Morrell and had normal hearing at that time. See Exhibit A. When claimant started at Morrell, he worked in the beef plant where he worked for eight months. He then transferred to the pork cut where he worked until the plant closed on April 27, 1985. While working for Morrell, claimant was given a hearing exam (prior to April 27, 1985) and was told by a company employee that he had sustained occupational hearing loss; he discussed this hearing loss with his foreman. Claimant testified that he worked near the break table in the pork cut area at some point. He was shown exhibit B and testified to the decibel level at various stations in the pork cut area. He also testified that prior to 1982 he did not wear earplugs while working at Morrell. After 1982, he wore earplugs if they were available. Claimant testified that when he worked near a fat grinder at Morrell it was "impossible" to have a conversation. He also UKASICK V. JOHN MORRELL & COMPANY Page 3 stated that he sustained no high school injuries nor has he had any head injuries. He stated that his brothers have no problems with their hearing, but that his parents had hearing problems when they got older. Claimant worked for twenty-six years for Morrell on a full-time basis. The cut floor was always noisy and he had to shout to communicate with his coworkers. He does not now have ringing in his ears. On cross-examination, claimant testified that he first noticed hearing loss in the late 1970's or early 1980's. His wife commented about his hearing. He first had his hearing checked in the 1980's. Claimant is currently receiving a retirement pension from Morrell in the amount of $508 per month and currently runs a W.C. Frank restaurant. Claimant's last job at Morrell was working on a box machine on the cut floor. He never worked on the kill floor. Claimant once again described the noise level near the fat grinder. On cross-examination, claimant stated he could not remember when he discussed his occupational hearing loss with his foreman. On redirect, claimant testified that the cut floor was an open room with a number of work stations and that the same was true of the basement. He stated that his farming activities were not noisy as he milked cows and such, and his brother did the field work. Claimant was 21 when he entered the military. On redirect, claimant testified that from 1985 to present his hearing remained about the same or perhaps became a little bit worse. When claimant started work for Morrell, his hearing was not tested with an audiogram. Shirley Ukasick testified that she married claimant in 1958 and at that time his hearing was normal, and that the physical examination given when claimant started at Morrell established that claimant had normal hearing. She also testified that claimant developed a hearing problem seven to eight years prior to the final plant closing in 1985. John Mollenhour testified that he started work for Morrell in Estherville in March 1959 and worked there until the plant closed in 1985. He worked with claimant on the cut floor, and they also worked in the basement near the fat grinder which caused a "real loud noise." The basement was an open room as were all other rooms in the packing plant. The ceilings and floor were made of cement. On cross-examination, Mollenhour was told by claimant three or four months ago that claimant's hearing was "probably getting worse." John L. Hauschen testified that he worked at the Morrell Estherville plant from 1963-85, and worked in the basement section of the cut floor. The basement area is about thirty feet UKASICK V. JOHN MORRELL & COMPANY Page 4 by forty-five feet with the "main noise" coming from the fat grinder. He commented that the noise was "one big combination of everything." He also mentioned the noise generated by wizard knives. Exhibit E, page 1 (dated November 28, 1986), is authored by C.B. Carignan, Jr., M.D., and reads in part: Mr. Ukasick told me that he began noticing a problem with his hearing about 7 or 8 years ago when he began having difficulty understanding conversation in areas with background noise, he noticed that he would often have to ask people to repeat what they had said or to talk louder in order for him to understand them. His wife found this to be annoying, as well as the fact that he seemed to play the radio or TV much too loudly for her tastes. Mr. Ukasick has resided at Estherville Iowa for 27 years. He worked at the Morrell packing plant for 26 years except for 1 1/2 years when they were shut down. He worked in a very high noise environment on the cutting floor with power saws and fat grinders and during the last 2 years of his employment as a box strapper in this same high noise area. Exhibit E, page 2, describes a binaural hearing impairment of 12. 2 percent. Exhibit F, page 1, states R. David Nelson's estimate as to the cost of a hearing aid. Exhibit 1 is the deposition of Daniel Jorgensen, M.D., taken on January 29, 1987. Dr. Jorgensen is an otolaryngologist. He has a soundproof booth and an audiometer. He has a person with a master's degree in audiology do the audiograms. Dr. Jorgensen examined claimant on October 22, 1986 and took a history. Deposition exhibit 1 describes an audiogram performed on October 22, 1986. On page 11, Dr. Jorgensen stated that claimant's John Morrell work is "a large contributor of his loss." On page 12, he stated that claimant has sustained a 6.8 percent binaural hearing loss. on page 13, he discussed the use of his soundproof booth and discussed the cost of a hearing aid. APPLICABLE LAW AND ANALYSIS I. Does Iowa Code section 85.23 apply to occupational hearing loss cases? It is concluded that section 85.23 does apply to this class of case as it is not inconsistent with chapter 85B. See Iowa Code section 85B.14. The Iowa Supreme Court stated in Dillinger v. City of Sioux City, 368 N.W.2d 176, 179 (Iowa 1985): I. Notice under section 85.23. In pertinent part, section 85.23 requires the employee to give the employer notice within 90 days after the occurrence of the injury "unless the employer or his representative shall have actual UKASICK V. JOHN MORRELL & COMPANY Page 5 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 "occurrence 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 5.23 may be complied with prior to the occurrence of an injury. Id. at 180. Claimant did not realize the compensable nature of his hearing loss until a hearing test was conducted by a company nurse in the early 1980's. This hearing test provided the defendant with actual knowledge of claimant's alleged occupational hearing loss. Also, claimant did not have to comply with section 85.23 until chapter 85B became effective on January 1, 1981. 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 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, 10 (1967) that a statute of limitations "cannot commence to run until the cause of action accrues." 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. In any event, claimant was not required to file this action until after chapter 85B became effective in 1981. III. The question of whether claimant sustained an UKASICK V. JOHN MORRELL & COMPANY Page 6 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(i) 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. It is also determined that all his hearing loss is attributable to his Morrell employment. IV. A treating physician's testimony is not entitled to greater weight as a matter of law than that of a physician who later examines claimant in anticipation of litigation. Weight to be given testimony of physician is a fact issue to be decided by the industrial commissioner in light of the record the parties develop. In this regard, both parties may develop facts as to the physician's employment in connection with litigation, if so; the physician's examination at a later date and not when the injuries were fresh; the arrangement as to compensation; the extent and nature of the physician's examination; the physician's education, experience, training, and practice; and all other factors which bear upon the weight and value of the physician's testimony may be considered. Both parties may bring all this information to the attention of the factfinder as either supporting or weakening the physician's testimony and opinion. All factors go to the value of the physician's testimony as a matter of fact not as a matter of law. Rockwell Graphic Systems, Inc. v. Prince, 366 N.W.2d 187, 192 (Iowa 1985). The Prince holding provides some guidance in this case. UKASICK V. JOHN MORRELL & COMPANY Page 7 As a factual matter it is concluded that the audiogram conducted at Dr. Jorgensen's office is more accurate than the test conducted by Mr. Nelson because Dr. Jorgensen has a soundproof booth. It is, therefore, unnecessary to construe Iowa Code section 85B.9 as urged by the parties. Defendant argued that the lower of the two tests must be accepted as a matter of law. Claimant is entitled to 11.9 (6.8% of 175 weeks) weeks of permanent partial disability benefits commencing on April 27, 1985 at a rate of $200.14. V. Claimant is entitled to the least expensive hearing aid provided by Dr. Jorgensen, Mr. Nelson, or another provider, at the cost of the defendant. FINDINGS OF FACT 1. Claimant is 55 years old. 2. Claimant started working for Morrell in Estherville, Iowa, on April 13, 1959. 3. Claimant has sustained some hearing loss and all of his hearing loss was sustained as a result of his Morrell employment. 4. Claimant did not realize that his hearing loss was UKASICK V. JOHN MORRELL & COMPANY Page 8 work-related until Morrell did a hearing test in the early 1980's; this hearing test provided Morrell with actual knowledge of claimant's alleged hearing loss. 5. The Morrell plant in Estherville, Iowa closed on April 27, 1985. 6. Claimant's binaural hearing loss is 6.8 percent. 7. Claimant's stipulated weekly rate of compensation is $200.14. CONCLUSIONS OF LAW 1. Claimant has established entitlement to eleven point nine (11.9) weeks of permanent partial disability benefits commencing on April 27, 1985 at a rate of two hundred and 14/100 dollars ($200.14); this case is not barred by either Iowa Code section 85.23 or Iowa Code section 85.26. 2. Claimant has established entitlement to the cost of the least expensive hearing aid or aids. ORDER IT IS THEREFORE ORDERED: That defendant pay the benefits described above. That defendant pay accrued benefits in a lump sum and pay interest pursuant to section 85.30, The Code. That defendant pay the costs of-this action pursuant to Division of Industrial Services Rule 343-4.33, formerly Industrial Commissioner Rule 500-4733. 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 16th 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 Spirit Lake, Iowa 51360 UKASICK V. JOHN MORRELL & COMPANY Page 9 Mr. Dick H. Montgomery Attorney at Law P.O. Box 7038 Spencer, Iowa 51301 2208 Filed 3-16-87 T. J. McSweeney BEFORE THE IOWA INDUSTRIAL COMMISSIONER _________________________________________________________________ CLARENCE UKASICK, Claimant, File No. 815284 VS. A R B I T R A T I 0 N JOHN MORRELL & COMPANY, D E C I S I 0 N Employer, Self-Insured, Defendant. _________________________________________________________________ 2208 Held in occupational hearing loss case as follows 1) That Iowa Code section 85.23 applied in occupational hearing loss cases; 2) That claimant's action is not barred by Iowa Code section 85.23 because defendant had actual knowledge of claimant's alleged occupational hearing loss within ninety (90) days of claimant discovering its compensable nature; 3) That claimant's action is not barred by Iowa Code section 85.26 because this action was filed within two years of the accrual of claimant's cause of action, which accrued when the Morrell plant closed on April 27, 1985; 4) That claimant established by a preponderance of the evidence that he sustained some hearing loss and that all of this loss was attributable to his Morrell employment; and 5) That claimant is entitled to the cost of a hearing aid. BEFORE THE IOWA INDUSTRIAL COMMISSIONER _________________________________________________________________ ALLEN E. KAUTZ, FILE NO. 815285 Claimant, A R B I T R A T I 0 N VS. D E C I S I O N JOHN MORRELL & COMPANY, Employer, Self-Insured, Defendant. _________________________________________________________________ INTRODUCTION This is a proceeding in arbitration brought by Allen E. Kautz, claimant, against John Morrell & Company, employer, and self-insured defendant for benefits as a result of an alleged occupational hearing loss under Iowa Code section 85B which occurred on April 27, 1985. A hearing was held on November 25, 1986 at Storm Lake, Iowa and the case was fully submitted at the close of the hearing. The record consists of the testimony of Allen E. Kautz (claimant); Linda Kautz (claimant's wife); Dennis L. Howrey (employer's personnel and labor relations manager); claimant's exhibits 1 through 4; and, defendant's exhibits A and B. Counsel for both parties submitted good briefs. STIPULATIONS The parties stipulated to the following matters: That an employer-employee relationship existed between the claimant and the employer at the time of the alleged injury. That temporary disability is not an issue in this case. That the commencement date for permanent disability, in the event such benefits are awarded, is April 27, 1985. That the rate of weekly compensation in the event of an award is $217.84 per week. That no credits or bifurcated claims are in issue. ISSUES The issues presented by the parties for determination at the time of the hearing are as follows: Whether the claimant sustained an occupational hearing loss on April 27, 1985 which arose out of and in the course of employment with the employer. Whether the alleged occupational hearing loss is the cause of any permanent hearing loss appears to be included within the foregoing issue of whether the claimant received an occupational hearing loss. Whether the claimant is entitled to any disability benefits for permanent hearing loss. Whether the claimant is entitled to a hearing aid as a medical benefit under Iowa Code section 85B.12. Whether claimant gave notice of the loss as required by Iowa Code section 85.23. Whether claimant commenced this action in a timely manner as required by Iowa Code section 85.26. Whether claimant's hearing loss is a result of a natural occurring disease process as asserted by the defendant is included in the first issue of whether the claimant sustained an occupational hearing loss arising out of and in the course of his employment with the employer. SUMMARY OF THE EVIDENCE Claimant is 39 years old. He quit school after completing tenth grade in 1965 but later obtained a GED. He served in the navy as a machinist mate from 1965 to 1969. He repaired pumps and turbines above the engine room on a destroyer. The room where claimant worked was insulated from the noise of the engines of the ship. Claimant had no hearing disability when he left the navy. Claimant next worked for Arts-Way Manufacturing Company at Armstrong, Iowa for approximately five years from sometime in 1969 to sometime in 1973 building grinder--mixers. Claimant operated a grinder grinding metal shafts. Claimant had no hearing difficulties on this job. Claimant then became employed by John Morrell & Company at the Estherville plant and worked there from 1973 until it closed on April 27, 1985. At that time he transferred to the Sioux Falls plant but resigned in September of 1985 before six months had expired in order to obtain severance pay due to the closing of the Estherville plant. Claimant testified that he took a pre-employment physical examination before starting work for the employer and that it disclosed no hearing problems and no hearing disability. The jobs which claimant performed while working for the employer are as follows: (periods and dates are approximate) Job Length Dates 1. night cleanup 6 to 8 mos. 1973 & 1974 2. beef kill 4 yrs. 1974 to 1978 3. hog yards 4 yrs. 1978 to 1982 4. feeding the chain 1 yr. August 1983 to August 1984 5. pet food job 8 mos August 1984 to April 1985 6. cleanup on weiner deck 5 mos. April 1985 to September 1985 The first five jobs were performed at the Estherville plant and the sixth job was performed at the Sioux Falls plant. Claimant testified that the most noisy jobs were the hog yards, feeding the chain and the pet food job. KAUTZ V. JOHN MORRELL & COMPANY Page 3 Claimant testified that he first experienced a problem in about 1982 when he worked in the hog yards. He started in the hog yards in 1978. The hog yards contain 3,500 to 4,000 squealing hogs. The squeal of a hog is high pitched. The hog yards are a very noisy area. You cannot carry on a normal conversation there. You have to shout in order to be heard in the hog yards. At night at home claimant's ears would ring for about three to four hours then quit. If there was other noise in the room it was difficult to hear. Claimant stated that his hearing problem had a gradual onset over a period of years. Linda Kautz, claimant's wife, testified that she noticed him develope a gradual loss of hearing. He did not have it before he went to work with the employer. She first noticed that claimant turned the television up too loud. Also, that she had to repeat what she said to him. He could not hear well if there was music or other room noise. He also complained of ringing in his ears in the evening for two or three hours. She did not know of any other exposure he might have had to high noise levels. Claimant's exhibit one contains the noise level survey readings at the John Morrell plant in Estherville. Dennis L. Howrey, personnel and labor relations manager for the employer, testified that he performed the second survey shown in exhibit 1. Howrey's survey has no heading on it and it does not contain any pen markings from the hearing. Howrey did not know who performed the first survey in exhibit 1. He thought it might have been done by OSHA. This first survey in exhibit 1 shows a John Morrell & Company letterhead and it also contains red and blue pen markings made at the time of the hearing. Claimant testified and circled in red on the first survey that his job of feeding the chain was closest to the following work stations with the following dosimeter readings: Location Meter Readings De-hairer 92 Gambel Table 89-90 Trolley Wash 94 Scald Tub - Upper Level 95-97 Howrey's survey, the second survey in exhibit 1, shows that the noise level at the De-hairer station was 98 to 99 decibels and the noise level at the Gambel Table was 91 to 92 decibels. These readings are higher than the readings of OSHA shown on the first survey on exhibit 1. Claimant testified that he worked six feet away from the De-hairer, which was a piece of equipment which was 75 years old with very noisy paddles. You had to yell to be heard. Claimant testified that the pet food job was closest to the following work stations with the following dosimeter ratings on page 2 of the first survey in exhibit 1: Location Meter Readings KAUTZ V. JOHN MORRELL & COMPANY Page 4 Upper Level - Livers/Gullet Bench 87 Upper Level - Holding Tanks 87-98 Jack Paulos, a fellow workman, was unable to attend the hearing and testify for the claimant due to illness. The parties stipulated that if Paulos was present that he would testify that the noise levels shown in the surveys in exhibit one did exist in the plant where the claimant worked. Claimant testified that earplugs were provided in 1982. They were not mandatory, but he was informed that they were available if he wanted to go get them. You had to ask for them and you had to go get them. Claimant testified that the plant nurse tested his hearing in 1985. Claimant stated that this is when he first learned what was causing the ringing in his ears. The nurse explained to him how the loss of little hairs in his ears adversely affected his hearing. After that he wore the earplugs, however, sometimes they fell out while he was working. Howrey testified that the claimant was wrong about the date when hearing protection was provided. Howrey said that signs were posted and hearing protection was made available on an employee request basis in 1978 and thereafter. He further testified that the noise level-surveys date back to 1983, but granted that there was no noise survey for the hog yards. Nevertheless, Howrey conceded that the hog yards are a very noisy place when hogs are getting pushed into the plant. Howrey further controverted claimant's testimony by testifying that claimant worked closest to the Gambel Table, not the De-hairer, and that claimant was 12 to 15 feet away from the Gambel Table. Howrey placed a blue asterisk on claimant's exhibit 1 by the Gambel Table to designate the closest point to claimant's job of feeding the chain. This blue asterisk appears on the first survey in exhibit 1 believed to have been produced by OSHA. Howrey denied that claimant was near the De-hairer, Trolley Wash, or Scald Tub in his opinion. He said that claimant was 18 to 20 feet away from the De-hairer and approximately 25 to 28 feet distance from the Trolley Wash and Scald Tub. Howrey did admit that claimant worked at the station identified as Upper Level - Livers/Gullet area and he put a blue asterisk on it to designate where the claimant was located when he performed the pet food job. Howrey further acknowledged that any reading in excess of 80 decibels on the surveys could cause hearing damage. He also agreed that practically every station on the first survey showed a noise level in excess of 90 decibels with the exception of the maintenance shop. Howrey verified that when management became more aware of the hearing problem in 1983, earplugs were made more readily accessible to the employees than in 1978. Howrey said that all employees were tested for hearing loss in 1983, rather than in 1985, as claimant had testified. He said that some employees had hearing losses. They were instructed to see a hearing specialist. Howrey testified that he was unable to produce claimant's medical record that contained his KAUTZ V. JOHN MORRELL & COMPANY Page 5 pre-employment physical examination and the company hearing test in 1983. Howrey indicated that the claimant's medical records were lost and that a search for them had not been able to produce them. The noise level at the Sioux Falls plant was not introduced into evidence. However, claimant testified that ear protection was provided to employee's at that plant also. Claimant denied any hearing loss due to listening to rock music, head injury or taking medication. He was not exposed to gunfire in the military service. He stated that he hunts two or three times a year. He said there was no family history of hearing loss except that his father did require a hearing aid approximately a year ago. His father is in his 70's. There is evidence that claimant operates a 16 inch chain saw but that he wears safety lenses and earplugs when he does this (Claimant's Exhibit 3). Claimant testified that Mr. R. David Nelson, an audiologist and operator of Nelson Hearing Aid Service, tested his hearing and told him that a hearing aid would help his hearing. Claimant's exhibit 4 is a letter from Mr. Nelson which states that he tested claimant on May 20, 1986. Mr. Nelson stated that claimant would be a candidate for binaural amplification. Nelson stated that the cost of binaural hearing aids would be $1,350.00 for the type that fits behind the ear and $1,250 for the type that is worn in the ear. Claimant's exhibit 3 is an interpretation of Mr. Nelson's audiogram done by C. B. Carnignan, Jr., M.D. Claimant acknowledged that in a deposition prior to hearing that it was stated that Dr. Carnignan told him that a hearing aid would not help at this time but there will come a time in the future when it will. Claimant also conceded that no one other than Mr. Nelson, who sells hearing aids, has recommended that he get one. Claimant granted that he did not wear a hearing aid at the present time. Dr. Carnignan found on August 15, 1986 that claimant suffered a 4.1 percent binaural hearing loss caused by loud noise exposure while employed by the employer. Dr. Carnignan added another 5 percent for tinnitis for a total binaural hearing impairment of 9.1 percent. Claimant was examined by Jean Rudkin, MS, an audiologist, on September 9, 1986 (Defendant's Exhibit A). According to the heading on the stationary she practices with Daniel Jorgensenl M.D., an otolaryngologist and head and neck surgeon. Dr. Jorgensen determined that claimant sustained a .625 percent hearing loss (Def. Ex. B). APPLICABLE LAW AND ANALYSIS Chapter 85B, Code of Iowa, provides benefits for occupational hearing loss. Section 85B.4 I defines occupational hearing loss as permanent sensorineural loss of hearing in one or both ears in excess of 25 decibels which arises out of and in the course of employment caused by prolonged exposure to excessive noise levels. Iowa Code section 85B.4(2) states that excessive noise level means sound capable of producing occupational hearing KAUTZ V. JOHN MORRELL & COMPANY Page 6 loss. Iowa Code section 85B.5 specifies that excessive noise level is sound which exceeds the times and intensities published in that table and section of the Code. Claimant testified that he was exposed to high levels of noise from squealing hogs when he worked in the hog yards from 1978 to 1982 before the employer really became serious about providing hearing protection, making noise level surveys and testing employees in 1983. When claimant worked feeding the chain he worked near excessive noise levels in excess of 90 decibels as defined by the statute according to the claimant's testimony. Even using Howrey's testimony that claimant was only near the Gambel Table and looking at Howrey's own noise level survey (the second survey) it shows a noise level of 91 to 92 decibels for the Gambel Table. Claimant worked at this job eight hours a day five or six days a week for a year from August of 1983 to August of 1984. The table in Iowa Code section 85D.5 defines seven hours work at 91 decibels and six hours work at 92 decibels as an excessive noise level. Claimant said his pet food job was near a station that produced 87 decibels and 87 to 98 decibels on the OSHA survey. Howrey agreed that claimant was only near the 87 decibel station. Howrey also said he knew that hearing damage could occur at any level over 80 decibels. Claimant did the pet food job for eight months from August of 1984 to April of 1985. Hearing loss can result from noise exposure of less than 90 decibels. Morrison v. Muscatine County Iowa, No. 702385 (1985). Dr. Carnignan concluded his report by stating, "This history would seem to indicate that with reasonable medical certainty, Mr. Kautzla [sic] impairment resulted from loud noise exposure [sic] while employed at the Morrell pork plant." (Cl. Ex. 3). Mr. Nelson, the audiologist, stated that the pattern observed in the claimant's hearing loss is similar to the hearing loss pattern observed in individuals who have known an exposure to noise (Cl. Ex. 2). The claimant by the foregoing evidence demonstrated that he did sustain an occupational hearing loss which arose out of and in the course of his employment with the employer due to prolonged exposure to excessive noise levels as specified in Iowa Code section 85B.5 and other harmful levels of noise for prolonged periods of time. Defendant did not demonstrate that any of claimant's former employments were performed in loud noise environments or were the cause or suspected cause of any hearing loss. Defendant did not demonstrate that any of claimant's private activities such as hunting three or four times a year or running a chain saw with earplugs were the cause of or even suspected cause of any hearing loss. Defendant did not prove a family history of hearing loss even though claimant's father in his 70's did require a hearing aid in one ear. Finally, there is no evidence that claimant suffered from a natural occurring disease process. Iowa Code section 85B.14 provides that the provisions of the workers' compensation law in Chapter 85 also apply to KAUTZ V. JOHN MORRELL & COMPANY Page 7 occupational hearing loss insofar as applicable and when not inconsistent with Chapter 85B. Therefore, the notice requirement of Iowa Code section 85.23 applies to occupational hearing losses because Chapter 85B has no specific notice requirement of its own. Iowa Code section 85.23 generally provides that unless the employer has actual knowledge, 'the employee must give notice within 90 days of the occurrence of an injury. The sole purpose of a notice requirement is to give the employer the opportunity to investigate the injury or hearing loss. Robinson v. Dept. of Transportation, 296 N.W.2d 809, 811 (Iowa 1980); Hobbs v. Sioux City, 231 Iowa 860, 862, 2 N.W.2d 275, 276 (1942). Under the facts of this case it is apparent that the employer was more aware of the claimant's possible work related hearing loss than was the claimant himself. Claimant was aware of some gradual loss and tinnitis but did not know what caused it. Defendant, on the other hand, was aware of a plant wide noise problem. Employer took noise surveys; had noise surveys performed by OSHA; took audiometric tests of its employees and referred them to hearing specialists; provided hearing protect,ion in the way of earplugs when an employee requested them; and posted signs in its plant. The first audiometric test performed on the claimant was available to the employer before it was available to the employee. Claimant testified that his first knowledge that his tinnitis was work related was when the nurse explained it to him. The nurse, who is a representative of the employer, had actual knowledge of the claimant's hearing problems at the time she explained to the claimant that it was work KAUTZ V. JOHN MORRELL & COMPANY Page 8 related. The nurse also had knowledge of the audiometric tests results before she delivered them to the claimant. Consequently, it is determined that the employer had actual knowledge of the claimant's occupational hearing loss pursuant to Iowa Code section 85.23. Therefore, claimant is relieved from giving notice to the employer. This is true even though defendant had actual knowledge of an occupational hearing loss prior to the injury date which in this case is prescribed by statute in Iowa Code section 85B.8, Dillinger v. City of Sioux City, 368 N.W.2d 176, 179 (Iowa 1985). Failure to give notice is an affirmative defense. Defendant has not sustained the burden of proof by a preponderance of the evidence that the claimant failed to give notice pursuant to Iowa Code section 85.23. Again, Iowa Code section 85B.14 provides that the provisions of the workers' compensation law in Chapter 85 apply to occupational hearing loss cases insofar as applicable and when not inconsistent with Chapter 85B. Therefore, the statute of limitations of Iowa Code section 85.26(l) is applicable to this hearing loss claim because there is no separate statute of limitations in Iowa Code section 85B. Chapter 85.26(l) then is applicable and not inconsistent. Iowa Code section 85.26(l) requires an original proceeding to be commenced within two years of the date of injury. Iowa Code section 85B.8 provides special statutory dates of injury for occupational hearing loss cases: A claim for occupational hearing loss due to excessive noise levels may be filed six months after separation from the employment in which the employee was exposed to excessive noise levels. The date of the injury shall be the date of occurrence of any one of the following events: 1. Transfer from excessive noise level employment by an employer. 2. Retirement. 3. Termination of the employer-employee relationship. The date of injury for a layoff which continues for a period longer than one year shall be six months after the date of the layoff. However, the date of the injury for any loss of hearing incurred prior to January 1, 1981 shall not be earlier than the occurrence of any one of the above events. Defendant's contention that this claim is barred by the statute of limitations because the claimant did not file his claim within two years after he discovered or knew he had a hearing loss is not correct. Dale J. Furry v. John Deere Dubuque Works of Deere & Company, Filed November 12, 1986 (Appl. Decn.) held that the statute of limitations begins to run on the date of the injury and the date of the injury is any one of the three events specified in Iowa Code section 85B.B. The date of injury in this case cannot be based upon the transfer from excessive noise level employment because there was no evidence submitted on what the level of noise was at the Sioux KAUTZ V. JOHN MORRELL & COMPANY Page 9 Falls plant after the claimant transferred to that plant. There is no noise level survey in evidence. The claimant did testify that hearing protection was required at the Sioux Falls plant which raises an inference that the Sioux Falls plant also was a high noise level area of employment. Claimant's transfer to Sioux Falls was not proven to be a permanent transfer without reasonable expectation of being returned to a high noise level of work. Claimant still remained a member of the blue collar work force. He was subject to being required to work at either excessive or high noise levels at any time. Wilfred E. McVay v. John Deere Dubuque Works of Deere and Company (No. 799446) decided by Deputy Industrial Commissioner Michael G. Trier and filed August 20, 1986 and Donald Lueken v. John Deere Dubuque Works of Deer and Company, (No. 810114) decided by Deputy Industrial Commissioner Steven E. Ort and filed August 29, 1986. This decision adopts the four factors used in those two cases from which it would be determined that a transfer would constitute a date of injury under Iowa Code section 85B.8. Those factors are as follows: (l) a clearly recognizable change in employment status; (2) which provides a reduction of noise exposure to a level not capable of producing occupational hearing loss; (3) that is permanent or indefinite in the sense that there is no reasonable expectation that the worker will be returned to a position with excessive noise level exposure in the ordinary course of operations in the employer's business; and, (4) that the change must have actually continued for not less than six months. There was no evidence that any of the claimant's transfers at the Estherville plant prior to April 27, 1985 were from a high noise level of employment. The date of injury cannot be based upon retirement because claimant did not retire. The date of injury then must be based upon the termination of the employer/ employee relationship in September of 1985. This action was commenced on April 17, 1986. This date is more than six months after September of 1985 and less than two years after September of 1985. Therefore, claimant's action was timely commenced. The statute of limitations is an affirmative defense and defendant has not sustained the burden of proof by a preponderance of the evidence that the claimant's action was not timely commenced. The stipulations in this case, as shown on the prehearing report, seem to indicate some agreement between the parties that they believe that a transfer from excessive noise level of employment occurred on April 27, 1985, the date the Estherville plant closed. This was not established by the evidence introduced at the hearing. However, even if this date is used as the date of injury this action is still timely commenced more than six months after April 27, 1985 and less than two years after April 27, 1985, since it was commenced on April 17, 1986. Hearing loss is measured by a statutory formula set out in Iowa Code section 85B.9. The addition of five percent for tinnitis by Dr. Carnignan is not part of the statutory formula for an occupational hearing loss. Therefore, this additional five percent must be disregarded for an evaluation of occupational hearing loss, even though it could be considered in KAUTZ V. JOHN MORRELL & COMPANY Page 10 the determination of loss due to an injury under Chapter 85 of the Code. Iowa Code section 85B.9 further provides in part as follows: "...If more than one audiogram is taken following notice of an occupational hearing loss claim, the audiogram having the lowest threshold shall be used to calculate occupational hearing loss...." Defendant asserts that the agency must accept the lowest audiogram as a statutory requirement. Claimant asserts that the agency is, nevertheless, empowered with discretion to determine which of two audiograms it will accept. Both parties are correct. The agency is required to accept the lowest audiogram if it is first determined that all audiograms under consideration are equally reliable. This agency is also still required to use its fact finding power to determine if the audiograms under consideration are equally reliable. In the instant case, both audiograms appear to be equally reliable. Each one was prepared by a qualified audiologist and each one was interpreted by a medical doctor. There was no evidence that one audiogram was more or less reliable than the other one. The audiogram produced by Mr. Nelson of Nelson Hearing Aid Service yielded a binaural hearing loss of 4.1 percent when interpreted by Dr. Carnignan, a general practitioner. The audiogram of Ms. Rudkin, an audiologist in the office of Dr. Jorgenson, an otolaryngologist, yielded a total binaural hearing loss of .625 percent when it was interpreted by Dr. Jorgenson. Therefore, the audiogram of Ms. Rudkin, as interpreted by Dr. Jorgenson, is accepted to determine defendant's liability in this case pursuant to Iowa Code section 85B.9. It might be added that Dr. Jorgenson is also the most qualified doctor in the area of hearing loss since he is an otolaryngologist and apparently Ms. Rudkin works with him or under his supervision. Furthermore, it is probably the most reliable audiogram because it was the last one taken. Therefore, it afforded the claimant the greatest opportunity to recuperate from what has been described as temporary fatigue loss. Claimant's entitlement then to compensation is calculated by applying the percentage of loss of .625 percent to the maximum allowance of 175 weeks resulting in an allowance of 1.09 weeks of compensation (175 x .625) pursuant to Iowa Code section 85B.6. Claimant did sustain the burden of proof by a preponderance of the evidence that he is entitled to a hearing aid by establishing that he has a compensable hearing loss. Iowa Code section 85B.12 provides as follows: "... An employer who is liable for occupational hearing loss of an employee is required to provide the employee with a hearing aid unless it will not materially improve the employee's ability to communicate." Defendant did not demonstrate that a hearing aid would not materially improve the employee's ability to communicate. Defendant did elicit from claimant on cross-examination that Dr. Carnignan told claimant that.a hearing aid would not help at this time but would help in the future. Defendant also brought out that claimant has not chosen to purchase a hearing aid on his own and was not wearing one at the time of the hearing. The hearsay KAUTZ V. JOHN MORRELL & COMPANY Page 11 evidence of Dr. Carnignanl however, is rebutted by the direct evidence of Mr. Nelson that Mr. Kautz would be a candidate for "binaural amplification" (Cl. Ex. 4). Additionally, it would seem that since defendant retained the services of an otolaryngologist, it would have been a simple matter to obtain his opinion on this point as the best evidence of whether a hearing aid would or would not materially improve the employee's ability to communicate. For reasons of their own choosing, defendant did not produce this evidence (Def. Ex. A & B). Also, defendants could have obtained an opinion of their Own from Dr. Carnignan on this point if they chose to do so but did not introduce any direct evidence from Dr. Carnignan. Therefore, there is no reliable evidence that a hearing aid would not materially improve claimant's ability to communicate. Therefore, claimant is entitled to a binaural amplification hearing aid in the amount of $1,250.00 which is the lowest cost device for binaural amplification (Cl. Ex. 4). FINDINGS OF FACT WHEREFORE, based upon the evidence presented, the following findings of fact are made: That claimant was employed by the employer from 1973 until his termination of employment in September of 1985. That claimant-was exposed to a high level of noise in the hog yards from 1978 to 1982 before hearing protection was seriously provided and promoted by the employer. That claimant was exposed to excessive noise levels from August of 1983 to August of 1984 in excess of 90 decibels when he performed the job of feeding the chain. That claimant was exposed to high levels of noise from August of 1984 to April of 1985 when claimant performed the pet food job. That Dr. Carnignan states that claimant's hearing impairment resulted from loud noise exposure while employed by the employer. That Mr. Nelson stated that claimant's hearing loss is consistent with exposure to noise. The evidence did not demonstrate any other cause for claimant's hearing loss including any natural occurring disease process. That OSHA conducted a noise level survey in 1983. That defendant conducted a noise level survey in 1983, posted signs, offered earplug ear protection, took audiograms of affected employees, and notified certain employees with hearing losses to see a hearing specialist. That claimant terminated his employment with the employer in September of 1985. KAUTZ V. JOHN MORRELL & COMPANY Page 12 That this action was commenced on April 17, 1986. That claimant sustained a binaural hearing loss of .625 percent. That defendant did not show that a hearing aid would not materially improve claimant's ability to communicate. CONCLUSIONS OF LAW WHEREFORE, based upon the evidence presented and the principles of law previously discussed, the following conclusions of law are made: That claimant sustained an occupational hearing loss as defined by Chapter 85B, Code of Iowa, which arose out of and in the course of his employment with the employer (Iowa Code section 85B.4). That the loss was caused by his employment with the employer. That the amount of loss is .625 percent of a total loss of hearing (Iowa Code section 85B.9). That claimant is entitled to .625 percent of 175 weeks of compensation for occupational hearing loss (Iowa Code section 85B.6). KAUTZ V. JOHN MORRELL & COMPANY Page 13 That defendant had actual knowledge of the loss (Iowa Code section 85B.14 and 85.23). That the date of injury is September of 1985 when claimant terminated his employment with the employer (Iowa Code section 85B.8). That this action was timely commenced on April 17, 1986 (Iowa Code section 85B.14 and 85.26(l). That claimant has a compensable hearing loss and therefore is entitled to a hearing aid (Iowa Code section 85B.12). ORDER THEREFORE, IT IS ORDERED: That defendant pay to claimant one point zero nine (1.09) weeks (.625 x 175) of occupational hearing loss compensation at the rate of two hundred seventeen and 84/100 dollars ($217.84) per week in the total amount of two hundred thirty-seven and 45/100 dollars ($237.45) ($217.84 x 1.09) commencing on April 27, 1985 which is the date the parties stipulated to for the commencing of benefits even though it was found that the date of injury was September of 1985. That these benefits be paid in a lump sum. That interest will accrue under Iowa Code section 85.30. That defendant pay to claimant or the provider of services the amount of one thousand two hundred fifty and no/100 dollars ($1,250.00) for the cost of a binaural hearing aid. That defendant pay the cost of this action pursuant to Division of Industrial Services Rule 343-4.33. That defendant will remain liable for future medical expenses as a result of this occupational hearing loss. That defendant will file claim activity reports as requested by this agency pursuant to Division of Industrial Services Rule 343-3.1. Signed and filed this 17th day of June, 1987. WALTER R. McMANUS, JR. DEPUTY INDUSTRIAL COMMISSIONER KAUTZ V. JOHN MORRELL & COMPANY Page 14 Copies to: Mr. E. W. Wilcke Attorney at Law 826 1/2 Lake Street P. 0. Box 455 Spirit Lake, Iowa 51360 Mr. Dick H. Montgomery Attorney at Law Professional Building P. 0. Box 7038 Spencer, Iowa 51301 1108.50; 1402.30; 1402.40 1803; 2208; 2401; 2402 2501; 2503; 2504; 2801 2802; 2803; 2902 Filed June 17, 1987 WALTER R. McMANUS, JR. BEFORE THE IOWA INDUSTRIAL COMMISSIONER _________________________________________________________________ ALLEN E. KAUTZ, FILE NO. 815285 Claimant, A R B I T R A T I 0 N VS. D E C I S I 0 N JOHN MORRELL & COMPANY, Employer, Self-Insured, Defendant. _________________________________________________________________ 1108.50; 1402.30; 1402.40; 1803; 2208 Packinghouse employee was exposed to high noise levels both above and below 90 decibels and both before and after hearing protection was provided. Most of the exposure occurred before hearing protection was provided. Defendant suggested but failed to show any other causes or contributing factors. Claimant's audiologist and interpreting medical doctor said it was noise induced. Employer's doctor was silent on cause. Held: Claimant sustained an occupational hearing loss that arose out of and in the course of his employment. (Iowa Code sections 85B.4, 85B.5, 85B.6, and 85B.9) 2401; 2801; 2802; 2803 Hearing test performed by employer put employer on actual notice of the hearing loss even before employer informed claimant of the test result relieving claimant of giving notice. (Iowa Code sections 85B.14 and 85.23) 2402 Date of injury was determined to be termination of employment. Employee did not retire so retirement could not be used. Claimant had several transfers, even to a different plant, but none of them was demonstrated to be a permanent transfer and could not be used for date of injury. Using termination date then claimant's action was timely brought more than 6 months after the date of injury and less than two years after date of injury. (Iowa Code sections 85B.8, 85B.14 and 85.26(l)) 2501; 2503; 2504 Defendant did not show that a hearing aid would not materially improve claimant's compensable hearing loss and lowest cost hearing aids were allowed. (Iowa Code section 85B.12) 2208; 2902 It was held agency must accept the lowest audiogram; however, agency first empowered to make a finding of fact that all audiograms considered are equally reliable. (Iowa Code section 85B.9) BEFORE THE IOWA INDUSTRIAL COMMISSIONER DOROTHY ROSS, Claimant, File No. 815426 vs. A R B I T R A T I O N COUNCIL BLUFFS COMMUNITY D E C I S I O N SCHOOL DISTRICT, Employer, F I L E D and FEB 15 1989 AETNA CASUALTY INSURANCE IOWA INDUSTRIAL COMMISSIONER Insurance Carrier, Defendants. STATEMENT OF THE CASE This is a proceeding in arbitration brought by Dorothy Ross, claimant, against Council Bluffs Community School District, employer, and Aetna Casualty Insurance, insurance carrier, to recover benefits under the Iowa Workers' Compensation Act as a result of an injury sustained on January 14, 1986. This matter came on for hearing before the undersigned deputy industrial commissioner April 21, 1988. The matter was considered fully submitted at the close of the hearing. The record in this case consists of the testimony of claimant, Amy Ross, Connie Seely, Karen Stricklett, Jane Hentzler, Margit Paulsen, LaVonne Morrison, and Robert Montgomery; claimant's exhibits 1 through 15, inclusive; defendants' exhibits 1 through 6, inclusive, and 13 through 18, inclusive; and claimant's exhibit A. ISSUES Pursuant to the prehearing report and order submitted and approved April 21, 1988, the following issues are presented for resolution: 1. The extent of claimant's entitlement to healing period benefits; 2. The extent of claimant's entitlement to permanent partial disability benefits stipulated to be an industrial disability to the body as a whole; 3. The applicability of the odd-lot doctrine; and, 4. The appropriate rate of compensation. Also disputed is claimant's entitlement to alternate medical care pursuant to Iowa Code section 85.27. This issue, however, was not listed as an issue on the hearing assignment order and, accordingly, the undersigned is without jurisdiction to consider it. See Joseph Presswood v. Iowa Beef Processors, (Appeal Decision filed November 14, 1986) holding an issue not noted on the hearing assignment order is an issue that is waived. FACTS PRESENTED Claimant sustained an injury which arose out of and in the course of her employment on January 14, 1986 when she slipped and fell on the floor on some soapy water at the school where she was working, landing on her right side and injuring her back, hip and shoulder. Claimant testified that her shoulder problem has resolved and that the residuals of her injury center on her lower back and right hip with her leg at times "giving out." Claimant stated she was hospitalized and has used a walker, cane or crutches for mobility ever since. Claimant explained that at times she uses a corset or back support device and a TENS unit for pain control because she takes no prescriptive medication asserting that her physicians have advised her they cannot keep prescribing such medication. Claimant maintains she has not gotten any better since her injury although she had done everything her doctors have told her to do. Claimant, who described working in the food industry and working at two jobs in that industry since approximately 1964, denied any current ability to secure employment in that field since she cannot bend without pain, cannot lift what she previously could, must alternate sitting, standing and lying down every two hours, cannot stand or walk for any "long periods of time" without experiencing back, hip and right leg pain, cannot squat and cannot bend "very much to the right or left." Claimant testified she tries to walk regularly but can only manage to do so for about 15 minutes before she must rest. Claimant stated she attempted to return to work with defendant employer in April 1987 running a slicer but that she was in so much pain she could not work. Claimant explained she left work after a brief period on April 22, 1987 leaving a number for Jane Hentzler, food service director, to call her but that Jane never did call and claimant subsequently received a letter from the school district that she was discharged from her employment for failing to call in her absences. Claimant testified there is no employment for which she is suited and nothing she can do on a day-to-day regular basis although on cross-examination she acknowledged she has neither looked nor applied for any work since her injury. Amy Ross, claimant's daughter, who identified herself as a waitress, testified she lives at home with her mother and that her mother does little if any housework. Ms. Ross stated claimant does not go out alone for fear of losing her balance as she has done some six or seven times since her injury when her leg has given out. Ms. Ross asserted claimant had no problems with her hip or back before her work injury. Connie Seely, who described herself as claimant's oldest daughter, testified she sees claimant two or three times a week and described claimant as being a "workaholic" prior to her injury, doing all her own cooking and cleaning plus working two jobs but that since the injury claimant has limited ability to do housework and is not capable of doing waitress work for eight hours per day. Ms. Seely stated she has been a waitress for approximately two months prior to hearing and is aware of the walking, bending, stooping and lifting that is required of such a position. Ms. Seely opined that claimant cannot fulfill the requirements of such a job considering the present condition of her health. Karen Stricklett, who identified herself as a rehabilitation counselor, testified that although she did not interview claimant to determine her employability, she reviewed some of claimant's medical records, the depositions of Doctors Leslie Hellbusch, Joel T. Cotton and James Patrick O'Hara, the notes of Dr. A.P. Manahan and claimant's deposition. Ms. Stricklett testified she wanted to interview claimant, although she did not feel it necessary to form her opinion, but was prohibited from doing so by claimant's counsel. Ms. Stricklett opined that claimant is capable of doing sedentary to light work where there would be no lifting over ten pounds required and that jobs in this category are in existence in claimant's locale. Ms. Stricklett opined claimant would be capable of doing such jobs as cashier, food assembler, telephone order taker, home companion to the elderly, hotel-motel desk clerk at smaller establishments, light production assembly and food server work. Ms. Stricklett acknowledged she cannot name any particular jobs which were currently available in the Omaha-Council Bluffs area and admitted that if claimant told the employer "all" of her medical problems that an employer "probably" would not hire her. Jane Hentzler, who identified herself as food service director for defendant employer responsible for the fiscal and management of the school lunch program, testified that she was advised by the employer's insurance carrier that claimant had been released to return to work starting the fall term of 1986 and therefore sent claimant a letter dated June 27, 1986 (claimant exhibit 14, page 1) advising claimant to return to work August 29, 1986. Ms. Hentzler stated she got no response to the letter from claimant and claimant did not return to work at that time. Ms. Hentzler recalled claimant came to see her in approximately April 1987 and that she sent claimant to Margit Paulsen in personnel who, in turn, advised her that claimant wanted to return to work. Ms. Hentzler explained that in response to Ms. Paulsen's statement a letter was sent to claimant on April 16, 1987 (claimant's exhibit 14, page 4). Ms. Hentzler testified that there is always a position available for claimant as a cook server at any one of the school district's nine kitchens and that it is the district's philosophy to train its employees to work with each other and with carts when doing lifting or carrying. On cross-examination, Ms. Hentzler acknowledged that some employees do lift more than they have to or more than they should on their own, that there are no jobs available where employees can sit down and that she never personally saw any medical release advising that claimant was able to return to work. Margit Paulsen, who identified herself as a personnel specialist with defendant employer, testified that in April 1987 she had a conversation with claimant on referral from Jane Hentzler and that claimant advised that since she was no longer receiving workers' compensation benefits she wanted to return to work. Ms. Paulsen stated that she told claimant there was a job for her, that claimant stated she did not think she could do the work but that no doctor would give her any release to return to work. Ms. Paulsen explained that the conversation ended with the conclusion that claimant would return to work April 22, 1987. Ms. Paulsen testified that after claimant left work on April 22 and the letter of April 29 was mailed, a hearing was held which resulted in a decision to defer a decision on termination and to maintain claimant on a leave status. Ms. Paulsen explained that claimant therefore has not been discharged from her employment as only the board of education has the authority to discharge and the issue has never been submitted to the board. On cross-examination, Ms. Paulsen admitted that with the exception of retaining her seniority and rights to recall, all other modes of an employment relationship between claimant and defendant employer were terminated in April 1986 and that claimant may never have been formally informed of any lead status. LaVonne Morrison, who identified herself as the cafeteria manager at Kim School, testified claimant reported for work on April 22, 1987 and set up the slicer to slice pepperoni. She recalled claimant stated she did not know why she was there but that she began the slicing duties. Ms. Morrison acknowledged she did not observe claimant "that much" only as she went by her but that claimant eventually stated she was hurting. Ms. Morrison testified she advised claimant to call Jane, that claimant returned to work for awhile after making a phone call, that claimant then called "somebody" else and then claimant advised her she was going home on the advice of her attorney and left. Ms. Morrison opined that claimant was doing the slicing job "okay." Ms. Morrison testified that if claimant returned to work there would be a job for her to do such as working only on salad items, frosting cakes and making orange "smiles." Ms. Morrison stated that she has no authority to send anyone home and that the sole authority for doing such a thing lies with Jane Hentzler. Robert Montgomery, who identified himself as the executive director of finance for defendant employer, testified claimant was never terminated from her employment and that she remains on leave status. Mr. Montgomery explained that in the spring of 1986 claimant paid one month's insurance premium right after her sick leave expired and that claimant remained on the employer's group policy until May or June of 1987 with defendant employer paying all of the premiums except for the one month claimant had paid. Mr. Montgomery stated claimant's insurance was terminated in June 1987 to conform with the school district's policy, that claimant is still employed and still has a right to return to work. On cross-examination, Mr. Montgomery offered that the district's leave policy is not in writing, although it is consistently applied to all cases, that an employee may request a leave of absence or, when the status of an employee is indefinite, as was the case with claimant, an employee may be placed on leave involuntarily by the school district. James Patrick O'Hara, M.D., orthopedic surgeon licensed to practice medicine in Nebraska, Iowa and California, testified that he examined claimant in August 1987 at the request of defendants and reviewed the medical records and/or reports from Methodist Hospital and Drs. Hellbusch, Cotton and Manahan and found claimant to have degenerative disc disease at the L4-L5 level with a disc protrusion (defendants' exhibit 6, page 9, lines 24, 25). When asked whether claimant could return to work, Dr. O'Hara opined: A. Well, my opinion is that she cannot return to any job that involves heavy lifting. By heavy lifting, I mean lifting 50 pounds at a one time lift or 25 pounds repetitively; nor do I feel she can go back to work involving repetitive bending or stooping. .... Q. Doctor, do you have an opinion, based upon your training, experience and your examination of Mrs. Ross and the films, whether or not she could return to employment, subject to the restrictions that you have just given us, do you have an opinion? A. yes. Q. And what is your opinion? A. She could. (Defendants' Exhibit 6, pages 12-13) On cross-examination by claimant's counsel, Dr. O'Hara testified: Q. Given a prior history prior to this injury of having being totally asymptomatic, having no prior L4-L5 problems, L3-L4 problems or weakness of the right leg or pain radiating in the sciatica, tenderness, all the symptoms that you found, given no prior history of that, given a very active work life; as a matter of fact, working two jobs to support her family or of long standing, I take it your opinion here today, and that you expressed to Mr. Donahue, that these symptoms of which she complained to you were caused by the fall at the place of employment? .... A. It's my opinion, yes. (Def. Ex. 6, pp. 22-23) Dr. O'Hara could not relate claimant's problems with repeated falling to anything because he had no explanation for it based on the physical examination. Dr. O'Hara did acknowledge claimant would have a limitation on standing and sitting and would have to alternate these activities as opposed to doing either for "prolonged" periods of time. Dr. O'Hara opined claimant has a permanent partial impairment of 10 percent to the body as a whole based on "Well, the pain factor that we mentioned before. The limitation on motion, based on what she had presented with at that time. What she had to do with her body, as I understand, in her job as a baker, and as you have subsequently informed me, as a waitress" (Def. Ex. 6, p. 28) and denied purporting to give an opinion on industrial disability. Leslie C. Hellbusch, M.D., neurosurgeon licensed,to practice in the state of Nebraska, testified he initially saw claimant on January 28, 1986 on referral from Dr. Stanley Bach, orthopedic surgeon, and summarized his initial contact as: She complained of a "steady ache" in her right hip laterally, and in her right lower.back, and also some pain in her back of her thigh down to her knee. She told me that she had fallen 15 days prior to that date and she initially hurt in her right rib cage and right shoulder and right hip after landing on her stomach. She told me that at the time of that fall she slipped on water on the floor at work. After that fall, the next morning she complained of the right hip and the right posterior thigh pain and she had continued to complain of that pain after that. On her exam on January 28, 1986, she had a slight limp on her right leg. When her straight leg was lifted to 80 degrees on the right she had some buttock pain and she had some decreased sensation to pin [sic] in her right thigh area. She had a lumbar CT scan in the hospital on January 30, 1986, and that was normal. Bone scan was done and an EMG of her right leg were done and those were also normal, or at least showed no explanation at all for her problem. (Def. Ex. 16, p. 5) Dr. Hellbusch rendered a diagnosis of possible lumbar nerve root compression at about the L3 or L4 nerve root and also "possibly some right hip pathology." Dr. Hellbusch testified he saw claimant on a number of occasions thereafter, the last time being November 11, 1986, and explained that claimant's complaints and symptomology remained consistent throughout. On November 21, 1986, Dr. Hellbusch advised defendant insurance carrier: "Dorothy Ross has a ten percent permanent partial disability to the body as a whole. At this time, I believe that she has probably reached maximum medical healing of her degenerative lumbar disk disease at L4-5. I think she will continue to have intermittent back or hip pain in the future." (Def. Ex. 16) On April 14, 1987, Dr. Hellbusch wrote: I have not seen Dorothy Ross since November 3, 1986. At the time that I did take care of her between January, 1986 and November of 1986, I was not aware of any problem that would make it dangerous for her to return to work. Therefore, I think it would be fine for her to return to work on April 22, 1987. I am not certain whether or not she could have returned to work in November of 1986. I think that it would've been wrong to push her into trying to work at that time. (Def. Ex. 16; Dep. Ex. 2) Joel T. Cotton, M.D., neurologist licensed to practice in Nebraska and Louisiana, testified he initially saw claimant March 17, 1986 on referral from defendant insurance carrier for the purposes of conducting an independent medical evaluation and stated his clinical impression at that time as: This patient's neurological examination suggests to me, pain originating from the region of the right hip. I do not feel her current symptoms are on the basis of a "pinched nerve" in the lumbar or sacral region. She does have a diminished left ankle jerk which I suspect is unrelated to her current symptoms. There is also mild pain in the right shoulder which I suspect is also on an orthopedic basis. Thus in my opinion, this individual has pain in the right hip on an orthopedic basis without any definite evidence of radiculopathy. I would suggest repeat orthopedic evaluation prior to pursuing a myelogram. At this time, she continues to show significant impairment in her ability to stand or walk. (Def. Ex. 15; Dep. Ex. 1, p. 2) Dr. Cotton next saw and examined claimant on December 16, 1986 on referral from Dr. Hellbusch and reported to Dr. Hellbusch that: I am unable to explain this individual's persistent back and right lower extremity pain and numbness on a neurological basis. Her neurological examination at this time remains entirely and completely normal. There is a variability in her straight leg raising between the supine and seated position which is of uncertain etiology and in addition, movement of her hip causes pain which is again not in keeping with lumbar or sacral nerve root irritation or damage. I was unable to explain her past symptoms on a neurological basis and remain unable to do so at this time. She has had all reasonable neuroradiological studies which are.apparently unremarkable. Her neurological examination does not suggest any nerve root irritation or damage and I would agree that surgery performed on this individual's spine would have very little chance of providing her with any relief. I discussed this with her in detail. I told her I would be willing to try her on medication if she wished and she expressed an interest in doing so. I took the liberty of beginning Amitriptyline, 25 mg. at night to be increased to a total of three at night and she will then contact me in several weeks to report on her progress. I can unfortunately offer no other definitive cause for her symptoms but can only hope that some benefit can be obtained from the medication. (Def. Ex. 15; Dep. Ex. 8, p. 2) Dr. Cotton prescribed Amitriptyline as an "antidepressant which sometimes is a benefit in patients who complain of chronic pain." On January 19, 1987, Dr. Cotton advised defendant insurance carrier that: In the presence of an otherwise normal examination, I would not restrict this individual's physical activity. I would specifically see no reason from a neurological standpoint that she cannot lift, bend, or twist if necessary in her employment. In the absence of any objective abnormalities on her neurological examination and without any neurological impairment in my opinion, this individual has no neurological disability. She has in my opinion, achieved a state of permanency. I do not see that any additional neurological testing or other significant medical attention should be necessary on the basis of her past and presently normal neurological examination. (Def. Ex. 15; Dep. Ex. 3, p. 2) On March 4, 1987, following an examination on February 19, 1987, Dr. Cotton wrote: In summary, this individual continues to describe significant problems with pain, numbness, weakness in the leg and intermittent susceptibility to falling. While this has been attributed possibly to "pinched nerve" or other injury to the spine, I can confirm no evidence of past or present damage or irritation to this individual's spinal cord or lumbosacral nerve roots, peripheral nerves or muscles. Her neurologic examinations have always been normal. I have been unable to past or presently explain her symptoms on a neurologic basis. She reports to me if she would attempt to work that she would surely stumble and fall. It is impossible to state whether she could or would be willing to tolerate a return to her previous activity, a new activity or any other type of gainful employment on the basis of what she reports to me. While again there is a number of subjective symptoms described, objectively I have been unable in the past or present to confirm damage to neurologic structures that would produce the type of symptoms she states are present. (Def. Ex. 15; Dep. Ex. 6, p. 2) In a letter to defendant insurance carrier on the same date, Dr. Cotton opined: In summary, her neurological examination was normal with the exception of variability in her examination which I could not explain on the basis of known anatomical or physiological mechanisms. She described difficulty walking, weakness and episodic falling which I was unable to explain on a neurologic basis. She has in addition seen orthopedic surgeons and apparently they have been unable to explain her symptoms. From a neurologic standpoint there is no impairment and thus from a neurologic standpoint she could return to her previous job. Her episodic falling, weakness and numbness do not appear to be on a neurologic basis. I would not see the necessity of restricting her activity from my standpoint. Whether in fact she can or will be capable of performing in her old job, a new position or any other capacity is uncertain to me. I cannot provide any additional suggestions concerning the possible etiology of her symptoms except to state once again, they do not appear on the basis of past or present damage to her nervous system, specifically spinal cord, lumbar nerve roots or peripheral nerves or muscle. She has in my opinion reached a maximal degree of medical improvement. There is no permanent partial impairment to this individual from a neurologic standpoint that I am able to objectively detect. (Def. Ex. 15; Dep. Ex. 7) On referral from Dr. Hellbusch, claimant was seen by Antonio P. Manahan, M.D., a physical medicine and rehabilitation physician (physiatrist), initially on April 18, 1986. Dr. Manahan diagnosed low back pain secondary to soft tissue injury following a fall and previous shoulder soft tissue injury which improved and offered a rehabilitation plan of medication and daily physical therapy. Records show claimant treated with Dr. Manahan from April 18, 1986 through October 2, 1986 at which time Dr. Manahan opined claimant had achieved maximum potential in rehabilitation. On November 28, 1986, Dr. Manahan advised defendant insurance carrier: "Based on the last examination, I feel the patient had reached a permanent partial disability rating of 12% and the restriction we would have to place on her would be that she cannot lift more than 10 pounds." (Claimant's Exhibit 6, Page 10) APPLICABLE LAW AND ANALYSIS An employee is entitled to compensation for any and all personal injuries which arise out of and in the course of the employment. Section 85.3(1). Iowa Code subsection 85.34(2)(u) provides: In all cases of permanent partial disability other than those hereinabove described or referred to in paragraphs "a" through "t" hereof, the compensation shall be paid during the number of weeks in relation to five hundred weeks as the disability bears to the body of the injured employee as a whole. If it is determined that an injury has produced a disability less than that specifically described in said schedule, compensation shall be paid during the lesser number of weeks of disability determined, as will not exceed a total amount equal to the same percentage proportion of said scheduled maximum compensation. As the parties do not dispute claimant sustained an injury which arose out of and in the course of her employment or that the injury is the cause of both temporary and permanent disability, it is necessary to consider only the issue of the extent of that permanent disability which would include the related issue of whether or not claimant is an odd-lot employee as contemplated by Guyton v. Irving Jensen Co., 373 N.W.2d 101 (Iowa 1985). Under the odd-lot doctrine, which was formally adopted by the Iowa Supreme Court in Guyton, supra, a worker becomes an odd-lot employee when an injury makes the worker incapable of obtaining employment in any well-known branch of the labor market. An odd-lot worker is thus totally disabled if the only services the worker can perform are so limited in quality, dependability, or quantity that a reasonably stable market for them does not exist. Id., citing Lee v. Minneapolis Street Railway Company, 230 Minn.315, 320, 41 N.W.2d 433, 436 (1950). The rule of odd-lot allocates the burden of production of evidence. If the evidence of degree of obvious physical impairment, coupled with other facts such as claimant's mental capacity, education, training or age, places claimant prima facie in the odd-lot category, the burden should be on the employer to show that some kind of suitable work is regularly and continuously available to the claimant. Certainly in such a case it should not be enough to show that claimant is physically capable of performing light work and then round out the case for non-compensable by adding a presumption that light work is available. Guyton, 373 N.W.2d at 105. When a worker makes a prima facie case of total disability by producing substantial evidence that the worker is not employable in the competitive labor market, the burden to produce evidence of suitable employment shifts to the employer. If the employer fails to produce such evidence and the trier of fact finds the worker falls in the odd-lot category, the worker is entitled to a finding of total disability. Even under the odd-lot doctrine, the trier of fact is free to determine the weight and credibility of the evidence in determining whether the worker's burden of persuasion has been carried. Only in an exceptional case would evidence be sufficiently strong to compel a finding of total disability as a matter of law. Guyton, 373 N.W.2d at 106. The court went on to state: The commissioner did not in his analysis address any of the other factors to be considered in determining industrial disability. Industrial disability means reduced earning capacity. Bodily impairment is merely one factor in a gauging industrial disability. Other factors include the worker's age, intelligence, education, qualifications, experience, and the effect of the injury on the worker's ability to obtain suitable work. See Doerfer Division of CCA v. Nicol, 359 N.W.2d 428, 438 (Iowa 1984). When the combination of factors precludes the worker from obtaining regular employment to earn a living, the worker with only a partial functional disability has a total disability. See McSpadden v. Big Ben Coal Co., 288 N.W.2d 181, 192 (Iowa 1980). The industrial commissioner has frequently held that a claimant must demonstrate a reasonable effort to secure employment in the area of his or her residence as part of a prima facie showing that he or she is an odd-lot employee. See, e.g., Emshoff v. Petroleum Transportation Services, File No. 753723, Appeal Decision filed March 31, 1987. Claimant clearly has not met that burden in this case. By her admission, claimant has neither looked nor applied for any employment since her injury. Claimant cannot meet her burden with one unsuccessful attempt to return to work with defendant employer. Claimant also cannot meet this burden simply by testifying that she cannot think of any work she is capable of performing when she has made no attempt to secure employment. Therefore, it cannot be concluded that claimant is an odd-lot employee as contemplated by Guyton, supra, as claimant's attempt to secure employment falls far short of those exhibited in that case. Claimant has, however, clearly demonstrated she sustained an industrial disability as a result of the injury of January 14, 1986. Medical practitioners who either saw or evaluated claimant have rendered opinions on impairment ranging from 0 to 12 percent and have imposed restrictions on her employability. 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, 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 found by a medical evaluator does not equate to industrial disability. This is so as impairment and disability are not synonymous. 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 latter to anatomical or functional abnormality or loss. Although loss of function is to be considered and disability can rarely be found without it, it is not so that a degree of industrial disability is proportionally related to a degree of impairment of bodily function. Factors to be considered in determining industrial 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 to draw upon prior experience, general and specialized knowledge to make the finding with regard to degree of industrial disability. See Peterson v. Truck Haven Cafe, Inc., (Appeal Decision, February 28, 1985); Christensen v. Hagen, Inc., (Appeal Decision, March 26, 1985). Claimant, age 57 at the time of hearing, has an eighth grade education with no other formal educational experience. Claimant has work experience as a waitress, in a packing house and on an assembly line but, since her husband was disabled approximately 24 years ago, has worked.in the food industry in either food preparation or as a waitress. Claimant has work restrictions placed on her by her physicians which would include no bending or stooping and a limitation (varying from 10 to 50 pounds) on the amount she can lift. Claimant is also limited on the amount of standing, sitting and walking she can do at one time. These restrictions effectively operate to remove claimant from the area of the labor market where she most likely could have secured and retained employment prior to her injury, that being the food service injury. Although there is limited objective medical evidence of injury, the physicians who did testify do not doubt claimant's pain and the limitations placed on her as a result thereof. Neither does this deputy. Defendants argue claimant is still an employee on leave status. While this may technically be correct since it is accepted that only the board of education may dismiss an employee and that board has not been asked to do so, the record is void of any convincing evidence that defendant employer has attempted to work with claimant, within her restrictions, to return her to work. While testimony was offered at trial that there are things claimant could do, the record is void of convincing evidence that defendants have made any effort prior to trial to express this to claimant. It has been held that a defendant employer's refusal to give any sort of work to a claimant after he suffers his affliction may justify an award of disability. McSpadden v. Big Ben Coal Co., 288 N.W.2d 181 (Iowa 1980). The industrial commissioner stated in Gallardo v. Firestone Tire Company (Appeal Decision filed October 21, 1987) that an employer's repeated effort to retain claimant as an employee after injury and to accommodate medical restrictions resulting therefrom reduces the amount of claimant's industrial disability. If so, the opposite must also be true. See also Rauch v. O'Bryan Brothers, Inc., File No. 828457, Appeal Decision filed December 30, 1988. However, it does not go without notice that claimant has not necessarily been cooperative in making herself available to defendants or to those working with defendants as evidenced by the testimony of Karen Stricklett and claimant's exhibit 12, page 2. It is difficult, by the evidence presented in this case, to make a definitive judgment on claimant's motivation simply because evidence on this issue is so contradictory. Looking at claimant's employment history, a history which includes working two jobs over a period exceeding 20 years and being the sole support of a family after her husband was disabled as a result of cardiac problems, one could reasonably conclude claimant to be a hard worker and one that is truly motivated to work. Yet, it is troubling that in the years since her injury claimant has not attempted any rehabilitative services either through defendants or on her own. Claimant appeared to the undersigned to be a bright, reasonably intelligent individual who did not assert she did not finish her education due to any lack of intellectual capabilities. While claimant denied any supervisory or management skills, even to the extent of not ever acting as a cashier in the restaurants where she worked, it did not appear to the undersigned that that was so due to any lack of capability, given the opportunity, in those areas. The evidence would clearly establish claimant has suffered both a loss of earnings as a result of this injury as well as a loss of earning capacity. The undersigned does not agree with Dr. Cotton's opinions when those opinions are compared with the opinions of other medical experts to have testified in this matter. Even accepting the most liberal employment restrictions placed on claimant, those being from Dr. O'Hara which include not lifting more than 50 pounds at one time or 25 pounds repetitively and no work involving repetitive bending .or stooping as well as limitations on standing, sitting and walking, claimant has shown that she would have a difficult time re-entering the food service industry absent an accommodating employer. Common every day experience of dining in a restaurant would lead one to conclude that a waitress would have difficulty earning a living with those restrictions. Considering then all of the elements of industrial disability, it is determined that claimant has established a permanent partial disability of 75 percent for industrial purposes entitling her to 375 weeks of permanent partial disability benefits. The second issue in dispute centers on claimant's entitlement to healing period benefits. Iowa Code section 85.34(1) provides that if an employee has suffered a personal injury causing permanent partial disability, the employer shall pay compensation for a healing period from the day of the injury until (1) the employee returns to work; or (2) it is medically indicated that significant improvement from the injury is not anticipated; or (3) until the employee is medically capable of returning to substantially similar employment. It is clear from the evidence that claimant has not returned to work and her one attempt to do so proved unsuccessful. It is questionable whether claimant is medically capable of returning to substantially similar employment. However, the undersigned concludes that evidence in the record establishes claimant reached her maximum medical recovery at the time she was released by Dr. Hellbusch on November 21, 1986. Medical evidence does not establish that claimant improved or that any improvement was anticipated following that date. Therefore, claimant is entitled to healing period benefits for the period from January 14, 1986 up to and including November 21, 1986. The final issue for resolution is that of rate. Claimant, who does not dispute the appropriate rate of compensation based on her employment with defendant employer is $156.12 per week argues that because she is not capable of returning to work for her second employer, the 64 Club, as a waitress where she earned approximately $125 per week, her wages from the second employer should also be used to compute her compensation rate. Iowa Code section 85.36 provides, in part: "The basis of compensation shall be the weekly earnings of the injured employee at the time of the injury." The undersigned can find no support for claimant's position within the statute and therefore claimant's appropriate rate of compensation is determined to be $156.12 per week. Claimant's rate is properly determined based on her wages with the employer for whom she worked at the time of her injury. See also Vowell v. Davenport Truck Plaza, File No. 642100, Arbitration Decision filed.August 24, 1981, and Winters v. John B. TeSlaa, File No. 532155, Appeal Decision filed February 12, 1981. FINDINGS OF FACT Wherefore, based on all of the evidence presented, the following findings of fact are made: 1. Claimant sustained an injury which arose out of and in the course of her employment on January 14, 1986 when she slipped and fell landing on her right side, injuring her back, hip and shoulder. 2. Claimant's shoulder problems have resolved and the residuals of her injury center around her back and hip. 3. Claimant was hospitalized following her injury and has used a walker, cane or crutches since that time. 4. Claimant has a permanent partial impairment as a result of the work injury. 5. Since her injury, claimant's complaints and symptomology have remained consistent and claimant perceives she is currently no better physically than she was at the time she was injured. 6. Claimant made one attempt to return to work on April 22, 1987, which was unsuccessful. 7. Claimant has neither looked for nor applied for any employment since her injury. 8. Claimant, age 57 at the time of hearing, has an eighth grade education and for over 20 years has worked two jobs in the food service industry. 9. Claimant has medical restrictions placed on her which would effectively operate to remove her from the part of the labor market where she most likely could have secured and retained employment. 10. Claimant has not been discharged from employment with defendant employer but has been placed on a leave status involuntarily. 11. Claimant's motivation is questionable. 12. As of November 21, 1986, claimant has not improved medically nor was any improvement in her condition anticipated. 13. Claimant's healing period ended November 21, 1986. 14. The parties have not been cooperative with.each other. 15. Claimant is not an odd-lot employee. 16. Claimant has sustained a permanent partial disability of 75 percent for industrial purposes as a result of the work injury of January 14, 1986. 17. Claimant's appropriate rate of compensation is $156.12 per week. CONCLUSIONS OF LAW Therefore, based on the principles of law previously stated, the following conclusions of law are made: 1. Claimant has established that as a result of the work injury of January 14, 1986, she sustained a permanent partial disability of 75 percent for industrial purposes. 2. Claimant has established entitlement to healing period benefits for the period from January 14, 1986 to November 21, 1986, inclusive. 3. Claimant is not an odd-lot employee. 4. Claimant's rate of compensation is $156.12 per week. ORDER THEREFORE, it is ordered: Defendants are to pay unto claimant forty-four point five seven one (44.571) weeks of healing period benefits for the period from January 14, 1986 to November 21, 1986, inclusive, at a rate of one hundred fifty-six and 12/100 dollars ($156.12) per week. Defendants are to pay unto claimant three hundred seventy-five (375) weeks of permanent partial disability benefits at a rate of one hundred fifty-six and 12/100 dollars ($156.12) per week commencing November 22, 1986. Defendants shall receive full credit for all disability benefits previously paid. Benefits that have accrued shall be paid in a lump sum together with statutory interest thereon pursuant to Iowa Code section 85.30. A claimant activity report shall be filed upon payment of the award. Costs of this action are assessed,against defendants pursuant to Division of Industrial Services Rule 343-4.33. With regard to claimant's Exhibit A, pursuant to Iowa code section 622.72, defendants' responsibility for this cost is limited to one hundred fifty dollars ($150.00). Signed and filed this 15th day of February, 1989. DEBORAH A. DUBIK DEPUTY INDUSTRIAL COMMISSIONER Copies to: Mr. Lyle A. Rodenburg Attorney at Law 100-101 Park Bldg Council Bluffs, IA 51501 Mr. David A. Blagg Mr. Patrick B. Donahue Attorneys at Law 8805 Indian Hills Dr Suite 300 Omaha, NE 68114 1803; 4100 Filed February 15, 1989 Deborah A. Dubik BEFORE THE IOWA INDUSTRIAL COMMISSIONER DOROTHY ROSS, Claimant, File No. 815426 vs. COUNCIL BLUFFS COMMUNITY A R B I T R A T I 0 N SCHOOL DISTRICT, D E C I S I 0 N Employer, and AETNA CASUALTY INSURANCE, Insurance Carrier, Defendants. 1803; 4100 Claimant, age 57, worked for over 20 years in the food service industry. Her medical restrictions effectively operated to prohibit her from engaging in this occupation in the future. Claimant had no other training and had an eighth grade education. Claimant not found to be odd-lot. Claimant awarded 75% industrial disability. Page 1 before the iowa industrial commissioner ____________________________________________________________ : SOCORRO GUTIERREZ, : : Claimant, : : vs. : : File No. 815777 LOUIS RICH COMPANY, : : A R B I T R A T I O N Employer, : : D E C I S I O N and : : LIBERTY MUTUAL INSURANCE : COMPANY, : : Insurance Carrier, : Defendants. : ___________________________________________________________ statement of the case This is a proceeding in arbitration upon the petition of claimant, Socorro Gutierrez, against her employer, Louis Rich Company, and its insurance carrier, Liberty Mutual Insurance Company, defendants. The case was heard in Davenport, Iowa on February 5, 1990. The record in the proceeding consists of the testimony of claimant and the testimonies of Linda Riley and Dave Metzger. The record also contains claimant's exhibits A and B and defendants' exhibits A-E. Prior to the hearing, defendants filed a motion to strike Dr. F. Dale Wilson's medical report of January 4, 1990. A resistance was filed by claimant. A ruling was filed on January 30, 1990, by Deputy Industrial Commissioner Helenjean Walleser. She granted claimant's motion. issues The issues to be determined are: 1) whether claimant is entitled to temporary total disability or healing period benefits; 2) whether claimant is entitled to permanent partial disability benefits; and 3) whether claimant is entitled to medical benefits under section 85.27. Page 2 findings of fact The deputy, having heard the testimony and considered all the evidence, finds: Claimant had been working in the variety department at defendant-employer's establishment. Her position involved sorting four kinds of meat. Claimant sustained a work injury arising out of and in the course of employment on January 9, 1986. She sustained injuries to both upper extremities. She was off work due to the work injuries from January 24, 1986 to March 30, 1986 and from July 1, 1986 to December 1, 1986. Claimant was paid benefits through the above period. Claimant was treated by William R. Pontarelli, M.D. He injected both elbows. She was treated with medication and splints. An EMG was performed on claimant's left upper extremity. No EMG was ever performed on claimant's right upper extremity. Claimant did not have surgery. She was treated conservatively. Claimant was also examined by William Catalona, M.D., an orthopaedic surgeon. He opined in his report of October 29, 1986: In reply to yours of 10/24/86 regarding the above, it is my opinion that this patient has reached her maximum level (healing) of recovery at this point. The patient contends, however, that she has suffered a disability from doing repetitive motions at work. My opinion is that there are people who cannot endure certain motions working all day and that rather than suffering a permanent disability, they actually are suffering a temporary period of discomfort. The problem is how does management provide these people with work that they can tolerate and how should they be compensated if they are unable to endure the work and have to quit their jobs. I do not have the answer to this question. If you wish, we could talk about granting these people a permanent impairment rating and argue any dissatisfaction by the employee with the industrial commission. I feel this would be an interesting situation to discuss with the industrial commission. Please let me know your feelings about this proposition. Dr. Catalona examined claimant for purposes of making a functional impairment rating. In his report of November 24, 1986, he determined: In reply to yours of 11/14/86 regarding the above, whereas this patient has no measurable permanent impairment of her arms, I am rating her arbitrarily for her overuse syndrome of both Page 3 forearms. I have studied the second edition of the Guides to Evaluation of Permanent Impairment published by the AMA and find no section for determining permanent impairment on the basis of overuse syndromes. Until the compensation laws recognize that some employees are not suited for the jobs which patients with overuse syndrome are required to do, these employees will contend that their disability is work related. Therefore on an arbitrary basis, I would rate Ms. Gutierrez to have a 10% permanent impairment of R 5% of each upper extremity. Claimant and Linda L. Riley, safety and security supervisor for defendant-employer, held a telephone conversation in December of 1986 whereby claimant was advised her weekly benefits had ceased as of December 1, 1986. Ms. Riley was informed by claimant that she was not returning to work at defendant-employer's establishment. Ms. Riley had previously been contacted by IBP, another employer, on October 31, 1986, relative to a possible position for claimant. Claimant denied receiving a letter dated December 16, 1986, from Paul O. Sanden, resident adjuster at Liberty Mutual Insurance Group. The letter discussed the termination of claimant's weekly benefits as of December 1, 1986. Defendants maintain the letter was sent to claimant. conclusions of law Claimant must establish by a preponderance of the evidence the extent of weekly benefits for permanent disability to which claimant is entitled. Permanent partial disabilities are classified as either scheduled or unscheduled. A specific scheduled disability is evaluated by the functional method; the industrial method is used to evaluate an unscheduled disability. Martin v. Skelly Oil Co., 252 Iowa 128, 133, 106 N.W.2d 95, 98 (1960); Graves v. Eagle Iron Works, 331 N.W.2d 116 (Iowa 1983); Simbro v. DeLong's Sportswear, 332 N.W.2d 886, 997 (Iowa 1983). When the result of an injury is loss to a scheduled member, the compensation payable is limited to that set forth in the appropriate subdivision of Code section 85.34(2). Barton v. Nevada Poultry Co., 253 Iowa 285, 110 N.W.2d 660 (1961). "Loss of use" of a member is equivalent to 'loss' of the member. Moses v. National Union C.M. Co., 194 Iowa 819, 184 N.W. 746 (1922). Pursuant to Code section 85.34(2)(u) the industrial commissioner may equitably prorate compensation payable in those cases wherein the loss is something less than that provided for in the schedule. Blizek v. Eagle Signal Company, 164 N.W.2d 84 (Iowa 1969). In the case at hand, claimant is governed by section 85.34(2)(s). The section provides in relevant portion: The loss of both arms, or both hands, or both feet, or both legs, or both eyes, or any two thereof, caused by a single accident, shall equal Page 4 five hundred weeks and shall be compensated as such, however, if said employee is permanently and totally disabled the employee may be entitled to benefits under subsection 3. The only functional impairment rating which has been provided is the rating of the company doctor and treating physician, Dr. Catalona. Dr. Catalona determined there was no section in The Guides to the Evaluation of Permanent Impairment by the American Medical Association dealing with overuse syndrome. Previously, he had determined claimant had suffered a permanent impairment as a result of the same. Dr. Catalona, it is unfortunate to find, admitted his rating was done on an arbitrary basis. He is the company physician. His statement diminishes his credibility in rendering an expert opinion. However, his medical opinion is the only medical opinion with which the undersigned has available in order to make a determination. It is the determination of the undersigned, in light of the foregoing, as well as in light of the observations made of claimant, and after hearing her testimony that claimant has a permanent partial disability of 10 percent. Given section 85.34(2)(s), claimant is entitled to 50 weeks of benefits at the stipulated rate of $147.28 per week. The next issue to address is claimant's applicable healing period. Claimant was off work from January 24, 1986 through March 30, 1986 and from July 1, 1986. Claimant was paid through December 1, 1986. There is no question that in his letter of October 29, 1986, Dr. Catalona wrote to defendant-insurance carrier, claimant "had reached her maximum level (healing) of recovery at this point." However, progress notes for claimant at the office of Joni Hales, M.D., provide: 11/21/86 S. Noticed that she's still off work according to the Louis Rich work sheets so I called Dr. Pontarelli's office. He's, indeed, had her off all this time for elbow problems. She's getting EMGs and awaiting those results for her followup appt. Claimant was not notified of the termination of her weekly benefits until at least December 16, 1986. The undersigned determines the greater weight of the evidence establishes that claimant was in the healing period through November 21, 1986. She was off work pursuant to the direction of Dr. Pontarelli. Sometime immediately prior to October 31, 1986, claimant was seeking employment at other establishments. The positions were similar to the employment she held with defendant-employer. Therefore, as of November 21, 1986, claimant's healing period terminated. Defendants are entitled to a credit for the overpayment. The credit may be made against the amount of permanent partial disability benefits owed to claimant. See: section 85.34(4). order Page 5 THEREFORE, IT IS ORDERED: Defendants are to pay fifty (50) weeks of permanent partial disability benefits to claimant at the stipulated rate of one hundred forty-seven and 28/l00 dollars ($147.28) per week commencing on November 22, 1986. Defendants are to also pay thirty (30) weeks of healing period benefits for the period from January 24, 1986 to March 30, 1986 and from July 1, 1986 to November 21, 1986. Defendants shall be given credit for all benefits previously paid to claimant. Payments that have accrued shall be paid in a lump sum together with statutory interest pursuant to Iowa Code section 85.30. Each party shall bear her/its own costs. Defendants shall file a claim activity report as required by this division pursuant to Division of Industrial Services Rule 343-3.1. Signed and filed this ____ day of July, 1990. ______________________________ MICHELLE A. McGOVERN DEPUTY INDUSTRIAL COMMISSIONER Copies To: Mr. Douglas E. Johnston Attorney at Law 323 E Second St P O Box 175 Muscatine IA 52761 Mr. Greg A. Egbers Attorney at Law 600 Union Arcade Bldg 111 East Third St Davenport IA 52801-1596 BEFORE THE IOWA INDUSTRIAL COMMISSIONER KEITH ECKARD, Claimant, VS. File No. 815928 LEFEBURE CORPORATION, Employer, A R B I T R A T I 0 N and NATIONAL UNION FIRE INSURANCE COMPANY, D E C I S I 0 N Cross-Petitioner, VS. WAUSAU INSURANCE COMPANIES, Defendant to Cross-Petition. INTRODUCTION This is a proceeding in arbitration wherein National Union Fire Insurance Company, hereinafter referred to as National Union, cross-petitioner, seeks recovery from Wausau Insurance Companies, hereinafter referred to as Wausau, cross-petitioned, defendant, for the recovery of certain medical expenses and weekly benefits paid to Keith Eckard, claimant, as a result of an alleged injury on January 22, 1986. This matter comes before the undersigned on a stipulated record consisting of a stipulation of the parties with attached exhibits A through 0. ISSUES PRESENTED The issues presented in this case are which insurance carrier is responsible for payment to claimant as a result of his alleged injury of January 22, 1986. The parties, in their stipulation, do not stipulate that the claimant received an injury arising out of and in the course of his employment on January 22, 1986 or at any other time. It is noted, however, that the parties did submit as exhibits the medical records of the claimant together with the deposition transcript of the claimant's testimony for consideration. As a consequence of the issues raised by the parties, it is necessary to make a determination as to whether or not the claimant did receive an injury arising out of and in the course of his employment and, if so, the date of such injury. ECKARD V. LEFEBURE CORPORATION Page 2 EVIDENCE PRESENTED The stipulations of the parties in paragraphs one through ten are accepted and found as facts. The exhibits submitted in support of those stipulations have been reviewed and considered. The stipulations as set forth in paragraphs one through ten of the stipulation are hereby incorporated into this review of the evidence by this reference. A review of the claimant's testimony as reflected in exhibit 0 discloses the following: Claimant is 44 years old and is presently employed by the defendant, LeFebure Corporation. He has been so employed for six years and his job with that company is that of a service technician which involves the repair and installation of service bank equipment. Claimant recalled that on January 22, 1986, he was hooking up an automatic teller machine to an alarm system. As he put rollers on the machine to move it away from the wall, the rollers came out from underneath the machine and he attempted to place the machine back on the rollers. Claimant was able to accomplish this with the use of a pry bar. After completing work on the machine that day, claimant left through the door and got into his truck. At that time, claimant experienced a severe pain in his anal area because of an external hemorrhoid. Claimant said the pain associated with the hemorrhoid was most evident when he sat down. Claimant revealed that the weight of the machine he was moving with a pry bar was approximately 3,000 pounds and involved a considerable strain. Claimant said that after he got into his truck and began experiencing the pain, he returned home since it was approximately 4:30. Claimant described in detail the physical symptoms of the condition from which he was suffering at that time. Claimant said he tried to call his doctor, but since the doctor was not in, he got into the bathtub and soaked that night. Claimant said the first thing he did on the following morning was to contact the doctor and schedule an appointment. Claimant stated he never experienced anything of this nature before and had, in fact, been to the doctor on January 21, 1986 for a routine examination which disclosed no hemorrhoidal problem. Claimant stated that January 23, 1986 was the first occasion he had to be treated for hemorrhoids. Claimant stated that the doctor told him on January 23, 1986 that he was going to need surgery, but that he resisted this proposal until more conservative methods had been tried. Claimant said he returned to work and continued working until he returned to the doctor on January 29, at which time an appointment was scheduled for him to see a surgeon. Claimant said that, after consulting the surgeon, it was determined that the hemorrhoid would need surgical repair. Claimant said he continued to work, however, from January 24 through February 7, 1986. After that, on February 10, he was taken to the hospital and underwent surgery. Claimant stated that, after his recovery from the surgery, he has not required further treatment for the hemorrhoidal problem. Claimant stated that, from the date of his initial injury through his recovery from surgery, he had suffered pain as a result of the hemorrhoid. On cross-examination, claimant explained in greater detail ECKARD V. LEFEBURE CORPORATION Page 3 the nature of his work. Claimant contended that his condition remained approximately the same between January 22 and February 10. Claimant again denied any problem with hemorrhoids prior to January 22, 1986. A review of claimant's medical records indicates that claimant's primary treating physician, A. J. Herlitzka, M.D., is of the clear opinion that claimant's condition arose as the result of the severe straining that he was involved in on January 22, 1986. According to Dr. Herlitzka, claimant's hemorrhoidal condition initially arose as a result of the lifting incident, slowly began to subside and then became ulcerated necessitating surgery. The clinical notes of a Dr. Taylor reflect the progression of claimant's condition from January 22 through March 22, 1986. APPLICABLE LAW AND ANALYSIS Neither of the parties briefed this matter, however, it is apparent from the petition that it is the contention of National Union that this is a case of cumulative trauma arising within the meaning of the case called McKeever Custom Cabinets v. Smith, 379 N.W.2d 368 (Iowa 1985). It must be noted preliminarily that, based upon the review of the claimant's testimony and the medical records, that claimant did receive an injury arising out of and in the course of his employment on January 22, 1986.. This is, of course, contrary to the decision in McKeever which defined the injury date of a cumulative trauma case as the date upon which the condition first became disabling as opposed to the date medical treatment was first required. Under this theory, the position taken by National Union may indeed be correct. This would appear to be somewhat to similar to the proposition outlined in the occupational disease case of Doerfer Division of CCA v. Nicol, 359 N.W.2d 428 (Iowa 1984) which indicated that the carrier or employer who caused the last injurious exposure in an occupational disease case is responsible for all disability arising therefrom without any attempt to apportion responsibility between previous insurance carriers or. employers. Such an approach, while having the tendency to be perhaps harsh in any given situation, nevertheless spreads the risk over a period of time in a fair and appropriate manner. This approach also avoids lengthy and complex factual determinations as to the source of a particular condition. The instant case, however, is not appropriately analyzed under the McKeever doctrine. It is clear, based upon the claimant's testimony and that of his treating physician, that this is not a condition which arose as a result of a series of minute trauma over a period of time. It is the result of a clear, single, traumatic episode involving extremely heavy lifting which resulted in an immediate physical injury. The complex issues sought to be avoided in cases of occupational disease and cumulative trauma are simply not present on a record of this nature. The factual situation presented in this case is more appropriately determined under the theory set forth in DeShaw v. Energy Manufacturing Company, 192 N.W.2d 777 (Iowa 1971). In that case, it was held that in a review-reopening proceeding predicated upon an injury occurring earlier that the claimant must prove either that the disability for which he or ECKARD V. LEFEBURE CORPORATION Page 4 she seeks additional recovery was proximately caused by the first injury or that the second injury was proximately caused by the first injury. In the instant case, it would appear that the injury which occurred on January 22, 1986 was the proximate cause of the surgery which was necessitated on February 10, 1986. To the extent that the surgery was the result of the ulceration of the hemorrhoidal tissue, it is clear that, but for the initial injury, no such ulceration would have occurred and thus the proximate relationship between the first injury of January 22 and the subsequent development of ulcerated tissue is present. Thus, under the factual situation set forth in the deposition and medical records, it is apparent that the full liability for claimant's injury and temporary disability rests with National Union who was the insurance carrier at the time of the injury on January 22, 1986. Accordingly, it will be found that National Union Insurance Company is not entitled to reimbursement or contribution from Wausau for any monies paid on behalf of LeFebure Corporation for the treatment of claimant's injury. FINDINGS OF FACT WHEREFORE, based upon the record submitted, the following facts are found: 1. On January 22, 1986, claimant suffered an injury arising out of and in the course of his employment in the form of an acute hemorrhoidal condition. 2. The facts stipulated by the parties in paragraphs one through ten of their stipulation are supported by the record and are hereby incorporated in and made findings in this decision by this reference. CONCLUSIONS OF LAW IT IS THEREFORE CONCLUDED that National Union Fire Insurance Company has failed to prove by a preponderance of the evidence that it is entitled to reimbursement or contribution from Wausau Insurance Company pursuant to the provisions of section 85.21 and/or the order of March 27, 1986. ORDER IT IS THEREFORE ORDERED that National Union Fire Insurance Company take nothing from these proceedings. IT IS FURTHER ORDERED that all costs are taxed to National Union Fire Insurance Company. Signed and filed this 9th day July, 1987. STEVEN E. ORT DEPUTY INDUSTRIAL COMMISSIONER ECKARD V. LEFEBURE CORPORATION Page 5 Copies To: Mr. Keith Eckard RR 2 Box 216 Sheffield, Iowa 50475 Mr. Michael Hoffmann Attorney at Law 1000 Des Moines Building Des Moines, Iowa 50309 Mr. Marvin Duckworth Attorney at Law Suite 111, Terrace Center 2700 Grand Avenue Des Moines, Iowa 50312 4200 Filed July 9, 1987 STEVEN E. ORT BEFORE THE IOWA INDUSTRIAL COMMISSIONER KEITH ECKARD, Claimant, VS. File No. 815928 LEFEBURE CORPORATION, Employer, A R B I T R A T I 0 N and NATIONAL UNION FIRE INSURANCE COMPANY, D E C I S I 0 N Cross-Petitioner, VS. WAUSAU INSURANCE COMPANIES, Defendant to Cross-Petition. 4200 Section 85.21 dispute between carriers as to liability for an injury caused by a traumatic occurrence. National Union Fire Insurance Company, carrier on coverage at the time of the injury, held liable. BEFORE THE IOWA INDUSTRIAL COMMISSIONER BOBBY J. PAMPERIEN, Claimant, File No. 816040 vs. A P P E A L H. J. HEINZ, D E C I S I O N Employer, F I L E D LIBERTY MUTUAL INSURANCE COMPANY, JUL 31 1989 Insurance Carrier, IOWA INDUSTRIAL COMMISSIONER Defendants. STATEMENT OF THE CASE Claimant appeals from an arbitration decision denying claimant any benefits. The record on appeal consists of the transcript of the arbitration hearing and joint exhibits 1 through 26. Neither party filed a brief on appeal. ISSUE Because neither party filed a brief on appeal this matter will be considered generally without any specified errors. The issues considered by the deputy were: 1) Whether claimant received an injury which arose out of and in the course of employment; 2) Whether there is a causal relationship between the alleged injury and the disability; 3) Whether claimant is entitled to permanent partial disability benefits to the hand; 4) Whether claimant is entitled to medical benefits under Iowa Code section 85.27. REVIEW OF THE EVIDENCE The arbitration decision dated March 1, 1981 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 issues and evidence. ANALYSIS The analysis of the evidence in conjunction with the law in the arbitration decision is adopted. FINDINGS OF FACT 1. Claimant sustained a pricking to his middle finger on his left hand on December 5, 1985, when claimant wore a pair of gloves issued to him by defendant employer. 2. Claimant had previously cut his left middle finger in October of 1985. 3. Claimant received metal slivers in his left middle finger as a result of wearing company issued gloves. 4. Subsequent to the date of the injury, claimant sought medical treatment for an infection of his left middle finger. 5. The incident on December 5, 1985, did not result in any temporary or permanent disability to claimant's left middle finger. 6. Richard R. Ripperger, M.D., the treating orthopedic surgeon could not determine the cause of claimant's finger infection. CONCLUSIONS OF LAW Claimant has established that on December 5, 1985, while at work, he suffered an injury to his left middle finger. Claimant has not established that there was a causal connection between the injury on December 5, 1985 and claimant's claimed disability. WHEREFORE, the decision of the deputy is affirmed. ORDER THEREFORE, it is ordered: That claimant take nothing from these proceedings. That claimant pay the costs of this appeal including the costs of transcription of the arbitration hearing. That defendants pay all other costs of these proceedings pursuant to Division of Industrial Services Rule 343-4.33. Signed and filed this 31st day of July, 1989. DAVID E. LINQUIST INDUSTRIAL COMMISSIONER Copies To: Mr. Michael W. Liebbe Attorney at Law 116 East Sixth St. P.O. Box 339 Davenport, Iowa 52805-0339 Mr. Greg A. Egbers Attorney at Law 600 Union Arcade Bldg. 111 East Third St. Davenport, Iowa 52801-1550 1108 Filed July 31, 1989 DAVID E. LINQUIST BEFORE THE IOWA INDUSTRIAL COMMISSIONER BOBBY J. PAMPERIEN, Claimant, vs. File No. 816040 H. J. HEINZ, A P P E A L Employer, D E C I S I 0 N and LIBERTY MUTUAL INSURANCE COMPANY, Insurance Carrier, Defendants. 1108 Claimant failed to show a causal connection between the claimed disability and work related injury. Deputy affirmed on appeal. BEFORE THE IOWA INDUSTRIAL COMMISSIONER BOBBY J. PAMPERIEN, Claimant, File No. 816040 vs. A R B I T R A T I O N H. J. HEINZ, D E C I S I O N Employer, F I L E D and MAR 01 1989 LIBERTY MUTUAL INSURANCE COMPANY, IOWA INDUSTRIAL COMMISSIONER Insurance Carrier, Defendants. INTRODUCTION This is an arbitration proceeding brought by Bobby J. Pamperien, claimant, against H. J. Heinz, employer, and Liberty Mutual Insurance Company, defendants. The case was heard by the undersigned in Davenport, Iowa on September 14, 1988. The record consists of the testimony of claimant and the testimony of Salesta Coffman. The record additionally consists of the testimony of Laura Freyermuth, Charles Samuels and Albert Kagee. The record is also composed of joint exhibits 1-26. ISSUES As a result of the prehearing report and order submitted and approved on September 14, 1988, the issues presented by the parties are: 1) Whether claimant received an injury which arose out of and in the course of employment; 2) Whether there is a causal relationship between the alleged injury and the disability; 3) Whether claimant is entitled to permanent partial disability benefits to the hand; 4) Whether claimant is entitled to medical benefits under Iowa Code section 85.27. FACTS PRESENTED Claimant is a machine operator at defendant, employer's cat food operation where claimant is responsible for loading cans on the assembly line. At the beginning of each shift, employees are issued white cloth gloves. These gloves are worn by the employees for the duration of the shift and then the gloves are returned to a supply room. The gloves are laundered by a company who has a contract with defendant to provide laundry services. Once the gloves have been laundered, they are returned to the defendant's supply room where they are reissued to other employees. Claimant testified that on December 5, 1985, he was working the second shift. At approximately 8:30 or 9:00 p.m., claimant was issued a pair of white gloves. He stated that he put the gloves on his hands and began pushing a basket around the facility. Claimant related he felt a pricking in his finger and as a consequence, he removed his glove. Claimant reported he saw sharp slivers in the finger of the glove and he also saw a sliver between the first and second joint at the bottom of the middle finger on his left hand. Claimant testified he threw the glove away and secured a different pair for himself. Claimant stated that approximately five days later his finger was red and irritated. The middle finger on the left hand was swollen. Claimant asserted the sore finger was reported to claimant's foreman, Charles Samuels, and claimant was advised to consult with the company nurse, Laura Freyermuth. Claimant alleged he visited the company nurse after his shift was completed. According to claimant, Ms. Freyermuth advised him to see his own physician. Claimant reported he saw his own physician, Fred C. Green, D.O., on December 11, 1985, and X-rays were taken on that date. Claimant also testified that sometime between the 12th and the 15th of December, 1985, claimant's landlady and friend, Salesta Coffman, removed three tiny slivers from claimant's middle finger. Claimant described these slivers as the size of fine hairs on one's arm. Claimant testified he threw the slivers into the trash. Claimant continued to experience difficulties, according to his testimony. As a result, he was hospitalized on several occasions. A series of surgeries were performed on claimant's finger. He was off work from December 18, 1985 to May 5, 1986 with the exception of April 23, 1986. Also at claimant's hearing, he revealed that during the last week in October of 1985, he was hunting with a dog. The dog was on a leash. Claimant was dragged by the dog into a rosebush. This resulted in a cut on the middle finger of claimant's left hand. The cut was below the first knuckle on that finger. Salesta Coffman testified on behalf of claimant. She testified she removed three small slivers from claimant's finger and that she threw these slivers into the trash. She also related the dates she telephoned defendant for claimant and reported claimant's absenteeism. Charles Williams Samuels also testified at the hearing. He reported to the deputy industrial commissioner that he was a lead worker during December of 1985. He stated that he recalled a conversation in which claimant reported a problem with his finger. Claimant stated to him, "A bone or something in my glove stuck me in the finger." Mr. Samuels also related there were no metal gloves at defendant's place of business. Additionally, Mr. Samuels reported that metal shavings do fly off rollers and that metal cans are present in the plant. Albert Kagee testified for defendants. He reported he was the plant manager for the cat food division. He testified the cat food cans were black iron covered with a tin coating. He also testified that overhead cables at the plant were assumed to be stainless steel, that plant mechanics wear gloves but that he was not aware as to the number of times the gloves were reused. Finally, Mr. Kagee revealed he could not state it was impossible for metallic objects to become embedded in gloves used in the plant. Finally, Laura Freyermuth testified that she was the third shift plant nurse during December of 1985. She reported she did not recall seeing claimant on December 10, 1985, the day claimant reported he visited her. Ms. Freyermuth related the procedures incidental to assisting injured employees. She stated it was not the policy of defendant to advise employees to see their own physicians when there was a work related injury. Rather, employees were to be seen by Dr. Catalona. Ms. Freyermuth also declared that whenever an employee is seen by a nurse in the first aid department, a written log for that employee is completed. Nurse Freyermuth further stated that with respect to claimant, there was no written indication that he had ever been to the first aid department during November and December of 1985. APPLICABLE LAW AND ANALYSIS An employee is entitled to compensation for any and all personal injuries which arise out of and in the course of the employment. Section 85.3(1). Claimant has the burden of proving by a preponderance of the evidence that he received an injury on December 5, 1985 which arose out of and in the course of his employment. McDowell v. Town of Clarksville, 241 N.W.2d 904 (Iowa 1976); Musselman v. Central Telephone Co., 261 Iowa 352, 154 N.W.2d 128 (1967). The 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, 246 Iowa 402, 68 N.W.2d 63 (1955). The words "in the course of" refer to the time and place and circumstances of the injury. McClure v. Union et al. Counties, 188 N.W.2d 283 (Iowa 1971); Crowe, 246 Iowa 402, 68 N.W.2d 63 (1955). "An injury occurs in the course of the employment when it is within the period of employment at a place the employee may reasonably be, and while he is doing his work or something incidental to it." Cedar Rapids Comm. Sch. Dist. v. Cady, 278 N.W.2d 298 (Iowa 1979); McClure, 188 N.W.2d 283 (Iowa 1971); Musselman, 261 Iowa 352, 154 N.W.2d 128 (1967). In the instant case, claimant received an injury which arose out of and in the course of his employment. On December 5, 1985, claimant, while working the second shift, had three metal slivers embedded in the middle finger of his left hand. The slivers were tossed away so their content could never be analyzed. However, there was the testimony of claimant that he saw one of the slivers after he had worn a pair of white gloves. He had obtained the gloves from defendant and claimant was required to wear them while performing services for defendant. Claimant reported it was only after he had worn the gloves that he had experienced the "pricking sensation." The next issue to address is whether claimant's injury was causally connected to his alleged disability. The claimant has the burden of proving by a preponderance of the evidence that the injury of December 5, 1985 is causally related to the disability on which he now bases his claim. Bodish v. Fischer, Inc., 257 Iowa 516, 133 N.W.2d 867 (1965). Lindahl v. L.O. Boggs, 236 Iowa 296, 18 N.W.2d 607 (1945). A possibility is insufficient; a probability is necessary. Burt v. John Deere Waterloo Tractor Works, 247 Iowa 691, 73 N.W.2d 732 (1955). The question of causal connection is essentially within the domain of expert testimony. Bradshaw v. Iowa Methodist Hospital, 251 Iowa 375, 101 N.W.2d 167 (1960). The opinions of experts need not be couched in definite, positive or unequivocal language. Sondag v. Ferris Hardware, 220 N.W.2d 903 (Iowa 1974). An opinion of an expert based upon an incomplete history is not binding upon the commissioner, but must be weighed together with the other disclosed facts and circumstances. Bodish, 257 Iowa 516, 133 N.W.2d 867 (1965). The expert medical evidence must be considered with all other evidence introduced bearing on the causal connection between the injury and the disability. Burt, 247 Iowa 691, 73 N.W.2d 732 (1955). In regard to medical testimony, the commissioner is required to state the reasons on which testimony is accepted or rejected. Sondag, 220 N.W.2d 903 (1974). Claimant's medical history varies from physician to physician with respect to how the injury to his finger occurred. Claimant's personal physician, Fred C. Green, D.O., initially believed claimant had scratched his middle finger on a rosebush. As a result of this understanding, Dr. Green ordered X-rays. The X-rays, according to Dr. Green's deposition, did not provide evidence of a foreign body. Nevertheless, antibiotics were prescribed. According to Dr. Green, there was a possible misunderstanding concerning the onset of illness. (Joint Exhibit 23, page 7, lines 4-5). After nearly six months, claimant set up an appointment with Dr. Green in order to consult with him about his medical history. Dr. Green testified that the following occurred: ...The patient was hunting the last week in October and scratched his middle finger on a rose bush [sic] of the left hand. This healed up with no pain or swelling until 7 November '85. He saw his nurse at the plant on 10 November '85, that was three days later, and the nurse prescribed a pair of gloves to be used during his job. No, wait a minute. He obtained a pair of gloves 5 November '85 prior to seeing the nurse on 10 November '85. He worked approximately 15 minutes with the gloves and alleged that he experienced a stinging sensation around the middle finger and he felt like it was full of slivers so he tossed the gloves aside and continued work. Q. You made that entry 5-13-86? A. 5-13-86. (Jt. Ex. 23, p. 7, 11. 6-21) Dr. Green, later in his deposition, testified: Q. When you first visited with Mr. Pamperien on December 11, 1985, did he mention to you any other possible way this might have gotten started other than the rose bush [sic]? A. No, not at that time he did not. Q. He did not mention to you anything about the metal slivers or the stinging sensation that he might have experienced? A. He might have. If he did, why, I don't have record of it. Q. You didn't write it down? A. No. Q. Would you have considered that significant history? A. Certainly. Q. Does the fact that you didn't write it down suggest to you that maybe he didn't tell you? A. All I had written down initially was the rose bush [sic] and at that time, why, I was more concerned that this was a prick from a rose bush [sic] and then he reported later on that the -- his landlady had actually picked metal filings out of the wound. (Jt. Ex. 23, pp. 14-15, 11. 19-16) Dr. Green opined the cause of claimant's finger problem was as follows: Although initially the patient thought that maybe the injury was due to a prick from the rose bush [sic], the presence of metal filings in the wound that surfaced leads one to believe that most likely the initial injury was work related and hence I would agree that the injury is probably work related. (Ex. 23, p. 8, 11. 12-18) Dr. Green, later in his deposition, stated: Q. You indicated that one of the reasons that you took the x-ray was to identify the presence of foreign bodies. A. That's right. Q. Did the x-ray pick these slivers up? A. No, they did not. Q. Would you have reasonably expected the x-rays to pick these up? A. Yes, ma'am. Q. Does it come as a surprise to you then that they were not present on the x-rays? A. Yes, ma'am. Q. Did you ever actually see these slivers? A. No, I did not. (Jt. Ex. 23, pp. 16-17, 11. 19-7) Dr. Green referred claimant to John Sinning, Jr., M.D. Dr. Sinning diagnosed claimant as having, "...a soft tissue abscess of his left middle finger with an infection of the distal interphalangeal joint of his left middle finger and probably osteomyelitis of his middle phalanges, again his left middle finger." (Jt. Ex. 24, p. 7, 11. 13-17) Dr. Sinning determined claimant's condition was attributable to: Q. Doctor, do you have an opinion in this case on what caused the infection in Mr. Pamperien's finger? A. Yes, I do. Q. What is your opinion? A. The cut that he describes as occurring about six weeks before I saw him. Q. Why do you say that, Doctor? A. Because here was a cut that involved the same area that I saw him about later, it involved some bits of metal that are notably a cause of infection, the significant infection occurred within a few weeks of the original injury and continued to worsen in spite of antibiotics, again suggesting that there had been some significant tissue injury. I am certainly swayed by the history of there being bits of metal that may have been part of the original injury, but I think even without the bits of metal coming out of the hand as Mr. Pamperien describes, I still would attribute his problem to the cut and that's because of the closeness of the relationship. (Jt. Ex. 24, p. 11, 11. 3-25) Later in his deposition, Dr. Sinning learned that the history claimant testified to in his deposition was inconsistent with the history Dr. Sinning had obtained from him. Dr. Sinning then stated that claimant's infection in his finger could have been from a cut or it could have been from some metal slivers stuck in his finger. (Jt. Ex. 24, p. 15, 11. 6-23). Dr. Sinning also stated that his opinion as to the cause of the infection was based upon what the claimant had told him. Dr. Sinning related during the deposition that he would alter his opinion as to causation if he was shown certain events did not happen. During his deposition, Dr. Sinning reiterated claimant's medical history concerning claimant's infected finger. He reported that claimant had explained the following to the office nurse: [T]hat six weeks before thinks he cut his finger at work, formed a hard scab, two weeks ago sore and swollen, saw Dr. Green December 11th, x-rays, started antibiotics, the following day pulled three very fine pieces of metal out of his finger. I think it's clear from these notes that my nurse took and that I went over with Mr. Pamperien that to the best of his history giving ability when I saw him that he had cut his finger at work six weeks before and for three weeks nothing had happened and then something happened. Q. Did he mention anything about a glove? A. I don't remember anything about a glove, no. (Jt. Ex. 24, p. 18, 11. 4-18) Dr. Sinning finally testified there were other possible sources of claimant's infection than the presence of metal shavings. He opined the number one cause of infection was some type of penetrating wound which he did not discover. (Jt. Ex. 24, p. 23, 11. 8-15) Claimant was referred to Richard R. Ripperger, M.D., from Dr. Sinning for treatment. Dr. Ripperger reviewed Dr. Sinning,s notes regarding claimant's medical history. Additionally, Dr. Ripperger discussed claimant's history with him. Dr. Ripperger testified during his deposition: A. He told me that approximately 12-5-85 at work he put on a pair of gloves and noted almost immediately irritation on the middle finger of his left hand. He states that he wore the gloves only about 15 minutes then removed them, he noticed some sharp slivers in the gloves, he then threw the gloves away. He told me that the gloves used at work are washed intermittently by the company then are provided for the employee. About five or six days after that, after 12-5-85 is when Mr. Pamperien first noticed pain, redness, and swelling in his fingers. (Jt. Ex. 25, pp. 7 & 8, 11. 18-5) Dr. Ripperger could not state with any degree of medical certainty what caused claimant's infection. He related the following in his deposition: A. It is hard for me to -- first of all, let me back up. Finger infections can occur for a variety of different reasons or causes, some of which are obvious. A deep cut on a finger is obvious, penetration by a thorn is an obvious source of infection, open fracture of the end of the finger in a car door is an obvious source of infection, but finger infections can also occur for no obvious reason at all as well and when I don't see a patient until approximately three weeks after or maybe six weeks after depending on what the real history is, it is hard -- and the history of trauma or a penetrating wound is not completely apparent, it is hard for me to say with any degree of certainty what actually caused the infection. (Jt. Ex. 25, p. 9, 11. 8-23) Q. Do you know what caused or started that infection? A. No. (Jt. Ex. 25, p. 21, 11. 11-13) R. W. Hartung, M.D., also testified by way of deposition. He stated he was a specialist in diagnostic radiology. Dr. Hartung testified that the x-ray depicted in Ripperger Deposition Exhibit Number 2 was an x-ray of claimant's left hand, even though the x-ray was marked a claimant's right hand. Dr. Hartung also testified the x-ray was taken on December 11, 1985. Dr. Hartung's initial report of December 11, 1985, stated that: There is diffuse soft tissue swelling, primarily over the volar aspect. No focal bony abnormality suggesting osteomyelitis is evident. No radiopaque foreign body is identified. IMPRESSION: Soft tissue swelling without foreign body. (Jt. Ex. 26, p. 47) Dr. Hartung opined that if metal slivers would have been present at the time the x-ray film would have depicted them. He further opined that he knew metallic foreign bodies, especially those containing iron, could be seen on x-ray films. (Jt. Ex. 26, p. 10, 11. 10-21). Additionally, Dr. Hartung testified that the radiographic visibility of a metal was dependent upon the type of metal. (Jt. Ex. 26, p. 36, 11. 15-17). The size of the metal particle was not determinative. (Jt. Ex. 26, p. 15, 11. 2-7). After reviewing all of the above, it is the finding of the undersigned that claimant has failed to establish there is a causal connection between the incident occurring on December 5, 1985 and the claimed disability to the left hand. Medical records do not corroborate claimant's testimony. There are inconsistent medical histories which have been given to the respective physicians. Dr. Ripperger cannot determine any cause for claimant's infection. He states that finger infections often occur for no apparent reason. Much weight is accorded to Dr. Ripperger's opinion. He has treated claimant over the course of several months, and he has performed numerous surgeries on the finger. Nevertheless, he cannot establish the cause of claimant's infection. Then there is the opinion of Dr. Green, claimant's personal physician. He has no knowledge of any alleged work related injury until nearly six months after the claimant has sought attention. Dr. Green keeps relating the injury to a thorn from a rosebush. He writes in his letters of April 2, 1986 and of April 3, 1986, that even his patient initially thought the injury was due to a prick from a rosebush. Next, there is the opinion of Dr. Sinning. He believes claimant has sustained a cut to his finger nearly six weeks prior to claimant's first office visit on December 17, 1985. Dr. Sinning thinks the cut was sustained at work and that after two weeks, the cut was infected. Dr. Sinning also believes three very fine pieces of metal were pulled out of the finger. He opines the infection is due to the cut allegedly occurring six weeks prior to his initial consultation with claimant. Finally, there is the opinion of Dr. Hartung. While he does not testify as to the cause of claimant's alleged disability, his testimony lends credence to the opinions that it is impossible to determine the cause of claimant's infection. Dr. Hartung believes the x-rays can determine the presence of metal pieces in claimant's finger if the metal pieces are present during the time the x-ray is taken. Since the x-rays do not detect the metal pieces, it is not difficult to conclude the metal pieces were not embedded in claimant's finger. Consequently, if the pieces were not embedded, they probably cannot cause the infection. Since claimant has not proven by a preponderance of the evidence that his claimed disability is caused by his work related incident with the glove, claimant takes nothing from these proceedings. FINDINGS OF FACT AND CONCLUSIONS OF LAW WHEREFORE, based on the evidence presented and the principles of law previously cited, the following findings of fact and conclusions of law are made: FINDING 1. Claimant sustained a pricking to his middle finger on his left hand on December 5, 1985, when claimant wore a pair of gloves issued to him by defendant employer. FINDING 2. Claimant had previously cut his left middle finger in October of 1985. FINDING 3. Claimant received metal slivers in his left middle finger as a result of wearing company issued gloves. CONCLUSION 1. Claimant has established by a preponderance of the evidence that on December 5, 1985, while at work, he suffered an injury to his left middle finger. FINDING 4. Subsequent to the date of the injury, claimant sought medical treatment for an infection of his left middle finger. FINDING 5. The incident on December 5, 1985, did not result in any temporary or permanent disability to claimant's left middle finger. FINDING 6. Dr. Ripperger, the treating orthopedic surgeon, could not determine the cause of claimant's finger infection. CONCLUSION 2. Claimant has not established by a preponderance of the evidence there was a causal connection between the injury on December 5, 1985 and claimant's claimed disability. CONCLUSION 3. Claimant takes nothing from these proceedings. ORDER THEREFORE, IT IS ORDERED: Claimant takes nothing from these proceedings. Defendants pay costs of these proceedings pursuant to Division of Industrial Services Rule 343-4.33. Signed and filed this 1st day of March, 1989. MICHELLE A. McGOVERN DEPUTY INDUSTRIAL COMMISSIONER Copies To: Mr. Michael W. Liebbe Attorney at Law 116 East Sixth St. P. O. Box 339 Davenport, Iowa 52805-0339 Mr. Greg A. Egbers Attorney at Law 600 Union Arcade Bldg. 111 East Third St. Davenport, Iowa 52801-1550 1108 Filed March 1, 1989 MICHELLE A. McGOVERN BEFORE THE IOWA INDUSTRIAL COMMISSIONER BOBBY J. PAMPERIEN, Claimant, File No. 816040 vs. A R B I T R A T I 0 N H. J. HEINZ, D E C I S I 0 N Employer, and LIBERTY MUTUAL INSURANCE COMPANY, Insurance Carrier, Defendants. 1108 Claimant failed to show a causal connection between the claimed disability and the work related injury. BEFORE THE IOWA INDUSTRIAL COMMISSIONER RICHARD L. CHRISTIANSEN, File No. 816101 Claimant, A R B I T R A T I O N vs. D E C I S I O N IBP, INC., F I L E D Employer, APR 18 1988 Self-Insured, Defendant. IOWA INDUSTRIAL COMMISSIONER INTRODUCTION This is a proceeding in arbitration brought by Richard L. Christiansen against IBP, Inc., his self-insured employer. Claimant alleges that he sustained an occupational hearing loss and seeks compensation for permanent partial disability and a hearing aid. The case was heard and fully submitted at Sioux City, Iowa on April 13, 1988. The record in this proceeding consists of defendant's exhibits 1, 2 and 3. ISSUES The issues presented for determination are whether claimant is entitled to any compensation for permanent partial disability or for a hearing aid under the provisions of Chapter 85B of The Iowa Code. Neither claimant nor his attorney appeared at the time of hearing. A telephone call to the office of claimant's attorney, made 20 minutes after the time the hearing was scheduled to commence, provided information that claimant's counsel was out of the office at lunch and was not enroute to Sioux City, Iowa for the hearing. Defense counsel moved for dismissal of the case on the ground that the claimant had failed to introduce evidence sufficient to carry the burden of proof as a result of claimant's failure to appear for the hearing. Defense counsel, in the alternative, also offered exhibits 1, 2 and 3 and requested dismissal based on the merits of the case. SUMMARY OF EVIDENCE The only evidence introduced comes from defendant's exhibits 1, 2 and 3. Exhibit 1 is a report from W. H. Wilder, M.D., which states that claimant has a bilateral hearing loss that is unmistakably due to a disease of the middle ear bones called otosclerosis and that claimant's hearing loss was not due to the trauma of working in a noisy environment and was not caused by claimant's work at IBP, Inc. Exhibit 2 is the curriculum vitae of Dr. Wilder. Exhibit 3 is a description of hearing protective devices purportedly used at IBP, Inc. APPLICABLE LAW AND ANALYSIS Claimant has the burden of proving by a preponderance of the evidence that he received an occupational hearing loss on March 7, 1986 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 128 967). The claimant has the burden of proving by a preponderance of the evidence that his hearing loss is causally related to noise exposure at the IBP plant. Bodish v. Fischer, Inc., 257 Iowa 516, 133 N.W.2d 867 (1965). Lindahl v. L. O. Boggs, 236 Iowa 296, 18 N.W.2d 607 (1945). A possibility is insufficient; a probability is necessary. Burt v. John Deere Waterloo Tractor Works, 247 Iowa 691, 73 N.W.2d 732 (1955). The question of causal connection is essentially within the domain of expert testimony. Bradshaw v. Iowa Methodist Hospital, 251 Iowa 375, 101 N.W.2d 167 (1960). However, expert medical evidence must be considered with all other evidence introduced bearing on the causal connection. Burt, 247 Iowa 691, 73 N.W.2d 732. The opinion of experts need not be couched in definite, positive or unequivocal language. Sondag v. Ferris Hardware, 220 N.W.2d 903 (Iowa 1974). However, the expert opinion may be accepted or rejected, in whole or in part, by the trier of fact. Id. at 907. Further, the weight to be given to such an opinion is for the finder of fact, and that may be affected by the completeness of the premise given the expert and other surrounding circumstances. Bodish, 257 Iowa 516, 133 N.W.2d 867. See also Musselman v. Central Telephone Co., 261 Iowa 352, 154 N.W.2d 128 (1967). The only evidence in the record of this case is that claimant's hearing loss is "unmistakably" due to a familial disease and that it is not due to noise trauma. Based upon the record, the only determination which can be reached is that the claimant has failed to prove he sustained an occupational hearing loss which arose out of and in the course of his employment. Further, the claimant failed to appear for the hearing. The agency file shows that a pre-hearing conference was conducted on or about November 3, 1987 with both parties appearing. It further appears that, at the pre-hearing conference, the hearing was scheduled to be held on April 13, 1988 at 1:00 p.m. at the county courthouse in Sioux City, Iowa. The agency file further indicates that a copy of the hearing assignment order was mailed to counsel of record on November 11, 1987. The file contains no undelivered envelopes. Accordingly, it would appear that claimant's counsel had notice of the time and place of hearing through the pre-hearing conference itself and also from the hearing assignment order. Nevertheless, no one appeared on behalf of the claimant at the hearing. The claimant is therefore in default. The record presents no reasonable cause or excuse for claimant's failure to appear at the hearing. Accordingly, dismissal of his claim is warranted. FINDINGS OF FACT 1. Claimant failed to introduce evidence showing it to be probable that his hearing loss arose out of and in the course of his employment with IBP, Inc. To the contrary, it is established by a preponderance of the evidence that the claimant's hearing loss is a familial disease which is totally unrelated to his employment. 2. Claimant failed, without reasonable cause or excuse, to appear at the hearing. CONCLUSIONS OF LAW 1. The defendant is entitled to a dismissal of this claim, with prejudice, both on the merits of the case and also procedurally in view of the claimant's failure to appear at the hearing. Either ground is independently sufficient to warrant the dismissal of the claim with prejudice. ORDER IT IS THEREFORE ORDERED that claimant take nothing from this proceeding. IT IS FURTHER ORDERED that the costs of this proceeding are assessed against the claimant pursuant to Division of Industrial Services Rule 343-4.33 including one hundred thirty-one and 00/100 dollars ($131.00) for the cost of a written report from Dr. Wilder and also for the fees of the court reporter who appeared at the hearing pursuant to Iowa Code section 86.19. Signed and filed this 18th day of April, 1988. MICHAEL G. TRIER DEPUTY INDUSTRIAL COMMISSIONER Copies To: Mr. Stephan M. Engelhardt Attorney at Law Box 217 Denison, Iowa 51442 Mr. Marlon D. Mormann Litigation Attorney IBP, Inc. P.O. Box 515 Dakota City, Nebraska 68731 1402.30 Filed April 18, 1988 MICHAEL G. TRIER BEFORE THE IOWA INDUSTRIAL COMMISSIONER RICHARD L. CHRISTIANSEN, Claimant, File No. 816101 vs. A R B I T R A T I 0 N IBP, INC., D E C I S I 0 N Employer, Self-Insured, Defendant. 1402.30 Claimant failed to appear at hearing and the failure was found to be without reasonable cause or excuse. Defense counsel, nevertheless, offered exhibits showing that the hearing loss of which claimant complained was not a work-related ailment. The claim was dismissed with prejudice on the merits and also as a result of the claimant's failure to appear at hearing and introduce evidence. By failing to appear and introduce evidence, claimant failed to carry the burden of proof on his claim.