Page   1
 
            
 
            
 
            
 
            
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            HAROLD HENNIGAR,              :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :      File No. 876371
 
            GREEN ACRES EXPRESS, INC.,    :
 
                                          :  A R B I T R A T I O N
 
                 Employer,                :
 
                                          :      D E C I S I O N
 
            and                           :
 
                                          :
 
            LIBERTY MUTUAL INS. CO.,      :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
                              statement of the case
 
            
 
                 This is a proceeding in arbitration brought by Harold 
 
            Hennigar against Green Acres Express, his former employer, 
 
            and Liberty Mutual Insurance Company based upon an injury 
 
            that occurred on February 16, 1988.  The extent of any 
 
            entitlement to temporary total disability or healing period 
 
            is disputed as is the extent of any permanent disability.  
 
            The issues also include assessment of costs as shown in the 
 
            attachment to the prehearing report.  
 
            
 
                 The case was heard and fully submitted on October 1, 
 
            1992.  The evidence consists of testimony from Harold 
 
            Hennigar and Marianne Hennigar.  The record also contains 
 
            joint exhibits 1 through 16, claimant's exhibit 1 and 
 
            defendants' exhibit A.  
 
            
 
                                 findings of fact
 
            
 
                 Having considered all the evidence received, together 
 
            with the appearance and demeanor of the witnesses, the 
 
            following findings of fact are made:
 
            
 
                 Harold Hennigar is a 59-year-old married man who 
 
            dropped out of school during the tenth grade.  Most of his 
 
            life's employment has been truck driving.
 
            
 
                 Harold has had severe cardiopulmonary problems.  He 
 
            underwent coronary bypass surgery in 1977(joint exhibits 8 & 
 
            9).  In January 1987 Harold injured his back.  The injury 
 
            was diagnosed as a myofascial strain and resolved by the end 
 
            of 1987 (jt. ex. 2).  In 1983 he underwent thoracic outlet 
 
            surgery.  Robert J. Foley, M.D., is claimant's long-term 
 
            family physician.  
 
            
 
                 Harold was employed by Pulley Freight Lines when he 
 
            underwent bypass surgery in 1977.  After the 1983 thoracic 
 
            outlet surgery, however, Pulley refused to take him back to 
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            work.  Harold then obtained work, again as a truck driver, 
 
            for Central Express.  He held that job until 1985 when he 
 
            was again hospitalized with heart problems.  When he 
 
            returned to work he was placed in the office and assigned 
 
            local driving duties.  His 1987 back injury occurred while 
 
            moving furniture in the office at Central Express.  Harold 
 
            was not allowed to return to work with Central Express 
 
            following recovery from the 1987 injury.  Harold obtained 
 
            work with Green Acres Express, Inc. in 1987.  He worked as 
 
            an over-the-road driver.  Typically he would be driving for 
 
            two weeks, home for two days and then back on the road for 
 
            two weeks.  He had no real health problems until February 
 
            16, 1988, when he fell from the back of this trailer while 
 
            he was at Salt Lake City, Utah.  Initially the pain was not 
 
            severe and he continued performing his duties.  On the 
 
            following day the pain became more severe and he was 
 
            hospitalized at Eastern Iowa Regional Medical Center.  While 
 
            hospitalized he was diagnosed with kidney failure and other 
 
            evidence of internal infection.  The precise cause of the 
 
            infection and kidney failure was never determined with 
 
            certainty.  In any event, he recovered and was allowed to 
 
            return to Des Moines after having been hospitalized for 
 
            approximately three weeks.  His back complaints had resolved 
 
            during the hospitalization (ex. 13).  
 
            
 
                 After returning to Des Moines, Harold began treating 
 
            with his family physician, Robert J. Foley, M.D.  Eventually 
 
            he was referred to Orthopedic Surgeon William R. Boulden, 
 
            M.D.  Dr. Boulden diagnosed claimant as having degenerative 
 
            disc disease and spinal stenosis as well as neurogenic 
 
            claudication, a condition also referred to as pseudo 
 
            claudication.  Epidural steroid injections were administered 
 
            successfully (jt. ex. 6, pages 1-6).  
 
            
 
                 Dr. Boulden recommended that Harold not return to work 
 
            as a truck driver because he felt that it would be a major 
 
            problem in view of the condition of Harold's back.  He 
 
            recommended that Harold apply for social security disability 
 
            benefits.  Dr. Boulden stated that driving trucks would 
 
            aggravate the underlying condition that had caused Harold's 
 
            spinal stenosis.  That underlying condition was degenerative 
 
            disc disease.  Dr. Boulden noted that many studies have 
 
            shown a very high incidence of spinal degenerative 
 
            conditions in truck drivers.  He stated that it is a job 
 
            that over time will render the spine more diseased than one 
 
            would expect with normal daily activities (jt. ex. 6, pp. 
 
            8-10; ex. 7, p. 1).
 
            
 
                 Dr. Boulden had initially felt that Harold's back 
 
            complaints had resulted from the February 16, 1988 injury, 
 
            but upon becoming more familiar with the case changed his 
 
            opinion.  He felt that the injury of February 16, 1988, was 
 
            only a temporary aggravation of the preexisting degenerative 
 
            condition and that the aggravation had lasted through May 
 
            26, 1988 (jt. ex. 6, pp. 17, 27 & 28; ex. 7, p. 1).  Dr. 
 
            Boulden's activity restrictions were imposed due to the 
 
            underlying overall condition of Harold's spine, not just the 
 
            stenosis and pseudo claudication (jt. ex. 6, p. 29).  He 
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            rated Harold as having a 7 to 9 percent permanent impairment 
 
            of his spine.  He stated that Harold is disabled from truck 
 
            driving but not all gainful employments (jt. ex. 6, p. 39).  
 
            
 
                 From the record it is clear that Dr. Boulden attributes 
 
            the pseudo claudication to the spinal stenosis which in turn 
 
            is a result of the degenerative disc disease and that 
 
            Harold's 20 or more years of truck driving was a significant 
 
            factor in developing the degenerative disc disease.
 
            
 
                 The evidence in the record of this case from Dr. 
 
            Boulden is uncontroverted.  It seems quite logical and is 
 
            fully accepted as being correct.  
 
            
 
                 Harold has not worked since February 16, 1988. He and 
 
            his wife are now supported by social security disability 
 
            benefits.  
 
            
 
                 During the 13 weeks prior to his injury, he earned 
 
            $6,789.64.  He had no earnings in 1989 or 1990.  During 1987 
 
            the combined earnings of Harold and his wife were $2,577.  
 
            In 1986 they earned $18,780.  The overwhelming bulk of those 
 
            earnings were from Harold.  
 
            
 
                 The record in this case does not suggest the existence 
 
            of any particular type of employment which Harold is capable 
 
            of performing or for which he would have any reasonable 
 
            chance of being hired.  
 
            
 
                                conclusions of law
 
            
 
                 The fighting issue in this case is whether the February 
 
            16, 1988, injury was a mere temporary aggravation of a 
 
            preexisting condition or whether it is responsible for 
 
            Harold's current state of very substantial disability.  In a 
 
            sense there were two injuries on February 16, 1988.  Harold 
 
            fell from the truck and sustained a temporary aggravation of 
 
            the preexisting degenerative condition in his spine.  That 
 
            date also, however, marks the last day Harold Hennigar 
 
            actually worked as a truck driver in accordance with the 
 
            recommendations from Dr. Boulden.  The degenerative 
 
            condition in his spine is a cumulative trauma type of 
 
            condition.  The last day of work before the onset of 
 
            disablement is the date of injury in those cases.  Oscar 
 
            Mayer Foods Corp. v Tasler, 483 N.W.2d 824 (Iowa 1992).
 
            
 
                 At this point in the analysis it should be noted that 
 
            there is a reasonable argument which can be made to the 
 
            effect that Harold's cumulative trauma type of injury to his 
 
            spine, resulting in degenerative disc disease, is actually 
 
            an occupational disease.  The statutory definition of 
 
            occupational disease as well as the definition found in the 
 
            judicial precedents would make many ailments which are 
 
            commonly treated as cumulative trauma injuries fall within 
 
            the occupational disease law.  It can be logically argued 
 
            that the supreme court adopted the occupational disease 
 
            rules for cumulative trauma injuries because they often are 
 
            occupational diseases.  
 
            
 
                 The similarity between occupational disease and 
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
            cumulative trauma injury is important because the supreme 
 
            court applies the rules of occupational disease when dealing 
 
            with cumulative trauma injuries.  In McKeever Custom 
 
            Cabinets v. Smith, 379 N.W.2d 368 (Iowa 1985) the supreme 
 
            court confirmed what had been a long-standing agency 
 
            practice of recognizing cumulative trauma as a means of 
 
            injury.  As noted by the court cumulative injury has been 
 
            recognized as being compensable since Black v. Creston Auto 
 
            Company, 225 Iowa 671, 281 N.W. 189 (1938).  The 
 
            compensability of cumulative injury had been generally 
 
            accepted long prior to 1985.  Likewise, the recognition of 
 
            conditions such as bursitis or tendonitis being an 
 
            occupational disease, even though the conditions resulted 
 
            from cumulative trauma, was likewise well recognized by this 
 
            agency subsequent to 1973 when the statute was changed to 
 
            eliminate the specified list of occupational diseases.  
 
            Johnson v. Franklin Mfg Co., Thirty-fourth Biennial Report 
 
            of the Industrial Commissioner 152 (App. Dec. 1978).  
 
            
 
                 The "landmark" parts of the McKeever decision were the 
 
            parts which defined that the date of injury would be the 
 
            date that a person became disabled from working and also the 
 
            part which applied the last injurious exposure rule to 
 
            cumulative injury cases.  The court also clarified that the 
 
            rate of compensation to be employed would be based upon the 
 
            earnings prior to the date of injury as that term was 
 
            defined in the supreme court decision.  The important 
 
            comparison is that all of the landmark parts of the McKeever 
 
            decision were simply adopting the rules of occupational 
 
            disease for cumulative trauma injuries.  It has been 
 
            previously held in the occupational disease field that the 
 
            date of disablement occurs when competent medical advice 
 
            compels the individual to remove himself from the injurious 
 
            employment.  It is not necessary that the employer continue 
 
            to work until the most severe stage of the disease is 
 
            reached.  Frit v. Langenwalter, 443 N.W.2d 88 (Iowa App. 
 
            1989).  Along those same lines, it is recognized that when 
 
            dealing with occupational disease, and cumulative injury as 
 
            well, the exposure to the trauma or agent responsible for 
 
            the physical affliction that is actually responsible for 
 
            producing the disability is most likely the exposure that 
 
            occurred several prior to the onset of the actual 
 
            disablement which removes the person from the employment.  
 
            McSpadden v. Big Ben Coal Co., 288 N.W.2d 181 (Iowa 1980).  
 
            
 
                 According to Dr. Boulden this case is not a typical.  
 
            Claimant's approximately 13 weeks of employment with Green 
 
            Acres Express, Inc. probably contributed little to the 
 
            overall degenerative condition of his spine.  That fact does 
 
            not, however, relieve the last employer from liability.  Any 
 
            exposure to a harmful condition is most likely injurious.  
 
            Nevertheless, the last injurious exposure rule as explained 
 
            in Doerfer Div. of CCA v Nichol, 359 N.W.2d 428 (Iowa 1984) 
 
            has been applied to cumulative trauma injuries.  In this 
 
            case Green Acres Express, Inc. is the employer in whose 
 
            employ the last injurious exposure occurred.  The evidence 
 
            from Dr. Boulden shows the overall part of that employment 
 
            to be a very small fraction of the activities responsible 
 
            for Harold's problem, but it does not show the most recent 
 

 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
            employment to have been absolutely no factor whatsoever (jt. 
 
            ex. 6, p. 33).  
 
            
 
                 One important distinction in this case between whether 
 
            the case is treated as an occupational disease or a 
 
            cumulative trauma injury is found in section 85A.7(4).  
 
            Under the occupational disease law the rules of 
 
            apportionment and preexisting condition which apply in 
 
            injury cases are inapplicable.  It is only the disability 
 
            which results from the occupational disease that is 
 
            compensated under chapter 85A.  Nevertheless, this agency 
 
            has ruled that an occupational disease requires the entry of 
 
            a foreign agent into the body and that anything else is an 
 
            injury, regardless of whether or not the statutory 
 
            definition of occupational disease has been met.  Noble v. 
 
            Lamoni Products, file numbers 857575 & 851309 (App. Dec. May 
 
            7, 1992).  This case must therefore be treated as a 
 
            cumulative injury case, even though Dr. Boulden has 
 
            characterized the condition as a disease.
 
            
 
                 It is therefore concluded that Green Acres Express, 
 
            Inc. is responsible for the permanent disability afflicting 
 
            Harold Hennigar as a result of the degenerative condition of 
 
            his spine.
 
            
 
                 While a claimant is not entitled to compensation for 
 
            the results of a preexisting injury or disease, its mere 
 
            existence at the time of a subsequent injury is not a 
 
            defense.  Rose v. John Deere Ottumwa Works, 247 Iowa 900, 76 
 
            N.W.2d 756 (1956).  If the claimant had a preexisting 
 
            condition or disability that is materially aggravated, 
 
            accelerated, worsened or lighted up so that it results in 
 
            disability, claimant is entitled to recover.  Nicks v. 
 
            Davenport Produce Co., 254 Iowa 130, 115 N.W.2d 812 (1962); 
 
            Yeager v. Firestone Tire & Rubber Co., 253 Iowa 369, 112 
 
            N.W.2d 299 (1961).
 
            
 
                 Apportionment of disability between a preexisting 
 
            condition and an injury is proper only when some 
 
            ascertainable portion of the ultimate industrial disability 
 
            existed independently before an employment-related 
 
            aggravation of disability occurred.  Bearce v. FMC Corp., 
 
            465 N.W.2d 531 (Iowa 1991); Varied Enterprises, Inc. v. 
 
            Sumner, 353 N.W.2d 407 (Iowa 1984).  Hence, where employment 
 
            is maintained and earnings are not reduced on account of a 
 
            preexisting condition, that condition may not have produced 
 
            any apportionable loss of earning capacity.  Bearce, 465 
 
            N.W.2d at 531.  Likewise, to be apportionable, the 
 
            preexisting disability must not be the result of another 
 
            injury with the same employer for which compensation was not 
 
            paid.  Tussing v. George A. Hormel & Co., 461 N.W.2d 450 
 
            (Iowa 1990).  The burden of showing that disability is 
 
            attributable to a preexisting condition is placed upon the 
 
            defendant.  Where evidence to establish a proper 
 
            apportionment is absent, the defendant is responsible for 
 
            the entire disability that exists.  Bearce, 465 N.W.2d at 
 
            536-37; Sumner, 353 N.W.2d at 410-11.
 
            
 
                 The concept of aggravation of a preexisting condition 
 

 
            
 
            Page   6
 
            
 
            
 
            
 
            
 
            is inherent in a cumulative trauma injury.  On the other 
 
            hand, the concept of apportionment is not applied to the 
 
            parts of a cumulative trauma injury process since, in most 
 
            cases, it would entirely defeat the claim.  It is 
 
            irreconcilable with the last injurious exposure rule.  It 
 
            can, of course, be applied to preexisting disabilities which 
 
            are not part of the cumulative injury process.  The same 
 
            rule is found in section 85A.7(4).  
 
            
 
                 In this case all of Harold's physical spinal ailments 
 
            are to be considered when determining his degree of 
 
            industrial disability for which the employer will be held 
 
            liable.  
 
            
 
                 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 
 
            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.  Bearce v. FMC Corp., 465 N.W.2d 531 
 
            (Iowa 1991); DeWall v. Prentice, 224 N.W.2d 428, 435 (Iowa 
 
            1974); 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.
 
            
 
                 Since 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 
 
            Ry. Co., 219 Iowa 587, 258 N.W.2d 899 (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, motivation, loss of earnings, severity and situs 
 
            of the injury, work restrictions, inability to engage in 
 
            employment for which the employee is fitted and the 
 
            employer's offer of work or failure to so offer.  Olson v. 
 
            Goodyear Serv. Stores, 255 Iowa 1112, 125 N.W.2d 251 (1963); 
 
            McSpadden v. Big Ben Coal Co., 288 N.W.2d 181 (Iowa 1980); 
 
            Barton v. Nevada Poultry Co., 253 Iowa 285, 110 N.W.2d 660 
 
            (1961).
 
            
 
                 Compensation for permanent partial disability shall 
 
            begin at the termination of the healing period.  
 

 
            
 
            Page   7
 
            
 
            
 
            
 
            
 
            Compensation shall be paid in relation to 500 weeks as the 
 
            disability bears to the body as a whole.  Section 85.34.
 
            
 
                 Harold has been rated as having only a 7 to 9 percent 
 
            permanent impairment.  His education is less than the high 
 
            school level.  There is no showing that he has the capacity 
 
            to perform any particular type of work for which he is 
 
            qualified or experienced.  There are probably jobs which he 
 
            is physically capable of performing, but the record does not 
 
            show that he has the training, skills or qualifications to 
 
            perform any of those jobs.  The record of this case does not 
 
            identify any particular job which Harold might be capable of 
 
            performing.  Not only must an individual be capable of 
 
            performing a job, but they must also have a reasonable 
 
            probability of being able to be hired for the job in order 
 
            to defend against a claim of total disability.  
 
            
 
                 In this case Harold Hennigar has obtained social 
 
            security disability benefits.  That fact alone is an 
 
            indication that he is totally disabled, but it is certainly 
 
            not conclusive.  The record in this case does not show that 
 
            there is any reasonably stable market for the services which 
 
            Harold is capable of performing.  It is determined that 
 
            Harold Hennigar is totally disabled from a workers' 
 
            compensation standpoint.  Guyton v. Irving Jensen Co., 373 
 
            N.W.2d 101 (Iowa 1985); Diederich v. Tri-City R. Co., 219 
 
            Iowa 587, 593, 258 N.W. 899 (1935).  Harold is therefore 
 
            entitled to recovery weekly compensation under the 
 
            provisions of section 85.34(3).  
 
            
 
                 Since claimant is prevailing in this case, he is 
 
            entitled to recover costs in accordance with rule 343 IAC 
 
            4.33.  The costs he seeks are an expert witness fee for Dr. 
 
            Boulden in the amount of $500, the filing fee in the amount 
 
            of $65 and court reporter fees in the amount of $174.61.  
 
            Those three items all qualify as costs under the rule.  The 
 
            recovery for the expert witness fee is limited, however, to 
 
            the sum of $150 in accordance with section 622.72 of the 
 
            Code.  The total is $389.61.
 
            
 
                                      order
 
            
 
                 IT IS THEREFORE ORDERED that defendants pay Harold 
 
            Hennigar weekly compensation for permanent total disability 
 
            at the stipulated rate of three hundred twenty-one and 
 
            40/100 dollars ($321.40) per week payable commencing 
 
            February 17, 1988 and continuing for so long as Harold 
 
            remains totally disabled.
 
            
 
                 It is further ordered that defendants pay all accrued, 
 
            unpaid amounts in a lump sum together with interest pursuant 
 
            to the provisions of section 85.30.
 
            
 
                 It is further ordered that defendants pay to claimant 
 
            the cost incurred in this action in the amount of three 
 
            hundred eighty-nine and 61/100 dollars ($389.61).
 
            
 
                 It is further ordered that defendants file claim 
 
            activity reports as requested by this agency pursuant to 
 
            rule 343 IAC 3.1.
 

 
            
 
            Page   8
 
            
 
            
 
            
 
            
 
            
 
                 Signed and filed this ____ day of February, 1993.
 
            
 
            
 
            
 
            
 
                                          ______________________________
 
                                          MICHAEL G. TRIER
 
                                          DEPUTY INDUSTRIAL COMMISSIONER    
 
            
 
            Copies to:
 
            
 
            Mr. Dennis Hanssen
 
            Attorney at Law
 
            2700 Grand Ave, STE 111
 
            Des Moines, Iowa  50312
 
            
 
            Mr. Richard Book
 
            Attorney at Law
 
            500 Liberty Bldg
 
            Des Moines, Iowa  50309-2421
 
            
 
 
            
 
            Page   1
 
            
 
            
 
            
 
            
 
                                          1108.50 1402.30 1804 2203 2209 
 
                                          1806 2206
 
                                          Filed February 24, 1993
 
                                          Michael G. Trier
 
            
 
                           before the iowa industrial 
 
                                   commissioner
 
            ____________________________________________________________
 
                                          :
 
            HAROLD HENNIGAR,              :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :      File No. 876371
 
            GREEN ACRES EXPRESS, INC.,    :
 
                                          :  A R B I T R A T I O N
 
                 Employer,                :
 
                                          :      D E C I S I O N
 
            and                           :
 
                                          :
 
            LIBERTY MUTUAL INS. CO.,      :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
            1108.50 1402.30 1804
 
            Fifty-nine-year-old man with eighth grade education with 
 
            lifelong career driving trucks was held totally disabled 
 
            when employer's doctor recommended against return to truck 
 
            driving due to degenerative spinal condition.  Degenerative 
 
            condition resulted from career of truck driving.  Injury was 
 
            temporary aggravation that preexisted condition but was also 
 
            last date of employment for application of last injurious 
 
            exposure rule.  Also had coronary condition.
 
            
 
            2203 2209
 
            Case held to be cumulative injury rather than occupational 
 
            disease.  Similarities and supreme court's practice of 
 
            applying rules of occupational disease law to cumulative 
 
            trauma injuries discussed.
 
            
 
            1806 2206
 
            Rules of apportionment held inapplicable to cumulative 
 
            trauma injuries for disability attributable to parts of the 
 
            cumulative injury process.  Aggravation of preexisting 
 
            condition integral part of the cumulative injury process.  
 
            Differences discussed between treatment of apportionment and 
 
            aggravation of preexisting conditions depending upon whether 
 
            dealing with cumulative injury or occupational disease.
 
            
 
 
            
 
            
 
            
 
            
 
            
 
            
 
                        BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
                                          :
 
            BARBARA MANESS,               :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :      File No. 876453
 
            McKEE BUTTON COMPANY,         :
 
                                          :     A R B I T R A T I O N
 
                 Employer,                :
 
                                          :       D E C I S I O N
 
            and                           :
 
                                          :
 
            WAUSAU INSURANCE COMPANY,     :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
                              STATEMENT OF THE CASE
 
            
 
                 This is a proceeding in arbitration brought by Barbara 
 
            Maness against her former employer, McKee Button Company, 
 
            and its insurance carrier, Wausau Insurance Company.
 
            
 
                 The record in this case consists of joint exhibits 1 
 
            through 6; defendants' exhibits A and B; and, testimony from 
 
            the claimant, claimant's daughter, Teresa Maness, Department 
 
            Supervisor Stuart Perkins, and, co-employees, Michelle 
 
            McIntire and Pamela Calvelage.
 
            
 
                                      ISSUES
 
            
 
                 The parties submit the following issues for resolution:
 
            
 
                 1.  Whether claimant received an injury on February 9, 
 
            1988, which arose out of and in the course of her 
 
            employment;
 
            
 
                 2.  Whether there is a causal relationship between the 
 
            alleged injury and claimant's current disability;
 
            
 
                 3.  Whether is entitled to temporary total disability 
 
            or healing period benefits, or permanent partial or total 
 
            disability benefits;
 
            
 
                 4.  Whether claimant is entitled to medical benefits 
 
            under Iowa Code section 85.27;
 
            
 
                 5.  Whether defendants are entitled to a credit as 
 
            provided for under Iowa Code section 85.38(2); and,
 
            
 
                 6.  Whether claimant is an odd-lot employee.
 
            
 
                                 FINDINGS OF FACT
 
            
 
                 The undersigned deputy, having reviewed all of the 
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            evidence received, finds the following facts:
 
            
 
                 Claimant, Barbara Maness, was born on October 18, 1936.  
 
            At the time of the hearing, she was 55 years old.  
 
            Currently, she is unemployed.
 
            
 
                 Claimant's work history includes factory work, 
 
            waitressing, farm work, home sales and real estate sales.  
 
            From 1983 to 1988, claimant did not work outside of the 
 
            home.
 
            
 
                 Her educational background includes an associate degree 
 
            earned in 1984 from a community college in Muscatine, Iowa.  
 
            Claimant earned a bachelor's degree in fine arts from the 
 
            University of Iowa in 1989.
 
            
 
                 In October of 1987, claimant began working for 
 
            defendant, McKee Button Company, a button processing plant 
 
            located in Muscatine, Iowa.  She worked in the molding 
 
            department and inspected buttons.  Part of her job included 
 
            placing plates of buttons into a machine which pushed 
 
            finished buttons into a tub.  After a tub became full, she 
 
            carried it approximately 15 feet to a corner of the room in 
 
            which she worked.  She estimated that the tubs weighed 50 
 
            pounds or more.
 
            
 
                 On February 9, 1988, claimant attempted to lift a tub 
 
            she thought weighed between 60 to 70 pounds which was in 
 
            front of her machine.  She stated that because there were 
 
            numerous sheets of buttons in front of the machine, she was 
 
            unable to get a good grip on the tub and was in an awkward 
 
            position.  She attempted to turn the tub, got her fingers 
 
            caught in the rim, jerked around and felt a "searing pain" 
 
            up and down her spine and down both legs.  Claimant 
 
            testified that she "cried out" due to the pain and dropped 
 
            the tub.
 
            
 
                 Claimant stated that she reported the incident to her 
 
            supervisor, Stuart Perkins, and that he filled out an 
 
            accident report.  Claimant testified that she signed the 
 
            accident report filled out by her supervisor, Stuart 
 
            Perkins.  The only report produced does not contain 
 
            claimant's signature.
 
            
 
                 Claimant stated that three other co-workers, Michelle 
 
            McIntire, Sandy Kemper and Pamela Cavelage and her 
 
            supervisor, Stuart Perkins, were present during the 
 
            incident, and that they all laughed when claimant hurt 
 
            herself.
 
            
 
                 Claimant continued with her duties to finish her shift, 
 
            and while she contends that Mr. Perkins told her to perform 
 
            only the inspection duties, Mr. Perkins denied this and 
 
            testified that claimant continued with her regular duties.
 
            
 
                 Michelle McIntire, a current McKee employee and a 
 
            former co-worker of claimant's, testified at the hearing.  
 
            She stated that on February 9, 1988, she and claimant 
 
            engaged in a conversation wherein claimant admitted she had 
 
            hurt her back while helping her daughter move.  Ms. McIntire 
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            testified that two other co-workers, Pamela Calvelage, and 
 
            Sandy Keumper, were also present during the conversation.  
 
            During her testimony, she denied that she had observed 
 
            claimant hurt herself; did not hear claimant cry or scream 
 
            and in pain; and did not laugh at the claimant.
 
            
 
                 Pamela Calvelage also testified for the defense.  She 
 
            is presently employed by McKee.  She, too, testified that on 
 
            Monday or Tuesday (February 8 or February 9, 1988), claimant 
 
            spoke about helping one of her daughters move and that her 
 
            back was bothering her.  Ms. Cavelage denied that she 
 
            observed claimant drop or struggle with a tub or bucket 
 
            filled with buttons, denied that she heard claimant cry out 
 
            in pain, and denied that she laughed at claimant.
 
            
 
                 Teresa Maness, one of claimant's daughters, testified 
 
            on behalf of her mother.  She stated that, although she was 
 
            not present during the occasions claimant helped her other 
 
            daughter move, she was positive that claimant did not carry 
 
            any heavy items.  In fact, she indicated that claimant 
 
            merely drove a truck to the new residence.
 
            
 
                 While claimant testified that she stayed in bed and did 
 
            not report to work the following day, a time card used by 
 
            employees to punch in and out when reporting to and leaving 
 
            work revealed that claimant worked 8-3/4 hours on Wednesday, 
 
            February 10, 1988.  The evidence shows that claimant 
 
            received medical treatment from Dr. Olson, the company 
 
            physician, on February 11, 1988.  His notes, although very 
 
            difficult to read, seem to report that claimant had 
 
            experienced pain from her cervical spine to her lumbar spine 
 
            since the accident.   He diagnosed a lumbar sacral strain, 
 
            prescribed Flexeril, and told claimant to return in seven 
 
            days (Joint Exhibit 6, page 1).
 
            
 
                 Although claimant did not return on her next scheduled 
 
            appointment, she did return to Dr. Olson for additional 
 
            visits.  His notes indicate a resolving lumbosacral strain, 
 
            but in April of 1988, the notes state that claimant 
 
            complained of numbness in the toes of both feet, and burning 
 
            sensations in her legs and feet.  He referred her to James 
 
            Worrell, M.D., a neurologist (Jt. Ex. 6, pp. 1-2).
 
            
 
                 Dr. Worrell regularly treated claimant from April 1988 
 
            until September 1988.  His notes dated May 3, 1988 reflect 
 
            that although claimant was undergoing physical therapy and 
 
            taking medication, she still experienced "tingling and 
 
            numbness in the feet and legs."  Results of a CT scan, plane 
 
            x-rays of the lumbosacral spine and an EMG performed on the 
 
            right paraspinal lumbar and lumbosacral area were negative.  
 
            He diagnosed myofascial pain syndrome, secondary to injury.  
 
            Dr. Worrell recommended continued physical therapy, mild 
 
            analgesics and anti-inflammatories.  She was to be rechecked 
 
            in two or three months (Jt. Ex. 1, p. 1; p. 4).
 
            
 
                 In June of 1988, Dr. Worrell's examination noted an 
 
            improvement in claimant's condition, although she still 
 
            complained of discomfort in the mid and low back area as 
 
            well as pain and numbness in the feet.  Medications included 
 
            Equagesic and she was to return on an as-needed basis (Jt. 
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
            Ex. 1, p. 2).
 
            
 
                 In July, she visited Jeffrey A. Shay, a chiropractor in 
 
            Muscatine, Iowa.  He noted possible nerve impingement (Jt. 
 
            Ex. 2, pp. 1-2).
 
            
 
                 In August of 1988, claimant again sought treatment from 
 
            Dr. Worrell.  She was scheduled for a lumbar myelogram, a 
 
            follow-up CT scan, and was released to return to light duty 
 
            work (Jt. Ex. 1, p. 3).
 
            
 
                 Claimant underwent the myelography and CT scan on 
 
            September 27, 1988.  The myelogram was normal, although the 
 
            CT scan revealed some arthrosis of the articular facets but 
 
            no evidence of a herniated disc (Jt. Ex. 1, pp. 8-9).  The 
 
            diagnosis remained myofascial pain syndrome, and it was 
 
            recommended that claimant continue with exercise and a 
 
            weight loss program.  She was to return to Dr. Worrell on an 
 
            as-needed basis (Jt. Ex. 1, pp. 5 and 7).
 
            
 
                 Claimant did not return to Dr. Worrell until March 21, 
 
            1990, when she returned to him for an impairment rating.  
 
            Dr. Worrell noted decreased range of motion in the back and 
 
            tenderness in the sacroiliac lumbosacral area.  Claimant 
 
            favored her right hip when walking and exhibited diminished 
 
            feeling on pinprick on the feet.  He stated he would be 
 
            "willing to give her [claimant] an 8 percent permanent 
 
            partial impairment rating to the body as a whole." (Jt. Ex. 
 
            4, p. 17)
 
            
 
                 In January of 1991, claimant started treatment with the 
 
            cardiology clinic at the University of Iowa Hospitals and 
 
            Clinics in Iowa City.  During the next year, she regularly 
 
            saw doctors for numerous physical ailments seemingly 
 
            unrelated to her back condition.  In March 1992, she 
 
            reported low back pain and was seen by several physicians 
 
            for continued back pain.
 
            
 
                 Margaret Saehler, a physical therapist, noted that 
 
            claimant had normal range of motion and strength in the 
 
            lumbosacral area of the spine.  It was recommended that she 
 
            perform exercises at home and lose weight (Jt. Ex. 5, p. 
 
            24).  A radiological report noted a possible superior plate 
 
            injury at the L2 vertebral body, mild anterior osteophyte 
 
            formation at all levels of the lumbar spine, marked 
 
            limitation of flexion and mild limitation of extension (Jt. 
 
            Ex. 5, p. 26).  A final report from Malcom Yeh, M.D., noted 
 
            chronic low back pain.  He recommended continued medication 
 
            of Elavil, proper diet and back exercises (Jt. Ex. 5, p. 
 
            28).
 
            
 
                 At the hearing, claimant testified that she was unable 
 
            to either sit or stand for more than one-half hour without 
 
            enduring considerable pain.  However, claimant was on the 
 
            witness stand for more than two hours, and showed no 
 
            apparent discomfort.
 
            
 
                         ANALYSIS AND CONCLUSIONS OF LAW
 
            
 
                 The first issue to be addressed is whether claimant 
 

 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
            sustained an injury on February 9, 1988, which arose out of 
 
            and in the course of her employment.
 
            
 
                 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 claimant has the burden of proving by a 
 
            preponderance of the evidence that the alleged injury 
 
            actually occurred and that it arose out of and in the course 
 
            of employment.  McDowell v. Town of Clarksville, 241 N.W.2d 
 
            904 (Iowa 1976); Musselman v. Cent. Tel. Co., 261 Iowa 352, 
 
            154 N.W.2d 128 (1967).  The words "arising out of" refer to 
 
            the cause or source of the injury.  The words "in the course 
 
            of" refer to the time, place and circumstances of the 
 
            injury.  Sheerin v. Holin Co., 380 N.W.2d 415 (Iowa 1986); 
 
            McClure v. Union County, 188 N.W.2d 283 (Iowa 1971).
 
            
 
                 There are numerous and consistencies between testimony 
 
            from the claimant and testimony from the defendants:  
 
            Claimant stated she signed an accident report filled out by 
 
            her supervisor, Stuart Perkins, defendants testified that 
 
            only one accident report was filled out and there is no 
 
            signature of the claimant on the report.; claimant stated 
 
            the injury happened after lunch on February 9, 1988, and the 
 
            defendants argue that she told her supervisor that the 
 
            incident happened before lunch in the morning; claimant 
 
            stated that her job duties changed after the accident, her 
 
            supervisor indicated there was no change in her job duties; 
 
            the claimant testified that at least four people saw the 
 
            alleged injury, yet three of the four witnesses she named 
 
            testified that they did not see her hurt herself; claimant 
 
            stated that all of the witnesses heard her cry out and began 
 
            to laugh after she injured herself, the defendants' 
 
            witnesses denied hearing claimant cry out or laughing; 
 
            claimant stated that the next day she spent the entire day 
 
            in bed, the defendants argue that claimant worked a full day 
 
            on February 10, 1988.  Additionally, defendants argue that 
 
            claimant told co-workers she had hurt her back while helping 
 
            her daughter move to Hannibal, Missouri, yet claimant denies 
 
            that she was involved in any lifting during the move.
 
            
 
                 Claimant's daughter, Teresa Maness, also testified at 
 
            the hearing, and stated that her mother did not help lift 
 
            anything while helping another daughter move; however, 
 
            Teresa Maness was not present when her mother was in 
 
            Hannibal helping another daughter move.
 
            
 
                 Unfortunately, this case presents too many 
 
            inconsistencies to state that claimant has been able to meet 
 
            her burden or proof and has shown by a preponderance of the 
 
            evidence that she sustained an injury on February 9, 1988, 
 
            which arose out of and in the course of her employment.  As 
 
            a result, claimant takes nothing from these proceedings.
 
            
 
                                      ORDER
 
            
 
                 THEREFORE, it is ordered:
 
            
 
                 That claimant take nothing from these proceedings.
 

 
            
 
            Page   6
 
            
 
            
 
            
 
            
 
            
 
                 That the defendants shall pay the costs of this 
 
            proceeding.
 
            
 
                 Signed and filed this ____ day of July, 1992.
 
            
 
            
 
            
 
            
 
                                          
 
                                         ________________________________
 
                                          PATRICIA J. LANTZ
 
                                          DEPUTY INDUSTRIAL COMMISSIONER
 
            
 
            Copies To:
 
            
 
            Mr Allan Hartsock
 
            Attorney at Law
 
            P O Box 4298
 
            Rock Island IL 61204
 
            
 
            Mr Craig A Levien
 
            Attorney at Law
 
            600 Union Arcade Bldg
 
            111 E Third St
 
            Davenport IA 52801
 
            
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                                  5-1100
 
                                                  Filed July 27, 1992
 
                                                  Patricia J. Lantz
 
            
 
                    BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
                                          :
 
            BARBARA MANESS,               :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :      File No. 876453
 
            McKEE BUTTON COMPANY,         :
 
                                          :     A R B I T R A T I O N
 
                 Employer,                :
 
                                          :       D E C I S I O N
 
            and                           :
 
                                          :
 
            WAUSAU INSURANCE COMPANY,     :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
            5-1100
 
            Claimant failed to prove by a preponderance that she 
 
            sustained an injury which arose out of and in the course of 
 
            her employment where two co-workers testified that claimant 
 
            had told them she hurt her back while helping a daughter 
 
            move.
 
            
 
 
        
 
 
 
 
 
        
 
        
 
                    BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
        
 
        
 
        GENE BOSS,
 
        
 
             Claimant,
 
                                                 File No. 876455
 
        vs.
 
                                               A R B I T R A T I O N
 
        RASCH CONSTRUCTION CO.,
 
                                                  D E C I S I O N
 
        Employer,
 
        
 
        and                                          F I L E D
 
        
 
        ROYAL INSURANCE COMPANY,                    AUG 31 1989
 
        
 
             Insurance Carrier,                 INDUSTRIAL SERVICES
 
             Defendants.
 
             
 
             
 
                                      INTRODUCTION
 
        
 
             This is a proceeding in arbitration brought by Gene Boss 
 
             against Rasch Construction Company, his former employer, and its 
 
             insurance carrier, Royal Insurance Company. The case was heard 
 
             and fully submitted on August 29, 1989 at Des Moines, Iowa. The 
 
             record in the proceeding consists of claimant's exhibits 1 
 
             through 5, defendants' exhibits A, B, and C, and testimony from 
 
             Gene Boss, Albert Stenstrom, Grant Abernathy, and Robert Henak.
 
        
 
                                      ISSUES
 
        
 
             The only issue for determination is the extent of permanent 
 
             partial disability affecting claimant's left leg which was caused 
 
             by the injury that occurred on February 15, 1988.
 
        
 
                                 SUMMARY OF EVIDENCE
 
        
 
             The following is a summary of evidence presented in this 
 
             case. Of all the evidence received at the hearing, only that 
 
             considered most pertinent to this decision is discussed. 
 
             Conclusions about what the evidence showed are inevitable with 
 
             any summarization. The conclusions in the following summary 
 
             should be considered to be preliminary findings of fact.
 
        
 
             Claimant suffered a crush injury to his left lower leg, 
 
             foot, and ankle on February 15, 1988 when a truck overturned. He 
 
             was diagnosed as having a left ankle bimalleolar fracture with a 
 
             severe crush of the left foot. The treating orthopaedic surgeon 
 
             was Mary-Franklin G. Paulus, M.D., who performed open reduction 
 
             and internal fixation, medial malleolus, left ankle with 
 
             application of posterior plaster splint custom molded and closed 
 
             reduction lateral malleolus and posterior malleolus on February 
 
             23, 1988.
 
        
 
             Claimant testified that he continues to experience pain and 
 
             loss of strength affecting his left leg. He stated that 
 
             activities such as pushing the clutch of a truck, extended 
 
             standing, and lifting all cause pain. Defense witnesses 
 
             testified that claimant had held employment subsequent to the 
 

 
        
 
 
 
 
 
             injury which is the subject of this proceeding.
 
        
 
            Dr. Paulus rated claimant as having a 12 percent impairment 
 
        of his lower extremity due to the ankle impairment, a 6 percent 
 
        impairment of the lower extremity due to impairment of his foot, 
 
        and an additional 17 percent of the extremity due to pain and 
 
        suffering (claimant's exhibit 3).
 
        
 
            Claimant was evaluated by Eric L. Paulson, M.D., in January, 
 
        1989. Dr. Paulson did not provide an actual impairment rating, 
 
        although he did perform an orthopaedic examination of claimant's 
 
        left ankle in which he found claimant to have 45 degrees of 
 
        plantar flexion and 0 degrees of dorsiflexion. Dr. Paulson also 
 
        found impairment affecting claimant's foot as well as the ankle 
 
        (claimant's exhibit 4).
 
        
 
            In August, 1989, claimant was examined by John H. Kelley, 
 
        M.D., a Des Moines, Iowa orthopaedic surgeon. Dr. Kelley rated 
 
        claimant as having a 12 percent impairment of his left lower 
 
        extremity based upon impairment of the ankle (defendants' exhibit 
 
        A).
 
        
 
                            APPLICABLE LAW AND ANALYSIS
 
        
 
             It was stipulated by the parties that this is a scheduled 
 
             member injury and that the disability is limited to claimant's 
 
             leg.
 
        
 
            The right of a worker to receive compensation for injuries 
 
        sustained which arose out of and in the course of employment is 
 
        statutory. The statute conferring this right can also fix the 
 
        amount of compensation to be paid for different specific 
 
        injuries, and the employee is not entitled to compensation except 
 
        as provided by the statute. Soukup v. Shores Co., 222 Iowa 272, 
 
        268 N.W. 598 (1936).
 
        
 
            Where an injury is limited to a scheduled member, the loss 
 
        is measured functionally, not industrially. Graves v. Eagle Iron 
 
        Works, 331 N.W.2d 116 (Iowa 1983).
 
        
 
            A close examination of the examinations performed by the 
 
        three physicians shows that the range of motion found by Dr. 
 
        Kelley with regard to claimant's left ankle is identical to the 
 
        range of motion found by Dr. Paulus. The only difference in 
 
        their ratings is that Dr. Paulus rated for lost motion of 
 
        claimant's toes while Dr. Kelley did not. Since the injury 
 
        involved a crushing of the left foot, as well as the left ankle, 
 
        it would seem reasonable that the foot and toes would have been 
 
        affected as well as the ankle. Dr. Paulson also found claimant's 
 
        foot to be impaired in addition to his ankle. Dr. Paulson's 
 
        range of motion for the ankle is different, however, from that 
 
        found by Drs. Paulus and Kelley.
 
        
 
             Dr. Paulus was the treating physician and is presumably most 
 
             familiar with the condition of claimant's left foot and ankle. 
 
             The range of motion upon which her impairment rating is based is 
 
             corroborated by the range of motion found by Dr. Kelley with 
 
             regard to the ankle and by Dr. Paulson with regard to the toes. 
 
             The rating made by Dr. Paulus in the amount of 18 percent is 
 
             adopted as being correct in this case. Pain and suffering is not 
 
             an element of damages in a workers' compensation proceeding. The 
 
             scheduled member disability system which has been provided by the 
 
             legislature provides compensation for loss of use of a scheduled 
 
             member, not for pain and suffering. Claimant is therefore 
 
             entitled to recover for an 18 percent permanent partial 
 
             disability of his left leg under the provisions of Iowa Code 
 

 
        
 
 
 
 
 
             section 85.34(2)(o). This entitles claimant to recover 39.6 
 
             weeks of compensation for permanent partial disability.
 
        
 
                                 FINDINGS OF FACT
 
        
 
             1. The physical impairment determined by Dr. Paulus 
 
             affecting claimant's left leg is correct.
 
        
 
            2. Claimant has an 18 percent loss of the use of his left 
 
        leg as a result of the injury that occurred on February 15, 1988.
 
        
 
                               CONCLUSIONS OF LAW
 
        
 
             1. This agency has jurisdiction of the subject matter of 
 
             this proceeding and its parties.
 
        
 
            2. Claimant is entitled to recover 39.6 weeks of 
 
        compensation for permanent partial disability under the 
 
        provisions of Iowa Code section 85.34(2)(o) representing an 18 
 
        percent permanent partial disability of his left leg.
 
        
 
            3. Claimant has been paid all compensation for permanent 
 
        partial disability which he is legally entitled to receive under 
 
        the controlling statutes and nothing further is payable.
 
        
 
                                      ORDER
 
        
 
             IT IS THEREFORE ORDERED that claimant take nothing from this 
 
             proceeding.
 
        
 
            IT IS FURTHER ORDERED that claimant pay the costs of this 
 
        action pursuant to Division of Industrial Services Rule 343-4.33.
 
        
 
             IT IS FURTHER ORDERED that defendants file claim activity 
 
             reports as requested by this agency pursuant to Division of 
 
             Industrial Services Rule 343-3.1.
 
        
 
            Signed and filed this 31st day of August 1989.
 
        
 
        
 
        
 
        
 
        
 
        
 
                                       MICHAEL G. TRIER
 
                                       DEPUTY INDUSTRIAL COMMISSIONER
 
        
 
        Copies To:
 
        
 
        Mr. John C. Werden, Jr.
 
        Attorney at Law
 
        P.O. Box 486
 
        Carroll, Iowa 51401
 
        
 
        Mr. Paul C. Thune
 
        Mr. Joseph M. Barron
 
        Attorneys at Law
 
        Suite 300, Fleming Building
 
        P.O. Box 9130
 
        Des Moines, Iowa 50306-9130
 
        
 
        
 
 
        
 
 
 
 
 
        
 
                                            51803
 
                                            Filed August 31, 1989
 
                                            MICHAEL G. TRIER
 
        
 
                    BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
        
 
        
 
        GENE BOSS,
 
        
 
             Claimant,
 
             
 
        vs.                                               File No. 
 
        876455
 
        
 
        RASCH CONSTRUCTION CO.,                           A R B I T R A 
 
        T I O N
 
        
 
            Employer,                                    D E C I S I O 
 
        N
 
        
 
        and
 
        
 
        ROYAL INSURANCE COMPANY,
 
        
 
             Insurance Carrier,
 
             Defendants.
 
             
 
             
 
        51803
 
        
 
             Claimant awarded 18 percent permanent partial disability of 
 
             left leg in accordance with treating orthopaedic surgeon's 
 
             rating. Permanent partial disability compensation was not allowed 
 
             for the portion of the rating which the doctor gave for pain and 
 
             suffering.
 
             
 
        
 
 
         
 
 
 
 
 
 
 
 
 
 
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         
 
         ALLEN DELAINE MENDENHALL,
 
         
 
              Claimant,                        File Nos. 876483 & 878900
 
         
 
         VS.                                     A R B I T R A T I 0 N
 
         
 
         CARNATION CO., PET FOODS                   D E C I S I 0 N
 
         DIVISION,
 
         
 
              Employer,
 
         and
 
         
 
         TRAVELERS INSURANCE CO. and
 
         FEDERAL KEMPER INSURANCE CO.,
 
         
 
              Insurance Carriers,
 
              Defendants.
 
         
 
         
 
         
 
                                   INTRODUCTION
 
         
 
              These are arbitration proceedings brought by Allen D. 
 
         Mendenhall, claimant, against Carnation Company, Pet Foods 
 
         Division, employer, and Federal Kemper Insurance Company and 
 
         Travelers Insurance Company, insurance carriers, defendants.  
 
         These cases were heard by the undersigned on October 11, 1989 in 
 
         Fort Dodge, Iowa.
 
         
 
              The record consists of the testimony of claimant.  The 
 
         record also consists of the testimonies of Richard Oleson and 
 
         William Ondrejka.  The record additionally consists of claimant's 
 
         exhibits 1-21, joint exhibits 1-8, defendant-Travelers' exhibits 
 
         A-E and AA, and defendant-Kemper's exhibits A-G.
 
         
 
                                      ISSUES
 
         
 
              As a result of the prehearing report and order submitted and 
 
         approved on October 11, 1989, the issues presented by the  
 
         parties are:
 
         
 
              1. Whether claimant sustained injuries on August 3, 1987 or 
 
         January 4, 1988, which arose out of and in the course of 
 
         employment with employer;
 
         
 
         
 
         
 
         MENDENHALL V. CARNATION CO., PET FOODS DIVISION
 
         Page 2
 
         
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
              2. Whether there are causal relationships between the 
 
         alleged injuries and the disability;
 
         
 
              3. Whether claimant is entitled to temporary 
 
         disability/healing period benefits or permanent partial or total 
 
         disability benefits;
 
         
 
              4. Whether claimant is entitled to medical benefits under 
 
         Iowa Code section 85.27 (and/or medical evaluation under section 
 
         85.39); and,
 
         
 
              5. Whether claimant provided adequate notice under section 
 
         85.23.
 
         
 
                                   STIPULATIONS
 
         
 
              Prior to the hearing, the parties entered into a number of 
 
         stipulations.  The stipulations are as follows:
 
         
 
              1.  The existence of an employer-employee relationship 
 
         between claimant and employer at the time of the alleged injury;
 
         
 
              2.  That the time off work for which claimant now seeks 
 
         either temporary total disability or healing period benefits is 
 
         stipulated to be from January 21, 1988 to October 14, 1988;
 
         
 
              3.  That the type of permanent disability, if the injury is 
 
         found to be a cause of permanent disability, is stipulated to be 
 
         an industrial disability to the body as a whole;
 
         
 
              4.  In the event of an award of weekly benefits, the rate of 
 
         weekly compensation is stipulated to be $274.90; and,
 
         
 
              5.  Defendants have credit under section 85.38(2) for 
 
         previous payment of medical/hospitalization expenses in the 
 
         amount of $5,697.44 and Kemper paid additional medical expenses 
 
         of $1,153.05 and defendants paid claimant 32.429 weeks of 
 
         compensation at the rate of $274.90 (Kemper) per week prior to 
 
         hearing.
 
         
 
                                 FACTS PRESENTED
 
         
 
              Claimant was 39 years old at the time of the  hearing.  He 
 
         commenced his employment with defendant on March 13, 1976.  For 
 
         the first nine years, claimant worked with the finished product.  
 
         He took pallets of canned goods from the line, brought them to 
 
         the loading bays and loaded the cans onto railroad cars.
 
         
 
              In year ten of his employment, claimant was performing a 
 
         bright stacking job. Then claimant testified, he was assigned the 
 
         position of fork truck driver.
 
         
 
         
 
         
 
         MENDENHALL V. CARNATION CO., PET FOODS DIVISION
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         Page 3
 
         
 
         
 
              Claimant stated that on Monday, August 3, 1987, there were 
 
         problems with the meat freezer.  As a result, defrosted meat had 
 
         fallen onto the floor of the freezer in piles nearly nine feet 
 
         high.  Claimant related that he was responsible for restacking 
 
         the fallen meat and that he had to stack approximately 30 
 
         pallets.
 
         
 
              Claimant maintained he had never experienced prior back 
 
         problems but that after the meat stacking incident, he 
 
         experienced low back pain for approximately one week.  Then on 
 
         Monday, August 10, 1987, claimant testified he could no longer 
 
         continue working.  The claimant maintained he went to his 
 
         supervisor, Bill Ondrejka, and told him his back was hurting.  
 
         Claimant stated he returned to work on August 17, 1987, but that 
 
         his condition progressively worsened.
 
         
 
              Claimant testified that after a plant shut down in December 
 
         of 1987, he returned to work on January 4, 1988.  Claimant stated 
 
         he was assigned to the same position as a fork truck driver where 
 
         he was also required to maintain the freezer.  Claimant described 
 
         the condition of the freezer.  He indicated he attempted to pick 
 
         up meat from the floor.  However, he indicated he again felt 
 
         sharp pains in his back.  Claimant stated he reported the 
 
         incident to his supervisor, who sent claimant to Hoyt H. Allen, 
 
         M.D.  Claimant was then referred to Samir R. Wahby, M.D.
 
         
 
              Claimant testified a laminectomy at L4/L5 was performed on 
 
         July 20, 1988.  The record establishes claimant returned to work 
 
         on October 14, 1988 at his same position.
 
         
 
              Richard Oleson testified he is the union steward and that he 
 
         is acquainted with claimant.  The witness testified he is aware 
 
         claimant returned to work in October of 1988, that claimant was 
 
         having financial difficulties and that claimant obtained a 
 
         release to return to work.
 
         
 
              William Ondrejka testified he is the receiving supervisor 
 
         and he supervises the fork truck drivers.  The witness reported 
 
         there is mobility in the position of fork truck operator as the 
 
         employee is capable of deciding when to perform a duty in the 
 
         freezer area.
 
         
 
              Mr. Ondrejka testified claimant would complain about back 
 
         pain from August through December 1987.  The witness reported he 
 
         asked claimant if the back pain was the result of an industrial 
 
         accident, but claimant replied the pain was due to a personal 
 
         reoccurrence of back problems.  Mr. Ondrejka maintained claimant 
 
         was able to perform his assigned tasks from August of 1987 
 
         through January of 1988.
 
         
 
         
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         MENDENHALL V. CARNATION CO., PET FOODS DIVISION
 
         Page 4
 
         
 
         
 
              Mr. Ondrejka additionally testified during the latter part 
 
         of January of 1988, claimant, after a visit with Dr. Wahby, 
 
         wanted to fill out a first report of injury.  According to the 
 
         witness, he wrote down the information on the form.  However, 
 
         claimant supplied all of the information.
 
         
 
              Mr. Ondrejka testified that currently claimant has a stable 
 
         position, that the job is open to claimant as long as he enjoys 
 
         it and that claimant has not missed any raises.  Also, Mr. 
 
         Ondrejka testified that since October of 1988, claimant has lost 
 
         no work time because of back complaints.  The supervisor reported 
 
         claimant has never complained he is incapable of performing job 
 
         duties.
 
         
 
                                  APPLICABLE LAW
 
         
 
              Claimant has the burden of proving by a preponderance of the 
 
         evidence that he received injuries on August 3, 1987 and January 
 
         1988 which arose out of and in the course of his employment.  
 
         McDowell v. Town of Clarksville, 241 N.W.2d 904 (Iowa 1976) ; 
 
         Musselman v. Central Telephone Co., 261 Iowa 352, 154 N.W.2d  128 
 
         (1967).
 
         
 
              An employee is entitled to compensation for any and all 
 
         personal injuries which arise out of and in the course of the 
 
         employment.  Section 85.3(l).
 
         
 
              The injury must both arise out of and be in the course of 
 
         the employment.  Crowe v. DeSoto Consol. Sch. Dist., 246 Iowa 
 
         402, 68 N.W.2d 63 (1955) and cases cited at pp. 405-406 of the 
 
         Iowa Report.  See also Sister Mary Benedict v. St. Mary's Corp., 
 
         255 Iowa 847, 124 N.W.2d 548 (1963) and Hansen v. State of Iowa, 
 
         249 Iowa 1147, 91 N.W.2d 555 (1958).
 
         
 
              The words "out of" refer to the cause or source of the 
 
         injury.  Crowe, 246 Iowa 402, 68 N.W.2d 63 (1955).
 
         
 
              The words "in the course of" refer to the time and place and 
 
         circumstances of the injury.  McClure v. Union et  al.  Counties, 
 
         188 N.W.2d 283 (Iowa 1971); Crowe, 246 Iowa 402, 68 N.W.2d  63 
 
         (1955).
 
         
 
              "An injury occurs in the course of the employment when it is 
 
         within the period of employment at a place the employee may 
 
         reasonably be, and while he is doing his work or something 
 
         incidental to it." Cedar Rapids Comm. Sch. Dist. v. Cady, 278  
 
         N.W.2d 298 (Iowa 1979), McClure, 188 N.W.2d 283 (Iowa 1971); 
 
         Musselman, 261 Iowa 352, 154 N.W.2d 128 (1967).
 
         
 
              The supreme court of Iowa in Almquist v. Shenandoah 
 
         Nurseries, 218 Iowa 724, 731-32, 254 N.W. 35, 38 (1934) discussed
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
         
 
         
 
         MENDENHALL V. CARNATION CO., PET FOODS DIVISION
 
         Page 5
 
         
 
         
 
         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 in-
 
              cludes 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 em-
 
              ployee. [Citations omitted.] The injury to the human body
 
              here contemplated must be something, whether an accident or
 
              not, that acts extraneously to the natural processes of
 
              nature, and thereby impairs the health, overcomes, injures,
 
              interrupts, or destroys some function of the body, or other-
 
              wise damages or injures a part or all of the body.
 
         
 
              The claimant has the burden of proving by a preponderance of 
 
         the evidence that the injuries of August 3, 1987 and January 1988 
 
         are causally related to the disability on which he now bases his 
 
         claim.  Bodish v. Fischer, Inc., 257 Iowa 516, 133 N.W.2d 867 
 
         (1965).  Lindahl v. L. 0. 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,
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
         
 
         
 
         MENDENHALL V. CARNATION CO., PET FOODS DIVISION
 
         Page 6
 
         
 
         
 
         the expert opinion may be accepted or rejected, in whole or in 
 
         part, by the trier of fact.  Id. at 907.  Further, the weight to 
 
         be given to such an opinion is for the finder of fact, and that 
 
         may be affected by the completeness of the premise given the 
 
         expert and other surrounding circumstances.  Bodish, 257 Iowa 
 
         516, 133 N.W.2d 867.  See also Musselman, 261 Iowa 352, 154 
 
         N.W.2d 128 (1967).
 
         
 
              If a claimant contends he has industrial disability he has 
 
         the burden of proving his injury results in an ailment extending 
 
         beyond the scheduled loss.  Kellogg v. Shute and Lewis Coal Co., 
 
         256 Iowa 1257, 130 N.W.2d 667 (1964).
 
         
 
              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 per- 
 
         centages 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, 125 N.W.2d 251 (1963). 
 
         Barton v. Nevada Poultry, 253 Iowa 285, 110 N.W.2d 660 (1961).
 
         
 
              A finding of impairment to the body as a whole found by a 
 
         medical evaluator does not equate to industrial disability.  This 
 
         is so as impairment and disability are not synonymous.  Degree of 
 
         industrial disability can in fact be much different than the 
 
         degree of impairment because in the first instance reference is 
 
         to loss of earning capacity and in the latter to anatomical or 
 
         functional abnormality or loss.  Although loss of function is to 
 
         be considered and disability can rarely be found without it, it 
 
         is not so that a degree of industrial disability is 
 
         proportionally related to a degree of impairment of bodily 
 
         function.
 
         
 
              Factors to be considered in determining industrial 
 
         disability include the employee's medical condition prior to the 
 
         injury, immediately after the injury, and presently; the situs of 
 
         the injury, its severity and the length of healing period; the 
 
         work experience of the employee prior to the injury, after the 
 
         injury and potential for rehabilitation; the employee's 
 
         qualifications intellectually, emotionally and physically; 
 
         earnings prior and subsequent to the injury; age; education; 
 
         motivation; functional impairment as a result of the injury; and 
 
         inability
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
         
 
         
 
         MENDENHALL V. CARNATION CO., PET FOODS DIVISION
 
         Page 7
 
         
 
         
 
         because of the injury to engage in employment for which the 
 
         employee is fitted.  Loss of earnings caused by a job transfer 
 
         for reasons related to the injury is also relevant.  These are 
 
         matters which the finder of fact considers collectively in 
 
         arriving at the determination of the degree of industrial 
 
         disability.
 
         
 
              There are no weighting guidelines that indicate how each of 
 
         the factors are to be considered.  There are no guidelines which 
 
         give, for example, age a weighted value of ten percent of the 
 
         total value, education a value of fifteen percent of total, 
 
         motivation - five percent; work experience - thirty percent, etc.  
 
         Neither does a rating of functional impairment directly correlate 
 
         to a degree of industrial disability to the body as a whole.  In 
 
         other words, there are no formulae which can be applied and then 
 
         added up to determine the degree of industrial disability.  It 
 
         therefore becomes necessary for the deputy or commissioner to 
 
         draw upon prior experience, general and specialized knowledge to 
 
         make the finding with regard to degree of industrial disability.  
 
         See Peterson v. Truck Haven Cafe, Inc., (Appeal Decision February 
 
         28, 1985); Christensen v. Hagen, Inc., (Appeal Decision, March 
 
         26, 1985).  For example, a defendant employer's refusal to give 
 
         any sort of work to a claimant after he suffers his affliction 
 
         may justify an award of disability.  McSpadden  v. Big Ben Coal 
 
         Co., 288 N.W.2d 181 (Iowa 1980).
 
         
 
              Similarly, a claimant's inability to find other suitable 
 
         work after making bona fide efforts to find such work may 
 
         indicate that relief would be granted.  McSpadden, 388 N.W.2d 181 
 
         (Iowa 1980).
 
         
 
                                     ANALYSIS
 
         
 
              The first issue to address is whether claimant has given 
 
         proper notice of the alleged work injury of August 3, 1987.
 
         
 
              Section 85.23 of the Iowa Code provides:
 
         
 
              Unless the employer or the employer's representative
 
              shall have actual knowledge of the occurrence of an
 
              injury received within ninety days from the date of the
 
              occurrence of the injury, or unless the  employee or
 
              someone an the employee's behalf or a dependent or
 
              someone on the dependent's behalf shall give notice
 
              thereof to the employer within ninety days from the
 
              date of the occurrence of the injury, no compensation
 
              shall be allowed.
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
              Failure to give notice is an affirmative defense which the 
 
         employer must prove by a preponderance of the evidence.  DeLong 
 
         v. Highway Commission, 229 Iowa 700, 295 N.W. 91 (1940).  Mefferd
 
         
 
         
 
         
 
         MENDENHALL V. CARNATION CO., PET FOODS DIVISION
 
         Page 8
 
         
 
         
 
         v. Ed Miller & Sons, Inc., Thirty-Third Biennial Report of the 
 
         Industrial Commissioner 191 (Appeal Decision 1977).
 
         
 
              The time period contemplated in Iowa Code section 85.23 does 
 
         not begin to run until the claimant has knowledge of the nature 
 
         of his disability.  Jacques v. Farmers Lbr. & Sup. Co., 242 Iowa 
 
         548, 47 N.W.2d 236, 239 (1951).
 
         
 
              An employer's actual knowledge of occurrence of injury must 
 
         include some information that the injury is work-connected in 
 
         order to satisfy the alternative notice of claim requirement.  
 
         Robinson v. Department of Transp., 296 N.W.2d 809, 812 (Iowa 
 
         1980).  The interpretation in Robinson was confirmed in Doerfer 
 
         Division of CCA v. Nicol, 359 N.W.2d 428, 435 (Iowa 1984).
 
         
 
              A claimant's duty to give notice of injury arises when the 
 
         claimant should recognize the nature, seriousness and probable 
 
         compensable character of his injury or disease.  The 
 
         reasonableness of claimant's conduct is to be judged in light.of 
 
         his education and intelligence. Claimant must know enough about 
 
         the injury or disease to realize that it is both serious and 
 
         work-connected, but positive medical information is unnecessary 
 
         if he has infor- mation from any source which puts him on notice 
 
         of its probable compensability.  Robinson, supra.
 
         
 
              The purpose of the 90 day notice or actual knowledge 
 
         requirement is to give the employer an opportunity to timely 
 
         investigate the acts of the injury.  Id.:  Knipe v. Skelgas Co., 
 
         229 Iowa 740, 748, 294 N.W. 880, 884 (1940) ; Hobbs v. Sioux 
 
         City, 231 Iowa 860, 2 N.W.2d 275 (1942); Dillinger v. City of 
 
         Sioux City, 368 N.W.2d 176 (Iowa 1985).  Koopmans v. Iowa 
 
         Electric Light and Power Company, (Appeal Decision dated December 
 
         30, 1981) on appeal to Iowa Supreme Court).
 
         
 
              The word "compensable" in the workers' compensation notice 
 
         context is not used to connote legal knowledge that a claim is 
 
         within the workers' compensation act.  Rather, "compensable" 
 
         means that the disabling injury was work connected.  Quaker Oats 
 
         Co. v. Miller, 370 So.2d 1363, 1366 (Miss. 1979).
 
         
 
              Unless a statute that imposes a period of limitations 
 
         expressly authorizes exceptions for extenuating circumstances, it 
 
         must be applied uniformly even though the result may be harsh.  
 
         Burgess v. Great Plains Bag Corporation, 409 N.W.2d 676, 679 
 
         (Iowa 1987).
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              A mistake of law is no more an excuse in connection with a 
 
         late compensation claim than anywhere else, unless expressly made 
 
         so by statute.  3 Larson, Workmen's Compensation Law, Section 
 
         78.47 at 15-334.
 
         
 
         
 
         
 
         MENDENHALL V. CARNATION CO., PET FOODS DIVISION
 
         Page 9
 
         
 
         
 
              The initial determination in the instant case, is whether 
 
         claimant has given notice of his claim to his employer under 
 
         section 85.23.  The statute allows for two types of notice.
 
         
 
              The first type of notice is actual knowledge of the 
 
         occurrence of an injury within 90 days.  There was no actual 
 
         knowledge of the alleged injury.  There were no witnesses to the 
 
         alleged incident.  Claimant did not report the incident to a 
 
         proper authority on that date.
 
         
 
              The second type of notice allowed by statute is notice given 
 
         to the employer by the injured employee within 90 days from the 
 
         date of the occurrence of the injury.  There is no question on 
 
         January 21, 1988, claimant verbally notified his supervisor, 
 
         William Ondrejka, of the alleged work injury of August 3, 1987.  
 
         Mr. Ondrejka then wrote in his "supervisor's report of incident":
 
         
 
              This injury is one of those where there is no specific
 
              incident that employee can pinpoint as the exact cause
 
              of injury.  A period of hot weather caused excessive
 
              amounts of blocks of meet [sic] to fall on floor areas
 
              causing a period of excessive lifting.
 
         
 
              Claimant also filled out a written report on January 21, 
 
         1988.  He related the following:
 
         
 
              Describe in your own words the accident.
 
              
 
              Strain back lifting several pallets of meat that had
 
              fallen to the floor.
 
              
 
              List possible causes of your accident.
 
              
 
              Restacked several pallets of meat in the freezer possi-
 
              bly not using proper procedures at all times.
 
              
 
              What could have been done to prevent this accident?
 
              
 
              Do [sic] to high temperatures cooling units are not
 
              able to keep up.  Pallets of meat stacked double high
 
              were falling to the floor and had to be restacked.
 
              Pallets (unreadable) new cooling units.  (Unreadable).
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
              Claimant pointed to a specific traumatic event which 
 
         allegedly caused claimant's disability.  The event purportedly 
 
         occurred on August 3, 1987, although company records reflect 
 
         claimant was vacationing on this date.  There were no witnesses 
 
         who could corroborate claimant's testimony.
 
         
 
              Claimant stated he mentioned to Bill Ondrejka, as early as 
 
         August 10, 1987, that his back was hurting.  At the hearing,
 
         
 
         
 
         
 
         MENDENHALL V. CARNATION CO., PET FOODS DIVISION
 
         Page 10
 
         
 
         
 
         claimant could not recall whether he just said his back was 
 
         hurting or whether he said the injury was work related.
 
         
 
              Bill,Ondrejka denied he was told prior to January 21, 1988, 
 
         that claimant's alleged back injury was work related.  Mr. 
 
         Ondrejka testified that claimant told him on several occasions 
 
         the back pain was due to a reoccurrence of personal back  
 
         problems and the pain was not work related.
 
         
 
              It is the determination of the undersigned there was no 
 
         actual knowledge of the alleged injury and claimant did not 
 
         tender notice to his employer of the alleged injury date of 
 
         August 3, 1987 until January 21, 1988.  The notice was given more 
 
         than 90 days after the date of the alleged injury.  Claimant did 
 
         not comply with the 90 day rule of section 85.23.  As of August 
 
         3, 1987, it would have been reasonable for claimant to assume his 
 
         back condition was or could have been work connected.  Given the 
 
         fact claimant had some college education and he was of seemingly 
 
         average intelligence, he should have realized the disability 
 
         could have been work related.  Claimant did not comply with  the 
 
         provisions of section 85.23.  Therefore, compensation is not 
 
         allowed for the alleged injury date of August 3, 1987.  Further 
 
         discussion of other issues is not required.
 
         
 
              The next issue to address is whether claimant's alleged 
 
         injury of January 4, 1988 arose out of and in the course of his 
 
         employment with defendant.  It is the determination of the 
 
         undersigned that claimant has not sustained his burden of proof.  
 
         There was almost no evidence which described a work related 
 
         incident on January 4, 1988.  In fact, claimant testified he had 
 
         just returned to work on the fourth from a two week plant 
 
         shutdown.  The only testimony claimant presented was that the 
 
         freezer was in a terrible condition and claimant felt sharp pains 
 
         in his back when he tried to pick up meat. Claimant also stated 
 
         he was told by his supervisor to see the company doctor, Dr. 
 
         Allen.  Mr. Ondrejka, the supervisor maintained claimant went to 
 
         see Dr. Allen on January 11, 1988, and not on January 4,  1988.  
 
         Moreover, on the eleventh, Mr. Ondrejka testified claimant denied 
 
         the injury was work related. Mr. Ondrejka was aware of no work 
 
         related incident on January 4, 1988.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              Additionally, records for Hoyt H. Allen, M.D., reveal 
 
         claimant saw him on January 11, 1988, not on January 4, 1988.  No 
 
         incident on January 4, 1988, is described in Dr. Allen's medical 
 
         notes.  Nor does claimant describe any incident occurring on 
 
         January 4, 1988.  Only the alleged August incident is described 
 
         in claimant's employee accident report.  If an incident had 
 
         occurred on January 4, 1988, it stands to reason claimant would 
 
         have included it in his report of January 21, 1988.  Claimant did 
 
         not describe any incidents in January.  Claimant is less than 
 
         credible.  Claimant has not sustained his burden of proof.
 
         
 
         
 
         
 
         MENDENHALL V. CARNATION CO., PET FOODS DIVISION
 
         Page 11
 
         
 
         
 
         Claimant takes nothing as a result of the alleged injury on 
 
         January 4, 1988.
 
         
 
                     FINDINGS OF FACT AND CONCLUSIONS OF LAW
 
         
 
              WHEREFORE, based on the evidence presented and the 
 
         principles of law previously stated, the following findings of 
 
         fact and conclusions of law are made:
 
         
 
              FINDING 1.  Claimant tendered notice on January 21, 1988, of 
 
         the alleged injury of August 3, 1987.
 
         
 
              FINDING 2.  January 21, 1988, was more than 90 days after 
 
         the alleged injury date of August 3, 1987.
 
         
 
              FINDING 3.  It would have been reasonable for claimant to 
 
         assume his alleged injury date of August 3, 1987, could have been 
 
         work related.
 
         
 
              FINDING 4.  Defendants had no actual knowledge of claimant's 
 
         alleged injury on August 3, 1987.
 
         
 
              CONCLUSION A.  Claimant did not give notice pursuant to 
 
         section 85.23 of the code.
 
         
 
              CONCLUSION B.  Claimant takes nothing as a result of the 
 
         alleged injury of August 3, 1987.
 
         
 
              FINDING 5.  Claimant did not sustain an injury on January 4, 
 
         1988, which arose out of and in the course of his employment.
 
         
 
              FINDING 6.  Claimant was less than credible.
 
         
 
              CONCLUSION C.  Because claimant did not sustain an injury on 
 
         January 4, 1988, which arose out of and in the course of his 
 
         employment, claimant takes nothing from these proceedings.
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
                                      ORDER
 
         
 
              Claimant takes nothing from these proceedings.
 
         
 
              Claimant and defendants pay their own costs of these 
 
         proceedings pursuant to Division of Industrial Services Rule 
 
         343-4.33.
 
         
 
         
 
         
 
         MENDENHALL V. CARNATION CO., PET FOODS DIVISION
 
         Page 12
 
         
 
         
 
              Signed and filed this 15th day of March, 1990.
 
         
 
         
 
         
 
                                         MICHELLE A McGOVERN
 
                                         DEPUTY INDUSTRIAL COMMISSIONER
 
         
 
         
 
         
 
         
 
         
 
         Copies To:
 
         
 
         Mr. Robert L. Ulstad
 
         Attorney at Law
 
         P 0 Box 1678
 
         Fort Dodge IA 50501
 
         
 
         Mr. Jerry L. Schnurr, III
 
         Attorney at Law
 
         142 N 9th St.
 
         P 0 Box 817
 
         Fort Dodge IA 50501
 
         
 
         Ms. Patricia J. Martin
 
         Attorney at Law
 
         100 Court Ave
 
         Des Moines IA 50309
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
 
         
 
 
 
 
 
 
 
 
 
 
 
                                         1600; 5-1100
 
                                         Filed March 15, 1990
 
                                         MICHELLE A. McGOVERN
 
         
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         ALLEN DELAINE MENDENHALL,
 
         
 
              Claimant,                               File Nos. 876483
 
                                                                878900
 
         VS.
 
                                                     A R B I T R A T I O 
 
         N
 
         CARNATION CO., PET FOODS
 
         DIVISION,                                        D E C I S I O N
 
         
 
              Employer,
 
         
 
         and
 
         
 
         TRAVELERS INSURANCE CO. and
 
         FEDERAL KEMPER INSURANCE CO.,
 
         
 
              Insurance Carriers,
 
              Defendants.
 
         
 
         
 
         
 
         1600 - Notice
 
         
 
         
 
              Claimant failed to comply with section 85.23 when defendant 
 
         had no actual knowledge that a claimed back condition was alleged 
 
         to be a work related injury and where claimant failed to give 
 
         notice to defendant within 90 days of the alleged injury date.
 
         
 
         
 
         5-1100
 
         
 
         
 
              Claimant did not meet his burden of proving he sustained an 
 
         injury which arose out of and in the course of his employment.