BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         DONALD G. TOPPING,
 
         
 
              Claimant,
 
         
 
                                                      File No. 832009
 
         vs.
 
                                                   A R B I T R A T I O N
 
         JOHN DEERE DUBUQUE WORKS OF
 
         DEERE & COMPANY,                             D E C I S I 0 N
 
         
 
              Employer,
 
              Self-Insured,
 
              Defendant.
 
         
 
         
 
                                   INTRODUCTION
 
         
 
              This is a proceeding in arbitration brought by the claimant, 
 
         Donald G. Topping, against his self-insured employer, John Deere 
 
         Dubuque Works of Deere & Company, to recover benefits under the 
 
         Iowa Workers' Compensation Act as a result of an injury allegedly 
 
         sustained on January 21, 1985.  This matter came on for hearing 
 
         before the undersigned deputy industrial commissioner on October 
 
         6, 1987 in Dubuque, Iowa.  A first report of injury was filed on 
 
         November 3, 1986.  The record in this case consists of the 
 
         testimony, of claimant, of Ronald Hable, of M. Lee McClenahan, 
 
         M.D., as well as of joint exhibits 1 through 25, as identified on 
 
         the submitted exhibit list.
 
         
 
                                      ISSUES
 
         
 
              Pursuant to the pre-hearing report, the parties stipulated 
 
         that claimants rate of weekly compensation is $359.46; that 
 
         claimant was off work on account of his alleged injury from 
 
         January 21, 1985 to March 21, 1985 with any permanent partial 
 
         disability benefit payments to commence on March 22, 1985; and, 
 
         that, should claimant be entitled to recovery, the defendant is 
 
         entitled to a credit under Iowa Code section 85.38(2) for sick 
 
         pay, disability income and medical and hospitalization expenses 
 
         paid.  The issues remaining to be decided are whether claimant 
 
         gave appropriate notice of his injury as required under Iowa Code 
 
         section 85.23; whether claimant's claim is barred as filed beyond 
 
         the applicable statute of limitations, that is, section 85.26; 
 
         whether claimant's injury arose out of and in the course of 
 
         claimant's employment; whether a causal relationship exists 
 
         between the claimed injury and any permanent partial disability; 
 
         and, whether claimant is entitled to benefits and the nature and 
 
         extend of any benefit entitlement.
 
         
 
                           REVIEW OF THE EVIDENCE
 
         
 
              Claimant testified that he is 37 years old and a high school 
 
         graduate who has also obtained a one-year community college 
 
         degree in drafting.  He has no medical training.  Claimant began 
 
         work for John Deere Dubuque Works in May, 1972 at age 21 as a 
 
         chip and grinder in the foundry.  Claimant reported he did not 
 

 
         
 
         
 
         
 
         TOPPING V. JOHN DEERE DUBUQUE WORKS OF DEERE & COMPANY
 
         PAGE   2
 
         
 
         
 
         have hand problems at that time.  Claimant originally commuted 
 
         from Monticello, Iowa to Dubuque, Iowa and now commutes from 
 
         Onslow, Iowa to Dubuque, Iowa to work at John Deere Dubuque 
 
         Works.  In his first year as a chip and grinder, claimant used 
 
         pneumatic chipping hammers and light tools to grind castings and 
 
         to clean three-cylinder block cases.  In May, 1973, he was 
 
         transferred to line material handling, where he drove an 
 
         electrically-powered hand truck.  Claimant stated that, after 
 
         working in the chip and grind job for approximately three or four 
 
         months, his hands started falling asleep while he was driving and 
 
         were stiff and sore in the morning.  He reported they also fell 
 
         asleep in the evening.  Claimant indicated that his hands were 
 
         better after his transfer in May, 1973 and that their condition 
 
         did not interfere with his hunting, basketball or other outside 
 
         activities.
 
         
 
              From June 25, 1973, claimant worked in shakeout transfer for 
 
         approximately 14 days.  He described such as medium to heavy work 
 
         involving striking a casting with a mall and then hanging the 
 
         casting on a conveyor belt.  Claimant reported that he was sore 
 
         all over while doing the job and had hand stiffness.  On June 26, 
 
         1973, after one day's work in shakeout transfer, claimant saw his 
 
         personal physician, Otto Semft, M.D., a family practitioner.  
 
         Claimant stated that Dr. Semft prescribed medication, but did not 
 
         diagnose his condition.  Exhibit 2 is a note of Dr. Semft of June 
 
         27, 1973 in which he reported claimant had severe muscle cramps 
 
         in his arm and in which he advises a job change.  Claimant could 
 
         not recall giving the company medical department this note, even 
 
         though such is recorded in the company notes.  He did not recall 
 
         seeing the company doctor for symptoms in June, 1973, but did 
 
         recall telling the company nurse that his arms were better after 
 
         he became used to the job.  Claimant agreed that, from May, 1972 
 
         until June, 1973, he had reported to the John Deere medical 
 
         department on approximately 30 occasions for various problems.  
 
         He indicated he had not complained about his hands during that 
 
         time because his hands were not a problem while he was working.  
 
         He indicated that his hands felt their best at work since he was 
 
         moving them.  Claimant also testified that John Deere personnel 
 
         did not ask him whether he had any symptoms or whether he 
 
         considered any symptoms to be job-related.
 
         
 
              Claimant worked chip and grind from, July 16, 1973 to 
 
         February 18, 1974.  He reported that his problems returned, but 
 
         that his hands loosened up at work, although he had continuing 
 
         difficulties when working above his head, when his hands "would 
 
         go to sleep."
 
         
 
              Claimant reported he did not miss either work time or 
 
         recreational activities on account of his hand condition during 
 
         that period.  From February 18, 1974 until August 25, 1986 
 
         claimant performed five different machinist jobs.  Of those jobs, 
 
         only machine hand involved manual machine operation.  Claimant 
 
         worked machine hand from April 18, 1977 to November 14, 1982 and 
 
         from February 7, 1983 to August 25, 1966.  Claimant reported 
 
         that, while working on his machinist jobs, he had sporadic 
 
         symptoms only, consisting of morning stiffness and his hands 
 
         falling asleep when he worked with his arms at or above neck 
 
         level.  Claimant reported that he lost no work time between 1974 
 
         and 1984 on account of his hand symptoms.
 

 
         
 
         
 
         
 
         TOPPING V. JOHN DEERE DUBUQUE WORKS OF DEERE & COMPANY
 
         PAGE   3
 
         
 
         
 
         
 
              On December 27, 1984, claimant saw R. Scott Cairns, M.D., a 
 
         board-certified orthopaedic surgeon.  Claimant saw the doctor 
 
         after discussing his own symptoms with a co-worker who was 
 
         experiencing symptoms which the co-worker related to carpal 
 
         tunnel syndrome.  Following electromylographic studies, Dr. 
 
         Cairns performed carpal tunnel releases on January 21, 1985 on 
 
         the right and on February 20, 1985 on the left.  Claimant 
 
         reported that Dr. Cairns had said carpal tunnel syndrome could be 
 
         work-related when claimant asked Dr. Cairns regarding such in 
 
         December, 1984.  Claimant stated this was the first time he had 
 
         heard that the condition could be work-related, but that he did 
 
         not discuss work details with Dr. Cairns at that time.
 
         
 
              Claimant stated that, in May, 1986, he saw F. Dale Wilson, 
 
         M.D., a board-certified surgeon, who advised him that his carpal 
 
         tunnel syndrome was related to his work in the John Deere foundry 
 
         in 1972.  Claimant reported that M. Lee McClenahan, M.D., John 
 
         Deere plant physician, conducted an approximately 15-minute 
 
         examination related to claimant's hands.  Claimant reported that 
 
         Dr. Cairns evaluated him at John Deere's request and that that 
 
         examination lasted from 10-15 minutes with another 10-15 minutes 
 
         spent on x-rays and 5 minutes spent on grip testing at Finley 
 
         Hospital.
 
         
 
              Claimant reported that, when he returned to work in March, 
 
         1985, his hands felt great and that his only symptoms consisted 
 
         or a fuzzy, numb feeling in his first three fingers and a loss of 
 
         strength.  He reported that he also needed to look while he was 
 
         grasping small objects and that he had limited backward movement 
 
         of his right thumb.  He indicated that being in a cold 
 
         environment also created a loss of sensation in his fingertips.
 
         
 
              Claimant agreed that exhibits 5, 6, 7 and 8 are medical 
 
         disability claim forms.  He reported he checked the blocks 
 
         indicating his condition was not a work-related illness or 
 
         accident because it had not had a sudden onset and because it was 
 
         not an illness.  John Deere personnel helped claimant complete 
 
         the forms, but claimant testified they did not explain the 
 
         significance of the questions on the forms.  Claimant reported 
 
         that John Deere personnel gave him no information regarding 
 
         carpal tunnel syndrome and that the personnel department knew he 
 
         would be off for surgery prior to his carpal tunnel release, but 
 
         that John Deere personnel did not ask him how his carpal tunnel 
 
         condition had developed.  Claimant agreed he has never personally 
 
         advised John Deere that his condition was work-related, but 
 
         stated that John Deere's counsel was so advised following Dr. 
 
         Wilson's report when claimants counsel forwarded a copy of the 
 
         report to the defendants counsel.  Claimant reported he was 
 
         unaware that work-related claims were handled differently at John 
 
         Deere.
 
         
 
              Ronald Hable remembered claimant as an employee he had 
 
         supervised in the John Deere foundry from May 1, 1972 to February 
 
         18, 1974.  Mr. Hable could not remember claimant speaking to him 
 
         of problems with his arms and hands.  Mr. Hable described the 
 
         chip and grind operation per a video tape of such.  He reported 
 
         that the chipping hammer has a 10- to 12-inch chisel which is 
 
         controlled by the right thumb.  He reported that the right hand 
 

 
         
 
         
 
         
 
         TOPPING V. JOHN DEERE DUBUQUE WORKS OF DEERE & COMPANY
 
         PAGE   4
 
         
 
         
 
         holds the hammer while the trigger is operated with the thumb.  
 
         The hammer is piston-driven and vibrates while in operation.  
 
         Hable opined that, in 1972 or 1973, a regular worker would have 
 
         worked approximately six hours to make his chip and grind 
 
         incentive while a new worker might have had to work eight hours 
 
         to do so.  Hable described the "shake-out" transfer operation.  
 
         He reported that, in "shake-out" transfer, one grinds with an 
 
         eight-inch grinder or a smaller grinder for inside grinding.  He 
 
         describes the operation as involving "all hand small work."  
 
         Later, the operator knocks off excess metal with a sledge 
 
         hammer.
 
         
 
              Hable agreed he had not heard of carpal tunnel syndrome 
 
         until 1985 when he discussed it with Clem Koerperick, a John 
 
         Deere general foreman.  He reported that the two acknowledged the 
 
         condition may be caused by constant use of vibrating tools.  
 
         Hable reported that, since that time, safety bulletins and 
 
         reports have been issued regarding carpal tunnel syndrome.
 
         
 
              Mervin Lee McClenahan, M.D., reported that he is medical 
 
         director of John Deere Dubuque Works and has been such since 
 
         1982.  Dr. McClenahan is a board-certified family practitioner 
 
         who graduated from the University of Iowa Medical School in 1960.  
 
         He reported that he had completed a mini-residency" in 
 
         occupational medicine at the University of Cincinnati.  The 
 
         doctor testified he first became aware of claimants hand problems 
 
         on approximately May 20, 1986 when he received a copy of a report 
 
         of Dr. Wilson from defendants counsel.  The doctor reported he 
 
         saw claimant on June 24, 1986 and asked claimant about his 
 
         problems at work in 1963 and 1984.  He reported that claimant 
 
         responded that no particular job in that time span seemed to 
 
         aggravate claimant's condition.  Dr. McClenahan stated that 
 
         claimant reported that driving, helping his step-father farm or 
 
         working on a car with wrenches seemed to cause the condition to 
 
         flare up.  Dr. McClenahan opined that no job claimant had held 
 
         from April, 1977 would have caused his carpal tunnel syndrome.  
 
         The doctor reported that he had received Dr. Cairns' office and 
 
         operative notes and then had referred claimant to Dr. Cairns for 
 
         further evaluation and a permanent partial impairment rating.  He 
 
         reported that Dr. Cairns had opined that, under the AMA guides, 
 
         claimant had a permanent partial impairment of five percent of 
 
         the upper extremity equalling five percent of the hand for both 
 
         hands.  Dr. McClenahan stated his belief that persons with a 
 
         propensity toward carpal tunnel syndrome are very likely to 
 
         develop the condition while working in chip and grind and like 
 
         jobs, but also opined that claimant's jobs from 1974 onward were 
 
         not such that he would have believed claimant would have 
 
         developed carpal tunnel syndrome from them.
 
         
 
              Dr. McClenahan expressed his belief that claimant could not 
 
         have functioned for ten years in other jobs and activities with a 
 
         moderate degree of compression of the median nerve if he had 
 
         acquired that degree of compression from his chip and grind job. 
 
          The doctor opined that, with a moderate degree of compression, 
 
         symptoms would exist most of the time and would go away with a 
 
         change of positions.  He opined that leaving the job which had 
 
         produced the carpal tunnel syndrome would likely relieve some 
 
         symptoms, but would not alleviate compression already present.  
 
         The doctor opined that, if claimant had developed carpal tunnel 
 

 
         
 
         
 
         
 
         TOPPING V. JOHN DEERE DUBUQUE WORKS OF DEERE & COMPANY
 
         PAGE   5
 
         
 
         
 
         syndrome on his chip and grind job, the nature of the work would 
 
         have prevented his continuing without repair or surgery.  He 
 
         reported as atypical the reduction of carpal tunnel symptoms 
 
         during the work day and states that generally the condition 
 
         worsens throughout the day.  He later stated, however, that 
 
         symptoms may be more noticeable in the evening with night 
 
         awakening, but may be better tolerated during the day.  He 
 
         states, however, that compression would give symptoms almost all 
 
         of the time or "I would say all the time."  Dr. McClenahan 
 
         reported it would not be impossible for a family practitioner in 
 
         June, 1973 to have confused carpal tunnel syndrome with cramps in 
 
         the forearm.
 
         
 
              Job descriptions for intricate chipper, material handler, 
 
         shakeout transfer, machine hand, machine tool operator and 
 
         mechanic were in evidence.  The descriptions were generally 
 
         consistent with testimony given at hearing.
 
         
 
              On July 29, 1986, Dr. Cairns opined that, if claimant was 
 
         engages in an occupation requiring repetitive hand motion, or the 
 
         use of vibrating, percussion of power tools, an excellent chance 
 
         existed that such job demands had contributed to or caused 
 
         claimant's condition.  He reported that, as of December 27, 1984, 
 
         claimants pertinent physical findings were mild diminution of 
 
         sensation over the ring finger, more on the radial side than on 
 
         the ulnar side, and that claimant then had a negative Tinel and 
 
         negative Phalen sign.  The doctor reported that EMGs subsequently 
 
         confirmed severe bilateral median nerve neuropathy.
 
         
 
              On December 22, 1986, Dr. Cairns opined that it was unlikely 
 
         that occupational exposure to work in chip and grind in 1972 
 
         would have had any bearing on claimant's median nerve neuropathy 
 
         treated in 1985.  The doctor reported that a review of claimant's 
 
         job classification would "not tend to make one feel that there 
 
         has been any unusual work exposure which would tend to 
 
         precipitate his median nerve neuropathy."  The doctor further 
 
         opined that, if the conditions of repetitive hand motions and the 
 
         use of vibrating or power tools had not been present, it was 
 
         unlikely that there was a "significant occupational contribution 
 
         to his medical problem."
 
         
 
               On January 20, 1987, Dr. Cairns saw claimant for evaluation 
 
         of permanent physical impairment.  He reported that claimant had 
 
         no obvious atrophy, but had some limited range of motion of the 
 
         first MP joint of the thumb which he suspected was secondary to 
 
         degenerative change and not secondary to his median nerve 
 
         neuropathy.  Sensation was intact to pin prick, although it might 
 
         have been slightly diminished in the right ring finger.  
 
         Claimant's grip strength on the right was 125 pounds and, on the 
 
         left, 145 pounds.  X-rays revealed some degenerative changes in 
 
         the first MP joint.  Dr. Cairns rated claimant's permanent 
 
         physical impairment as five percent of each upper extremity or 
 
         "10% of the upper extremity."
 
         
 
              On May 8, 1986, by way of report, Dr. Wilson opined that 
 
         claimant's injury occurred at work, stating:
 
         
 
              [T]he timing points to his work using air controlled 
 
              vibrating instruments while he was at work on the "chip 
 

 
         
 
         
 
         
 
         TOPPING V. JOHN DEERE DUBUQUE WORKS OF DEERE & COMPANY
 
         PAGE   6
 
         
 
         
 
              and grind" in the foundry.  There was an aggravation of 
 
              this:  He had improved and he returned back to this job 
 
              while he was in the foundry on the "shake-out" unit.  
 
              This exposure to vibrations and jolt and jar of the 
 
              wrist is the causative factor with respect to symptoms, 
 
              pathology and impairment reported on this examination.
 
         
 
              The doctor then evaluates claimant's impairment as follows:
 
         
 
              Impairment evaluation:
 
         
 
              I.  Right hand:
 
         
 
                  A. Motion loss:  Thumb  CMC 7%
 
                                          PMC 31%
 
                                              44% Thumb
 
                                          18% hand =         16% 
 
              Extremity
 
         
 
                  B.  Pain, thumb area                        1
 
         
 
                  C.  Weakness:  Below in "D"
 
         
 
                  D.  Nerve involvement: median nerve, 0 - 60
 
                      includes sensory changes and strength   15
 
         
 
                                                             32%
 
                                        Impairment of the right 
 
     
 
         
 
         
 
         
 
         
 
         TOPPING V. JOHN DEERE DUBUQUE WORKS OF DEERE & COMPANY
 
         PAGE   7
 
         
 
         
 
              extremity.
 
         
 
              II.  Left Hand.
 
         
 
                   A.  Motion loss                            0
 
         
 
                   B.   Pain                                  0
 
         
 
                   C.  Weakness                               0
 
         
 
                   D.   Nerve involvement:
 
                        Power and sensation, 0 - 60         10%
 
         
 
                                                        10% Left 
 
              extremity
 
         
 
                           APPLICABLE LAW AND ANALYSIS
 
         
 
              Our prerequisite concern is whether claimant's claim is 
 
         barred as filed beyond the applicable statute of limitations.  
 
         Claimants claim is in arbitration and was filed on October 7, 
 
         1986.  In his original notice and petition, claimant claims a 
 
         January 21, 1985 injury date.  That date corresponds with the 
 
         date of claimants right carpal tunnel release surgery.  Left 
 
         carpal tunnel release surgery was performed on February 20, 1985.  
 
         Section 85.26(l) provides that a proceeding in arbitration be 
 
         filed within two years from the date of occurrence of the injury 
 
         for which benefits are claimed.  Hence, if claimant claims an 
 
         injury in 1985, his petition was timely filed.  However, claimant 
 
         contends his condition developed in 1972 while working in chip 
 
         and grind.  He relies upon the discovery rule to now assert his 
 
         claim.  Under the discovery rule, the two-year period in which to 
 
         file a claim in arbitration does not begin to run.until the 
 
         worker should know the injury is both "serious and 
 
         work-connected."  A reasonable person standard is applied in 
 
         determining when the worker should have known that the injury was 
 
         serious and work-connected.  The workers intelligence and 
 
         education is considered under that standard, however.  Orr v. 
 
         Lewis Cent. School Dist., 298 N.W.2d 256, 257 (Iowa 1980); 
 
         Robinson v. Dept. of Transp., 296 N.W.2d 809, 812 (Iowa 1980).
 
         
 
              Claimant contends he was unaware of a work relationship to 
 
         his problems until Dr. Wilson so stated on May 8, 1986.  Claimant 
 
         relies upon his absence of medical training to so contend.  We 
 
         find claimant's position untenable, however.  Claimant appears to 
 
         be a fairly bright, well-spoken individual.  He is a high school 
 
         graduate.  He testified to having problems with his hands from 
 
         1972 onward.  Claimant sought medical care for his hands.in June, 
 
         1973.  He then felt his arm soreness was work-related.  Had 
 
         claimant had continuing problems with his hands after originally 
 
         seeking medical care for what he believed was a work-related 
 
         problem, one believes a reasonable person of his education and 
 
         intelligence would have recognized the seriousness and work 
 
         connectedness of his hand condition prior to either his surgeries 
 
         or Dr. Wilson's May, 1986 letter.
 
         
 
              While the statute of limitations issue is dispositive of the 
 
         claim, we next consider whether claimant received an injury which 
 
         arose out of and in the course of his employment.  Because of the 
 

 
         
 
         
 
         
 
         TOPPING V. JOHN DEERE DUBUQUE WORKS OF DEERE & COMPANY
 
         PAGE   8
 
         
 
         
 
         nature of the question presented in this particular case, that 
 
         issue is intertwined with the related subissue of causal 
 
         connection between the alleged work injury and claimed 
 
         disability.
 
         
 
              Claimant has the burden of proving by a preponderance of the 
 
         evidence that he received an injury on January 21, 1985 which 
 
         arose out of and in the course of his employment.  McDowell 
 
         v.Town of Clarksville, 241 N.W.2d 904 (Iowa 1976); Musselman v. 
 
         Central Telephone Co., 261 Iowa 352, 154 N.W.2d 128 (1967).
 
         
 
              An employee is entitled to compensation for any and all 
 
         personal injuries which arise out of and in the course of the 
 
         employment.  Section 85.3(l).
 
         
 
              The injury must both arise out of and be in the course of 
 
         the employment.  Crowe v. DeSoto Consol. Sch. Dist., 246 Iowa 
 
         402, 68 N.W.2d 63 (1955) and cases cited at pp. 405-406 of the 
 
         Iowa Report.  See also Sister Mary Benedict v. St. Mary's Corp., 
 
         255 Iowa 847, 124 N.W.2d 548 (1963) and Hansen v. State of Iowa, 
 
         249 Iowa 1147, 91 N.W.2d 555 (1958).
 
         
 
              The words "out of" refer to the cause or source of the 
 
         injury.  Crowe v. DeSoto Consol. Sch. Dist., 246 Iowa 402, 68 
 
         N.W.2d 63 (1955).
 
         
 
              The words "in the course of" refer to the time and place and 
 
         circumstances of the injury.  McClure v. Union et al. Counties, 
 
         188 N.W.2d 283 (Iowa 1971); Crowe v. DeSoto Consol. Sch. Dist., 
 
         246 Iowa 402, 68 N.W.2d 63 (1955).
 
         
 
              "An injury occurs in the course of the employment when it 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 v. Union et al. Counties, 188 
 
         N.W.2d 283 (Iowa 1971); Musselman v. Central Telephone Co., 261 
 
         Iowa 352, 154 N.W.2d 128 (1967).
 
         
 
              The supreme court of Iowa in Almquist v. Shenandoah 
 
         Nurseries, 218 Iowa 724, 731-32, 254 N.W. 35, 38 (1934), 
 
         discussed the definition of personal injury in workers' 
 
         compensation cases as follows:
 
         
 
              While a personal injury does not include an 
 
              occupational disease under the Workmen's Compensation 
 
              Act, yet an injury to the health may be a personal 
 
              injury. [Citations omitted.]  Likewise a personal 
 
              injury includes a disease resulting from an injury .... 
 
              The result or changes in the human body incident to the 
 
              general processes of nature do not amount to a personal 
 
              injury.  This must follow, even though such natural 
 
              change may come about because the life has been devoted 
 
              to labor and hard work.  Such result of those natural 
 
              changes does not constitute a personal injury even 
 
              though the same brings about impairment of health or 
 
              the total or partial incapacity of the functions of the 
 
              human body.
 
         
 

 
         
 
         
 
         
 
         TOPPING V. JOHN DEERE DUBUQUE WORKS OF DEERE & COMPANY
 
         PAGE   9
 
         
 
         
 
                 ....
 
         
 
              A personal injury, contemplated by the Workmen's 
 
              Compensation Law, obviously means an injury to the 
 
              body, the impairment of health, or a disease, not 
 
              excluded by the act, which comes about, not through the 
 
              natural building up and tearing down of the human body, 
 
              but because of a traumatic or other hurt or damage to 
 
              the health or body of an employee. [Citations omitted.]  
 
              The injury to the human body here contemplated must be 
 
              something, whether an accident or not, that acts 
 
              extraneously to the natural processes of nature, and 
 
              thereby impairs the health, overcomes, injures, 
 
              interrupts, or destroys some function of the body, or 
 
              otherwise damages or injures a part or all of the 
 
              body.
 
         
 
              The claimant has the burden of proving by a preponderance of 
 
         the evidence that the injury of January 21, 1985 is causally 
 
         related to the disability on which he now bases his claim.  
 
         Bodish v. Fischer, Inc., 257 Iowa 516, 133 4.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).
 
         
 
              Claimant claims, on the basis of testimony of Dr. Wilson, 
 
         that he developed bilateral carpal tunnel syndrome while working 
 
         with air-controlled vibrating instruments while on chip and grind 
 
         in May, 1972.  Dr. Wilson is a general surgeon who examined 
 
         claimant for evaluation purposes only.  Dr. McClenahan, medical 
 
         director of John Deere Dubuque Works, is a board-certified family 
 
         practitioner and has additional training in occupational 
 
         medicine.  Dr. McClenahan felt that persons with a propensity 
 
         toward carpal tunnel syndrome are very likely to develop that 
 
         condition while working in chip and grind and like jobs.  He also 
 
         opined that claimant's jobs from April, 1977 onward were not such 
 
         that claimant would likely have developed carpal tunnel syndrome 
 
         from them.  The doctor further opined that claimant could not 
 
         have functioned for ten years in other jobs and activities with a 
 
         moderate degree of compression of the median nerve if he had 
 
         acquired that compression from his chip and grind job in 1972.  
 
         Dr. Cairns, an orthopaedic surgeon, performed claimants carpal 
 
         tunnel releases.  Dr. Cairns opined that, if claimant was engaged 
 
         in work requiring the use of vibrating, percussion or power 
 
         tools, an excellent chance existed that such jobs contributed to 
 
         or caused claimant's carpal tunnel.  Dr. Cairns further opined 
 
         that it was unlikely that occupational exposure while working in 
 
         chip and grind in 1972 would have had any bearing on claimant's 
 
         median nerve neuropathy which he treated in 1985.  He further 
 
         reported that a review of claimant's job classification "would 
 
         not tend to make one feel there was any unusual work exposure 
 
         which would tend to precipitate his median nerve neuropathy."  
 
         The opinions of Drs. McClenahan and Cairns are accepted over the 
 
         opinion of Dr. Wilson in that both Dr. McClenahan and Dr. Cairns 
 
         have greater expertise in areas bearing on claimant's situation, 
 
         namely, occupational medicine and orthopaedic medicine.  Both 
 

 
         
 
         
 
         
 
         TOPPING V. JOHN DEERE DUBUQUE WORKS OF DEERE & COMPANY
 
         PAGE  10
 
         
 
         
 
         doctors believe it unlikely that claimant's carpal tunnel 
 
         syndrome, treated by way of releases in 1985, related back to 
 
         work duties performed from 1972 through approximately 1974.  Dr. 
 
         McClenahan further did not believe that jobs claimant held 
 
         from.April, 1977 onward could have caused his carpal tunnel 
 
         syndrome.  Little evidence was presented as regards those jobs, 
 
         but generally they did not appear to involve use of vibrating, 
 
         percussion or power tools which all doctors reported would have 
 
         aggravated a propensity toward carpal tunnel syndrome.  Given the 
 
         above, we do not find that claimant has shown an injury which 
 
         arose out of and in the course of his employment consisting of 
 
         bilateral carpal tunnel syndrome produced by work with vibrating 
 
         hand tools in chip and grind in the period from 1972 through 
 
         1974.  Likewise, we do not find evidence in the record as to 
 
         claimant's work activities from 1974 onward sufficient to show a 
 
         work contribution to claimant's carpal tunnel syndrome given the 
 
         express contrary opinion of Dr. McClenahan as to claimant's work 
 
         activities from April, 1977 onward.
 
         
 
              Since claimant has not prevailed on the issue of arising out 
 
         of and in the course of, we need not address the other issues 
 
         presented.
 
         
 
                                 FINDINGS OF FACT
 
         
 
              WHEREFORE, IT IS FOUND:
 
         
 
              Claimant began work for John Deere in May, 1972 in the chip 
 
         and grind department.
 
         
 
              In 1972, in chip and grind, claimant used pneumatic chipping 
 
         hammers and light tools to cast grindings and to clean 
 
         three-cylinder block cases.
 
         
 
              Claimant reported symptoms after approximately four months 
 
         in chip and grind which symptoms he described as hands falling 
 
         asleep while giving and in the evening and being stiff and sore 
 
         in the morning.
 
         
 
              Claimant reported that his symptoms did not interfere with 
 
         hunting, basketball or other outside activities.
 
         
 
              Claimant worked in shakeout transfer for approximately 14 
 
         days from June 25, 1973.
 
         
 
              Claimant experienced severe muscle cramps in his arm on June 
 
         27 , 1973.
 
         
 
              Claimant visited the John Deere medical department on 
 
         approximately 30 occasions from May, 1972 through June, 1973 and 
 
         did not complain about his hands during that time.
 
         
 
              Claimant's hands were not a problem for him while working as 
 
         they felt their best while he was moving them.
 
         
 
              Claimant worked chip and grind from July 16, 1973 until 
 
         February 18, 1974.
 
         
 
              Claimant reported continuing problems during that time, but 
 

 
         
 
         
 
         
 
         TOPPING V. JOHN DEERE DUBUQUE WORKS OF DEERE & COMPANY
 
         PAGE  11
 
         
 
         
 
         stated that his hands loosened up at work, although he had 
 
         continuing difficulties working above his head.
 
         
 
              Claimant is a high school graduate; he is bright and 
 
         well-spoken.
 
         
 
              Claimant filed his petition on October 7, 1986.
 
         
 
              On May 8, 1986, Dr. Wilson opined that claimant's carpal 
 
         tunnel syndrome related back to claimant's work in chip and 
 
         grind.
 
         
 
              In 1972, claimant commuted from Monticello, Iowa to Dubuque, 
 
         Iowa to work at John Deere Dubuque Works.
 
         
 
              Claimant subsequently commuted from Onslow, Iowa to Dubuque, 
 
         Iowa to work at John Deere Dubuque Works.
 
         
 
              Claimant helped his step-father in farming while working at 
 
         John Deere Dubuque Works.
 
         
 
              Claimant worked on auto repair with wrenches while working 
 
         at John Deere.
 
         
 
              Repetitive hand motion or use of vibrating, percussion or 
 
         power tools may produce carpal tunnel syndrome in a person having 
 
         a propensity toward that condition.
 
         
 

 
         
 
         
 
         
 
         TOPPING V. JOHN DEERE DUBUQUE WORKS OF DEERE & COMPANY
 
         PAGE  12
 
         
 
         
 
              After leaving chip and grind, claimant performed five 
 
         different machinist jobs, only one of which involved manual 
 
         machine operation.
 
         
 
              Dr. Wilson is a board-certified surgeon.  Dr. Cairns is a 
 
         board-certified orthopaedic surgeon.  Dr. McClenahan is a 
 
         board-certified family practitioner with additional training in 
 
         occupational medicine.
 
         
 
              Claimant's work activities after leaving chip and grind did 
 
         not contribute to the development of his carpal tunnel syndrome.
 
         
 
              Claimant could not have engaged in the activities in which 
 
         claimant engaged from, 1972 onward had his carpal tunnel syndrome 
 
         been produced in his chip and grind work.
 
         
 
                                CONCLUSIONS OF LAW
 
         
 
              THEREFORE, IT IS CONCLUDED:
 
         
 
              Claimant's claim is barred as filed beyond the applicable 
 
         statute of limitations.
 
         
 
              Claimant has not established an injury which arose out of 
 
         and in the course of his employment with John Deere Dubuque WorKs 
 
         consisting of carpal tunnel syndrome bilaterally developing while 
 
         working in chip and grind in 1972 and resulting in bilateral 
 
         carpal tunnel releases in 1985.
 
         
 
                                      ORDER
 
         
 
              THEREFORE, IT IS ORDERED:
 
         
 
              Claimant take nothing from this proceeding.
 
         
 
              Claimant and defendant pay equally the costs of this 
 
         proceeding pursuant to Division of Industrial Services Rule 
 
         343-4.33.
 
         
 
              Signed and filed this 19th day of July, 1988.
 
         
 
         
 
         
 
         
 
         
 
         
 
         
 
                                          HELENJEAN WALLESER
 
                                          DEPUTY INDUSTRIAL COMMISSIONER
 
         
 
         Copies To:
 
         
 
         Mr. Stephen J. Juergens
 
         Attorney at Law
 
         200 Security Building
 
         Dubuque, Iowa 52001
 
         
 
         Mr. Leo A. McCarthy
 
         Attorney at Law
 

 
         
 
         
 
         
 
         TOPPING V. JOHN DEERE DUBUQUE WORKS OF DEERE & COMPANY
 
         PAGE  13
 
         
 
         
 
         Suite 222, Fischer Building
 
         P.O. Box 239
 
         Dubuque, Iowa 52004-0239
 
         
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                                 1108, 2402
 
                                                 Filed July 19, 1988
 
                                                 HELENJEAN WALLESER
 
         
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         DONALD G. TOPPING,
 
         
 
              Claimant,
 
                                                    File No. 832009
 
         vs.
 
                                                 A R B I T R A T I O N
 
         JOHN DEERE DUBUQUE WORKS OF
 
         DEERE & COMPANY,                           D E C I S I O N
 
         
 
              Employer,
 
              Self-Insured,
 
              Defendant.
 
         
 
         
 
         
 
         1108, 2402
 
         
 
              Claimant's claim barred under Iowa Code section 85.26.
 
         
 
              Claimant did not show injury which arose out of and in the 
 
         course of his employment where claimant claimed he had worked 
 
         from 1972 to 1974 onward with carpal tunnel syndrome until 
 
         surgery in January and February, 1985.
 
         
 
 
        
 
 
 
 
 
                       BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
        
 
        
 
        MELVIN L. VAN CANNON,
 
        
 
            Claimant,
 
        
 
        vs.                              File No. 832018
 
        
 
        DEPARTMENT OF TRANSPORTATION,       A P P E A L
 
        
 
            Employer,                    D E C I S 1 0 N
 
        
 
        and
 
        
 
        STATE OF IOWA,
 
        
 
            Insurance Carrier,
 
            Defendants.
 
        
 
        
 
                                 STATEMENT OF THE CASE
 
        
 
        Defendants appeal from an arbitration decision awarding permanent 
 
        total disability benefits.
 
        
 
        The record on appeal consists of the transcript of the 
 
        arbitration hearing and joint exhibits 1 through 5. Both parties 
 
        filed briefs on appeal.
 
        
 
                                      ISSUES
 
        
 
         Defendants state the issues on appeal are:
 
        
 
        I. This case was wrongly decided because the deputy industrial 
 
        commissioner inaccurately and erroneously stated the issue of the 
 
        case and the claimant's burden of proof which resulted in 
 
        erroneous findings of fact and conclusions of law in support of 
 
        the decision.
 
        
 
        II. This case was wrongly decided because the deputy industrial 
 
        commissioner erroneously concluded that a preponderance of 
 
        evidence showed the claimant suffered a personal injury on 
 
        December 16, 1985, which arose out of and in the course of his 
 
        employment and caused the subsequent disabling stroke during 
 
        coronary artery bypass surgery on January 9, 1986.
 
        
 
                                 REVIEW Or THE EVIDENCE
 
        
 
        The arbitration decision adequately and accurately reflects the 
 
        pertinent evidence and it will not be reiterated herein.
 
        
 
        VAN CANNON V. DEPARTMENT OF TRANSPORTATION
 
        Page 2
 
        
 
        
 
                                 APPLICABLE LAW
 
        
 
        The citations of law in the arbitration decision are appropriate 
 
        to the issues and evidence.
 
        
 
                                      ANALYSIS
 
        
 

 
        
 
 
 
 
 
        The analysis of the evidence in conjunction with the law in the 
 
        arbitration decision is adopted.
 
        
 
                                 FINDINGS OF FACT
 
        
 
        1. In September 1985, while at home, claimant experienced chest 
 
        pain requiring hospitalization .
 
        
 
        2. After an angiogram was performed, it was discovered claimant 
 
        suffered from coronary artery disease and angioplasty was 
 
        performed .
 
        
 
        3. After surgery claimant underwent cardiac rehabilitation and 
 
        was released to return to work December 1, 1985 symptom-free and 
 
        without restrictions.
 
        
 
        4. Claimant returned to work December 2, 1985, to his regular job 
 
        and was able to perform his regular duties including working 17 
 
        hours during a snowstorm .
 
        
 
        5. On December 16, 1985, while at work performing the assigned 
 
        task of chopping frozen dirt and ice from a truck bed, claimant 
 
        experienced chest pain, radiating down his arms, severe enough to 
 
        require emergency care and hospitalization.
 
        
 
        6. While hospitalized, claimant had a repeat angiogram and open 
 
        heart surgery was recommended.
 
        
 
        7. Quintuple coronary bypass graft operation was performed 
 
        January 9, 1986, during which claimant suffered stroke syndrome 
 
        (cerebral infarction).
 
        
 
        8. William S. Wheeler, M.D., L.A. Iannone, M.D., and Paul From, 
 
        M.D., agree the work incident precipitated the chain of events 
 
        which ultimately led to claimant's disability and/or materially 
 
        aggravated claimant's underlying heart disease.
 
        
 
        9. Claimant incurred medical expenses as a result of his injury 
 
        which have been paid under defendants' non-occupational group 
 
        plan.
 
        
 
        10. A bona fide dispute existed as to the benefits owed claimant 
 
        with regard to the issue of causation.
 
        
 
        VAN CANNON V. DEPARTMENT OF TRANSPORTATION
 
        Page 3
 
        
 
        
 
                                 CONCLUSIONS OF LAW
 
        
 
        Claimant has established he suffered an injury on December 16, 
 
        1985, which arose out of and in the course of his employment and 
 
        which materially aggravated preexisting heart disease.
 
        
 
        Claimant has established the work injury is causally connected to 
 
        the disability on which he now bases his claim.
 
        
 
        Claimant has established medical expenses are causally connected 
 
        to the work injury and defendants' liability therefor under Iowa 
 
        Code section 85.27.
 
        
 
        Claimant has not established entitlement to penalty benefits 
 
        under Iowa Code section 86.13.
 
        
 
        Defendants are entitled to credit under Iowa Code section 
 
        85.38(2) for benefits paid under a non-occupational group plan.
 

 
        
 
 
 
 
 
        
 
        WHEREFORE, the decision of the deputy is affirmed.
 
        
 
                                      ORDER
 
        
 
        THEREFORE, it is ordered:
 
        
 
        That defendants pay to claimant permanent total disability 
 
        benefits at the stipulated rate of one hundred eighty-four and 
 
        16/100 dollars ($184.16) per week for the period of his 
 
        disability 
 
        
 
        That defendants pay all medical expenses pursuant to Iowa Code 
 
        section 85.27 and are entitled to a credit for all medical 
 
        expenses paid under a non-occupational group plan.
 
        
 
        That payments which have accrued shall be paid in a lump sum 
 
        together with statutory interest thereon pursuant to Iowa Code 
 
        section 85.30.
 
        
 
        That defendants pay all costs including costs of transcription of 
 
        the arbitration hearing pursuant to Division of Industrial 
 
        Services Rule 343-4.33.
 
        
 
        That defendants shall file claim activity reports pursuant to 
 
        Division of Industrial Services Rule 343-3.1(2), as requested.
 
        
 
        
 
        Signed and filed this 21st day of February, 1989.
 
        
 
        
 
        
 
                                         DAVID E. LINQUIST
 
                                      INDUSTRIAL COMMISSIONER
 
        
 
        
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                  BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         ROBERT O. RILEY,
 
         
 
              Claimant,
 
         
 
         vs.
 
                                                   File No.  832021
 
         ROGER GLASNAPP, d/b/a
 
         GLASNAPP TRANSFER,                     A R B I T R A T I O N
 
         
 
              Employer,                            D E C I S I O N
 
         
 
         and
 
         
 
         ALLIED MUTUAL INSURANCE COMPANY,
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         
 
                                   INTRODUCTION
 
         
 
              This is a proceeding in arbitration brought by Robert O. 
 
         Riley against Roger Glasnapp, his former employer, and Allied 
 
         Mutual Insurance Company, the employer's insurance carrier.  The 
 
         case was heard and fully submitted on January 26, 1988 at Fort 
 
         Dodge, Iowa.  The record in this proceeding consists of testimony 
 
         from Robert O. Riley, Diane Riley, Roger Glasnapp, Marlene 
 
         Glasnapp, Renee Haden, Greg Williams, Ronald Helmbrecht and Duane 
 
         Segebarth.  The record also contains claimant's exhibits 1 
 
         through 34 and defendants' exhibits B and B-1.
 
         
 
                                      ISSUES
 
         
 
              Claimant alleges that he sustained an injury to his back 
 
         which arose out of and in the course of his employment on or 
 
         about September 16, 1985.  Claimant seeks compensation for 
 
         industrial disability and to recover expenses of medical 
 
         treatment and transportation expenses under Iowa Code section 
 
         85.27.  The issues presented for determination are whether Riley 
 
         sustained an injury on or about September 16, 1985 which arose 
 
         out of and in the course of employment with Roger Glasnapp; 
 
         whether the alleged injury is a proximate cause of any temporary 
 
         or permanent disability; determination of claimant's entitlement 
 
         to compensation for temporary total disability or healing period 
 
         and permanent disability; and, determination of claimant's 
 
         entitlement to section 85.27 benefits.  Defendants assert that 
 
         claimant failed to provide timely notice under the provisions of 
 
         section 85.23 of The Code.
 
         
 
                             SUMMARY OF EVIDENCE
 
         
 
              The following is a summary of evidence presented in this 
 
         case.  Only the evidence most pertinent to this decision is 
 
         discussed, but all of the evidence received at the hearing was 
 
         considered in arriving at this decision.  Conclusions about what 
 
         the evidence showed are inevitable with any summarization.  The 
 

 
         
 
         
 
         
 
         RILEY V. ROGER GLASNAPP
 
         PAGE   2
 
         
 
         
 
         conclusions in the following summary should be considered to be 
 
         preliminary findings of fact.
 
         
 
              Robert O. Riley is a 47-year-old man who dropped out of high 
 
         school at age 17.  He has held a variety of jobs, all of which 
 
         involved a substantial amount of physical activity.  In 1961, 
 
         Riley was severely injured in a motor vehicle accident where he 
 
         suffered fractured vertebrae.  For a period of time following 
 
         that injury, his bladder function was impaired.  The sensation in 
 
         his lower extremities was also affected.
 
         
 
              Approximately two years after that 1961 accident, Riley 
 
         resumed a relatively normal level of activity and engaged in 
 
         physical employment.
 
         
 
              In 1975, while working for a farmer, Riley was injured while 
 
         loading hogs.  He was off work for one and one-half years 
 
         following that incident, was paid workers' compensation and was 
 
         awarded a 25% permanent partial disability settlement.
 
         
 
              Claimant commenced employment with Roger Glasnapp in 1978, 
 
         initially working part-time and moving to a full-time status in 
 
         1980.  Even when working full-time, Riley was laid off and 
 
         received unemployment from the first of December until the first 
 
         of March each year.  Riley performed a variety of activities 
 
         including truck driving, farm implement repair, farm implement 
 
         operation and general farm work.
 
         
 
              Riley testified that, on September 16 or 17, 1985, he was 
 
         injured while either putting weights on Glasnapp's 4450 John 
 
         Deere tractor or while taking them off.  Riley stated that he 
 
         felt no immediate pain or difficulty while performing the 
 
         activity, but that, later that afternoon, pain started in his 
 
         mid-back at the belt line.  Riley testified that Glasnapp was 
 
         present when the weights were being moved and that, on the 
 
         following day, he reported to Roger Glasnapp that he had done 
 
         something to his back.  Riley testified that Glasnapp asked him 
 
         what he had done and Riley replied he was uncertain.
 
         
 
              Riley testified that he sought treatment from a doctor of 
 
         chiropractic medicine on September 30 and had informed Roger 
 
         Glasnapp that he needed to take time off in order to go to the 
 
         chiropractor in order to get his back fixed prior to the harvest.  
 
         Riley testified that he was off work one week beginning on 
 
         September 30, 1985 in accordance with the doctor's 
 
         recommendations.  Riley testified that he informed the doctor 
 
         that he had injured his back putting wheel weights on a tractor.
 
         
 
              Riley stated that he continued to work for Glasnapp until 
 
         the end of December, 1985 performing various activities.  Riley 
 
         stated that he continued to work for Glasnapp throughout the 
 
         winter as needed and drew unemployment when he was not working.
 
         
 
              Riley testified that, in May, 1986, Glasnapp loaned him $350 
 
         in order to pay for a CT scan at University Hospitals at Iowa 
 
         City.  At Iowa City, Riley was treated by Dr. Collalto and J. W. 
 
         Weinstein, M.D. (exhibits 15, 20 and 27).  Both physicians 
 
         related the increased complaints regarding claimant's back to an 
 
         injury that occurred in September of 1985.
 
         
 
              Claimant was also evaluated by A. J. Wolbrink, M.D., an 
 
         orthopaedic surgeon, who likewise related a portion of claimant's 
 
         spinal problems to the alleged September, 1985 incident (exhibit 
 

 
         
 
         
 
         
 
         RILEY V. ROGER GLASNAPP
 
         PAGE   3
 
         
 
         
 
         23).  All the physicians, when asked, related a portion of 
 
         Riley's permanent impairment to the alleged September, 1985 
 
         injury.
 
         
 
              Riley testified that he is afflicted with back and leg pain 
 
         and problems with bowel and bladder control.  Riley stated that 
 
         he is restricted in his ability to work, particularly activities 
 
         involving lifting, bending and anything which stresses his back. 
 
          Riley stated that he has back pain 24 hours per day for which he 
 
         takes prescription medication.
 
         
 
              Over the years, both prior to and since the alleged injury, 
 
         Riley has engaged in employment activities such as mechanical 
 
         work, cutting salvage iron and cutting wood to heat his home.
 
         
 
              Roger Glasnapp, Riley's former employer, testified that, in 
 
         the fall and particularly in September of 1985, there would have 
 
         been no need to change tractor wheel weights.  Glasnapp denied 
 
         being present at any time in September of 1985 when Riley would 
 
         have been changing tractor wheel weights.  Glasnapp denied being 
 
         told by Riley that he had injured his back while working for 
 
         Glasnapp.  Glasnapp testified that, on a morning in September, 
 
         1985, Riley had told him that he had picked up a lot of iron the 
 
         preceding evening and that he needed to do it because the other 
 
         local iron cutter was going to get whatever Riley did not.
 
         
 
              Glasnapp stated that, in late September, Riley told him that 
 
         his back was bothering and that he was going to go to a 
 
         chiropractor, but that Riley made no mention that he thought the 
 
         problem was work-related and did not submit any bills for 
 
         treatment or make any claim for workers' compensation benefits at 
 
         that time.  Glasnapp stated that, after going to the 
 
         chiropractor, Riley returned to work and appeared to be no 
 
         different than he had been previously.  Glasnapp stated that 
 
         Riley worked throughout the harvest and was able to do all that 
 
         was asked of him without complaining of back pain.  Glasnapp 
 
         stated that Riley worked as needed over the winter and could have 
 
         performed activities such as driving a truck or machine repair.
 
         
 
              Glasnapp stated that he first knew claimant was seeking 
 
         workers' compensation for his back as a result of a telephone 
 
         call from his insurance agent's office.  Glasnapp stated that, in 
 
         May of 1986, he and his wife had advanced $350 to Riley in order 
 
         to pay for a CT scan at Iowa City.  Glasnapp stated that Riley 
 
         had told him he had pain in his back that was going into his leg, 
 
         but he did not say anything about it being work-related.
 
         
 
              Marlene Glasnapp, Roger Glasnapp's spouse, stated that she 
 
         performs the bookkeeping and dispatching for Glasnapp Transfer 
 
         and maintains all records of the business.  Marlene Glasnapp 
 
         stated that Riley did not make any complaint of injuring his back 
 
         while working for her and her husband in 1985, although she was 
 
         aware he went to a chiropractor.  Marlene Glasnapp stated that 
 
         Riley did not submit any bills from the chiropractic treatments 
 
         for payment.
 
         
 
              Marlene Glasnapp stated that Riley had gone to Iowa City and 
 
         returned and told her he needed a CT scan and that it would cost 
 
         $350.  Marlene stated that Riley indicated he was afraid he might 
 
         have cancer and Marlene and Roger Glasnapp advanced him $350.  
 
         Marlene stated that, when Riley worked for them in May, 1986, she 
 
         applied half of his earnings to the $350 advanced and paid the 
 
         other half to him.  Marlene stated that, when discussing the CT 
 

 
         
 
         
 
         
 
         RILEY V. ROGER GLASNAPP
 
         PAGE   4
 
         
 
         
 
         scan cost, Riley asked if they had any insurance which would 
 
         cover him and that she told him the only insurance would be 
 
         workers' compensation which covers accidents and injuries, but 
 
         not cancer.
 
         
 
              Marlene Glasnapp testified that the first knowledge she had 
 
         that Riley claimed his back condition was work-related was when 
 
         her daughter, who is employed at her insurance agent's office, 
 
         phoned and informed her of his claim.  Marlene stated that she 
 
         then prepared the first report of injury which appears in exhibit 
 
         17.
 
         
 
              Renee Haden is the daughter of Roger and Marlene Glasnapp.  
 
         Haden testified that, in 1986, she was office manager at the 
 
         Lytton Community Insurance Agency.  Haden stated that she helped 
 
         prepare a first report of injury that is in the record as 
 
         defendants' exhibit B from information Riley provided to her.  
 
         Haden stated that Riley, when he came to the office, was 
 
         uncertain as to the date of injury and took a partially completed 
 
         first report off injury form home to complete and then returned 
 
         it.  Haden ,stated that the portion written in blue ink was 
 
         filled in when Riley returned the form.  Haden stated that 
 
         exhibit B-1 was completed within one or two days after Riley 
 
         returned it.
 
         
 
              Haden stated that she phoned her mother and advised her that 
 
         Riley was filing a claim.
 
         
 
              Duane Segebarth testified that he has been employed as a 
 
         truck driver for Glasnapp Transfer for 13 years, but that he 
 
         occasionally helps with the farming operation.  Segebarth stated 
 
         that he worked with Riley during the fall of 1985 and heard Riley 
 
         tell of cutting iron from Ron Helmbrecht.  Segebarth stated that 
 
         Riley never told him that he had hurt his back while working at 
 
         Glasnapp's and never discussed anything that had happened to his 
 
         back, except that at one time, while having coffee at Glasnapp's, 
 
         Riley mentioned Iowa City for back problems.
 
         
 
              Ronald Helmbrecht testified that Riley had agreed to salvage 
 
         iron located on Helmbrecht's farm for one-half of whatever the 
 
         iron sold for.  Helmbrecht stated that the agreement was made in 
 
         the spring and that he wanted the iron removed, but that, by 
 
         September, Riley had not finished and another iron cuter had 
 
         expressed interest in salvaging it.  Helbrecht stated that, 
 
         shortly thereafter, less than a week, someone did salvage the 
 
         better iron while Helmbrecht was gone, but left the tin and wire.  
 
         Helmbrecht testified that, shortly after making the agreement, 
 
         Riley, his wife and children salvaged some of the iron, but left 
 
         the rest sit for over the summer.  Helmbrecht stated that he had 
 
         settled with Riley on the iron for the work that was done in the 
 
         spring of 1985, but that they had not settled for any work done 
 
         subsequently.
 
         
 
              Diane Riley, claimants spouse, testified that, on or about 
 
         September 16, 1985, Robert came home and informed her that he had 
 
         been hurt at work lifting weights.  Diane Riley stated that 
 
         claimant went to Dr. DeVries, a chiropractor.
 
         
 
              Diane Riley stated that she discussed claimant's condition 
 
         with Marlene Glasnapp shortly after claimant was injured.  Diane 
 
         stated that she told Marlene Glasnapp that Robert had been 
 
         injured while working for Glasnapp's.  Marlene Glasnapp denied 
 
         being informed of such by Diane Riley.
 

 
         
 
         
 
         
 
         RILEY V. ROGER GLASNAPP
 
         PAGE   5
 
         
 
         
 
         
 
              Exhibits 14 and 18 consist of records from DeVries 
 
         Chiropractic Offices.  A portion which is entitled "Confidential 
 
         Patient Information" indicates that claimant was seen on 
 
         September 30, 1985 and reported pain in his left hip which had 
 
         started approximately a week earlier.  The record makes reference 
 
         to claimant having had his back broken and being knocked 
 
         backwards loading hogs.  The records do not specifically contain 
 
         any portion which asks for a history with regard to the patient's 
 
         current complaints or their onset.
 
         
 
              Exhibit 17 is a first report of injury prepared by Marlene 
 
         Glasnapp.  It indicates that the employer first knew of 
 
         claimant's condition on a date which appears to be either May or 
 
         June 4, 1986.  Exhibit B is the first report of injury as 
 
         returned by Robert Riley to Renee Haden at the insurance office 
 
         and exhibit B-1 is that same report as completed by Renee Haden.
 
         
 
                           APPLICABLE LAW AND ANALYSIS
 
         
 
              Claimant has the burden of proving by a preponderance of the 
 
         evidence that he received an injury on or about September 16, 
 
         1985 which arose out of and in the course of his employment.  
 
         McDowell v. Town of Clarksville, 241 N.W.2d 904 (Iowa 1976); 
 
         Musselman v. Central Telephone Co., 261 Iowa 352, 154 N.W.2d 128 
 
         (1967).
 
         
 
              The words "arising out of" refer to the cause or source of 
 
         the injury.  Sheerin v. Holin Co., 380 N.W.2d 415, 417 (Iowa 
 
         1986); McClure v. Union County, 188 N.W.2d 283, 287 (Iowa 1971); 
 
         Musselman v. Central Telephone Co., 261 Iowa 352, 154 N.W.2d 128, 
 
         130 (1967); Crowe v. DeSoto Consol. Sch. Dist., 246 Iowa 402, 68 
 
         N.W.2d 63 (1955).
 
         
 
              The words "in the course of" refer to the time and place and 
 
         circumstances of the injury.  McClure v. Union et al. Counties, 
 
         188 N.W.2d 283 (Iowa 1971); Crowe v. DeSoto Consol. Sch. Dist., 
 
         246 Iowa 402, 68 N.W.2d 63 (1955).
 
         
 
              The supreme court of Iowa in Almquist v. Shenandoah 
 
         Nurseries, 218 Iowa 724, 254 N.W. 35 (1934) at 731-32, discussed 
 
         the definition of personal injury in workers' compensation cases 
 
         as follows:
 
         
 
              While a personal injury does not include an 
 
              occupational disease under the workmen's Compensation 
 
              Act, yet an injury to the health may be a personal 
 
              injury [Citations omitted.]  Likewise a personal injury 
 
              includes a disease resulting from an injury .... The 
 
              result of changes in the human body incident to the 
 
              general processes of nature do not amount to a personal 
 
              injury.  This must follow, even though such natural 
 
              change may come about because the life has been devoted 
 
              to labor and hard work.  Such result of those natural 
 
              changes does not constitute a personal injury even 
 
              though the same brings about impairment of health or 
 
              the total or partial incapacity of the functions of the 
 
              human body.
 
         
 
               ....
 
         
 
              A personal injury, contemplated by the Workmen's 
 
              Compensation Law, obviously means an injury to the 
 

 
         
 
         
 
         
 
         RILEY V. ROGER GLASNAPP
 
         PAGE   6
 
         
 
         
 
              body, the impairment of health, or,a disease, not 
 
              excluded by the act, which comes about, not through the 
 
              natural building up and tearing down of the human body, 
 
              but because of a traumatic or other hurt or damage to 
 
              the health or body of an employee. [Citations omitted.]  
 
              The injury to the human body here contemplated must be 
 
              something, whether an accident or not, that acts 
 
              extraneously to the natural processes of nature and 
 
              thereby impairs the health, overcomes, injures, 
 
              interrupts, or destroys some function of the body, or 
 
              otherwise damages or injures a part or all of the 
 
              body.
 
         
 
              While a claimant is not entitled to compensation for the 
 
         results of a preexisting injury or disease, the mere existence at 
 
         the time of a subsequent injury is not a defense.  Rose v. John 
 
         Deere Ottumwa Works, 247 Iowa 900, 908, 76 N.W.2nd 756, (1956).  
 
         If the claimant had a preexisting condition or disability that is 
 
         aggravated, accelerated, worsened or lighted up so that it 
 
         results in disability, claimant is entitled to recover.  Nicks v 
 
         Davenport Produce Co., 254 Iowa 130, 115 N.W.2d 812, (1962).
 
         
 
              When an aggravation occurs in the performance of an 
 
         employer's work and a causal connection is established, claimant 
 
         may recover to the extent of the impairment.  Ziegler v. United 
 
         States Gypsum Co., 252 Iowa 613, 620, 106 N.W.2d 591, (1960).
 
         
 
              Claimant's burden is to prove is  that  it  is  probable, as 
 

 
         
 
         
 
         
 
         RILEY V. ROGER GLASNAPP
 
         PAGE   7
 
         
 
         
 
         opposed to merely possible, that he was injured in the manner in 
 
         which he alleges.  Burt v. John Deere Waterloo Tractor Works, 247 
 
         Iowa 691, 73 N.W.2d 732 (1956).
 
         
 
              The appearance and demeanor of all the individuals who 
 
         appeared at hearing and testified was observed by the 
 
         undersigned.  The testimony with regard to whether or not Riley 
 
         was injured while working with tractor weights in September of 
 
         1985 presents irreconcilable conflict between the testimony from 
 
         Robert and Diane Riley and the testimony from Roger and Marlene 
 
         Glasnapp.  The record of this case shows Robert Riley to have had 
 
         two serious injuries to his back prior to September of 1985.  It 
 
         is likely that Robert Riley's back has been a problem ever since 
 
         it was initially injured in 1961.  The first written 
 
         corroboration of Riley's claim which can be found in the record 
 
         appears to be either the first report of injury or his early 
 
         treatment at the University of Iowa Hospitals.  In any event, the 
 
         earliest written corroboration appears to have originated in 
 
         April or May of 1986.  It is considered to be of significant 
 
         importance that Riley continued to work through December on a 
 
         full-time basis and thereafter continued to work on a part-time 
 
         basis until May of 1986.  There is evidence that Riley may have 
 
         been injured while working for Glasnapp in 1984 without 
 
         submitting the treatment expenses for payment.  Having observed 
 
         Riley and his activities since September of 1985, in light of his 
 
         prior back problems, it would not be difficult for the 
 
         undersigned to believe that Riley would have worked without 
 
         complaint, even though he were experiencing pain.  Nevertheless, 
 
         the burden of proof rests with the claimant.  It is determined 
 
         that the credibility of Robert.and Diane Riley is not 
 
         sufficiently strong to prevail over the irreconcilably 
 
         conflicting testimony from Roger and Marlene Glasnapp.  When the 
 
         evidence is in equipoise, as it is in this case, the claimant has 
 
         failed to carry the burden of proving that he was injured as he 
 
         alleged.
 
         
 
         
 
                                 FINDING OF FACT
 
         
 
              1.  Robert Riley has failed to introduce sufficient evidence 
 
         to show that it is more likely than not that he was injured while 
 
         handling tractor weights as part of the duties of his employment 
 
         with Roger Glasnapp on or about September 16, 1985.
 
         
 
         
 
                                CONCLUSIONS OF LAW
 
         
 
              1.  This agency has jurisdiction of the subject matter of 
 
         this proceeding and its parties.
 
         
 
              2.  The claimant, Robert O. Riley, has failed to prove, by a 
 
         preponderance of the evidence, that he sustained an injury on or 
 
         about September 16, 1985 which arose out of and in the course of 
 
         his employment with Roger Glasnapp, d/b/a Glasnapp Transfer.
 
         
 
                                      ORDER
 
         
 
              IT IS THEREFORE ORDERED that claimant take nothing from this 
 
         proceeding.
 
         
 
              IT IS FURTHER ORDERED that each party is responsible for the 
 
         costs incurred by that party in this proceeding and that neither 
 
         shall receive an award of costs from the other.
 

 
         
 
         
 
         
 
         RILEY V. ROGER GLASNAPP
 
         PAGE   8
 
         
 
         
 
         
 
              Signed and filed this 17th day of November, 1988.
 
         
 
         
 
         
 
         
 
         
 
                                         MICHAEL G. TRIER
 
                                         DEPUTY INDUSTRIAL COMMISSIONER
 
         
 
         
 
         Copies To:
 
         
 
         Mr. Steve Hamilton
 
         Attorney at Law
 
         606 Ontario Street
 
         P.O. Box 188
 
         Storm Lake, Iowa 50588
 
         
 
         Mr. Claire F. Carlson
 
         Attorney at Law
 
         7th Floor, Snell Building
 
         P.O. Box 957
 
         Fort Dodge, Iowa 50501
 
         
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                               1402.30
 
                                               Filed November 17, 1988
 
                                               MICHAEL G. TRIER
 
         
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         ROBERT O. RILEY,
 
         
 
              Claimant,
 
         
 
         vs.
 
                                                   File No. 832021
 
         ROGER GLASNAPP, d/b/a
 
         GLASNAPP TRANSFER,                     A R B I T R A T I O N
 
         
 
              Employer,                            D E C I S I O N
 
         
 
         and
 
         
 
         ALLIED MUTUAL INSURANCE COMPANY,
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
         
 
         1402.30
 
         
 
              Where the evidence was found to be in equipoise, it was held 
 
         that the claimant failed to carry the burden of proving that he 
 
         sustained an injury which arose out of and in the course of 
 
         employment with his employer.