BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         
 
         FRANCIS R. GILE, SR.,
 
         
 
              Claimant,                            File Nos. 816148
 
                                                             816149
 
         VS.
 
         
 
         BARTON SOLVENTS, INC.,                  A R B I T R A T I 0 N
 
         
 
              Employer,                             D E C I S I 0 N
 
          
 
          and
 
         
 
          THE TRAVELERS
 
          
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
         
 
                                   INTRODUCTION
 
         
 
              This is a proceeding in arbitration brought by Francis R. 
 
         Gile, Sr., claimant, against Barton Solvents, Inc., employer, and 
 
         The Travelers, insurance carrier, defendants, for benefits as a 
 
         result of an alleged injury which occurred on April 12, 1984 and 
 
         was later aggravated again on August 22, 1985.  A hearing was 
 
         held on January 7, 1987 in Davenport, Iowa, and the case was 
 
         fully submitted at the close of the hearing.  The record consists 
 
         of the testimony of Francis R. Gile, Sr. (claimant), Jerry 
 
         Collins (branch manager), claimant's exhibits 1 through 9, and 
 
         defendants' exhibits A, B and C.  Both attorneys submitted 
 
         excellent briefs.
 
         
 
                                   STIPULATIONS
 
         
 
              The parties stipulated to the following matters:
 
         
 
              1.  That an employer-employee relationship existed between 
 
         claimant and employer at the time of the alleged injury.
 
         
 
              2.  That permanent disability is not an issue in this case.
 
         
 
              3.  That the extent of entitlement to weekly compensation 
 
         for temporary total disability benefits, if defendants are liable 
 
         for the injury, is from April 12, 1984 through June 3, 1984.
 
         
 
              4.  That the rate of weekly compensation, in the event of 
 
         an award, is $217.43.
 
         
 
              5.  That the medical expenses are fair and reasonable, 
 

 
         
 
         
 
         
 
         GILE V. BARTON SOLVENTS, INC.
 
         Page   2
 
         
 
         
 
         were for reasonable and necessary treatment, and were caused by 
 
         claimant's hernia problems.
 
         
 
              6. That defendants are entitled to a credit under Iowa 
 
         Code section 85.38(2) for income disability benefits paid prior 
 
         to hearing under an employee nonoccupational group plan, but 
 
         that the amount of the credit is in dispute.
 
         
 
              7.  That there is no claim for credits for workers' 
 
         compensation benefits previously paid prior to the hearing.
 
         
 
              8.  That there are no bifurcated claims.
 
         
 
                                   ISSUES
 
         
 
              The issues presented by the parties for determination at the 
 
         time of the hearing are as follows:
 
         
 
              1.  Whether claimant sustained an injury on April 12, 1984 
 
         which was aggravated again on August 22, 1985 which arose out of 
 
         and in the course of his employment with employer.
 
         
 
              2.  Whether the alleged injury was the cause of any 
 
         disability during a period of recovery from April 12, 1984 
 
         through June 3, 1984.
 
         
 
              3.  Whether claimant is entitled to temporary total 
 
         disability benefits during a period of recovery from April 12, 
 
         1984 through June 3, 1984.
 
         
 
              4. Whether claimant is entitled to medical expenses for the 
 
         alleged injury of April 12, 1984 and the aggravation of the 
 
         alleged injury on August 22, 1985.
 
         
 
              5. Whether claimant gave notice or whether employer had 
 
         actual notice as required by Iowa Code section 85.23.
 
         
 
              6. Whether the amount of the credit under Iowa Code section 
 
         85.38(2) is the gross amount paid by the insurance company in the 
 
         amount of $1,111.89, or whether the credit is the net amount 
 
         received by claimant of $1,037.39 after the withholding of $74.50 
 
         for social security tax.
 
         
 
                             SUMMARY OF THE EVIDENCE
 
         
 
              All of the evidence was examined and considered.  The 
 
         following is a summary of the pertinent evidence.
 
                                        
 
             Claimant is 52 years old, married, and has no dependent
 
         children.  He started to work for employer in February 1977.  He 
 
         was a warehouseman for six months and then engaged in route sales 
 
         for two and one-half years.  Since then he has been a dock 
 
         foreman.  He is a working foreman.  Approximately 50 percent of 
 

 
         
 
         
 
         
 
         GILE V. BARTON SOLVENTS, INC.
 
         Page   3
 
         
 
         
 
         his work is supervisory and 50 percent of his work is physical 
 
         labor as a warehouseman.  Employer's plant is located in 
 
         Bettendorf, but employer distributes chemicals such as solvents, 
 
         lacquer thinner and alcohol in a five state area.  As a 
 
         warehouseman, claimant's job involved processing 55 gallon drums 
 
         and loading and unloading trucks.  An empty drum weighs about 45 
 
         pounds.  Sometimes, they weigh up to 100 pounds if they are. not 
 
         completely empty.  Claimant testified that he lifted these drums 
 
         on a number of occasions.  The weight of a full drum depends upon 
 
         the contents and can vary from approximately 350 pounds to 750 
 
         pounds.  Claimant testified that sometimes a full drum would be 
 
         laying on its side and that he would manually lift it up on its 
 
         rim to a standing position.
 
         
 
              Processing an empty drum entails taking it off the truck, 
 
         sucking out the remaining contents by vacuum, scraping, cleaning 
 
         and testing the drum, repainting it, stenciling it, setting it 
 
         out to dry, refilling it, and sending it out on a truck again.  
 
         There are mechanical devices that set the drums on pallets with 
 
         the employee maneuvering the weight of the load.  However, when 
 
         loading a pickup or a panel truck, you have to load it by hand.  
 
         The customary method is to balance the drum with the foot, pull 
 
         the top of the drum toward you, tilt the drum on the edge of the 
 
         rim, and then roll it into the truck by hand.  He testified that 
 
         he has frequently handled 750 pound drums in this manner.  
 
         However, now it sometimes gives him pain in the groin.
 
         
 
              Jerry Collins, branch manager, confirmed claimant's 
 
         description of his work.  Collins stated that he performed the 
 
         same duties when he began work for the employer twenty-one years 
 
         ago as a drum cleaner.  Collins did not, however, consider it 
 
         heavy work.  He stated that it is all balance.  A woman could do 
 
         it.
 
         
 
              Claimant testified that he first noticed sharp pain in the 
 
         abdominal area in approximately November of 1983, but he did not 
 
         know what it was at that time other than a sharp pain in the 
 
         groin.  Then, when claimant saw Dr. Fesenmeyer (full name 
 
         unknown), a company doctor, on March 20, 1984 for a physical 
 
         examination in order to renew his ICC license, Dr. Fesenmeyer 
 
         informed claimant that he had a hernia and that he should see his 
 
         own personal physician about it.  There is no report in evidence 
 
         from Dr. Fesenmeyer, Claimant testified that Dr. Fesenmeyer 
 
         always checks for hernias on his company physical examination.
 
         
 
              Claimant followed this advice and contacted his personal 
 
         physician, Mark Hermanson, M.D., on that same day, March 20, 
 
         1984.  Dr. Hermanson's notes for March 20, 1984 record the 
 
         following:
 
         
 
              Pt. comes in after being seen by Dr. Fesenmeyer for a 
 
              company physical who informed him that he had hernias on 
 
              both sides, right greater than left.  His works [sic] 
 
              involves a lot of heavy lifting, states there is no such 
 
              thing as light duty in his job or in that dept.  He is a 
 
              working foreman. (Ex. B, p. 2.)
 
         
 
              Dr. Hermanson diagnosed bilateral inguinal hernia.  He then 
 
         commented as follows:
 

 
         
 
         
 
         
 
         GILE V. BARTON SOLVENTS, INC.
 
         Page   4
 
         
 
         
 
         
 
              Suggested that since he is having no symptoms that he may 
 
              continue to work if he so desires.  Suggested that he should 
 
              inform his supervisor that he has hernias and that the 
 
              doctor felt that it would be wise to avoid heavy lifting to 
 
              delay or prevent symptoms from arising.  If he becomes 
 
              symptomatic will refer to surgeon for repair. (Ex. B, p. 
 
              2.)
 
         
 
              Claimant testified at the hearing that Dr. Hermanson told 
 
         him on March 20, 1984 that his hernias were probably caused by 
 
         work when he told the doctor about what he did at work.  Claimant 
 
         testified that this was when he first learned that he had hernias 
 
         and that they were caused by his work.
 
         
 
              Claimant testified and Dr. Hermanson's notes reflect that 
 
         claimant returned to Dr. Hermanson on April 12, 1984 for 
 
         increasing pain with his inguinal hernias.  The hernias were 
 
         still present and painful to palpation.  Dr. Hermanson referred 
 
         claimant to Daniel P. Congreve, M.D., for an appointment on April 
 
         17, 1984 in order to schedule surgery (Ex. B, p. 2).
 
         
 
              Claimant returned to Dr. Hermanson the following day on 
 
         April 13, 1984 with increasing pain in the right inguinal region 
 
         secondary to hernia.  Dr. Hermanson ordered bedrest and no 
 
         lifting at work until after claimant was evaluated and treated by 
 
         Dr. Congreve on April 17, 1984.  On April 20, 1984, Dr. Hermanson 
 
         recorded that claimant was scheduled for hernia surgery by Dr. 
 
         Congreve on April 24, 1984 (Ex. B., p. 2).  Claimant testified at 
 
         the hearing that he told either Larry Wedemeyer or Jerry Collins, 
 
         whoever was his supervisor, about the hernias the same day he 
 
         learned it from Dr. Hermanson on March 20, 1984.  Claimant also 
 
         testified that he notified Larry Wedemeyer that his hernias were 
 
         caused by work in April 1984.  Exhibit 6 is a weekly indemnity 
 
         disability notice bearing the letterhead of The Travelers Group 
 
         Health Claim in the upper right-hand corner.  This form shows 
 
         that it was signed by claimant on April 19, 1984 at the bottom.  
 
         It is marked "yes" in answer to the question, "is condition work 
 
         related?"  On this form claimant stated that the condition 
 
         occurred between October and April 1984 at Barton Solvents due to
 
         heavy lifting.  Claimant further described the condition which 
 
         kept him from working as his dock man duties which required 
 
         continual moving of empty 45 pound drums and moving full drums of 
 
         liquid weighing between 400 and 700 pounds.
 
         
 
              Collins testified that he first learned that a work-related 
 
         claim was being made when claimant made out this report on April 
 
         19, 1984.
 
         
 
              Dr. Congreve repaired both hernias on April 24, 1984 (Ex. 
 
         2).
 
         
 
              Claimant admitted that company rules require a speed memo to 
 
         report all injuries and that he did not make out a speed memo.  
 
         However, he testified that he told supervisory personnel in 
 
         person and that he made out a written report to David Akers on 
 

 
         
 
         
 
         
 
         GILE V. BARTON SOLVENTS, INC.
 
         Page   5
 
         
 
         
 
         the insurance company's form from The Travelers when he completed 
 
         the weekly indemnity notice dated April 19, 1984 (Cl. Ex. 6).  
 
         Claimant testified that he informed employer that he wanted to 
 
         make a workers' compensation claim at the same time he completed 
 
         exhibit 6, but he was told he could not apply for workers' 
 
         compensation for the reason that there was no proof that it was 
 
         job related.
 
         
 
              Exhibit 7 is a memo from Jerry Collins to claimant's 
 
         personnel file with a copy to Travelers dated May 14, 1984.  It 
 
         reads as follows:
 
         
 
              Per our conversation with Francis R. Gile, Sr. today, we 
 
              have come to the agreement that he is not sure if his hernia 
 
              is or isn't work related.  All he is sure of is that he had 
 
              a physical last fall which didn't indicate any problem. (Ex. 
 
              7).
 
         
 
              Claimant was off work from April 13, 1984, when Dr. 
 
         Hermanson took him off work until June 4, 1984, when Dr. Congreve 
 
         returned him to work after the surgery.
 
         
 
              Claimant testified that after he returned to work he had a 
 
         flareup of his hernia condition in August of 1985.  He was moving 
 
         drums and the cart tipped over.  He went down with it and felt a 
 
         sharp pain.  He reported this to Larry Wedemeyer and was sent to 
 
         see Andrew Edwards, M.D. Dr. Edwards reported that he saw 
 
         claimant on December 6, 1985 at which time claimant complained of 
 
         left inguinal pain on lifting.  The doctor found a left inguinal 
 
         area tender to palpation and that there was minimal bulging on 
 
         valsalva maneuver.  He diagnosed probable recurrent hernia and 
 
         instructed claimant to go back to work, but he was to wear a 
 
         truss for two to three weeks.  If he had further difficulty, Dr. 
 
         Edwards told him to see Dr. Congreve.
 
         
 
              Exhibit 8 is a memo dated December 11, 1985 dictated by 
 
         Collins on the subject "hernia injury on Frank Gile, Sr."  That 
 
         memo reads as follows:
 
         
 
              Frank informed Jeff Kraft on approximately 8-22-85, that he 
 
              hurt himself wheeling drums.  Possible rupture has been 
 
              bothering him on and off since then.  He went to Dr. Andy 
 
              Edwards and he recommended Frank wear a truss for one month 
 
              to the middle of January then reschedule another appointment 
 
              to check.  If this does not work he will need further 
 
              surgery to correct, putting mesh inside to support tissue.  
 
              Frank would not be allowed to lift!!!
 
         
 
              While wearing truss, Frank has been okOd for full time work, 
 
              per conversation with Dr. Edwards on the phone 12-6-85. (Ex. 
 
              8.)
 
         
 
              Claimant filed this petition for workers' compensation 
 
         benefits on April 12, 1986 (original notice and petition).  He 
 
         testified that the reason he filed the petition was because the 
 
         employer told him to pay Dr. Edwards himself.  Claimant also 
 
         testified he talked to Travelers' claim representatives on the 
 
         telephone earlier and that they denied his workers' compensation 
 
         claim for the hernia surgery on the telephone.
 

 
         
 
         
 
         
 
         GILE V. BARTON SOLVENTS, INC.
 
         Page   6
 
         
 
         
 
         
 
              Exhibit 9 is a list of claimant's medical expenses which 
 
         show that claimant personally paid $508.20 out-of-pocket for his 
 
         medical expenses.
 
         
 
              Exhibit C is an explanation of benefits from Travelers 
 
         showing that the total income disability available under 
 
         employers' nonoccupational group plan for income disability was 
 
         $1,111.89, but they subtracted $74.50 for social security 
 
         withholding tax, and that the total benefit paid to claimant was 
 
         $1,037.39.
 
         
 
              On April 1, 1986, Dr. Hermanson stated:
 
         
 
              It is my opinion that in view of the type of work, which 
 
              required a lot of heavy lifting, that there is a very 
 
              reasonable chance that his herniae resulted from his work. 
 
              (Ex. 4.)
 
         
 
              On May 23, 1986, Dr. Hermanson altered those comments to 
 
         read as follows:
 
         
 
              It is my opinion that in view of the type of work that the 
 
              patient is frequently required to do, which involves heavy 
 
              lifting and rolling of heavy barrels, that within a 
 
              reasonable degree of medical probability the herniae were 
 
              caused by his work. (Ex. 1.)
 
         
 
         
 
              Dr. Congreve gave the following opinion to defendants' 
 
         counsel on April 21, 1986:
 
         
 
              I first saw Mr. Gile on April 17, 1984 when he stated to me 
 
              that he was found to have bilateral inguinal hernias by his 
 
              "company doctor".  He was referred to me by Dr. Hermanson 
 
              for consideration of hernia repair.  This was performed on 
 
              April 24, 1984.  Please find enclosed his history and 
 
              physical, operative report, laboratory data and his path 
 
              report.  Of note, Mr. Gile did not relate a specific 
 
              incident when these hernias were first noted, but did 
 
              complain of increasing pressure and discomfort while at 
 
              work. (Ex. 2.)
 
         
 
              Dr. Congreve gave a later report on July 7, 1986 in which he 
 
         stated he saw claimant on June 2, 1986 complaining of pain in 
 
         both groins.  However, he did not have recurrent inguinal 
 
         herniation on either side at that time.  He was given medication 
 
         for this irritation and failed to keep his return appointment on 
 
         July 1, 1986 (Ex. A).
 
         
 
                           APPLICABLE LAW AND ANALYSIS
 
         
 
              An employee is entitled to compensation for any and all 
 
         personal injuries which arise out of and in the course of the 
 
         employment.  Section 85.3(l).
 
         
 
              Claimant has the burden of proving by a preponderance of the 
 
         evidence that he received injuries on April 12, 1984 and August 
 
         22, 1985 which arose out of and in the course of his employment. 
 

 
         
 
         
 
         
 
         GILE V. BARTON SOLVENTS, INC.
 
         Page   7
 
         
 
         
 
         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 Iowa Supreme Court has defined injury very broadly as 
 
         any impairment to health which comes about not through the 
 
         natural building up or tearing down of a human body.  Almquist 
 
         v. Shenandoah, Inc., 218 Iowa 724, 254 N.W. 35 (1934).  Although 
 
         many injuries are traumatic in nature, no accident is required.  
 
         Olson v. Goodyear Service Stores, 255 Iowa 1112, 1116, 125 N.W.2d 
 
         251, 254 (1963).  Neither does there have to be a special 
 
         incident or unusual occurrence.  Ford v. Goode, 240 Iowa 1219, 
 
         1222, 38 N.W.2d 158, 159 (1949).  A personal injury may develop 
 
         gradually over an extended period of time.  Black v. Creston Auto 
 
         Company, 255 Iowa 671, 281 N.W. 189 (1938).
 
         
 
              It has been held in Iowa that the cumulative injury concept 
 
         may apply to factually appropriate cases.  McKeever Custom 
 
         Cabinets, Inc. v. Smith, 371 N.W.2d 368 (1985).  In that case,
 
         
 
         
 
         
 
         the Iowa Supreme Court made a distinction between the discovery 
 
         rule and the cumulative injury rule at pages 372 and 373:
 
         
 
              These two rules are closely related, but they are not the 
 
              same.  The discovery rule may apply where a compensable 
 
              injury occurs at one time but the employee, acting as a 
 
     
 
         
 
         
 
         
 
         
 
         GILE V. BARTON SOLVENTS, INC.
 
         Page   8
 
         
 
         
 
              reasonable person, does not recognize its "nature, 
 
              seriousness and probable compensable character" until later.  
 
              Orr v. Lewis Central School District, 298 N.W.2d 256, 257 
 
              (Iowa 1980).  The cumulative injury rule, however, treated 
 
              by Professor Larson under the heading "gradual injury", may 
 
              apply when the disability develops over a period of time; 
 
              then the compensable injury itself is held to occur at the 
 
              later time. 1B. A. Larson, Workmen's Compensation SS 39.10 
 
              (1985).
 
         
 
              The claimant has the burden of proving by a preponderance of 
 
         the evidence that the injuries of April 12, 1984 and August 22, 
 
         1985 are causally related to the disability on which he now bases 
 
         his claim.  Bodish v. Fischer, Inc., 257 Iowa 516, 133 N.W.2d 867 
 
         (1965).  Lindahl v. L. 0. Boggs, 236 Iowa 296, 18 N.W.2d 607 
 
         (1945).   A possibility is insufficient; a probability is 
 
         necessary.  Burt v. John Deere Waterloo Tractor Works, 247 Iowa 
 
         691, 73 N.W.2d 732 (1955).  The question of causal connection is 
 
         essentially within the domain of expert testimony.  Bradshaw v. 
 
         Iowa Methodist Hospital, 251 Iowa 375, 101 N.W.2d 167 (1960).
 
         
 
              However, expert medical evidence must be considered with all 
 
         other evidence introduced bearing on the causal connection.  
 
         Burt, 247 Iowa 691, 73 N.W.2d 732.  The opinion of experts need 
 
         not be couched in definite, positive or unequivocal language.   
 
         Sondag v. Ferris Hardware, 220 N.W.2d 903 (Iowa 1974).  However, 
 
         the expert opinion may be accepted or rejected, in whole or in 
 
         part, by the trier of fact.  Id. at 907.  Further, the weight to 
 
         be given to such an opinion is for the finder of fact, and that 
 
         may be affected by the completeness of the premise given the 
 
         expert and other surrounding circumstances.  Bodish, 257 Iowa 
 
         516, 133 N.W.2d 867.  See also Musselman v. Central Telephone 
 
         Co., 261 Iowa 352, 154 N.W.2d 128 (1967).
 
         
 
              Claimant did sustain the burden of proof by a preponderance 
 
         of the evidence that he sustained an injury which arose out of 
 
         and in the course of his employment on two different dates as 
 
         alleged.  Claimant testified that his work as a warehouseman was 
 
         quite strenuous at times.  He handled empty drums weighing 45 
 
         pounds.  If they were not fully empty, they could weigh as much 
 
         as 100 pounds.  Full drums weigh between 350 and 750 pounds.  
 
         Sometimes it was necessary to stand a full drum upright that was 
 
         laying on its side.  Other times these drums were maneuvered 
 
         while using mechanical devices.  Other times full drums would be
 
         
 
         tilted up on their rims and rolled in order to move them from 
 
         place to place.  Claimant testified that sometimes he would lift 
 
         a freshly painted, empty drum off the ground and set it on top of 
 
         another drum in order to dry.  This testimony by claimant 
 
         describing the sometimes strenuous nature of his job was not 
 
         controverted.  On the contrary, it was corroborated by Collins 
 
         except that Collins did not personally classify it as heavy 
 
         work.
 
         
 
              Claimant described his work to Dr. Hermanson on March 20, 
 
         1984.  Claimant said that Dr. Hermanson told him that his hernias 
 
         were work related.  This statement of course is hearsay, but Dr. 
 
         Hermanson's notes for March 20, 1984 suggest that claimant should 
 
         inform his supervisor that he has hernias and that it would be 
 

 
         
 
         
 
         
 
         GILE V. BARTON SOLVENTS, INC.
 
         Page   9
 
         
 
         
 
         wise to avoid heavy lifting to delay or prevent symptoms from 
 
         arising (Ex. B, p. 2).  Dr. Hermanson stated on May 23, 1986 that 
 
         the hernias were caused by claimant's work (Ex. 1).
 
         
 
              Dr. Congreve does not give a definitive statement on causal 
 
         connection.  He said, however, that even though claimant did not 
 
         relate a specific incident when these hernias were first noticed, 
 
         he nevertheless did complain of increasing pressure and 
 
         discomfort at work (Ex. 2).
 
         
 
              Dr. Edwards did not give a specific opinion on causal 
 
         connection (Ex. 3).
 
         
 
              In brief then, claimant testified that he had some groin 
 
         pain in November 1983, but he did not know what it was.  On March 
 
         20, 1984, Dr. Fesenmeyer, during the course of a company physical 
 
         examination, diagnosed right and left hernia even though claimant 
 
         did not complain of any symptoms at that time.  Claimant followed 
 
         Dr. Fesenmeyer's instructions and saw his own personal physician, 
 
         Dr. Hermanson, on this same day.  On April 12, 1984, claimant did 
 
         become symptomatic and saw Dr. Hermanson again.  On April 13, 
 
         1984, Dr. Hermanson took claimant off work due to increasing 
 
         hernia pain.  On April 24, 1984, Dr. Congreve repaired a hernia. 
 
          Claimant returned to work on June 4, 1984.
 
         
 
              In summary, Dr. Hermanson says that claimant's hernias are 
 
         work-related injuries.  Dr. Congreve implies that they could be 
 
         work-related injuries because of increasing pressure and 
 
         discomfort while at work.  Dr. Congreve did not say that the 
 
         hernias were not work-related injuries.  Dr. Edwards gives no 
 
         opinion on this point.
 
         
 
              Claimant's testimony indicated that he believes that his 
 
         hernias were work-related injuries.
 
         
 
              Collins did not testify that the hernias were not 
 
         work-related injuries.  Defendants did not offer any other cause 
 
         for these hernias.  No other cause other than the job is suggested
 
         by any of the testimony, lay or expert.  Consequently, it must be 
 
         concluded and it is now determined that claimant did sustain the 
 
         burden of proof by a preponderance of the evidence (1) that he 
 
         did sustain an injury that arose out of and in the course of 
 
         employment with employer; (2) that the injury caused claimant to 
 
         be temporarily and totally disabled from April 12, 1984 through 
 
         June 3, 1984; (3) that claimant is entitled to temporary total 
 
         disability benefits from April 12, 1984 through June 3, 1984; and 
 
         (4) that claimant is entitled to $508.22 of unpaid medical 
 
         expenses for these injuries.
 
         
 
              Claimant has advanced the cumulative injury theory as 
 
         enunciated in the McKeever case.  It is now determined that this 
 
         is not a factually appropriate situation for the application of 
 
         this rule.  Claimant did not describe gradually increasing 
 
         symptoms or several repeated traumas over time.  Essentially, 
 
         claimant testified that he experienced some pain in the groin in 
 
         November 1983.  Then, Dr. Fesenmeyer diagnosed bilateral inguinal 
 
         hernias on March 20, 1984, but they were not symptomatic at that 
 

 
         
 
         
 
         
 
         GILE V. BARTON SOLVENTS, INC.
 
         Page  10
 
         
 
         
 
         time and claimant was not aware that he had them.  On April 12, 
 
         1984, the hernias became symptomatic.  Therefore, it is not 
 
         possible to determine whether the condition occurred from 
 
         numerous incidents over a period of time or simply from one or 
 
         two events.  McKeever at 374.  It is equally as possible that the 
 
         condition is a result of one or two events as it is from numerous 
 
         incidents over a period of time.  Consequently, it cannot be 
 
         determined to be a cumulative injury under the evidence present 
 
         in this case.
 
         
 
              The discovery rule does apply to this case.  Claimant 
 
         testified that he first learned that he had hernias and that they 
 
         were work related on March 20, 1984 from Dr. Hermanson.  
 
         Therefore, it is determined that claimant recognized the nature, 
 
         seriousness, and probable compensable character of this condition 
 
         on March 20, 1984.  Orr v. Lewis Central School District, 298 
 
         N.W.2d 256, 257 (Iowa 1980).  Claimant testified that he to Larry 
 
         Wedemeyer or Jerry Collins that day.
 
         
 
              Collins, employer's branch manager, testified that he 
 
         learned of the condition on April 19, 1984 when claimant filed a 
 
         claim for income disability based on a work-related injury.  
 
         Employer, then, both received notice from claimant and had actual 
 
         knowledge of the injury on April 19, 1984 which is within ninety 
 
         days of the time it was discovered on March 20, 1984 as required 
 
         by Iowa Code section 85.23.  Failure to give notice is an 
 
         affirmative defense.  DeLong v. Iowa State Highway Commissioner, 
 
         229 Iowa 700, 295 N.W. 91 (1940), Reddish v. Grand Union Tea 
 
         Company, 230 Iowa 108, 295 N.W. 800 (1941).  Defendants, 
 
         therefore, failed to sustain the burden of proof by a 
 
         preponderance of the evidence that claimant did not give proper 
 
         notice as provided by Iowa Code section 85.23.   Iowa Code 
 
         section 85.38(2) provides:
 
              Credit for benefits under group plans.  In the event the 
 
              disabled employee shall receive benefits, including medical, 
 
              surgical or hospital benefits, under any group plan covering 
 
              nonoccupational disabilities contributed to wholly or 
 
              partially by the employer, which benefits should not have 
 
              been paid or payable if any rights of recovery existed under 
 
              this chapter, chapter 85A or chapter 85B, then such amounts 
 
              so paid to said employee from any such group plan shall be 
 
              credited to or against any compensation payments, including 
 
              medical, surgical or hospital, made or to be made under this 
 
              chapter, chapter 85A or chapter 85B.
 
         
 
              A literal interpretation of this section would focus on the 
 
         words "in the event the disabled employee shall receive any 
 
         benefits" and the words "amounts so paid to said employee."  In 
 
         this case, the employee received and was paid only $1,037.39.  It 
 
         would appear that the purpose of this code section is to put the 
 
         parties in the same position they would be in if the claim had 
 
         been administered correctly in the first place.  If this claim 
 
         had been handled correctly in the first place, claimant would 
 
         have received workers' compensation benefits instead of 
 
         nonoccupational group plan income disability benefits.  Workers' 
 
         compensation benefits are not subject to social security 
 
         withholding.  It was the choice or determination of the employer 
 
         or its representatives to pay nonoccupational group plan income 
 
         disability benefits.  Therefore, if employer or its 
 

 
         
 
         
 
         
 
         GILE V. BARTON SOLVENTS, INC.
 
         Page  11
 
         
 
         
 
         representatives erroneously paid social security withholding tax 
 
         to the federal government which was not, in fact, due to the 
 
         social security administration, then it is incumbent upon 
 
         employer or its representatives to file an amended return with 
 
         the social security administration and recoup this $74.50 which 
 
         was erroneously paid.  It is, therefore, determined that 
 
         defendants are entitled to a credit of $1,037.39, the net amount 
 
         received by and paid to claimant.
 
         
 
              According to (1) the testimony of claimant at the hearing, 
 
         (2) exhibit 8, the memo from Jerry Collins, and (3) exhibit 3, 
 
         the report of Dr. Edwards, there is no dispute that claimant 
 
         reported that he reinjured his hernia on August 22, 1985 at work 
 
         and saw Dr. Edwards, who diagnosed left inguinal tenderness and 
 
         bulging with the valsalva maneuver.  Therefore, it is determined 
 
         that claimant did sustain a second injury on August 22, 1985 that 
 
         arose out of and in the course of his employment with employer.
 
         
 
                                 FINDINGS OF FACT
 
         
 
              WHEREFORE, based upon the evidence presented, the following 
 
         findings of fact are made:
 
         
 
         
 
         
 
         
 
         
 
              That claimant sustained an injury on March 20, 1984 when he 
 
         was told by Dr. Hermanson that his bilateral inguinal hernias 
 
         were related to his work as a working dock foreman for employer.
 
         
 
              That claimant first learned of the nature, seriousness and 
 
         probable compensable character of the injury on March 20, 1984 
 
         when he was so informed by Dr. Hermanson.
 
         
 
              That the injury caused claimant to be off work from April 
 
         12, 1984 through June 3, 1984 for surgery and recuperation.
 
         
 
              That claimant was off work from April 12, 1984 through June 
 
         3, 1984 due to this injury as stipulated.
 
         
 
              That claimant incurred $508.22 in medical bills that were 
 
         not paid by employer.
 
         
 
              That claimant notified employer in writing of his injury on 
 
         April 19, 1984.
 
         
 
              That claimant received and was paid $1,037.39 in 
 
         nonoccupational employee group plan income disability payments.
 
         
 
              That claimant sustained an injury on August 22, 1984 when he 
 
         had a recurrence of left inguinal hernia pain.
 
         
 
              That claimant lost no time from work for the second injury.
 
         
 
              That claimant is not permanently disabled as stipulated by 
 
         the parties.
 
         
 
                                CONCLUSIONS OF LAW
 

 
         
 
         
 
         
 
         GILE V. BARTON SOLVENTS, INC.
 
         Page  12
 
         
 
         
 
         
 
              WHEREFORE, based upon the evidence presented and the 
 
         principles of law previously mentioned, the following conclusions 
 
         of law are made:
 
         
 
              That claimant did sustain an injury on March 20, 1984 and 
 
         again on August 22, 1985 that arose out of and in the course of 
 
         employment with employer.
 
         
 
              That the injury of March 20, 1984 was the cause of temporary 
 
         total disability for the period from April 12, 1984 through June 
 
         3, 1984.
 
         
 
              That claimant is entitled to seven point five seven one 
 
         (7.571) weeks of temporary total disability benefits for the 
 
         period from April 12, 1984 through June 3, 1984.
 
         
 
              That claimant is entitled to five hundred eight and 22/100 
 
         dollars ($508.22) of medical expenses which claimant paid 
 
         himself.
 
         
 
              That claimant did give proper notice of the injury of March 
 
         20, 1984 as required by Iowa Code section 85.23 based on the 
 
         discovery rule.
 
         
 
              That defendants are entitled to a credit of one thousand 
 
         thirty-seven and 39/100 dollars ($1,037.39) pursuant to Iowa Code 
 
         section 85.38(2).
 

 
         
 
         
 
         
 
         GILE V. BARTON SOLVENTS, INC.
 
         Page  13
 
         
 
         
 
         
 
                                      ORDER
 
         
 
              THEREFORE, IT IS ORDERED:
 
         
 
              That defendants pay to claimant seven point five seven one 
 
         (7.571) weeks of temporary total disability benefits at the rate 
 
         of two hundred seventeen and 43/100 dollars ($217.43) in the 
 
         total amount of one thousand six hundred forty-six and 16/100 
 
         dollars ($1,646.16) for the period April 12, 1984 through June 3, 
 
         1984.
 
         
 
              That defendants pay this amount in a lump sum.
 
         
 
              That interest will accrue under Iowa Code section 85.30.
 
         
 
              That defendants pay to claimant five hundred eight and 
 
         22/100 dollars ($508.22) in unpaid medical expenses.
 
         
 
              That defendants are entitled to a credit in the amount of 
 
         one thousand thirty-seven and 39/100 dollars ($1,037.39) pursuant 
 
         to Iowa Code section 85.38(2).
 
         
 
              That defendants will pay the costs of this action in 
 
         accordance with the provisions of Division of Industrial Services 
 
         Rule 343-4.33.
 
         
 
              That defendants are to file first reports of injury for the 
 
         injuries involved in this case.
 
         
 
              That defendants are to file claim activity reports as 
 
         requested by this agency pursuant to Division of Industrial 
 
         Services Rule 343-3.1.
 
         
 
              Signed and filed this 25th day of August, 1987.
 
         
 
         
 
         
 
         
 
         
 
                                             WALTER R. McMANUS, JR
 
                                             DEPUTY INDUSTRIAL COMMISSIONER
 
         
 
         
 
         
 
         Copies To:
 
         
 
         Mr. Michael J. Motto
 
         Attorney at Law
 
         1002 Kahl Building
 
         Davenport, Iowa 52801
 
         
 
         Ms. Vicki L. Seeck
 
         Attorney at Law
 
         600 Union Arcade Building
 
         111 E. 3rd Street
 
         Davenport, Iowa 52801
 
 
 
         
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                                 1106; 1108.50; 1402.20;
 
                                                 1402.30; 1402.40;1402.50;
 
                                                 1402.60; 1403.30; 1801;
 
                                                 2401; 2802; 2803; 2209;
 
                                                 1701
 
         
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         
 
         FRANCIS R. GILE, SR.,
 
         
 
              Claimant,                              File Nos. 816148
 
                                                               816149
 
         VS.
 
         
 
         BARTON SOLVENTS, INC.,                    A R B I T R A T I 0 N
 
         
 
              Employer,                              D E C I S I 0 N
 
         
 
         and
 
         
 
         THE TRAVELERS,
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
         
 
         
 
         1106; 1108.50; 1402.20; 1402.30; 1402.40; 1402.50; 1402.60; 
 
         1403.30; 1801; 2401; 2802; 2803
 
         
 
              Found that claimant's hernias were injuries that arose out 
 
         of and in the course of employment, caused temporary total 
 
         disability for the period stipulated, and that claimant was 
 
         entitled to compensation and medical benefits as alleged.  
 
         Discovery rule applied and written notice given by claim form in 
 
         timely manner.
 
         
 
         2209
 
         
 
              Evidence did not establish factually appropriate situation 
 
         for cumulative injury, but discovery rule did apply to an injury 
 
         of no specified date and no specified incident.
 
         
 
         1701
 
         
 
              Defendants only allowed ICS 85.38(8) credit for amount 
 
         claimant actually received and not amount they paid for social 
 
         security withholding tax because it was not "received by" or 
 
         "paid to" employee as statute provides.  Employer could file 
 
         amended return with social security and recoup payment 
 
         erroneously made.
 
 
 
 
            
 
 
 
       
 
            
 
                    
 
         
 
                   BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         WILLIAM P. MEREDITH,
 
         
 
              Claimant,                              File No. 816286
 
         
 
         vs.                                      A R B I T R A T I O N
 
         
 
         BURGER CONSTRUCTION,                        D E C I S I O N
 
         
 
              Employer,                                 F I L E D
 
         
 
         and                                           FEB 7 1989
 
         
 
         UNITED STATES FIDELITY &                  INDUSTRIAL SERVICES
 
         GUARANTY COMPANY,
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
                                   INTRODUCTION
 
         
 
              This is a proceeding in arbitration brought by William P. 
 
         Meredith against Burger Construction, his former employer, and 
 
         United States Fidelity & Guaranty Company, the employer's 
 
         insurance carrier.  The case was heard and fully submitted at 
 
         Cedar Rapids, Iowa on June 3, 1988.  The record in the proceeding 
 
         consists of joint exhibits 1 through 33 and testimony from 
 
         William P. Meredith and Glen Millard.
 
         
 
                             ISSUES AND STIPULATIONS
 
         
 
              It was stipulated that claimant sustained an injury on 
 
         January 28, 1986 which arose out of and in the course of his 
 
         employment.  The only issue for determination is the extent of 
 
         permanent partial disability that was proximately caused by the 
 
         injury.
 
         
 
                           SUMMARY OF EVIDENCE
 
         
 
              The following is a summary of evidence presented in this 
 
         case.  Of all the evidence received at the hearing, only that 
 
         considered most pertinent to this decision is discussed. 
 
         Conclusions about what the evidence showed are inevitable with 
 
         any summarization.  The conclusions in the following summary 
 
         should be considered to be preliminary findings of fact.
 
         
 
              William P. Meredith is a 37-year-old, married man who lives 
 
         at Iowa City, Iowa.
 
         
 
              Meredith is a high school graduate.  After high school, he 
 
                                                
 
                                                         
 
         worked briefly in a warehouse, served in the Navy Reserve and 
 
         then became a union.carpenter. He operated his own business for 
 
         approximately six years.  He also has worked for an employer as a 
 
         construction manager and as a working foreman.  Meredith had 
 
         lived and worked primarily in the state of Illinois before moving 
 
         to Iowa City in November, 1983.
 
         
 
              Meredith had two prior back injuries which had resulted in 
 
         surgery.  The first injury occurred in 1974 and claimant 
 
         underwent a lumbar laminectomy for herniated disc at the L4-5 
 
         level on February 19, 1975 (exhibits 14 and 29).  The record 
 
         contains no evidence of impairment ratings or physical 
 
         restrictions resulting from the 1974 injury.  Claimant testified 
 
         that, following recuperation from the surgery, he returned to the 
 
         same type of work as he had performed prior to the injury.  
 
         Claimant stated that he did not file a workers' compensation 
 
         claim for the 1974 injury.
 
         
 
              Claimant was injured again in 1982 and eventually underwent 
 
         surgery for a protruded disc at the left L5-S1 level of his 
 
         spine. Following that injury, he was advised to avoid heavy 
 
         lifting (exhibit 19).  Meredith received a workers' compensation 
 
         settlement under the laws of the state of Illinois which paid 
 
         $15,000 representing a ten percent impairment of the body as a 
 
         whole (exhibits 29 and 30).
 
         
 
              Claimant testifies that, when he moved to Iowa, he already 
 
         had a job arranged with Burger Construction.  He stated that he 
 
         worked in the cabinet shop due to his back condition for 
 
         approximately seven or eight months, but then went to the field 
 
         and worked as a carpenter, usually as a working foreman.
 
         
 
              Claimant testified that he was injured on January 28, 1986 
 
         when a table saw which he was helping to unload slipped off a 
 
         dolly and he caught all the weight of the machine.  Claimant 
 
         stated that, after the injury, he tried to work, but was unable 
 
         to do so.  He stated that he went home, attempted bed rest and 
 
         then sought medical treatment.  Claimant was hospitalized at 
 
         Mercy Hospital in Iowa City under the care of William Pontarelli, 
 
         M.D., an orthopaedic surgeon.  Claimant was treated 
 
         conservatively with bed rest, pain medication and physical 
 
         therapy.  A CT scan showed possible lateral recess stenosis at 
 
         L4-5 and a possible free disc fragment or rerupture of the disc 
 
         at that level (exhibit 2).
 
         
 
              Dr. Pontarelli issued a report dated June 20, 1986 in which 
 
         he indicated that claimant has constant persistent back and 
 
         bilateral leg pain which is worse with activity and relieved by 
 
         rest.  Dr. Pontarelli stated that it was unlikely that claimant 
 
         would ever be able to resume employment as a carpenter.  The 
 
         doctor felt that surgical treatment could not be predicted to 
 
         provide enough benefit to allow claimant to resume employment as 
 
         a carpenter and that vocational rehabilitation would be 
 
         appropriate. Dr. Pontarelli rated claimant as having a 15% 
 
         permanent impairment of the whole person as a result of the 
 
                                                
 
                                                         
 
         January 28, 1986 injury.(exhibits 4 and 5).  In November, 1986, 
 
         claimant was evaluated at the Mercy Hospital Medical Center 
 
         Medical Occupational Evaluation Center.  Orthopaedic surgeon 
 
         Joshua Kimelman, D.O., rated claimant as having a 20% permanent 
 
         partial impairment, of which 10% was preexisting the most recent 
 
         injury. Dr. Kimelman had no further recommendations for diagnosis 
 
         or treatment and agreed that working with vocational 
 
         rehabilitation would be appropriate for claimant.  Dr. Kimelman 
 
         stated that claimant should refrain from activities that require 
 
         bending, twisting or repetitive lifting in excess of 50 pounds 
 
         (exhibit 20, page I-3).
 
         
 
              Exhibit 20 also contains a report entitled "Transfer of 
 
         Skills" which discusses claimant's vocational outlook.  Tests 
 
         were conducted and claimant performed well above average.  The 
 
         report concluded that vocational rehabilitation, in particular 
 
         training in the area of computers, would be appropriate.
 
         
 
              Claimant testified that, after the most recent injury, he 
 
         realized that he could not continue to work as a carpenter and 
 
         needed a career change.  Claimant enrolled at Kirkwood Community 
 
         College in the fall of 1986 with the assistance of his state 
 
         vocational rehabilitation counselor.  Claimant stated that 
 
         initially he took refresher courses as recommended by his 
 
         vocational rehabilitation counselor since he had to wait to 
 
         obtain a vacancy in the course of study which he wanted to 
 
         pursue.  At the time of hearing, claimant had completed one year 
 
         towards a two-year degree as an electronics technician.  Claimant 
 
         stated that his projected graduation date would be June, 1989.  
 
         Claimant testified that he is currently carrying 20 hours of work 
 
         and works seriously on his grades because he feels that grades 
 
         are important.  Claimant has nearly a straight "A" average 
 
         (exhibit 33).
 
         
 
              In January, 1988, claimant experienced a severe exacerbation 
 
         of back pain for which he was hospitalized from January 6 through 
 
         January 12, 1988.  He was treated conservatively and with 
 
         medications.  A CT scan taken at that time showed herniation of 
 
         the L5-S1 disc on the left side (exhibits 11 and 24).
 
         
 
              Claimant stated that he would like to stay in the Iowa City 
 
         area because he owns his own home there.  He feels that Rockwell 
 
         Collins and Square D are potential local employers.
 
         
 
              Glen Millard, the Cedar Rapids Job Service office manager, 
 
         testified that claimant has the aptitude to become an electronics 
 
         technician and that there are twice as many electronics 
 
         technician jobs in the Cedar Rapids-Iowa City area as there are 
 
         carpenter jobs.  Millard stated that entry level wages for 
 
         electronics technicians are approximately $8.00 per hour and 
 
         that, at the time of hearing, there were ten openings for 
 
         electronics technicians at the Rockwell Collins plant.  Millard 
 
         stated that the Kirkwood Community College electronics technician 
 
         program graduates 30-35 individuals per year and that 
 
         approximately 28 of them are placed in employment in the field.  
 
                                                
 
                                                         
 
         Millard stated that grades are important and that most top 
 
         students get jobs in the area which they desire.  Millard also 
 
         stated that an electronics technician has a better chance of 
 
         advancement than a carpenter as there are more levels of 
 
         positions.  Millard stated that their employment is also more 
 
         stable since carpenters are usually unemployed two or three 
 
         months per year.  Millard issued reports, exhibits 27 and 28, 
 
         which are consistent with the testimony provided at hearing.
 
         
 
              Millard indicated that claimant's decision to become trained 
 
         as an electronics technician was an appropriate career choice in 
 
         view of claimant's aptitude and physical restrictions.
 
         
 
                        APPLICABLE LAW AND ANALYSIS
 
         
 
              The claimant has the burden of proving by a preponderance of 
 
         the evidence that the injury of January 28, 1986 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).
 
 
 
             
 
                                                         
 
         
 
              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).
 
         
 
              Dr. Pontarelli rated claimant as having a 15% permanent 
 
         impairment that was caused by the January 28, 1986 injury 
 
         (exhibits 4, 5 and 13).  Dr. Kimelman found claimant to have a 
 
         10% permanent impairment that was caused by the 1986 injury 
 
         (exhibit 20).  It is not necessary to determine which of the two 
 
         is correct since they are not greatly divergent.
 
         
 
              As claimant has an impairment to the body as a whole, an 
 
         industrial disability has been sustained.  Industrial disability 
 
         was defined in Diederich v. Tri-City Railway Co., 219 Iowa 587, 
 
         593, 258 N.W. 899, 902 (1935) as follows:  "It is therefore plain 
 
         that the legislature intended the term 'disability' to mean 
 
         'industrial disability' or loss of earning capacity and not a 
 
         mere 'functional disability' to be computed in the terms of 
 
         percentages of the total physical and mental ability of a normal 
 
         man."
 
         
 
              Functional impairment is an element to be considered in 
 
         determining industrial disability which is the reduction of 
 
         earning capacity, but consideration must also be given to the 
 
         injured employee's age, education, qualifications, experience and 
 
         inability to engage in employment for which he is fitted.  Olson 
 
         v. Goodyear Service Stores, 255 Iowa 1112, 1121 125 N.W.2d 251, 
 
         257 (1963).
 
         
 
              Industrial disability or loss of earning capacity is a 
 
         concept that is quite similar to impairment of earning capacity, 
 
         an element of damage in a tort case.  Impairment of physical 
 
         capacity creates an inference of lessened earning capacity.  The 
 
         basic element to be determined, however, is the reduction in 
 
         value of the general earning capacity of the person, rather than 
 
         the loss of wages or earnings in a specific occupation.  
 
         Post-injury earnings create a presumption of earning capacity.  
 
         The earnings are not synonymous with earning capacity and the 
 
         presumption may be rebutted by evidence showing the earnings to 
 
         be an unreliable indicator.  Carradus v. Lange, 203 N.W.2d 565 
 
         (Iowa 1973); Holmquist v. Volkswagon of America, Inc., 261 N.W.2d 
 
         516 (Iowa App. 1977) A.L.R.3d 143; Michael v. Harrison County, 
 
         34th Biennial Report, 218 (1979): 2 Larson Workmen's Compensation 
 
         Law, sections 57.21 and 57.31.
 
         
 
                                                
 
                                                         
 
              A claimant's industrial disability is to be evaluated as the 
 
         claimant exists immediately following recuperation from the 
 
         injury.  It is not to be evaluated as the claimant exists several 
 
         years following the injury after he has expended years and 
 
         thousands of dollars rehabilitating himself.  His aptitude for 
 
         rehabilitation, however, is a proper consideration.  Stewart v. 
 
         Crouse Cartage Co., file number 738644 (App. Decn., February 20, 
 
         1987).
 
         
 
              All of claimant's work history has been involved with heavy 
 
         lifting physical labor.  Claimant stated that he had difficulty 
 
         obtaining even part-time employment since his injury.  Clearly, 
 
         some degree of industrial disability existed following his two 
 
         prior back injuries, but they were apparently not so severe as to 
 
         prohibit him from returning to work in his trade as a carpenter. 
 
         It should be noted that, following the second injury, he was 
 
         advised to avoid heavy lifting and he apparently got along well 
 
         while building cabinets and had trouble only when he went to work 
 
         in the field.  This is evidence that some degree of industrial 
 
         disability preexisted January 28, 1986.
 
         
 
              It is the January 28, 1986 injury which has necessitated 
 
         that William Meredith cease working in his trade as a carpenter, 
 
         retrain himself and seek a new occupation.  His chosen course of 
 
         study to qualify as an electronics technician certainly seems 
 
         appropriate.  He is far enough into the course of study that it 
 
         appears likely he will be able to successfully complete it. The 
 
         testimony from Glen Millard and from claimant indicates that 
 
         there is a good likelihood he will be able to obtain employment 
 
         as an electronics technician.  When all the appropriate factors 
 
         of industrial disability are considered, it is determined that 
 
         William P. Meredith sustained a 35% permanent partial disability 
 
         as a result of the injury he sustained on January 28, 1986.  His 
 
         total industrial disability is somewhat higher than 35%, but the 
 
         entire disability cannot be attributed to the current employer.
 
         
 
                              FINDINGS OF FACT
 
         
 
              1.  It is probable that William P. Meredith has the ability 
 
         to complete his course of study to become an electronics 
 
         technician and that he will be able to obtain employment in the 
 
         Linn or Johnson County, Iowa areas upon completion of his course 
 
         of study.
 
         
 
              2. The economic remuneration that claimant will likely earn 
 
         as an electronics technician will be substantially similar to 
 
         that which he experienced as a carpenter.
 
         
 
              3.  William Meredith experienced a 35% reduction in his 
 
         earning capacity as a result of the injury he sustained on 
 
         January 28, 1986 when that capacity is evaluated at the end of 
 
         his healing period.
 
         
 
                             CONCLUSIONS OF LAW
 
         
 
                                                
 
                                                         
 
              1.  This agency has jurisdiction of the subject matter of 
 
         this proceeding and its parties.
 
         
 
              2.  Permanent partial disability is evaluated at the end of 
 
         the healing period based upon the claimant's condition as it 
 
         exists at that time, taking into account his aptitudes and 
 
         matters that are reasonably foreseeable.  Matters that occur 
 
         subsequent to the end of the healing period and prior to the time 
 
         of hearing can be considered in order to determine what is or is 
 
         not likely to result in the future.
 
         
 
              3.  William P. Meredith is entitled to recover 175 weeks of 
 
         compensation for permanent partial disability, representing a 35% 
 
         permanent partial disability under the provisions of Iowa Code 
 
         section 85.34(2)(u).
 
         
 
                                    ORDER
 
         
 
              IT IS THEREFORE ORDERED that defendants pay claimant one 
 
         hundred seventy-five (175) weeks of compensation for permanent 
 
         partial disability at the rate of two hundred six and 26/100 
 
         dollars ($206.26) per week payable commencing June 20, 1986.
 
         
 
              IT IS FURTHER ORDERED that defendants are entitled to full 
 
         credit for the one hundred (100) weeks of compensation previously 
 
         paid and shaLl pay all past due, accrued amounts in a lump sum 
 
         together with interest pursuant to Iowa Code section 85.30.
 
         
 
              IT IS FURTHER ORDERED that defendants pay the costs of this 
 
         proceeding pursuant to Division of Industrial Services Rule 
 
         343-4.33.
 
         
 
              IT IS FURTHER ORDERED that defendants file Claim Activity 
 
         Reports as requested by this agency pursuant to Division of 
 
         Industrial Services Rule 343-3.1.
 
         
 
              Signed and filed this 7th day of February, 1989.
 
         
 
         
 
         
 
         
 
         
 
         
 
                                            MICHAEL G. TRIER
 
                                            DEPUTY INDUSTRIAL 
 
                                            COMMISSIONER
 
         
 
         Copies To:
 
         
 
         Mr. Richard P. Moore
 
         Attorney at Law
 
         2720 First Avenue NE
 
         P.O. Box 1943
 
         Cedar Rapids, Iowa  52406
 
         
 
                                                
 
                                                         
 
         Mr. Mark D. Cleve
 
         Attorney at Law
 
         P.O. Box 2746
 
         Davenport, Iowa  52809
 
 
 
         
 
 
            
 
 
 
 
 
            
 
 
 
                                            1402.40, 1702, 1803, 2206
 
                                            Filed February 7, 1989
 
                                            MICHAEL G. TRIER
 
         
 
                  BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         WILLIAM P. MEREDITH,
 
         
 
              Claimant,
 
         
 
         vs.
 
                                                    File No. 816286
 
         BURGER CONSTRUCTION,
 
                                                 A R B I T R A T I 0 N
 
              Employer,
 
                                                    D E C I S I 0 N
 
         and
 
         
 
         UNITED STATES FIDELITY &
 
         GUARANTY COMPANY,
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
         1402.40, 1702, 1803, 2206
 
         
 
              Claimant awarded 35% permanent partial disability.  The 
 
         claimant had two prior back injuries which had resulted in 
 
         surgery, but had previously been able to resume work in his trade 
 
         as a carpenter.  The injury under consideration rendered him 
 
         incapable of resuming work in his trade, but it appeared likely 
 
         that he would be able to achieve comparable earnings in the field 
 
         of electronics technology after completing a two-year course of 
 
         study, of which one year had already been completed with nearly a 
 
         straight "A" grade average.
 
         
 
         
 
         
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
                                                
 
 
            
 
            Page   1
 
            
 
            
 
            
 
            
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            LARRY D. DEBOER,              :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :      File No.  816350
 
            DUBUQUE PACKING COMPANY,      :
 
                                          :  A R B I T R A T I O N
 
                 Employer,                :
 
                                          :      D E C I S I O N
 
            and                           :
 
                                          :
 
            SENTRY INSURANCE COMPANY,     :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
                                   introduction
 
            
 
                 This is a proceeding in arbitration brought by Larry D. 
 
            DeBoer, claimant, against Dubuque Packing Company, employer 
 
            and Sentry Insurance Company, insurance carrier, defendants 
 
            for benefits as the result of an injury which occurred on 
 
            February 13, 1986.  A hearing was held on December 21, 1989, 
 
            at Sioux City, Iowa, and the case was fully submitted at the 
 
            close of the hearing.  Claimant was represented by Harry H. 
 
            Smith.  Defendants were represented by Paul W. Deck, Jr.  
 
            The record consists of the testimony of Larry D. DeBoer, 
 
            claimant; Myron VanBochove, claimant's witness; Carol A. 
 
            DeBoer, claimant's wife; Cecilia Blaskovich, vocational 
 
            rehabilitation specialist; and joint exhibits 1 through 32.  
 
            The deputy ordered a transcript of the hearing.  Both 
 
            attorneys submitted excellent posthearing briefs.
 
            
 
                                      issues
 
            
 
                 The parties submitted the following issues for 
 
            determination at the time of the hearing:
 
            
 
                 Whether claimant is entitled to temporary disability 
 
            benefits, and if so, the extent of benefits to which he is 
 
            entitled.  
 
            
 
                 Whether claimant sustained a scheduled member injury or 
 
            an injury to the body as a whole.
 
            
 
                 Whether claimant is entitled to permanent disability 
 
            benefits, and if so, the nature and extent of benefits to 
 
            which he is entitled.
 
            
 
                 Whether claimant is entitled to certain medical 
 
            expenses.
 
            
 
                               preliminary MATTERS
 
            
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
                 Defendants' counsel agreed to pay for the 85.39 
 
            independent medical examination and claimant then withdrew 
 
            that issue from the issues to be determined in this case 
 
            (transcript pages 4 & 5).
 
            
 
                                 findings of fact
 
            
 
                   entitlement to temporary disability benefits
 
            
 
                 Claimant is entitled to temporary disability benefits 
 
            from the date of the injury, February 13, 1986, to the date 
 
            on which his treating physician issued an impairment rating, 
 
            October 12, 1987, a period of 86.571 weeks.
 
            
 
                 The parties stipulated that claimant sustained an 
 
            injury which arose out of and in the course of employment on 
 
            February 13, 1986 (tr. p. 3; prehearing report p. 1, 
 
            paragraph 2).  Claimant was hospitalized on the date of the 
 
            injury and never did return to work (transcript pages 30 and 
 
            31).  Claimant testified that at the time of the injury on 
 
            February 13, 1986, it felt like an explosion occurred in his 
 
            left chest, neck and shoulder.  His left arm went numb and 
 
            he experienced extreme pain in the left rib cage.  He became 
 
            lightheaded, warm, sweaty and dizzy.  He experienced 
 
            numbness in the left side of his face, neck and all the way 
 
            down his left arm to his fingertips.  Claimant further 
 
            testified that he had the same experience on two prior 
 
            occasions, January of 1983 and May of 1985.  He lost four 
 
            weeks of work the first time and six weeks of work the 
 
            second time and was paid workers' compensation for both 
 
            prior injuries (tr. pp. 28-30; exhibit 27, pp. 1 & 2).  
 
            
 
                 Claimant's family physician, James E. Powell, M.D., 
 
            stated at the time of claimant's third office visit on 
 
            February 28, 1986, "I really think he's going to be on some 
 
            long-term disability...and may even need to secure some 
 
            other form of work." (ex. 24, p. 2).  On March 21, 1986, Dr. 
 
            Powell stated, "[H]e needs to stay on disability." (ex. 24, 
 
            p. 2).  
 
            
 
                 Dr. Powell referred claimant to K. Gene Koob, M.D., a 
 
            neurologist.  An electromyelogram and nerve conduction study 
 
            by Dr. Koob on June 5, 1986, for the left arm was normal.  
 
            Dr. Koob stated that he felt that claimant had a chronic 
 
            left sided pain syndrome and, "I have warned the patient and 
 
            his wife that this is going to be a long term phenomenon." 
 
            (ex. 24, p. 3).  Dr. Koob recommended that claimant see L.M. 
 
            Gutnik, M.D., an internal medicine doctor, who saw claimant 
 
            on June 20, 1986, and noted that he had been off work since 
 
            February 13, 1986.  Dr. Gutnik diagnosed thoracic outlet 
 
            syndrome based upon his personal examination (ex. 28, pp. 1 
 
            & 2); x-rays of the cervical spine, chest and left shoulder 
 
            (ex. 28, p. 6); arterial and venous doppler tests and a 
 
            thoracic outlet study which showed, "The patient had a 
 
            thoracic outlet maneuver which showed an abnormal test in 
 
            the left extremity with hyperabduction to 180 degrees." (ex. 
 
            29, pp. 7 & 17).  
 
            
 
                 Greg A. Schultz, M.D., a thoracic surgeon recommended 
 
            by Dr. Gutnik, noted that claimant had been unable to work 
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            since the injury and that a DSA (digital subtraction 
 
            angiogram) revealed stenosis of the left subclavian artery 
 
            with abduction (ex. 4, p. 1).  Dr. Schultz diagnosed a left 
 
            thoracic outlet syndrome and performed a left transaxillary 
 
            first rib dissection with scalenectomy using an anterior 
 
            approach on September 10, 1986 (ex. 4, pp. 2 & 3).  Prior to 
 
            the surgery, claimant was unable to use his left upper 
 
            extremity adequately (ex. 4, p. 4).  Claimant was 
 
            hospitalized from September 9, 1986 until September 15, 1986 
 
            (ex. 4, p. 5).  The surgery restored the circulation to 
 
            claimant's left arm and hand, but he continued to have chest 
 
            pain and left rib cage pain (ex. 4, p. 10; ex. 28, p. 4).  
 
            Claimant testified that he got the circulation in his left 
 
            hand, but the pain in his neck, chest and shoulder continued 
 
            (tr. p. 36). 
 
            
 
                 Originally, Dr. Schultz anticipated on July 29, 1986, 
 
            that claimant would be able to return to work within two to 
 
            four weeks after the surgery (ex. 5).  However, on October 
 
            31, 1986, he stated:
 
            
 
                 He does have a chronically weakened left upper 
 
                 extremity as well as chronic symptoms of nerve 
 
                 impairment.  He continues to have problems with 
 
                 motion and weakness which is related to his 
 
                 ongoing thoracic outlet problem.  He is currently 
 
                 undergoing intensive physical therapy and 
 
                 strengthening of this extremity.
 
            
 
                 I anticipate that he will be able to return to 
 
                 work in three to four months.  
 
            
 
            (exhibit 6)
 
            
 
                 On April 15, 1987, Dr. Schultz stated, "He basically is 
 
            incapacitated and unable to work due to ongoing pain 
 
            involving the left upper extremity....We are currently 
 
            evaluating whether he can return to work in the next two to 
 
            three months." (ex. 7).  Dr. Schultz referred claimant to 
 
            Myung J. Cho, M.D., a rehabilitation medicine doctor.
 
            
 
                 On October 30, 1987, Dr. Schultz declined to give 
 
            claimant a permanent impairment rating and referred the 
 
            insurance carrier to Dr. Cho.  He also referred the carrier 
 
            to Dr. Cho for determination of whether claimant needed 
 
            additional physical therapy (ex. 8).
 
            
 
                 Dr. Cho first saw claimant on March 6, 1987.  Dr. Cho 
 
            performed an electromyelogram and recorded:
 
            
 
                 IMPRESSION based on clinical, plus 
 
                 electrophysiological data:
 
            
 
                 1.  It appears that this patient has moderate to severe 
 
            compromise of the left long thoracic nerve, innervating the 
 
            Serratus Anterior muscle.
 
            
 
                 2.  Otherwise, there is no other peripheral neuropathy.
 
            
 
            (exhibit 18, page 4)
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
            
 
                 Dr. Cho found that claimant had mild disuse atrophy and 
 
            his range of motion was quite limited in the left shoulder 
 
            (ex. 18, p. 2).  He diagnosed moderate to severe compromise 
 
            of the left long thoracic nerve and prognosticated some 
 
            residual deformity and determined.  Secondly, he diagnosed 
 
            myofascial syndrome with more diffuse pain radiation in the 
 
            neck and shoulder.
 
            
 
                 He recommended a continuous intensive physical therapy 
 
            program to improve his muscle strength and range of motion 
 
            along with pain management (ex. 18, p. 3).  Dr. Cho gave a 
 
            detailed impairment rating on October 12, 1987.  He said 
 
            claimant could return to work within the limitations of the 
 
            functional capacity evaluation (ex. 19, pp. 2 & 3).  Dr. Cho 
 
            specifically stated, however, on October 12, 1987, "In 
 
            addition, I believe this patient's date of maximum healing 
 
            is indefinite at this time.  I don't believe that he can 
 
            return to any physically demanding job in the near future." 
 
            (ex. 19, p. 3).  This quoted statement by Dr. Cho is 
 
            inconsistent with another statement on the same page at 
 
            which point he states, "Based on my evaluation and his 
 
            progression in the last six months, I am skeptical about any 
 
            significant improvement in the near future."  (ex. 19, p. 
 
            3).  Thus, it would appear that in spite of the first quoted 
 
            statement that maximum healing was indefinite, nevertheless, 
 
            claimant had attained maximum medical improvement based upon 
 
            the second quoted statement that he was skeptical of any 
 
            significant improvement.  
 
            
 
                 This conclusion is supported by the report of Dr. Cho 
 
            on January 13, 1988, in which he states, "[T]he patient did 
 
            not see any further improvement of muscle strength, even 
 
            with an intensive exercise program, related to his left 
 
            upper extremity.  This was expected, based on my EMG study." 
 
            (ex. 20).  
 
            
 
                 Terminating the healing period based upon maximum 
 
            medical improvement on October 12, 1987, is also supported 
 
            by the statement of Dr. Cho on February 17, 1988, "[T]here 
 
            has been no significant change for the last three months 
 
            regarding his overall functional capacity and pain 
 
            syndrome." (ex. 21).  
 
            
 
                 The fact that Dr. Cho continued to recommend physical 
 
            therapy and a daily pain program, are considered to be more 
 
            in the nature of maintenance rather than significant 
 
            improvement based upon the overall interpretation of Dr. 
 
            Cho's reports and the testimony of claimant to the effect 
 
            that he will need to exercise daily in the future to retain 
 
            the functional ability that he did recover.
 
            
 
                 It is further determined that the fact that Peter D. 
 
            Wirtz, M.D., an orthopedic surgeon, gave an impairment 
 
            rating on May 27, 1987, and said that claimant could perform 
 
            light duty work, is not determinative of the end of healing 
 
            period in this case.  Dr. Wirtz was a one-time evaluator 
 
            hired by defendants for the purpose of an evaluation and had 
 
            no responsibility for the care and ultimate recovery of 
 
            claimant (ex. 22).  Furthermore, Deanna Harris, R.N., 
 

 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
            reported consistently to the employer and insurance carrier 
 
            from February 25, 1987 through August 18, 1987, that 
 
            claimant was unable to work (exs., 10 and 12-15).  Harris 
 
            generated a report from Dr. Schultz on May 23, 1987, which 
 
            indicated the anticipated date of maximum healing might be 
 
            another six to 12 months (ex. 11).  On July 2, 1987, Harris 
 
            said the return to work goal was August of 1987 (ex. 14).  
 
            On August 18, 1987, she said this goal was not achieved 
 
            because Dr. Schultz would not sign a release.  Claimant's 
 
            next appointment was September of 1987 and the return to 
 
            work was to be determined at that time (ex. 15).  
 
            
 
                 Cecilia Blaskovich, a vocational rehabilitation 
 
            specialist, took over the case from Harris and testified 
 
            that on September 23, 1987, she went with claimant to see 
 
            Dr. Schultz and they showed him a video of a light duty job 
 
            and Dr. Schultz, "felt that he could return to that job." 
 
            (tr. p. 127).  This job involved packaging and scaling large 
 
            intestines (tr. p. 128).  She stated that Dr. Schultz 
 
            released claimant to perform that job commencing on 
 
            September 26, 1987 (tr. p. 129).  However, no statement from 
 
            Dr. Schultz supporting this testimony is found in the 
 
            evidence of record.  Blaskovich had no contact with Dr. Cho 
 
            who was then the treating physician rather than Dr. Schultz 
 
            (tr. pp. 131 & 132).  On cross-examination, Blaskovich 
 
            admitted that Dr. Schultz did not sign any document about 
 
            the package/scaler position (tr. p. 149).  Blaskovich 
 
            further admitted that she was not familiar with union 
 
            contracts and the fact that any job was subject to employee 
 
            bidding and that several employees would have seniority over 
 
            claimant for any job or light duty job that might come into 
 
            existence at the plant (tr. pp. 150-153).  
 
            
 
                 Wherefore, based on the foregoing evidence it is 
 
            determined that claimant is entitled to healing period 
 
            benefits from the date of the injury, February 13, 1986 to 
 
            October 12, 1987, the day that Dr. Cho gave claimant a 
 
            permanent impairment rating and made other comments 
 
            indicating that claimant had attained maximum medical 
 
            improvement.  This is a period of 86.571 weeks of healing 
 
            period benefits.  Armstrong Tire and Rubber v. Kubli, Iowa 
 
            App. 312 N.W.2d 60, 65 (Iowa 1981); Thomas v. William 
 
            Knudson and Sons, 349 N.W.2d 124, 126 (Iowa App. 1984); Iowa 
 
            Code section 85.34(1).
 
            
 
                                        
 
            
 
                    scheduled member or body as a whole injury
 
            
 
                 It is determined that claimant sustained an injury to 
 
            the body as a whole.
 
            
 
                 The combined testimony demonstrates that claimant 
 
            received an injury to his left anterior chest, left side of 
 
            his face, his left shoulder, his left neck, his left rib 
 
            cage or thoracic area and his upper back on the left side.  
 
            Dr. Cho rated the left shoulder and left upper extremity 
 
            (ex. 19, p. 2).
 
            
 
                 Dr. Wirtz found that his left shoulder blade wings and 
 

 
            
 
            Page   6
 
            
 
            
 
            
 
            
 
            there are scars in the axillary area of the left anterior 
 
            clavicle, Dr. Wirtz diagnosed (1) status post rib resection, 
 
            left; (2) rotator cuff stiffness, left; (3) long thoracic 
 
            nerve paralysis; and (4) serratus anterior muscle weakness.  
 
            Each of these body parts mentioned by Dr. Wirtz extend 
 
            beyond the arm and pertain to the body as a whole (ex. 22).  
 
            Claimant testified that Dr. Wirtz called in a colleague to 
 
            observe his winged scapula.  The colleague commented that he 
 
            had seen one before, but not that severe (tr. pp. 39 & 40).  
 
            Claimant further stated that Dr. Wirtz told him he had some 
 
            major problems and wished him luck (tr. p. 40).
 
            
 
                 Claimant was also rated by Pat Luse, D.C., and his 
 
            rating was based on the cervical spine, left shoulder, and 
 
            left upper extremity (ex. 1, p. 3).  
 
            
 
                 The fact that Dr. Wirtz phrased his rating in terms of 
 
            the upper extremity does not mean that the injury is 
 
            confined to the arm as defined in Iowa Code section 
 
            85.34(2)(m) because the Guides to the Evaluation of 
 
            Permanent Impairment, published by the American Medical 
 
            Association, include the shoulder as a part of the left 
 
            upper extremity (Guides, section 3-1G, pages 31-35).  For 
 
            quite some time now, the long-standing precedent of the 
 
            industrial commissioner, based upon the supreme court cases 
 
            in this area, is that shoulder injuries are considered to be 
 
            injuries to the body as a whole.  Alm v. Morris Barick 
 
            Cattle Co., 240 Iowa 1174, 38 N.W.2d 161 (1949); Nazarenus 
 
            v. Oscar Mayer & Co., II Iowa Industrial Commissioner Report 
 
            281 (1982); Godwin v. Hicklin GM Power, II Iowa Industrial 
 
            Commissioner Report 170 (1981); Lauhoff Grain v. McIntosh, 
 
            395 N.W.2d 834 (Iowa 1986).
 
            
 
                 At no point in claimant's testimony, in any of the 
 
            medical exhibits or in any of the evidence is it suggested 
 
            that claimant's injury or disability, either one, is limited 
 
            to his arm.
 
            
 
                 Wherefore, it is determined that claimant has sustained 
 
            an injury to the body as a whole and is entitled to 
 
            industrial disability.
 
            
 
                                        
 
            
 
                         entitlement-permanent disability
 
            
 
                 It is determined that claimant has sustained a 45 
 
            percent industrial disability and is entitled to 225 weeks 
 
            of permanent partial disability benefits as industrial 
 
            disability.
 
            
 
                 Claimant, born July 10, 1947, was 38 years old at the 
 
            time of the injury, 42 years old at the time of the hearing 
 
            and 43 years old at the time of this decision.  Claimant's 
 
            industrial disability is increased for the reason that this 
 
            injury and this disability occurred during his peak years of 
 
            earning capacity and his productive working life.  Becke v. 
 
            Turner-Busch, Inc., Thirty-fourth Biennial Report of the 
 
            Industrial Commissioner 34 (Appeal Decision  1979); Walton 
 
            v. B & H Tank Corp., II Iowa Industrial Commissioner Report 
 

 
            
 
            Page   7
 
            
 
            
 
            
 
            
 
            426 (1981); McCoy v. Donaldson Company, Inc., IAWC Decisions 
 
            of the Iowa Industrial Commissioner 400 (1989).  In 
 
            addition, claimant was provided with medical, dental, 
 
            optical and pharmaceutical medical benefits, vacation pay, 
 
            holiday pay and a pension plan (tr. p. 53).
 
            
 
                 Claimant has a high school education and four years of 
 
            college from an athletic scholarship, but needs an 
 
            additional 12 hours in order to receive a college degree 
 
            according to Blaskovich (tr. pp. 17-19).  Claimant contended 
 
            it would take two more years to complete college due to 
 
            curriculum changes (tr. p. 19).  It is possible for claimant 
 
            to return to school and obtain a degree.  His previous 
 
            grades of C's, B's and some A's would indicate that he has 
 
            the ability to graduate from college.  Claimant said that he 
 
            was in the upper one-half of his graduating class in high 
 
            school.  Claimant could also elect to be retrained in a 
 
            course that would provide him a skill for the employment 
 
            market.  Retraining is expensive for the reason that the 
 
            student not only has tuition, books and fees to pay for, but 
 
            also suffers a loss of income, either in whole or in part, 
 
            while attending either college or a retraining program for 
 
            skilled work.  Conrad v. Marquette School, Inc., IV Iowa 
 
            Industrial Commissioner Report 74, 89 (1984).
 
            
 
                 For past employments claimant has served in the army 
 
            for two years as a medic, an occupational therapist, 
 
            attained the rank of sergeant E-5 and received an honorable 
 
            discharge (tr. pp. 19 & 20).  He was also trained to be a 
 
            recreational therapist (tr. p. 78).  He worked for farmers 
 
            performing construction-types of work (tr. p. 20).  He has 
 
            securities sales experience and he was a licensed securities 
 
            agent for two and one-half years (tr. p. 21) and licensed 
 
            life insurance agent (tr. p. 82).  As a side business, he 
 
            restored and refinished furniture for about five years.  He 
 
            has also restored old cars.
 
            
 
                 At the time of the injury, claimant's job for employer 
 
            was dropping tongues.  He had done this for the last 10 or 
 
            11 years.  This job consisted of lifting, carrying, 
 
            manipulating and handling the head of the animal, which 
 
            weighed anywhere from 75 to 125 pounds, making several cuts 
 
            on the head with a knife and making five to seven chops with 
 
            an axe.  Claimant testified he performed this operation 
 
            every 22 or 23 seconds.  It was more difficult in wet 
 
            weather when the heads were muddy and covered with manure 
 
            and in the winter when they would freeze up (tr. pp. 24-27).
 
            
 
                 Claimant is a 12 1/2-year career employee of employer.  
 
            He began work on August 9, 1974, and worked until he was 
 
            injured on February 13, 1986.  He is now foreclosed from 
 
            performing strenuous work in the meat packing industry.  
 
            Harris reported that employer does not technically have any 
 
            light duty work, but they have some jobs which are 
 
            considered less strenuous (ex. 10, p. 4).  Nevertheless, 
 
            shortly after his third episode of this explosion of pain in 
 
            his chest, Dr. Powell, his family physician, suggested on 
 
            February 28, 1986, that claimant would need to secure some 
 
            other form of work (ex. 24, p. 2).  Dr. Cho stated that 
 
            based on claimant's functional capacity evaluation, "I am 
 

 
            
 
            Page   8
 
            
 
            
 
            
 
            
 
            skeptical, realistically, of whether the patient can have an 
 
            appropriate job meeting this criteria.  Therefore, further 
 
            vocational training and new job placement would be highly 
 
            recommended." (ex. 19, p. 3).  This corroborates claimant's 
 
            testimony:
 
            
 
                 All the times I saw Dr. Cho he -- he kept telling 
 
                 me that, you know, I would never work back -- his 
 
                 strongest advise to me was never go back to the 
 
                 packing plant, because I'd do additional damage to 
 
                 myself, and that he was aware of the situations 
 
                 that exist in a packing plant, and that I had hurt 
 
                 myself severely enough, that I'd really -- you 
 
                 know, I'm jeopardizing my total health if I went 
 
                 back and got hurt again.
 
            
 
            (transcript pages 41 & 42).
 
            
 
                 Dr. Cho told claimant he would never return to packing 
 
            plants and to look for other areas of vocation (tr. pp. 37 & 
 
            103).  Claimant also testified that Dr. Schultz told him he 
 
            should start thinking into some other areas because he 
 
            didn't think that physically it would be feasible for 
 
            claimant to return to work for employer without jeopardizing 
 
            himself or creating more problems physically (tr. p. 98).  
 
            Even though Dr. Schultz signed the slip that he could return 
 
            to employer, he, nevertheless, stated at the same time it 
 
            was entirely up to claimant and the doctor still recommended 
 
            that claimant not return (tr. p. 98).
 
            
 
                 Thus it is determined that claimant is foreclosed from 
 
            his previous employment of 12 1/2 years where he performed 
 
            well and was liked and respected by his employer.  Michael 
 
            v. Harrison County, Thirty-fourth Biennial Report of the 
 
            Industrial Commissioner 218, 220 (Appeal Decision January 
 
            30, 1979); Rohrberg v. Griffin Pipe Products Co., I Iowa 
 
            Industrial Commissioner Report 282 (1984).
 
            
 
                 Three doctors, Dr. Powell, Dr. Schultz and Dr. Cho 
 
            recommended different employment.  It would have been 
 
            imprudent for claimant to go against the advice of his 
 
            treating physicians.
 
            
 
                 Although Dr. Schultz did not give an impairment rating 
 
            on the record, Blaskovich reported on November 30, 1987, 
 
            that he verbalized that he felt that 20 percent would be an 
 
            approximate appropriate rating.  Claimant testified, "And 
 
            then she asked him one more time about a rating.  She said, 
 
            well, do you think he is at least 20 percent?  And he said, 
 
            I suppose at least that much, maybe more." (tr. p. 46).  
 
            Claimant also testified that Dr. Schultz told Blaskovich 
 
            that his injury was to the body as a whole (tr. p. 46).  
 
            Since most of claimant's injuries extended beyond the arm, 
 
            it would appear that he probably intended a rating to the 
 
            body as a whole, but this is only speculation and there are 
 
            other definitive impairment ratings given by Dr. Wirtz, Dr. 
 
            Cho, and Dr. Luse.  Dr. Wirtz stated:
 
            
 
                 This patient has lost 90 degs. of forward flexion 
 
                 which is a 9% impairment of the shoulder.  The 
 

 
            
 
            Page   9
 
            
 
            
 
            
 
            
 
                 external rotation lacks 30 degs. of motion which 
 
                 is a 5% impairment of the shoulder.  The muscle 
 
                 weakness of the shoulder blade will cause 
 
                 limitation of pushing activity which is a 5% 
 
                 impairment of the shoulder.
 
            
 
                 ***
 
            
 
                 Summations of these impairments of the loss of 
 
                 motion and loss of strength is a 13% impairment of 
 
                 the upper extremity.
 
            
 
            (exhibit 22, page 2)
 
            
 
                 It is not immediately clear how 9 percent, 5 percent 
 
            and 5 percent results in 13 percent.  It these ratings were 
 
            added, the result would be 19 percent.  If these ratings 
 
            were combined using the combined values chart, the result 
 
            would be 18 percent (Guides to the Evaluation of Permanent 
 
            Impairment, third edition, American Medical Association, 
 
            page 246).
 
            
 
                 Dr. Cho, a rehabilitation medicine doctor and treating 
 
            physician, made detailed measurements of the left shoulder 
 
            region and measured the abnormal muscle strength of the left 
 
            upper extremity and determined that claimant has sustained a 
 
            29 percent impairment of the whole person or 48.5 percent 
 
            impairment of the left upper extremity (ex. 19, p. 2).  He 
 
            further found that it was very important for claimant to 
 
            maintain a proper exercise program on a daily basis to 
 
            prevent any regression of his disability (ex. 19, p. 3).  
 
            
 
                 Dr. Luse, claimant's evaluator, diagnosed (1) long 
 
            thoracic chronic paralysis with associated muscle wasting 
 
            and weakness; (2) status post rib section left; (3) chronic 
 
            cervical sprain/strain with associated loss of motion and 
 
            hypesthesis; and (4) serratus pain syndrome and trigger 
 
            points.  He stated claimant exhibited weakness in the left 
 
            arm and shoulder and tenderness in the arm, neck, shoulder 
 
            and ribs.  He also sustained loss of movement of the arm, 
 
            neck and shoulder.  He determined that claimant sustained a 
 
            30 percent impairment of the whole man (ex. 1, p. 3).  Dr. 
 
            Luse also gave this prognostic summary:
 
            
 
                 It is my opinion that work or domestic activities 
 
                 could precipitate an aggravation of this 
 
                 condition, because of the weakness and instability 
 
                 caused by this accident.  As a result of this 
 
                 injury, the patient will be subject to recurrent 
 
                 problems in the area of the cervical and dorsal 
 
                 spine and left shoulder....I believe it will be 
 
                 necessary for the patient to continue to severely 
 
                 restrict the use of his left arm, shoulder and 
 
                 upper back.
 
            
 
            (exhibit 1, page 4).
 
            
 
                 Thus, it is apparent that claimant has sustained a very 
 
            serious injury that has resulted in a substantial amount of 
 
            physical and functional impairment.  Defendants' contention 
 

 
            
 
            Page  10
 
            
 
            
 
            
 
            
 
            that Dr. Luse is not competent to rate any part of the body 
 
            other than the spine, is not supported by any evidence of 
 
            any kind (tr. p. 14).
 
            
 
                 Claimant was examined by Ronald A. Cooper, M.D., a 
 
            neurologist, for defendants on November 14, 1989.  Dr. 
 
            Cooper did not give an impairment rating, as such, but he 
 
            found that claimant had definite scapular winging on the 
 
            left side, difficulties raising his arm above the horizontal 
 
            and that he has obvious weakness of the serratus anterior 
 
            muscle.  There were slight atrophic changes in the upper 
 
            shoulder region.  Dr. Cooper concluded as follows:
 
            
 
                    It is my opinion at this time that his 
 
                 gentleman's major problem is his limited range of 
 
                 motion of the shoulder girdle because of the 
 
                 weakness of the serratus anterior causing problems 
 
                 with rotation of the scapula and thus significant 
 
                 impairment in his ability to raise the arm above 
 
                 the horizontal.  This problem has been present for 
 
                 at least three years and I feel at this time it is 
 
                 in fact permanent...Unfortunately, he will always 
 
                 be significantly limited in his ability to lift, 
 
                 carry or do any type of work where he has to hold 
 
                 his arms above the horizontal.
 
            
 
            (exhibit 3, page 2)
 
            
 
                 Thus, even though Dr. Cooper did not give a numerical 
 
            rating, he, nevertheless, described a substantial permanent 
 
            disability.
 
            
 
                 Claimant testified that Dr. Cho recommended a work 
 
            hardening program, but the insurance carrier refused it (tr. 
 
            pp. 48 & 49).
 
            
 
                 The physical capacity evaluation, performed at the 
 
            direction of Dr. Cho, on October 1 and October 2, 1987, 
 
            indicated that claimant could lift 25 pounds and could carry 
 
            20 pounds (ex. 23, p. 1).  His major limiting factors were 
 
            determined to be:
 
            
 
                 1.  Decreased strength in the left upper back, left 
 
            shoulder girdle and left upper extremity musculature.
 
            
 
                 2.  Increased discomfort in the left upper back, left 
 
            chest wall, and left upper extremity.
 
            
 
                 3.  Decreased ROM in the left upper extremity, 
 
            especially in left shoulder flexion and abduction.
 
            
 
                 4.  General loss of endurance in the left upper 
 
            extremity musculature.
 
            
 
            (ex. 23, page 3)
 
            
 
                 Thus, claimant is precluded from heavy work which is a 
 
            large portion of the competitive labor market and provides 
 
            the highest income for the least amount of skill.  
 
            Claimant's industrial disability is increased because he is 
 

 
            
 
            Page  11
 
            
 
            
 
            
 
            
 
            foreclosed from performing heavy work and most medium work 
 
            in the competitive labor market.
 
            
 
                 Thus, the physical capacity examination confirms what 
 
            the evaluating doctors found, and that is, that claimant has 
 
            sustained a substantial injury and industrial disability.  
 
            
 
                 Claimant testified that he was earning about $9 an hour 
 
            when he quit and had numerous employee benefits (tr. p. 53).  
 
            This was further refined by Harris to be $8.70 per hour and 
 
            that claimant worked 36 to 48 hours per week (ex. 10, p. 4).  
 
            Claimant took a job as a curator of the local museum at 
 
            Hawarden, Iowa, on May 1, 1988, cataloging historical items 
 
            at $5 per hour.  On November 1, 1988, he and his wife then 
 
            borrowed some money and purchased a 20-unit local motel 
 
            which needed a great deal of renovation and claimant takes a 
 
            draw of $500 per month from the motel earnings (tr. p. 56).  
 
            The motel needs a great deal of renovation to put it in 
 
            first class condition (tr. pp. 59 & 60). Neither the museum 
 
            job nor the motel operator job can be used to calculate 
 
            claimant's actual loss of earnings because it was not 
 
            demonstrated that these were the only jobs that claimant can 
 
            obtain in the competitive labor market.  Rather, these are 
 
            the jobs that claimant chose to do.  
 
            
 
                 Claimant testified he can no longer play baseball, 
 
            basketball, hunt or refurbish automobiles (tr. p. 61).  
 
            Previously he was a professional baseball player.  Sometimes 
 
            his sleep is disturbed (tr. pp. 56 & 62).  He can no longer 
 
            remodel his house (tr. pp. 661 & 62).  Frequently, when he 
 
            is pushing, lifting or pulling his shoulder blade will sit 
 
            up on top of his shoulder which is discomfortable and he 
 
            needs his wife's assistance to get it down back in place 
 
            (tr. p. 62).  Claimant testified that he takes a lot of 
 
            aspirin (tr. p. 62).  
 
            
 
                 Blaskovich testified that claimant had several 
 
            marketable, transferable skills, particularly in sales and 
 
            financial planning based upon his early employment as a 
 
            securities salesman.  She also stated he had leadership 
 
            ability (tr. pp. 134 & 135).  It is not realistic to 
 
            believe, however, that claimant could step out of 12 1/2 
 
            years of employment as a manual laborer in the packing house 
 
            breaking jaw bones with an axe and step into the management 
 
            training position with American General Finance at $35,000 
 
            in the first year, or a management training position with 
 
            Prudential Financial Services at $28,000 per year, or a 
 
            district sales consultant position in the area of $18,000 
 
            per year, or several other sales positions in the vicinity 
 
            of $24,000 per year (tr. pp. 137 & 138).  Claimant could 
 
            qualify for the desk clerk job at $5 per hour recommended by 
 
            Blaskovich (tr. pp. 138 & 139).  Blaskovich recommended that 
 
            claimant finish his college education and this appears to be 
 
            a reasonable suggestion for this individual.
 
            
 
                 At the same time it is difficult to determine the full 
 
            extent of claimant's industrial disability because he has 
 
            not attempted to find work in the normal everyday 
 
            competitive labor market.  Schofield v. Iowa Beef 
 
            Processors, Inc., II Iowa Industrial Commissioner Report 
 

 
            
 
            Page  12
 
            
 
            
 
            
 
            
 
            334, 336 (1981).  On the other hand, it must be stated that 
 
            claimant was motivated at all times and was concerned about 
 
            returning to work he could do in order to make a living and 
 
            support his family.  His employment record with employer was 
 
            excellent and he was liked and respected by employer.  At 
 
            the same time employer, through Blaskovich, endeavored to 
 
            find work that claimant could do within his limitations and 
 
            restrictions at employer's plant, but whether he could 
 
            obtain these jobs due to the union contract and the bidding 
 
            process was not rebutted by employer.
 
            
 
                 Ron VanBochove testified that he works for claimant on 
 
            call occasionally.  He has noticed that claimant could not 
 
            work with ceiling tile without standing on a ladder even 
 
            though witness could reach them from the ground and that 
 
            claimant has difficulty in keeping the lawn mower in a 
 
            straight line because of the weakness in his left arm (tr. 
 
            pp. 107-110).
 
            
 
                 Carol DeBoer, claimant's wife, testified that she was 
 
            present when Dr. Cho told claimant that the packing plant 
 
            was not a good place to be and strongly urged him to look 
 
            for another line of work for his own good and for his body 
 
            (tr. pp. 110-112).  She said that he has no power or force 
 
            to lift a gallon milk jug at the table.  He can't lift his 
 
            left arm above shoulder height, cannot hold any significant 
 
            weight for a prolonged period of time.  Many of the 
 
            activities he does perform, such as mowing the lawn or 
 
            driving, cause pain and he is frequently required to take 
 
            aspirins (tr. pp. 113-114).  She said that they were 
 
            justified in purchasing the motel because her husband needed 
 
            a job, he needed something to do (tr. p. 114).
 
            
 
                 In summary then, the major factors of industrial 
 
            disability in this case are (1) a male employee, age 42, at 
 
            or nearing the peak of his earnings career; (2) who is 
 
            foreclosed from returning to his former, stable, career, 
 
            long-term 12 1/2-year employment which paid $8.70 per hour 
 
            and at which he was very successful; (3) who is also 
 
            foreclosed from all heavy and most medium weight work in the 
 
            competitive labor market because he cannot lift over 25 
 
            pounds or carry over 20 pounds and these jobs are usually 
 
            the most plentiful and sometimes the most remunerative; (4) 
 
            who is capable of retraining, but retraining would be an 
 
            expensive proposition at his age and family commitment in 
 
            life; (5) who needs to find productive employment for 
 
            another 20 years or more before normal retirement, but who 
 
            lives in a small community without many employment 
 
            opportunities; and (6) who has an approximate 30 percent 
 
            permanent physical and functional impairment to the body as 
 
            a whole and cannot lift his left hand and arm above shoulder 
 
            level and has significant loss of motion and strength, as 
 
            well as atrophy, in his left upper extremity.  The 
 
            mitigating factors are his intelligence, personality, 
 
            transferable skills in sales and financial planning and 
 
            strong motivation to be productive and make a success of his 
 
            life as an income producer within the substantial 
 
            limitations caused by this injury.
 
            
 
                 Defendants have suggested that some of claimant's 
 

 
            
 
            Page  13
 
            
 
            
 
            
 
            
 
            disability may be caused by errors caused by the thoracic 
 
            surgeon, Dr. Schultz.  Claimant acknowledged that the 
 
            surgeon told him after the surgery that his condition was 
 
            much worse than he had anticipated before the surgery which 
 
            would necessitate a much longer period of recuperation.  
 
            Claimant and his wife denied that Dr. Schultz told them he 
 
            severed a nerve or told claimant's wife that mistakes 
 
            occurred during surgery (tr. pp. 90 & 91).  The surgeon 
 
            admits that an error occurred during the surgery.  Dr. 
 
            Schultz said, "During the course of the dissection thoracic 
 
            duct was inadvertently injured." (ex. 4, p. 3).  There is no 
 
            direct evidence, however, that this error has definitely 
 
            caused any portion of claimant's permanent disability, but 
 
            there is evidence that it prolonged claimant's period of 
 
            recovery.  In either event, an employer is liable for all 
 
            consequences that naturally and proximately flow from the 
 
            work injury.  Oldham v. Scofield & Welch, 222 Iowa 764, 
 
            767-68 266 N.W. 480, 482 (1936).  Defendants are also liable 
 
            when treatment aggravates or increases disability provided 
 
            the worker is not negligent in selecting the person who 
 
            administers the treatment.  Lindeken v. Lowden, 299 Iowa 
 
            645, 295 N.W. 112 (1940); Cross v. Hermanson Bros., 235 Iowa 
 
            739, 741 16 N.W.2d 616, 617 (1944); Humphress v. State, 334 
 
            N.W.2d 757, 760 (Iowa 1983).  In this case, claimant 
 
            accepted the medical care providers supplied by defendants 
 
            and made no personal choice of physicians of his own.  
 
            Consequently, defendants would be liable for any increased 
 
            temporary or permanent disability claimant may have incurred 
 
            due to errors of the surgeon which occurred at the time of 
 
            the surgery.
 
            
 
                 Wherefore, (1) based on the foregoing evidence; (2) all 
 
            of the factors used to determine industrial disability, 
 
            Peterson v. Truck Haven Cafe, Inc., vol. 1, no. 3 State of 
 
            Iowa Industrial Commissioner Decisions 654, 658 (Appeal 
 
            Decision February 28, 1985); Christensen v. Hagen, Inc., 
 
            vol. I, no. 3, State of Iowa Industrial Commissioner 
 
            Decisions 529 (Appeal Decision March 26, 1985); and (3) 
 
            applying agency expertise [Iowa Administrative Procedure Act 
 
            17A.14(5)]; it is determined that claimant that claimant has 
 
            sustained a 45 percent industrial disability to the body as 
 
            a whole and is entitled to 225 weeks of permanent partial 
 
            disability benefits.
 
            
 
                                 medical expenses
 
            
 
                 The parties stipulated that the provider of medical 
 
            services would testify that their charges are reasonable and 
 
            that they were for reasonable and necessary medical 
 
            treatment and defendants were not offering contrary 
 
            evidence.  It is now determined that these expenses were 
 
            caused by this injury.
 
            
 
                 It is determined that claimant is entitled to recover 
 
            the charge of Dr. Schultz in the amount of $22 for an office 
 
            visit on October 10, 1989.  Claimant testified that he is 
 
            supposed to see Dr. Schultz on a follow-up basis at least 
 
            once a year for five years following his surgery to make 
 
            sure everything is going okay and no complications are 
 
            setting in (tr. p. 50).  Claimant's testimony was not 
 

 
            
 
            Page  14
 
            
 
            
 
            
 
            
 
            controverted, contradicted, rebutted or refuted.
 
            
 
                 Claimant is entitled to recover $322.15 in physical 
 
            therapy expenses (ex. 30).  Dr. Cho stated on January 13, 
 
            1988, "It is very important to maintain his current physical 
 
            therapy twice a week.  If he shows more exacerbation of 
 
            symptoms in a month, we may have to consider a more 
 
            intensive, daily program in Sioux Falls." (ex. 20).  Dr. Cho 
 
            stated again on February 17, 1988, that claimant was 
 
            receiving physical therapy twice a week and indicated it 
 
            that it was needed (ex. 21).  This evidence is not 
 
            controverted, contradicted, rebutted or refuted.
 
            
 
                 Employer requested claimant to see Dr. Cooper in Omaha 
 
            as an independent medical examination for employer under 
 
            Iowa Code section 85.39.  Therefore, claimant is entitled to 
 
            301 miles round trip mileage in the amount of $63.21 and his 
 
            lost time from work in the amount of $55 (ex. 32).  This 
 
            section makes no allowance for the reimbursement of 
 
            baby-sitters, therefore, this claim for $22 is denied (ex. 
 
            32).
 
            
 
                 Defendants have already agreed to pay the bill of Dr. 
 
            Luse in the amount of $260 for an independent medical 
 
            examination with a doctor of claimant's own choosing (ex. 
 
            31; tr. p. 6).
 
            
 
                 No allowance is made for the 110 miles claimant drove 
 
            for a deposition on November 9, 1989, or the replacement 
 
            employee that claimant hired while he was absent from his 
 
            employment at the motel for the deposition.  Deposition 
 
            expenses are trial preparation expenses and are not 
 
            allowable as either medical expenses or costs.  Iowa Code 
 
            section 85.27 and rule 343 IAC 4.33.
 
            
 
                 In summary, claimant is entitled to $22 for the charge 
 
            of Dr. Schultz (ex. 30); $322.15 for the physical therapy 
 
            charges and $63.21 for round trip mileage to see Dr. Cooper 
 
            and $55 in wages lost to see Dr. Cooper (ex. 32).  This 
 
            totals $462.36 in allowable medical expenses.
 
            
 
                                conclusions of law
 
            
 
                 Wherefore, based upon the foregoing and following 
 
            principles of law, these conclusions of law are made:
 
            
 
                 That claimant is entitled to 86.571 weeks of healing 
 
            period benefits for the period from February 13, 1986 to 
 
            October 12, 1987.  Iowa Code section 85.34(1).
 
            
 
                 That claimant has sustained the burden of proof by a 
 
            preponderance of the evidence that he sustained an injury to 
 
            the body as a whole and that he is entitled to industrial 
 
            disability benefits.  Iowa Code section 85.34(2)(u).
 
            
 
                 That claimant has sustained a 45 percent industrial 
 
            disability to the body as a whole and is entitled to 225 
 
            weeks of permanent partial disability benefits.  Diederich 
 
            v. Tri-City R. Co., 219 Iowa 587, 593, 258 N.W. 899 (1935); 
 
            Olson v. Goodyear Service Stores, 255 Iowa 1112, 125 N.W.2d 
 

 
            
 
            Page  15
 
            
 
            
 
            
 
            
 
            251 (1963).
 
            
 
                 That claimant is entitled to $462.46 in medical 
 
            expenses as described above.
 
            
 
                                      order
 
            
 
                 THEREFORE, IT IS ORDERED:
 
            
 
                 That defendants pay to claimant eighty-six point five 
 
            seven one (86.571) weeks of healing period benefits at the 
 
            stipulated rate of two hundred thirty-one and 26/100 dollars 
 
            ($231.26) per week in the total amount of twenty thousand 
 
            twenty and 41/100 dollars ($20,020.41) commencing on 
 
            February 13, 1986.
 
            
 
                 That defendants pay to claimant two hundred twenty-five 
 
            (225) weeks of permanent partial disability benefits for a 
 
            forty-five percent industrial disability to the body as a 
 
            whole at the stipulated rate of two hundred thirty-one and 
 
            26/100 dollars ($231.26) per week in the total amount of 
 
            fifty-two thousand thirty-three and 50/100 dollars 
 
            ($52,033.50) commencing on October 12, 1987. 
 
            
 
                 That defendants are entitled to a credit for 
 
            ninety-nine point five (99.5) weeks workers' compensation 
 
            benefits paid to claimant at the rate of two hundred 
 
            thirty-one and 26/100 dollars ($231.26) per week in the 
 
            total amount of twenty-three thousand ten and 37/100 dollars 
 
            ($23,010.37) prior to hearing.
 
            
 
                 That all accrued benefits are to be paid in a lump sum.
 
            
 
                 That interest will accrue pursuant to Iowa Code section 
 
            85.30. 
 
            
 
                 That defendants pay to claimant or the provider of 
 
            medical services four hundred sixty-two and 36/100 dollars 
 
            ($462.36) in medical expenses as itemized above.
 
            
 
                 That the costs of this action, including the cost of 
 
            the attendance of the court reporter at hearing and the cost 
 
            of the  transcript, are charged to defendants pursuant to 
 
            rule 343 IAC 4.33.
 
            
 
                 That defendants file claim activity reports as may be 
 
            requested by this agency pursuant to rule 343 IAC 3.1.
 
            
 
                 Signed and filed this ____ day of May, 1991.
 
            
 
            
 
            
 
            
 
                                          ______________________________
 
                                          WALTER R. McMANUS, JR.
 
                                          DEPUTY INDUSTRIAL COMMISSIONER    
 
            
 
            Copies to:
 
            
 
            Mr. Harry H. Smith
 

 
            
 
            Page  16
 
            
 
            
 
            
 
            
 
            Attorney at Law
 
            632 Badgerow Bldg.
 
            Sioux City, Iowa  51101
 
            
 
            Mr. Paul Deck, Jr. 
 
            Mr. Brian Yung
 
            Attorneys at Law
 
            635 Frances Bldg.
 
            Sioux City, Iowa  51101
 
            
 
 
            
 
            Page   1
 
            
 
            
 
            
 
            
 
                      51802 51803.10 51803 52501 52700
 
                      Filed May 13, 1991
 
                      Walter R. McManus, Jr.
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            LARRY D. DEBOER,              :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :      File No.  816350
 
            DUBUQUE PACKING COMPANY,      :
 
                                          :  A R B I T R A T I O N
 
                 Employer,                :
 
                                          :      D E C I S I O N
 
            and                           :
 
                                          :
 
            SENTRY INSURANCE COMPANY,     :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
            51802
 
            Claimant with thoracic outlet syndrome awarded 86.571 weeks 
 
            of healing period benefits for a prolonged period of 
 
            recovery after a not so successful surgery.  All of the 
 
            treating physicians supported the long period of recovery.
 
            
 
            51803.10
 
            Injury to the left upper chest, left side of face, left 
 
            neck, left arm, left thoracic area and left upper back 
 
            determined to be an injury to the body as a whole.
 
            
 
            51803
 
            Claimant awarded 45 percent permanent partial disability 
 
            benefits as industrial disability based on (1) age 38; (2) 
 
            foreclosed from packing house work; (3) foreclosed from 
 
            heavy and medium work; (4) retrainable, but retraining is 
 
            expensive; (5) approximate 30 percent permanent impairment 
 
            to the body as a whole; (6) loss of motion and strength, as 
 
            well as atrophy of the shoulder; and (7) inability to work 
 
            with left hand and arm above shoulder height.
 
            
 
            52501 52700
 
            Claimant awarded several medical expenses that defendants 
 
            refused to pay without any explanation for not paying them.
 
            
 
 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         JAMES R. WOLBERS,
 
         
 
              Claimant,                               File Nos. 816771
 
                                                                829340
 
         vs.
 
                                                   A R B I T R A T I O N
 
         UNITED PARCEL SERVICE,
 
                                                      D E C I S I O N
 
              Employer,
 
         
 
         and                                             F I L E D
 
         
 
         LIBERTY MUTUAL INSURANCE COMPANY,              JAN 30 1990
 
         
 
              Insurance Carrier,                    INDUSTRIAL SERVICES
 
              Defendants.
 
         
 
         
 
                              STATEMENT OF THE CASE
 
         
 
              These are proceedings in arbitration brought by claimant 
 
         James R. Wolbers against defendant employer United Parcel Service 
 
         and defendant insurance carrier Liberty Mutual Insurance Company 
 
         to recover benefits under the Iowa Workers' Compensation Act as 
 
         the result of injuries allegedly sustained on January 27, 1986 
 
         (829340:  shoulder injury) and February 5, 1986 (816771:  hand 
 
         injury).  These matters came on for hearing before the 
 
         undersigned in Burlington, Iowa, on February 23, 1989.  Both 
 
         matters were considered fully submitted at the close of hearing.
 
         
 
              The record in these proceedings consists of joint exhibits 1 
 
         through 15 and 17 through 22, defendants' exhibits A through J, 
 
         and the testimony of the following witnesses:  claimant, Jeanne 
 
         Wolbers, Roger Kromphardt, Jim Foote, Jim Robbins, Bob White and 
 
         Wayne Wasson.
 
         
 
                                      ISSUES
 
         
 
              Pursuant to the prehearing report submitted by the parties 
 
         and approved at hearing in case number 829340, the parties have 
 
         stipulated:  that an employment relationship existed between 
 
         claimant and employer at the time of the alleged injury; that if 
 
         permanent disability be found, claimant has sustained an 
 
         industrial disability to the body as a whole; that the 
 
         appropriate rate of compensation is $362.58 per week; that the 
 
         fees and expenses incurred for medical services, supplies and 
 
         treatment are fair and reasonable and incurred for reasonable and 
 
         necessary medical treatment; that defendants are entitled to 
 
         credit under Iowa Code section 85.38(2) in the amount of 
 
         $4,810.00 for sick pay/disability income and $5,389.82 for 
 
         medical/hospitalization expenses; that defendants have paid no 
 
         compensation prior to hearing.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              The following issues in case number 829340 are presented for 
 
         resolution:  whether claimant sustained an injury on January 27, 
 
         1986, arising out of and in the course of employment; whether the 
 
         alleged injury caused either temporary or permanent disability; 
 
         the extent of claimant's entitlement to temporary and permanent 
 
         disability and the commencement date of the latter; the extent of 
 
         claimant's entitlement to medical benefits; taxation of costs.
 
         
 
              In addition, defendants have asserted as an affirmative 
 
         defense that claimant failed to give notice of his alleged work 
 
         injury under Iowa Code section 85.23.
 
         
 
              Claimant has also asserted as an issue his entitlement to 
 
         penalty benefits pursuant to Iowa Code section 86.13.  However, 
 
         that issue was not listed on the hearing assignment order filed 
 
         in this case on November 21, 1988.  This deputy is without 
 
         jurisdiction to amend the hearing assignment order.  Therefore, 
 
         the issue will not be considered.
 
         
 
              The following issues in case number 816771 have been 
 
         stipulated:  that an employment relationship existed between 
 
         claimant and employer at the time of injury; that claimant 
 
         sustained an injury on February 5, 1986, arising out of and in 
 
         the course of that employment; that the injury caused both 
 
         temporary and permanent disability; that claimant is entitled to 
 
         healing period benefits from February 6, 1986 through May 6, 
 
         1986; that claimant has sustained a scheduled member disability 
 
         to the arm; that the commencement date for permanent partial 
 
         disability is May 7, 1986; that the appropriate rate of weekly 
 
         compensation is $363.27; that all requested medical benefits have 
 
         been or will be paid by defendants; that defendants paid healing 
 
         period benefits of 13 3/7 weeks and permanent partial disability 
 
         benefits of 12.5 weeks of compensation at the stipulated rate 
 
         prior to hearing.
 
         
 
              The issue presented for resolution is the extent of 
 
         claimant's entitlement to compensation for permanent disability.
 
         
 
              In addition, claimant has claimed an entitlement to penalty 
 
         benefits under Iowa Code section 86.13.  A review of the 
 
         prehearing order discloses that this issue was not identified as 
 
         a hearing issue.  As the undersigned lacks jurisdiction to amend 
 
         the hearing assignment order entered by another deputy, the issue 
 
         shall not be considered.
 
         
 
              The parties further filed a stipulation that if Paul Sanden 
 
         were called as a witness by defendants he would testify that he 
 
         is a resident adjuster for Liberty Mutual Insurance Company, that 
 
         he received a bill marked as exhibit A from Franciscan Medical 
 
         Center in the amount of $613.75, that Liberty Mutual issued a 
 
         check on July 22, 1988 to claimant in error, that the code on 
 
         that check indicates that it is for vocational rehabilitation, 
 
         and that when claimant's counsel called defendants' counsel 
 
         regarding this check, a stop payment order was made on the check 
 
         and another check was issued to Franciscan Medical Center on 
 
         August 9, 1988.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
                              REVIEW OF THE EVIDENCE
 
         
 
              Claimant described his injury of January 27, 1986 as 
 
         occurring in the course of his work as a mechanic.  He described 
 
         his position as on a mechanic's creeper when he was seeking to 
 
         loosen bolts on a clutch housing, using his feet for leverage. 
 
         Claimant testified that he was alone at the time with no 
 
         supervisors around.  Claimant indicated that his socket wrench 
 
         slipped as he pulled with both hands, causing a jarring sensation 
 
         to his body.  Claimant felt something "snap" in both shoulders.
 
         
 
              Claimant did not report this injury to any supervisors on 
 
         that date, although he testified he told fellow employee Dick 
 
         Lambert what had happened.  On direct examination, claimant 
 
         indicated that he did not tell any supervisor because of his 
 
         practice of making such reports after receiving doctor's bills. 
 
         Claimant agreed on cross-examination that he was aware that Dick 
 
         Lambert was not his supervisor or generally a person to whom a 
 
         work injury should be reported.
 
         
 
              Claimant indicated that he made an appointment with Shan 
 
         Bedi, M.D., on the following day, but was unable to get into the 
 
         office until February 4, 1986.  He was treated with cortisone 
 
         shots to both shoulders and continued seeing Dr. Bedi several 
 
         more times.  However, he had an intervening injury to his wrist 
 
         on February 5, 1986.  Up until that time, he had missed no work 
 
         from the January 27 injury; claimant testified that he "just kind 
 
         of limped along."  No request was made of defendant employer to 
 
         refer him to a physician.
 
         
 
              Claimant agreed that he was aware that accident reports were 
 
         to be filled out and job injuries reported to his immediate 
 
         supervisor.  He described himself as generally in no big hurry to 
 
         make out such reports.
 
         
 
              Claimant conceded on cross-examination that he was 
 
         immediately aware that he had been injured when his wrench 
 
         slipped on January 27, 1986.
 
         
 
              In addition to Mr. Lambert, claimant testified that he 
 
         advised automotive fleet supervisor Dallas Piper of his injury a 
 
         few days later.  Further, claimant testified that he advised 
 
         delivery driver supervisor Bob White of the injury in the first 
 
         part of April, 1986, and that he notified Jim Robbins of the 
 
         injury in a conversation in late March, 1986 ("I still feel I 
 
         injured my shoulders when a wrench slipped").  Claimant also 
 
         indicated that despite the fact that he had filed numerous work 
 
         injury reports in the past while employed with defendant and was 
 
         fully aware of reporting requirements that he tell his supervisor 
 
         and fill out a written report, he did not fill out such a report 
 
         until the day after he had been advised by a Dr. Howe that the 
 
         injury was work related.
 
         
 
              Claimant testified in his deposition:
 

 
              
 
 
 
 
 
 
 
 
 
 
 
         
 
              Q.  Does UPS have some type of reporting procedure at that 
 
              time of the day as to what an employee is supposed to do 
 
              when they've suffered an injury on the job?
 
         
 
              A.  Yes.
 
         
 
              Q.  And what is that procedure?
 
              
 
              A.  Notify a supervisor to make out an accident report.
 
         
 
              Q.  And is it the employee's responsibility to make out the 
 
              accident report or does the supervisor do that?
 
         
 
              A.  50-50 probably.
 
              
 
              Q.  Is that something that the employee has to sign?
 
         
 
              A.  Yes.
 
         
 
              Q.  Was your supervisor on duty that night?
 
              
 
              A.  I have no idea.
 
              
 
              Q.  If he was, would you have reported it to him.
 
              
 
              A.  If I talked to him I probably would have.
 
              
 
              Q.  What is your first recollection as to when you reported 
 
              your injury to anyone at UPS?
 
              
 
              A.  You mean the date?
 
              
 
              Q.  Yes, sir.
 
              
 
              A.  In a -- or how you would put it.  I reported or told -- 
 
              I was in a conversation with Jim Robbins and I said that I'd 
 
              went to the doctor and he said it was bursitis but I still 
 
              think it's more than bursitis.  I think it happened when a 
 
              wrench slipped off and hurt my shoulders.  And later I told 
 
              Bob White the same -- we were talking and I told him 
 
              basically the same thing.
 
         
 
              Q.  Okay.  Do you remember approximately when you had this 
 
              conversation with Jim Robbins?
 
         
 
              A.  Well, probably somewhere near the end of March or so.
 
         
 
              Q.  And who is Jim Robbins?
 
              
 
              A.  He was supervisor of safety for UPS.
 
              
 
              Q.  And can you recall approximately when you would have 
 
              told Bob White?
 
              
 

 
              
 
 
 
 
 
 
 
 
 
 
 
              A.  Oh, probably the first part of April or so.
 
              
 
              Q.  Were there any witnesses to your accident.
 
              
 
              A.  No.
 
         
 
         (Wolbers deposition, page 16, line 4 through page 17, line 25)
 
         
 
              Claimant also testified in his deposition:
 
         
 
              Q.  Do you ever recall filling out an accident report at UPS 
 
              for this injury?
 
         
 
              A.  Yes.
 
         
 
              Q.  And do you recall when you did that?
 
         
 
              A.  Was it the 29th of July or something like that.
 
         
 
              Q.  Why did you wait that long to fill out an accident 
 
              report?
 
         
 
              A.  The doctor told me -- that's when I found out that was 
 
              wrong when I went to -- went to a doctor that told me that I 
 
              tore the rotator cups [sic] loose in my shoulders that, you 
 
              know, that would be considered work related.
 
         
 
              Q.  Is this Dr. Howe that told you this?
 
         
 
              A.  Yes.
 
         
 
              Q.  When you were working with this ratchet on January 27, 
 
              1986, and it slipped off and you felt pain in both 
 
              shoulders, did you realize at that time that you had an 
 
              injury?
 
         
 
              A.  Well, I was sure I did.
 
         
 
         (Wolbers deposition, page 18, lines 3 through 22)
 
         
 
              In his deposition testimony, claimant made no mention of his 
 
         claimed notification to Dallas Piper a few days following the 
 
         work injury.
 
         
 
              Claimant testified further to injuring his wrist while 
 
         trying to shut off a defective grinder on February 5, 1986.  
 
         Claimant was driven to the emergency room of a local hospital by 
 
         driver supervisor Don Hewlitt.  Claimant conceded that he did not 
 
         advise Mr. Hewlitt of the prior shoulder injury.  At the hospital 
 
         claimant was treated by Koert R. Smith, M.D., who had previously 
 
         treated claimant surgically for a knee injury.  Claimant 
 
         indicated that he had not visited Dr. Smith for his shoulder 
 
         problems because he was dissatisfied with the earlier care given 
 
         to his knee.
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
              Claimant was treated with a cast for six weeks because of a 
 
         cut tendon in his wrist.  During this time claimant was not using 
 
         his arms a great deal, so his shoulder symptoms abated.
 
         
 
              Claimant eventually returned to part-time employment and 
 
         testified that his shoulders again became symptomatic, so he 
 
         called Dr. Bedi.  Dr. Bedi gave him another injection and advised 
 
         claimant to see an orthopaedic surgeon; claimant elected to see 
 
         Dr. Smith.
 
         
 
              Dr. Smith's notes reflect that claimant first made complaint 
 
         of his shoulder problems on May 6, 1986.  Those chart notes 
 
         state:
 
         
 
              Patient states that an additional problem that he has today 
 
              intermittently since last fall, he has had pain in the R 
 
              shoulder.  He initially saw Dr. Bedi for this in early 
 
              February.  Dr. Bedi injected it with some Deltasone.  Seven 
 
              or eight days later, injected it again.  He then got along 
 
              well, until about 4 weeks ago when he had recurrence of pain 
 
              in the shoulder.  He again saw Dr. Bedi who now 
 
              approximately 10-12 days ago, injected the shoulder and 
 
              again 4 days ago injected the shoulder.  He presently is 
 
              taking Feldene and feels that the shoulder is too painful to 
 
              allow him to return to work.  He complains of pain with any 
 
              overhead types of activity.
 
         
 
              Claimant testified that Dr. Smith treated him with hot 
 
         packs, ultrasound, a TENS unit and physical therapy from May 
 
         through July, 1986.  Claimant then saw Gerald W. Howe, M.D., who 
 
         eventually performed surgery on both shoulders.  Claimant 
 
         testified that Dr. Howe advised him that his injury was work 
 
         related, so he filed a work injury report with defendant employer 
 
         on the following day.
 
         
 
              Defendants' exhibit B, page 15 is the initial written report 
 
         filed by claimant.  It bears the date of July 30, 1986.  Claimant 
 
         submitted a less legible copy of that document.
 
         
 
              On cross-examination, claimant admitted that he had had 
 
         numerous telephone conversations with Jim Foote of defendant 
 
         employer's personnel department.  Mr. Foote conversed with 
 
         claimant by telephone on February 6, 14, 20, 28, March 7, 14, 24, 
 
         April 4, 14, 16, 29 and May 8, 1986 concerning the February 5 
 
         wrist injury. 7 Claimant concedes that he did not advise Mr. 
 
         Foote of his claimed shoulder injury in any of those 
 
         conversations.  That concession is borne out by Mr. Foote's 
 
         notes, also in evidence.
 
         
 
              Jim Foote testified that he was area personnel supervisor in 
 
         1986 for defendant United Parcel Service.  At that time, company 
 
         policy in cases of work injury required the employee to 
 
         immediately notify a direct or other supervisor and to fill out 
 
         and sign an injury report as soon as possible.
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
              Mr. Foote testified to knowing claimant for some six years 
 
         before the injury and testified further that claimant did not 
 
         mention his shoulder injury during any of the telephone contacts 
 
         in the months of February, March, April and May, 1986 concerning 
 
         his wrist injury.  Mr. Foote indicated that had claimant notified 
 
         any supervisor of the shoulder injury, it should have been 
 
         written down and the safety department notified.
 
         
 
              Jim Robbins testified to being employed by defendant UPS for 
 
         some 22 years.  In January, 1986, he was employed in the Omaha 
 
         region, and transferred to a position as Iowa District Safety 
 
         Manager in February, 1986.  He reiterated that reporting 
 
         requirements were as described by Jim Foote.  Mr. Robbins further 
 
         testified that claimant did not advise him of his January 27 
 
         injury, and specifically denied claimant's testimony of advising 
 
         Robbins of his shoulder injury in March, 1986.  Mr. Robbins 
 
         indicated that claimant never mentioned a work-related shoulder 
 
         problem.
 
         
 
              Mr. Robbins testified further that he discovered Dr. Smith's 
 
         reference to shoulder problems in chart notes of May 6, 1986, and 
 
         that this observation prompted him to call Dr. Smith and 
 
         claimant. Claimant was not home when Robbins called, so he 
 
         advised claimant's wife that he was unaware of a job-related 
 
         shoulder injury, and that claimant should call his group health 
 
         insurance carrier.
 
         
 
              Mr. Robbins testified on cross-examination that he had no 
 
         conversations with claimant concerning his shoulder injury prior 
 
         to May 28, 1988.
 
         
 
              Jeanne Wolbers testified that she is claimant's wife.  She 
 
         denied receiving the telephone call described by Jim Robbins in 
 
         his testimony.
 
         
 
              Robert White testified that he has been employed by 
 
         defendant UPS for some 21 years and was a supervisor in 1986.  He 
 
         has known claimant for some 10-12 years.  He specifically denied 
 
         that claimant advised him of the January 27 claimed shoulder 
 
         injury and further specified that claimant did not make any such 
 
         report in March, 1986.  Mr. White indicated that if such a report 
 
         had been made, he would himself have filed a report of such a 
 
         notification. He further specified that it would be the 
 
         responsibility of any supervisor notified of a work injury to 
 
         help fill out an incident report.  White indicated that his first 
 
         recollection of any notification from claimant is when claimant 
 
         came in to prepare the injury report eventually filed on July 30, 
 
         1986.
 
         
 
              Wayne Wasson testified to 21 years of service with defendant 
 
         UPS.  He has been a center manager since February, 1986.  He also 
 
         described the injury reporting procedure, specifying that it is 
 
         to be done as soon as possible.
 
         
 
              With respect to the employee accident report filed by 
 
         claimant on July 30, 1986, Mr. Wasson testified that the question 
 
         on the form as to when and to whom the injury was reported 
 
         (answered:  Jim Robbins on March 1, 1986), was answered only 
 
         after he had advised claimant of the notice requirement contained 
 
         in Iowa Code section 85.23, and that claimant mentioned Robbins 
 
         only thereafter.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              Mr. Wasson further specified that claimant did not advise 
 
         him of his claimed shoulder injury until July 30, 1986.  On 
 
         cross-examination, Wasson agreed that he had talked to claimant 
 
         at a truck stop and that claimant had advised him that he had 
 
         received medical permission to return to work following 
 
         recuperation from his wrist injury, but did not intend to return 
 
         to work because of his shoulder problems.  However, Wasson 
 
         specified that claimant made no indication that he had sustained 
 
         a work-related injury to his shoulders and did not discuss how 
 
         the injury occurred.
 
         
 
              Richard Lambert testified by deposition taken February 14, 
 
         1989.  He described himself as a porter and washer for United 
 
         Parcel Service, having been employed since 1971.  He did not have 
 
         any type of supervisory position at the time of claimant's 
 
         alleged shoulder injury and agreed that he was not an appropriate 
 
         person to whom injuries should be reported.
 
         
 
              Mr. Lambert recalled claimant telling him that he had hurt 
 
         his shoulder changing a tire.
 
         
 
              Dallas Piper testified by deposition taken February 17, 
 
         1989. He testified that he was a fleet supervisor at Davenport, 
 
         Iowa on January 27, 1986.  He described defendants' reporting 
 
         requirements for injuries much as did the other witnesses to 
 
         address that question.  However, he also added that if no 
 
         supervisor was present at the time of an injury, an employee 
 
         should call the Des Moines office to report.
 
         
 
              Mr. Piper had known claimant for approximately 10 years, but 
 
         had no recollection of claimant advising him that he had suffered 
 
         a shoulder injury.  However, he further testified that had 
 
         claimant advised him of the shoulder injury, he would have called 
 
         claimant's supervisor or manager to inform them that they needed 
 
         to do something immediately with respect to reporting 
 
         requirements and that it would then have been that person's 
 
         responsibility, as well as claimant's, to see that an accident 
 
         report was prepared and filed.
 
         
 
              Chart notes of Dr. Bedi are in evidence, and reflect that 
 
         claimant was seen on February 4, 6, 13, 20, March 3, April 25, 
 
         and May 2, 1986.  Some of the chart notes are in handwriting and 
 
         some are typed.  The writer finds the handwritten portions to be 
 
         very difficult to read.
 
         
 
              The notes reflect that claimant was first seen on February 
 
         4, 1986.  Initial considerations appear to be bursitis and 
 
         cervical radiculopathy.  Pain was described as in both shoulders, 
 
         more on the left than the right, "and goes to sleep whenever he 
 
         lifts up heavy stuff above his head."  There was some numbness 
 
         reported in the upper part of claimant's arm.
 
         
 
              Curiously, there appears to be no mention whatsoever of a 
 
         claimed work injury in Dr. Bedi's chart notes.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              Dr. Smith treated claimant for his wrist laceration, but 
 
         also treated claimant for his shoulder problems after May 6, 
 
         1986.  His chart notes do not indicate that claimant reported a 
 
         work injury, only that he had experienced intermittent problems 
 
         since "last fall" and saw Dr. Bedi in early February, then having 
 
         recurrence approximately four week prior to May 6. His notes 
 
         further reflect that he spoke to Jim Robbins from UPS on May 28, 
 
         1986 concerning the shoulder injury.  However, there is no 
 
         indication that he was aware at that time of a claimed work 
 
         injury.  The first indication in Dr. Smith's chart notes of any 
 
         claimed work injury on January 27, 1986 appears on April 19, 
 
         1988, when claimant came in for evaluation of both claimed 
 
         injuries.
 
         
 
              Dr. Smith also testified by deposition taken February 14, 
 
         1989.  Dr. Smith testified that when he saw claimant in the 
 
         emergency room for his wrist injury on February 5, 1986, claimant 
 
         gave no indication whatsoever that he had suffered any type of 
 
         injury to either shoulder in January, 1986.  Similarly, no 
 
         complaints of a shoulder injury were made when claimant was seen 
 
         on February 17, March 18, or April 7, 1986.  Dr. Smith indicated 
 
         that he next saw claimant on May 6, 1986, and at that time 
 
         released him to return to work with respect to the wrist injury. 
 
         It was at this time that claimant first advised Dr. Smith that he 
 
         had been treating with Dr. Bedi since February for shoulder 
 
         problems.
 
         
 
              Dr. Smith also indicated that in treating a wrist 
 
         laceration, it would be important to know whether claimant was 
 
         suffering any symptoms in the rest of his arm or shoulder.  Dr. 
 
         Smith was "sure" he would have asked claimant if he had injured 
 
         himself somewhere else or had other significant symptoms, 
 
         although he agreed that in the emergency room setting he would be 
 
         more concerned with the acute bleeding problem and that a 
 
         shoulder injury a week or so prior to that time might not 
 
         necessarily have come out in the history.
 
         
 
              Dr. Smith also specified that claimant did not advise him on 
 
         May 6, 1986 that he had injured his shoulders in a work accident.
 
         
 
              Dr. Smith testified that he was familiar with the tests 
 
         given claimant by Dr. Bedi.  He indicated that those tests would 
 
         not typically be given if a patient had given Dr. Bedi a history 
 
         of a work-related injury, since they were tests designed to look 
 
         for a systemic disease as a potential cause for the complaints.
 
         
 
              Dr. Smith assessed claimant's shoulder problems as chronic 
 
         subacromial bursitis.  It was his opinion that claimant's 
 
         shoulder disability did not arise out of and in the course of 
 
         employment or occupational disease.
 
         
 
              Dr. Smith further testified that when he saw claimant for 
 
         evaluation on April 19, 1988, it was the first time claimant had 
 
         advised him of a claimed work injury to his shoulders on January 
 
         27, 1986.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              Dr. Howe saw claimant on July 28, 1986.  His chart notes 
 
         reflect that claimant reported injuring his right shoulder on 
 
         January 27, 1986 while pulling on a heavy wrench.
 
         
 
              Dr. Smith wrote defendant Liberty Mutual on August 22, 1986 
 
         to express his opinion that claimant had recovered from his wrist 
 
         injury with no permanent impairment.  As shall be seen, he later 
 
         amended that opinion.
 
         
 
              Dr. Smith noted on April 19, 1988, that claimant lacked 15 
 
         degrees of full extension at the left wrist, which rated a three 
 
         percent upper extremity impairment.  Flexion was symmetrical, no 
 
         impairment.  Radial deviation was symmetrical, no impairment. 
 
         Claimant lacked 10 degrees of full ulnar deviation, rating a two 
 
         percent impairment.  For that reason, Dr. Smith assessed claimant 
 
         as suffering a five percent impairment to the left upper 
 
         extremity by reason of the February 5, 1986 work injury.  As has 
 
         been seen, Dr. Smith was the treating physician.
 
         
 
              Dr. Smith reiterated that rating in his deposition 
 
         testimony.
 
         
 
              Claimant was also evaluated for his wrist injury by John 
 
         Speca, M.D.  Dr. Speca wrote on June 2, 1987 that with the 
 
         present measurements of claimant's wrist, he had sustained a 12 
 
         percent disability to the upper extremity (Dr. Speca also 
 
         assessed claimant's shoulder impairment).  Dr. Speca found the 
 
         following range of motion to the left wrist:
 
         
 
              Flexion                    68 degrees
 
              Extension                  25 degrees
 
              Radial deviation           25 degrees
 
              Ulnar deviation            15 degrees
 
              Pronation                  65 degrees
 
              Supination                 70 degrees
 
              
 
              Dr. Speca also testified by deposition taken January 6, 
 
         1989. He agreed that he had seen claimant one time only on May 8, 
 
         1987. His testimony essentially dealt with claimant's shoulder 
 
         impairment, but not his wrist impairment.
 
         
 
              Claimant was also seen for evaluation on December 10, 1986 
 
         by William R. Irey, M.D.  Dr. Irey noted that claimant sustained 
 
         an injury to the left wrist, but then stated that the right wrist 
 
         (an obvious error) showed a scar on the dorsal radial aspect 
 
         which was oblique and well healed.  He had some thickening of 
 
         this area which would correspond to a healed tendon repair.  Dr. 
 
         Irey measured claimant's range of motion of the right wrist over 
 
         left as:
 
         
 
              Dorsiflexion                52/40
 
              Palmar flexion              50/68
 
              Radial deviation            20/20
 
              Ulnar deviation             25/20
 

 
              
 
 
 
 
 
 
 
 
 
 
 
         
 
              Dr. Irey noted that claimant had full range of motion of all 
 
         digits and the elbow, including pronation and supination.
 
         
 
              Dr. Irey went on to note that under the American Medical 
 
         Association Guides to the Evaluation of Permanent Impairment 
 
         claimant had a three percent impairment due to reduced 
 
         dorsiflexion and two percent due to ulnar deviation reduction.  
 
         He found claimant to have sustained a five percent impairment of 
 
         the upper extremity.
 
         
 
                           APPLICABLE LAW AND ANALYSIS
 
         
 
              Iowa Code section 85.23 provides:
 
         
 
              Unless the employer or the employer's representative shall 
 
              have actual knowledge of the occurrence of an injury 
 
              received within ninety days from the date of the occurrence 
 
              of the injury, or unless the employee or someone on the 
 
              employee's behalf or a dependent or someone on the 
 
              dependent's behalf shall give notice thereof to the employer 
 
              within ninety days from the date of the occurrence of the 
 
              injury, no compensation shall be allowed.
 
         
 
              Failure to give notice under this section is an affirmative 
 
         defense.  The burden of proof rests on defendant.  Mefford v. Ed 
 
         Miller & Sons, Inc., 33rd Biennial Report of the Iowa Industrial 
 
         Commissioner 191 (1977).  The employer must have notice or actual 
 
         knowledge of an injury within ninety days of an injurious 
 
         "occurrence."  The purpose of the statute is to give defendant an 
 
         opportunity to investigate.  Robinson v. Dept of Transp., 296 
 
         N.W.2d 809 (Iowa 1980).  It is sufficient to establish actual 
 
         notice if the employer's "representative" has knowledge of the 
 
         injury and that it is work connected.  Hobbs v. Sioux City, 231 
 
         Iowa 860, 2 N.W.2d 275 (1942).
 
         
 
              Iowa also has adopted a "discovery rule" with respect to 
 
         triggering the ninety-day notice period.  The ninety-day notice 
 
         clock begins running at such time as the employee, acting 
 
         reasonably, should know that his injury is both serious and work 
 
         connected.  Jacques v. Farmers Lumber & Supply Co., 242 Iowa 548, 
 
         47 N.W.2d 236 (1951).  The standard in determining whether the 
 
         employee should know that his injury is both serious and work 
 
         connected is that of a reasonable person with the claimant's 
 
         education and intelligence.  Robinson v. Dept of Transp., supra.
 
         
 
              In this case, defendant UPS maintained a rule to the effect 
 
         that an individual suffering a work injury must immediately 
 
         notify a supervisor and fill out and sign a reporting form.  
 
         Claimant was well aware of this rule, as he had reported numerous 
 
         work injuries during his tenure with defendant.  Claimant had 
 
         occasionally filled out the reporting form immediately, but had 
 
         also on occasion delayed substantially (but not beyond the 
 
         ninety-day notice period).
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
              Assuming that claimant did sustain a bilateral shoulder 
 
         injury as per his testimony, it is undisputed that he did not 
 
         file formal written notice with defendant until July 30, 1986.  
 
         This is obviously far beyond the ninety days provided by statute 
 
         for notice.  Therefore, claimant may avoid the affirmative 
 
         defense only if it be shown that defendants had actual notice of 
 
         the injury because of his informal notification to a 
 
         "representative" (it is undisputed that there were no other 
 
         witnesses to this claimed event) or if the operation of Iowa's 
 
         discovery rule delayed commencement of the ninety-day notice 
 
         period.
 
         
 
              Claimant testified that he almost immediately notified Dick 
 
         Lambert of his injury, and this testimony was confirmed by Mr. 
 
         Lambert.  It is also undisputed that Lambert was not a supervisor 
 
         or generally a person to whom a work injury should be reported. 
 
         Was he a "representative?"  A foreman, superintendent or other 
 
         agent in charge or control of employees is a representative. 
 
         Franks v. Carpenter, 192 Iowa 1398, 186 N.W. 647 (1922).  Since 
 
         the purpose of the statute is to give the employer an opportunity 
 
         to investigate the occurrence while it is reasonably fresh, 
 
         notification to a mere fellow servant should not be considered to 
 
         meet the notice or actual knowledge requirement because it cannot 
 
         reasonably by anticipated that an informal conversation with a 
 
         fellow employee is likely to give defendant knowledge sufficient 
 
         to have the opportunity to undertake an investigation.  Holding 
 
         such a nonsupervisory employee to be an adequate "representative" 
 
         of the employer would go a long way toward rendering the 
 
         statutory notice requirement an effective nullity.  It is held 
 
         that claimant's notification to Dick Lambert did not operate to 
 
         give notice or actual knowledge to defendant United Parcel 
 
         Service. Accord, 3 Larson Workmen's Compensation Law, section 
 
         78.31(b)(2).
 
         
 
              Claimant testified that the next individual to be notified 
 
         of his claimed injury was Dallas Piper, a few days following the 
 
         injury.  This is inconsistent with claimant's deposition 
 
         testimony, wherein Dallas Piper was never mentioned.  Dallas 
 
         Piper contradicted claimant's testimony to the extent that he had 
 
         no recollection of such notification.  Mr. Piper also indicated 
 
         that if he had been advised of the shoulder injury, he would have 
 
         taken steps to call claimant's supervisor or manager.  Since Mr. 
 
         Piper took no such steps, it appears that his recollection is 
 
         correct and that claimant made no such notification.
 
         
 
              Claimant also testified that he advised delivery driver 
 
         supervisor Bob White of his injury in early April, 1986.  Mr. 
 
         White specifically denied that claimant made any such allegation, 
 
         and also indicated that if claimant had done so, he would himself 
 
         have filed a report of the notification.  Mr. White's first 
 
         recollection of any notification is when claimant came in to 
 
         prepare the injury report filed on July 30, 1986.
 
         
 
              Claimant further testified that he notified Jim Robbins of 
 
         the injury in late March, 1986.  Robbins specifically denied that 
 
         testimony and indicated that claimant never mentioned a work 
 
         related shoulder problem.  Interestingly, Mr. Robbins also 
 
         testified that he raised the subject of a shoulder injury with 
 
         claimant's wife after reading Dr. Smith's chart notes of May 6, 
 
         1986, advising her that since he was unaware of any work 
 
         connection of the shoulder injury, claimant should contact his 
 
         group health insurance carrier.  Although Jeanne Wolbers denied 
 
         receiving that conversation, the undersigned finds Jim Robbins' 
 
         testimony to be more credible.  While May 6 is itself more than 
 
         ninety days from the date of the claimed work incident, the 
 
         failure of claimant's wife to protest that the injury was work 
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         related indicates that claimant was not then pursuing this claim 
 
         as being work related.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              Of further interest is that supervisor Don Hewlitt drove 
 
         claimant to the emergency room of a local hospital after his 
 
         stipulated work injury to the wrist on February 5, 1986.  
 
         Although this was only nine days from the claimed shoulder 
 
         injury, claimant by his own testimony had been "limping along" in 
 
         pain for all that time.  Yet, he made no mention of the shoulder 
 
         injury while being transported to the hospital for a clearly work 
 
         connected wrist injury.
 
         
 
              Also worthy of note is that Jim Foote of defendant's 
 
         personnel department conversed with claimant by telephone on 
 
         approximately one dozen occasions in February, March, April and 
 
         May, 1986 concerning the wrist injury, but claimant failed 
 
         utterly to even mention the shoulder injury during any of those 
 
         conversations.  It seems to the undersigned unlikely in the 
 
         extreme that an individual could have so many closely spaced 
 
         telephone conversations with a personnel officer concerning a 
 
         work injury without mentioning another claimed work injury 
 
         sustained so close in point of time.
 
         
 
              Also of interest is that there is no indication in Dr. 
 
         Bedi's chart notes that claimant ever alleged he sustained a work 
 
         injury during any of his visits.  Although Dr. Bedi did not 
 
         otherwise give direct testimony, Dr. Smith reviewed his notes and 
 
         testified that the types of tests Dr. Bedi performed would not 
 
         typically be given if a patient had indicated he has sustained a 
 
         work injury, since they were tests designed to look for systemic 
 
         disease as a potential cause for the complaints.
 
         
 
              Also of interest is that claimant treated with Dr. Smith 
 
         from the date of his wrist injury on February 5 through at least 
 
         May 6, 1986 when claimant was released to return to work.  
 
         Claimant was seen also on February 17, March 18, and April 7, 
 
         1986.  Claimant made no mention of his claimed shoulder injury in 
 
         the emergency room or until May 6, 1986, even though Dr. Smith 
 
         was relatively certain that he would have asked claimant in the 
 
         emergency room if he had sustained any other injuries or had 
 
         other significant symptoms.  And, even when claimant did advise 
 
         Dr. Smith that he had been suffering shoulder problems, he made 
 
         no mention of a work injury.  In fact, Dr. Smith's chart notes 
 
         indicate that claimant had reportedly suffered intermittent 
 
         shoulder problems since the previous fall.
 
         
 
              The record shows that the first time claimant advised any 
 
         physician of the claimed work injury of January 27, 1986 was when 
 
         Dr. Howe was seen on July 28, 1986.
 
         
 
              For all of these reasons the undersigned considers 
 
         claimant's testimony to lack credibility.  It is held that 
 
         claimant did not give notice to any representative of defendant 
 
         within ninety days of his work injury and defendant had no other 
 
         independent actual knowledge of the alleged injury within those 
 
         ninety days.
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
              But what of the discovery rule?  Claimant certainly gave 
 
         every indication of being of at least average intelligence.  In 
 
         addition, he appears to be quite well versed with workers' 
 
         compensation claims, as he has sustained a number of work 
 
         injuries during his lengthy tenure with defendant.  Claimant 
 
         testified that he suffered a traumatic work injury with a 
 
         snapping sensation in the shoulders bilaterally.  The injury was 
 
         severe enough that he "limped along" for the next nine days, 
 
         until he sustained a wrist injury.  If an injury actually 
 
         occurred as claimant alleges, it is held that he should have been 
 
         on notice as a reasonable person given his intelligence and 
 
         background that he had sustained an injury both work related and 
 
         serious.  After all, nine days is a very substantial time to 
 
         "limp along" in pain, believing that such pain resulting from a 
 
         traumatic event to both shoulders is not "serious."
 
         
 
              Based on the foregoing, it is held that defendants have 
 
         sustained their burden of proof in establishing the affirmative 
 
         defense of lack of notice under Iowa Code section 85.23 with 
 
         respect to claimant's alleged shoulder injuries of January 27, 
 
         1986.  However, it should be at this time noted that even had the 
 
         affirmative defense not been established, this deputy would hold 
 
         that claimant has failed to meet his burden of proof in 
 
         establishing an injury arising out of and in the course of his 
 
         employment on that date.  This is so because of claimant's lack 
 
         of credibility as a witness and because the fact of such injury 
 
         is not borne out by the medical records of Dr. Bedi and Dr. 
 
         Smith. Rather, the most reasonable conclusion is that claimant 
 
         had been suffering shoulder problems since at least the previous 
 
         fall, as he reported to Dr. Smith.
 
         
 
              With respect to claimant's wrist injury, the parties have 
 
         stipulated that claimant sustained the injury arising out of and 
 
         in the course of employment and that it caused temporary and 
 
         permanent disability.  The sole issue presented for resolution is 
 
         the extent of claimant's entitlement to compensation for 
 
         permanent disability.
 
         
 
              In the arena of scheduled injuries, impairment equals 
 
         disability.  Normally, the wrist is considered part of the hand, 
 
         not the arm.  Elam v. Midland Mfg., II Iowa Industrial 
 
         Commissioner Report 141 (1981).  However, all of the physicians 
 
         in this case have rated claimant's impairment as an injury to the 
 
         arm or upper extremity rather than the hand.  Because ulnar 
 
         deviation is a factor in evaluating claimant's impairment, and 
 
         given that all physicians rated the impairment as to the arm, 
 
         claimant's injury is held to be to his arm (as the parties 
 
         stipulated) and not the hand.
 
         
 
              Dr. Smith was the treating physician.  Based on a loss of 
 
         extension and ulnar deviation, he found that claimant had 
 
         sustained a five percent impairment to the left upper extremity 
 
         (amending his earlier opinion that claimant had sustained no 
 
         impairment).  Dr. Speca found that claimant had suffered a 12 
 
         percent disability to the upper extremity, measuring loss of 
 
         range of motion fairly close to the loss measured by Dr. Irey.  
 
         Dr. Irey, using the American Medical Association Guides to the 
 
         Evaluation of Permanent Impairment, also was of the view that 
 
         claimant had sustained a five percent loss to the upper extremity 
 
         or arm.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              Although Dr. Speca was deposed, he was not asked in depth 
 
         concerning how he arrived at an impairment rating of 12 percent, 
 
         more than double the ratings of two other physicians, including 
 
         the treating physician.  It is held that claimant has established 
 
         an impairment to his arm of five percent as opined by Drs. Smith 
 
         and Irey.  Pursuant to Iowa Code section 85.34(2)(m) compensation 
 
         is paid for the loss of an arm during 250 weeks.  Five percent of 
 
         250 weeks is 12.5 weeks.  As the parties have stipulated that 
 
         defendants paid 12.5 weeks of permanent partial disability 
 
         benefits on a voluntary basis prior to hearing, claimant has 
 
         received all the benefits to which he is entitled.
 
         
 
                                FINDINGS OF FACT;
 
         
 
              THEREFORE, based on the evidence presented, the following 
 
         ultimate facts are found:
 
         
 
              1.  Claimant was employed by defendant United Parcel Service 
 
         on January 27, 1986 and February 5, 1986.
 
              
 
              2.  If claimant did sustain an injury to his shoulders on 
 
         January 27, 1986, he had knowledge by no later than February 5, 
 
         1986, that his injury was both serious and work related.
 
              
 
              3.  Claimant gave notice of his injury to defendants on July 
 
         30, 1986.
 
              
 
              4.  Claimant lacked credibility as a witness.
 
         
 
              5.  Claimant has not established that he gave informal 
 
         notice to any "representative" of employer prior to July 30, 
 
         1986.
 
         
 
              6.  As stipulated, claimant sustained an injury to his arm 
 
         on February 5, 1986.
 
         
 
              7.  Claimant has established that he sustained a five 
 
         percent loss of the use of that arm as a result of that work 
 
         injury.
 
         
 
                                CONCLUSIONS OF LAW
 
         
 
              WHEREFORE, based on the principles of law previously cited, 
 
         the following conclusions of law are made:
 
         
 
              1.  Defendants have met their burden of proof in 
 
         establishing the affirmative defense of lack of notice of 
 
         claimant's alleged shoulder injuries of January 27, 1986, under 
 
         Iowa Code section 85.23.
 
         
 
              2.  Claimant has established that he is entitled to 
 
         permanent partial disability of five percent of the arm as a 
 
         result of his February 5, 1986 injury (816711), for which he has 
 
         previously been compensated voluntarily by defendants.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
                                      ORDER
 
         
 
              THEREFORE, IT IS ORDERED:
 
         
 
              Claimant shall take nothing from this proceeding in case 
 
         number 829340.
 
         
 
              Claimant shall take nothing further from this proceeding in 
 
         case number 816771.
 
         
 
              Costs of this action in case number 829340 are assessed to 
 
         claimant pursuant to Division of Industrial Services Rule 
 
         343-4.33.
 
         
 
              Costs of this action in case number 816771 are assessed to 
 
         defendants pursuant to Division of Industrial Services Rule 
 
         343-4.33.
 
         
 
              Signed and filed this 30th day of January, 1990.
 
         
 
         
 
         
 
         
 
         
 
         
 
         
 
                                            DAVID RASEY
 
                                            DEPUTY INDUSTRIAL COMMISSIONER
 
         
 
         Copies To:
 
         
 
         Mr. Steven S. Hoth
 
         Attorney at Law
 
         200 Jefferson Street
 
         P.O. Box 1105
 
         Burlington, Iowa  52601
 
         
 
         Mr. Greg A. Egbers
 
         Attorney at Law
 
         600 Union Arcade Building
 
         111 East Third Street
 
         Davenport, Iowa  52801
 
         
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
 
                                            
 
 
 
 
 
 
 
 
 
 
 
                                            1403.30, 5-1803, 2401
 
                                            2801
 
                                            Filed January 30, 1990
 
                                            DAVID RASEY
 
         
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         JAMES R. WOLBERS,
 
         
 
              Claimant,
 
         
 
         vs.                                       File Nos. 816771
 
                                                             829340
 
         UNITED PARCEL SERVICE,
 
                                               A R B I T R A T I 0 N 
 
              Employer,
 
                                                  D E C I S I 0 N
 
         and
 
         
 
         LIBERTY MUTUAL INSURANCE
 
         COMPANY,
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
         1403.30, 2401, 2801
 
         
 
              Notice to a nonsupervisory fellow employee is not notice to 
 
         a "representative" of employer.
 
         
 
              Claimant who alleged traumatic, "snapping" injury to both 
 
         shoulders, with immediate bilateral pain, and who then "limped 
 
         along" for nine days before suffering unrelated injury was held 
 
         to know that his injury was both serious and work connected.  
 
         Claimant was intelligent and had extensive experience with 
 
         reporting prior work injuries.
 
         
 
         5-1803
 
         
 
              Claimant awarded five percent impairment to arm.