BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
          MICHAEL DEAN HANSEN,
 
         
 
                Claimant,
 
         
 
          VS.                                         File No. 900508
 
         
 
          U. S. ASPHALT,                           A R B I T R A T I O N
 
         
 
                Employer,                               D E C I S I O N
 
         
 
          and
 
         
 
         
 
         LIBERTY MUTUAL INSURANCE CO.,
 
         
 
                Insurance Carrier,
 
                Defendants.
 
         
 
         
 
         
 
                              STATEMENT OF THE CASE
 
         
 
              This is a proceeding in arbitration wherein Michael Dean 
 
         Hansen seeks to recover additional compensation for healing 
 
         period and permanent partial disability based upon an injury of 
 
         May 7, 1987.  Defendants stipulate to the occurrence of an injury 
 
         and have paid two and three-sevenths weeks of compensation under 
 
         the Nebraska Workers' Compensation Act for which they seek 
 
         credit.  Defendants dispute the claim for additional healing 
 
         period and permanent partial disability compensation.
 
         
 
              The case was heard and fully submitted at Council Bluffs, 
 
         Iowa on February 21, 1990.  The record in the proceeding consists 
 
         of testimony from Michael Dean Hansen and Deanna J. Rogge, D.C., 
 
         jointly offered exhibits 1 through 6, and claimant's exhibit A.
 
         
 
                                 FINDINGS OF FACT
 
         
 
              Michael Dean Hansen is a 25-year-old man who dropped out of 
 
         school following completion of the ninth grade.  His work history 
 
         includes herding livestock at the Omaha stockyards, operating 
 
         equipment such as trucks, caterpillar tractors, road graders, 
 
         asphalt rollers and loaders and other types of work which are 
 
         generally in the nature of moderate or heavy labor.
 
         
 
         
 
         
 
         HANSEN v. U. S. ASPHALT
 
         Page 2
 
         
 
         
 
              On May 7, 1987, Hansen was scooping asphalt with a scoop 
 
         shovel while working on a project for the employer.  He 
 
         experienced the onset of pain in his lower back and found that he 
 
         was bent over and unable to straighten up.  He sought treatment 
 
         immediately from Deanna J. Rogge, D.C.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              Dr. Rogge provided claimant with chiropractic treatment 
 
         commencing on May 7, 1987 and running through May 23, 1987 
 
         (exhibits 2, 3 and 4).  The final diagnosis was acute subluxation 
 
         of the lumbar and lumbosacral spine with resultant intervertebral 
 
         disc syndrome with bilateral extension sciatic neuralgia.  Dr. 
 
         Rogge indicated that a final prognosis in the case was deferred, 
 
         but that some type of post-traumatic pathology was probable 
 
         (exhibit 5).  Dr. Rogge authorized claimant to return to work on 
 
         May 25, 1987 with a restriction of light duty and a lifting limit 
 
         of 15 pounds.  She recommended continued chiropractic care 
 
         (exhibit 3).
 
         
 
              Hansen did return to work for the employer on May 25, 1987 
 
         and continued to work for the employer until July 4, 1987 when he 
 
         resigned.  Hansen explained that when he returned to work, the 
 
         employer assigned him to operate the asphalt roller and other 
 
         machines.  Hansen stated that the machines vibrated so severely 
 
         that he was unable to endure the pain and resigned.
 
         
 
              After a period of unemployment, Hansen worked tending 
 
         vending machines.  He subsequently obtained his present job as a 
 
         truck driver for a lumberyard.  Hansen restricts his lifting 
 
         activities.  He complained of continuing pain and discomfort in 
 
         his lower back and in both legs.
 
         
 
              Hansen was evaluated by orthopaedic surgeon Daniel J. 
 
         Larose, M.D., on February 8, 1990.  Dr. Larose found no objective 
 
         evidence of injury and no permanent impairment.  He characterized 
 
         claimant's complaints of pain as surprising and somewhat 
 
         suspicious.  Dr. Larose reported that the probability of having 
 
         two years' duration of back pain, without any objective findings, 
 
         following an apparently minor injury is small (exhibit 1).
 
         
 
              It is found that Michael Dean Hansen was temporarily totally 
 
         disabled and unable to perform the normal duties of his 
 
         employment during the period of time that he was under the 
 
         treatment of Dr. Rogge.  It is also found that his complaints of 
 
         pain and discomfort are exaggerated and that the assessment made 
 
         by Dr. Larose regarding the lack of any permanent disability is 
 
         correct.
 
         
 
         
 
         
 
         HANSEN v. U. S. ASPHALT
 
         Page 3
 
         
 
         
 
                                CONCLUSIONS OF LAW
 
         
 
              Claimant has the burden of proving by a preponderance of the 
 
         evidence that he received an injury on May 7, 1987 which arose 
 
         out of and in the course of his employment.  McDowell v. Town of 
 
         Clarksville, 241 N.W.2d 904 (Iowa 1976); Musselman v. Central 
 
         Telephone Co., 261 Iowa 352, 154 N.W.2d 128 (1967).
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              The claimant has the burden of proving by a preponderance of 
 
         the evidence that the injury of May 7, 1987 is causally related 
 
         to the disability on which he now bases his claim.  Bodish v. 
 
         Fischer, Inc., 257 Iowa 516, 133 N.W.2d 867 (1965).  Lindahl v. 
 
         L. 0. Boggs, 236 Iowa 296, 18 N.W.2d 607 (1945).  A possibility 
 
         is insufficient; a probability is necessary.  Burt v. John Deere 
 
         Waterloo Tractor Works, 247 Iowa 691, 73 N.W.2d 732 (1955).  The 
 
         question of causal connection is essentially within the domain of 
 
         expert testimony.  Bradshaw v. Iowa Methodist Hospital, 251 Iowa 
 
         375, 101 N.W.2d 167 (1960).
 
         
 
              It has previously been found that Hansen was temporarily 
 
         disabled for a period of two and three-sevenths weeks, but that 
 
         he has no permanent disability as a result of the May 7, 1987 
 
         injury.  His entitlement to weekly compensation is therefore two 
 
         and three-sevenths weeks payable commencing May 8, 1987 at the 
 
         stipulated rate of $193.63 per week.
 
         
 
              Payments paid under the workers' compensation law of one 
 
         state are credited to workers' compensation liability in any 
 
         other state.  Thomas v. Washington Gas Light Co., 448 U.S. 261, 
 
         100 S. Ct. 2647, 65 L. Ed. 2d 757 (1980); George H. Wentz, Inc. 
 
         v. Sabasta, 337 N.W.2d 495, 498 (Iowa 1983).  Defendants are 
 
         therefore entitled to full credit for the benefits paid to Hansen 
 
         under the Nebraska Workers, Compensation Act.
 
         
 
                                      ORDER
 
         
 
              IT IS THEREFORE ORDERED that defendants pay Michael Dean 
 
         Hansen two and three-sevenths (2 3/7) weeks of compensation for 
 
         temporary total disability at the stipulated rate of one hundred 
 
         ninety-three and 63/100 dollars ($193.63) per week payable 
 
         commencing May 8, 1987.  The entire amount thereof is accrued, 
 
         past due and owing and shall be paid to claimant in a lump sum 
 
         together with interest pursuant to section 85.30 of The Code 
 
         after crediting defendants with the two hundred thirteen and 
 
         33/100 dollars ($213.33) paid to claimant under the Nebraska 
 
         Workers' Compensation Act.
 
         
 
         
 
         
 
         HANSEN v. U. S. ASPHALT
 
         Page 4
 
         
 
         
 
              IT IS FURTHER ORDERED that the costs of this proceeding are 
 
         assessed against defendants pursuant to Division of Industrial 
 
         Services Rule 343-4.33.
 
         
 
              IT IS FURTHER ORDERED that defendants file claim activity 
 
         reports as requested by this agency pursuant to Division of 
 
         Industrial Services Rule 343-3.1.
 
         
 
              Signed and filed this 26th day of June, 1990.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
         
 
         
 
         
 
         
 
         
 
         
 
                                         MICHAEL G. TRIER
 
                                         DEPUTY INDUSTRIAL COMMISSIONER
 
         
 
         Copies To:
 
         
 
         Mr. Lyle A. Rodenburg
 
         Attorney at Law
 
         100 Park Building
 
         Council Bluffs, Iowa  51503
 
         
 
         Mr. James E. Thorn
 
         Attorney at Law
 
         310 Kanesville Blvd.
 
         P.O. Box 398
 
         Council Bluffs, Iowa 51502
 
         
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
 
         
 
 
 
 
 
 
 
 
 
 
 
                                         1704, 5-1801
 
                                         Filed June 26, 1990
 
                                         MICHAEL G. TRIER
 
         
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         MICHAEL DEAN HANSEN,
 
         
 
               Claimant,
 
         
 
          VS.                                         File No. 900508
 
         
 
          U. S. ASPHALT,                            A R B I T R A T I O N
 
         
 
               Employer,                                D E C I S I O N
 
         
 
          and
 
         
 
         LIBERTY MUTUAL INSURANCE CO.,
 
         
 
               Insurance Carrier,
 
               Defendants.
 
         
 
         
 
         
 
         
 
         1704, 5-1801
 
         
 
              Claimant awarded two and three-sevenths weeks temporary 
 
         total disability.  Employer granted credit for benefits paid 
 
         under the Nebraska Workers' Compensation Act.
 
         
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
 
            
 
            Page   1
 
            
 
            
 
            
 
            
 
            before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            LYLE RIDNOUR,                 :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :      File No. 900513
 
            CLARINDA MENTAL HEALTH        :
 
            TREATMENT,                    :
 
                                          :        A P P E A L
 
                 Employer,                :
 
                                          :      D E C I S I O N
 
            and                           :
 
                                          :
 
            STATE OF IOWA,                :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            The record, including the transcript of the hearing before 
 
            the deputy and all exhibits admitted into the record, has 
 
            been reviewed de novo on appeal.  The decision of the deputy 
 
            filed August 2, 1991 is affirmed and is adopted as the final 
 
            agency action in this case, with the following additional 
 
            analysis:
 
            The Iowa Supreme Court has recently interpreted Iowa Code 
 
            section 85A.12.
 
            
 
                    Iowa Code section 85A.12 does not yield to such 
 
                 an interpretation.  This is because, although the 
 
                 claimant contends otherwise, we are not dealing 
 
                 with a statute of limitation.  The provision does 
 
                 not list times within which claims must be 
 
                 brought, a routine ingredi______
 
                               BYRON K. ORTON
 
                          INDUSTRIAL COMMISSIONER
 
            
 
            Copies To:
 
            
 
            Mr. Sheldon M. Gallner
 
            Attorney at Law
 
            803 3rd Ave.
 
            P.O. Box 1588
 
            Council Bluffs, Iowa 51502
 
            
 
            Mr. James A. Pratt
 
            Attorney at Law
 
            508 South 8th Street
 
            Council Bluffs, Iowa 51501
 
            
 
            Mr. Craig Kelinson
 
            Assistant Attorney General
 
            Tort Claims Division
 
            Hoover State Office Bldg.
 
            Des Moines, Iowa 50319
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
            2203
 
            Filed December 16, 1991
 
            Byron K. Orton
 
            EAN
 
            before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            LYLE RIDNOUR,                 :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :      File No. 900513
 
            CLARINDA MENTAL HEALTH        :
 
            TREATMENT,                    :
 
                                          :        A P P E A L
 
                 Employer,                :
 
                                          :      D E C I S I O N
 
            and                           :
 
                                          :
 
            STATE OF IOWA,                :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
            2303
 
            Even if claimant were presumably exposed to tuberculosis at 
 
            his place of employment, he was not entitled to recover 
 
            under section 85A because his period of disablement did not 
 
            begin within one year of the last injurious exposure to the 
 
            disease.  Claimant was diagnosed as having tuberculosis in 
 
            January of 1986.  He was not disabled until November of 
 
            1988.  Claimant did not have a recurrent bout of 
 
            tuberculosis in the interim.  The claimant did not have a 
 
            right of recovery under Iowa Code section 85A.12.  Meyer v. 
 
            Iowa State Penitentiary, 476 N.W.2d 58 (Iowa 1991) (October 
 
            16, 1991) states section 85A.12 creates a right of recovery 
 
            and claimant must meet conditions of code before the statute 
 
            provides possible recovery.
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                      2203
 
                      Filed August 2, 1991
 
                      ELIZABETH A. NELSON
 
            before the iowa industrial commissioner
 
            ____________________________________________________________
 
                      :
 
            LYLE RIDNOUR,  :
 
                      :
 
                 Claimant, :
 
                      :
 
            vs.       :
 
                      :      File No. 900513
 
            CLARINDA MENTAL HEALTH   :
 
            TREATMENT,     :
 
                      :    A R B I T R A T I O N
 
                 Employer, :
 
                      :      D E C I S I O N
 
            and       :
 
                      :
 
            STATE OF IOWA, :
 
                      :
 
                 Insurance Carrier,  :
 
                 Defendants.    :
 
            ___________________________________________________________
 
            
 
            2203
 
            Claimant presumably exposed to tuberculosis at his place of 
 
            employment, was not entitled to recover under section 85A 
 
            because his period of disablement did not begin within one 
 
            year of the  last injurious exposure to the disease.  
 
            Claimant was diagnosed as having tuberculosis in January of 
 
            1986.  He did not leave work until November of 1988.  
 
            Claimant did not have a recurrent bout of tuberculosis in 
 
            the interim.
 
            
 
 
            
 
            Page   1
 
            
 
            
 
            
 
            
 
            
 
            
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            EFRAIN GONZALEZ,              :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :
 
            LINCOLN SALES & SERVICE, INC. :
 
                                          :         File No. 900515
 
                 Employer,                :
 
                 Self-Insured,            :      A R B I T R A T I O N
 
                                          :
 
            and                           :         D E C I S I O N
 
                                          :
 
            CRST, INC.,                   :
 
                                          :
 
                 Employer,                :
 
                                          :
 
            and                           :
 
                                          :
 
            REVIEW PLUS INSURANCE,        :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ____________________________________________________________
 
            
 
                              statement of the case
 
            
 
                 This is a proceeding in arbitration upon claimant's 
 
            petition filed January 23, 1989.  Claimant sustained an 
 
            injury to his arm on May 6, 1988 in a motor vehicle 
 
            accident.  He now seeks benefits under the Iowa Workers' 
 
            Compensation Act from self-insured employer Lincoln Sales & 
 
            Service, Inc., employer CRST, Inc., and insurance carrier 
 
            Review Plus Insurance.
 
            
 
                 Hearing on the arbitration petition was had in Cedar 
 
            Rapids, Iowa, on July 18, 1990.  The record consists of 
 
            claimant's testimony, claimant's exhibits 1 through 3 and 
 
            defendants' exhibits A through E, both inclusive.
 
            
 
                                      issues
 
            
 
                 Pursuant to the prehearing report, the parties have 
 
            stipulated:  that claimant sustained an injury on May 6, 
 
            1988, arising out of and in the course of employment with 
 
            Lincoln Sales & Service (although the existence of an 
 
            employment relationship with CRST is disputed); that the 
 
            injury caused temporary and permanent disability; that 
 
            claimant's entitlement to healing period benefits is from 
 
            the date of injury to September 12, 1988; that claimant has 
 
            sustained a permanent disability of 20 percent loss of the 
 
            arm; that the appropriate rate of weekly compensation is 
 
            $175.67; that affirmative defenses are waived (except for 
 
            lack of jurisdiction under Iowa Code section 85.71); that 
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            
 
            
 
            the fees charged for medical expenses are fair and 
 
            reasonable and were incurred for reasonable and necessary 
 
            medical treatment and are causally related to the work 
 
            injury; that defendants paid 10 and 5/7 weeks of 
 
            compensation at the rate of $190.00 per week prior to 
 
            hearing.
 
            
 
                 Issues presented for resolution include:  whether Iowa 
 
            has jurisdiction of this claim under section 85.71, and if 
 
            so, whether claimant was employed by CRST as opposed to 
 
            Lincoln Sales & Service.
 
            
 
                                 findings of fact
 
            
 
                 The undersigned deputy, having heard the testimony and 
 
            considered all of the evidence, finds:
 
            
 
                 At all times relevant, claimant was and is now a 
 
            resident of Chicago, Illinois.  During late 1988, he was 
 
            completing a truck driving course.  While so engaged, he 
 
            applied for work with CRST or Lincoln Sales & Service 
 
            ("Lincoln") in late December, 1987.  On December 28, 1987, 
 
            claimant visited a terminal operated by Lincoln in 
 
            Schererville, Indiana.  While there, he signed a series of 
 
            acknowledgements which in part relate to contemplated 
 
            employment with Lincoln.  One such acknowledgement was to 
 
            the effect that any compensation as the result of a workers' 
 
            compensation injury or illness would be governed by and 
 
            according to the benefits provided by the state of Indiana.  
 
            Claimant was sent to this terminal by the job placement 
 
            department of the driving school he had attended in Chicago.
 
            
 
                 Claimant interviewed with Bruce Shultz, a trainer.  
 
            Shultz indicated that he worked for CRST and that claimant 
 
            would also, but the paperwork prepared at the time indicated 
 
            that Shultz operated under the aegis of Lincoln.  Although 
 
            Shultz advised that "paperwork" would go to CRST in Cedar 
 
            Rapids for approval, claimant understood that he was hired 
 
            on the spot and was to report the following day for 
 
            training.  He did so, again in Indiana, and undertook an 
 
            orientation course and was given various tests.  Claimant 
 
            was given identification cards at his orientation.
 
            
 
                 Thereafter, claimant drove truck nationwide, not only 
 
            in the Midwest, but to both coasts.  He was dispatched by a 
 
            dispatcher operating out of Cedar Rapids for CRST.  Claimant 
 
            did not drive outside of the United States and has conceded 
 
            that his employment has never been "principally localized" 
 
            in the state of Iowa, that he never "regularly worked" in 
 
            the state of Iowa and has never been "domiciled" in this 
 
            state.
 
            
 
                 Claimant sustained a work injury on May 6, 1988, when 
 
            his truck was involved in an accident in the state of 
 
            Nebraska.  Claimant's partner was driving while claimant was 
 
            asleep in the sleeper compartment.
 
            conclusions of law
 
            
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            
 
            
 
                 Since this injury occurred outside the territorial 
 
            limits of Iowa, claimant may invoke Iowa jurisdiction only 
 
            if one of the four subsections of section 85.71 apply.
 
            
 
                 Subsection 1 applies if the employment is principally 
 
            localized in Iowa, the employer has a place of business in 
 
            this or some other state and the employee regularly works in 
 
            the state, or if the employee is domiciled in this state.  
 
            As claimant did not regularly work in the state and was not 
 
            domiciled in the state, he cannot invoke the provisions of 
 
            subparagraph 1.
 
            
 
                 Claimant did not work under a contract of hire made in 
 
            Iowa for employment outside the United States.  Therefore, 
 
            subparagraph 4 does not apply.
 
            
 
                 A prerequisite to invoking either subparagraph 2 or 3 
 
            is that the contract of hire be made in this state.  A 
 
            contract is generally considered to have been made in the 
 
            state where the offer is accepted.  Burch Mfg. Co. v. McGee, 
 
            231 Iowa 730, 2 N.W.2d 98 (1942).  The evidence in this case 
 
            clearly shows that the contract was made in the state of 
 
            Indiana.  The hiring agreement may have been subject to 
 
            approval by other corporate representatives, but the offer 
 
            and acceptance were in Indiana.  Claimant is of the view 
 
            that because paperwork was to be approved in Iowa, the 
 
            contract was made in Iowa.  However, no manifestation of 
 
            offer or acceptance occurred in the state of Iowa.  
 
            Corporate decision making may occur on numerous levels and 
 
            in numerous locales, but what is important is the location 
 
            in which the legal act occurred.  For example, postulate 
 
            that claimant's application might have been considered by a 
 
            geographically dispersed committee through a conference 
 
            telephone call, but this does not mean that the contract was 
 
            "made" in all of the states in which a participant sat at 
 
            the time.  Claimant applied for work in the state of Indiana 
 
            and was tendered employment in that state.
 
            
 
                 In George H. Wentz, Inc. v. Sabasta, 337 N.W.2d 495 
 
            (Iowa 1983), claimant was domiciled in Iowa, but hired and 
 
            injured in South Dakota where he performed all of his work.  
 
            The court found claimant's admission that he was hired in 
 
            South Dakota binding; therefore, the need to even discuss 
 
            subsections 2 through 4 was obviated.  The Wentz court cited 
 
            to Burch Mfg. for the proposition that generally, the place 
 
            a contract is formed is where the meeting of minds occurs or 
 
            where the final act necessary to form a binding contract 
 
            takes place.  While corporate officials in Iowa may have had 
 
            some impact on the corporate decision to hire claimant, the 
 
            meeting of minds and the last act necessary to constitute a 
 
            contract both took place in the state of Indiana.  As the 
 
            contract was made in Indiana, claimant cannot find relief 
 
            under subsections 2 or 3.
 
            
 
                 Because this agency lacks jurisdiction to adjudicate 
 
            this claim, it would be inappropriate to rule as to whether 
 
            CRST, in addition to Lincoln Sales & Service, was an 
 
            employer.
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
            
 
            
 
            
 
                                      order
 
            
 
                 THEREFORE, IT IS ORDERED:
 
            
 
                 As this agency lacks jurisdiction to adjudicate the 
 
            claim, claimant shall take nothing.
 
            
 
                 Costs of this action shall be assessed to claimant 
 
            pursuant to Division of Industrial Services Rule 343-4.33.
 
            
 
                 Signed and filed this ______ day of ____________, 1990.
 
            
 
                 
 
            
 
                 
 
                 
 
                                          ______________________________
 
                                          DAVID RASEY
 
                                          DEPUTY INDUSTRIAL COMMISSIONER
 
            
 
            Copies To:
 
            
 
            Mr. Wallace L. Taylor
 
            Attorney at Law
 
            630 Higley Building
 
            Cedar Rapids, Iowa  52401
 
            
 
            Mr. Richard P. Moore
 
            Attorney at Law
 
            2720 First Avenue NE
 
            P.O. Box 1943
 
            Cedar Rapids, Iowa  52406-1943
 
            
 
            
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                               2303
 
                                               Filed July 23, 1990
 
                                               DAVID RASEY
 
            before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            EFRAIN GONZALEZ,              :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :
 
            LINCOLN SALES & SERVICE, INC. :
 
                                          :         File No. 900515
 
                 Employer,                :
 
                 Self-Insured,            :      A R B I T R A T I O N
 
                                          :
 
            and                           :         D E C I S I O N
 
                                          :
 
            CRST, INC.,                   :
 
                                          :
 
                 Employer,                :
 
                                          :
 
            and                           :
 
                                          :
 
            REVIEW PLUS INSURANCE,        :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ____________________________________________________________
 
            
 
            2303
 
            Where claimant, domiciled in Illinois, made a contract of 
 
            hire in Indiana to drive a truck and the employment was not 
 
            localized in any state or outside the United States, this 
 
            agency lacked jurisdiction under Iowa Code section 85.71.
 
            
 
 
         
 
 
 
 
 
 
 
 
 
 
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         DAVID MILLAR,
 
         
 
               Claimant
 
         
 
         VS.
 
                                                      File No. 900518
 
         IOWA REALTY d/b/a VALLEY WEST
 
         INN,                                                  A R B I T R 
 
         A T I 0 N
 
         
 
               Employer,                              D E C I S I 0 N
 
         
 
         and
 
         
 
         CRUM & FORSTER COMMERCIAL INS.,
 
         
 
               Insurance Carrier,
 
               Defendants.
 
         
 
         
 
                              STATEMENT OF THE CASE
 
         
 
              This is a proceeding in arbitration brought by David Millar, 
 
         claimant, against Iowa Realty d/b/a Valley West Inn, employer 
 
         (hereinafter referred to as The Inn) , and Crum & Forster 
 
         Commercial Insurance Company, insurance carrier, defendants, for 
 
         workers' compensation benefits as a result of an alleged injury 
 
         on September 24, 1988.  On September 27, 1989, a hearing was held 
 
         on claimant's petition and the matter was considered fully 
 
         submitted at the close of this hearing.
 
         
 
              The parties have submitted a prehearing report of contested 
 
         issues and stipulations which was approved and accepted as a part 
 
         of the record of this case at the time of hearing.  Oral 
 
         testimony and written exhibits were received during the hearing 
 
         from the parties.  The exhibits offered into the evidence are 
 
         listed in the prehearing report.
 
         
 
              According to the prehearing report, the parties have 
 
         stipulated to the following matters:
 
         
 
              1. Claimant is seeking temporary total disability only from 
 
         September 24, 1988 through October 8, 1988, except for September 
 
         30 and October 1.  Defendants agree that claimant was not working 
 
         during this period of time for defendant employer.
 
         
 
              2. That the alleged injury is not a cause of permanent 
 
         disability at this time.
 
         
 
         
 
         
 
         MILLAR V. IOWA REALTY
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         Page 2
 
         
 
         
 
              3. Claimant's rate of weekly compensation in the event of an 
 
         award of weekly benefits from this proceeding shall be $119.75.
 
         
 
              4. With reference to the medical bills submitted by claimant 
 
         at hearing,. the providers would testify that the charges were 
 
         fair and reasonable and incurred by claimant for reasonable and 
 
         necessary treatment.  Defendants are not offering contrary 
 
         evidence.  However, defendants dispute the causal connection of 
 
         these expenses to the work injury.
 
         
 
                                      ISSUES
 
         
 
              The parties have submitted the following issues for 
 
         determination in this proceeding:
 
         
 
              I.  Whether claimant received an injury arising out of and 
 
         in the course of employment;
 
         
 
              II.  The extent of claimant's entitlement to temporary total 
 
         disability benefits; and,
 
         
 
              III.  The extent of claimant's entitlement to medical 
 
         benefits.
 
         
 
                              STATEMENT OF THE FACTS
 
         
 
              The following is a brief statement highlighting some of the 
 
         more pertinent evidence presented.  Whether or not specifically 
 
         referred to in this statement, all of the evidence received at 
 
         the hearing was independently reviewed and considered in arriving 
 
         at this decision.  Any conclusions about the evidence received 
 
         contained in the following statement shall be viewed as 
 
         preliminary findings of fact.
 
         
 
              Claimant testified that at the time of the alleged work 
 
         injury he was working as a cook for The Inn.  At approximately 
 
         6:15 a.m. on Saturday, September 24, 1988, claimant said that he 
 
         slipped and fell on the floor in the kitchen while handling a 
 
         five gallon pot of water.  He said that no one was present at the 
 
         time of the fall and that he reported the incident to his 
 
         supervisor, the chef, upon his arrival between 8:30 and 9:00 a.m. 
 
         Claimant said  that he experienced pain in his lower back and 
 
         upper shoulder after the fall but continued to work because no 
 
         replacement could be found for him.  He said that he filled out a 
 
         written accident report at the request of the general manager on 
 
         Sunday, September 25.  Claimant testified that he was told by his 
 
         superiors at The Inn to go to his own doctor.  He said that he 
 
         did not have enough money to do so but eventually went to the 
 
         free clinic at Broadlawns Hospital on Monday, September 26, 1988.  
 
         Claimant said that he was told at that time that there would be a 
 
         three hour waiting period so he left and returned on Tuesday, 
 
         September 27, 1988.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
         
 
         
 
         MILLAR V. IOWA REALTY
 
         Page 3
 
         
 
         
 
              According to the clinic notes of the staff physician and 
 
         physician's assistant at Broadlawns, claimant reported.a fall 
 
         in the kitchen at work three days prior in which he "injuring his 
 
         back, mainly on the right side."  Claimant at that time reported 
 
         past back problems, one as recently as a month prior which 
 
         required his rest for approximately three weeks.  Upon a 
 
         diagnosis of low back strain, the treating physician prescribed 
 
         physical therapy and medication.  Although not contained in the 
 
         clinical notes, the staff physician assistant, David Yurdin, 
 
         stated in a memo that he recommended claimant not do any 
 
         prolonged standing, lifting, bending or other activities which 
 
         aggravate his pain.
 
         
 
              Claimant returned to work only briefly for two days on 
 
         September 30 and October 1.  Claimant explained that he could not 
 
         perform his job at The Inn under the restrictions described by 
 
         Yurdin.  As instructed by Broadlawns, claimant returned to 
 
         Broadlawns after approximately two weeks on October 11, 1988, for 
 
         a follow-up visit.  Clinical notes indicate that the physicians 
 
         felt claimant had underwent a dramatic improvement at that time 
 
         with only a little sensitivity after prolonged standing.  At that 
 
         time, he was released by the physician and physician's assistant 
 
         to return to work without restrictions.
 
         
 
              At the time of the alleged work injury, claimant stated that 
 
         he was employed as a general manager of a vacuum cleaner sales 
 
         business working out of his home.  He stated that he handled the 
 
         hiring, training and paperwork of his sales staff.  He stated 
 
         that he also was engaged in sales work himself.  He said that he 
 
         continued this activity during recovery from his back strain but 
 
         was not able to do this work as well as before the injury.
 
         
 
              Upon his release to return to work at The Inn, claimant 
 
         immediately quit his employment with The Inn.  According to the 
 
         separation notice signed by claimant's supervisors, claimant left 
 
         the employment  in order to devote all of his time to his other 
 
         full time work.  Claimant testified that he resigned because he 
 
         could not work both jobs at the same time.  Claimant did not 
 
         specify in his testimony  the exact amount of time devoted to the 
 
         work at The Inn and his sales activity.
 
         
 
              Claimant currently complains of occasional back spasms after 
 
         sitting for prolonged periods of time and stated that he must 
 
         limit the amount of lifting he does in his current job.  He 
 
         explains that he has not continued treatment for lack of 
 
         financial resources.
 
         
 
                           APPLICABLE LAW AND ANALYSIS
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              Note:  A credibility finding is necessary to this decision 
 
         as defendants place claimant's credibility at issue
 
         
 
         
 
         
 
         MILLAR V. IOWA REALTY
 
         Page 4
 
         
 
         
 
         during cross-examination as to the occurrence of the injury and 
 
         resulting disability.  From his demeanor while testifying, 
 
         claimant will be found credible.
 
         
 
              I.  Claimant has the burden of proving by a preponderance of 
 
         the evidence that claimant received an injury which arose out of 
 
         and in the course of employment.  The words  out of" refer to the 
 
         cause or source of the injury.  The words "in the course of" 
 
         refer to the time and place and circumstances of the injury.  
 
         See Cedar Rapids Community Sch. v. Cady, 278 N.W.2d 298 (Iowa 
 
         1979) ; Crowe v. DeSoto Consol. Sch. Dist., 246 Iowa 402, 68 
 
         N.W.2d 63 (1955).  An employer takes an employee subject to any 
 
         active or dormant health impairments, and a work connected injury 
 
         which more than slightly aggravates the condition is considered 
 
         to be a personal injury.  Ziegler v. United States Gypsum Co., 
 
         252 Iowa 613, 620, 106 N.W.2d 591 (1960) and cases cited therein.
 
         
 
              Defendants essentially attack claimant's credibility in 
 
         denying that the injury actually occurred.  In their brief, they 
 
         note claimant's delay in reporting and receiving treatment of the 
 
         injury, the lack of objective evidence of the injury and that he 
 
         quit after he was released to return to work.
 
         
 
              Claimant testified that he reported the injury as soon as he 
 
         could to his supervisor, the chef, on the day of the injury.  
 
         This was not controverted by any of defendants' evidence.  
 
         Second, the lack of objective evidence did not prevent the 
 
         treating physicians from diagnosing a back strain.  Third, it is 
 
         not unusual in the experience of this agency for injured workers 
 
         to delay a few days in seeking treatment for back injuries, 
 
         especially persons who have had prior back problems.  Generally, 
 
         treatment is.sought when symptoms fail to quickly resolve after a 
 
         few days.  Finally, from his demeanor while testifying, claimant 
 
         will be found credible.  By virtue of his credible testimony, 
 
         claimant has shown that he sustained a work injury.  A finding of 
 
         whether or not this was a permanent injury or a temporary 
 
         aggravation of a prior existing back problem is not necessary as 
 
         claimant is not seeking permanent disability benefits in this 
 
         proceeding.
 
         
 
              II.  Claimant is seeking temporary total disability benefits 
 
         for the time he was unable to return to work as a cook.  Pursuant 
 
         to Iowa Code section 85.33(1), an injured worker is entitled to 
 
         such benefits from the date of injury until claimant returns to 
 
         work or until claimant is medically capable of returning to 
 
         substantially similar work to the work he was performing at the 
 
         time of the injury, whichever occurs first.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
         
 
         
 
         MILLAR V. IOWA REALTY
 
         Page 5
 
         
 
         
 
              It is unclear from the evidence presented the exact amount 
 
         of time claimant devoted to his work as a cook and to work in a 
 
         sales business.  It is clear, however, that claimant spent a 
 
         considerable amount of time in his sales activity as he felt the 
 
         need to quit when he was released to return to work as he.could 
 
         not do both of these jobs at the same time.  If claimant had only 
 
         briefly returned to work or only had occasional employment, 
 
         during the recovery period, such work would not affect his 
 
         temporary total disability benefits.  However, claimant appears 
 
         to have continued to engage in what apparently is his primary 
 
         work activity, vacuum cleaner sales and he quit the cooking job 
 
         at the first opportunity.  Therefore, claimant has failed to show 
 
         that he was temporary totally disabled during the period of time 
 
         he was recovering from the work injury.  Therefore, claimant is 
 
         not entitled to temporary total disability benefits.
 
         
 
              III.  Pursuant to Iowa Code section 85.27, claimant is 
 
         entitled to payment of reasonable medical expenses incurred for 
 
         treatment of a work injury.  Claimant requests payment of a $60 
 
         chiropractic bill for treatment he received on December 14, 1988.  
 
         This was well after his release to return to work by Broadlawns.  
 
         No physician has opined that this treatment or any of his current 
 
         difficulties are attributable to the fall in September of 1988.  
 
         Although it is possible for this agency to find causal connection 
 
         of a medical problem to a work injury without expert medical 
 
         opinion, this agency can do so only in limited situations where 
 
         there is a clear pattern of problems beginning with the date of 
 
         injury.  In this case, claimant admits to prior injuries, one of 
 
         which only occurred a month prior to the work injury which 
 
         appeared from a time lost standpoint to be more serious than the 
 
         work injury.  Therefore, a finding cannot be made on lay 
 
         testimony alone that claimant's current problems or the problems 
 
         in December of 1988 were the result of the September 1988 injury.  
 
         The medical bill requested therefore cannot be awarded.
 
         
 
              Although claimant takes nothing from this proceeding, 
 
         claimant will be awarded costs.  Defendants have denied a work 
 
         injury took place and a finding was made in claimant's favor on 
 
         this matter.  Also claimant's arguments appear to have been made 
 
         in good faith.
 
         
 
                                 FINDINGS OF FACT
 
         
 
              1.  Claimant was a credible witness.  Claimant's appearance 
 
         while testifying indicated that he was testifying truthfully.
 
         
 
              2.  On September 24, 1988, claimant suffered an injury to 
 
         his low back which arose out of and in the course of his
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
         
 
         
 
         MILLAR V. IOWA REALTY
 
         Page 6
 
         
 
         
 
         employment with The Inn.  Claimant suffered low back strain from 
 
         a fall at work as a cook.
 
         
 
              3.  The work injury of September 24, 1988, was not a cause 
 
         of a period of total disability from work.  Claimant was not able 
 
         to return to work as a cook from September 24, 1988 through 
 
         October 8, 1988, except for September 30 and October 1.  During 
 
         the time he was off work as a cook, claimant received treatment 
 
         of the work injury consisting of limitations on activity, 
 
         physical therapy and medications for pain.  However, claimant was 
 
         able to continue in sales activity work in which he devoted a 
 
         considerable amount of time in the management of the business out 
 
         of his home.  Claimant was compelled to resign from his 
 
         employment as a cook after his release to full duty following the 
 
         work injury because he could not perform work at both jobs at the 
 
         same time.  Claimant failed to show that he was totally disabled 
 
         during the times he was off work as a cook.
 
         
 
              4.  Claimant failed to show that the chiropractic bill he 
 
         incurred on December 18, 1988, was causally connected to the work 
 
         injury herein.
 
         
 
              5.  As the matter was not at issue, there is no finding as 
 
         to whether or not the work injury is a cause of permanent 
 
         disability.
 
         
 
                                CONCLUSIONS OF LAW
 
         
 
              Although claimant established that he suffered a work injury 
 
         on September 24, 1988, claimant failed to show entitlement to 
 
         further weekly or medical benefits.
 
         
 
              1.  The claimant's claim for weekly and medical benefits is 
 
         denied.
 
         
 
              2.  Defendants shall pay the costs of this action pursuant 
 
         to Division of Industrial Services Rule 343-4.33.
 
         
 
         
 
         
 
         
 
         
 
              Signed and filed this 27th day of March, 1990.
 
         
 
         
 
         
 
         
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
                                         LARRY P. WALSHIRE
 
                                         DEPUTY INDUSTRIAL COMMISSIONER
 
         
 
         
 
         
 
         MILLAR V. IOWA REALTY
 
         Page 7
 
         
 
         
 
         Copies To:
 
         
 
         Mr. Arvid D. Oliver
 
         Attorney at Law
 
         2635 Hubbell Ave
 
         Des Moines IA  50317
 
         
 
         Mr. Harry W. Dahl
 
         Attorney at Law
 
         974 73rd St, Suite 16
 
         Des Moines IA  50312
 
         
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
 
         
 
 
 
 
 
 
 
 
 
 
 
                                         1801
 
                                         Filed March 27, 1990
 
                                         LARRY P. WALSHIRE
 
         
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         DAVID MILLAR,
 
         
 
              Claimant,
 
         VS.                             File No. 900518
 
         
 
         IOWA REALTY (VALLEY WEST INN),  A R B I T R A T I O N
 
         
 
               Employer,                   D E C I S I O N
 
         
 
         and
 
         
 
         CRUM & FORSTER COMMERCIAL  INS.,
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
         
 
         1801 - Temporary total disability benefits
 
         
 
              A claim for temporary total disability benefits was denied. 
 
         Although claimant was not able to return to work as a cook 
 
         following the work injury, he was able to carry on his vacuum 
 
         cleaner sales  business during the period of recovery.  Upon his 
 
         release to return to work as a cook, two weeks after the injury, 
 
         claimant quit the cook job  because he said he could not devote 
 
         time to both jobs.
 
         
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                               5-1402.20, 5-1801
 
                                               Filed August 10, 1990
 
                                               MICHAEL G. TRIER
 
            before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            ROBERT HAULK,                 :
 
                                          :         File Nos. 881096
 
                 Claimant,                :                   894140
 
                                          :                   900519
 
            vs.                           :
 
                                          :      A R B I T R A T I O N
 
            ROADWAY EXPRESS, INC.,        :
 
                                          :         D E C I S I O N
 
                 Employer,                :
 
                 Self-Insured,            :
 
                 Defendant.               :
 
            ____________________________________________________________
 
            
 
            5-1402.20, 5-1801
 
            Claimant proved injury to his right elbow, but failed to 
 
            prove two alleged back injuries.  He was awarded six days of 
 
            temporary total disability benefits.
 
            
 
 
            
 
            Page   1
 
            
 
            
 
            
 
            
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            GREGORY PARHAM,               :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :         File No. 900530
 
            EXIDE CORPORATION,            :
 
                                          :      A R B I T R A T I O N
 
                 Employer,                :
 
                                          :         D E C I S I O N
 
            and                           :
 
                                          :
 
            WAUSAU INSURANCE COMPANIES,   :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
            
 
                              Statement of the case
 
            
 
                 This is a proceeding in arbitration upon the petition 
 
            of claimant, Gregory Parham, against his employer, Exide 
 
            Corporation, and its insurance carrier, Wausau Insurance 
 
            Company, defendants.  The case was heard on June 28, 1990, 
 
            in Burlington, Iowa at the Des Moines County Courthouse.  
 
            The record consists of the testimony of claimant as well as 
 
            the testimony of Barb Kirchgassner, plant nurse.  
 
            Additionally, the record consists of joint exhibits 1-30, 
 
            defendants' exhibit A and a copy of claimant's medical 
 
            expenses.
 
            
 
                                      issues
 
            
 
                 The sole issues to be determined are:  1) whether 
 
            claimant received an injury which arose out of and in the 
 
            course of employment; 2) whether there is a causal 
 
            relationship between the alleged injury and the disability; 
 
            3) whether claimant is entitled to temporary 
 
            disability/healing period benefits or permanent partial 
 
            disability benefits; 4) whether claimant is entitled to 
 
            medical benefits under section 85.27; and, 5) whether 
 
            claimant tendered notice under section 85.23.  (There is a 
 
            section 86.13 issue which has been bifurcated.)
 
            
 
                                 findings of fact
 
            
 
                 The deputy, having heard the testimony and considered 
 
            all the evidence, finds:
 
            
 
                 Claimant is 34 years old.  He was hired by 
 
            defendant-employer to drive a fork lift truck.  He worked 
 
            the 10:30 p.m. to 6:30 a.m. shift.  In order to drive the 
 
            truck, claimant was required to steer the wheel with his 
 
            left hand and to use a throttle with his right hand.  These 
 
            hand movements would control the movement of the truck.  
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            Claimant operated the truck at least six hours per day.
 
            
 
                 Claimant was installing a stereo system in his truck on 
 
            Saturday, October 8, 1988.  He bumped his left hand on a 
 
            metal portion of the vehicle.  Claimant testified he hit his 
 
            body at approximately one inch below the wrist and the 
 
            little finger.  Claimant also testified he was not bothered 
 
            by this incident subsequent to its occurrence.  However, 
 
            claimant did seek medical treatment at the Burlington 
 
            Medical Center on October 10, 1988.  Notes for the emergency 
 
            room of the Burlington Medical Center on October 10, 1988, 
 
            provide under the heading, "Nursing history/assessment:"
 
            
 
                 Pt states he was working on his car 10-8-88 & hit 
 
                 back door with the back of hand & wrist.  Able to 
 
                 flex and extend hand & wrist - states difficult to 
 
                 pull objects, good Radial pulse Left hand.
 
            
 
                 Claimant testified that on October 9, 1988, he was 
 
            working the third shift for defendant.  At approximately 
 
            3:00 a.m., on October 10, 1988, he experienced pain in his 
 
            left hand and arm.  He stated, he reported the pain to his 
 
            foreman, John Forester, and that he requested an aspirin for 
 
            the pain.  Claimant testified his pain occurred after 
 
            driving his fork lift truck.
 
            
 
                 Under the heading, description of illness or injury, 
 
            for the same hospital record as above, the note states:
 
            
 
                 pt sts hurt Lt wrist & hand while working on his 
 
                 car 10-08-88
 
            
 
                 X-rays were taken of the left hand on October 10, 1988.    
 
            G. Day, M.D., a radiologist provided in his report:
 
            
 
                 LEFT HAND:
 
            
 
                 Examination of the left hand shows no evidence of 
 
                 fracture or dislocation.  The bones and joints 
 
                 appear normal.
 
            
 
                 LEFT WRIST:
 
            
 
                 Examination of the left wrist shows no evidence of 
 
                 fracture, dislocation, or periarticular 
 
                 calcification.  The bones are of normal density.
 
            
 
                 IMP:
 
            
 
                 Normal left hand and wrist.
 
            
 
                 Claimant, several weeks later, completed a form for 
 
            employee disability income.  On the face of page one, 
 
            claimant wrote:
 
            
 
                 C. Description of accident or sickness I hit my 
 
                 hand,          might have been a nerv (sic) I Hit
 
            
 
                 D. Date of accident or beginning of sickness 
 
                 10-8-88        [x] AM [ ] PM
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            
 
                 E. Were you at work [] yes [x] no  Have you or 
 
                 will you  file for Workers' Compensation     
 
                 Benefits?
 
                 [ ] yes  [x] no
 
            
 
                     ...
 
            
 
                 On the same form, claimant's treating physician wrote:
 
            
 
                 Is condition due to injury or sickness arising out 
 
                 of patient's employment?
 
                [ ] yes
 
                [x] no
 
            
 
                 Claimant was referred to an orthopedic surgeon, Keith 
 
            W. Riggins, M.D.  Dr. Riggins examined claimant's left hand.  
 
            Eventually surgery for a trigger finger release of the left 
 
            thumb was performed on December 28, 1988.
 
            
 
                 Dr. Riggins' office notes revealed that claimant 
 
            complained of three week pain and dysesthesia of the left 
 
            median nerve on January 25, 1989.  The notes reflected 
 
            complaints of right hand pain to Dr. Riggins on February 8, 
 
            1989.  A motor nerve conduction test was performed on 
 
            February 8, 1989 by Burton Stone, M.D.  Dr. Stone opined:
 
            
 
                 The only finding is a mild increase in sensory 
 
                 distal latency on the right side.  Could represent 
 
                 early carpal tunnel syndrome, but not conclusive.
 
            
 
                 Dr. Riggins referred claimant to the University of Iowa 
 
            Hand Surgery Service.  Claimant was examined by Curtis M. 
 
            Steyers, M.D., on July 26, 1989.  Dr. Steyers continued to 
 
            treat claimant through February 21, 1990.  Originally, Dr. 
 
            Steyers diagnosed claimant as having right and left carpal 
 
            tunnel syndromes.  That diagnosis was ruled out.  Claimant 
 
            was later diagnosed as having flexor tenosynovitis of the 
 
            index and long fingers on the right
 
            
 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
            hand only.  As of February 21, 1990, Dr. Steyers diagnosed 
 
            claimant as having some residual flexor tenosynovitis in the 
 
            right index and long finger.
 
            
 
                 Claimant also sought treatment from William W. 
 
            Eversmann, Jr., M.D., at Iowa Medical Clinic, P.C., from 
 
            April 19, 1989 to June 16, 1989.  Dr. Eversmann diagnosed 
 
            claimant as having mild carpal tunnel syndrome on the left 
 
            side.  Dr. Eversmann wrote in his note of June 16, 1989:
 
            
 
                 On radiographic examination, there is evidence of 
 
                 an old fracture of the little metacarpal of the 
 
                 right hand, which is solidly healed and certainly 
 
                 no problem at this time.  I would guess that this 
 
                 fracture is in the range of about three months old 
 
                 or fourth [sic] months old, certainly not too much 
 
                 longer than that.  At the MP joints bilaterally, 
 
                 he has some congenital deformities with flattening 
 
                 of the MP heads which is not significant and is 
 
                 constitutional and has been present since birth.  
 
                 His radiographs are otherwise normal.
 
            
 
                 I have talked to Greg at some length.  I do 
 
                 believe he has a very mild  carpal tunnel syndrome 
 
                 on the left side, which has been adequately 
 
                 treated with the intermittent use of splints which 
 
                 he has used over the last several weeks.  I do not 
 
                 feel that I can make a diagnosis of any other 
 
                 significant condition in either upper extremity 
 
                 and I question honestly whether or not he is 
 
                 having significant symptoms, although he makes 
 
                 quite a large and loud case, almost histrionic at 
 
                 times for the pain distribution, which in many 
 
                 cases is non-anatomic, as I have described 
 
                 earlier.  I have little to offer this man at this 
 
                 time.  I think he has been adequately treated for 
 
                 his carpal tunnel and certainly with his present 
 
                 activity level, I do not expect it to recur using 
 
                 the splints intermittently.  I do not find any 
 
                 other diagnostic pattern with his symptom complex.  
 
                 I have suggested to him the possibility of a 
 
                 consultation for a work-up for systemic arthritis 
 
                 with either his family doctor or an internist 
 
                 locally in Burlington.  I find no indication to 
 
                 entertain that work-up here in Cedar Rapids that 
 
                 great of distance from his home, since I know 
 
                 there are qualified people to perform such a 
 
                 work-up closer to his living area.  I will plan on 
 
                 seeing him only as necessary.  I have not at any 
 
                 time taken this man off work, nor have I suggested 
 
                 to him that he should not work after any of our 
 
                 visits. (Eversmann) (VT)nr
 
            
 
                    
 
            
 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
            conclusions of law
 
            
 
                 Claimant has the burden of proving by a preponderance 
 
            of the evidence that he received an injury on October 10, 
 
            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). 
 
            
 
                 An employee is entitled to compensation for any and all 
 
            personal injuries which arise out of and in the course of 
 
            the employment.  Section 85.3(1).
 
            
 
                 The injury must both arise out of and be in the course 
 
            of the employment.  Crowe v. DeSoto Consol. Sch. Dist., 246 
 
            Iowa 402, 68 N.W.2d 63 (1955) and cases cited at pp. 405-406 
 
            of the Iowa Report.  See also Sister Mary Benedict v. St. 
 
            Mary's Corp., 255 Iowa 847, 124 N.W.2d 548 (l963) and Hansen 
 
            v. State of Iowa, 249 Iowa 1147, 91 N.W.2d 555 (1958).
 
            
 
                 The words "out of" refer to the cause or source of the 
 
            injury.  Crowe, 246 Iowa 402, 68 N.W.2d 63 (1955). 
 
            
 
                 The words "in the course of" refer to the time and 
 
            place and circumstances of the injury.  McClure v. Union 
 
            et al. Counties, 188 N.W.2d 283 (Iowa 1971); Crowe, 246 Iowa 
 
            402, 68 N.W.2d 63 (1955).
 
            
 
                 "An injury occurs in the course of the employment when 
 
            it is within the period of employment at a place the 
 
            employee may reasonably be, and while he is doing his work 
 
            or something incidental to it."  Cedar Rapids Comm. Sch. 
 
            Dist. v. Cady, 278 N.W.2d 298 (Iowa 1979), McClure, 188 
 
            N.W.2d 283 (Iowa 1971); Musselman, 261 Iowa 352, 154 N.W.2d 
 
            128 (1967). 
 
            
 
                 The opinions of experts need not be couched in 
 
            definite, positive or unequivocal language.  Sondag v. 
 
            Ferris Hardward, 220 N.W.2d 903 (Iowa 1974).  An opinion of 
 
            an expert based upon an incomplete history is not binding 
 
            upon the commissioner, but must be weighed together with the 
 
            other disclosed facts and circumstances.  Bodish, 257 Iowa 
 
            516, 133 N.W.2d 867 (1965).  The expert medical evidence 
 
            must be considered with all other evidence introduced 
 
            bearing on the causal connection between the injury and the 
 
            disability.  Burt, 247 Iowa 691, 73 N.W.2d 732 (1955).  In 
 
            regard to medical testimony, the commissioner is required to 
 
            state the reasons on which testimony is accepted or 
 
            rejected.  Sondag, 220 N.W.2d 903 (1974).
 
            
 
                 The claimant must prove by a preponderance of the 
 
            evidence that his injury arose out of and in the course of 
 
            his employment.  Musselman, 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, 188 
 
            N.W.2d 283 (Iowa 1971).
 
            
 

 
            
 
            Page   6
 
            
 
            
 
            
 
            
 
                 Arising out of suggests a causal relationship between 
 
            the employment and the injury.  Crowe, 246 Iowa 402, 68 
 
            N.W.2d 63 (1955).
 
            
 
                 The claimant has the burden of proving by a 
 
            preponderance of the evidence that the injury of October 10, 
 
            1988, is causally related to the disability on which he now 
 
            bases his claim.  Bodish v. Fischer, Inc., 257 Iowa 516, 133 
 
            N.W.2d 867 (1965).  Lindahl v. L. O. Boggs, 236 Iowa 296, 18 
 
            N.W.2d 607 (1945).  A possibility is insufficient; a 
 
            probability is necessary.  Burt v. John Deere Waterloo 
 
            Tractor Works, 247 Iowa 691, 73 N.W.2d 732 (1955).  The 
 
            question of causal connection is essentially within the 
 
            domain of expert testimony.  Bradshaw v. Iowa Methodist 
 
            Hospital, 251 Iowa 375, 101 N.W.2d 167 (1960). 
 
            
 
                 In the case at hand, claimant has not established by a 
 
            preponderance of the evidence that he has sustained an 
 
            injury which arose out of and in the course of his 
 
            employment.  Neither has claimant established the requisite 
 
            causal connection.  Claimant has admitted striking his hand 
 
            and wrist against his truck on October 8, 1988.  This 
 
            incident did occur outside of claimant's employment.  
 
            Subsequent to the incident, claimant did present himself at 
 
            the emergency room.  He reported the October 8, 1988 
 
            incident to the emergency room personnel.  He did not 
 
            attribute his left hand pain to driving a fork lift truck.  
 
            Nor did claimant report any right hand pain to the medical 
 
            personnel.
 
            
 
                 Several weeks later claimant completed an application 
 
            for disability income benefits.  He again cited the October 
 
            8, 1988 incident as the event which caused his alleged 
 
            disability.  Claimant specifically wrote that his disability 
 
            occurred when he had hit his hand and that he was not at 
 
            work.  Claimant never mentioned any accident involving his 
 
            right hand on that application form.
 
            
 
                 Claimant did not report a work injury to Barb 
 
            Kirchgassner, R.N., when he applied for disability income 
 
            benefits in October of 1988.  On the application he 
 
            expressly denied he was at work.  Ms. Kirchgassner was 
 
            unaware of any potential workers' compensation claim until 
 
            she received the notice of January 4, 1989.  It was sent by 
 
            certified mail.
 
            
 
                 Claimant's physician, Dr. Riggins, was provided with 
 
            the history of the October 8, 1988 incident.  His notes do 
 
            not reflect a history of repetitive motions at work until 
 
            his report of March 20, 1989, where he writes:
 
            
 
                 Mr. Gregory Parham was treated for a trigger thumb 
 
                 of the left hand which is not felt to be due to 
 
                 the episode of blunt injury described at work.  He 
 
                 subsequently, while off work, began to note 
 
                 symptoms of carpal tunnel syndrome in the right 
 
                 hand and has been referred to the University of 
 
                 Iowa Hand Surgery Service for their evaluations.  
 
                 Since the patient was off work when carpal tunnel 
 
                 symptoms developed, I would not consider them 
 

 
            
 
            Page   7
 
            
 
            
 
            
 
            
 
                 secondary to his work environment.
 
            
 
                 Initially, claimant was off work from October 10, 1988 
 
            to June 18, 1989.  Bilateral carpal tunnel-like symptoms did 
 
            not appear until claimant had been off work for some months.  
 
            His surgeon, Dr. Riggins, did not believe the symptoms were 
 
            secondary to claimant's work situation.  While it is noted 
 
            that Dr. Steyers causally related claimant's flexor 
 
            tenosynovitis to his work environment, Dr. Steyers had an 
 
            incomplete medical history.  Therefore, his testimony is not 
 
            given as much weight as the opinion of Dr. Riggins, the 
 
            treating surgeon.
 
            
 
                 Finally, there is the opinion of Dr. Eversmann.  He too 
 
            appears to have an incomplete medical history.  He also 
 
            questions the degree of claimant's symptoms.  In his office 
 
            notes of June 16, 1989, the physician makes note of his 
 
            opinion.
 
            
 
                 Finally, there is claimant's own testimony.  He was not 
 
            a credible witness at the hearing.  He denied completing the 
 
            employee disability income benefit application form.  His 
 
            denial was not believed by the undersigned.  Defendant's 
 
            attorney was able to satisfactorily challenge claimant's 
 
            credibility.
 
            
 
                 Therefore, in light of the foregoing, it is the 
 
            determination of the undersigned that claimant has not 
 
            proven by a preponderance of the evidence that he has 
 
            sustained an injury which arose out of and in the course of 
 
            his employment.  Nor has claimant proven the requisite 
 
            causal connection between claimant's claimed condition and 
 
            his work situation.
 
            
 
                                      order
 
            
 
                 THEREFORE, IT IS ORDERED:
 
            
 
                 Claimant takes nothing from these proceedings.
 
            
 
                 Costs of this action are assessed to claimant pursuant 
 
            to Division of Industrial Services Rule 343-4.33.
 

 
            
 
            Page   8
 
            
 
            
 
            
 
            
 
            
 
            
 
            
 
            
 
            
 
                 Signed and filed this ____ day of August, 1990.
 
            
 
            
 
            
 
            
 
            
 
                                          ______________________________               
 
            MICHELLE A. McGOVERN
 
                                          DEPUTY INDUSTRIAL COMMISSIONER
 
            
 
            Copies To:
 
            
 
            Mr. Patrick L. Woodward
 
            Attorney at Law
 
            321 North Third St
 
            Burlington  IA  52601
 
            
 
            Mr. Larry L. Shepler
 
            Attorney at Law
 
            Suite 102, Executive Sq
 
            400 Main St
 
            Davenport  IA  52801
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                               5-1100
 
                                               Filed August 29, 1990
 
                                               MICHELLE A. McGOVERN
 
            before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            GREGORY PARHAM,               :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :         File No. 900530
 
            EXIDE CORPORATION,            :
 
                                          :      A R B I T R A T I O N
 
                 Employer,                :
 
                                          :         D E C I S I O N
 
            and                           :
 
                                          :
 
            WAUSAU INSURANCE COMPANIES,   :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
            
 
            
 
            5-1100
 
            Claimant was not credible.  It was determined claimant did 
 
            not sustain an injury which arose out of and in the course 
 
            of his employment.
 
            
 
 
            
 
            Page   1
 
            
 
            
 
            
 
            
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            MERLE BOYCE,                  :
 
                                          :
 
                 Claimant,                :
 
                                          :        File No. 900543
 
            vs.                           :
 
                                          :
 
            ALUMINUM COMPANY OF AMERICA   :     A R B I T R A T I O N
 
                                          :
 
                 Employer,                :        D E C I S I O N
 
                 Self-Insured,            :
 
                 Defendant,               :
 
            ___________________________________________________________
 
            
 
                                   introduction
 
            
 
                 This is a proceeding in arbitration brought by the 
 
            claimant,  Merle Boyce, against Aluminum Company of America, 
 
            employer, self-employed, defendant, to recover benefits as a 
 
            result of an alleged injury sustained on January 22, 1987.  
 
            This matter came on for hearing before the deputy industrial 
 
            commissioner in Davenport, Iowa, on March 21, 1990.  The 
 
            record consists of the testimony of claimant, Ken Maxwell, 
 
            Kevin O'Brien, Kay Pille, and Gary Mlakar; Joint Exhibits 1 
 
            through 21; and defendants' Exhibit A and B.
 
            
 
                                      issues
 
            
 
                 The issues the parties set out in the prehearing report 
 
            for resolution are:
 
            
 
                 1.  Whether claimant's injury arose out of and in the 
 
            course of his employment on January 22, 1987;
 
            
 
                 2.  Whether claimant's disability is causally connected 
 
            to his January 22, 1987 injury;
 
            
 
                 3.  The nature and extent of claimant's disability;
 
            
 
                 4.  Whether claimant gave timely notice under Iowa Code 
 
            section 85.23; and
 
            
 
                 5.  Whether claimant timely filed his original notice 
 
            and petition as provided by Iowa Code section 85.26.
 
            
 
                              review of the evidence
 
            
 
                 Claimant testified in person at the hearing and by way 
 
            of deposition taken June 22, 1989.  Claimant said he is a 
 
            high school graduate and took one year of college training 
 
            in auto mechanics.  Claimant stated he did auto body work 
 
            for two years before he began working for defendant on 
 
            October 23, 1979.  Claimant described the various jobs and 
 
            duties he performed for defendant over the approximate 
 
            fourteen years before he left his employment in 1987.  
 
            Claimant testified at first that he was injured on January 
 
            22, 1987 while running a slitter machine which cuts and 
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            trims sheets of aluminum.  Claimant said that the machine 
 
            jammed with some scraps of aluminum and he tried to unjam 
 
            the machine.  Claimant stated that when the jamming broke 
 
            loose by his pulling, the aluminum sprang out like a coiled 
 
            spring hitting, cutting and bruising both arms in the area 
 
            of his hands and across his face.  Claimant said the wounds 
 
            were minor and no band aids were put on the wounds.  
 
            Claimant testified he sought medical help at the plant and 
 
            an outside doctor immediately and was returned to light duty 
 
            work with restrictions that same day. Claimant said he then 
 
            worked only two hours because his left arm was hurting too 
 
            much.
 
            
 
                 Claimant said he never worked again for defendant after 
 
            January 17, 1987 when he was red tagged (red carded).  Red 
 
            carded means the employee cannot come back to work for 
 
            medical reasons.  Claimant said he inquired about work but 
 
            was told by defendant that there was nothing for him to do 
 
            unless he is 100 percent whole.
 
            
 
                 Claimant related he has never been employed anywhere 
 
            since January 1987.  Claimant stated he received sickness 
 
            and accident benefits from January 1987 until they expired 
 
            approximately two years later.  Claimant said social 
 
            security awarded him benefits by a decision December 8, 1988 
 
            retroactive to January 23, 1987 to the present.  Claimant 
 
            testified he is 100 percent disabled for social security 
 
            purposes.
 
            
 
                 Claimant related his many physical problems since 
 
            January 1987, which included low back surgery, right knee 
 
            surgery, right and left shoulder surgery and therapy.
 
            
 
                 On cross-examination, claimant readily admitted his 
 
            injury occurred on January 16, 1987 and not January 22, 
 
            1987.  Claimant emphasized he has incurred no injuries of 
 
            any kind since January 16, 1987.  Claimant admitted he was 
 
            being medically treated for shoulder problems prior to 
 
            January 16, 1987 and, in fact, had a frozen shoulder at that 
 
            time.  Claimant said he injured his left shoulder in a 
 
            hunting accident.  He also admitted he was having low back 
 
            problems before January 16, 1987.
 
            
 
                 Claimant acknowledged he had a test performed on 
 
            January 20, 1987 regarding his back and is not claiming any 
 
            back problems as a result of his alleged slitter machine 
 
            accident of January 16, 1987.
 
            
 
                 Claimant cannot recall a January 1987 discussion with 
 
            Mlaker, Maxwell, Bacon and Campbell regarding his January 
 
            16, 1987 accident and workers' compensation and sickness and 
 
            accident benefits, but claimant did acknowledge he knew the 
 
            difference between workers' compensation and sickness and 
 
            accident benefits.
 
            
 
                 In his deposition, claimant contends he injured his 
 
            arms, back and shoulders three or four days before he was 
 
            red carded on January 22, 1987.  (Defendant's Exhibit A, 
 
            page 20)  Claimant then acknowledged that Deposition Exhibit 
 
            2 is the same as hearing Joint Exhibit 2 and that this 
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            exhibit correctly describes the accident.  This joint 
 
            exhibit reflects:
 
            
 
                 Q.  Is that an accurate description of the 
 
                 accident?
 
            
 
                 A.  Yes, because I believe I had a small scratch 
 
                 on my cheekbone too.  Just a small one.
 
            
 
                 Q.  Okay.  Then on that printed portion of the 
 
                 form, same Exhibit, it says, Nature of Injury, it 
 
                 says, quote, "left and right forearms, contusions, 
 
                 right forearm posterior surface, slight abrasions, 
 
                 good ROM, left forearm, posterior surface, 
 
                 abrasions and contusions.  C/O" -- for complains 
 
                 of -- "left shoulder pain.  States he bruised 
 
                 shoulder in November last year and presently under 
 
                 Dr. Miller's care for a bruised R cuff.  (Outside 
 
                 injury)," closed quotes.
 
            
 
                 In his deposition, claimant testified he injured his 
 
            left shoulder in a hunting accident prior to January 16, 
 
            1987, for which he received treatment and was scheduled for 
 
            an arthrogram on January 21, 1987.  Claimant claimed he 
 
            suffered bilateral frozen shoulders as a result of his 
 
            January 16, 1987 injury.  Claimant testified he had knee 
 
            problems and resulting surgery but indicated the January 16, 
 
            1987 injury in no way caused his knee problems.
 
            
 
                 Claimant testified in more detail in his deposition as 
 
            to medical problems, surgeries and contentions.  Due to the 
 
            nature of this case and other dominating issues, the 
 
            undersigned feels it unnecessary to set out claimant's 
 
            testimony in any more detail than has already been done.  It 
 
            will have no bearing in the ultimate decision herein.
 
            
 
                 Kay Pille, a registered nurse in defendant's medical 
 
            department for the last sixteen years, testified she knows 
 
            claimant.  She testified to certain exhibits, Joint Exhibits 
 
            1 and 2, in explaining claimant's complaints of abrasions 
 
            and contusions on January 16, 1987 to both his forearms and 
 
            a complaint regarding his left shoulder pain.  She said 
 
            claimant was told his left shoulder problem was an outside 
 
            (not workers' compensation) injury.  She said claimant told 
 
            her he was being treated for his shoulder already by a Dr. 
 
            Miller.  Pille said her last and the medical department's 
 
            last contact with claimant was on January 20, 1987.  She 
 
            said claimant had no further plant injury after January 16, 
 
            1987.  Pille also related the case number assignment to each 
 
            case as they came in.  Claimant's was 87-0026.
 
            
 
                 Gary Mlakar, defendant's senior job safety engineer on 
 
            January 16, 1987, testified he has been working for 
 
            defendant for the last ten and one-half years.  His job 
 
            includes investigating plant injuries.  He said he knows 
 
            claimant and met with him January 19, 1987 following 
 
            claimant's January 16, 1987 accident.  He acknowledged his 
 
            notes are reflected in Joint Exhibit 2.  He recalled other 
 
            defendant employers attending the meeting were Mr. Maxwell, 
 
            Mrs. Bacon, and Mr. Campbell.  He said the group concluded 
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
            claimant's forearm injuries were related and, therefore, a 
 
            workers' compensation matter and that claimant's shoulder 
 
            was already being treated and was not a workers' 
 
            compensation matter.  Mlaker indicated claimant appeared to 
 
            understand the difference between sickness and accident 
 
            benefits and workers' compensation benefits.  He 
 
            acknowledged Joint Exhibit 2, page 3, was his notes and 
 
            signature and reflects the conclusion of the meeting.
 
            
 
                 Ken Maxwell, claimant's shift supervisor on January 16, 
 
            1987, testified that Joint Exhibit 21 was signed by him on 
 
            January 16, 1987 after his department investigated 
 
            claimant's accident on that date.  He agreed that this 
 
            exhibit is the bottom part of Joint Exhibit 2, the injury, 
 
            illness and accident report, the top one-third of which is 
 
            originally filled out by the medical department.  He 
 
            testified the top one-third of Joint Exhibit 2 is identical 
 
            to the top one-third of Joint Exhibit 21.  Maxwell stated he 
 
            has been employed with defendant for eleven years.
 
            
 
                 Kevin O'Brien testified he is in the human resources 
 
            department at defendant and this department administers the 
 
            workers' compensation claims.  He said he has been employed 
 
            one year with defendant and has access to claimant's 
 
            employment records.  He explained the case number procedures 
 
            in which a case number is given to each injury report 
 
            chronologically on the day it is received.  He said 
 
            claimant's number given to his case on January 16, 1987 is 
 
            87-0026.  He indicated the prior number 0025 was for another 
 
            employee's injury on January 14, 1987 and that the three 
 
            subsequent numbers after 0026 were also on January 16, 1987 
 
            for other employees.  O'Brien stated claimant has been 
 
            receiving disability and retirement benefits from defendant 
 
            since February 1989.  He said claimant received sickness and 
 
            accident benefits from defendant prior to February 1989 and 
 
            beginning after his January 16, 1987 injury.
 
            
 
                 The medical evidence in the form of exhibits will not 
 
            be reviewed herein as there is evidence on the issue of the 
 
            statute of limitations that is dispositive of any issue that 
 
            may arise from the medical exhibits and testimony as to 
 
            causal connection and whether claimant's injury arose out of 
 
            and in the course of his employment and the nature and 
 
            extent of claimant's disability. 
 
            
 
                           applicable law and analysis
 
            
 
                 Iowa Code section 85.26 provides, in part:
 
            
 
                    An original proceeding for benefits under this 
 
                 chapter or chapter 85A, 85B, or 86, shall not be 
 
                 maintained in any contested case unless the 
 
                 proceeding is commenced within two years from the 
 
                 date of the occurrence of the injury for which 
 
                 benefits are claimed or, if weekly compensation 
 
                 benefits are paid under section 86.13, within 
 
                 three years from the date of the last payment of 
 
                 weekly compensation benefits.
 
            
 
                 Claimant is approximately 43 years of age.  The parties 
 

 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
            set out several issues to be decided.  There is one issue in 
 
            which the evidence is overwhelming and convincing.  The 
 
            undersigned will discuss the 85.26 issue first as it is 
 
            dispositive of all other issues.  It is also for this reason 
 
            that the applicable law as to the other issues has not been 
 
            set out.
 
            
 
                 Often when there may be a close question on an issue 
 
            that may dispose of most or all of the other issues in a 
 
            case, the undersigned has in certain cases discussed those 
 
            other issues.  In this current case, notwithstanding the 
 
            claimant's allegations in his petition of a January 22, 1987 
 
            injury, claimant, as well as all other witnesses, testified 
 
            that claimant's injury for which he is present today, in 
 
            fact, occurred on January 16, 1987.  It appears this January 
 
            16, 1987 injury at least involved injuries to claimant's 
 
            forearms.  Claimant's attorney also acknowledged this 
 
            January 16, 1987 injury date.  All the written exhibits of 
 
            defendant employer kept in the ordinary course of business 
 
            indicate claimant's injury from the slitter machine jam-up 
 
            occurred on January 16, 1987.
 
            
 
                 Claimant's attorney argues two points:  First, claimant 
 
            didn't come to his office until January 20, 1987 on a 
 
            divorce matter and mentioned this accident and the attorney 
 
            then filed as soon as possible with no time to investigate.  
 
            Second, claimant's attorney then argues that claimant was 
 
            somehow convinced or told that claimant's injury would be 
 
            taken care of as a workers' compensation matter and, 
 
            therefore, defendant's action waived the applicable 85.26 
 
            statutory provisions.  There is no credible evidence that 
 
            defendant tried to make claimant fail to file an action.  In 
 
            fact, it appears defendant enabled claimant to collect on 
 
            all the possible insurance disability benefits connected 
 
            with claimant's employment based on the employer's 
 
            investigation of the accident and what claimant told them 
 
            and based on what medical evidence the employer received as 
 
            to claimant's prior and current medical treatment for 
 
            medical problems not connected with the claimant's January 
 
            16, 1987 injury.  Claimant testified he knew the difference 
 
            between workers' compensation benefits and sickness and 
 
            accident benefits, one being for work-related injuries and 
 
            the other for nonwork-related injuries.  Claimant must 
 
            accept some responsibility on his own.  Ignorance of the law 
 
            is no excuse.  Claimant has proceeded with other legal 
 
            matters including social security disability benefits which 
 
            he received in 1988 retroactive to January 23, 1987.  
 
            Claimant obviously is aware of the legal system.
 
            
 
                 Although the file may appear confusing, the parties 
 
            agree that if January 22, 1987 were the injury date, 85.26 
 
            would not be applicable.  The uncontroverted evidence shows 
 
            claimant's injury occurred January 16, 1987 and, therefore, 
 
            his action was filed in excess of two years after his injury 
 
            and the undersigned so finds.
 
            
 
                 Since the above issue is dispositive of all other 
 
            issues, the undersigned sees no reason to further discuss 
 
            any other issues, facts or law.  Claimant's action is 
 
            dismissed and claimant takes nothing from this proceeding.
 

 
            
 
            Page   6
 
            
 
            
 
            
 
            
 
            
 
                                 findings of fact
 
            
 
                 1.  Claimant incurred a work-related injury to his 
 
            forearms resulting in some abrasions and bruises on January 
 
            16, 1987.
 
            
 
                 2.  Claimant failed to timely file his original notice 
 
            and petition by January 16, 1987.
 
            
 
                                conclusions of law
 
            
 
                 Claimant received an injury to his forearm which arose 
 
            out of and in the course of claimant's employment on January 
 
            16, 1987.
 
            
 
                 Claimant failed to file his original notice and 
 
            petition by January 16, 1987 in violation of Iowa Code 
 
            section 85.26.
 
            
 
                                      order
 
            
 
                 Claimant's original notice and petition is dismissed.
 
            
 
                 Claimant takes nothing from these proceedings.
 
            
 
                 Claimant shall pay the costs of this action, pursuant 
 
            to Division of Industrial Services Rule 343-4.33.
 
            
 
                 Signed and filed this _____ day of March, 1990.
 
            
 
            
 
            
 
            
 
                                          ______________________________
 
                                          BERNARD J. O'MALLEY
 
                                          DEPUTY INDUSTRIAL COMMISSIONER
 

 
            
 
            Page   7
 
            
 
            
 
            
 
            
 
            
 
            Copies to:
 
            
 
            Mr David Scieszinski
 
            Attorney at Law
 
            P O Box 394
 
            Wilton IA 52778
 
            
 
            Mr Thomas N Kamp
 
            Attorney at Law
 
            600 Davenport Bank Bldg
 
            Davenport IA 52801
 
            
 
            
 
                 
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                          5-2402
 
                                          Filed March 29, 1990
 
                                          Bernard J. O'Malley
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            MERLE BOYCE,                  :
 
                                          :
 
                 Claimant,                :
 
                                          :        File No. 900543
 
            vs.                           :
 
                                          :
 
            ALUMINUM COMPANY OF AMERICA   :     A R B I T R A T I O N
 
                                          :
 
                 Employer,                :        D E C I S I O N
 
                 Self-Insured,            :
 
                 Defendant,               :
 
            ___________________________________________________________
 
            
 
            5-2402
 
            Claimant failed to file his arbitration petition timely 
 
            within the two years of his injury in violation of Iowa Code 
 
            section 85.26.