BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         LOUISE J. PARTINGTON,
 
         
 
              Claimant,                             File Nos. 858659
 
                                                            & 856405
 
         vs.
 
                                                 A R B I T R A T I O N
 
         SISTERS OF,MERCY HOSPITAL,
 
         DAVENPORT, IOWA,                           D E C I S I O N
 
         
 
              Employer,
 
                                                       F I L E D
 
         and
 
                                                      JUN 27 1989
 
         CNA INSURANCE COMPANIES,
 
                                              IOWA INDUSTRIAL COMMISSIONER
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
                                INTRODUCTION
 
         
 
              These are arbitration proceedings brought by Louise J. 
 
         Partington, claimant, against Sisters of Mercy Hospital, 
 
         employer, and CNA Insurance Companies, insurance carrier, 
 
         defendants.  These cases were heard by the undersigned on 
 
         February 6, 1989, in Davenport, Iowa.
 
         
 
              The record consists of the testimony of claimant.  The 
 
         record also consists of claimant's exhibits 1-40 and defendants' 
 
         exhibit A.
 
         
 
                                     ISSUES
 
         
 
              As a result of the prehearing report and order submitted on 
 
         February 6, 1989, the issues presented by the parties are:
 
         
 
              1.  Whether claimant sustained an injury on January 1986 
 
         which arose out of and in the course of employment with 
 
         employer;
 
         
 
              2. Whether there is a causal relationship between the 
 
         alleged injury and the disability;
 
         
 
              3.  Whether claimant is entitled to temporary disability/ 
 
         healing period benefits or permanent partial or total disability 
 
         benefits;
 
         
 
              4.  Whether claimant is an odd-lot employee;
 
         
 
              5.  Whether claimant is entitled to benefits under section 
 
         85.27; and,
 
                                                
 
                                                         
 
         
 
              6.  Whether claimant provided notice under section 85.23 for 
 
         the January 1986 injury date.
 
         
 
                                STIPULATIONS
 
         
 
              Prior to the hearing, the parties entered into a number of 
 
         stipulations.  The stipulations are as follows:
 
         
 
              1.  The existence of an employer-employee relationship 
 
         between claimant and employer at the time of the alleged 
 
         injuries;
 
         
 
              2.  That claimant sustained an injury on May 28, 1987, which 
 
         arose out of and in the course of employment with employer;
 
         
 
              3.  That as a result of the injury on May 28, 1987, claimant 
 
         sustained a temporary disability and that no temporary disability 
 
         was claimed for the alleged injury on January 1986.
 
         
 
              4.  That the extent of entitlement to weekly compensation 
 
         for temporary total disability or healing period, if defendant is 
 
         liable for the injury, is stipulated to be from June 19, 1987 to 
 
         present;
 
         
 
              5.  The type of permanent disability, if the injury is found 
 
         to be a cause of permanent disability, is stipulated to be an 
 
         industrial disability to the body as a whole; and,
 
         
 
              6.  In the event of an award of weekly benefits, the rate of 
 
         weekly compensation is stipulated to be $148.70 per week.
 
         
 
                              FACTS PRESENTED
 
         
 
              Claimant is 60 years old.  She began working for defendant 
 
         as a housekeeper on June 11, 1980.  Claimant testified her duties 
 
         included cleaning 20 rooms, 2 offices, 2 public restrooms, and 2 
 
         showers.  Claimant stated she was responsible for mopping the 
 
         bathroom, cleaning the stools and the sinks, dusting, and 
 
         vacuuming the carpet.  Claimant also testified she was required 
 
         to strip linens from the beds and to remove the mattresses.
 
         
 
              Claimant, upon direct examination, testified that on January 
 
         19, 1986, she was vacuuming with a new type of upright sweeper. 
 
         She indicated she pulled back while operating the sweeper, and 
 
         she "felt something pop in her back."  According to her 
 
         testimony, claimant sought treatment at the hospital on the 
 
         succeeding day. She reported she was hospitalized for 5 days and 
 
         off work for 3 weeks.
 
         
 
              Claimant testified she reported her injury to her then 
 
         supervisor, Diane LeMaster, an employee of Servicemaster, and 
 
         that Diane sent claimant home on the day of the alleged injury.  
 
         Also, claimant stated she verbally informed Mr. Mark Davis, 
 
         director of housekeeping for Servicemaster, of her work injury, 
 
                                                
 
                                                         
 
         or else Diane had informed Mr. Davis of the injury because he 
 
         visited with claimant on several occasions while she was in the 
 
         hospital. Claimant stated that in 1986, she did not report her 
 
         injury to the personnel department at Mercy.
 
         
 
              With respect to the second injury, claimant testified she 
 
         was in room 6016 at the hospital.  Claimant stated she went to 
 
         empty the trash when she tripped over a telephone cord.  She 
 
         indicated she fell onto the floor, landed on her right side, near 
 
         her hip area.  Claimant reported she laid on the floor for four 
 
         minutes, she was sick to her stomach.  As a result, claimant 
 
         stated she reported the incident to her supervisor.
 
         
 
              Claimant testified she worked the remainder of her shift on 
 
         that day, and then she worked on the next day.  Claimant 
 
         testified she stayed away from work for a period of time.  During 
 
         this time period, claimant was receiving chiropractic treatments 
 
         from Robert W. Duncalf, D.C.  After several treatments per week, 
 
         claimant was released to return to work.  She worked three or 
 
         four days in July of 1987, but the pain was so great, she left 
 
         work.  Claimant reported she has not worked since that time, 
 
         although claimant has attempted participation in a work hardening 
 
         program.
 
         
 
                               APPLICABLE LAW
 
         
 
              An employee is entitled to compensation for any and all 
 
         personal injuries which arise out of and in the course of the 
 
         employment.  Section 85.3(1).
 
         
 
              Claimant has the burden of proving by a preponderance of the 
 
         evidence that she received injuries on January 1986 and May 28, 
 
         1987 which arose out of and in the course of her employment. 
 
         McDowell v. Town of Clarksville, 241 N.W.2d 904 (Iowa 1976); 
 
         Musselman v. Central Telephone Co., 261 Iowa 352, 154 N.W.2d 128 
 
         (1967).
 
         
 
              The injury must both arise out of and be in the course of 
 
         the employment.  Crowe v. DeSoto Consol. Sch. Dist., 246 Iowa 
 
         402, 68 N.W.2d 63 (1955) and cases cited at pp. 405-406 of the 
 
         Iowa Report.  See also Sister Mary Benedict v. St. Mary's Corp., 
 
         255 Iowa 847, 124 N.W.2d 548 (1963) and Hansen v. State of Iowa, 
 
         249 Iowa 1147, 91 N.W.2d 555 (1958).
 
         
 
              The words "out of" refer to the cause or source of the 
 
         injury.  Crowe, 246 Iowa 402, 68 N.W.2d 63 (1955).
 
         
 
              The words "in the course of" refer to the time and place and 
 
         circumstances of the injury.  McClure v. Union et al. Counties, 
 
         188 N.W.2d 283 (Iowa 1971); Crowe, 246 Iowa 402, 68 N.W.2d 63 
 
         (1955).
 
         
 
              "An injury occurs in the course of the employment when it is 
 
         within the period of employment at a place the employee may 
 
         reasonably be, and while he is doing his work or something 
 
                                                
 
                                                         
 
         incidental to it."  Cedar Rapids Comm. Sch. Dist. v. Cady, 278 
 
         N.W.2d 298 (Iowa 1979); McClure, 188 N.W.2d 283 (Iowa 1971); 
 
         Musselman, 261 Iowa 352, 154 N.W.2d 128 (1967).
 
         
 
              The claimant has the burden of proving by a preponderance of 
 
         the evidence that the injury of January 1986 and May 28, 1987 are 
 
         causally related to the disability on which she now bases her 
 
         claim.  Bodish v. Fischer, Inc., 257 Iowa 516, 133 N.W.2d 867 
 
         (1965).  Lindahl v. L.O. Boggs, 236 Iowa 296, 18 N.W.2d 607 
 
         (1945).  A possibility is insufficient; a probability is 
 
         necessary.  Burt v. John Deere Waterloo Tractor Works, 247 Iowa 
 
         691, 73 N.W.2d 732 (1955).  The question of causal connection is 
 
         essentially within the domain of expert testimony.  Bradshaw v. 
 
         Iowa Methodist Hospital, 251 Iowa 375, 101 N.W.2d 167 (1960).
 
         
 
              The opinions of experts need not be couched in definite, 
 
         positive or unequivocal language.  Sondag v. Ferris Hardware, 220 
 
         N.W.2d 903 (Iowa 1974).  An opinion of an expert based upon an 
 
         incomplete history is not binding upon the commissioner, but must 
 
         be weighed together with the other disclosed facts and 
 
         circumstances.  Bodish, 257 Iowa 516, 133 N.W.2d 867 (1965).  The 
 
         expert medical evidence must be considered with all other 
 
         evidence introduced bearing on the causal connection between the 
 
         injury and the disability.  Burt, 247 Iowa 691, 73 N.W.2d 732 
 
         (1955).  In regard to medical testimony, the commissioner is 
 
 
 
                               
 
                                                         
 
         required to state the reasons on which testimony is accepted or 
 
         rejected.  Sondag, 220 N.W.2d 903 (1974).
 
         
 
              While a claimant is not entitled to compensation for the 
 
         results of a preexisting injury or disease, the mere existence at 
 
         the time of a subsequent injury is not a defense.  Rose v. John 
 
         Deere Ottumwa Works, 247 Iowa 900, 908, 76 N.W.2nd 756, (1956).  
 
         If the claimant had a preexisting condition or disability that is 
 
         aggravated, accelerated, worsened or lighted up so that it results 
 
         in disability, claimant is entitled to recover.  Nicks v Davenport 
 
         Produce Co., 254 Iowa 130, 115 N.W.2d 812, (1962).
 
         
 
              When an aggravation occurs in the performance of an 
 
         employer's work and a causal connection is established, claimant 
 
         may recover to the extent of the impairment.  Ziegler v. United 
 
         States Gypsum Co., 252 Iowa 613, 620, 106 N.W.2d 591, (1960).
 
         
 
              The Iowa Supreme Court cites, apparently with approval, the 
 
         C.J.S. statement that the aggravation should be material if it is 
 
         to be compensable.  Yeager v. Firestone Tire & Rubber Co., 253 
 
         Iowa 369, 112 N.W.2d 299 (1961); 100 C.J.S. Workmen's 
 
         Compensation section 555(17)a.
 
         
 
              Our supreme court has stated many times that a claimant may 
 
         recover for a work connected aggravation of a preexisting 
 
         condition.  Almquist v. Shenandoah Nurseries, 218 Iowa 724, 254 
 
         N.W. 35 (1934).  See also Auxier v. Woodward State Hospital Sch. 
 
         266 N.W.2d 139 (Iowa 1978); Gosek v. Garmer and Stiles Co., 158 
 
         N.W.2d 731 (Iowa 1968); Barz v. Oler, 257 Iowa 508, 133 N.W.2d 
 
         704 (1965); Olson v. Goodyear Service Stores, 255 Iowa 1112, 125 
 
         N.W.2d 251 (1963); Yeager, 253 Iowa 369, 112 N.W.2d 299 (1961); 
 
         Ziegler, 252 Iowa 613, 106 N.W.2d 591 (1960).
 
         
 
              An employer takes an employee subject to any active or 
 
         dormant health impairments, and a work connected injury which 
 
         more than slightly aggravates the condition is considered to be a 
 
         personal injury.  Ziegler, 252 Iowa 613, 620, 106 N.W.2d 591 
 
         (1960), and cases cited.
 
         
 
              Functional impairment is an element to be considered in 
 
         determining industrial disability which is the reduction of 
 
         earning capacity, but consideration must also be given to the 
 
         injured employee's age, education, qualifications, experience and 
 
         inability to engage in employment for which he is fitted.  Olson, 
 
         255 Iowa 1112, 125 N.W.2d 251 (1963).  Barton v. Nevada Poultry, 
 
         253 Iowa 285, 110 N.W.2d 660 (1961).
 
         
 
              A finding of impairment to the body as a whole found by a 
 
         medical evaluator does not equate to industrial disability.  This 
 
         is so as impairment and disability are not synonymous.  Degree of 
 
         industrial disability can in fact be much different than the 
 
         degree of impairment because in the first instance reference is 
 
         to loss of earning capacity and in the latter to anatomical or 
 
         functional abnormality or loss.  Although loss of function is to 
 
         be considered and disability can rarely be found without it, it 
 
                                                
 
                                                         
 
         is not so that a degree of industrial disability is 
 
         proportionally related to a degree of impairment of bodily 
 
         function.
 
         
 
              Factors to be considered in determining industrial 
 
         disability include the employee's medical condition prior to the 
 
         injury, immediately after the injury, and presently; the situs of 
 
         the injury, its severity and the length of healing period; the 
 
         work experience of the employee prior to the injury, after the 
 
         injury and potential for rehabilitation; the employee's 
 
         qualifications intellectually, emotionally and physically; 
 
         earnings prior and subsequent to the injury; age; education; 
 
         motivation; functional impairment as a result of the injury; and 
 
         inability because of the injury to engage in employment for which 
 
         the employee is fitted. Loss of earnings caused by a job transfer 
 
         for reasons related to the injury is also relevant.  These are 
 
         matters which the finder of fact considers collectively in 
 
         arriving at the determination of the degree of industrial 
 
         disability.
 
         
 
              There are no weighting guidelines that indicate how each of 
 
         the factors are to be considered.  There are no guidelines which 
 
         give, for example, age a weighted value of ten percent of the 
 
         total value, education a value of fifteen percent of total, 
 
         motivation - five percent; work experience - thirty percent, etc. 
 
         Neither does a rating of functional impairment directly correlate 
 
         to a degree of industrial disability to the body as a whole.  In 
 
         other words, there are no formulae which can be applied and then 
 
         added up to determine the degree of industrial disability.  It 
 
         therefore becomes necessary for the deputy or commissioner to 
 
         draw upon prior experience, general and specialized knowledge to 
 
         make the finding with regard to degree of industrial disability.  
 
         See Peterson v. Truck Haven Cafe, Inc., (Appeal Decision, 
 
         February 28, 1985); Christensen v. Hagen, Inc., (Appeal Decision, 
 
         March 26, 1985).
 
         
 
              Functional impairment is an element to be considered in 
 
         determining industrial disability which is the reduction of 
 
         earning capacity, but consideration must also be given to the 
 
         injured employee's age, education, qualifications, experience and 
 
         inability to engage in employment for which he is fitted.  Olson, 
 
         255 Iowa 1112, 1121 125 N.W.2d 251, 257 (1963).
 
         
 
              For example, a defendant employer's refusal to give any sort 
 
         of work to a claimant after he suffers his affliction may justify 
 
         an award of disability.  McSpadden v. Big Ben Coal Co., 288 
 
         N.W.2d 288 (Iowa 1980).
 
         
 
              Under the odd-lot doctrine, which was formally adopted by 
 
         the Iowa Supreme Court in Guyton v. Irving Jensen Co., 373 N.W.2d 
 
         101 (Iowa 1985), a worker becomes an odd-lot employee when an 
 
         injury makes the worker incapable of obtaining employment in any 
 
         well-known branch of the labor market.  An odd-lot worker is thus 
 
         totally disabled if the only services the worker can perform are 
 
         so limited in quality, dependability, or quantity that a 
 
                                                
 
                                                         
 
         reasonably stable market for them does not exist.  Id., citing 
 
         Lee v. Minneapolis Street Railway Company, 230 Minn. 315, 320, 
 
         41 N.W.2d 433, 436 (1950).  The rule of odd-lot allocates the 
 
         burden of production of evidence.  If the evidence of degree of 
 
         obvious physical impairment, coupled with other facts such as 
 
         claimant's mental capacity, education, training or age, places 
 
         claimant prima facie in the odd-lot category, the burden should 
 
         be on the employer to show that some kind of suitable work is 
 
         regularly and continuously available to the claimant.  Certainly 
 
         in such a case it should not be enough to show that claimant is 
 
         physically capable of performing light work and then round out 
 
         the case for non-compensable by adding a presumption that light 
 
         work is available.  Guyton, 373 N.W.2d at 105.
 
         
 
              When a worker makes a prima facie case of total disability 
 
         by producing substantial evidence that the worker is not 
 
         employable in the competitive labor market, the burden to produce 
 
         evidence of suitable employment shifts to the employer.  If the 
 
         employer fails to produce such evidence and the trier of fact 
 
         finds the worker falls in the odd-lot category, the worker is 
 
         entitled to a finding of total disability.  Even under the 
 
         odd-lot doctrine, the trier of fact is free to determine the 
 
         weight and credibility of the evidence in determining whether the 
 
         worker's burden of persuasion has been carried.  Only in an 
 
         exceptional case would evidence be sufficiently strong to compel 
 
         a finding of total disability as a matter of law.  Guyton, 373 
 
         N.W.2d at 106.  The court went on to state:
 
         
 
                   The commissioner did not in his analysis address any of 
 
              the other factors to be considered in determining industrial 
 
              disability.  Industrial disability means reduced earning 
 
              capacity.  Bodily impairment is merely one factor in gauging 
 
              an industrial disability.  Other factors include the 
 
              worker's age, intelligence, education, qualifications, 
 
              experience, and the effect of the injury on the worker's 
 
              ability to obtain suitable work.  See Doerfer Division of 
 
              CCA v. Nicol, 359 N.W.2d 428, 438 (Iowa 1984).  When the 
 
              combination of factors precludes the worker from obtaining 
 
              regular employment to earn a living, the worker with only a 
 
              partial functional disability has a total disability.  See 
 
              McSpadden v. Big Ben Coal Co., 288 N.W.2d 181, 192 (Iowa 
 
              1980).
 
         
 
                                    ANALYSIS
 
         
 
              The first issue to address is whether claimant tendered 
 
         proper notice under section 85.23 of the injury allegedly 
 
         occurring in January of 1986.  Section 85.23 of the Iowa Code 
 
         (1989) provides:
 
         
 
              Unless the employer or the employer's representative shall 
 
              have actual knowledge of the occurrence of an injury 
 
              received within ninety days from the date of the occurrence 
 
              of the injury, or unless the employee or someone on the 
 
              employee's behalf or a dependent or someone on the 
 
                                                
 
                                                         
 
                   dependent's behalf shall give notice thereof to the employer 
 
              within ninety days from the date of the occurrence of the 
 
              injury, no compensation shall be allowed.
 
         
 
              Failure to give notice is an affirmative defense which the 
 
         employer must prove by a preponderance of the evidence.  DeLong 
 
         v. Highway Commission, 229 Iowa 700, 295 N.W. 91 (1940).  Mefferd 
 
         v. Ed Miller & Sons, Inc., Thirty-Third Biennial Report of the 
 
         Industrial Commissioner 191 (Appeal Decision 1977).
 
         
 
              The time period contemplated in Iowa code section 85.23 does 
 
         not begin to run until the claimant has knowledge of the nature 
 
         of his disability.  Jacques v. Farmers Lbr. & Sup. Co., 242 Iowa 
 
         548, 47 N.W.2d 236, 239 (1951).
 
         
 
              An employer's actual knowledge of occurrence.of injury must 
 
         include some information that the injury is work-connected in 
 
         order to satisfy the alternative notice of claim requirement. 
 
         Robinson v. Department of Transp., 296 N.W.2d 809, 812 (Iowa 
 
         1980).  The interpretation in Robinson was confirmed in Doerfer 
 
         Division of CCA v. Nicol, 359 N.W.2d 428, 435 (Iowa 1984).
 
         
 
              A claimant's duty to give notice of injury arises when the 
 
         claimant should recognize the nature, seriousness and probable 
 
         compensable character of his injury or disease.  The 
 
         reasonableness of claimant's conduct is to be judged in light of 
 
         his education,and intelligence.  Claimant must know enough about 
 
         the injury or disease to realize that it is both serious and 
 
         work-connected, but positive medical information is unnecessary 
 
         if he has information from any source which puts him on notice of 
 
         its probable compensability.  Robinson, supra.
 
         
 
              The purpose of the 90 day notice or actual knowledge 
 
 
 
                                    
 
                                                         
 
         requirement is to give the employer an opportunity to timely 
 
         investigate the acts of the injury.  Id.:  Knipe v. Skelgas Co., 
 
         229 Iowa 740, 748, 294 N.W. 880, 884 (1940); Hobbs v. Sioux City, 
 
         231 Iowa 860, 2 N.W.2d 275 (1942); Dillinger v. City of Sioux 
 
         City, 368 N.W.2d 176 (Iowa 1985); Koopmans v. Iowa Electric Light 
 
         and Power Company, (Appeal Decision dated December 30, 1981) on 
 
         appeal to Iowa Supreme Court.
 
         
 
              The word "compensable" in the workers' compensation notice 
 
         context is not used to connote legal knowledge that a claim is 
 
         within the workers' compensation act.  Rather, "compensable" 
 
         means that the disabling injury was work connected.  Quaker Oats 
 
         Co. v. Miller, 370 So.2d 1363, 1366 (Miss. 1979).
 
         
 
              Unless a statute that imposes a period of limitations 
 
         expressly authorizes exceptions for extenuating circumstances, it 
 
         must be applied uniformly even though the result may be harsh. 
 
         Burgess v. Great Plains Bag Corporation, 409 N.W.2d 676, 679 
 
         (Iowa 1987).
 
         
 
              A mistake of law is no more an excuse in connection with a 
 
         late compensation claim than anywhere else, unless expressly made 
 
         so by statute.  3 Larson, Workmen's Compensation Law, Section 
 
         78.47 at 15-334.
 
         
 
              The initial determination in the instant case is whether 
 
         claimant has given notice of her claim to her employer under 
 
         section 85.23.  The statute allows for two types of notice.  The 
 
         first type of notice is actual knowledge of the occurrence of an 
 
         injury within 90 days.  The second type of notice allowed by 
 
         statute is notice given to the employer by the injured employee 
 
         within 90 days from the date of the occurrence of the injury. 
 
         Claimant states oral notice was tendered to employer.  Claimant 
 
         acknowledges no formal written notice was tendered to employer.
 
         
 
              Firstly, according to claimant, defendants had actual 
 
         knowledge of the occurrence of the alleged injuries.  In support 
 
         of her allegations claimant argues defendant-employer was fully 
 
         aware of claimant's back difficulties because claimant had 
 
         notified the supervisor for Servicemaster.  Servicemaster held 
 
         various contracts with the hospital for the supervision of 
 
         maintenance work on the premises.  Claimant testified that in 
 
         January of 1986, she would report to Diane LeMaster of 
 
         Servicemaster.  Claimant testified she notified her of the vacuum 
 
         cleaner incident and the alleged back problem.  Claimant also 
 
         testified either she or Ms. LeMaster, notified the director of 
 
         housekeeping, Mark Davis, who was also an employee of 
 
         Servicemaster, of the incident in question.
 
         
 
              Claimant, however, admitted under recross-examination that 
 
         she did not discuss the alleged injury with any employee of 
 
         defendant in the personnel department.  Claimant was not filing 
 
         for workers' compensation, she testified, so there would be no 
 
         need for her to discuss the matter with a person in personnel.
 
         
 
                                                
 
                                                         
 
              It is the determination of the undersigned that claimant did 
 
         not tender notice to her employer within 90 days of the alleged 
 
         occurrence.  Claimant, by her own admission, stated no employee 
 
         of defendant-employer was notified that claimant believed the 
 
         vacuum cleaner incident arose out of and in the course of 
 
         claimant's employment or that caused claimant's back problem.  
 
         Likewise, no written notification was even tendered to 
 
         defendant-employer by claimant.
 
         
 
              The only persons notified of the January 1986 injury were 
 
         employees of an employer, separate and distinct from 
 
         defendant-employer.  There was no showing that the employees of 
 
         Servicemaster were held to be representatives of 
 
         defendant-employer for purposes of notice under section 85.23.  
 
         Hence, no compensation shall be allowed for this alleged injury.
 
         
 
              The second issue to address is whether there is a causal 
 
         connection between the injury on May 28, 1987 and claimant's 
 
         alleged disability.  After reviewing the evidence presented, the 
 
         undersigned determines there is the requisite causal connection. 
 
         Claimant has aggravated a preexisting condition.
 
         
 
              Robert D. Chesser, M.D., opined in his report of May 23, 
 
         1988:
 
         
 
              I had the opportunity of seeing Mrs. Partington.  As you 
 
              know, she is a 59-year-old lady with complaints of back 
 
              pain and lower extremity pain dating back for several 
 
              years.  Her history is such that she had had no history of 
 
              back pain prior to 1982.  She states she has worked in 
 
              housekeeping at Mercy Hospital for about two years before 
 
              developing the symptoms. There was no specific 
 
              precipitating event in 1982, although she does relate some 
 
              moving of heavy items, but again, this did not specifically 
 
              trigger the symptoms.  From 1982 to 1986 the symptoms, 
 
              although they were there, were mild, by her description.  
 
              She does state that at least several times per year, maybe 
 
              once every month or two, she did go to an osteopath for 
 
              complaints of back pain, and this did relieve the symptoms 
 
              on a temporary basis.  At that time she was being treated 
 
              for a, "thinning of the disc."  Then, in 1986, she notes 
 
              that while working at Mercy, while vacuuming, she pulled 
 
              the heavy vacuum, she developed a pop in her back and a 
 
              severe pain which required hospitalization.  The pain is 
 
              described as being very similar to what she had had from 
 
              1982 to 1986, except much more intense to where she did 
 
              require hospitalization and injectable pain medication.  At 
 
              that time the suspicion was a herniated disc; however, she 
 
              did get a chiropractor to see her and with this treatment 
 
              was able to get improvement in her symptoms, and states 
 
              that although she did have some mild pain, was functional 
 
              up until May of 1987 when she fell once again while 
 
              working, landed on the right side of her back and the 
 
              symptoms flared up.  She has been noticing increased back 
 
              pain since that time.  Again, the pain goes into her lower 
 
                                                
 
                                                         
 
                   extremities and is variable.  At times it goes into the 
 
              right, at times into the left, and at times into both lower 
 
              extremities.  She does note that with walking or standing 
 
              greater than ten minutes she has increased back and leg 
 
              pain.  Sitting generally does not bother her symptoms.  She 
 
              is able to accomplish her own work around her household, 
 
              but does state she has to break up much of the day.  She is 
 
              only able to get relief of her symptoms with a chiropractor 
 
              or with sitting.  She has been placed on an exercise 
 
              program which consisted of single knee- and double 
 
              knee-to-chest exercises, and what sounds to be like 
 
              heel-cord stretching exercises; however, these were 
 
              discontinued because they aggravated her symptoms....
 
         
 
                   ....
 
         
 
              ASSESSMENT:  Based on the assessment I suspect the patient's 
 
              symptoms are due to the spondylolisthesis; however, there is 
 
              nothing that would indicate any progression of this 
 
              disorder. I would not see any absolute contraindication to 
 
              her eventually returning to work, but do feel that a 30-40 
 
              lb. weight limit would be in order.  However, before 
 
              returning her to work I would recommend a Work 
 
              Hardening-approach to her problem so that more specific 
 
              functional activities would be addressed and also actually 
 
              do a job analysis.  While she is participating with the Work 
 
              Hardening she can also receive physical therapy.  The goals 
 
              of this would be to work on lumbar flexion and abdominal 
 
              strengthening and very gentle back extensor strengthening.  
 
              She would need to avoid the extremes of back extension or 
 
              any activity which would cause a hyperlordosis in her lumbar 
 
              spine, but I feel that a gentle strengthening program would 
 
              not be contraindicated.  Finally, I feel that the use of a 
 
              lumbosacral garment, although it would not restrict her 
 
              completely from activity, would help give her some support 
 
              in her lumbar spine, and this may allow her increased 
 
              activity.  At this time I feel that her prognosis is 
 
              guarded, considering the duration of her symptoms....
 
         
 
              Dr. Chesser further refined his opinion in a later report, 
 
         dated, June 10, 1988:
 
         
 
              In follow up to our phone conversation of June 10, 1988, I 
 
              feel that the injury which occurred in May of 1987 would 
 
              have aggravated symptoms associated with the 
 
              spondylolisthesis. The patient did have these symptoms in 
 
              the past, although they had been subsided and she was 
 
              relatively asymptomatic at the time of the injury in May of 
 
              1987.  However, there has been no change which would 
 
              indicate any worsening of the spondylolisthesis following 
 
              the incident in May of 1987 so therefore, it would appear 
 
              that the injury did aggravate her preexisting condition and 
 
              would not cause any worsening of the underlying 
 
              condition....
 
         
 
                                                
 
                                                         
 
              A second opinion was obtained.  Anthony D'Angelo, Jr., D.O., 
 
         also examined claimant for purposes of evaluation.  He found in 
 
         his report of February 15, 1988, to defendants' attorney:
 
         
 
              The following information is in answer to your letter of 
 
              February 5, 1988.  I have reviewed past medical records for 
 
              Louise Partington.  It is my opinion patient's inability to 
 
              return to work is in part related to the injury of May 28, 
 
              1987.  By this, I mean a pre-existing condition was present, 
 
              and I feel patient's current condition is superimposed upon 
 
              that pre-existing condition.  Patient, however, relates 
 
              minimal symptomatology prior to the accident of May 28, 
 
              1987. As such, I believe patient's prior back condition had 
 
              stabilized.  Patient's medical condition regarding the low 
 
              back, however, was not entirely normal, and therefore, I do 
 
              feel a preexisting condition was exacerbated.
 
         
 
              The next issue to determine is the nature and extent of 
 
         permanency, if any.  Claimant maintains she is permanently and 
 
         totally disabled, or else in the alternative, she is an odd-lot 
 
         employee under Guyton.  Claimant maintains she is unable to 
 
         return to work because of her physical condition and because of 
 
         her resulting pain.  Claimant maintains there is no competitive 
 
         labor market available to her.
 
         
 
              Robert W. Duncalf, D.C., determined that as of April 14, 
 
         1988, claimant had a functional impairment of 30 percent.  Dr. 
 
         Duncalf restricted claimant from engaging in lifting, bending, 
 
         twisting and prolonged standing.  In a subsequent report, dated 
 
         December 6, 1988, Dr. Duncalf's opinion is riddled with 
 
         contradictions.  As a consequence, not much weight is given to 
 
         Dr. Duncalf's opinion.
 
                                    
 
                                                         
 
              Dr. D'Angelo was unable to assign a functional impairment 
 
         rating for the injury occurring on May 28, 1987.
 
         
 
              Dr. Chesser, the treating physician, opined in September of 
 
         1988, that claimant was not a candidate for a work hardening 
 
         program.  Claimant had not been successful in the work harding 
 
         program which was originally designed for her.  It was 
 
         recommended that she should be placed in a prework hardening 
 
         program because claimant was functioning at such a very low 
 
         level.  As a consequence, claimant was provided with a physical 
 
         therapy program which was less demanding.
 
         
 
              Dr. Chesser, in his report, dated November 16, 1988, 
 
         opined:
 
         
 
              Mrs. Partington was seen today.  She continues to make some 
 
              slow improvements.  At least subjectively she feels that she 
 
              is doing better and her outward appearance does appear 
 
              better to me and she seems to be in better spirits.  She 
 
              continues to require weekly chiropractic adjustments and I 
 
              am concerned as to how much we may be re-enforcing her pain 
 
              behavior. There was a two week period when she did not have 
 
              any adjustments and there was a significant exacerbation of 
 
              her symptoms, so there may be some psychological dependency 
 
              on this.  I feel that the main point at this time is that 
 
              she is improving with her exercises, is tolerating one to 
 
              one and one-half hours three times per week in physical 
 
              therapy and this is a significant amount of activity for 
 
              her, so at this time I would not want to change anything as 
 
              long as she is making good gains.  I plan on rechecking her 
 
              in one month.
 
         
 
              In Dr. Chesser's final report of January 19, 1989, he 
 
         determined:
 
         
 
              Mrs. Partington was seen today.  There has been little 
 
              significant functional change.  Evidently over the last 
 
              month she has had problems with medical difficulties such as 
 
              flu and sinus, which have limited her participation.  Will 
 
              continue with her over the next one month.  I would see no 
 
              contraindication to gradually increasing her time.  If there 
 
              is no significant change over the next one month, then will 
 
              consider the need for continued therapies.
 
         
 
              There was no functional impairment rating provided by Dr. 
 
         Chesser.  No other medical practitioner, other than the 
 
         chiropractor whose testimony has been discounted, provided a 
 
         permanency rating relative to the May, 1987 injury.  As a result, 
 
         it has been difficult, but not impossible to determine a 
 
         permanency rating.  It is the determination of the undersigned 
 
         that claimant has a functional impairment of 35 percent due to 
 
         her injury on May 28, 1987.
 
         
 
              Claimant asserts she is permanently and totally disabled 
 
         under Guyton.  The undersigned is in agreement with claimant.  
 
                                                
 
                                                         
 
         She is an odd-lot employee under the Guyton rationale.  Claimant 
 
         is incapable of obtaining employment in any well-known branch of 
 
         the labor market.
 
         
 
              There is no competitive employment for which claimant is 
 
         suited.  She has no high school diploma or a GED.  Her age of 60 
 
         is working against her employment opportunities.  All of her 
 
         former positions have involved waitressing or house-keeping 
 
         duties.  These jobs require bending, lifting and twisting. 
 
         Claimant is restricted from the aforementioned activities. 
 
         Claimant has no transferable skills.  Additionally, claimant has 
 
         not even been able to successfully complete a work hardening 
 
         program.  She is unfit for job seeking.  It is inconceivable she 
 
         would ever be able to find a stable position.  Defendants have 
 
         been unable to produce any well-known branch of the labor market 
 
         for which claimant is capable of obtaining employment.
 
         
 
              Even the vocational rehabilitation specialist, Allen C. 
 
         Vikdal, could only recommend:  "Consider job search activities in 
 
         those types of jobs if the physical condition report is 
 
         appropriate."
 
         
 
              Mr. Vikdal was unable to produce any positions that claimant 
 
         was capable of handling.  It is the opinion of the undersigned 
 
         that if claimant is unable to complete the educational process 
 
         involving retraining, claimant is incapable of finding 
 
         competitive employment.  Claimant is totally disabled under 
 
         Guyton, Supra, in that the only services claimant can perform 
 
         are so limited in quality, dependability, or quantity that a 
 
         reasonable stable labor market for her is nonexistent.
 
         
 
              Also in dispute, is claimant's entitlement to healing period 
 
         benefits.  Section 85.34(1) of the Iowa Code defines healing 
 
         period as follows:
 
         
 
              If an employee has suffered a personal injury causing 
 
              permanent partial disability for which compensation is 
 
              payable as provided in subsection 2 of this section, the 
 
              employer shall pay to the employee compensation for a 
 
              healing period, as provided in section 85.37, beginning on 
 
              the date of injury, and until the employee has returned to 
 
              work or it is medically indicated that significant 
 
              improvement from the injury is not anticipated or until the 
 
              employee is medically capable of returning to employment 
 
              substantially similar to the employment in which the 
 
              employee was engaged at the time of injury, whichever occurs 
 
              first. (Emphasis added).
 
         
 
              Because this case involves permanent total disability 
 
         benefits, the undersigned does not need to address the issue "of 
 
         healing period benefits.
 
         
 
              Also at issue is claimant's entitlement to certain medical 
 
         benefits under Iowa Code section 85.27.  Claimant is not entitled 
 
         to any treatment from Dr. Robert Duncalf as of July 29, 1988.  As 
 
                                                
 
                                                         
 
         of that date, claimant's attorney was notified by written letter 
 
         that Dr. Duncalf's services would no longer be authorized 
 
         treatment.  Any treatment prior to July 29, 1988, is considered 
 
         authorized.  According to claimant's exhibit 40, defendants are 
 
         liable for:
 
         
 
              Visits:     C.M.T. & D.T.P.M.
 
              6/14/88       "         "        30.00
 
              6/21/88       "         "        30.00
 
              6/28/88       "         "        30.00
 
              7/5/88        "         "        30.00
 
              7/12/88       "         "        30.00
 
              7/19/88       "         "        30.00
 
              7/26/88       "         "        30.00
 
                                             $210.00
 
         
 
         Mileage is as follows:  7 x 22 miles x .21 = $32.34 + 3.50 totals 
 
         = $35.84.
 
         
 
                     FINDINGS OF FACT AND CONCLUSIONS OF LAW
 
         
 
              WHEREFORE, based on the evidence presented and the 
 
         principles of law previously stated, the following findings of 
 
         fact and conclusions of law are made:
 
         
 
              FINDING 1.  Claimant did not give notice to employer or 
 
         employer's representative of the alleged injury in January of 
 
         1986.
 
         
 
              CONCLUSION A.  Claimant takes nothing as a result of her 
 
         alleged injury in January of 1986.
 
         
 
              FINDING 2.  On May 28, 1987, claimant received an injury to 
 
         her back while working for defendant.
 
         
 
              FINDING 3.  Claimant, as a result of her injury on May 28, 
 
         1987, has a functional impairment rating of 35 percent.
 
         
 
              CONCLUSION B.  Claimant has met her burden of proving her 
 
         present back condition is causally connected to her injury on May 
 
         28, 1987.
 
         
 
              FINDING 4.  Claimant is a 60-year-old individual who dropped 
 
         out of school in the eleventh grade.
 
         
 
              FINDING 5.  Claimant has spent most of her working career as 
 
         a waitress or a housekeeper.
 
         
 
              CONCLUSION C.  As a result of her injury on May 28, 1987, 
 
         claimant is unable to obtain employment in the competitive labor 
 
         market, and as a consequence, claimant is an odd-lot employee.
 
         
 
              FINDING 6.  As of July 29, 1988, Dr. Duncalf was not 
 
         authorized to provide medical care.
 
         
 
                                                
 
                                                         
 
              CONCLUSION D.  As of July 29, 1988, claimant incurred 
 
         $210.00 in unpaid bills to Dr. Duncalf for which defendant is 
 
         liable.
 
         
 
                                    ORDER
 
         
 
              THEREFORE, defendants are to pay unto claimant weekly 
 
         benefits for the duration of claimant's period of permanent total 
 
         disability with said benefits commencing on May 28, 1987, and 
 
         running continuously at the stipulated rate of One Hundred 
 
         Forty-eight and 70/100 Dollars ($148.70) per week.
 
         
 
              Defendants are also to pay medical expenses in the sum of 
 
         Two Hundred Ten and no/100 Dollars ($210.00) to Dr. Robert 
 
         Duncalf, D.C., and mileage to claimant in the sum of Thirty-five 
 
         and 84/100 Dollars ($35.84).
 
         
 
              Accrued benefits are to be made in a lump sum together with 
 
         statutory interest at the rate of ten percent (10%) per year 
 
         pursuant to section 85.30, Iowa Code, as amended.
 
         
 
              Defendants shall take credit for benefits previously paid 
 
         claimant.
 
         
 
              Costs are taxed to defendants pursuant to Division of 
 
         Industrial Services Rule 343-4.33.
 
         
 
              Defendants shall file a claim activity report.
 
         
 
         
 
              Signed and filed this 27th day of June, 1989.
 
         
 
                                    
 
                                                         
 
         
 
         
 
         
 
         
 
                                       MICHELLE A. McGOVERN
 
                                       DEPUTY INDUSTRIAL COMMISSIONER
 
         
 
         
 
         Copies To:
 
         
 
         Mr. Michael J. Motto
 
         Attorney at Law
 
         1000 First Bank Center
 
         Davenport, Iowa  52801
 
         
 
         Mr. Elliott R. McDonald, Jr.
 
         Attorney at Law
 
         P. 0. Box 2746
 
         Davenport, Iowa  52809
 
         
 
 
 
         
 
         
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                            5-4100
 
                                            Filed June 27, 1989
 
                                            MICHELLE A. McGOVERN
 
         
 
                  BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         LOUISE J. PARTINGTON,
 
         
 
              Claimant,
 
                                                    File Nos. 858659
 
         vs.                                                & 856405
 
         
 
         SISTERS OF MERCY HOSPITAL,              A R B I T R A T I 0 N
 
         DAVENPORT, IOWA,
 
                                                    D E C I S I 0 N
 
              Employer,
 
         
 
         and
 
         
 
         CNA INSURANCE COMPANIES,
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
         
 
         5-4100
 
         
 
              Claimant sustained an injury to her back.  Claimant was an 
 
         odd-lot employee under Guyton.  She was a 60-year-old woman who 
 
         dropped out of school in the eleventh grade.  Claimant had always 
 
         worked as a waitress or else a housekeeper.  She had no 
 
         transferable skills.  In fact, claimant was unable to even 
 
         complete a work hardening program.
 
         
 
 
 
         
 
 
         
 
         
 
         
 
         
 
         
 
         
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         _________________________________________________________________
 
                                         :
 
         WENDELL WAYNE VENENGA,          :
 
                                         :       File Nos. 858662
 
              Claimant,                  :                 858663
 
                                         :
 
         vs.                             :         R E M A N D
 
                                         :
 
         JOHN DEERE COMPONENT WORKS,     :       D E C I S I O N
 
                                         :
 
              Employer,                  :
 
              Self-Insured,              :
 
              Defendant.                 :
 
         _________________________________________________________________
 
         
 
         
 
              This case is on remand from the Iowa Court of Appeals.  
 
         Venenga v. John Deere Component Works, 498 N.W.2d 422 (Iowa App. 
 
         1993).  The case has been remanded for a determination of 
 
         eligibility for benefits based on a cumulative injury date of 
 
         July 24, 1987.
 
         
 
                                      ISSUE
 
         
 
              The issue to be resolved on remand is the nature and extent 
 
         of claimant's disability resulting from his cumulative injury of 
 
         July 24, 1987.
 
         
 
                                 FINDINGS OF FACT
 
         
 
              Wendell Wayne Venenga is a married man with two grown 
 
         children.  While a child, he suffered a head injury which has 
 
         left him with a requirement for prescription medication.  He does 
 
         not communicate well.  Claimant dropped out of school after the 
 
         eighth grade.
 
         
 
              Venenga has been employed by John Deere since July 1960.  He 
 
         worked as an assembler for approximately two years and then 
 
         worked in the chip and grind department for approximately five 
 
         years.  He was a laborer for one year and a washer for three 
 
         years.  From 1972 until 1982, he worked as a material or parts 
 
         handler where he hung parts onto the paint line and then unloaded 
 
         parts from the paint line.  The work required bending and lifting 
 
         of weights which could range as high as 75 pounds.  From 1982 
 
         until 1987, claimant worked as a shavings hauler where he removed 
 
         metal shavings from machines, shoveled them into a cart, pushed 
 
         the cart to the dock and then unloaded the cart using a hoist.  
 
         This work also required bending and moderate to heavy lifting 
 
         (exhibits 1 through 8).
 
         
 
              Claimant related a history of gradually increasing back 
 
         problems starting while he was working on the paint line.  
 
         Claimant stated that he treated with liniments and pain 
 
         medication, but did not go to a doctor because he hoped it would 
 
         get better.  He stated that he did not report the problem at work 
 

 
         
 
         Page   2
 
         
 
         
 
         
 
         
 
         because he thought it would get better.  Claimant stated that the 
 
         pain continued to worsen and that pushing and pulling the metal 
 
         shavings cart increased the pain.
 
         
 
              Claimant stated that on May 27, 1986 he slipped while 
 
         dumping shavings from a cart.  He stated that the pain worsened 
 
         and he told Laverne, a supervisor, but did not go to the medical 
 
         department.  He completed work on that day, but on the following 
 
         Monday, June 2, 1986, he telephoned his family doctor and was 
 
         then referred to orthopaedic surgeon Jitu Kothari, M.D. (exhibit 
 
         56, page 47).  When seen by Dr. Kothari, the history which 
 
         appears in the doctor's notes is that claimant had severe low 
 
         back pain over the weekend (exhibit 56, page 66).  Neither 
 
         medical record mentions work.
 
         
 
              From May 5, 1986 through June 17, 1986, claimant was seen by 
 
         physicians for his mental condition, but no mention of any back 
 
         complaints appears in those records (exhibits 44, 45, 46, 47 and 
 
         48).
 
         
 
              After being seen by Dr. Kothari, claimant continued to treat 
 
         with his family doctor, Varina Des Marias, M.D.  A note dated 
 
         September 4, 1986 indicates that claimant had been to the union 
 
         about his back problem, but was not getting compensation (exhibit 
 
         56, page 48).
 
         
 
              On August 25, 1986, claimant was seen by John R. Walker, 
 
         M.D.  In his written report, Dr. Walker noted a history of low 
 
         back pain which had been present for five or six years, which had 
 
         worsened recently, and which claimant felt originated from heavy 
 
         lifting at John Deere, although he could not identify any 
 
         particular injury.  Dr. Walker indicated that claimant may need 
 
         traction and surgery and that he should be off work for ten days 
 
         in order to participate in physical therapy (exhibit 56, pages 
 
         90-92).  Claimant participated in physical therapy at Grundy 
 
         County Hospital from August 25, 1986 through September 15, 1986 
 
         and showed some improvement through the program (exhibit 56, 
 
         pages 74-76).
 
         
 
              A strike was held commencing August 26, 1986 and running 
 
         through February 1, 1987 (exhibit 61, page 36; exhibit 68, page 
 
         9).  While the strike was ongoing, claimant continued to treat 
 
         with Dr. Walker.  On October 27, 1986, claimant entered Covenant 
 
         Medical Center under the direction of Dr. Walker for traction, 
 
         physiotherapy and medication to treat his back condition.  The 
 
         final diagnosis was herniated nucleus pulposis with left 
 
         sciatica, post-traumatic arthritis of the zygoapophyseal joint 
 
         L5, S1, left, and epilepsy with seizures.  In the discharge 
 
         summary, it is noted that Dr. Walker recommended that claimant 
 
         remain off the picket line for the next three weeks (exhibit 56, 
 
         pages 122 and 123).  Dr. Walker's records show a continuing 
 
         course of office visits with the claimant throughout early 1987.  
 
         The records note that surgery was considered and a record of July 
 
         15, 1987 indicates that the operating room was scheduled for 
 
         August 18, 1987 (exhibit 56, pages 77-79).
 
         
 
              Claimant was admitted to Covenant Medical Center on August 
 

 
         
 
         Page   3
 
         
 
         
 
         
 
         
 
         17, 1987.  After extensive diagnostic tests, claimant underwent 
 
         surgery which was performed by Dr. Walker on August 21, 1987.  
 
         The surgery was quite extensive and resulted in a post-operative 
 
         diagnosis of severe chronic sprain of L5, S1 with instability, 
 
         sprain of L4, L5 and herniated disc at the L4 level involving the 
 
         L5 nerve root (exhibit 56, pages 138 and 139).  The recovery was 
 
         extended (exhibit 56, page 140).  Claimant was again admitted to 
 
         the hospital on August 31, 1987 and discharged on September 6, 
 
         1987 (exhibit 56, page 257).  Claimant was admitted a third time 
 
         from October 9, 1987 through October 19, 1987 (exhibit 56, pages 
 
         310-313).
 
         
 
              Claimant returned to work on June 20, 1988 with permanent 
 
         restrictions.  He was assigned to drive a floor sweeper, a job 
 
         which he continued to hold at the time of hearing (exhibit 57, 
 
         page 30).  His hourly base wage as a shavings hauler was $12.01 
 
         (Ex. 3).  His hourly base wage as a mechanical floor cleaner 
 
         driver was $13.14 as of October 3, 1988 (Ex. 3a). 
 
         
 
              Dr. Walker attributed claimant's back condition to the 
 
         cumulative trauma of his work activities (exhibit 56, pages 
 
         99-103, 118 and 119).
 
         
 
              On April 13, 1988, Dr. Walker placed restrictions on 
 
         claimant.  Those restrictions were no bending, lifting or 
 
         stooping, particularly lifting objects from floor to table height 
 
         and occasionally carrying up to 25 pounds (Ex. 56, p. 106).  
 
         Apparently the first page of a report by Dr. Walker dated March 
 
         18, 1988 was not made a part of the copies of claimant's medical 
 
         records entered into evidence (Ex. 56 contains no page 102).  
 
         Claimant's brief on appeal filed June 18, 1990 quoted from Dr. 
 
         Walker's March 18, 1988 letter and indicated that Dr. Walker 
 
         opined that claimant has a permanent partial impairment to the 
 
         body as a whole of 21 percent of the whole person.
 
         
 
              Claimant was evaluated by Roger F. Marquardt, a qualified 
 
         vocational specialist.  Marquardt determined that claimant, as a 
 
         result of his back condition, has experienced a loss of access to 
 
         44.4 percent of the unskilled jobs in the national economy, that 
 
         if claimant were not employed at John Deere he would experience a 
 
         possible of loss of 68 percent of his earnings, and that if not 
 
         employed at John Deere, he would have only approximately a 50/50 
 
         chance of obtaining employment (exhibit 56, pages 366-369).
 
         
 
                                CONCLUSIONS OF LAW
 
         
 
              The party who would suffer loss if an issue were not 
 
         established has the burden of proving that issue by a 
 
         preponderance of the evidence.  Iowa R. App. P. 14(f).
 
         
 
              The claimant has the burden of proving by a preponderance of 
 
         the evidence that the injury is a proximate cause of the 
 
         disability on which the claim is based.  A cause is proximate if 
 
         it is a substantial factor in bringing about the result; it need 
 
         not be the only cause.  A preponderance of the evidence exists 
 
         when the causal connection is probable rather than merely 
 
         possible.  Blacksmith v. All-American, Inc., 290 N.W.2d 348 (Iowa 
 

 
         
 
         Page   4
 
         
 
         
 
         
 
         1980); Holmes v. Bruce Motor Freight, Inc., 215 N.W.2d 296 (Iowa 
 
         1974).
 
         
 
              Functional impairment is an element to be considered in 
 
         determining industrial disability which is the reduction of 
 
         earning capacity, but consideration must also be given to the 
 
         injured employee's age, education, qualifications, experience and 
 
         inability to engage in employment for which the employee is 
 
         fitted.  Olson v. Goodyear Serv. Stores, 255 Iowa 1112, 125 
 
         N.W.2d 251 (1963); Barton v. Nevada Poultry, 253 Iowa 285, 110 
 
         N.W.2d 660 (1961).
 
         
 
              A finding of impairment to the body as a whole found by a 
 
         medical evaluator does not equate to industrial disability.  
 
         Impairment and disability are not synonymous.  The degree of 
 
         industrial disability can be much different than the degree of 
 
         impairment because industrial disability references to loss of 
 
         earning capacity and impairment references to anatomical or 
 
         functional abnormality or loss.  Although loss of function is to 
 
         be considered and disability can rarely be found without it, it 
 
         is not so that a degree of industrial disability is 
 
         proportionally related to a degree of impairment of bodily 
 
         function.
 
         
 
              Factors to be considered in determining industrial dis
 
         ability include the employee's medical condition prior to the 
 
         injury, immediately after the injury, and presently; the situs of 
 
         the injury, its severity and the length of the healing period; 
 
         the work experience of the employee prior to the injury and after 
 
         the injury and the potential for rehabilitation; the employee's 
 
         qualifications intellectually, emotionally and physically; 
 
         earnings prior and subsequent to the injury; age; education; 
 
         motivation; functional impairment as a result of the injury; and 
 
         inability because of the injury to engage in employment for which 
 
         the employee is fitted.  Loss of earnings caused by a job 
 
         transfer for reasons related to the injury is also relevant.  
 
         Likewise, an employer's refusal to give any sort of work to an 
 
         impaired employee may justify an award of disability.  McSpadden 
 
         v. Big Ben Coal Co., 288 N.W.2d 181 (Iowa 1980).  These are 
 
         matters which the finder of fact considers collectively in 
 
         arriving at the determination of the degree of industrial 
 
         disability.
 
         
 
              There are no weighting guidelines that indicate how each of 
 
         the factors are to be considered.  Neither does a rating of 
 
         functional impairment directly correlate to a degree of 
 
         industrial disability to the body as a whole.  In other words, 
 
         there are no formulae which can be applied and then added up to 
 
         determine the degree of industrial disability.  It therefore 
 
         becomes necessary for the deputy or commissioner to draw upon 
 
         prior experience as well as general and specialized knowledge to 
 
         make the finding with regard to degree of industrial disability.  
 
         See Christensen v. Hagen, Inc., Vol. 1 No. 3 State of Iowa 
 
         Industrial Commissioner Decisions 529 (App. March 26, 1985); 
 
         Peterson v. Truck Haven Cafe, Inc., Vol. 1 No. 3 State of Iowa 
 
         Industrial Commissioner Decisions 654 (App. February 28, 1985).
 

 
         
 
         Page   5
 
         
 
         
 
         
 
              Compensation for permanent partial disability shall begin at 
 
         the termination of the healing period.  Compensation shall be 
 
         paid in relation to 500 weeks as the disability bears to the body 
 
         as a whole.  Iowa Code section 85.34.
 
         
 
              Based upon claimant's injury, surgery and Dr. Walker's 
 
         opinions on impairment and work restrictions, it is clear that 
 
         claimant has a permanent disability.  Because claimant's 
 
         condition did not require surgery until after the July 24, 1987  
 
         cumulative injury date, claimant's permanent disability was the 
 
         result of his cumulative injury.  The parties have stipulated 
 
         that if claimant has a permanent disability, the disability is an 
 
         industrial disability.
 
         
 
              Claimant was 49 years old at the time of his July 24, 1987 
 
         injury.  He has had extensive surgery and extended recovery.  His 
 
         work history consists primarily of manual labor.  He is 
 
         foreclosed from doing certain unskilled jobs.  He has limited 
 
         education.  His chances for retraining do not appear to be 
 
         encouraging.  The defendant employer continues to employ 
 
         claimant.  Claimant was earning more per hour after the injury 
 
         than before.  He has working restrictions and it is reasonable to 
 
         conclude that Dr. Walker, his treating physician, has rated him 
 
         as having a 21 percent functional impairment of the body as a 
 
         whole.  When all relevant factors are considered claimant has 
 
         suffered a 40 percent loss of earnings capacity.  The 40 percent 
 
         industrial disability entitles claimant to 200 weeks permanent 
 
         partial disability benefits.
 
         
 
                                      ORDER
 
         
 
              THEREFORE, it is ordered:
 
         
 
              That defendant is to pay unto claimant healing period 
 
         benefits from July 25, 1987 until February 12, 1988, at the rate 
 
         of three hundred fourteen and 10/100 dollars ($314.10) per week.
 
         
 
              That defendant is to pay unto claimant two hundred (200) 
 
         weeks of permanent partial disability benefits at the rate of 
 
         three hundred fourteen and 10/l00 dollars ($314.10) per week 
 
         from February 13, 1988.
 
         
 
              That defendant shall pay accrued weekly benefits in a lump 
 
         sum.
 
         
 
              That defendant shall pay interest on unpaid weekly benefits 
 
         awarded herein as set forth in Iowa Code section 85.30.
 
         
 
              That defendant is to be given credit for benefits previously 
 
         paid.
 
         
 
              That defendant shall pay the costs of this matter including 
 
         the transcription of the hearing.  
 
         
 
              That defendant shall file claim activity reports as required 
 
         by this agency pursuant to rule 343 IAC 3.1(2).
 

 
         
 
         Page   6
 
         
 
         
 
         
 
         
 
         
 
              Signed and filed this ____ day of February, 1994.
 
         
 
         
 
         
 
         
 
                                       ________________________________
 
                                                BYRON K. ORTON
 
                                           INDUSTRIAL COMMISSIONER
 
         Copies To:
 
         
 
         Mr. Gregory T. Racette
 
         Attorney at Law
 
         2700 Grand Ave., Ste 111
 
         Des Moines, Iowa  50312
 
         
 
         Mr. John W. Rathert
 
         Attorney at Law
 
         620 Lafayette Street
 
         P.O. Box 178
 
         Waterloo, Iowa  50704
 
         
 
 
            
 
 
 
 
 
 
 
 
 
 
 
            before the iowa industrial commissioner
 
            ____________________________________________________________
 
                      :
 
            WENDELL WAYNE VENENGA,   :
 
                      :
 
                 Claimant, :    File Nos. 858662/858663
 
                      :
 
            vs.       :          A P P E A L
 
                      :
 
            JOHN DEERE COMPONENT WORKS,   :        D E C I S I O N
 
                      :
 
                 Employer, :
 
                 Self-Insured,  :
 
                 Defendant.     :
 
            ___________________________________________________________
 
            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 April 24, 1990 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. Gregory T. Racette
 
            Attorney at Law
 
            2700 Grand Ave., Ste 111
 
            Des Moines, Iowa 50312
 
            
 
            Mr. John W. Rathert
 
            Attorney at Law
 
            P.O. Box 178
 
            Waterloo, Iowa 50704
 
            
 
 
         
 
 
 
 
 
 
 
 
 
 
 
                                            5-1803
 
                                            Filed February 25, 1994
 
                                            Byron K. Orton
 
         
 
         
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         _________________________________________________________________
 
                                         :
 
         WENDELL WAYNE VENENGA,          :
 
                                         :       File Nos. 858662
 
              Claimant,                  :                 858663
 
                                         :
 
         vs.                             :         R E M A N D
 
                                         :
 
         JOHN DEERE COMPONENT WORKS,     :       D E C I S I O N
 
                                         :
 
              Employer,                  :
 
              Self-Insured,              :
 
              Defendant.                 :
 
         _________________________________________________________________
 
         
 
         5-1803
 
         Claimant was 49 years old at time of injury.  He had an eighth 
 
         grade education and did not communicate well.  He had permanent 
 
         restrictions and an impairment of 21 percent of the body as a 
 
         whole.  The employer continued to employ the claimant and 
 
         claimant's hourly wage was higher after the injury than before.  
 
         Claimant had extensive surgery and an extended recovery.  it was 
 
         determined that claimant had a 40 percent industrial disability.
 
         
 
 
            
 
 
 
 
 
 
 
 
 
 
 
            9998
 
            Filed August 29, 1991
 
            Byron K. Orton
 
            MGT
 
            before the iowa industrial commissioner
 
            ____________________________________________________________
 
                      :
 
            WENDELL WAYNE VENENGA,   :
 
                      :
 
                 Claimant, :    File Nos. 858662/858663
 
                      :
 
            vs.       :          A P P E A L
 
                      :
 
            JOHN DEERE COMPONENT WORKS,   :        D E C I S I O N
 
                      :
 
                 Employer, :
 
                 Self-Insured,  :
 
                 Defendant.     :
 
            ___________________________________________________________
 
            
 
            9998
 
            
 
                 Summary affirmance of deputy's decision filed April 24, 
 
            1990.
 
            
 
 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         WENDELL WAYNE VENENGA,                     File Nos. 858662
 
                                                              858663
 
              Claimant,
 
                                                 A R B I T R A T I O N
 
         vs.
 
                                                    D E C I S I O N
 
         JOHN DEERE COMPONENT WORKS,
 
                                                       F I L E D
 
              Employer,
 
              Self-Insured,                           APR 24 1990
 
              Defendant.
 
                                                  INDUSTRIAL SERVICES
 
         
 
         
 
                                   INTRODUCTION
 
         
 
              This decision concludes two proceedings in arbitration 
 
         brought by Wendell Wayne Venenga against his employer, John Deere 
 
         Component Works.  File number 858662 deals with an alleged injury 
 
         of May 27, 1986.  File number 858663 deals with an alleged injury 
 
         of July 24, 1987.  The files were consolidated and heard at 
 
         Waterloo, Iowa on October 17, 1989.  The record in the proceeding 
 
         consists of joint exhibits 1 through 70, 3A and 11A.  The record 
 
         also contains testimony from Wendell Wayne Venenga, Norma Jeanne 
 
         Venenga, Gary A. Ludoph and Raymond Treiber.
 
         
 
                                      ISSUES
 
         
 
              The issues presented by the parties for determination are 
 
         whether claimant sustained an injury which arose out of and in 
 
         the course of employment, determination of claimant's entitlement 
 
         to compensation for temporary total disability or healing period 
 
         and permanent partial disability.  Claimant seeks healing period 
 
         compensation for the period from July 25, 1987 through February 
 
         12, 1988.  Defendant has raised the affirmative defenses of lack 
 
         of notice under Code section 85.23 and lack of timely 
 
         commencement of the action under Code section 85.26.  Defendant 
 
         also seeks credit for group plan benefits which were paid to 
 
         claimant.
 
         
 
                               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.
 
         
 
              Wendell Wayne Venenga is a 51-year-old married man with two 
 
         grown children.  While a child, he suffered a head injury which 
 
         has left him with a requirement for prescription medication.  He 
 
         does not communicate well.  Claimant dropped out of school after 
 
         the eighth grade.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              Venenga has been employed by John Deere since July 1960.  He 
 
         worked as an assembler for approximately two years and then 
 
         worked in the chip and grind department for approximately five 
 
         years.  He was a laborer for one year and a washer for three 
 
         years.  From 1972 until 1982, he worked as a material or parts 
 
         handler where he hung parts onto the paint line and then unloaded 
 
         parts from the paint line.  The work required bending and lifting 
 
         of weights which could range as high as 75 pounds.  From 1982 
 
         until 1987, claimant worked as a shavings hauler where he removed 
 
         metal shavings from machines, shoveled them into a cart, pushed 
 
         the cart to the dock and then unloaded the cart using a hoist.  
 
         This work also required bending and moderate to heavy lifting 
 
         (exhibits 1 through 8).
 
         
 
              Claimant related a history of gradually increasing back 
 
         problems starting while he was working on the paint line.  
 
         Claimant stated that he treated with liniments and pain 
 
         medication, but did not go to a doctor because he hoped it would 
 
         get better.  He stated that he did not report the problem at work 
 
         because he thought it would get better.  Claimant stated that the 
 
         pain continued to worsen and that pushing and pulling the metal 
 
         shavings cart increased the pain.
 
         
 
              Claimant stated that on May 27, 1986 he slipped while 
 
         dumping shavings from a cart.  He stated that the pain worsened 
 
         and he told Laverne, a supervisor, but did not go to the medical 
 
         department.  He completed work on that day, but on the following 
 
         Monday, June 2, 1986, he telephoned his family doctor and was 
 
         then referred to orthopaedic surgeon Jitu Kothari, M.D. (exhibit 
 
         56, page 47).  When seen by Dr. Kothari, the history which 
 
         appears in the doctor's notes is that claimant had severe low 
 
         back pain over the weekend (exhibit 56, page 66).  Neither 
 
         medical record mentions work.
 
         
 
              From May 5, 1986 through June 17, 1986, claimant was seen by 
 
         physicians for his mental condition, but no mention of any back 
 
         complaints appears in those records (exhibits 44, 45, 46, 47 and 
 
         48).
 
         
 
              Claimant testified that he told a supervisor named Laverne 
 
         about the May 27, 1986 incident.  The employer's absenteeism 
 
         report indicates that claimant was absent from work on June 2, 
 
         1986, June 9, 1986, June 11, 12 and 13, 1986, July 21-25, 1986, 
 
         July 25-August 1, 1986, and August 4-8, 1986 and again on August 
 
         28, 1986.  The timespan running from July 21 through August 8, 
 
         1986 is designated as vacation.  That same record shows that in 
 
         1987 claimant took vacation for the period running from July 20, 
 
         1987 through August 14, 1987 and thereafter was absent through 
 
         February 5, 1988.  Exhibits 11 and 11A indicate that claimant was 
 
         paid weekly indemnity benefits at the rate of $293.00 per week 
 
         commencing August 17, 1987 and running through June 20, 1988. 
 
         Exhibit 12 is the weekly indemnity application form.  There is no 
 
         entry in the block which indicates that, if the disability is due 
 
         to an accident, information concerning it should be entered.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              After being seen by Dr. Kothari, claimant continued to treat 
 
         with his family doctor, Varina Des Marias, M.D.  A note dated 
 
         September 4, 1986 indicates that claimant had been to the union 
 
         about his back problem, but was not getting compensation (exhibit 
 
         56, page 48).
 
         
 
              On August 25, 1986, claimant was seen by John R. Walker, 
 
         M.D. In his written report, Dr. Walker noted a history of low 
 
         back pain which had been present for five or six years, which had 
 
         worsened recently, and which claimant felt originated from heavy 
 
         lifting at John Deere, although he could not identify any 
 
         particular injury. Dr. Walker indicated that claimant may need 
 
         traction and surgery and that he should be off work for ten days 
 
         in order to participate in physical therapy (exhibit 56, pages 
 
         90-92). Claimant participated in physical therapy at Grundy 
 
         County Hospital from August 25, 1986 through September 15, showed 
 
         some improvement through the program (exhibit 56, pages 74-76).
 
         
 
              A strike was held commencing August 26, 1986 and running 
 
         through February 1, 1987 (exhibit 61, page 36; exhibit 68, page 
 
         9).  According to Raymond Treiber, the John Deere manager of 
 
         benefit administration, there was no communication between 
 
         claimant and John Deere during the strike and John Deere would 
 
         not have processed a workers' compensation claim for the claimant 
 
         during a strike (exhibit 61, pages 37-39).
 
         
 
              While the strike was ongoing, claimant continued to treat 
 
         with Dr. Walker.  On October 27, 1986, claimant entered Covenant 
 
         Medical Center under the direction of Dr. Walker for traction, 
 
         physiotherapy and medication to treat his back condition.  The 
 
         final diagnosis was herniated nucleus pulposis with left 
 
         sciatica, post-traumatic arthritis of the zygoapophyseal joint 
 
         L5,S1, left, and epilepsy with seizures.  In the discharge 
 
         summary, it is noted that Dr. Walker recommended that claimant 
 
         remain off the picket line for the next three weeks (exhibit 56, 
 
         pages 122 and 123).  Dr. Walker's records show a continuing 
 
         course of office visits with the claimant throughout early 1987.  
 
         The records note that surgery was considered and a record of July 
 
         15, 1987 indicates that the operating room was scheduled for 
 
         August 18, 1987 (exhibit 56, pages 77-79).
 
         
 
              Claimant was admitted to Covenant Medical Center on August 
 
         17, 1987.  After extensive diagnostic tests, claimant underwent 
 
         surgery which was performed by Dr. Walker on August 21, 1987.  
 
         The surgery was quite extensive and resulted in a post-operative 
 
         diagnosis of severe chronic sprain of L5,S1 with instability, 
 
         sprain of L4,L5 and herniated disc at the L4 level involving the 
 
         L5 nerve root (exhibit 56, pages 138 and 139).  The recovery was 
 
         extended (exhibit 56, page 140).  Claimant was again admitted to 
 
         the hospital on August 31, 1987 and discharged on September 6, 
 
         1987 (exhibit 56, page 257).  Claimant was admitted a third time 
 
         from October 9, 1987 through October 19, 1987 (exhibit 56, pages 
 
         310-313).
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
              Claimant returned to work on June 20, 1988 with permanent 
 
         restrictions.  He was assigned to drive a floor sweeper, a job 
 
         which he continued to hold at the time of hearing (exhibit 57, 
 
         page 30).
 
         
 
              According to Charles Bendixen, M.D., the John Deere plant 
 
         physician, claimant first reported the May 27, 1986 incident on 
 
         August 10, 1987.  August 10, 1987 was the first time that Dr. 
 
         Bendixen became aware claimant was claiming that his back 
 
         problems were work related (exhibit 57, pages 19 and 20; exhibit 
 
         62, page 3).
 
         
 
              In May of 1987, claimant's immediate supervisor was Eliza 
 
         Washington (exhibit 59, pages 12 and 13; exhibit 64, page 5). 
 
         According to Washington, claimant never complained about his back 
 
         to her, though she did observe him wearing a back brace (exhibit 
 
         64, pages 17-19).
 
         
 
              None of the witnesses whose testimony is in the record 
 
         through depositions could recall claimant having complained of 
 
         injuring his back at work.  Several stated that if he had done so 
 
         he would have been referred to the medical department (exhibit 
 
         58, pages 4, 5 and 9; exhibit 59, page 15; exhibit 60, page 8; 
 
         exhibit 64, page 19; exhibit 57, pages 6 and 7; exhibit 61, pages 
 
         12-14). The records of the employer contain no reference to 
 
         claimant ever making any complaint regarding his back during the 
 
         period of time running from May 27, 1986 until August 10, 1987.  
 
         He did, however, apply for nonoccupational weekly indemnity 
 
         disability income benefits and group nonoccupational medical 
 
         benefits.
 
         
 
              Dr. Walker attributed claimant's back condition to the 
 
         cumulative trauma of his work activities (exhibit 56, pages 
 
         99-103, 118 and 119).
 
         
 
              Claimant was evaluated by Roger F. Marquardt, a qualified 
 
         vocational specialist.  Marquardt determined that claimant, as a 
 
         result of his back condition, has experienced a loss of access to 
 
         44.4 percent of the unskilled jobs in the national economy, that 
 
         if claimant were not employed at John Deere he would experience a 
 
         possible of loss of 68 percent of his earnings, and that if not 
 
         employed at John Deere, he would have only approximately a 50/50 
 
         chance of obtaining employment (exhibit 56, pages 366-369).
 
         
 
                           APPLICABLE LAW AND ANALYSIS
 
         
 
              Claimant has urged injury dates of May 27, 1986 and July 24, 
 
         1987.  The date of May 27, 1986 contains an allegation of an 
 
         incident of acute trauma which was not sufficiently severe, 
 
         apparently, to cause claimant to miss any time from work or be 
 
         disabled.  He did, however, seek medical treatment and according 
 
         to the employer's absenteeism records, he missed work shortly 
 
         after being seen by the doctor.  The strike commenced on August 
 
         22, 1986 and continued until February 1, 1987.  During the period 
 
         of the strike, claimant was under the treatment of Dr. Walker, 
 
         was taken off strike and picket duty in order to receive physical 
 
         therapy and also in order to be hospitalized.  While claimant did 
 
         not miss work, it is clear that he was disabled from working 
 
         during a substantial part of the strike.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              The date of July 24, 1987 is purported to be the date that 
 
         disability from cumulative trauma injury began.  The cumulative 
 
         trauma rule for determining the date of injury is part of the 
 
         general discovery rule.  The cumulative trauma rule in essence 
 
         states that an employee is not to be held to recognize the 
 
         seriousness of the condition until it is sufficiently serious to 
 
         cause him to be disabled from working.  McKeever Custom Cabinets 
 
         v. Smith, 379 N.W.2d 368 (Iowa 1988).  Claimant asserts that the 
 
         date of injury in this case is July 24, 1987 because that is the 
 
         date when claimant was unable to work due to pain and proceeded 
 
         into surgery for his back condition.  Dr. Walker's records, 
 
         however, show that on July 15, 1987, the surgery was scheduled. 
 
         Prior to that time, claimant had been in a continuous course of 
 
         treatment for his back under the direction of Dr. Walker.  Not 
 
         only had claimant been in a continuing course of treatment for 
 
         his back, he had actually been disabled for the time he was in 
 
         physical therapy and hospitalized.  Dr. Walker's notes even 
 
         indicate that during the period of the strike, claimant was off 
 
         duty.  It is clear in this case that Wendell Venenga's disability 
 
         which had allegedly resulted from cumulative trauma commenced no 
 
         later than October 27, 1986 when he was hospitalized for traction 
 
         and therapy.  Even if the recommendation from Dr. Walker that he 
 
         be off work for ten days in order to have daily physical therapy 
 
         were not considered sufficient to have constituted the 
 
         commencement of disability, the hospitalization certainly did. 
 
         Even if the physical therapy at Grundy County Hospital were not 
 
         sufficient to inform claimant that his back condition were 
 
         serious, the hospitalization on October 27, 1986 certainly should 
 
         convince anyone that the condition was serious.  A review of the 
 
         records shows no material change occurring subsequent to the end 
 
         of the strike and prior to July 24, 1987.  The record merely 
 
         shows a continuation of the same problem that had existed in 1986 
 
         when claimant was under the treatment of Dr. Walker.  Dr. 
 
         Walker's report of August 25, 1986 clearly shows that claimant 
 
         believed his condition to be work related at that time.  
 
         Claimant's testimony and that of his spouse confirms that the 
 
         back condition was believed to be work related long prior to 
 
         October 27, 1986.  It is clear that by October 27, 1986 Wendell 
 
         Venenga knew the nature, seriousness and probable compensable 
 
         character of his back condition.  It is therefore determined that 
 
         the actual date of injury under the cumulative trauma rule is 
 
         October 27, 1986 rather than July 24, 1987.  A date earlier than 
 
         October 27, 1986 could readily be found since claimant was 
 
         apparently disabled in June of 1986 based upon the medical 
 
         treatment he was receiving and the absenteeism records.  The date 
 
         of October 27, 1986 is adopted, however, because it avoids any 
 
         question or doubt which might accompany selection of an earlier 
 
         date.  Accordingly, this case is determined based upon injury 
 
         dates of May 27, 1986 and October 27, 1986.  The date of July 24, 
 
         1987 which was alleged is not controlling when the evidence shows 
 
         it to be incorrect.  DeHeer v. Clarklift of Des Moines, file 
 
         number 804325 (App. Decn. 1989); McCoy v. Donaldson Co., file 
 
         numbers 752670 and 805200 (App. Decn. 1989).  The record fails to 
 
         show July 24, 1987 to be a date of injury.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              Claimant is required under Code section 85.23 to give notice 
 
         of any claimed occupational injury within 90 days from the 
 
         occurrence of the injury unless the employer has actual knowledge 
 
         of the occurrence of the injury.  The actual knowledge 
 
         requirement is not satisfied by the employer merely being aware 
 
         of the malady. The employer must have reason, as a reasonably 
 
         conscientious manager, to anticipate that a workers' compensation 
 
         claim is likely based upon the facts which are known to the 
 
         employer. Robinson v. Dept of Transp., 296 N.W.2d 809 (Iowa 
 
         1980).  Claimant testified that he reported the May 27, 1986 to a 
 
         supervisor named Laverne.  A witness named Laverne was called by 
 
         the defense, but the undersigned was unable to allow him to 
 
         testify due to procedural technicalities.  The record of the case 
 
         is, however, replete with statements that whenever an employee 
 
         reports an injury which is claimed to be related to the 
 
         employment, the employee is sent to the medical department.  The 
 
         record clearly shows that this claimant was not seen at the 
 
         medical department with any complaint of a back injury or back 
 
         condition during the months commencing with May 1986 and running 
 
         up until August 10, 1987 when claimant did make inquiry about 
 
         benefits for his back. Claimant's direct supervisor at that time 
 
         was Eliza Washington and she was unaware of any report of injury.  
 
         In view of the well-known and apparently well-adhered to practice 
 
         of referring all claimed occupational injuries to the medical 
 
         department, the lack of any medical department record is 
 
         determined to outweigh claimant's testimony of reporting the May 
 
         27, 1986 incident to a supervisor.  It is determined that the 
 
         employer has carried the burden of proving that claimant did not 
 
         give notice on or about May 27, 1986 and in fact did not give any 
 
         notice that he claimed his back condition was a result of his 
 
         employment until August 10, 1987.  Smith v. French & Hecht, file 
 
         number 750419 (App. Decn. 1988); Mefferd v. Ed Miller & Sons, 
 
         Inc., 33rd Biennial Report of the Industrial Commissioner 191 
 
         (App. Decn. 1977).
 
         
 
              The employer cannot be held to have actual knowledge in this 
 
         case.  Claimant processed disability income and medical claims as 
 
         though the condition were not work related.  There is no 
 
         indication that he ever sought any type of workers' compensation 
 
         benefits until August 10, 1987.  Even when he went off work for 
 
         surgery in July 1987, he took vacation, rather than applying for 
 
         workers' compensation.  When claimant's actions and the 
 
         information available to the employer are viewed as a whole, it 
 
         cannot be determined that the employer had actual knowledge.  An 
 
         employer is not required to anticipate a workers' compensation 
 
         claim from every malady that befalls an employee, even with 
 
         regard to back injuries which are probably the most common type 
 
         of occupational injury.
 
         
 
              The fact that claimant was on strike during the time when 
 
         the actual physical disability from the back condition arose as 
 
         evidenced by his October 27, 1986 hospitalization does not 
 
         relieve him from the obligation to comply with Code section 
 
         85.23.  He could have given the employer notice in the same form 
 
         as was done by his attorney on December 8, 1987 (exhibit 69).  
 
         Even though a strike was ongoing, the existence of a strike does 
 
         not excuse an employer from paying benefits under the workers' 
 
         compensation law. It is clear that an employer and employee 
 
         cannot by contract or otherwise avoid the operation of the 
 
         workers' compensation laws. Iowa Code sections 85.1 and 85.18.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              It is therefore determined that claimant's claims are barred 
 
         by the provisions of Iowa Code section 85.23.
 
         
 
                                 FINDINGS OF FACT
 
         
 
              1.  August 10, 1987 is the first time that Wendell Venenga 
 
         notified his employer that he considered his back condition to be 
 
         a result of trauma from his employment.
 
         
 
              2.  Claimant's testimony that he reported the alleged May 
 
         27, 1986 incident is outweighed by the evidence of the employer's 
 
         established injury reporting procedures and the lack of any 
 
         record of any such a report of injury.
 
         
 
              3.  The employer did not have actual knowledge of the 
 
         occurrence of any injury on May 27, 1986 or October 27, 1986.
 
         
 
              4.  Claimant became disabled by his back condition on 
 
         October 27, 1986.
 
         
 
              5.  By the date of October 27, 1986 claimant, as a 
 
         reasonable person, had within his knowledge sufficient facts to 
 
         recognize or believe that he had a back condition which was 
 
         serious and which had resulted from his employment.
 
         
 
              6.  The date of occurrence of injury for the alleged 
 
         cumulative trauma is October 27, 1986, rather than July 24, 1987 
 
         which is alleged by the claimant in his petition.
 
         
 
              7.  July 24, 1987 is a day when claimant left work due to 
 
         his back condition, but it is not the first day of disability 
 
         which resulted from that back condition.  The first day of such 
 
         disability is determined to have been October 27, 1986.
 
         
 
              8.  The employer did not have sufficient information prior 
 
         to August 10, 1987 which would alert a reasonably conscientious 
 
         manager to the existence of potential for a workers' compensation 
 
         claim from this claimant based upon an acute injury of May 27, 
 
         1986 or upon a cumulative trauma injury of October 27, 1986.
 
         
 
                                CONCLUSIONS OF LAW
 
         
 
              1.  This agency has jurisdiction of the subject matter of 
 
         this proceeding and its parties.
 
              
 
              2.  The date of occurrence of injury for claimant's 
 
         cumulative trauma claim is October 27, 1986 rather than July 24, 
 
         1987.
 
         
 
              3.  Claimant did not give the employer notice of injury 
 
         pursuant to Code section 85.23 for either claim until August 10, 
 
         1987.
 
         
 
              4.  The employer did not have actual knowledge of the 
 
         occurrence of injury for either claim until given notice by the 
 
         claimant on October 10, 1987.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              5.  Mere knowledge of a back condition is not sufficient to 
 
         alert a reasonably conscientious manager to the existence of a 
 
         potential claim for workers' compensation benefits, particularly 
 
         when there has been opportunity for the employee to make a claim 
 
         and the employee has failed to do so or otherwise taken action 
 
         inconsistent with claiming the condition to be work related, such 
 
         as making claim for nonoccupational group benefits.
 
         
 
              6.  The existence of a strike does not excuse an employee 
 
         from failing to given timely notice under Code section 85.23 and 
 
         does not excuse an employer from paying benefits when required 
 
         under the provisions of Chapter 85 of The Code.
 
         
 
              7.  Claimant's claim is barred by the provisions.of Iowa 
 
         Code section 85.23.
 
         
 
                                      ORDER
 
         
 
              IT IS THEREFORE ORDERED that claimant take nothing with 
 
         regard to the alleged May 27, 1986 injury under file number 
 
         858662.
 
         
 
              IT IS FURTHER ORDERED that claimant take nothing with regard 
 
         to the alleged July 24, 1987 cumulative trauma injury, as claimed 
 
         under file 858663.
 
         
 
              IT IS FURTHER ORDERED that the costs of each proceeding are 
 
         assessed against claimant pursuant to Division of Industrial 
 
         Services Rule 343-4.3
 
              
 
              
 
              Signed and filed this 24th day of April, 1990.
 
         
 
         
 
         
 
         
 
         
 
         
 
                                            MICHAEL G. TRIER
 
                                            DEPUTY INDUSTRIAL COMMISSIONER
 
         
 
         Copies To:
 
         
 
         Mr. Gregory T. Racette
 
         Attorney at Law
 
         Suite 111, Terrace Center
 
         2700 Grand Avenue
 
         Des Moines, Iowa  50312
 
         
 
         Mr. John W. Rathert
 
         Attorney at Law
 
         620 Lafayette Street
 
         P.O. Box 178
 
         Waterloo, Iowa  50704
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
         
 
         
 
 
                                            
 
 
 
 
 
 
 
 
 
 
 
                                            1403.30, 2209, 2401
 
                                            2802
 
                                            Filed April 24, 1990
 
                                            MICHAEL G. TRIER
 
         
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         WENDELL WAYNE VENENGA,
 
         
 
              Claimant,                             File Nos. 858662
 
                                                            858663
 
         vs.
 
                                                 A R B I T R A T I 0 N
 
         JOHN DEERE COMPONENT WORKS,
 
                                                    D E C I S I 0 N
 
              Employer,
 
              Self-Insured,
 
              Defendant.
 
         
 
         
 
         2209
 
         
 
              Claimant asserted two dates of injury, one being an 
 
         allegedly minor slip and the other a result of cumulative trauma.  
 
         Following the initial apparently minor slip, claimant entered 
 
         into a course of medical treatment which extended up through and 
 
         beyond the asserted date of cumulative trauma injury culminating 
 
         in lumbar surgery.  The date of injury from cumulative trauma was 
 
         alleged to be the last day that the claimant worked prior to the 
 
         surgery, although the record showed that claimant had been 
 
         hospitalized for his back condition between the two alleged dates 
 
         of injury and had been in a continuous course of medical 
 
         treatment for his back condition following the initial alleged 
 
         traumatic injury.  It was held that the date of injury under the 
 
         cumulative trauma rule was the date that the claimant entered the 
 
         hospital, rather than the later date that he left work in order 
 
         to obtain surgery.
 
         
 
         1403.30, 2401, 2802
 
         
 
              The employer's procedure for recording reported injuries and 
 
         the absence of any such report was given greater weight than the 
 
         claimant's testimony that he reported the initial traumatic 
 
         injury in order to find a lack of notice under section 85.23.  
 
         The employer was held to not have actual knowledge where the 
 
         employee had claimed group benefits and made no other 
 
         indication.that he claimed his back condition was work related 
 
         until only a few days prior to surgery, a date more than 13 
 
         months subsequent to the initial acute trauma and more than 9 
 
         months after the date of cumulative trauma injury which was 
 
         determined.
 
         
 
              It was held that the existence of a strike does not excuse 
 
         an employee from giving notice pursuant to section 85.23 and does 
 
         not excuse an employer from paying benefits pursuant to Chapter 
 
         85, even though the parties may not be actually communicating 
 
         well with each other during the strike.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
         
 
         
 
 
            
 
 
 
 
 
 
 
 
 
 
 
            before the iowa industrial commissioner
 
            ____________________________________________________________
 
                      :
 
            WENDELL WAYNE VENENGA,   :
 
                      :
 
                 Claimant, :    File Nos. 858662/858663
 
                      :
 
            vs.       :          A P P E A L
 
                      :
 
            JOHN DEERE COMPONENT WORKS,   :        D E C I S I O N
 
                      :
 
                 Employer, :
 
                 Self-Insured,  :
 
                 Defendant.     :
 
            ___________________________________________________________
 
            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 April 24, 1990 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. Gregory T. Racette
 
            Attorney at Law
 
            2700 Grand Ave., Ste 111
 
            Des Moines, Iowa 50312
 
            
 
            Mr. John W. Rathert
 
            Attorney at Law
 
            P.O. Box 178
 
            Waterloo, Iowa 50704
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
            9998
 
            Filed August 29, 1991
 
            Byron K. Orton
 
            MGT
 
            before the iowa industrial commissioner
 
            ____________________________________________________________
 
                      :
 
            WENDELL WAYNE VENENGA,   :
 
                      :
 
                 Claimant, :    File Nos. 858662/858663
 
                      :
 
            vs.       :          A P P E A L
 
                      :
 
            JOHN DEERE COMPONENT WORKS,   :        D E C I S I O N
 
                      :
 
                 Employer, :
 
                 Self-Insured,  :
 
                 Defendant.     :
 
            ___________________________________________________________
 
            
 
            9998
 
            
 
                 Summary affirmance of deputy's decision filed April 24, 
 
            1990.
 
            
 
 
            
 
            Page   1
 
            
 
                                               1403.30, 2209, 2401
 
                                               2802
 
                                               Filed April 24, 1990
 
                                               MICHAEL G. TRIER
 
            before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            WENDELL WAYNE VENENGA,        :
 
                                          :
 
                 Claimant,                :         File Nos. 858662
 
                                          :                   858663
 
            vs.                           :
 
                                          :      A R B I T R A T I O N
 
            JOHN DEERE COMPONENT WORKS,   :
 
                                          :         D E C I S I O N
 
                 Employer,                :
 
                 Self-Insured,            :
 
                 Defendant.               :
 
            ____________________________________________________________
 
            
 
            2209
 
            Claimant asserted two dates of injury, one being an 
 
            allegedly minor slip and the other a result of cumulative 
 
            trauma.  Following the initial apparently minor slip, 
 
            claimant entered into a course of medical treatment which 
 
            extended up through and beyond the asserted date of 
 
            cumulative trauma injury culminating in lumbar surgery.  The 
 
            date of injury from cumulative trauma was alleged to be the 
 
            last day that the claimant worked prior to the surgery, 
 
            although the record showed that claimant had been 
 
            hospitalized for his back condition between the two alleged 
 
            dates of injury and had been in a continuous course of 
 
            medical treatment for his back condition following the 
 
            initial alleged traumatic injury.  It was held that the date 
 
            of injury under the cumulative trauma rule was the date that 
 
            the claimant entered the hospital, rather than the later 
 
            date that he left work in order to obtain surgery.
 
            
 
            1403.30, 2401, 2802
 
            The employer's procedure for recording reported injuries and 
 
            the absence of any such report was given greater weight than 
 
            the claimant's testimony that he reported the initial 
 
            traumatic injury in order to find a lack of notice under 
 
            section 85.23.  The employer was held to not have actual 
 
            knowledge where the employee had claimed group benefits and 
 
            made no other indication that he claimed his back condition 
 
            was work related until only a few days prior to surgery, a 
 
            date more than 13 months subsequent to the initial acute 
 
            trauma and more than 9 months after the date of cumulative 
 
            trauma injury which was determined.
 
            It was held that the existence of a strike does not excuse 
 
            an employee from giving notice pursuant to section 85.23 and 
 
            does not excuse an employer from paying benefits pursuant to 
 
            Chapter 85, even though the parties may not be actually 
 
            communicating well with each other during the strike.
 
            
 
 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
                                        
 
                                        
 
         DAVID HENDERSON,
 
                                                     File No. 858684
 
              Claimant,
 
                                                  A R B I T R A T I O N
 
         vs.
 
                                                     D E C I S I O N
 
         OSCAR MAYER FOODS CORP.,
 
                                                        F I L E D
 
              Employer,
 
              Self-Insured                             OCT 19 1989
 
              Defendant.
 
                                                   INDUSTRIAL SERVICES
 
         
 
         
 
                                   INTRODUCTION
 
                                        
 
              This is a proceeding in arbitration brought by the claimant, 
 
         David Henderson, against Oscar Mayer Foods Corp., self-insured 
 
         employer, to recover benefits as a result of an alleged injury 
 
         sustained on December 10, 1987.  This matter came on for hearing 
 
         before the deputy industrial commissioner in Des Moines, Iowa, on 
 
         August 16, 1989.  The record consists of the testimony of 
 
         claimant; claimant's exhibits 1 through 10, joint exhibits 1 and 
 
         2, and defendant's exhibits A through E.
 
              
 
                                      ISSUES
 
                                        
 
              The issues set out in the prehearing report for resolution 
 
         are:
 
              
 
              1.  Whether claimant's injury on December 10, 1987 arose out 
 
         of and in the course of his employment;
 
               
 
              2.  Whether claimant's claimed disability is causally 
 
         connected to his December 10, 1987 injury;
 
              
 
              3.  The nature and extent of claimant's disability; and
 
              
 
              4.  Claimant's entitlement to medical benefits under Iowa 
 
         Code section 85.27 and 85.39.
 
              
 
                              REVIEW OF THE EVIDENCE
 
                                        
 
              Claimant testified he completed the twelfth grade but did 
 
         not graduate.  He said he later received his GED.  Claimant is 27 
 
         years old.
 
              
 
              Claimant began working for defendant employer on May 1, 
 
         1987. Claimant said prior to this he worked various jobs which 
 
         involved concrete masonry, cooking, making box springs, 
 
         mattresses and sofas, being a bouncer, a roofer, and a one year 
 
         stint in the Job Corp at which time he chose the plaster and 
 
         cement masonry trade. Claimant testified he incurred a right knee 
 
         injury in 1979 requiring arthroscopic surgery.  Claimant contends 
 
         that this did not hinder his work with defendant employer.  
 
         Claimant passed his Oscar Mayer physical which was required 
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         before he began work in May 1987.  Claimant emphasized that in 
 
         May 1987 he was having no right knee problem.  Claimant said he 
 
         was first assigned to the boning department.  Claimant described 
 
         the nature of this job which included standing eight hours a day.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
              
 
              Claimant described the events leading to his injury on 
 
         December 10, 1987.  Claimant said he started work that day at 
 
         4:00 p.m.  He took a break and upon returning, he requested a 
 
         second set of knives.  Claimant said he obtained the knives and 
 
         upon returning down the stairs, he slipped on a substance on the 
 
         stairs.  Claimant stated he did the splits while carrying the 
 
         sharp knives.  Claimant said he grabbed the railing and slid down 
 
         the stairs.  Claimant said he heard a pop and felt a burning 
 
         sensation in his knee.  Claimant said he requested to see the 
 
         supervisor and he was sent to the hospital.
 
              
 
              Claimant indicated Dr. Klise told him his right knee looked 
 
         like hamburger inside and would eventually require surgery.  Dr. 
 
         Klise sent claimant to Peter D. Wirtz, M.D.  Claimant said he 
 
         never saw Dr. Wirtz at that time because Al Sorenson, defendant's 
 
         personnel manager, told claimant his injury would not be covered 
 
         by workers' compensation.  Claimant said he then sought his own 
 
         specialist, Jerome G. Bashara, M.D., who treated him.
 
              
 
              Claimant stated that he was off work December 11, 1987 
 
         through March 27, 1988.  Claimant said he returned to light duty 
 
         on March 28, 1988 with restrictions of no long standing, no up 
 
         and down stairs, and no repetition with weight.  Claimant 
 
         contends this job still required continually going up and down 
 
         stairs.
 
              
 
              Claimant testified his leg was still swelling, burning and 
 
         inflamed.  Claimant said Dr. Bashara performed surgery in January 
 
         1988.
 
              
 
              Claimant said he was off again on August 9, 1988 due to his 
 
         knee.  Claimant stated Dr. Bashara told him he needed more 
 
         surgery, which Dr. Bashara performed in September 1988.  Claimant 
 
         returned to work on January 10, 1989.  Claimant said his 
 
         restrictions were:  no climbing stairs, no lifting, squatting 
 
         with any weight, and return to work with 25 percent duties.  
 
         Claimant said he gave his note of restrictions to the employer.
 
              
 
              Claimant said he worked until the defendant closed its plant 
 
         on February 3, 1989.  Claimant said he started to school at DMACC 
 
         on January 11, 1989 under a workers' dislocation program which 
 
         paid for his schooling.  Claimant said he is taking 
 
         hotel-restaurant management courses.  Claimant stated he is still 
 
         going to school.  Claimant revealed that he obtained his first 
 
         job yesterday, August 15, 1989, since defendant's plant closed. 
 
         Claimant said he is now employed at DCS Sanitation at the old 
 
         Oscar Mayer plant and is making $6.00 per hour.  Claimant 
 
         indicated he is receiving no present medical treatment and said 
 
         he has had no other accidents since December 10, 1987, except he 
 
         took a spill on his crutches after his second surgery.  Claimant 
 
         said he cannot crawl, squat, play sports, or do many physical 
 
         activities since his December 10, 1987 injury.  Claimant said his 
 
         knee today is swollen, sore and stiff, and gives out on him. 
 
         Claimant emphasized his 1987 injury as three times worse than his 
 
         1979 injury and his recovery was a lot worse as a result of his 
 
         1987 injury.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
              
 
              Peter D. Wirtz, M.D., testified through a deposition on 
 
         March 10, 1989.  Dr. Wirtz said he first saw claimant as a 
 
         patient on August 19, 1988 through a referral from Dr. Bashara.  
 
         Claimant desired a second opinion.  Dr. Wirtz testified that 
 
         claimant would have a 5 percent partial physical impairment of 
 
         the lower extremity due to a meniscectomy on the medial aspect of 
 
         claimant's right knee and a degeneration in the right knee, 
 
         adding an additional 5 percent, all as a result of claimant's 
 
         1979 right knee injury.  Dr. Wirtz said claimant's additional 
 
         surgery in 1988 did not cause any additional impairment.  Dr. 
 
         Wirtz testified that the surgical procedure performed by Dr. 
 
         Bashara on September 19, 1988 was actually removing a frayed 
 
         tissue resulting from the natural healing and response to 
 
         claimant's February 5, 1979 surgery.  Dr. Wirtz said there was no 
 
         increase in the 10 percent permanent impairment of the leg as a 
 
         result of the September 19, 1988 surgery.  Dr. Wirtz acknowledged 
 
         he did not have a copy of Dr. Bashara's January 1988 surgical 
 
         operative notes.  Dr. Wirtz further acknowledged that when he was 
 
         requested to examine claimant, it was not for any impairment 
 
         rating.  He said if he were to be requested to make an impairment 
 
         rating, there would be other types of tests he would perform to 
 
         arrive at an impairment percent.  Dr. Wirtz said he would be in a 
 
         better position to give a more accurate impairment rating if he 
 
         examined claimant using these tests.  Dr. Wirtz also admitted he 
 
         had no way of knowing claimant's range of knee motion prior to 
 
         December 10, 1987, nor did he have any opportunity to perform any 
 
         range of motion tests. Dr. Wirtz was asked and answered as 
 
         follows:
 
              
 
              Q.  Is it your testimony that if David Henderson did not 
 
              have this incident occur in December 10, 1987, that he would 
 
              still had to have the surgeries that Doctor Bashara 
 
              performed?
 
              
 
              A.  Based on my experience with this condition, and even 
 
              Doctor Long's first note, this patient has a condition that 
 
              sometime in his life would end up with kneecap surgery.
 
              
 
              Q.  And would a fall such as David Henderson described in 
 
              his history be a factor which would contribute to the 
 
              necessity of having the knee surgery?
 
              
 
              A.  Yes.
 
              
 
              Q.  And if the fall is the only thing in Mr. Henderson's 
 
              history which would indicate that he had no problems until 
 
              that time and he's had no injuries after that time, would 
 
              you have an opinion as to this being the primary factor for 
 
              the necessity of the subsequent surgeries?
 
              
 
              A.  It would be in light of that summary, the primary cause 
 
              for surgery for the kneecap.
 
              
 
              Q.  Would be the fall that he's described on December 10, 
 
              1987?
 

 
              
 
 
 
 
 
 
 
 
 
 
 
              
 
              A.  Yes.
 
              
 
         (Wirtz Deposition, page 18)
 
         
 
              Dr. Wirtz testified that the surgeries claimant had after 
 
         the December 10, 1987 incident would have a potential for loss of 
 
         motion.
 
         
 
              The January 11, 1988 notes of Jerome B. Bashara, M.D., 
 
         reflect:
 
         
 
              SURGERY NOTE:  Surgery Center of WDM
 
              
 
              A diagnostic and operative arthroscopy of his right knee was 
 
              carried out with a subtotal lateral meniscectomy for a tear 
 
              of the lateral meniscus, a debridement and shaving of 
 
              articular cartilage of the patella and femoral condyle, 
 
              chondroplasty, and resection of medial retinacular shelf and 
 
              a subtotal or limited synovectomy.  He tolerated the 
 
              procedures well.
 
              
 
         (Joint Exhibit 1, page 13)
 
         
 
              Dr. Bashara's notes on September 19, 1988 reflect:
 
              
 
              SURGERY NOTE:  Mercy Hospital 1) A diagnostic and operative 
 
              arthroscopy of the right knee was performed with a 
 
              chondroplasty and shaving of the patella.  2) Shaving and 
 
              subtotal medial meniscectomy, lateral release and an Elmslie 
 
              Trillot transfer of the tibial tubercle.  He tolerated the 
 
              procedure well and was admitted into the hospital.
 
              
 
         (Jt. Ex. 1, p. 11)
 
         
 
              On March 22, 1989, Dr. Bashara opined an evaluation as 
 
         follows:
 
         
 
                 I would give this patient a 35% permanent partial 
 
              physical impairment of his right lower extremity related to 
 
              his knee condition as it exists today.  It is my opinion 
 
              that 10% of the above rating is related to an accident and 
 
              surgery which he had in 1978 and 1979, and the remaining 24% 
 
              is related to an injury which he sustained in December of 
 
              1987.
 
                 
 
                 I would recommend the following restrictions:  he should 
 
              not involve himself in any excessive climbing, either 
 
              stairclimbing [sic] or ladder climbing, kneeling, or 
 
              squatting.
 
                 
 
         (Jt. Ex. 1, p. 5)
 
         
 
                           APPLICABLE LAW AND ANALYSIS
 
                                        
 

 
         
 
 
 
 
 
 
 
 
 
 
 
              Claimant has the burden of proving by a preponderance of the 
 
         evidence that he received an injury on December 10, 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 claimant has the burden of proving by a preponderance of 
 
         the evidence that the injury of December 10, 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).
 
              
 
              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 
 
         Deer Ottumwa Works, 247 Iowa 900, 908, 76 N.W.2nd 756, (1956).  
 
         If the claimant had a preexisting condition or disability that is 
 
         aggravated, accelerated, worsened or lighted up so that it 
 
         results in disability, claimant is entitled to recover.  Nicks v. 
 
         Davenport Produce Co., 254 Iowa 130, 115 N.W.2d 812, (1962).
 
              
 
              An employer takes an employee subject to any active or 
 
         dormant health impairments, and a work connected injury which 
 
         more than slightly aggravates the condition is considered to be a 
 
         personal injury.  Ziegler v. United States Gypsum Co., 252 Iowa 
 
         613, 620, 106 N.W.2d 591 (1960), and cases cited.
 
              
 
              Iowa Code section 85.34(1) provides that if an employee has 
 
         suffered a personal injury causing permanent partial disability, 
 
         the employer shall pay compensation for a healing period from the 
 
         day of the injury until (1) the employee returns to work; or (2) 
 
         it is medically indicated that significant improvement from the 
 
         injury is not anticipated; or (3) until the employee is medically 
 
         capable of returning to substantially similar employment.
 
              
 
              A healing period may be interrupted by a return to work. 
 
         Riesselmann v. Carroll Health Center, 3 Iowa Industrial 
 
         Commissioner Reports 209 (Appeal Decision 1982).
 

 
         
 
 
 
 
 
 
 
 
 
 
 
              
 
              Apportionment of disability between a preexisting condition 
 
         and an injury is proper only when there was some ascertainable 
 
         disability which existed independently before the injury 
 
         occurred. Varied Enterprises, Inc. v. Sumner, 353 N.W.2d 407 
 
         (Iowa 1984).
 
              
 
              The burden of showing that disability is attributable to a 
 
         preexisting condition is, of course, placed upon the defendant.  
 
         If evidence to establish a proper apportionment is absent, the 
 
         defendant is responsible for the entire disability that exists. 
 
         Varied Enterprises, Inc., 353 N.W.2d 407; Becker v. D & E 
 
         Distributing Co., 247 N.W.2d 727, 731 (Iowa 1976); 2A Larson, 
 
         Workmen's Compensation Law, Section 59.22; 22 Am.Jur.2d, Section 
 
         122; 2 Damages & Tort Actions Section 15.34[1](a).
 
              
 
              This 27-year-old claimant injured his right knee in 1979.  
 
         He passed his company physical before he began working for 
 
         defendant in May 1987.  It is obvious claimant was having no 
 
         problem with his right knee that interfered with his employment 
 
         prior to December 10, 1987.  The evidence is undisputed that 
 
         claimant slipped and fell at the defendant's premises on December 
 
         10, 1987 while performing his job.  The company doctor was unable 
 
         to treat claimant's condition and sent him to a specialist, Dr. 
 
         Wirtz. Before claimant saw Dr. Wirtz, defendant's personnel 
 
         manager gold claimant he was not covered under workers' 
 
         compensation.  Claimant then chose his own doctor.  Claimant 
 
         desired a second opinion and it appears Dr. Bashara also welcomed 
 
         a second opinion.  Claimant went to Dr. Wirtz for a second 
 
         opinion.
 
              
 
              Dr. Wirtz is the same doctor to whom defendant's company 
 
         doctor originally tried to send claimant.  There is a conflict in 
 
         the two doctors' medical opinions.  The undersigned believes the 
 
         greater weight of medical evidence supports Dr. Bashara's 
 
         opinion. Dr. Bashara treated claimant over the period of 
 
         claimant's surgeries and performed both surgeries.  He saw the 
 
         condition of claimant's knee internally.  Dr. Wirtz, by his own 
 
         admission, did not examine claimant with the intent to issue a 
 
         rating even though he, in fact, issued a rating.  Dr. Wirtz did 
 
         not perform the tests normally required to be able to adequately 
 
         determine a rating.
 
              
 
              Dr. Bashara opined a 34 percent permanent partial impairment 
 
         to claimant's right lower extremity with 10 percent of this 
 
         attributed to claimant's 1979 injury.
 
              
 
              The undersigned finds claimant's injury on December 10, 1987 
 
         rose out of and in the course of his employment and that claimant 
 
         incurred a 24 percent permanent partial impairment to his right 
 
         lower extremity which is causally connected to his December 10, 
 
         1987 injury.
 
              
 
              Claimant was off work due to his December 10, 1987 injury 
 
         and incurred two surgeries and is entitled to healing period 
 
         benefits for the period December 11, 1987 through March 27, 1988 
 
         and August 9, 1988 through January 10, 1989 at the weekly rate of 
 
         $211.21.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
              
 
              Claimant is entitled to 52.8 weeks of permanent partial 
 
         disability benefits based on 24 percent of 220 weeks (Iowa Code 
 
         section 85.34(2)(o)).  The undersigned finds that 10 percent of 
 
         the 34 percent permanent partial impairment to claimant's lower 
 
         right extremity preexisted claimant's December 10, 1987 injury.
 
              
 
              As to the 85.27 and 85.39 issues, defendant denied 
 
         liability. Claimant's original company doctor sent claimant to 
 
         Dr. Wirtz. Ultimately, claimant went to Dr. Wirtz.  It appears 
 
         defendant is willing to accept Dr. Wirtz's opinion.  The 
 
         undersigned finds defendant is to pay all of claimant's medical 
 
         expenses, including his two surgeries and the bills of Dr. 
 
         Bashara and Dr. Wirtz.  It appears defendant has paid all but 
 
         $840.03 of the $10,497.06 in medical bills.  Defendant is also to 
 
         pay or reimburse claimant for the 1,273.5 miles incurred to 
 
         obtain medical services.
 
              
 
                                 FINDINGS OF FACT
 
                                        
 
              1.  Claimant incurred an injury to his right knee at work 
 
         when he slipped and fell down the stairs on December 10, 1987.
 
              
 
              2.  Claimant has a 34 percent permanent partial impairment 
 
         to his right lower extremity of which 10 percent is the result of 
 
         his February 1979 injury and 24 percent is the result of his 
 
         December 10, 1987 injury.
 
              
 
              3.  Claimant incurred healing periods as a result of his 
 
         December 10, 1987 injury of:  December 11, 1987 through March 27, 
 
         1988, and August 9, 1988 through January 10, 1989, involving a 
 
         total of 37.571 weeks at the rate of $211.21.
 
              
 
              4.  Claimant is entitled to have his medical expenses paid 
 
         by defendant, including medical mileage and the bills of Dr. 
 
         Wirtz and Dr. Bashara that have resulted from claimant's December 
 
         10, 1987 injury.
 
              
 
                                   CONCLUSIONS
 
                                        
 
              Claimant's injury on December 10, 1987 arose out of and in 
 
         the course of his employment.
 
              
 
              Claimant's additional 24 percent permanent partial 
 
         impairment to his right lower extremity is causally connected to 
 
         his work injury of December 10, 1987.
 
              
 
              Claimant incurred healing periods as a result of his 
 
         December 10, 1987 injury of December 11, 1987 through March 27, 
 
         1988, and August 9, 1988 through January 10, 1989, involving a 
 
         total of 37.571 weeks at the rate of $211.21.
 
              
 
              Defendant shall pay claimant's medical expenses and medical 
 
         mileage incurred as a result of claimant's December 10, 1987 
 
         injury.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
              
 
                                      ORDER
 
                                        
 
              THEREFORE, it is ordered:
 
              
 
              That defendant shall pay unto claimant healing period 
 
         benefits at the rate of two hundred eleven and 21/100 dollars 
 
         ($211.21) for the periods of December 11, 1987 through March 27, 
 
         1988, and August 9, 1988 through January 10, 1989, totaling 
 
         thirty-seven point five seven one (37.571) weeks.
 
              
 
              That defendant shall pay unto claimant fifty-two point eight 
 
         (52.8) weeks of permanent partial disability benefits at the rate 
 
         of two hundred eleven and 21/100 dollars ($211.21) beginning 
 
         January 12, 1989.
 
              
 
              That defendant shall pay claimant's medical expenses and 
 
         medical mileage incurred as a result of claimant's December 10, 
 
         1987 injury.  Defendant shall be given credit for any medical 
 
         bills or expenses previously paid on behalf of claimant.  It 
 
         appears defendant has paid all the medical bills except eight 
 
         hundred forty and 03/100 dollars ($840.03) and for claimant's one 
 
         thousand two hundred seventy-three point five (1,273.5) miles 
 
         incurred to and from doctors and hospitals.
 
              
 
              That defendant shall pay the accrued weekly benefits in a 
 
         lump sum and receive credit for benefits already paid.  It 
 
         appears defendant has paid no previous weekly benefits.
 
              
 
              That defendant shall pay interest on benefits awarded herein 
 
         as set forth in Iowa Code section 85.30.
 
              
 
              That defendant shall pay the costs of this action pursuant 
 
         to Division of Industrial Services Rule 343-4.33.
 
              
 
              That defendant shall file an activity report upon payment of 
 
         this award as requested by this agency pursuant to Division of 
 
         Industrial Services Rule 343-3.1.
 
              
 
              Signed and filed this 19th day of December, 1989.
 
              
 
              
 
              
 
              
 
              
 
                                            BERNARD J. O'MALLEY
 
                                            DEPUTY INDUSTRIAL COMMISSIONER
 
                                            
 
         Copies To:
 
         
 
         Mr. Robert E. McKinney
 
         Attorney at Law
 
         480 6th St.
 
         P.O. Box 209
 
         Waukee, IA  50263
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
         Mr. Harry H. Dahl
 
         Attorney at Law
 
         974 73rd St., Ste 16
 
         Des Moines, IA  50312
 
         
 
         
 
         
 
         
 
         
 
         
 
         
 
         
 
         
 
         
 
         
 
         
 
         
 
         
 
                                                                                                                    
 
         
 
         
 
         
 
         
 
         
 
         
 
         
 
         
 
         
 
         
 
         
 
         
 
         
 
         
 
         
 
         
 
         
 
         
 
         
 
                                                                                       
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
 
                                            
 
 
 
 
 
 
 
 
 
 
 
                                            51100; 51108.50; 51802;
 
                                            51803; 52206
 
                                            Filed October 19, 1989
 
                                            Bernard O'Malley
 
         
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
                                        
 
         
 
         DAVID HENDERSON,
 
         
 
              Claimant,                             File No. 858684
 
         
 
         vs.
 
                                                 A R B I T R A T I O N
 
         OSCAR MAYER FOODS CORP.,
 
                                                    D E C I S I O N
 
              Employer,
 
              Self-insured,
 
              Defendant.
 
         
 
         
 
         52206
 
         
 
              Claimant given a 35 percent permanent partial physical 
 
         impairment of his right lower extremity related to his knee 
 
         injury.  Ten percent of this rating was attributed to a prior 
 
         preexisting injury.
 
         
 
         51100; 51108.50
 
         
 
              Found claimant's 24 percent permanent partial impairment of 
 
         his right lower extremity arose out of and in the course of 
 
         claimant's employment and was causally connected to claimant's 
 
         injury.
 
         
 
         51802; 51803
 
         
 
              Claimant awarded 37.57 weeks healing period benefits and 24 
 
         percent permanent partial impairment to his right lower extremity 
 
         (52.8 weeks).
 
         
 
         
 
         
 
         
 
         
 
         
 
         
 
         
 
         
 
         
 
         
 
         
 
         
 
         
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
         
 
         
 
                                                                                                                    
 
         
 
         
 
         
 
         
 
         
 
         
 
         
 
         
 
         
 
         
 
         
 
         
 
         
 
         
 
         
 
         
 
         
 
         
 
         
 
                                                                                       
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
 
            
 
            
 
            
 
            
 
            
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
                                          
 
            DAVID M. HENDERSON,           :
 
                                          :
 
                 Claimant,                :        File No. 858684
 
                                          :
 
            vs.                           :         R E V I E W -
 
                                                  R E O P E N I N G
 
                                          :
 
            OSCAR MAYER FOODS             :         D E C I S I O N
 
            CORPORATION,                  :
 
                                          :
 
                 Employer,                :
 
                 Self-Insured,            :
 
                 Defendant.               :
 
            ___________________________________________________________
 
            
 
                              STATEMENT OF THE CASE
 
            
 
                 This is a contested case proceeding under Iowa Code 
 
            chapter 17A upon a petition for review-reopening filed by 
 
            claimant David Henderson against defendant self-insured 
 
            employer Oscar Mayer Foods Corporation.  In a previous 
 
            arbitration decision, it was found that claimant sustained a 
 
            knee injury arising out of and in the course of employment 
 
            on December 10, 1987, which aggravated a preexisting 
 
            condition and resulted in further permanent impairment.
 
            
 
                 A hearing was accordingly held in Des Moines, Iowa on 
 
            March 14, 1994.  The record consists of claimant's testimony 
 
            along with joint exhibits B-M and defendant's exhibits 1-4.  
 
            Notice was taken of all pleadings, motions and rulings 
 
            contained in the litigated file.
 
            
 
                 Claimant was still recovering from knee surgery at the 
 
            time of hearing.  Accordingly, the issue of possible 
 
            permanent impairment was bifurcated for later consideration.
 
            
 
                                      ISSUES
 
            
 
                 The parties have stipulated to the following:
 
            
 
                    1.  Although entitlement to healing 
 
                    period/temporary total disability cannot be 
 
                    stipulated, claimant has been off work since 
 
                    February 4, 1994;
 
            
 
                    2.  Affirmative defenses are not at issue;
 
            
 
                    3.  Disputed medical treatment and the cost 
 
                    thereof is reasonable, necessary, and 
 
                    causally connected to the medical condition 
 
                    upon which the claim of injury is based;
 
            
 
                    4.  Defendants have not made voluntary 
 
                    payments of medical expenses or weekly 
 
                    benefits (beyond payments ordered in the 
 
                    arbitration decision filed October 19, 
 
                    1989); and,
 

 
            
 
            Page   2
 
            
 
            
 
            
 
                    5.  Dr. Jerome Bashara is an authorized 
 
                    treating physician.
 
            
 
                 Issues presented for resolution include:
 
            
 
                    1.  Whether the work injury caused 
 
                    additional temporary disability from 
 
                    February 4, 1994;
 
            
 
                    2.  Whether the work injury caused necessity 
 
                    of additional medical treatment; and,
 
            
 
                    3.  Whether disputed medical expenses were 
 
                    authorized by defendants.
 
            
 
                                 FINDINGS OF FACT
 
            
 
                 The undersigned deputy industrial commissioner finds:
 
            
 
                 The arbitration decision filed October 19, 1989 found 
 
            that claimant had sustained a 34 percent permanent partial 
 
            impairment to the right leg, of which 10 percent resulted 
 
            from an injury in 1979 (which required arthroscopy and 
 
            arthrotomy) and 24 percent as the result of the December 10, 
 
            1987 injury at Oscar Mayer.  This injury was sustained when 
 
            claimant slipped and fell down a flight of stairs.
 
            
 
                 Claimant is of the view that his knee condition has 
 
            progressively worsened ever since.  He has intermittent 
 
            "catching" in the knee and the arbitration deputy reported 
 
            1989 testimony that the knee "gives out on him."  Medical 
 
            practitioners have seriously considered further major 
 
            surgical intervention, including a possible total knee 
 
            replacement or a knee fusion.  Unfortunately, claimant's 
 
            youth (32 years old at hearing) and weight (over 250 pounds) 
 
            are serious contraindications.  More or less as a holding 
 
            action, Devon Goetz, M.D., performed a right knee 
 
            arthroscopy and debridement of medial and lateral 
 
            compartments and patellofemoral joint on February 4, 1994, 
 
            in an effort to give claimant some relief until he is old 
 
            enough to consider a total replacement or fusion.  It is the 
 
            cost and temporary disability occasioned by this procedure 
 
            that are at issue here.
 
            
 
                 Claimant contends that his current condition is 
 
            causally related to the 1987 injury.  Defendants, on the 
 
            other hand, point to the preexisting condition from 1979 and 
 
            a number of exacerbations that have occurred since the 
 
            arbitration hearing (August 16, 1989).
 
            
 
                 One of the subsequent exacerbations occurred on August 
 
            31, 1989, when claimant's knee "buckled" while he was 
 
            employed cleaning a meat packing facility.  Claimant has 
 
            experienced numerous such "giving way" incidents since 
 
            undergoing knee surgery in 1988.  The significance of this 
 
            incident lies in the fact that claimant's then employer (DCS 
 
            Sanitation) voluntarily paid medical expenses, further 
 
            buttressing the argument that this incident constitutes an 
 
            intervening work injury such as to break any chain of 
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            causation from the 1987 injury.  Similarly, claimant had 
 
            another incident in November 1990 while employed at a 
 
            residential care facility.  His knee "gave out" and locked 
 
            while he was going upstairs, resulting in one to two weeks 
 
            lost work.  In October 1990, claimant's knee gave out and he 
 
            fell into a chair at home.  While training as a machine 
 
            operator for Iowa Spring Manufacturing, claimant was able to 
 
            work only 4-5 hours before repetitious movement of his knee 
 
            caused severe swelling, such that he had to quit.
 
            
 
                 It may very plausibly be argued that any of these 
 
            incidents break the chain of causation from 1987.  However, 
 
            each of these incidents appear to have come about mainly 
 
            because of the condition of claimant's knee, and thus may be 
 
            reasonably be viewed as natural sequela of the 1987 injury 
 
            (or, as seen below, of the 1979 injury).
 
            
 
                 With this in mind, it is of great importance to 
 
            consider the divergent medical opinions as to causation.
 
            
 
                 Dr. Bashara, the authorized treating physician and the 
 
            1988 surgeon, wrote on June 15, 1993:
 
            
 
                    It is my opinion that the patient's injury 
 
                    at the Oscar Mayer Plant in 1987 are 
 
                    substantially the cause of his present knee 
 
                    difficulties, which have been diagnosed in 
 
                    June of 1992 as severe progressive 
 
                    tricompartmental post-traumatic degenerative 
 
                    arthritis of the right knee.
 
            
 
            (Exhibit B)
 
            
 
                 Dr. Bashara referred claimant to Dr. Richard Johnston 
 
            for a second opinion.  Dr. Johnston subsequently referred 
 
            claimant to his partner, Dr. Goetz, the 1994 surgeon.  On 
 
            March 1994, Dr. Goetz wrote:
 
            
 
                    Now that I have been made aware of the 
 
                    injury he had in 1978, with arthroscopy and 
 
                    arthrotomy, I would have to say that the key 
 
                    factors responsible for his moderate knee 
 
                    arthritis are injuries that he sustained 
 
                    long ago (i.e., greater than ten).
 
            
 
                    My best guess is that his arthritis is, in 
 
                    part, related to his weight and hereditary 
 
                    predisposition and, in part, related to the 
 
                    injury he had in 1978.  On the other hand, 
 
                    the subsequent minor injuries that he has 
 
                    had more recently, including the one in 
 
                    1987, and other later injuries, have 
 
                    probably accelerated his symptoms and have 
 
                    possibly accelerated his arthritis.
 
            
 
            (Defendant's Exhibit 1)
 
            
 
                 Although Dr. Goetz assigns primary causal nexus to the 
 
            1978 or 1979 injury, he does note that the 1987 injury 
 
            probably accelerated symptoms and the arthritic process.  
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
            Thus, his opinion is not entirely inconsistent with that of 
 
            Dr. Bashara.  This agency has already held that the 1987 
 
            injury caused a 24 percent permanent partial impairment as 
 
            of 1989, while the earlier injury caused only a 10 percent 
 
            impairment.  Clearly, claimant's degenerative process has 
 
            worsened since 1987, all of which is consistent with the 
 
            earlier decision.  Accordingly, Dr. Bashara's opinion on 
 
            causation is found more persuasive.
 
            
 
                                CONCLUSIONS OF LAW
 
            
 
                 The party who would suffer loss if an issue were not 
 
            established has the burden of proving that issue by a 
 
            preponderance of the evidence.  Iowa R. App. P. 14(f).
 
            
 
                 The claimant has the burden of proving by a 
 
            preponderance of the evidence that the injury is a proximate 
 
            cause of the disability on which the claim is based.  A 
 
            cause is proximate if it is a substantial factor in bringing 
 
            about the result; it need not be the only cause.  A 
 
            preponderance of the evidence exists when the causal 
 
            connection is probable rather than merely possible.  
 
            Blacksmith v. All-American, Inc., 290 N.W.2d 348 (Iowa 
 
            1980); Holmes v. Bruce Motor Freight, Inc., 215 N.W.2d 296 
 
            (Iowa 1974).
 
            
 
                 The question of causal connection is essentially within 
 
            the domain of expert testimony.  The expert medical evidence 
 
            must be considered with all other evidence introduced 
 
            bearing on the causal connection between the injury and the 
 
            disability.  The weight to be given to any expert opinion is 
 
            determined by the finder of fact and may be affected by the 
 
            accuracy of the facts relied upon by the expert as well as 
 
            other surrounding circumstances.  The expert opinion may be 
 
            accepted or rejected, in whole or in part.  Sondag v. Ferris 
 
            Hardware, 220 N.W.2d 903 (Iowa 1974); Anderson v. Oscar 
 
            Mayer & Co., 217 N.W.2d 531 (Iowa 1974); Bodish v. Fischer, 
 
            Inc., 257 Iowa 516, 133 N.W.2d 867 (1965).
 
            
 
                 As found above, Dr. Bashara's opinion causally relating 
 
            claimant's current condition to the 1987 injury is accepted 
 
            as persuasive.  Claimant has met his burden of proof in 
 
            establishing that the surgical procedure undertaken by Dr. 
 
            Goetz, along with the medical costs and temporary disability 
 
            occasioned thereby, are compensable.
 
            
 
                 However, defendant also disputes whether the surgery 
 
            and related medical expenses were authorized.  While Iowa 
 
            Code section 85.27 grants the employer the right to control 
 
            the course of medical treatment, that right is forfeited 
 
            where the employer denies liability on the claim, see, 
 
            Barnhart v. MAQ, Inc., 1 Iowa Industrial Commissioner's 
 
            Report 16 (1981), and other agency decisions far too 
 
            numerous to cite.  In this case, it has previously been 
 
            found (although disputed) that claimant's 1987 injury arose 
 
            out of and in the course of employment.  This cannot be 
 
            denied, being judicially established, but defendant has 
 
            denied any further liability whatsoever, whether for medical 
 
            expense or temporary disability.  Accordingly, defendant has 
 
            forfeited the right to assert an authorization defense.
 

 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
            
 
                 In addition, it is noted that Dr. Bashara, concededly 
 
            an authorized physician, referred claimant to Dr. Johnston, 
 
            who subsequently made the referral to Dr. Goetz.  It has 
 
            long been held that referral by an authorized physician 
 
            constitutes further authorization of the subsequent 
 
            physician.  Limoges v. Meier Auto Salvage, 1 Iowa Industrial 
 
            Commissioner Report 207 (1981).  Thus, the treatment was 
 
            actually authorized, despite defendant's protestation to the 
 
            contrary.
 
            
 
                                      ORDER
 
            
 
                 THEREFORE, IT IS ORDERED:
 
            
 
                 Defendant shall pay claimant healing period/temporary 
 
            total disability benefits at the rate of two hundred eleven 
 
            and 21/100 dollars ($211.21) from February 4, 1994 until 
 
            such time as such benefits terminate pursuant to Iowa Code 
 
            section 85.32 or 85.34(1).
 
            
 
                 All accrued weekly benefits shall be paid in a lump sum 
 
            together with statutory interest.
 
            
 
                 Defendant shall pay the medical expenses set forth in 
 
            joint exhibit K.
 
            
 
                 The issue of further permanent disability, if any, is 
 
            bifurcated and reserved for further proceedings; this case 
 
            shall be returned to the hearing docket.
 
            
 
                 Costs are assessed to defendant.
 
            
 
                 Signed and filed this ____ day of July, 1994.
 
            
 
            
 
            
 
            
 
                                          
 
                                         ________________________________
 
                                          DAVID RASEY
 
                                          DEPUTY INDUSTRIAL COMMISSIONER
 
            
 
            Copies To:
 
            
 
            Mr Robert E McKinney
 
            Attorney at Law
 
            480 Sixth Avenue
 
            PO Box 209
 
            Waukee Iowa 50263-0209
 
            
 
            Mr Harry W Dahl
 
            Attorney at Law
 
            974 73rd Street
 
            Suite 16
 
            Des Moines Iowa 50312
 
            
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                                 5-1402.40; 5-1402.60
 
                                                 Filed July 6, 1994
 
                                                 DAVID RASEY
 
             
 
                         BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
                      
 
            DAVID M. HENDERSON, 
 
                      
 
                 Claimant,                       File No. 858684
 
                      
 
            vs.                                    R E V I E W -
 
                                                R E O P E N I N G
 
                      
 
            OSCAR MAYER FOODS                    D E C I S I O N
 
            CORPORATION,   
 
                      
 
                 Employer, 
 
                 Self-Insured,  
 
                 Defendant.     
 
            ___________________________________________________________
 
            
 
            5-1402.40; 5-1402.60
 
            
 
            Claimant established entitlement to temporary total/healing 
 
            period benefits and medical benefits as causally related to 
 
            an injury previously found to have arisen out of and in the 
 
            course of employment.
 
            
 
 
        
 
 
 
 
 
        
 
        
 
        
 
        
 
                    BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
        
 
        
 
        ROSE MARIE BARTLES,
 
        
 
            Claimant,
 
                                                         File Nos. 
 
        858689 & 858690
 
        vs.
 
                                                         A R B I T R A T 
 
        I O N
 
        GLENWOOD STATE HOSPITAL
 
        SCHOOL,                                          D E C I S I O N
 
        
 
            Employer                                    F I L E D
 
        
 
        and                                          APR 18 1989
 
        
 
        STATE OF IOWA,                     IOWA INDUSTRIAL COMMISSIONER
 
        
 
            Insurance Carrier,
 
            Defendant.
 
        
 
        
 
                                      INTRODUCTION
 
        
 
             These are arbitration proceedings brought by Rose Marie 
 
             Bartles, claimant, against Glenwood State Hospital School, 
 
             employer, and State of Iowa, self-insured, defendant. The case 
 
             was heard by the undersigned in Council Bluffs, Iowa on January 
 
             25, 1989.
 
        
 
            The record consists of the testimony of claimant. The 
 
        record also consists of the testimony of Rhea Grindle, Stella 
 
        Goodwin, Donald LeRoy Albright, and Jane Ross. The record also 
 
        consists of the depositions of Michael J. Morrison, M.D., and 
 
        Corrine G. Lincoln. Finally, the record consists of claimant's 
 
        exhibits 1-26 and defendant's exhibits 1-16.
 
        
 
                                      ISSUES
 
        
 
             As a result of the prehearing report and order submitted and 
 
             approved on January 25, 1989, the issues presented by the parties 
 
             are:
 
        
 
            1. Whether claimant provided adequate notice to defendant 
 
        under section 85.23;
 
        
 
            2. Whether claimant received injuries which arose out of 
 
        and in the course of her employment;
 
        
 
            3. Whether there is a causal relationship between the 
 
        alleged injuries and the disability;
 
             
 
             4. Whether claimant is entitled to temporary 
 
             disability/healing period benefits or permanent partial or total 
 
             disability benefits;
 
             
 
             5. Whether claimant is an odd-lot employee; and,
 

 
        
 
 
 
 
 
             
 
             6. Whether claimant is entitled to medical benefits under 
 
             section 85.27.
 
             
 
                                 FACTS PRESENTED
 
             
 
             Claimant commenced her employment with defendant on November 
 
             7, 1967. Claimant held various positions throughout the course 
 
             of her employment, including the position as residence treatment 
 
             worker. In 1976, claimant was promoted to a supervisory 
 
             position. She held several supervisory positions until February 
 
             12, 1986. On that date, claimant was designated a residence 
 
             treatment supervisor one.
 
             
 
             At the time claimant's job title changed, she was 55 years 
 
             old. Claimant's job change required her to more directly care 
 
             for residents. Her duties involved pushing wheelchairs, giving 
 
             medication, lifting and transporting residents, feeding residents 
 
             while standing, and bathing and dressing residents.
 
             
 
             Claimant testified that her job responsibilities involved 
 
             walking for four hours per day, standing for three hours per day, 
 
             and sitting for one hour per day. Also involved intermittently 
 
             were pushing and pulling, bending and lifting.
 
             
 
             Claimant testified that between February 12, 1986 and June 
 
             10, 1986, her back began to ache in the lumbar region. Gradually 
 
             the pain worsened and it radiated down her right leg, she stated. 
 
             Claimant reported there was no specific event or trauma to which 
 
             she could point. Then in June of 1986, claimant stated she 
 
             notified her supervisor she was ill because of her back pain. 
 
             Claimant remained on sick leave until August 18, 1986. She 
 
             returned to work until October 9, 1986. She never again worked 
 
             after the above date at defendant's establishment.
 
             
 
             Claimant had surgery on her back in January of 1988. 
 
             Claimant applied for long-term disability benefits through the 
 
             State of Iowa's long-term disability program. Application was 
 
             made through the Principal Financial Group, the plan 
 
             administrator. Claimant received benefits through the program 
 
             with the exception of a brief period in May of 1988 when claimant 
 
             attempted employment as a tele-marketer.
 
             
 
             Corrine G. Lincoln, a co-employee, testified by way of 
 
             deposition. She stated she had heard claimant complain about her 
 
             back pain However, Ms. Lincoln reported she had never heard 
 
             claimant report the back pain was attributable to a work injury. 
 
             Ms. Lincoln also testified concerning the standard procedures for 
 
             reporting an on the job injury. She testified that:
 
        
 
             Q. Okay. Can you describe to me generally what the 
 
             procedures are for reporting work-related injuries at 
 
             Glenwood?
 
             
 
             A. The procedure is you call your supervisor and -- your 
 
             acting supervisor or your acting unit charge -- and then 
 
             you're to call a nurse. And the nurse will come up and 
 
             check you and if it's anything a doctor should see, then he 
 
             will come up. And then they sign the paper and write down 
 
             what treatment was done.
 
             
 
             Q. Is it your understanding that anytime an employee thinks 
 
             they have a work-related injury they should report that to 
 
             the supervisor and fill out an incident report?
 
             
 
             A. To my knowledge, yes.
 

 
        
 
 
 
 
 
             
 
             Q. Is that frequently done at Glenwood, to your knowledge?
 
             
 
             A. There's a lot of times where it is not done.
 
             
 
             Q. Pardon?
 
             
 
             A. There's a lot of times where it's not done.
 
             
 
             Q. Is it commonly done?
 
             
 
             A. Yes.
 
             
 
             Q. Pretty frequently?
 
             
 
             A. Yes.
 
             
 
             Q. Would you say that most of the employees are aware that 
 
             an incident report should be filled out when they have a 
 
             work-related injury?
 
             
 
             A. Yes.
 
             
 
             Q. Just a moment.
 
             
 
        (Deposition page 16, line 24 to page 18, line 3)
 
        
 
             Michael J. Morrison, M.D., testified by way of deposition. 
 
             He reported he is a board certified orthopedic surgeon. Dr. 
 
             Morrison testified that claimant suffered from a lumbar 
 
             scoliosis, a possible spondylolisthesis of L5, Sl, and a L4, L5 
 
             disc herniation. He opined the following:
 
        
 
             A. Yes, I do have an opinion, and my opinion is that if 
 
             someone does a lot of lifting, pushing, carrying to the 
 
             extent that you've just described, this can and sometimes 
 
             does predispose someone to injuring their back in the form 
 
             of rupturing a disc.
 
               ....
 
             
 
        (Depo. p. 19, 11. 16-20)
 
        
 
             A. It would be my opinion from the history that you've 
 
             described to me that this could be an inciting factor for 
 
             this lady to have sustained an injury to her back in the 
 
             form of a disc rupture.
 
             
 
             Q. Doctor, do you have an opinion as to whether this lady 
 
             has any permanent functional disability which has occurred 
 
             since February of '86?
 
             
 
             A. Yes
 
             
 
             Q. And what's that opinion, Doctor?
 
             
 
             A. That she does have some impairment to her lower back 
 
             from having a disc herniation treated surgically.
 
             
 
             Q. And do you have a rating prepared pursuant to the AMA 
 
             guides as to what that percentage of disability would be as 
 
             to her body as a whole?
 
             
 
             A. Yes.
 
           
 
            Q. And what was that percentage?
 
            
 

 
        
 
 
 
 
 
            A. Ten-percent whole body impairment.
 
        
 
        (Depo., p. 20, 1. 23 to p. 21, 1. 15)
 
             
 
             Rhea Grindle testified at the hearing. She testified that 
 
             she worked with claimant from August 1, 1967 to July 10, 1986. 
 
             Ms. Grindle testified she saw claimant four out of the eight 
 
             hours per shift. Ms. Grindle also reported that claimant 
 
             reported to her, "My back kinda hurts."
 
        
 
            Ms. Estella Elaine Goodwin testified she is a registered 
 
        nurse and that she is a supervisor at Glenwood. Ms. Goodwin 
 
        testified she is familiar with claimant and claimant's job 
 
        responsibilities. Ms. Goodwin stated she is familiar with the 
 
        procedures for reporting a work injury at Glenwood. She 
 
        indicated an incident must be related to work but that a concrete 
 
        incident was not required. Ms. Goodwin reported no incident 
 
        report was made in 1986 by claimant concerning a work injury,but 
 
        that claimant would occasionally complain about her back. 
 
        However, according to Ms. Goodwin, claimant never stated the back 
 
        pain was due to a work injury.
 
        
 
             Mr. Donald Albright testified he was a personnel aide at 
 
             Glenwood. He testified he handles the application forms for 
 
             health insurance and disability forms. He testified he seldom 
 
             read the application forms. He usually just checked the 
 
             necessary forms to see if the forms had been properly signed by 
 
             the applicant, and then Mr. Albright reported he would complete 
 
             the portion of the form dealing with wages, hours of sick leave, 
 
             and dates of employment.
 
        
 
            Ms. Jane Ross testified she was the treatment program 
 
        manager at Glenwood. She reported she was claimant's supervisor. 
 
        She stated she never heard claimant complain of a backache after 
 
        February of 1986, nor did claimant ever request a change of 
 
        duties because of her back.
 
        
 
            Ms. Ross testified she had provided training concerning the 
 
        procedures for filing work related injuries. According to Ms. 
 
        Ross, any reports of work injuries were to be completed by the 
 
        injured employee within 24 hours of the incident.
 
        
 
            Ms. Ross revealed she was unclear what the procedures were 
 
        for filing reports where a cumulative trauma was alleged. She 
 
        reported she had never completed a form where a gradual injury 
 
        was alleged. Ms. Ross also testified claimant had received 
 
        numerous injury reports from employees under her supervision.
 
        
 
                            APPLICABLE LAW AND ANALYSIS
 
        
 
             Section 85.23 of the Iowa Code (1989) provides:
 
        
 
             Unless the employer or the employer's representative shall 
 
             have actual knowledge of the occurrence of an injury 
 
             received within ninety days from the date of the occurrence 
 
             of the injury, or unless the employee or someone on the 
 
             employee's behalf or a dependent or someone on the 
 
             dependent's behalf shall give notice thereof to the employer 
 
             within ninety days from the date of the occurrence of the 
 
             injury, no compensation shall be allowed.
 
             
 
             Failure to give notice is an affirmative defense which the 
 
             employer must prove by a preponderance of the evidence. DeLong 
 
             v. Highway Commission, 229 Iowa 700, 295 N.W. 91 (1940). Mefferd 
 
             v. Ed Miller & Sons, Inc., Thirty-Third Biennial Report of the 
 
             Industrial Commissioner 191 (Appeal Decision 1977).
 

 
        
 
 
 
 
 
        
 
             The time period contemplated in Iowa Code section 85.23 does 
 
             not begin to run until the claimant has knowledge of the nature 
 
             of his disability. Jacques v. Farmers Lbr. & Sup. Co., 242 Iowa 
 
             548, 47 N.W.2d 236, 239 (1951).
 
        
 
            An employer's actual knowledge of occurrence of injury must 
 
        include some information that the injury is work-connected in 
 
        order to satisfy the alternative notice of claim requirement. 
 
        Robinson v. Department of Transp., 296 N.W.2d 809, 812 (Iowa 
 
        1980). The interpretation in Robinson was confirmed in Doerfer 
 
        Division of CCA v. Nicol, 359 N.W.2d 428, 435 (Iowa 1984).
 
        
 
            A claimant's duty to give notice of injury arises when the 
 
        claimant should recognize the nature, seriousness and probable 
 
        compensable character of his injury or disease. The 
 
        reasonableness of claimant's conduct is to be judged in light of 
 
        his education and intelligence. Claimant must know enough about 
 
        the injury or disease to realize that it is both serious and 
 
        work-connected, but positive medical information is unnecessary 
 
        if he has information from any source which puts him on notice of 
 
        its probable compensability. Robinson, supra.
 
        
 
            The purpose of the 90 day notice or actual knowledge 
 
        requirement is to give the employer an opportunity to timely 
 
        investigate the acts of the injury. Id.: Knipe v. Skelgas Co., 
 
        229 Iowa 740, 748, 294 N.W. 880, 884 (1940); Hobbs v. Sioux City, 
 
        231 Iowa 860, 2 N.W.2d 275 (1942); Dillinger v. City of Sioux 
 
        City, 368 N.W.2d 176 (Iowa 1985). Koopmans v. Iowa Electric Light 
 
        and Power Company, (Appeal Decision dated December 30, 1981) on 
 
        appeal to Iowa Supreme Court).
 
        
 
            The word "compensable" in the workers' compensation notice 
 
        context is not used to connote legal knowledge that a claim is 
 
        within the workers' compensation act. Rather, "compensable" 
 
        means that the disabling injury was work connected. Quaker Oats 
 
        Co. v. Miller, 370 So.2d 1363, 1366 (Miss. 1979).
 
        
 
            Unless a statute that imposes a period of limitations 
 
        expressly authorizes exceptions for extenuating circumstances, it 
 
        must be applied uniformly even though the result may be harsh. 
 
        Burgess v. Great Plains Bag Corporation., 409 N.W.2d 676, 679 
 
        (Iowa 1987).
 
        
 
            A mistake of law is no more an excuse in connection with a 
 
        late compensation claim than anywhere else, unless expressly made 
 
        so by statute. 3 Larson, Workmen's Compensation Law, Section 
 
        78.47 at 15-334.
 
        
 
             The initial determination in the instant case, is whether 
 
             claimant has given notice of her claim to her employer under 
 
             section 85.23. The statute allows for two types of notice. The 
 
             first type of notice is actual knowledge of the occurrence of an 
 
             injury within 90 days. The second type of notice allowed by 
 
             statute is notice given to the employer by the injured employee 
 
             within 90 days from the date of the occurrence of the injury. 
 
             Claimant admits no formal written notice was tendered to 
 
             employer.
 
        
 
             Firstly, claimant alleges the discovery rule set out in 
 
             Dillinger is applicable here. According to claimant's argument, 
 
             defendant had actual knowledge of the occurrence of the alleged 
 
             injuries. In support of her allegation, claimant argues that 
 
             defendant was fully aware of claimant's back difficulties, and 
 
             that the back problems involved a lumbar disc syndrome. Hence, 
 
             according to claimant, this, in and of itself, is enough to find 
 

 
        
 
 
 
 
 
             actual knowledge of a work related occurrence. Such is not the 
 
             case. See: Robinson, 296 N.W.2d 809 (Iowa 1980). In Robinson, 
 
             the Iowa Supreme Court determined that "actual knowledge" is not 
 
             fulfilled unless the employer has not only knowledge of an injury 
 
             to a particular employee, but also information giving the 
 
             employer notice that the injury may be work-related. Supra, at 
 
             811. Here, the employer had no knowledge the injury was 
 
             work-related. The record does not substantiate a finding that 
 
             claimant verbally informed her employer the injury was work 
 
             related. All the record establishes is that claimant did 
 
             complain of back pain.
 
        
 
            Claimant also argues that notice was tendered to defendant 
 
        when claimant submitted her application for long-term disability 
 
        benefits. The application was processed through defendant's 
 
        personnel department and then forwarded onto the now Principal 
 
        Financial Group for administration. On one side of the 
 
        application form, claimant checked, "Did disability result from 
 
        employment? No." On the other side of the application claimant 
 
        checked, "Is condition due to injury or sickness arising out of 
 
        patient's employment? Yes." This does not establish there was 
 
        actual notice tendered to employer. At best there is a 
 
        discrepancy. Claimant has not proven that notice was tendered to 
 
        employer via the application form.
 
        
 
            Claimant also alleges that the premise which was set out in 
 
        the Robinson case is applicable to the case at hand. As a 
 
        consequence, under Robinson, claimant alleges she is not required 
 
        to tender the 90 day notice until she has had an opportunity to 
 
        recognize the nature, seriousness and probable compensable 
 
        character of her injury. Robinson, supra 812. According to this 
 
        argument, claimant asserts she gave notice to the employer once 
 
        she had "discovered" the compensability of her injury and that 
 
        this notice occurred when claimant's second attorney notified Mr. 
 
        Richard Andrews, director of workers' compensation, on November 
 
        24, 1987. Claimant maintains she did not understand the nature 
 
        of cumulative traumas and that consequently, she is not required 
 
        to tender notice until she has had a reasonable opportunity to 
 
        discover whether a particular injury is compensable. Such an 
 
        argument attempts to undermine the purpose of section 85.23, 
 
        which is to alert an employer there is a possible pending claim 
 
        and to give the employer an opportunity to investigate the claim 
 
        when the "facts are fresh." Under claimant's interpretation, 
 
        notice is not necessary until claimant has discovered the law. 
 
        If claimant's argument is followed, a claimant can delay giving 
 
        notice until years after the injury, simply because a claimant 
 
        does not know the legal remedies involved. Claimant's 
 
        interpretation of Robinson and section 85.23 is misplaced. 
 
        Robinson deals with recognizing the factual nature, seriousness 
 
        and probable compensable character of the injury. Robinson does 
 
        not afford a claimant an unlimited time to discover the law. 
 
        Robinson only affords claimant, given claimant's education and 
 
        background, an opportunity to discover whether factually an 
 
        injury is work-related.
 
        
 
             In the case at hand, claimant had the opportunity to 
 
             factually discover whether the injury was work related. Claimant 
 
             had over ten years experience as a supervisor. She had received 
 
             reports of work injuries from the employees she had supervised. 
 
             Training in the area of work injuries had been conducted by 
 
             defendant. Claimant had the factual and medical knowledge that 
 
             she had a back condition. As early as February of 1986, claimant 
 
             missed work because of her back condition. Claimant had medical 
 
             treatment. She missed work on three separate occasions because 
 
             of her back. On each occasion claimant missed more than three 
 
             days of work. Claimant had the requisite opportunity, given her 
 

 
        
 
 
 
 
 
             experience as a seasoned supervisor and given her background as a 
 
             high school graduate, to tender notice within the 90 day period 
 
             of each occasion where more than three days of work had been 
 
             missed.
 
        
 
            For all of the reasons stated above, it is the opinion of 
 
        the undersigned that claimant has not properly complied with 
 
        section 85.23 of the Iowa Code.
 
        
 
            It is also noted for the record that even if claimant had 
 
        complied with section 85.23, claimant's claims would have failed 
 
        because claimant could not prove the requisite causal connection. 
 
        Claimant had alleged two separate injury dates. In both 
 
        instances, claimant missed more than three days of work. Under 
 
        James E. Babe v. Greyhound Lines, Inc., file number 790714, 
 
        (Appeal Decision, February 29, 1988), these were specific 
 
        injuries. They were each separate and distinct from one another. 
 
        Actually, there were three instances where claimant missed more 
 
        than three days of work, although the June of 1986 date was not 
 
        alleged as an injury date. Nevertheless, Dr. Morrison never 
 
        determined whether the alleged February 12, 1986 injury date, or 
 
        the alleged October 10, 1986 injury date, caused any portion or 
 
        all of claimant's claimed condition. Consequently, claimant's 
 
        claim fails on the issue of causation as well.
 
        
 
                    FINDINGS OF FACT AND CONCLUSIONS OF LAW
 
        
 
             WHEREFORE, based on the evidence presented and the 
 
             principles of law previously cited, the following findings of 
 
             fact and conclusions of law are made:
 
        
 
            FINDING 1. Defendant did not have actual knowledge of 
 
        claimant's alleged injuries on February 12, 1986 and October 10, 
 
        1986.
 
        
 
            FINDING 2. Claimant did not tender notice of her alleged 
 
        injuries to defendant.
 
        
 
            CONCLUSION A. Claimant did not comply with section 85.23 of 
 
        the Iowa Code.
 
        
 
            FINDING 3. Claimant did not establish she sustained 
 
        temporary or permanent injuries to her back as a result of 
 
        alleged work injuries on February 12, 1986 and October 10, 1986.
 
        
 
            CONCLUSION B. Claimant has not established by a 
 
        preponderance of the evidence that she is entitled to any 
 
        benefits under the Iowa Workers' Compensation laws.
 
        
 
                                     ORDER
 
        
 
               THEREFORE, IT IS ORDERED:
 
             
 
             Claimant takes nothing from these proceedings.
 
             
 
             Defendants pay the costs of these proceedings pursuant to 
 
             Division of Industrial Services Rule 343-4.33.
 
        
 
        
 
            Signed and filed this 18th day of April, 1989.
 
        
 
        
 
        
 
        
 
        
 
                                     MICHELLE A. McGOVERN
 

 
        
 
 
 
 
 
                                     DEPUTY INDUSTRIAL COMMISSIONER
 
        
 
        Copies To:
 
        
 
        Mr. Michael Sciortino
 
        Attorney at Law
 
        221 5. Main
 
        Council Bluffs, Iowa 51501
 
        
 
        Ms. Eleanor E. Lynn
 
        Assistant Attorney General
 
        Hoover State Office Bldg.
 
        Des Moines, Iowa 50319
 
        
 
        
 
 
        
 
 
 
 
 
        
 
        
 
                                            1108; 1600
 
                                            Filed April 18, 1989
 
                                            MICHELLE A. McGOVERN
 
        
 
                    BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
        
 
        
 
        ROSE MARIE BARTLES,
 
        
 
            Claimant,
 
                                                       File Nos. 858689 
 
        & 858690
 
        vs.
 
                                                       A R B I T R A T I 
 
        O N
 
        GLENWOOD STATE HOSPITAL
 
        SCHOOL,                                        D E C I S I O N
 
        
 
             Employer,
 
             
 
        and
 
        
 
        STATE OF IOWA,
 
        
 
             Insurance Carrier,
 
             Defendant.
 
             
 
             
 
             
 
        1600 Notice
 
        
 
             Claimant failed to comply with section 85.23 when defendant 
 
             had no actual knowledge that a claimed back condition was alleged 
 
             to be a work related injury and where claimant failed to give 
 
             notice to defendant within 90 days of the two alleged injury 
 
             dates.
 
        
 
        1108
 
        
 
             Claimant failed to show a causal connection between the 
 
             claimed disability and the two alleged work related injuries.