Page   1
 
            
 
            
 
            
 
            
 
                                          5-1802;5-1803;5-2906;5-2907
 
                                          5-3202; 5-4000.2
 
                                          Filed February 19, 1992
 
                                          ELIZABETH A. NELSON
 
            before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            REBECCA L. GANDEE,            :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :      File No. 891384
 
            GARY THARP d/b/a THE          :
 
            BATTERY EXCHANGE,             :    A R B I T R A T I O N
 
                                          :
 
                 Employer,                :       D E C I S I O N
 
                 Self-Insured,            :
 
            and                           :
 
                                          :
 
            THE SECOND INJURY FUND        :
 
            OF IOWA,                      :
 
                                          :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
            5-1802, 5-1803
 
            Claimant found to have a 2 percent functional impairment of 
 
            her arm caused by her work.  Claimant was awarded healing 
 
            period benefits for this injury.
 
            
 
            5-2906
 
            Second Injury Fund testimony by witness was excluded because 
 
            the Fund did not identify the witness with sufficient 
 
            specificity to alert the claimant as to who the Fund 
 
            intended to call as witnesses.  The Fund identified its 
 
            witness as "past co-employees of claimant from The Battery 
 
            Exchange and other employers".  This identification was not 
 
            sufficient to fulfill the requirements of the prehearing 
 
            order.
 
            
 
            5-2907
 
            Claimant was awarded the costs of this action which included 
 
            costs for the preparation of the motion for sanctions, 
 
            medical reports, filing fee, and service costs.  The costs 
 
            were assessed equally to the Fund and employer.
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            
 
            5-3202
 
            Fund liability was triggered as a result of the second 
 
            injury.  Claimant had a first injury to her knee which 
 
            resulted in a total functional impairment of 10 percent.  
 
            The only restriction resulting from the first injury 
 
            required claimant to avoid kneeling.  Claimant had no 
 
            restrictions from the second injury.  Claimant was awarded 
 
            benefts as follows:
 
            
 
                 10% x 500 weeks = 50 weeks
 
                          minus    20 weeks (1986 impairment to 
 
            right
 
                                        leg 10% x 200 weeks)
 
                          minus    25 weeks (2% x 250 weeks 1988
 
                                       impairment to right 
 
            arm)
 
                 TOTAL              5  weeks liability for the 
 
            Fund.
 
            
 
            5-4000.2
 
            Claimant was awarded penalty benefits.  The injury was found 
 
            to be causally connected to claimant's work in January of 
 
            1990.  The employer made no other effort to determine 
 
            whether the finding was valid.  Since there was a complete 
 
            failure to investigate on the part of the employer, the 
 
            delay in the commencement of benefits was unreasonable and 
 
            penalty benefits of 50 percent were awarded.
 
            
 
 
            
 
            Page   1
 
            
 
            
 
            
 
            
 
            
 
            
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            IMOGENE WIELAND,              :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :         File No. 891393
 
                                          :
 
            JIMMY DEAN MEAT COMPANY,      :      A R B I T R A T I O N
 
                                          :
 
                 Employer,                :         D E C I S I O N
 
                                          :
 
            and                           :
 
                                          :
 
            TRAVELERS INSURANCE COMPANY,  :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ____________________________________________________________
 
            
 
                              statement of the case
 
            
 
                 This is a proceeding in arbitration brought by Imogene 
 
            Wieland against her former employer, Jimmy Dean Meat 
 
            Company, and its insurance carrier, The Travelers Insurance 
 
            Company, based upon an alleged injury or occupational 
 
            disease with a date of occurrence of July 19, 1988.  
 
            Claimant seeks compensation for healing period, permanent 
 
            partial disability, payment of medical expenses and a 
 
            penalty under the fourth unnumbered paragraph of Iowa Code 
 
            section 86.13.  Primary issues in the case are whether the 
 
            condition which afflicts the claimant is an injury rather 
 
            than an occupational disease and whether the disability is 
 
            to be compensated as scheduled or industrial.
 
            
 
                 The case was heard at Des Moines, Iowa on August 28, 
 
            1990.  The record in the proceeding consists of joint 
 
            exhibits A through H, claimant's exhibits 1 through 12 and 
 
            defendants' exhibit I.  The record also contains testimony 
 
            from Imogene Wieland, Dale Wieland, Jeff L. Johnson, Dan J. 
 
            Nanneman and Jerald Ross Lewis.
 
            
 
                                 findings of fact
 
            
 
                 Having considered all the evidence received, together 
 
            with the appearance and demeanor of the witnesses, the 
 
            following findings of fact are made.
 
            
 
                 Imogene Wieland is a 44-year-old married lady who lives 
 
            at Osceola, Iowa with her husband and three children.  She 
 
            is a high school graduate who briefly attended Ozark Bible 
 
            College, but has no other formal education except a short 
 
            course for reading blueprints and in first aid training.
 
            
 
                 Claimant's work history includes assembly of television 
 
            yokes, several different positions in a radiator 
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            
 
            
 
            manufacturing plant, performing engraving for a print shop, 
 
            grooming and training horses, self-employment buying, 
 
            selling and restoring antiques, work as a waitress, work as 
 
            a custodian of a laundromat and work as a housewife.
 
            
 
                 Claimant commenced employment with Jimmy Dean Meat 
 
            Company in January 1988.  Her first job was assembling 
 
            biscuits.  She moved to a job which involved slicing and 
 
            feeding biscuits.  The location where she worked was cold 
 
            and damp.  She wore gloves and heavy clothing.  Claimant 
 
            denied having any problem with her hands, arms or shoulders 
 
            before she commenced employment with Jimmy Dean Meat 
 
            Company.
 
            
 
                 At hearing, claimant testified adamantly that she began 
 
            having trouble with her arms in July 1988 after the two-week 
 
            plant shutdown.  A report from a physical therapist dated 
 
            July 26, 1988 indicates that claimant was confusing with 
 
            regard to her description of when her symptoms began.  The 
 
            report states:
 
            
 
                 Initially, she states that the pain occurred 
 
                 approximately three days ago however then she 
 
                 admitted that the pain was present prior to the 
 
                 recent two week layoff.  She admits that the pain 
 
                 has worsened over the past few days.  However then 
 
                 with further questioning, the patient states that 
 
                 the pain developed a short time after the onset of 
 
                 beginning to work.
 
            
 
            (Exhibit G, page 1)
 
            
 
                 Another medical record dated July 19, 1988 indicates 
 
            that the pain had been present prior to the two-week plant 
 
            shutdown (exhibit F, page 1).
 
            
 
                 When claimant initially expressed her complaints to the 
 
            plant medical personnel, she was referred to the plant 
 
            physicians.  The initial assessment of her case was that she 
 
            had bilateral tendonitis.  She was given prescription 
 
            medication and wrist splints.  During the time span running 
 
            from July 19, 1988 through October 12, 1988, she was off 
 
            work a total of two and two-sevenths weeks.  She has not 
 
            resumed work since October 12, 1988 according to the 
 
            stipulation made by the parties in paragraph 4 of the 
 
            prehearing report.
 
            
 
                 The treatment records show some improvement at times 
 
            and then worsening of her condition.  Claimant became 
 
            dissatisfied with the treatment provided by the employer's 
 
            physicians and sought treatment on her own at the University 
 
            of Iowa Hospitals and Clinics in Iowa City.  She did so 
 
            despite having been advised by the employer's 
 
            representatives that treatment at the University of Iowa was 
 
            not authorized.  Her visit there was not an emergency 
 
            situation.  While at the University of Iowa Hospitals, EMG 
 
            tests were conducted which were interpreted as being normal.  
 
            It is noted that these tests were conducted on October 21, 
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            
 
            
 
            1988, a date subsequent to the time that claimant last 
 
            worked at the Jimmy Dean plant (exhibit E, page 5).  It is 
 
            also noted that the November 8, 1988 report issued by Louise 
 
            H. Sparks, M.D., contains a history of claimant having 
 
            difficulties beginning in April 1988.  The assessment made 
 
            by Dr. Sparks was that claimant had mild extensor 
 
            tenosynovitis and right shoulder, forearm and leg pain which 
 
            was related to her employment as an assembly line worker at 
 
            Jimmy Dean.  Dr. Sparks did not feel that claimant's 
 
            symptoms were consistent with fibromyalgia, but that they 
 
            were consistent with overuse phenomena seen frequently in 
 
            assembly line workers.  Dr. Sparks found no evidence of 
 
            permanent neurologic damage, although she commented that the 
 
            symptoms would likely recur if the patient resumed her 
 
            assembly line employment (exhibit C).
 
            
 
                 In early 1989, claimant was referred to W. C. Koenig, 
 
            Jr., M.D., for purposes of evaluation.  His initial 
 
            impression was that she was afflicted with myofascial pain 
 
            syndrome, status post possible tendinitis and possible 
 
            carpal tunnel syndrome (exhibit D, page 3).  On February 28, 
 
            1989, he was able to perform limited EMG testing on 
 
            claimant's right arm which indicated mild carpal tunnel 
 
            syndrome (exhibit D, page 5).  Under Dr. Koenig's direction, 
 
            claimant underwent out-patient physical therapy at the 
 
            Clarke County Hospital which was completed in early April 
 
            1989.  According to his notes, claimant reported that the 
 
            therapy had reduced her pain level considerably, though it 
 
            had not completely eliminated the pain (exhibit D, page 6).  
 
            On April 20, 1989, Dr. Koenig reported to the insurance 
 
            carrier that claimant's major problem was myofascial pain 
 
            syndrome, also referred to as fibrositis, a self-limiting 
 
            disease which does not carry any permanent partial 
 
            disability.  He also reported that she was afflicted with 
 
            carpal tunnel syndrome on the right arm for which a five 
 
            percent permanent partial disability rating would be 
 
            appropriate.  He could not confirm the existence of carpal 
 
            tunnel syndrome on the left arm (exhibit D, page 6).
 
            
 
                 Dr. Koenig conferred with claimant's counsel.  As a 
 
            result of that conference, counsel drafted a letter which 
 
            was ratified by Dr. Koenig (exhibit D, pages 8-11).  In the 
 
            letter, Dr. Koenig's opinions are expressed.  He diagnoses 
 
            claimant as having myofascial pain syndrome, also known as 
 
            fibrositis; that she is status post-tenosynovitis with 
 
            carpal tunnel syndrome on her right arm; and that she 
 
            probably has status post-tenosynovitis with carpal tunnel 
 
            syndrome on her left arm.  Dr. Koenig went on to relate that 
 
            the symptoms and pathology are not confined to either her 
 
            left or right arms as the affected areas include both 
 
            shoulders and areas of the anatomy proximal to the shoulders 
 
            including the paracervical and intrascapular region.  He 
 
            stated that the disorders and consequent disability are 
 
            permanent and are causally related to claimant's employment 
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
            
 
            
 
            duties with Jimmy Dean Meat Company.  The letter states that 
 
            the duties of the employment involve continuous and 
 
            repetitive use of the hands, arms and shoulders supplying 
 
            biscuits to a line for slicing.  It further states that the 
 
            disorders were not caused by a single traumatic event, nor 
 
            were they caused by conditions to which the claimant was 
 
            exposed in her everyday life.  It states that the disorders 
 
            are the end result of claimant's employment duties with 
 
            Jimmy Dean Meat Company.
 
            
 
                 The letter goes on to state that the fibrositis 
 
            condition is one which when once controlled is unlikely to 
 
            recur unless the individual engages in activities which 
 
            aggravate it.
 
            
 
                 The letters goes on to state that the carpal tunnel 
 
            syndrome is the end result of tenosynovitis which she 
 
            probably has on the left as well as the right, though the 
 
            left side has not been subjected to electromyographic 
 
            studies.  The letter confirms the prior five percent 
 
            impairment rating of the right hand and further states that 
 
            the condition is not likely to improve without surgical 
 
            intervention.
 
            
 
                 The letter further states that the fibrositis condition 
 
            is likely to recur if claimant returns to employment which 
 
            requires the continuous and repetitive use of her hands, 
 
            arms and shoulders and that, if such occurs, there will be 
 
            resulting pain and disability.  The letter further indicates 
 
            that it is recommended that claimant not return to 
 
            employment with Jimmy Dean Meat Company or engage in other 
 
            employment which requires continuous and repetitive use of 
 
            the hands, arms and shoulders.
 
            
 
                 In the report, it is indicated that claimant reached 
 
            maximum medical benefit at the time she was last seen by Dr. 
 
            Koenig on November 28, 1989.
 
            
 
                 The letter relates that claimant was prescribed 
 
            Tryptophan to treat her sleep disturbance which seemed to be 
 
            an outgrowth of the fibrositis and that the gastric distress 
 
            of which she complained was thought to be associated with 
 
            that medication.
 
            
 
                 Claimant was evaluated for thoracic outlet syndrome and 
 
            it was concluded that she demonstrated no significant 
 
            evidence of the condition (exhibit A).
 
            
 
                 Records from Iowa Methodist Medical Center indicate 
 
            that claimant remained under treatment through November 28, 
 
            1989.  The last such report indicates that the claimant is 
 
            having difficulty with her sleep patterns and appears 
 
            distressed (exhibit H).
 
            
 
                 Having observed the appearance and demeanor of the 
 
            claimant and considered it in relation to the other evidence 
 
            in the record, it is found that Imogene Wieland is not a 
 
            reliable historian.  Her symptoms, complaints and their 
 

 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
            
 
            
 
            onset have not been reported consistently.  The EMG tests 
 
            conducted at the University of Iowa Hospitals and Clinics in 
 
            October of 1988 are found to be more reliable than those 
 
            conducted by Dr. Koenig in 1989.  There is no explanation in 
 
            the record which would make Dr. Koenig's tests any more 
 
            reliable than those from the University of Iowa.  Further, 
 
            any worsening in claimant's condition which might have 
 
            occurred after she ceased work at the Jimmy Dean Meat 
 
            Company would be difficult to attribute to her employer.  It 
 
            is found that the claimant has a tendency to overreact and 
 
            exaggerate as is evidenced at several points in the record, 
 
            including her visits to the University of Iowa Hospitals in 
 
            December of 1986, her action of moving her children to 
 
            another city in 1989 and her action of leaving the physical 
 
            therapist's office in July 1988.  The evidence provided by 
 
            investigator Jerald Ross Lewis is found to be fully 
 
            credible, in particular the evidence that he did not conduct 
 
            any surveillance after dark and did not enter onto the 
 
            claimant's property.
 
            
 
                 The November 28, 1989 report from Dr. Koenig relates 
 
            that claimant appeared depressed.  There could well be some 
 
            psychological component to her condition, though such has 
 
            not been evaluated or diagnosed.
 
            
 
                 It is found that the assessment of the case made by Dr. 
 
            Koenig is correct.  It is not particularly inconsistent with 
 
            the assessments made by Drs. Blessman or Sparks.  In 
 
            particular, it is found that Imogene Wieland is afflicted 
 
            with mild carpal tunnel syndrome on each arm, that it is the 
 
            result of tenosynovitis which was induced by the repetitive 
 
            activities of her employment with Jimmy Dean Meat Company.  
 
            It is further specifically found that the condition is not 
 
            limited to the carpal tunnel syndrome, but it also includes 
 
            fibrositis affecting her neck and shoulders.  The fibrositis 
 
            is permanent in the sense that she must refrain from 
 
            engaging in those activities which will aggravate it.  The 
 
            existence of permanent activity restrictions are sufficient 
 
            to establish permanent disability despite the absence of any 
 
            permanent numerical impairment rating.
 
            
 
                 Vocational consultant Jeff L. Johnson established that 
 
            claimant has experienced a considerable reduction of her 
 
            access to the labor market due to the activity restrictions 
 
            which have been recommended by Dr. Koenig.  Claimant has 
 
            sought employment in the Osceola area, but has not obtained 
 
            any (exhibit 11).  Her efforts are not shown to be 
 
            particularly extensive.
 
            
 
                 Johnson also stated that overuse problems are more 
 
            prevalent in repetitive assembly line type processes.  Dan 
 
            Nanneman likewise confirmed that repetitive work of the type 
 
            claimant performed at Jimmy Dean Meat Company has a high 
 
            incidence of repetitive use disorders such as tendonitis and 
 
            carpal tunnel syndrome.  Nanneman confirmed that the 
 
            employer had 143 incidents of lost time from employment due 
 
            to repetitive trauma disorders during 1989 out of a work 
 
            force of approximately 550 employees.  The actual number of 
 

 
            
 
            Page   6
 
            
 
            
 
            
 
            
 
            
 
            
 
            employees affected would probably been less than 143 since 
 
            some may have had two separate incidents.
 
            
 
                 Nanneman confirmed the existence of programs enacted by 
 
            the employer to minimize the repetitive disorder problem in 
 
            its plants (exhibits 1, 2, 3, 4, 9, 10 and 12).  It is 
 
            specifically noted that in exhibits 9 and 10, repetitive 
 
            trauma and overuse-related conditions are referred to by the 
 
            employer as "illnesses" rather than injuries.  The same is 
 
            true with the U. S. Department of Labor report (exhibit 1).
 
            
 
                 At hearing, claimant described her current symptoms as 
 
            including fingers which sometimes go to sleep, pain on the 
 
            underside of her wrist and in the large part of her forearm, 
 
            pain around the back of her shoulder, shoulder blades and up 
 
            her neck, and swelling in her shoulder and forearm.  She 
 
            complained that she drops things and has a loss of grip 
 
            strength in both hands.  Claimant related that, when she 
 
            first moved to Osceola, she painted the house, refinished 
 
            woodwork, wallpapered rooms and performed other activities 
 
            without problem, but that she is now unable to perform any 
 
            of those types of activities.
 
            
 
                    
 
            
 
            
 
            Page   7
 
            
 
            
 
            
 
            
 
            
 
            
 
            conclusions of law
 
            
 
                 The issue regarding whether claimant's condition is a 
 
            result of injury, occupational disease, or a combination of 
 
            both is fairly debatable.  This case does not show any 
 
            particular single incident of precipitating trauma as was 
 
            present in the case McKeever Custom Cabinets v. Smith, 379 
 
            N.W.2d 368 (Iowa 1985).
 
            
 
                 The analysis of whether any particular condition is the 
 
            result of a cumulative trauma injury rather than an 
 
            occupational disease is not well-defined.  1B Larson 
 
            Workmen's Compensation Law, section 41.00, et seq.  The 
 
            definitions in the Iowa statutes are somewhat circuitous.  
 
            Code section 85.61(5)(b) states that injury ". . . shall not 
 
            include an occupational disease as defined in section 
 
            85A.8."  Section 85A.8 states:
 
            
 
                 Occupational diseases shall be only those diseases 
 
                 which arise 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.
 
            
 
                 The Iowa Supreme Court has held that, to prove 
 
            causation of an occupational disease, the claimant need only 
 
            meet the two basic requirements imposed by the statute, 
 
            namely that the disease is causally related to the exposure 
 
            to harmful conditions in the field of employment, and that 
 
            those harmful conditions are more prevalent in the 
 
            employment concerned than in everyday life or in other 
 
            occupations.  McSpadden v. Big Ben Coal Co., 288 N.W.2d 181, 
 
            190 (Iowa 1980); 1B Larson Workmen's Compensation Law, 
 
            sections 41.31-41.33.
 
            
 
                 Prior to 1973, the Iowa occupational disease law listed 
 
            specific diseases and processes.  In 1973, the legislature 
 
            broadened the definition of occupational disease by 
 
            eliminating the list and, at the same time, narrowed the 
 
            definition of injury to specifically exclude occupational 
 
            diseases.  McSpadden v. Big Ben Coal Co., 288 N.W.2d 181, 
 
            190 (Iowa 1980).  It is therefore apparent that any 
 
            condition which constituted an occupational disease under 
 

 
            
 
            Page   8
 
            
 
            
 
            
 
            
 
            
 
            
 
            the pre-1973 statute continues to be an occupational disease 
 
            today.  The tenth item listed in the pre-1973 statute 
 
            included bursitis, synovitis or tenosynovitis resulting from 
 
            any process or occupation involving continued or repeated 
 
            pressure on the parts affected.  Those definitions appear to 
 
            be conditions which are now commonly referred to as 
 
            repetitive trauma or overuse syndromes.  1B Larson Workmen's 
 
            Compensation Law, section 41.42.
 
            
 
                 The proper analysis to be used when determining whether 
 
            a condition should be treated as an occupational disease 
 
            rather than a cumulative trauma injury is to first analyze 
 
            whether the condition falls within the definition of 
 
            occupational disease as shown by the facts entered into 
 
            evidence and proven in the particular case.  If the 
 
            condition falls within the definition of an occupational 
 
            disease, then Code section 85.61(5)(b) excludes the 
 
            condition from being compensated as an injury under Chapter 
 
            85 of The Code.  If it is excluded, then no payments are 
 
            properly recoverable on account of injury and the 
 
            restriction on liability found in Code section 85A.14 does 
 
            not become applicable.  It is specifically noted that the 
 
            legal definition of "injury" specifically excludes 
 
            occupational disease while the definition of "occupational 
 
            disease" has no corresponding exclusion of injury.  The only 
 
            exclusion is found in section 85A.14 for those cases where 
 
            workers' compensation benefits are payable on account of 
 
            injury.  Since occupational diseases are specifically 
 
            excluded in the definition of "injury," no compensation is 
 
            payable under Chapter 85 for occupational disease.  
 
            Conditions which fall within the definition of occupational 
 
            disease are therefore to be compensated as an occupational 
 
            disease, even though the condition may also constitute a 
 
            cumulative trauma injury.  An insurance carrier's error in 
 
            characterizing the nature of payments does not deny an 
 
            employee the right to a legally proper recovery.  The 
 
            employer and its insurance carrier are, of course, entitled 
 
            to credit for the erroneously characterized payments.
 
            
 
                 When the definition of "occupational disease" as found 
 
            in the current statute is considered in light of the 
 
            judicial precedents and the previous version of the statute, 
 
            it is clear that the evidence from Dr. Koenig as found in 
 
            exhibit D at pages 8-11 combined with the employer's high 
 
            incidence of overuse syndrome or repetitive trauma disorders 
 
            is sufficient to establish that the disorders affecting 
 
            Imogene Wieland are an occupational disease.  The conditions 
 
            were caused by the process in which she worked.  They 
 
            resulted from repeated pressure on the parts of her body 
 
            which were affected, and those repeated activities were more 
 
            prevalent in her occupation than in everyday life or in 
 
            other occupations.  There is a direct causal connection 
 
            between the employment and the conditions and the conditions 
 
            occurred as a natural incident from the repetitive nature of 
 

 
            
 
            Page   9
 
            
 
            
 
            
 
            
 
            
 
            
 
            the employment.  The condition had its origin in a risk 
 
            connected with the repetitive activity required by the 
 
            employment and that risk is not one to which the claimant 
 
            was equally exposed outside of her occupation.
 
            
 
                 In this case, it has been found that the permanent 
 
            disability extends into claimant's neck and shoulders as 
 
            well as affecting her hands and arms.  She has clearly 
 
            reached the point of disablement since the physicians seem 
 
            to concur that she should not resume her employment at Jimmy 
 
            Dean Meat Company.  Her activity restrictions have clearly 
 
            been demonstrated to make her incapable of earning similar 
 
            wages in other employment.
 
            
 
                 Under the occupational disease law, no compensation for 
 
            permanent disability is payable until that threshold of 
 
            disablement is reached.  Iowa Code section 85A.4.  The 
 
            existence of permanent physical impairment, such as a five 
 
            percent impairment rating of a hand or arm from carpal 
 
            tunnel syndrome, does not permit the payment of compensation 
 
            unless the standard of disablement has been reached.  If 
 
            this claimant had been able to continue in her employment 
 
            without any loss of earnings, no compensation for permanent 
 
            partial disability would be payable in this case regardless 
 
            of any permanent impairment ratings and whether the 
 
            disability were considered to be restricted to her hands or 
 
            to extend into the body as a whole.  The Iowa Supreme Court 
 
            has stated, "Disability under Iowa Code chapter 85A is 
 
            determined by a consideration of age, education, 
 
            qualification, experience and inability, due to injury, to 
 
            engage in the employment for which the claimant is fitted."  
 
            Doerfer Div. of CCA v. Nicol, 359 N.W.2d 428, 438 (Iowa 
 
            1984).  In McSpadden v. Big Ben Coal Co., 288 N.W.2d 181, 
 
            190 (Iowa 1980), the Iowa Supreme Court had previously 
 
            stated that disability from occupational disease is to be 
 
            determined industrially and a rating of permanent impairment 
 
            is not required.  In doing so, the court stated:
 
            
 
                 These reasons may not always be directly related 
 
                 to functional impairment.  For example, a 
 
                 defendant-employer's refusal to give any sort of 
 
                 work to a claimant after he suffers his affliction 
 
                 may justify an award of disability.  . . .  
 
                 Similarly, a claimant's inability to find other 
 
                 suitable work after making bona fide efforts to 
 
                 find such work may indicate that relief should be 
 
                 granted.
 
            
 
                 While it has been argued and some precedent exists for 
 
            the proposition that section 85A.17 of The Code dictates 
 
            that the disability from an occupational disease is 
 
            restricted to a scheduled member, the disability is to be 
 
            compensated as a scheduled member disability under Code 
 
            section 85.34(2)(a) through (r).  Such a position is, 
 
            however, inconsistent with the concept of disablement being 
 
            required as a threshold for the payment of permanent partial 
 

 
            
 
            Page  10
 
            
 
            
 
            
 
            
 
            
 
            
 
            disability compensation.  It is also inconsistent with the 
 
            previously referred to statements from the Supreme Court in 
 
            Doerfer and McSpadden.  It is inconsistent with the holding 
 
            of the Supreme Court in the case Blacksmith v. All-American, 
 
            Inc., 290 N.W.2d 348 (Iowa 1980).  It is concluded that 
 
            disability from occupational disease is always compensated 
 
            industrially.
 
            
 
                 Industrial disability or loss of earning capacity is a 
 
            concept that is quite similar to impairment of earning 
 
            capacity, an element of damage in a tort case.  Impairment 
 
            of physical capacity creates an inference of lessened 
 
            earning capacity.  The basic element to be determined, 
 
            however, is the reduction in value of the general earning 
 
            capacity of the person, rather than the loss of wages or 
 
            earnings in a specific occupation.  Post-injury earnings 
 
            create a presumption of earning capacity.  The earnings are 
 
            not synonymous with earning capacity and the presumption may 
 
            be rebutted by evidence showing the earnings to be an 
 
            unreliable indicator.  Carradus v. Lange, 203 N.W.2d 565 
 
            (Iowa 1973); Holmquist v. Volkswagon of America, Inc., 261 
 
            N.W.2d 516 (Iowa App. 1977) A.L.R.3d 143; Michael v. 
 
            Harrison County, Thirty-fourth Biennial Report of the 
 
            Industrial Commissioner 218 (1979); 2 Larson Workmen's 
 
            Compensation Law, sections 57.21 and 57.31.
 
            
 
                 When considering all the pertinent factors, it is 
 
            determined that Imogene Wieland has a 25 percent permanent 
 
            partial disability when measured in industrial terms as a 
 
            result of the occupational disease which affects her hands, 
 
            arms, neck and shoulders.  Since this claimant's condition 
 
            extends into her neck and shoulders, the result in this case 
 
            is the same regardless of whether it is treated as 
 
            cumulative trauma injury or an occupational disease.
 
            
 
                 It has been previously found that Dr. Koenig is correct 
 
            in placing the date of maximum medical improvement at 
 
            November 28, 1989.  This entitles claimant to receive 61 and 
 
            2/7 weeks of healing period compensation in accordance with 
 
            the stipulation shown in paragraph 4 of the prehearing 
 
            report.  The compensation for permanent partial disability 
 
            is therefore payable commencing November 29, 1989.  It is 
 
            specifically noted that permanent partial disability 
 
            compensation is not awarded prior to October 12, 1988 as it 
 
            was not apparent at that time that the condition would be 
 
            permanently disabling from the standpoint of section 85A.4.  
 
            The indications were to the contrary.  Teel v. McCord, 394 
 
            N.W.2d 405 (Iowa 1986).
 
            
 
                 The evidence from Dr. Koenig is sufficient to show a 
 
            causal connection between the charges claimant incurred at 
 
            the Rural Diagnostic Radiology, P.C., Clarke County Public 
 
            Hospital, and Thomas J. Lower, D.O., and her occupational 
 
            disease.  These total $482.81 and are the responsibility of 
 
            the employer.  The charges at the University of Iowa 
 
            Hospitals and Clinics were clearly unauthorized and are not 
 

 
            
 
            Page  11
 
            
 
            
 
            
 
            
 
            
 
            
 
            the responsibility of the employer.
 
            
 
                 In view of the scheduled member system of disability 
 
            and the fact of the date that the five percent impairment 
 
            rating was provided by Dr. Koenig, the employer's treatment 
 
            of this case and failure to pay the full amount of 
 
            compensation awarded in this decision was not unreasonable.  
 
            Claimant is therefore not entitled to recover any penalty 
 
            benefits under the fourth unnumbered paragraph of Code 
 
            section 86.13.
 
            
 
                                      order
 
            
 
                 IT IS THEREFORE ORDERED that the defendants pay Imogene 
 
            Wieland sixty-one and two-sevenths (61 2/7) weeks of 
 
            compensation for healing period payable as follows:
 
            
 
               July 21 - 22                                     2 days
 
               July 26 - August 1                               7 days
 
               August 26                                        1 day
 
               September 13 - 14                                2 days
 
               October 3 - 5                                    3 days
 
               October 7                                        1 day
 
               October 12, 1988 - November 28, 1989   59 weeks, 0 days
 
               Total                                  61 weeks, 2 days
 
            
 
                 IT IS FURTHER ORDERED that defendants pay Imogene 
 
            Wieland one hundred twenty-five (125) weeks of compensation 
 
            for permanent partial disability payable commencing November 
 
            29, 1989.
 
            
 
                 IT IS FURTHER ORDERED that all compensation for healing 
 
            period and permanent partial disability be paid at the 
 
            stipulated rate of two hundred forty-five and 03/100 dollars 
 
            ($245.03) per week.
 
            
 
                 IT IS FURTHER ORDERED that defendants receive credit 
 
            for the forty and two-sevenths (40 2/7) weeks of 
 
            compensation previously paid.
 
            
 
                 IT IS FURTHER ORDERED that defendants pay the following 
 
            medical expenses:
 
            
 
                 Rural Diagnostic Radiology, P.C.      $133.15
 
                 Clarke County Public Hospital          273.66
 
                 Thomas J. Lower, D.O.                   76.00
 
                 Total                                 $482.81
 
            
 
                 IT IS FURTHER ORDERED that defendants pay the costs of 
 
            this action pursuant to rule 343 IAC 4.33.
 
            
 
                 IT IS FURTHER ORDERED that defendants file claim 
 
            activity reports as requested by this agency pursuant to 
 
            rule 343 IAC 3.1.
 
            
 
                 Signed and filed this ______ day of ____________, 1991.
 
            
 
                 
 

 
            
 
            Page  12
 
            
 
            
 
            
 
            
 
            
 
            
 
            
 
                 
 
                 
 
                                          ______________________________
 
                                          MICHAEL G. TRIER
 
                                          DEPUTY INDUSTRIAL COMMISSIONER
 
            
 
            Copies To:
 
            
 
            Mr. Steven C. Jayne
 
            Attorney at Law
 
            5835 Grand Avenue
 
            Suite 201
 
            Des Moines, Iowa  50312
 
            
 
            Mr. Helmut A. Mueller
 
            Attorney at Law
 
            RR 5
 
            Osceola, Iowa  50213
 
            
 
            Mr. Glenn Goodwin
 
            Attorney at Law
 
            4th Floor, Equitable Building
 
            Des Moines, Iowa  50309
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                           1108.40; 1402.40; 1704
 
                           1803; 2203; 4000.2
 
                           Filed January 17, 1991
 
                           MICHAEL G. TRIER
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            IMOGENE WIELAND,              :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :         File No. 891393
 
                                          :
 
            JIMMY DEAN MEAT COMPANY,      :      A R B I T R A T I O N
 
                                          :
 
                 Employer,                :         D E C I S I O N
 
                                          :
 
            and                           :
 
                                          :
 
            TRAVELERS INSURANCE COMPANY,  :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ____________________________________________________________
 
            
 
            1108.40; 1402.40
 
            Evidence from treating physician was adopted as correct and 
 
            was relied upon to establish causal connection.
 
            
 
            1704
 
            Credit authorized for payments made on account of injury 
 
            against occupational disease award.
 
            
 
            1803
 
            All occupational disease permanent partial disability is 
 
            determined industrially.  Claimant awarded 25 percent 
 
            permanent partial disability for bilateral carpal tunnel 
 
            syndrome and fibrositis affecting her shoulders and neck.
 
            
 
            2203
 
            Repetitive use disorders held to be occupational disease.
 
            
 
            4000.2
 
            Failure of defendants to recognize repetitive use disorders 
 
            as occupational disease held not unreasonable.  No penalty 
 
            awarded.
 
            
 
 
            
 
            Page   1
 
            
 
            
 
            
 
            
 
            before the iowa industrial commissioner
 
            ____________________________________________________________
 
            _____
 
                        :
 
            VERLA KEELING,   :
 
                        :
 
                 Claimant,   :
 
                        :
 
            vs.         :
 
                        :       File No. 891809
 
            CEDAR RAPIDS COMMUNITY     :
 
            SCHOOLS,    :
 
                        :          A P P E A L
 
                 Employer,   :
 
                        :        D E C I S I O N
 
            and         :
 
                        :
 
            CONTINENTAL 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.
 
            issues
 
            Those portions of the proposed agency decision pertaining to 
 
            issues not raised on appeal are adopted as a part of this 
 
            appeal decision.  Defendants state the following issues on 
 
            appeal:  Whether the proposed decision of the deputy is 
 
            supported by substantial evidence in the record; whether the 
 
            deputy erred in calculation of the applicable weekly rate; 
 
            whether the deputy erred in the award of medical expense; 
 
            and whether the deputy erred in finding the claimant 
 
            credible as to the extent of her reported physical 
 
            complaints, abilities and activities outside of her home.
 
            Claimant states the following issues on cross-appeal:
 
            I.  Whether the deputy industrial commissioner erred in 
 
            finding that claimant sustained an injury arising out of and 
 
            in the course of her employment.
 
            II. Whether the deputy industrial commissioner erred in 
 
            finding that claimant's injury is a cause of disability.
 
            III. Whether the deputy industrial commissioner erred in 
 
            giving weight to certain expert testimony.
 
            IV. Whether the deputy industrial commissioner erred in 
 
            awarding medical benefits.
 
            V. Whether the deputy industrial commissioner erred in 
 
            finding claimant permanently and totally disabled.
 
            VI. Whether the deputy industrial commissioner erred in 
 
            calculating claimant's weekly compensation rate.
 
            VII. Whether the deputy industrial commissioner erred in 
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            finding the claimant to be a credible witness.
 
            VIII. Whether the deputy industrial commissioner erred in 
 
            denying penalty benefits under Iowa Code section 86.13.
 
            findings of fact
 
            The findings of fact contained in the proposed agency 
 
            decision filed April 18, 1991 are adopted as set forth 
 
            below.  Segments designated by asterisks (*****) indicate 
 
            portions of the language from the proposed agency decision 
 
            that have been intentionally deleted and do not form a part 
 
            of this final agency decision.
 
            *****
 
            Claimant worked for the school system from 1968 until she 
 
            left in June of 1988.  Over her twenty years, claimant's 
 
            work record was very good.  She consistently had performance 
 
            ratings above average.  Claimant was earning approximately 
 
            $17,000 a year in her job at the time she left the school 
 
            system.  Prior to 1978, claimant performed secretarial type 
 
            jobs but then was assigned to the print room as a typesetter 
 
            and machine operator.  The title of this job was later 
 
            changed to composer.
 
            Beginning in 1980, claimant's duties as a composer involved 
 
            the operation of a Varityper system consisting of one 
 
            machine which prints a photographic mat and another machine 
 
            which automatically develops the mat.  Claimant used a 
 
            keyboard to input printing codes and text into the machine, 
 
            much the same as a modern day word processor.  Claimant 
 
            would physically insert the resulting printed mat into a 
 
            developing machine where chemicals were used to develop the 
 
            mat.  The mats would then be placed around the area to dry.  
 
            Fellow employees testified that claimant's room at times 
 
            resembled a laundry with all the wet mats laying around.  
 
            Claimant replaced the chemicals in the Varityper machines 
 
            once a week.
 
            The Varityper machine was located in a small room measuring 
 
            approximately 11 x 9 feet.  Most of the time the developing 
 
            portion of the machine was located in this room with 
 
            claimant, not only while she was developing mats, but while 
 
            she entering information with the keyboard.  The developing 
 
            portion of the machine was removed to an adjacent room after 
 
            claimant and her superiors complained of the fumes before 
 
            she left.  The small room contained a venting fan but 
 
            claimant stated that this was seldom used by her because the 
 
            room was so cold and the fan was very noisy.  The U.S. 
 
            Department of Labor Material Safety Data Sheet on the 
 
            Varityper chemicals indicate that the developing machine 
 
            should be ventilated as inhaled fumes are an irritant to the 
 
            skin, eyes and respiratory system.  School officials testi
 
            fied at hearing that OSHA inspectors had inspected the area 
 
            and found no problems.  However, no one at the school system 
 
            could recall when that occurred.
 
            On or about June 23, 1988, claimant suffered an injury which 
 
            arose out of and in the course of her employment with the 
 
            school system.  This injury consisted of the development of 
 
            a hypersensitivity to everyday chemical irritants in 
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            claimant's upper respiratory tract or throat at the larynx 
 
            level.  This injury does not involve the lower respiratory 
 
            tract or other areas of the body.  The injury arose 
 
            gradually over time during the years claimant was exposed to 
 
            the chemicals used in the Varityper machine process.  The 
 
            date of injury chosen is different from the date alleged in 
 
            the petition and coincides with the date she was compelled 
 
            by her condition to leave her employment.  As a result of 
 
            the injury, claimant suffered the following chronic 
 
            difficulties, namely, hoarseness of the voice, running eyes, 
 
            burning eyes, tongue swelling, throat tightness, wheezing, 
 
            coughing and very occasional breathing difficulties.  These 
 
            findings of a work injury are based upon the uncontroverted 
 
            views of two occupational medicine specialists, James A. 
 
            Merchant, M.D., a professor of medicine at the University of 
 
            Iowa Hospitals and Clinics, Occupational Medicine Clinic, 
 
            and another such specialist retained by defendants, Michael 
 
            J. Makowsky, M.D.  Defendants failed to find any physician 
 
            to dispute the views of these two occupational medicine 
 
            specialists.
 
            Soon after she began working with the Varityper machine, 
 
            fumes from the machine started to bother claimant.  Claimant 
 
            then gradually began to develop symptoms of nausea, burning 
 
            eyes, burning skin, throat swelling, tongue swelling and 
 
            loss of vocal ability along with a reduced sense of smell 
 
            and taste.  For a three year period, claimant was supervised 
 
            by two persons who were sharing their supervisory job in 
 
            what is known as a job sharing arrangement.  Both of these 
 
            supervisors testified that the fumes were increasingly 
 
            bothersome to not only claimant but
 
            
 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
            themselves.  One nonsupervisory employee who occasionally 
 
            worked with the Varityper machine testified that there were 
 
            no unusual fumes in claimant's room in the print shop but 
 
            she admitted that there were odors emitting from the 
 
            machine.  This testimony does not have the same weight as 
 
            claimant and the two supervisors.  Both of claimant's 
 
            supervisors complained to their superiors and, namely, 
 
            Thomas Decker, the head of the print shop.  Decker testified 
 
            that he could not recall these complaints.  It was not until 
 
            claimant left her employment due to the fumes in June 1988 
 
            that the Varityper was sold and a new desk top publishing 
 
            system was purchased by the school system to replace the 
 
            work of the Varityper machine.
 
            Claimant first sought treatment for her hoarseness in April 
 
            1986 from an otolaryngologist, E. L. Grandon, M.D., who felt 
 
            that she had "vocal tension."  He also diagnosed the 
 
            existence of a polyp on the vocal cords and these cords were 
 
            surgically scraped at that time.  This treatment did little 
 
            to alleviate claimant's hoarseness which continued to worsen 
 
            for the next two years.  It is noted in 1988, by Dr. 
 
            Grandon, that claimant was referred at that time to the 
 
            University of Iowa for allergy evaluation and treatment.
 
            During memorial weekend of May 28, 1988, claimant 
 
            experienced severe skin rashes or hives and tongue swelling.  
 
            Claimant sought immediate treatment at Mercy Hospital 
 
            emergency room for what she described as a life threatening 
 
            situation.  Physicians at the emergency room, noting a past 
 
            history in her records of an allergy to penicillin, 
 
            diagnosed penicillin reaction after claimant indicated to 
 
            them that she had been taking medication pursuant to a 
 
            prescription for amoxicillin, a form of penicillin a few 
 
            days before.  Claimant was told to refrain from taking this 
 
            medication and was given allergy medication at that time for 
 
            all the conditions that were presented.  Claimant was then 
 
            later followed by Richard Zeaske, M.D., a specialist in 
 
            asthma and allergy diseases.  At that time, claimant stated 
 
            that she may be having an adverse reaction to carbonless 
 
            paper at work after she read an article on the subject in 
 
            the local newspaper.  Given the symptoms by claimant, Dr. 
 
            Zeaske referred claimant to the Occupational Medicine Clinic 
 
            at the University of Iowa Hospitals and Clinics in Iowa 
 
            City, Iowa, and the head of that clinic, Dr. Merchant, for 
 
            evaluation of claimant's hives and hoarseness.  It is found 
 
            that the Varityper machine is not the carbonless paper 
 
            referred to in the article.  Such paper is commonly known as 
 
            NCR paper and was not used by the print shop during 
 
            claimant's employment with the School System.
 
            Claimant failed to show that her hives on May 28, 1988 were 
 
            work related.  Dr. Merchant was under the impression that 
 
            claimant had taken another antibiotic but there is little 
 
            question in the record that claimant had a prescription for 
 
            penicillin prior to the May 1988 reaction.  Her family 
 
            physician indicated that claimant had a prior reaction to 
 
            penicillin.  Dr. Merchant, in any event, was unable to 
 

 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
            determine whether the skin reaction or hives was due to 
 
            exposure to chemicals or exposure to the antibiotic.  The 
 
            allergy department at the University was also unable to 
 
            causally connect the hives to anything other than a 
 
            penicillin reaction.  Claimant has not had chronic hive 
 
            problems since that time.
 
            However, it is found that the other chronic symptoms treated 
 
            and evaluated on May 28, 1988, such as tongue swelling and 
 
            hoarseness are work related.  Dr. Merchant definitely felt 
 
            that claimant's voice, eyes and throat problems are the 
 
            result of  long-term chemical exposure to the chemicals.
 
            Claimant's absence from work after June 23, 1988 was the 
 
            result of the work injury of June 23, 1988.  Claimant 
 
            received active treatment from physicians at the University 
 
            of Iowa, including Dr. Merchant, until October 1988 when Dr. 
 
            Merchant stated that claimant's condition stabilized.  Since 
 
            that time, claimant has only been receiving follow-up care 
 
            as needed.  This care, according to Dr. Merchant, will be 
 
            necessary in the future.  Defendants contend that much of 
 
            claimant's throat and mouth problems during the care of Dr. 
 
            Merchant was due the overuse of a drug called Benadryl 
 
            prescribed by Dr. Merchant.  Records were received into 
 
            evidence which indicate that large quantities of this drug 
 
            was purchased by claimant which, if taken, would exceed 
 
            recommended doses.  Dr. Merchant, in his deposition, felt 
 
            that claimant had not taken all the drugs that she purchased 
 
            and in any event would have only a temporary effect.  The 
 
            symptoms he observed were chronic and long term.  Claimant 
 
            stated that she purchased these large quantities in order to 
 
            have them available at all the various locations she may be 
 
            at, such as her home, family residence, her car, her purse, 
 
            etc., so she would never be caught without them if a severe 
 
            reaction occurred.  Defendants' assertion of overmedication 
 
            was not convincing for two reasons, namely, there was no 
 
            expert medical opinion to back up defendants' claims and 
 
            claimant's explanation of the events appears likely given 
 
            her emotional state of mind.
 
            It is further found that the injury of June 23, 1988 has 
 
            also caused traumatic stress syndrome and hysteric behavior.  
 
            This view is shared again by Drs. Merchant and Makowsky.  
 
            Under this syndrome, which Dr. Merchant states is not 
 
            unusual in occupational injury situations, claimant 
 
            attributes all of her physical problems to her job at the 
 
            school system.  Dr. Merchant states that many of her 
 
            problems are currently not chemically induced symptoms.  He 
 
            points to claimant's complaints of leg and arm swelling.  
 
            Also, claimant tends to be hysteric or tends to
 
            
 
            
 
            Page   6
 
            
 
            
 
            
 
            
 
            exaggerate symptoms such as a loss of breathing ability.  On 
 
            a few occasions, she has appeared at emergency rooms at 
 
            hospitals with complaints of an inability to breath and upon 
 
            examination nothing could be found.  All this is, however, 
 
            related to the original injury, according to Dr. Merchant.
 
            As a result of a work injury on June 23, 1988, claimant has 
 
            suffered a 20 percent permanent partial impairment to the 
 
            body as a whole.  This finding is based upon the 
 
            uncontroverted views of Dr. Merchant and Dr. Makowsky.  As a 
 
            result of claimant's hypersensitivity, she now has a 
 
            permanent allergy and can react to any form of common 
 
            chemical irritant in the environment such as cigarette smoke 
 
            or very small quantities of fumes from materials in 
 
            household goods, rugs and furniture.  Dr. Merchant has 
 
            restricted claimant's employment to sedentary part-time work 
 
            in a work environment free of any such chemical irritants.  
 
            Also, Dr. Merchant directs that such a job cannot involve 
 
            extensive use of claimant's voice.  The finding of a 20 
 
            percent impairment is based upon the uncontroverted views of 
 
            Dr. Makowsky who was the only physician to give a percentage 
 
            rating of impairment using published evaluation standards.  
 
            Claimant's past medical history fails to show any similar 
 
            problems.  Claimant had a mouth irritation in 1975 but 
 
            doctors at that time felt it was simply a temporary reaction 
 
            to eating tomatoes.  Claimant has had thrombophlebitis 
 
            problems since 1976.
 
            As a result of the work injury on June 23, 1988, claimant 
 
            has suffered a total loss of earning capacity.  Claimant is 
 
            57 years of age but had no intentions of leaving the work 
 
            force prior to the injury.  Claimant's medical condition 
 
            before the work injury was good and she had no functional 
 
            impairments or ascertainable disabilities.  Claimant has 
 
            many transferable skills from successful past work 
 
            experiences such as a clerk at a county treasurer's office, 
 
            retail sales clerk, checkout clerk, bank teller, and the 
 
            extensive secretarial and machine work at the School System.  
 
            However, given the restrictions imposed by Dr. Merchant, 
 
            claimant is unable to return to gainful employment.
 
            Two vocational counselors testifying in this case agreed 
 
            that Dr. Merchant's restrictions limit vocational choices to 
 
            less than 1 percent of the labor market.  Although 
 
            employment in some capacity is conceivable, it would be 
 
            extremely difficult to find any such employment given 
 
            claimant's age, geographical location and limited 
 
            suitability to all the work environments.  As claimant is 
 
            able to get along well at home, defendants' vocational 
 
            counselor testified that the best alternative would be a 
 
            transcription business or some other self-employment located 
 
            at claimant's home.  However, this would require a financial 
 
            investment in equipment, training and advertising.  Claimant 
 
            has
 
            
 
            
 
            Page   7
 
            
 
            
 
            
 
            
 
            no such resources.  Claimant has not looked for work but 
 
            this is understandable as she feels that the outside world 
 
            is difficult for her due to her hypersensitivity.  This fear 
 
            is justified given the views of Dr. Merchant.  The school 
 
            system has offered a full-time job of Code-A-Phone operator 
 
            which can be performed in claimant's home.  Dr. Merchant has 
 
            approved of such work only on a part-time basis.  A 
 
            part-time job was not offered by the school system.  
 
            Claimant is unable to secure a suitable, stable gainful 
 
            employment.
 
            Despite the fact that claimant's skin reaction was not found 
 
            work related, all of the expenses requested set forth in the 
 
            prehearing report are found causally connected to the injury 
 
            and they constitute reasonable and necessary treatment of 
 
            the work injury.  The skin reaction was only of a limited 
 
            duration and treatment of this condition coincided with 
 
            treatment of claimant's hoarseness and tongue swelling which 
 
            is work related.  The treatment and prescribed medication 
 
            were for both conditions.  From the evidence presented, it 
 
            is impossible to separate out the costs of the treatment for 
 
            only the hives.  In each aspect of the treatment, both for 
 
            the work related and nonwork related symptoms, the work 
 
            related symptoms were a significant factor in the treatment.
 
            It is found that claimant's son, although over 18 years of 
 
            age and not a student, was a dependent of claimant at the 
 
            time of the injury.  This finding is based upon claimant's 
 
            uncontroverted testimony.
 
            conclusions of law
 
            The conclusions of law contained in the proposed agency 
 
            decision filed April 18, 1991 are adopted as set forth 
 
            below.  Segments designated by asterisks (*****) indicate 
 
            portions of the language from the proposed agency decision 
 
            that have been intentionally deleted and do not form a part 
 
            of this final agency decision.  Segments designated by 
 
            brackets ([ ]) indicate language that is in addition to the 
 
            language of the proposed agency decision.
 
            I.  It should be noted that claimant did not plead or assert 
 
            an occupational disease under Iowa Code chapter 85A.  Also, 
 
            defendants did not assert a defense under the occupational 
 
            disease statute in light of the fact that by statutory 
 
            definition, injury does not include an occupational disease.  
 
            Iowa Code section 85.61(5)(b).
 
            Claimant has the burden of proving by a preponderance of the 
 
            evidence that claimant received an injury which arose out of 
 
            and in the course of employment.  The words "out of" refer 
 
            to the cause or source of the injury.  The words "in the 
 
            course of" refer to the time and place and circumstances of 
 
            the injury.  See Cedar Rapids Community Sch. v. Cady, 278 
 
            N.W.2d 298 (Iowa 1979); Crowe v. DeSoto Consol. Sch. Dist., 
 
            246 Iowa 402, 68 N.W.2d 63 (1955).  An employer takes an 
 
            employee subject to any active or dormant health 
 
            impairments, and a work connected injury which more than 
 
            slightly aggravates the condition is considered to be a 
 
            personal injury.  Ziegler v. United States Gypsum Co., 252 
 

 
            
 
            Page   8
 
            
 
            
 
            
 
            
 
            Iowa 613, 620, 106 N.W.2d 591 (1960) and cases cited 
 
            therein.
 
            It is not necessary that claimant prove her disability 
 
            results from a sudden unexpected traumatic event.  It is 
 
            sufficient to show that the disability developed gradually 
 
            or progressively from work activity over a period of time.  
 
            McKeever Custom Cabinets v. Smith, 379 N.W.2d 368 (Iowa 
 
            1985).  The McKeever court also held that the date of injury 
 
            in gradual injury cases is the time when pain prevents the 
 
            employee from continuing to work.  This date is then 
 
            utilized in determining rate and timeliness of the claim.
 
            This agency may choose an injury date in cumulative trauma 
 
            cases different than those alleged.  McCoy v. Donaldson Co., 
 
            Inc., Case No. 752670, Appeal Decision filed April 28, 1989.
 
            In the case sub judice, the most logical injury date was 
 
            when claimant left her employment due to her difficulties.  
 
            This was on the advice of her physicians.  The date alleged 
 
            in the petition only coincides with an incident of treatment 
 
            was only partially caused by Varityper exposure.
 
            An initial issue on appeal is whether claimant's condition 
 
            is causally connected to her work exposure to chemicals.  
 
            Dr. Merchant opined that the condition was caused by the 
 
            exposure.  Dr. Makowsky, who examined claimant for the 
 
            defendants, also stated that a causal connection existed 
 
            between the condition and the work exposure.  Dr. Casales 
 
            felt there was not a causal connection, although he conceded 
 
            that some of claimant's symptoms were work related.  
 
            Claimant's alleged penicillin reaction in 1988 has not 
 
            reoccurred, yet claimant continues to suffer symptoms.  The 
 
            greater weight of the evidence shows a causal connection 
 
            between claimant's hypersensitivity and her work exposure.
 
            II.  Claimant must establish by a preponderance of the 
 
            evidence the extent of weekly benefits for permanent 
 
            disability to which claimant is entitled.  As the claimant 
 
            has shown that the work injury was a cause of a permanent 
 
            physical impairment or limitation upon activity involving 
 
            the body as a whole, the degree of permanent disability must 
 
            be measured pursuant to Iowa Code section 85.34(2)(u).  
 
            However, unlike scheduled member
 
            
 
            
 
            Page   9
 
            
 
            
 
            
 
            
 
            disabilities, the degree of disability under this provision 
 
            is not measured solely by the extent of a functional 
 
            impairment or loss of use of a body member.  A disability to 
 
            the body as a whole or an "industrial disability" is a loss 
 
            of earning capacity resulting from the work injury.  
 
            Diederich v. Tri-City Railway Co., 219 Iowa 587, 593, 258 
 
            N.W. 899 (1935).  A physical impairment or restriction on 
 
            work activity may or may not result in such a loss of 
 
            earning capacity.  The extent to which a work injury and a 
 
            resulting medical condition has resulted in an industrial 
 
            disability is determined from examination of several 
 
            factors.  These factors include the employee's medical 
 
            condition prior to the injury, immediately after the injury 
 
            and presently; the situs of the injury, its severity and the 
 
            length of healing period; the work experience of the 
 
            employee prior to the injury, after the injury and potential 
 
            for rehabilitation; the employee's qualifications 
 
            intellectually, emotionally and physically; earnings prior 
 
            and subsequent to the injury; age; education; motivation; 
 
            functional impairment as a result of the injury; and 
 
            inability because of the injury to engage in employment for 
 
            which the employee is fitted.  Loss of earnings caused by a 
 
            job transfer for reasons related to the injury is also 
 
            relevant.  Olson v. Goodyear Service Stores, 255 Iowa 1112, 
 
            1121, 125 N.W.2d 251, 257 (1963).  See Peterson v. Truck 
 
            Haven Cafe, Inc., (Appeal Decision, February 28, 1985).
 
            In the case sub judice, it was found that claimant has 
 
            suffered a total or 100 percent loss of her earning capacity 
 
            as a result of her work injury.  Based upon such a factual 
 
            finding, claimant is entitled as a matter of law to 
 
            permanent total disability benefits under Iowa Code section 
 
            85.34(3) for an indefinite period of time during the period 
 
            of her disability.  Such benefits would last for life unless 
 
            her condition changes.
 
            [Claimant's rate is determined in part by the number of 
 
            exemptions she has for income tax withholding purposes.  
 
            Claimant's son Joseph, age 30 at the time of her injury,  
 
            was unemployed and was living with claimant.  Claimant did 
 
            list Joseph as an exemption on her tax return.  The 
 
            definitions of dependency contained in Iowa Code sections 
 
            85.42 and 85.44 are not applicable here.  Those sections 
 
            refer to "dependents" in the sense of persons entitled to 
 
            receive death benefits when a  worker in killed in a work 
 
            related accident.  For the purposes of this case, claimant's 
 
            rate is determined in part by the number of exemptions under 
 
            Iowa Code section 85.61(6).  The claimant's rate is 
 
            determined by Iowa Code section 85.36.  That section 
 
            utilizes weekly earnings, which is defined as the gross 
 
            salary, wages or earnings of an employee.  Iowa Code section 
 
            85.36 sets forth the basis of computing a claimant's rate as 
 
            80 percent of the employee's weekly spendable earnings.  
 
            Iowa Code section 85.61(9) defines weekly spendable earnings 
 
            as the amount remaining after payroll taxes are deducted 
 
            from gross weekly earnings.  Iowa Code section 85.61(6) 
 

 
            
 
            Page  10
 
            
 
            
 
            
 
            
 
            defines payroll taxes.
 
            Defendants' arguments that Joseph is not handicapped, is not 
 
            a college student, and is over 18 years of age are 
 
            misplaced, as those are factors relevant under Iowa Code 
 
            section 85.42 but not relevant under 85.36.  Claimant has 
 
            testified that Joseph is a dependent and has submitted tax 
 
            returns corroborating her testimony.  There is no showing in 
 
            the record that Joseph is not a dependent of claimant for 
 
            purposes of payroll taxes.  Claimant's rate is $197.35 per 
 
            week.]
 
            Given the finding of entitlement to two exemptions; the 
 
            parties' stipulations as to gross earnings; and single 
 
            status, claimant's rate of compensation is $197.35 according 
 
            to the commissioner's rate book for an injury occurring in 
 
            June 1988.
 
            III.  Pursuant to Iowa Code section 85.27, claimant is 
 
            entitlement to payment of reasonable medical expenses in
 
            curred for a work injury.  However, claimant is entitled to 
 
            an order of reimbursement only if claimant has paid those 
 
            expenses.  Otherwise, claimant is entitled to only an order 
 
            directing responsible defendants to make such payments.  See 
 
            Krohn v. State, 420 N.W.2d 463 (Iowa 1988).
 
            *****
 
            [Some of claimant's medical bills are not causally connected 
 
            to her work exposure.  Other bills may be related to nonwork 
 
            related conditions, but cannot be differentiated from 
 
            medical procedures for work related conditions.  Others may 
 
            have been instituted to ascertain the nature of her work 
 
            related condition and later were found to relate to nonwork 
 
            related conditions.  To the extent medical procedures were 
 
            designed to treat both work related and nonwork related 
 
            conditions simultaneously, the procedures are compensable.  
 
            Defendants are liable to claimant for all medical bills 
 
            sought, with the exception of bills related to claimant's 
 
            gall bladder condition, pap smear, mole removal, mammogram, 
 
            and phlebitis, as claimant has failed to carry her burden to 
 
            show these conditions were related to her work exposure.  
 
            Claimant's hives may have been caused by a penicillin 
 
            reaction, or may have been caused by her work exposure to 
 
            chemicals.  Medical testimony in the record indicates that 
 
            skin rashes are part of the symptoms caused by claimant's  
 
            chemical exposure.  Claimant's medical bills for treatment 
 
            of her hives are compensable medical expenses under Iowa 
 
            Code section 85.27.
 
            Claimant is under several restrictions.  Claimant has been 
 
            described by Dr. Merchant as "housebound" due to her 
 
            sensitivity to various chemicals.  The fact that claimant is 
 
            able to leave her home to attend some social activities does 
 
            not alter the conclusion that working in most common work 
 
            environments would expose claimant to various chemicals she 
 
            is able to avoid at her home.  Claimant was shown to be able 
 
            to do transcription work at her home on a self-employed 
 
            basis.  However, neither vocational rehabilitation worker 
 
            that claimant worked with was able to find claimant a 
 

 
            
 
            Page  11
 
            
 
            
 
            
 
            
 
            position.  Claimant's reliability as an employee is severely 
 
            handicapped by the likelihood of a reaction to chemicals in 
 
            the workplace.   Dr. Merchant's opinion on claimant's 
 
            ability to work in normal work environments and his 
 
            restrictions are not substantially contradicted.  Claimant 
 
            is permanently and totally disabled. 
 
            Defendants have not voluntarily paid benefits during the 
 
            pendency of this case.  Claimant seeks penalty benefits 
 
            under Iowa Code section 86.13.  However, penalty benefits 
 
            are not appropriate if a claim is fairly debatable.  
 
            Claimant's alleged penicillin reaction and the conflicting 
 
            view on causation by Dr. Casales made claimant's case fairly 
 
            debatable.  Penalty benefits are not appropriate.]
 
            WHEREFORE, the decision of the deputy is affirmed and 
 
            modified.
 
            order
 
            THEREFORE, it is ordered:
 
            That defendants shall pay to claimant permanent total 
 
            disability benefits at the rate of one hundred ninety-seven 
 
            and 37/100 dollars ($197.37) from June 24, 1988.
 
            That defendants shall pay the medical expenses awarded in 
 
            this decision.  Claimant shall be reimbursed for any of 
 
            these expenses paid by her.  Otherwise, defendants shall pay 
 
            the provider directly along with any lawful late payment 
 
            penalty imposed upon claimant by the provider.
 
            That defendants shall pay the accrued weekly benefits in a 
 
            lump sum and shall receive credit against this award for all 
 
            benefits previously paid.
 
            That defendants shall receive credit for previous payments 
 
            of benefits under a nonoccupational group insurance plan, if 
 
            applicable and appropriate under Iowa Code 85.38(2), less 
 
            any tax deductions from those payments and attorney's lien.
 
            That defendants shall pay interest on weekly benefits 
 
            awarded herein as set forth in Iowa Code section 85.30.
 
            
 
                 That defendants shall pay the costs of this matter 
 
            including transcription of the hearing and shall reimburse 
 
            claimant for the filing fee if previously paid by claimant.
 
            That defendants shall file an activity report upon payment 
 
            of this award as requested by this agency pursuant to rule 
 
            343 IAC 3.1.
 
            Signed and filed this ____ day of February, 1993.
 
            
 
            
 
            
 
            
 
                      ________________________________
 
                               BYRON K. ORTON
 
                          INDUSTRIAL COMMISSIONER
 
            
 
            Copies To:
 
            
 
            Mr. Thomas J. Currie
 
            Attorney at Law
 
            3401 Williams Blvd SW
 

 
            
 
            Page  12
 
            
 
            
 
            
 
            
 
            P.O. Box 998
 
            Cedar Rapids, IA 52406
 
            
 
            Ms. Dorothy L. Kelley
 
            Attorney at Law
 
            500 Liberty Bldg
 
            Des Moines, IA 50309
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
            3001
 
            Filed February 26, 1993
 
            Byron K. Orton
 
            LPW
 
            before the iowa industrial commissioner
 
            ____________________________________________________________
 
            _____
 
                        :
 
            VERLA KEELING,   :
 
                        :
 
                 Claimant,   :
 
                        :
 
            vs.         :
 
                        :       File No. 891809
 
            CEDAR RAPIDS COMMUNITY     :
 
            SCHOOLS,    :
 
                        :          A P P E A L
 
                 Employer,   :
 
                        :        D E C I S I O N
 
            and         :
 
                        :
 
            CONTINENTAL INSURANCE CO.,      :
 
                        :
 
                 Insurance Carrier,    :
 
                 Defendants.      :
 
            ____________________________________________________________
 
            _____
 
            
 
            3001
 
            For purposes of determining rate, claimant offered into 
 
            evidence tax records from several years showing she utilized 
 
            her 30 year old unemployed son who lived with her as an 
 
            exemption.  Defendants' arguments that the son did not meet 
 
            the definition of a dependent under section 85.42 (under 18, 
 
            full-time student, mentally or physically handicapped) were 
 
            inappropriate, as that section concerns a "dependent" for 
 
            purposes of receiving death benefits.  Here, dependency 
 
            leading to an exemption for purposes of withholding taxes 
 
            under Iowa Code section 85.61(6) and (9) will be determined 
 
            by the rules and regulations of the internal revenue 
 
            service.  Absent an indication that the son was not a 
 
            properly claimed exemption, claimant had carried her burden 
 
            to show by a preponderance of the evidence that the 
 
            exemption was proper in calculating her rate.
 
            
 
 
            
 
            Page   1
 
            
 
            
 
            
 
            
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            VERLA KEELING,                :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :      File No. 891809
 
            CEDAR RAPIDS COMMUNITY        :
 
            SCHOOLS,                      :
 
                                          :    A R B I T R A T I O N
 
                 Employer,                :
 
                                          :       D E C I S I O N
 
            and                           :
 
                                          :
 
            CONTINENTAL INSURANCE CO.,    :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
            
 
                              STATEMENT OF THE CASE
 
            
 
                 This is a proceeding in arbitration brought by Verla 
 
            Keeling, claimant, against Cedar Rapids Community Schools, 
 
            employer (hereinafter referred to as the School System), and 
 
            Continental Insurance Company, insurance carrier, defen
 
            dants, for workers' compensation benefits as a result of an 
 
            alleged injury on May 28, 1988.  On November 8, 1990, a 
 
            hearing was held on claimant's petition and the matter was 
 
            considered fully submitted at the close of this hearing.
 
            
 
                 The parties have submitted a prehearing report of con
 
            tested issues and stipulations which was approved and ac
 
            cepted as a part of the record of this case at the time of 
 
            hearing.  Oral testimony and written exhibits were received 
 
            during the hearing from the parties.  The exhibits received 
 
            into the evidence are listed in the prehearing report.
 
            
 
                 According to the prehearing report, the parties have 
 
            stipulated to the following matters:
 
            
 
                 1.  An employee-employer relationship existed between 
 
            claimant and the School System at the time of the alleged 
 
            injury.
 
            
 
                 2.  Claimant left her employment with the School System 
 
            on June 23, 1988, which is her last day of work.
 
            
 
                 3.  If the injury is found to have caused permanent 
 
            disability, the type of disability is an industrial disabil
 
            ity to the body as a whole.
 
            
 
                 4.  For purposes of computing claimant's rate of com
 
            pensation, claimant's gross weekly earnings were $312.00 and 
 
            claimant was single at the time of the injury.  The number 
 
            of exemptions is in dispute.
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            
 
                 5.  With reference to the medical bills submitted to 
 
            claimant at hearing, defendants agreed that the medical 
 
            providers involved would testify that their fees were fair 
 
            and reasonable and defendants are not offering contrary evi
 
            dence.
 
            
 
                                      issue
 
            
 
                 The parties submitted the following issues for determi
 
            nation in this proceeding:
 
            
 
                 I.   Whether claimant received an injury arising out of 
 
            and in the course of employment;
 
            
 
                 II.  The extent of claimant's entitlement to disability 
 
            benefits, including claimant's rate of compensation; and,
 
            
 
                 III. The extent of claimant's entitlement to medical 
 
            benefits.
 
            
 
                 IV.  The extent of claimant's entitlement to penalty 
 
            benefits under Iowa Code section 86.13(4).
 
            
 
                                 findings of fact
 
            
 
                 Having heard the testimony and considered all the evi
 
            dence, the deputy industrial commissioner finds as follows:
 
            
 
                 A credibility finding is necessary to this decision as 
 
            defendant places claimant's credibility at issue during 
 
            cross-examination as to the nature and extent of the injury 
 
            and disability.  From her demeanor while testifying, 
 
            claimant is found credible.
 
            
 
                 Claimant worked for the School System from 1968 until 
 
            she left in June of 1988.  Over her twenty years, claimant's 
 
            work record was very good.  She consistently had performance 
 
            ratings above average.  Claimant was earning approximately 
 
            $17,000 a year in her job at the time she left the School 
 
            System.  Prior to 1978, claimant performed secretarial type 
 
            jobs but then was assigned to the print room as a typesetter 
 
            and machine operator.  The title of this job was later 
 
            changed to composer.
 
            
 
                 Beginning in 1980, claimant's duties as a composer in
 
            volved the operation of a varitype system consisting of one 
 
            machine which prints a photographic mat and another machine 
 
            which automatically develops the mat.  Claimant used a 
 
            keyboard to input printing codes and text into the machine, 
 
            much the same as a modern day word processor.  Claimant 
 
            would physically insert the resulting printed mat into a 
 
            developing machine where chemicals were used to develop the 
 
            mat.  The mats would then be placed around the area to dry.  
 
            Fellow employees testified that claimant's room at times 
 
            resembled a laundry with all the wet mats laying around.  
 
            Claimant replaced the chemicals in the varitype machines 
 
            once a week.
 
            
 
                 The varitype machine was located in a small room 
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            measuring approximately 11 x 9 feet.  Most of the time the 
 
            developing portion of the machine was located in this room 
 
            with claimant, not only while she was developing mats, but 
 
            while she entering information with the keyboard.  The 
 
            developing portion of the machine was removed to an adjacent 
 
            room after claimant and her superiors complained of the 
 
            fumes  before she left.  The small room contained a venting 
 
            fan but claimant stated that this was seldom used by her 
 
            because the room was so cold and the fan was very noisy.  
 
            The U.S. Department of Labor Material Safety Data Sheet on 
 
            the varitype chemicals indicate that the developing machine 
 
            should be ventilated as inhaled fumes are an irritant to the 
 
            skin, eyes and respiratory system.  School officials testi
 
            fied at hearing that OSHA inspectors had inspected the area 
 
            and found no problems.  However, no one at the School System 
 
            could recall when that occurred.
 
            
 
                 On or about June 23, 1988, claimant suffered an injury 
 
            which arose out of and in the course of her employment with 
 
            the School System.  This injury consisted of the development 
 
            of a hypersensitivity to everyday chemical irritants in 
 
            claimant's upper respiratory tract or throat at the larynx 
 
            level.  This injury does not involve the lower respiratory 
 
            tract or other areas of the body.  The injury arose gradu
 
            ally over time during the years claimant was exposed to the 
 
            chemical used in the varitype machine process.  The date of 
 
            injury chosen is different from the date alleged in the pe
 
            tition and coincides with the date she was compelled by her 
 
            condition to leave her employment.  As a result of the 
 
            injury, claimant suffered the following chronic difficul
 
            ties, namely, hoarseness of the voice, running eyes, burning 
 
            eyes, tongue swelling, throat tightness, wheezing, coughing 
 
            and very occasional breathing difficulties.  These findings 
 
            of a work injury are based upon the uncontroverted views of 
 
            two occupational medicine specialists, Jamess A. Merchant, 
 
            M.D., a professor of medicine at the University of Iowa 
 
            Hospitals and Clinics, Occupational Medicine Clinic, and 
 
            another such specialist retained by defendants, Michael J. 
 
            Makowsky, M.D.  Defendants failed to find any physician to 
 
            dispute the views of these two occupational medicine spe
 
            cialists.
 
            
 
                 Soon after she began working with the varitype machine, 
 
            fumes from the machine started to bother claimant.  Claimant 
 
            then gradually began to develop symptoms of nausea, burning 
 
            eyes, burning skin, throat swelling, tongue swelling and 
 
            loss of vocal ability along with a reduced sense of smell 
 
            and taste.  For a three year period, claimant was supervised 
 
            by two persons who were sharing their supervisory job in 
 
            what is known as a job sharing arrangement.  Both of these 
 
            supervisors testified that the fumes were increasingly 
 
            bothersome to not only claimant but themselves.  One non
 
            supervisory employee who occasionally worked with the 
 
            varitype machine testified that there were no unusual fumes 
 
            in claimant's room in the print shop but  she admitted that 
 
            there were odors emitting from the machine.  This testimony 
 
            does not have the same weight as claimant and the two 
 
            supervisors.  Both of claimant's supervisors complained to 
 
            their superiors and, namely, Thomas Decker, the head of the 
 
            print shop.  Decker testified that he could not recall these 
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
            complaints.  It was not until claimant left her employment 
 
            due to the fumes in June 1988 that the varitype was sold and 
 
            a new desk top publishing system was purchased by the School 
 
            System to replace the work of the varitype machine.
 
            
 
                 Claimant first sought treatment for her hoarseness in 
 
            April 1986 from an otolaryngologist, E. L. Grandon, M.D., 
 
            who felt that she had "vocal tension."  He also diagnosed 
 
            the existence of a polyp on the vocal cords and these cords 
 
            were surgically scraped at that time.  This treatment did 
 
            little to alleviate claimant's hoarseness which continued to 
 
            worsen for the next two years.  It is noted in 1988, by Dr. 
 
            Grandon, that claimant was referred at that time to the 
 
            University of Iowa for allergy evaluation and treatment.
 
            
 
                 During memorial weekend of May 28, 1988, claimant 
 
            experienced severe skin rashes or hives and tongue swelling.  
 
            Claimant sought immediate treatment at Mercy Hospital 
 
            emergency room for what she described as a life threatening 
 
            situation.  Physicians at the emergency room, noting a past 
 
            history in her records of an allergy to penicillin, diag
 
            nosed penicillin reaction after claimant indicated to them 
 
            that she had been taking medication pursuant to a prescrip
 
            tion for amoxicillin, a form of penicillin a few days 
 
            before.  Claimant was told to refrain from taking this 
 
            medication and was given allergy medication at that time for 
 
            all the conditions that were presented.  Claimant was then 
 
            later followed by Richard Zeaske, M.D., a specialist in 
 
            asthma and allergy diseases.  At that time, claimant stated 
 
            that she may be having an adverse reaction to carbonless 
 
            paper at work after she read an article on the subject in 
 
            the local newspaper.  Given the symptoms by claimant, Dr. 
 
            Zeaske referred claimant to the Occupational Medicine Clinic 
 
            at the University of Iowa Hospitals and Clinics in Iowa 
 
            City, Iowa, and the head of that clinic, Dr. Merchant, for 
 
            evaluation of claimant's hives and hoarseness.  It is found 
 
            that the varitype machine is not the carbonless paper 
 
            referred to in the article.  Such paper is commonly known as 
 
            NCR paper and was not used by the print shop during 
 
            claimant's employment with the School System.
 
            
 
                 Claimant failed to show that her hives on May 28, 1988 
 
            were work related.  Dr. Merchant was under the impression 
 
            that claimant had taken another antibiotic but there is 
 
            little question in the record that claimant had a 
 
            prescription for penicillin prior to the May 1988 reaction.  
 
            Her family physician indicated that claimant had a prior 
 
            reaction to penicillin.  Dr. Merchant, in any event, was un
 
            able to determine whether the skin reaction or hives was due 
 
            to exposure to chemicals or exposure to the antibiotic.  The 
 
            allergy department at the University was also unable to 
 
            casually connect the hives to anything other than a 
 
            penicillin reaction.  Claimant has not had chronic hive 
 
            problems since that time.
 
            
 
                 However, it is found that the other chronic symptoms 
 
            treated and evaluated on May 28, 1988, such as tongue 
 
            swelling and hoarseness are work related.  Dr. Merchant def
 
            initely felt that claimant's voice, eyes and throat problems 
 
            are the result of  long-term chemical exposure to the chemi
 

 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
            cals.
 
            
 
                 Claimant's absence from work after June 23, 1988 was 
 
            the result of the work injury of June 23, 1988.  Claimant 
 
            received active treatment from physicians at the University 
 
            of Iowa, including Dr. Merchant, until October 1988 when Dr. 
 
            Merchant stated that claimant's condition stabilized.  Since 
 
            that time, claimant has only been receiving follow-up care 
 
            as needed.  This care, according to Dr. Merchant, will be 
 
            necessary in the future.  Defendants contend that much of 
 
            claimant's throat and mouth problems during the care of Dr. 
 
            Merchant was due the overuse of a drug called Benadryl pre
 
            scribed by Dr. Merchant.  Records were received into evi
 
            dence which indicate that large quantities of this drug was 
 
            purchased by claimant which, if taken, would exceed recom
 
            mended doses.  Dr. Merchant, in his deposition, felt that 
 
            claimant had not taken all the drugs that she purchased and 
 
            in any event would have only a temporary effect.  The symp
 
            toms he observed were chronic and long-term.  Claimant 
 
            stated that she purchased these large quantities in order to 
 
            have them available at all the various locations she may be 
 
            at, such as her home, family residence, her car, her purse, 
 
            etc., so she would never be caught without them if a severe 
 
            reaction occurred.  Defendants' assertion of overmedication 
 
            was not convincing for two reasons, namely, there was no ex
 
            pert medical opinion to back up defendants' claims and 
 
            claimant's explanation of the events appears likely given 
 
            her emotional state of mind.
 
            
 
                 It is further found that the injury of June 23, 1988 
 
            has also caused traumatic stress syndrome and hysteric 
 
            behavior.  This view is shared again by Drs. Merchant and 
 
            Makowsky.  Under this syndrome, which Dr. Merchant states is 
 
            not unusual in occupational injury situations, claimant 
 
            attributes all of her physical problems to her job at the 
 
            School System.  Dr. Merchant states that many of her prob
 
            lems are currently not chemically induced symptoms.  He 
 
            points to claimant's complaints of leg and arm swelling.  
 
            Also, claimant tends to be hysteric or tends to exaggerate 
 
            symptoms such as a loss of breathing ability.  On a few oc
 
            casions, she has appeared at emergency rooms at hospitals 
 
            with complaints of an inability to breath and upon examina
 
            tion nothing could be found.  All this is, however, related 
 
            to the original injury, according to Dr. Merchant.
 
            
 
                 As a result of a work injury on June 23, 1988, claimant 
 
            has suffered a 20 percent permanent partial impairment to 
 
            the body as a whole.  This finding is based upon the uncon
 
            troverted views of Dr. Merchant and Dr. Makowsky.  As a 
 
            result of claimant's hypersensitivity, she now has a perma
 
            nent allergy and can react to any form of common chemical 
 
            irritant in the environment such as cigarette smoke or very 
 
            small quantities of fumes from materials in household goods, 
 
            rugs and furniture.  Dr. Merchant has restricted claimant's 
 
            employment to sedentary part-time work in a work environment 
 
            free of any such chemical irritants.  Also, Dr. Merchant 
 
            directs that such a job cannot involve extensive use of 
 
            claimant's voice.  The finding of a 20 percent impairment is 
 
            based upon the uncontroverted views of Dr. Makowsky who was 
 

 
            
 
            Page   6
 
            
 
            
 
            
 
            
 
            the only physician to give a percentage rating of impairment 
 
            using published evaluation standards.  Claimant's past 
 
            medical history fails to show any similar problems.  
 
            Claimant had a mouth irritation in 1975 but doctors at that 
 
            time felt it was simply a temporary reaction to eating 
 
            tomatoes.  Claimant has had thrombophlebitis problems since 
 
            1976.
 
            
 
                 As a result of the work injury on June 23, 1988, 
 
            claimant has suffered a total loss of earning capacity.  
 
            Claimant is 57 years of age but had no intentions of leaving 
 
            the work force prior to the injury.  Claimant's medical con
 
            dition before the work injury was good and she had no func
 
            tional impairments or ascertainable disabilities.  Claimant 
 
            has many transferable skills from successful past work expe
 
            riences such as a clerk at a county treasurer's office, re
 
            tail sales clerk, checkout clerk, bank teller, and the 
 
            extensive secretarial and machine work at the School System.  
 
            However, given the restrictions imposed by Dr. Merchant, 
 
            claimant is unable to return to gainful employment.
 
            
 
                 Two vocational counselors testifying in this case 
 
            agreed that Dr. Merchant's restrictions limit vocational 
 
            choices to less than 1 percent of the labor market.  
 
            Although employment in some capacity is conceivable, it 
 
            would be extremely difficult to find any such employment 
 
            given claimant's age, geographical location and limited 
 
            suitability to all the work environments.  As claimant is 
 
            able to get along well at home, defendants' vocational 
 
            counselor testified that the best alternative would be a 
 
            transcription business or some other self-employment located 
 
            at claimant's home.  However, this would require a financial 
 
            investment in equipment, training and advertising.  Claimant 
 
            has no such resources.  Claimant has not looked for work but 
 
            this is understandable as she feels that the outside world 
 
            is difficult for her due to her hypersensitivity.  This fear 
 
            is justified given the views of Dr. Merchant.  The School 
 
            System has offered a full-time job of Code-A-Phone operator 
 
            which can be performed in claimant's home.  Dr. Merchant has 
 
            approved of such work only on a part-time basis.  A 
 
            part-time job was not offered by the School System.  
 
            Claimant is unable to secure a suitable, stable gainful 
 
            employment.
 
            
 
                 Despite the fact that claimant's skin reaction was not 
 
            found work related, all of the expenses requested set forth 
 
            in the prehearing report are found causally connected to the 
 
            injury and they constitute reasonable and necessary treat
 
            ment of the work injury.  The skin reaction was only of a 
 
            limited duration and treatment of this condition coincided 
 
            with treatment of claimant's hoarseness and tongue swelling 
 
            which is work related.  The treatment and prescribed medica
 
            tion were for both conditions.  From the evidence presented, 
 
            it is impossible to separate out the costs of the treatment 
 
            for only the hives.  In each aspect of the treatment, both 
 
            for the work-related and nonwork-related symptoms, the 
 
            work-related symptoms were a significant factor in the 
 

 
            
 
            Page   7
 
            
 
            
 
            
 
            
 
            treatment.
 
            
 
                 It is found that claimant's son, although over 18 years 
 
            of age and not a student, was a dependent of claimant at the 
 
            time of the injury.  This finding is based upon claimant's 
 
            uncontroverted testimony.
 
            
 
                                conclusions of law
 
            
 
                 I.  It should be noted that claimant did not plead or 
 
            assert an occupational disease under Iowa Code chapter 85A.  
 
            Also, defendants did not assert a defense under the occupa
 
            tional disease statute in light of the fact that by statu
 
            tory definition, injury does not include an occupational 
 
            disease. 85.61(5)(b).
 
            
 
                 Claimant has the burden of proving by a preponderance 
 
            of the evidence that claimant received an injury which arose 
 
            out of and in the course of employment.  The words "out of" 
 
            refer to the cause or source of the injury.  The words "in 
 
            the course of" refer to the time and place and circumstances 
 
            of the injury.  See Cedar Rapids Community Sch. v. Cady, 278 
 
            N.W.2d 298 (Iowa 1979); Crowe v. DeSoto Consol. Sch. Dist., 
 
            246 Iowa 402, 68 N.W.2d 63 (1955).  An employer takes an 
 
            employee subject to any active or dormant health impair
 
            ments, and a work connected injury which more than slightly 
 
            aggravates the condition is considered to be a personal in
 
            jury.  Ziegler v. United States Gypsum Co., 252 Iowa 613, 
 
            620, 106 N.W.2d 591 (1960) and cases cited therein.
 
            
 
                 It is not necessary that claimant prove her disability 
 
            results from a sudden unexpected traumatic event.  It is 
 
            sufficient to show that the disability developed gradually 
 
            or progressively from work activity over a period of time.  
 
            McKeever Custom Cabinets v. Smith, 379 N.W.2d 368 (Iowa 
 
            1985).  The McKeever court also held that the date of injury 
 
            in gradual injury cases is the time when pain prevents the 
 
            employee from continuing to work.  This date is then uti
 
            lized in determining rate and timeliness of the claim.
 
            
 
                 This agency may choose an injury date in cumulative 
 
            trauma cases different than those alleged.  McCoy v. 
 
            Donaldson Co., Inc., Case No. 752670, Appeal Decision filed 
 
            April 28, 1989.
 
            
 
                 In the case sub judice, the most logical injury date 
 
            was when claimant left her employment due to her difficul
 
            ties.  This was on the advice of her physicians.  The date 
 
            alleged in the petition only coincides with an incident of 
 
            treatment was only partially caused by Varitype exposure.
 
            
 
                 II.  Claimant must establish by a preponderance of the 
 
            evidence the extent of weekly benefits for permanent dis
 
            ability to which claimant is entitled.  As the claimant has 
 
            shown that the work injury was a cause of a permanent physi
 
            cal impairment or limitation upon activity involving the 
 
            body as a whole, the degree of permanent disability must be 
 
            measured pursuant to Iowa Code section 85.34(2)(u).  
 
            However, unlike scheduled member disabilities, the degree of 
 
            disability under this provision is not measured solely by 
 

 
            
 
            Page   8
 
            
 
            
 
            
 
            
 
            the extent of a functional impairment or loss of use of a 
 
            body member.  A disability to the body as a whole or an 
 
            "industrial disability" is a loss of earning capacity re
 
            sulting from the work injury.  Diederich v. Tri-City Railway 
 
            Co., 219 Iowa 587, 593, 258 N.W. 899 (1935).  A physical im
 
            pairment or restriction on work activity may or may not 
 
            result in such a loss of earning capacity.  The extent to 
 
            which a work injury and a resulting medical condition has 
 
            resulted in an industrial disability is determined from ex
 
            amination of several factors.  These factors include the 
 
            employee's medical condition prior to the injury, immedi
 
            ately after the injury and presently; the situs of the 
 
            injury, its sevarity and the length of healing period; the 
 
            work experience of the employee prior to the injury, after 
 
            the injury and potential for rehabilitation; the employee's 
 
            qualifications intellectually, emotionally and physically; 
 
            earnings prior and subsequent to the injury; age; education; 
 
            motivation; functional impairment as a result of the injury; 
 
            and inability because of the injury to engage in employment 
 
            for which the employee is fitted.  Loss of earnings caused 
 
            by a job transfer for reasons related to the injury is also 
 
            relevant.  Olson v. Goodyear Service Stores, 255 Iowa 1112, 
 
            1121, 125 N.W.2d 251, 257 (1963).  See Peterson v. Truck 
 
            Haven Cafe, Inc., (Appeal Decision, February 28, l985).
 
            
 
                 In the case sub judice, it was found that claimant has 
 
            suffered a total or 100 percent loss of her earning capacity 
 
            as a result of her work injury.  Based upon such a factual 
 
            finding, claimant is entitled as a matter of law to perma
 
            nent total disability benefits under Iowa Code section 
 
            85.34(3) for an indefinite period of time during the period 
 
            of her disability.  Such benefits would last for life unless 
 
            her condition changes.
 
            
 
                 Given the finding of entitlement to two exemptions; the 
 
            parties' stipulations as to gross earnings; and single 
 
            status, claimant's rate of compensation is $197.35 according 
 
            to the commissioner's rate book for an injury occurring in 
 
            June 1988.
 
            
 
                 III.  Pursuant to Iowa Code section 85.27, claimant is 
 
            entitlement to payment of reasonable medical expenses in
 
            curred for a work injury.  However, claimant is entitled to 
 
            an order of reimbursement only if claimant has paid those 
 
            expenses.  Otherwise, claimant is entitled to only an order 
 
            directing responsible defendants to make such payments.  See 
 
            Krohn v. State, 420 N.W.2d 463 (Iowa 1988).
 
            
 
                 In the case at bar, all expenses are found causally 
 
            connected to the injury and were found to constitute reason
 
            able treatment of the work injury.  All treatment for the 
 
            penicillin reaction was awarded as well as it could not be 
 
            separated from the treatment of the work-related conditions 
 
            received at the same time.  The undersigned believes that 
 
            defendants have the burden of proving an apportionment if 
 
            defendants stand to gain from such an apportionment.  In the 
 
            event of any lack of evidence or means to apportion, the 
 
            defendants cannot prevail.
 
            
 
                 IV.  Claimant asserts a claim for penalty benefits 
 

 
            
 
            Page   9
 
            
 
            
 
            
 
            
 
            under Iowa Code section 86.13, unnumbered paragraph 4, for 
 
            an alleged unreasonable denial of benefits.  The undersigned 
 
            would agree that defendants were walking on thin ice in 
 
            denying the injury given the uncontroverted views of Dr. 
 
            Merchant and a concurring opinion obtained by defendants 
 
            themselves.  However, there was sufficiently confusing 
 
            evidence involving the penicillin reaction and of a possible 
 
            overuse of drugs to make the case fairly debatable.  
 
            Therefore, penalty benefits are denied.
 
            
 
                                      order
 
            
 
                 1.  Defendants shall pay to claimant permanent total 
 
            disability benefits at the rate of one hundred ninety-seven 
 
            and 37/100 dollars ($197.37) from June 24, 1988.
 
            
 
                 2.  Defendants shall pay the medical expenses listed in 
 
            the prehearing report.  Claimant shall be reimbursed for any 
 
            of these expenses paid by her.  Otherwise, defendants shall 
 
            pay the provider directly along with any lawful late payment 
 
            penalty imposed upon claimant by the provider.
 
            
 
                 3.  Defendants shall pay the accrued weekly benefits in 
 
            a lump sum and shall receive credit against this award for 
 
            all benefits previously paid.
 
            
 
                 4.  Defendants shall receive credit for previous 
 
            payments of benefits under a nonoccupational group insurance 
 
            plan, if applicable and appropriate under Iowa Code 
 
            85.38(2), less any tax deductions from those payments and 
 
            attorney's lien.
 
            
 
                 5.  Defendants shall pay interest on weekly benefits 
 
            awarded herein as set forth in Iowa Code section 85.30.
 
            
 
                 6.  Defendants shall pay the costs of this action 
 
            pursuant to rule 343 IAC 4.33, including reimbursement to 
 
            claimant for any filing fee paid in this matter.
 
            
 
                 7.  Defendants shall file an activity report upon 
 
            payment of this award as requested by this agency pursuant 
 
            to rule 343 IAC 3.1.
 
            
 
                 Signed and filed this _______ day of April, 1991.
 
            
 
            
 
            
 
                                     _____________________________
 
                                     LARRY P. WALSHIRE
 
                                     DEPUTY INDUSTRIAL COMMISSIONER
 
            
 
            Copies to:
 
            
 
            Mr Thomas J Currie
 
            Attorney at Law
 
            3401 Williams Blvd SW
 
            P O Box 998
 
            Cedar Rapids IA 52406
 

 
            
 
            Page  10
 
            
 
            
 
            
 
            
 
            
 
            Ms Dorothy L Kelley
 
            Attorney at Law
 
            500 Liberty Bldg
 
            Des Moines IA 50309
 
            
 
            
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                      5-1108; 5-1803
 
                      Filed April 18, 1991
 
                      Larry P. Walshire
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            VERLA KEELING,                :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :      File No. 891809
 
            CEDAR RAPIDS COMMUNITY        :
 
            SCHOOLS,                      :
 
                                          :    A R B I T R A T I O N
 
                 Employer,                :
 
                                          :       D E C I S I O N
 
            and                           :
 
                                          :
 
            CONTINENTAL INSURANCE CO.,    :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
            5-1108
 
            Medical causation.
 
            
 
            5-1803
 
            Extent of disability.