2901
 
                           Filed May 29, 1991
 
                           DAVID RASEY
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            GERRY L. BAILEY,              :
 
                                          :
 
                 Claimant,                :         File Nos. 872775
 
                                          :                   872776
 
            vs.                           :                   872778
 
                                          :                   936530
 
            AALFS MANUFACTURING COMPANY,  :                   981393
 
                                          :
 
                 Employer,                :      A R B I T R A T I O N
 
                                          :
 
            and                           :         D E C I S I O N
 
                                          :
 
            THE HARTFORD and AETNA        :
 
            CASUALTY & SURETY COMPANY,    :
 
                                          :
 
                 Insurance Carriers,      :
 
                 Defendants.              :
 
            ____________________________________________________________
 
            
 
            2901
 
            Claimant was found to have sustained permanent injury to 
 
            right arm, but injury date was not any of four alleged by 
 
            claimant.  DIS was ordered to establish a new litigated file 
 
            and benefits were awarded thereunder.
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                           2901
 
                           Filed May 29, 1991
 
                           DAVID RASEY
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            GERRY L. BAILEY,              :
 
                                          :
 
                 Claimant,                :         File Nos. 872775
 
                                          :                   872776
 
            vs.                           :                   872778
 
                                          :                   936530
 
            AALFS MANUFACTURING COMPANY,  :                   981393
 
                                          :
 
                 Employer,                :      A R B I T R A T I O N
 
                                          :
 
            and                           :         D E C I S I O N
 
                                          :
 
            THE HARTFORD and AETNA        :
 
            CASUALTY & SURETY COMPANY,    :
 
                                          :
 
                 Insurance Carriers,      :
 
                 Defendants.              :
 
            ____________________________________________________________
 
            
 
            2901
 
            Claimant was found to have sustained permanent injury to 
 
            right arm, but injury date was not any of four alleged by 
 
            claimant.  DIS was ordered to establish a new litigated file 
 
            and benefits were awarded thereunder.
 
            
 
 
            
 
            
 
            
 
            
 
            
 
                      BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
            HOUSTON JOHNSON,    
 
                      
 
                 Claimant, 
 
                                             File Nos. 802915/872780 
 
            vs.       
 
                                                  A P P E A L
 
            AMERICAN CAN COMPANY,    
 
                                                D E C I S I O N
 
                 Employer, 
 
                 Self-Insured,  
 
                      
 
            and       
 
                      
 
            WAUSAU INSURANCE COMPANY,     
 
                      
 
                 Insurance Carrier,  
 
                 Defendants.    
 
            ____________________________________________________________
 
            
 
            The record, including the transcript of the hearing before 
 
            the deputy and all exhibits admitted into the record, has 
 
            been reviewed de novo on appeal.  The decision of the deputy 
 
            filed February 25, 1991 is affirmed and is adopted as the 
 
            final agency action in this case.
 
            The costs of the appeal, including the preparation of the 
 
            hearing transcript shall be shared equally by claimant and 
 
            defendant employer.
 
            Signed and filed this ____ day of September, 1992.
 
            
 
            
 
            
 
            
 
                                    ________________________________
 
                                            BYRON K. ORTON
 
                                       INDUSTRIAL COMMISSIONER
 
            
 
            Copies To:
 
            
 
            Mr. Steven C. Jayne
 
            Attorney at Law
 
            5835 Grand Ave., Ste 201
 
            Des Moines, Iowa 50312
 
            
 
            Mr. Harry W. Dahl, Sr.
 
            Attorney at Law
 
            974 73rd St., Ste 16
 
            Des Moines, Iowa 50312
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            
 
            Mr. Marvin E. Duckworth
 
            Attorney at Law
 
            2700 Grand Ave., Ste 111
 
            Des Moines, Iowa 50312
 
            
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                           9998
 
                                           Filed September 16, 1992
 
                                           Byron K. Orton
 
            
 
                    BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
            HOUSTON JOHNSON,    
 
                      
 
                 Claimant, 
 
                                            File Nos. 802915/872780 
 
            vs.       
 
                                                 A P P E A L
 
            AMERICAN CAN COMPANY,    
 
                                               D E C I S I O N
 
                 Employer, 
 
                 Self-Insured,  
 
                      
 
            and       
 
                      
 
            WAUSAU INSURANCE COMPANY,     
 
                      
 
                 Insurance Carrier,  
 
                 Defendants.    
 
            ____________________________________________________________
 
            
 
            9998
 
            
 
                 Summary affirmance of deputy's decision filed February 
 
            25, 1991.
 
            
 
 
            
 
            Page   1
 
            
 
            
 
            
 
            
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            HOUSTON JOHNSON,              :
 
                                          :         File Nos. 802915
 
                 Claimant,                :                   872780
 
                                          :
 
            vs.                           :      A R B I T R A T I O N
 
                                          :
 
            AMERICAN CAN COMPANY,         :              A N D
 
                                          :
 
                 Employer,                :          R E V I E W -
 
                 Self-Insured,            :
 
                                          :        R E O P E N I N G
 
            and                           :
 
                                          :         D E C I S I O N
 
            WAUSAU INSURANCE COMPANY,     :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ____________________________________________________________
 
            
 
                              statement of the case
 
            
 
                 This decision concerns two proceedings which have been 
 
            brought by Houston Johnson against American Can Company.  
 
            File number 802915 is a proceeding in review-reopening from 
 
            an agreement for settlement based upon an injury that 
 
            occurred on June 17, 1985.  File number 872780 is a 
 
            proceeding in arbitration based upon an alleged injury of 
 
            November 30, 1987.  The employer is insured by Wausau 
 
            Insurance Company in file number 802915, but is self-insured 
 
            is file number 872780.
 
            
 
                 The primary issues to be determined are whether 
 
            claimant sustained an injury on November 30, 1987 which 
 
            arose out of and in the course of his employment; 
 
            determination of claimant's entitlement to additional 
 
            compensation for healing period; determination of claimant's 
 
            entitlement to additional compensation for permanent 
 
            disability; determination of claimant's entitlement to 
 
            recover medical expenses; and, determination of the claim 
 
            for a penalty under the fourth paragraph of Code section 
 
            86.13.  Included issues for determination are whether there 
 
            has been a change of condition to permit review-reopening 
 
            and whether there is a causal relationship between any 
 
            alleged injury and the disability.
 
            
 
                 The case was heard and fully submitted at Des Moines, 
 
            Iowa on October 16, 1990.  The record consists of the 
 
            testimony of Houston Johnson, Mary Hazelton and Linda 
 
            Olson-King.  The record also consists of joint exhibits A 
 
            through H, J through P and R and claimant's exhibits 1 
 
            through 8.
 
            
 
                                 findings of fact
 
            
 
                 Having considered all the evidence received, together 
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            with the appearance and demeanor of the witnesses, the 
 
            following findings of fact are made.
 
            
 
                 Houston Johnson is a 41-year-old married man who has 
 
            lived at Des Moines, Iowa since 1968.  He grew up in a small 
 
            town in Mississippi where he went through the eleventh grade 
 
            in high school with grades of "C's" and "D's."  He has no 
 
            further formal education or military training.
 
            
 
                 Houston worked in a poultry dressing plant briefly 
 
            before coming to Iowa at age 18.  In Iowa, he performed 
 
            assembly line work, built custom mattresses, performed 
 
            packinghouse work for nearly ten years and then obtained 
 
            employment with American Can Company in approximately 1981.  
 
            At American Can, he worked as a rewind operator for 
 
            approximately four years and then became a bag machine 
 
            operator which was his principle position when he last 
 
            worked for the employer.  He sustained a back injury on June 
 
            17, 1985.
 
            
 
                 Houston has a long history of back problems going back 
 
            as far as 1974 when he injured his back and underwent 
 
            laminectomy surgery at the L4 level of his spine (exhibit G, 
 
            pages 24-28).  Following that injury, he was rated as having 
 
            an 11 percent permanent impairment (exhibit L, page 1).  
 
            Claimant had some emotional problems while recuperating from 
 
            that earlier injury.  Following the injury, he returned to 
 
            packinghouse work.  The record does not show that he had any 
 
            major continuing problems with his back between the time he 
 
            recuperated from that earlier injury and the 1985 injury.
 
            
 
                 On June 17, 1985, Houston was injured while working for 
 
            American Can as a bag machine operator.  The 1985 injury 
 
            produced a herniated lumbar disc at the L4-5 level of 
 
            claimant's spine.  He underwent a laminectomy surgery which 
 
            was performed by Des Moines orthopaedic surgeon Scott B. 
 
            Neff, D.O. (exhibit K, pages 3 and 6; exhibit O, pages 8 and 
 
            9).  On May 22, 1986, it was reported that claimant should 
 
            return to work (exhibit A, page 49).
 
            
 
                 Following recuperation from that surgery, Houston 
 
            returned to work at American Can as a bag machine operator.  
 
            The employer made accommodations including providing a chain 
 
            hoist to be used for lifting.  Dr. Neff and William R. 
 
            Boulden, M.D., provided restrictions on claimant's 
 
            activities as part of the return to work process.
 
            
 
                 Houston got along fairly well after the return to work.  
 
            He was not, however, kept entirely on the accommodated bag 
 
            machine operator job.  From time to time, he was assigned to 
 
            perform labor-type activities as part of the building and 
 
            yards crew (exhibit 8).  While performing those types of 
 
            activities, Houston violated the activity restrictions which 
 
            had been recommended by the doctors.
 
            
 
                 In early 1987, Houston began voicing complaints of 
 
            increased symptoms when he saw Drs. Neff and Boulden 
 
            (exhibit A, pages 35, 36, 42, 43 and 45).  After conducting 
 
            appropriate diagnostic tests, Drs. Neff and Boulden 
 
            concluded that claimant's increased symptoms were due to 
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            instability of his spine which could be improved through 
 
            fusion surgery (exhibit A, pages 35 and 36).
 
            
 
                 On December 2, 1987, Drs. Neff and Boulden performed 
 
            extensive surgery on claimant's spine, including fusion of 
 
            L3-S1 (exhibit G, pages 14 and 15).  Following the surgery, 
 
            it was initially felt that the fusion was healing solidly, 
 
            but it was eventually determined that the L3-4 level had not 
 
            healed.  Refusion surgery of the L3-4 level was performed by 
 
            Dr. Boulden on February 24, 1989 (exhibit G, pages 1-6; 
 
            exhibit O, pages 48 and 49).  After further recuperation, 
 
            physical therapy and work hardening, it was determined that 
 
            claimant had reached maximum medical improvement on 
 
            September 25, 1989 (exhibit A, page 64; exhibit F, page 7; 
 
            exhibit D, page 6).
 
            
 
                 Claimant had been evaluated by Thomas W. Bower, 
 
            licensed physical therapist, and through Workmed Midwest 
 
            under the direction of Kevin F. Smith, M.D.  Both found him 
 
            to be suitable for medium work.  Workmed Midwest felt he 
 
            could perform occasional lifting of not more than 41 pounds, 
 
            frequent lifting of not more than 20 pounds and constant 
 
            lifting of not more than 10 pounds (exhibit E, pages 2-8).  
 
            Mr. Bower and Dr. Boulden felt that claimant could 
 
            infrequently lift as much as 75 pounds and could lift 35 
 
            pounds frequently (exhibit D, page 6; exhibit F, pages 7, 12 
 
            and 13).  Dr. Boulden felt that claimant was capable of 
 
            gainful employment (exhibit A, pages 1-4; exhibit D, page 
 
            12).
 
            
 
                 Following recovery from the 1985 injury, Dr. Neff 
 
            assigned claimant a 27 percent impairment rating of the body 
 
            as a whole.  He attributed 16 percent to the 1985 injury and 
 
            surgery with 11 percent being attributed to the 1974 injury 
 
            and surgery (exhibit A, pages 48 and 54; exhibit F, page 25; 
 
            exhibit O, pages 11 and 12).
 
            
 
                 Dr. Boulden rated claimant recently as having a 25-27 
 
            percent permanent impairment of the body as a whole (exhibit 
 
            D, pages 13 and 14).  He felt that the impairment had not 
 
            changed significantly since the 1987 surgery had been 
 
            performed.  Dr. Boulden has also rated claimant as having a 
 
            30 percent permanent impairment, of which 15 percent had 
 
            preexisted the fusion (exhibit A, pages 7 and 8).
 
            
 
                 The American Can Company plant was viewed by therapist 
 
            Bower.  It was determined that the bag machine operator 
 
            position and several others would be acceptable for claimant 
 
            to perform (exhibit F, pages 1 and 4).
 
            
 
                 While claimant was recuperating in 1988, he became 
 
            clinically depressed due to the pain disorder.  The 
 
            depressive symptoms were determined to be a result of the 
 
            work injury (exhibit A, pages 24 and 25; exhibit P).
 
            
 
                 Drs. Neff and Boulden agreed that claimant's current 
 
            spinal difficulties have their underlying basis in the 1974 
 
            and 1985 injuries which weakened his spine (exhibit A, pages 
 
            33 and 34; exhibit D, page 11).  Both also agree that the 
 
            subsequent lifting and employment activities in which the 
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
            claimant engaged following his return to work in 1986 
 
            materially contributed to the increase in the claimant's 
 
            symptoms which in turn necessitated the fusion surgery and 
 
            resulted in his current state of disability (exhibit A, page 
 
            27; exhibit D, pages 15 and 16; exhibit O, pages 19-21, 
 
            28-30, 41-48, 52 and 57).
 
            
 
                 Following recuperation from the 1985 injury, an 
 
            agreement for settlement was entered into wherein the 
 
            claimant was determined to have sustained a 31 percent 
 
            permanent partial industrial disability.  At the time that 
 
            agreement for settlement was made and approved, the claimant 
 
            had returned to employment with the employer and was 
 
            performing modified duties on a full-time basis.  It is 
 
            found that, at the time of the settlement, claimant's 
 
            medical condition was stable and was not expected to worsen 
 
            appreciably in the reasonably foreseeable future.  It is 
 
            further found that the settlement was based upon the 
 
            circumstances that the claimant was employed on a full-time 
 
            basis and would be physically capable of remaining employed 
 
            on a full-time basis with American Can Company, the employer 
 
            who had made accommodations in order to permit his return to 
 
            work.  It is further found that the rapid worsening, the 
 
            need for surgery and the employer's failure to provide work 
 
            to the claimant are all circumstances which have occurred 
 
            since the settlement was entered into and which were not 
 
            anticipated or expected to occur at the time the settlement 
 
            was made.
 
            
 
                 It is found that the opinions expressed by Drs. Neff 
 
            and Boulden regarding the cause of the claimant's current 
 
            disability are correct.  In particular, it is found that the 
 
            1974 and 1985 injuries created a condition of weakness and 
 
            susceptibility to injury.  It is further found that the 
 
            activities which the claimant performed in his employment 
 
            when he was taken off the bag machine operator job were a 
 
            substantial factor in aggravating that preexisting condition 
 
            in causing the increase in his symptoms which in turn 
 
            produced the need for the fusion surgery.
 
            
 
                 It is further found that there is no material evidence 
 
            in the record of this case which can be relied upon to 
 
            attribute the claimant's post-1986 increase in symptoms, 
 
            fusion surgery and current state of disability to any event 
 
            or series of events other than those which occurred in his 
 
            employment with American Can Company.  Prior to the 1985 
 
            injury, he had been able to perform physical work with 
 
            minimal restrictions.  Subsequent to the 1985 injury, he 
 
            became more restricted.  The claimant's physical abilities 
 
            are found to be essentially the same at the present time as 
 
            they were when he returned to work in 1986, but the employer 
 
            has not demonstrated any willingness to allow him to resume 
 
            work in one of the positions which therapist Bower and Dr. 
 
            Boulden have indicated were within the claimant's 
 
            capabilities.
 
            
 
                 Houston Johnson is a 41-year-old man with limited 
 
            education and no demonstrated aptitude for educational 
 
            pursuits.  His work history is limited to physical labor.  
 
            As indicated by Dr. Neff, his back is ruined (exhibit A, 
 

 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
            pages 15 and 16).  While it has been determined that he is 
 
            physically capable of medium work, it is certain that he 
 
            will experience extreme difficulty in obtaining replacement 
 
            employment.  His history of work place injuries and multiple 
 
            back surgeries will likely weigh at least as heavily against 
 
            him with other potential employers as it has with American 
 
            Can.  He will probably have difficulty finding any 
 
            replacement employment and if he is eventually successful, 
 
            the level of earnings will probably be substantially below 
 
            that which he has experienced with American Can Company.  
 
            There is, however, no evidence in the record to indicate 
 
            that the claimant has made any significant search for 
 
            replacement employment.  American Can Company continues to 
 
            carry him in its records as an employee, although he appears 
 
            to be in an inactive status.  The attempt to institute 
 
            vocational assistance through Linda Olson-King was initiated 
 
            too late to be of any significance.  She agreed with 
 
            therapist Bower that there were some positions with the 
 
            employer which meet the claimant's physical restrictions.  
 
            She stated that he did not have enough seniority to bid into 
 
            those positions.  The record contains no indication of which 
 
            positions those might be, of the amount of seniority 
 
            required to bid into them or of any efforts to obtain a 
 
            mutual agreement to avoid the normal seniority and bidding 
 
            requirements.  It is noted that any collective bargaining 
 
            agreement is the result of a mutual agreement.  If an 
 
            employer chooses to enter into a contract which does not 
 
            permit it to return its injured employees to the work place, 
 
            the employer is bound by the consequences of that decision.
 
            
 
                                conclusions of law
 
            
 
                 The liability issue in this case is not whether the 
 
            employer is responsible, because it clearly is responsible.  
 
            The only issue is whether the benefits should be paid by the 
 
            employer directly based upon a post-April 1, 1987 injury or 
 
            whether the benefits are payable by the employer's former 
 
            insurance carrier, Wausau Insurance Company.
 
            
 
                 It has been previously found that the 1974 and 1985 
 
            injuries produced a condition of weakness which made the 
 
            claimant more susceptible to injury than what he otherwise 
 
            would have been.  His need for further surgery and current 
 
            state of disability did not simply result from the 1985 
 
            injury.  It was only after the claimant was required to 
 
            perform activities which violated his physical activity 
 
            restrictions that he became more symptomatic and required 
 
            additional medical treatment.  The condition is therefore 
 
            one which falls into the category of aggravation of a 
 
            preexisting condition.
 
            
 
                 Aggravation of a preexisting condition is one form of 
 
            compensable injury.  While a claimant is not entitled to 
 
            compensation for the results of a preexisting injury or 
 
            disease, the mere existence at the time of a subsequent 
 
            injury is not a defense.  Rose v. John Deere Ottumwa Works, 
 
            247 Iowa 900, 908, 76 N.W.2d 756, 760-61 (1956).  If the 
 
            claimant had a preexisting condition or disability that is 
 

 
            
 
            Page   6
 
            
 
            
 
            
 
            
 
            aggravated, accelerated, worsened or lighted up so that it 
 
            results in disability, claimant is entitled to recover.  
 
            Nicks v. Davenport Produce Co., 254 Iowa 130, 115 N.W.2d 
 
            812, 815 (1962).
 
            
 
                 This case therefore presents a new injury of November 
 
            30, 1987.  The cumulative trauma rule is employed in 
 
            arriving at the injury date.  McKeever Custom Cabinets v. 
 
            Smith, 379 N.W.2d 368 (Iowa 1985).  November 30, 1987 is the 
 
            date that the continuous disability commenced.  Since this 
 
            has been determined to be a new injury, the proper file 
 
            under which to proceed is number 872780.  Since there has 
 
            been a new injury, the review-reopening approach is not 
 
            appropriate.  For review-reopening to be appropriate, the 
 
            causation should be the 1985 injury without any substantial 
 
            new injury or aggravation.  Such is not the situation in 
 
            this case.  It is therefore concluded that American Can 
 
            Company, as a self-insured employer, is responsible for 
 
            payment rather than Wausau Insurance Company.
 
            
 
                 Since the matter is determined to be a new injury in 
 
            the nature of an aggravation of a preexisting condition, the 
 
            rate of compensation is $309.56 per week as stipulated, 
 
            rather than $262.46 per week as was applicable for the 1985 
 
            injury.
 
            
 
                 The extent of the healing period from the injury is 
 
            established by stipulation to run from December 8, 1987 
 
            through September 25, 1989.
 
            
 
                 The medical expenses are not in substantial dispute, 
 
            other than as to the identify of the responsible payor.  
 
            They are as follows:
 
            
 
                 Iowa Lutheran Hospital             $ 9,643.04
 
                 Des Moines Anesthesiologists           713.00
 
                 Central Iowa Pathologists              110.00
 
                 Total                              $10,466.04
 
            
 
                 If claimant has an impairment to the body as a whole, 
 
            an industrial disability has been sustained.  Industrial 
 
            disability was defined in Diederich v. Tri-City Railway Co., 
 
            219 Iowa 587, 593, 258 N.W.2d 899, 902 (1935) as follows: 
 
            "It is therefore plain that the legislature intended the 
 
            term `disability' to mean `industrial disability' or loss of 
 
            earning capacity and not a mere `functional disability' to 
 
            be computed in the terms of percentages of the total 
 
            physical and mental ability of a normal man."
 
            
 
                 Functional impairment is an element to be considered in 
 
            determining industrial disability which is the reduction of 
 
            earning capacity, but consideration must also be given to 
 
            the injured employee's age, education, qualifications, 
 
            experience and inability to engage in employment for which 
 
            he is fitted.  Olson v. Goodyear Service Stores, 255 Iowa 
 
            1112, 1121, 125 N.W.2d 251, 257 (1963).
 
            
 
                 Industrial disability or loss of earning capacity is a 
 
            concept that is quite similar to impairment of earning 
 
            capacity, an element of damage in a tort case.  Impairment 
 

 
            
 
            Page   7
 
            
 
            
 
            
 
            
 
            of physical capacity creates an inference of lessened 
 
            earning capacity.  The basic element to be determined, 
 
            however, is the reduction in value of the general earning 
 
            capacity of the person, rather than the loss of wages or 
 
            earnings in a specific occupation.  Post-injury earnings 
 
            create a presumption of earning capacity.  The earnings are 
 
            not synonymous with earning capacity and the presumption may 
 
            be rebutted by evidence showing the earnings to be an 
 
            unreliable indicator.  Carradus v. Lange, 203 N.W.2d 565 
 
            (Iowa 1973); Holmquist v. Volkswagon of America, Inc., 261 
 
            N.W.2d 516 (Iowa App. 1977) A.L.R.3d 143; Michael v. 
 
            Harrison County, Thirty-fourth Biennial Report of the 
 
            Industrial Commissioner 218 (1979); 2 Larson Workmen's 
 
            Compensation Law, sections 57.21 and 57.31.
 
            
 
                 In view of the claimant's medical condition of being 
 
            capable of medium work and the lack of any showing that such 
 
            work is not available to him, an award of permanent total 
 
            disability compensation is not appropriate.  His level of 
 
            disability is, however, obviously quite high since even the 
 
            employer, in whose service he was injured, has declined to 
 
            make work available to him.  Sunbeam Corp. v. Bates, 271 
 
            Ark. 385, 609 S.W.2d 102 (App. 1980); Army & Air Force Exch. 
 
            Serv. v. Neuman, 278 F. Supp. 865 (W. D. La. 1967); 2 Larson 
 
            Workmen's Compensation Law, section 57.61(b).
 
            
 
                 Different individuals have differing earning 
 
            capacities.  The earning capacity of any individual is 
 
            likely to fluctuate somewhat throughout the individual's 
 
            lifetime due to any combination of a number of factors.  
 
            Physical abilities change, educational levels change, 
 
            experience and expertise change.  When determining loss of 
 
            earning capacity for purposes of making a workers' 
 
            compensation award, the loss is measured from the earning 
 
            capacity that existed immediately prior to the injury, 
 
            rather than the earning capacity which might have existed at 
 
            some previous point in time.  In this case, the claimant's 
 
            earning capacity had clearly been reduced by the 1974 and 
 
            1985 injuries.  The amount by which it had been reduced from 
 
            what it might have otherwise been cannot be mathematically 
 
            determined through some formula which subtracts prior 
 
            physical impairments or disability awards from 100 percent 
 
            since to do so would assume that earning capacity never 
 
            changes, other than as a result of injuries.  As previously 
 
            indicated, it can change based upon aging, education, 
 
            increased experience, or even matters such as career field 
 
            changes.  The concept of apportionment of industrial 
 
            disability is not particularly practical as is indicated by 
 
            the fact that no apportionment has been made in the recent 
 
            Iowa Supreme Court cases which have addressed the issue.  
 
            Bearce v. FMC Corp., ___ N.W.2d ___ (Iowa 1991); Varied 
 
            Enterprises, Inc. v. Sumner, 353 N.W.2d 407 (Iowa 1984).  
 
            The goal is to compensate for the loss which was actually 
 
            sustained.  That is best achieved by measuring the loss 
 
            directly against the earning capacity that existed at the 
 
            time of injury.  The entitlement to recover for loss of 
 
            earning capacity is measured by the loss that was 
 

 
            
 
            Page   8
 
            
 
            
 
            
 
            
 
            proximately caused by the work place injury.
 
            
 
                 It is therefore determined that Houston Johnson 
 
            experienced a 50 percent reduction in his earning capacity 
 
            as a result of the November 30, 1987 injury.  This entitles 
 
            him to recover 250 weeks of permanent partial disability 
 
            compensation under the provisions of Code section 
 
            85.34(2)(u).
 
            
 
                 In this case, it was abundantly clear that American Can 
 
            Company was the employer responsible for payment of weekly 
 
            compensation to Houston Johnson and also for payment of his 
 
            medical expenses and the resulting permanent partial 
 
            disability.  The only issue, as previously noted, was 
 
            whether the employer was responsible for paying it directly 
 
            as a self-insured employer, or whether the benefits were 
 
            payable by its former compensation carrier, Wausau Insurance 
 
            Companies.  The claim was not fairly debatable.  The law 
 
            places the liability for payment on the employer.  Iowa Code 
 
            sections 85.1 and 85.3.  The requirement of sections 87.1 
 
            and 87.11 for insurance or qualifying as a self-insured 
 
            exist to ensure solvency.  It does not alter the underlying 
 
            liability.  It has been previously held that a dispute 
 
            between which of two subsequent insurance carriers is 
 
            responsible for payment does not justify the failure to pay 
 
            a claim.  Denning v. Hyman Freightways, Inc., file number 
 
            751584 (Arb. Decn., May 23, 1989).  The "fairly debatable" 
 
            test which has been adopted by the agency applies to the 
 
            merits of the claim, not to any dispute between insurance 
 
            carriers.  Kiner v. Reliance Ins. Co., 463 N.W.2d 9 (Iowa 
 
            1990); Seydel v. Univ. of Iowa Physical Plant, file number 
 
            818849 (App. Decn., November 1, 1989); Dolan v. Aid Ins. 
 
            Co., 431 N.W.2d 790 (Iowa 1988); Anderson v. Continental 
 
            Ins. Co., 271 N.W.2d 368 (Wisc. 1978).  The claim for a 
 
            penalty in this case is compelling.  It is concluded that 
 
            any failure to make timely payments would clearly be 
 
            unreasonable.
 
            
 
                 The amount of the penalty to be awarded is limited to 
 
            50 percent of whatever amount was unreasonably delayed or 
 
            denied.  The dispute between Wausau, the former carrier, and 
 
            the employer, as a self-insured, is determined to have been 
 
            bona fide and in good faith.  That does not, however, excuse 
 
            the failure to make timely payments.  Neither party was 
 
            compelled to make use of Code section 85.21 in order to 
 
            avoid the potential for a penalty, but such was clearly 
 
            available as a means of avoiding the risk of being assessed 
 
            a penalty without giving up the ability to be reimbursed 
 
            should the other be ultimately held responsible.  It would 
 
            not have been unreasonable to make payments at the rate of 
 
            $262.46, the rate which would have been applicable if Wausau 
 
            were responsible under a review-reopening theory.
 
            
 
                 Claimant was being paid weekly benefits from Wausau 
 
            Insurance Company based upon the settlement entered into for 
 
            the 1985 injury with the last payment thereof having been 
 
            made on January 4, 1989.  Shortly after the termination of 
 
            benefits by Wausau, the self-insured employer, acting 
 

 
            
 
            Page   9
 
            
 
            
 
            
 
            
 
            through its adjusting company Gallagher Bassett, commenced 
 
            payments at the rate of $262.46 per week.  Those payments 
 
            have continued up to the time of hearing.  It is therefore 
 
            apparent that there has not been any point in time, other 
 
            than for a few weeks when benefits were delayed in early 
 
            1989 when the payor changed, that the claimant did not 
 
            receive weekly compensation benefits.  If Wausau had been 
 
            held liable, its payments, though termed permanent partial 
 
            disability at the time they were paid, would have satisfied 
 
            its obligation for additional healing period compensation.  
 
            It would, of course, then have been responsible for 
 
            additional permanent partial disability compensation.  
 
            Wilson Food Corp. v. Cherry, 315 N.W.2d 756 (Iowa 1982).
 
            
 
                 Claimant would not have been entitled to recover both 
 
            permanent partial disability and healing period compensation 
 
            at the same time based upon the same injury.  Under all the 
 
            circumstances present in this case, it is concluded that the 
 
            claimant is not entitled to recover a penalty since there 
 
            was no substantial amount of time when he was without weekly 
 
            benefits and it was not unreasonable to consider the claim 
 
            to be based upon the 1985 injury.
 
            
 
                 While there is no record in the file of any order of 
 
            the agency being entered pursuant to Code section 85.21, it 
 
            is specifically concluded that the payment of weekly 
 
            benefits voluntarily, whether or not it is pursuant to 
 
            section 85.21, does not, under any circumstances, constitute 
 
            an admission of liability.  Iowa Code section 86.13(1); Iowa 
 
            Code section 85.26(2).
 
            
 
                 From the time claimant went off work in 1987, he was 
 
            entitled to recover healing period compensation from the 
 
            self-insured employer based upon the 1987 injury and also 
 
            permanent partial disability compensation from Wausau 
 
            Insurance Company based upon the 1985 injury.  The healing 
 
            period payable by the self-insured employer replaces the 
 
            wages which claimant would have earned had he not been 
 
            injured in 1987.  If he had not been injured, he would have 
 
            received wages and permanent partial disability compensation  
 
            from the 1985 injury at the same time.  There is no 
 
            inconsistency which prevents an injured employee from 
 
            receiving healing period compensation for a subsequent 
 
            injury at the same time as he is receiving permanent partial 
 
            disability compensation based upon a prior injury.
 
            
 
                                      order
 
            
 
                 IT IS THEREFORE ORDERED that claimant receive nothing 
 
            under his review-reopening claim based upon the 1985 injury 
 
            in file number 802915.  All of claimant's recovery awarded 
 
            in this decision is based upon the November 30, 1987 injury 
 
            in file number 872780.
 
            
 
                 IT IS FURTHER ORDERED that American Can Company, the 
 
            self-insured employer, pay Houston Johnson ninety-four (94) 
 
            weeks of compensation for healing period at the stipulated 
 
            rate of three hundred nine and 56/100 dollars ($309.56) per 
 
            week payable commencing on December 8, 1987 as stipulated in 
 
            the prehearing report.
 

 
            
 
            Page  10
 
            
 
            
 
            
 
            
 
            
 
                 IT IS FURTHER ORDERED that American Can Company, the 
 
            self-insured employer, pay Houston Johnson two hundred fifty 
 
            (250) weeks of compensation for permanent partial disability 
 
            at the stipulated rate of three hundred nine and 56/100 
 
            dollars ($309.56) per week payable commencing September 26, 
 
            1989.
 
            
 
                 IT IS FURTHER ORDERED that the self-insured employer is 
 
            granted credit for the ninety-seven (97) weeks of 
 
            compensation which it paid at the rate of two hundred 
 
            sixty-two and 46/100 dollars ($262.46) per week.  The 
 
            difference in the rates which amounts to forty-seven and 
 
            10/100 dollars ($47.10) per week, shall be paid to the 
 
            claimant in a lump sum together with interest pursuant to 
 
            Iowa Code section 85.30 computed from the date each payment 
 
            came due until the date of actual payment to the claimant.
 
            
 
                 IT IS FURTHER ORDERED that American Can Company, the 
 
            self-insured employer, pay the following medical expenses:
 
            
 
                 Iowa Lutheran Hospital             $ 9,643.04
 
                 Des Moines Anesthesiologists           713.00
 
                 Central Iowa Pathologists              110.00
 
                 Total                              $10,466.04
 
            
 
                 IT IS FURTHER ORDERED that American Can Company, the 
 
            self-insured employer, not receive credit against the 
 
            healing period or permanent partial disability awards made 
 
            in this decision based upon the permanent partial disability 
 
            compensation which was paid to the claimant by Wausau 
 
            Insurance Company during the healing period in satisfaction 
 
            of the prior settlement.
 
            
 
                 IT IS FURTHER ORDERED that the costs of this action are 
 
            assessed against American Can Company, the self-insured 
 
            employer, pursuant to rule 343 IAC 4.33.
 
            
 
                 IT IS FURTHER ORDERED that American Can Company, the 
 
            self-insured employer, file claim activity reports as 
 
            requested by this agency pursuant to rule 343 IAC 3.1.
 
            
 
                 Signed and filed this ______ day of ____________, 1991.
 
            
 
                 
 
            
 
                 
 
                 
 
                                          ______________________________
 
                                          MICHAEL G. TRIER
 
                                          DEPUTY INDUSTRIAL COMMISSIONER
 
            
 
            Copies To:
 
            
 
            Mr. Steven C. Jayne
 
            Attorney at Law
 
            5835 Grand Avenue
 
            Suite 201
 
            Des Moines, Iowa  50312
 
            
 

 
            
 
            Page  11
 
            
 
            
 
            
 
            
 
            Mr. Harry W. Dahl
 
            Attorney at Law
 
            974 73rd Street
 
            Suite 16
 
            Des Moines, Iowa  50312
 
            
 
            Mr. Marvin E. Duckworth
 
            Attorney at Law
 
            Suite 111, Terrace Center
 
            2700 Grand Avenue
 
            Des Moines, Iowa  50312
 
            
 
 
            
 
            Page   1
 
            
 
            
 
            
 
            
 
                           1702; 1802; 1803; 1806
 
                           1807; 2206; 2901; 2904
 
                           4000.2
 
                           Filed February 25, 1991
 
                           MICHAEL G. TRIER
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            HOUSTON JOHNSON,              :
 
                                          :         File Nos. 802915
 
                 Claimant,                :                   872780
 
                                          :
 
            vs.                           :      A R B I T R A T I O N
 
                                          :
 
            AMERICAN CAN COMPANY,         :              A N D
 
                                          :
 
                 Employer,                :          R E V I E W -
 
                 Self-Insured,            :
 
                                          :        R E O P E N I N G
 
            and                           :
 
                                          :         D E C I S I O N
 
            WAUSAU INSURANCE COMPANY,     :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ____________________________________________________________
 
            
 
            2206; 2901; 2904
 
            
 
                 It was held that the proceeding was properly one in 
 
            arbitration, rather than review-reopening, where the 
 
            additional medical treatment, surgery and disability were 
 
            attributed to aggravation of a preexisting condition which 
 
            was caused by a prior work injury with the same employer, 
 
            rather than the mere outgrowth or sequela of the original 
 
            injury, in which case a review-reopening proceeding would 
 
            have been appropriate.  Between the two injuries, the 
 
            employer ceased being insured and became self-insured.  
 
            Self-insured employer held liable for all benefits.
 
            
 
            4000.2
 
            
 
                 Where claimant received permanent partial disability 
 
            compensation from the former insurance carrier while he was 
 
            off work and then benefits were commenced by the 
 
            self-insured employer, it was held that no penalty was 
 
            warranted since the employee had been paid compensation 
 
            while off work.  The issue of whether the condition was a 
 
            new injury or sequela of the prior injury was bona fide.  If 
 
            the case had been determined to properly be one in 
 
            review-reopening, the payments paid would have satisfied the 
 
            healing period obligation.  Where impairment rating and 
 
            activity restrictions were unchanged following the most 
 
            recent surgery, the failure to voluntarily pay permanent 
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            partial disability was held not to be unreasonable.
 
            
 
            1702; 1803; 1806; 1807
 
            
 
                 Forty-one-year-old laborer who had not completed high 
 
            school awarded 50 percent permanent partial disability where 
 
            employer declined to make work available as had been done 
 
            previously.  It was held that permanent partial disability 
 
            is based upon earning capacity as it existed immediately 
 
            prior to injury.  It is not to be computed by some formula 
 
            in which the percentage from prior awards is deducted from 
 
            100 percent.  The decision discusses how individual earning 
 
            capacity fluctuates throughout an individual's lifetime.
 
            
 
            1802; 1803
 
            An injured worker cannot, based upon a single injury, 
 
            receive both healing period and permanent partial disability 
 
            at the same time.  There is, however, no prohibition against 
 
            receiving healing period from a recent injury while also 
 
            receiving permanent partial disability from a prior injury.
 
            
 
 
         
 
 
 
 
 
 
 
 
 
 
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         DARRELL E. RUZICKA,
 
         
 
              Claimant,                               File No. 872795
 
         
 
         vs.                                       A R B I T R A T I O N
 
                                                 
 
         STEVE HENDERSHOT TRUCKING,                   D E C I S I O N
 
         INC.,
 
         
 
              Employer,                                  F I L E D
 
         
 
         and                                            NOV 30 1989
 
         
 
         ALLIED GROUP INSURANCE CO.,                INDUSTRIAL SERVICES
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
                                   INTRODUCTION
 
         
 
              This is a proceeding in arbitration brought by Darrell E. 
 
         Ruzicka against Steve Hendershot Trucking, Inc., and Allied Group 
 
         Insurance Company.  The case was heard and fully submitted on 
 
         October 18, 1989 at Waterloo, Iowa.  The record in the proceeding 
 
         consists of testimony from Darrell E. Ruzicka and defendants' 
 
         exhibit A.
 
         
 
                                      ISSUES
 
         
 
              Claimant alleges that he injured his left hand by getting a 
 
         foreign body imbedded in it while performing the duties of his 
 
         employment.  The issues to be determined are whether claimant 
 
         sustained an injury which arose out of and in the course of his 
 
         employment, determination of claimant's entitlement to 
 
         compensation for temporary total disability, healing period, and 
 
         permanent partial disability, and determination of claimant's 
 
         entitlement to section 85.27 benefits.  The controlling issue in 
 
         the case is whether the problem with claimant's left hand was 
 
         proximately caused by his employment.
 
         
 
                             SUMMARY OF THE EVIDENCE
 
         
 
              The following is a summary of evidence presented in this 
 
         case.  Only the evidence most pertinent to this decision is 
 
         discussed, but all of the evidence received at the hearing was 
 
         considered in arriving at this decision.  Conclusions about what 
 
         the evidence showed are inevitable with any summarization.  The 
 
         conclusions in the following summary should be considered to be 
 
         preliminary findings of fact.
 
         
 
              Darrell E. Ruzicka was employed by Steve Hendershot 
 
         Trucking, Inc., from February, 1985 until late 1988.  His primary 
 
         duty was driving a livestock truck in which he hauled both hogs 
 
         and cattle. Part of his duties included cleaning out the truck as 
 
         well as loading and unloading the livestock.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              Claimant was unable to identify any particular incident in 
 
         which any foreign body had entered his left hand, but he stated 
 
         that he began to notice a sore spot on the palm of his left hand, 
 
         near his thumb, during the fall of 1987.  Claimant stated that at 
 
         that time he and his wife lived on an acreage where they had 
 
         horses and chickens.  The landlord had cattle which claimant fed. 
 
         Claimant also stated that the home in which he lived had a 
 
         woodburning furnace and that he cut all the wood for it.
 
         
 
              Claimant consulted Noel Robitaille, M.D., on January 13, 
 
         1988 for the sore.  The records indicate that the area was 
 
         incised, but that little was obtained from it.  Claimant was 
 
         started on antibiotics and directed to soak the hand.  On 
 
         February 5, 1988, claimant was again seen and then referred to P. 
 
         Thomas McGarvey, M.D.  On February 9, 1988, Dr. McGarvey made an 
 
         incision in the sore, but did not find a foreign body.  Claimant 
 
         was continued on antibiotic medication (exhibit A, page 1).
 
         
 
              Claimant's care was transferred to James J. Mueller, M.D.  A 
 
         third incision of the infected area was performed.  Dr. Mueller 
 
         reported that a foreign body had been present in claimant's hand, 
 
         although the body itself was not identified (exhibit A, page 18). 
 
         The surgical pathology report found the tissues removed from 
 
         claimant's hand to demonstrate acute and chronic inflammation and 
 
         a foreign body granulomatous reaction (exhibit A part 2, page 4).
 
         
 
              Claimant complained that since the surgery, he has a 
 
         restricted range of motion of the left thumb.
 
         
 
              Claimant expressed the belief that hog hairs to which he was 
 
         exposed at work had entered his hand and caused the problem in 
 
         his left hand.
 
         
 
              Claimant related that he was taken off work February 5, 1988 
 
         and released to return to work March 22, 1988.
 
         
 
                           APPLICABLE LAW AND ANALYSIS
 
         
 
              Claimant has the burden of proving by a preponderance of the 
 
         evidence that he received an injury which arose out of and in the 
 
         course of his employment.  McDowell v. Town of Clarksville, 241 
 
         N.W.2d 904 (Iowa 1976); Musselman v. Central Telephone Co., 261 
 
         Iowa 352, 154 N.W.2d 128 (1967).
 
         
 
              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 "arising out of" requirement is met by showing that a 
 
         causal relationship exists between the employment and the injury. 
 
         Sheerin v. Holin Co., 380 N.W.2d 415, 417 (Iowa 1986).
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              "An injury occurs in the course of the employment when it is 
 
         within the period of employment at a place the employee may 
 
         reasonably be, and while he is doing his work or something 
 
         incidental to it."  Cedar Rapids Comm. Sch. Dist. v. Cady, 278 
 
         N.W.2d 298 (Iowa 1979), McClure v. Union et al. Counties, 188 
 
         N.W.2d 283 (Iowa 1971); Musselman v. Central Telephone Co., 261 
 
         Iowa 352, 154 N.W.2d 128 (1967).
 
         
 
              It is certainly possible, as claimant believes, that a hog 
 
         hair or some other foreign body became lodged in claimant's hand 
 
         while he was performing activities which were part of his 
 
         employment duties.  Claimant could not, however, identify any 
 
         particular incident in which that had occurred.  In view of the 
 
         nature of claimant's work, such an incident would likely be so 
 
         apparently minor at the time it occurred that it could quite 
 
         likely go unnoticed until some subsequent time when a problem 
 
         developed.  It is also possible, however, that a foreign body 
 
         could have entered claimant's hand under similar circumstances 
 
         while claimant was feeding his landlord's cattle, cutting wood, 
 
         or in any other number of ways which would be limited only by the 
 
         imagination.  Minor punctures, splinters, scrapes and abrasions 
 
         are not uncommon occurrences and normally are shortly forgotten 
 
         unless a problem develops.
 
         
 
              Claimant's case is based on the premise that the foreign 
 
         body was a hog hair.  There is no evidence in the record which 
 
         supports that premise.  The foreign body could have been a hog 
 
         hair, a horse hair, or a hair from a cow.  All three of those 
 
         types of livestock can have coarse, bristly hair, although hog 
 
         hair is generally more coarse than that from cattle or horses.  
 
         The foreign body could have been a splinter.  The simple fact of 
 
         the matter is that there is no way of determining what the 
 
         foreign body actually was.  It could have been a fiber from a 
 
         rope or a bristle from a brush or broom.  It could have been any 
 
         one of a multitude of things.
 
         
 
              Since claimant cannot demonstrate, beyond mere surmise, 
 
         either that the foreign body became lodged in his hand while he 
 
         was performing the duties of his employment or that the foreign 
 
         body was a substance to which he was exposed exclusively, or even 
 
         predominantly, through his employment, his claim must fail.  It 
 
         is therefore determined that Darrell E. Ruzicka has failed to 
 
         prove by a preponderance of the evidence that he sustained an 
 
         injury to his left hand which arose out of and in the course of 
 
         his employment with Steve Hendershot Trucking, Inc.
 
         
 
                                 FINDINGS OF FACT
 
         
 
              1.  The evidence introduced in this case fails to show that 
 
         it is probable, as opposed to being merely possible, that any 
 
         foreign body became lodged in claimant's left hand while he was 
 
         performing any activity related to his employment with Steve 
 
         Hendershot Trucking, Inc.
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
              2.  Claimant has failed to prove that whatever foreign body 
 
         was actually lodged in his left hand was something to which he 
 
         was exposed as a result of his employment with Steve Hendershot 
 
         Trucking, Inc.
 
         
 
                                CONCLUSIONS OF LAW
 
         
 
              1.  This agency has jurisdiction of the subject matter of 
 
         this proceeding and its parties.
 
              
 
              2.  Claimant has failed to prove by a preponderance of the 
 
         evidence that he sustained an injury which arose out of and in 
 
         the course of his employment.
 
              
 
              3.  Claimant is not entitled to any recovery in this 
 
         proceeding.
 
         
 
                                      ORDER
 
         
 
              IT IS THEREFORE ORDERED that claimant take nothing from this 
 
         proceeding.
 
         
 
              IT IS FURTHER ORDERED that the costs of this action are 
 
         assessed against claimant pursuant to Division of Industrial 
 
         Services Rule 343-4.33.
 
         
 
              Signed and filed this 30th day of November, 1989.
 
         
 
         
 
         
 
         
 
         
 
         
 
                                            MICHAEL G. TRIER
 
                                            DEPUTY INDUSTRIAL COMMISSIONER
 
         
 
         Copies To:
 
         
 
         Mr. W. H. Gilliam
 
         Attorney at Law
 
         722 Water Street
 
         Second Floor
 
         Waterloo, Iowa  50703-4785
 
         
 
         Mr. E. J. Giovannetti
 
         Attorney at Law
 
         Suite 111, Terrace Center
 
         2700 Grand Avenue
 
         Des Moines, Iowa  50312
 
         
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
 
                                            
 
 
 
 
 
 
 
 
 
 
 
                                            51402.30
 
                                            Filed November 30, 1989
 
                                            MICHAEL G. TRIER
 
         
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         DARRELL E. RUZICKA,
 
         
 
              Claimant,
 
         
 
         vs.
 
                                                 File No. 872795
 
         STEVE HENDERSHOT TRUCKING,
 
         INC.,                                 A R B I T R A T I 0 N
 
         
 
              Employer,                           D E C I S I 0 N
 
         
 
         and
 
         
 
         ALLIED GROUP INSURANCE CO.,
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
         51402.30
 
         
 
              Claimant had a foreign body in his left hand.  Claimant 
 
         could not identify any particular incident in which a foreign 
 
         body had entered his hand.  In the course of medical treatment, 
 
         the foreign body could not be identified as being a substance to 
 
         which claimant was exposed through his employment.  Claimant 
 
         failed to prove his injury arose out of and in the course of his 
 
         employment.
 
         
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
 
            
 
            Page   1
 
            
 
            
 
            
 
            
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            CARL KEITH KESSLER,           :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :       File No. 872798
 
            WATERTOWER PAINT & REPAIR CO. :
 
            INC.,                         :
 
                                          :     A R B I T R A T I O N
 
                 Employer,                :
 
                                          :       D E C I S I O N
 
            and                           :
 
                                          :
 
            TRAVELERS INSURANCE and       :
 
            WAUSAU INSURANCE COMPANIES,   :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
                              statement of the case
 
            
 
                 This is a proceeding in arbitration brought by Carl 
 
            Keith Kessler, claimant, against Watertower Paint and Repair 
 
            Co., Inc., employer, and Travelers Insurance Company and 
 
            Wausau Insurance Companies, insurance carriers, to recover 
 
            benefits under the Iowa Workers' Compensation Act as a 
 
            result of an injury sustained on June 12, 1986.  This matter 
 
            came on for hearing before the undersigned deputy industrial 
 
            commissioner on April 16, 1991, in Mason City, Iowa.  The 
 
            matter was considered fully submitted at the close of the 
 
            hearing.  The record in this case consists of the testimony 
 
            of claimant, Gerald Kessler, Marcella Kessler, and Oris 
 
            Moen; claimant's exhibits 1-12A; and defendants' exhibits 
 
            13-23.
 
            
 
                                      issues
 
            
 
                 Pursuant to the prehearing report and order submitted 
 
            and approved on April 16, 1991, the following issues are 
 
            presented for resolution:
 
            
 
                 1.  Whether claimant sustained an injury on June 12, 
 
            1986 which arose out of and in the course of employment with 
 
            employer;
 
            
 
                 2.  Whether claimant's alleged injury is the cause of 
 
            temporary and permanent disability and, if so, the extent 
 
            thereof; and
 
            
 
                 3.  The appropriate rate of compensation.
 
            
 
                     
 
            
 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            findings of fact
 
            
 
                 The undersigned has carefully considered all the 
 
            testimony given at the hearing, the arguments made, and the 
 
            evidence contained in the list of exhibits, and makes the 
 
            following findings:
 
            
 
                 Claimant was born on January 7, 1955, and completed the 
 
            twelfth grade of school in May 1973.  Claimant served in the 
 
            United States Navy for two years as a boiler technician.  He 
 
            completed a nine month course in welding at Northeast Iowa 
 
            Technical School in 1980.  He worked as a tree trimmer for 
 
            Kessler's Tree Service and as a construction laborer for F. 
 
            A. Moser and Associates.  In addition, he worked as a heat 
 
            treater, wheel braider and bridge construction laborer 
 
            before going to work for Watertower Paint & Repair Co. 
 
            sometime in 1981-1982.  At Watertower, he did steel work, 
 
            welding, cutting and painting.
 
            
 
                 A review of the pertinent medical evidence reveals that 
 
            claimant was admitted to St. Paul Ramsey Medical Center on 
 
            June 12, 1986 for treatment of burns over 13 percent of his 
 
            body.  On that day, he was working inside a water tower 
 
            cleaning a vat of organic solvent.  Apparently, he slipped 
 
            and fell and became disoriented.  Gerald Kessler, claimant's 
 
            brother and foreman at the time, testified that it took 
 
            about three hours to get him out of the tank.  The hospital 
 
            report indicates that the solvent ingredients were 29 
 
            percent ethylene, 42 percent methylene chloride and 18 
 
            percent perchlorephylene.  Claimant was transferred to the 
 
            burn unit.  A major portion of the back of his right leg, 
 
            both buttocks and a small portion of the postural left leg 
 
            had been burned.  He was started on oxygen and high fluid 
 
            volumes to maintain good diuresis and to avoid any possible 
 
            nephrotoxicity due to fumes.  He complained of nausea and 
 
            liver function tests were obtained which were normal except 
 
            for an elevated transaminase.  Approximately one week after 
 
            the injury, claimant began complaining of lower abdominal 
 
            pain and began passing bloody mucous through the rectum.  He 
 
            underwent proctosigmoidoscopy which was normal except for an 
 
            area of edematous, hemorrhagic mucosa at 15 cm. from the 
 
            anal verge.  A barium enema was obtained the next day and 
 
            this showed segmental sigmoid colitis which was an isolated 
 
            area.  At the time of discharge on June 23, 1986, the rectal 
 
            bleeding had resolved spontaneously and his burns were 
 
            healing well (Exhibit 3).
 
            
 
                 Claimant was seen by David H. Ahrenholz, M.D., 
 
            assistant director of the burn unit at Ramsey on July 7, 
 
            1986 for follow-up evaluation.  Progress notes state that 
 
            "these areas have healed and have virtually no trace of 
 
            hypertropic scar.  The patient however is quite weak and 
 
            irritable at home.  His diarrhea remains 
 
            intermittent....However based on the healing of his wounds 
 
            it appears he could be released to light duty work."
 
            
 
                 On August 6, 1986, claimant underwent a biopsy of the 
 
            sigmoid colon which was negative for malignancy and/or 
 
            inflammation (Exs. 4-6).  On April 8, 1987, a biopsy of 
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            claimant's colon was taken and revealed colonic mucosa 
 
            showing periglandular edema (Ex. 5).
 
            
 
                 On March 17, 1988, claimant was seen by Steven Fisher, 
 
            M.D., at the request of Wausau Insurance Companies for a 
 
            permanent disability evaluation.  After reviewing the 
 
            claimant's medical history and conducting a physical 
 
            examination, Dr. Fisher concluded as follows:
 
            
 
                 I think that this man has no disability as it 
 
                 relates to the skin and burns of the skin itself.  
 
                 I feel that he has a significant problem with his 
 
                 colon and which was at least exacerbated by (if 
 
                 not caused) by his accident and should be rated 
 
                 according to 8MCAR1.9021C Class 3.  He does have 
 
                 objective evidence of colonic disease and has 
 
                 moderate to severe exacerbations with disturbances 
 
                 of bowel habit.  He has periodic, sometimes 
 
                 continual pain.  He has restrictions of his 
 
                 activities and needs to always be fairly near a 
 
                 bathroom.  He needs to take sulfa drugs on a 
 
                 continuous basis.
 
            
 
                    Therefore, I feel that Class 3 most clearly 
 
                 classifies his problem and this class has attached 
 
                 to it a 30% whole person disability.
 
            
 
            (Ex. 3)
 
            
 
                 On April 21, 1988, claimant was admitted to the 
 
            emergency room at Central Community Hospital for evaluation 
 
            of bloody stools.  A barium enema was performed which was 
 
            negative (Ex. 6).
 
            
 
                 The record is silent as to any medical care or 
 
            treatment after April 21, 1988 until April 17, 1990, when 
 
            claimant's attorney referred him to W. H. Verduyn, M.D., 
 
            medical director of Central Nervous System Management & 
 
            Rehabilitation, for evaluation.  After reviewing claimant's 
 
            medical history and noting his complaints, Dr. Verduyn 
 
            performed a physical examination focusing primarily on 
 
            claimant's extremities, and noted normal findings.  He gave 
 
            no neurological or psychiatric diagnoses and recommended a 
 
            neuropsych evaluation to delineate some of his complaints 
 
            (Ex. 7).
 
            
 
                 On February 27, 1991, claimant presented to the Center 
 
            For Digestive Diseases at the University of Iowa Medical 
 
            Center at the request of K. E. Zichal, claimant's treating 
 
            physician.  Claimant related a history of intermittent 
 
            abdominal cramping and diarrhea and periodic bloody bowel 
 
            movements.  He stated that at this time he has approximately 
 
            one bloody bowel movement every one to two months.  He also 
 
            stated that his symptoms were much
 
            
 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
            worse after 1987 and 1988 and subsequently improved to the 
 
            present state.  Gary Varilek, M.D., reported as follows:
 
            
 
                 Based on his last evaluation in January, 1990, 
 
                 there is no evidence of ongoing colitis.  His 
 
                 symptoms are not consistent with an active 
 
                 colitis.  The episodes of blood are more 
 
                 suggestive of a hemorrhoidal etiology.  The 
 
                 cramping that he experiences may reflect a 
 
                 motility disturbance which would easily be 
 
                 exacerbated by emotional distress.  The etiology 
 
                 of this motility disturbance may be idiopathic 
 
                 meaning that there is no known etiology or could 
 
                 potentially be related to the solvent injury but 
 
                 there is no way to prove or disprove this.
 
            
 
            (Ex. 8)
 
            
 
                 In conclusion, Dr. Varilek stated that:  "His symptoms 
 
            are minimal and should not effect his ability to work.  
 
            Therefore, I feel that his GI symptoms are not significant 
 
            enough to warrant assigning a level of disability." (Ex. 8)
 
            
 
                 Claimant testified to numerous medical problems since 
 
            the accident on June 12, 1986.  In addition to bowel 
 
            problems, he alleged a short term memory loss and an 
 
            inability to concentrate.  His wife and brother corroborated 
 
            his testimony as to these complaints.  He testified to a low 
 
            tolerance to paint fumes and getting a rash over his body 
 
            any time he is around paint.  He stated he returned to work 
 
            at Watertower in July 1986 doing light duty work.  He 
 
            avoided working around paint, solvents, chemicals or dust 
 
            and spent the rest of the summer driving equipment.  There 
 
            was the usual fall layoff and he applied for and received 
 
            unemployment compensation benefits.  In the spring of 1987, 
 
            he returned to work for Watertower and worked with his 
 
            brother's crew doing steel and repair work.  Most of the 
 
            work he performed was on the ground and accessible to a 
 
            bathroom which was located in a nearby trailer.  Thereafter, 
 
            the work cycle was repeated, and in the spring of 1989, the 
 
            president of the company made him a job foreman.
 
            
 
                 Oris Moen, vice president of Watertower, testified at 
 
            the hearing.  He stated that claimant has been a good 
 
            employee with the company and was promoted to foreman on the 
 
            basis of merit.  He stated that when claimant was hurt in 
 
            June 1986, he was making $9.40 per hour and now makes $12.60 
 
            per hour as a foreman.  He testified that the company made 
 
            no accommodations for claimant because of any medical 
 
            problems.
 
            
 
                                conclusions of law
 
            
 
                 Claimant has the burden of proving by a preponderance 
 
            of the evidence that he received an injury on June 12, 1986 
 
            which arose out of and in the course of his employment. 
 
            McDowell v. Town of Clarksville, 241 N.W.2d 904 (Iowa 
 
            1976); Musselman v. Central Telephone Co., 261 Iowa 352, 154 
 
            N.W.2d 128 (1967). 
 
            
 

 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
                 An employee is entitled to compensation for any and all 
 
            personal injuries which arise out of and in the course of 
 
            the employment.  Section 85.3(1).
 
            
 
                 The injury must both arise out of and be in the course 
 
            of the employment.  Crowe v. DeSoto Consol. Sch. Dist., 246 
 
            Iowa 402, 68 N.W.2d 63 (1955) and cases cited at pp. 405-406 
 
            of the Iowa Report.  See also Sister Mary Benedict v. St. 
 
            Mary's Corp., 255 Iowa 847, 124 N.W.2d 548 (l963) 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.
 
            
 
                 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.
 
            
 
                 "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; Musselman, 261 Iowa 352, 154 N.W.2d 128.
 
            
 
                 The supreme court of Iowa in Almquist v. Shenandoah 
 
            Nurseries, 218 Iowa 724, 731-32, 254 N.W. 35, 38 (1934) 
 
            discussed the definition of personal injury in workers' 
 
            compensation cases as follows:
 
            
 
                 
 
            
 
                 While a personal injury does not include an occupa
 
                 tional disease under the Workmen's Compensation 
 
                 Act, yet an injury to the health may be a personal 
 
                 injury.  [Citations omitted.]  Likewise a personal 
 
                 injury includes a disease resulting from an 
 
                 injury....The result of changes in the human body 
 
                 incident to the general processes of nature do not 
 
                 amount to a personal injury.  This must follow, 
 
                 even though such natural change may come about 
 
                 because the life has been devoted to labor and 
 
                 hard work.  Such result of those natural changes 
 
                 does not constitute a personal injury even though 
 
                 the same brings about impairment of health or the 
 
                 total or partial incapacity of the functions of 
 
                 the human body. 
 
            
 
                    ....
 
                 
 
                 A personal injury, contemplated by the Workmen's 
 
                 Compensation Law, obviously means an injury to the 
 
                 body, the impairment of health, or a disease, not 
 
                 excluded by the act, which comes about, not through the 
 
                 natural building up and tearing down of the human body, 
 
                 but because of a traumatic or other hurt or damage to 
 
                 the health or body of an employee.  [Citations 
 
                 omitted.]  The injury to the human body here 
 
                 contemplated must be something, whether an accident or 
 

 
            
 
            Page   6
 
            
 
            
 
            
 
            
 
                 not, that acts extraneously to the natural processes of 
 
                 nature, and thereby impairs the health, overcomes, 
 
                 injures, interrupts, or destroys some function of the 
 
                 body, or otherwise damages or injures a part or all of 
 
                 the body.
 
            
 
                 Claimant has established a work injury.  The record 
 
            clearly demonstrates that on June 12, 1986, claimant was at 
 
            work cleaning a vat of organic solvent when he slipped and 
 
            fell and became disoriented.  When he was taken outside of 
 
            the water tank, his clothes were stripped and it was noted 
 
            that he had major burns on his right leg, both buttocks and 
 
            a small portion of his left leg.  He was treated at St. Paul 
 
            Ramsey Medical Center in St. Paul, Minnesota.  Therefore, 
 
            claimant has demonstrated by a preponderance of the evidence 
 
            that he sustained an injury on June 12, 1986 which arose out 
 
            of and in the course of his employment with Watertower Paint 
 
            & Repair Co.
 
            
 
                 The next issue to be resolved is whether a causal 
 
            relationship exists between claimant's work injury and his 
 
            current complaints.
 
            
 
                 The claimant has the burden of proving by a 
 
            preponderance of the evidence that the injury of June 12, 
 
            1986 is causally related to the disability on which he now 
 
            bases his claim.  Bodish v. Fischer, Inc., 257 Iowa 516, 133 
 
            N.W.2d 867 (1965).  Lindahl v. L. O. Boggs, 236 Iowa 296, 18 
 
            N.W.2d 607 (1945).  A possibility is insufficient; a 
 
            probability is necessary.  Burt v. John Deere Waterloo 
 
            Tractor Works, 247 Iowa 691, 73 N.W.2d 732 (1955).  The 
 
            question of causal connection is essentially within the 
 
            domain of expert testimony.  Bradshaw v. Iowa Methodist 
 
            Hospital, 251 Iowa 375, 101 N.W.2d 167 (1960). 
 
            
 
                 However, expert medical evidence must be considered 
 
            with all other evidence introduced bearing on the causal 
 
            connection.  Burt, 247 Iowa 691, 73 N.W.2d 732.  The opinion 
 
            of experts need not be couched in definite, positive or 
 
            unequivocal language.  Sondag v. Ferris Hardware, 220 N.W.2d 
 
            903 (Iowa 1974).  However, the expert opinion may be 
 
            accepted or rejected, in whole or in part, by the trier of 
 
            fact.  Id. at 907.  Further, the weight to be given to such 
 
            an opinion is for the finder of fact, and that may be 
 
            affected by the completeness of the premise given the expert 
 
            and other surrounding circumstances.  Bodish, 257 Iowa 516, 
 
            133 N.W.2d 867.  See also Musselman, 261 Iowa 352, 154 
 
            N.W.2d 128.
 
            
 
                 As to claimant's skin burns, the medical evidence 
 
            clearly demonstrates that such were caused by the injury on 
 
            June 12, 1986.  Claimant was off work from June 12, 1986 
 
            through July 16, 1986 recuperating.  He returned to 
 
            full-time duty with Watertower on July 17, 1986.
 
            
 
                 Regarding claimant's gastrointestinal problems, Dr. 
 
            Fisher reported that "I feel that he has a significant 
 
            problem with his colon and which at least exacerbated by (if 
 
            not caused) by his accident...."  Based on claimant's 
 
            complaints, Dr. Fisher stated he has restrictions of his 
 

 
            
 
            Page   7
 
            
 
            
 
            
 
            
 
            activities but did not enumerate or specify the restrictions 
 
            (Ex. 3).  Dr. Verduyn did not relate claimant's 
 
            gastrointestinal problems to his injury of June 12, 1986 
 
            (Ex. 7).  Dr. Varilek, a gastroenterologist, at the 
 
            University of Iowa Medical Center, stated that "Mr. Kessler 
 
            developed a rather acute colitis during his hospitalization.  
 
            This colitis may have been infectious, or may have been 
 
            secondary to the solvent."  He did not relate claimant's 
 
            colitis or cramping specifically to the injury of June 12, 
 
            1986.  
 
            
 
                 Considering the evidence presented, the undersigned con
 
            cludes that the greater weight of the evidence does not 
 
            establish a causal connection between claimant's work injury 
 
            of June 12, 1986 and his gastrointestinal problems.  While 
 
            physicians who have treated and/or examined claimant state 
 
            that it is possible that such problems were caused by the 
 
            injury, claimant must prove by a preponderance of the 
 
            evidence a causal connection between the injury and the 
 
            disability on which he now bases his claim.  This requires 
 
            expert medical opinion.  A possibility is insufficient, a 
 
            probability is necessary.  Dr. Fisher, without explanation, 
 
            reported that claimant's colon problem was at least exacer
 
            bated by (if not caused) by his accident.  In so concluding, 
 
            he gave him a 30 percent whole person disability impairment 
 
            rating.  Since it is found that claimant's gastrointestinal 
 
            problem is not causally related to his injury, this rating 
 
            is not entitled to significant weight and consideration.  
 
            Dr. Varilek, a gastroenterologist, found claimant's symptoms 
 
            to be so minimal and insignificant as to not warrant 
 
            assigning a level of disability.  Because of his expertise 
 
            in dealing with such problems, Dr. Varilek's assessment is 
 
            accorded more weight and consideration.
 
            
 
                 As to his complaints of short-term memory loss and 
 
            other psychological symptoms, claimant has produced no 
 
            expert testimony or medical evidence in this regard.  Dr. 
 
            Verduyn, in listing five diagnoses is his report of April 
 
            17, 1990, only restated claimant's complaints.  He made no 
 
            psychological diagnoses of his own and recommended a 
 
            neuropsych evaluation which, according to claimant, was 
 
            never performed.  Therefore, claimant has not demonstrated 
 
            by a preponderance of the evidence that his short-term 
 
            memory loss or other emotional symptoms are causally related 
 
            to his injury of June 12, 1986.
 
            
 
                 Claimant requests reimbursement for a medical 
 
            evaluation under Iowa Code section 85.39.
 
            
 
                 Iowa Code section 85.39 provides, in part:
 
            
 
                    If an evaluation of permanent disability has 
 
                 been made by a physician retained by the employer 
 
                 and the employee believes this evaluation to be 
 
                 too low, the employee shall, upon application to 
 
                 the commissioner and upon delivery of a copy of 
 
                 the application to the employer and its insurance 
 
                 carrier, be reimbursed by the employer the 
 
                 reasonable fee for a subsequent examination by a 
 
                 physician of the employee's own choice, and 
 

 
            
 
            Page   8
 
            
 
            
 
            
 
            
 
                 reasonably necessary transportation expenses 
 
                 incurred for the examination.  The physician 
 
                 chosen by the employee has the right to confer 
 
                 with and obtain from the employer-retained 
 
                 physician sufficient history of the injury to make 
 
                 a proper examination.
 
            
 
                 Claimant is entitled to be reimbursed $450 for Dr. 
 
            Verduyn's examination and reasonable necessary 
 
            transportation expenses incurred for the examination.
 
            
 
                 The final issue for resolution is claimant's rate of 
 
            compensation.  There is no dispute that claimant worked 11 
 
            weeks prior to his injury on June 12, 1986 and his gross 
 
            income during that time was $6,009.50.  At issue is whether 
 
            claimant's gross wages should be divided by 11 or 13 weeks.  
 
            If 11 weeks, the parties stipulate to a rate of $335.79; 
 
            and, if 13 weeks, the parties stipulate to a rate of 
 
            $291.75.
 
            
 
                 Claimant's work at Watertower & Repair Co., Inc., is a 
 
            seasonal job.  Under Iowa Code section 85.36(9), in 
 
            occupations which are exclusively seasonal, weekly earnings 
 
            shall be taken to be one-fiftieth of the total earnings 
 
            which the employee has earned from all occupations during 
 
            the twelve calendar months immediately preceding the injury.  
 
            In the absence of this information, Iowa Code section 
 
            85.36(6) controls.  Section 85.36(6) provides that weekly 
 
            earnings shall be computed by dividing by thirteen the 
 
            earnings, not including overtime or premium pay, earned in 
 
            the last completed period of thirteen consecutive calendar 
 
            weeks immediately preceding the injury.  In this case, 
 
            claimant worked eleven weeks prior to his injury.  Iowa Code 
 
            section 85.36(7) states that:
 
            
 
                    In the case of an employee who has been in the 
 
                 employ of an employer less than thirteen calendar 
 
                 weeks immediately preceding the injury, the 
 
                 employee's weekly earnings shall be computed under 
 
                 subsection 6, taking the earnings, not including 
 
                 overtime or premium pay, for such purposes to be 
 
                 the amount the employee would have earned had the 
 
                 employee been so employed by the employer the full 
 
                 thirteen calendar weeks immediately preceding the 
 
                 injury and had worked, when work was available to 
 
                 other employees in a similar occupation.
 
            
 
                 Claimant's gross wages would usually be divided by 
 
            thirteen weeks, however, in this case, claimant only had 
 
            eleven weeks of earnings prior to his injury.  His earnings 
 
            are demonstrative of what he would have earned had he been 
 
            employed a full thirteen weeks prior to the injury.  
 
            Therefore, claimant's gross wages of $6,009.50 should be 
 
            divided by the eleven weeks immediately preceding the 
 
            injury.
 
            
 
                 In conclusion, the undersigned finds that the claimant 
 
            is entitled to temporary total disability from June 12, 1986 
 
            through July 16, 1986, at the stipulated rate of $335.79 and 
 
            defendants are entitled to a credit for benefits paid in the 
 

 
            
 
            Page   9
 
            
 
            
 
            
 
            
 
            amount of $1,504.80.
 
            
 
                                      order
 
            
 
                 THEREFORE, it is ordered:
 
            
 
                 That defendants pay to claimant five (5) weeks of 
 
            temporary total disability benefits at the stipulated rate 
 
            of three hundred thirty-five and 79/100 dollars ($335.79) 
 
            per week for the period from June 12, 1986 through July 16, 
 
            1986.
 
            
 
                 That defendants pay four hundred fifty dollars ($450) 
 
            for an independent medical examination conducted by Dr. 
 
            Verduyn in April 1990 and for mileage expenses incurred for 
 
            the examination.
 
            
 
                 That defendants receive credit for benefits previously 
 
            paid in the amount of one thousand five hundred four and 
 
            80/100 dollars ($1,504.80).
 
            
 
                 That defendants pay all costs pursuant to rule 343 IAC 
 
            4.33.
 
            
 
                 That defendants pay accrued amounts in a lump sum.
 
            
 
                 That defendants pay interest pursuant to Iowa Code 
 
            section 85.30.
 
            
 
                 That defendants file claim activity reports as required 
 
            by the agency.
 
            
 
                 Signed and filed this ____ day of May, 1991.
 
            
 
            
 
                                          ______________________________
 
                                          JEAN M. INGRASSIA
 
                                          DEPUTY INDUSTRIAL COMMISSIONER
 
            
 
            Copies to:
 
            
 
            Mr Michael J Coyle
 
            Attorney at Law
 
            200 Security Bldg
 
            Dubuque IA 52001
 
            
 
            Mr C Bradley Price
 
            Mr Mark A Wilson
 
            Attorneys at Law
 
            30 4th St  NW
 
            P O Box 1953
 
            Mason City IA 50401
 
            
 
            
 
                 
 
            
 
 
         
 
 
 
 
 
                   5-1108; 1801; 3002
 
                   Filed May 6, 1991
 
                   Jean M. Ingrassia
 
         
 
                     before the iowa industrial commissioner
 
         ____________________________________________________________
 
                                       :
 
         CARL KEITH KESSLER,           :
 
                                       :
 
              Claimant,                :
 
                                       :
 
         vs.                           :
 
                                       :       File No. 872798
 
         WATERTOWER PAINT & REPAIR CO. :
 
         INC.,                         :
 
                                       :     A R B I T R A T I O N
 
              Employer,                :
 
                                       :       D E C I S I O N
 
         and                           :
 
                                       :
 
         TRAVELERS INSURANCE and       :
 
         WAUSAU INSURANCE COMPANIES,   :
 
                                       :
 
              Insurance Carrier,       :
 
              Defendants.              :
 
         ___________________________________________________________
 
         
 
         5-1108; 1801
 
         Claimant was cleaning a vat of organic solvents inside a water 
 
         tower and fell and incurred burns over 13 percent of his body.  
 
         He was hospitalized and treated in the burn unit from June 12, 
 
         1986 through June 23, 1986.  On July 7, 1986, he was released for 
 
         light duty work with no disability to the skin and burns of the 
 
         skin.
 
         Claimant developed intermittent abdominal cramping, diarrhea, 
 
         periodic bloody bowel movements and memory problems which he 
 
         alleges are causally related to his injury on June 12, 1986.  No 
 
         physician who treated and/or examined claimant related his 
 
         gastrointestinal or memory problems to the work injury.
 
         Claimant awarded five weeks of temporary total disability 
 
         benefits.
 
         
 
         3002
 
         Parties dispute calculations of weekly benefit rate.  Claimant is 
 
         a seasonal employee.  Parties did not provide evidence of 
 
         claimant's total earnings during the twelve calendar months 
 
         immediately preceding the injury as required by section 85.36(9).
 
         Therefore, pursuant to sections 85.36(6) and 85.36(7), claimant's 
 
         eleven weeks of earnings immediately preceding his injury are 
 
         demonstrative of what he would have earned had he been employed a 
 
         full thirteen weeks prior to the injury and his gross earnings 
 
         should be divided by eleven rather than thirteen weeks.