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.