BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         BEVERLY J. FOSTER,
 
         
 
              Claimant,
 
         
 
         vs.
 
                                                   File No. 821588
 
         PLAZA RESTAURANT AND LOUNGE,
 
                                               A R B I T R A T I 0 N
 
              Employer,
 
                                                   D E C I S I 0 N
 
         and
 
         
 
         CONTINENTAL WESTERN,                          F I L E D
 
         
 
              Insurance Carrier,                      FEB 27 1989
 
         
 
         and                                      INDUSTRIAL SERVICES
 
         
 
         SECOND INJURY FUND OF IOWA,
 
         
 
              Defendants.
 
         
 
         
 
                                   INTRODUCTION
 
         
 
              This is a proceeding in arbitration brought by Beverly J. 
 
         Foster against her former employer, Plaza Restaurant and Lounge, 
 
         Continental Western Insurance Company, the employer's insurance 
 
         carrier, and the Second Injury Fund of Iowa.  Claimant seeks 
 
         additional compensation for healing period, permanent partial 
 
         disability, penalty benefits and Second Injury Fund benefits as 
 
         the result of the bilateral carpal tunnel syndrome which she 
 
         developed as a result of her work activities for the employer, 
 
         Plaza Restaurant and Lounge.  The issues to be determined include 
 
         the duration of claimant's healing period, the extent of 
 
         permanent partial disability attributable to the employer, the 
 
         liability, if any, of the Second Injury Fund, the rate of 
 
         compensation and claimant's entitlement to benefits under the 
 
         fourth unnumbered paragraph of Code section 86.13.
 
         
 
              The case was heard at Mason City, Iowa on May  27, 1988 and 
 
         was fully submitted.  The record in the proceeding consists of 
 
         testimony from Beverly J. Foster, Lionel Foster and Jill Larson. 
 
         The record also contains claimant's exhibits 1 through 20 and 
 
         defendants' exhibits A through J.  Official notice was taken of 
 
         agency file number 681881, a prior claim made by this same 
 
         claimant against a different employer.
 
         
 
                               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.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              Beverly J. Foster is a 47-year-old married lady who lives in 
 
         Mason City, Iowa.  Her education is limited to completion of the 
 
         tenth grade.  She has a limited work history.  Claimant was 
 
         employed at Donutland as a counter waitress from October, 1980 
 
         through August, 1981.  She was next employed at the Madonna Inn 
 
         during February through April of 1983 where she performed 
 
         laundry. Claimant testified that, during 1985, she performed 
 
         babysitting for which she earned approximately $40 per week.  She 
 
         admitted that she did not report her income from babysitting on 
 
         her income tax returns.
 
         
 
              Claimant commenced employment at Plaza Restaurant and Lounge 
 
         on August 8, 1985.  Claimant testified that she understood that 
 
         the work would be full-time.  She stated that she started working 
 
         approximately six hours per day, but that after three weeks, her 
 
         hours were cut to five hours per day.  She stated that she worked 
 
         Monday through Friday and was paid $3.50 per hour.  Claimant 
 
         testified that she also worked some Saturdays.  Claimant stated 
 
         that her employment duties were washing dishes by hand, helping 
 
         the cooks, bussing tables and general cleanup for breakfast and 
 
         lunch.
 
         
 
              Claimant testified that she began to experience pain and, 
 
         swelling in her wrists and numbness in her hands which caused her 
 
         to drop things in November or early December.  She denied having 
 
         had similar complaints of symptoms prior to that time.
 
         
 
              Claimant's exhibit 3 shows that, on December 31, 1985, 
 
         claimant consulted her family physician, Robert A. Breitenbach, 
 
         M.D., for complaints of wrist and hand numbness and pain.  Dr. 
 
         Breitenbach felt that claimant exhibited early carpal tunnel 
 
         syndrome and prescribed medication for treatment of her symptoms. 
 
         When seen again on January 8, 1986, claimant indicated some 
 
         improvement of her symptoms.  On January 16, 1986, her symptoms 
 
         had increased and a steroid injection of the right carpal tunnel 
 
         was performed.  The note of February 6, 1986 notes that bilateral 
 
         wrist splints were employed.  The note dated February 18, 1986 
 
         indicates that claimant was taken off work for one week and that 
 
         an appointment was scheduled with Thomas F. DeBartolo, M.D., an 
 
         orthopaedic surgeon for March 5, 1986 (claimant's exhibits 3 and 
 
         4).
 
         
 
              Electromyography confirmed the diagnosis of bilateral carpal 
 
         tunnel syndrome (claimant's exhibit 5).  On March 24, 1986, 
 
         claimant underwent decompression of the right median nerve at the 
 
         wrist and, on April 30, 1986, she underwent decompression of the 
 
         left median nerves of the wrist (claimant's exhibits 7 and 9).  
 
         On May 22, 1986, Dr. DeBartolo indicated that from a medical 
 
         standpoint, claimant could return to the type of work she had 
 
         been performing as a dishwasher (claimant's exhibit 1, page 9).  
 
         On June 13, 1986 and again on August 13, 1986, Dr. DeBartolo 
 
         noted that claimant had some achy discomfort and reduced 
 
         strength, but that she had no median nerve paresthesias.  He 
 
         indicated that he would not rate permanent impairment until 
 
         approximately 12 months following the date of surgery (claimant's 
 
         exhibit 1, pages 9 and 10).  On March 25, 1987, Dr. DeBartolo 
 
         performed an extensive examination of the function of claimant's 
 
         hands.  Dr. DeBartolo concluded that claimant had a 14% 
 
         impairment of her right hand and 13% of her nondominant left hand 
 
         (claimant's exhibit 12, page 2). Dr. DeBartolo indicated that 
 
         claimant's dishwashing activities for her employer "most 
 
         certainly may have been a major component" for her development of 
 
         carpal tunnel syndrome (claimant's exhibit 13).
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              Claimant was evaluated by Peter D. Wirtz, M.D., a Des Moines 
 
         orthopaedic surgeon.  Dr. Wirtz indicated that claimant's healing 
 
         period should have extended for four weeks following surgery 
 
         (defendants' exhibit E, page 12).  Dr. Wirtz agreed that 
 
         claimant's activities as a dishwasher caused her to develop 
 
         carpal tunnel syndrome (defendants' exhibit E, page 21).  He 
 
         rated her as having a two percent permanent impairment of each 
 
         hand as a result of the carpal tunnel syndrome condition 
 
         (defendants' exhibit E, page 13).  Dr. Wirtz recommended that 
 
         claimant avoid strenuous or repetitive use of her hands and 
 
         wrists as such would aggravate her condition (defendants' exhibit 
 
         E, pages 23 and 24).
 
         
 
              Claimant testified that, when she was released to return to 
 
         work by Dr. DeBartolo on May 22, 1986, a new owner had taken over 
 
         the Plaza Restaurant and Lounge and that she was not rehired.  
 
         She sought other employment, but without success.  Claimant 
 
         stated that she has regularly sought work since May of 1986, but 
 
         has not found any.
 
         
 
              Claimant testified that she had worked on February 18, 1986, 
 
         but was then taken off work for eight days by Dr. Breitenbach.  
 
         She stated that she then resumed work until March 15 when the 
 
         business closed.
 
         
 
              Claimant testified that her surgery was successful.  She no 
 
         longer has pain and numbness, but stated that she still has a lot 
 
         of aching in her hands and wrists and that her wrists are weak. 
 
         She stated that she still has trouble with dropping things.  She 
 
         expressed difficulty performing activities such as ironing or 
 
         dishwashing at home.  She denied experiencing any new injuries to 
 
         her hands or wrists since late 1985.
 
         
 
              Claimant related her past medical history.  She stated that, 
 
         in approximately 1975 or 1976, she had low back surgery and that 
 
         her back still bothers her on occasion.  She denied having 
 
         problems with her legs, but stated that she is restricted from 
 
         heavy lifting or bending.  Claimant was involved in a motor 
 
         vehicle accident in approximately 1978 which affected her neck. 
 
         She stated that she occasionally still has symptoms from that 
 
         incident.
 
         
 
              Claimant testified that, while employed by Donutland, she 
 
         developed tendonitis of her right elbow for which she filed a 
 
         workers' compensation claim.  Claimant stated that she currently 
 
         has no problem with her right elbow other than an occasional 
 
         shooting pain which runs through it.  Pages 1 through 3 of 
 
         claimant's exhibit 1 contain the records of claimant's treatment 
 
         by Norman W. Hoover, M.D., for that condition.  The records show 
 
         that she was taken off work in November, 1981 and remained off 
 
         work for the condition until August 9, 1982.  Dr. Hoover had 
 
         released claimant to perform light work in February, 1982, but 
 
         none was provided.
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
              Claimant's workers' compensation claim from that incident 
 
         was settled by a special case settlement for which she was paid 
 
         $1,800.00.  The settlement did not establish the existence or 
 
         extent of any permanent disability (Second Injury Fund exhibit 
 
         J).
 
         
 
              Dr. Hoover was deposed on July 13, 1982 at which time he 
 
         stated that the condition of epicondylitis would likely go away 
 
         of its own accord with the passage of time (claimant's exhibit 
 
         11, page 13).  However, only two weeks later, Dr. Hoover in his 
 
         progress note of July 27, 1982 stated that claimant had a painful 
 
         shoulder which was not physically limiting, but which was 
 
         occupationally disabling.  He placed that disability at 25% of 
 
         the upper extremity, an amount equal to 15% o f the whole person.  
 
         Dr. Hoover also stated:
 
         
 
              I emphasized to the patient that this is not a rating of 
 
              physical impairment but rather of occupational disability 
 
              and that it is an expression of the pain that she reports to 
 
              me and the limitation of tolerance of work as she has 
 
              described it.  It is not based on evidence of physical 
 
              functional loss.
 
         
 
         (Claimant's exhibit 1, page 4)
 
         
 
              When Dr. Wirtz examined claimant, he found no evidence of 
 
         epicondylitis or any residual impairment from such a condition 
 
         (defendants' exhibit E, pages 16, 17 and 27).  Claimant testified 
 
         that she had not received any medical treatment for her right 
 
         elbow since July, 1982.  Claimant's husband, Lionel Foster, 
 
         testified that, after 1982, claimant periodically complained of 
 
         her right elbow, particularly after strenuous activity.  He 
 
         stated that she currently complains of both hands and forearms 
 
         bothering. He stated that she has numbness and drops things at 
 
         times.  He stated that these complaints also seem to follow 
 
         strenuous activity.
 
         
 
              Claimant testified that the list of wage payments shown in 
 
         defendants' exhibit A is not complete and that she was also paid 
 
         in cash for some work.  Jill Larson, the employer, agreed that 
 
         claimant was paid in cash for some work as evidenced by notes 
 
         which were received into evidence as defendants' exhibit I. 
 
         Claimant testified that the total earnings of $2,040.44 reported 
 
         on defendants' exhibit C accurately shows the total of cash and 
 
         regular wages which were paid to her by the employer, Jill 
 
         Larson, doing business as Plaza Restaurant and Lounge.
 
         
 
              Jill Larson, the owner of Plaza Restaurant and Lounge at the 
 
         time claimant was employed, testified that claimant was hired to 
 
         work part-time, five or six hours per day.  She stated that 
 
         claimant's work hours were not always stable.  Larson stated that 
 
         $49 was paid to claimant in cash during 1985 and that the balance 
 
         of the cash payments were paid in 1986.
 
         
 
                           APPLICABLE LAW AND ANALYSIS
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              The first issue to be determined is the rate of 
 
         compensation. In our society, a 40-hour work week is considered 
 
         to be the norm for full-time employment.  In some occupations, 
 
         the norm may be a few hours more or a few hours less than 40.  It 
 
         is quite unusual for jobs which involve less than 30 hours of 
 
         work per week to be considered "full-time."  Federal laws dealing 
 
         with pension plans consider work of less than 30 hours per week 
 
         to be part-time.  This agency has, however, on one occasion 
 
         termed the job of a school bus driver to be "full-time."  The 
 
         decision characterized school bus driving as an industry in which 
 
         the hours of work are typically relatively few.  Lang v. Humboldt 
 
         Community School, IV Iowa Industrial Commissioner Report, 220 
 
         (App. Decn. 1984).  The rationale given was that the definition 
 
         of "full-time" work includes those employees who work in 
 
         industries which operate exclusively through the use of employees 
 
         who work a number of hours which would normally or typically be 
 
         indicative of part-time work. In the Lang case, school bus 
 
         drivers were not considered to be a segment of the broader 
 
         transportation industry which includes chauffeurs, passenger bus 
 
         drivers and truck drivers.  It is quite common for school bus 
 
         drivers to also hold other "full-time" employment in which they 
 
         work a full 40 hours per week.  A similar situation exists with 
 
         newspaper carriers who work only one or two hours per day as a 
 
         newspaper carrier, but also work eight or more other hours per 
 
         day in some other full-time occupation.  Lang apparently rejected 
 
         the concept that there can be some jobs, occupations or 
 
         industries which exist only on a part-time basis. Lang did not 
 
         consider the remuneration provided by employment or the ability 
 
         of an individual to be self-supporting from the wages earned as 
 
         considerations in determining whether any particular job is 
 
         full-time or part-time.
 
         
 
              One could characterize Beverly Foster as a full-time 
 
         employee if one were to accept the proposition that dishwashers 
 
         who work only the breakfast and lunch shift, without working the 
 
         evening shift, are a separate industry.  There is little 
 
         difficulty in distinguishing such dishwashers from other 
 
         restaurant employees such as cooks or waitresses, if one follows 
 
         the rationale used in distinguishing school bus drivers from 
 
         other types of vehicle drivers.
 
         
 
              The undersigned does not accept the proposition that a 
 
         dishwasher in a restaurant who works only the breakfast and lunch 
 
         shifts is a full-time occupation.  The occupation of dishwasher 
 
         is simply one occupation in the restaurant industry.  The 
 
         restaurant industry operates 24 hours per day, seven days per 
 
         week.  Many restaurant industry employees work 40 hours per week 
 
         or more.  In the restaurant industry, it is also common to use 
 
         part-time employees at the times when business is most heavy, 
 
         such as meal times.  Part-time cooks, waitresses and dishwashers 
 
         are common. The fact that they are common does not, however, 
 
         transform their employment to full-time employment.  It is 
 
         therefore determined that Beverly Foster was not a full-time 
 
         employee and that she earned less than the usual weekly earnings 
 
         of the regular full-time adult laborer in the restaurant industry 
 
         in the Mason City, Iowa locality.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              It can be reasonably urged that claimant's rate of 
 
         compensation should be determined under the provisions of Code 
 
         section 85.36(10).  The record also reflects, however, that 
 
         claimant was paid by the hour.  Accordingly, it could be 
 
         reasonably urged that claimant's rate of compensation should be 
 
         computed under the provisions of Code section 85.36(6).  Nothing 
 
         in Code section 85.36 restricts subsections (1) through (9) to 
 
         full-time employment.  In fact, the definition of weekly earnings 
 
         contained in 85.36 states:
 
         
 
              Weekly earnings means gross salary, wages or earnings of an 
 
              employee to which such employee would have been entitled had 
 
              the employee worked the customary hours for the full pay 
 
              period in which the employee was injured, as regularly 
 
              required by the employee's employer for the work or 
 
              employment for which the employee was employed, ... 
 
              (Emphasis added].
 
         
 
         It is clearly stated.in the first paragraph of Code section 85.36 
 
         that the weekly rate of compensation should be based upon the 
 
         employee's customary earnings.  This agency has recognized and 
 
         followed that concept in cases where the rate was determined 
 
         under Code section 85.36(6) by excluding weeks which were not 
 
         representative of typical or customary earnings.  Lewis v. Aalf's 
 
         Manufacturing Co., I Iowa Industrial Commissioner Report, 206, 
 
         207 (App. Decn. 1980); Schotanus v. Command Hydraulics, Inc., I 
 
         Iowa Industrial Commissioner Report, 294, 298 (1981).
 
         
 
              It is well recognized that Code section 85.36(10) provides 
 
         an unrepresentative wage if it is applied to an employee who has 
 
         not been in the labor force for the full preceding 12 months.  
 
         Lawyer and Higgs, Iowa Workers' Compensation Law and Practice, 
 
         section 12-8.  The gross weekly earnings when computed under 
 
         those circumstances are obviously only a fraction of the 
 
         customary earnings.  Code section 85.36(7) provides a statutory 
 
         exception to the 13-week rule provided by section 85.36(6).  The 
 
         agency has ruled that where no evidence is presented with regard 
 
         to the hours of work the employee would have earned if the 
 
         employee had been employed for the full 13 calendar weeks 
 
         immediately preceding the injury, the proper method of computing 
 
         the gross weekly earnings is to simply divide the total earnings 
 
         by the number of weeks actually worked.  Barker v. City Wide 
 
         Cartage, I Iowa Industrial Commissioner Report, 12, 15 (App. 
 
         Decn. 1980).
 
         
 
              The Iowa Supreme Court has consistently held that the 
 
         workers' compensation law be construed liberally to benefit the 
 
         injured employee and that its beneficient intent should not be 
 
         defeated by reading something into the statute which is not there 
 
         or by a narrow and strained construction.  Caterpillar Tractor 
 
         Co. v. Shook, 313 N.W.2d 503, 506 (Iowa 1981); Cedar Rapids 
 
         Community Sch. v. Cady, 278 N.W.2d 298, 299 (Iowa 1979); Disbrow 
 
         v. Deering Imp. Co., 233 Iowa 380, 392, 9 N.W.2d 378, 384 (1943).  
 
         Any construction of section 85.36 which provides a result that is 
 
         inconsistent with the stated intent, namely of basing the rate of 
 
         compensation upon customary earnings, is at an irreconcilable 
 
         conflict with the directives expressed by the Supreme Court.  The 
 
         undersigned is unable to come up with any rational explanation 
 
         with regard to why a part-time employee who has recently entered 
 
         the work force should have the rate of compensation be based upon 
 
         only a fraction of the customary earnings while a full-time 
 
         employee who has recently entered the work force is compensated 
 
         based upon the entire customary earnings.  It could be urged that 
 
         the beneficient purpose of the workers' compensation statutes 
 
         would be served by applying whichever subsection of section 85.36 
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         that provided the highest rate of compensation.  Such would also, 
 
         under some circumstances, however, provide a rate which would be 
 
         greatly in excess of a rate that would be based upon the 
 
         customary earnings.  The undersigned concludes that the rate of 
 
         compensation should be based upon the employee's customary 
 
         earnings as is stated in the first unnumbered paragraph of Code 
 
         section 85.36. When the computation under one of the 
 
         subparagraphs of 85.36 is obviously in conflict with that stated 
 
         intent, some alteration must be made.  In this case, where the 
 
         employee was not in the work force for the full preceding 12 
 
         months, and the occupation was not a seasonal occupation, the 
 
         customary earnings should be determined by dividing the total 
 
         earnings of the employee by the number of weeks that the employee 
 
         had worked prior to the injury. This method of computation is 
 
         consistent with the agency precedent established in Barker v. 
 
         City Wide Cartage, I Iowa Industrial Commissioner Report, 12, 15 
 
         (App. Decn. 1980).
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              In order to determine the rate of compensation, the date of 
 
         injury must be established.  The prehearing report contains a 
 
         stipulation of the parties that the injury occurred on December 
 
         31, 1985.  The date is consistent with the date when claimant 
 
         first sought treatment for the injury, although it is not 
 
         entirely consistent with the means of determining the injury date 
 
         for cumulative trauma injuries in accordance with McKeever Custom 
 
         Cabinets v. Smith, 379 N.W.2d 368 (Iowa 1985).  Under the 
 
         cumulative trauma rule, the date of injury would be February 18, 
 
         1986 when Dr. Breitenbach took claimant off work for a week. 
 
         McKeever sets the latest possible date of injury under the 
 
         discovery rule by holding a person to recognize the seriousness 
 
         of their condition at the time that the condition causes them to 
 
         be disabled from work.  It does not prohibit an earlier injury 
 
         date from being established in appropriate cases.  In view of the 
 
         facts and circumstances of this case and the stipulation made by 
 
         the parties, that earlier date of December 31, 1985 will be used.
 
         
 
              Exhibits A and I show claimant to have earned $1,677.94 in 
 
         regular earnings plus $49.00 in cash for a total of $1,726.94. 
 
         Claimant had testified that she commenced employment on August 8, 
 
         1985 and no contrary evidence appears in the record.  The 
 
         earnings for the first week which ended August 11, 1985 were less 
 
         than the typical earnings of the following weeks indicating a 
 
         short week. Accordingly, 20 4/7 weeks is determined to be the 
 
         period of time in which claimant worked prior to her injury.  
 
         When divided by 20.571, the result is $83.95 per week.  Such is 
 
         found to be fairly representative of the claimant's customary 
 
         weekly earnings.  It was stipulated that claimant was married and 
 
         entitled to six exemptions.  When $84 per week is applied under 
 
         the July 1, 1985 benefit schedule, the result is $77.93 per week 
 
         as the rate of compensation.  For purposes of comparison, if an 
 
         injury of February 18, 1986 were used, the rate would be $69.71 
 
         per week.  It should be noted that the rate of compensation 
 
         applies not only to healing period, but also to permanent partial 
 
         disability, despite the fact that permanent disability impacts 
 
         upon the employee's ability to work in full-time employment as 
 
         well as part-time employment.
 
         
 
              Claimant's earnings from babysitting, or lack thereof, are 
 
         immaterial since such are not earnings from employment for an 
 
         employer.  Winters v. Te Slaa, I Iowa Industrial Commissioner 
 
         Report, 367 (App. Decn. 1981); Code section 85.61(2).  Further, 
 
         the evidence with regard to any such alleged injuries is too 
 
         uncertain to be relied upon since no such earnings were reported 
 
         on claimant's income tax return.  Her testimony of having such 
 
         earnings is rebutted by the statements made, under penalty of 
 
         law, in her tax returns.
 
         
 
              The next issue to be determined is healing period 
 
         entitlement.  Dr. Breitenbach took claimant off work for one week 
 
         commencing February 19, 1986.  Claimant is accordingly entitled 
 
         to recover healing period for that week.  She is also entitled to 
 
         recover healing period for the span of March 16, 1986 through May 
 
         22, 1986, a span of nine and five-sevenths weeks.  The total 
 
         healing period is therefore ten and five-sevenths weeks.   The 
 
         healing period is based upon the one week she was off work as 
 
         directed by Dr. Breitenbach, the cessation of work on March 15, 
 
         1986, Dr. Breitenbach's statement that she was disabled from 
 
         February 18, 1986 as shown in claimant's exhibit 8A and Dr. 
 
         DeBartolo's release on May 22, 1986.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              When claimant was released to resume work in May, 1986, it 
 
         was not reasonably certain whether she would have permanent 
 
         impairment.  Compensation for permanent partial disability is due 
 
         and payable commencing at the end of her healing period.  Teel v. 
 
         McCord, 394 N.W.2d 405 (Iowa 1986).  It should be noted that this 
 
         date establishes liability for interest since interest is merely 
 
         an allowance for the time value of money.  It is not an 
 
         indication of any wrongdoing or misconduct.  The impairment 
 
         rating arrived at by Dr. DeBartolo is somewhat higher than 
 
         ratings which are typically seen in workers' compensation cases 
 
         where the claimant's complaints are similar to those made in this 
 
         case.  The ratings made by Dr. Wirtz are typical for ratings 
 
         commonly given by the employer-chosen independent examining 
 
         physician, but are lower than the ratings typically given by 
 
         treating physicians.  The treating physician is generally more 
 
         knowledgeable about the employee's actual condition and symptoms.  
 
         Accordingly, greater weight is given to Dr. DeBartolo's rating 
 
         than is to the rating from Dr. Wirtz.  However, neither is 
 
         entirely accepted.  Claimant is determined to have a ten percent 
 
         impairment of function of each hand.  Such is equivalent to a 
 
         nine percent impairment of each upper extremity which in turn is 
 
         equivalent to a five percent impairment of the whole person.  
 
         When the impairments from each upper extremity are combined, the 
 
         result is a ten percent impairment of the whole person which 
 
         entitles claimant to receive 50 weeks of compensation under the 
 
         provisions of Code section 85.34(2)(s).
 
         
 
              Code section 86.13, unnumbered paragraph 4, provides that 
 
         the industrial commissioner "shall" award additional benefits 
 
         where commencement of benefits is delayed without probable cause 
 
         or excuse.  Dr. DeBartolo rated claimant in March, 1987.  It was 
 
         not unreasonable for defendants to seek a second opinion.  The 
 
         span of from March until June, when claimant was seen by Dr. 
 
         Wirtz, approaches the limits of a reasonable time.  Dr. Wirtz's 
 
         report was issued on July 27, 1987.  No benefits were paid as a 
 
         result of that report until December, 1987.  The lengthy delay is 
 
         determined to have been unreasonable.  At a minimum, defendant 
 
         employer and insurance carrier should have paid at least ten 
 
         weeks of compensation for permanent partial disability, in accord 
 
         with Dr. Wirtz's rating.  They also should have paid the one week 
 
         of compensation for when claimant was off work commencing 
 
         February 19, 1986.  Such payments should have been paid well I 
 
         prior to December, 1987.   Accordingly, it is determined that the 
 
         failure to pay at least those eleven weeks prior to December of 
 
         1987 was an unreasonable delay.  Accordingly, a penalty in the 
 
         amount of $400, an amount slightly less than 50% of the amount 
 
         which was unreasonable delayed, is awarded.
 
         
 
              Claimant seeks compensation from the Second Injury Fund.  
 
         The evidence from Dr. Wirtz and the deposition of Dr. Hoover fail 
 
         to establish that the right elbow epicondylitis was a permanent 
 
         condition or that it provided permanent disability.  The report 
 
         from Dr. Hoover issued July 27, 1982 clearly expresses that the 
 
         rating is based upon subjective symptoms rather than actual 
 
         functional impairment.  Claimant's own testimony negates the 
 
         existence of any substantial or identifiable permanent impairment 
 
         or permanent disability in her right arm prior to the bilateral 
 
         carpal tunnel injuries.  Accordingly, claimant is not entitled to 
 
         receive any benefits from the Second Injury Fund of Iowa.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
                                 FINDINGS OF FACT
 
         
 
              1.  Claimant received an injury in the nature of bilateral 
 
         carpal tunnel syndrome on the stipulated date of December 31, 
 
         1985, which injury occurred as a result of her employment 
 
         activities as a dishwasher for Plaza Restaurant and Lounge.
 
         
 
              2.  Following the injury, claimant was medically incapable 
 
         of performing work in employment substantially similar to that 
 
         she performed at the time of injury from February 19, 1986 
 
         through February 25, 1986 and again from March 16, 1986 through 
 
         may 22, 1986, a total span of ten and five-sevenths weeks.
 
         
 
              3.  Claimant's work as a dishwasher was part-time, 
 
         nonseasonal work.
 
         
 
              4.  Claimant had been out of the work force for a 
 
         substantial amount of time prior to August 8, 1987 when she was 
 
         hired to work at Plaza Restaurant and Lounge.
 
         
 
              5.  During the 20 and 4/7 weeks that claimant worked at 
 
         Plaza Restaurant and Lounge prior to December 31, 1985, she 
 
         earned a total of $1,726.94 which provides gross average weekly 
 
         earnings of $83.95.
 
         
 
              6.  The sum of $83.95 per week is fairly representative of 
 
         the earnings which claimant would have earned had she worked the 
 
         customary hours for the full pay period in which she was injured, 
 
         as regularly required by her employer.
 
         
 
              7.  Claimant has a ten percent permanent partial impairment 
 
         of each hand as a result of the residuals of her carpal tunnel 
 
         syndrome.  The rating made by Dr. DeBartolo is more accurate than 
 
         the rating from Dr. Wirtz, but neither is totally accepted.
 
         
 
              8.  Defendants unreasonably delayed payment of weekly 
 
         compensation to claimant by waiting until December, 1987 to pay 
 
         compensation for any permanent partial disability and also by 
 
         failing to timely pay compensation for the one week of healing 
 
         period compensation which was due commencing February 19, 1986.
 
         
 
                                CONCLUSIONS OF LAW
 
         
 
              1.  This agency has jurisdiction of the subject matter of 
 
         this proceeding and its parties.
 
         
 
              2.  Where the rate of compensation for a part-time employee 
 
         is to be computed under the provisions of Code section 85.36(10), 
 
         but the employee has not been in the work force for the entire 
 
         preceding 12 months, and the work is not seasonal, the gross 
 
         weekly earnings upon which the compensation is to be based are 
 
         determined by dividing the total earnings by the number of weeks 
 
         actually worked prior to injury.  Claimant's gross weekly 
 
         earnings in this case are $83.95.  Her rate of compensation is 
 
         $77.93.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              3.  Claimant is entitled to receive ten and five-sevenths 
 
         weeks of compensation for healing period and 50 weeks of 
 
         compensation for permanent partial disability.
 
         
 
              4.  Claimant is awarded a penalty under the provisions of 
 
         Code section 86.13 in the sum of $400, representing an amount 
 
         slightly less than 50% of the amount that was unreasonably denied 
 
         or delayed.
 
         
 
              5.  Claimant is entitled to recover 50 weeks of compensation 
 
         for permanent partial disability under the provisions of Code 
 
         section 85.34(2)(s).
 
         
 
              6.  Claimant is entitled to receive 4 and 2/7 weeks of 
 
         compensation under the second paragraph of Code section 86.13.
 
         
 
              7.  Claimant is not entitled to recover any benefits from 
 
         the Second Injury Fund of Iowa.
 
         
 
                                      ORDER
 
         
 
              IT IS THEREFORE ORDERED that defendants pay claimant ten and 
 
         five-sevenths (10 5/7) weeks of compensation for healing period 
 
         at the rate of seventy-seven and 93/100 dollars ($77.93) per week 
 
         with one (1) week thereof payable commencing February 19, 1986 
 
         and with the remaining nine and five-sevenths (9 5/7) weeks 
 
         thereof payable commencing March 16, 1986.
 
         
 
              IT IS FURTHER ORDERED that defendants pay claimant fifty 
 
         (50) weeks of compensation for permanent partial disability at 
 
         the rate of seventy-seven and 93/100 dollars ($77.93) per week 
 
         payable commencing May 23, 1986.
 
         
 
              IT IS FURTHER ORDERED that defendants pay claimant four 
 
         hundred and 00/100 dollars ($400.00) under the fourth unnumbered 
 
         paragraph of Code section 86.13 for their unreasonable delay in 
 
         paying at least ten (10) weeks of compensation for permanent 
 
         partial disability and one (1) week of healing period payable 
 
         commencing February 19, 1986.
 
         
 
              IT IS FURTHER ORDERED that defendant employer and its 
 
         insurance carrier pay claimant four and two-sevenths (4 2/7) 
 
         weeks of compensation at the rate of seventy-seven and 93/100 
 
         dollars ($77.93) per week payable commencing May 23, 1986 under 
 
         the provisions of the second unnumbered paragraph of Code section 
 
         86.13.
 
         
 
              IT IS FURTHER ORDERED that defendants pay all past due 
 
         amounts in a lump sum together with interest at the rate of ten 
 
         percent (10%) per annum computed from the date each payment came 
 
         due, but with full credit for all amounts previously paid.
 
         
 
              IT IS FURTHER ORDERED that the costs of this action are 
 
         assessed against defendants Plaza Restaurant and Lounge and 
 
         Continental Western Insurance Company pursuant to Division of 
 
         Industrial Services Rule 343-4.33.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              IT IS FURTHER ORDERED that claimant take nothing from the 
 
         Second Injury Fund of Iowa.
 
         
 
              IT IS FURTHER ORDERED that defendants shall file Claim 
 
         Activity Reports as requested by this agency pursuant to Division 
 
         of Industrial Services Rule 343-3.1.
 
         
 
              Signed and filed this 27th day of February, 1989.
 
         
 
         
 
         
 
         
 
         
 
         
 
                                            MICHAEL G. TRIER
 
                                            DEPUTY INDUSTRIAL COMMISSIONER
 
         
 
         Copies To:
 
         
 
         Mr. Robert S. Kinsey III
 
         Attorney at Law
 
         214 North Adams
 
         P.O. Box 679
 
         Mason City, Iowa  50401
 
         
 
         Mr. Marvin E. Duckworth
 
         Attorney at Law
 
         Suite 111, Terrace Center
 
         2700 Grand Avenue
 
         Des Moines, Iowa  50312
 
         
 
         Mr. Craig Kelinson
 
         Assistant Attorney General
 
         Tort Claims Division
 
         Hoover State Office Building
 
         Des Moines, Iowa  50319
 
         
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
 
           
 
 
 
 
 
 
 
 
 
 
 
                                              3001, 3002, 3202,  4000,
 
                                              4002
 
                                              Filed February 27,  1989
 
                                              MICHAEL G. TRIER
 
           
 
                      BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
           
 
           
 
           BEVERLY J. FOSTER,
 
           
 
                Claimant,
 
           
 
           vs.
 
                                                     File No.  821588
 
           PLAZA RESTAURANT AND LOUNGE,
 
                                                  A R B I T R A T I 0 N
 
                Employer,
 
                                                     D E C I S I 0 N
 
           and
 
           
 
           CONTINENTAL WESTERN,
 
           
 
                Insurance Carrier,
 
           
 
           and
 
           
 
           SECOND INJURY FUND OF IOWA,
 
           
 
                Defendants.
 
           
 
           
 
           3001, 3002, 3202, 4000, 4002
 
           
 
                Where a part-time employee has been in the work force 
 
           less than 12 months preceding the date of injury, the rate of 
 
           compensation is to be computed under section 85.36(10), but 
 
           the gross weekly earnings are to be determined by dividing the 
 
           total earnings by the number of weeks the employee has been 
 
           employed, rather than by 50 weeks.
 
           
 
                Defendants ordered to pay 30 days of compensation where 
 
           the healing period ended, but the claimant did not return to 
 
           work and permanency benefits were not immediately commenced.
 
           
 
                A penalty of slightly less than 50% of the amount 
 
           unreasonably delayed was assessed where the claimant was not 
 
           paid for one week of healing period in February, 1986 and 
 
           where permanency benefits were not paid until more than eight 
 
           months after a rating was made by the treating physician and 
 
           more than four months after a rating was made by the 
 
           employer-selected independent examining physician.
 
           
 

 
           
 
 
 
 
 
 
 
 
 
 
 
           
 
 
         
 
 
 
 
 
 
 
 
 
 
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         THOMAS ALLAN ZOCH,                  File Nos. 821611 & 804579
 
              
 
              Claimant,                        A R B I T R A T I O N
 
         
 
         VS.                                      D E C I S I O N
 
         
 
         WILSON FOODS CORPORATION,                   F I L E D
 
         
 
              Employer,                             JAN 16 1990
 
              Self-Insured,
 
              Defendant.                    IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
                                   INTRODUCTION
 
         
 
              These are arbitration proceedings brought by Tommy Allan 
 
         Zoch, claimant, against Wilson Foods Corporation, self-insured 
 
         employer, defendant.  The cases were heard by the undersigned in 
 
         Storm Lake, Iowa on November 21, 1989.
 
         
 
              The record consists of the testimony of claimant.  The 
 
         record also consists of the testimony of Bill Jo Zoch, wife of 
 
         claimant. Finally, the record is comprised of joint exhibits 
 
         1-14.
 
         
 
                                   STIPULATIONS
 
         
 
              Prior to the hearing, the parties entered into a number of 
 
         stipulations.  The stipulations are as follows:
 
         
 
              1.  The existence of an employer-employee relationship 
 
         between claimant and employer at the time of the alleged 
 
         injuries;
 
         
 
              2.  That claimant sustained injuries on both September 16, 
 
         1985 and May 3, 1986 which arose out of and in the course of 
 
         employment with employer;
 
         
 
              3.  That the alleged injuries are a cause of temporary 
 
         disability during a period of recovery;
 
         
 
              4.  The extent of entitlement to weekly compensation for 
 
         temporary total disability or healing period, if defendant is 
 
         liable for the injury, is stipulated to be from September 17, 
 
         1985 to October 27, 1985 and from October 29, 1985 to November 
 
         24, 1985;
 
         
 
              5.  That the type of permanent disability, if the injury is 
 
         found to be a cause of permanent disability, is stipulated to be 
 
         an industrial disability to the body as a whole; with the 
 
         commencement date for permanent partial disability, in the event 
 
         such benefits are awarded, is stipulated to be the 25th day of 
 
         November, 1985;,
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              6.  In the event of an award of weekly benefits, the rate of 
 
         weekly compensation is stipulated to be $266.22 per week; and,
 
         
 
              7.  Defendant paid claimant 9.714 weeks of compensation at 
 
         the rate of $266.22 per week prior to hearing.
 
         
 
                                      ISSUE
 
         
 
              1.  Whether claimant is entitled to permanent partial 
 
         disability benefits.
 
         
 
                                 FACTS PRESENTED
 
         
 
              Claimant testified he is 35 years old, married and he has 
 
         two children.  Claimant indicated he commenced his employment 
 
         with defendant in 1975 and that he is currently employed there.
 
         
 
              The records establish claimant was scooping meat when he 
 
         experienced a pull in the left shoulder area.  Claimant sought 
 
         medical treatment on September 16, 1985.  He was initially 
 
         treated by Keith Garner, M.D.  Dr. Garner, in turn, referred 
 
         claimant to Thomas Ferlic, M.D.  Dr. Ferlic, on November 7, 1985, 
 
         diagnosed claimant's condition as:
 
         
 
              Sometimes degenerative disc disease of the cervical spine 
 
              will present his rhomboid tendinitis.  I see no evidence at 
 
              this point that this is what this gentlemans [sic] problem 
 
              is.  I feel that he has an isolated rhomboid 
 
              tendinitis,.much like seeing [sic] in the military brace 
 
              syndrome.  I suggested that he might use something over the 
 
              skin such as an analgesic balm of some sorts.  He is 
 
              reticent to have any more steroid injections.  I see no 
 
              evidence of disability on a permanent basis for this.  He 
 
              man [sic] return to work as he is able.  I see nothing that 
 
              should keep him from work at this point.
 
         
 
              Claimant also testified during direct examination that he 
 
         sustained a second injury to his left shoulder on May 3, 1986.  
 
         At that time, claimant stated he was tearing down pipes and a 
 
         wrench slipped from a nut.  Claimant indicated he hit the machine 
 
         with his back and left shoulder.  A report was made to claimant's 
 
         foreman.  However, claimant reported he did not require medical 
 
         treatment at the time.
 
         
 
              Claimant was later referred to Scott B. Neff, D.O., another 
 
         orthopedic specialist.  Dr. Neff, in his letter of November 2, 
 
         1987, wrote:
 
         
 
              Two previous EMG studies have been normal.
 
         
 
              Clinically, this patient has normal range of motion of his 
 
              neck.  His grip and upper extremity muscle tone seems to be 
 
              excellent.  He has a positive Roos sign for thoracic outlet 
 
              syndrome.  He certainly has a history compatible with 
 
              thoracic outlet syndrome.  He says when he turns his neck 
 
              away that makes the tingling in the left arm worse.  He has 
 
              muscle soreness in the upper back consistent with a scapular 
 
              syndrome or a rhomboid tendonitis or a cervical-thoracic 
 
              myofascial syndrome which ever [sic] name you prefer.
 

 
              
 
 
 
 
 
 
 
 
 
 
 
         
 
              I think evaluation by a thoracic surgeon is warranted to see 
 
              if he does have symptoms consistent with a thoracic outlet 
 
              syndrome.  I wonder if MRI study of his neck should be done 
 
              also to rule out an occult cervical disc.
 
         
 
              Certainly, he has excellent motion.  If he can be restricted 
 
              to use of the arm at and below shoulder height, he has not 
 
              [sic] impairment or disability.
 
         
 
              Claimant's medical records reveal he had an MRI of the 
 
         cervical spine on December 3, 1987.  The MRI was normal with no 
 
         evidence of a disc herniation.
 
         
 
              Per Dr. Neff's opinion, claimant was then referred to a 
 
         thoracic surgeon.  William H. Fleming, M.D., examined claimant. 
 
         Dr. Fleming opined:
 
         
 
              So far as thoracic outlet syndrome, he has full range of 
 
              motion of the left shoulder as compared to the right 
 
              shoulder and his Adson maneuver is negative.  He has a good 
 
              pulse throughout his full range of motion.  I do not detect 
 
              any nerve deficit in the left hand or arm, but he does say 
 
              that sleeping with the arm over his head makes the arm go to 
 
              sleep on either side.
 
         
 
              Dr. Garner, I feel confident that this is not a thoracic 
 
              outlet syndrome and that an operation to remove the first 
 
              rib would not help the man.  I have a lot less confidence 
 
              about what the actual problem is although I think it must be 
 
              muscular or fascial in origin with a possibility of some 
 
              skeletal component.  I would defer to your orthopedic 
 
              consultants for management of this problem.
 
         
 
              Additional medical records for claimant show that on May 11, 
 
         1989, claimant was examined by Pat Luse, D.C., B.S.  Dr. Luse 
 
         opined:
 
         
 
              On 5-6-89 an examination was performed on Tom Zoch and the 
 
         results are as follows:
 
         
 
              Neurological Examination
 
         
 
              - Reflex +2.
 
         
 
              - Grip strength normal.
 
         
 
              - Decreased sensation to Wartenburg pinwheel at left T4 
 
              rhomboid area..
 
              
 
              - Decreased sensation to pin prick at left T4 rhomboid area.
 
              
 
              - Decreased sensation to Wartenburg pinwheel to C6 & C8 
 
              dermatomes left arm.
 
              
 

 
              
 
 
 
 
 
 
 
 
 
 
 
              - Decreased sensation to pin prick C6 & C8 dermatomes left 
 
              arm.
 
         
 
              Orthopedic Examination
 
         
 
              - Cervical ROM - pain with left rotation and flexion.
 
              
 
              - Left shoulder snaps with movement.
 
              
 
              - Pain with palpation of left rhomboid.
 
              
 
              - Abduction of left arm for one minute caused paresthesia of 
 
              the left arm and hand.
 
              
 
              - Myospasm and trigger points left rhomboid and trapezius.
 
         
 
              Radiological Examination
 
         
 
              Radiology reports and Dr. Neff's notes indicated a small 
 
              bulge at C5-6 & C6-7.
 
         
 
              After hearing the history, reviewed the doctor's notes and 
 
              examining the patient, it is my opinion these injuries were 
 
              the result of the work injuries on 7-3-85 and 5-13-86.
 
         
 
              It is also my opinion given the length of time since the 
 
              injuries occurred and the treatments given to this patient, 
 
              this patient is at his MMI.  His impairment rating is 5% to 
 
              the whole man.  This evaluation was done using the Guides to 
 
              the Evaluation of Permanent Impaiment, [sic] Third Edition.
 
         
 
              It is my opinion Mr. Zoch should not do heavy, repetitive 
 
              lifting or work above his shoulders.
 
         
 
              If you have any further questions, please feel free to 
 
              contact me.
 
         
 
              During the hearing, claimant stated he last saw a medical 
 
         practitioner in May of 1989 when he was evaluated by Dr. Luse. 
 
         However, claimant testified he has pain when he is working.  His 
 
         hand becomes cold and numb and it is difficult to grasp objects 
 
         with his left hand.  Additionally, claimant testified he has pain 
 
         in his shoulder blade, down his arm and in back of his shoulder.
 
         
 
                                  APPLICABLE LAW
 
         
 
              Claimant has the burden of proving by a preponderance of the 
 
         evidence that he received injuries on September 16, 1985 and May 
 
         3, 1986, which arose out of and in the course of his employment. 
 
         McDowell v. Town of Clarksville, 241 N.W.2d 904 (Iowa 1976); 
 
         Musselman v. Central Telephone Co., 261 Iowa 352, 154 N.W.2d 128 
 
         (1967).
 
         
 
              An employee is entitled to compensation for any and all 
 
         personal injuries which arise out of and in the course of the 
 
         employment.  Section 85.3(1).
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              The injury must both arise out of and be in the course of 
 
         the employment.  Crowe v. DeSoto Consol. Sch. Dist., 246 Iowa 
 
         402, 68 N.W.2d 63 (1955) and cases cited at pp. 405-406 of the 
 
         Iowa Report.  See also Sister Mary Benedict v. St. Mary's Corp., 
 
         255 Iowa 847, 124 N.W.2d 548 (1963) and Hansen v. State of Iowa, 
 
         249 Iowa 1147, 91 N.W.2d 555 (1958).
 
         
 
              The words "out of" refer to the cause or source of the 
 
         injury.  Crowe, 246 Iowa 402, 68 N.W.2d 63 (1955).
 
         
 
              The words "in the course of" refer to the time and place 
 
         and. circumstances of the injury.  McClure v. Union et al. 
 
         Counties, 188 N.W.2d 283 (Iowa 1971); Crowe, 246 Iowa 402, 68 
 
         N.W.2d 63 (1955).
 
         
 
              "An injury occurs in the course of the employment when it is 
 
         within the period of employment at a place the employee may 
 
         reasonably be, and while he is doing his work or something 
 
         incidental to it."  Cedar Rapids Comm. Sch. Dist. v. Cady, 278 
 
         N.W.2d 298 (Iowa 1979), McClure, 188 N.W.2d 283 (Iowa 1971); 
 
         Musselman, 261 Iowa 352, 154 N.W.2d 128 (1967).
 
         
 
              The opinions of experts need not be couched in definite, 
 
         positive or unequivocal language.  Sondag v. Ferris Hardware, 220 
 
         N.W.2d 903 (Iowa 1974).  An opinion of an expert based upon an 
 
         incomplete history is not binding upon the commissioner, but must 
 
         be weighed together with the other disclosed facts and 
 
         circumstances.  Bodish, 257 Iowa 516, 133 N.W.2d 867 (1965).  The 
 
         expert medical evidence must be considered with all other 
 
         evidence introduced bearing on the causal connection between the 
 
         injury and the disability.  Burt, 247 Iowa 691, 73 N.W.2d 732 
 
         (1955).  In regard to medical testimony, the commissioner is 
 
         required to state the reasons on which testimony is accepted or 
 
         rejected.  Sondag, 220 N.W.2d 903 (1974).
 
         
 
              The claimant has the burden of proving by a preponderance of 
 
         the evidence that the injuries of September 16, 1985 and May 3, 
 
         1986 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. 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, 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, 261 Iowa 352, 154 N.W.2d 128 (1967).
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              An injury is the producing cause; the disability, however, 
 
         is the result, and it is the result which is compensated.  Barton 
 
         v. Nevada Poultry Co., 253 Iowa 285, 110 N.W.2d 660 (1961); 
 
         Dailey v. Pooley Lumber Co., 233 Iowa 758, 10 N.W.2d 569 (1943).
 
         
 
              If a claimant contends he has industrial disability he has 
 
         the burden of proving his injury results in an ailment extending 
 
         beyond the scheduled loss.  Kellogg v. Shute and Lewis Coal Co., 
 
         256 Iowa 1257, 130 N.W.2d 667 (1964).
 
         
 
              Functional impairment is an element to be considered in 
 
         determining industrial disability which is the reduction of 
 
         earning capacity, but consideration must also be given to the 
 
         injured employee's age, education, qualifications, experience and 
 
         inability to engage in employment for which he is fitted.  Olson 
 
         v. Goodyear Service Stores, 255 Iowa 1112, 125 N.W.2d 251 (1963). 
 
         Barton v. Nevada Poultry, 253 Iowa 285, 110 N.W.2d 660 (1961).
 
         
 
              A finding of impairment to the body as a whole found by a 
 
         medical evaluator does not equate to industrial disability.  This 
 
         is so as impairment and disability are not synonymous.  Degree of 
 
         industrial disability can in fact be much different than the 
 
         degree of impairment because in the first instance reference is 
 
         to loss of earning capacity and in the latter to anatomical or 
 
         functional abnormality or loss.  Although loss of function is to 
 
         be considered and disability can rarely be found without it, it 
 
         is not so that a degree of industrial disability is 
 
         proportionally related to a degree of impairment of bodily 
 
         function.
 
         
 
              Factors to be considered in determining industrial 
 
         disability include the employee's medical condition prior to the 
 
         injury, immediately after the injury, and presently; the situs of 
 
         the injury, its severity and the length of healing period; the 
 
         work experience of the employee prior to the injury, after the 
 
         injury and potential for rehabilitation; the employee's 
 
         qualifications intellectually, emotionally and physically; 
 
         earnings prior and subsequent to the injury; age; education; 
 
         motivation; functional impairment as a result of the injury; and 
 
         inability because of the injury to engage in employment for which 
 
         the employee is fitted. Loss of earnings caused by a job transfer 
 
         for reasons related to the injury is also relevant.  These are 
 
         matters which the finder of fact considers collectively in 
 
         arriving at the determination of the degree of industrial 
 
         disability.
 
         
 
              There are no weighting guidelines that indicate how each of 
 
         the factors are to be considered.  There are no guidelines which 
 
         give, for example, age a weighted value of ten percent of the 
 
         total value, education a value of fifteen percent of total, 
 
         motivation - five percent; work experience - thirty percent, etc. 
 
         Neither does a rating of functional impairment directly correlate 
 
         to a degree of industrial disability to the body as a whole.  In 
 
         other words, there are no formulae which can be applied and then 
 
         added up to determine the degree of industrial disability.  It 
 
         therefore becomes necessary for the deputy or commissioner to 
 
         draw upon prior experience, general and specialized knowledge to 
 
         make the finding with regard to degree of industrial disability.  
 
         See Peterson v. Truck Haven Cafe, Inc., (Appeal Decision, 
 
         February 28, 1985); Christensen v. Hagen, Inc., (Appeal Decision, 
 
         March 26, 1985).
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              For example, a defendant employer's refusal to give any sort 
 
         of work to a claimant after he suffers his affliction may justify 
 
         an award of disability.  McSpadden v. Big Ben Coal Co., 288 
 
         N.W.2d. 181 (Iowa 1980).
 
         
 
              Similarly, a claimant's inability to  find other suitable 
 
         work after making bona fide efforts to find such work may 
 
         indicate that relief would be granted.  McSpadden, 388 N.W.2d 181 
 
         (Iowa 1980).
 
         
 
                                     ANALYSIS
 
         
 
              The sole issue to address here is whether claimant is 
 
         entitled to any permanent partial disability benefits, and if so, 
 
         the amount to which claimant is entitled.  There are few 
 
         objective findings which would support any permanency.  Glenn 
 
         VanRoekel, M.D., a radiologist, determined claimant had a normal 
 
         radiological report.  Claimant's later MRI was also normal.  Dr. 
 
         Luse found a functional.impairment.  He was not a treating 
 
         physician.  Dr., Luse only performed a chiropractic examination 
 
         for purposes of evaluation.  He saw claimant on one occasion.  
 
         Dr. Ferlic found no evidence of a permanent functional 
 
         impairment.  Dr. Fleming could find no indication of thoracic 
 
         outlet syndrome, although he did acknowledge there was a problem 
 
         of some sort.
 
         
 
              On the other hand, Dr. Neff found good range of motion but 
 
         he did place claimant under restrictions.  Dr. Neff opined, "If 
 
         he can be restricted to use of the arm at and below shoulder 
 
         height, he has not [sic] impairment or disability."
 
         
 
              One month later, Dr. Neff opined there was:  "[A] small 
 
         posterior bulge at the C5-6 level."  He opined:  "Because there 
 
         are no specific abnormalities peripherally, I don't see any. 
 
         reason for an orthopaedic surgical procedure at this time."
 
         
 
              Claimant's current condition involves changes in the 
 
         temperature of his left hand.  Claimant has been able to return 
 
         to work, although he has returned to a different position.  There 
 
         is no evidence claimant has been refused employment at 
 
         defendant's business because of his injury and because of his 
 
         restrictions. There is no evidence claimant has sustained a loss 
 
         of earnings at defendant's establishment with respect to the 
 
         family business. Claimant has failed to prove he sustained a loss 
 
         of earnings and a loss of earning capacity attributable.to 
 
         claimant's injury.  While the family business has switched from 
 
         wood cutting to wedding flowers, the undersigned is not convinced 
 
         any economic loss is due to claimant's work injuries.  It appears 
 
         the loss of income is attributable to other factors.
 
         
 
              Therefore, in light of the foregoing, it is the 
 
         determination of the undersigned that claimant has a total 
 
         permanent partial disability of 4 percent.  Two percent of the 
 
         disability is attributable to the injury of September 16, 1985 
 
         and two percent of the disability is allocated to the injury of 
 
         May 3, 1986.  This finding of a four percent disability is based 
 
         upon 1) the aforementioned considerations; 2) based upon the 
 
         restrictions imposed on claimant; 3) based upon personal 
 
         observation of claimant; 4) based upon claimant's testimony at 
 
         the hearing; and, 5) based upon agency expertise (Iowa 
 
         Administrative Procedures Act 17A.14(s).
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
                     FINDINGS OF FACT AND CONCLUSIONS OF LAW
 
         
 
              WHEREFORE, based on the evidence presented and the 
 
         principles of law previously stated, the following findings of 
 
         fact and conclusions of law are made:
 
         
 
              Finding 1.  Claimant sustained work injuries to his left 
 
         shoulder on September 16, 1985 and May 3, 1986.
 
         
 
              Finding 2.  As a result of the work injuries on September 
 
         16, 1985 and May 3, 1986, claimant was placed under permanent 
 
         restrictions.
 
         
 
              Finding 3.  Claimant was off work due to his injury of 
 
         September 16, 1985 from September 17, 1985 to October 27, 1985 
 
         and from October 29, 1985 to November 24, 1985, a period of 9.714 
 
         weeks.
 
         
 
              Finding 4.  Claimant was able to return to work at 
 
         defendant's establishment with medical restrictions.
 
         
 
              Conclusion A.  Claimant has met his burden of proving he is 
 
         entitled to 9.714 weeks of healing period benefits due to his 
 
         work injury of September 16, 1985.
 
         
 
              Conclusion B.  Claimant has met his burden of proving he has 
 
         a two percent permanent partial disability as a result of his 
 
         injury of September 16, 1985.
 
         
 
              Conclusion C.  Claimant has met his burden of proving he has 
 
         a two percent permanent partial disability as a result of his 
 
         work injury on May 3, 1986.
 
         
 
                                      ORDER
 
         
 
              THEREFORE, defendant is to pay unto claimant ten (10) weeks 
 
         of permanent partial disability benefits due to the work injury 
 
         of September 16, 1985 at the stipulated rate of two hundred 
 
         sixty-six and 22/100 dollars ($266.22) per week.
 
         
 
              Defendant is to also pay unto claimant ten (10) weeks of 
 
         permanent partial disability benefits due to the work injury of 
 
         May 3, 1986 at the stipulated rate of two hundred sixty-six and 
 
         22/100 dollars ($266.22) per week.
 
         
 
              Defendant is to also pay unto claimant nine point 
 
         seven-one-four (9.714) weeks of healing period benefits at the 
 
         rate of two hundred sixty-six and 22/100 dollars ($266.22) per 
 
         week as a result of the work injury on September 16, 1985
 
         
 
              Payments that have accrued shall be paid in a lump sum 
 
         together with statutory interest thereon pursuant to Iowa Code 
 
         section 85.30.
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
              Defendant is to be given credit for all benefits previously 
 
         paid to claimant.
 
         
 
              Costs of the action are assessed against defendant pursuant 
 
         to Division of Industrial Services Rule 343-4.33.
 
         
 
              Defendant shall file a claim activity report upon payment of 
 
         this award.
 
         
 
         
 
              Signed and filed this 16th day of January, 1990.
 
         
 
         
 
         
 
         
 
         
 
                                            MICHELLE A. McGOVERN
 
                                            DEPUTY INDUSTRIAL COMMISSIONER
 
         
 
         Copies To:
 
         
 
         Mr. Harry H. Smith
 
         Attorney at Law
 
         632-640 Badgerow Bldg
 
         P 0 Box 1194
 
         Sioux City, IA  51102
 
         
 
         Mr. David L. Sayre
 
         Attorney at Law
 
         223 Pine St.
 
         Cherokee, IA  51012
 
         
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
 
         
 
 
 
 
 
 
 
 
 
 
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
                                        
 
         
 
         DENNIS E. WATERS,
 
         
 
              Claimant,
 
                                           File No. 821618
 
         VS.
 
                                         A R B I T R A T I 0 N
 
         
 
         DOUG URIE CONSTRUCTION CO.,
 
                                         D E C I S I 0 N
 
         
 
              Employer,
 
              Uninsured,
 
              Defendant.
 
         
 
         
 
                                   INTRODUCTION
 
         
 
              This is a proceeding brought by Dennis E. Waters against 
 
         Doug Urie Construction Company seeking temporary total disability 
 
         compensation and section 85.27 benefits.
 
         
 
              The agency file contains proof of service of the original 
 
         notice and petition filed in this proceeding by certified mail 
 
         upon Doug Urie Construction Company at Craig, Colorado.  The date 
 
         of mailing is shown as may 13, 1986 and the receipt was signed 
 
         May 19, 1986.  The proof of service also shows service of the 
 
         original notice and petition on the employer having been made by 
 
         certified mail which was received on May 14, 1986 at the Super 8 
 
         Motel at Council Bluffs, Iowa.  On June 4, 1986, a letter was 
 
         received by this agency which purports to bear the signature of 
 
         Douglas Urie and which denies employing Dennis Waters at any 
 
         time.  The address shown for Doug Urie Construction on that 
 
         letter is 1602 16th Avenue, Council Bluffs, Iowa.  Thereafter, 
 
         mailings from this agency to Doug Urie Construction Company at 
 
         1602 16th Avenue, Council Bluffs, Iowa and also at Box 702, 
 
         Craig, Colorado were returned marked "unclaimed."  On June 8, 
 
         1988, the employer was ordered to provide this agency with a 
 
         current address and telephone number.  The notation on the order 
 
         indicates that it was sent to Doug Urie Construction Company by 
 
         regular and certified mail.  On July 18, 1988, the record was 
 
         closed to further evidence or activity by the employer and a copy 
 
         of that order was mailed by certified and regular mail to the 
 
         employer.  The file contains a notice of taking deposition 
 
         directed to the employer.  It is therefore determined that the 
 
         employer, Doug Urie Construction Company, was given due, timely 
 
         and legal notice of this proceeding.
 
         
 
              The record in this proceeding consists of claimant's exhibit 
 
         1, a statement in the amount of $90.00 for services performed by 
 
         Bernard L. Kratochvil, M.D., and claimant's exhibit 2, the 
 
         deposition of the claimant taken November 17, 1988.
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
         
 
         WATERS V. DOUG URIE CONSTRUCTION CO.
 
         Page 2
 
         
 
         
 
                               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.
 
         
 
              Through his deposition, Dennis E. Waters, who is apparently 
 
         a convicted felon since he is confined at the Iowa State Men's 
 
         Reformatory in Anamosa, Iowa, testified that he was hired by Doug 
 
         Urie on April. 25, 1986 at the Super 8 Motel construction site in 
 
         Council Bluffs, Iowa.  Claimant testified that, while working on 
 
         April 27, 1986, he tripped and dropped an air conditioning unit 
 
         which he was carrying and that the unit fell on his ankle causing 
 
         the onset of pain.  Claimant testified that Doug Urie assisted 
 
         him in leaving the work site and, on the following day, took him 
 
         to the office of Dr. Kratochvil.  Claimant stated that x-rays 
 
         were taken, he was told that he had a chipped bone in his ankle, 
 
         and a temporary cast was placed on his ankle.
 
         
 
              Waters testified that he continued to see Dr. Kratochvil for 
 
         return visits every week for approximately three months, that he 
 
         achieved maximum recovery approximately six months after the 
 
         injury and that he was unable to walk for a period of time 
 
         following the injury.  Waters stated that he has recovered 
 
         completely and makes no claim for permanent disability.
 
         
 
              Waters testified that he was to be paid $7.00 per hour under 
 
         his arrangement with Doug Urie, but that in view of the injury 
 
         and its treatment, he was never actually paid.  Waters stated 
 
         that, whenever he or his attorney attempted to contact Urie 
 
         following the accident, Urie simply failed to respond.
 
         
 
              Exhibit 1 shows charges for an orthopaedic evaluation and 
 
         x-rays of claimant's ankle totalling $90.00 for services 
 
         performed on April 28, 1986.
 
         
 
                           APPLICABLE LAW AND ANALYSIS
 
         
 
              Claimant has the burden of proving by a preponderance of the 
 
         evidence that he received an injury on April 26, 1986 which arose 
 
         out of and in the course of his employment.  McDowell v. Town of 
 
         Clarksville, 241 N.W.2d 904 (Iowa 1976); Musselman v. Central 
 
         Telephone Co., 261 Iowa 352, 154 N.W.2d 128 (1967).
 
         
 
              No witnesses were called to corroborate claimant's testimony 
 
         of the injurious incident.  His apparent status as a convicted 
 
         felon certainly impairs his credibility.  Claimant's testimony, 
 
         however, that Urie ignored his requests is certainly consistent 
 
         with the response Urie made to the requests and directives from 
 
         this agency.  In view of the same, it is determined that
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
         
 
         
 
         WATERS V. DOUG URIE CONSTRUCTION CO.
 
         Page 3
 
         
 
         
 
         Waters' testimony regarding the injurious incident that occurred 
 
         on April 27, 1986 is correct.  It is therefore determined that 
 
         Dennis E. Waters did sustain an injury which arose out of and in 
 
         the course of his employment with Doug Urie Construction Company 
 
         at Council Bluffs, Iowa on April 27, 1986.
 
         
 
              Claimant seeks compensation for temporary total disability.  
 
         Under Iowa Code section 85.33, compensation is payable until the 
 
         claimant either returns to work or is medically capable of 
 
         returning to employment substantially similar to that in which he 
 
         was engaged at the time of injury.  Claimant testified that he 
 
         continued to see Dr. Kratochvil weekly for three months, but did 
 
         not return to work for six months following the injury.  It is 
 
         recognized that these dates are imprecise.  When considering the 
 
         nature of the injury, it would seem that three months would be an 
 
         appropriate amount of recuperation time for most fractures when 
 
         agency expertise and experience is applied.  Six months would be 
 
         an exceedingly long amount of time.  Claimant did not submit 
 
         copies of any records from his physicians to clarify his 
 
         recovery.  Accordingly, claimant will be allowed 12 weeks of 
 
         compensation for temporary total disability.
 
         
 
              The fees charged by Dr. Kratochvil as shown in exhibit I are 
 
         within the range of fees commonly charged for similar services in 
 
         the Council Bluffs, Iowa area, as determined by agency 
 
         experience.  It is determined that the fees are fair and 
 
         reasonable and were incurred in providing reasonable services to 
 
         the claimant which were necessitated as a result of the injury to 
 
         claimant's ankle which arose out of and in the course of his 
 
         employment with Doug Urie Construction Company.
 
         
 
              The only remaining issue is claimant's rate of compensation.  
 
         There was no evidence regarding the number of hours per day that 
 
         claimant worked.  Forty hours per week is a norm for full-time 
 
         employment.  According to claimant's deposition, he is married 
 
         and has three children which would entitle him to five 
 
         exemptions.  Therefore, based upon $280.00 per week gross income 
 
         and five exemptions, the rate of compensation would be $188.67 
 
         per week.
 
         
 
                                 FINDINGS OF FACT
 
         
 
              1. Doug Urie Construction Company was served by certified 
 
         mail with original notice and petition of this action on May 13, 
 
         1986 and thereafter filed an answer with this agency in the form 
 
         of a letter which denied having an employer-employee relationship 
 
         with Dennis Waters.
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
              2. Dennis E. Waters was in fact hired by Doug Urie at the 
 
         Super 8 Motel construction site in Council Bluffs, Iowa on April 
 
         25, 1986.
 
         
 
              3. Waters fractured a bone in his ankle when he dropped an 
 
         air conditioning unit on it on April 27, 1986 while performing
 
         
 
         
 
         
 
         WATERS V. DOUG URIE CONSTRUCTION CO.
 
         Page 4
 
         
 
         
 
         services for Doug Urie Construction Company at the Super 8 Motel 
 
         site in Council Bluffs, Iowa.
 
         
 
              4. Waters received reasonable medical treatment from Bernard 
 
         Kratochvil, M.D., for which services fair and reasonable charges 
 
         in the amount of $90.00 were made.
 
         
 
              5. After recuperating for 12 weeks following the injury, 
 
         claimant was medically capable of returning to employment 
 
         substantially similar to that in which he engaged at the time of 
 
         injury.
 
         
 
              6. Claimant was to have been paid $7.00 per hour for his 
 
         services with Doug Urie Construction Company and would have 
 
         worked a normal 40-hour week if he had not been injured.
 
         
 
                                CONCLUSIONS OF LAW
 
                                        
 
              1. This agency has jurisdiction of the subject matter of 
 
         this proceeding and its parties.
 
         
 
              2. Dennis E. Waters sustained an injury on April 27, 1986 at 
 
         Council Bluffs, Iowa which arose out of and in the course of his 
 
         employment with Doug Urie Construction Company.
 
         
 
              3. Claimant is entitled to recover 12 weeks of compensation 
 
         for temporary total disability payable commencing April 28,
 
         1986.
 
              4. The employer is responsible for payment of claimant's 
 
         medical expenses with Dr. Kratochvil in the amount of $90.00.
 
         
 
              5. Claimant's rate of compensation is $188.67 per week.
 
         
 
                                      ORDER
 
         
 
              IT IS THEREFORE ORDERED that Doug Urie Construction Company 
 
         pay Dennis E. Waters twelve (12) weeks of compensation for 
 
         temporary total disability at the rate of one hundred 
 
         eighty-eight and 67/100 dollars ($188.67) per week payable 
 
         commencing April 28, 1986.
 
         
 
              IT IS FURTHER ORDERED that Doug Urie Construction Company 
 
         pay Bernard L. Kratochvil, M.D., ninety and 00/100 dollars 
 
         ($90.00) for services rendered to Dennis E. Waters under the 
 
         provisions of Iowa Code section 85.27.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              IT IS FURTHER ORDERED that Doug Urie Construction Company 
 
         pay the costs of this action pursuant to Division of Industrial 
 
         Services Rule 343-4.33.
 
         
 
         
 
         
 
         WATERS V. DOUG URIE CONSTRUCTION CO.
 
         Page 5
 
         
 
         
 
              IT IS FURTHER ORDERED that Doug Urie Construction Company 
 
         file a first report of injury in accordance with Iowa Code 
 
         section 86.11 not later than July 25, 1989.
 
         
 
              IT IS FURTHER ORDERED that Doug Urie Construction Company 
 
         file claim activity reports as requested by this agency pursuant 
 
         to Division of Industrial Service Rule 343-3.1.
 
         
 
              Signed and filed this 30th day of June, 1989.
 
         
 
         
 
         
 
         
 
                                         MICHAEL G. TRIER
 
                                         DEPUTY INDUSTRIAL COMMISSIONER
 
         
 
         
 
         
 
         Copies To:
 
         
 
         Mr. Kenneth Sacks
 
         Attorney at Law
 
         215 South Main Street
 
         Council Bluffs, Iowa 51502
 
         
 
         Doug Urie Construction Company
 
         Box 702
 
         Craig, Colorado 81625
 
         REGULAR AND CERTIFIED MAIL
 
         
 
         Doug Urie Construction Company
 
         1602 16th Avenue
 
         Council Bluffs, Iowa 51501
 
         REGULAR AND CERTIFIED MAIL
 
         
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
 
         
 
 
 
 
 
 
 
 
 
 
 
                                         51402.10, 51402.20, 51402.30
 
                                         51402.40, 51801, 52300
 
                                         Filed June 30, 1989
 
                                         MICHAEL G. TRIER
 
         
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         DENNIS E. WATERS,
 
         
 
              Claimant,
 
                                         File No.  821618
 
         VS.
 
                                         A R B I T R A T I 0 N 
 
         DOUG URIE CONSTRUCTION CO.,
 
                                         D E C I S I 0 N
 
              Employer,
 
              Uninsured,
 
              Defendant.
 
         
 
         
 
         52300
 
         
 
              Where the defendant employer appeared pro se by writing a 
 
         letter which denied the existence of an employer-employee 
 
         relationship, such was held sufficient to provide personal 
 
         jurisdiction over the employer.
 
         
 
         51402.10, 51402.20, 51402.30
 
         
 
              Claimant's testimony, although impaired by felony 
 
         conviction, was deemed sufficient to establish the fact of 
 
         employment and of injury arising out of and in the course of 
 
         employment.
 
         
 
         51402.40, 51801
 
         
 
              Claimant's testimony that it required six months to recover 
 
         from a fracture was rejected in light of other evidence in the 
 
         record wherein claimant had stated that he saw the physician 
 
         weekly for three months.  Agency expertise was relied upon to 
 
         conclude that three months would be adequate healing time for 
 
         most fractures.
 
         
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                            
 
                    BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         MARVIN COX,
 
         
 
              Claimant,                            File No. 821620
 
         
 
         VS.
 
                                               A R B I T R A T I 0 N
 
         JOHN MORRELL & COMPANY,
 
                                                  D E C I S I 0 N
 
              Employer,
 
              Self-Insured,
 
              Defendant.
 
         
 
         
 
         
 
         
 
                              STATEMENT OF THE CASE
 
         
 
              This is a proceeding brought by Marvin Cox, claimant, 
 
         against John Morrell & Company (Morrell), a self-insured 
 
         employer, for benefits under chapter 85B, Code of Iowa.  A 
 
         hearing was held in Storm Lake, Iowa, on February 3, 1987 and the 
 
         case was submitted on that date.
 
         
 
              The record consists of the testimony of claimant, Laura Cox, 
 
         and Harold Selberg; claimant's exhibits A through G; and 
 
         defendant's exhibit 1.  Both parties filed a brief.  The exhibit 
 
         list given to the hearing deputy at time of hearing reads as 
 
         follows:
 
         
 
              RE:  Marvin Cox vs. John Morrell & Company - File
 
              #821620
 
         
 
              Plaintiff's Exhibits:
 
         
 
              A.  Physical exam given workman for employment with John 
 
              Morrell & Company - employed 11-15-56.
 
         
 
              B.  Noise level survey conducted at the John Morrell plant 
 
              in Estherville by OSHA.
 
         
 
              C.  Noise level survey conducted at the John Morrell plant 
 
              in Estherville by John Morrell & Company.
 
         
 
              D.  Report of C. B. Carignan, M.D. dated 12-15-86.
 
         
 
              E.  Report of C. B. Carignan, M.D., P.C. dated 10-11-86.
 
         
 
              F.  Letter and hearing report dated 5-16-86 from R. David 
 
              Nelson, M.A., Audiologist.
 
         
 
              G.  Photograph of claimant.
 
         
 
              Defendant's Exhibits:
 
         
 
              Report of Daniel L. Jorgensen dated 10-22-86.
 
         
 

 
              (Deposition Exhibit included in Defendant's Exhibit 1.)
 
         
 
              1.  Deposition of Daniel L. Jorgensen, M.D. dated. 1-29-87.
 
         
 
              The parties stipulated that claimant's weekly rate of 
 
         compensation is $203.47 and that any weekly benefits awarded 
 
         would commence on April 27, 1985.
 
         
 
                                      ISSUES
 
         
 
              The contested issues are:
 
         
 
              1)  Whether this action is barred by Iowa Code section 85.23 
 
         because the employer herein was not given notice of, nor did this 
 
         employer have actual knowledge of, claimant's alleged 
 
         occupational hearing loss;
 
         
 
              2)  Whether this action is barred by Iowa Code section 85.26 
 
         because it was not timely filed;
 
         
 
              3)  Whether claimant sustained an occupational hearing loss 
 
         under chapter 85B, Code of Iowa; that is, whether claimant is 
 
         entitled to occupational hearing loss benefits under chapter 85B, 
 
         Code of Iowa;
 
         
 
              4)  Nature and extent of disability; that is, the number of 
 
         weeks of permanent partial disability benefits owing; and
 
         
 
              5)  Whether defendant shall pay the cost of a hearing aid or 
 
         aids pursuant to Iowa Code section 85B.12.
 
         
 
                             SUMMARY OF THE EVIDENCE
 
         
 
              Claimant testified that he is 55 years old and that he 
 
         entered the U.S. Navy in 1951.  At the time he entered the navy 
 
         he had no hearing problem.  He was discharged in 1955 and had no 
 
         hearing problem at the time.  He started work for Morrell in 
 
         December 1956 and was given a physical examination which 
 
         determined he had no hearing problem.  See exhibit A.  In 1956, 
 
         claimant initially worked on the loading dock at the pork plant.  
 
         He went to the "conversion room" after the loading dock; it was 
 
         noisy in this room where he worked from about 1974 through 1980 
 
         "boning out loins, hams, and picnics."  He also constructed 
 
         cardboard boxes for eighteen years at Morrell.
 
         
 
              In 1982 or 1983, hearing protection devices were furnished 
 
         by Morrell.  Claimant talked to a plant nurse about his hearing 
 
         loss at some point, but no hearing test was administered; he did 
 
         not talk with a foreman about his hearing loss.  In the 
 
         conversion room it was almost impossible to carry on a 
 
         conversation.
 
         
 
              Claimant testified that his wife mentioned his hearing loss 
 
         problem in the late 1970's.  Claimant had ringing in his ears 
 
         after working at Morrell and still has ringing in his ears; 
 
         however, he has not noticed a change in his hearing since the 
 
         plant closed in April 1985.  Dr. Jorgensen told claimant that he 
 
         needs a hearing aid.
 
         
 
              On cross-examination, claimant acknowledged that in the navy 
 
         he handed ammunition to another person while stationed on a 
 
         destroyer; he wore rubber earplugs at the time.  He stated that 
 
         the "conversion room" he last worked in at Morrell was about 
 
         one-half the size of the first "conversion room" he worked in at 
 
         morrell.
 

 
         
 
         
 
         
 
         COX V. JOHN MORRELL & COMPANY
 
         Page   3
 
         
 
         
 
         
 
              Claimant first noticed a hearing problem in the late 1970's. 
 
          His hearing stopped getting worse after he got out of the 
 
         Morrell plant, but it did not get better.
 
         
 
              Laura Cox testified that she has been married to claimant 
 
         for thirty-six years and that he had no hearing problem when he 
 
         started working for Morrell.  He also had no hearing problem when 
 
         he came home from the navy.   In the mid-1970's to the late 
 
         1970's, she noticed that claimant had a hearing problem.  He 
 
         would complain about ringing in his ears when he came home from 
 
         work.  His hearing has gotten a little worse between April 1985 
 
         and time of hearing.
 
         
 
              Harold Selberg testified that he worked for Morrell from 
 
         1958 until the plant closed in 1985.  He met claimant in 1958 and 
 
         claimant had no hearing problem at that time.  He worked with 
 
         claimant in the "conversion room." The noise in the conversion 
 
         room made it difficult to talk.
 
         
 
              Exhibit D, page 1 (dated December 15, 1986), is authored by
 
         C. B. Carignan, Jr., M.D., and reads in part:
 
         
 
              In view of the report and the history and examination of Mr. 
 
              Cox I feel that with reasonable medical certainty that Mr. 
 
              Cox's hearing impairment occurred as a result of his 
 
              continued exposure to high noise environment at his 
 
              workplace at the John Morrell packing plant at Estherville, 
 
              Iowa.
 
         
 
              Exhibit E, page 1 (dated October 11, 1986), is authored by 
 
              Dr. Carignan and reads in part:
 
         
 
              Employed by Morrell packing plant December of 1955.  
 
              Initially worked on loading dock for 18 years, states noise 
 
              level was not extreme at this job.  Then was moved to a job 
 
              in the conversion room and boning room where he worked with 
 
              and near very noisy saws cutting bone, etcetera.  No ear 
 
              protection was provided.  Noticed hearing loss and tinnitus 
 
              after working in this area of high noise environment.  He 
 
              denies any history of other noise exposure.  Does not hunt 
 
              or shoot guns, etc.. Denies any ear trauma or infection.  No 
 
              other family members have a hearing problem and all have 
 
              normal hearing.  OSHA measured noise levels in the plant 
 
              area in which he osired [sic] since 1974 and found noise 
 
              levels of average of 92 to 93 decibels.  His hearing became 
 
              impaired with tinnitus and loss of acuity after working in 
 
              this high noise environment [sic] at the Morrell plant.  He 
 
              now has trouble understanding speech as described in 
 
              Complaint, [sic] above.  He denies any exposure to Alotoxic 
 
              drugs or chemicals.
 
         
 
              Exhibit E, page 2, describes a binaural hearing impairment 
 
         of 19. 4 percent.
 
         
 
              Exhibit I is the deposition of Daniel Jorgensen, M.D., taken 
 
         on January 29, 1987.  Dr. Jorgensen is an otolaryngologist.  He 
 
         has a soundproof booth and an audiometer.  He has a person with a 
 
         master's degree in audiology do the audiograms.  Dr. Jorgensen 
 

 
         
 
         
 
         
 
         COX V. JOHN MORRELL & COMPANY
 
         Page   4
 
         
 
         
 
         examined claimant on October 20, 1986 and took a history.  
 
         Deposition exhibit 1 describes an audiogram performed on October 
 
         20, 1986.  On page 9, Dr. Jorgensen stated that claimant's 
 
         binaural hearing loss is 8.9 percent, and on pages 9-10, he 
 
         explained why this percentage is lower than Mr. Nelson's 
 
         percentage.  On page 12, Dr. Jorgensen stated a causal connection 
 
         opinion favorable to claimant.  On page 13, he stated that 
 
         claimant's loss is permanent and also stated the cost of a 
 
         hearing aid.
 
         
 
                           APPLICABLE LAW AND ANALYSIS
 
         
 
              I.  Does Iowa Code section 85.23 apply to occupational 
 
         hearing loss cases?  It is concluded that section 85.23 does 
 
         apply to this class of case as it is not inconsistent with 
 
         chapter 85B.  See Iowa Code section 85B.14.  The Iowa Supreme 
 
         Court stated in Dillinger v. City of Sioux City, 368 N.W.2d 176, 
 
         179 (Iowa 1985 ):
 
         
 
              I.  Notice under section 85.23.  In pertinent part, section 
 
              85.23 requires the employee to give the employer notice 
 
              within 90 days after the occurrence of the injury "unless 
 
              the employer or his representative shall have actual 
 
              knowledge of the occurrence of an injury.O  Consequently, an 
 
              employee who fails to give a timely notice may still avoid 
 
              the sanction of section 85.23 if the employer had "actual 
 
              knowledge of the occurrence of the injury."  The discovery 
 
              rule delays the commencement of a limitation period, for 
 
              bringing a cause of action or for giving notice, until the 
 
              injured person has in fact discovered his injury or by 
 
              exercise of reasonable diligence should have discovered it.  
 
              Orr, 298 N.W.2d at 257.
 
         
 
              The agency has determined that the notice/actual knowledge 
 
         provision of section 85.23 is an affirmative defense and that a 
 
         defendant has the burden of proof on this issue.  In this case 
 
         claimant testified that his wife mentioned his hearing loss 
 
         problem in the late 1970's.  Claimant had ringing in his ears 
 
         after working at Morrell.  His hearing has not worsened after his 
 
         separation from Morrell.  Claimant's wife testified that claimant 
 
         complained of ringing in his ears when he came home from work.  
 
         She also testified that claimant had a hearing problem in the 
 
         mid-1970's to the late 1970's.
 
         
 
              Chapter 85B became effective on January 1, 1981.  Claimant 
 
         herein knew or should have known the compensable nature of his 
 
         hearing loss when chapter 85B became effective given the 
 
         testimony described above.  However, claimant did not have a 
 
         cause of action until April 27, 1985 or arguably until six months 
 
         after April 27, 1985.  He was not required to satisfy section 
 
         85.23 until he had a cause of action.
 
         
 
              Defendant obtained actual knowledge of the compensable 
 
         nature of claimant's hearing loss prior to the "triggering event" 
 
         of April 27, 1985, see section 85B.8, because claimant talked to 
 
         a plant nurse about his occupational hearing loss in 1982 or 
 
         1983.  The notice/actual knowledge requirement of section 85.23 
 
         may be satisfied prior to the "occurrence of an injury."  
 
         Dillinger, 368 N.W.2d at 180.  The injury "occurred" in this 
 

 
         
 
         
 
         
 
         COX V. JOHN MORRELL & COMPANY
 
         Page   5
 
         
 
         
 
         case when the plant closed.  Claimant's cause of action accrued 
 
         at that time or arguably six months after the plant closure.
 
         
 
              In sum, this action is not barred because of the application 
 
         of section 85.23.
 
         
 
              II.  Is this claim time barred by Iowa Code section 85.26? 
 
         Section 85B.8 provides in part:
 
         
 
              A claim for occupational hearing loss due to excessive noise 
 
              levels may be filed six months after separation from the 
 
              employment in which the employee was exposed to excessive 
 
              noise levels.
 
         
 
              The date of the injury shall be the date of occurrence of 
 
              any one of the following events:
 
         
 
                 1.  Transfer from excessive noise level employment by an 
 
              employer.
 
         
 
                 2.  Retirement.
 
         
 
                 3.  Termination of the employer-employee relationship. 
 
              (Emphasis supplied.)
 
         
 
              Claimant in this case separated from his Morrell employment 
 
         on April 27, 1985 and as stated above his cause of action accrued 
 
         at that time or perhaps six months later.  His petition was filed 
 
         on May 9, 1986.  The Iowa Supreme Court held in Chrisohilles v. 
 
         Griswold, 260 Iowa 453, 461 150 N.W.2d 94, 100 (1967) that a 
 
         statute of limitations "cannot commence to run until the cause of 
 
         action accrues."  Claimant filed his petition within two years of 
 
         April 27, 1985.  This claim is not time barred.  In accordance 
 
         with Iowa Code section 85B.8 claimant waited until six months 
 
         after his separation from Morrell to file this action.  
 
         Claimant's cause of action did not accrue until April 27, 1985 
 
         or arguably he did not have a cause of action until six months 
 
         after April 27, 1985.
 
         
 
              III.  The question of whether claimant sustained an 
 
         occupational hearing loss, by definition, includes the question 
 
         of whether a causal relationship exists between claimant's 
 
         industrial noise exposure and his current hearing loss.  Section 
 
         85B.4(l) provides:
 
         
 
              Occupational hearing loss means a permanent sensorineural 
 
              loss of hearing in one or both ears in excess of twenty-five 
 
              decibels if measured from international standards 
 
              organization or American National standards institute zero 
 
              reference level, which arises out of and in the course of 
 
              employment caused by prolonged exposure to excessive noise 
 
              levels.
 
         
 
              In the evaluation of occupational hearing loss, only the 
 
              hearing levels at the frequencies of five hundred, one 
 
              thousand, two thousand, and three thousand Hertz shall be 
 
              considered.
 
         
 
              Section 85B.4(l) requires that a claimant's hearing loss 
 

 
         
 
         
 
         
 
         COX V. JOHN MORRELL & COMPANY
 
         Page   6
 
         
 
         
 
         both be a permanent sensorineural loss in excess of 25 decibels 
 
         and that it arise out of and in the course of his employment 
 
         because of prolonged exposure to excessive noise levels.
 
         
 
              Claimant has the burden of proving by a preponderance of the 
 
         evidence that he received an injury which arose out of and in the 
 
         course of his employment.  McDowell v. Town of Clarksville, 241 
 
         N.W.2d 904 (Iowa 1976); Musselman v. Central Telephone Co., 261 
 
         Iowa 352, 154 N.W.2d 128 (1967).
 
         
 
              Section 85B.6 provides maximum compensation of 175 weeks for 
 
         total occupational hearing loss with partial occupational hearing 
 
         loss compensation proportionate to total hearing loss.
 
         
 
              Claimant has established by the greater weight of the 
 
         evidence that he sustained hearing loss from his work at Morrell.  
 
         It is also determined that all his hearing loss is attributable 
 
         to his Morrell employment.
 
         
 
              IV.  A treating physician's testimony is not entitled to 
 
         greater weight as a matter of law than that of a physician who 
 
         later examines claimant in anticipation of litigation.  Weight to 
 
         be given testimony of physician is a fact issue to be decided by 
 
         the industrial commissioner in light of the record the parties 
 
         develop.  In this regard, both parties may develop facts as to 
 
         the physician's employment in connection with litigation, if so; 
 
         the physician's examination at a later date and not when the 
 
         injuries were fresh; the arrangement as to compensation; the 
 
         extent and nature of the physician's examination; the physician's 
 
         education, experience, training, and practice; and all other 
 
         factors which bear upon the weight and value of the physician's 
 
         testimony may be considered.  Both parties may bring all this 
 
         information to the attention of the factfinder as either 
 
         supporting or weakening the physician's testimony and opinion.  
 
         All factors go to the value of the physician's testimony as a 
 
         matter of fact not as a matter of law.  Rockwell Graphic Systems, 
 
         Inc. v. Prince, 366 N.W.2d 187, 192 (Iowa 1985).
 
         
 
              As a factual matter, it is concluded that the audiogram 
 
         conducted at Dr. Jorgensen's office is more accurate than the 
 
         test conducted by Mr. Nelson because Dr. Jorgensen has a 
 
         soundproof booth.  It is, therefore, unnecessary to construe Iowa 
 
         Code section 85B.9 as urged by the parties.
 
         
 
              Claimant is entitled to 15.575 weeks (8.9 percent of 175 
 
         weeks) of permanent partial disability benefits commencing on 
 
         April 27, 1985 at a rate of $203.47.
 
         
 
              V.  Claimant is entitled to the least expensive hearing aid 
 
         provided by Dr. Jorgensen or another provider, at the cost of the 
 
         defendant.
 
         
 
                                 FINDINGS OF FACT
 
         
 
              1.  Claimant is 55 years old.
 
         
 
              2.  Claimant started working for Morrell in Estherville,
 
         Iowa, in December 1956.
 
         
 

 
         
 
         
 
         
 
         COX V. JOHN MORRELL & COMPANY
 
         Page   7
 
         
 
         
 
         
 
              3.  Claimant has sustained hearing loss and all of 
 
         claimant's hearing loss was caused by his Morrell employment.
 
         
 
              4.  Morrell had actual knowledge of claimant's occupational 
 
         hearing loss prior to April 27, 1985.
 
         
 
              5.  Claimant's binaural hearing loss is 8.9 percent.
 
         
 
              6.  Claimant's stipulated weekly rate of compensation is 
 
         $203.47.
 
         
 
                                CONCLUSIONS OF LAW
 
         
 
              1.  Claimant has established entitlement to fifteen point 
 
         five seventy-five (15.575) weeks of permanent partial disability 
 
         benefits commencing on April 27, 1985 at a rate of two hundred 
 
         three and 47/100 dollars ($203.47).
 
         
 
              2.  Claimant has established entitlement to the cost of the 
 
         least expensive hearing aid or aids.
 
         
 
                                      ORDER
 
         
 
              IT IS THEREFORE ORDERED:
 
         
 
              That defendant pay the benefits described above.
 
         
 

 
         
 
         
 
         
 
         COX V. JOHN MORRELL & COMPANY
 
         Page   8
 
         
 
         
 
              That defendant pay accrued benefits in a lump sum and pay 
 
         interest pursuant to section 85.30, The Code.
 
         
 
              That defendant pay the costs of this action pursuant to 
 
         Division of Industrial Services Rule 343-4.33, formerly 
 
         Industrial Commissioner Rule 500-4.33.
 
         
 
              That defendant shall file claim activity reports, pursuant 
 
         to Industrial Services Rule 343-3.1(2), formerly Industrial 
 
         Commissioner Rule 500-3.1(2), as requested by the agency.
 
         
 
              Signed and filed this 17th day of March, 1987.
 
         
 
         
 
         
 
         
 
                                             T.J. McSWEENEY
 
                                             DEPUTY INDUSTRIAL COMMISSIONER
 
         Copies to:
 
         
 
         Mr. E. W. Wilcke
 
         Attorney at Law
 
         P.O. Box 455
 
         826 1/2 Lake St
 
         Spirit Lake, Iowa 51360
 
         
 
         Mr. Dick H. Montgomery
 
         Attorney at Law
 
         P.O. Box 7038
 
         Spencer, Iowa 51301
 
         
 
         
 
         
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                                       2208
 
                                                       Filed 3-17-87
 
                                                       T. J. McSweeney
 
         
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         MARVIN COX,
 
         
 
              Claimant,                               File No. 821620
 
         
 
         VS.
 
                                                   A R B I T R A T I 0 N
 
         JOHN MORRELL & COMPANY,
 
                                                      D E C I S I 0 N
 
              Employer,
 
              Self-Insured,
 
              Defendant.
 
         
 
         
 
         2208
 
         
 
              Held in occupational hearing loss case as follows:
 
         
 
              1)  That Iowa Code section 85.23 applied in occupational 
 
         hearing loss cases;
 
         
 
              2)  That claimant's action is not barred by Iowa Code 
 
         section 85.23 because defendant had actual knowledge of 
 
         claimant's alleged occupational hearing loss within ninety (90) 
 
         days of claimant discovering its compensable nature;
 
         
 
              3)  That claimant's action is not barred by Iowa Code 
 
         section 85.26 because this action was filed within two years of 
 
         the accrual of claimant's cause of action, which accrued when the 
 
         Morrell plant closed on April 27, 1985;
 
         
 
              4)   That claimant established by a preponderance of the 
 
         evidence that he sustained some hearing loss and that all of this 
 
         loss was attributable to his Morrell employment; and
 
         
 
              5)   That claimant is entitled to the cost of a hearing 
 
         aid.