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                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            BRAD OLSON,                   :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :      File No. 858635
 
            WILSON FOODS CORPORATION,     :
 
                                          :    A R B I T R A T I O N
 
                 Employer,                :
 
                 Self-Insured,            :      D E C I S I O N
 
                                          :
 
            and                           :
 
                                          :
 
            SECOND INJURY FUND OF IOWA,   :
 
                                          :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
                 On May 26, 1989, Brad Olson (claimant) filed a petition 
 
            for arbitration as a result of injuries to claimant's right 
 
            arm occurring July 2, 1986.  The Second Injury Fund of Iowa 
 
            (Fund) was identified as the sole remaining defendant.  
 
            Claimant entered into an agreement for settlement with 
 
            Wilson Foods shortly before the hearing in this matter.  The 
 
            settlement was subsequently approved on May 30, 1991.  On 
 
            May 2, 1991, these matters came on for hearing in Storm 
 
            Lake, Iowa.  The parties appeared as follows:  the claimant 
 
            in person and by his counsel Harry Smith of Sioux City, Iowa 
 
            and the Fund by Assistant Attorney General Joanne Moeller of 
 
            Des Moines, Iowa.  
 
            
 
                 The record in this proceeding consisted of the 
 
            following:
 
            1.  The live testimony of the claimant and his wife Peggy.  
 
            2.  Claimant's exhibits 1-34.
 
            3.  Defendants' exhibits A and B.
 
            
 
                                   stipulations
 
            
 
                 The parties stipulated to the following matters at the 
 
            time of the hearing:
 
            a.  An employer-employee relationship existed between 
 
            claimant and employer at the time of the alleged injury.
 
            b.  The type of permanent disability, if the injury is found 
 
            to be a cause of permanent disability, is a scheduled member 
 
            disability to the right elbow.
 
            c.  The rate of compensation, in the event of an award, is 
 
            $228.30 per week based on a gross weekly wage of $358.00.  
 
            Claimant is married and has one child.  He is entitled to 
 
            three exemptions.
 
            
 
            Issues
 
 
 
                 The issues for resolution are as follows:
 
            
 
                 1.  Whether claimant sustained an injury on July 2, 
 
            1986, which arose out of and in the course of his employment 
 

 
            
 
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            with Wilson.
 
            
 
                 2.  Whether there is Second Injury Fund liability.
 
            
 
                                 findings of fact
 
            
 
                 After considering all of the evidence and the arguments 
 
            of counsel, the undersigned makes the following findings of 
 
            fact and conclusions of law.
 
            
 
                 1.  At the time of the hearing in this matter, claimant 
 
            was 36 years old.  He is right hand dominant.  Claimant is a 
 
            high school graduate from Washington High School in 
 
            Cherokee.  Claimant graduated in 1974.  Claimant was not a 
 
            good student and averaged C and D's during his tenure at 
 
            Washington High School.  Claimant has had no other formal 
 
            training other than a high school education.  While in high 
 
            school, claimant did take some shop training as a welder and 
 
            worked part-time at a gas station where he learned the 
 
            mechanic trade.
 
            
 
                 2.  After claimant graduated from high school, claimant 
 
            worked for various employers performing work related to 
 
            mechanic work and welding.  During this time period, 
 
            claimant was arrested for breaking and entering and was 
 
            eventually convicted.  Claimant was sentenced to ten years 
 
            and spent 8-9 months in jail.  After his incarceration, 
 
            claimant was employed by Grumdaman-Hicks, a construction 
 
            company.  Claimant was hired as a laborer and worked there 
 
            for three months.
 
            
 
                 3.  In 1978, claimant obtained work as a tractor repair 
 
            worker at Door Implement in Cleghorn.  His job duties 
 
            consisted of overhauling diesel engines.  Thereafter, 
 
            claimant was self-employed for a year.  He determined that 
 
            this was not profitable and sought employment with Wilson 
 
            Foods.  Claimant began his employment with Wilson on 
 
            September 6, 1984.  Prior to claimant's employment with 
 
            Wilson, he had generally averaged wages that range from 
 
            $1.00 per hour to $5.00 per hour in his various occupations.
 
            
 
                 4.  Prior to being employed by Wilson, claimant had 
 
            suffered some injuries due to non-work related accidents and 
 
            work related accidents.  In 1974, claimant was in an 
 
            automobile accident where he injured his back and neck.  No 
 
            permanent disability resulted from those injuries however.  
 
            Next, while claimant was working at Door Implement a clutch 
 
            peddle hit him in the back.  He was off work for four or 
 
            five weeks and this injury was compensated by workers' 
 
            compensation benefits.  Finally, claimant injured his right 
 
            knee when he banged his knee on a hitch while employed at 
 
            Vollmer Motors .  He was off work for a while, but does not 
 
            recall receiving workers' compensation benefits for that 
 
            injury.
 
            
 
                 5.  Before starting his work at Wilson, claimant was 
 
            given a complete physical by Keith Garner, M.D., Wilson's 
 
            company physician.  After the examination, claimant was 
 
            judged capable of doing heavy physical labor.  Claimant 
 
            worked primarily as a boner.  Claimant also had experience 
 

 
            
 
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            working in the hotdog room.  Claimant's work could be 
 
            characterized as fast repetitious work.  As a boner, 
 
            claimant boned 800 hams an hour.  Claimant was required to 
 
            make several cuts to cut the ham into smaller pieces.  
 
            Claimant used a 6 inch boning knife to remove arteries, fat 
 
            and abscesses from the ham.  Claimant would hold the ham in 
 
            his left and hold the knife in his right hand.  For this 
 
            work, claimant earns a base wage of $9.42 per hour.
 
            
 
                 6.  Claimant started experiencing problems with his 
 
            hands in 1984.  On November 30, 1984, claimant indicated 
 
            that his right hand and thumb were sore but he could 
 
            attribute no specific injury to his complaints.  His thumb 
 
            was swollen at the base.  The diagnoses at that time was 
 
            myositis and claimant was directed to continue work if 
 
            possible.  Claimant's right hand caused him further problems 
 
            into 1985.  In January of 1985, claimant had a cast put on 
 
            his right hand to give his thumb an opportunity to rest.  
 
            However, this treatment protocol was not successful and 
 
            claimant was referred to John Connolly, M.D. who eventually 
 
            referred claimant to Richard Murphy M.D.
 
            
 
                 7.  In February of 1985, Richard Murphy, M.D., noted 
 
            that claimant could recall no specific injury but that the 
 
            claimant works vigorously as a meat boner and noticed that 
 
            at the end of the day he had a large amount of swelling and 
 
            pain in his thumb.    Dr. Murphy could not determine from 
 
            the history and his examination what the cause of the 
 
            persistent swelling was.  However, he suspected synovitis of 
 
            the right thumb.  The synovitis diagnosis was confirmed with 
 
            a bone scan on February 21, 1985.  Dr. Murphy felt that 
 
            claimant could continue to work however and he returned him 
 
            to work thereafter.
 
            
 
                 8.  In April of 1985, claimant continued to complain of 
 
            pain and periodic swelling of his right thumb.  The 
 
            diagnosis of synovitis remained the same and claimant was 
 
            directed to have physical therapy and return to his work.
 
            
 
                 9.  In April of 1985, claimant reported an injury to 
 
            his left arm and hand when he was twisting his arm to shank 
 
            hams.  He was taken off work and given physical therapy 
 
            treatment.  In July of 1985, claimant was still experiencing 
 
            swelling in his forearm.  At the end of July, an EMG test 
 
            showed a finding of left carpal tunnel syndrome.  At that 
 
            point, claimant was referred to Thomas P. Ferlic, M.D., for 
 
            further care and management.  
 
            
 
                 10. On July 29, 1985, Dr. Ferlic had an opportunity to 
 
            examine claimant.  Claimant told Dr. Ferlic that he felt 
 
            something snap in his left proximal forearm and the hand 
 
            went numb.  Claimant has tenderness over the pronator muscle 
 
            and he has a positive Tinel's and Phalen's signs at the 
 
            wrist as well as a positive external compression type test.  
 
            Dr. Ferlic concluded that claimant was suffering from carpal 
 
            syndrome on the left side and recommended carpal tunnel 
 
            release.  Claimant had the carpal tunnel release surgery and 
 
            was off work for approximately six weeks.  Claimant returned 
 
            to work on September 12, 1985.  As a result of this surgery, 
 
            Dr. Ferlic gave claimant a ten percent permanent impairment 
 

 
            
 
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            rating for the carpal tunnel release.  Claimant was 
 
            subsequently paid workers' compensation benefits with an 
 
            agreement for settlement approved on November 15, 1985.
 
            
 
                 11. In January of 1986, claimant began to complain of 
 
            left thumb strain due to repetitive trauma.  Claimant 
 
            indicated to Wilson plant officials that the base of his 
 
            thumb was sore and that his right thumb base was also 
 
            bothering him some but less than the left.  Claimant was 
 
            again referred to Dr. Murphy for treatment.
 
            
 
                 12. In February of 1986, Dr. Murphy had an opportunity 
 
            to examine claimant and found that claimant had synovitis in 
 
            both thumb joints with the left being greater than the right 
 
            at this time.  Dr. Murphy, at that point, injected his thumb 
 
            to relieve the symptoms.  Claimant was returned to work at 
 
            that time.  Claimant's care regarding his thumbs continued 
 
            from February of 1986 through April of 1986.  Claimant was 
 
            paid for this loss as reflected in the Form 2A that was 
 
            filed with the agency on April 14, 1986.
 
            
 
                 13. In March and July of 1986, claimant complained of 
 
            right elbow pain.  He was eventually diagnosed as having 
 
            epicondylitis resulting from repetitive trauma.  Claimant 
 
            indicated that at the time he reported that his elbow had 
 
            been bothering him for several weeks.  Claimant indicated 
 
            that his elbow had started to hurt while he was shanking 
 
            hams.  There was no evidence that claimant was taken off 
 
            work as a result of his elbow condition.  Subsequently, 
 
            claimant was examined by Dr. Garner, who noted that claimant 
 
            had pain in his right thumb and his elbow.  Dr. Garner 
 
            diagnosed lateral epicondylitis but directed claimant to 
 
            continue working.  In the meantime, claimant continued to 
 
            complain of pain in his left hand.  However, there was no 
 
            evidence of any further carpal tunnel problems in the left 
 
            and claimant was simply given conservative treatment in 
 
            order to treat the pain symptoms.
 
            
 
                 14. With regard to claimant's left hand, claimant was 
 
            examined by Dr. Ferlic in February of 1987.  Dr. Ferlic 
 
            concluded that claimant was suffering from overuse syndrome 
 
            on the left hand.  He noted that claimant had scar 
 
            tenderness with full range of motion in all digits.  There 
 
            was no evidence of continuing synovitis and claimant had a 
 
            negative Phalen's and Tinel's sign.  Claimant was instructed 
 
            to continue to work with no restrictions.
 
            
 
                 15. In August of 1987, claimant renewed his complaints 
 
            of right elbow pain.  Dr. Garner examined claimant's elbow 
 
            in September and the examination showed point tenderness 
 
            over his lateral and medial epicondyle with medial 
 
            epicondylitis.  Claimant was again referred to Dr. Ferlic 
 
            for management and care.
 
            
 
                 16. On September 8, 1987, Dr. Ferlic, in a letter, 
 
            indicated that claimant had medial epicondylitis in his 
 
            right elbow.  He noted that any type of job which causes 
 
            repetitive flexion of his wrist and elbow would probably 
 
            bother the claimant.  Claimant was capable of doing heavy 
 
            work if it did not concern repetitive flexion of those 
 

 
            
 
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            joints.  In October, claimant was evaluated by Dennis Nitz, 
 
            M.D., who found that there was no known nerve pattern that 
 
            was producing the type of symptoms claimant was complaining 
 
            of.  Dr. Nitz concluded that the pain complaints were not 
 
            work related.
 
            
 
                 17. However, claimant continued to complain that his 
 
            right elbow pain was worse rather than better.  He was again 
 
            referred to Dr. Ferlic for examination.  When Dr. Ferlic had 
 
            an opportunity to examine the claimant on October 14, 1987, 
 
            he noted that claimant had had pain in his elbow for 
 
            approximately a year and a half.  Claimant indicated to Dr. 
 
            Ferlic that any activity at work makes his pain in his elbow 
 
            worse with rest making the pain better.  Dr. Ferlic did a 
 
            series of studies which were all negative.  Dr. Ferlic could 
 
            not recommend any surgical remedy for claimant's particular 
 
            problem.  Dr. Ferlic could not offer claimant any treatment 
 
            except to counsel him regarding light duty work or another 
 
            line of work.  
 
            
 
                 18. On October 28, 1987, Dr. Ferlic gave claimant a ten 
 
            percent disability rating for his arm due to the chronic 
 
            epicondylitis he was suffering in his elbow.  Dr. Ferlic 
 
            also concluded that claimant was suffering from a permanent 
 
            disability and that he had reached maximum medical 
 
            improvement.  No restrictions were imposed by Dr. Ferlic.
 
            
 
                 19. Claimant was evaluated by Scott Neff, M.D., on 
 
            December 10, 1987.  Dr. Neff could find no permanent medical 
 
            impairment with reference to the right elbow or the left 
 
            hand.  The rating, was based on an evaluation performed by 
 
            Tom Bauer, a physical therapist.  Mr. Bauer indicated that 
 
            claimant had a full range of motion in the right elbow, 
 
            right wrist and left wrist.  He indicated that the grip 
 
            strengths were essentially equal from side to side and the 
 
            pinch grasps were also equal from side to side.  He 
 
            concluded along with Dr. Neff that claimant had no permanent 
 
            impairment resulting from the injuries that he had suffered 
 
            at Wilson.  He did recommended that if the grip on 
 
            claimant's knife was widened that he would probably not have 
 
            a continuing problem with his hand.
 
            
 
                 20. Claimant was next evaluated by Anil Agrowal, M.D., 
 
            who recited a history of problems with both hands, wrists 
 
            and right shoulder dating back to 1984.  Dr. Agrowal 
 
            indicated that claimant had had various treatments with Drs. 
 
            Murphy, Ferlic and Connolly and gave a short history of 
 
            claimant's treatment for these conditions.  Dr. Agrowal 
 
            indicated that claimant had reached maximum medical 
 
            improvement and had a 25 pound lifting restriction due to 
 
            his back.  Dr. Agrowal also noted that claimant had a ten 
 
            percent permanent disability to his left wrist but could 
 
            find no permanent impairment for claimant's right elbow.  
 
            Dr. Agrowal did not impose any restrictions regarding 
 
            claimant's elbow.
 
            
 
                 21. In July of 1988, claimant was again treated by Dr. 
 
            Ferlic.  Dr. Ferlic noted that claimant complained of pain 
 
            in his right elbow.  Claimant had been off work for 4 or 5 
 
            months and the pain had improved.  There is no indication 
 

 
            
 
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            that claimant was off work due to his elbow however.  
 
            Claimant did report to Dr. Ferlic that he took himself off 
 
            work once a week for a day or so to reduce the pain in his 
 
            arm.  There was still nothing to offer claimant by way of 
 
            treatment for his pain.  Dr. Ferlic indicated that claimant 
 
            should continue his stretching program and have physical 
 
            therapy to reduce the symptoms of the condition.
 
            
 
                 22. On April 19, 1989, Dr. Ferlic indicated that 
 
            claimant's impairments were substantially caused by his work 
 
            at Wilson.  This conclusion was corroborated in a report on 
 
            March 1, 1991, by Pat Luse, D.C., who found that claimant 
 
            had a ten percent impairment of his hand and a ten percent 
 
            impairment of his elbow.  Dr. Luse restricted claimant to no 
 
            repetitive work.  Dr. Luse based his impairment rating on 
 
            history given by the claimant and review of various medical 
 
            records that had been generated by this case.
 
            
 
                 23. As a result of claimant's continuing hand and arm 
 
            problems, he indicated that he has trouble on the job.  He 
 
            has left hand pain that is persistent and his right arm is 
 
            swollen all the time.  Claimant indicated at the time of the 
 
            hearing that he had suffered an economic loss because he was 
 
            unable perform mechanical work and remodeling work on the 
 
            side.  However, claimant had been paid for these services in 
 
            cash and did not report the income to the Internal Revenue 
 
            Service.  He indicated that he cannot mow or paint and he 
 
            cannot do various household tasks.  Claimant is working in 
 
            the same job that he had at the time of his injuries.  
 
            Additionally, claimant has had no treatment for his right 
 
            arm since 1988.  Claimant is taking no medication for his 
 
            right arm or left hand.  
 
            
 
                 24. Claimant is earning a higher wage now than he did 
 
            at the time of his injuries.  He has not been compelled to 
 
            change any of his duties as a result of the injuries he has 
 
            suffered to his left hand and right arm.  Apparently, 
 
            claimant is taking two aspirins per day and some Tylox for 
 
            his upper back, a condition that is not an issue in this 
 
            case.
 
            
 
                 25. There is no evidence that claimant has made an 
 
            independent job search to determine what he would be able to 
 
            earn in the competitive labor market in the event that he 
 
            chose to leave Wilson Food.
 
            
 
                                CONCLUSIONS OF LAW
 
            
 
                 1.  Whether claimant sustained an injury on July 2, 
 
            1986 which arose out of and in the course of his  employment 
 
            with Wilson.
 
            
 
                 The Fund is arguing that claimant did not sustain an 
 
            injury in the course of his employment on July 2, 1986.  It 
 
            contends that claimant is suffering from an occupational 
 
            disease as a result of the epicondylitis diagnosed in his 
 
            right elbow.  Claimant contends he suffered a cumulative 
 
            trauma to his right elbow and did not suffer an occupational 
 
            disease.
 
            
 

 
            
 
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                 Claimant has the burden of proving by a preponderance 
 
            of the evidence that he received an injury on July 2, 1988 
 
            which arose out of and in the course of his employment. 
 
            McDowell v. Town of Clarksville, 241 N.W.2d 904, 908 (Iowa 
 
            1976); Musselman v. Central Telephone Co., 154 N.W.2d 128, 
 
            130 (Iowa 1967).  The words "arising out of" have been 
 
            interpreted to refer to the cause and origin of the injury.  
 
            McClure v. Union County, 188 N.W.2d 283, 287 (Iowa 1971);   
 
            Crowe v. DeSoto Consolidated School District, 68 N.W.2d 63, 
 
            65 (Iowa 1955).  The words "in the course of" refer to the 
 
            time, place and circumstances of the injury.  McClure, 188 
 
            N.W.2d at 287; Crowe, 68 N.W.2d at 65.  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 the employee is doing work assigned by the employer or 
 
            something incidental to it.  Cedar Rapids Community School 
 
            District v. Cady, 278 N.W.2d 298, 299 (Iowa 1979), McClure 
 
            188 N.W.2d at 287; Musselman, 154 N.W.2d at 130. 
 
            
 
                 The Supreme Court has defined a personal injury for the 
 
            purposes of workers' compensation cases.  Almquist v. 
 
            Shenandoah Nurseries, 254 N.W. 35, 38 (Iowa 1934).  In this 
 
            case the Court found that a personal injury, is an injury to 
 
            the body, the impairment of health, or a disease, not 
 
            excluded by the Workers Compensation 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.  The injury to 
 
            the human body 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 Almquist Court further observed that 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.  A personal injury includes 
 
            a disease resulting from an injury.  However, the result of 
 
            changes in the human body incident to the general processes 
 
            of nature do not amount to a personal injury.  This is true, 
 
            even though natural change may come about because the life 
 
            has been devoted to labor and hard work.  Results of those 
 
            natural changes do 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. 
 
            
 
                 The Supreme Court has also recognized that a cumulative 
 
            injury may occur over a period of time.  The injury in such 
 
            cases occurs when, because of pain or physical disability, 
 
            the claimant is compelled to leave work.  McKeever Custom 
 
            Cabinets v. Smith, 379 N.W.2d 368, 374 (Iowa 1985).  
 
            Moreover, claimant's last employer becomes liable for the 
 
            cumulative injury, even if the incidents that lead to the 
 
            ultimate injury do not occur while a claimant is employed 
 
            with the last employer.  McKeever, 379 N.W.2d at 376; See 
 
            also, Doerfer Division of CCA v. Nicol, 359 N.W.2d 428, 
 
            434-35 (Iowa 1984).
 

 
            
 
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                 The Fund has raised the issue of occupational disease 
 
            as an affirmative defense in this matter and therefore has 
 
            the burden of proof on the issue of whether epicondylitis is 
 
            an occupational disease.  Reddick v. Grand Union Tea Co., 
 
            296 N.W.2d 800, 803 (Iowa 1941) (Employer has burden of 
 
            proof for affirmative defense in workers compensation case); 
 
            McMasters v. Hutchins, 120 N.W.2d 509, 514 (Iowa 1963).  
 
            One deputy has recently ruled that the Fund is not entitled 
 
            to raise occupational disease as a defense since this would 
 
            allow someone other than the claimant to prosecute a workers 
 
            compensation claim in violation of Iowa Code section 
 
            85.26(4).  Cosper v. The Second Injury Fund, File No. 855687 
 
            Slip op. (Iowa Ind. Comm'r Arb. December 24, 1991).  The 
 
            undersigned respectfully rejects this position and finds 
 
            that the Fund can raise any affirmative defense it can 
 
            muster to protect itself from paying benefits.  Since the 
 
            claimant must prove that the threshold requirements of Fund 
 
            liability have been met in order to be compensated, the Fund 
 
            has the corresponding opportunity to show that the threshold 
 
            requirements of Iowa Code section 85.64 (1991) have not been 
 
            met.  If the Fund chooses to contend that claimant has an 
 
            occupational disease and thereby avoid liability it can do 
 
            so.  The Fund is not seeking payments of benefits to itself 
 
            on behalf of the claimant and thereby avoids the constraint 
 
            of Iowa Code section 85.26(4).  The Fund is simply defending 
 
            itself in an adversarial setting by putting the claimant to 
 
            his proof.  More to the point, there is no evidence in this 
 
            record that the Fund is attempting to maintain an action on 
 
            behalf of the claimant.  Consequently, if the Fund is 
 
            successful in showing that claimant is suffering from an 
 
            occupational disease, the Fund will have no liability on 
 
            this claim.
 
            
 
                 The definition of an occupational disease is set out in 
 
            Iowa Code section 85A. 8.(1991)(1)  To prove that claimant is 
 
            suffering from an occupational disease, the Fund must show 
 
            by a preponderance of evidence that the disease:
 
            
 
                 1.  Arises out of and in the course of the 
 
                 employment;
 
            (1).  Occupational diseases shall be only those diseases 
 
            which arise out of and in the course of the employee's 
 
            employment. Such diseases shall have a direct causal 
 
            connection with the employment and must have followed as a 
 
            natural incident thereto from injurious exposure occasioned 
 
            by the nature of the employment. Such disease must be 
 
            incidental to the character of the business, occupation or 
 
            process in which the employee was employed and not 
 
            independent of the employment. Such disease need not have 
 
            been foreseen or expected but after its contraction it must 
 
            appear to have had its origin in a risk connected with the 
 
            employment and to have resulted from that source as an 
 
            incident and rational consequence. A disease which follows 
 
            from a hazard to which an employee has or would have been 
 
            equally exposed outside of said occupation is not 
 
            compensable as an occupational disease.  Iowa Code Section 
 
            85A.8 (1991).
 
            
 
            
 
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                 2.  Is causally related to exposure to harmful 
 
                 conditions in the field of employment; and 
 
            
 
                 3.  That harmful conditions must be more prevalent 
 
                 in employment concern than in everyday life or in 
 
                 other occupations. 
 
            
 
            Doerfer Division of CCA v. Nicol, 359 N.W.2d 428, 433 (Iowa 
 
            1984); McSpadden v. Big Ben Coal Co., 288 N.W.2d 181, 190 
 
            (Iowa 1980); Frit Industries v. Langenwalter, 443 N.W.2d 88, 
 
            90 (Iowa Ct. App. 1989). 
 
            If the Fund is successful in establishing these elements of 
 
            an occupational disease, then it must also prove that 
 
            claimant has been disabled by the disease.  Iowa Code 
 
            section 85A.4 (1991) provides that the claimant must be 
 
            actually incapacitated from performing claimant's work or 
 
            earning equal wages in other suitable employment as a result 
 
            of the occupational disease.  Doerfer, 359 N.W.2d at 433-34; 
 
            McSpadden, 288 N.W.2d at 192;  Frit, 443 N.W.2d at 91.
 
            
 
                 In order to determine whether this defense is valid, a 
 
            brief review of pertinent agency decisions is helpful.  The 
 
            commissioner, has recently affirmed the agency's position 
 
            that repetitive use injuries are not occupational diseases.  
 
            Peters v. Lamoni Auto Assemblies, Inc., File No. 809203 
 
            Slip op. (Iowa Ind. Comm'r App. March 31, 1989).  The 
 
            Commissioner specifically rejected the argument that 
 
            claimant was suffering from an occupational disease where 
 
            claimant had been diagnosed and treated for carpal tunnel 
 
            syndrome, a classic overuse syndrome.  The Commissioner 
 
            found that claimant was suffering from a cumulative trauma(2) 
 
            and had not sustained her burden on the issue of 
 
            occupational disease.  Accord, Soukup V. D and S Sheet 
 
            Metal, Inc., and Second Injury Fund Of  Iowa, File Nos. 
 
            927412 & 946025, Slip op. (Iowa Ind. Comm'r App. December 
 
            19, 1991); Soukup V. Maresh Sheet Metal Works, and Second 
 
            Injury Fund Of Iowa, File No. 858701 Slip op. (Iowa Ind. 
 
            Comm'r App. December 19, 1991) (Found a repetitive injury to 
 
            knee was an injury and not an occupational disease).  See 
 
            also, Himschoot v. Montezuma Manufacturing, File Nos. 
 
            (2).  The Commissioner's decisions in these cases is 
 
            consistent with medical theories regarding repetitive use 
 
            injuries or overuse syndromes.  Repetitive use injuries or 
 
            overuse syndromes may be defined as injuries caused by 
 
            excessive use of body parts so that cumulative effects of 
 
            repeated small trauma occur that exceed physiologic limits.  
 
            Theories of the pathogenesis of overuse syndromes have 
 
            concentrated on the effects of repeated trauma to tendon and 
 
            muscle tissue.  Tendon are subjected to tensile and 
 
            compressive stresses and shearing fores due to muscle 
 
            contracture plus stresses from adjacent bones and ligaments.  
 
            Tendons respond mechanically to these stresses by becoming 
 
            deformed.  Repeated stress results in viscous deformation to 
 
            the tendon or creep.  This had been explained by some as 
 
            cumulative microdamage of the molecular links between the 
 
            tissue matrix and filler material.  D. Dawson, M. Hallett, 
 
            L. Millender, Entrapment Neuropathies, p. 358 (2d ed. 1990).   
 
            
 
            
 
            Page  10
 
            
 
            
 
            
 
            
 
            672778, 738235 Slip op. (Iowa Ind. Comm'r App. April 15, 
 
            1988, aff'd 89-341 Slip op. Iowa Ct. App. Feb. 22, 1990) 
 
            (Commissioner found claimant suffered a simultaneous injury 
 
            for the purposes of determining Second Injury Fund liability 
 
            where claimant was suffering from work related carpal tunnel 
 
            syndrome); Accord, Simbro v. DeLong's Sportswear, 332 N.W.2d 
 
            886, 889 (Iowa 1983); Wilkins v. IBP and Second Injury Fund, 
 
            File Nos. 895553, 890606, 940622, 910549, 910550, 910551, 
 
            Slip op. (Iowa Ind. Comm'r Arb. August 15, 1991) (Final 
 
            Agency Action) (Deputy determined that claimant left 
 
            game-keeper's thumb was not an occupational disease relying 
 
            on Peters); Noble v. Lamoni, Products, File Nos. 851309, 
 
            857575, Slip op. (Iowa Ind. Comm'r Sept. 29, 1989) (Appeal 
 
            pending); Bannister V. Executive Concrete Construction, and 
 
            Second Injury Fund Of Iowa, File No. 914298, Slip op. (Iowa 
 
            Ind. Comm'r Arb. October 10, 1991) (Final Agency Action) 
 
            (Carpal tunnel is not an occupational disease); 
 
            
 
                 However, some have distinguished this precedent and 
 
            found, based on a case by case analysis of the evidence 
 
            adduced at the time of the hearing it is conceivable to find 
 
            that repetitive use or overuse syndromes are occupational 
 
            diseases and must be compensated industrially.  Finnneman v. 
 
            Wilson Foods Corp., File Nos. 834479, 913590, Slip op. (Iowa 
 
            Ind. Comm'r Arb. October 2, 1991)(Bilateral epicondylitis is 
 
            an occupational disease) (Appeal pending); Wieland v. Jimmy 
 
            Dean Meat Company, File No. 891393, Slip op. (Iowa Ind. 
 
            Comm'r Arb. January 17, 1991) (Tenosynovitis that turned 
 
            into carpal tunnel syndrome found to be an occupational 
 
            disease) (Final agency action);  Hoffman v. Second Injury 
 
            Fund of Iowa, File Nos. 831136, 869798, Slip op. (Iowa Ind. 
 
            Comm'r Arb. August 10, 1990) (Overuse syndrome is an 
 
            occupational disease) (Final agency action);  Atkins v. 
 
            Monarch Manufacturing, File No. 816825, Slip op. (Iowa Ind. 
 
            Comm'r Arb. March 27, 1990) (Carpal tunnel syndrome is an 
 
            occupational disease) (Final agency action).  
 
            Others have found that repetitive use injuries might be 
 
            occupational diseases but the parties failed to meet the 
 
            rather rigorous proof barriers for awarding benefits.  
 
            Sifekas v. Furnas Electric Co. File No 944404, Slip op. 
 
            (Iowa Ind. Comm'r Arb. November 12, 1991) (Appeal pending).  
 
            Haleen v. Oscar Mayer Foods Corporation,  File Nos. 936505, 
 
            936506, Slip op. (Iowa Ind. Comm'r Arb. November 7, 1991) 
 
            (Appeal pending).
 
            
 
                 Where a repetitive use injury results in an 
 
            occupational disease, others have found that benefits should 
 
            be awarded functionally or industrially as the facts of case 
 
            dictate.  Collins v. Department of Human Services, File Nos. 
 
            916241, 954364 Slip op.(Iowa Ind. Comm'r Arb. December 1991) 
 
            (Claimant's carpal tunnel found to be an occupational 
 
            disease but compensated functionally); Hall v. Backman Sheet 
 
            Metal, 1 Iowa Industrial Commissioner Decisions 595, 600 
 
            (Arb. 1985) (Whether the claimant suffered an injury or an 
 
            occupational disease, this determination did not affect the 
 
            outcome of the case because the claimant was compensated in 
 

 
            
 
            Page  11
 
            
 
            
 
            
 
            
 
            accordance with the schedule rather than industrially). 
 
            Cahalan v. Oscar Mayer, IV Iowa Industrial Commissioner 
 
            Report 53, 55 (App. 1983) (Tendonitis in the shoulder 
 
            resulting from a rotator cuff tear was an occupational 
 
            disease and compensated industrially); Johnson v. Franklin 
 
            Manufacturing Co., 34 Iowa Industrial Commissioner Biennial 
 
            Report 152, 154 (App. 1978) (Tenosynovitis was recognized as 
 
            an occupational disease and claimant was entitled to have 
 
            the disability evaluated industrially when the shoulder was 
 
            involved in the disease process since the injury extended 
 
            into the trapezius muscle and thereby the body as a whole). 
 
            
 
                 Other jurisdictions have expressed opinions on the 
 
            question of whether overuse syndromes are occupational 
 
            diseases or cumulative traumas or injury.  Those that have 
 
            found overuse syndromes to be cumulative injuries include 
 
            Illinois, Kansas, Kentucky and Arkansas.(3)  Those that have 
 
            found overuse syndromes to be occupational diseases include 
 
            Idaho, Missouri, and Virginia.(4)
 
            
 
                 In determining whether a condition is an occupational 
 
            disease or an injury, an analysis of the statutory history 
 
            of the occupational disease provisions coupled with an 
 
            examination of the cumulative trauma theory is also helpful.  
 
            As observed by the author of the Peters decision, prior to 
 
            1973, occupational diseases were specifically enumerated in 
 
            Iowa Code section 85A.9.  These diseases included bursitis, 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
            (3).  Lutrell v. Industrial Commission, 507 N.E.2d 533, 
 
            541-42 (Ill. App. 4 Dist. 1987)(Carpal tunnel found to be a 
 
            repetitive trauma and not an occupational disease); Martin 
 
            v. Cudhay Foods Co., 646 P.2d 468, 471 (Kan. 
 
            1982)(Tenosynovitis is a repetitive trauma and not an 
 
            occupational disease); Bahr v. IBP, 663 P.2d 1144, 1148 
 
            (Kan. App. 1983)(Claimant urged that she was suffering from 
 
            occupational disease of carpal tunnel syndrome and court 
 
            found that claimant suffered a repetitive trauma injury.  
 
            Affirmed on ground defendants did not need notice of 
 
            agency's conclusion that claimant suffered from an injury 
 
            rather than occupational disease); O.K. Precision Tool & Die 
 
            Co. v. Wells, 678 S.W.2d 397, 399, (Ky, 1984) (Epicondilytis 
 
            is not an occupational disease);  Tyson Foods, Inc., v. 
 
            Watkins, 792 S.W.2d 348, 351 (Ark. Ct. App. 1990) (Bilateral 
 
            epicondilytis found to be an occupational injury and not an 
 
            occupational disease).
 
            (4).  Knot v. Blue Bell, Inc., 373 S.E.2d 481, 483 (Va. Ct. 
 
            App. 1988) (Found bilateral carpal tunnel an occupational 
 
            disease based on the evidence adduced.  Issue to be 
 
            determined by the finder of fact); Prater v. Thorngate, 
 
            Ltd., 761 S.W.2d 226, 230 (Mo. Ct. App. 1988) (Carpal tunnel 
 
            syndrome can be an occupational disease where a job produces 
 
            exposure greater than or different from that which affects 
 
            the public generally and there is a recognizable link 
 
            between the disease and some distinctive feature of the 
 
            claimant's job which is common to all jobs of that sort); 
 
            Kinney v. Tupperware Co., 792 P.2d 330, 333 (Carpal tunnel 
 
            syndrome is an occupational disease even if it is not listed 
 
            in the schedule of occupational diseases listed in the Idaho 
 
            Code). (Idaho 1990);
 
            
 
            
 
            Page  12
 
            
 
            
 
            
 
            
 
            synovitis or tenosynovitis and were described as any process 
 
            or occupation involving continued or repeated pressure on 
 
            the parts affected.  When the statute was amended, the 
 
            intent was to provide full coverage of work related 
 
            diseases.  McSpadden, 288 N.W.2d at 190.  However, the 
 
            coverage was still incomplete for occupational diseases not 
 
            contemplated in the repealed schedule.  The Court did not 
 
            defined what conditions constitute an occupational disease.  
 
            The Court did conclude, however, that the concept of 
 
            occupational disease and injury were mutually exclusive and 
 
            could not be used interchangably.  McSpadden, 288 N.W.2d at 
 
            190.
 
            
 
                 The Supreme Court filled in the gap between cumulative 
 
            trauma injuries and occupational diseases when it ruled that 
 
            cumulative traumas are injuries under Iowa Code chapter 85 
 
            in McKeever, 379 N.W.2d at 374.  In McKeever, the claimant 
 
            had been using vibrating tools most of his working life.  He 
 
            experienced two traumatic injuries and thereafter, his right 
 
            wrist became more painful as he used the tools of his trade.  
 
            Finally he had to leave work because of he pain in his 
 
            hands.  On these facts, the Supreme Court found that 
 
            claimant suffered from a cumulative injury that came on 
 
            gradually.  The Supreme Court went on to note that various 
 
            jurisdictions around the country had adopted the gradual 
 
            injury theory particularly where overuse syndromes or 
 
            repetitive trauma injuries had occurred.  McKeever, 379 
 
            N.W.2d at 373.  The conditions the court identified included 
 
            carpal trauma syndrome of the wrists, successive impacts on 
 
            the knee, long hours standing on concrete floors, repeated 
 
            bumping into a steam iron, and a preexisting back condition 
 
            that becomes a total breakdown from a series of small 
 
            injuries over a period of time.  
 
            
 
                 In reconciling the conclusions in McKeever with the 
 
            statutory history of the occupational disease statute, the 
 
            analysis used by the Arkansas Supreme Court is compelling.  
 
            In Tyson Foods, Inc., v. Watkins, 792 S.W.2d 348, 351 (Ark. 
 
            Ct. App. 1990), the Court observed that prior to 1976, the 
 
            Arkansas Code had contained a schedule of occupational 
 
            diseases.  Included in this schedule were synovitis, 
 
            tenosynovitis or bursitis due to an occupation involving 
 
            continual or repeated pressure on the parts affected.  The 
 
            argument offered was that even though epicondylitis was not 
 
            listed on the old schedule, it is so similar to synovitis, 
 
            tenosynovitis and bursitis, that it should be considered an 
 
            occupational disease.  The court concluded that if a 
 
            claimant is suffering from one of the listed diseases, it 
 
            would clearly be covered.  As for unscheduled diseases, the 
 
            Court provided these guidelines to make a judgment as to 
 
            whether a condition was an injury or a disease:
 
            
 
                 1.  Where the ambiguity of the statutory language 
 
                 permits alternative interpretations, the 
 
                 Commission and Courts should generally resolve the 
 
                 ambiguity in favor claimant to affect the 
 
                 humanitarian intent of the provisions.
 

 
            
 
            Page  13
 
            
 
            
 
            
 
            
 
            
 
                 2.  The Commission's categorization efforts should 
 
                 be based not simply on how the medical profession 
 
                 may characterize a given condition, but rather 
 
                 primarily on factors germane to the purpose of 
 
                 workers' compensation law.  These factors include:
 
            
 
                    a.  the general remedial goals of the act,
 
            
 
                    b.  efficiency of future claim handling,
 
            
 
                    c.  the extent to which the classification 
 
                 being considered would encourage safer employment 
 
                 practices, and
 
            
 
                    d.  avoidance of unacceptably high costs to the 
 
                 system.
 
            
 
                 3.  The initial presumption should be that 
 
                 conditions on the pre-1976 schedule of compensable 
 
                 occupational disease are still to be handled under 
 
                 the occupational disease provisions, although the 
 
                 Commission is not required to do so since the 
 
                 schedule has been repealed.
 
            
 
                 In this case, the Fund has merely asserted the defense 
 
            of occupational disease and has failed to show that claimant 
 
            is suffering from and occupational disease.  There is 
 
            insufficient evidence in this record to demonstrate that 
 
            claimant contracted an occupational disease while performing 
 
            his job duties at Wilson.  The record demonstrates that 
 
            claimant is suffering from a cumulative trauma injury that 
 
            caused him pain in March of 1986 and caused him to obtain 
 
            further treatment in July of 1986 and throughout 1986, 1987 
 
            and 1988.  Claimant's primary treating physician linked 
 
            claimant's injury to his work.  However, the Fund did not 
 
            show that the conditions at Wilson constituted a harmful 
 
            condition that was more prevalent in claimant's working 
 
            environment.  Moreover, even if the Fund was able to show 
 
            these conditions in the record, there has been no showing of 
 
            disablement.
 
            
 
                 On the other hand, the evidence does show that claimant 
 
            suffered from a gradual injury that developed over the 
 
            course of time.  Even though claimant did not leave work as 
 
            a result of the pain from his elbow, he nonetheless suffered 
 
            from a cumulative injury.  Scheurermann v. Oscar Mayer Foods 
 
            Corp., File Nos. 773553, 872702, 872708, Slip op. (Iowa Ind. 
 
            Comm'r Appeal December 20, 1991) (Commissioner held that 
 
            McKeever provides a method of determining a date of injury 
 
            for cumulative injury cases.  Leaving work due to the pain 
 
            or discomfort from the cumulative injury is not necessarily 
 
            part of the definition of a cumulative trauma or a 
 
            prerequisite to finding a cumulative injury)
 
            
 
                 Not only is this conclusion consistent with the 
 
            evidence in this matter, it is also in harmony with recent 
 
            agency precedent on the issue of occupational disease and 
 
            repetitive use traumas.  This result is consistent with the 
 
            guidelines established by the Arkansas Supreme Court and a 
 

 
            
 
            Page  14
 
            
 
            
 
            
 
            
 
            careful reading of McSpadden and McKeever.  Based on the 
 
            analysis used by the court in McKeever, it is clear that the 
 
            Court was recognizing gradual injuries under chapter 85 so 
 
            that the remedial effects of the Workers Compensation Act 
 
            would be felt.  Classification of repetitive use syndromes 
 
            as injuries rather than occupational diseases also makes the 
 
            claimant's ability to prove a loss significantly easier 
 
            since claimant does not have to prove disablement.  This 
 
            result leads to efficiencies in future claims handling 
 
            because all parties to a dispute will know that only a few 
 
            overuse syndromes will be treated as occupational diseases.  
 
            Treating epicondylitis as a cumulative trauma will encourage 
 
            safer employment practices in industries where this injury 
 
            is common.  Finally, this conclusion avoids unacceptably 
 
            high costs to the workers' compensation system, since the 
 
            loss attributable to overuse syndrome injuries is fairly 
 
            predictable.  
 
            
 
                 2.  Whether there is Second Injury Fund liability.
 
            
 
                        A.  Industrial Disability Analysis
 
            
 
                 Since claimant has suffered an injury, the next 
 
            question to be resolved is whether the injury has caused a 
 
            permanent disability.  The claimant has the burden of 
 
            proving by a preponderance of the evidence that the injury 
 
            of July 2, 1986, is causally related to the disability on 
 
            which he now bases his claim.  Bodish v. Fischer, Inc., 133 
 
            N.W.2d 867, 868 (Iowa 1965);  Lindahl v. L. O. Boggs, 18 
 
            N.W.2d 607, 613-14 (Iowa 1945).  A possibility is 
 
            insufficient; a probability is necessary.  Burt v. John 
 
            Deere Waterloo Tractor Works, 73 N.W.2d 732, 738 (Iowa 
 
            1955).  The question of causal connection is essentially 
 
            within the domain of expert testimony.  Bradshaw v. Iowa 
 
            Methodist Hospital, 101 N.W.2d 167, 171 (Iowa 1960).  Expert 
 
            medical evidence must be considered with all other evidence 
 
            introduced bearing on the causal connection.  Burt, 73 
 
            N.W.2d at 738.  The opinion of the experts need not be 
 
            couched in definite, positive or unequivocal language.  
 
            Sondag v. Ferris Hardware, 220 N.W.2d 903, 907 (Iowa 1974).  
 
            Moreover, the expert opinion may be accepted or rejected, in 
 
            whole or in part, by the trier of fact.  Sondag, 220 N.W.2d 
 
            at 907.  Finally, 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 
 
            material circumstances.  Bodish, 133 N.W.2d at 870; 
 
            Musselman, 154 N.W.2d at 133.  The Supreme Court has also 
 
            observed that greater deference is ordinarily accorded 
 
            expert testimony where the opinion necessarily rests on 
 
            medical expertise.  Sondag, 220 N.W.2d at 907.
 
            
 
                 In this instance, Dr. Ferlic, the treating physician 
 
            concluded on October 28, 1987 that claimant had a 10 percent 
 
            functional impairment to his right arm.  Dr. Ferlic did not 
 
            impose any restrictions.  However, he did observe that 
 
            claimant's condition will be more painful if he continues to 
 
            work in the meat packing industry.  The reports of the 
 
            evaluating physicians are not sufficient to overcome the 
 
            rating provided by Dr. Ferlic.  Dr. Agarwal indicated that 
 
            claimant had no functional impairment on the right.  Dr. 
 

 
            
 
            Page  15
 
            
 
            
 
            
 
            
 
            Neff another evaluating physician agreed that claimant did 
 
            not have any other functional impairment from the injury to 
 
            his right arm.  Dr. Pat Luse concluded in March of 1991, 
 
            that claimant had a 10 percent functional loss for both 
 
            arms.  Dr. Ferlic's testimony, by report, is the most 
 
            compelling in this instance.  Dr. Ferlic had the most 
 
            opportunity to observe claimant.  Additionally, he had 
 
            followed claimant's entire course of treatment for the elbow 
 
            injury.  Consequently, the claimant has satisfied his burden 
 
            of proof in demonstrating that he has suffered a permanent 
 
            injury.
 
            Because the question in this case is Fund liability, the 
 
            next question to be resolved is the extent of claimant's 
 
            industrial disability resulting from the effect of the first 
 
            and second injuries.  Second Injury Fund v. Braden, 459 
 
            N.W.2d 467, 470 (Iowa 1990).  Industrial disability was 
 
            defined in Diederich v. Tri-City Railway Co., 258 N.W.2d 
 
            899, 902 (Iowa 1935) as loss of earning capacity and not a 
 
            mere `functional disability' to be computed in the terms of 
 
            percentages of the total physical and mental ability of a 
 
            normal person.  The essence of an earning capacity inquiry 
 
            then, is not how much has the claimant been functionally 
 
            impaired, but whether that impairment, in combination with 
 
            the claimant's age, education, work experience, pre and post 
 
            injury wages, motivation and ability to get a job within her 
 
            restrictions, if any restrictions have been imposed, have 
 
            caused a loss of earning capacity.  Olson v. Goodyear 
 
            Service Stores, 125 N.W.2d 251, 257 (Iowa 1963); Diederich 
 
            v. Tri-City Railway Co., 258 N.W. 899, 902 (Iowa 1935);  
 
            Peterson v. Truck Haven Cafe, Inc., 1 Iowa Industrial Comm'r 
 
            Dec. No. 3, 654, 658 (1985); Christensen v. Hagen, Inc., 1 
 
            Iowa Industrial Comm'r Dec. No. 3, 529, 534-535 (1985). 
 
            There are no weighting guidelines that indicate how each of 
 
            the factors are to be considered.  There is no equation 
 
            which can be applied and then calculated to determine the 
 
            degree of industrial disability to the body as a whole.  It 
 
            therefore becomes necessary for the deputy or commissioner 
 
            to draw upon prior experience and general and specialized 
 
            knowledge to make a finding with regard to the degree of 
 
            industrial disability.  See, Peterson, 1 Iowa Industrial 
 
            Commissioner Decisions No. 3, at 658; Christening, 1 Iowa 
 
            Industrial Commissioner Decisions No. 3, at 535.
 
            
 
                 In this instance, claimant is relatively young and his 
 
            the industrial disability is not as serious as it would be 
 
            for an older employee. Mccoy v. Donaldson Company, Inc., 1 
 
            IWAC Decisions of the Iowa Industrial Commissioner 400, 405 
 
            (Appeal 1989); Walton v. B & H Tank Corp., II Iowa 
 
            Industrial Commissioner Report 426, 429 (Arb. 1981); Becke 
 
            v. Turner-Busch, Inc., 34 Biennial Report Iowa Industrial 
 
            Commissioner 34, 36 (Appeal 1979).  Claimant has a 10 
 
            percent functional loss bilaterally, but these impairments 
 
            have not resulted in any significant restrictions.  Claimant 
 
            is still working at Wilson and is earning more money than he 
 
            was at the time of his injuries.  Claimant has other 
 
            injuries that have limited his ability to earn an income 
 

 
            
 
            Page  16
 
            
 
            
 
            
 
            
 
            other than the injuries to claimant's hand and elbow.  
 
            Claimant's only income loss is attributable to the earnings 
 
            he was making on the side as a mechanic and remodeler; 
 
            income the claimant did not report to the Internal Revenue 
 
            Service.  Claimant has not sought other work even though Dr. 
 
            Ferlic has recommended that he avoid jobs with wrist flexion 
 
            suggesting that he has sustained a significant loss of 
 
            earning capacity.
 
            Based upon the foregoing factors, all of the factors used to 
 
            determine industrial disability, and employing agency 
 
            expertise, it is determined that claimant sustained a 10% 
 
            industrial disability.
 
            
 
                         B.  Second Injury Fund Liability
 
            
 
                 Second Injury Fund liability is governed by Iowa Code 
 
            section 85.64 (1991).  This provision requires that before 
 
            Fund liability is triggered three requirements must be met 
 
            by the claimant.  First, the employee must have lost or lost 
 
            the use of a hand, arm, foot, leg or eye.  Second, the 
 
            employee must sustain another loss or loss of use of another 
 
            member or organ through a compensable injury.  Third, 
 
            permanent disability must exist as to both the initial 
 
            injury and the second injury.  Kirkland v. Omar E. Whitlow 
 
            Excavating, File No. 768821 Slip op. (Iowa Ind. Comm'r Arb. 
 
            September 26, 1989) (Final agency action after remand, 
 
            December 5, 1990); Allen v. Second Injury Fund, 34 Iowa 
 
            Industrial Commissioner Biennial Report 15, 16 (Arb. 1980); 
 
            Ross v. Servicemaster-Story Co, 34 Industrial Commissioner 
 
            Biennial Report 273, 275 (Arb. 1979).; Lawyer and Higgs, 
 
            Iowa Workers' Compensation--Law and Practice, section 17-4, 
 
            (1984)
 
            
 
                 The Fund is responsible for the difference between 
 
            total disability and disability for which the employer at 
 
            the time of the second injury is responsible.  Second Injury 
 
            Fund v. Mich. Coal Company, 274 N.W.2d 300, (Iowa 1970).  
 
            Where the second injury is limited to a scheduled member, 
 
            then the employer's liability is limited to the schedule and 
 
            the Fund is responsible for the cumulative effect of the 
 
            scheduled injuries resulting in industrial disability to the 
 
            body as a whole.  Braden, 459 N.W.2d at 470; Second Injury 
 
            Fund v. Neelans, 436 N.W.2d 355, 358 (Iowa 1989); Simbro, 
 
            332 N.W.2d, at 889. 
 
            In this instance, there is sufficient evidence to show that 
 
            claimant has sustained a first permanent injury to his left 
 
            hand in 1984.  Claimant sustained a second injury to his arm 
 
            that arose out of and in the course of his employment in 
 
            1986.  The medical evidence that is most persuasive 
 
            indicated that claimant has a 10 percent functional 
 
            impairment to claimant's right arm.  Consequently the Fund 
 
            must pay claimant's industrial loss resulting from these 
 
            injuries.
 
            The Fund is entitled to a credit for the functional values 
 
            assigned to the previous functional disability amounts.  
 
            Braden, 459 N.W.2d at 471; Soukup, File Nos. 927412 & 
 
            946025, 858701 Slip op. at 11..  Thus the calculation of the 
 

 
            
 
            Page  17
 
            
 
            
 
            
 
            
 
            Fund's liability in this instance is as follows:
 
            
 
                 10% x 500 weeks =  50 weeks
 
                        minus    19 weeks (1984 impairment to 
 
            left
 
                                  hand 10% x 190 weeks)
 
                        minus    25 weeks (10% x 250 weeks 1986
 
                                  impairment to right arm)
 
                 TOTAL           6  weeks liability for the 
 
            Fund.
 
            order
 
            THEREFORE, it is ordered:
 
            1.  The Fund shall pay to claimant permanent partial 
 
            disability benefits in the amount of ten percent (10%) for 
 
            injuries sustained to claimant's left hand and right arm.
 
            2.  The Fund shall have a credit in the amount of nineteen 
 
            (19) weeks for the first injury to claimant's left hand and 
 
            a credit of twenty-five (25) weeks for the second injury to 
 
            claimant's right arm against any amounts owed. 
 
            3.  The costs of this action shall be assessed to The Fund 
 
            pursuant to rule 343 IAC 4.33.
 
            4.  The Fund shall file claim activity reports as required 
 
            by rule 343 IAC 3.1.
 
            Signed and filed this ____ day of December, 1991.
 
            
 
            
 
            
 
            
 
                      ________________________________
 
                      ELIZABETH A. NELSON
 
                      DEPUTY INDUSTRIAL COMMISSIONER
 
            
 
            Copies To:
 
            
 
            Mr Harry H Smith
 
            Attorney at Law
 
            PO Box 1194
 
            Sioux City Iowa 51102
 
            
 
            Mr David L Sayre
 
            Attorney at Law
 
            223 Pine Street
 
            PO Box 535
 
            Cherokee Iowa 51012
 
            
 
            Ms Joanne Moeller
 
            Assistant Attorney General
 
            Tort Claims Division
 
            Hoover State Office Building
 
            Des Moines Iowa 50319
 
            
 
            
 
 
            
 
            Page   1
 
            
 
            
 
            
 
            
 
                                          2906;5-3203;
 
                                          5-1108.50; 5-1803
 
                                          Filed December 31, 1991
 
                                          ELIZABETH A. NELSON
 
            before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            BRAD OLSON,                   :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :      File No. 858635
 
            WILSON FOODS CORPORATION,     :
 
                                          :    A R B I T R A T I O N
 
                 Employer,                :
 
                 Self-Insured,            :      D E C I S I O N
 
                                          :
 
            and                           :
 
                                          :
 
            SECOND INJURY FUND OF IOWA,   :
 
                                          :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
            2906
 
            The Second Injury Fund may raise occupational disease as a 
 
            defense to claims by those seeking payment from the Fund.  
 
            The Fund in raising this defense is not seeking benefits on 
 
            behalf of the claimant.  It is merely asserting in an 
 
            adversarial context a valid defense to payment of benefits.
 
            
 
            5-3203
 
            Claimant, a 36-year-old meat packer suffering from 
 
            epicondylitis, was found to have a cumulative trauma and not 
 
            an occupational disease.  These conclusions were based on 
 
            agency precedent, Peters v. Lamoni Auto Assemblies, Inc., 
 
            File No. 809203 Slip op. (Iowa Ind. Comm'r App. March 31, 
 
            1989) and  Soukup V. D and S Sheet Metal, Inc., and Second 
 
            Injury Fund Of  Iowa, File Nos. 927412 & 946025, Slip op. 
 
            (Iowa Ind. Comm'r App. December 19, 1991); Soukup V. Maresh 
 
            Sheet Metal Works, and Second Injury Fund Of Iowa, File No. 
 
            858701 Slip op. (Iowa Ind. Comm'r App. December 19, 1991).  
 
            In both of these cases the Commissioner concluded that 
 
            repetitive injuries were not occupational diseases.  
 
            Moreover, the Second Injury Fund failed to prove that 
 
            claimant was suffering from an occupational disease.
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            
 
            5-1108.50
 
            Claimant, a 36-year-old meat packer with a high school 
 
            education and work history of manual labor, was found to 
 
            have a permanent injury resulting from a cumulative trauma 
 
            even though he did not leave work as a result of the injury.  
 
            Scheurermann v. Oscar Mayer Foods Corp., File Nos. 773553, 
 
            872702, 872708, Slip op. (Iowa Ind. Comm'r Appeal December 
 
            20, 1991)
 
            
 
            5-1803
 
            Claimant was awarded a 10 percent industrial disability.  
 
            Claimant had no restrictions relating to his injuries.  
 
            Claimant was doing the same job he had performed prior to 
 
            the work injury.  Claimant had a functional impairment of 10 
 
            percent to his right arm and 10 percent to his left hand.  
 
            Claimant had made no job search to test the market place for 
 
            his skills.  Wilson has retained claimant as an employee and 
 
            has made accomodation for his injuries.  
 
            
 
            5-3203
 
            Second Injury Fund found liable for the excess industrial 
 
            disability claimant has suffered.  The Fund is entitled to 
 
            44 weeks of credit against the award.  The Fund's liability 
 
            is 6 weeks of benefits.
 
            
 
 
            
 
            
 
            
 
            
 
                    BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
                                          :
 
            RALPH E. PRIZLER,             :      File No. 858639
 
                                          :
 
                 Claimant,                :
 
                                          :      D E C I S I O N
 
            vs.                           :
 
                                          :            O N
 
            PROCTOR & GAMBLE MFG. CO.,    :
 
                                          :      A T T O R N E Y
 
                 Employer,                :
 
                 Self-Insured,            :           F E E
 
                 Defendant.               :
 
                                          :       D I S P U T E
 
            ___________________________________________________________
 
            
 
                              STATEMENT OF THE CASE
 
            
 
                 This case came on for hearing on January 11, 1994.  A 
 
            telephone hearing was held which was agreed to by all the 
 
            parties rather than an in-person hearing.  The parties 
 
            waived the necessity of having a court reporter.  Claimant 
 
            is living in New Mexico.  This is a decision concerning a 
 
            dispute over attorney fees and involves claimant's 
 
            arbitration case attorney, James Martinek, as a defendant, 
 
            and also involves the two other attorneys who were involved 
 
            in the case and worked with Mr. Martinek and participated in 
 
            the total fees, namely, E.J. Kelly and Gregory T. Racette.  
 
            The record in the proceeding consists of the testimony of 
 
            claimant, James Martinek, Gregory Racette, and E.J. Kelly; 
 
            and, defendant's exhibits 1 through 38.  The undersigned 
 
            also took judicial notice of the file and contents.
 
            
 
                                      ISSUE
 
            
 
                 The issue for resolution is whether the attorneys for 
 
            the claimant at the time of the arbitration action and 
 
            settlement are entitled to the attorney fees deducted from 
 
            the settlement and reimbursement for the court costs.
 
            
 
                                 FINDINGS OF FACT
 
            
 
                 The undersigned deputy, having heard the testimony and 
 
            considered all the evidence, finds that:
 
            
 
                 Claimant entered into an attorney fee contract with 
 
            James Martinek which provided that the attorney is to get 
 
            thirty-three and one-third percent of any recovery whether 
 
            it settled before a law suit was filed or after a law suit 
 
            was filed.  It also provides that the attorney may employ 
 
            another attorney or attorneys to assist in the case at the 
 
            attorney's expense.
 
            
 
                 The attorney fee contract is not dated but Mr. Martinek 
 
            believes it was signed in January 1987 when claimant made 
 
            first contact with him.  Claimant believed but was not sure 
 
            that he didn't sign it until December of 1987.  For the 
 
            purpose of this case, it is really immaterial which of those 
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            dates is correct.
 
            
 
                 Claimant testified that he did not believe that he owed 
 
            the $1,751.37 that was listed as advanced costs of Hopkins & 
 
            Huebner which was taken off the final lump sum settlement of 
 
            $65,000 before the division of fees regarding that amount as 
 
            reflected on defendant's exhibit 31.
 
            
 
                 Defendant's exhibit 38 is the specific itemization of 
 
            those costs.  Claimant contends that those expenses should 
 
            be Mr. Martinek's expenses and should not be deducted from 
 
            any settlement since paragraph 3.2 of the attorney fee 
 
            agreement refers to the fact that if the claimant's original 
 
            attorney, Mr. Martinek, hired other attorneys it was to be 
 
            at the attorney's expense.
 
            
 
                 Mr. Martinek testified that had those expenses not been 
 
            incurred directly by the firm of Hopkins & Huebner, he would 
 
            have had similar expenses.  Mr. Martinek also testified that 
 
            had he not brought in Mr. Kelly and Mr. Racette from the 
 
            firm of Hopkins & Huebner to assist in this case, claimant 
 
            would not have received the settlement he received.  Mr. 
 
            Martinek testified that claimant was getting no benefits and 
 
            that nothing was being paid under the workers' compensation 
 
            claim until he got the assistance of the Hopkins & Huebner 
 
            law firm.  He indicated this was a very complicated case and 
 
            had many issues and it was not until the involvement of the 
 
            Hopkins & Huebner firm that the defendant employer finally 
 
            began making weekly benefit payments of $370.26 to the 
 
            claimant.  There is also testimony that once those began 
 
            around August 1988, back payments in a lump sum were also 
 
            paid and brought up to date.  Approximately $52,000 of those 
 
            delinquent weekly payments and their weekly payments before 
 
            final settlement were paid prior to the time there was the 
 
            ultimate settlement in which an additional $65,000 was paid.
 
            
 
                 The testimony reflects that when claimant was getting 
 
            his weekly check, every third check was endorsed over by the 
 
            claimant to the attorneys toward their fees in accordance 
 
            with the attorney fee contract.
 
            
 
                 Claimant contends there should be no fee for the 
 
            attorneys regarding the $52,000 as the claimant contends 
 
            that one-third should only be paid on the final settlement, 
 
            namely, the $65,000 as he feels that that is what the 
 
            attorneys recovered.
 
            
 
                 Claimant had no argument with the fact that had the 
 
            attorneys not been able to obtain the weekly benefits to 
 
            begin in August of 1988 and the delinquent weekly payments 
 
            prior to that time and had in fact received the $52,000 and 
 
            $65,000 in one lump sum settlement of $117,000 at the time 
 
            of the compromise settlement, they would have been entitled 
 
            to one-third of that total.
 
            
 
                 There is no dispute that claimant was getting nothing 
 
            until the involvement of all the attorneys.
 
            
 
                 Claimant testified that the $1,751.37 costs should not 
 
            be payable by him nor deducted from the settlement as he did 
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            not hire the Hopkins & Huebner firm and that any expenses 
 
            they incurred would be out of Mr. Martinek's pocket and 
 
            would not be reimbursable.
 
            
 
                 Mr. Prizler did not contend that he did not sign the 
 
            joint application for compromise settlement but contends 
 
            that the result of that settlement knocked out or prevented 
 
            him from getting certain other benefits from his employer.  
 
            It appears those benefits are at least some disability and 
 
            retirement pension benefits.
 
            
 
                 Mr. Prizler testified as to the other litigation he has 
 
            going, the current one being a civil case in U.S. Federal 
 
            Court in Des Moines (file number 4-93-CV80540) in which he 
 
            is suing Proctor & Gamble and may bring other defendants in.  
 
            Mr. Prizler testified as to his contentions which involved 
 
            other allegations concerning other state or federal 
 
            departments and that the joint application and compromise 
 
            settlement took away other rights he thought he should still 
 
            have.  The undersigned has taken judicial notice of the file 
 
            and it is obvious from the file that the claimant has been 
 
            in a very litigious status as to various other government 
 
            departments contending that this compromise settlement 
 
            compromised other rights that he didn't believe were being 
 
            compromised or settled.
 
            
 
                 The attorneys related the complicated nature of this 
 
            case and the approximate number of hours they had involved 
 
            in this case.  Mr. Martinek indicated he had about 245 hours 
 
            and he thought Mr. Kelly and Mr. Racette had combined equal 
 
            amounts and that if in fact they were paid on an hourly rate 
 
            at $90.00 per hour, they would probably have not been paid 
 
            that rate taking into consideration what they got paid on a 
 
            contingency basis.
 
            
 
                 Mr. Martinek testified as to not only informing the 
 
            claimant but that he had numerous calls often daily at 
 
            considerable length with the claimant and that claimant came 
 
            to his office and would review the file page by page and was 
 
            very aware of what was going on.
 
            
 
                 The exhibits in evidence reflect considerable 
 
            correspondence back and forth among the attorneys, parties 
 
            to the action, claimant, and reflect the negotiations that 
 
            were going on.  Claimant okayed the breakdown in payment and 
 
            distribution and deduction of attorney fees and court costs 
 
            as reflected on defendant's exhibit 31, which is an August 
 
            28, 1990 letter. Claimant signed it on September 5, 1990.  
 
            Evidence shows claimant was also aware of this breakdown on 
 
            August 10, 1990, as reflected by defendant's exhibit 18.
 
            
 
                 The undersigned finds that claimant signed an attorney 
 
            fee contract around January 1987 which provided his 
 
            attorney(s) were to get thirty-three and one-third percent 
 
            of any weekly benefits or recovery they would obtain for 
 
            claimant.  The undersigned finds that said agreement does 
 
            provide that his original attorney, James Martinek, could 
 
            also bring in other attorneys which he did and that those 
 
            other attorneys contributed substantially to the ultimate 
 
            resolution of this matter.  The undersigned finds that if it 
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
            were not for the involvement of the attorneys, claimant 
 
            would not have had his weekly benefits begin around August 
 
            of 1988 nor would he have received a lump sum of the back 
 
            due weekly payments nor would he have received the ultimate 
 
            $65,000 lump sum gross proceeds minus expenses and attorney 
 
            fees.
 
            
 
                 The undersigned finds that the $1,751.37 in expenses 
 
            are reasonable and that they are properly deducted from the 
 
            gross proceeds before distribution of claimant's portion.
 
            
 
                 The undersigned finds that the joint application for 
 
            compromise settlement speaks for itself and was in fact 
 
            signed by the claimant.  If the claimant feels that it was 
 
            not his understanding and that his signature was obtained 
 
            involuntarily, then he must proceed in some other court or 
 
            jurisdiction and not in the workers' compensation arena.  
 
            The undersigned finds there is no evidence that claimant 
 
            didn't know what he was doing and that it appears he was 
 
            fully informed and that he voluntarily signed said joint 
 
            application for compromise settlement and that if in fact he 
 
            had some questions he should not have signed it and had time 
 
            to further determine the advisability of signing the same.  
 
            The undersigned therefore finds that the attorney fees 
 
            deducted by the attorneys and the court costs deducted are 
 
            proper as set out in the exhibits that are a part of this 
 
            record and that claimant fails in this attorney fee action.  
 
            Claimant should pay the costs of this action.
 
            
 
                                     ORDER
 
                 
 
                 THEREFORE, it is ordered:
 
            
 
                 That claimant failed in his action in this attorney fee 
 
            dispute and gets no relief and takes nothing further.
 
            
 
                 That claimant shall pay the costs of this action.
 
            
 
                 Signed and filed this ____ day of January, 1994.
 
            
 
            
 
            
 
                                          ______________________________
 
                                          BERNARD J. O'MALLEY
 
                                          DEPUTY INDUSTRIAL COMMISSIONER
 
            
 
            Copies to:
 
            
 
            Mr Ralph Prizler
 
            3736 Mosswood Ave
 
            Amagordo NM 88310
 
            CERTIFIED & REGULAR MAIL
 
            
 
            Mr Gregory T Racette
 
            Mr E J Kelly
 
            Attorneys at Law
 
            Terrace Ctr  Ste 111
 
            2700 Grand Ave
 
            Des Moines IA 50312
 
            
 

 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
            Mr James H Martinek
 
            Attorney at Law
 
            510 Iowa State Bank Bldg
 
            Iowa City IA 52240
 
            
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                             5-1001
 
                                             Filed January 13, 1994
 
                                             Bernard J. O'Malley
 
            
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
                                          :
 
            RALPH E. PRIZLER,             :      File No. 858639
 
                                          :
 
                 Claimant,                :
 
                                          :      D E C I S I O N
 
            vs.                           :
 
                                          :            O N
 
            PROCTOR & GAMBLE MFG. CO.,    :
 
                                          :      A T T O R N E Y
 
                 Employer,                :
 
                 Self-Insured,            :           F E E
 
                 Defendant.               :
 
                                          :       D I S P U T E
 
            ___________________________________________________________
 
            
 
            5-1001
 
            Claimant lost his attorney fee dispute.
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
            before the iowa industrial commissioner
 
            ____________________________________________________________
 
                      :
 
            JAMES LAFFOON, :
 
                      :
 
                 Claimant, :
 
                      :
 
            vs.       :
 
                      :    File Nos. 858643/858644
 
            AUTOMATIQUE VENDING,     :
 
                      :          A P P E A L
 
                 Employer, :
 
                      :        D E C I S I O N
 
            and       :
 
                      :
 
            LIBERTY MUTUAL INSURANCE CO., :
 
                      :
 
                 Insurance Carrier,  :
 
                 Defendants.    :
 
            ___________________________________________________________
 
            The record, including the transcript of the hearing before 
 
            the deputy and all exhibits admitted into the record, has 
 
            been reviewed de novo on appeal.  The decision of the deputy 
 
            filed January 30, 1991 is affirmed and is adopted as the 
 
            final agency action in this case. 
 
            Claimant shall pay the costs of the appeal, including the 
 
            preparation of the hearing transcript.
 
            Signed and filed this ____ day of August, 1991.
 
            
 
            
 
            
 
            
 
                      ________________________________
 
                               BYRON K. ORTON
 
                           INDUSTRIAL COMMISSIONER
 
            
 
            Copies To:
 
            
 
            Mr. Dennis L. Hanssen
 
            Attorney at Law
 
            2700 Grand Ave., Ste 111
 
            Des Moines, Iowa 50312
 
            
 
            Mr. Richard G. Book
 
            Attorney at Law
 
            500 Liberty Bldg.
 
            Des Moines, Iowa 50309-2421
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
            9998
 
            Filed August 26, 1991
 
            Byron K. Orton
 
            WRM
 
            before the iowa industrial commissioner
 
            ____________________________________________________________
 
                      :
 
            JAMES LAFFOON, :
 
                      :
 
                 Claimant, :
 
                      :
 
            vs.       :
 
                      :    File Nos. 858643/858644
 
            AUTOMATIQUE VENDING,     :
 
                      :          A P P E A L
 
                 Employer, :
 
                      :        D E C I S I O N
 
            and       :
 
                      :
 
            LIBERTY MUTUAL INSURANCE CO., :
 
                      :
 
                 Insurance Carrier,  :
 
                 Defendants.    :
 
            ___________________________________________________________
 
            
 
            9998
 
            
 
                 Summary affirmance of deputy's decision filed January 
 
            30, 1991.
 
            
 
 
            
 
            Page   1
 
            
 
            
 
            
 
            
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            JAMES LAFFOON,                :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          : File Nos.  858643 & 858644
 
            AUTOMATIQUE VENDING,          :
 
                                          :    A R B I T R A T I O N
 
                 Employer,                :
 
                                          :      D E C I S I O N
 
            and                           :
 
                                          :
 
            LIBERTY MUTUAL,               :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
                                   introduction
 
            
 
                 This is a proceeding in arbitration brought by James 
 
            Laffoon, claimant, against Automatique Vending, employer and        
 
            Liberty Mutual Insurance Company, insurance carrier, 
 
            defendants for benefits as the result of an alleged injury 
 
            on January 5, 1986 (file number 858643) and another alleged 
 
            injury on May 23, 1986, (file number 858644).  At the 
 
            beginning of the hearing, claimant moved to amend the 
 
            petition on file number 858644 to show an injury date of May 
 
            23, 1986, rather than May 26, 1986, as shown on the 
 
            originally filed petition.  Defendants had no objection to 
 
            the motion and the injury date on file number 858644 was 
 
            amended to be May 23, 1986 (transcript pages 3 & 4).  A 
 
            hearing was held in Des Moines, Iowa, on January 25, 1989, 
 
            and the case was fully submitted at the close of the 
 
            hearing.  Claimant was represented by Dennis L. Hanssen.  
 
            Defendants were represented by Richard G. Book.  The record 
 
            consists of the testimony of James Laffoon, claimant; Opal 
 
            L. Laffoon, claimant's wife; Leonard E. Weaver, III, claims 
 
            adjuster; Dores R. Middleton, general manager; and joint 
 
            exhibits A through H.  Defendants were charged with the 
 
            custordy of a video, joint exhibit E, until the expiration 
 
            of all appellate periods.  The deputy ordered a transcript 
 
            of the hearing.  Defendants presented a defendants' 
 
            description of disputes at the time the hearing began.  Both 
 
            attorneys submitted outstanding posthearing briefs.
 
            
 
                                      issues
 
            
 
                 The parties submitted the following issues for 
 
            determination at the time of the hearing:
 
            
 
                 Whether claimant sustained injuries on January 5, 1986 
 
            and on May 23, 1986, which arose out of and in the course of 
 
            employment with employer.
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            
 
                 Whether either injury was the cause of temporary or 
 
            permanent disability.
 
            
 
                 Whether claimant is entitled to either temporary or 
 
            permanent disability benefits, to include whether claimant 
 
            is an odd-lot employee.
 
            
 
                 Whether claimant is entitled to medical benefits.
 
            
 
                 Whether claimant gave timely notice pursuant to Iowa 
 
            Code section 85.23 has been asserted as an affirmative 
 
            defense by defendants.
 
            
 
                                 findings of fact
 
            
 
                                      notice
 
            
 
                 It is determined that claimant failed to give timely 
 
            notice of the occurrence of an injury with respect to the 
 
            alleged injury of January 5, 1986, and the alleged injury of 
 
            May 23, 1986, within 90 days from the date of the 
 
            occurrence; and therefore, no compensation shall be allowed.
 
            
 
                 85.23 Notice of injury - failure to give.
 
            
 
                    Unless the employer or the employer's 
 
                 representative shall have actual knowledge of the 
 
                 occurrence of an injury received within ninety 
 
                 days from the date of the occurrence of the 
 
                 injury, or unless the employee or someone on the 
 
                 employee's behalf or a dependent or someone on the 
 
                 dependent's behalf shall give notice thereof to 
 
                 the employer within ninety days from the date of 
 
                 the occurrence of the injury, no compensation 
 
                 shall be allowed.
 
            
 
                 Failure to give timely notice is an affirmative defense 
 
            which defendants must prove by a preponderance of the 
 
            evidence.  DeLong v. Highway Commissioner, 229 Iowa 700, 295 
 
            N.W. 91 (1940); Reddick v. Grand Union Tea Co., 230 Iowa 
 
            108, 296 N.W. 800 (1941); Mefferd v. Ed Miller & Sons, Inc., 
 
            Thirty-third Biennial Report of the Industrial Commissioner 
 
            191 (Appeal Decision 1977).
 
            
 
                 The purpose of the 90-day notice requirement or the 
 
            actual knowledge requirement is to give the employer an 
 
            opportunity to timely investigate the circumstances of the 
 
            alleged injury.  Knipe v. Skelgas Company, 229 Iowa 740, 
 
            748, 294 N.W. 880, 884 (1941); Hobbs v. Sioux City, 231 Iowa 
 
            860, 2 N.W.2d 275 (1942); Robinson v. Department of 
 
            Transportation, 296 N.W.2d 809 (Iowa 1980); Dillinger v. 
 
            City of Sioux City, 368 N.W.2d 176 (Iowa 1985).
 
            
 
                 Statutes of limitation are not favored.  When two 
 
            possible interpretations can possibly be applied, the one 
 
            giving the longer period to a litigant is to be preferred.  
 
            Sprung v. Rasmussen, 180 N.W.2d 430, 433 (Iowa 1970).  A 
 
            statute generally does not begin to run until circumstances 
 
            have evolved to the point that the injured party is entitled 
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            to a remedy.  Stoller Fisheries, Inc. v. American Title 
 
            Insurance, 258 N.W.2d 336 (1977).  At the same time, unless 
 
            a statute that imposes a period of limitations expressly 
 
            authorizes exceptions for extenuating circumstances, then it 
 
            must be applied uniformly even though the result may be 
 
            harsh.  Burgess v. Great Plains Bag Corp., 409 N.W.2d 676, 
 
            679 (Iowa 1987).
 
            
 
                 Iowa has adopted a "discovery rule" with respect to 
 
            triggering the 90-day notice.  The 90-day limit for notice 
 
            does not commence running until the employee, acting 
 
            reasonably, should know his injury is "both serious and work 
 
            connected."  Jacques v. Farmers Lbr. & Sup. Co., 242 Iowa 
 
            548, 552, 47 N.W.2d 236, 239-40 (1951); Robinson, 296 N.W.2d 
 
            809, 812 (Iowa 1980).  The reasonableness of claimant's 
 
            conduct is to be judged in the light of his own education 
 
            and intelligence.  Id.  
 
            
 
                 The discovery rule is most often stated in the terms 
 
            which the Robinson court cited from Larson.  "The time 
 
            period for noti    ery disease and angina pain to be 
 
            work connected.  Middleton misunderstood defense counsel's 
 
            statement about when he realized that claimant was blaming 
 
            his cardiovascular vascular problems on his work by giving 
 
            an answer in which he stated that it was one time that 
 
            claimant was released to go to work after his first 
 
            hospitalization (tr. p. 153).  Defense counsel rehabilitated 
 
            the witness a few questions later with these words:
 
            
 
                 Q.  When Mr. Laffoon came in to bring you that 
 
                 release, did he tell you at that time that he 
 
                 blamed his heart problems on the job?
 
            
 
                 A.  No.
 
            
 
            transcript page 154
 
            
 
                 This additional dialogue then transpired:
 
            
 
                 Q.  Did he ever personally tell you that he blamed 
 
                 his heart problems on his job?
 
            
 
                 A.  Not personally, no.
 
            
 
                 Q.  Did you ever receive any sort of written 
 
                 notice from anybody concerning an allegation that 
 
                 Mr. Laffoon's heart problems were related to his 
 
                 job?
 
            
 
                 A.  No.
 
            
 
            transcript page 154
 

 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
            
 
                 This discussion about return to work took place on 
 
            February 24, 1986 (tr. p. 161).  Middleton testified that he 
 
            did not learn that claimant had chest pains while working 
 
            for employer until claimant went back into the hospital in 
 
            March of 1986 (tr. p. 162).  This dialogue then ensued 
 
            between claimant's counsel and Middleton
 
            
 
                 Q.  The next time he went to the hospital was 
 
                 approximately the first week of March of 1986?
 
            
 
                 A.  He had the first balloon test, and that's when 
 
                 he--when we found out that he was having the heart 
 
                 troubles.
 
            
 
                 Q.  Did you also find out at that time that he had 
 
                 associated some of this pain in his heart with the 
 
                 work that he had performed for you?
 
            
 
                 A.  No.  He never referred to work being the blame 
 
                 for his problem.
 
            
 
                 Q.  Did he ever tell you that he had problems 
 
                 while at work?
 
            
 
                 A.  No.  He never told me.
 
            
 
            transcript pages 162 & 163
 
            
 
                 This colloquy then transpired between claimant's 
 
            counsel and Middleton:
 
            
 
                 Q.  (BY MR. HANSSEN) Is it your testimony that you 
 
                 had no knowledge that Mr. Laffoon was having any 
 
                 physical problems at work?
 
            
 
                 A.  The first I knew about his heart problem was 
 
                 like I stated, when he went in for that first 
 
                 balloon test.
 
            
 
                 Q.  And you had no knowledge that the work was 
 
                 aggravating these or bringing about his symptoms, 
 
                 or any relationship at all with work?
 
            A.  No, I did not.
 
            
 
            transcript page 164
 
            
 
                 The dialogue continued as follows:
 
            
 
                 Q.  And are you also testifying that when you had 
 
                 the conversation with Mr. Laffoon in February of 
 
                 1986, when you said that you didn't think that he 
 
                 should come back to work, that he did not mention 
 
                 to you that he had some problems previously while 
 
                 doing the work for you?
 
            
 
                 A.   There was nothing discussed about that, and I 
 
                 did not tell him not to come back to work.  I 
 
                 asked him if he wanted to take another week off, 
 
                 we weren't that busy right now, because he told me 
 

 
            
 
            Page   6
 
            
 
            
 
            
 
            
 
                 that he still wasn't feeling very good.
 
            
 
            transcript pages 164 & 165
 
            
 
                 The exchange ended as follows:
 
            
 
                 Q.  And were you concerned about whether the work 
 
                 that would be required of him might cause him 
 
                 additional problems?
 
            
 
                 A.  No.
 
            
 
                 Q.  You weren't concerned about that?
 
            
 
                 A.  The work was nothing out of the ordinary.
 
            
 
            transcript page 165
 
            
 
                 Claimant was called to testify in rebuttal, but did not 
 
            controvert or contradict Middleton's testimony.  On the 
 
            contrary, claimant testified that he first realized that he 
 
            had a workers' compensation claim when he contacted an 
 
            attorney about filing for bankruptcy and the attorney 
 
            informed him that he might have a workers' compensation 
 
            claim (tr. pp. 166 & 167).  From the foregoing evidence, it 
 
            is determined that employer did not have actual knowledge 
 
            that claimant either sustained or was claiming that he 
 
            sustained a work-connected injury which was manifested by 
 
            his coronary artery disease and angina pain.
 
            
 
            
 
                 Claimant or his representative did not give notice to 
 
            the employer within 90 days of the date of either alleged 
 
            occurrence of injury.  Claimant testified that when he had 
 
            chest pains, shortness of breath and sweating on January 5, 
 
            1986, he tried to call a coworker, Jamie Lamb, to ask him to 
 
            finish the route, but he was unable to contact Lamb (tr. p. 
 
            38).  A short time later, when these same symptoms continued 
 
            and claimant felt nauseated, he tried to call Middleton, but 
 
            again, was unable to contact Middleton (tr. p. 41).  
 
            Claimant testified that he told his wife to call the 
 
            employer on January 6th and tell them he could not come to 
 
            work; but claimant did not testify either at hearing or in 
 
            his deposition that he told her to tell the employer that he 
 
            could not come to work because the work caused him to be ill 
 
            (tr. pp. 51 & 52; joint exhibit C, p. 43).
 
            
 
                 With respect to the injury of May 23, 1986, claimant 
 
            told Dean Simmons, "one of the maintenance guys," who was a, 
 
            "maintenance man for Automatique," that he did not feel 
 
            good, that he had chest pains, and that he was going to go 
 
            home (tr. p. 73).  The knowledge or notice to a coemployee 
 
            who is not a representative of employer does not constitute 
 
            actual knowledge or notice to the employer.  Typical 
 
            representatives of the employer would be managers, 
 
            superintendents, foremen, company nurses and company 
 
            doctors.  A maintenance man would be considered a coemployee 
 
            rather than a representative of employer.  Franks v. 
 
            Carpenter, 192 Iowa 1398, 186 N.W. 647 (1922); Hobbs, 231 
 
            Iowa 860 2 N.W.2d 275 (1942).
 

 
            
 
            Page   7
 
            
 
            
 
            
 
            
 
            
 
                 Claimant testified that after the May 23, 1986, episode 
 
            he had his wife call a cardiologist, but he did not testify 
 
            that he had his wife call employer to report a 
 
            work-connected injury (tr. p. 73).  Clbo  diminish the effect of section 85.23 in her case." Koopmans, 
 
            file number 694831 (Appeal Decision 1987).  It is clear that 
 
            claimant did know about his alleged injuries and he realized 
 
            that they were both serious and possibly work connected, 
 
            therefore, claimant is not entitled to the discovery rule.  
 
            
 
                 Defendants have sustained the burden of proof by a 
 
            preponderance of the evidence that claimant did, in fact, 
 
            fail to give timely notice of the occurrence of the injury 
 
            within 90 days as required by Iowa Code section 85.23.  The 
 
            evidence in the record established that claimant should have 
 
            recognized the compensable character of the first injury on 
 
            January 5, 1986 and of the second injury on May 23, 1986.
 
            
 
                                conclusion of law
 
            
 
                 Wherefore, based on the evidence presented and the 
 
            foregoing and following principles of law, this conclusion 
 
            of law is made:
 
            
 
                 That claimant failed to give timely notice of the 
 
            occurrence of an injury on January 5, 1986 and again on May 
 
            23, 1986, as required by Iowa Code section 85.23; and 
 
            therefore, no compensation shall be allowed.  Croft v. John 
 
            Morrell and Co., file number 792717 (Appeal Decision 1988); 
 
            Engelhart v. Mid-America Tanning Co., Inc., file 803205 
 
            (Appeal Decision 1988).
 
            
 
                                      order
 
            
 
                 THEREFORE, IT IS ORDERED:
 
            
 
                 That no amounts are due from defendants to claimant.
 
            
 
                 That each party is charged with their own individual 
 
            costs, except that defendants are ordered to pay for the 
 
            attendance of the court reporter at the hearing and the 
 
            transcript of the hearing.  Rule 343 IAC 4.33.
 
            
 
                 Signed and filed this ____ day of January, 1991.
 
            
 
            
 
            
 
            
 
                                          ______________________________
 
                                          WALTER R. McMANUS, JR.
 
                                          DEPUTY INDUSTRIAL COMMISSIONER    
 
            
 
            Copies to:
 
            
 
            Mr. Dennis Hanssen
 
            Attorney at Law
 
            2700 Grand Ave, STE 11
 
            Des Moines, Iowa  50312
 
            
 
            Mr. Richard G. Book
 

 
            
 
            Page   9
 
            
 
            
 
            
 
            
 
            Attorney at Law
 
            416 6th Ave STE 500
 
            Des Moines, Iowa  50309-2521
 
            
 
 
            
 
            Page   1
 
            
 
            
 
            
 
            
 
                      2401; 2801; 2802; 2803
 
                      Filed January 30, 1991
 
                      Walter R. McManus, Jr.
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            JAMES LAFFOON,                :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          : File Nos.  858643 & 858644
 
            AUTOMATIQUE VENDING,          :
 
                                          :    A R B I T R A T I O N
 
                 Employer,                :
 
                                          :      D E C I S I O N
 
            and                           :
 
                                          :
 
            LIBERTY MUTUAL,               :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
            2401 2801 2802 2803
 
            Claimant experienced pain in his chest and down his left arm 
 
            while servicing vending machines at work on January 5, 1986, 
 
            and again on May 23, 1986.  He was forced to quit work on 
 
            each occasion.  He was hospitalized and these pains were 
 
            diagnosed as angina pain from coronary artery disease.  
 
            Claimant had several treadmill tests, angiograms and 
 
            angioplasties after each of these two episodes.
 
            Neither claimant nor his wife reported a work connected 
 
            injury to employer even though claimant directed his wife to 
 
            call in after each episode that he was sick and was going to 
 
            the doctor.  Employer denied he had any actual knowledge 
 
            that claimant's work caused the pain or that claimant was 
 
            claiming that his work caused the pain.  Claimant did not 
 
            controvert, contradict or rebut employers' testimony.
 
            Claimant fell on hard financial times after employer stopped 
 
            his medical insurance coverage and saw a bankruptcy attorney 
 
            who told him that he had a potential workers' compensation 
 
            claim.  This attorney prepared a written notice that was 
 
            served on employer on August 22, 1986.  The notice was 
 
            served 229 days after the first alleged injury and 91 days 
 
            after the second alleged injury.  Held (1) claimant failed 
 
            to give timely notice of injury as required by Iowa Code 
 
            section 85.23; (2) knowledge of a coemployee is not 
 
            knowledge to the employer; and (3) a mistake of law is no 
 
            excuse for violation of a notice statute.  Several cites 
 
            from Larson and Iowa cases.
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
            before the iowa industrial commissioner
 
            ____________________________________________________________
 
                      :
 
            JAMES LAFFOON, :
 
                      :
 
                 Claimant, :
 
                      :
 
            vs.       :
 
                      :    File Nos. 858643/858644
 
            AUTOMATIQUE VENDING,     :
 
                      :          A P P E A L
 
                 Employer, :
 
                      :        D E C I S I O N
 
            and       :
 
                      :
 
            LIBERTY MUTUAL INSURANCE CO., :
 
                      :
 
                 Insurance Carrier,  :
 
                 Defendants.    :
 
            ___________________________________________________________
 
            The record, including the transcript of the hearing before 
 
            the deputy and all exhibits admitted into the record, has 
 
            been reviewed de novo on appeal.  The decision of the deputy 
 
            filed January 30, 1991 is affirmed and is adopted as the 
 
            final agency action in this case. 
 
            Claimant shall pay the costs of the appeal, including the 
 
            preparation of the hearing transcript.
 
            Signed and filed this ____ day of August, 1991.
 
            
 
            
 
            
 
            
 
                      ________________________________
 
                               BYRON K. ORTON
 
                           INDUSTRIAL COMMISSIONER
 
            
 
            Copies To:
 
            
 
            Mr. Dennis L. Hanssen
 
            Attorney at Law
 
            2700 Grand Ave., Ste 111
 
            Des Moines, Iowa 50312
 
            
 
            Mr. Richard G. Book
 
            Attorney at Law
 
            500 Liberty Bldg.
 
            Des Moines, Iowa 50309-2421
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
            9998
 
            Filed August 26, 1991
 
            Byron K. Orton
 
            WRM
 
            before the iowa industrial commissioner
 
            ____________________________________________________________
 
                      :
 
            JAMES LAFFOON, :
 
                      :
 
                 Claimant, :
 
                      :
 
            vs.       :
 
                      :    File Nos. 858643/858644
 
            AUTOMATIQUE VENDING,     :
 
                      :          A P P E A L
 
                 Employer, :
 
                      :        D E C I S I O N
 
            and       :
 
                      :
 
            LIBERTY MUTUAL INSURANCE CO., :
 
                      :
 
                 Insurance Carrier,  :
 
                 Defendants.    :
 
            ___________________________________________________________
 
            
 
            9998
 
            
 
                 Summary affirmance of deputy's decision filed January 
 
            30, 1991.
 
            
 
 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         FRANCIS C. DUNLAVEY,
 
         
 
              Claimant,                               File No. 858652
 
         
 
         vs.                                       A R B I T R A T I O N
 
         
 
         ECONOMY FIRE AND CASUALTY Co.,               D E C I S I O N
 
              
 
              Employer,
 
                                                         F I L E D
 
         and
 
                                                        FEB 28 1990
 
         LUMBERMENS MUTUAL CASUALTY
 
         CO.,                                       INDUSTRIAL SERVICES
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
                                   INTRODUCTION
 
         
 
              This is a proceeding in arbitration brought by Francis C. 
 
         Dunlavey against Economy Fire and Casualty Company and its 
 
         insurance carrier Lumbermens Mutual Casualty Company.  The case 
 
         was heard and fully submitted at Mason City, Iowa on July 31, 
 
         1989.  The record in this proceeding consists of claimant's 
 
         exhibits 1 through 35, defendants, exhibits 3, 4, 5, 6, 7, 9a, 9b 
 
         and 10.  The record also contains testimony from Howard Anderson, 
 
         Lila Dunlavey, Kathryn Schrott, Francis C. Dunlavey, Denise 
 
         Bollesen, Mary Joan Ward and Patrick Walters.
 
         
 
                                      ISSUES
 
         
 
              Claimant alleges that he sustained a psychological injury as 
 
         a result of stress to which he was exposed through his 
 
         employment. He seeks compensation for permanent total disability 
 
         and asserts the odd-lot doctrine.  The issues identified for 
 
         determination are whether claimant sustained an injury which 
 
         arose out of and in the course of employment; whether a causal 
 
         connection exists between claimant's employment and the alleged 
 
         psychological injury; determination of claimant's entitlement to 
 
         compensation for temporary total disability, healing period, 
 
         permanent partial disability or permanent total disability; 
 
         determination of claimant's entitlement to payment of medical 
 
         expenses and transportation expenses under Iowa Code section 
 
         85.27; court costs; a penalty claim under Iowa Code section 
 
         86.13(4); and, determination of defendants' entitlement to credit 
 
         under Iowa Code section 85.38(2).
 
         
 
                               SUMMARY OF EVIDENCE
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
              All the evidence referred to in the Introduction, as well as 
 
         the demeanor of those who testified at hearing, was considered 
 
         when deciding this case.  The lack of a reference to any 
 
         particular part of the record does not indicate that it was 
 
         overlooked.
 
         
 
              Francis C. Dunlavey is a 57-year-old married man who lives 
 
         at Mason City, Iowa.  He has a bachelors degree in business 
 
         administration from Loras College.  Claimant stated that he had 
 
         been employed in the insurance industry for approximately 30 
 
         years and had been employed by Iowa Kemper from 1977 until 1986 
 
         when it merged with Economy Fire and Casualty Company.  Claimant 
 
         stated that he had enjoyed his work prior to the time of the 
 
         merger.  He stated that prior to the merger he had always 
 
         received good employment evaluations, periodic increases in 
 
         responsibility and periodic increases in pay.  He denied having 
 
         any mental health problems prior to the merger.  No contrary 
 
         evidence appears in the record.
 
         
 
              In late 1985, it became known to claimant and other 
 
         employees of Iowa Kemper that a merger was to occur with Economy 
 
         Fire and Casualty Company.  Claimant and the other employees were 
 
         uncertain and apprehensive regarding their job security until 
 
         early 1986 when they were told that their employment would be 
 
         continued.  The actual merger occurred in April, 1986.  According 
 
         to claimant and Howard Anderson, the change in ownership of the 
 
         company brought with it changes in claims handling procedures and 
 
         managerial personnel.  Claimant, as a claims examiner, was 
 
         required to exercise more supervision over adjusters.  He was 
 
         required to convert all pending Iowa Kemper files into Economy 
 
         files.  The Iowa Kemper employees developed a fear that the new 
 
         Economy management intended to get rid of them in one way or 
 
         another.  At the time of hearing, only one claims examiner, 
 
         Darrell Overturf, remained employed by Economy out of five who 
 
         had been employed by Iowa Kemper at the time of the merger.  
 
         Economy brought in four claims examiners at the time of the 
 
         merger.
 
         
 
              According to Howard Anderson and claimant, many left because 
 
         they felt they would be systematically eliminated.  Anderson and 
 
         claimant testified that they were given unrealistic demands and 
 
         were constantly downgraded by unfavorable evaluations.  Claimant 
 
         worked a great deal of hours of overtime in order to comply with 
 
         the new requirements, but, at best, his level of performance was 
 
         never evaluated as being better than marginally acceptable 
 
         according to claims manager Patrick Walters.  Anderson and 
 
         claimant testified that those who were original Iowa Kemper 
 
         employees had to perform more work than the personnel who were 
 
         brought in by Economy and, by and large, worked more hours than 
 
         the Economy employees.  Anderson and claimant both testified that 
 
         it was not feasible for them to perform all the work which the 
 
         Economy managers placed upon them without working many extra 
 
         hours.  Anderson and claimant stated that the stress which was 
 
         placed on the Iowa Kemper claims examiners was greater than that 
 
         placed on other employees in the Economy work place.  Anderson 
 
         described a change in claimant's personality to one in which 
 
         claimant appeared to be distraught and intimidated as a result of 
 
         the workload.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              Anderson testified that it became apparent to him that the 
 
         downgrading and unfavorable performance appraisals were part of a 
 
         process of intimidation and that he was not wanted by Economy. 
 
         Anderson stated that his termination occurred in February of 
 
         1987, just after he had completed converting the Iowa Kemper 
 
         files to the Economy system.
 
         
 
              Claimant testified that he had completed converting his 
 
         files to the Economy system shortly before he ceased work.  
 
         According to claimant, he was overwhelmed by the workload and 
 
         became frustrated because he was never able to satisfy his new 
 
         supervisors.
 
         
 
              According to Lila Dunlavey, claimant had never been a 
 
         particularly outgoing person, but he appeared to be happy when he 
 
         was working for Iowa Kemper.  Lila stated that claimant began to 
 
         appear depressed in the summer of 1987.  She stated that he came 
 
         home from work really tired and often spoke of problems he had at 
 
         work.  She stated that he would come home drained of any emotion 
 
         and would not want to eat or do anything.  Lila stated that 
 
         claimant's routine was to go to work at 6:00 a.m. and come home 
 
         late at night.  She stated that he also worked weekends.
 
         
 
              Lila testified that she had medical problems in the nature 
 
         of a cardiac arrythmia in the spring of 1987.  She stated that 
 
         she sought medical attention and that the problem has been under 
 
         control since April of 1987.
 
         
 
              Lila stated that claimant had indicated in 1986 that he 
 
         wanted to resume going to church and that they did.  She stated 
 
         that he seemed satisfied by the change.  Lila testified that in 
 
         approximately 1980, claimant discovered that he had been adopted, 
 
         a fact which his parents had never told him.  She indicated that 
 
         initially he was somewhat upset by the finding, but that after 
 
         approximately 18 months it did not seem to bother him anymore. 
 
         Lila testified that their older son has a learning disability 
 
         which was discovered when he was of pre-school age.  The son now 
 
         is employed as a dishwasher at a Perkins Restaurant.  She stated 
 
         that she and claimant have dealt with that problem ever since it 
 
         was discovered.  Lila testified that their younger son had an 
 
         alcoholism problem for which he obtained treatment.  She stated 
 
         that the rehabilitation ended in February, 1985 and was 
 
         successful.  She stated that the son now lives in Denver, 
 
         Colorado and that the substance abuse problem no longer exists.
 
         
 
              Lila Dunlavey testified that claimant developed asthma in 
 
         the spring of 1987 and had some teeth extracted in late 1986 or 
 
         early 1987.  She stated that he has had leg pain and back pain 
 
         which he feels are symptoms of his depression.  He underwent 
 
         hernia surgery in early 1988.  She considers claimant's 
 
         complaints of mucous in his throat to be a symptom of his 
 
         depression.
 
         
 
              Claimant testified that after the merger occurred he looked 
 
         for other employment but was unable to find any.  He stated that 
 
         he decided to remain with the company until retirement.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              In the summer of 1987, claimant was diagnosed as having 
 
         depression.  He was taken off work and has not since returned to 
 
         work, except for a brief period of approximately one week in the 
 
         fall of 1987.  Claimant has been hospitalized, evaluated and 
 
         treated extensively for his depressive condition.  His family 
 
         physician is James K. Coddington, M.D.  Psychiatrists who have 
 
         treated him include Ed Loon J. Chua, M.D., Ron M. Larsen, M.D., 
 
         Bruce Pfohl, M.D., and Mary M. Hennessy, M.D.  They uniformly 
 
         agree that claimant is afflicted with major depression.  Drs. 
 
         Coddington, Chua and Larsen have all expressed the opinions that 
 
         claimant's employment stress was a causative or aggravating 
 
         factor in the development of his depression (claimant's exhibit 
 
         24, pages 23, 24, 39, 40, 50, 53 and 54; claimant's exhibit 17; 
 
         claimant's exhibit 6; claimant's exhibit 11, pages 8-14; 
 
         claimant's exhibit 18, pages 13, 20, 21, 27, 29, 47, 48, 62 and 
 
         63; claimant's exhibit 25, pages 20, 21, 30, 31 and 32).  Dr. 
 
         Pfohl stated that the work stress is probably a substantial 
 
         factor in causing claimant's depression, but he declined to 
 
         compare its significance to the other known stresses in 
 
         claimant's life (claimant's exhibit 36, pages 23, 28, 65-70, 74 
 
         and 75).  Dr. Hennessy declined to express an opinion regarding 
 
         causation (claimant's exhibit 27, pages 31, 37, 56 and 57).
 
         
 
              With regard to claimant's ability to resume employment, the 
 
         doctors vacillated in their opinions ranging from that he was not 
 
         capable of returning to any type of regular employment to that he 
 
         could possibly try a low stress job or that, with rehabilitation 
 
         services, he could possibly resume employment.  The doctors who 
 
         addressed the issue agreed that claimant's feelings of religious 
 
         guilt were a symptom of his depression, not a cause.  They also 
 
         agreed that his other physiological complaints were symptoms of 
 
         the depression rather than causes.  The doctors generally agreed 
 
         that certain people have a genetic or other predisposition to 
 
         develop depression and that depression is caused by a chemical 
 
         imbalance in the brain, but that stress is a causative factor 
 
         (claimant's exhibit 24, pages 15, 22 and 23; claimant's exhibit 
 
         25, pages 40-42).
 
         
 
              The doctors generally agreed that depression is usually a 
 
         temporary condition and that most individuals who suffer it 
 
         recover and are able to return to work.  They also, however, 
 
         generally declined to express a specific prognosis for claimant's 
 
         case since his depression has existed for an unusually long 
 
         amount of time (claimant's exhibit 25, pages 24, 37 and 43; 
 
         claimant's exhibit 26, pages 39-41 and 60-62; claimant's exhibit 
 
         27, pages 25, 52 and 53).
 
         
 
              Clinical psychologist George Shears, who assessed claimant, 
 
         felt that claimant's condition was not likely to change without 
 
         treatment and that any change which occurred would likely be slow 
 
         (defendants' exhibit 9a, pages 22 and 23).  Licensed social 
 
         worker Pamela Carlson Little was not optimistic about claimant's 
 
         chances for rehabilitation (defendants' exhibit 9b, page 79).
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
              Vocational consultant Kathryn Schrott expressed the opinion 
 
         that claimant was incapable of obtaining employment in any 
 
         capacity in competitive employment due to the symptoms of his 
 
         ongoing depression which continued to affect him.  She stated 
 
         that employers discriminate on the basis of age, and medical 
 
         condition, particularly mental illness.
 
         
 
              The physicians and other professionals generally agreed that 
 
         if claimant were to recover from his depression, he would then be 
 
         employable.
 
         
 
              Denise Bollesen, an Economy claims examiner, Mary Joan Ward, 
 
         the assistant claims manager, and Patrick Walters, the claims 
 
         manager, all testified that claimant's workload was not unusual 
 
         or out of the ordinary from that routinely carried by other 
 
         claims examiners.  Defendants' exhibits 4 and 5, the only 
 
         documentary evidence of claimant's actual workload, appeared to 
 
         show that the number of files which claimant was handling during 
 
         1985, prior to the merger, was approximately 50 percent more than 
 
         the number which he handled after the merger.  There was a great 
 
         diversity in the estimates of the time required to convert files 
 
         and perform the other duties required due to the merger.
 
         
 
                           APPLICABLE LAW AND ANALYSIS
 
         
 
              The primary issue in this case, the one upon which all the 
 
         other issues are dependent, is a determination of whether or not 
 
         Francis Dunlavey's depression is an injury which arose out of his 
 
         employment.  There is no evidence to support a good faith dispute 
 
         regarding his present state of total disability.
 
         
 
              Claimant has the burden of proving by a preponderance of the 
 
         evidence that he received an injury on June 16, 1987 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.  McClure v. Union County, 188 N.W.2d 283, 287 (Iowa 
 
         1971); Crowe v. DeSoto Consol. Sch. Dist., 246 Iowa 402, 68 
 
         N.W.2d 63 (1955).  The "arising out of" requirement is satisfied 
 
         by showing a causal relationship between the employment and the 
 
         injury.  Sheerin v. Holin Co., 380 N.W.2d 415, 417 (Iowa 1986).
 
         
 
              Aggravation of a preexisting condition is one form of 
 
         compensable injury.  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.2d 756, 760-61 (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, 815 (1962) .
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
              The claimant has the burden of proving by a preponderance of 
 
         the evidence that the injury of June 16, 1987 is causally related 
 
         to the disability on which he now bases his claim.  Bodish v. 
 
         Fischer, Inc., 257 Iowa 516, 133 N.W.2d 867 (1965).  Lindahl v. 
 
         L. O. Boggs, 236 Iowa 296, 18 N.W.2d 607 (1945).  A possibility 
 
         is insufficient; a probability is necessary.  Burt v. John Deere 
 
         Waterloo Tractor Works, 247 Iowa 691, 73 N.W.2d 732 (1955).  The 
 
         question of causal connection is essentially within the domain of 
 
         expert testimony.  Bradshaw v. Iowa Methodist Hospital, 251 Iowa 
 
         375, 101 N.W.2d 167 (1960).
 
         
 
              However, expert medical evidence must be considered with all 
 
         other evidence introduced bearing on the causal connection.  
 
         Burt, 247 Iowa 691, 73 N.W.2d 732.  The opinion of experts need 
 
         not be couched in definite, positive or unequivocal language.  
 
         Sondag v. Ferris Hardware, 220 N.W.2d 903 (Iowa 1974).  However, 
 
         the expert opinion may be accepted or rejected, in whole or in 
 
         part, by the trier of fact.  Id. at 907.  Further, the weight to 
 
         be given to such an opinion is for the finder of fact, and that 
 
         may be affected by the completeness of the premise given the 
 
         expert and other surrounding circumstances.  Bodish, 257 Iowa 
 
         516, 133 N.W.2d 867.  See also Musselman v. Central Telephone 
 
         Co., 261 Iowa 352, 154 N.W.2d 128 (1967).
 
         
 
              The claim in this case is a claim for psychological injury 
 
         which is based upon psychological stress.  This agency has 
 
         adopted the so-called "Wisconsin rule."  Desgranges v. Dept of 
 
         Human Servs., file number 760747 (App. Decn. August 19, 1988).  
 
         The rule requires proof of both medical or factual causation as 
 
         well as legal causation.  The issue of medical or factual 
 
         causation is essentially a subject of expert medical opinion.  In 
 
         this case, the evidence from the physicians is overwhelming that, 
 
         based upon the medical history which they had been provided, they 
 
         agreed that claimant's employment stress was a substantial factor 
 
         in producing his depression.
 
         
 
              The issue of legal causation, and the accuracy of the 
 
         medical history which was provided to the physicians, are closely 
 
         related. The standard for legal causation is that 
 
         non-traumatically caused mental injury is compensable only when 
 
         the injury resulted from a situation of greater dimensions that 
 
         the day-to-day mental stress and tensions which all employees 
 
         must experience.  Swiss Colony v. Dept of Indus., L. & H. R., 240 
 
         N.W.2d 128 (Wis. 1976); School Dist. No. 1 v. Dept of Indus., L. 
 
         & H. R., 215 N.W.2d 373 (Wis. 1974).
 
         
 
              As was held by the Iowa Supreme Court, the employment must 
 
         provide causation.  Simply providing a setting in which an 
 
         emotional condition arises does not provide a basis for 
 
         liability. Newman v. John Deere Ottumwa Works, 372 N.W.2d 199 
 
         (Iowa 1985).
 
         
 
              The result in this case depends upon whether or not the 
 
         stresses to which Francis Dunlavey was subjected as a result of 
 
         the merger subjected him to emotional strains which were of 
 
         greater dimensions than the day-to-day emotional strain and 
 
         tension which all employees must experience.  To meet the 
 
         standard, it must be established that the strains were out of the 
 
         ordinary from the countless emotional strains and differences 
 
         that employees encounter daily without serious mental injury.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              Claimant had treated with Dr. Coddington since 1984.  The 
 
         depression was not diagnosed until June of 1987, but it should be 
 
         noted that on May 28, 1986 claimant reported being under a lot of 
 
         stress at work (claimant's exhibit 1, page 2).  In 1986, he 
 
         expressed complaints of tightness in his throat, tiring more 
 
         easily and of respiratory problems.  The first note regarding his 
 
         concern over the condition of his mouth is dated December 29, 
 
         1986 (claimant's exhibit 1, pages 3 and 4).  These are all 
 
         indicators of depression.  While Dr. Coddington had indicated 
 
         that he did not diagnose the depression until June, it appears 
 
         that early signs of the depression were manifest.  They are first 
 
         noted, in May of 1986, after the merger had occurred.  When 
 
         claimant was seen in 1984, it was noted that his job was 
 
         minimally stressful (claimant's exhibit 1, page 1).  In view of 
 
         the nature of depression, as described by the physicians, it 
 
         appears as though the symptoms were present and the depressive 
 
         episode was building in late 1986, even though the condition was 
 
         not actually diagnosed until June of 1987.
 
         
 
              Employers hire employees in order to accomplish work which 
 
         must be accomplished in order for the employer's business to 
 
         succeed.  Employees must perform at a commercially productive 
 
         level.  If they are unable to do so, the employment relationship 
 
         ceases.  Francis Dunlavey had apparently performed adequately for 
 
         approximately 30 years.  After the merger, however, he was unable 
 
         to satisfy his new supervisors.  The supervisors attribute this 
 
         to a bad attitude while claimant attributes it to an excessive 
 
         workload.  The record of this case is conflicting with regard to 
 
         whether or not the workload was in fact excessive.  The record 
 
         does not contain any evidence of claimant being publicly 
 
         belittled in front of other employees.  The record is also clear 
 
         that he did not satisfy his new supervisors and his new 
 
         supervisors made it abundantly clear to him that they were 
 
         unsatisfied with his performance.  As indicated by Dr. Pfohl, the 
 
         onset of depression would quite likely lead to substandard work 
 
         performance (claimant's exhibit 26, pages 23 and 24).  It is 
 
         quite likely that the depression was mounting and having an 
 
         effect upon claimant's work prior to the time it was first 
 
         diagnosed in June of 1987.
 
         
 
              Individuals who develop depression, like individuals who 
 
         have heart attacks, normally have some preexisting 
 
         predisposition. People who do not have coronary artery disease 
 
         generally do not have heart attacks.  People who are not 
 
         predisposed, either genetically or by environment, to develop 
 
         coronary artery disease, generally do not have heart attacks.  
 
         People who are not predisposed, either genetically or by 
 
         environment, to develop depression as a response to stress, 
 
         generally do not develop depression.  It is only a small fraction 
 
         of the population who develop depression, regardless of the 
 
         stress to which they are subjected.  The fact that predisposition 
 
         plays an integral part in the development of the condition does 
 
         not provide any basis for denial of liability.  It is merely a 
 
         latent preexisting condition.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              Howard Anderson and claimant both indicated that all of the 
 
         claims examiners at Iowa Kemper became anxious when the merger 
 
         was announced.  It appears as though they all genuinely felt that 
 
         they were being treated less favorably than those who had 
 
         originally been Economy employees.  They had been told that a new 
 
         "lean and mean" attitude would be replacing the "country club 
 
         atmosphere" which had prevailed at Iowa Kemper.  There is ample 
 
         reason in the record of this case for them to have felt uncertain 
 
         about their jobs.  The claims manager and assistant claims 
 
         manager who had supervised them for Iowa Kemper both were 
 
         replaced with long-term Economy personnel.  The office which had 
 
         consisted of five Iowa Kemper claims examiners was supplemented 
 
         with four examiners from Economy.  By the time of hearing, only 
 
         one of the original five Iowa Kemper claims examiners remained 
 
         employed by Economy.  The Iowa Kemper employees were not given 
 
         any assurance regarding their job status until approximately the 
 
         actual time of the merger.  Mary Joan Ward, who was made 
 
         assistant claims manager in November in 1986, had risen to that 
 
         level of responsibility after being hired in August of 1977 as a 
 
         records clerk.  Prior to commencing employment with Economy in 
 
         1977, she had worked at a photo studio. She had studied speech in 
 
         college, but dropped out without obtaining a degree.  According 
 
         to Howard Anderson, the Iowa Kemper claims examiners were 
 
         replaced by persons who were generally lower paid and less 
 
         experienced.  His assessment appears correct if Denise Bollesen 
 
         is a typical example of the level of formal training and claims 
 
         handling experience of Economy claims examiners.  What has been 
 
         referred to as a merger appears more like a takeover in which 
 
         Iowa Kemper was assumed into Economy Fire and Casualty.  
 
         Regardless of whether the plan was to eliminate the Iowa Kemper 
 
         employees, or simply an inept exercise in employee relations, the 
 
         result was, in any event, a great deal of stress for the Iowa 
 
         Kemper employees.
 
         
 
              From the record which has been presented in this case, it 
 
         appears as though there was either a plan to eliminate the Iowa 
 
         Kemper claims examiners or else the merger was handled in an 
 
         almost unimaginably inept manner from an employee relations 
 
         standpoint.  Despite the high level of stress which would have 
 
         been experienced by all the Iowa Kemper claims examiners, 
 
         claimant is the only one known to have developed a medically 
 
         diagnosed depression.
 
         
 
              The closing of a plant or work place is an event which is 
 
         not all that uncommon.  Having unrealistic workloads placed upon 
 
         an employee is likewise not all that uncommon.  Being 
 
         unappreciated by a supervisor is not uncommon.  It is not 
 
         uncommon for managers to treat those who they have individually 
 
         hired and worked with for an extended period of time better than 
 
         employees who are placed with them from some other source.  The 
 
         stereotype of a boss is not a kind, understanding, nurturing 
 
         individual.  They are usually thought of as being somewhat 
 
         disagreeable.
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
              The undersigned finds that Francis Dunlavey's depression had 
 
         its onset in late 1986, that the stress associated with the 
 
         merger of Iowa Kemper and Economy Fire and Casualty was a 
 
         substantial factor in producing the depression, and that the 
 
         stresses to which claimant was subjected as a result of the 
 
         merger were greater than the stresses which all employees must 
 
         and commonly do endure on a day-to-day basis.  There is 
 
         sufficient evidence in the record of this case that, when the 
 
         combination of facts which resulted from the merger are viewed as 
 
         a whole, it is determined that the stress which claimant 
 
         experienced as a result of those changes was a level of stress 
 
         greater than the day-to-day stresses which all employees must and 
 
         commonly do experience by virtue of their employment on a 
 
         day-to-day basis.
 
         
 
              The particular facts which provided a basis for the stress 
 
         experienced by Francis Dunlavey include the long period of 
 
         uncertainty with regard to whether or not jobs would be available 
 
         for the Iowa Kemper employees; being told that a new "lean and 
 
         mean" attitude was forthcoming; replacement of the Iowa Kemper 
 
         claims manager and assistant claims manager; replacement of Iowa 
 
         Kemper claims examiners with individuals who appeared to have 
 
         less formal training and experience; appointment of an assistant 
 
         claims manager who appeared to have less formal training and 
 
         experience in claims handling than the Iowa Kemper claims 
 
         examiners; assigning Iowa Kemper claims examiners the additional 
 
         duty of converting Iowa Kemper files into Economy files; and, 
 
         failing to contradict the perception which the Iowa Kemper 
 
         employees had developed that Economy intended to eliminate them.  
 
         While any one or two of the foregoing would not necessarily 
 
         constitute the extraordinary level of stress which would support 
 
         a finding of legal causation, the combination of all the 
 
         foregoing does meet the requisite standard for legal causation.  
 
         It is therefore determined that Francis C. Dunlavey was, as a 
 
         result of the merger, exposed to a level of stress which exceeded 
 
         the level which was normal for the duties of his position as a 
 
         claims examiner and that it exceeded the level of stress which is 
 
         commonly endured, without injury, by all employees on a 
 
         day-to-day basis.  It is therefore concluded that the depression 
 
         which Francis Dunlavey developed was proximately caused by the 
 
         unusual stress which resulted from the merger.  It constitutes an 
 
         injury which arose out of and in the course of his employment.
 
         
 
              Claimant has been continually disabled ever since June 16, 
 
         1987, except for the brief unsuccessful attempt to return to work 
 
         in the fall of 1987.  The physicians have expressed the general 
 
         consensus that most individuals recover from an episode of 
 
         depression.  All seemed to express optimism for further 
 
         improvement of claimant's condition.  Claimant had shown notable 
 
         improvement under the treatment of Dr. Hennessy.  At the time of 
 
         hearing, he had resumed part-time employment in a sheltered 
 
         setting.  Claimant's work efforts through the rehabilitation 
 
         program do not constitute the type of bona fide return to 
 
         employment which terminates healing period or temporary total 
 
         disability compensation.  He appears to still be in a 
 
         recuperative stage.  The physicians have not clearly demonstrated 
 
         any consensus of opinion that further significant improvement is 
 
         not anticipated.  It is therefore determined that Francis 
 
         Dunlavey is entitled to a running award of temporary total 
 
         disability compensation, interrupted by his return to work at 
 
         Economy Fire and Casualty Company, but not by his attempts to 
 
         perform work through the vocational rehabilitation program.  If 
 
         an assessment of permanent disability were to be made at this 
 
         time, the undersigned would readily conclude that claimant is 
 
         totally disabled since there is no evidence to suggest that he is 
 
         capable of obtaining employment in the competitive labor market.  
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         Use of the term "temporary total disability" is not intended to 
 
         constitute an adjudication that the condition has not, or will 
 
         not, produce any degree of permanent disability.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              The medical expenses contained in claimant's exhibits 28 and 
 
         35 were reviewed.  The dates of services were compared with the 
 
         description of service contained on the bills and the identity of 
 
         the providers.  The same are found to be consistent with the 
 
         treatment which claimant received for his depressive condition. 
 
         Defendants are therefore responsible for full payment of those 
 
         expenses.
 
         
 
              An issue was identified on the prehearing report and hearing 
 
         assignment order regarding credit under Iowa Code section 
 
         85.38(2) for the monthly payments of $1,649.05 per month paid 
 
         during 1987 and $815.05 per month paid during 1988 up to the date 
 
         of hearing and also for medical expenses which the prehearing 
 
         report indicates all but $10,310.59 had been paid by the group 
 
         carrier. Claimant's exhibit 31 establishes that the defendants 
 
         are entitled to the credit.
 
         
 
              Claimant's transportation expenses are adequately identified 
 
         in claimant's exhibit 29.  Claimant is therefore entitled to 
 
         recover $487.20 in transportation expenses representing 2,320 
 
         miles at the rate of $.21 per mile.
 
         
 
              In view of the close nature of this decision on the issue of 
 
         legal causation, it is determined that claimant is not entitled 
 
         to recover any penalty under the fourth unnumbered paragraph of 
 
         Iowa Code section 86.13.  It is determined that the defense of 
 
         the claim was in good faith and that the claim was fairly 
 
         debatable. Dodd. v. Oscar Mayer Foods Corp., file number 724378 
 
         (section 86.13 decision, April 27, 1989); Dolan v. Aid Ins. Co., 
 
         431 N.W.2d 790 (Iowa 1988); Kimberly-Clark Corp. v. Labor & 
 
         Indus. Review Comm., 405 N.W.2d 685 (Wis. 1987); Coleman v. 
 
         American Universal Ins. Co., 273 N.W.2d 220 (Wis. 1979).
 
         
 
                                 FINDINGS OF FACT
 
         
 
              1.  Francis C. Dunlavey developed depression as a result of 
 
         stresses to which he was subjected in his employment with Economy 
 
         Fire and Casualty Company.
 
         
 
              2.  The stresses which Dunlavey experienced exceeded the 
 
         magnitude of the day-to-day stresses which must be endured by all 
 
         employees.
 
         
 
              3.  Francis Dunlavey has remained totally disabled from 
 
         performing work substantially similar to that he performed at the 
 
         time of injury from June 17, 1987 up to the present time, except 
 
         for a period in 1987 when he made an unsuccessful attempt to 
 
         resume employment with Economy Fire and Casualty.
 
         
 
              4.  Claimant is still recuperating and it is statistically 
 
         probable that he will eventually recover from the depression 
 
         sufficiently to be able to resume some type of gainful 
 
         employment, although it is too early to make an accurate finding 
 
         on permanency.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              5.  All expenses contained in exhibits 28 and 35 were 
 
         incurred in obtaining reasonable treatment for claimant's injury.
 
         
 
                                CONCLUSIONS OF LAW
 
         
 
              1.  This agency has jurisdiction of the subject matter of 
 
         this proceeding and its parties.
 
         
 
              2.  The depression which Francis Dunlavey developed is an 
 
         injury which arose out of and in the course of his employment 
 
         with Economy Fire and Casualty Company.
 
         
 
              3.  Francis Dunlavey is entitled to recover a running award 
 
         of temporary total disability compensation commencing June 17, 
 
         1987 and running through the date of this decision, except for an 
 
         interruption for the days claimant actually worked in late 1987.
 
         
 
              4.  Claimant is entitled to recover his full medical 
 
         expenses as set forth in claimant's exhibits 28 and 35.
 
         
 
              5.  Defendants are entitled to credit under the provisions 
 
         of Iowa Code section 85.38(2) for the disability benefit which 
 
         has been provided to claimant in accordance with claimant's 
 
         exhibit 31 and also for all medical expenses which have been paid 
 
         under the employer's group plan.  The unpaid balance which 
 
         exceeds the amount of the credit is $10,310.59 as stipulated in 
 
         the prehearing report, $5,706.05 from claimant's exhibit 35, and 
 
         $487.20 transportation expenses from claimant's exhibit 29.
 
         
 
              6.  Claimant is not entitled to any recover under the fourth 
 
         unnumbered paragraph of Iowa Code section 86.13.
 
         
 
                                      ORDER
 
         
 
              IT IS THEREFORE ORDERED that defendants pay claimant weekly 
 
         compensation for temporary total disability at the stipulated 
 
         rate of three hundred sixty-eight and 93/100 dollars ($368.93) 
 
         per week payable commencing June 17, 1987 and running through the 
 
         date of this decision, except for the few days claimant actually 
 
         worked in late 1987.
 
         
 
              IT IS FURTHER ORDERED that defendants pay all of the unpaid 
 
         balance of claimant's medical expenses in full as shown in 
 
         claimant's exhibits 28 and 35.  Defendants are entitled to credit 
 
         for the amounts paid by their group medical insurance provider 
 
         and shall refund to claimant the amount of twelve thousand one 
 
         hundred eighty-one and 05/100 dollars ($12,181.05) which he has 
 
         paid from his own funds.
 
         
 
              IT IS FURTHER ORDERED that defendants pay claimant four 
 
         hundred eighty-seven and 20/100 dollars ($487.20) for 
 
         transportation expenses.
 
         
 
              IT IS FURTHER ORDERED that defendants receive credit against 
 
         the award of temporary total disability for the net amount 
 
         received by claimant under the group plan and that all past due 
 
         amounts be paid to claimant together with interest at the rate of 
 
         ten percent (10%) per annum computed from the date each payment 
 
         came due until the date of actual payment pursuant to Iowa Code 
 
         section 85.30.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              IT IS FURTHER ORDERED that the costs of this action are 
 
         assessed against defendants pursuant to Division of Industrial 
 
         Services Rule 343-4.33.
 
         
 
              IT IS FURTHER ORDERED that defendants file claim activity 
 
         reports as requested by this agency pursuant to Division of 
 
         Industrial Services Rule 343-3.1.
 
         
 
              Signed and filed this 28th day of February, 1990.
 
         
 
         
 
         
 
         
 
         
 
         
 
                                            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. Michael A. McEnroe
 
         Mr. J. Scott Bayne
 
         Attorneys at Law
 
         3151 Brockway Road
 
         P.O. Box 810
 
         Waterloo, Iowa  50704
 
         
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
 
                                            
 
 
 
 
 
 
 
 
 
 
 
                                            1108.20, 1402.30, 1801
 
                                            2204, 2206, 4000
 
                                            Filed February 28, 1990
 
                                            MICHAEL G. TRIER
 
         
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         FRANCIS C. DUNLAVEY,
 
         
 
              Claimant,
 
         
 
         vs.
 
                                                    File No. 858652
 
         ECONOMY FIRE AND CASUALTY CO.,
 
                                                 A R B I T R A T I 0 N 
 
              Employer,
 
                                                    D E C I S I 0 N
 
         and
 
         
 
         LUMBERMENS MUTUAL CASUALTY
 
         CO.,
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
         1108.20, 1402.30, 1801, 2204, 2206, 4000
 
         
 
              Claimant found to have developed depression as a result of 
 
         stress resulting from the merger/takeover of this long-term 
 
         employer.  Wisconsin rule approved.  Held:  medical/factual 
 
         causation established overwhelmingly by physicians.  Legal 
 
         causation found based on the totality of the circumstances. 
 
         Awarded running temporary total disability since claimant still 
 
         in vocational rehabilitation and continuing to improve.