Page   1
 
            
 
            
 
            
 
            
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            HAROLD DEAN THOMPSON,         :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :      File No. 883575
 
            SHENANDOAH GATE COMPANY,      :
 
                                          :        A P P E A L
 
                 Employer,                :
 
                                          :      D E C I S I O N
 
            and                           :
 
                                          :
 
            EMPLOYERS MUTUAL INSURANCE,   :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
                              statement of the case
 
            
 
                 Defendants, Shenandoah Gate Company and Employers 
 
            Mutual Insurance, appeal and claimant cross-appeals from an 
 
            arbitration decision which held that claimant received a 
 
            cumulative injury to his left and right upper extremities as 
 
            a result of his employment with the employer.
 
            
 
                 The record on appeal consists of the transcript of the 
 
            arbitration hearing and joint exhibits 1 through 86.  
 
            Neither party filed a brief on appeal.
 
            
 
                                      issues
 
            
 
                 As neither party filed a brief, no issues are specified 
 
            on appeal.  The appeal will be considered generally and 
 
            without regard to specific issues.
 
            
 
                              review of the evidence
 
            
 
                 The arbitration decision filed December 21, 1990 
 
            adequately and accurately reflects the pertinent evidence 
 
            and it will not be reiterated herein.
 
            
 
                                  applicable law
 
            
 
                 The citations of law in the arbitration decision are 
 
            appropriate to the issues and evidence.
 
            
 
                                     analysis
 
            
 
                 The analysis of the evidence in conjunction with the 
 
            law in the arbitration decision is adopted except where 
 
            inconsistent with the following language.
 
            
 
                 The deputy industrial commissioner's determination that 
 
            the defendants are liable for the entire result of 
 
            claimant's cumulative trauma is adopted.  An employer takes 
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            an employee as he finds him.  Zeigler v. United States 
 
            Gypsum Co., 252 Iowa 613, 620, 106 N.W.2d 591, 595 (1960). 
 
            
 
                 Next, claimant's date of injury must be determined.  
 
            Under McKeever Custom Cabinets v. Smith, 379 N.W.2d 368 
 
            (Iowa 1985), the date of injury occurs when the worker is 
 
            unable to continue working due to the effects of the work 
 
            injury.  The parties indicated on the pre-hearing report 
 
            that if claimant proved entitlement to healing period 
 
            benefits that it ran from January 1, 1988 through September 
 
            6, 1988.  Claimant was laid off by the employer on December 
 
            31, 1987.  Claimant bears the burden of proving that he was 
 
            not able to work as a result of his work injury rather than 
 
            the layoff.  Although claimant had been experiencing carpal 
 
            tunnel symptoms while working with the defendant employer, 
 
            claimant had been able to work despite his symptoms until 
 
            the general layoff.  In addition, claimant testified that 
 
            had it not been for the layoff, he would have continued to 
 
            work for the defendant employer.  (Joint Exhibit 84, page 
 
            35.)  Claimant failed to prove that he was unable to work as 
 
            a result of the work injury on January 1, 1988.  Claimant 
 
            was unable to work as a result of the work injury on 
 
            February 24, 1988 when he was hospitalized to undergo 
 
            surgery on his right hand.  Therefore, it is determined that 
 
            claimant's date of injury is February 24, 1988.  
 
            
 
                 The parties stipulated that this injury is a 
 
            simultaneous injury pursuant to Iowa Code section 
 
            85.24(2)(s) and the record clearly supports the stipulation.  
 
            Claimant was diagnosed with bilateral carpal tunnel 
 
            syndrome.  Claimant's injury date is February 24, 1988 
 
            despite the fact that claimant's subsequent surgery did not 
 
            occur until May 16, 1988. 
 
            
 
                 Healing period ends when claimant reaches maximum 
 
            medical improvement, Iowa Code section 85.34(1).  In a 
 
            letter dated September 6, 1988, Maurice P. Margules, M.D., 
 
            states:
 
            
 
                    Mr. Harold Dean Thompson was seen for a final 
 
                 evaluation on August 15, 1988.  It was our 
 
                 opinion, at this time, that the patient had 
 
                 reached maximum medical improvement following the 
 
                 cervical fusion at C6 and C7 performed on March 3, 
 
                 1988.
 
            
 
                    The patient also had reached maximum medical 
 
                 improvement as to the decompression of both Median 
 
                 Nerves, performed on the Right on February 26, 
 
                 1988, and, on the Left on May 16, 1988.
 
            
 
            (Joint exhibit 3.)
 
            
 
                 It is determined that claimant's healing period ended 
 
            on August 15, 1988.  The reference by Dr. Margules to "at 
 
            this time" in his letter is to August 15, 1988, the date of 
 
            the evaluation and not September 6, 1988 the date of Dr. 
 
            Margules' letter.
 
            
 
                 Charles Taylon, M.D., evaluated claimant and opined 
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            that claimant sustained a four percent impairment of the 
 
            body as a whole as a result of his bilateral carpal tunnel 
 
            syndrome.  Since Dr. Taylon provided an impairment rating to 
 
            the body as a whole there is no need to convert the 
 
            impairment to an impairment of each upper extremity using 
 
            the Guide to the Evaluation of Permanent Impairment, third 
 
            edition, published by the American Medical Association.  
 
            Furthermore, it is unclear whether Dr. Taylon based his 
 
            opinion of claimant's functional impairment by using the 
 
            Guides.
 
            
 
                 In addition to Dr. Taylon's four percent impairment 
 
            rating, Dr. Margules, claimant's treating physician, 
 
            provided claimant with a rating.  Dr. Margules opined that 
 
            claimant sustained a 15 percent "partial permanent physical 
 
            disability" of each hand as a result of the compression of 
 
            the median nerves.  Functional disability or impairment is 
 
            limited to loss of physicological capacity of the body.  
 
            Whereas, industrial disability is a determination of 
 
            claimant's loss of earning capacity of which functional 
 
            impairment is one factor.  Bearce v. FMC Corp., 465 N.W.2d 
 
            531 (Iowa 1991).  A determination of whether claimant 
 
            sustained an industrial disability is within the province of 
 
            the industrial commissioner, not a physician.  Therefore, it 
 
            is determined that Dr. Margules' reference to disability is 
 
            to functional disability or impairment rather than 
 
            industrial disability.
 
            
 
                 Dr. Margules performed surgery on claimant's bilateral 
 
            carpal tunnel syndrome.  Dr. Margules had the opportunity to 
 
            observe the internal disorder while performing surgery and 
 
            provided follow-up care.  Dr. Taylon, an assistant professor 
 
            of neurosurgery at Creighton University, evaluated claimant 
 
            on August 21, 1989.  Dr. Taylon testified that a 
 
            neurological evaluation would take between thirty and sixty 
 
            minutes.  While Dr. Taylon's qualifications are impressive, 
 
            he evaluated claimant more than a year after he had been 
 
            released to return to work by Dr. Margules.  Dr. Margules 
 
            had the opportunity to internally view claimant's condition.  
 
            Therefore, Dr. Margules' impairment rating of 15 percent of 
 
            each hand which is converted into 15 percent of the body as 
 
            a whole using the AMA Guides is given greater weight.  
 
            
 
                 It is true that a double recovery of benefits is 
 
            avoided in workers' compensation cases for a single injury.  
 
            Claimant entered into a special case settlement with his 
 
            former employer, a portion of that settlement was allocated 
 
            to claimant's bilateral carpal tunnel syndrome.  Iowa Code 
 
            section 85.35 states that parties may enter into a special 
 
            case settlement if a bona fide dispute exists.  A special 
 
            case settlement is not to be constructed as the payment of 
 
            weekly compensation.  In this case it is determined that 
 
            claimant sustained a cumulative injury which arose out of 
 
            and in the course of his employment with the defendant 
 
            employer.  The defendant employer is liable for the entire 
 
            amount of claimant's disability and any medical treatment 
 
            necessitated by claimant's February 24, 1988 work injury.  
 
            The defendants are not entitled to a credit for a claimed 
 
            injury which allegedly arose out of and in the course of his 
 
            employment with another employer.  While it appears that 
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
            claimant is receiving a double recovery for his bilateral 
 
            carpal tunnel syndrome, that is not the case.  Claimant has 
 
            not received weekly benefits for his February 24, 1988 
 
            injury.  The defendant employer's liability for claimant's 
 
            injury is not reduced by the amount of the special case 
 
            settlement.  
 
            
 
                 On the issue of medical benefits, "claimant is not 
 
            entitled to reimbursement for medical bills unless he shows 
 
            that he paid them from his own funds."  See Caylor v. 
 
            Employers Mut. Cas. Co., 337 N.W.2d 890 (Iowa App. 1983).  
 
            The defendant employer obviously is not liable for any 
 
            medical expenses incurred prior to claimant's employment 
 
            with the defendant employer on August 26, 1987.  Claimant is 
 
            entitled to reimbursement for the following medical expenses 
 
            set out in joint exhibit 86A:
 
            
 
                 2-24-88                       125.00
 
                 2-24-88                       200.00
 
                 2-25-88                        15.00
 
                 2-26-88                       500.00
 
                 5-15-88                        25.00
 
                 5-16-88                       500.00
 
                 5-20-88                        15.00
 
                 Total                      $1,380.00
 
            
 
                 Claimant failed to prove a causal connection between 
 
            his bilateral carpal tunnel syndrome and the treatment to 
 
            his shoulders set out in exhibit 86D, therefore, claimant is 
 
            not entitled to reimbursement for those charges.
 
            
 
                                 Finding of facts
 
            
 
                 1.  Claimant reported symptoms of bilateral carpal 
 
            tunnel syndrome following a work-related injury at 
 
            claimant's former employer.  Claimant did not miss work 
 
            because of his bilateral carpal tunnel syndrome while 
 
            working with his former employer.
 
            
 
                 2.  Claimant terminated his employment with his former 
 
            employer in May 1986 and performed odd jobs for friends and 
 
            relatives until he starting working for the defendant 
 
            employer.  Claimant testified that he continued to have 
 
            symptoms of bilateral carpal tunnel while he was unemployed.
 
            
 
                 3.  Claimant was employed by the defendant employer 
 
            from August 26, 1987 through December 31, 1987 when he was 
 
            laid off by the defendant employer.
 
            
 
                 4.  While employed by the defendant employer, claimant 
 
            operated a chop saw, nibbler, sorted gates in the paint 
 
            room, bent metal on the stamp machine and cut flat steel.  
 
            Claimant testified that his hands continued to bother him 
 
            while working for the defendant employer.
 
            
 
                 5.  Dr. Taylon opined that claimant's carpal tunnel 
 
            syndrome was developing during his job with the former 
 
            employer but became more severe as a result of his job with 
 
            the defendant employer.
 
            
 

 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
                 6.  Dr. Margules performed a median nerve decompression 
 
            on claimant's right hand on February 26, 1988; and on May 
 
            15, 1988, Dr. Margules performed the same procedure on 
 
            claimant's left hand.  
 
            
 
                 7.  Claimant sustained a cumulative work injury on 
 
            February 24, 1988 when claimant was unable to work as a 
 
            result of the work injury.
 
            
 
                 8.  Dr. Margules opined that claimant reached maximum 
 
            medical improvement of his right and left hands on August 
 
            15, 1988.
 
            
 
                 9.  Dr. Taylon opined that claimant sustained a four 
 
            percent impairment of the body as a whole as a result of his 
 
            work-related injury.
 
            
 
                 10. Dr. Margules opined that claimant sustained a 15 
 
            percent impairment of each hand as a result of his 
 
            work-related injury.  A 15 percent impairment of each hand 
 
            converts to 15 percent impairment of the body as a whole 
 
            using the Guide to the Evaluation of Permanent Impairment, 
 
            third edition, published by the American Medical 
 
            Association.
 
            
 
                 11. Permanent partial disability benefits are computed 
 
            pursuant to Iowa Code section 85.34(2)(s).  
 
            
 
                 12. Claimant incurred $1,380.00 of medical expenses as 
 
            a result of his work injury.
 
            
 
                 13. Claimant's special case settlement with his former 
 
            employer was not for the work injury which arose out of and 
 
            in the course of claimant's employment with the defendant 
 
            employer on February 24, 1988.  The defendant employer is 
 
            not entitled to a credit for claimant's special case 
 
            settlement of a different claim with a different employer.
 
            
 
                                conclusions of law
 
            
 
                 Claimant sustained an injury which arose out of and in 
 
            the course of his employment with the defendant employer on 
 
            February 24, 1988 when claimant was unable to work as a 
 
            result of his work injury.  
 
            
 
                 A causal connection exists between claimant's bilateral 
 
            carpal tunnel syndrome and his employment with the defendant 
 
            employer.
 
            
 
                 Claimant reached maximum medical improvement on August 
 
            15, 1988.
 
            
 
                 Claimant has met his burden of proving that he has a 15 
 
            percent functional impairment of the body as a whole 
 
            attributable to his bilateral carpal tunnel syndrome 
 
            pursuant to Iowa Code section 85.34(2)(s).
 
            
 
                 WHEREFORE, the decision of the deputy is affirmed and 
 
            modified.
 
            
 

 
            
 
            Page   6
 
            
 
            
 
            
 
            
 
                                      order
 
            
 
                 THEREFORE, it is ordered:
 
            
 
                 That defendants shall pay claimant healing period 
 
            benefits starting on February 24, 1988 through August 15, 
 
            1988 at the stipulated rate of one hundred seven and 15/100 
 
            dollars ($107.15) per week.
 
            
 
                 That defendants shall pay claimant seventy-five (75) 
 
            weeks of permanent partial disability benefits pursuant to 
 
            Iowa Code section 85.34(2)(s) at the stipulated rate of one 
 
            hundred seven and 15/100 dollars ($107.15) per week 
 
            beginning on August 16, 1988.
 
            
 
                 That defendants shall pay claimant one thousand three 
 
            hundred and eighty dollars for medical expenses incurred in 
 
            treatment of his work injury.
 
            
 
                 Payments that have accrued shall be paid in a lump sum 
 
            together with statutory interest pursuant to Iowa Code 
 
            section 85.30.
 
            
 
                 That defendants shall pay the costs of this proceeding 
 
            including the cost of the transcription of the arbitration 
 
            hearing.
 
            
 
                 That defendants shall file claim activity reports 
 
            pursuant to 343 IAC 3.1(2).
 
            
 
                 Signed and filed this ____ day of August, 1991.
 
            
 
            
 
            
 
                                          
 
            ________________________________
 
                                                   BYRON K. ORTON
 
                                              INDUSTRIAL COMMISSIONER
 
            
 
            Copies To:
 
            
 
            Mr. Sheldon M. Gallner
 
            Attorney at Law
 
            P.O. Box 1588
 
            Council Bluffs, Iowa 51502
 
            
 
            Mr. W. Curtis Hewett
 
            Attorney at Law
 
            P.O. Box 249
 
            Council Bluffs, Iowa 51502
 
            
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
            2209, 1802, 5-1803.1, 1700, 1302
 
            Filed August 30, 1991
 
            Byron K. Orton
 
            WRM
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            HAROLD DEAN THOMPSON,         :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :      File No. 883575
 
            SHENANDOAH GATE COMPANY,      :
 
                                          :        A P P E A L
 
                 Employer,                :
 
                                          :      D E C I S I O N
 
            and                           :
 
                                          :
 
            EMPLOYERS MUTUAL INSURANCE,   :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
            2209
 
            Held that claimant's injury date for the purposes of 
 
            cumulative trauma is the date claimant was unable to work as 
 
            a result of the work injury.  Although claimant had been 
 
            experiencing carpal tunnel symptoms while working with the 
 
            defendant employer, claimant had been able to work despite 
 
            his symptoms until the claimant was laid off on December 31, 
 
            1987. Claimant testified, however, that had it not been for 
 
            the layoff he would have continued to work.  Claimant failed 
 
            to prove that he was unable to work as a result of the work 
 
            injury on January 1, 1988.  Claimant was unable to work as a 
 
            result of the work injury on February 24, 1988 when he was 
 
            hospitalized to undergo surgery on his right hand.  It was 
 
            determined for this case that claimant's date of injury is 
 
            February 24, 1988.
 
            
 
            1802
 
            Held that claimant reached maximum medical improvement on 
 
            August 15, 1988.  August 15, 1988 is the date claimant was 
 
            seen for final evaluation and claimant's treating physician 
 
            opined that claimant reached maximum medical improvement.  
 
            The reference by the treating physician to "at this time" in 
 
            his September 6, 1988 letter is to August 15, 1988, the date 
 
            of claimant's final evaluation and the date claimant's 
 
            physician wrote his letter.
 
            
 
            5-1803.1
 
            Claimant's treating physician's opinion concerning the 
 
            extent of functional impairment claimant sustained as a 
 

 
            
 
 
 
 
 
 
 
 
 
 
 
            result of his work-related bilateral carpal tunnel injury is 
 
            given greater weight.
 
            
 
            1700 and 1302
 
            Held that defendants are not entitled to a credit for a 
 
            special case settlement that claimant entered into with his 
 
            former employer.  Claimant had been experiencing bilateral 
 
            carpal tunnel syndrome while working with his former 
 
            employer, however, claimant did not miss any work as a 
 
            result of his bilateral carpal tunnel syndrome.  Claimant 
 
            entered into a special case with his former employer where a 
 
            portion of the settlement was allocated to claimant's 
 
            bilateral carpal tunnel syndrome.  A special case settlement 
 
            is not to be constructed as the payment of weekly 
 
            compensation pursuant to Iowa Code section 85.35.  In this 
 
            case it is determined that claimant sustained a cumulative 
 
            injury which arose out of and in the course of his 
 
            employment with the defendant employer.  The defendant 
 
            employer is liable for the entire amount of claimant's 
 
            disability and any medical treatment necessitated by 
 
            claimant's February 24, 1988 work injury.  While it appears 
 
            that claimant is receiving a double recovery for his 
 
            bilateral carpal tunnel syndrome, that is not the case.  
 
            Claimant has not received weekly benefits for his February 
 
            24, 1988 work injury.  The defendant employer's liability 
 
            for claimant's injury is not reduced by the amount of the 
 
            special case settlement.
 
            
 
 
            
 
            Page   1
 
            
 
            
 
            
 
            
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            HAROLD DEAN THOMPSON,         :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :      File No.  883575
 
            SHENANDOAH GATE COMPANY,      :
 
                                          :  A R B I T R A T I O N
 
                 Employer,                :
 
                                          :      D E C I S I O N
 
            and                           :
 
                                          :
 
            EMPLOYERS MUTUAL INSURANCE,   :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
                 This is a proceeding in arbitration brought by Harold 
 
            Dean Thompson, claimant, against Shenandoah Gate Company, 
 
            employer and Employers Mutual Insurance Company, insurance 
 
            carrier, defendants for benefits as the result of an alleged 
 
            injury which occurred on December 31, 1987.  A hearing was 
 
            held at Council Bluffs, Iowa, on October 25, 1990.  Claimant 
 
            was represented by Sheldon M. Gallner.  Defendants were 
 
            represented by W. Curtis Hewett.  This case was submitted on 
 
            a stipulated record of exhibits only.  None of the parties 
 
            or any other witnesses were present at the time of the 
 
            hearing.  The record consists of joint exhibits 1 through 
 
            86.  The deputy ordered a transcript of the hearing.  
 
            
 
                                   stipulations
 
            
 
                 The parties stipulated to the following matters:
 
            
 
                 That an employer-employee relationship existed between 
 
            claimant and employer at the time of the alleged injury.
 
            
 
                 That the time off work for which claimant now seeks 
 
            temporary disability benefits is from January 1, 1988 to 
 
            September 6, 1988. 
 
            
 
                 That the type of permanent disability, if the injury is 
 
            found to be a cause of permanent disability, is stipulated 
 
            to be scheduled member disability to both hands occurring 
 
            simultaneously pursuant to Iowa Code section 85.34(2)(s).
 
            
 
                 That the rate of compensation, in the event of an 
 
            award, is $107.15 per week.
 
            
 
                 That the provider of medical services would testify 
 
            that the fees charged were reasonable and that the treatment 
 
            was reasonable and necessary treatment for the alleged work 
 
            injury and defendants are not offering contrary evidence.
 
            
 
                 That the causal connection of the expenses to treatment 
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            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 defendants seek no credit for either employee 
 
            nonoccupational group health plan benefits or workers' 
 
            compensation benefits paid to claimant prior to hearing.
 
            
 
                 That there are no bifurcated claims.
 
            
 
                                      issues
 
            
 
                 The parties submitted the following issues for 
 
            determination:
 
            
 
                 Whether claimant sustained an injury on December 31, 
 
            1987, which arose out of and in the course of employment 
 
            with employer.
 
            
 
                 Whether the injury was the cause of any temporary or 
 
            permanent disability.
 
            
 
                 Whether claimant is entitled to temporary or permanent 
 
            disability benefits to include whether claimant is entitled 
 
            to permanent total disability benefits as an odd-lot 
 
            employee under Iowa Code section 85.34(2)(s).
 
            
 
                 Whether claimant is entitled to medical benefits.
 
            
 
                 Although not appearing on the hearing assignment order, 
 
            the attorneys stated that the decision of this case involved 
 
            a determination of whether claimant had sustained a 
 
            compensable cumulative carpal tunnel injury or whether 
 
            claimant had been previously paid for the carpal tunnel 
 
            syndrome as a prior injury in another case.
 
            
 
                                 findings of fact
 
            
 
                                      injury
 
            
 
                 Claimant was employed by a previous employer by the 
 
            name of Sam's Siding from March 1985 until May 1986, 
 
            performing work as a carpenter, siding applicator, plumber, 
 
            heating and air conditioning workman and anything else that 
 
            he was asked to do (exhibit 84, pages 8, 38-44).  Claimant 
 
            testified by deposition that he worked with skill saws, 
 
            hammers, pry bars, table saws and various hand tools (ex. 
 
            84, p. 10).  Claimant said that the carpentry tasks required 
 
            the repetitive use of both of his hands (ex. 84, p. 11).  
 
            Claimant stated that he is right handed and used that hand 
 
            and arm the most, especially to hammer and saw (ex. 84, pp. 
 
            11, 12, 44 & 45).  
 
            
 
                 Claimant was injured at Sam's Siding in January 1986 
 
            when he tried to catch a falling 32-foot extension ladder 
 
            and suffered sharp pains in his neck and shoulders.  He 
 
            denied any numbness or tingling in his hands prior to this 
 
            injury (ex. 84, pp. 12 & 13).  After this injury, claimant 
 
            experienced tingling in both hands and he had trouble 
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            gripping a hammer with his dominant right hand (ex. 84, pp. 
 
            15-17, & 19).
 
            
 
                 Claimant treated with a number of physicians for his 
 
            neck, shoulders, arms and hands while working at Sam's 
 
            Siding (ex. 84, pp. 16-23); however, he did not lose any 
 
            time from work at Sam's.  On the contrary, he continued 
 
            working all of the time (ex. 84, p. 16) until his employment 
 
            with Sam's Siding was terminated on May 23, 1986, by mutual 
 
            agreement of the parties due to a disagreement between them 
 
            (ex. 84, pp. 16-18).
 
            
 
                 After leaving Sam's, claimant performed odd jobs for 
 
            relatives and friends as a self-employed person to earn 
 
            money to support himself (ex. 84, p. 23).
 
            
 
                 Claimant obtained regular full-time employment with 
 
            Shenandoah Gate in August 1987 (ex. 84, p. 25) and he 
 
            continued to work there until he was laid off as part of a 
 
            general lay off on December 31, 1987 (ex. 84, p. 34).  
 
            Claimant testified that at Shenandoah Gate, he operated a 
 
            chop saw, nibbler, sorted gates in the paint room, bent 
 
            metal on the stamp machine and cut flat steel.  All of these 
 
            jobs were performed with his hands and arms (ex. 84, pp. 33 
 
            & 50-61).  
 
            
 
                 Claimant testified that after January 1, 1986, his 
 
            hands did not get better, but rather only got worse (ex. 84, 
 
            p. 36).  Claimant testified that he had problems with his 
 
            hands during his employment at Sam's Siding, during his 
 
            period of self-employment, in his personal life and while 
 
            working at Shenandoah Gate (ex. 84, pp. 16-37).  He related 
 
            that the only way that it would improve was if he did 
 
            totally nothing (ex. 84, p. 29).
 
            
 
                 Claimant testified that he did not lose any time from 
 
            work on account of his hand injuries while employed by 
 
            Shenandoah Gate except one day to keep a doctor appointment 
 
            (ex. 8, p. 35). 
 
            
 
                 After seeing several doctors, eventually Maurice P. 
 
            Margules, M.D., a neurosurgeon, performed an anterior 
 
            cervical fusion at C6 and C7 on March 3, 1988.  Dr. Margules 
 
            also surgically decompressed the right median nerve on 
 
            February 26, 1988.  He surgically decompressed the left 
 
            median nerve on May 16, 1988 (exs. 3 and 84, pp. 45 & 46).  
 
            
 
                 Dr. Margules stated that maximum medical improvement 
 
            for all three surgeries occurred on August 15, 1988.  The 
 
            surgeon rated claimant's anterior cervical disc fusion at 10 
 
            percent of the body as a whole.  He rated the median nerve 
 
            decompressions at 15 percent of each hand (ex. 3).
 
            
 
                 Charles Taylon, M.D., a neurosurgeon at the Creighton 
 
            University School of Medicine, rated the hands at 4 percent 
 
            of the body as a whole (exs. 1; 1a; 85, pp. 22 & 23).  
 
            Claimant testified by deposition on March 9, 1989, that he 
 
            still suffered a number of problems with his hands (ex. 84, 
 
            pp. 46 & 47).  
 
            
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
                 Claimant testified that he had applied for a number of 
 
            jobs without success (ex. 84, pp. 48 & 49).  Claimant also 
 
            prepared a job search record (ex. 83).
 
            
 
                 Dr. Taylon testified by deposition on August 25, 1989, 
 
            that he is an assistant professor of neurosurgery at 
 
            Creighton University and a board certified neurosurgeon.  He 
 
            said he examined claimant one time on August 21, 1990.  He 
 
            said that he rated claimant at 4 percent of the body as a 
 
            whole based on having had bilateral carpal tunnel surgery 
 
            (ex. 85, pp. 22 & 23).  
 
            
 
                 Dr. Taylon found that there was a causal connection 
 
            between both the employment at Sam's and the employment at 
 
            Shenandoah and the carpal tunnel syndrome which claimant 
 
            sustained in both hands.  He testified as follows:
 
            
 
                 Q.  Doctor, you told us that Mr. Thompson's 
 
                 complaint of numbness and tingling in the last two 
 
                 fingers and ultimately in the last three fingers 
 
                 was not a clinical sign of carpal tunnel syndrome 
 
                 because it involves different nerves.  Was there 
 
                 later in the records objective evidence of some 
 
                 carpal tunnel disturbance in Mr. Thompson?
 
            
 
                 A.  Yes.  I believe in October of 1987 he had 
 
                 a--another EMG of his arms and hands, which was 
 
                 interpreted as showing bilateral carpal tunnel 
 
                 disease.  
 
            
 
                 Q.  And do you have an opinion, Doctor, with 
 
                 reasonable medical certainty as to whether or not 
 
                 the carpal tunnel syndrome that was evidenced by 
 
                 EMG in October of '87 was work induced?
 
            
 
                 A.  I think it was.  I feel with a reasonable 
 
                 degree of medical certainty that they were work 
 
                 induced.
 
            
 
                 Q.  If I've understood your report correctly, 
 
                 you're saying all the work he did for both 
 
                 employers played a part in that?
 
            
 
                 A.  Yes.  I think it's reasonable, because he had 
 
                 certain complaints and had negative EMGs, but the 
 
                 complaints were there.  He changed jobs and the 
 
                 complaints were still there.  A follow-up EMG 
 
                 turned mildly positive, so I--I think it's 
 
                 reasonable to say that it was in the process of 
 
                 developing and then because of his new job, which, 
 
                 as I recall, required a lot of gripping and 
 
                 repetitive use of the hands, that watered the 
 
                 plant, so to speak, and it blossomed at that time.
 
            
 
            (exhibit 85, pp. 25 & 26)
 
            
 
                 Dr. Taylon further stated:
 
            
 
                 Now, how you guys divide it up legal, I don't 
 
                 know, but it is reasonable to say--and I can say 
 

 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
                 it with a reasonable degree of medical certainty 
 
                 that the second job contributed to the development 
 
                 of carpal tunnel syndrome.  It was certainly 
 
                 starting at his old job.  It certainly sounds like 
 
                 it was there, but it was EMG negative.  After 
 
                 working for awhile at his second job it was EMG 
 
                 positive, which means that the severity increased, 
 
                 so I don't know how you want to phrase it, but I 
 
                 can say with a reasonable re until such time that claimant is unable to work 
 
            because of pain or inability to work could prevent many 
 
            legitimately injured Iowa employees from ever developing a 
 
            mature carpal tunnel syndrome claim.  Death, retirement, lay 
 
            off and other events would deprive many claimants from ever 
 
            developing a mature claim.  The supreme court did not state 
 
            that other events could not result in a mature cause of 
 
            action.  Therefore, it is determined in this case that 
 
            claimant sustained an injury which arose out of and in the 
 
            course of employment with employer on the last day of his 
 
            employment with Shenandoah Gate due to the general lay off 
 
            on December 31, 1987.
 
            
 
                 The McKeever court borrowed the last injurious exposure 
 
            concept from the occupational disease law.  Iowa Code 
 

 
            
 
            Page   6
 
            
 
            
 
            
 
            
 
            section 85A.10; Doerfer Division of CCA v. Nicol, 359 N.W.2d 
 
            428 (Iowa 1984).  The McKeever case, at page 376, found 
 
            liability against the insurance carrier providing coverage 
 
            at the time of the injury.  In this case, Shenandoah Gate is 
 
            the employer at the time of the injury and they were insured 
 
            by Employers Mutual Insurance Company on that date, to wit, 
 
            December 31, 1987.  Therefore, it is determined that 
 
            claimant sustained an injury of bilateral carpal tunnel 
 
            syndrome to both hands under Iowa Code section 85.34(2)(s) 
 
            on December 31, 1987 which arose out of and in the course of 
 
            employment with employer and that Employers Mutual Insurance 
 
            Company was the insurance carrier on the date of the injury.
 
            
 
            casual connection-entitlement-temporary disability-permanent 
 
                                    disability
 
            
 
                 Dr. Taylon attributed the cause of the bilateral carpal 
 
            tunnel syndrome to employment for both Sam's Siding and 
 
            Shenandoah Gate, which necessarily, under the McKeever 
 
            concept, places liability on the second and last employer, 
 
            Shenandoah Gate, where claimant was last injuriously 
 
            exposed.  Therefore, it is determined that the injury was 
 
            the cause of the temporary and permanent disability in this 
 
            case.
 
            
 
                 Claimant was hospitalized for the first carpal tunnel 
 
            syndrome surgery on February 24, 1988 (ex. 20).  Dr. 
 
            Margules determined that claimant had obtained maximum 
 
            medical improvement from both carpal tunnel syndrome 
 
            surgeries on August 15, 1988 (ex. 3).  It is determined that 
 
            claimant is entitled to temporary disability benefits from 
 
            February 24, 1988 to August 15, 1988.  A period of 24.857 
 
            weeks.
 
            
 
                 Dr. Margules determined that claimant had sustained a 
 
            15 percent permanent functional impairment in each hand.  
 
            Using the Guides to the Evaluation of Permanent Impairment, 
 
            third edition, published by the American Medical 
 
            Association, 15 percent of the hand converts to 14 percent 
 
            of the upper extremity (table 2, page 19).  Fourteen percent 
 
            of the upper extremity converts to 8 percent of the whole 
 
            person (table 3, page 20).  Eight percent of one hand plus 8 
 
            percent of the other hand combines to 15 percent of the 
 
            whole person (combined values chart, page 246).
 
            
 
                 Dr. Taylon determined that claimant sustained a 
 
            permanent functional impairment of 4 percent to the body as 
 
            a whole (ex. 1a).  Working backward, this rating would 
 
            indicate that Dr. Taylon determined that claimant sustained 
 
            a 2 percent permanent impairment to the body as a whole of 
 
            each upper extremity (combined values chart, page 246).  Two 
 
            percent of the body as a whole converts to 4 percent of the 
 
            upper extremity (table 3, page 20).  Four percent of the 
 
            upper extremity converts to 4 percent of each hand (table 2, 
 
            page 19).  
 
            
 
                 Thus, it would appear that Dr. Margules' rating is 15 
 
            percent of the whole person and that Dr. Taylon's rating is 
 
            4 percent of the whole person.  It is determined by this 
 
            decision that claimant has sustained a 10 percent permanent 
 

 
            
 
            Page   7
 
            
 
            
 
            
 
            
 
            functional impairment to the body as a whole which developed 
 
            simultaneously as provided in Iowa Code section 85.34(2)(s) 
 
            and that claimant is entitled to 50 weeks of permanent 
 
            partial disability benefits. 
 
            
 
                 In summary then, claimant is entitled to 24.857 weeks 
 
            of healing period benefits and 50 weeks of permanent partial 
 
            disability benefits.  This totals 74.857 weeks of total 
 
            workers' compensation benefits.  Seventy-four point eight 
 
            five seven weeks of benefits at the stipulated rate of 
 
            $107.15 per week equals $8,020.93 of workers' compensation 
 
            benefits for the bilateral carpal tunnel syndrome injury in 
 
            this case.
 
            
 
                 Claimant did not prove that he is an odd-lot employee.  
 
            Claimant was working at the time this employment terminated 
 
            due to a general layoff and not due to the fact claimant 
 
            could not continue to work due to pain or inability to work.  
 
            Claimant did not establish that his case of surgically 
 
            corrected carpal tunnel syndrome left him totally and 
 
            permanently disabled.  His heart condition predated all of 
 
            these injuries and he could work.  His cervical injury was 
 
            surgically corrected.
 
            Further claimant did not establish a diligent search to find 
 
            employment in the area of his residence and therefore, did 
 
            not make out a prima facie case of permanent disability 
 
            under the odd-lot doctrine.  Guyton v. Irving Jensen Co., 
 
            373 N.W.2d 101 (Iowa 1985); Emshoff v. Petroleum 
 
            Transportation Services, Inc., file number 753723 (Appeal 
 
            Decision March 31, 1987); Collins v. Friendship Village, 
 
            Inc., file number 679258 (Appeal Decision October 31, 1988); 
 
            Hingtgen v. Goodmann, file number 737771 (Appeal Decision 
 
            September 30, 1988).  The fact the claimant testified that 
 
            he made one or two or a few job search contacts (ex. 84, pp. 
 
            48 & 49) or that he submitted a list of employers (ex. 83) 
 
            without any other evidence that he either contacted or 
 
            applied for work at these places, does not constitute a bona 
 
            fide effort to find employment in the area of his residence 
 
            sufficient to establish a prima facie case and to cause the 
 
            production of evidence to shift to defendants in this case 
 
            to prove that work was available which claimant could do.
 
            cumulative compensable injury or previously paid separate 
 
            injury
 
            
 
                 It is determined that claimant has sustained both a 
 
            compensable cumulative injury and a previously paid separate 
 
            injury.
 
            
 
                 Claimant filed an original notice and petition dated 
 
            April 22, 1988, which was filed in the industrial 
 
            commissioner's office on April 25, 1988.  This petition 
 
            alleged one injury date of January 20, 1986.  This petition 
 
            described two injuries.  The first injury was described as 
 
            follows: "Claimant injured cervical spine when catching a 
 
            32' extension ladder while it was falling' as part of work."  
 
            The second injury appearing in the same block states as 
 
            follows: "Claimant also suffered cumulative injury of 
 
            bilateral carpal tunnel."  Because the description specified 
 
            two injuries, two claim files were set up.  File number 
 
            818075 was designated the claim file for the right shoulder 
 

 
            
 
            Page   8
 
            
 
            
 
            
 
            
 
            and neck injury.  File number 872783 was designated as the 
 
            file number for the cumulative injury of bilateral carpal 
 
            tunnel.  Both of these claims designated Sam's Siding and 
 
            Federated Mutual Insurance Company as defendants.
 
            
 
                 Claimant filed another original notice and petition, 
 
            dated September 3, 1988, and filed in the industrial 
 
            commissioner's office of October 3, 1988, alleging an injury 
 
            date of December 31, 1987, against Shenandoah Gate Company 
 
            and Employers Mutual Insurance Company, which described, 
 
            "Claimant sustained a cumulative trauma injury of bilateral 
 
            carpal tunnel and cervical strain."  This claim was 
 
            designated file number 883575.
 
            
 
                 On November 28, 1988, all three files were consolidated 
 
            by Deputy Industrial Commissioner Helenjean Walleser.
 
            
 
                 A hearing for all three cases was scheduled for August 
 
            30, 1989.  The case was not heard due to two settlements and 
 
            one dismissal (tr. p. 30).
 
            
 
                 On September 6, 1989, claimant filed an application for 
 
            compromise special case settlement for the neck and shoulder 
 
            injury against Sam's Siding, file number 818075 and the 
 
            bilateral carpal tunnel syndrome injury against Sam's 
 
            Siding, file number 872873.  The settlement papers for both 
 
            injuries in both files specifies, "...an injury claimed to 
 
            have been sustained on January 20, 1986 and/or cumulative 
 
            injury during claimant's period of employment arising out of 
 
            and in the course of claimant's employment by the 
 
            defendant-employer and any and all disability resulting or 
 
            to result therefrom."  
 
            
 
                 On September 7, 1989, claimant filed a motion to 
 
            dismiss the cause of action as to Shenandoah Gate Company 
 
            and Employers Mutual Insurance Company, file number 883575, 
 
            without prejudice.
 
            
 
                 The settlements on the neck and shoulder injury, file 
 
            number 818075, and the bilateral carpal tunnel syndrome 
 
            injury, file number 872783, against Sam's Siding and 
 
            Federated Mutual Insurance Company were approved by Deputy 
 
            Industrial Deborah A. Dubik in the total amount of $22,500 
 
            and $11,250 was allocated to each injury.
 
            
 
                 Claimant then filed a new original notice and petition 
 
            against Shenandoah Gate Company and Employers Mutual 
 
            Insurance Company, dated September 12, 1989, which was 
 
            received and filed in the industrial commissioner's office 
 
            on September 13, 1989, for the injury date of December 31, 
 
            1987, which described: "Bilateral carpal tunnel which is the 
 
            result of repetitive trauma from working as a carpenter."  
 
            This cause of action was designated file number 883575, for 
 
            which this hearing was held on October 25, 1990, and is the 
 
            subject of this decision.
 
            
 
                 Benefits awarded under Iowa Code chapter 85 are the 
 
            counterpart to damages in a tort action.
 
            
 
                 The rules regarding credit for settlements from others 
 

 
            
 
            Page   9
 
            
 
            
 
            
 
            
 
            are not well established.  A literal reading of Iowa Code 
 
            section 85.38 could be used to deny all credits.  However, 
 
            double recovery in workers' compensation cases is normally 
 
            avoided.  Schonberger v. Roberts, 456 N.W.2d 201, 202, 206 
 
            (Iowa 1990);  Krohn v. State, 420 N.W.2d 463 (Iowa 1988); 
 
            Caylor v. Employers Mutual Casualty Co., 337 N.W.2d 890 
 
            (Iowa Appeals 1983); Wilson Foods Corp. v. Cherry, 315 
 
            N.W.2d 756 (Iowa 1982).
 
            
 
                 Comparative fault is not an issue under chapter 85.  
 
            Therefore, it would seem that the proportionate credit rule 
 
            should not be applied.
 
            
 
                 Under the pro tanto rule, the liable party is given 
 
            credit for the amount of settlements paid by others against 
 
            whom the claim has been made.  Tratchel v. Essex Group, 
 
            Inc., 452 N.W.2d 171, 181 (Iowa 1990).  In this case, it is 
 
            now determined that the pro tanto rule should be applied in 
 
            workers' compensation cases.  The application of this rule 
 
            effectively denies claimant any further recovery because 
 
            claimant would be entitled to $8,020.93 under this decision, 
 
            but has already been paid $11,500 for the same injury on 
 
            file number 872783 from Sam's Siding and Federated Mutual 
 
            Insurance Company for the carpal tunnel syndrome injury.  
 
            Consequently, it is determined that claimant is not entitled 
 
            to any further workers' compensation weekly benefits and is 
 
            to take nothing from this proceeding.
 
            
 
                                 Medical benefits
 
            
 
                 Claimant is not entitled to payment of the medical 
 
            benefits submitted at the time of hearing.
 
            
 
                 Joint exhibit 86a is a statement from Maurice P. 
 
            Margules, M.D., for services from June 12, 1986 through May 
 
            20, 1988 in the total amount of $5,500.  It is not possible 
 
            to determine from this bill, with certainty, which items are 
 
            related to the neck and shoulder injury and the bilateral 
 
            carpal tunnel syndrome injury.  In addition, three specific 
 
            items are lined out without explanation.
 
            
 
                 Joint exhibit 86b, which is duplicated at joint exhibit 
 
            86d are charges for a complex evaluation on January 3, 1989, 
 
            a re-examination on August 11, 1989, and a re-examination on 
 
            October 16, 1989.  These are charges by Kip A. Burkman, M.D.  
 
            The first two charges precede the first hearing date and Dr. 
 
            Burkman's report for July 3, 1989, covers the neck and 
 
            shoulder injury as well as the bilateral carpal tunnel 
 
            syndrome condition (ex. 7).  Dr. Burkman's report of October 
 
            31, 1989, does focus on the carpal tunnel syndrome and was 
 
            generated after the first scheduled hearing and the eventual 
 
            settlement of those two claim files.  The complex evaluation 
 
            on July 3, 1989, in the amount of $120 and the 
 
            re-examination on August 11, 1989 in the amount of $30 are 
 
            deemed to have been included in the earlier compromise 
 
            settlement of those two claim files approved on September 
 
            18, 1989.  Claimant is entitled to be reimbursed for the 
 
            re-examination on October 16, 1989 in the amount of $30, 
 
            except for the fact that this amount is included within the 
 
            credit to which these defendants are entitled as discussed 
 

 
            
 
            Page  10
 
            
 
            
 
            
 
            
 
            above.  
 
            
 
                 Joint exhibit 86c from Midwest Medical Imaging Center, 
 
            Inc., in the amount of $46 are for shoulder x-rays which are 
 
            clearly for the neck and shoulder injury under file number 
 
            818075.  These amounts are deemed to have been included in 
 
            that compromise settlement and in any event would not be 
 
            attributable to this injury which is to the hands.
 
            
 
                 Wherefore, it is determined that claimant is not 
 
            entitled to be reimbursed for any of the medical expenses 
 
            submitted in joint exhibit 86.
 
            
 
                                conclusions of law
 
            
 
                 Wherefore, based upon the evidence presented and the 
 
            foregoing and following principles of law, these conclusions 
 
            of law are made:
 
            
 
                 That claimant did sustain the burden of proof by a 
 
            preponderance of the evidence that he sustained a bilateral 
 
            carpal tunnel injury on December 31, 1987, which arose out 
 
            of and in the course of employment with employer.  Iowa Code 
 
            section 85.3(1);  McKeever Custom Cabinets v. Smith, 379 
 
            N.W.2d 368 (Iowa 1985); 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).
 
            
 
                 That the injury was the cause of both temporary and 
 
            permanent disability.  Bodish v. Fischer, Inc., 257 Iowa 
 
            516, 133 N.W.2d 867 (1965); Lindahl v. L.O. Boggs Co., 236 
 
            Iowa 296 18 N.W.2d 607 (1945).
 
            
 
                 That claimant is entitled to 24.857 weeks of healing 
 
            period benefits in the amount of $2,663.43.  Iowa Code 
 
            section 85.34(1).
 
            
 
                 That claimant is entitled to 50 weeks of permanent 
 
            partial disability benefits based on a 10 percent permanent 
 
            functional impairment to the body as a whole pursuant to 
 
            Iowa Code section 85.34(2)(s) in the amount of $5,357.50.
 
            
 
                 That claimant is entitled to $30 in medical expenses.
 
            
 
                 That defendants are entitled to a pro tanto credit in 
 
            the amount of $11,500 based on the settlement of file number 
 
            872783 against Sam's Siding and Federated Insurance Company 
 
            for the same bilateral carpal tunnel syndrome injury.  
 
            Consequently, claimant is not entitled to any further weekly 
 
            benefits from this injury.
 
            
 
                 That claimant did not sustain the burden of proof by a 
 
            preponderance of the evidence that he is an odd-lot 
 
            employee.
 
            
 
                 That claimant did not sustain the burden of proof by a 
 
            preponderance of the evidence that he is entitled to the 
 
            recovery of any of the claimed medical expenses, except $30, 
 
            which is eliminated by the credit.
 
            
 

 
            
 
            Page  11
 
            
 
            
 
            
 
            
 
                                      order
 
            
 
                 THEREFORE, IT IS ORDERED:
 
            
 
                 That no amounts are due from defendants, Shenandoah 
 
            Gate Company and Employers Mutual Company to claimant as the 
 
            result of the injury of December 31, 1987.
 
            
 
                 That the costs of this action, including the cost of 
 
            the transcript, are charged to claimant, pursuant to 
 
            Division of Industrial Services Rule 343-4.33.
 
            
 
                 That defendants file any reports which may be requested 
 
            by this agency pursuant to Division of Industrial Services 
 
            Rule 343-3.1.
 
            
 
                 Signed and filed this ____ day of December, 1990.
 
            
 
            
 
            
 
            
 
                                          ______________________________
 
                                          WALTER R. McMANUS, JR.
 
                                          DEPUTY INDUSTRIAL COMMISSIONER    
 

 
            
 
            Page  12
 
            
 
            
 
            
 
            
 
            
 
            
 
            Copies to:
 
            
 
            Mr. Sheldon Gallner
 
            Attorney at Law
 
            803 3rd Ave
 
            PO Box 1588
 
            Council Bluffs, Iowa  51502
 
            
 
            Mr. W. Curtis Hewett
 
            Attorney at Law
 
            35 Main Place
 
            PO Box 249
 
            Council Bluffs, Iowa  51502
 
            
 
            
 
 
            
 
            Page   1
 
            
 
            
 
            
 
            
 
                                          2207; 2209; 1106; 1401; 
 
                                          1402.20; 1402.30; 1402.60; 
 
                                          51802; 51402.40; 51803; 
 
                                          51402.40; 54100; 52501; 3300; 
 
                                          1703; 1704
 
                                          Filed December 21, 1990
 
                                          Walter R. McManus, Jr.
 
            
 
                           before the iowa industrial 
 
                                   commissioner
 
            ____________________________________________________________
 
                                          :
 
            HAROLD DEAN THOMPSON,         :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :      File No.  883575
 
            SHENANDOAH GATE COMPANY,      :
 
                                          :  A R B I T R A T I O N
 
                 Employer,                :
 
                                          :      D E C I S I O N
 
            and                           :
 
                                          :
 
            EMPLOYERS MUTUAL INSURANCE,   :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
            Background
 
            Claimant filed three claims against two employers:
 
            Claim #1 against employer A for neck and shoulder injury.
 
            Claim #2 against employer A for bilateral carpal tunnel.
 
            Claim #3 against employer B for bilateral carpal tunnel.
 
            All three cases were consolidated for hearing.  A few days 
 
            prior to hearing claimant dismissed claim #3 without 
 
            prejudice and settled claim #1 and claim #2 against employer 
 
            A for $25,500 and $11,250 was allocated to each claim.  A 
 
            few days later, claimant refiled claim #3 against employer 
 
            B.  This hearing was on claim #3 against employer B.
 
            
 
            2207; 2209; 1106; 1401; 1402.20; 1402.30; 1402.60
 
            The ultimate expert evaluator, a neurosurgeon from Creighton 
 
            University, said the bilateral carpal tunnel started while 
 
            working for employer A symptomatically and continued to 
 
            develop while later working for employer B and became 
 
            provable on EMG studies after the first employment.  He said 
 
            both employments caused the injury.  It was determined that 
 
            employer B was liable for a cumulative injury under the last 
 
            injurious exposure concept of McKeever and Doerfer.  
 
            Claimant never was forced to quit working.  He terminated 
 
            with employer A by mutual agreement.  He was laid off by 
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            employer B.  He had not been employed since employer B.  It 
 
            was determined that the injury date liable employer and 
 
            insurance carrier were employer B when claimant last worked 
 
            prior to being laid off.  In McKeever, the supreme court did 
 
            not say that events other than the day the employee is 
 
            forced to quit work due to the injury could not be the date 
 
            of injury.  If the last day worked prior to lay off was not 
 
            used as the injury date this employee and many others would 
 
            never develop a mature claim if they had to wait until they 
 
            were forced to quit work due to the injury.  If an employee 
 
            died, retired, quit, was fired or laid off prior to the time 
 
            he was forced to quit working due to the injury the employee 
 
            could never develop a mature claim.  Claimant used his hands 
 
            extensively in both jobs.
 
            
 
            51802; 51402.40
 
            Claimant awarded healing period benefits from the time of 
 
            hospitalization for surgery until the surgeon said claimant 
 
            had reached maximum improvement.
 
            
 
            51803; 51402.40
 
            Treating physician found 15 percent body as a whole 
 
            (converted and combined ratings) and evaluating physician 
 
            found 4 percent body as a whole rating.  Claimant awarded 10 
 
            percent of 500 weeks under Iowa Code section 85.34(2)"s" for 
 
            bilateral carpal tunnel which developed in both hands 
 
            simultaneously.
 
            
 
            54100
 
            Claimant did not prove he was an odd-lot employee even 
 
            though he had a number of other ailments.  First, because he 
 
            was working at the time of these two employments until he 
 
            was eventually laid off.  Secondly, his neck injury and 
 
            bilateral carpal tunnel surgeries had been surgically 
 
            corrected.  Third, (1) his testimony that he made only a few 
 
            job contacts and (2) the list of employers he submitted 
 
            without any testimony that he had diligently tried to obtain 
 
            employment with these listed employers did not make out a 
 
            prima facie case of odd-lot employee.
 
            
 
            52501
 
            It could not be determined what medical expenses were 
 
            incurred for this injury as distinguished from all of his 
 
            injuries.  Therefore, no medical expenses were allowed, 
 
            except $30 which could be found to be attributable to this 
 
            injury and defendants were entitled to a credit for it.  
 
            Claimant's attorney did not have an exhibit ready to 
 
            introduce to prove medical expenses until the deputy asked 
 
            him why he did not if medical expenses was one of the issues 
 
            designated on the hearing assignment order.
 
            
 
            3300; 1703; 1704
 
            The defendants were allowed a credit in the amount of 
 
            $11,250 which was paid and allocated to the carpal tunnel 
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            claim #2 against employer A.  Even though there is no 
 
            statutory credit for this payment the history of workers' 
 
            compensation law has demonstrated a policy or precedent 
 
            against double recovery of benefits.  Cases cited.  The 
 
            $11,250 credit wiped out the award for healing period 
 
            disability, permanent partial disability and the $30 medical 
 
            benefit.  The credit was determined to be pro tanto rather 
 
            than proportionate.  Cases cited.
 
            
 
            
 
 
         
 
         Page   1
 
         
 
                   51401; 51402.40; 51803; 51108.50;            
 
         51401; 51402.20; 51402.30;                   51402.40; 51402.60; 
 
         51801; 52500;            52700
 
                   Filed March 29, 1990
 
                   Walter R. McManus, Jr.
 
         
 
                     before the iowa industrial commissioner
 
         ____________________________________________________________
 
                                       :
 
         JUDY GREENHAW,                :
 
                                       :
 
              Claimant,                :
 
                                       :
 
         vs.                           :
 
                                       :      File Nos.  866930
 
         HEINZ, U.S.A.,                :                 883578
 
                                       :
 
              Employer,                :  A R B I T R A T I O N
 
                                       :
 
         and                           :      D E C I S I O N
 
                                       :
 
         LIBERTY MUTUAL INSURANCE CO., :
 
                                       :
 
              Insurance Carrier,       :
 
              Defendants.              :
 
         ___________________________________________________________
 
         
 
         51401; 51402.40; 51803
 
         Claimant failed to prove the shoulder injury was the cause of 
 
         permanent impairment and was not awarded any permanent disability 
 
         benefits for the shoulder injury.
 
         
 
         51108.50; 51401; 51402.20; 51402.30; 51402.40; 51402.60
 
         Claimant did prove an injury arising out of and in the course of 
 
         employment for bilateral carpal tunnel syndrome which occurred 
 
         simultaneously based on the testimony of both the treating 
 
         physician and also a consulting orthopedic surgeon.  Claimant 
 
         failed to prove any permanent impairment.  Neither orthopedic 
 
         surgeon awarded an impairment rating or imposed any permanent 
 
         restrictions for either the shoulder injury of the carpal tunnel 
 
         syndrome injury.
 
         
 
         51801
 
         Claimant awarded temporary total disability benefits for a 
 
         stipulated period of time while she was off work for two carpal 
 
         tunnel syndrome surgeries.
 
         
 
         51803
 
         Claimant was not awarded any permanent disability benefits for 
 
         the carpal tunnel syndrome injury.
 
         
 
         52500; 52700
 
         Claimant awarded medical benefits for both the shoulder injury 
 
         and the bilateral carpal tunnel syndrome injury.
 
         
 
 
            
 
            Page   1
 
            
 
            
 
            
 
            
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            WAYNE R. PROPP,               :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :         File No. 883583
 
            JOHN STEPONGZI EXCAVATING,    :
 
                                          :      A R B I T R A T I O N
 
                 Employer,                :
 
                                          :         D E C I S I O N
 
            and                           :
 
                                          :
 
            FARM BUREAU INSURANCE OF      :
 
            NEBRASKA,                     :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
            
 
                              statement of the case
 
            
 
                 This is a proceeding in arbitration upon the petition 
 
            of claimant, Wayne R. Propp, against the employer, John 
 
            Stepongzi Excavating, and its insurance carrier, Farm Bureau 
 
            Insurance, defendants.  The case was heard on March 27, 
 
            1990, in Council Bluffs, Iowa at the Pottawatamie County 
 
            Courthouse.  The record consists of the testimony of 
 
            claimant and the testimonies of Terry Holliman and John 
 
            Stepongzi.  Additionally, the record consists of joint 
 
            exhibits 1-29.
 
            
 
                                      issues
 
            
 
                 The issues to be determined are:
 
            
 
                 1) Whether there was an employer-employee relationship 
 
            between claimant and defendant-employer on July 22, 1987; 
 
            2) whether defendants received notice under section 85.23;
 
            and 3) the rate, if any, to be used for weekly benefits.
 
            
 
                                 facts presented
 
            The deputy, having heard the testimony and considered all 
 
            the evidence, finds:
 
            
 
                 Claimant is 49 years old.  He graduated from high 
 
            school in 1960.  Since that time, claimant was primarily 
 
            engaged in farming.  However, over the years he had also 
 
            engaged in construction work using bulldozers, end loaders 
 
            and draglines.
 
            
 
                 Terri Holliman, d/b/a Tri-State Incorporated, was 
 
            engaged in the excavation business.  As early as 1986, Mr. 
 
            Holliman had hired claimant as a part-time employee.  In 
 
            March of 1987, Mr. Holliman employed claimant on a full time 
 
            basis.  Claimant's records show he worked 10 hour days.
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            
 
                 While performing a contract at the alcohol plant in 
 
            Hamburg, Iowa, Mr. Holliman met another excavator, John 
 
            Stepongzi, d/b/a John Stepongzi Excavating.  Like Mr. 
 
            Holliman, Mr. Stepongzi had a small operation.  Neither 
 
            person was able to obtain larger more lucrative contracts.  
 
            As a result, the two entrepreneurs verbally agreed to 
 
            combine their efforts and to split their profits, if any.
 
            
 
                 No documents were drafted which incorporated the 
 
            parties' intentions.  However, bids were made by Mr. 
 
            Holliman in the name of "STEPONGZI Excavating."  Statements 
 
            were also drafted by Holliman in the name of "Stepongzi 
 
            Exc."  The statements were used as receipts upon the 
 
            client's payment.  The money received was placed in the 
 
            account of Tri-State.  Ostensibly this was done to protect 
 
            Mr. Stepongzi in his personal dealings with his wife.  
 
            Payroll checks were issued in the name of Tri-State and 
 
            signed by Holliman.
 
            
 
                 Thereafter, Mr. Holliman bid on behalf of Stepongzi 
 
            Exc. on a job at the Brownville nuclear power plant.  The 
 
            general contractor was OMNI, who in turn, subcontracted the 
 
            job to Stepongzi Exc.  However, before Stepongzi was allowed 
 
            to proceed, the company had to provide a certificate of 
 
            workers' compensation insurance.  After a minor problem was 
 
            resolved, Mr. Stepongzi ultimately produced the certificate 
 
            of workers' compensation insurance to the general 
 
            contractor.
 
            
 
                 Claimant worked on the Brownville site for a total of 
 
            525 hours.  The period included the day of his injury.  
 
            Holliman directed claimant to Brownville.  All employees, 
 
            including claimant, were paid payroll on checks which were 
 
            drawn on the Tri-State account.  No payroll checks were 
 
            issued to claimant from Stepongzi bank accounts.
 
            
 
                 In the midst of the completion of the Brownville 
 
            project, Holliman and Stepongzi became disenchanted with 
 
            their business arrangement.  They agreed to sever their 
 
            relationship at the end of the project.
 
            
 
                 On July 22, 1987, and before the Brownville project was 
 
            completed, claimant was involved in a one car accident.  He 
 
            was traveling from the Brownville project to Hamburg, Iowa 
 
            in order to pick up a dump truck and return it to the 
 
            Brownville location.  His duties were performed per the 
 
            instructions of Mr. Holliman.  However, before the truck 
 
            could be transferred, claimant was involved in his motor 
 
            vehicle accident.  He was transported to the hospital.  
 
            Shortly thereafter, Mr. Holliman learned of claimant's 
 
            injuries.
 
            
 
                                conclusions of law
 
            
 
                 Claimant has the burden of proving by a preponderance 
 
            of the evidence that he received an injury on July 22, 1987, 
 
            which arose out of and in the course of his employment.  
 
            McDowell v. Town of Clarksville, 241 N.W.2d 904 (Iowa 1976); 
 
            Musselman v. Central Telephone Co., 261 Iowa 352, 154 
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            N.W.2d 128 (1967). 
 
            
 
                 Claimant has proven by a preponderance of the evidence 
 
            the existence of an employer-employee relationship between 
 
            him and John Stepongzi Excavating, defendant-employer, on 
 
            July 22, 1987.  It is unnecessary to determine the precise 
 
            nature of the relationship which existed between John 
 
            Stepongzi and Terry Holliman on the date in question.  It is 
 
            sufficient to state that some type of business entity 
 
            existed.  Employees should not be penalized because 
 
            employers do not formulate their business relationships with 
 
            the best legal advice available.  Stepongzi Excavating is 
 
            estoppel from raising the defense of a lack of 
 
            employer-employee relationship.  Stepongzi Excavating had 
 
            earlier represented to the general contractor, OMNI, that 
 
            all ostensible employees were in fact employees of Stepongzi 
 
            Excavating and that they were covered by its workers' 
 
            compensation policy.  The workers relied upon that 
 
            representation as well as the general contractor.  To 
 
            determine there was no employer-employee relationship would 
 
            allow employers to escape their legal responsibilities once 
 
            insurance had been demonstrated and would work a hardship on 
 
            injured workers.
 
            
 
                 The next issue to address is whether claimant sustained 
 
            an injury which arose out of and in the course of his 
 
            employment.
 
            
 
                 Claimant has the burden of proving by a preponderance 
 
            of the evidence that he received an injury on July 22, 1987, 
 
            which arose out of and in the course of his employment.  
 
            McDowell, 241 N.W.2d 904 (Iowa 1976); Musselman, 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). 
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
            
 
                 There is little question that claimant's injury arose 
 
            out of and in the course of his employment.  He was engaged 
 
            in transporting vehicles pursuant to the direction of his 
 
            supervisor.  The services performed were of benefit to 
 
            defendant-employer.  Claimant was injured while engaging in 
 
            acts which arose out of and in the course of claimant's 
 
            employment.  Defendants are liable for those injuries.
 
            
 
                 Defendants maintain they did not receive adequate 
 
            notice pursuant to section 85.23.  Such a defense is without 
 
            merit.  A principal of the entity, Terry Holliman, had 
 
            actual knowledge of the injury shortly after the injury 
 
            occurred.  Additional notice is unnecessary under section 
 
            85.23.
 
            
 
                 Under section 85.27, claimant is entitled to reasonable 
 
            and necessary medical expenses causally related to 
 
            claimant's work injury of July 22, 1987.  The medical 
 
            expenses are:
 
            
 
                 8-11-87   Methodist Hospital - Omaha, NE   $18,348.54
 
            
 
                 7-22-87   Grape Community Hospital             507.22
 
            
 
                 7-22-87   Grape Community Hospital              17.00
 
            
 
                                          Total             $18,872.76
 
            
 
                 The parties have stipulated that claimant is entitled 
 
            to healing period benefits from July 22, 1987 through April 
 
            1, 1988.  The parties have also stipulated that claimant is 
 
            entitled to 66 weeks of permanent partial disability 
 
            benefits.
 
            
 
                 The proper rate for the aforesaid weekly benefits is 
 
            calculated pursuant to section 85.36(6).  The section 
 
            provides:
 
            
 
                 In the case of an employee who is paid on a daily, 
 
                 or hourly basis, or by the output of the employee, 
 
                 the weekly earnings shall be computed by dividing 
 
                 by thirteen the earnings, not including overtime 
 
                 or premium pay, of said employee earned in the 
 
                 employ of the employer in the last completed 
 
                 period of thirteen consecutive calendar weeks 
 
                 immediately preceding the injury.
 
            
 
                 Under 85.36(6), claimant worked:
 
            
 
                 week ending   7-25-87      hours worked   25
 
                               7-18-87                     47
 
                               7-11-87                     26
 
                                7-4-87                     48
 
                               6-27-87                     46
 
                               6-20-87                     42
 
                               6-13-87                     28
 
                                6-6-87                     54
 
                               5-30-87                     28
 
                               5-23-87                     54
 

 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
                               5-16-87                     40
 
                                5-9-87                     41
 
                                5-2-87                     46
 
            
 
                                            Total         525 hours - 13 
 
            =
 
                                         40.38 hours per week = 40 hours
 
            
 
                 Claimant was to be paid $10.00 per hour.  Gross weekly 
 
            wages are $400 per week.  Using the Guide to Workers' 
 
            Compensation Claim Handling for July 1, 1987, the proper 
 
            weekly benefit rate for a married individual with two 
 
            exemptions is $251.90 per week.  Claimant is entitled to 
 
            that rate.
 
            
 
                                      order
 
            
 
                 THEREFORE, IT IS ORDERED:
 
            
 
                 Defendants are to pay sixty-six (66) weeks of permanent 
 
            partial disability benefits at the rate of two hundred 
 
            fifty-one and 90/l00 ($251.90) per week commencing on April 
 
            2, 1988.
 
            
 
                 Claimant is entitled to thirty-six point four-two-nine 
 
            (36.429) weeks of healing period benefits at the rate of two 
 
            hundred fifty-one and 90/l00 dollars ($251.90).
 
            
 
                 Defendants shall pay in medical expenses in the sum of 
 
            eighteen thousand eight hundred seventy-two and 76/l00 
 
            dollars ($18,872.76).
 
            
 
                 Payments that have accrued shall be paid in a lump sum 
 
            together with statutory interest thereon pursuant to Iowa 
 
            Code section 85.30.
 
            
 
                 Defendants shall have a credit for all benefits 
 
            previously paid and not credited.
 
            
 
                 Costs shall be assessed to defendants pursuant to rule 
 
            343 IAC 4.33 including claimant's:
 
            
 
                        filing fee                          $ 65.00
 
                        deposition of John Stepongzi         125.00
 
            
 
                                                            $190.00
 
            
 
                 Defendants shall file a claim activity report upon 
 
            payment of this award.
 
            
 
            
 
            
 
                 Signed and filed this ____ day of January, 1991.
 
            
 
            
 
            
 
            
 
            
 
                                          ______________________________               
 
            MICHELLE A. McGOVERN
 

 
            
 
            Page   6
 
            
 
            
 
            
 
            
 
                                          DEPUTY INDUSTRIAL COMMISSIONER
 
            
 
            Copies To:
 
            
 
            Mr. Jon H. Johnson
 
            Attorney at Law
 
            P O Box 659
 
            Sidney  IA  51652
 
            
 
            Mr. W. Curtis Hewett
 
            Attorney at Law
 
            P O Box 249
 
            Council Bluffs  IA  51502
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                           1402.10
 
                           Filed January 22, 1991
 
                           MICHELLE A. McGOVERN
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            WAYNE R. PROPP,               :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :         File No. 883583
 
            JOHN STEPONGZI EXCAVATING,    :
 
                                          :      A R B I T R A T I O N
 
                 Employer,                :
 
                                          :         D E C I S I O N
 
            and                           :
 
                                          :
 
            FARM BUREAU INSURANCE OF      :
 
            NEBRASKA,                     :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
            
 
            
 
            1402.10
 
            Claimant was determined to be an employee of 
 
            defendant-employer for purposes of workers' compensation.
 
            
 
 
         
 
 
 
 
 
 
 
 
 
 
 
                   BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         _________________________________________________________________
 
                     
 
         JERRY A. BARNETT,     
 
                     
 
              Claimant,   
 
                     
 
         vs.         
 
                                                   File No. 883870
 
         MEDICAL CENTER        
 
         ANESTHESIOLOGISTS,    
 
                                                     A P P E A L
 
              Employer,   
 
                                                   D E C I S I O N
 
         and        
 
                     
 
         IOWA INSURANCE GUARANTEE   
 
         ASSOCIATION, on Behalf of       
 
         Insolvent Iowa National    
 
         Mutual Insurance Co.,      
 
                     
 
              Insurance Carrier,    
 
              Defendants.      
 
         _________________________________________________________________
 
         The record, including the transcript of the hearing before the 
 
         deputy and all exhibits admitted into the record, has been 
 
         reviewed de novo on appeal.  The decision of the deputy filed 
 
         October 18, 1993 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 February, 1994.
 
         
 
         
 
         
 
         
 
                                    ________________________________
 
                                              BYRON K. ORTON
 
                                       INDUSTRIAL COMMISSIONER
 
         
 
         Copies To:
 
         
 
         Mr. I. John Rossi
 
         Attorney at Law
 
         697 18th St.
 
         Des Moines, Iowa 50314
 
         
 
         Mr. Cecil L. Goettsch
 
         Mr. Steven M. Augspurger
 
         Attorney at Law
 
         801 Grand Ave., Ste 3700
 
         Des Moines, Iowa 50309-2727
 
         
 
         
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                          5-1100
 
                                          Filed February 28, 1994
 
                                          Byron K. Orton
 
            
 
                      BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
            JERRY A. BARNETT,     
 
                        
 
                 Claimant,   
 
                        
 
            vs.         
 
                                                 File No. 883870
 
            MEDICAL CENTER        
 
            ANESTHESIOLOGISTS,    
 
                                                   A P P E A L
 
                 Employer,   
 
                                                 D E C I S I O N
 
            and         
 
                        
 
            IOWA INSURANCE GUARANTEE   
 
            ASSOCIATION, on Behalf of       
 
            Insolvent Iowa National   
 
            Mutual Insurance Co.,      
 
                        
 
                 Insurance Carrier,    
 
                 Defendants.      
 
            ____________________________________________________________
 
            
 
            
 
            5-1100
 
            Claimant failed to prove by a preponderance of the evidence 
 
            that he sustained an injury which arose out of and in the 
 
            course of his employment.
 
            Benefits denied.
 
            
 
 
            
 
            
 
            
 
            
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
                                          :
 
            JERRY A. BARNETT,             :
 
                                          :
 
                 Claimant,                :
 
                                          :      File No. 883870
 
            vs.                           :
 
                                          :
 
            MEDICAL CENTER                :    A R B I T R A T I O N
 
            ANESTHESIOLOGISTS,            :
 
                                          :      D E C I S I O N
 
                 Employer,                :
 
                                          :
 
            and                           :
 
                                          :
 
            IOWA INSURANCE GUARANTY       :
 
            ASSOCIATION, on Behalf of     :
 
            Insolvent Iowa National       :
 
            Mutual Insurance Co.,         :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
                              STATEMENT OF THE CASE
 
            
 
                 This is a proceeding in arbitration brought by 
 
            claimant, Jerry Barnett, against his former employer, 
 
            Medical Center Anesthesiologists, P.C., and its insurance 
 
            carrier, Iowa Insurance Guaranty Association.  
 
            
 
                 Dr. Barnett has alleged that he sustained an injury on 
 
            June 26, 1985 which arose out of and in the course of his 
 
            employment.  The record in this case consists of testimony 
 
            from the claimant; claimant's exhibits 1-4 and 8; and, 
 
            defendants' exhibits A-M.
 
            
 
                 The matter came on for hearing before the undersigned 
 
            deputy industrial commissioner on August 30, 1993 at Des 
 
            Moines, Iowa.  
 
            
 
                                      ISSUES
 
            
 
                 The parties have submitted the following issues for 
 
            resolution:
 
            
 
                 1.  Whether claimant sustained an injury on June 26, 
 
            1985 which arose out of and in the course of his employment; 
 
            
 
                 2.  Whether claimant is entitled to temporary total or 
 
            healing period or permanent partial disability benefits; 
 
            
 
                 3.  Whether claimant has an untimely claim pursuant to 
 
            Iowa Code section 85.26; 
 
            
 
                 4.  Whether claimant has sustained an occupational 
 
            disease; and,  
 
            
 

 
            
 
            Page   2
 
            
 
                 
 
            
 
                 5.  Whether claimant is entitled to medical benefits as 
 
            governed by Iowa Code section 85.27.
 
            
 
                                 FINDINGS OF FACT
 
            
 
                 The undersigned deputy, having reviewed all of the 
 
            evidence received, finds the following facts:
 
            
 
                 Claimant, Jerry Barnett, was born on December 9, 1926.  
 
            At the time of the hearing, he was 66 years of age.  
 
            Claimant has been married since 1949. 
 
            
 
                 In 1959 claimant received his medical degree from the 
 
            University of Iowa, Iowa City, Iowa.  After a medical 
 
            internship and a two-year anesthesiology residency, claimant 
 
            became a partner in the Pearlman Anesthesia Group in Des 
 
            Moines, Iowa.  In 1972, the group became a professional 
 
            corporation, Medical Center Anesthesiologists, P.C., an 
 
            organization claimant worked for until 1985, when his health 
 
            forced him to retire.  Dr. Barnett is board certified, and 
 
            belongs to a number of organizations for anesthesiologists. 
 
            
 
                 As an anesthesiologist, claimant administered 
 
            anesthesia to surgical and obstetric patients.  Flurothane, 
 
            influrane and fluorine were common general anesthetics used 
 
            in claimant's work.  Dr. Barnett's schedule required him to 
 
            be in operating rooms eight or more hours per day, and he 
 
            was on-call during evenings and on weekends. Due to the 
 
            nature of the equipment used, gases would escape and fill 
 
            the operating rooms.  Claimant inhaled the waste or escaped 
 
            gases regularly. 
 
            
 
                 In 1985, during a pre-operative examination claimant 
 
            underwent for elective shoulder and elbow surgery, claimant 
 
            was diagnosed with cardiomyopathy, a condition which causes 
 
            a weakened heart muscle, and permanently affects the vigor 
 
            of the contractions of the heart (Claimant Exhibit 4, 5 and 
 
            6).  He was told to retire immediately from his position as 
 
            an anesthesiologist, as even climbing stairs and walking for 
 
            his hospital rounds were activities deemed too strenuous for 
 
            his heart condition.  Claimant went on to explain that after 
 
            a diagnosis of cardiomyopathy, the average life expectancy 
 
            is four years.  
 
            
 
                 Once claimant retired, or more aptly stated, took 
 
            medical disability, he began to search for the cause of his 
 
            condition.  
 
            
 
                 While claimant did not have an opinion from other 
 
            medical practitioners that his condition was caused by his 
 
            work, claimant found other anesthesiologists who had been 
 
            diagnosed with cardiomyopathy, with subsequent death or 
 
            heart transplants.  By May of 1986, claimant "suspicioned" 
 
            that his condition was caused by the inhalation of the waste 
 
            gases which permeated the operating rooms.  In 1987 and 
 
            1988, claimant continued to gather information regarding 
 
            other anesthesiologists who had been diagnosed with 
 
            cardiomyopathy, including an anesthesiologist with whom 
 
            claimant had trained who had undergone two heart 
 
            transplants.  On February 9, 1988, claimant was on a bus 
 

 
            
 
            Page   3
 
                 
 
            
 
            
 
            tour, and was told that a cardiologist in Boston was of the 
 
            opinion that inhalation of waste anesthetic gases could 
 
            cause myocardiopathy.
 
            
 
                 On February 29, 1988, claimant filled out a first 
 
            report of injury stating that his condition was work 
 
            related.  In March or April of 1988, claimant filed a 
 
            workers' compensation claim with the defendant insurance 
 
            carrier, Iowa Insurance Guaranty Association.  Information 
 
            requested on the application form includes an opportunity 
 
            for the applicant to supply information relevant to 
 
            processing the claim.  Claimant wrote, "My first information 
 
            that my disability was work related was Feb. 9, 1988.  I 
 
            phoned another anesthesiologist with whom I had my residency 
 
            in 1960-1962 in Iowa City, Iowa (University Hospitals).  He 
 
            related his cardiomyopathy was due to halogenated 
 
            anesthetics - [   ] informed by a cardiologist from Boston, 
 
            Mass."  (See, defendants' motion for summary judgment filed 
 
            July 2, 1993).  On October 10, 1988, the Association denied 
 
            the claim.  Excerpts from the letter include the following 
 
            information:
 
            
 
                    After a careful review of the claim file, 
 
                 including your claim form, I must inform you that 
 
                 I can find no support for your claim for workers' 
 
                 compensation beneits [sic] to you.  Respectfully, 
 
                 I must deny your claim for benefits.  I am sorry 
 
                 this decision could not be more favorable to you.
 
            
 
            (Defendants' Exhibit A)
 
            
 
                 Claimant argues that several people working for the 
 
            association told him he could refile the claim if he 
 
            produced enough evidence to show a causal connection between 
 
            his work and his condition.
 
            
 
                 Claimant continued to perform research about the causes 
 
            of cardiomyopathy.  On May 14, 1990, the researchers at the 
 
            State Library of Iowa medical reference counter sent 
 
            claimant an article from a French journal which suggested 
 
            that inhalation of trichlorathylene caused congestive 
 
            cardiomyopathy.  While the article is written in French, an 
 
            English summary is provided:
 
            
 
                    A congestive cardiomyopathy (associated with an 
 
                 atrial flutter) was observed in a 14 year-old boy 
 
                 who was a regular trichiorethylene sniffer.  
 
                 Regression occurred after stopping exposition to 
 
                 the toxic chemical.  This complication hitherto 
 
                 not reported in children, may be fatal.  Its 
 
                 origin would be ischemic because trichlorethylene 
 
                 is known to potentiate the effects of circulating 
 
                 catecholamines.  This toxic cardiomyopathy has to 
 
                 be added to the list of congestive 
 
                 cardiomyopathies in children and adolescents.
 
            
 
            (Claimant Exhibit 2).
 
            
 
                 The article was written in 1989, and the references 
 
            section provided names of additional articles addressing 
 

 
            
 
            Page   4
 
              
 
            
 
            
 
            similar case studies.  From this, claimant's research 
 
            increased, and he became increasingly convinced that his 
 
            condition was work-related.  Dr. Barnett gathered additional 
 
            articles, and on December 23, 1991, filed a petition for 
 
            arbitration with the Division of Industrial Services. 
 
            
 
                 Thomas Brown, Jr., M.D., was deposed for the case.  He 
 
            has treated claimant since 1980, or before, for various 
 
            ailments.  His colleague and co-worker, a Dr. Wheeler, 
 
            initially diagnosed claimant with idiopathic cardiomyopathy 
 
            in June of 1985.  In 1992, Dr. Brown was of the opinion that 
 
            the waste anesthetic gases either caused or exacerbated 
 
            claimant's underlying condition.  The change of opinion was 
 
            based upon the information contained in numerous articles 
 
            supplied to him by Dr. Barnett.  It is noted that some of 
 
            the articles were published as early as 1980 (Cl. Ex. 7).
 
            
 
                 Several experts have provided deposition testimony for 
 
            the case.  John Tinker, M.D., Michael Winniford, M.D., Ward 
 
            Chambers, M.D., and Thomas Brown, M.D., supported the 
 
            defendants' position that there were no conclusive studies 
 
            which showed that inhalation of waste anesthetic gases 
 
            caused cardiomyopathy (Def. Exs. D, E, H; Cl. Ex. 7).  Only 
 
            Plenney Bates, M.D., claimant's friend and colleague comes 
 
            close to supplying an opinion that claimant's physical 
 
            condition was caused by years of inhalation of gases. (Cl. 
 
            Exs. 3 and 9).  
 
            
 
                         ANALYSIS AND CONCLUSIONS OF LAW
 
            
 
                 The first issue to address is whether claimant 
 
            sustained an injury on June 6, 1985 which arose out of and 
 
            in the course of his employment.  
 
            
 
                 The party who would suffer loss if an issue were not 
 
            established has the burden of proving that issue by a 
 
            preponderance of the evidence.  Iowa R. App. P. 14(f).
 
            
 
                 The claimant has the burden of proving by a 
 
            preponderance of the evidence that the 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).
 
            
 
                 Claimant has relied upon numerous articles he has 
 
            uncovered in medical journals which discuss and analyze 
 
            inhalation of trichlorethylene, a gas generally used in 
 
            solvents, and similar to, but not the same as those gases 
 
            used in anesthesiology.
 
            
 
                 John Tinker, M.D., Professor and head of the Department 
 
            of Anesthesiology at the University of Iowa Hospitals and 
 
            Clinics, has determined that the studies are not supportive 
 
            of claimant's position.  
 
            
 
                 Dr. Winniford, an expert in cardiovascular diseases, 
 

 
            
 
            Page   5
 
            
 
            
 
            
 
            also finds fault with claimant's theory.  
 
            
 
                 Dr. Chambers, a cardiologist, also has found no 
 
            scientific evidence supporting a conclusion that inhalation 
 
            of waste anesthetic gases causes cardiomyopathy.
 
            
 
                 Claimant's strongest advocate does not supply enough 
 
            conviction to the relationship between inhalation of waste 
 
            anesthetic gases and cardiomyopathy to provide the requisite 
 
            link between claimant's work and his physical condition.  
 
            Dr. Bates, apparently a long-time friend and colleague of 
 
            claimant's, admitted that there is no scientific medical 
 
            evidence available to establish any causal relationship 
 
            between the inhalation of waste gases and cardiomyopathy.  
 
            It seems that he bases his opinion that there is a 
 
            connection between claimant's position and his physical 
 
            condition because he knows several anesthesiologists who 
 
            have been diagnosed with cardiomyopathy.   Claimant has 
 
            failed to prove by a preponderance of the evidence that he 
 
            sustained an injury which arose out of and in the course of 
 
            his employment. 
 
            
 
                 Even if claimant had shown by a preponderance of the 
 
            evidence that his condition was caused by his work, claimant 
 
            failed to file his petition within two years after the date 
 
            of the injury. 
 
            
 
                 Iowa Code section 85.26(1) states, in relevant part:
 
            
 
                    An original proceeding for benefits under this 
 
                 chapter or chapter 85A, 85B, or 86, shall not be 
 
                 maintained in any contested case unless the 
 
                 proceeding is commenced within two years from the 
 
                 date of the occurrence of the injury for which 
 
                 benefits are claimed or, if weekly compensation 
 
                 benefits are paid under section 86.13, within 
 
                 three years from the date of the last payment of 
 
                 weekly compensation benefits.
 
            
 
                 The two year statue of limitations can be extended 
 
            under the discovery rule, a concept developed by case law.   
 
            The Iowa supreme court has stated that the statute of 
 
            limitations begins to run when the employee discovers or in 
 
            the exercise of reasonable diligence should have discovered 
 
            the nature, seriousness and probable compensable character 
 
            of the injury causing death or disability for which benefits 
 
            are claimed.  Orr v. Lewis Central School District, 298 N.W. 
 
            2d 256 (Iowa 1980).
 
            
 
                 In the case at bar, claimant stopped working in 1985.  
 
            At that time, he suspicioned that his condition was in some 
 
            way related to his work.  
 
            
 
                 In 1988, claimant filed a first report of injury, and 
 
            contacted the insurance company about his condition and his 
 
            belief that it was related to his work.
 
            
 
                 Claimant did not file his petition for benefits until 
 
            December 23 1991, more than six years after his retirement 
 
            or disablement, and more than three years after he became 
 

 
            
 
            Page   6
 
            
 
            
 
            
 
            convinced that his condition was work related.  Claimant has 
 
            failed to file his claim within the two year statute of 
 
            limitations that is applicable to his claim.  
 
            
 
                 As a result, claimant takes nothing from these 
 
            proceedings. 
 
            
 
                                      ORDER
 
            
 
                 THEREFORE, it is ordered:
 
            
 
                 
 
            That claimant take nothing from these proceedings. 
 
            
 
            That defendants shall pay the costs of this proceeding. 
 
            
 
                 Signed and filed this ____ day of October, 1993.
 
            
 
            
 
            
 
            
 
                                          
 
                                          ________________________________
 
                                          PATRICIA J. LANTZ
 
                                          DEPUTY INDUSTRIAL COMMISSIONER
 
            
 
            Copies To:
 
            
 
            Mr I John Rossi
 
            Attorney at Law
 
            697 18th St
 
            Des Moines IA 50314
 
            
 
            Mr Cecil L Goettsch
 
            Mr Steven M Augspurger
 
            Attorneys at Law
 
            801 Grand Ave  Ste 3700
 
            Des Moines IA 50309-2727
 
            
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                            5-1100
 
                                            Filed October 18, 1993
 
                                            Patricia J. Lantz
 
            
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
                                          :
 
            JERRY A. BARNETT,             :
 
                                          :
 
                 Claimant,                :
 
                                          :      File No. 883870
 
            vs.                           :
 
                                          :
 
            MEDICAL CENTER                :    A R B I T R A T I O N
 
            ANESTHESIOLOGISTS,            :
 
                                          :      D E C I S I O N
 
                 Employer,                :
 
                                          :
 
            and                           :
 
                                          :
 
            IOWA INSURANCE GUARANTY       :
 
            ASSOCIATION, on Behalf of     :
 
            Insolvent Iowa National       :
 
            Mutual Insurance Co.,         :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
            5-1100
 
            Claimant failed to prove by a preponderance of the evidence 
 
            that he sustained an injury which arose out of and in the 
 
            course of his employment.
 
            Benefits denied.
 
            
 
 
            
 
            Page   1
 
            
 
            
 
            
 
            
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            WENDELL C. WOLFE,             :
 
                                          :
 
                 Claimant,                :       File No. 884803
 
                                          :
 
            vs.                           :     A R B I T R A T I O N
 
                                          :
 
            CITY OF DES MOINES,           :       D E C I S I O N
 
                                          :
 
                 Employer,                :
 
                 Self-Insured,            :
 
                 Defendant.               :
 
            ___________________________________________________________
 
            
 
                 
 
            
 
                 This is a proceeding in arbitration brought by Wendell 
 
            Craig Wolfe (claimant) commenced with the filing of a 
 
            petition on July 6, 1989 against the City of Des Moines 
 
            (City), employer and self insured as a result of an alleged 
 
            injury to claimant's lungs occurring on February 15, 1988.  
 
            On February 20, 1991, the matter came on for hearing in Des 
 
            Moines, Iowa.  The parties appeared as follows:  the 
 
            claimant in person and by his counsel Mark Hedberg of Des 
 
            Moines, Iowa and the City by its counsel Douglas Philiph, 
 
            Assistant City attorney of Des Moines, Iowa.  
 
            
 
                 The record in this proceeding consisted of the 
 
            following:
 
            
 
                 1.  The live testimony of the claimant, and Michael 
 
            Peterson.
 
            
 
                 2.  Joint exhibits A-K.
 
            
 
                 At the close of all evidence, the case was deemed to be 
 
            fully submitted.
 
            
 
                               preliminary matters
 
            
 
                 At the time of the submission of briefs in this matter, 
 
            the City attached an unpublished case decided by the Court 
 
            of Appeals entitled Gettler v. Ticknor, No. 9-371/89-33, 
 
            Slip op. (Iowa Ct. App. October 24, 1989) affirming File No. 
 
            737927, Slip op. (Iowa Ind. Comm'r App. April 15, 1988).  
 
            After the City filed its brief, claimant filed a motion to 
 
            strike the City's brief and disregard this authority as 
 
            having been improperly referenced in the City's brief and 
 
            violative of Iowa Supreme Court Rule of Appellate Procedure 
 
            14.  The City has filed a resistance to the motion to strike 
 
            and for sanctions.  
 
            
 
                 The Iowa Rules of Civil Procedure have been adopted by 
 
            the Industrial Commissioner for use in proceedings before 
 
            the agency.  See, rule 343 IAC 4.35.  If the Rules of Civil 
 
            Procedure are inconsistent with the rules of the Division of 
 
            Industrial Services, the administrative rules will take 
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            precedence.  See, rule 343 IAC 4.35.  The Industrial 
 
            Commissioner has not adopted the Rules of Appellate 
 
            Procedure promulgated by the Iowa Supreme Court and has no 
 
            rule limiting the use of unpublished opinions as persuasive 
 
            authority or as precedential authority in disputes before 
 
            the agency.  This writer is bound by prior agency precedent.  
 
            In this instance, since the underlying decision was affirmed 
 
            by the Court of Appeals, the law relating to the cause of an 
 
            occupational disease in circumstances where the claimant 
 
            suffers from asthma have been settled by the outcome of 
 
            Gettler, if the factual circumstances of the injury are 
 
            similar to those of the claimant in Gettler.
 
            
 
                 Consequently, the claimant's motion will be denied and 
 
            the Gettler case will be used as authority in this decision.
 
            
 
                                   stipulations
 
            
 
                 The parties stipulated to the following matters at the 
 
            time of the hearing:
 
            
 
                 An employer-employee relationship existed between 
 
            claimant and employer at the time of the alleged injury.
 
            
 
                 The type of permanent disability, if the injury is 
 
            found to be a cause of permanent disability, is industrial 
 
            disability to the body as a whole.
 
            
 
                 The commencement date for permanent partial disability, 
 
            is February 15, 1988.
 
            
 
                 The rate of compensation, in the event of an award, is 
 
            $245.24 per week.  Claimant is single and is entitled to one 
 
            to one exemptions.
 
            
 
                 Claimant's entitlement to medical benefits is no longer 
 
            in dispute.
 
            
 
                 That defendant make no claim for employee 
 
            nonoccupational group health plan benefits paid prior to 
 
            hearing.
 
            
 
                 That there are no bifurcated claims.
 
            
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            Issues
 
 
 
                 The issues for resolution are as follows:
 
            
 
                 1.  Whether claimant sustained an injury on February 
 
            15, 1988, which arose out of and in the course of his 
 
            employment.
 
            
 
                 2.  Whether a causal relationship exists between 
 
            claimant's claimed injuries and the claimed disability and 
 
            the nature and extent of any entitlement to benefits, if 
 
            any.
 
            
 
                                 FINDINGS OF FACT
 
            
 
                 After considering all of the evidence and the arguments 
 
            of counsel, the undersigned makes the following findings of 
 
            fact and conclusions of law.
 
            
 
                 1.  At the time of the hearing claimant was 41 years 
 
            old.  Claimant is a lifelong Des Moines resident.  
 
            Claimant's formal education is limited.  He completed the 
 
            9th grade and then began to work.  Claimant had no formal 
 
            training after he left school.  Claimant learned whatever 
 
            job skills he has on the job.  He has learned how to drive a 
 
            truck, drive a street sweeper, operate a chain saw, tie 
 
            steel, tend brick, and perform other construction related 
 
            tasks.  
 
            
 
                 2.  In 1975, claimant began to work full-time for the 
 
            City for the forestry department.  Claimant was not truthful 
 
            in filling out his employment application.  He indicated 
 
            that he graduated from East High School when in fact he did 
 
            not.  After claimant had worked in the forestry department 
 
            for a time, he bid into the sewer department.  He drove a 
 
            truck and performed general labor.  In 1978, claimant 
 
            transferred to the street cleaning department and learned 
 
            how to operate a street sweeper.  Claimant's job duties were 
 
            to drive the street sweeping unit and pick up street debris.  
 
            Claimant remained in this position until 1988 when he 
 
            transferred back to the forestry department.  Currently, 
 
            claimant drives a truck for the City.  At the time claimant 
 
            left his street sweeping position, claimant was earning 
 
            $10.98 per hour.  After the transfer, claimant was earning 
 
            $10.24 per hour.  At the time of the hearing, claimant was 
 
            earning $11.39 per hour.
 
            
 
                 3.  The job of a street sweeper is a dusty one.  This 
 
            job is also seasonal, in that sweeper units are not operated 
 
            for three to four months out of the year.  In the spring, 
 
            street sweeping is a particularly dusty job because of the 
 
            debris left from the winter.  On the days claimant operated 
 
            the sweeper, claimant spent approximately 4 1/2 to 5 hours 
 
            sweeping the street.  The balance of the remaining time was 
 
            taken in checking the unit, waiting for necessary repairs, 
 
            traveling to and from the job site and dumping the sweeper 
 
            unit while cleaning the street.
 
            
 
                 4.  The street sweeping units, have been supplied at 
 
            various times, with devices to reduce the level of dust in 
 
            the cab.  The cabs of sweepers are pressurized to keep dust 
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
            out.  The units are supplied with a bubble window which 
 
            allows the operator to see where the curb is without opening 
 
            the window.  However, operators run these units with the 
 
            window down so that they can see the curb.  If the window is 
 
            down, the operator loses the benefit of the pressurized cab.  
 
            No operators have ever been disciplined for sweeping the 
 
            streets with their windows down.  Claimant drove with his 
 
            window down from time to time.
 
            
 
                 5.  The street sweeping units were also supplied with 
 
            attached breathing equipment that the operator could use 
 
            while operating the machine.  These respirators were added 
 
            to claimant's machine several years after he began his job 
 
            with the City.  The attached breathing equipment restricted 
 
            movement in the cab and did not work very well.  Claimant 
 
            did not use this equipment.  Additionally, claimant was, 
 
            over the years, given a variety of filters and respirators 
 
            to use while operating the sweeping machine.  However, if an 
 
            operator chose not to wear these protective devices, the 
 
            operator was not disciplined by the City.  Claimant used 
 
            these devices.  
 
            
 
                 6.  The street sweeping units are also cleaned at 
 
            various times during the year.  Part of the job duties of an 
 
            operator includes cleaning the units.  Generally, 2 units 
 
            per day can be cleaned when the units are being cleaned.  
 
            The units are sprayed with a degreasing compound known as 
 
            68.A and then cleaned with soap and water.  The 
 
            manufacturer's safety data sheet for this compound indicates 
 
            that it is a water soluble liquid that has a slight odor.  
 
            The manufacturer recommends that the compound be used in a 
 
            ventilated area.  The compound can cause dermatitis with 
 
            skin contact.  The sweeping units are degreased in a 
 
            cinderblock building that is 15 feet by 30 feet and 15 feet 
 
            high.  There are doors at both ends of the building.  The 
 
            building is heated moderately.  When degreasing is done in 
 
            the fall and winter the doors of the bays are closed, but 
 
            can be opened while the machines are being cleaned.  When 
 
            the units were cleaned, claimant assisted with the cleaning 
 
            and the room was ventilated.  
 
            
 
                 7.  On Sunday, October 30, 1983, claimant went into the 
 
            emergency room at Des Moines General Hospital complaining of 
 
            sharp stabbing chest discomfort and shortness of breath.  He 
 
            indicated that he had been having breathing difficulties for 
 
            the last four months and that he had been wheezing.  At the 
 
            time claimant was smoking 2 packs of cigarettes per day and 
 
            his mother and brother had bronchial asthma.  Claimant was 
 
            seen by Donald R. Shumate, D.O., on October 31, 1983.  Dr. 
 
            Shumate indicated that claimant had mild obstructive airways 
 
            disease and symptoms compatible with adult onset of 
 
            bronchial asthma.  Claimant was given bronchodilators as a 
 
            result of this incident.  Claimant had pulmonary function 
 
            studies performed shortly after this incident that showed 
 
            that while the spirometry was essentially normal, claimant 
 
            had evidence of small airways obstruction.  
 
            
 
                 8.  On February 15, 1988, claimant saw James A. 
 
            Merchant, M.D., for his obstructive airway disease.  
 
            Claimant was seen only once by Dr. Merchant.  Dr. Merchant 
 

 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
            is a professor at the University of Iowa hospitals in heart 
 
            preventative medicine and internal medicine.  Dr. Merchant 
 
            has done research studies regarding occupational asthma(1) and 
 
            he has done studies in epidemiology.  Dr. Merchant is not a 
 
            board certified pulmonologist.  At the time of the 
 
            examination, claimant was complaining of a cough, shortness 
 
            of breath, tightness in his chest brought on by multiple 
 
            nonspecific irritants, including perfumes, diesel fumes, 
 
            cold air and hair spray.  Claimant indicated that he did not 
 
            have a history of childhood asthma.  Claimant also indicated 
 
            that he had changed jobs and this change had resulted in 
 
            reduced symptoms but that he was not free of respiratory 
 
            difficulties.  
 
            
 
                 9.  At the time of the examination, Dr. Merchant took 
 
            chest x-rays, and performed standard pulmonary functions 
 
            tests with and without bronchodilators.(2)   For his 
 
            deposition on June 12, 1990, Dr. Merchant reviewed 1983 
 
            medical records authored by Dr. Shumate, and medical records 
 
            authored by Steven Zorn, M.D., in 1989.  Based on this 
 
            information, Dr. Merchant believed that claimant's long 
 
            exposure to dust and the degreaser fumes caused an 
 
            aggravation to claimant's asthma but he would not say that 
 
            the dust exposure or the degreaser fumes caused claimant's 
 
            asthma (Exhibit A, pages 8, ll. 23-25, 9, ll. 1-9, 33, ll. 
 
            18-25, 34, ll. 1-14; Ex. C).
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
            (1).  Dr. Merchant defined occupational asthma as a variable 
 
            airway narrowing which arises from exposure to a wide 
 
            variety of occupational agents.  In the case of this 
 
            claimant however, Dr. Merchant was not sure that dust and 
 
            degreasers were solely responsible for claimant's condition 
 
            because there is an absence of clear literature on the 
 
            subject of dust and degreasers causing occupational asthma 
 
            (Ex. A, p. 8, ll. 17-22).  Dr. Zorn defined occupational 
 
            asthma as an immune-related disease which causes reversible 
 
            airway obstruction.  It is due to an agent that the patient 
 
            was exposed to or could have been exposed to in the work 
 
            place, which causes the production of antibodies.  Once the 
 
            antibodies are produced they are in the body for a number of 
 
            years (Ex. E, p. 21, ll. 8-13, 14-17).  Dr. Hicklin defined 
 
            occupational asthma as asthma caused by a specific factor 
 
            through a sensitization process not through irritation (Ex. 
 
            D, p. 21, ll. 17-25, p. 22, ll. 1-25, p. 23, ll. 1-20).  Dr. 
 
            Hicklin defined asthma as a reversible airways obstruction 
 
            associated with bronchial hyperactivity.  Asthma generally 
 
            gets better with treatment or over time especially when the 
 
            causative agent, if there is one, is withdrawn.  In 
 
            claimant's case, his pulmonary function has declined over 
 
            the past 7 years and his small airways disease has not 
 
            improved even with bronchodilators.  His small airways 
 
            disease is due to his cigarette smoking.  This is the 
 
            earliest indication that he may go on to develop emphysema.  
 
            (2).  Dr. Merchant defined the standard pulmonary functions 
 
            tests as a standard spirometry with a forced vital capacity 
 
            and forced expiratory volume in one second with and without 
 
            bronchodilators.  Dr. Merchant did not do a methacholine 
 
            challenge.  He reviewed the results of a test performed by 
 
            Dr. Zorn on October 27, 1989.
 
            
 
            
 
            Page   6
 
            
 
            
 
            
 
            
 
            
 
                 10. On December 2, 1988, Dr. Merchant concluded again 
 
            that it was difficult to be sure which factors were causing 
 
            claimant's asthma.  It was clear that his exposure caused an 
 
            aggravation.  Dr. Merchant also concluded that claimant was 
 
            not permanently disabled.  However, Dr. Merchant observed 
 
            that since claimant had airway hyper-reactivity, he is 
 
            partially impaired.  Claimant's impairment is mild to 
 
            moderate.  The last paragraph of Dr. Merchant's December 
 
            1988 letter is significant:  He says:
 
            
 
                 As I indicated, his permanent partial impairment 
 
                 is possibly causally related to his job, and there 
 
                 is no doubt in my mind that exposures on the job 
 
                 aggravated this impairment (Emphasis added).
 
            
 
                 11. On October 27, 1989, claimant was examined by Dr. 
 
            Steven K. Zorn for a disability evaluation.  Claimant was 
 
            seen by Dr. Zorn once.  Dr. Zorn is a pulmonologist and he 
 
            is board certified in both internal medicine and pulmonary 
 
            medicine.  Dr. Zorn took an occupational history from 
 
            claimant, examined claimant, performed a number of studies, 
 
            reviewed information that had been provided to him, and drew 
 
            his conclusions based upon a literature review, the 
 
            laboratory studies, his experience and claimant's history 
 
            and physical.(3)  Claimant gave essentially the same history 
 
            to Dr. Zorn that had been given to Dr. Merchant except that 
 
            he reported that his brother was in good health when in fact 
 
            his brother has asthma.  
 
            
 
                 12. Dr. Zorn noted several significant aspects of 
 
            claimant's current condition in relation to his history.  
 
            Dr. Zorn noted that claimant was wheezing, and clearing his 
 
            throat frequently.  He also noted that claimant showed some 
 
            mucosal thickening over the left maxillary sinus which is 
 
            consistent with left maxillary sinusitis.  Skin testing of 
 
            the 18 most common airborne allergens found in Iowa 
 
            indicated that claimant was positive to house dust, dog 
 
            epithelium and grass mix.  He is already allergic to cats.  
 
            The pulmonary function studies showed that he has some small 
 
            airway obstructions.  Dr. Zorn concluded that claimant had 
 
            asthma but that it was not caused by claimant's exposure to 
 
            dust or organic solvents such as the degreaser fumes used to 
 
            clean the sweeper unit (Ex. E, p. 12, ll. 21-25, 13, ll. 
 
            1-25, 14, ll. 1-25, 15, ll. 1-17).  Dr. Zorn felt that the 
 
            (3).  Dr. Zorn reviewed the medical literature and could not 
 
            find any literature to support the continuation of bronchial 
 
            hyperreactivity in persons exposed to road dust or degreaser 
 
            fumes once they have been removed from these agents.  
 
            Additionally, Dr. Zorn concluded that exposure to road dust 
 
            or degreaser fumes during the years claimant worked as a 
 
            street sweeper would not explain his present clinical 
 
            history of shortness of breath on exposure to furniture 
 
            polish, soaps, perfumes, and humid weather.  Finally, he 
 
            found that claimant had two independent conditions that are 
 
            presently known irritants to the respiratory tract and may 
 
            exacerbate his present symptoms of bronchospasam and 
 
            shortness of breath which are cigarette smoking and left 
 
            maxillary sinusitis.
 
            
 
            
 
            Page   7
 
            
 
            
 
            
 
            
 
            reduction in claimant's symptoms when he was not exposed to 
 
            dust and the degreaser fumes supported his conclusion that 
 
            these irritants did not cause claimant's asthma.  Dr. Zorn 
 
            also believed that claimant's smoking not only made his 
 
            condition worse but it was the most significant irritant 
 
            that he continues to have (Ex. E, p. 17, ll. 7-16, 20, 
 
            13-19).  Dr. Zorn also thought that smoking did not cause 
 
            claimant's asthma.  Dr. Zorn believed that claimant has a 
 
            predisposition to asthmatic tendencies.  Claimant continues 
 
            to be symptomatic because of continuing exposure to 
 
            nonspecific irritants such as cigarette smoke, perfume, cold 
 
            air and any number of household irritants (Ex. E, p. 20, ll. 
 
            20-25).
 
            
 
                 13. On November 17, 1987, claimant saw William R. 
 
            Boulden, M.D., for back pain from an injury he suffered in 
 
            1985 when the back wheel on the sweeper rolled into a hole 
 
            and jolted him.  Claimant complained about his back pain for 
 
            two years.  Claimant told Dr. Boulden that he switched jobs 
 
            because of continuous sitting and bending to the right.  Dr. 
 
            Boulden indicated that the job change should be beneficial 
 
            for claimant's back since he can get in and out of a truck 
 
            frequently and avoid bending and lifting.  Dr. Boulden gave 
 
            claimant a 50 pound lifting restriction with no bending, 
 
            stooping or lifting with his back.
 
            
 
                 14. Claimant was next seen by Steven R. Adelman, D.O., 
 
            for a neurological consultation.  During that examination, 
 
            claimant reported that he had multiple problems from 
 
            work-related injuries including tennis elbow, left shoulder 
 
            musculoskeletal pain and a cortisone shot in the hip.  
 
            Claimant did not mention any breathing difficulties 
 
            resulting from his job.  Dr. Adelman did a complete 
 
            examination and did not note any breathing difficulties.
 
            
 
                 15. Claimant was next examined for his respiratory 
 
            complaints on September 18, 1990, by Greg Hicklin, M.D.  Dr. 
 
            Hicklin is board certified in pulmonary medicine, internal 
 
            medicine, and critical care medicine.  Dr. Hicklin is also a 
 
            certified B-Reader by the National Institute of Occupational 
 
            Safety and Health.  Dr. Hicklin is on the internal medicine 
 
            faculty at Iowa Methodist.  Claimant gave Dr. Hicklin 
 
            essentially the same history that had been given to Dr. 
 
            Merchant and Dr. Zorn (Ex. D, p. 9, ll. 8-25, p. 10, ll. 
 
            1-9).  Dr. Hicklin also reviewed the pulmonary function test 
 
            performed on November 28, 1983, Dr. Shumate's report, the 
 
            clinical summary dictated by Dr. Merchant, a series of tests 
 
            and a narrative summary written by Dr. Zorn on October 27, 
 
            1989.  Dr. Hicklin noted the discrepancies in the histories 
 
            given and took them into account when he evaluated claimant.
 
            
 
                 16. Dr. Hicklin did a physical examination of the 
 
            claimant.  He found that claimant was wheezing on forced 
 
            expiration.  This finding is caused by asthma or obstructive 
 
            airways disease.  Dr. Hicklin also had x-rays taken of 
 
            claimant's chest and he did a complete battery of pulmonary 
 
            function tests which included a spirometry, lung volumes, 
 
            post bronchodilator spirometry and diffusion capacity.  
 

 
            
 
            Page   8
 
            
 
            
 
            
 
            
 
            Based on the results of these tests, the review of the prior 
 
            medical reports and tests, Dr. Hicklin concluded that 
 
            claimant's asthma was not caused by his occupation as a 
 
            street sweeper.  Dr. Hicklin did not know the cause of 
 
            claimant's asthma.  He described it as idiopathic asthma 
 
            related to claimant's environment and his genetic makeup.  
 
            Claimant is an atopic individual.  He had multiple positive 
 
            skin test reactions to common environmental antigens 
 
            associated with a positive family history of asthma.  Dr. 
 
            Hicklin also concluded that claimant had small airways 
 
            obstruction disease.  This disease was not caused by his job 
 
            as a street sweeper.  This disease was caused by claimant's 
 
            smoking habits (Ex. D, p. 14, ll. 20-25, p. 15, ll. 11-17).  
 
            Dr. Hicklin also found that when claimant was removed from 
 
            the dust and fumes of his street sweeping job, his symptoms 
 
            improved.  He also felt that there was no permanent damage 
 
            from his work related exposure (Ex. D, p. 15, ll. 22-25; p. 
 
            16, ll. 1-18).  Claimant's work environment continued 
 
            nonspecific irritants and made his asthma worse when he was 
 
            exposed to them.  Dr. Hicklin also observed that road dust 
 
            and the chemicals likely to be found in a degreaser are not 
 
            on any of lists of chemicals that cause occupational asthma 
 
            or within the list of agents that cause occupational asthma.  
 
            A literature search revealed that there is no proven 
 
            relationship that road dust causes asthma.
 
            
 
                                conclusions of law
 
            
 
                 1.  Whether claimant sustained an injury on February 
 
            15, 1988 which arose out of and in the course of his 
 
            employment.
 
            
 
                 Claimant urges he contracted an occupational disease on 
 
            or about February 15, 1988 that arose out of and in the 
 
            course of his employment.  The City argues that whatever 
 
            disease claimant suffers from did not arise out of and in 
 
            the course of his employment.  In the alternative, claimant 
 
            contends that he suffered an aggravation of a preexisting 
 
            disease as a result of the exposure to road dust and fumes 
 
            on the job.
 
            
 
                 Iowa Code section 85A.8 (1991) provides the definition 
 
            of an occupational disease.(4)  In determining whether 
 
            claimant has an occupational disease, claimant has the 
 
            burden of proving by a preponderance of the evidence that 
 
            his occupational disease arose out of and in the course of 
 
            his employment.  Frit Industries v. Langenwalter, 443 N.W.2d 
 
            88, 90 (Iowa 1989); McSpadden v. Big Ben Coal Company, 288 
 
            N.W.2d 181, 188 (Iowa 1980); McDowell v. Town of 
 
            Clarksville, 241 N.W.2d 904, 908 (Iowa 1976); Musselman v. 
 
            Central Telephone Co., 154 N.W.2d 128, 130 (Iowa 1967); 
 
            Bodish v. Fischer, Inc., 133 N.W.2d 867, 868 (Iowa 1965);  
 
            Lindahl v. L. O. Boggs, 18 N.W.2d 607,613-14 (Iowa 1945).  
 
            In order to meet this burden of proof, the claimant must 
 
            show two things.  First, claimant must show that the disease 
 
            is causally related to the exposure or harmful condition of 
 
            the field of employment.  Second, the claimant must show 
 
            that the harmful conditions must be more prevalent in the 
 
            employment concerned that in everyday life or in other 
 
            occupations.  Frit Industries, 443 N.W.2d at 90; McSpadden, 
 
            (4).  Iowa Code Section 85A.8 (1991) provides that an 
 
            occupational disease is a disease that arises out of and in 
 
            the course of the employee's employment.  Such diseases 
 
            shall have a direct causal connection with the employment 
 
            and must have followed as a natural incident thereto from 
 
            injurious exposure occasioned by the nature of the 
 
            employment.  Such disease must be incidental to the 
 
            character of the business, occupation or process in which 
 
            the employee was employed and not independent of the 
 
            employment.  Such disease need not have been foreseen or 
 
            expected but after its contraction it must appear to have 
 
            had its origin in a risk connected with the employment and 
 
            to have resulted from that source as an incident and 
 
            rational consequence.  A disease which follows from a hazard 
 
            to which an employee has or would have been equally exposed 
 
            outside of said occupation is not compensable as an 
 
            occupational disease.
 
            
 
            
 
            Page   9
 
            
 
            
 
            
 
            
 
            288 N.W.2d at 190 
 
            
 
                 The Supreme Court has defined a personal injury for the 
 
            purposes of workers' compensation cases.  Almquist v. 
 
            Shenadoah Nurseries, 254 N.W. 35, 38 (Iowa 1934).  In this 
 
            case the Court found that a personal injury, is an injury to 
 
            the body, the impairment of health, or a disease, not 
 
            excluded by the Workers Compensation Act, which comes about, 
 
            not through the natural building up and tearing down of the 
 
            human body, but because of a traumatic or other hurt or 
 
            damage to the health or body of an employee.  The injury to 
 
            the human body must be something, whether an accident or 
 
            not, that acts extraneously to the natural processes of 
 
            nature, and thereby impairs the health, overcomes, injures, 
 
            interrupts, or destroys some function of the body, or 
 
            otherwise damages or injures a part or all of the body.  
 
            
 
                 The Almquist Court further observed that while a 
 
            personal injury does not include an occupational disease 
 
            under the Workmen's Compensation Act, yet an injury to the 
 
            health may be a personal injury.  A personal injury includes 
 
            a disease resulting from an injury.  However, the result of 
 
            changes in the human body incident to the general processes 
 
            of nature do not amount to a personal injury.  This is true, 
 
            even though natural change may come about because the life 
 
            has been devoted to labor and hard work.  Results of those 
 
            natural changes do not constitute a personal injury even 
 
            though the same brings about impairment of health or the 
 
            total or partial incapacity of the functions of the human 
 
            body. 
 
            
 
                 If the claimant is unsuccessful in showing that he is 
 
            entitled to compensation for an occupational disease, he may 
 
            still be compensated if his exposure caused an aggravation 
 
            to a preexisting disease that arose out of and in the course 
 
            of his employment with the City.
 
            
 
                 A claimant is not entitled to compensation for the 
 
            results of a preexisting injury or disease.  Rose v. John 
 
            Deere Ottumwa Works, 76 N.W.2d 756, 760-61 (Iowa 1956).  
 

 
            
 
            Page  10
 
            
 
            
 
            
 
            
 
            However, the existence of a preexisting condition is not a 
 
            defense to a workers' compensation claim.  Rose, 76 N.W.2d 
 
            at 760-61.  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.  Gettler v. Ticknor, File No. 737927, 
 
            Slip op. 5, 7 (Iowa Ind. Comm'r App. April 15, 1988), aff'd, 
 
            No. 9-371/89-33, Slip op. at 5 (Iowa Ct. App. October 24, 
 
            1989);  Gosek v. Garmer and Stiles Co., 158 N.W.2d 731, 737 
 
            (Iowa 1968); Barz v. Oler, 133 N.W.2d 704, 707 (Iowa 1965); 
 
            Olson v. Goodyear Service Stores, 125 N.W.2d 251, 256 (Iowa 
 
            1963); Yeager v. Firestone Tire & Rubber Co., 112 N.W.2d 
 
            299, 302 (Iowa 1961); Ziegler v. United States Gypsum Co., 
 
            106 N.W.2d 591, 595 (Iowa 1960); Nicks v. Davenport Produce 
 
            Co., 115 N.W.2d 812, 815 (Iowa 1962); Almquist, 254 N.W. at 
 
            38.
 
            
 
                 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.  If the preexisting 
 
            condition is more than slightly aggravated, this resultant 
 
            condition is considered a personal injury within Iowa law.  
 
            Ziegler, 106 N.W.2d at 595.
 
            
 
                 In this instance, claimant's job did not cause any of 
 
            the diseases from which he is suffering.  The greater weight 
 
            of the evidence in this dispute demonstrates that the two 
 
            pulmonologists believe that none of claimant's breathing 
 
            diseases were caused by his employment.  Both Dr. Hicklin 
 
            and Dr. Zorn are board certified in the subspecialty of 
 
            pulmonary disease, while Dr. Merchant is not.  All three 
 
            doctors saw claimant only once.  Dr. Merchant saw claimant 
 
            in 1988, Dr. Zorn saw claimant in 1989 and Dr. Hicklin saw 
 
            claimant in 1990.  Normally, the rating of a board-certified 
 
            physician is preferred in cases of conflict.  Dickey v. ITT 
 
            Continental Baking Co., 34 Biennial Report of the Iowa 
 
            Industrial Commissioner 89 (1979); Richland v. Palco, Inc., 
 
            32 Biennial Report of the Iowa Industrial Commissioner 56 
 
            (1975).
 
            
 
                 Dr. Hicklin and Dr. Zorn found that claimant's asthma 
 
            was not caused by his exposure to dust and fumes on the job.  
 
            They both concluded that claimant had a genetic 
 
            predisposition to asthma and that the exposure to dust and 
 
            fumes simply irritated the condition; it did not cause the 
 
            disease.  This result is consistent with the result in 
 
            Gettler, File No. File No. 737927, Slip op. at 5, where 
 
            claimant was asymptomatic before beginning work in a hog 
 
            confinement building.  Claimant became symptomatic after he 
 
            began to work in this environment.  Once away from the hog 
 
            house dust, like claimant here, the symptoms were reduced.  
 
            In this dispute, claimant's symptoms did not go away 
 
            completely because he was reacting to other irritants 
 
            including humid weather, cold, furniture polish, perfume and 
 
            smoking.
 
            
 
                 Even claimant's doctor, Dr. Merchant, would not say 
 

 
            
 
            Page  11
 
            
 
            
 
            
 
            
 
            that claimant's exposure to road dust and fumes was the 
 
            cause of his occupational asthma or any of his breathing 
 
            disorders.  Dr. Merchant would only go so far to urge that a 
 
            possibility existed that the exposure had caused the 
 
            occupational disease.  A possibility is insufficient; a 
 
            probability is necessary.  Burt v. John Deere Waterloo 
 
            Tractor Works, 73 N.W.2d 732, 738 (Iowa 1955).  
 
            Consequently, there is insufficient evidence in the record 
 
            to support the claimant's position that his occupational 
 
            asthma arose out of and in the course of his employment.
 
            
 
                 Claimant's small airways disease and his hyper-reactive 
 
            airways disease were caused by claimant's smoking rather 
 
            than exposure to dust and fumes on the job.  Both Dr. 
 
            Hicklin and Dr. Zorn found that claimant's continued smoking 
 
            was the most significant factor in his continued breathing 
 
            difficulties.  
 
            
 
                 All three doctors concluded that claimant's exposure to 
 
            dust and fumes aggravated his preexisting asthma condition 
 
            however.  These irritants caused claimant to become 
 
            symptomatic.  Claimant had no symptoms prior to his exposure 
 
            to dust and fumes.  Consequently, the claimant was 
 
            successful in showing that he suffered an aggravation of a 
 
            preexisting condition while he was employed by the City.  
 
            Consistent with Ziegler, 106 N.W.2d at 595, claimant has 
 
            suffered an injury that arose out of and in the course of 
 
            his employment.
 
            
 
                 2.  Whether a causal relationship exists between 
 
            claimant's claimed injuries and the claimed disability and 
 
            the nature and extent of any entitlement to benefits, if 
 
            any.
 
            
 
                 Claimant argues that the fighting issue in this case is 
 
            whether claimant contracted an occupational disease as a 
 
            result of his employment with the City.  However, since 
 
            claimant has failed to show that any of his breathing 
 
            disorders were causally related to the exposure to road dust 
 
            and fumes, this issue is moot.  However, the claimant may 
 
            still be entitled to compensation if he can show that the 
 
            aggravation caused by his exposure to dust and fumes caused 
 
            a permanent disability.  The City urges that at most, 
 
            claimant has suffered a temporary aggravation of a 
 
            preexisting condition that was relieved when claimant 
 
            changed jobs.  Claimant lost no work from the aggravation.  
 
            Finally, claimant changed jobs as a result of a back injury 
 
            rather than as a result of breathing difficulties.  
 
            
 
                 The claimant has the burden of proving by a 
 
            preponderance of the evidence that an aggravation of his 
 
            preexisting breathing disorders, namely, asthma, small 
 
            airways disease and hyper-reactivity disease is causally 
 
            related to the disability on which he now bases his claim.  
 
            Frit Industries v. Langenwalter, 443 N.W.2d 88, 90 (Iowa 
 
            1989); McSpadden, 288 N.W.2d at 188 (Iowa 1980);  Bodish v. 
 
            Fischer, Inc., 133 N.W.2d 867, 868 (Iowa 1965);  Lindahl v. 
 
            L. O. Boggs, 18 N.W.2d 607,613-14 (Iowa 1945).  A 
 
            possibility is insufficient; a probability is necessary.  
 

 
            
 
            Page  12
 
            
 
            
 
            
 
            
 
            Burt, 73 N.W.2d at 738.  The question of causal connection 
 
            is essentially within the domain of expert testimony.  
 
            Bradshaw v. Iowa Methodist Hospital, 101 N.W.2d 167,171 
 
            (Iowa 1960). 
 
            
 
                 Expert medical evidence must be considered with all 
 
            other evidence introduced bearing on the causal connection.  
 
            Burt, 73 N.W.2d at 738.  The opinion of the experts need 
 
            not be couched in definite, positive or unequivocal 
 
            language.  Sondag v. Ferris Hardware, 220 N.W.2d 903, 907 
 
            (Iowa 1974).  Moreover, the expert opinion may be accepted 
 
            or rejected, in whole or in part, by the trier of fact.  
 
            Sondag, 220 N.W.2d at 907.  Finally, the weight to be given 
 
            to such an opinion is for the finder of fact, and that may 
 
            be affected by the completeness of the premise given the 
 
            expert and other material circumstances.  Bodish, 133 N.W.2d 
 
            at 870; Musselman, 154 N.W.2d at 133.  The Supreme Court has 
 
            also observed that greater deference is ordinarily accorded 
 
            expert testimony where the opinion necessarily rests on 
 
            medical expertise.  Sondag, 220 N.W.2d at 907.  
 
            
 
                 In this instance, there is insufficient evidence in the 
 
            record to support claimant's contention that he has suffered 
 
            any permanent or temporary disability from the aggravation 
 
            of the preexisting diseases from which claimant suffers.  
 
            Claimant did not lose any time from work as a result of his 
 
            exposure to road dust or degreaser fumes.  When claimant is 
 
            not exposed to road dust and the degreaser fumes, claimant's 
 
            symptoms are reduced.  Claimant is never free from symptoms 
 
            because he continues to introduce other significant 
 
            irritants into his system, namely cigarette smoking.  Dr. 
 
            Merchant is the only doctor who suggested that claimant had 
 
            a permanent impairment resulting from any of his breathing 
 
            disorders.  However, Dr. Merchant did not indicate that the 
 
            impairment was attributable to the aggravation, he indicated 
 
            the impairment resulted from the disease of hyperreactive 
 
            airways.  Dr. Hicklin and Dr. Zorn both specifically found 
 
            that claimant did not have any permanent impairment due to 
 
            his exposure to dust and fumes.  Both concluded that the 
 
            aggravation was temporary and that once the irritants were 
 
            removed from claimant's environment, the symptoms would 
 
            improve.  The symptoms would not be eliminated because of 
 
            other irritants that claimant is exposed to naturally and by 
 
            his own habits.  Like the claimant in Gettler, File No. File 
 
            No. 737927, Slip op. at 5, claimant failed to show that he 
 
            lost any time from work.  As a consequence, claimant has 
 
            failed to adduce sufficient proof to sustain his burden of 
 
            proof and he will take nothing from this proceeding.
 
            
 
                                      Order
 
            
 
                 THEREFORE, it is ordered:
 
            
 
                 1.  Claimant shall take nothing from this proceeding.
 
            
 
                 2.  Claimant's motion for sanctions and to strike the 
 
            City's brief is denied.
 
            
 
                 3.  The costs of this action shall be assessed to 
 
            claimant pursuant to rule 343 IAC 4.33.
 

 
            
 
            Page  13
 
            
 
            
 
            
 
            
 
            
 
                 Signed a607,613-14 (Iowa 1945).  A 
 
            possibility is insufficient; a probability is necessary.  
 

 
            
 
            Page  12
 
            
 
            
 
            
 
            
 
            Burt, 73 N.W.2d at 738.  The question of causal connection 
 
            is essentially within the domain of expert testimony.  
 
            Bradshaw v. Iowa Methodist Hospital, 101 N.W.2d 167,171 
 
            (Iowa 1960). 
 
            
 
                 Expert medical evidence must be considered with all 
 
            other evidence introduced bearing on the causal connection.  
 
            Burt, 73 N.W.2d at 738.  The opinion of the experts need 
 
            not be couched in definite, positive or unequivocal 
 
            language.  Sondag v. Ferris Hardware, 220 N.W.2d 903, 907 
 
 
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                      5-2203  5-1402.40
 
                      Filed June 25, 1991
 
                      ELIZABETH A. NELSON
 
            before the iowa industrial commissioner
 
            ____________________________________________________________
 
                      :
 
            WENDELL C. WOLFE,   :
 
                      :
 
                 Claimant, :       File No. 884803
 
                      :
 
            vs.       :    A R B I T R A T I O N
 
                      :
 
            CITY OF DES MOINES, :       D E C I S I O N
 
                      :
 
                 Employer, :
 
                 Self-Insured,  :
 
                 Defendant.     :
 
            ___________________________________________________________
 
            
 
            5-2203
 
            Following Gettler v. Ticknor, File No. 737927, (Iowa Ind. 
 
            Comm'r App. April 15, 1988), aff'd, No. 9-371/89-33 (Iowa 
 
            Ct. App. October 24, 1989), the claimant's breathing 
 
            diseases were not caused by his exposure to road dust and 
 
            degreaser fumes.  Two board certified pulmonologist 
 
            concluded that the claimant's asthma and other breathing 
 
            diseases were of an unknown etiology. Claimant's conditions 
 
            are continuing because of the claimant's exposure to 
 
            irritants other than road dust and degreaser fumes which 
 
            include cold, furniture polish, humid weather, perfume, hair 
 
            spray and claimant's smoking.  No award given.
 
            
 
            5-1402.40
 
            Claimant failed to prove that his work environment 
 
            aggravated his breathing diseases to a point that he was 
 
            permanently or temporarily disabled.  All three of the 
 
            examining physicians indicated that claimant's exposure to 
 
            dust and degreaser fumes aggravated his breathing diseases 
 
            but the exposure did not cause any permanent disability 
 
            since the symptoms were reduced once claimant removed 
 
            himself from the irritants.  Claimant voluntarily removed 
 
            himself from the irritants because of a low back problem 
 
            rather than because of the exposure to dust and degreaser 
 
            fumes.  No award given.
 
            
 
 
            
 
            Page   1
 
            
 
            
 
            
 
            
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            NICHOLAS ARNDT,               :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :       File No. 884890
 
            BRANDT DOCK & HOIST SERV,     :
 
                                          :     A R B I T R A T I O N
 
                 Employer,                :
 
                                          :       D E C I S I O N
 
            and                           :
 
                                          :
 
            UNITED FIRE & CASUALTY,       :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
                                statement of the case
 
            
 
                 This case came on for hearing on September 6, 1991, at 
 
            8:00 a.m., in Mason City, Iowa.  This is a proceeding in 
 
            arbitration wherein claimant seeks compensation for 
 
            permanent partial disability benefits as a result of an 
 
            alleged injury that occurred on May 10, 1988.  The record in 
 
            the proceedings consist of the testimony of the claimant and 
 
            Susan Brandt; joint exhibits 1 through 6; and defendants' 
 
            exhibits A and B.
 
            
 
                                      ISSUES
 
            
 
                 The issues for resolution are:
 
            
 
                 1.  Whether there is a causal connection between 
 
            claimant's alleged permanent disability and his May 10, 1988 
 
            alleged injury;
 
            
 
                 2.  The nature and extent of claimant's disability and 
 
            entitlement to disability benefits; and
 
            
 
                 3.  Whether claimant should be reimbursed for medical 
 
            expenses under Iowa Code section 85.39, in particular, 
 
            Arnold Delbridge, M.D., in the amount of $270.
 
            
 
                                 FINDINGS OF FACT
 
            
 
                 The undersigned deputy, having heard the testimony and 
 
            considered all evidence, finds that:
 
            
 
                 Claimant is a 22-year-old 1987 high school graduate.  
 
            He worked eight months at Winnebago Industries before 
 
            beginning work for defendant employer.  Claimant was injured 
 
            at work on May 10, 1988, when a person was using a 
 
            sledgehammer to hit a post that claimant was holding.  
 
            Claimant's right hand was on the top of the post and was hit 
 
            by the sledgehammer.  Claimant said John Brandt took him to 
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            the hospital.
 
            
 
                 Claimant explained the surgery he underwent at the 
 
            hospital which involved installing five pins and wires in 
 
            his fingers and hand.  Claimant did not choose the doctor as 
 
            the doctor who performed the surgery was at the hospital 
 
            where defendant employer took claimant.
 
            
 
                 Claimant had a second surgery on his right hand on June 
 
            9, 1989 (Joint Exhibit 4, page 2).  After claimant's release 
 
            in August 1989, he went to work for Glacier Bay Water 
 
            Company.  Claimant said he was unable to hold the water 
 
            bottles with his right hand and use his left hand.  He was 
 
            unable to properly hold the bottles and was let go by this 
 
            employer.
 
            
 
                 Claimant then went to work for a farmer but wasn't sure 
 
            if he was getting workers' compensation payments at that 
 
            time.  He worked four hours per day, five days a week for 
 
            one month.  He explained the nature of his work.  Claimant 
 
            said he applied for several jobs and never heard from 
 
            anyone.  Claimant showed the undersigned the right finger 
 
            and hand and the extent of his ability to bend his fingers.  
 
            He said his fingers hurt quite a bit during the winter 
 
            months and they go asleep a lot.  Claimant indicated his arm 
 
            is affected by the injury in that he can't normally lift or 
 
            grab.  He said his right arm is not as strong as it used to 
 
            be and that his hand falls asleep and this goes up to and 
 
            near his elbow.
 
            
 
                 Claimant began working in July 1991 for a contractor 
 
            but has now been laid off for three weeks due to lack of 
 
            work.  He was making $6.00 per hour and worked 30 to 70 
 
            hours per week.  He indicated he now must hold a nail with 
 
            his left hand as he uses a built up hammer with his right 
 
            hand.  The undersigned might note that it is normal for a 
 
            right hander to hold a nail with his left hand and fingers.  
 
            Claimant acknowledged he knew his job with defendant 
 
            employer was seasonal.
 
            
 
                 He realized Darrell E. Fischer, M.D., hoped on August 
 
            22, 1988, that claimant would return to work.  Dr. Fischer's 
 
            note on November 16, 1988, indicates that after claimant met 
 
            with vocational rehabilitation, claimant was told he could 
 
            do any job available using the thumb and index finger with 
 
            no lifting over 15 pounds (Joint Exhibit 1, page 5).  
 
            Claimant was encouraged to get a job in April 1989 in which 
 
            claimant could use his thumb and index finger for full pinch 
 
            and maybe lifting 10 to 15 pounds.  The doctor indicated at 
 
            that time claimant was poorly motivated (Jt. Ex. 1, p. 10).  
 
            Claimant acknowledged that when Dr. Fischer released him in 
 
            December 1988, the doctor encouraged him to get a job and 
 
            also in April 1989, the doctor encouraged him to get a job.  
 
            After claimant's second surgery in June 1989, Dr. Fischer 
 
            encouraged claimant to go back to work in August 1989.
 
            
 
                 Claimant acknowledged that Dr. Fischer's letter of 
 
            April 2, 1990 indicated claimant could return to general 
 
            labor (Jt. Ex. 1, p. 2).  Claimant said that was the first 
 
            letter he had received from Dr. Fischer indicating he could 
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            return to work without restrictions and this letter was in 
 
            response to claimant's mother's request.
 
            
 
                 Susan Brandt, owner of defendant employer, explained 
 
            the nature of the business.  Claimant was first employed by 
 
            defendant employer in April 1988 and worked one week and two 
 
            days before his May 10, 1988 injury.  Ms. Brandt knew of 
 
            claimant's injury on May 10, 1988 and took him to a doctor 
 
            who indicated he could do nothing for claimant.  She then 
 
            took claimant to the hospital emergency room.  The 
 
            undersigned notes that in claimant's testimony he indicated 
 
            John Brandt, the son of Susan Brandt, took him to the 
 
            hospital.  In either case, it is obvious that defendant 
 
            employer took claimant for medical care and that claimant 
 
            did not choose his medical care.
 
            
 
                 After waiting for a considerable time, Ms. Brandt 
 
            indicated that Dr. Fischer came.  Ms. Brandt said that she 
 
            did not direct claimant to go to Dr. Fischer.
 
            
 
                 Dr. Fischer's notes of October 10, 1988, reflect that 
 
            claimant had approximately a 30 percent impairment at that 
 
            time, but the doctor would not rate any permanency until one 
 
            year after claimant's injury; in other words, not until May 
 
            10, 1989.  The doctor mentioned claimant could return to 
 
            light work if it was available November 1, 1988, lifting no 
 
            more than 10 to 15 pounds (Jt. Ex. 1, p. 5).
 
            
 
                 Claimant had his second surgery on his right hand on 
 
            June 9, 1989 (Jt. Ex. 4, p. 2), and on August 9, 1989, the 
 
            doctor recommended claimant return to work lifting 10 to 15 
 
            pounds.  On November 13, 1989, Dr. Fischer's notes indicate 
 
            claimant "worked throughout the summer and the last 3 months 
 
            at Rockford Cemetery doing general lawn care and labor."  
 
            (Jt. Ex. 1, p.3)  These notes seem contradictory as the 
 
            summer of 1989 would seem to include claimant's period of 
 
            his surgery and healing period which encompasses at least 
 
            two months of the summer.
 
            
 
                 Dr. Fischer made a permanent impairment rating on 
 
            December 4, 1989, and corrected an error in that letter on 
 
            December 29, 1989, in which he opined claimant had a 25 
 
            percent permanent partial impairment of his right hand (Jt. 
 
            Ex. 1, p. 6).
 
            
 
                 It is obvious to the undersigned that after claimant's 
 
            second surgery in June 1989, he was unable to work for 
 
            several weeks while his hand was healing (Jt. Ex. 3, pp. 
 
            1-4).
 
            
 
                 The applicable joint exhibits all refer to claimant's 
 
            right hand except joint exhibit 6 in which Arnold E. 
 
            Delbridge, M.D., performed an evaluation at the request of 
 
            claimant's attorney and opined on June 24, 1991, that 
 
            claimant had a 41 percent impairment to his right upper 
 
            extremity.  Claimant contends that his healing period began 
 
            May 11, 1988 up to December 4, 1989, a total of 
 
            approximately 82 weeks.  Defendants contend that claimant's 
 
            healing period began May 11, 1988 through November 1, 1988.  
 
            It appears they arrived at the November 1, 1988 date from an 
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
            apparent October 7, 1988 notation by a licensed physical 
 
            therapist, Jay Mueller (Jt. Ex. 3, p. 9) and refers to a 
 
            November 1 release.  This note is not clear to the extent 
 
            that it is written as though Mueller is the one that wrote 
 
            it and yet it also looks as though these are the words of 
 
            the claimant.  Joint exhibit 1, page 5, indicates that on 
 
            October 5, 1988, Dr. Fischer indicated claimant could return 
 
            to light work if it was available November 1, lifting no 
 
            more than 10 to 15 pounds with the right hand and suggests 
 
            an occupation which uses the thumb and index finger only.
 
            
 
                 It is obvious because of the nature of defendant 
 
            employer's business that beginning November 1, 1988, the 
 
            hoist and dock business would be winding down if it had not 
 
            already wound down due to the fact that the weather, water 
 
            temperatures, etc., would make this seasonal job very 
 
            difficult.  It is obvious from the record that claimant did 
 
            not return to this job nor that defendant employer requested 
 
            that he come back.  With the limitations the doctor placed 
 
            on him and considering the nature of the dock and hoist 
 
            work, it would seem very improbable that a return to work 
 
            was logical under the circumstances.
 
            
 
                 The record indicates that claimant did not work, or at 
 
            least performed any meaningful work, the rest of 1988 and 
 
            the early part of 1989 up to the time he had to have a 
 
            second surgery on his hand on June 9, 1989.  The record is 
 
            clear to the undersigned that claimant was legitimately off 
 
            healing from this surgery up until and including August 9, 
 
            1989, on which date the doctor recommended that claimant 
 
            return to work lifting 10 to 15 pounds.  The undersigned 
 
            believes that considering all the evidence, the nature of 
 
            the injury, the condition of claimant's hands, and the 
 
            nature of the business, that claimant could not return to 
 
            work on November 1, 1988, under the reasonable and broad 
 
            interpretation of 85.34(1) of the Iowa Code nor was it 
 
            indicated medically that significant improvement from the 
 
            injury was not anticipated or that the employee was 
 
            medically capable of returning to employment substantially 
 
            similar to the employment in which the employee was engaged 
 
            at the time of the injury.  The undersigned finds that 
 
            claimant incurred a healing period beginning May 11, 1988 
 
            through August 9, 1989, which encompassed 65.143 weeks of 
 
            healing period.
 
            
 
                 The parties' second dispute is the extent of permanent 
 
            disability.  Defendants contend that the injury was to 
 
            claimant's right hand and, therefore, the scheduled injury 
 
            should be based on 190 weeks as a maximum.  Claimant 
 
            contends that his injury was to the arm.  He obviously is 
 
            basing this on the June 24, 1991 medical report of Dr. 
 
            Delbridge (Jt. Ex. 6), in which the doctor arrived at a 41 
 
            percent impairment of the right upper extremity secondary to 
 
            claimant's right hand injury.  This is the only doctor or 
 
            report that refers to the right upper extremity.  It is true 
 
            that a right hand is a part of the right upper extremity, 
 
            but it is also obvious that all other doctors, including Dr. 
 
            Fischer who treated claimant during the period of time of 
 
            his injury and recovery and who performed two surgeries, 
 
            refers to the right hand only and opined a 25 percent 
 

 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
            permanent partial impairment to claimant's right hand (Jt. 
 
            Ex. 1, p. 6).  Although causal connection as to claimant's 
 
            disability was an issue, it is obvious for the record that 
 
            there was a causal connection to claimant's hand injury and 
 
            the work injury of May 10, 1988.  The undersigned believes 
 
            the causal connection issue had to do particularly with the 
 
            causal connection as to claimant's right arm and not really 
 
            an issue as to involving claimant's right hand.  The 
 
            undersigned finds that the medical evidence clearly shows 
 
            that claimant incurred a work-related injury on May 10, 
 
            1988, to his right hand which resulted in a 25 percent 
 
            impairment to his right hand.  The undersigned believes that 
 
            Dr. Fischer's impairment is more reliable based mainly on 
 
            the fact that Dr. Fischer is the one who treated claimant 
 
            during this period of time and also did the two surgeries 
 
            and had a better knowledge of the particulars of claimant's 
 
            injury having worked with him over all these months.  Dr. 
 
            Delbridge obviously saw claimant on one occasion and was 
 
            requested to do an evaluation.
 
            
 
                 The final issue is one of 85.39 and is whether Dr. 
 
            Delbridge's bill of $270 should be paid.  Defendants contend 
 
            that Dr. Fischer was not the authorized doctor and that Dr. 
 
            Fischer was claimant's doctor.  Ms. Brandt indicated she did 
 
            not direct claimant to this doctor.  This contention is 
 
            unbelievable in that the evidence is undisputed that either 
 
            John Brandt or his mother or both took claimant to the 
 
            hospital and/or doctor.  Dr. Fischer happened to be the one 
 
            that gave claimant emergency care.  It is obvious claimant 
 
            was in distress and needed care.  It is obvious defendant 
 
            employer realized the immediate need of claimant receiving 
 
            medical attention.  Although it is true that defendant 
 
            employer did not specifically pick or name Dr. Fischer, they 
 
            took claimant to the hospital.  The undersigned need not 
 
            dwell on this issue any longer as defendants' contentions 
 
            are ridiculous under the circumstances of this case.  
 
            Claimant had a right to get another evaluation under 85.39 
 
            from Dr. Delbridge and had a right to consider Dr. Fischer 
 
            as defendant employer's doctor.  Defendants shall pay Dr. 
 
            Delbridge's bill which appears to be in the amount of $270.
 
            
 
                                conclusions of law
 
            
 
                 The claimant has the burden of proving by a 
 
            preponderance of the evidence that the injury of May 10, 
 
            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 
 

 
            
 
            Page   6
 
            
 
            
 
            
 
            
 
            unequivocal language.  Sondag v. Ferris Hardware, 220 N.W.2d 
 
            903 (Iowa 1974).  However, the expert opinion may be 
 
            accepted or rejected, in whole or in part, by the trier of 
 
            fact.  Id. at 907.  Further, the weight to be given to such 
 
            an opinion is for the finder of fact, and that may be 
 
            affected by the completeness of the premise given the expert 
 
            and other surrounding circumstances.  Bodish, 257 Iowa 516, 
 
            133 N.W.2d 867.  See also Musselman v. Central Telephone 
 
            Co., 261 Iowa 352, 154 N.W.2d 128 (1967).
 
            
 
                 Iowa Code section 85.34(1) provides that if an employee 
 
            has suffered a personal injury causing permanent partial 
 
            disability, the employer shall pay compensation for a 
 
            healing period from the day of the injury until (1) the 
 
            employee returns to work; or (2) it is medically indicated 
 
            that significant improvement from the injury is not 
 
            anticipated; or (3) until the employee is medically capable 
 
            of returning to substantially similar employment.
 
            
 
                 Iowa Code section 85.39 provides, in part:
 
            
 
                 
 
                    If an evaluation of permanent disability has 
 
                 been made by a physician retained by the employer 
 
                 and the employee believes this evaluation to be 
 
                 too low, the employee shall, upon application to 
 
                 the commissioner and upon delivery of a copy of 
 
                 the application to the employer and its insurance 
 
                 carrier, be reimbursed by the employer the 
 
                 reasonable fee for a subsequent examination by a 
 
                 physician of the employee's own choice, and 
 
                 reasonably necessary transportation expenses 
 
                 incurred for the examination.  The physician 
 
                 chosen by the employee has the right to confer 
 
                 with and obtain from the employer-retained 
 
                 physician sufficient history of the injury to make 
 
                 a proper examination.
 
            
 
                 It is further concluded that claimant incurred a work-
 
            related injury on May 10, 1988, which caused claimant to 
 
            incur two surgeries, the last being June 9, 1989.
 
            
 
                 Claimant's work-related injury on May 10, 1989, caused 
 
            claimant to incur a 25 percent permanent partial impairment 
 
            to his right hand entitling him to 47.5 weeks of permanent 
 
            disability benefits at the stipulated rate of $105.65.
 
            
 
                 Claimant did not incur a permanent partial disability 
 
            to his right arm as a result of his May 10, 1988 work 
 
            injury.
 
            
 
                 Claimant incurred a healing period beginning May 11, 
 
            1988 through August 9, 1989, which encompasses 65.143 weeks 
 
            of benefits.
 
            
 
                 Claimant is entitled to be reimbursed for the cost of 
 
            Dr. Delbridge's bill in the amount of $270 under the 
 
            provisions of 85.39.  Dr. Fischer was defendants' authorized 
 
            physician.
 
            
 

 
            
 
            Page   7
 
            
 
            
 
            
 
            
 
                                      order
 
            
 
                 THEREFORE, it is ordered:
 
            
 
                 That defendants shall pay unto claimant healing period 
 
            benefits at the stipulated rate of one hundred five and 
 
            65/100 dollars ($105.65) for the period beginning May 11, 
 
            1988 through August 9, 1989, which encompasses sixty-five 
 
            point one four three (65.143) weeks.
 
            
 
                 That defendants shall pay unto claimant forty-seven 
 
            point five (47.5) weeks of permanent partial disability 
 
            benefits based on a twenty-five percent (25%) permanent 
 
            partial impairment to claimant's right hand.  Said payments 
 
            are to be paid at the stipulated rate of one hundred five 
 
            and 65/100 dollars ($105.65).
 
            
 
                 That defendants shall pay accrued weekly benefits in a 
 
            lump sum and shall receive credit against the award for 
 
            weekly benefits previously paid.  Defendants have previously 
 
            paid seventy-seven (77) weeks at an erroneous rate of one 
 
            hundred twenty-seven and 33/100 dollars ($127.33) per week.
 
            
 
                 That defendants shall pay or reimburse claimant for the 
 
            two hundred seventy dollar ($270) bill of Dr. Delbridge.
 
            
 
                 That defendants shall pay interest on benefits awarded 
 
            herein as set forth in Iowa Code section 85.30.
 
            
 
                 That defendants shall pay the costs of this action, 
 
            pursuant to rule 343 IAC 4.33.
 
            
 
                 That defendants shall file an activity report upon 
 
            payment of this award as required by this agency, pursuant 
 
            to rule 343 IAC 3.1.
 
            
 
                 Signed and filed this ____ day of October, 1991.
 
            
 
            
 
            
 
                                          ______________________________
 
                                          BERNARD J. O'MALLEY
 
                                          DEPUTY INDUSTRIAL COMMISSIONER
 

 
            
 
            Page   8
 
            
 
            
 
            
 
            
 
            
 
            Copies to:
 
            
 
            Mr Russell Schroeder Jr
 
            Attorney at Law
 
            1100 Gilbert St
 
            Charles City IA 50616
 
            
 
            Mr Marvin E Duckworth
 
            Ms Valerie A Fandel
 
            Attorneys at Law
 
            Terrace Ctr  Ste 111
 
            2700 Grand Ave
 
            Des Moines IA 50312
 
            
 
            
 
                 
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                      5-1108; 5-1802
 
                      5-1803; 5-2502
 
                      Filed October 9, 1991
 
                      Bernard J. O'Malley
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            NICHOLAS ARNDT,               :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :       File No. 884890
 
            BRANDT DOCK & HOIST SERV,     :
 
                                          :     A R B I T R A T I O N
 
                 Employer,                :
 
                                          :       D E C I S I O N
 
            and                           :
 
                                          :
 
            UNITED FIRE & CASUALTY,       :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
            5-1108; 5-1802; 5-1803
 
            Found claimant had a 25% permanent partial impairment to his 
 
            right hand and this was caused by claimant's May 10, 1988 
 
            work injury.  Permanency was to hand and not arm.  
 
            Additional healing period also awarded.
 
            
 
            5-2502
 
            Defendants ordered to pay a doctor's bill under 85.39