1403.30, 1806, 2209
 
                                               4000.2
 
                                               Filed May 15, 1990
 
                                               MICHAEL G. TRIER
 
            before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            CALVIN PARKER,                :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :         File Nos. 894148
 
            JOHNSRUD TRANSPORT, INC.,     :                   894149
 
                                          :
 
                 Employer,                :      A R B I T R A T I O N
 
                                          :
 
            and                           :         D E C I S I O N
 
                                          :
 
            GREAT WEST CASUALTY CO., and  :
 
            THE HARTFORD,                 :
 
                                          :
 
                 Insurance Carriers,      :
 
                 Defendants.              :
 
            ____________________________________________________________
 
            
 
            1403.30, 1806, 2209
 
            Claimant fell in February, was off three days, and then 
 
            returned to his normal employment activities.  Over the 
 
            following summer, he developed back complaints which 
 
            ultimately became disabling in October.  Two weeks following 
 
            the February injury, the employer changed workers' 
 
            compensation carriers.  Both denied liability for the 
 
            disability which began in October.  The cumulative trauma 
 
            rule was applied together with the normal rule regarding 
 
            burden of proof for apportionment of disability.  The second 
 
            carrier was held entirely responsible for healing period and 
 
            permanent partial disability.
 
            
 
            4000.2
 
            Where the fact of the occurrence of the injury was not a 
 
            subject of a bona fide dispute and was not fairly debatable, 
 
            the second insurance carrier was held responsible for a 50 
 
            percent penalty under 86.13.  No penalty awarded for failure 
 
            to pay permanent partial disability since there was no 
 
            demonstrated reduction in actual earnings following 
 
            claimant's return to work.
 
            
 
 
            
 
            Page   1
 
            
 
            
 
            
 
            
 
            
 
            
 
            
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            CALVIN PARKER,                :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :         File Nos. 894148
 
            JOHNSRUD TRANSPORT, INC.,     :                   894149
 
                                          :
 
                 Employer,                :      A R B I T R A T I O N
 
                                          :
 
            and                           :         D E C I S I O N
 
                                          :
 
            GREAT WEST CASUALTY CO., and  :
 
            THE HARTFORD,                 :
 
                                          :
 
                 Insurance Carriers,      :
 
                 Defendants.              :
 
            ____________________________________________________________
 
            
 
                              statement of the case
 
            
 
                 This decision concerns two proceedings in arbitration 
 
            brought by Calvin Parker against his former employer, 
 
            Johnsrud Transport, Inc., and two of its successive workers' 
 
            compensation insurance carriers.  File number 894149 deals 
 
            with an alleged injury of February 5, 1988 while file number 
 
            894148 deals with an alleged injury of October 28, 1988.  
 
            With regard to the claims considered in this decision, The 
 
            Hartford provided insurance coverage until February 19, 
 
            1988, and thereafter Great West Casualty Company insured the 
 
            employer.
 
            
 
                 The case was heard and fully submitted at Des Moines, 
 
            Iowa on November 30, 1989.  The record in the proceeding 
 
            consists of testimony from the claimant, Delmar Calvin 
 
            Parker, Terry Keithline, David Probasco, Dale Tupy and Mike 
 
            Williams.  The record contains lay exhibits A through J, 
 
            medical exhibits A through I, and joint exhibits 1 through 
 
            12.
 
            
 
                                      issues
 
            
 
                 Claimant seeks compensation for healing period, 
 
            permanent partial disability and payment of medical 
 
            expenses.  The issues to be determined include:  whether 
 
            claimant sustained an injury on February 5, 1988 or October 
 
            28, 1988 or on both dates which arose out of and in the 
 
            course of employment; determination of claimant's 
 
            entitlement to compensation for healing period and permanent 
 
            partial disability resulting from each of the alleged 
 
            injuries; and, determination of claimant's entitlement to 
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            
 
            
 
            
 
            payment of medical expenses under Code section 85.27 in 
 
            relation to each injury.  There is a dispute with regard to 
 
            which of the two insurance carriers is responsible for 
 
            paying any compensation or medical expenses which might be 
 
            awarded.  Claimant also seeks additional compensation under 
 
            the fourth unnumbered paragraph of Code section 86.13 for 
 
            the unreasonable denial of compensation.  Both carriers have 
 
            declined to pay any weekly compensation to claimant.  The 
 
            rate of compensation is likewise disputed.  It was 
 
            stipulated, however, that claimant was married with four 
 
            exemptions at the time of the alleged February injury and 
 
            with five exemptions at the time of the alleged October 
 
            injury.  The dispute regarding section 85.27 benefits is 
 
            based upon liability and causal connection.  The total 
 
            sought by claimant is $1,238.40 as listed in his attachment 
 
            to the prehearing report.
 
            
 
                                 findings of fact
 
            
 
                 Delmar Calvin Parker is a 52-year-old married man who 
 
            was employed by Donco Transportation at Des Moines, Iowa at 
 
            the time of hearing.  He works as a truck driver in the 
 
            states of Michigan, Illinois, Missouri and Minnesota.  He 
 
            frequently makes runs to St. Louis, Kansas City, Omaha and 
 
            Minneapolis which are normally completed in one day.  Parker 
 
            is a 1956 high school graduate who took some courses to 
 
            become a pilot in the early 1960's, but did not become 
 
            certified.
 
            
 
                 Following high school, Parker farmed, operated heavy 
 
            equipment, owned and operated a bar and cafe and worked as a 
 
            lumberjack.
 
            
 
                 In 1986, Parker began driving for Johnsrud Transport, 
 
            Inc.  He performed long distance, over-the-road driving 
 
            throughout much of the United States.  He transported 
 
            liquids and was normally away from home for periods ranging 
 
            from one to three weeks at a time.  He estimated, however, 
 
            that he drives approximately as many miles now with Donco as 
 
            he did with Johnsrud.
 
            
 
                 Parker stated that, prior to working for Johnsrud, he 
 
            had been in good health and never had any back problems, 
 
            despite the fact that some of his prior employments had been 
 
            physically demanding.
 
            
 
                 Parker testified that on, February 5, 1988, while 
 
            unloading in Chicago, Illinois, he fell, landing on his butt 
 
            with the metal end of the large hose used to unload the 
 
            fluid from the tanker trailer smashing into his groin.  
 
            Parker reported the incident to the dispatcher, but was 
 
            assigned to haul a load to Arkansas.  When he returned to 
 
            Des Moines on February 8, 1988, he was treated at the Mercy 
 
            Medical Clinic and taken off work until February 11, 1988.  
 
            The condition was diagnosed as a groin strain (exhibit 1, 
 
            pages 1 and 2; medical exhibit B, pages 8 and 9).  Based 
 
            upon those records, it is found that Parker was off work on 
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            
 
            
 
            
 
            February 8, 9 and 10, 1988, a period of three days, and then 
 
            returned to work on February 11, 1988.  Parker's testimony 
 
            regarding the events which occurred on February 5, 1988 is 
 
            corroborated by the prompt reporting of the incident to the 
 
            dispatcher and medical records.  It is therefore found that 
 
            claimant was injured in a fall on February 5, 1988 in the 
 
            manner in which he described.
 
            
 
                 After returning to work, Parker resumed his normal 
 
            duties and did not miss any work due to injuries until 
 
            September, 1988 when he was off work for approximately three 
 
            weeks due to an ulcer condition.
 
            
 
                 Claimant stated that initially following the February 
 
            injury his pain was in the groin region and made his entire 
 
            body hurt.  He stated that during the spring and summer of 
 
            1988 his back problems gradually developed.  According to 
 
            Dale Tupy, claimant's complaints, which were made within a 
 
            month following the February 5 incident, consisted of groin 
 
            pain, not back pain.
 
            
 
                 Parker stated that when he returned to work following 
 
            being off for the ulcer, he was assigned to a truck which 
 
            had a rougher ride than the one which he had previously 
 
            driven.  He complained to Dale Tupy about the rough ride of 
 
            the truck.  Tupy stated that he could not recall any 
 
            complaint of back pain, but that he did tell claimant that 
 
            any request for medical treatment had to be processed 
 
            through Mike Williams, the Johnsrud human resources manager.  
 
            Williams acknowledged that he met with claimant in October, 
 
            1988 at which time claimant requested medical attention for 
 
            his back.
 
            
 
                 On October 29, 1988, claimant was seen at the Iowa 
 
            Methodist Medical Center emergency room for back pain.  The 
 
            history given was that it started with a fall which occurred 
 
            on the job last spring and had been progressive.  The 
 
            records indicate that claimant attributed the pain in part 
 
            to driving a truck with an uneven seat and poor springs.  
 
            Parker was taken off work at that time (exhibit 3, pages 1 
 
            and 4; exhibit 2, page 1; medical exhibit D, pages 11, 12 
 
            and 15).
 
            
 
                 Thereafter, Parker entered into a course of medical 
 
            treatment, initially with Des Moines orthopaedic surgeon 
 
            Ronald K. Bunten, M.D., and subsequently with Des Moines 
 
            orthopaedic surgeon William R. Boulden, M.D.  Both 
 
            physicians diagnosed multi-level degenerative disc disease 
 
            and felt that no surgery was currently warranted.  On 
 
            November 14, 1988, Dr. Bunten indicated that, if claimant 
 
            could obtain a better seat in the truck, he could return to 
 
            work within a few weeks.  On December 30, 1988, Dr. Bunten 
 
            recommended that it would be advisable for claimant to seek 
 
            work other than driving a truck (exhibit 4, pages 1, 2 and 
 
            4; medical exhibit E, pages 21, 22 and 23).
 
            
 
                 Dr. Boulden evaluated claimant on March 7, 1989.  He 
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
            
 
            
 
            
 
            placed claimant into a course of therapy and exercise 
 
            treatment at the Manual Therapy Center.  Claimant showed 
 
            improvement, though not complete resolution of his symptoms 
 
            (exhibit 11, pages 8 and 9).  Dr. Boulden felt that 
 
            claimant's pain was from degenerative changes in his spine 
 
            which were of longstanding origin and that neither the fall 
 
            of February 5, 1988 nor the cumulative trauma of driving a 
 
            truck had accelerated the degenerative process (exhibit 11, 
 
            pages 7 and 16-18).  He stated that the condition was 
 
            congenital and would have degenerated regardless of 
 
            claimant's occupation, but that the slip and fall and 
 
            driving had caused the condition to become more symptomatic 
 
            (exhibit 11, pages 11, 12 and 16-18).  Dr. Boulden related 
 
            the symptoms to both the fall and the ensuing driving 
 
            (exhibit 11, pages 18 and 19).  Dr. Boulden rated claimant 
 
            as having a 10 percent permanent impairment based upon the 
 
            degenerative changes and the fact that they were 
 
            symptomatic.  He apportioned that 10 percent disability, 5 
 
            percent to the preexisting condition and 5 percent to the 
 
            traumas sustained with Johnsrud Transport (exhibit 11, pages 
 
            10, 18-20 and 25).  Dr. Bunten had also rated claimant as 
 
            having a 10 percent permanent impairment of the body.  He 
 
            felt, however, that the injury of February 5, 1988 had 
 
            precipitated the symptoms and was the significant event 
 
            while the subsequent cumulative trauma was merely an 
 
            aggravation of a preexisting condition (exhibit 4, page 5; 
 
            medical exhibit E, page 24).
 
            
 
                 Dr. Boulden reported on October 16, 1989 that the 
 
            continued truck driving performed in 1988 caused claimant's 
 
            symptoms (exhibit 5, page 5).  Dr. Boulden has stated that 
 
            claimant is not disabled from working, only from long 
 
            distance truck driving (exhibit 5, page 4).  Dr. Bunten did 
 
            not disagree with that assessment (exhibit 4, page 5).
 
            
 
                 Dr. Boulden reported that claimant had reached maximum 
 
            medical improvement on April 18, 1989.  On May 10, 1989, he 
 
            gave claimant an unrestricted release to return to work at 
 
            claimant's request (exhibit 11, pages 10 and 12).
 
            
 
                 While working for Johnsrud, claimant was paid by the 
 
            mile.  Initially, $.03 per mile of the total was deemed by 
 
            the employer to be a "per diem allowance" for expenses.  
 
            Later, that allowance was changed to $.04 per mile without 
 
            changing the amount of the total mileage payment (exhibit 7, 
 
            page 62).  Other records commonly show the pay being 
 
            computed at a fixed rate per mile without any reference to 
 
            any part of it being an allowance for expenses (exhibit 7, 
 
            pages 69 and 135).  The employer's records show claimant's 
 
            total earnings, including the amount treated by the employer 
 
            as a "per diem allowance" to have been $4,819.36 or an 
 
            average of $370.72 for the 13 weeks that claimant actually 
 
            worked preceding the week which included February 5, 1988.  
 
            The records show that claimant's total earnings during the 
 

 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
            
 
            
 
            
 
            13 weeks that he actually worked preceding the week which 
 
            included October 28, 1988 averaged $417.56 (exhibit 9, page 
 
            3).  It is found that the amount termed by the employer as a 
 
            "per diem allowance" was based upon the miles the driver 
 
            traveled, rather than the number of meals consumed or any 
 
            other relationship to actual expenses.  The term "per diem" 
 
            normally refers to a daily expense allowance, rather than an 
 
            allowance based upon the amount of work performed by the 
 
            employee.  The "per diem" method used in this case by the 
 
            employer would have provided nothing to an employee for 
 
            layover days or days spent while waiting for loads, but 
 
            would have provided a large amount on those days where the 
 
            driver traveled a relatively large number of miles, even 
 
            though it might have been performed in only one day.
 
            
 
                 Claimant's medical records show him to have made some 
 
            upper back complaints in August, 1987, and to have had leg 
 
            injuries in July, 1987 and May, 1988 (medical exhibit G, 
 
            pages 28 and 29).  The records show claimant to have made 
 
            complaints of low back pain on August 30, 1988 and to have 
 
            been taken off work for two days with a severe back strain 
 
            on September 26, 1988 (medical exhibit G, pages 30 and 31).  
 
            Claimant was involved in an apparently minor accident on 
 
            June 4, 1988 (exhibit 7, page 58).
 
            
 
                 Based on the evidence in the record of the case, it is 
 
            found that claimant's back symptoms did not commence 
 
            immediately following the February 5, 1988 injury, but did 
 
            come on gradually over the following spring and summer.  It 
 
            is further found that in those few instances where Drs. 
 
            Bunten and Boulden disagree, Dr. Boulden's assessment is 
 
            accepted as being correct due to his more extensive and more 
 
            recent involvement in the case.  In particular, his 
 
            assessment that the continued driving in 1988 caused the 
 
            symptoms as reported on October 16, 1989 is found to be 
 
            correct rather than the contrary assessment from Dr. Bunten.
 
            
 
                 The medical expenses claimant seeks to recover as shown 
 
            in exhibit 6 are as follows:
 
            
 
                 Central Iowa Orthopaedics
 
                              03-07-89                    $  100.00
 
                              03-28-89                        30.00
 
                              04-18-89                        30.00
 
                 Total                                    $  160.00
 
            
 
                 J. M. Cunningham, D.O.
 
                              11-17-88                    $   20.00
 
            
 
                 Iowa Methodist Medical Center
 
                              10-29-88                    $  107.05
 
                              11-09-88                       467.85
 
                 Total                                    $  574.90
 
            
 

 
            
 
            Page   6
 
            
 
            
 
            
 
            
 
            
 
            
 
            
 
                 Radiology P.C.
 
                              11-09-88                    $   75.00
 
            
 
                 Des Moines Orthopaedic Surgeons, P.C.
 
                              11-09-88                    $   60.00
 
                              12-30-88                        32.00
 
                 Total                                    $   92.00
 
            
 
                 Grand Total                              $  921.90
 
            
 
                 The record contains a bill for each of the claimed 
 
            expenses, except Manual Therapy Center, to corroborate the 
 
            claimed expenses listed by claimant as part of the 
 
            prehearing report.
 
            
 
                                conclusions of law
 
            
 
                 Claimant has the burden of proving by a preponderance 
 
            of the evidence that he received injuries on February 5, 
 
            1988 and October 28, 1988 which arose out of and in the 
 
            course of his employment. McDowell v. Town of Clarksville, 
 
            241 N.W.2d 904 (Iowa 1976); Musselman v. Central Telephone 
 
            Co., 261 Iowa 352, 154 N.W.2d 128 (1967). 
 
            
 
                 Aggravation of a preexisting condition is one form of 
 
            compensable injury.  While a claimant is not entitled to 
 
            compensation for the results of a preexisting injury or 
 
            disease, the mere existence at the time of a subsequent 
 
            injury is not a defense.  Rose v. John Deere Ottumwa Works, 
 
            247 Iowa 900, 908, 76 N.W.2d 756, 760-61 (1956).  If the 
 
            claimant had a preexisting condition or disability that is 
 
            aggravated, accelerated, worsened or lighted up so that it 
 
            results in disability, claimant is entitled to recover.  
 
            Nicks v. Davenport Produce Co., 254 Iowa 130, 115 N.W.2d 
 
            812, 815 (1962).
 
            
 
                 Claimant's testimony regarding falling on February 5, 
 
            1988 having been accepted as correct, it is therefore 
 
            concluded that Calvin Parker sustained an injury on that 
 
            date which arose out of and in the course of his employment.  
 
            The same is true regarding the injury occurring through the 
 
            cumulative trauma of driving during the spring and summer of 
 
            1988 culminating with disability commencing on October 29, 
 
            1988.  It is therefore concluded that claimant sustained an 
 
            injury which arose out of and in the course of his 
 
            employment on October 28, 1988.  Both injuries were in the 
 
            nature of an aggravation of a preexisting condition.
 
            
 
                 The claimant has the burden of proving by a 
 
            preponderance of the evidence that the injury is the cause 
 
            of disability on which he now bases his claim.  Bodish v. 
 
            Fischer, Inc., 257 Iowa 516, 133 N.W.2d 867 (1965).  Lindahl 
 
            v. L. O. Boggs, 236 Iowa 296, 18 N.W.2d 607 (1945).  A 
 
            possibility is insufficient; a probability is necessary.  
 
            Burt v. John Deere Waterloo Tractor Works, 247 Iowa 691, 
 
            73 N.W.2d 732 (1955).  The question of causal connection is 
 
            essentially within the domain of expert testimony.  Bradshaw 
 

 
            
 
            Page   7
 
            
 
            
 
            
 
            
 
            
 
            
 
            
 
            v. Iowa Methodist Hospital, 251 Iowa 375, 101 N.W.2d 167 
 
            (1960). 
 
            
 
                 A cause is proximate if it is a substantial factor in 
 
            bringing about the result.  It need not be the only cause.  
 
            Blacksmith v. All-American, Inc., 290 N.W.2d 348, 354 (Iowa 
 
            1980).
 
            
 
                 Under the cumulative trauma rule, the date of injury is 
 
            the date that disability commences and the employer who 
 
            employs the employee on that date is the one responsible for 
 
            payment of compensation for disability resulting from that 
 
            cumulative trauma injury.  McKeever Custom Cabinets v. 
 
            Smith, 379 N.W.2d 368 (Iowa 1985).
 
            
 
                 A claimant is not charged with a burden of proof as to 
 
            the actual apportionment of damages or disability in an 
 
            aggravation case.  Any burden of that nature is placed upon 
 
            the party standing to gain by litigating the apportionment 
 
            issue.  If the evidence does not provide a basis for 
 
            apportionment, the defendant is responsible for all of the 
 
            disability.  Varied Enterprises v. Sumner, 353 N.W.2d 407 
 
            (Iowa 1984); Becker v. D & E Distributing Co., 247 N.W.2d 
 
            727, 731 (Iowa 1976).
 
            
 
                 As Dr. Boulden noted, even though there may be a 
 
            physical defect, there is no disability and no basis for 
 
            imposing an impairment rating until the condition is in some 
 
            manner symptomatic.  The existence of an asymptomatic 
 
            anatomical defect is not disabling until the symptoms limit 
 
            the individual's ability to perform activities.  When 
 
            symptoms are not corroborated by the existence of a physical 
 
            defect or abnormality, they do not generally support an 
 
            award for disability benefits.  When symptoms are justified 
 
            by a demonstrated physical abnormality, a change in 
 
            symptomatology can support an award for disability.
 
            
 
                 If claimant has an impairment to the body as a whole, 
 
            an industrial disability has been sustained.  Industrial 
 
            disability was defined in Diederich v. Tri-City Railway Co., 
 
            219 Iowa 587, 593, 258 N.W.2d 899, 902 (1935) as follows: 
 
            "It is therefore plain that the legislature intended the 
 
            term `disability' to mean `industrial disability' or loss of 
 
            earning capacity and not a mere `functional disability' to 
 
            be computed in the terms of percentages of the total 
 
            physical and mental ability of a normal man."
 
            
 
                 Functional impairment is an element to be considered in 
 
            determining industrial disability which is the reduction of 
 
            earning capacity, but consideration must also be given to 
 
            the injured employee's age, education, qualifications, 
 
            experience and inability to engage in employment for which 
 
            he is fitted.  Olson v. Goodyear Service Stores, 255 Iowa 
 
            1112, 1121, 125 N.W.2d 251, 257 (1963).
 
            
 
                 In this case, Calvin Parker has a longstanding, 
 
            preexisting degenerative condition, the nature of which has 
 

 
            
 
            Page   8
 
            
 
            
 
            
 
            
 
            
 
            
 
            
 
            not been altered by either work injury, other than by 
 
            causing the onset of symptoms.  As a result of those 
 
            symptoms, both Drs. Boulden and Bunten have recommended that 
 
            claimant refrain from performing the long distance truck 
 
            driving which he had performed for Johnsrud Transport.  
 
            Because of the onset of symptoms, Dr. Boulden has provided 
 
            an impairment rating.  The record does not disclose whether 
 
            or not Dr. Bunten follows the same requirement for 
 
            symptomatology as Dr. Boulden before assigning an impairment 
 
            rating.  Calvin Parker now has an impairment rating and a 
 
            recommendation from his physicians that he avoid long 
 
            distance truck driving.  He has not demonstrated a 
 
            substantial reduction in actual earnings due to the change 
 
            in the nature of his work.  In fact, his rate per mile has 
 
            increased and according to his testimony, he drives 
 
            approximately the same number of miles now as he did with 
 
            Johnsrud.  The record supports a modest award of permanent 
 
            partial disability compensation in view of the elimination 
 
            of over-the-road truck driving as one of the means of 
 
            livelihood available to the claimant.
 
            
 
                 When all material factors of industrial disability are 
 
            considered, it is determined that Calvin Parker has a 10 
 
            percent permanent partial disability as a result of his work 
 
            injuries sustained while employed by Johnsrud Transport, in 
 
            particular, the injuries of February 5, 1988 and October 28, 
 
            1988.
 
            
 
                 When the normal rules dealing with apportionment of 
 
            disability are applied, it is determined that the injury of 
 
            October 28, 1988 is a proximate cause of the permanent 
 
            disability.  Claimant had been symptom-free prior to the 
 
            first injury.  The back complaints did not come on until 
 
            some point in time after the February injury had occurred.  
 
            They came on only after claimant engaged in continued 
 
            driving.  They became disabling only after he was assigned 
 
            the rough-riding truck.  For these reasons, it is determined 
 
            that as between the employer's two insurance carriers, Great 
 
            West Casualty Company is solely responsible for payment of 
 
            the permanent partial disability compensation award.
 
            
 
                 It having been determined that all permanent partial 
 
            disability resulted from the second injury, claimant's 
 
            weekly compensation entitlement for the February 5, 1988 is 
 
            properly characterized as temporary total disability under 
 
            Iowa Code section 85.31.  For such injuries, compensation 
 
            begins on the fourth day of disability after the injury, 
 
            unless the incapacity extends beyond 14 days.  Iowa Code 
 
            section 85.32.  It is therefore concluded that claimant is 
 
            not entitled to recover any weekly compensation based upon 
 
            the February 5, 1988 injury.
 
            
 
                 With regard to the October 28, 1988 injury, claimant 
 
            was taken off work when he sought medical treatment on 
 
            October 29, 1988 and remained off work under appropriate 
 
            medical care until May 10, 1989 when Dr. Boulden issued a 
 

 
            
 
            Page   9
 
            
 
            
 
            
 
            
 
            
 
            
 
            
 
            release.  Dr. Boulden had reported earlier, however, that 
 
            claimant had reached maximum medical improvement on April 
 
            18, 1989.  That date fixes the end of claimant's entitlement 
 
            to healing period compensation under Code section 85.34(1).  
 
            The entitlement to healing period compensation is 24 and 4/7 
 
            weeks.  The 50 weeks of compensation for permanent partial 
 
            disability are therefore payable commencing April 19, 1989.
 
            
 
                 As between the two insurance carriers, Great West 
 
            Casualty Company is responsible for payment of all healing 
 
            period compensation.
 
            
 
                 The medical expenses were all incurred for treatment of 
 
            claimant's back condition.  The employer has been held 
 
            liable for that condition and is therefore responsible for 
 
            payment of the medical expenses totalling $921.90 as shown 
 
            in exhibit 6.  Since these expenses were all incurred 
 
            subsequent to the date of injury for the October injury, 
 
            Great West Casualty Company is responsible for their payment 
 
            as between the two insurance carriers.
 
            
 
                 Claimant seeks to recover additional compensation under 
 
            the fourth unnumbered paragraph of Code section 86.13.  
 
            Chapter 85 of The Code makes employers responsible for 
 
            payment of compensation for all injuries which arise out of 
 
            and in the course of employment.  Chapter 87 requires all 
 
            employers to carry liability insurance, or qualify as a 
 
            self-insured, in order to guarantee sufficient solvency to 
 
            pay the weekly benefits as the same come due under Chapter 
 
            85.  As no weekly compensation was awarded for the February 
 
            5, 1988 injury, there is no need to discuss the 
 
            reasonableness of the denial of payment of compensation for 
 
            that injury.  The October 28, 1988 injury, however, produced 
 
            an extended period of healing period and some permanent 
 
            disability.  A dispute between which of an employer's two 
 
            insurance carriers is liable is not a lawful defense to a 
 
            claim for benefits under Chapter 85.  In fact, section 85.21 
 
            provides a method by which such disputes can be properly 
 
            litigated and determined without delaying or denying an 
 
            otherwise valid claim for workers' compensation benefits.  
 
            There is no requirement for any insurance carrier to make 
 
            use of section 85.21.  But, when the only bona fide, 
 
            justiciable dispute in a case is to determine which of an 
 
            employer's two carriers is responsible for paying, it is 
 
            very appropriate to make use of section 85.21.  The law 
 
            places the liability for payment on the employer.  The 
 
            primary roles of the insurer are to act as the employer's 
 
            representative for administering and paying the claim as 
 
            well as a guarantee of solvency.  When the only bona fide 
 
            dispute in a case is that of which of an employer's two 
 
            carriers is liable for payment, it is a classic, textbook 
 
            example of a situation in which the imposition of a penalty 
 
            under section 86.13(4) is fully warranted.  Failure to pay a 
 
            claim is unreasonable unless the validity of the claim is 
 

 
            
 
            Page  10
 
            
 
            
 
            
 
            
 
            
 
            
 
            
 
            fairly debatable.  Dolan v. Aid Ins. Co., 431 N.W.2d 790 
 
            (Iowa 1988); Kimberly-Clark Corp. v. Labor & Indus. Review 
 
            Comm'n, 405 N.W.2d 685 (Wisc. App. 1987); Anderson v. 
 
            Continental Ins. Co., 271 N.W.2d 368, 376 (Wisc. 1978).  In 
 
            this case, there was no reasonable basis for denying Calvin 
 
            Parker's claim for healing period compensation following the 
 
            October 28, 1988 injury.  An additional 12 weeks of 
 
            compensation is therefore awarded for the unreasonable 
 
            denial of the claim.  Since Great West was held liable for 
 
            payment of that healing period compensation, it is also 
 
            liable for payment of the 12-week penalty.  The issue of 
 
            permanency is different, however.  Dr. Boulden released 
 
            claimant to return to work without restrictions.  Claimant 
 
            had a preexisting condition and the type of work he has 
 
            reentered is quite similar to that he performed prior to the 
 
            injury.  There is no showing that his actual earnings have 
 
            decreased significantly as a result of the injury.  Whether 
 
            or not any permanent industrial disability had resulted was 
 
            fairly debatable and no penalty is warranted for the failure 
 
            to pay permanent partial disability compensation 
 
            voluntarily.
 
            The final issue for determination is the rate of 
 
            compensation.  Parker's total average weekly earnings were 
 
            previously found to be $417.56 for the 13 weeks that he 
 
            actually worked prior to the date of injury.  The use of the 
 
            term "per diem" by an employer does not establish that the 
 
            payment is actually reimbursement of expenses or an expense 
 
            allowance under section 85.61(12).  The evidence in this 
 
            case clearly shows that the so-called "per diem" payment was 
 
            not in any manner related to actual expenses.  In fact, the 
 
            amount classified as "per diem" could be the greatest on 
 
            those days when the actual expenses incurred were the least.  
 
            Widdig v. Lincoln Sales & Serv. Inc., file number 851716 
 
            (Arb decn., July 20, 1989); Minnick v. CRST, Inc., file 
 
            number 865832 (Arb. decn., December 21, 1989).  In this 
 
            case, it is concluded that claimant's earnings included the 
 
            amount classified as "per diem" by the employer.  It was 
 
            stipulated that he was married with five exemptions.  The 
 
            rate of compensation is therefore $275.36 per week.
 
            
 
                                      order
 
            
 
                 IT IS THEREFORE ORDERED that Johnsrud Transport, Inc., 
 
            and Great West Casualty Company pay Calvin Parker 
 
            twenty-four and four-sevenths (24 and 4/7) weeks of 
 
            compensation for healing period at the rate of two hundred 
 
            seventy-five and 36/100 dollars ($275.36) per week 
 
            commencing October 29, 1988.
 
            
 
                 IT IS FURTHER ORDERED that Johnsrud Transport, Inc., 
 
            and Great West Casualty Company pay Calvin Parker fifty (50) 
 
            weeks of compensation for permanent partial disability at 
 
            the rate of two hundred seventy-five and 36/100 dollars 
 
            ($275.36) per week commencing April 19, 1989.
 

 
            
 
            Page  11
 
            
 
            
 
            
 
            
 
            
 
            
 
            
 
            
 
                 IT IS FURTHER ORDERED that Johnsrud Transport, Inc., 
 
            and Great West Casualty Company pay the entire amount of the 
 
            foregoing award in a lump sum, as it is all accrued, 
 
            together with interest computed at the rate of ten percent 
 
            (10%) per annum from the date each weekly payment came due 
 
            until the date of actual payment in accordance with Iowa 
 
            Code section 85.30.
 
            
 
                 IT IS FURTHER ORDERED that Johnsrud Transport, Inc., 
 
            and Great West Casualty Company pay three thousand three 
 
            hundred four and 32/100 dollars ($3,304.32) to claimant in a 
 
            lump sum, payable on the date of this decision representing 
 
            twelve (12) weeks of compensation payable as a penalty under 
 
            the fourth unnumbered paragraph of Iowa Code section 86.13.
 
            
 
                 IT IS FURTHER ORDERED that Johnsrud Transport, Inc., 
 
            and Great West Casualty Company pay the following medical 
 
            expenses:
 
            
 
                 Central Iowa Orthopaedics                $ 160.00
 
                 J. M. Cunningham, D.O.                      20.00
 
                 Iowa Methodist Medical Center              574.90
 
                 Radiology P.C.                              75.00
 
                 Des Moines Orthopaedic Surgeons, P.C.       92.00
 
                       Total                              $ 921.90
 
            
 
                 IT IS FURTHER ORDERED that defendants Johnsrud 
 
            Transport, Inc., and Great West Casualty Company pay the 
 
            costs of the proceeding in file number 894148 and that 
 
            Johnsrud Transport, Inc., and The Hartford pay the costs of 
 
            the proceeding in file number 894149, all pursuant to 
 
            Division of Industrial Services Rule 343-4.33.
 
            
 
                 IT IS FURTHER ORDERED that Johnsrud Transport, Inc., 
 
            and Great West Casualty Company file claim activity reports 
 
            as requested by this agency pursuant to Division of 
 
            Industrial Services Rule 343-3.1.
 
            
 
                 Signed and filed this ______ day of ____________, 1990.
 
            
 
                 
 
            
 
                 
 
                 
 
                                          ______________________________
 
                                          MICHAEL G. TRIER
 
                                          DEPUTY INDUSTRIAL COMMISSIONER
 

 
            
 
            Page  12
 
            
 
            
 
            
 
            
 
            
 
            
 
            
 
            
 
            Copies To:
 
            
 
            Mr. Steven C. Jayne
 
            Attorney at Law
 
            5835 Grand Avenue
 
            Suite 201
 
            Des Moines, Iowa  50312
 
            
 
            Mr. Stephen W. Spencer
 
            Attorney at Law
 
            Suite 300, Fleming Building
 
            P.O. Box 9130
 
            Des Moines, Iowa  50306-9130
 
            
 
            Mr. Marvin E. Duckworth
 
            Mr. Jeff M. Margolin
 
            Attorneys at Law
 
            Suite 111, Terrace Center
 
            2700 Grand Avenue
 
            Des Moines, Iowa  50312
 
            
 
            
 
            
 
 
            
 
            Page   1
 
            
 
            
 
            
 
            
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            CHERYL CHRIS BURGESS, a/k/a   :
 
            CHRIS BURGESS,                :
 
                                          :
 
                 Claimant,                :
 
                                          :        File No. 894169
 
            vs.                           :
 
                                          :     A R B I T R A T I O N
 
            FARMLAND FOODS, INC.,         :
 
                                          :        D E C I S I O N
 
                 Employer,                :
 
                                          :
 
            and                           :
 
                                          :
 
            AETNA CASUALTY & SURETY       :
 
            COMPANY,                      :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
                              statement of the case
 
            
 
                 This is a proceeding in arbitration brought by Cheryl 
 
            Christine Burgess, claimant, against Farmland Foods, 
 
            employer, and Aetna Casualty and Surety Company, insurance 
 
            carrier, to recover benefits under the Iowa Workers' 
 
            Compensation Act as a result of an alleged injury sustained 
 
            on or about November 11, 1988.  This matter came on for 
 
            hearing before the undersigned deputy industrial 
 
            commissioner on October 15, 1990.  The record was considered 
 
            fully submitted at the close of the hearing, although leave 
 
            was granted for the parties to file briefs.
 
            
 
                 The record in this case consists of the testimony of 
 
            the claimant, Scott Burgess, Jack McQuarter, Wayne Bush, 
 
            Katie Hanigan, Denise Sonnichsen, and Tami Walker.  
 
            Defendants lodged an objection to witness Jack McQuarter's 
 
            testimony.  The objection is based upon claimant's lack of 
 
            supplemental answers 30 days prior to hearing to defendants' 
 
            interrogatory which asked to identify witness with knowledge 
 
            of claimant's injury.  Claimant did list witness Jack 
 
            McQuarter on the witness list which was served on defendants 
 
            15 days prior to hearing, as required by the Hearing 
 
            Assignment Order.  His testimony is allowed.  Defendants 
 
            also objected to claimant's exhibits B, C, D, E, K, and 
 
            portions of exhibit H.  The objection is based on claimant's 
 
            failure to provide defendants copies of the exhibits, as 
 
            required by the Hearing Assignment Order.  The objection is 
 
            sustained, and these exhibits were not considered.  
 
            Claimant's objections to defendants' exhibits 1 through 5, 
 
            are overruled.
 
            
 
                                      issues
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            
 
                 Pursuant to the prehearing report and order approved 
 
            October 15, 1990, the following issues are presented for 
 
            resolution:
 
            
 
                 1.  Whether claimant sustained an injury which 
 
                 arose out of and in the course of her employment;
 
            
 
                 2.  Whether there is a causal connection between 
 
                 the alleged injury and the disability;
 
            
 
                 3.  Whether claimant is entitled to temporary 
 
                 disability/healing period benefits or permanent 
 
                 partial or total disability benefits; 
 
            
 
                 4.  Whether claimant is entitled to medical 
 
                 benefits under Iowa Code section 85.27;
 
            
 
                 5.  Whether defendants are entitled to a credit 
 
                 under Iowa Code section 85.38(2);
 
            
 
                 6.  Whether defendants are entitled to recover 
 
                 costs for preparation of a motion to compel 
 
                 discovery totaling $100.00.
 
            
 
                                 findings of fact
 
            
 
                 The undersigned deputy industrial commissioner, having 
 
            heard the testimony and considered all the evidence, finds 
 
            that:
 
            
 
                 Claimant, Cheryl Chris Burgess, began working for 
 
            defendant Farmland Foods in mid-1975.  In 1977, she moved to 
 
            California, but returned to Iowa, and to her employment with 
 
            Farmland Foods in 1978, where she was a secretary to the 
 
            research and development manager.  Ross Jabaay was her 
 
            supervisor.
 
            
 
                 In 1982, claimant transferred to a job as a data entry 
 
            operator, and continued to work in this position for more 
 
            than 3 years.  She then transferred to a secretarial 
 
            position in the technical services department, where her 
 
            supervisor was Wayne Bush.  Eventually, she became an 
 
            administrative assistant for the department.
 
            
 
                 In 1986, Farmland underwent a major reorganization, 
 
            which resulted in a large reduction of staff.  Claimant's 
 
            job was re-classified by Dr. Bush as a part-time position, 
 
            but she continued to full-time by adding responsibilities 
 
            from other departments.
 
            
 
                 Claimant continued to work under this arrangement will 
 
            November 10, 1988, when she took a leave of absence.  She 
 
            has not returned to work, other than some self-employment 
 
            activities which involve making dried flower arrangements 
 
            and selling them through a store in Denison, Iowa.
 
            
 
                 Claimant's claim is based on her employment environment 
 
            from 1986 through November 10, 1988, when she was under the 
 
            supervision of Wayne Bush.  During this time, claimant 
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            became depressed over what she described as stressful 
 
            working conditions.  Claimant testified that on many 
 
            occasions, her job duties demanded her to work overtime 
 
            hours, and although Dr. Bush rarely authorized these hours, 
 
            overtime work she performed for other departments was 
 
            approved.  Claimant felt she was given more 
 
            responsibilities, but not enough time to complete her job 
 
            duties without working overtime hours.
 
            
 
                 During the time claimant was under Dr. Bush's 
 
            supervision, she on several occasions attempted to change 
 
            jobs within the company.  Dr. Bush was concerned about her 
 
            repeated attempts to leave his department, but did not 
 
            reprimand her in any way.  Claimant was also given a 
 
            performance evaluation on January 25, 1988 by Dr. Bush.  
 
            Both agreed it was a good, if not an excellent, evaluation, 
 
            and claimant was given a raise based on her performance and 
 
            longevity with the company.
 
            
 
                 In January 1987, every person on staff was asked to 
 
            fill out a position questionnaire that described their daily 
 
            job responsibilities and duties, and long term goals.  These 
 
            questionnaires were sent to an independent evaluating 
 
            company, which subsequently "graded" each position.  Dr. 
 
            Bush reviewed claimant's submitted questionnaire, and felt 
 
            it accurately reflected her position, which was given a 
 
            grade 21.
 
            
 
                 Eventually, claimant applied for a position as 
 
            secretary to Jake Jacoby, but did not get the job.  On 
 
            November 10, 1988, she expressed to Dr. Bush that the 
 
            position with Jacoby was probably at least a grade 23 to 25.  
 
            Claimant also stated that she was very unhappy with the 
 
            grade 21 assigned to her position.
 
            
 
                 Claimant manifested some physical problems during her 
 
            tenure with Farmland Foods.  As early as 1982, claimant 
 
            sought medical treatment for inflammatory arthritis.  
 
            Correspondence from Steven J. Wees, M.D., to Dennis W. 
 
            Crabb, M.D., and Dr. Crabb's medical records indicate 
 
            claimant suffers from inflammatory or rheumatoid arthritis.
 
            
 
                 She has also suffered from stomach problems, which 
 
            appear to be associated with the medication taken for the 
 
            arthritic condition.
 
            
 
                         analysis and conclusions of law
 
            
 
                 The first issue to be addressed whether claimant 
 
            sustained an injury which arose out of and in the course of 
 
            her employment.
 
            
 
                 Claimant has the burden of proving by a preponderance 
 
            of the evidence that she received an injury on November 11, 
 
            1988 which arose out of and in the course of her employment. 
 
            McDowell v. Town of Clarksville, 241 N.W.2d 904 (Iowa 
 
            1976); Musselman v. Central Telephone Co., 261 Iowa 352, 154 
 
            N.W.2d 128 (1967). 
 
            
 
                 An employee is entitled to compensation for any and all 
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
            personal injuries which arise out of and in the course of 
 
            the employment.  Iowa Code section 85.3(1).
 
            
 
                 The standard for determining whether a mental injury 
 
            arose out of and in the course of employment was discussed 
 
            in Ohnemus v. John Deere Davenport Works, (Appeal Decision, 
 
            February 26, 1990):
 
            
 
                    In order to prevail claimant must prove that he 
 
                 suffered a non-traumatically caused mental injury 
 
                 that arose out of and in the course of his 
 
                 employment.  This matter deals with what is 
 
                 referred to as a mental-mental injury and does not 
 
                 deal with a mental condition caused by physical 
 
                 trauma or a physical condition caused by mental 
 
                 stimulus.  The supreme court in Schreckengast v. 
 
                 Hammer Mills, Inc., 369 N.W.2d 800 (Iowa 1985), 
 
                 recognized that issues of causation can involve 
 
                 either causation in fact or legal causation.  As 
 
                 stated in footnote 3 at 369 N.W.2d 810:
 
            
 
                       We have recognized that in both civil and 
 
                    criminal actions causation in fact involves 
 
                    whether a particular event in fact caused 
 
                    certain consequences to occur.  Legal 
 
                    causation presents a question of whether the 
 
                    policy of the law will extend responsibility 
 
                    to those consequences which have in fact 
 
                    been produced by that event.  State v. 
 
                    Marti, 290 N.W.2d 570, 584-85 (Iowa 1980).  
 
                    Causation in fact presents an issue of fact 
 
                    while legal causation presents an issue of 
 
                    law.  Id.
 
            
 
                 That language was the basis of the language in 
 
                 Desgranges v. Dept of Human Services, (Appeal 
 
                 Decision, August 19, 1988) which discussed that 
 
                 there must be both medical and legal causation for 
 
                 a nontraumatic mental injury to arise out of and 
 
                 in the course of employment.  While Desgranges 
 
                 used the term medical causation the concept 
 
                 involved was factual causation.  Therefore, in 
 
                 this matter it is necessary for two issues to be 
 
                 resolved before finding an injury arising out of 
 
                 and in the course of employment - factual and 
 
                 legal causation.  Proving the factual existence of 
 
                 an injury may be accomplished by either expert 
 
                 testimony or nonexpert testimony.
 
            
 
                    ....
 
            
 
                    Not only must claimant prove that his work was 
 
                 the factual cause of his mental injury, claimant 
 
                 must also prove that the legal cause of his injury 
 
                 was his work.  In order to prove this legal 
 
                 causation claimant must prove that his temporary 
 
                 mental condition "resulted from a situation of 
 
                 greater dimensions than the day to day mental 
 
                 stresses and tensions which all employees must 
 
                 experience."  Swiss Colony v. Department of ICAR, 
 

 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
                 240 N.W.2d 128, 130 (Wisc. 1976).
 
            
 
                 In the instant case, a psychologist provided an opinion 
 
            which causally connected claimant's mental condition to her 
 
            work.  Robert Joneson, Ph.D., voiced the following opinion 
 
            on December 9, 1988:
 
            
 
                 She basically denied any other significant 
 
                 stresses in her life at this time.  She is a woman 
 
                 who does admit to some feelings of not being able 
 
                 to express herself very well.  She describes her 
 
                 childhood years as a time when she was not allowed 
 
                 to express angry feelings nor to assert herself.  
 
                 For this reason she feels that it's still hard for 
 
                 her to do this and this may be a factor in her 
 
                 current situation in dealing with her supervisor.
 
            
 
                 Mental Status Exam:  This woman was alert and 
 
                 oriented.  Her mood was depressed and her affect 
 
                 was appropriate to her mood.  She denied any 
 
                 suicidal ideation.  She does admit to significant 
 
                 sleeping difficulties and also to loss of 
 
                 appetite.  I did not detect any disturbance of 
 
                 though or perception.
 
            
 
                 Diagnostic Impression:  Major depression.
 
            
 
                 Summary:  I believe that this woman is 
 
                 experiencing significant stress in dealing with 
 
                 her supervisor at work.  According to Cheryl she 
 
                 has tried to alleviate this stress through 
 
                 appropriate channels at Farmland Foods but there 
 
                 has not been any resolution of the problem.  At 
 
                 this time she is having difficulties sleeping as 
 
                 well as eating.   She is extremely tearful and 
 
                 anxious and I believe that she is quite unable to 
 
                 work at this time.  She is being continued on her 
 
                 antidepressant medication by her physician and I 
 
                 am continuing to see her in psychotherapy.  I do 
 
                 believe that much of her current stress and 
 
                 depression is related to the situation between she 
 
                 and her supervisor.
 
            
 
                 Dr. Joneson was deposed on May 11, 1990, and changed 
 
            his impression of her condition to one of adjustment 
 
            reaction, rather than major depression.  (Claimant's Exhibit 
 
            G, Pages 5 & 15).
 
            
 
                 Claimant proved that her work was the factual cause of 
 
            her mental condition.  Claimant's own testimony relates a 
 
            difficult relationship with Dr. Bush.  She was a credible 
 
            witness, and denied that any other experiences or problems 
 
            in her life caused her to stop working for defendant 
 
            Farmland Foods.
 
            
 
                 But under the theory followed by this agency, she also 
 
            must prove that her work was the legal cause of mental 
 
            condition.  The standard for making this determination is 
 
            whether claimant proved that her mental condition resulted 
 
            from a situation of greater dimensions than day to day 
 

 
            
 
            Page   6
 
            
 
            
 
            
 
            
 
            mental stresses and tensions which all employees must 
 
            experience. 
 
            
 
                 The evidence in this case does not show that claimant 
 
            was subjected to any greater stresses than other employees.  
 
            Tami Walker, a witness no longer working for the company, 
 
            was hired as a replacement for claimant's position after 
 
            claimant left her employment, and took on additional 
 
            responsibilities.  She felt Dr. Bush treated his employees 
 
            well.  Another witness stated that she did not know of any 
 
            instances where Dr. Bush ranted, raved or yelled at people.
 
            
 
                 What is clear from the evidence provided is that 
 
            claimant was unhappy with Dr. Bush's management style.  
 
            Medical records from Dr. Wees substantiates claimant's 
 
            attitude:
 
            
 
                 8-5-87
 
            
 
                    Cheryl is having quite a bit of trouble at 
 
                 work.  It is a long story but things have been 
 
                 brewing and getting out of control over the past 
 
                 year and a half.   Basically she hates her boss 
 
                 and I suspect he probably hates her.  She says she 
 
                 is not getting credit for the work she does.  She 
 
                 is looking for new jobs and feels she is being 
 
                 discriminated against because she is a woman....
 
            
 
                 There is no evidence to support the argument that 
 
            claimant had to endure work-related stresses of greater 
 
            magnitude than other employees.  In fact, the evidence point 
 
            to claimant's improved mental status prior to her leave of 
 
            absence on November 10, 1988.
 
            
 
                 Of particular note is Dr. Wees' medical record entry 
 
            dated October 31, 1988:
 
            
 
                 She continues to have troubles both with anxiety 
 
                 and depression though not as troublesome as these 
 
                 symptoms have been in the past.  She had a good 
 
                 summer working with her flowers.  Her husband is 
 
                 now working in Omaha laying hardwood floors.  They 
 
                 may well move to Omaha and rent out the home on 
 
                 their acreage.  With the improvement in her mental 
 
                 status she has regained some appetite and some 
 
                 weight.  She said she had dropped down to about 
 
                 102 pounds.
 
            
 
                 She also admitted that she had had problems with one of 
 
            her sons, who ran away from home; an alcoholic mother who 
 
            required financial and physical help from claimant; and 
 
            other situations which could cause stress in a person's 
 
            daily life, and intensify stressful situations at work.
 
            
 
                 It is difficult to determine whether claimant's 
 
            day-to-day work environment was greater in dimension than 
 
            situations all employees must experience. 
 
            
 
                 From the evidence provided, it is impossible to 
 
            conclude that her employment was the legal cause of her 
 

 
            
 
            Page   7
 
            
 
            
 
            
 
            
 
            mental condition.
 
            
 
                 In summary, claimant has failed to prove that she 
 
            suffered an injury which arose out of and in the course of 
 
            her employment.
 
            
 
                 THEREFORE, it is ordered:
 
            
 
                 Claimant takes nothing from these proceedings.
 
            
 
                 Defendants pay all costs of this action pursuant to 343 
 
            IAC 4.33.
 
            
 
                 Claimant shall pay defendants one hundred dollars 
 
            ($100) for the costs incurred in preparing a motion to 
 
            compel discovery.
 
            
 
                 Signed and filed this ____ day of January, 1991.
 
            
 
            
 
            
 
            
 
                                          
 
            ________________________________
 
                                          PATRICIA J. LANTZ
 
                                          DEPUTY INDUSTRIAL COMMISSIONER
 
            
 
            Copies To:
 
            
 
            Mr Stephen M Engelhardt
 
            Attorney at Law
 
            30 S 14th Street
 
            PO Box 217
 
            Denison Iowa 51442
 

 
            
 
            Page   8
 
            
 
            
 
            
 
            
 
            
 
            Ms Judith Ann Higgs
 
            Attorney at Law
 
            200 Home Federal Building
 
            PO Box 3086
 
            Sioux City Iowa 51102
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                      2204
 
                      Filed January 22, 1991
 
                      PATRICIA J. LANTZ
 
            before the iowa industrial commissioner
 
            ____________________________________________________________
 
                      :
 
            CHERYL CHRIS BURGESS, a/k/a   :
 
            CHRIS BURGESS, :
 
                      :
 
                 Claimant, :
 
                      :
 
            vs.       :
 
                      :         File No. 894169
 
            FARMLAND FOODS, INC.,    :
 
                      :      A R B I T R A T I O N
 
                 Employer, :
 
                      :         D E C I S I O N
 
            and       :
 
                      :
 
            AETNA CASUALTY & SURETY  :
 
            COMPANY,  :
 
                      :
 
                 Insurance Carrier,  :
 
                 Defendants.    :
 
            ___________________________________________________________
 
            
 
            2204
 
            Claimant worked as an administrative assistant at Farmland 
 
            Foods.  On November 10, 1988, claimant took a leave of 
 
            absence due to stress-related emotional problems, which was 
 
            diagnosed as adjustment reaction.
 
            A psychologist found a relationship between claimant's 
 
            condition and her employment.  Claimant testimony was 
 
            credible, and she blamed her condition on the employment, 
 
            and proved factual causation between her employment and 
 
            mental condition.
 
            However, claimant failed to prove by a preponderance that 
 
            her mental condition was the result of a work situation of 
 
            greater dimensions than the day to day mental stresses and 
 
            tensions which all employees must experience.
 
            Benefits denied.
 
            
 
 
            
 
            Page   1
 
            
 
            
 
            
 
            
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            DEMA K. GIRE,                 :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :      File No.  894174
 
            ACCO BABCOCK,                 :
 
                                          :  A R B I T R A T I O N
 
                 Employer,                :
 
                                          :      D E C I S I O N
 
            and                           :
 
                                          :
 
            CIGNA INSURANCE COMPANY,      :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
                                   introduction
 
            
 
                 This is a proceeding in arbitration brought by Dema K. 
 
            Gire, claimant, against Acco Babcock Company, employer, and 
 
            Cigna Insurance, insurance carrier, defendants, for benefits 
 
            as the result of an injury which occurred on April 9, 1987.  
 
            A hearing was held in Ottumwa, Iowa, on February 23, 1990, 
 
            and the case was fully submitted at the close of the 
 
            hearing.  Claimant was represented by William Bauer.  
 
            Defendants were represented by Charles E. Cutler.  The 
 
            record consists of the testimony of Dema K. Gire, claimant; 
 
            Judith Ann Cox, personnel and purchasing officer; Kent 
 
            Jayne, rehabilitation supervisor and vocational consultant; 
 
            joint exhibit 1, pages 1 through 69; claimant's exhibit 1, 
 
            pages 1 through 23; employer's exhibit 1, pages 1 through 9; 
 
            and employer's exhibit 2, pages 1 through 3.  Both attorneys 
 
            submitted excellent posthearing briefs.  The deputy ordered 
 
            a transcript of the hearing. 
 
            
 
                                   stipulations
 
            
 
                 The parties stipulated that claimant sustained an 
 
            injury on April 9, 1987, which arose out of and in the 
 
            course of employment with employer.
 
            
 
                                      issues
 
            
 
                 The parties submitted the following issues for 
 
            determination at the time of the hearing:
 
            
 
                 Whether the injury was the cause of temporary 
 
            disability.
 
            
 
                 Whether the injury was the cause of permanent 
 
            disability.
 
            
 
                 Whether claimant is entitled to permanent disability 
 
            benefits, and if so, the extent of benefits to which he is 
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            entitled.
 
            
 
                 Whether claimant is entitled to penalty benefits under 
 
            Iowa Code section 86.13(4).
 
            
 
                                 findings of fact
 
            
 
            causal connection-temporary disability-permanent disability
 
            
 
                 It is determined that the injury of April 9, 1987, was 
 
            the cause of both temporary and permanent disability.
 
            
 
                 Claimant injured her lower back while lifting a box 
 
            10-foot long which weighed somewhere between 130 and 170 
 
            pounds.  She reported the injury to the foreman.  She saw 
 
            Terry J. Sutton, M.D., the company doctor (who was also her 
 
            personal physician) the following day on April 10, 1987.  
 
            Dr. Sutton recorded a lumbosacral strain and prescribed bed 
 
            rest, heat and medication.  Dr. Sutton took her off work for 
 
            two days.  Claimant returned to the same job without 
 
            restrictions even though her back was still sore.  She 
 
            testified that her back became progressively worse and she 
 
            developed pain in her legs by October, November 1987.  
 
            Claimant denied and there is no evidence of any prior, 
 
            subsequent or intervening injuries, accidents or incidents.  
 
            
 
                 Claimant returned to see Dr. Sutton on November 13, 
 
            1987.  An x-ray of the lumbosacral spine on the same date 
 
            was negative.  However, a lumbar CT scan on December 4, 
 
            1987, disclosed both anterior and posterior herniated 
 
            nucleus pulposus at the L4-5 level.
 
            
 
                 Dr. Sutton referred claimant to Donald D. Berg, M.D., 
 
            an orthopedic surgeon, who saw claimant on December 8, 1987; 
 
            December 21, 1987; and January 1, 1988.  Dr. Berg treated 
 
            claimant on the basis of the April 1987 lifting injury.  No 
 
            other cause for her back complaints was suggested or 
 
            mentioned. 
 
            
 
                 Dr. Sutton then referred claimant to Edward G. Law, 
 
            M.D., who saw claimant on January 27, 1988.  He treated 
 
            claimant on the basis of the history of the April 1987 
 
            lifting injury at work.  No other cause for claimant's 
 
            complaints were suggested or mentioned.  An EMG did not 
 
            demonstrate radiculopathy.  The physical therapist treated 
 
            claimant on the basis of the April 1987 injury at work.  Dr. 
 
            Law tried a physical therapy and work hardening program.  
 
            Claimant returned to work for approximately two weeks in 
 
            April of 1988 without restrictions.  She returned to heavy 
 
            work again lifting 75-pound bars between 100 and 200 times 
 
            per day.  Dr. Law concluded that claimant would not be able 
 
            to return to factory work again because the job was just too 
 
            strenuous for her bad L4-5 disc.  He recommended vocational 
 
            rehabilitation and a job change (joint exhibit 1, page 22).  
 
            Dr. Sutton also concurred in this recommendation (jt. ex. 1, 
 
            p. 11).  Dr. Law diagnosed that claimant had a bulging L4-5 
 
            lumbar disc, symmetric bulging, circumferentially with some 
 
            very mild impingement. 
 
            
 
                 In a surgeon's report, signed by Dr. Law, he described 
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            the nature and extent of injury as follows, "In 4/87 while 
 
            lifting heavy metal she had acute onset of pain in back & 
 
            legs.  She has trunk stiffness & weakness." (jt. ex. 1, p. 
 
            28).  This report asks the following question, "Is accident 
 
            above referred to the only cause of patient's condition?" 
 
            Dr. Law answered, "Yes." (jt. ex. 1, p. 28).  
 
            
 
                 Thus, the entire sequence of medical treatment flows 
 
            from the injury date of April 9, 1987.  All of the doctors 
 
            were selected by the employer and insurance carrier.  They 
 
            all proceeded on the basis of this work injury.  In the 
 
            surgeon's report, Dr. Law specifically stated that the only 
 
            cause of the patient's condition was this accident.
 
            
 
                 Therefore, it is determined that the injury of April 9, 
 
            1987, was the cause of both temporary and permanent 
 
            disability.
 
            
 
                    entitlement-temporary disability benefits
 
            
 
                 The parties stipulated (transcript page 5) and the 
 
            evidence supports that claimant is entitled to temporary 
 
            disability benefits from November 13, 1987 through August 
 
            19, 1988, when Dr. Law gave an impairment rating, imposed 
 
            permanent work restrictions and discharged claimant from his 
 
            care (jt. ex. 1, p. 25).  
 
            
 
                 Therefore, it is determined that claimant is entitled 
 
            to 40.143 weeks of healing period benefits.  
 
            
 
                         entitlement-permanent disability
 
            
 
                 It is determined that claimant has sustained a 35 
 
            percent industrial disability to the body as a whole and is 
 
            entitled to 175 weeks of permanent partial disability 
 
            benefits.
 
            
 
                 In Dr. Law's final letter, on August 19, 1988, he 
 
            stated:
 
            
 
                 I believe that Dema Gire's healing period is now 
 
                 ended.
 
            
 
                 I believe that she is left with a permanent 
 
                 partial impairment rating of approximately 10% 
 
                 because of the fact that she has permanent work 
 
                 restrictions and will no longer be able to work at 
 
                 any of the trades at which she has been employed 
 
                 at in the past and for which she has training and 
 
                 previous work experience.
 
            
 
                 She has a bulging L4-5 disc and has a 10% chance 
 
                 of developing a disc herniation in the future.  I 
 
                 think she has permanent work restrictions of no 
 
                 lifting more than 50 pounds, no bending, twisting, 
 
                 or stooping.
 
            
 
                 I believe that she would never be able to do any 
 
                 type of factory, machinist, or welding work in the 
 
                 future.  I think she would do quite well if she 
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
                 were retrained or re-educated to do such jobs as a 
 
                 repiratory [sic] therapist, or a dental assistant.  
 
                 She has no return appointment scheduled at this 
 
                 time.
 
            
 
            (joint exhibit 1, page 25)
 
            
 
                 Thus, claimant is foreclosed from performing her past 
 
            employments of machinist and welder.  Michael v. Harrison 
 
            County, Thirty-fourth Biennial Report of the Industrial 
 
            Commissioner 218, 220 (Appeal Decision January 30, 1979); 
 
            Rohrberg v. Griffin Pipe Products Co., I Iowa Industrial 
 
            Commissioner Report 282 (1984).
 
            
 
                 Defendants complain that the impairment rating is not 
 
            stated to be based upon the Guides to the Evaluation of 
 
            Permanent Impairment, published by the American Medical 
 
            Association nor is it based upon the Orthopedic Surgeon's 
 
            Guide.  Defendants further contend that it appears to be 
 
            more of an industrial disability rating than a functional or 
 
            physical permanent impairment rating.  Dr. Law is the only 
 
            doctor who gave an impairment rating.  His impairment rating 
 
            is placed in evidence as a joint exhibit.  Neither 
 
            defendants nor claimant asked for a clarification of his 
 
            rating by way of correspondence.  Neither party chose to 
 
            depose Dr. Law.  Therefore, Dr. Law's permanent impairment 
 
            rating is accepted as the permanent impairment rating of a 
 
            medical doctor and the treating physician of claimant for 
 
            the purpose of determining industrial disability in this 
 
            case.  
 
            
 
                 Defendant employer terminated claimant by a letter 
 
            dated October 7, 1988, which stated as follows, "Your 
 
            termination is based on Dr. Edward Law's letter of August 
 
            19, 1988 in which Dr. Law states your healing period is 
 
            ended and will never be able to do any type of factory, 
 
            machinist or welding work in the future." (claimant's ex. 
 
            1).  Claimant's job as a girder fabricator, was agreed by 
 
            both parties to be heavy work which required claimant to 
 
            lift between 50 and 100 pounds, nevertheless, the fact that 
 
            employer has no work which claimant can do is evidence of a 
 
            substantial disability.  Professor Larson states, "It is 
 
            hardly necessary to labor the inconsistency of permitting an 
 
            employer to fire a man for physical defects caused by his 
 
            own employment conditions, and then to disclaim compensation 
 
            liability by presenting medical evidence that the man is not 
 
            really disabled after all." 2 Larson Workmen's Compensation 
 
            Law, section 57.61(b) at pages 10-173 and 10-176. 
 
            
 
                 Claimant, born November 3, 1951, was 35 years old at 
 
            the time of the injury, 38 years old at the time of the 
 
            hearing and 39 years old at the time of this decision.  
 
            Thus, claimant's disability is more serious than it would be 
 
            for an older or younger employee because it occurred at the 
 
            peak years in her earnings history.  Becke v. Turner-Busch, 
 
            Inc., Thirty-fourth Biennial Report of the Industrial 
 
            Commissioner 34 (Appeal Decision  1979); Walton v. B & H 
 
            Tank Corp., II Iowa Industrial Commissioner Report 426 
 
            (1981); McCoy v. Donaldson Company, Inc., file numbers 
 
            782670 & 805200 (Appeal Decision 1989).
 

 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
            
 
                 Claimant completed 11 years of education, but quit high 
 
            school in the twelfth or senior year.  There was no evidence 
 
            of any additional education or training.  She did obtain her 
 
            GED with the assistance of defendants' vocational 
 
            rehabilitation consultant.
 
            
 
                 Claimant was tested extensively for additional 
 
            education and training and scored average or better in most 
 
            areas.  Therefore, at age 39, retraining is definitely a 
 
            course of action which she could take.  Retraining is one of 
 
            the factors considered in determining industrial disability.  
 
            Conrad v. Marquette School, Inc., IV Iowa Industrial 
 
            Commissioner Report 74, 89 (1984).  Retraining is a factor 
 
            which increases industrial disability because claimant is 
 
            precluded from working full and sometimes part-time during 
 
            retaining in addition to the cost of tuition, books and 
 
            fees.
 
            
 
                 With the assistance of defendants' vocational 
 
            rehabilitation consultant, claimant did enroll in the health 
 
            information technology program at Indian Hills Community 
 
            College.  The consultant helped claimant obtain grants from 
 
            the Joint Training Partnership Act (JTPA).  Claimant 
 
            attended the initial courses in her home town of Fairfield, 
 
            but was unable to continue the course because she did not 
 
            have transportation for the additional courses which were 
 
            taught in Ottumwa.  Claimant started school in June of 1988.  
 
            When she missed the summer course in 1988 because of no 
 
            transportation and failed to reapply for the JTPA grant 
 
            within 90 days, she lost JTPA funding.  From the fall of 
 
            1988 through the hearing date on February 23, 1990, 
 
            claimant's chief employment has been babysitting at $1.25 
 
            per hour.  Claimant did work a few days as a telemarketer 
 
            selling dinners by telephone and earned $100.
 
            
 
                 Claimant contends that she cannot get a job because she 
 
            does not have the training and she cannot take the training 
 
            because she does not have transportation.  Claimant 
 
            submitted her name to Job Service, but expected them to call 
 
            her with suitable opportunities.  Claimant only tried to 
 
            find employment at two places during this entire 15-month 
 
            period.  Thus, claimant's motivation to either attend school 
 
            or return to work is seriously questioned.  An employee 
 
            making a claim for industrial disability will benefit by 
 
            showing some attempt to find work.  Hild v. Natkin & Co., I 
 
            Iowa Industrial Commissioner Report 144 (Appeal Decision 
 
            1981); Beintema v. Sioux City Engineering Co., II Iowa 
 
            Industrial Commissioner Report 24 (1981); Cory v. 
 
            Northwestern States Portland Cement Company, Thirty-third 
 
            Biennial Report of the Industrial Commissioner 104 (1976).
 
            
 
                 Since claimant has not sincerely sought any employment 
 
            within the limits permitted by Dr. Law, her potential for 
 
            the labor market has not been tested and makes it more 
 
            difficult to ascertain how much industrial disability she 
 
            has actually sustained.  Schofield v. Iowa Beef Processors, 
 
            Inc., II Iowa Industrial Commissioner Report 334, 336 
 
            (1981).
 
            
 

 
            
 
            Page   6
 
            
 
            
 
            
 
            
 
                 Employers are responsible for a reduction in earning 
 
            capacity caused by the injury.  They are not responsible for 
 
            a reduction in actual earnings because the employee resists 
 
            returning to work.  Williams v. Firestone Tire and Rubber 
 
            Co., III Iowa Industrial Commissioner Report 279 (1982).
 
            
 
                 Defendants' vocational rehabilitation witness at the 
 
            time of the hearing testified about a number of job openings 
 
            in the general area at the time claimant was terminated, but 
 
            admitted that the vocational consultant at the time of her 
 
            termination did not attempt to place claimant in any of 
 
            these jobs and he did not know whether they required 
 
            transportation in order to be able to perform them.  
 
            
 
                 At the time claimant started to school both claimant 
 
            and the vocational rehabilitation consultant at that time 
 
            knew that claimant did not have transportation in order to 
 
            commute to Ottumwa which would eventually be required in 
 
            order to complete the 18-month course.  Nevertheless, 
 
            claimant, with the recommendation of the specialist, began 
 
            the course which she was not able to complete.
 
            
 
                 Defendants contended that if claimant completed the 
 
            health information technology program she could earn up to 
 
            $20,000 a year or more.  Statistics from the college showed 
 
            a high placement rate for those who graduate, but the 
 
            vocational rehabilitation specialist did not know how many 
 
            of the beginning class actually completed the course.  
 
            Whether claimant, in her poverty, and without 
 
            transportation, and a heavy labor factory work background, 
 
            at age 39, could have completed this course and obtained one 
 
            of these high paying jobs, is too speculative to be 
 
            considered as realistic.  Stewart v. Crouse Cartage, file 
 
            number 738644 (Appeal Decision filed February 20, 1987); 
 
            Umpress v. Armstrong Rubber Co., file number 723184 (Appeal 
 
            Decision filed August 27, 1987).  
 
            
 
                 Claimant said her investigation showed that if she 
 
            completed the course she could earn $5 per hour and possibly 
 
            as much as $7 per hour.  This would still result in a 30 
 
            percent actual wage loss if claimant did complete the course 
 
            and got a job for as much as $7 per hour.  If she only 
 
            earned $5 per hour, it would constitute a 50 percent loss in 
 
            actual earnings.  Claimant testified that her disabilities 
 
            are that she can no longer play basketball, bowl, lift over 
 
            50 pounds or bend, stoop or twist.  She testified that she 
 
            still has occasional pain in her back.  Claimant received no 
 
            treatment for this injury after October 18, 1988.  She hires 
 
            snow removal and yard work done.
 
            
 
                 Wherefore, based upon (1) the foregoing factors; (2) 
 
            all of the factors used to determine industrial disability, 
 
            Peterson v. Truck Haven Cafe, Inc., vol. 1, no. 3 State of 
 
            Iowa Industrial Commissioner Decisions 654, 658 (Appeal 
 
            Decision February 28, 1985), Christensen v. Hagen, Inc., 
 
            vol. I, no. 3, State of Iowa Industrial Commissioner 
 
            Decisions 529 (Appeal Decision March 26, 1985); and (3) 
 
            employing agency expertise [[Iowa Administrative Procedure 
 
            Act 17A.14(5)]; it is determined that claimant has sustained 
 
            an industrial disability of 35 percent to the body as a 
 

 
            
 
            Page   7
 
            
 
            
 
            
 
            
 
            whole and that claimant is entitled to 175 weeks of 
 
            permanent partial disability benefits.
 
            
 
                                 penalty benefits
 
            
 
                 It is determined that claimant is not entitled to any 
 
            penalty benefits under Iowa Code section 86.13(4) for delay 
 
            in commencement or termination of benefits without 
 
            reasonable or probable cause or excuse.  
 
            
 
                 Defendants paid all of claimant's medical bills.  
 
            Defendants paid claimant's healing period benefits from 
 
            November 13, 1987 through August 19, 1988.  Defendants paid 
 
            claimant 50 weeks of permanent partial disability benefits 
 
            based upon Dr. Law's impairment rating of 10 percent to the 
 
            body as a whole.  At the same time, defendants have disputed 
 
            the causal connection of the injury of April 9, 1987, to 
 
            claimant's bulging disc which foreclosed her from all past 
 
            employments and brought about her termination from this 
 
            employer.  The burden of proof of unreasonableness is upon 
 
            the claimant.  Curtis v. Swift Independent Packing, IV Iowa 
 
            Industrial Commissioner Report 88, 93 (1984).  
 
            
 
                 Generally, penalty benefits are not awarded where there 
 
            is a legitimate dispute on either causation or the extent of 
 
            impairment.  Just v. HyGrade Food Products Corp., IV Iowa 
 
            Industrial Commissioner Reports 190 (Appeal Decision 1984).  
 
            Likewise, in more recent times it has been determined that 
 
            penalty benefits are not due where defendants assert a claim 
 
            that is fairly debatable.  Seydel v. U of I Physical Plant, 
 
            Appeal Decision November 1, 1989; Stanley v. Wilson Foods, 
 
            file number 753405 (Appeal Decision August 23 1990).  
 
            
 
                 Defendants have seriously disputed causation because in 
 
            none of the written correspondence from Dr. Law, Dr. Berg or 
 
            Dr. Sutton, is there a clear, specific statement that this 
 
            injury is the cause of the disability.  Eventually, claimant 
 
            did prevail on the causation issue because of the answer in 
 
            the standard form surgeon's report which states that the 
 
            injury was the only cause of the patient's condition.  
 
            However, defendants' position was not unreasonable in view 
 
            of the clarity of Dr. Law on all of the other points 
 
            involved in the case, but on which he made no specific 
 
            statement of causation in any of his letters.  Causal 
 
            connection was fairly debatable.  
 
            
 
                 The fact that claimant lost two days of work at the 
 
            time of the injury on April 9, 1987, and then was able to 
 
            work for seven months, until November 13, 1987; gave 
 
            defendants reasonable grounds to dispute causation, 
 
            especially in view of the fact that she had performed heavy 
 
            work of this nature most of her adult life, but defendants 
 
            never established that claimant suffered any prior, 
 
            subsequent or intervening injuries, accidents or incidents 
 
            which would have caused this disability.  
 
            
 
                 Furthermore, defendants have contested the amount of 
 
            industrial disability (1) due to the manner in which Dr. Law 
 
            expressed his permanent impairment rating and (2) due to 
 
            claimant's apparent lack of incentive and motivation to 
 

 
            
 
            Page   8
 
            
 
            
 
            
 
            
 
            either attend school or diligently and seriously search for 
 
            a job that pays a reasonable amount of income.  
 
            
 
                 Therefore, it is determined that claimant is not 
 
            entitled to penalty benefits under Iowa Code section 
 
            86.13(4).
 
            
 
                                conclusions of law
 
            
 
                 WHEREFORE, based upon the foregoing and following 
 
            principles of law, these conclusions of law are made:
 
            
 
                 That the injury of April 9, 1987, was the cause of 
 
            temporary disability.  Bodish v. Fischer, Inc., 257 Iowa 
 
            516, 133 N.W.2d 867 (1965); Lindahl v. L.O. Boggs Co., 236 
 
            Iowa 296 18 N.W.2d 607 (1945).
 
            
 
                 That claimant is entitled to 40.143 weeks of healing 
 
            period benefits for the period from November 13, 1987 
 
            through August 19, 1988, as stipulated to by the parties.  
 
            Iowa Code section 85.34(1).
 
            
 
                 That the injury of April 9, 1987, was the cause of 
 
            permanent disability. Bodish, 257 Iowa 516, 133 N.W.2d 867; 
 
            Lindahl, 236 Iowa 296 18 N.W.2d 607.
 
            
 
                 That claimant sustained a 35 percent industrial 
 
            disability to the body as a whole.  Diederich v. Tri-City R. 
 
            Co., 219 Iowa 587, 593, 258 N.W. 899 (1935); Olson v. 
 
            Goodyear Service Stores, 255 Iowa 1112, 125 N.W.2d 251 
 
            (1963).
 
            
 
                 That claimant is entitled to 175 weeks of permanent 
 
            partial disability benefits.  Iowa Code section 85.34(2)(u).
 
            
 
                 That claimant is not entitled to penalty benefits.  
 
            Iowa Code section 86.13(4).
 
            
 
                                        
 
            
 
                                        
 
            
 
                                        
 
            
 
                                      order
 
            
 
                 THEREFORE, IT IS ORDERED:
 
            
 
                 That defendants pay to claimant forty point one four 
 
            three (40.143) weeks of healing period benefits at the rate 
 
            of two hundred fifty-eight and 90/100 dollars ($258.90) per 
 
            week in the total amount of ten thousand three hundred 
 
            ninety-three and 02/100 dollars ($10,393.02) commencing on 
 
            November 13, 1987.
 
            
 
                 That defendants pay to claimant one hundred 
 
            seventy-five (175) weeks of permanent partial disability 
 
            benefits at the rate of two hundred fifty-eight and 90/100 
 
            dollars ($258.90) per week  in the total amount of 
 
            forty-five thousand three hundred seven and 50/100 dollars 
 

 
            
 
            Page   9
 
            
 
            
 
            
 
            
 
            ($45,307.50) commencing on August 20, 1988.
 
            
 
                 That defendants are entitled to a credit for all weekly 
 
            benefits paid to claimant prior to hearing.  It was 
 
            stipulated that defendants are entitled to a credit for 
 
            fifty (50) weeks of permanent partial disability benefits 
 
            paid to claimant at the rate of two hundred thirty and 
 
            70/100 dollars ($230.70) per week.  It also would appear 
 
            that defendants are entitled to a credit for the healing 
 
            period benefits paid to claimant prior to hearing, but the 
 
            amount of the weekly payment and the precise period of 
 
            payment was not specified in the prehearing report, but was 
 
            asserted at the beginning of the hearing (tr. p. 7).
 
            
 
                 That interest will accrue pursuant to Iowa Code section 
 
            85.30.
 
            
 
                 That all accrued benefits will be paid in a lump sum.
 
            
 
                 That the costs of this action are charged to 
 
            defendants.  This includes the one hundred eleven and 50/100 
 
            dollars ($111.50) stipulated to by the parties at the 
 
            commencement of the hearing (tr. p. 8). and also includes 
 
            the attendance of the court reporter at hearing.  Rule 343 
 
            IAC 4.33.  It also includes the cost of the transcript.  
 
            Iowa Code section 86.19(1).
 
            
 
                 That defendants file claim activity reports as 
 
            requested by this agency.  Rule 343 IAC 3.1.
 
            
 
                 Signed and filed this ____ day of July, 1991.
 
            
 
            
 
            
 
            
 
                                          ______________________________
 
                                          WALTER R. McMANUS, JR.
 
                                          DEPUTY INDUSTRIAL COMMISSIONER    
 
            
 
            
 
            
 
            
 
            Copies to:
 
            
 
            Mr. William Bauer
 
            Attorney at Law
 
            100 Valley St.
 
            PO Box 517
 
            Burlington, Iowa  52601
 
            
 
            Mr. Charles Cutler
 
            Attorney at Law
 
            729 Insurance Exchange Bldg.
 
            505 Fifth Ave.
 
            Des Moines, Iowa  50309-2313
 
            
 
            
 
 
            
 
            Page   1
 
            
 
            
 
            
 
            
 
                      51401 51402.40 51802 51803 54000.2
 
                      Filed July 9, 1991
 
                      Walter R. McManus, Jr.
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            DEMA K. GIRE,                 :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :      File No.  894174
 
            ACCO BABCOCK,                 :
 
                                          :  A R B I T R A T I O N
 
                 Employer,                :
 
                                          :      D E C I S I O N
 
            and                           :
 
                                          :
 
            CIGNA INSURANCE COMPANY,      :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
            51401 51402.40
 
            Claimant proved the injury was the cause of her temporary 
 
            and permanent disability.  Even though the treating 
 
            physician did not address causation in any of his letters, 
 
            he did indicate on a standard form surgeon's report that the 
 
            injury was the only cause of claimant's disability.  This 
 
            evidence was not controverted, contradicted, rebutted or 
 
            refuted.  No other cause was in evidence.  The sequence of 
 
            events of the medical treatment flowed from the stipulated 
 
            injury.  All of the medical practitioners, who were selected 
 
            by defendants, proceeded on the history of this injury in 
 
            administering treatment to claimant.
 
            
 
            51802
 
            Claimant awarded healing period for the period of time 
 
            stipulated to by the parties.
 
            
 
            51803
 
            Claimant awarded 35 percent industrial disability.
 
            Claimant, age 39, was at the peak of her earnings career.  
 
            She had an eleventh grade education, but obtained a GED with 
 
            the assistance of defendants' vocational rehabilitation 
 
            counselor. 
 
            Claimant was retrainable based on her test scores, but 
 
            retraining would increase industrial disability because of 
 
            the time lost from compensable work while attending school 
 
            plus school costs of tuition, books and fees.
 
            Claimant was fired because she could not do her job or 
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            former jobs because of the doctor's restrictions of no 
 
            lifting over 50 pounds, no bending, twisting or stooping.
 
            Claimant's actual earnings loss was estimated to range 
 
            between 30 percent and 50 percent.  
 
            A projected income if she completed a health technology 
 
            course and could get a job at the highest salary was 
 
            rejected as too speculative to be realistic.
 
            Claimant had a nonoperated herniated disc.  The physician's 
 
            10 percent rating was phrased in terms of industrial 
 
            disability rather than permanent physical impairment, but 
 
            was accepted as the impairment rating since it was a joint 
 
            exhibit and neither party sought to obtain a clarification 
 
            of it. 
 
            Claimant was forced to quit the training course because she 
 
            had no transportation, but failed to seek any retraining or 
 
            seriously seek any employment within her restrictions.  A 
 
            satisfactory explanation was not given for claimant's lack 
 
            of motivation.
 
            
 
            54000.2
 
            No penalty benefits awarded.  Causation and the amount of 
 
            permanent disability were fairly debatable.
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                               1402.20, 1803, 2201
 
                                               3202
 
                                               Filed April 23, 1990
 
                                               DAVID RASEY
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            KURT A. LANG,                 :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :         File Nos. 894185
 
            FARMSTEAD FOODS,              :                   894186
 
                                          :
 
                 Employer,                :      A R B I T R A T I O N
 
                                          :
 
            and                           :         D E C I S I O N
 
                                          :
 
            AETNA CASUALTY & SURETY       :
 
            COMPANY,                      :
 
                                          :
 
                 Insurance Carrier,       :
 
                                          :
 
            and                           :
 
                                          :
 
            SECOND INJURY FUND OF IOWA,   :
 
                                          :
 
                 Defendants.              :
 
            ____________________________________________________________
 
            
 
            1402.20, 1803, 2201, 3202
 
            Claimant left work by reason of cumulative injury to right 
 
            hand -- carpal tunnel syndrome.  Although asymptomatic, 
 
            physician found carpal tunnel syndrome to left hand also, 
 
            and performed bilateral surgery.  Claimant did not return to 
 
            work between surgeries.  Following Himschoot v. Montezuma 
 
            Mfg., (672778) and Johnson v. George A. Hormel & Co., 
 
            (782796, 792733), it was held claimant suffered only one 
 
            injury on the day he left work.  Second Injury Fund benefits 
 
            were denied and claimant was compensated under 85.34(2)(s) 
 
            pursuant to Simbro.
 
            
 
 
            
 
            Page   1
 
            
 
            
 
            
 
            
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            KURT A. LANG,                 :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :         File Nos. 894185
 
            FARMSTEAD FOODS,              :                   894186
 
                                          :
 
                 Employer,                :      A R B I T R A T I O N
 
                                          :
 
            and                           :         D E C I S I O N
 
                                          :
 
            AETNA CASUALTY & SURETY       :
 
            COMPANY,                      :
 
                                          :
 
                 Insurance Carrier,       :
 
                                          :
 
            and                           :
 
                                          :
 
            SECOND INJURY FUND OF IOWA,   :
 
                                          :
 
                 Defendants.              :
 
            ____________________________________________________________
 
            
 
                              statement of the case
 
            
 
                 These are proceedings in arbitration brought by 
 
            claimant Kurt A. Lang against defendant employer Farmland 
 
            Foods, defendant insurance carrier Aetna Casualty & Surety 
 
            Company and defendant Second Injury Fund of Iowa to recover 
 
            benefits under the Iowa Workers' Compensation Act as the 
 
            result of injuries allegedly sustained on March 15, 1988 
 
            (894185:  right hand) and April 30, 1988 (894186:  left 
 
            hand).  These matters came on for hearing before the 
 
            undersigned in Storm Lake, Iowa, on April 11, 1990.  The 
 
            cause was considered fully submitted at the close of 
 
            hearing.
 
            
 
                 The record in this proceeding consists of claimant's 
 
            exhibits 1 through 33, Second Injury Fund exhibit A and the 
 
            testimony of claimant and Mary Tigges.
 
            
 
                                      issues
 
            
 
                 Pursuant to the prehearing report submitted by the 
 
            parties and approved at hearing, the following issues have 
 
            been stipulated:  that an employment relationship existed 
 
            between claimant and employer at the time of each alleged 
 
            injury; that claimant sustained an injury on March 15, 1988 
 
            and April 30, 1988 arising out of and in the course of that 
 
            employment (Second Injury Fund of Iowa disputes this issue); 
 
            that the alleged injury or injuries caused temporary and 
 
            permanent disability; that claimant is entitled to 
 
            compensation for healing period from July 14 through July 
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            18, August 5 through October 10, and December 27, 1988 
 
            through January 4, 1989; that claimant has sustained a 
 
            scheduled member disability to the hands and the 
 
            commencement date for permanent partial disability is 
 
            January 5, 1989; that the appropriate rate of weekly 
 
            compensation is $198.67, based upon gross weekly earnings of 
 
            $285.17, a marital status of married and entitlement to five 
 
            exemptions; that affirmative defenses are waived; that all 
 
            requested medical benefits have been or will be paid by 
 
            defendants except for P. L. Hildebrand, M.D., authorization 
 
            for that treatment being disputed; that defendant employer 
 
            and insurance carrier paid 12 weeks, 2 days healing period 
 
            and 19 weeks permanent partial disability at the stipulated 
 
            rate prior to hearing.
 
            
 
                 Issues presented for resolution include:  as to Second 
 
            Injury Fund, whether claimant sustained one or two injuries 
 
            and the date thereof; the extent of claimant's entitlement 
 
            to compensation for permanent disability.
 
            
 
                 Based on injury dates in March and April, 1988, the 
 
            parties' stipulation as to the rate of weekly benefits 
 
            cannot be accepted.  The "Guide to Iowa Workers' 
 
            Compensation Claim Handling" published by this agency and 
 
            effective July 1, 1987, reflects that an individual with 
 
            claimant's earnings, marital status and exemptions is 
 
            entitled to a rate of $198.06.  However, if the injury is 
 
            found to have occurred on July 14, 1988, the "Guide" 
 
            effective July 1, 1988 reflects that the correct rate for an 
 
            individual situated as is claimant is indeed $198.67.
 
            
 
                              review of the evidence
 
            
 
                 Claimant, 28 years of age, testified that his health 
 
            was good when he began employment with defendant on November 
 
            4, 1987.  Defendant operates a meat packing business.  
 
            Claimant worked as a fatter and boner using a wizard knife 
 
            to shave fat from meat, a repetitive motion job.
 
            
 
                 Claimant indicated that he began developing problems 
 
            with his right hand while operating the wizard knife.  This 
 
            included tingling in the fingers and soreness in the wrist 
 
            and arm.  He reported to the company nurse and was sent to a 
 
            physician who diagnosed sprain and returned claimant to 
 
            light-duty work.  Claimant continued having problems with 
 
            his right hand, and after approximately a week and a half 
 
            continued going to the nurse.  He requested an examination 
 
            by a different physician, but was refused.
 
            
 
                 While sick with the flu, claimant visited P. L. 
 
            Hildebrand, M.D., to obtain a slip releasing him to return 
 
            to work.  While there, claimant complained of pain to his 
 
            right hand as an incidental concern.  Dr. Hildebrand took 
 
            x-rays of both hands, followed by EMG tests.  At this time, 
 
            approximately April 1, 1988, claimant still had developed no 
 
            problems with his left hand.
 
            
 
                 As a result of the EMG tests, Dr. Hildebrand diagnosed 
 
            carpal tunnel syndrome to each hand, although the left hand 
 
            was still asymptomatic.  Because eventual problems were 
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            anticipated with the left hand, surgery was done on each 
 
            extremity.
 
            
 
                 Claimant returned to work, but both hands continued to 
 
            be sore.  Claimant was eventually put on permanent 
 
            light-duty work and finally discharged by approximately 
 
            August 7, 1989.
 
            
 
                 Claimant currently complains that his right hand 
 
            becomes sore doing knife work (he is currently employed as a 
 
            cook) and that his left hand is sore most of the time, 
 
            especially in the scar on his wrist.
 
            
 
                 On cross-examination, claimant noted that his left hand 
 
            problems never cause him to lose work, since he had not 
 
            returned to work following his right carpal tunnel syndrome 
 
            surgery before undergoing similar surgery to the left hand.  
 
            Claimant had never had pain to the left hand or symptoms of 
 
            any kind prior to that surgery.
 
            
 
                 Claimant also conceded that he did not know whether the 
 
            various billings shown on exhibit 33 (Dr. Hildebrand, the 
 
            only medical expense in dispute) was for treatment of his 
 
            influenza or his hand.
 
            
 
                 With respect to the nurse's notes of July 15 and August 
 
            4, 1988 (relating to complaints to both hands), claimant 
 
            denied that the notes were accurate.
 
            
 
                 Mary Tigges testified to being a registered nurse 
 
            employed by defendant employer as an occupational health 
 
            nurse.  She testified that her notes show that claimant made 
 
            no visits between March 30 and July 15, 1988.  Therefore, 
 
            she concluded that claimant did not come into the nurse's 
 
            quarters to request seeing a new physician.  She testified 
 
            further that it was very rare for the nurse's department to 
 
            fail to chart visits relating to potential work-related 
 
            problems, such as potential repetitive motion injuries of 
 
            the hands.
 
            
 
                 Claimant's attendance records for calendar year 1988 
 
            are in evidence as Second Injury Fund exhibit A.  They 
 
            reflect that claimant missed no days in March, 1988 and was 
 
            ill on April 1, 1988.  He was ill again on May 4, two days 
 
            in June, and missed three days in July prior to July 13, 
 
            1988.  Thereafter, claimant missed substantial time as per 
 
            the parties' stipulation.
 
            
 
                 Chart notes of Donald Soll, M.D., dated March 31, 1988, 
 
            show that claimant was seen for a check on his right hand 
 
            and arm as he had been having pain and difficulty making a 
 
            fist.  Dr. Soll found no evidence of carpal tunnel syndrome 
 
            and put claimant on light-duty work for two weeks.
 
            
 
                 Company nurse's notes of March 30, 1988, reflect that 
 
            claimant complained of a sore right shoulder and numbness of 
 
            the hand and arm.  Further notes of July 15, 1988 reflect 
 
            that claimant was seen by Dr. Hildebrand for problems with 
 
            numbness and pain in both hands, but that Dr. Soll had been 
 
            seen in March for problems with the right hand.
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
            
 
                 Records of Midlands Family Medicine show that "PLH" 
 
            (apparently Dr. Hildebrand) noted on July 13, 1988 that 
 
            claimant presented on that date with bilateral carpal tunnel 
 
            syndrome and that EMG studies were recommended.  Dr. 
 
            Hildebrand took claimant off work the same date.
 
            
 
                 Claimant was also seen by Thomas P. Ferlic, M.D.  Dr. 
 
            Ferlic opined on June 23 and July 14, 1989, that claimant 
 
            had sustained a five percent disability to each hand by 
 
            reason of his carpal tunnel surgical releases.
 
            
 
                           applicable law and analysis
 
            
 
                 The key issue in this case is whether claimant 
 
            sustained one injury or two separate injuries and the date 
 
            or dates thereof.  There is no indication whatsoever in the 
 
            record that claimant suffered any traumatic injury to his 
 
            hands.  Rather, he developed tingling and pain to the right 
 
            following extended repetitive motion at work, but when the 
 
            diagnosis was fortuitously made by Dr. Hildebrand, claimant 
 
            found that he had asymptomatic carpal tunnel syndrome to the 
 
            left hand.
 
            
 
                 In cases of cumulative injury, the injury is deemed to 
 
            have occurred for workers' compensation purposes when 
 
            because of pain or physical inability the claimant is no 
 
            longer able to work.  McKeever Custom Cabinets v. Smith, 379 
 
            N.W.2d 368 (Iowa 1985).
 
            
 
                 In this case, claimant developed pain to the right hand 
 
            gradually, first making complaint on or about March 31, 
 
            1988.  However, the record further reflects that even though 
 
            he had begun developing pain, he was not forced to miss work 
 
            due to pain or disability.  The first claimant was taken off 
 
            work was July 14, 1988, after Dr. Hildebrand diagnosed 
 
            bilateral carpal tunnel syndrome, although the left was and 
 
            remained asymptomatic until following surgery.
 
            
 
                 The injury date for claimant's right-sided carpal 
 
            tunnel syndrome is therefore July 14, 1988.  But what of the 
 
            left side?  Claimant was never forced to leave work because 
 
            of left-sided pain since his asymptomatic condition was 
 
            discovered in the absence of any complaints on his part.  
 
            However, it seems absurd to this writer to arbitrarily 
 
            choose a different date for the "second" injury to the left 
 
            side other than the date of diagnosis and when claimant was 
 
            taken off work.  The industrial commissioner has previously 
 
            held that bilateral carpal tunnel syndrome resulting from 
 
            one gradual injury process constitutes the loss of two 
 
            members from one accident and is evaluated on a functional 
 
            basis under Iowa Code section 85.34(2)(s).  Himschoot v. 
 
            Montezuma Mfg., file number 672778 (App. Decn. April 15, 
 
            1988); Johnson v. George A. Hormel & Co., file numbers 
 
            782796 and 792733 (App. Decn. June 21, 1988).
 
            
 
                 On the basis of the foregoing, it is held that claimant 
 
            has failed to meet his burden of proof in establishing that 
 
            he has sustained two separate injuries.  He has sustained 
 
            one injury, bilateral carpal tunnel syndrome, and the injury 
 

 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
            date is July 14, 1988.  Therefore, there is no liability on 
 
            the part of the Second Injury Fund of Iowa.
 
            
 
                 The undisputed evidence in this case is that claimant 
 
            has sustained a five percent functional disability to each 
 
            hand.  Pursuant to the Guides to the Evaluation of Permanent 
 
            Impairment published by the American Medical Association, a 
 
            five percent impairment of the hand is equivalent to a five 
 
            percent impairment of the upper extremity and a five percent 
 
            impairment of the upper extremity is equivalent to a three 
 
            percent impairment of the whole person.  The combined values 
 
            chart published in that publication reflects that two 
 
            separate three percent whole body impairments is equivalent 
 
            to a six percent combined value.  Pursuant to Iowa Code 
 
            section 85.34(2)(s), the loss of both hands caused by a 
 
            single accident shall equal 500 weeks and be compensated as 
 
            such.  However, benefits under that section are calculated 
 
            on a functional impairment basis and not an industrial 
 
            disability basis.  Simbro v. Delong's Sportswear, 332 N.W.2d 
 
            886 (Iowa 1983).  Six percent of 500 weeks is 30 weeks.  As 
 
            defendants have paid claimant only 19 weeks of permanent 
 
            partial disability prior to hearing, he shall be awarded an 
 
            additional 11 weeks.
 
            
 
                 Because the injury date has been determined to be July 
 
            14, 1988, claimant's rate of compensation is $198.67, based 
 
            on the "Guides to Iowa Workers' Compensation Claim Handling" 
 
            effective July 1, 1988.
 
            
 
                 Claimant seeks reimbursement of a total of $63.70 in 
 
            charges of Community Memorial Hospital.  These expenses were 
 
            not authorized by defendants.  While claimant alleges that 
 
            he unsuccessfully sought further examination after March 31, 
 
            1988, the undersigned finds defendants chart notes to be 
 
            more reliable.  There can be little argument but that a meat 
 
            packing business, and especially the nurse's station 
 
            attached thereto, is well acquainted with the symptomatology 
 
            of carpal tunnel syndrome and other repetitive motion 
 
            ailments.  Mary Tigges testified that special care would be 
 
            made to mark such complaints in the nurse's notes.  No such 
 
            request on claimant's part appears.  Particularly after an 
 
            individual had already made one complaint and been sent to a 
 
            physician, it strikes this writer as most unlikely that 
 
            further complaints and requests for medical examination 
 
            would not be recorded in the individual's chart.  It is 
 
            therefore concluded that claimant's visit to Dr. Hildebrand 
 
            (originally, for an unrelated problem) was unauthorized and 
 
            not compensable.  Jeffrey v. Jack A. Schroeder, Inc., 32nd 
 
            Biennial Report of the Iowa Industrial Commissioner 121 
 
            (1974).
 
            
 
                                 findings of fact
 
            
 
                 THEREFORE, based on the evidence presented, the 
 
            following ultimate facts are found:
 
            
 
                 1.  Claimant began suffering symptoms of pain and 
 
            numbness to the right hand prior to March 31, 1988, when he 
 
            first made complaint.
 
            
 

 
            
 
            Page   6
 
            
 
            
 
            
 
            
 
                 2.  Claimant was diagnosed as suffering bilateral 
 
            carpal tunnel syndrome on July 13, 1988, even though he was 
 
            asymptomatic on the left side at that time.
 
            
 
                 3.  Thereafter, claimant underwent surgery for carpal 
 
            tunnel syndrome on each hand; claimant's left hand remained 
 
            asymptomatic up to the time of surgery, although he has 
 
            suffered pain thereafter.
 
            
 
                 4.  Claimant first left work by reason of carpal tunnel 
 
            syndrome on July 14, 1988.
 
            
 
                 5.  Claimant's visit to Dr. Hildebrand on July 13, 1988 
 
            was unauthorized by defendants.  Defendants were never asked 
 
            to provide additional treatment.
 
            
 
                 6.  Claimant has sustained a functional impairment of 
 
            five percent to each hand.  Using the charts and combined 
 
            values table published by the American Medical Association 
 
            in its Guides to the Evaluation of Permanent Impairment this 
 
            corresponds to a six percent impairment of the body as a 
 
            whole.
 
            
 
                                conclusions of law
 
            
 
                 WHEREFORE, based on the principles of law previously 
 
            cited, the following conclusions of law are made:
 
            
 
                 1.  Claimant sustained a single injury, bilateral 
 
            carpal tunnel syndrome, on July 14, 1988.
 
            
 
                 2.  Because claimant did not sustain a second injury, 
 
            there is no liability on the part of Second Injury Fund of 
 
            Iowa.
 
            
 
                 3.  Claimant's compensation must be calculated on the 
 
            basis of Iowa Code section 85.34(2)(s), on the basis of 500 
 
            weeks, but not industrially.
 
            
 
                 4.  Claimant's appropriate rate of compensation is 
 
            $198.67 per week.
 
            
 
                 5.  Defendants are entitled to credit for all healing 
 
            period and permanent partial disability paid voluntarily to 
 
            claimant prior to hearing.
 
            
 
                                      ORDER
 
            
 
                 THEREFORE, IT IS ORDERED:
 
            
 
                 Claimant shall take nothing from this proceeding with 
 
            respect to defendant Second Injury Fund of Iowa.
 
            
 
                 Defendants Farmland Foods and Aetna Casualty & Surety 
 
            Company are to pay unto claimant an additional eleven (11) 
 
            weeks of permanent partial disability benefits at the rate 
 
            of one hundred ninety-eight and 67/100 dollars ($198.67) per 
 
            week, totalling two thousand one hundred eighty-five and 
 
            37/100 dollars ($2,185.37).
 
            
 

 
            
 
            Page   7
 
            
 
            
 
            
 
            
 
                 As all benefits ordered herein have accrued, they shall 
 
            be paid to claimant as a lump sum together with statutory 
 
            interest pursuant to Iowa Code section 85.30.
 
            
 
                 Costs of this action shall be assessed to defendants 
 
            Farmland Foods and Aetna Casualty & Surety Company pursuant 
 
            to Division of Industrial Services Rule 343-4.33.
 
            
 
                 Defendants shall file claim activity reports as 
 
            requested by this agency pursuant to Division of Industrial 
 
            Services Rule 343-3.1.
 
            
 
                 Signed and filed this ______ day of ____________, 1990.
 
            
 
                 
 
            
 
                 
 
                 
 
                                          ______________________________
 
                                          DAVID RASEY
 
                                          DEPUTY INDUSTRIAL COMMISSIONER
 
            
 
            Copies To:
 
            
 
            Mr. Harry H. Smith
 
            Attorney at Law
 
            P.O. Box 1194
 
            Sioux City, Iowa  51102
 
            
 
            Mr. Glenn Goodwin
 
            Attorney at Law
 
            4th Floor, Equitable Building
 
            Des Moines, Iowa  50309
 
            
 
            Ms. Eleanor E. Lynn
 
            Mr. Dean Lerner
 
            Assistant Attorneys General
 
            Tort Claims Division
 
            Hoover State Office Building
 
            Des Moines, Iowa  50319
 
            
 
            
 
            
 
 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         SCOTT FROST,
 
         
 
              Claimant,                              File No. 894189
 
         
 
         vs.                                      A R B I T R A T I O N
 
         
 
         FABRICATING MACHINE SYSTEMS,                D E C I S I O N
 
         
 
              Employer,
 
                                                        F I L E D
 
         and
 
                                                       MAY 14 1990
 
         NEW HAMPSHIRE CO.,
 
                                                   INDUSTRIAL SERVICES
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
                              STATEMENT OF THE CASE
 
         
 
              This is a proceeding in arbitration brought by Scott Frost, 
 
         claimant, against Fabricating Machine Systems, employer, and New 
 
         Hampshire Insurance Company, insurance carrier, to recover 
 
         benefits under the Iowa Workers' Compensation Act as the result 
 
         of an alleged injury of May 27, 1988.  This matter came on for 
 
         hearing before the undersigned deputy industrial commissioner 
 
         April 23, 1990 and was considered fully submitted upon the close 
 
         of the hearing.  The record in this case consists of the 
 
         testimony of claimant, Shawna Frost and Mindy Youngberg and joint 
 
         exhibits I through IV, inclusive.
 
         
 
                                      ISSUES
 
         
 
              Pursuant to the prehearing report and order submitted and 
 
         approved April 23, 1990, the following issues are presented for 
 
         determination:
 
         
 
              1.  Whether claimant sustained an injury on May 27, 1988, 
 
         which arose out of and in the course of his employment;
 
         
 
              2.  Whether claimant's alleged work injury is the cause of 
 
         the disability on which he now bases his claim;
 
         
 
              3.  Claimant's entitlement to temporary total disability 
 
         benefits as the parties have stipulated that the alleged work 
 
         injury is not the cause of a permanent disability; and,
 
         
 
              4.  Claimant's entitlement to medical benefits pursuant to 
 
         Iowa Code section 85.27.
 
         
 
                                 FACTS PRESENTED
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              Claimant testified that on Friday, May 27, 1988, at 
 
         approximately 10:00 p.m. he was injured when a wire wheel on a 
 
         grinder caught on a nipple and hit him in the groin.  Claimant 
 
         explained that the sharp pain he immediately felt subsided 
 
         somewhat and that because he did not believe he was injured 
 
         (having checked himself out in the bathroom), he did not report 
 
         the incident to any supervisor.  Claimant maintained he remained 
 
         at home with his parents all weekend, applying ice packs to the 
 
         area, until the "excruciating pain" forced him to the hospital on 
 
         Sunday where he eventually underwent surgery for a traumatic 
 
         rupture of the right testis.
 
         
 
              On cross-examination, claimant acknowledged he was aware of 
 
         the employer's procedure for reporting injuries and that he had 
 
         not utilized that procedure in this instance, although he had 
 
         utilized it in the past.
 
         
 
              Shawna Frost, who identified herself as claimant's 
 
         ex-sister-in-law, having been married to claimant's brother 
 
         Allen, testified that, on the Saturday before Memorial Day in 
 
         1988, claimant was partying with a group of people at a park and, 
 
         during the course of the gathering, began wrestling with his 
 
         brother Allen.  Ms. Frost stated she observed claimant get kneed 
 
         in the groin and run off into the woods.  Ms. Frost explained she 
 
         tried to find claimant but could not, although she saw him later 
 
         at a bar and heard Allen tell claimant he should "turn it in" 
 
         that he had been injured at work.
 
         
 
              Mindy Youngberg, who identified herself as Shawna Frost's 
 
         sister, testified that she saw claimant wrestling at the park on 
 
         Saturday, although she did not see him get injured.  Ms. 
 
         Youngberg stated that she saw claimant later that evening at a 
 
         house party (after the party at the park, but before the group 
 
         went to the bar) and that claimant appeared to be fine.
 
         
 
              Michael Strope, who identified himself as a night supervisor 
 
         at FMS Corporation for two years and as claimant's supervisor on 
 
         May 27, 1988, testified that employees were to report injuries to 
 
         him immediately and that claimant was aware of and had utilized 
 
         the procedure.  Mr. Strope explained claimant reported no 
 
         injuries at all on the night of May 27, 1988, testifying:
 
         
 
              Q.  Can you tell me how he appeared that night?
 
         
 
              A.  He appeared to be in good health and not to be hurting 
 
              any.  After this incident supposedly happened I discussed 
 
              this with all the other employees in the building and of all 
 
              the other employees -- only one other employee said he saw 
 
              this happen.  None of the other employees saw Scott in the 
 
              area, or stated to me that they saw Scott appear to be 
 
              hurting or injured.
 
         
 
              Q.  Now, this allegedly occurred in a grinding area.  Are 
 
              you familiar with that area?
 

 
              
 
 
 
 
 
 
 
 
 
 
 
              
 
              A.  Correct.
 
              
 
              Q.  And that's an area where Mr. Frost was assigned to work 
 
              that night, or supposed to be?
 
              
 
              A.  No.  Scott Frost was assigned to work in the machine 
 
              area of the building, which is at the opposite corner from 
 
              the grinding area, and as far as I knew that's where he was 
 
              at all night long, and when I asked the other employees in 
 
              the building, nobody had even seen him up in the grinding 
 
              area, except for Matt.
 
         
 
         (Joint exhibit IV, page 6, line 5 through page 7, line 1)
 
         
 
              On cross-examination, Mr. Strope stated:
 
         
 
              [Q.]  . . . You made mention of talking to some other 
 
              employees, did you not, and only one indicated knowledge of 
 
              the injury, and that was Matt Bordeaux?
 
              
 
              A.  Correct.  Matt told me that Scott was in his area and he 
 
              had taken a grinder and that he thought that Scott had hit 
 
              himself.in the groin with it, but I believe he told me that 
 
              he didn't actually see it.
 
         
 
              He had his back turned at the time.  And then I was asking 
 
              him some more questions and he just basically said "I don't 
 
              remember".
 
              
 
              Then when I want back to ask him more, then he was gone.  He 
 
              had left.
 
         
 
         (Joint exhibit IV, page 14, line 23 through page 15, line 11)
 
         
 
              On February 14, 1990, Joseph J. DiMartini, M.D., urologist, 
 
         opined:
 
         
 
              On 5-30-88, Mr. Scott Frost underwent removal of the right 
 
              testicle because of traumatic rupture of that organ. 
 
              Testicular rupture is usually caused by a severe blow to 
 
              that area.  This is usually in the form of an industrial or 
 
              sports related accident.  Mr. Scott Frost gave me a history 
 
              of having had a large grinder smash into his right 
 
              hemiscrotum on the [sic] May 28, 1988.  Therefore, I believe 
 
              the rupture was caused by an industrial accident.
 
         
 
         [Joint exhibit I(B), page 12]
 
         
 
                           APPLICABLE LAW AND ANALYSIS
 
         
 
              An employee is entitled to compensation for any and all 
 
         personal injuries which arise out of and in the course of the 
 
         employment.  Section 85.3(1).
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
              The claimant must prove by a preponderance of the evidence 
 
         that his injury arose out of and in the course of his employment. 
 
         Musselman v. Central Telephone Co., 261 Iowa 352, 154 N.W.2d 128 
 
         (1967).
 
         
 
              In the course of employment means that the claimant must 
 
         prove his injury occurred at a place where he reasonably may be 
 
         performing his duties.  McClure v. Union, et al., Counties, 188 
 
         N.W.2d 283 (Iowa 1971.).
 
         
 
              Arising out of suggests a causal relationship between the 
 
         employment and the injury.  Crowe v. DeSoto Consol. School 
 
         Dist., 246 Iowa 402, 68 N.W.2d 63 (1955).
 
         
 
              Claimant asserts that he was injured at work when the 
 
         grinder kicked back and hit him in the groin, that he was in pain 
 
         then and all the following weekend, that another employee 
 
         witnessed his reaction immediately after the incident and that 
 
         his parents witnesses his "moaning" as he stayed home all 
 
         weekend.  Claimant did not, however, present any testimony from 
 
         the coworker or his family which could have substantiated his 
 
         allegations.  Claimant did not provide any explanation for his 
 
         failure to produce such evidence.  In Crosser v. Iowa Dept of 
 
         Public Safety, 240 N.W.2d 682 (Iowa 1976), the court, at 685, 
 
         held:
 
         
 
              The trial court's ruling noted its finding was supported and 
 
              bolstered by the fact another officer who had observed 
 
              plaintiff's performance of the sobriety test was not called 
 
              to testify, though present in the courtroom.  In this the 
 
              trial court was referring to the inference which arises 
 
              where, without satisfactory explanation, relevant evidence 
 
              within the control of a party whose interests would 
 
              naturally call for its production is not produced.  In such 
 
              circumstances it may be inferred the evidence would be 
 
              unfavorable.  State v. Thomas, 162 N.W.2d 724, 727 (Iowa 
 
              1968) and authorities.  See also McCormick on Evidence 
 
              (Second Ed. 1972)  272, pp. 656-659; II Wigmore on Evidence 
 
              (Third Ed. 1940)  285-291, pp. 162-188; 29 Am.Jur.2d, 
 
              Evidence,  175 and 180, pp. 220 and 224-227; 31 C.J.S. 
 
              Evidence  156(l), pp. 391-396.
 
         
 
              Although it may not have been reasonable to have expected 
 
         claimant to have provided the coworker as a witness since 
 
         claimant is no longer employed by FMS Corporation, the fact that 
 
         claimant could not produce his parents to testify to support his 
 
         allegation that he was writhing in pain at home all weekend 
 
         allows the undersigned to draw the inference as provided by the 
 
         court in Crosser, 240 N.W.2d 682.  In light of the testimony of 
 
         Shawna Frost and Mindy Youngberg, it is inferred that such 
 
         evidence would lay open deficiencies in claimant's case.
 
         
 
              In addition, the record establishes claimant had availed 
 
         himself of defendant employer's procedure for reporting injuries 
 
         on previous occasions, but did not follow the procedure in this 
 
         instance.  When a pattern of conduct once established is altered, 
 
         one cannot help but question why.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              Reviewing the evidence, it is shown that claimant's 
 
         self-serving testimony, standing alone, is insufficient to 
 
         support his allegations that on May 27, 1988, he sustained an 
 
         injury arising out of and in the course of his employment.  
 
         Considering the above, it is found that claimant's testimony is 
 
         without credibility and is not based in fact.  Therefore, 
 
         claimant shall take nothing as a result of these proceedings and 
 
         the other issues presented need not be addressed.
 
         
 
                                 FINDINGS OF FACT
 
         
 
              Wherefore, based on all of the evidence presented, the 
 
         following findings of fact are made.
 
         
 
              1.  Claimant's testimony is without credibility.
 
         
 
              2.  Claimant's allegation that he was injured on May 27, 
 
         1988 when a wire wheel on a grinder caught on a nipple and hit 
 
         him in the groin has not been established by credible evidence.
 
         
 
              3.  Claimant did not sustain an injury arising out of and in 
 
         the course of his employment on May 27, 1988.
 
         
 
                                CONCLUSION OF LAW
 
         
 
              Therefore, based on the principles of law previously stated, 
 
         the following conclusion of law is made:
 
         
 
              Claimant has failed to establish he sustained an injury 
 
         which arose out of and in the course of his employment on May 27, 
 
         1988.
 
         
 
                                      ORDER
 
         
 
              THEREFORE, IT IS ORDERED:
 
         
 
              Claimant shall take nothing as a result of these 
 
         proceedings.
 
         
 
              Costs of this action are assessed against claimant pursuant 
 
         to Division of Industrial Services Rule 343-4.33.
 
         
 
              Signed and filed this 14th day of May, 1990.
 
         
 
         
 
         
 
         
 
         
 
         
 
         
 
                                            DEBORAH A. DUBIK
 
                                            DEPUTY INDUSTRIAL COMMISSIONER
 
         
 
         Copies To:
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
         Mr. John E. Behnke
 
         Attorney at Law
 
         Box F
 
         Parkersburg, Iowa  50665
 
         
 
         Mr. William D. Scherle
 
         Attorney at Law
 
         803 Fleming Building
 
         Des Moines, Iowa  50309
 
         
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
 
                                            
 
 
 
 
 
 
 
 
 
 
 
                                            5-1100
 
                                            Filed May 14, 1990
 
                                            DEBORAH A. DUBIK
 
                                            
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         SCOTT FROST,
 
         
 
              Claimant,
 
         
 
         vs.
 
                                                    File No. 894189
 
         FABRICATING MACHINE SYSTEMS,
 
                                                 A R B I T R A T I 0 N
 
              Employer,
 
                                                    D E C I S I 0 N
 
         and
 
         
 
         NEW HAMPSHIRE CO.,
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
         5-1100
 
         
 
              Claimant alleged he sustained an injury when he was kicked 
 
         in the groin by a grinder while at work.  However, other evidence 
 
         in the record established that claimant was at a party and was 
 
         kneed in the groin by his brother during a wrestling match.  
 
         Therefore, no injury arising out of and in the course of 
 
         employment was found and claimant took nothing as a result of the 
 
         proceedings.