Page   1
 
            
 
            
 
            
 
            
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            MANUAL BALDERAS,              :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :         File No. 877052
 
            LAND O'LAKES,                 :
 
                                          :      A R B I T R A T I O N
 
                 Employer,                :
 
                                          :         D E C I S I O N
 
            and                           :
 
                                          :
 
            KEMPER INSURANCE COMPANY,     :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
            
 
                              statement of the case
 
            
 
                 This is a proceeding in arbitration upon the petition 
 
            of claimant, Manual Balderas, against Land O'Lakes, employer 
 
            and its insurance carrier, Kemper Insurance Company, 
 
            defendants.  The case was heard on October 10, 1989, in Fort 
 
            Dodge, Iowa at the Webster County Courthouse.  The record 
 
            consists of the testimony of claimant, the testimony of 
 
            Guadalupe R. Balderas Garbes, daughter of claimant, Manuel 
 
            R. Balderas, son of claimant, Marcy Rau, human resources 
 
            representative, and Steve Rasmussen, supervisor at Land 
 
            O'Lakes.  Additionally, the record consists of joint 
 
            exhibits A-K, claimant's exhibit J and defendants' exhibits 
 
            L, M and 1-9.
 
            
 
                                      issues
 
            
 
                 The issues to be determined are:  1) whether claimant 
 
            received an injury which arose out of and in the course of 
 
            employment; 2) whether there is a causal relationship 
 
            between the alleged injury and the disability; 3) whether 
 
            claimant is entitled to temporary disability/healing period 
 
            benefits or permanent partial disability benefits; 4) the 
 
            appropriate rate of weekly compensation to use in 
 
            calculating benefits, if any; and, 5) whether claimant is 
 
            entitled to medical expenses under section 85.27.
 
            
 
                             
 
            
 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            
 
            
 
                                 findings of fact
 
            
 
                 The deputy, having heard the testimony and considered 
 
            all the evidence, finds:
 
            
 
                 At the time of the hearing, claimant was 56 years old.  
 
            He is married and two of his six children live with him.  
 
            Claimant does not speak, read or write English.  Spanish is 
 
            his native language, as claimant was born in Mexico.  He 
 
            moved to the United States in 1955.  Claimant completed 5 
 
            years of schooling in Mexico.
 
            
 
                 Claimant first started working for defendant-employer 
 
            in 1969.  He held numerous positions.  For four years, 
 
            claimant worked on the turkey line.  He worked at a table 
 
            which was waist high.  He was required to pick turkeys from 
 
            the floor and place them on hooks.  The hooks were 
 
            approximately head high and claimant used his right hand to 
 
            hook the turkeys.  He was required to hook approximately 
 
            35/40 turkeys per minute.
 
            
 
                 Claimant testified he experienced problems with his 
 
            back in December of 1987.  When he would bend over to pick 
 
            up turkeys, he indicated he had pain at the back, waist and 
 
            down the legs to the knee.  Claimant reported the matter to 
 
            his supervisors.  Claimant left work on March 4, 1988.  This 
 
            was the last day he worked.  He had not returned to any 
 
            position since that date.
 
            
 
                 Claimant was initially treated by John M. Koester, D.O.  
 
            The diagnosis was given as lumbosacral strain and claimant 
 
            was advised to rest.  Several months later a CAT scan and a 
 
            MRI were performed.  The CAT scan exhibited a bulging 
 
            intervertebral disc but no herniation.  The MRI showed an 
 
            intervertebral herniated disk at the L4 to L5 level.  
 
            Claimant started physical therapy.  He was referred to 
 
            Robert Gitchell, M.D., an orthopedic surgeon.  Dr. Gitchell 
 
            placed claimant in Mary Greeley Hospital where he was 
 
            diagnosed as having sciatica of the left leg.
 
            
 
                 Dr. Gitchell referred claimant to Michael Kitchell, 
 
            M.D., a neurologist because claimant's bulging disc did not 
 
            explain claimant's symptoms.  Dr. Kitchell opined claimant's 
 
            nerve damage was due to an inflammatory or diabetic type of 
 
            lumbar root damage (Claimant's Exhibit B, page 11, lines 
 
            3-5).  After Dr. Kitchell checked claimant's blood sugar, 
 
            the physician found the blood sugar was elevated.  As a 
 
            result, Dr. Kitchell opined claimant suffered from diabetic 
 
            lumbar root damage.
 
            
 
                 Dr. Kitchell, in his deposition, testified as to the 
 
            effect of diabetes on nerve damage:
 
            
 
                    A.  Most of the patients that I see with this 
 
                 type of nerve damage in the proximal muscles of 
 
                 the leg, that is the muscles that I noted were 
 
                 weak in Mr. Balderas' condition, who have a 
 
                 painful complaint of numbness, weakness, and 
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
                 backache and leg ache, most of the patients that I 
 
                 see do not have a bulging or a ruptured disc.  
 
                 Most of the patients that I see have it on the 
 
                 basis of either inflammation, that is a neuritis, 
 
                 or a diabetic condition.  And just statistically 
 
                 speaking, most of these patients turn out to be 
 
                 diabetic.
 
            
 
                      Now, the diabetes is felt to cause deposits 
 
                 in some of the smaller blood vessels in the back.  
 
                 Those deposits in the smaller blood vessels will 
 
                 interfere with the blood supply to the nerves that 
 
                 come out of the back and go down into the leg.  
 
                 They have a propensity, or people with diabetes 
 
                 have a great tendency to have a damage to those 
 
                 particular nerve roots that go to the muscles 
 
                 around the hip and the knee.  That nerve damage, 
 
                 therefore, is due to a build-up of some blockage 
 
                 in those very small blood vessels that go to 
 
                 supply those nerves.
 
            
 
                      In other words, the nerves will not work, 
 
                 they will have nerve damage, if those very tiny 
 
                 blood vessels become plugged up due to the 
 
                 diabetes.
 
            
 
                    Q.  And the areas that would most likely be 
 
                 effected due to a diabetic lumbar root problem 
 
                 would be the areas around the hip and the knee?
 
            
 
                    A.  Yes.  The nerves that go to the muscles 
 
                 control the movements of the hip and the knee.
 
            
 
                    Q.  And if I understand your previous testimony 
 
                 correctly, those are the two areas that you found 
 
                 abnormalities with regard to the muscles in Mr. 
 
                 Balderas?
 
            
 
                    A.  That's correct.
 
            
 
                 Dr. Kitchell further testified that claimant's left 
 
            ulnar neuropathy and his left leg nerve damage were due to 
 
            claimant's diabetes.  Dr. Kitchell did not believe the 
 
            condition was due to claimant's bulging disk.  Nor did Dr. 
 
            Kitchell determine claimant's condition was work related.
 
            
 
                 Subsequently, claimant obtained a second opinion in the 
 
            neurology department at the University of Iowa.  E. Peter 
 
            Bosch, M.D., examined and evaluated claimant.  In his report 
 
            of October 20, 1988, Dr. Bosch opined:
 
            
 
                 In summary, Mr. Balderas is most likely suffering 
 
                 from a diabetic amyotrophy of his left lower 
 
                 extremity, or proximal motor polyradicular 
 
                 neuropathy.  Although the patient's glucose is 
 
                 currently well controlled, we assume that type 2 
 
                 diabetes was present at the time of him developing 
 
                 the neurological deficits.  We feel that the 
 
                 patient's prognosis is good, but it should take 
 
                 him approximately one year to recover.  We 
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
                 recommend that he be placed back on Elavil, and 
 
                 use abstinence from alcohol beverages.
 
            
 
                 Dr. Gitchell, in his report of May 31, 1989, later 
 
            agreed with the earlier findings of Dr. Kitchell and Dr. 
 
            Bosch of diabetic neuropathy or plexopathy.
 
            
 
                 Claimant, in anticipation of this hearing, obtained an 
 
            independent medical examination and evaluation from Paul 
 
            From, M.D., on February 28, 1989.  Dr. From diagnosed 
 
            claimant as having:
 
            
 
                 1.  Amyotrophy, diabetic, or proximal motor poly-            
 
                 radicular neuropathy, especially involving the 
 
                 left       lower extremity.
 
            
 
                 2.  Ulnar neurophathy [sic], left.
 
            
 
                 3.  Diabetes mellitus, adult onset type, 
 
                 noninsulin           dependent.
 
            
 
                 4.  Hypertension.
 
            
 
                 5.  Sensorineural hearing loss.
 
            
 
                 6.  Hypercholesterolemia.
 
            
 
                 7.  Hypertriglyceridemia.
 
            
 
                 8.  HDL cholesterol not unusually elevated with a            
 
                 definite increase in Cholesterol/HDL ratio.
 
            
 
                 9.  LDL/Cholesterol ratio satisfactory.
 
            
 
                 10.  Nonspecific ECG changes.
 
            
 
                 11.  Osteoarthropathy of various joints, 
 
                 especially            dorsal spine.
 
            
 
                 12.  Overweight, polyphagic.
 
            
 
                 Dr. From opined claimant's condition was caused or 
 
            accelerated by his work activity.  Dr. From testified in his 
 
            deposition:
 
            
 
                    A.  I think that that sort of repetitive work, 
 
                 which is at a very rapid pace with a great deal of 
 
                 lifting and stretching and then bending, would 
 
                 certainly bring about some of the conditions that 
 
                 were found in the MRI scans and CT scans of the 
 
                 back.
 
            
 
                      It would certainly produce some of the 
 
                 physical findings I found in the physical 
 
                 examination of Mr. Balderas and may well have 
 
                 accelerated the development of the neuropathy 
 
                 which came about because of his diabetes.
 
            
 
                     ...
 
            
 

 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
                    Q.  Can you explain how that would affect the 
 
                 conditions you diagnosed?
 
            
 
                    A.  The constant twisting, turning, lifting, 
 
                 bending and lifting with weights and tightening up 
 
                 the muscles of the upper arms and back did produce 
 
                 strain against his back, spine and muscles both, 
 
                 which led to his problems.
 
            
 
                      He did complain on a number of occasions of 
 
                 back pain.  He had a number of treatments for his 
 
                 back.  He had, obviously, complaints referable to 
 
                 the back or he wouldn't have had sophisticated 
 
                 studies as CT scans, MRIs, electromyograms and 
 
                 myelograms.  There was no clear-cut history of any 
 
                 one injury.
 
            
 
                      He had a gradual onset of symptomatology 
 
                 while doing this same job five days a week for 
 
                 four years.  I believe there is a definite cause 
 
                 or relationship between that activity and his 
 
                 symptomatology and findings.
 
            
 
                     ...
 
            
 
                    Q.  With respect to the spinal stenosis 
 
                 condition, could you describe for the industrial 
 
                 commissioner, if you can, how repetitive bending 
 
                 and lifting affects that condition?
 
            
 
                    A.  Yes.  The repetitive twisting and turning 
 
                 brings about arthritic changes in the spine itself 
 
                 and all the joints in the spine.  This causes 
 
                 encroachment of the spinal canal by this bony 
 
                 tissue so that there is a shrinkage of the canal 
 
                 or a closing down or stenosis of that area.
 
            
 
                      That then does bring pressure against the 
 
                 spinal cord itself and against the nerves which 
 
                 emerged from the vertebral column coming from the 
 
                 spinal cord so that the function of the nerves is 
 
                 impaired, usually causing pain and certainly 
 
                 causing impairment of function of muscles supplied 
 
                 by those nerves, and that's all brought about over 
 
                 a gradual period of time.
 
            
 
                      It is not a clear-cut, sudden, one-time 
 
                 fracture or acute herniation or anything like 
 
                 that.  It is repetition bringing about arthritic 
 
                 or, as we call them, spondylitic changes.
 
            
 
                 However, Dr. From did acknowledge in his deposition:
 
            
 
                    Q.  Dr. Kitchell, I think, testified in his 
 
                 deposition that it wasn't unusual for a gentleman 
 
                 such as Mr. Balderas to have a sudden onset of 
 
                 diabetic polyradiculopathy.  Would you agree with 
 
                 that?
 
            
 
                    A.  I would say that happened, yes, sir.
 

 
            
 
            Page   6
 
            
 
            
 
            
 
            
 
            
 
                    Q.  So the mere fact that Mr. Balderas suddenly 
 
                 started to have back and lower leg pain would not 
 
                 necessarily mean that those problems were due to 
 
                 nerve root impingement from a work-related injury.  
 
                 That kind of history would also be consistent with 
 
                 diabetic polyradiculopathy?
 
            
 
                    A.  That could be, yes, sir.
 
            
 
                 Also, Dr. From admitted:
 
            
 
                    Q.  Would it be fair to say that, in your 
 
                 opinion, Mr. Balderas would be disabled if we 
 
                 excluded for the moment any question about whether 
 
                 he suffered a work-related injury?  In other 
 
                 words, wouldn't the diabetic polyneuropathy be 
 
                 sufficient enough in itself to disable this 
 
                 gentleman based on the history that you took and 
 
                 the findings that you made?
 
            
 
                    A.  It is not impossible that that is true.  I 
 
                 mean the footdrop makes it difficult for him to 
 
                 get around.  The weakness of the adductor muscles, 
 
                 for example, in his thigh make it difficult for 
 
                 him to move.  The pain makes it difficult for him.
 
            
 
                      I just can't separate the fact that he has 
 
                 got that problem from other mechanical problems, 
 
                 though.  It is almost impossible to know which is 
 
     
 
            
 
            
 
            Page   7
 
            
 
            
 
            
 
            
 
                 which.  You know, I mean I think they are both 
 
                 there, and I think they are both--  One is more 
 
                 treatable than the other.
 
            
 
                      Until you can eliminate one, you don't know 
 
                 what the other one is doing all the while.  But it 
 
                 is not impossible that he would be impaired just 
 
                 from the diabetes.
 
            
 
                                conclusions of law
 
            
 
                 Claimant has the burden of proving by a preponderance 
 
            of the evidence that he received an injury on March 4, 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(1).
 
            
 
                 The injury must both arise out of and be in the course 
 
            of the employment.  Crowe v. DeSoto Consol. Sch. Dist., 246 
 
            Iowa 402, 68 N.W.2d 63 (1955) and cases cited at pp. 405-406 
 
            of the Iowa Report.  See also Sister Mary Benedict v. St. 
 
            Mary's Corp., 255 Iowa 847, 124 N.W.2d 548 (l963) and Hansen 
 
            v. State of Iowa, 249 Iowa 1147, 91 N.W.2d 555 (1958).
 
            
 
                 The words "out of" refer to the cause or source of the 
 
            injury.  Crowe, 246 Iowa 402, 68 N.W.2d 63 (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 the definition of personal injury in workers' 
 
            compensation cases as follows:
 
            
 
                 
 
            
 
                 While a personal injury does not include an occupa
 
                 tional disease under the Workmen's Compensation 
 
                 Act, yet an injury to the health may be a personal 
 
                 injury.  [Citations omitted.]  Likewise a personal 
 
                 injury includes a disease resulting from an 
 
                 injury....The result of changes in the human body 
 
                 incident to the general processes of nature do not 
 
                 amount to a personal injury.  This must follow, 
 

 
            
 
            Page   8
 
            
 
            
 
            
 
            
 
                 even though such natural change may come about 
 
                 because the life has been devoted to labor and 
 
                 hard work.  Such result of those natural changes 
 
                 does not constitute a personal injury even though 
 
                 the same brings about impairment of health or the 
 
                 total or partial incapacity of the functions of 
 
                 the human body. 
 
            
 
                    ....
 
            
 
                 
 
                 A personal injury, contemplated by the Workmen's 
 
                 Compensation Law, obviously means an injury to the 
 
                 body, the impairment of health, or a disease, not 
 
                 excluded by the act, which comes about, not through the 
 
                 natural building up and tearing down of the human body, 
 
                 but because of a traumatic or other hurt or damage to 
 
                 the health or body of an employee.  [Citations 
 
                 omitted.]  The injury to the human body here 
 
                 contemplated must be something, whether an accident or 
 
                 not, that acts extraneously to the natural processes of 
 
                 nature, and thereby impairs the health, overcomes, 
 
                 injures, interrupts, or destroys some function of the 
 
                 body, or otherwise damages or injures a part or all of 
 
                 the body.
 
            
 
                 The claimant has the burden of proving by a 
 
            preponderance of the evidence that the injury of March 4, 
 
            1988, is causally related to the disability on which he now 
 
            bases his claim.  Bodish v. Fischer, Inc., 257 Iowa 516, 133 
 
            N.W.2d 867 (1965).  Lindahl v. L. O. Boggs, 236 Iowa 296, 18 
 
            N.W.2d 607 (1945).  A possibility is insufficient; a 
 
            probability is necessary.  Burt v. John Deere Waterloo 
 
            Tractor Works, 247 Iowa 691, 73 N.W.2d 732 (1955).  The 
 
            question of causal connection is essentially within the 
 
            domain of expert testimony.  Bradshaw v. Iowa Methodist 
 
            Hospital, 251 Iowa 375, 101 N.W.2d 167 (1960). 
 
            
 
                 However, expert medical evidence must be considered 
 
            with all other evidence introduced bearing on the causal 
 
            connection.  Burt, 247 Iowa 691, 73 N.W.2d 732.  The opinion 
 
            of experts need not be couched in definite, positive or 
 
            unequivocal language.  Sondag v. Ferris Hardware, 220 N.W.2d 
 
            903 (Iowa 1974).  However, the expert opinion may be 
 
            accepted or rejected, in whole or in part, by the trier of 
 
            fact.  Id. at 907.  Further, the weight to be given to such 
 
            an opinion is for the finder of fact, and that may be 
 
            affected by the completeness of the premise given the expert 
 
            and other surrounding circumstances.  Bodish, 257 Iowa 516, 
 
            133 N.W.2d 867.  See also Musselman, 261 Iowa 352, 154 
 
            N.W.2d 128 (1967).
 
            
 
                 While a claimant is not entitled to compensation for 
 
            the results of a preexisting injury or disease, the mere 
 
            existence at the time of a subsequent injury is not a 
 
            defense.  Rose v. John Deere Ottumwa Works, 247 Iowa 900, 
 
            908, 76 N.W.2d 756, 760-61 (1956).  If the claimant had a 
 
            preexisting condition or disability that is aggravated, 
 
            accelerated, worsened or lighted up so that it results in 
 
            disability, claimant is entitled to recover.  Nicks v. 
 

 
            
 
            Page   9
 
            
 
            
 
            
 
            
 
            Davenport Produce Co., 254 Iowa 130, 115 N.W.2d 812, 815 
 
            (1962).
 
            
 
                 When an aggravation occurs in the performance of an 
 
            employer's work and a causal connection is established, 
 
            claimant may recover to the extent of the impairment.  
 
            Ziegler v. United States Gypsum Co., 252 Iowa 613, 620, 106 
 
            N.W.2d 591, 595 (1960).
 
            
 
                 The Iowa Supreme Court cites, apparently with approval, 
 
            the C.J.S. statement that the aggravation should be material 
 
            if it is to be compensable.  Yeager v. Firestone Tire & 
 
            Rubber Co., 253 Iowa 369, 112 N.W.2d 299 (1961); 100 C.J.S. 
 
            Workmen's Compensation sec. 555(17)a.
 
            
 
                 Our supreme court has stated many times that a claimant 
 
            may recover for a work connected aggravation of a 
 
            preexisting condition.  Almquist, 218 Iowa 724, 254 N.W. 35 
 
            (1934).  See also Auxier v. Woodward State Hosp. Sch., 266 
 
            N.W.2d 139 (Iowa 1978); Gosek v. Garmer and Stiles Co., 158 
 
            N.W.2d 731 (Iowa 1968); Barz v. Oler, 257 Iowa 508, 133 
 
            N.W.2d 704 (1965); Olson v. Goodyear Service Stores, 255 
 
            Iowa 1112, 125 N.W.2d 251 (1963); Yeager, 253 Iowa 369, 112 
 
            N.W.2d 299 (1961); Ziegler, 252 Iowa 613, 106 N.W.2d 591 
 
            (1960).
 
            
 
                 An employer takes an employee subject to any active or 
 
            dormant health impairments, and a work connected injury 
 
            which more than slightly aggravates the condition is 
 
            considered to be a personal injury.  Ziegler, 252 Iowa 613, 
 
            620, 106 N.W.2d 591 (1960), and cases cited.
 
            
 
                 An employee is not entitled to recover for the results 
 
            of a preexisting injury or disease but can recover for an 
 
            aggravation thereof which resulted in the disability found 
 
            to exist.  Olson, 255 Iowa 1112, 125 N.W.2d 251 (1963); 
 
            Yeager, 253 Iowa 369, 112 N.W.2d 299 (1961); Ziegler, 252 
 
            Iowa 613, 106 N.W.2d 591 (1960).  See also Barz, 257 Iowa 
 
            508, 133 N.W.2d 704 (1965); Almquist, 218 Iowa 724, 254 N.W. 
 
            35 (1934).
 
            
 
                 In the case at hand, the greater weight of the evidence 
 
            establishes that claimant's condition is not causally 
 
            connected to his work activities.  Claimant does suffer from 
 
            a neuropathy.  Dr. Kitchell and Dr. Bosch have both 
 
            diagnosed the condition.  Even Dr. From agrees that:
 
            
 
                 I believe most of his pain is secondary to a 
 
                 diabetic poly-radiculopathy.  He has considerable 
 
                 motor findings with this and has significant 
 
                 atrophy in the adductor muscles and quadriceps of 
 
                 the left lower extremity.
 
            
 
            (Ex. 6, p. 5).
 
            
 
                 Dr. Kitchell, a treating physician who is board 
 
            certified in neurology, does not causally relate claimant's 
 
            condition to claimant's work activities.  More weight is 
 
            accorded to him as a treating neurologist.  He has spent 
 
            much more time with claimant.  Dr. From has examined 
 

 
            
 
            Page  10
 
            
 
            
 
            
 
            
 
            claimant on only one occasion.  Dr. From has not treated 
 
            claimant.  Additionally, Dr. Kitchell does not believe 
 
            claimant's work activities aggravate his condition.  In 
 
            support of this opinion Dr. Kitchell testified:
 
            
 
                    Q.  Well, I'll rephrase it.  The activity of 
 
                 Mr. Balderas, would it affect the condition at 
 
                 all?
 
            
 
                    A.  Okay.  Now, let's go back and talk about 
 
                 the condition.  He has -- he has both signs and 
 
                 symptoms.  His condition is that he has a diabetic 
 
                 type of nerve damage.  Whether Mr. Balderas was 
 
                 physically active or inactive would not affect the 
 
                 fact that he has diabetic nerve damage.  But the 
 
                 fact that Mr. Balderas was active or inactive 
 
                 would certainly make a difference as to how 
 
                 comfortable he felt, how much he would suffer.
 
            
 
                      So that's why I say if he was suffering a lot 
 
                 from pain, or if he was unable to do some physical 
 
                 activity easily, that is if his leg was too weak 
 
                 to do something and it caused him to strain a lot, 
 
                 that made him very uncomfortable, then I would 
 
                 recommend he limit his activity.
 
            
 
                    Q.  But you're not saying that the activity 
 
                 itself contributed to the pain and the condition?
 
            
 
                    A.  The activity would not make his diabetic 
 
                 nerve damage worse, but it might make his 
 
                 discomfort worse.
 
            
 
                    Q.  It would not aggravate it in terms of the 
 
                 ending condition, or the condition as it was?
 
            
 
                    A.  Activity would not aggravate the diabetic 
 
                 nerve damage, that's correct.
 
            
 
                    Q.  It would aggravate the pain that the person 
 
                 had because of --
 
            
 
                    A.  I would certainly expect so, yes.
 
            
 
                 It is also interesting to note that if claimant's 
 
            neuropathy had been materially aggravated by his work 
 
            condition, his removal from the work setting should have 
 
            lessened claimant's condition.  However, even after claimant 
 
            left the work site on March 2, 1988, his condition worsened.  
 
            This factor bears upon the decision of the undersigned.
 
            
 
                 Even claimant's medical expert, Dr. From, acknowledged, 
 
            "But it is not impossible that he would be impaired just 
 
            from the diabetes."  Dr. From did not entirely rule out 
 
            claimant's preexisting diabetes as the sole cause of his 
 
            condition.
 
            
 
                 In light of the foregoing, it is the decision of the 
 
            undersigned that claimant has not proven the requisite 
 
            causal connection.  Claimant's current condition is 
 

 
            
 
            Page  11
 
            
 
            
 
            
 
            
 
            unrelated to his work environment.
 
            
 
                                      order
 
            
 
                 THEREFORE, IT IS ORDERED:
 
            
 
                 Claimant takes nothing further from these proceedings.
 
            
 
                 Each party shall pay its own costs.
 
            
 
            
 
            
 
                 Signed and filed this ____ day of November, 1990.
 
            
 
            
 
            
 
            
 
            
 
                                          ______________________________               
 
            MICHELLE A. McGOVERN
 
                                          DEPUTY INDUSTRIAL COMMISSIONER
 

 
            
 
            Page  12
 
            
 
            
 
            
 
            
 
            
 
            
 
            
 
            
 
            
 
            Copies To:
 
            
 
            Mr. Charles Deppe
 
            Attorney at Law
 
            P O Box 86
 
            Jewell  IA  50130
 
            
 
            Mr. Marvin E. Duckworth
 
            Attorney at Law
 
            Suite 111, Terrace Center
 
            2700 Grand Ave
 
            Des Moines  IA  50312
 
            
 
            Mr. Paul C. Thune
 
            Attorney at Law
 
            218 6th Ave  STE 300
 
            P O Box 9130
 
            Des Moines  IA  50306
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                           5-1108
 
                           Filed November 14, 1990
 
                           MICHELLE A. McGOVERN
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            MANUAL BALDERAS,              :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :         File No. 877052
 
            LAND O'LAKES,                 :
 
                                          :      A R B I T R A T I O N
 
                 Employer,                :
 
                                          :         D E C I S I O N
 
            and                           :
 
                                          :
 
            KEMPER INSURANCE COMPANY,     :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
            
 
            
 
            5-1108
 
            Claimant did not prove by a preponderance of the evidence 
 
            the requisite causal connection.
 
            
 
 
         
 
 
 
 
 
 
 
 
 
 
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         VIRGIL DALE LANDERS,
 
         
 
              Claimant,
 
         
 
         VS.
 
                                                 File No. 877053
 
         BILL'S TRUCK LINE,
 
                                                 A R B I T R A T I 0 N
 
              Employer,
 
                                                  D E C I S I 0 N
 
         and
 
         
 
         EMPLOYERS MUTUAL,
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         
 
                                   INTRODUCTION
 
         
 
              This is an arbitration proceeding brought by Virgil Dean 
 
         Landers, claimant, against Bill's Truck Lines, employer, and its 
 
         insurance carrier, Employers Mutual, defendants.  The case was 
 
         heard by the undersigned in Des Moines, Iowa on September 1, 
 
         1989.
 
         
 
              The record consists of the testimony of claimant.  The 
 
         record also consists of the testimony of William E. (Bill) 
 
         Snakenberg, owner of Bill's Truck Lines.  Additionally, the 
 
         record consists of joint exhibits A-L.
 
         
 
                                   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. The extent of entitlement to weekly compensation for 
 
         temporary total disability or healing period, if defendants are 
 
         liable for the injury, is stipulated to be from June 3, 1987 to 
 
         December 4, 1987.
 
         
 
         
 
         
 
         LANDERS V. BILL'S TRUCK LINE
 
         Page 2
 
         
 
         
 
              3. That the commencement date for permanent partial 
 
         disability, in the event such benefits are awarded, is stipulated 
 
         to be the 4th day of December, 1987; and,
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              4. In the event of an award of weekly benefits, the rate of 
 
         weekly compensation is stipulated to be $352.03.
 
         
 
                                      ISSUES
 
         
 
              As a result of the prehearing report and order submitted 
 
         and approved on September 1, 1989, the issues presented by the 
 
         parties are:
 
         
 
              1. Whether claimant received an injury which arose out of 
 
         and in the course of employment;
 
         
 
              2. Whether there is a casual relationship between the 
 
         alleged injury and the disability;
 
         
 
              3. Whether claimant is entitled to temporary 
 
         disability/healing period benefits or permanent partial or total 
 
         disability benefits;
 
         
 
              4. Whether claimant is entitled to medical benefits under 
 
         section 85.27; and,
 
         
 
              5. Whether claimant provided notice under section 85.23 of 
 
         the Iowa Code.
 
         
 
                                 FACTS PRESENTED
 
         
 
              Claimant is 42 years old.  He graduated from high school in 
 
         1966. Claimant had been employed by defendant-employer in 1985.  
 
         He was hired as an over-the-road truck driver.  Often, claimant 
 
         testified, he would be required to drive in excess of DOT 
 
         regulations.  Claimant testified he hauled livestock as far  as  
 
         Montana and that he was expected to load his own trailer as well 
 
         as to clean it.
 
         
 
              During direct examination, claimant indicated the usual 
 
         height of a trailer was five feet seven inches high.  Claimant 
 
         stated he was six feet two inches in height and that whenever he 
 
         was required to clean the trailer, he was forced to stoop.  
 
         Claimant testified the cleaning process took from 20 minutes to 
 
         one hour to complete.  Claimant also testified his back began 
 
         bothering him in October or November of 1986 and it was difficult 
 
         for him to stand up straight.  He stated the condition gradually 
 
         worsened and he sought the professional services of Phillip D. 
 
         Zickefoose, D.C., on November 17, 1986.
 
         
 
         
 
         
 
         LANDERS V. BILL'S TRUCK LINE
 
         Page 3
 
         
 
         
 
              Claimant reported he continued to work but he did take one 
 
         week off at Christmas in order to "rest his back."  Claimant also 
 
         testified that his driver's license was suspended for 90 days as 
 
         of February 14, 1987.  At that time, claimant left the employ of 
 
         defendant.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              Claimant testified he became employed with Precision Pulley 
 
         in Pella on February 28, 1987 or March 28, 1987.  Claimant stated 
 
         he informed Precision Pulley of his back condition and he was 
 
         still hired to run a lathe.  Claimant, at the time of the 
 
         hearing, was still employed at Precision Pulley.
 
         
 
              Claimant indicated he had surgery for a herniated disk on 
 
         June 3, 1987. The surgery was performed by E. A. Dykstra, M.D., 
 
         in Iowa City.  Claimant stated he last saw Dr. Dykstra in 
 
         December of 1987.  At the time of the hearing, claimant was not 
 
         taking any medication.
 
         
 
              William E. Snakenberg testified for defendants.  He 
 
         reported he is the owner and operator of Bill's Truck Line.  Mr. 
 
         Snakenberg indicated claimant voluntarily terminated his 
 
         employment in February of 1987 when he lost his driver's license.
 
         
 
              Mr. Snakenberg also testified that he first learned of 
 
         claimant's back problems on June 3, 1988.  That was the date, Mr. 
 
         Snakenberg testified, on which he received a copy of the original 
 
         notice and petition.  He stated claimant never informed him of 
 
         any type of workers' compensation claim.
 
         
 
                           APPLICABLE LAW AND ANALYSIS
 
         
 
              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 on the employee's behalf or a dependent or
 
              someone on the dependent's behalf shall give notice
 
              thereof to the employer within ninety days from the
 
              date of the occurrence of the injury, no compensation
 
              shall be allowed.
 
         
 
              Failure to give notice is an affirmative defense which the 
 
         employer must provide by a preponderance of the evidence.  DeLong 
 
         v. Highway Commission, 229 Iowa 700, 295 N.W. 91 (1940).  Mefferd 
 
         v. Ed Miller & Sons. Inc., Thirty-Third Biennial Report of the 
 
         Industrial Commissioner 191 (Appeal Decision 1977).
 
         
 
              The time period contemplated in Iowa Code section 85.23 
 
         does not begin to run until the claimant has knowledge of the 
 
         nature
 
         
 
         
 
         
 
         LANDERS V. BILL'S TRUCK LINE
 
         Page 4
 
         
 
         
 
         of his disability.  Jacques v. Farmers Lbr. & Sup. Co., 242 Iowa 
 
         548, 47 N.W.2d 236, 239 (1951).
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              An employer's actual knowledge of occurrence of injury must 
 
         include some information that the injury is work-connected in 
 
         order to satisfy the alternative notice of claim requirement.  
 
         Robinson v. Department of Transp., 296 N.W.2d 809, 812 (Iowa 
 
         1980).  The interpretation in Robinson was confirmed in Doerfer 
 
         Division of CCA v. Nicol, 359 N.W.2d 428, 435 (Iowa 1984).
 
         
 
              A claimant's duty to give notice of injury arises when the 
 
         claimant should recognize the nature, seriousness and probable 
 
         compensable character of his injury or disease.  The 
 
         reasonableness of claimant's conduct is to be judged in light of 
 
         his education and intelligence.  Claimant must know enough about 
 
         the injury or disease to realize that it is both serious and 
 
         work-connected, but positive medical information is unnecessary 
 
         if he has information from any source which puts him on notice of 
 
         its probable compensability.  Robinson, supra.
 
         
 
              The purpose of the 90 day notice or actual knowledge 
 
         requirement is to give the employer an opportunity to timely 
 
         investigate the acts of the injury.  Id.:  Knipe v. Skelgas 
 
         Co., 229 Iowa 740, 748, 294 N.W. 880, 884 (1940); Hobbs v. Sioux 
 
         City, 231 Iowa 860, 2 N.W.2d 275 (1942); Dillinger v. City of 
 
         Sioux City, 368 N.W.2d 176 (Iowa 1985).  Koopmans v. Iowa 
 
         Electric Light and Power Company, (Appeal Decision dated December 
 
         30, 1981) on appeal to Iowa Supreme Court).
 
         
 
              The word "compensable" in the workers' compensation notice 
 
         context is not used to connote legal knowledge that a claim is 
 
         within the workers' compensation act.  Rather, "compensable" 
 
         means that the disabling injury was work connected.  Quaker Oats 
 
         Co. v. Miller, 370 So.2d 1363, 1366 (Miss. 1979).
 
         
 
              Unless a statute that imposes a period of limitations 
 
         expressly authorizes exceptions for extenuating circumstances, it 
 
         must be applied uniformly even though the result may be harsh. 
 
         Burgess v..Great.Plains        Bag Corporation, 409 N.W.2d 676, 
 
         679 (Iowa 1987).
 
         
 
              A mistake of law is no more an excuse in connection with a 
 
         late compensation claim than anywhere else, unless expressly made 
 
         so by statute.  3 Larson, Workmen's Compensation Law, Section 
 
         78.47 at 15-334.
 
         
 
              The initial determination in the instant case, is whether 
 
         claimant has given notice of his claim to his employer under 
 
         section 85.23.  The statute allows for two types of notice.
 
         
 
         
 
         
 
         LANDERS V. BILL'S TRUCK LINE
 
         Page 5
 
         
 
         
 
              The first type of notice is actual knowledge of the 
 
         occurrence of an injury within 90 days.  The second type of 
 
         notice allowed by statute is notice given to the employer by the 
 
         injured employee within 90 days from the date of the occurrence 
 
         of the injury.  Claimant admits no formal written notice was 
 
         tendered to employer.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              It is undisputed claimant's attorney did tender a letter 
 
         dated June 23, 1987, to defendant insurance carrier informing 
 
         defendant carrier of claimant's claim.
 
         
 
              Claimant alleges an injury date of November 15, 1986.  He 
 
         testified at his hearing he noticed problems in October or 
 
         November and that he sought the services of a chiropractor.  Mr. 
 
         Snakenberg knew claimant was seeing a chiropractor for a back 
 
         condition because Snakenberg assisted claimant with the 
 
         submission of various medical bills to the health insurance 
 
         carrier. However, Mr. Snakenberg stated claimant never mentioned 
 
         that the back condition was a work related injury.  Claimant, in 
 
         his deposition, did not dispute Snakenberg's statement.  Claimant 
 
         stated:
 
         
 
              Q.  Let me ask you this.  When is -- Back up one second
 
              and strike that.
 
         
 
                  Did you ever tell your supervisor, or whoever it
 
              was in charge of you at Bill's Trucking, that you were
 
              having back problems due to the truck driving?
 
         
 
              A.  I don't think I really told anybody that I was
 
              really having that much back trouble.  I mean Bill knew
 
              I was having trouble, and he knew I was going to the
 
              chiropractor.  And he knew I was having trouble clean-
 
              ing out trailers and stuff, too.
 
         
 
              Q.  Do you -- In your own mind, during that period of
 
              time did you associate your back complaints with the
 
              driving and with the bending over and that stuff?
 
         
 
              A.  It's the only thing it could have been.
 
         
 
              Q.  Okay. When is the first time -- and I know this is
 
              a hard question -- But when is the first time, in your
 
              judgment, that you ever told your employer, Bill's
 
              Truck Line, Bill or whoever it was that would be the
 
              owner of Bill's, that my back hurts because of the work
 
              I'm doing, because of the sweeping out of the trucks or
 
              the lifting or the driving or whatever it is?  When is
 
              the first time you ever told him, if you know, if you
 
              ever did?  I don't know.
 
         
 
         
 
         
 
         LANDERS V. BILL'S TRUCK LINE
 
         Page 6
 
         
 
         
 
              A.  I don't know. He'd be out there helping once in a
 
              while cleaning out trailers, and -- you know, because
 
              we'd get out of the trailer and I couldn't hardly stand
 
              -- you know, straighten up, because the decks in there
 

 
         
 
 
 
 
 
 
 
 
 
 
 
              is lower than I am tall and you've got to bend over all
 
              the time.
 
         
 
              Q.  Again, do you recall when the first time was that
 
              you would have ever told him that you were having back
 
              complaints because -- you think it's because of your
 
              work, if you know?
 
         
 
              A.  I can't remember.
 
         
 
              Q.  Do you think you ever did?
 
         
 
              A.  I don't know.
 
         
 
              Q.  Okay. Might you not have told him?
 
         
 
              A.  I might not have.  I don't know.
 
         
 
         (Joint Exhibit A, pages 39 to 40)
 
         
 
              Claimant had a duty to notify his employer that his injury 
 
         was work connected.  On November 17, 1986, claimant saw Dr. 
 
         Zickefoose, D.C.  The medical records indicate claimant had had 
 
         problems with his back for three weeks prior to that office call.
 
         
 
              At that point in time, it would be reasonable for claimant 
 
         to assume his back condition was or could have been work 
 
         connected.  Claimant testified he had to stoop when he cleaned 
 
         his trailer.  Claimant also testified it was increasingly more 
 
         difficult for him to straighten up when standing.  Additionally,  
 
         during Christmas time, claimant took off a week from work so  he 
 
         could rest his back.  Obviously, claimant recognized  aggravated 
 
         symptoms after a day of work.  Given the fact claimant was a high 
 
         school graduate and of seemingly average intelligence, he should 
 
         have realized the disability could have been work related.  
 
         Therefore., it is the determination of the undersigned that as of 
 
         November 15, 1986, the 90 day notice period began to run.
 
         
 
              It is also the determination of the undersigned that proper 
 
         notice under section 85.23 was not tendered to the employer 
 
         within the 90 day period. Claimant did not comply with the 
 
         provisions of section 85.23.  Therefore, compensation is not 
 
         allowed
 
         
 
              Since section 85.23 disposes of this case, other issues are 
 
         moot.  A detailed discussion is unnecessary.
 
         
 
         
 
         
 
         LANDERS V. BILL'S TRUCK LINE
 
         Page 7
 
         
 
         
 
                     FINDINGS OF FACT AND CONCLUSIONS OF LAW
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
              WHEREFORE, based,on the evidence presented and the 
 
         principles of law previously cited, the following findings of 
 
         fact and conclusions of law are made:
 
         
 
              FINDING 1.  Defendants did not have actual knowledge of 
 
         claimant's alleged injury of November 15, 1986 until June 23, 
 
         1987.
 
         
 
              FINDING 2.  Claimant did not tender notice of his alleged 
 
         injuries to defendants until more than 90 days after the date of 
 
         the alleged injury.
 
         
 
              FINDING 3.  Claimant had knowledge of his work injury as of 
 
         November 15, 1986.
 
         
 
              CONCLUSION A.  Claimant did not comply with section 85.23 
 
         of the Iowa Code.
 
         
 
                                      ORDER
 
         
 
              Claimant takes nothing from these proceedings.
 
         
 
              Defendants pay the costs of these proceedings pursuant to 
 
         Division of Industrial Services Rule 343-4.33.
 
         
 
         
 
         
 
         
 
              Signed and filed this 26th day of February, 1990.
 
         
 
         
 
         
 
         
 
                                               MICHELLE A. McGOVERN
 
                                               DEPUTY INDUSTRIAL 
 
         COMMISSIONER
 
         
 
         
 
         
 
         Copies To:
 
         
 
         Mr. Harold B. Heslinga
 
         Attorney at Law
 
         118 North Market St
 
         Oskaloosa  IA  52577
 
         
 
         Mr. E. J. Kelly
 
         Attorney at Law
 
         Suite 111, Terrace Center
 
         2700 Grand Ave
 
         Des Moines  IA  50312
 
         
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
 
         
 
 
 
 
 
 
 
 
 
 
 
                                                1600
 
                                                 Filed February 26, 1990
 
                                                 MICHELLE A. McGOVERN
 
         
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         VIRGIL DALE LANDERS,
 
         
 
              Claimant,
 
         
 
         VS.
 
         
 
                                                  File No. 877053
 
         BILL'S TRUCK LINE,
 
         
 
                                              A R B I T R A T I 0 N
 
              Employer,
 
         
 
                                                  D E C I S I 0 N
 
         and
 
         
 
         EMPLOYERS MUTUAL,
 
         
 
              Insurance Carrier,
 
              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.
 
         
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                    BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
                      
 
            WILLIAM MATHESON,   
 
                      
 
                 Claimant,                       File No. 877064
 
                      
 
            vs.                                    A P P E A L
 
                      
 
            JOHN DEERE DES MOINES WORKS,        D E C I S I O N
 
                      
 
                 Employer, 
 
                 Self-Insured,  
 
                 Defendant.     
 
            ___________________________________________________________
 
            The record, including the transcript of the hearing before 
 
            the deputy and all exhibits admitted into the record, has 
 
            been reviewed de novo on appeal.  The decision of the deputy 
 
            filed January 25, 1991 is affirmed and is adopted as the 
 
            final agency action in this case. 
 
            Claimant shall pay the costs of the appeal, including the 
 
            preparation of the hearing transcript.
 
            Signed and filed this ____ day of August, 1991.
 
            
 
            
 
            
 
            
 
                                    ________________________________
 
                                              BYRON K. ORTON
 
                                        INDUSTRIAL COMMISSIONER
 
            
 
            Copies To:
 
            
 
            Mr. David R. Elkin
 
            Attorney at Law
 
            315 E. 5th St., Ste 5
 
            Des Moines, Iowa 50309
 
            
 
            Mr. Roger L. Ferris
 
            Attorney at Law
 
            1900 Hub Tower
 
            Des Moines, Iowa 50309
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
            9998
 
            Filed August 26, 1991
 
            Byron K. Orton
 
            WRM
 
            before the iowa industrial commissioner
 
            ____________________________________________________________
 
                      :
 
            WILLIAM MATHESON,   :
 
                      :
 
                 Claimant, :      File No. 877064
 
                      :
 
            vs.       :        A P P E A L
 
                      :
 
            JOHN DEERE DES MOINES WORKS,  :      D E C I S I O N
 
                      :
 
                 Employer, :
 
                 Self-Insured,  :
 
                 Defendant.     :
 
            ___________________________________________________________
 
            
 
            9998
 
            
 
                 Summary affirmance of deputy's decision filed January 
 
            25, 1991.
 
            
 
 
            
 
            Page   1
 
            
 
            
 
            
 
            
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            WILLIAM MATHESON,             :
 
                                          :       File No.  877064
 
                 Claimant,                :
 
                                          :    A R B I T R A T I O N
 
            vs.                           :           
 
                                          :       D E C I S I O N 
 
            JOHN DEERE DES MOINES WORKS,  :
 
                                          :           
 
                 Employer,                : 
 
                 Self-Insured,            :     
 
                 Defendant.               :
 
            ___________________________________________________________
 
            
 
                                   INTRODUCTION
 
            
 
                 This is a proceeding in arbitration brought by William 
 
            Matheson, claimant, against John Deere Des Moines Works, 
 
            employer and self-insured defendant for benefits as the 
 
            result of an alleged injury which occurred on April 3, 1988.  
 
            A hearing was begun on August 31, 1989 at Des Moines, Iowa.  
 
            This hearing was resumed and proceeded to its conclusion on 
 
            January 11, 1991, at Des Moines, Iowa.  Claimant was 
 
            represented by David R. Elkin.  Defendant was represented by 
 
            Roger L. Ferris.  The record consists of the testimony of 
 
            William Matheson, claimant and claimant's exhibits A, G and 
 
            O.  
 
            
 
                 All of claimant's exhibits A through O were excluded at 
 
            the first segment of this hearing on August 31, 1989, by 
 
            Deputy Industrial Commissioner Helenjean Walleser ruling on 
 
            defendant's motion in limine which objected to claimant's 
 
            exhibits because they were not timely served as required by 
 
            paragraph six of the hearing assignment order.  Claimant 
 
            filed the original notice and petition pro se and counsel 
 
            did not appear for him until August 23, 1989, which was only 
 
            eight days prior to hearing.  The witness and exhibit list 
 
            was served on defendant on the same day, August 23, 1989.  
 
            At the second segment of this hearing, on January 11, 1991,  
 
            defendant waived its objection to claimant's exhibits A, G 
 
            and O and their exclusion by Deputy Industrial Commissioner 
 
            Walleser because these exhibits had been included on 
 
            defendant's exhibit list which had been timely served on 
 
            claimant by defendant.  The exhibits not admitted were 
 
            accepted as an offer of proof.  Defendant submitted a 
 
            description of disputes by employer in which claimant 
 
            concurred.  The deputy ordered a transcript of the hearing.  
 
            
 
                                   stipulations
 
            
 
                 The parties stipulated to the following matters at the 
 
            time of the hearing:
 
            
 
                 That an employer-employee relationship existed between 
 
            claimant and employer at the time of the injury.
 
            
 
                 That the times off work for which claimant now seeks 
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            temporary disability benefits is stipulated to be from 
 
            August 16, 1988 to September 23, 1988.  
 
            
 
                 That the type of permanent disability, if the injury is 
 
            found to be a cause of permanent disability, is scheduled 
 
            member disability to the hand.
 
            
 
                 That the commencement date for permanent partial 
 
            disability benefits, in the event such benefits are awarded, 
 
            is September 24, 1988.
 
            
 
                 That the fees charged for medical services or supplies 
 
            are fair and reasonable.
 
            
 
                 That the expenses were incurred for reasonable and 
 
            necessary medical treatment.
 
            
 
                 That the causal connection of the expenses to treatment 
 
            for a medical condition upon which claimant is now basing 
 
            his claim is admitted, but that the causal connection of 
 
            this condition to a work injury remains an issue to be 
 
            decided in these proceedings.
 
            
 
                 That defendant paid claimant $1,842.40 of income 
 
            disability payments under an employee nonoccupational group 
 
            health plan prior to hearing and that defendant is entitled 
 
            to a credit under Iowa Code section 85.38(2) for this amount 
 
            in the event of an award of weekly benefits in this 
 
            decision.
 
            
 
                 That defendant makes no claim for workers' compensation 
 
            benefits paid to claimant prior to hearing.
 
            
 
                 That there are no bifurcated claims.
 
            
 
                                      issues
 
            
 
                 The parties submitted the following issues for 
 
            determination at the time of the hearing:
 
            
 
                 Whether claimant sustained an injury on April 3, 1988, 
 
            which arose out of and in the course of employment with 
 
            employer.
 
            
 
                 Whether the injury was the cause of either temporary or 
 
            permanent disability.
 
            
 
                 Whether claimant is entitled to either temporary or 
 
            permanent disability benefits.
 
            
 
                 Whether claimant is entitled to medical benefits.
 
            
 
                 What is the proper rate of compensation in the event of 
 
            an award.
 
            
 
                                 findings of fact
 
            
 
                                      injury
 
            
 
                 It is determined that claimant did not sustain the 
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            burden of proof by a preponderance of the evidence that he 
 
            sustained an injury on April 3, 1988, which arose out of and 
 
            in the course of employment with employer.
 
            
 
                 Claimant, born November 25, 1938, was 52 years old at 
 
            the time of the hearing.  He has worked for employer for 
 
            almost 30 years.  Between January of 1988 and May of 1989, 
 
            he worked as a drill operator.  In April of 1988, the 
 
            fingers on his left hand became numb and painful.  The first 
 
            aid department gave him medications which did not help.  
 
            Claimant testified that an EMG in May of 1988 disclosed 
 
            numbness and blocking in his left wrist.  The company then 
 
            sent claimant to see Sinesio Misol, M.D., an orthopedic 
 
            surgeon.  Dr. Misol's medical reports were excluded from 
 
            evidence because they were not timely served.  Claimant was 
 
            allowed to testify that he understood Dr. Misol to say that 
 
            he had carpal tunnel syndrome and that it was related to his 
 
            work even though it was a hearsay statement.  [Iowa 
 
            Administrative Procedure Act 17A.14(1)].  Claimant testified 
 
            that left carpal tunnel surgery was performed in August of 
 
            1988.  He missed approximately four days of work off and on 
 
            prior to the surgery and lost about six weeks of work for 
 
            the period stipulated to in the stipulations (transcript 
 
            pages 22-28). Claimant testified that Dr. Misol said he had 
 
            a permanent impairment of 5 to 7 percent of the left hand 
 
            (tr. p. 30).
 
            
 
                 Claimant also testified that he was examined by Robert 
 
            A. Hayne, M.D., a neurosurgeon at the request of defendant.  
 
            Claimant said that Dr. Hayne examined him, asked him 
 
            questions, but did not perform any tests.  Claimant related 
 
            that Dr. Hayne said he had a 5 percent permanent impairment, 
 
            but that it probably was not work related (tr. p. 29).
 
            
 
                 The report of Dr. Hayne states that he examined 
 
            claimant on June 4, 1989.  Dr. Hayne noted that his medical 
 
            history revealed multiple injuries secondary to motorcycle 
 
            accidents.  Those pertaining to his left upper extremity 
 
            were a fracture of the left clavicle in 1970 and a 
 
            dislocation of the left elbow in 1972.  He had a laceration 
 
            of the middle finger of the left hand in May of 1981.  Dr. 
 
            Hayne concluded:
 
            
 
                 There may be a relationship between the carpal 
 
                 tunnel syndrome developing on the left side and 
 
                 the multiple injuries which the patient has had 
 
                 secondary to motorcycle accidents in the past.  It 
 
                 seems unlikely that the work in the forepart of 
 
                 1988 played a significant part in the development 
 
                 of the numbness of the left hand.  He has 
 
                 approximately a 5% disability of the left upper 
 
                 extremity.
 
            
 
            exhibit G-2
 
            
 
                 Claimant explained that he operated a gang drill which 
 
            is actually four drills, two of which drill the part, one 
 
            reams it and the other one deburs it.  The part drilled is a 
 
            three-foot long piece of steel which weighs 18 pounds.  He 
 
            drilled approximately 500 of these per day.  He removed the 
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
            part from one skid, drilled it and placed it on another 
 
            skid.  The manual maneuver was the pick up the part, slide 
 
            it in the machine, move a lever to hold it in, pull down to 
 
            lock it in, drill it, ream it, debur it and place it back on 
 
            the other skid (tr. pp. 32-34).  Claimant observed the video 
 
            (exhibit O) and said it is a fair and accurate depiction of 
 
            the job that he performed (tr. p. 35).  Although remarks of 
 
            counsel are not considered evidence, defendants' counsel did 
 
            state that Dr. Hayne also viewed the video and claimant had 
 
            no objection to this remark (tr. pp. 55 & 56).
 
            
 
                 It is granted that claimant's work required a 
 
            repetitive use of his hands and wrists.  It is also granted 
 
            that claimant was credible when he stated the Dr. Misol 
 
            diagnosed carpal tunnel syndrome which was work related.  
 
            Unfortunately, however, we do not have Dr. Misol's own 
 
            personal signed statement to this effect.  On the other 
 
            hand, we do have the signed personal statement of Dr. Hayne 
 
            who stated, "It seems unlikely that the work in the forepart 
 
            of 1988 played a significant part in the development of the 
 
            numbness of the left hand." (ex. G-2).  As defendant's 
 
            counsel pointed out the question of causal connection is 
 
            essentially within the domain of expert testimony.  Bradshaw 
 
            v. Iowa Methodist Hospital, 251 Iowa 375, 101 N.W.2nd 167 
 
            (1960).  In weighing the evidence, the written and signed 
 
            statement of Dr. Hayne, a neurosurgeon, is determined to 
 
            carry more weight than claimant's testimony which described 
 
            a repetitive hand job and the hearsay statement of the 
 
            treating physician Dr. Misol.  Claimant's testimony is 
 
            sincere, honest and credible.  However, the casual 
 
            connection between employment and an injury is within the 
 
            domain of expert testimony.  The signed expert testimony of 
 
            a neurosurgeon of necessity must take precedence over the 
 
            hearsay testimony of the claimant who is a layman.  In the 
 
            hierarchy of evidence, the signed statement of a 
 
            neurosurgeon must prevail over the testimony of the claimant 
 
            in the area of causal connection which looks primarily to 
 
            medical expertise.
 
            
 
                 Wherefore, based upon the foregoing evidence, it is 
 
            determined that claimant did not sustain the burden of proof 
 
            by a preponderance of the evidence that he sustained an 
 
            injury which arose out of and in the course of employment on 
 
            April 3, 1988.  The greater weight of the evidence is the 
 
            testimony of the neurosurgeon that claimant's employment 
 
            probably did not cause this injury.
 
            
 
                                conclusion of law
 
            
 
                 Wherefore, based upon the evidence presented and the 
 
            foregoing principles this conclusion of law is made.
 
            
 
                 That claimant did not sustain the burden of proof by a 
 
            preponderance of the evidence that he sustained an injury on 
 
            April 3, 1988 which arose out of and in the course of 
 
            employment with employer.
 
            
 
                 In view of this finding of fact and finding of law all 
 
            of the other issues in this case become moot.
 
            
 

 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
                                      order
 
            
 
                 THEREFORE, IT IS ORDERED:
 
            
 
                 That no amounts are due from defendant to claimant.
 
            
 
                 That each party is to pay their own respective costs of 
 
            this action.   Defendant is ordered to pay the cost of the 
 
            attendance of the court reporter at both hearings and the 
 
            transcripts of the hearings.  Rule 343 IAC 4.33.
 
            
 
                 Signed and filed this ____ day of January, 1991.
 
            
 
            
 
            
 
            
 
                                          ______________________________
 
                                          WALTER R. MCMANUS, JR.
 
                                          DEPUTY INDUSTRIAL COMMISSIONER    
 
            
 
            Mr. David R. Elkin
 
            Attorney at Law
 
            315 E. 5th St. STE 5
 
            Des Moines, Iowa  50309
 
            
 
            Mr. Roger L. Ferris
 
            Attorney at Law
 
            699 Walnut, STE 1900
 
            Des Moines, Iowa  50309
 
            
 
                 
 
            
 
                 
 
            
 
                 
 
            
 
 
            
 
            Page   1
 
            
 
            
 
            
 
            
 
                                          52906 53700 51106 51402.20 
 
                                          51402.30 52209 52902
 
                                          Filed January 25, 1991
 
                                          Walter R. McManus, Jr.
 
            
 
                           before the iowa industrial 
 
                                   commissioner
 
            ____________________________________________________________
 
                                          :
 
            WILLIAM MATHESON,             :
 
                                          :       File No.  877064
 
                 Claimant,                :
 
                                          :    A R B I T R A T I O N
 
            vs.                           :           
 
                                          :       D E C I S I O N 
 
            JOHN DEERE DES MOINES WORKS,  :
 
                                          :           
 
                 Employer,                : 
 
                 Self-Insured,            :     
 
                 Defendant.               :
 
            ___________________________________________________________
 
            
 
            52906 53700
 
            Claimant, originally pro se, failed to timely serve a 
 
            witness and exhibit list 15 days prior to hearing as 
 
            required by paragraph six of the hearing assignment order 
 
            and his exhibits were excluded from evidence.  Defendant did 
 
            consent to claimant introducing three exhibits which 
 
            appeared on defendant's timely served witness and exhibit 
 
            list on claimant.
 
            
 
            51106 51402.20 51402.30 52209 52902
 
            Claimant's hearsay statement of his treating physician that 
 
            he had carpal tunnel syndrome and that it was work related 
 
            was outweighed by the written and signed report of a 
 
            neurosurgeon, who was defendant's independent evaluator, 
 
            that it was unlikely that his work caused his injury in as 
 
            much as claimant had been injured in three previous 
 
            motorcycle accidents.  Claimant did not prove an injury 
 
            arising out of and in the course of employment.