Page   1
 
            
 
            
 
            
 
            
 
            before the iowa industrial commissioner
 
            ____________________________________________________________
 
                      :
 
            RICHARD SLOAN, :
 
                      :
 
                 Claimant, :      File No. 900250
 
                      :
 
            vs.       :        A P P E A L
 
                      :
 
            NATIONAL OATS, :      D E C I S I O N
 
                      :
 
                 Employer, :
 
                 Self-Insured,  :
 
                 Defendant.     :
 
            ___________________________________________________________
 
            statement of the case
 
            Defendant, self-insured National Oats, appeals from an 
 
            arbitration decision awarding claimant temporary total 
 
            disability benefits from May 24, 1989 through June 18, 1989.
 
            The record on appeal consists of the transcript of the 
 
            arbitration hearing and joint exhibits A through I.
 
            issue
 
            The sole issue is whether claimant has proven entitlement to 
 
            temporary total disability benefits from May 24, 1989 
 
            through June 18, 1989.
 
            review of the evidence
 
            The arbitration decision filed November 15, 1990 adequately 
 
            and accurately reflects the pertinent evidence and it will 
 
            not be reiterated herein.
 
            applicable law
 
            The citations of law in the arbitration decision are 
 
            appropriate to the issues and evidence.
 
            analysis
 
            James R. LaMorgese, M.D., treated claimant for his back 
 
            injury.  In a letter dated April 21, 1989, Dr. LaMorgese 
 
            indicated that claimant "is maximally healed."  (Defendant's 
 
            exhibit A, page 1.)  Claimant contacted Dr. LaMorgese for a 
 
            release to return to work and he was instructed to obtain 
 
            the release from Joseph L. Quetsch, M.D., as he was the 
 
            company physician.  (Def. ex. A, p. 9.)  No further 
 
            treatment was planned by Dr. LaMorgese.  Claimant saw Dr. 
 
            Quetsch on May 9, 1989.  Dr. Quetsch did not release 
 
            claimant to return to work but planned another WIRC 
 
            evaluation.  Claimant returned to work on June 19, 1989. 
 
            The language of Iowa Code section 85.33(1) is clear.  It 
 
            states that temporary total disability benefits continue 
 
            until claimant returns to work or is medically capable of 
 
            returning to employment.  Neither Dr. LaMorgese or Dr. 
 
            Quetsch released claimant to return to work until June 19, 
 
            1989.  
 
            Dr. LaMorgese indicated that claimant had reached maximum 
 
            healing period, however, maximum healing period in not one 
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            of the triggering mechanisms which ends temporary total 
 
            disability benefits.  Claimant was not released to return to 
 
            work until June 19, 1989, therefore, temporary total 
 
            disability benefits in this case cease when claimant 
 
            returned to work.
 
            findings of fact
 
            1.  Claimant sustained an injury on October 20, 1988 when he 
 
            slipped on a ladder at work. 
 
            2.  Claimant was off work beginning on October 20, 1988 
 
            through June 18, 1989 when claimant was released to return 
 
            to work by Dr. Quetsch.
 
            3.  Claimant returned to work on June 19, 1989.
 
            4.  Dr. LaMorgese did not release claimant to return to work 
 
            but opined that claimant had reached maximum healing on 
 
            April 17, 1989.
 
            conclusion of Law
 
            Claimant proved by preponderance of the evidence entitlement 
 
            to temporary total disability benefits from May 24, 1989 
 
            through June 18, 1989.
 
            WHEREFORE, the decision of the deputy is affirmed.
 
            order
 
            THEREFORE, it is ordered:
 
            That defendant shall pay claimant temporary total disability 
 
            benefits from October 20, 1989 through June 18, 1989 at the 
 
            rate of four hundred twenty-one and 41/100 dollars ($421.41) 
 
            per week.
 
            That defendant shall pay accrued weekly benefits in a lump 
 
            sum and shall receive credit against the award for weekly 
 
            benefits previously paid.  
 
            That defendant shall pay interest on benefits awarded herein 
 
            as set forth in Iowa Code section 85.30.
 
            That defendant shall pay all costs of this action, including 
 
            the preparation of the hearing transcript.
 
            That defendant shall file an activity report pursuant to 
 
            rule 343 IAC 3.1(2).
 
            Signed and filed this ____ day of July, 1991.
 
            
 
            
 
            
 
                      ________________________________
 
                               CLAIR R. CRAMER
 
                       ACTING INDUSTRIAL COMMISSIONER
 
            
 
            Copies To:
 
            
 
            Mr. Thomas M. Wertz
 
            Attorney at Law
 
            4089 21st Ave., SW, Ste 114
 
            Cedar Rapids, Iowa 52404
 
            
 
            Mr. John M. Bickel
 
            Attorney at Law
 
            500 MNB Bldg.
 
            P.O. Box 2107
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            Cedar Rapids, Iowa 52406-2107
 
            
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
            5-1801
 
            Filed July 30, 1991
 
            Clair R. Cramer
 
            BJO
 
            before the iowa industrial commissioner
 
            ____________________________________________________________
 
                      :
 
            RICHARD SLOAN, :
 
                      :
 
                 Claimant, :      File No. 900250
 
                      :
 
            vs.       :        A P P E A L
 
                      :
 
            NATIONAL OATS, :      D E C I S I O N
 
                      :
 
                 Employer, :
 
                 Self-Insured,  :
 
                 Defendant.     :
 
            ___________________________________________________________
 
            
 
            5-1801
 
            
 
                 Temporary total disability benefits ended when claimant 
 
            was released to return to work and not when his physician 
 
            opined that claimant reached maximum healing period.
 
            
 
 
            
 
            Page   1
 
            
 
            
 
            
 
            
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            RICHARD SLOAN,                :
 
                                          :
 
                 Claimant,                :
 
                                          :        File No. 900250
 
            vs.                           :
 
                                          :
 
            NATIONAL OATS,                :     A R B I T R A T I O N
 
                                          :
 
                 Employer,                :        D E C I S I O N
 
                 Self-Insured,            :
 
                                          :
 
            ___________________________________________________________
 
            
 
                              STATEMENT of the case
 
            
 
                 This case came on for hearing on November 1, 1990, in 
 
            Cedar Rapids, Iowa.  This is a proceeding in arbitration 
 
            wherein claimant seeks temporary total disability benefits 
 
            for an alleged October 20, 1988 injury.  The record in the 
 
            proceeding consists of the testimony of claimant and joint 
 
            exhibits A through I.
 
            
 
                                      issues
 
            
 
                 The sole issue for resolution is claimant's entitlement 
 
            to temporary total disability benefits.
 
            
 
                                 findings of fact
 
            
 
                 The undersigned deputy having heard the testimony and 
 
            considered all the evidence, finds that:
 
            
 
                 Claimant is a 41-year-old who has worked for the last 
 
            twelve years for defendant employer, nine of which has been 
 
            as a steel cutter.  His job entails overseeing approximately 
 
            90 machines which process and cut the oats.  All of the 
 
            machines are related and they are on several floors.  
 
            Claimant checks the machines by walking from machine to 
 
            machine making sure the grain is properly flowing through 
 
            the machines and unplugging a machine if the dust shuts down 
 
            a particular machine's operation.  Claimant said he walks 
 
            the eight hour shift constantly except for two breaks and a 
 
            dinner period.  He indicated there is usually at least one 
 
            plugged machine during his shift per day.  There is also a 
 
            computer that monitors the resulting flow of oats from all 
 
            the machines which he also checks periodically.
 
            
 
                 On October 20, 1988, there was a plugged machine on the 
 
            sixth floor.  Claimant climbed a 20 foot ladder and on the 
 
            way down he slipped, grabbed the ladder with one hand, 
 
            twisted his body and then continued on down the ladder.  
 
            When he reached the bottom he hurt so bad he sat down on the 
 
            floor.  His low and upper back and neck hurt.  He sought 
 
            medical treatment with the company doctor, Joseph L. 
 
            Quetsch, M.D.  Dr. Quetsch referred claimant to a 
 
            specialist, James R. LaMorgese, M.D., a neurologist.  
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            Claimant went through physical therapy, a pain clinic, 
 
            massages, heat and electro treatments.  In April 1989, 
 
            claimant went through a functional capacity test (Joint 
 
            Exhibit F).  A report indicates claimant was self-limiting 
 
            himself and it concluded that a return-to-work statement 
 
            based on abilities was not possible.  It indicated claimant 
 
            stopped his activities due to perceived low back and 
 
            shoulder pain.  Claimant testified he is in pain all the 
 
            time.  Defendant's attorney emphasized in his 
 
            cross-examination of the claimant, joint exhibit 8, an 
 
            agreement for settlement in which claimant had a prior 
 
            workers' compensation claim which he settled based on a 20 
 
            percent permanent partial disability to the body as a whole 
 
            and that claimant has a chronic back strain and experiences 
 
            a near constant low back pain on the right side.  Claimant 
 
            said he is still suffering pain from the 1981 injury settled 
 
            in August of 1988.
 
            
 
                 On April 21, 1989, Dr. LaMorgese wrote to defendant 
 
            employer and opined that he felt claimant reached maximum 
 
            healing on April 17, 1989 (Jt. Ex. A).
 
            
 
                 On April 24, 1989, Dr. Quetsch wrote to defendant 
 
            employer that claimant reached maximum healing (Jt. Ex. B).  
 
            On April 20, 1989, defendant employer gave claimant an 
 
            Auxier notice that benefits (temporary total disability) 
 
            would end thirty days hence.  Defendant employer's last 
 
            benefit was up to and including May 23, 1988.  There is no 
 
            claim for permanent partial disability benefits by claimant.  
 
            The parties agreed that there is no permanent impairment or 
 
            disability resulting from claimant's October 20, 1988 work 
 
            injury.
 
            
 
                 This is where the real dispute in this case begins.  It 
 
            is undisputed that claimant did not return to work until 
 
            June 19, 1989.  The evidence shows that, notwithstanding the 
 
            two doctors' opinions above (Jt. Ex. F and G), Dr. Quetsch, 
 
            the company doctor, would not okay claimant to return to 
 
            work without another functional capacity test.  It appears 
 
            claimant desired to try to go back and work but this was not 
 
            possible due to the company's own doctor's refusal to 
 
            release claimant.  Defendant employer requested another 
 
            functional capacity test which was done June 12 and 13, 1989 
 
            (Jt. Ex. G).  After this test, claimant was released to 
 
            return to work and did, in fact, return June 19, 1989.  
 
            
 
                 Claimant contends he put in maximum effort on both 
 
            tests but it would appear claimant did better on the second 
 
            test in June 1989 because of more effort.  It seems as 
 
            though claimant did not let his pain and impairment problems 
 
            from his 1981 injury or prior injuries overcome his effort 
 
            on the second functional capacity test.
 
            
 
                 Defendant paid temporary total disability benefits 
 
            beginning October 20, 1988 to and including May 23, 1989.  
 
            The only dispute involves the period beginning after May 23, 
 
            1989 to and including June 18, 1989, 3.714 weeks, which 
 
            would amount to a dispute over $1,565.12 based on the 
 
            stipulated rate of $421.41 per week.  Claimant is in a catch 
 
            22 situation.  We have Dr. LaMorgese opining a maximum 
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            recovery period but defers to defendant employer's doctor, 
 
            Dr. Quetsch, as to the actual release of claimant to return 
 
            to work.  Dr. Quetsch, the company doctor, wrote, right 
 
            after Dr. LaMorgese's report, that claimant reached maximum 
 
            healing but wouldn't release claimant to work.  Claimant was 
 
            willing to return to work but couldn't because the company 
 
            would not let him.  There appears to be a contradiction in 
 
            the doctors' opinions and actions.  If the undersigned 
 
            allowed the company to conclude that one reached maximum 
 
            healing period, therefore, taking a position that the 
 
            employee is able to return to work and the same doctor won't 
 
            follow his opinion and keeps claimant off the job without 
 
            benefits because apparently the doctor isn't sure of his 
 
            maximum healing and return-to-work opinion, then the system 
 
            would soon become a farce.  It seems ludicrous that the 
 
            claimant's doctor in reality is saying "claimant is 
 
            maximally healed and can return to work but I won't let him 
 
            return to work because I want another test to make sure my 
 
            first opinion is correct."
 
            
 
                 The undersigned doesn't believe claimant was 
 
            intentionally faking or putting less than normal effort in 
 
            his first functional evaluation test.  The therapists who 
 
            gave claimant his first test refer to claimant's perceived 
 
            pain.  Defendant's attorney impressed upon the undersigned 
 
            in his extensive examination of claimant in reference to 
 
            joint exhibit H that claimant has continued current pain 
 
            from his substantial disability from a 1981 injury or prior 
 
            injuries settled in 1984, and that claimant still has a 
 
            permanent impairment from that injury and none from his 
 
            October 20, 1987 injury.  It does take extra effort to 
 
            perform over pain and an existing impairment.  A normal 
 
            person does not necessarily desire to perform regardless of 
 
            the pain endured.  It is obvious upon his second testing 
 
            that claimant performed better.  The evidence also shows 
 
            that claimant continued his walking and his endurance has 
 
            substantially increased between his April 1989 and June 1989 
 
            functional tests.  It is undisputed that claimant's job 
 
            involves a lot of walking.
 
            
 
                 It appears that defendant's company doctor has to get 
 
            off the fence and be decisive and unbiased.  He can't send 
 
            out contradictory messages which allows defendant employer, 
 
            who pays his bill, to cut off benefits and yet won't let 
 
            claimant return to work and, therefore, receive no benefits.  
 
            This conduct cannot be condoned and the undersigned will not 
 
            condone it.
 
            
 
                 The undersigned finds claimant is entitled to temporary 
 
            total disability benefits beginning October 20, 1988 to and 
 
            including June 18, 1989, which disability arose out of and 
 
            in the course of claimant's employment on October 20, 1988, 
 
            and was caused by claimant's October 20, 1988 work injury.  
 
            Defendant shall be given credit for the period of temporary 
 
            total disability it paid beginning October 20, 1988 to and 
 
            including May 23, 1989.  Benefits are payable at the rate of 
 
            $421.41 per week.
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
            conclusions of law
 
            
 
                 Iowa Code section 85.32 provides:
 
            
 
                    Except as to injuries resulting in permanent 
 
                 partial disability, compensation shall begin on 
 
                 the fourth day of disability after the injury.
 
            
 
                    If the period of incapacity extends beyond the 
 
                 fourteenth day following the date of injury, then 
 
                 the compensation due during the third week shall 
 
                 be increased by adding thereto an amount equal to 
 
                 three days of compensation.
 
            
 
                 Iowa Code section 85.33(1) provides:
 
            
 
                    Except as provided in subsection 2 of this 
 
                 section, the employer shall pay to an employee for 
 
                 injury producing temporary total disability weekly 
 
                 compensation benefits, as provided in section 
 
                 85.32, until the employee has returned to work or 
 
                 is medically capable of returning to employment 
 
                 substantially similar to the employment in which 
 
                 the employee was engaged at the time of injury, 
 
                 whichever occurs first.
 
            
 
                 It is further concluded that:
 
            
 
                 Claimant incurred a temporary total disability during 
 
            the periods beginning October 20, 1988 to and including June 
 
            18, 1989, as a result of a work-related injury on October 
 
            20, 1988, and which injury caused claimant's temporary total 
 
            disability.  Benefits are payable at the rate of $421.41.
 
            
 
                 Claimant is a credible witness.
 
            
 
                                      order
 
            
 
                 THEREFORE, it is ordered:
 
            
 
                 That claimant is entitled to thirty-four point one four 
 
            three (34.143) weeks of temporary total disability benefits, 
 
            payable at the rate of four hundred twenty-one and 41/100 
 
            dollars ($421.41) per week, beginning October 20, 1988.
 
            
 
                 That defendant shall pay accrued weekly benefits in a 
 
            lump sum and shall receive credit against the award for 
 
            weekly benefits previously paid.  Defendant has previously 
 
            paid thirty point four two nine (30.429) weeks of temporary 
 
            total disability benefits at the rate of four hundred 
 
            twenty-one and 41/100 dollars ($421.41), as stipulated by 
 
            the parties.
 
            
 
                 That defendant shall pay interest on benefits awarded 
 
            herein as set forth in Iowa Code section 85.30.
 
            
 
                 That defendant shall pay the costs of this action, 
 
            pursuant to Division of Industrial Services Rule 343-4.33.
 
            
 
                 That defendant shall file an activity report upon 
 

 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
            payment of this award as required by this agency, pursuant 
 
            to Division of Industrial Services Rule 343-3.1
 
            
 
                 Signed and filed this _____ day of November, 1990.
 
            
 
            
 
            
 
            
 
                                          ______________________________
 
                                          BERNARD J. O'MALLEY
 
                                          DEPUTY INDUSTRIAL COMMISSIONER
 
            
 
            Copies to:
 
            
 
            Mr Thomas M Wertz
 
            Attorney at Law
 
            4089 21st Ave SW  Ste 114
 
            Cedar Rapids IA 52404
 
            
 
            Mr John M Bickel
 
            Attorney at Law
 
            500 MNB Bldg
 
            P O Box 2107
 
            Cedar Rapids IA 52406-2107
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                      1801
 
                      Filed November 15, 1990
 
                      Bernard J. O'Malley
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            RICHARD SLOAN,                :
 
                                          :
 
                 Claimant,                :
 
                                          :        File No. 900250
 
            vs.                           :
 
                                          :
 
            NATIONAL OATS,                :     A R B I T R A T I O N
 
                                          :
 
                 Employer,                :        D E C I S I O N
 
                 Self-Insured,            :
 
                                          :
 
            ___________________________________________________________
 
            
 
            1801
 
            Claimant awarded additional 3.714 weeks of temporary total 
 
            disability benefits.
 
            Defendant's company doctor and a specialist to whom company 
 
            doctor sent claimant both opined claimant reached maximum 
 
            recovery on the approximate same date (three days apart).  
 
            The specialist deferred to company doctor as to issuing a 
 
            release.  Company doctor refused to release claimant to work 
 
            until another functional capacity test was done on claimant.  
 
            Defendant cut off benefits per Auxier notice.  Held claimant 
 
            entitled to temporary total disability benefits until doctor 
 
            released him.  Claimant awarded 3.714 additional weeks.
 
            
 
            
 
 
            
 
            Page   1
 
            
 
            
 
            
 
            
 
            
 
            
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            WILLIAM C. SENNE,             :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :         File No. 900344
 
                                          :
 
            CEDAR VALLEY FARM SERVICE,    :      A R B I T R A T I O N
 
                                          :
 
                 Employer,                :         D E C I S I O N
 
                                          :
 
            and                           :
 
                                          :
 
            THE HARTFORD,                 :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ____________________________________________________________
 
            
 
                              statement of the case
 
            
 
                 This is a proceeding in arbitration brought by William 
 
            C. Senne against his employer, Cedar Valley Farm Service, 
 
            and its insurance carrier, The Hartford.  Claimant asserts 
 
            that he has sustained injury to his respiratory system as a 
 
            result of substances to which he was exposed through his 
 
            employment.  The parties have stipulated that claimant 
 
            sustained an injury on October 10, 1988 which arose out of 
 
            and in the course of employment and that the injury has 
 
            caused temporary disability.  The amount of temporary 
 
            disability is disputed.  Also disputed is whether or not the 
 
            claimant is entitled to recover any permanent partial 
 
            disability based upon the injury.  The gist of the 
 
            claimant's claim is that his respiratory system has been 
 
            damaged by substances to which he was exposed while 
 
            performing the duties of his employment.
 
            
 
                 The case was heard and fully submitted at Mason City, 
 
            Iowa on February 6, 1991.  The evidence in the case consists 
 
            of testimony from William C. Senne, Irene Senne and Roger 
 
            Seehusen.  The record also contains jointly offered exhibits 
 
            1 through 9.
 
            
 
                                 findings of fact
 
            
 
                 Having considered all the evidence received, together 
 
            with the appearance and demeanor of the witnesses, the 
 
            following findings of fact are made.
 
            
 
                 William C. Senne is a 49-year-old married man who lives 
 
            at Aplington, Iowa.  William has been employed by Cedar 
 
            Valley Farm Service, and its predecessor, Butler-Grundy Farm 
 
            Service, for a number of years.  He works as a serviceman.  
 
            A great deal of his work is performed in livestock 
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            
 
            
 
            confinement buildings and in grain bins.
 
            
 
                 The record establishes that until approximately October 
 
            1988, William enjoyed excellent health.  In October, he was 
 
            afflicted with a respiratory condition which resulted in 
 
            hospitalization.  He was diagnosed as having left upper lobe 
 
            pneumonia of uncertain cause and chronic obstructive lung 
 
            disease (exhibit 1).  William was hospitalized for 
 
            approximately two weeks and then remained off work for 
 
            approximately an additional month.  He recovered from the 
 
            pneumonia, but has residual respiratory problems.  The 
 
            treating physician, James Cafaro, M.D., provided a final 
 
            diagnosis of occupational asthma (exhibit 2, page 2).  Dr. 
 
            Cafaro also recommended that claimant avoid work in 
 
            high-dust concentrations and that he wear a quality dust 
 
            mask when he is required to work in grain dust or hog 
 
            confinement buildings.
 
            
 
                 William has been evaluated by Steven Zorn, M.D., a Des 
 
            Moines pulmonary medicine specialist.  Dr. Zorn conducted 
 
            numerous tests and, in his report, concluded that William's 
 
            asthma is not a result of his employment.  Dr. Zorn reported 
 
            as follows:
 
            
 
                 IMPRESSION
 
            
 
                 Mr. William Senne has intrinsic asthma as 
 
                 confirmed by his bronchial hyperreactivity to 
 
                 Methacholine challenge and yet negative skin 
 
                 testing and normal to low IGE and eosinophil 
 
                 counts.  His airway disease (asthma) is 
 
                 reversible.  I do not believe that he has 
 
                 hypersensitivity pneumonitis because of the 
 
                 following:
 
            
 
                 1)  Hypersensitivity pneumonitis panel was 
 
                 negative.
 
            
 
                 2)  The total eosinophil count in hypersensitivity 
 
                 pneumonitis is often extremely elevated.  Mr. 
 
                 Senne's eosinophil count was, if anything, low.
 
            
 
                 3)  The total IGE level in hypersensitivity 
 
                 pneumonitis is elevated.  Mr. Senne's IGE level is 
 
                 within normal range.
 
            
 
                 I do believe that non-specific irritant such as 
 
                 ammonia fumes (hog confinement), the mechanical 
 
                 irritant effect of grain dust, road dust or cold 
 
                 air are likely to reproduce Mr. Senne's symptoms 
 
                 of shortness of breath, cough and expiratory 
 
                 wheezing.  The nature of Mr. Senne's work for 
 
                 Cedar Valley Farm Service suggests he would be 
 
                 exposed to those agents and I would therefore 
 
                 recommend that he avoid repairing grain bins or 
 
                 hog confinement operations.  He has noticed 
 
                 significantly less difficulty when installing new 
 
                 equipment and perhaps a job at Cedar Valley Farm 
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            
 
            
 
                 Services that allowed him to work more in the 
 
                 installation of new equipment and thus avoid the 
 
                 fume and dust exposure would be a reasonable 
 
                 option.
 
            
 
                 I have no evidence to suggest that Mr. Senne's 
 
                 work for Cedar Valley Farm Services has resulted 
 
                 in a permanent debilitating condition.  He has no 
 
                 evidence of hypersensitivity pneumonitis.  I 
 
                 believe that his intrinsic asthma is a genetic 
 
                 predisposition and like others with asthma is 
 
                 aggravated by agents such as dust, chemical fumes 
 
                 or cold weather.
 
            
 
            (Exhibit 3, pages 6 and 7)
 
            
 
                 William has been evaluated and treated at the 
 
            University of Iowa Hospitals and Clinics in the Division of 
 
            Pulmonary Disease.  The primary physician has been David A. 
 
            Schwartz, M.D., Assistant Professor of Medicine and Director 
 
            of Occupational Medicine.  Dr. Schwartz concluded that 
 
            William has a fairly clear-cut case of occupational asthma 
 
            related to dust exposures in his work place, particularly 
 
            corn dust and various substances associated with hog 
 
            confinement (exhibits 4, 5 and 6).
 
            
 
                 William has also been evaluated by Des Moines pulmonary 
 
            medicine specialist Gregory A. Hicklin, M.D.  Dr. Hicklin 
 
            expressed the opinion that William's bronchial asthma is 
 
            causally connected to his work in hog confinement facilities 
 
            or grain bins.  In his report, exhibit 7, he states:
 
            
 
                 Causation of bronchial asthma is temporarily 
 
                 [sic--temporally??] related with work in a hog 
 
                 confinement operation or grain bins.  The hog 
 
                 confinement environment has shown to be a cause of 
 
                 bronchial asthma and I feel that the temporal 
 
                 relationship between exposure to an environment 
 
                 known to produce asthma and well documented 
 
                 bronchial asthma is sufficient to make the 
 
                 connection between the two.  It is also cogent and 
 
                 informative to note that he can work in these 
 
                 environment [sic] if he wears a respiratory device 
 
                 with appropriate filters.
 
            
 
                 In summary, it is my opinion, based on the review 
 
                 of medical records, that Mr. Senne does have 
 
                 occupationally induced bronchial asthma of a mild 
 
                 degree.  Even after avoidance and medication, 
 
                 including Proventil and Azmacort, there is a mild 
 
                 decrease in his flow rate suggesting some degree 
 
                 of ongoing impairment.
 
            
 
            (Exhibit 7, pages 1 and 2)
 
            
 
                 In a subsequent report, exhibit 8, which was issued 
 
            December 28, 1990 after Dr. Hicklin evaluated the claimant, 
 
            substantially the same information appears:
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
            
 
            
 
            
 
                 I think that Mr. Senne does have obstructive 
 
                 airways disease with documented reversibility 
 
                 following inhaled bronchodilators and a positive 
 
                 Methacholine Challenge Test, leading me to 
 
                 conclude at least part of the obstructive airways 
 
                 disease is bronchial asthma.  It's [sic] 
 
                 occurrence was temporally related to his work in a 
 
                 hog confinement building and grain bin 
 
                 environment, which are known to cause bronchial 
 
                 asthma.  One must speculate that the occupational 
 
                 exposure was a likely cause.  However, the 
 
                 persistence of symptoms away from this environment 
 
                 is hard to explain.
 
            
 
                 Mr. Senne has objective measurement of lung 
 
                 function and cardiopulmonary response to exercise, 
 
                 which show near normal lung function and a good 
 
                 degree of cardiovascular and pulmonary fitness.  
 
                 This is in contrast to his complaints of shortness 
 
                 of breath, fatigue, and inability to get his air.  
 
                 I would expect, that based on measure objective 
 
                 responses, that he should be able to do any job he 
 
                 wants on a fitness basis.  Certainly, it is 
 
                 appropriate for him to continue to wear a 
 
                 respirator when he is in such environments as hog 
 
                 confinement buildings or dusty grain bins.
 
            
 
                 It is unknown, the nature of the illnesses that 
 
                 forced him to take time off from work.  By 
 
                 history, it is not clear that these are episodes 
 
                 of asthma, nor is it clear why he feels he is 
 
                 unable to work as fast as he feels he should.
 
            
 
                 Currently, there is no evidence of disability or 
 
                 impairment; although, his pulmonary function tests 
 
                 do show a slight decrease in his FEF 25/75.
 
            
 
            (Exhibit 8, page 4)
 
            
 
                 It is found that Drs. Cafaro, Schwartz and Hicklin are 
 
            correct in their assessments of this case in contrast to the 
 
            assessment made by Dr. Zorn.  All four are well-qualified 
 
            specialists, but the scenario of William Senne being 
 
            essentially symptom-free for a number of years, working in 
 
            an environment which has been known to produce the condition 
 
            which afflicts him and the fact that he has now, after 
 
            several years of exposure, contracted that condition is 
 
            found to be corroborative of the opinion issued by the 
 
            majority of the physicians, namely, that the employment 
 
            exposures caused the asthma.  It is also noted that the 
 
            record does not show that any of claimant's blood relatives 
 
            have a similar asthmatic condition.
 
            
 
                 Pursuant to the stipulation made at hearing, it is 
 
            found that the absences from work shown on exhibit 9 were 
 
            all related to the asthmatic condition.
 
            
 

 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
            
 
            
 
                 It is further found that the assessment made by the 
 
            physicians which in general is that claimant can continue to 
 
            perform his work so long as he avoids dust or wears an 
 
            appropriate mask or respirator when in dust environments is 
 
            correct.  The objective testing of his pulmonary function 
 
            shows no major impairment.
 
            
 
                 William Senne continues to be employed by the same 
 
            employer performing the same type of work at essentially the 
 
            same level of wages as he enjoyed prior to the time that his 
 
            condition was diagnosed.
 
            
 
                                conclusions of law
 
            
 
                 The parties stipulated that William Senne sustained an 
 
            injury on October 10, 1988 which arose out of and in the 
 
            course of his employment.  That stipulation is not entirely 
 
            correct to the extent that it purports to stipulate as to 
 
            the application of law to fact.  Parties may stipulate to 
 
            facts, but may not stipulate to the controlling law.  
 
            Restricting a decision to the particular theory of injury 
 
            pled by the claimant would allow a claimant and defendant to 
 
            make a mutual agreement to the detriment of a third party.  
 
            An award of benefits should be based on the evidence 
 
            presented and not turn on the technicalities of pleading.  
 
            McCoy v. Donaldson Co., I IAWC Decisions of the Iowa 
 
            Industrial Commissioner 400 (App. Decn., file number 752670, 
 
            1989).  Technicalities of pleading are not to be applied in 
 
            cases under the workers' compensation laws.  Yeager v. 
 
            Firestone Tire & Rubber Co., 253 Iowa 369, 112 N.W.2d 299 
 
            (1961); Yates v. Humphrey, 218 Iowa 792, 799, 255 N.W. 639 
 
            (1934).  Even though the claimant pled this case as an 
 
            injury claim under chapter 85 of The Code and the parties 
 
            stipulated accordingly, the facts show that William Senne's 
 
            condition is an occupational disease which is covered by 
 
            chapter 85A of The Code.  His condition has been termed by 
 
            his physicians as occupational asthma.  The record shows 
 
            long-term exposure to dust and no particular single 
 
            traumatic event.  The disease has been shown by the evidence 
 
            to be clearly causally related to the exposure to the 
 
            harmful dusts of claimant's employment.  The dusts of grain 
 
            bins and hog confinement facilities are certainly more 
 
            prevalent in claimant's occupation than in everyday life or 
 
            other occupations.  Claimant's entitlement to benefits is 
 
            therefore properly determined under chapter 85A of The Code.  
 
            McSpadden v. Big Ben Coal Co., 288 N.W.2d 181, 190 (Iowa 
 
            1980); section 85A.8, Code of Iowa.  Since the claimant's 
 
            condition is an occupational disease, it is not proper under 
 
            the law to pay benefits under the provisions of chapter 85 
 
            of The Code [section 85.61(5)(b), Code of Iowa] since the 
 
            condition is not an injury.  The proper analysis to be used 
 
            when determining whether any condition is to be compensated 
 
            as an occupational disease rather than a cumulative trauma 
 
            injury is to first analyze whether the condition falls 
 
            within the definition of occupational disease.  If it does, 
 
            section 85.61(5)(b) prevents the condition from being 
 
            treated as an injury.  If it is excluded under that section, 
 
            then no payments are recoverable on account of injury under 
 

 
            
 
            Page   6
 
            
 
            
 
            
 
            
 
            
 
            
 
            the workers' compensation law and therefore the restriction 
 
            on liability found in Code section 85A.14 does not become 
 
            applicable.  It is noted that in making the legal analysis 
 
            the definition of "injury" specifically excludes 
 
            occupational diseases, while the definition of "occupational 
 
            disease" contains no corresponding specific exclusion of 
 
            injuries.  The only exclusion found in section 85A.14 is for 
 
            those cases where workers' compensation benefits are 
 
            properly payable on account of injury.
 
            
 
                 The distinction between injury and occupational disease 
 
            can have a very significant impact upon the benefits that 
 
            are payable.  Under the occupational disease law, no 
 
            compensation for permanent disability is payable until such 
 
            time as the threshold of disablement is reached as defined 
 
            in Code section 85A.4.  That threshold has not been reached 
 
            in this case.  Doerfer Div. of CCA v. Nicol, 359 N.W.2d 428, 
 
            438 (Iowa 1984).  Claimant is therefore entitled to recover 
 
            only medical expenses and temporary total disability in 
 
            accordance with sections 85A.5, 85A.17 and 85.32 of The 
 
            Code.
 
            
 
                 Claimant has been absent from work on account of his 
 
            condition as shown in exhibit 9.  The total time off is 13 
 
            and 4/7 weeks.  It can be argued that all times off work are 
 
            one period of disability related to the single occupational 
 
            disease.  It can likewise be argued that each absence is a 
 
            separate injury or event in the nature of an aggravation of 
 
            what has become a preexisting condition and that a three-day 
 
            exclusion is applicable.  It is noted that the claimant has 
 
            met the threshold of disablement for those days he has been 
 
            absent from work, but that the disablement is only 
 
            temporary.  Accordingly, his entitlement to compensation is 
 
            for temporary disability.  It is concluded that claimant's 
 
            entitlement is to be determined under sections 85.32 and 
 
            85A.17 of The Code with each separate absence constituting a 
 
            portion of a running period of temporary total disability 
 
            which is interrupted by returning to work.  Based upon the 
 
            foregoing, claimant is entitled to recover weekly 
 
            compensation for the periods listed in exhibit 9.  The total 
 
            amount payable is 13 and 4/7 weeks, an amount slightly more 
 
            than that which has been previously paid according to the 
 
            stipulation made by the parties in the prehearing report.
 
            
 
                 Under the provisions of section 85A.5, the employer and 
 
            its insurance carrier are responsible for providing benefits 
 
            under section 85.27 of The Code to the claimant.  This 
 
            includes the costs of masks and respirators as prescribed by 
 
            the authorized treating physicians.
 
            
 
                 It is concluded that William C. Senne is entitled to 
 
            recover benefits under chapter 85A of The Code for the 
 
            occupational disease of occupational asthma and that Cedar 
 
            Valley Farm Service and The Hartford are responsible for 
 
            payment of those benefits.  It is further concluded that he 
 
            is not entitled to any recovery for permanent partial 
 

 
            
 
            Page   7
 
            
 
            
 
            
 
            
 
            
 
            
 
            disability since he has not met the permanent disablement 
 
            threshold of Code section 85A.4.
 
            
 
                 The parties stipulated that the rate of compensation is 
 
            $216.00 per week.  That amount is not found in the benefit 
 
            scheduled published by the Division of Industrial Services.  
 
            The closest rate found in the schedule is $215.82.
 
            
 
                                      order
 
            
 
                 IT IS THEREFORE ORDERED that defendants pay claimant 
 
            thirteen (13) and four-sevenths (4/7) weeks of compensation 
 
            for temporary total disability, payable at the rate of two 
 
            hundred fifteen and 82/100 dollars ($215.82) per week as 
 
            follows:
 
            
 

 
            
 
            Page   8
 
            
 
            
 
            
 
            
 
            
 
            
 
                 Seven (7) and five-sevenths (5/7) weeks payable
 
                    commencing October 12, 1988;
 
                 Three-sevenths (3/7) weeks payable commencing
 
                    February 22, 1989;
 
                 One (1) week payable commencing November 13, 1989;
 
                 Two (2) weeks payable commencing March 26, 1990;
 
                 Six-sevenths (6/7) weeks payable commencing
 
                    January 25, 1991; and,
 
                 One-seventh (1/7) week payable on each of the
 
                    following dates, to wit:  January 27, 1989;
 
                    February 13, 1989; March 22, 1989; December 15,
 
                    1989; February 9, 1990; February 15, 1990; April 19,
 
                    1990; May 24, 1990; June 28, 1990; June 29, 1990;
 
                    and, September 20, 1990
 
            
 
            Defendants are entitled to credit in the amount of two 
 
            thousand three hundred seventy-two and 08/100 dollars 
 
            ($2,372.08) for amounts previously paid and shall pay the 
 
            balance in a lump sum with interest pursuant to Iowa Code 
 
            section 85.30.
 
            
 
                 IT IS FURTHER ORDERED that the costs of this action are 
 
            assessed against defendants pursuant to rule 343 IAC 4.33.
 
            
 
                 IT IS FURTHER ORDERED that defendants shall file claim 
 
            activity reports as requested by the agency pursuant to rule 
 
            343 IAC 3.1.
 
            
 
                 Signed and filed this ______ day of ____________, 1991.
 
            
 
                 
 
            
 
                 
 
                 
 
                                          ______________________________
 
                                          MICHAEL G. TRIER
 
                                          DEPUTY INDUSTRIAL COMMISSIONER
 
            
 
            Copies To:
 
            
 
            Mr. Robert C. Andres
 
            Attorney at Law
 
            East 4th & Sycamore
 
            P.O. Box 2634
 
            Waterloo, Iowa  50704-2634
 
            
 
            Mr. George H. Capps
 
            Attorney at Law
 
            P.O. Box 971
 
            Des Moines, Iowa  50304
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                           1108.40; 1801; 1803
 
                           2203; 2901
 
                           Filed May 9, 1991
 
                           MICHAEL G. TRIER
 
            before the iowa industrial commissioner
 
            ____________________________________________________________
 
                      :
 
            WILLIAM C. SENNE,   :
 
                      :
 
                 Claimant, :
 
                      :
 
            vs.       :         File No. 900344
 
                      :
 
            CEDAR VALLEY FARM SERVICE,    :      A R B I T R A T I O N
 
                      :
 
                 Employer, :         D E C I S I O N
 
                      :
 
            and       :
 
                      :
 
            THE HARTFORD,  :
 
                      :
 
                 Insurance Carrier,  :
 
                 Defendants.    :
 
            ____________________________________________________________
 
            
 
            1108.40; 1801; 1803; 2203
 
            The greater weight of the medical evidence establishes that 
 
            the claimant had contracted occupational asthma as a result 
 
            of dust exposures through his employment.  Claimant had not, 
 
            however, reached the threshold of disablement and was not 
 
            awarded any permanent partial disability compensation.  
 
            Claimant was awarded temporary total disability for 
 
            temporary disablement with each period of disablement being 
 
            treated as a part of a running, interrupted temporary total 
 
            disability award.
 
            
 
            2901
 
            Even though the condition was pleaded as injury and the 
 
            parties stipulated to injury, the case was determined under 
 
            chapter 85A since the facts showed the claimant's condition 
 
            to be an occupational disease rather than an injury.