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.