before the iowa industrial commissioner
 
            ____________________________________________________________
 
            _____
 
                                          :
 
            ARNOLD JANSSEN,               :
 
                                          :
 
                 Claimant,                :      File No. 907713
 
                                          :
 
            vs.                           :        A P P E A L
 
                                          :
 
            ARCHER DANIELS MIDLAND,       :      D E C I S I O N
 
                                          :
 
                 Employer,                :
 
                 Self-Insured,            :
 
                 Defendant.               :
 
            ____________________________________________________________
 
            _____
 
            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 July 24, 1991 is affirmed and is adopted as the final 
 
            agency action in this case.
 
            Claimant shall pay the costs of the appeal, including the 
 
            preparation of the hearing transcript.
 
            Signed and filed this ____ day of December, 1991.
 
            
 
            
 
            
 
            
 
                      ________________________________
 
                               BYRON K. ORTON
 
                          INDUSTRIAL COMMISSIONER
 
            
 
            Copies To:
 
            
 
            Mr. Nick J. Avgerinos
 
            Attorney at Law
 
            135 South LaSalle St., Ste 1527
 
            Chicago, IL  60603
 
            
 
            Mr. Matthew J. Brandes
 
            Attorney at Law
 
            115 Third St., SE, Ste 1200
 
            Cedar Rapids, Iowa 52401
 
            
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
            before the iowa industrial commissioner
 
            ____________________________________________________________
 
            _____
 
                                          :
 
            ARNOLD JANSSEN,               :
 
                                          :
 
                 Claimant,                :      File No. 907713
 
                                          :
 
            vs.                           :        A P P E A L
 
                                          :
 
            ARCHER DANIELS MIDLAND,       :      D E C I S I O N
 
                                          :
 
                 Employer,                :
 
                 Self-Insured,            :
 
                 Defendant.               :
 
            ____________________________________________________________
 
            _____
 
            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 July 24, 1991 is affirmed and is adopted as the final 
 
            agency action in this case.
 
            Claimant shall pay the costs of the appeal, including the 
 
            preparation of the hearing transcript.
 
            Signed and filed this ____ day of December, 1991.
 
            
 
            
 
            
 
            
 
                      ________________________________
 
                               BYRON K. ORTON
 
                          INDUSTRIAL COMMISSIONER
 
            
 
            Copies To:
 
            
 
            Mr. Nick J. Avgerinos
 
            Attorney at Law
 
            135 South LaSalle St., Ste 1527
 
            Chicago, IL  60603
 
            
 
            Mr. Matthew J. Brandes
 
            Attorney at Law
 
            115 Third St., SE, Ste 1200
 
            Cedar Rapids, Iowa 52401
 
            
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                          9998
 
                                          Filed December 17, 1991
 
                                          BYRON K. ORTON
 
                                          DRR
 
            before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            ARNOLD JANSSEN,               :
 
                                          :
 
                 Claimant,                :      File No. 907713
 
                                          :
 
            vs.                           :        A P P E A L
 
                                          :
 
            ARCHER DANIELS MIDLAND,       :       D E C I S I O N
 
                                          :
 
                 Employer,                :
 
                 Self-Insured,            :
 
                 Defendant.               :
 
            ___________________________________________________________
 
            
 
            9998
 
            
 
                 Summary affirmance of deputy's decision filed July 24, 
 
            1991.
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                          9998
 
                                          Filed December 17, 1991
 
                                          BYRON K. ORTON
 
                                          DRR
 
            before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            ARNOLD JANSSEN,               :
 
                                          :
 
                 Claimant,                :      File No. 907713
 
                                          :
 
            vs.                           :        A P P E A L
 
                                          :
 
            ARCHER DANIELS MIDLAND,       :       D E C I S I O N
 
                                          :
 
                 Employer,                :
 
                 Self-Insured,            :
 
                 Defendant.               :
 
            ___________________________________________________________
 
            
 
            9998
 
            
 
                 Summary affirmance of deputy's decision filed July 24, 
 
            1991.
 
            
 
 
            
 
            Page   1
 
            
 
            
 
            
 
            
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            ARNOLD JANSSEN,               :
 
                                          :
 
                 Claimant,                :         File No. 907713
 
                                          :
 
            vs.                           :      A R B I T R A T I O N
 
                                          :
 
            ARCHER DANIELS MIDLAND,       :         D E C I S I O N
 
                                          :
 
                 Employer,                :
 
                 Self-Insured,            :
 
                 Defendant.               :
 
            ____________________________________________________________
 
            
 
                              statement of the case
 
            
 
                 This is a proceeding in arbitration upon the August 14, 
 
            1989 petition of claimant Arnold Janssen against 
 
            self-insured employer Archer Daniels Midland ("ADM") seeking 
 
            benefits for an alleged occupational disease under Chapter 
 
            85A of The Iowa Code.
 
            
 
                 This cause came on for hearing in Davenport, Iowa, on 
 
            June 12, 1991.  In addition to claimant, Lawrence H. 
 
            Repsher, M.D., testified at hearing.  Joint exhibits 1 
 
            through 15 were received into evidence.  Claimant's exhibit 
 
            A was offered, but ruling was reserved upon defendant's 
 
            objection.  The objection is now overruled and the exhibit 
 
            is admitted.
 
            
 
                                      issues
 
            
 
                 The parties have stipulated that an employment 
 
            relationship existed between Arnold Janssen and Archer 
 
            Daniels Midland at all times relevant and that medical 
 
            benefits are no longer in dispute.
 
            
 
                 Issues presented for resolution include:
 
            
 
                 1.  Whether claimant has become disabled from injurious 
 
            exposure to an occupational disease arising out of and in 
 
            the course of his employment as defined by Iowa Code section 
 
            85A.8;
 
            
 
                 2.  If so, whether claimant is entitled to disability 
 
            and penalty benefits; and,
 
            
 
                 3.  Whether defendant is entitled to credit for certain 
 
            pension benefits paid following claimant's early retirement.
 
            
 
                 Defendant sought to assert a notice defense under Iowa 
 
            Code section 85A.18.  This defense was ruled out of order 
 
            because it was not identified as an issue on the hearing 
 
            assignment order filed on February 5, 1991.
 
            
 
                                 findings of fact
 
            
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
                 The undersigned deputy industrial commissioner, having 
 
            heard the testimony and considered all of the evidence, 
 
            finds:
 
            
 
                 Arnold Janssen was born in the Netherlands on November 
 
            8, 1926, being therefore 64 years of age at hearing.  After 
 
            19 years of employment with a telephone company in the 
 
            Netherlands, he moved to the United States in 1961.  He 
 
            worked at a job rebuilding automobile starters for several 
 
            years and as a truck driver for several more years.  On 
 
            March 31, 1969, he commenced employment with predecessor 
 
            employer Clinton Corn.  The facility was purchased by Archer 
 
            Daniels Midland in approximately 1982 and claimant continued 
 
            employment.
 
            
 
                 Claimant smoked approximately one-half pack (10-12 
 
            cigarettes) per day from 1946 to 1967, when he quit.  
 
            Gregory E. Sharon, M.D., believed that claimant had a "pack 
 
            year" (the equivalent of one pack per day for one year) 
 
            history, while Laurence J. Fuortes, M.D., believed that 
 
            claimant had a 20-pack year history.  However, 
 
            misunderstandings as to claimant's smoking history are 
 
            probably due to miscommunication rather than inaccuracy on 
 
            claimant's part.  Mr. Janssen speaks English with a decided 
 
            accent.
 
            
 
                 Although claimant testified to having no ongoing 
 
            respiratory problems when he took employment with Clinton 
 
            Corn, he had required medical attention for respiratory 
 
            problems earlier and gave Dr. Fuortes a history of having 
 
            quit smoking because of the development of respiratory 
 
            problems.  Records of Morrison Medical Center show 
 
            complaints of cough and wheeziness on several occasions in 
 
            1967, 1968 and 1969.  Richard Vandermyde, M.D., wrote in 
 
            1991 that the 1967 chart notes of wheezing without evidence 
 
            of infection "makes one think more of an asthmatic 
 
            condition."
 
            
 
                 By 1973, records of Medical Associates in Clinton, 
 
            Iowa, note that claimant was taking asthma tablets as needed 
 
            and probably had some sort of intrinsic asthma.  Various 
 
            doctors refer to claimant as a known asthmatic thereafter.  
 
            In his deposition testimony of March 26, 1991, claimant 
 
            reported that he first developed difficulty breathing in 
 
            1971 or 1972.  Shortness of breath proved to be a 
 
            progressive process which he noticed more while at work, but 
 
            not in association with any particular activity.
 
            
 
                 Claimant was exposed to a number of dusts during his 
 
            employment, almost all of which was in the enzyme house.  No 
 
            corn processing functions took place inside the enzyme 
 
            house, but claimant reported exposure to dust from dicalite, 
 
            bentonite and corn.  Corn dust was prevalent in other parts 
 
            of the plant and may have entered the enzyme house through 
 
            windows left open during the warm months.  Prior to 1978, 
 
            claimant worked jobs in other parts of the plant for a week 
 
            or two at a time, including work in the corn tower (loading 
 
            and unloading corn) and, on one occasion, claimant cleaned 
 
            caked corn from silos for two weeks.  After 1978, exposure 
 
            to corn dust was relatively minimal, as claimant worked only 
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            in the enzyme house.
 
            
 
                 During the years leading up to his separation from 
 
            employment, claimant suffered a number of asthma attacks, 
 
            one in particular requiring hospitalization in 1984.  On 
 
            November 30, 1988, claimant was seen by Dr. Sharon, board 
 
            certified in internal medicine and in allergy immunology.  
 
            Dr. Sharon testified by deposition on February 26, 1991.  
 
            Claimant gave Dr. Sharon a history of suffering asthma and 
 
            COPD (chronic obstructive pulmonary disease) for 25 years 
 
            upon an earlier diagnosis in 1968 (Dr. Sharon noted that 
 
            this was actually only 20 years).  Dr. Sharon defined asthma 
 
            as a reversible obstruction of the airways generally brought 
 
            on by inflammation and spasm of the bronchial smooth muscle 
 
            around the airways and COPD as a chronic and generally 
 
            irreversible condition encompassing both chronic bronchitis 
 
            and emphysema.
 
            
 
                 Dr. Sharon began by performing a battery of skin tests 
 
            to check for allergic reaction.  Claimant reacted positively 
 
            to dust and dust mite (average reaction) and corn (strong 
 
            reaction).  The dust mite mix that was used was not 
 
            identical to the type of storage mite found in granaries, 
 
            but there is approximately a one-third crossover.  
 
            Therefore, Dr. Sharon considered this positive reaction a 
 
            clue, but not one specific to the grain dust mite.  The 
 
            reaction to corn pollen suggested sensitization either from 
 
            working in a corn processing plant and/or living in a rural 
 
            area in the Midwest.  However, it is unusual to become 
 
            sensitized to corn pollen merely by living in a rural area.
 
            
 
                 On December 6, 1988, claimant underwent pulmonary 
 
            testing interpreted by Dr. Sharon as showing some 
 
            reversibility after the use of a bronchodilator, but only 
 
            8-10 percent.  According to Dr. Sharon, strict criteria for 
 
            the diagnosis of asthma using a pulmonary function test 
 
            requires at least a 20 percent increase in the measured 
 
            forced expiratory volume in one second (FEV-1) after 
 
            administration of a bronchodilator.
 
            
 
                 Claimant had earlier undergone pulmonary function tests 
 
            on November 20, 1979.  In Dr. Sharon's view, that test 
 
            documented severe lung disease, probably of a mixed 
 
            component, including COPD and probably asthma.  Claimant's 
 
            lung capacity in 1979 was actually somewhat worse than in 
 
            1988.  However, Dr. Sharon felt the results nine years apart 
 
            were consistent:  consistently poor.
 
            
 
                 At Dr. Sharon's suggestion, claimant self-tested with a 
 
            peak flow meter beginning December 1, 1988, and continuing 
 
            throughout most of 1989.  Peak flow testing by the patient 
 
            requires use of a device which is blown into so as to record 
 
            air pressure levels during forcible exhalation.  Before 
 
            leaving his employment, claimant self-tested with the peak 
 
            flow meter on eight working days:  December 1, 2, 12, 13, 
 
            14, 22, 24 and 25, 1988.  December 25 was claimant's last 
 
            day of work, following which Dr. Sharon advised him to leave 
 
            employment.  However, Dr. Sharon incorrectly understood that 
 
            claimant had self-tested himself on work days only on 
 
            December 1, 2, 12, 13 and 14.  Claimant was, on work days, 
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
            to test before work, at noon, and after work.  This regimen 
 
            was decided upon due to the suspicion that the work 
 
            environment exacerbated the disease process.  A "normal" 
 
            pattern in asthmatics who do not have occupational disease 
 
            is a poor pulmonary function test in the morning, better in 
 
            the afternoon, and worse again late at night.  Claimant's 
 
            pattern on December 1 and 2 showed nearly a straight-line 
 
            deterioration from morning through afternoon to night.  
 
            However, on December 12 and 14, the worst test was in the 
 
            morning, improving in the afternoon and improving more in 
 
            the evening.  On December 13, claimant's worst reading was 
 
            in the afternoon and best reading in the evening.  On 
 
            December 22, claimant's work reading was the same as the 
 
            morning reading with deterioration in the evening.  On 
 
            December 24, deterioration was straight line from morning to 
 
            night, while on December 25, improvement was straight line 
 
            from morning to night.  Asked whether peak flow studies 
 
            documented an occupational etiology of asthma, Dr. Sharon 
 
            relied on claimant's long-term improvement after leaving 
 
            employment as indicating the work place exacerbated 
 
            preexistent lung disease with COPD and asthma.  He 
 
            considered the exacerbation to be relatively temporary, and 
 
            was unable to determine whether work place exposure caused 
 
            any permanent deterioration, either in asthma or COPD.  Dr. 
 
            Sharon believed claimant was severely restricted in what 
 
            work he could perform due to his pulmonary problems and very 
 
            probably had a shortened life expectancy.  He considered 
 
            claimant to be a very cooperative patient, highly motivated 
 
            to improve his lung disease.  Dr. Sharon recommended that 
 
            claimant move to a desert climate, as he later did.  Dr. 
 
            Sharon believed that claimant had high exposure to corn dust 
 
            during the time he provided treatment.
 
            
 
                 Claimant was first seen by Dr. Fuortes on January 30, 
 
            1989.  Dr. Fuortes is board certified in internal medicine 
 
            and occupational medicine and testified by deposition on 
 
            February 26 and June 3, 1991.
 
            
 
                 Dr. Fuortes noted that anything capable of initiating 
 
            hyperirritability of the airways and exacerbated 
 
            bronchospastic reactions are potential causes of asthma, 
 
            quite often an immunologically-mediated phenomenon.  Dr. 
 
            Fuortes distinguished between work-related and occupational 
 
            asthma as subsets of adult onset asthma.  "Work-related" 
 
            asthma is temporally related to hours spent in employment, 
 
            while "occupational" asthma is more closely associated with 
 
            reactions to a specific substance found in the work place.  
 
            Dr. Fuortes noted that individuals who develop either 
 
            work-related or occupational asthma, once sensitized to one 
 
            immunological agent, commonly develop hyperreactivity to a 
 
            host of other nonspecific agents and tend to become 
 
            clinically worse with time.  Approximately 50 percent of 
 
            such individuals continue to have clinical asthma syndromes 
 
            at long periods of follow up, even several years.
 
            
 
                 Dr. Fuortes employed the term "work-related" asthma as 
 
            meaning the work place exacerbation of some underlying 
 
            asthmatic condition.  His diagnosis of claimant was of 
 
            obstructive airways disease with an asthmatic component.  He 
 
            believed this component to be at the least work related and 
 

 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
            quite possibly occupational in nature.  On the assumption 
 
            that claimant worked in an environment heavily exposed to 
 
            corn dust, he believed that exposure to the work place 
 
            contributed to exacerbating the chronic obstructive airways 
 
            component of claimant's respiratory problems, but could not 
 
            say to what degree.  Most of claimant's condition was seen 
 
            as permanent, except for work-related exacerbations.  As of 
 
            January 1989, he felt claimant incapable of continuing to 
 
            work with respiratory irritant exposures (which he could not 
 
            identify) at Archer Daniels Midland.
 
            
 
                 Dr. Fuortes felt it clear that claimant showed symptoms 
 
            and signs of chronic obstructive airways disease prior to 
 
            working in the grain processing industry.  While he believed 
 
            that this condition was exacerbated by working in the ADM 
 
            plant, the record shows that Dr. Fuortes labored under one 
 
            serious misconception:  he believed that claimant over a 
 
            course of years worked in the same air space where grain was 
 
            processed and handled.  Actually, as has been seen, 
 
            claimant's exposure to corn dust was relatively minimal, 
 
            especially after 1978, and most of the dust to which he was 
 
            exposed while working in the enzyme house was from dicalite 
 
            and bentonite.  Dr. Fuortes agreed that if claimant was not 
 
            exposed to a very heavy corn dust environment, it was 
 
            unlikely that this contributed to his permanent chronic 
 
            obstructive airways disease.
 
            
 
                 The weight to be given Dr. Fuortes' opinion as to 
 
            causation/exacerbation through work place exposure is also 
 
            seriously affected by his reliance on incomplete peak flow 
 
            meter readings during December 1988 and January 1989.  The 
 
            doctor looked at two weeks only, and included only December 
 
            1 and 2 as representative of peak flow readings on work 
 
            days.  As has been noted, each of those days showed a 
 
            progressive deterioration from morning to night.  However, 
 
            peak flow readings taken on the other six work days in 
 
            December failed to reflect that sort of consistent pattern 
 
            upon which the doctor expressly relied.  When questioned 
 
            about this in his continued deposition on June 3, Dr. 
 
            Fuortes characterized the readings between December 12 and 
 
            December 14 as being less clear-cut than December 1 and 2, 
 
            but with a "tendency" of lower peak flow measurements during 
 
            the period of work.  Actually, only December 13 showed a 
 
            decrease while claimant was at work, while December 12 and 
 
            December 14 showed a progressive increase from morning to 
 
            night.
 
            
 
                 Lawrence H. Repsher, M.D., who testified at hearing, is 
 
            board certified in internal medicine, pulmonary diseases and 
 
            in critical care medicine.  Since 1974, and especially since 
 
            1980, he has specialized in occupational and environmental 
 
            lung diseases and is a NIOSH-B reader following examination 
 
            by the Application Laboratory for Occupational Safety & 
 
            Health.  A NIOSH-B reader is certified to interpret chest 
 
            x-rays, especially of patients exposed to industrial dusts 
 
            such as black lung disease.
 
            
 
                 Dr. Repsher diagnosed claimant as suffering from 
 

 
            
 
            Page   6
 
            
 
            
 
            
 
            
 
            classic, typical adult onset or intrinsic asthma and not 
 
            occupational asthma.  Intrinsic asthma (as opposed to 
 
            extrinsic asthma, which is typically developed by young 
 
            children who react to numerous antigens on skin testing and 
 
            is frequently clearly related to specific antigens such as 
 
            pets, pollens or the like) occurs in adulthood, usually in 
 
            the third or fourth decade.  It is generally not associated 
 
            with the environment and skin test reactivity is generally 
 
            minimal to none, perhaps with reactions to one or two 
 
            antigens.  It generally becomes more severe with age and is 
 
            recalcitrant to therapy, frequently requiring chronic 
 
            steroid therapy.  Dr. Repsher was unsure as to whether 
 
            claimant suffers from COPD.  Claimant had a sufficient 
 
            cigarette smoking history (the primary or exclusive cause of 
 
            COPD) which could account for some degree of that ailment, 
 
            but he interpreted Dr. Fuortes' testing of diffusing 
 
            capacity as suggesting that claimant had basically pure 
 
            asthma and little, if any, COPD.  However, Dr. Sharon's 
 
            testing showed a modest decrease in diffusing capacity, 
 
            which would be more characteristic of COPD.
 
            
 
                 Dr. Repsher believed that claimant does not suffer from 
 
            occupational asthma.  He pointed out that claimant's asthma 
 
            preceded his work at the Clinton Corn facility in general 
 
            and ADM in particular and viewed his symptoms, signs and 
 
            laboratory data as absolutely typical of adult onset or 
 
            intrinsic asthma.  Pulmonary function tests actually 
 
            improved between 1979 and 1988, whereas, in cases of 
 
            occupational asthma, he would anticipate pulmonary function 
 
            remaining at least the same and probably deteriorating.  He 
 
            noted that claimant's asthma had markedly deteriorated since 
 
            leaving work, which is the opposite of what would be 
 
            anticipated in cases of occupational asthma.  Although corn 
 
            dust or grain dust can cause occupational asthma, he 
 
            believed claimant's exposure to be modest at best (Dr. 
 
            Repsher also personally examined the ADM facility where 
 
            claimant worked, in particular the enzyme house).  Although 
 
            claimant had an extensive medical history of respiratory 
 
            problems, he had not suggested any relationship between his 
 
            work and those problems, which is atypical of most patients 
 
            with occupational asthma (who can typically point to the 
 
            exact location in a plant where the asthma occurs).  Dr. 
 
            Repsher found no relationship between peak flow testing and 
 
            claimant's presence or absence at work, but found the only 
 
            clear relationship to be that of improvement upon commencing 
 
            steroid therapy.  Claimant did not become continuously 
 
            steroid dependent until almost 11 months after leaving 
 
            employment and remains steroid dependent to the present 
 
            date, even though long removed from the work place.
 
            
 
                 Claimant was also exposed to bentonite and dicalite.  
 
            Bentonite was described as clay, not considered to be a 
 
            hazardous dust and "certainly" not a cause of asthma.  
 
            Dicalite is a potentially hazardous dust (heat-treated 
 
            diatomaceous earth which becomes crystalline silica), but 
 
            the disease which it produces is silicosis, not asthma.  
 

 
            
 
            Page   7
 
            
 
            
 
            
 
            
 
            Silicosis is a restrictive scarring disease associated with 
 
            an abnormal chest x-ray and is the opposite of claimant's 
 
            condition (hyperinflated, not restricted lungs).  Limestone, 
 
            to which claimant was also exposed, is considered a totally 
 
            nontoxic material.  Sulfuric acid fumes and ammonia fumes, 
 
            to which claimant was also exposed from time to time, are 
 
            intensely irritating and have the capacity to cause a 
 
            temporary exacerbation of asthma, but do not cause or 
 
            permanently exacerbate asthma.
 
            
 
                 This observer finds Dr. Repsher's opinions to be the 
 
            most persuasive.  As the only board-certified expert in 
 
            pulmonary diseases, he is in the best position to diagnose 
 
            claimant's severe malady.  He finds that it is essentially 
 
            typical intrinsic or adult onset asthma, with, depending 
 
            upon which diffusion test is more reliable, perhaps a minor 
 
            element of COPD.  His conclusion that this asthmatic 
 
            condition was neither caused nor exacerbated by the work 
 
            place is persuasive.  Dr. Sharon has conceded that his view 
 
            would yield to a pulmonary expert, while Dr. Fuortes based 
 
            his opinion in large part on a misunderstanding of the 
 
            extent to which claimant was exposed to corn dust and an 
 
            incomplete review of peak flow readings during claimant's 
 
            last month at work.
 
            
 
                                conclusions of law
 
            
 
                 Under Iowa Code section 85A.8, an occupational disease 
 
            must arise out of and in the course of employment and bear a 
 
            direct causal connection with the employment following as a 
 
            natural incident from an injurious exposure occasioned by 
 
            the work.  It must be incidental to the character of the 
 
            business, occupation or process in which claimant was 
 
            employed and have its origin in a risk connected with 
 
            employment.  It has been held that claimant, to prove 
 
            causation, must show that the disease is causally related to 
 
            the exposure to harmful conditions in the field of 
 
            employment and those harmful conditions must be more 
 
            prevalent in the employment than in everyday life.  
 
            McSpadden v. Big Ben Coal Co., 288 N.W.2d 181 (Iowa 1980).  
 
            In this case, claimant has failed to meet his burden of 
 
            proof in establishing that his disease, intrinsic or adult 
 
            onset asthma, is causally related to his exposure to various 
 
            allegedly harmful conditions in his work with Clinton Corn 
 
            and Archer Daniels Midland.
 
            
 
                                      order
 
            
 
                 THEREFORE, IT IS ORDERED:
 
            
 
                 Claimant shall take nothing from this proceeding.
 
            
 
                 The costs of this action shall be assessed to defendant 
 
            pursuant to rule 343 IAC 4.33.
 
            
 
                 Signed and filed this ______ day of ____________, 1991.
 
            
 
                 
 
            
 
                 
 

 
            
 
            Page   8
 
            
 
            
 
            
 
            
 
                 
 
                                          ______________________________
 
                                          DAVID RASEY
 
                                          DEPUTY INDUSTRIAL COMMISSIONER
 
            
 
            Copies To:
 
            
 
            Mr. Nick J. Avgerinos
 
            Attorney at Law
 
            135 South LaSalle Street
 
            Suite 1527
 
            Chicago, Illinois  60603
 
            
 
            Mr. Matthew J. Brandes
 
            Attorney at Law
 
            1200 MNB Building
 
            Cedar Rapids, Iowa  52401
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                           5-1108.30; 5-2203
 
                           Filed July 24, 1991
 
                           DAVID RASEY
 
            before the iowa industrial commissioner
 
            ____________________________________________________________
 
                      :
 
            ARNOLD JANSSEN,     :
 
                      :
 
                 Claimant, :         File No. 907713
 
                      :
 
            vs.       :      A R B I T R A T I O N
 
                      :
 
            ARCHER DANIELS MIDLAND,  :         D E C I S I O N
 
                      :
 
                 Employer, :
 
                 Self-Insured,  :
 
                 Defendant.     :
 
            ____________________________________________________________
 
            
 
            5-1108.30; 5-2203
 
            Claimant failed to prove asthma or COPD was caused by toxic 
 
            exposure at work.
 
            
 
 
            
 
            Page   1
 
            
 
            
 
            
 
            
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            CRAIG EDWARDS,                :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :      File No. 908602
 
            DECKER TRUCK LINES,           :
 
                                          :        A P P E A L
 
                 Employer,                :
 
                                          :      D E C I S I O N
 
            and                           :
 
                                          :
 
            LIBERTY MUTUAL INS. CO.,      :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
            
 
            
 
                              STATEMENT OF THE CASE
 
            
 
                 Defendants appeal from an arbitration decision awarding 
 
            permanent partial disability benefits.
 
            
 
                 The record on appeal consists of the transcript of the 
 
            arbitration hearing and joint exhibits 1 through 13.  Both 
 
            parties filed briefs on appeal.
 
            
 
                                      issues
 
            
 
                 Defendants state the issue on appeal as:  whether the 
 
            award of 45 percent permanent partial disability is greatly 
 
            excessive in view of the evidence.
 
            
 
                                  applicable law
 
            
 
                 The citations of law in the arbitration decision are 
 
            appropriate to the issues and evidence.
 
            
 
                                findings of fact 
 
            
 
                 The findings of fact in conjunction with the law in the 
 
            arbitration decision is adopted.
 
            
 
                                conclusions of law
 
            
 
                 The conclusions of law are adopted with the following 
 
            additional analysis:
 
            
 
                 Claimant is precluded from returning to his work as a 
 
            truck driver.  Claimant has attempted to return to this line 
 
            of work more than once since his injury, and each time has 
 
            had to quit due to back pain.  However, claimant has skills 
 
            in other areas.  Claimant is motivated to keep working.  
 
            Defendants did not offer to accommodate claimant, but this 
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            is reasonable in light of the statement of one of claimant's 
 
            physicians that he should avoid truck driving.  Claimant's 
 
            ratings of permanent physical impairment are not high.  
 
            Claimant's medical restrictions foreclose him from some 
 
            jobs, but not all jobs.
 
            
 
                 Based on these and all other appropriate factors for 
 
            determining industrial disability, claimant is determined to 
 
            have an industrial disability of 35 percent.
 
            
 
                 WHEREFORE, the decision of the deputy is affirmed and 
 
            modified.
 
            
 
                                      order
 
            
 
                 THEREFORE, it is ordered:
 
            
 
                 That defendants pay unto claimant forty-four (44) weeks 
 
            of healing period benefits at the rate of two hundred 
 
            forty-one and 18/100 dollars ($241.18) per week commencing 
 
            October 13, 1987 and totalling ten thousand six hundred 
 
            eleven and 92/100 dollars ($10,611.92).
 
            
 
                 That defendants pay unto claimant one hundred 
 
            seventy-five (175) weeks of permanent partial disability 
 
            benefits at the rate of two hundred forty-one and 18/100 
 
            dollars ($241.18) per week commencing August 16, 1988 and 
 
            totalling forty-two thousand two hundred six and 50/100 
 
            dollars ($42,206.50).
 
            
 
                 That all accrued benefits shall be paid in a lump sum 
 
            together with statutory interest thereon pursuant to Iowa 
 
            Code section 85.30.
 
            
 
                 That defendants shall have credit for all benefits paid 
 
            voluntarily prior to hearing.
 
            
 
                 That defendants shall pay the costs of the appeal, 
 
            including the preparation of the hearing transcript.
 
            
 
     
 
            
 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            That defendants file claim activity reports as requested by 
 
            this agency pursuant to rule 343 IAC 3.1.
 
            
 
                 Signed and filed this ____ day of April, 1991.
 
            
 
            
 
            
 
            
 
                                          
 
            ________________________________
 
                                                   CLAIR R. CRAMER
 
                                           ACTING INDUSTRIAL 
 
            COMMISSIONER
 
            
 
            Copies To:
 
            
 
            Mr. David D. Drake
 
            Attorney at Law
 
            1200 35th St., Suite 500
 
            West Des Moines, Iowa 50265
 
            
 
            Mr. Tito Trevino
 
            Attorney at Law
 
            P.O. Box 1680
 
            Fort Dodge, Iowa 50501
 
            
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
            1803
 
            DRR
 
            Filed April 29, 1991
 
            Clair R. Cramer
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            CRAIG EDWARDS,                :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :      File No. 908602
 
            DECKER TRUCK LINES,           :
 
                                          :        A P P E A L
 
                 Employer,                :
 
                                          :      D E C I S I O N
 
            and                           :
 
                                          :
 
            LIBERTY MUTUAL INS. CO.,      :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
            1803
 
            Deputy's award of 45 percent industrial disability reduced 
 
            to 35 percent on appeal in light of claimant's low ratings 
 
            of impairment and ability to perform other occupations.  
 
            
 
 
            
 
            Page   1
 
            
 
            
 
            
 
            
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            CRAIG EDWARDS,                :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :         File No. 908602
 
            DECKER TRUCK LINE, INC.,      :
 
                                          :      A R B I T R A T I O N
 
                 Employer,                :
 
                                          :         D E C I S I O N
 
            and                           :
 
                                          :
 
            LIBERTY MUTUAL INS. CO.,      :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ____________________________________________________________
 
            
 
                              statement of the case
 
            
 
                 This is a proceeding in arbitration upon claimant's 
 
            petition filed April 11, 1989.  Claimant sustained an injury 
 
            to his back and right shoulder on October 12, 1987, when he 
 
            slipped and fell on the wet fuel tank of his truck while 
 
            getting down after jump starting it.  He now seeks benefits 
 
            under the Iowa Workers' Compensation Act from defendant 
 
            employer Decker Truck Line, Inc., and its insurance carrier, 
 
            Liberty Mutual Insurance Company.
 
            
 
                 Hearing on the arbitration petition was had in Des 
 
            Moines, Iowa, on July 10, 1990.  The record consists of 
 
            joint exhibits 1 through 13 and claimant's testimony.
 
            
 
                                      issues
 
            
 
                 Pursuant to the prehearing report, the parties have 
 
            stipulated:  that claimant sustained an injury arising out 
 
            of and in the course of his employment with Decker Truck 
 
            Line, Inc., on October 12, 1987; that the injury caused both 
 
            temporary and permanent disability; that claimant is 
 
            entitled to healing period benefits from October 13, 1987 
 
            through August 15, 1988; that claimant has sustained an 
 
            industrial disability to the body as a whole by reason of 
 
            the work injury; that the appropriate rate of weekly 
 
            compensation is $249.86, based upon average gross weekly 
 
            earnings of $374.20, a marital status of married and 
 
            entitlement to three exemptions; that all requested medical 
 
            benefits have been or will be paid by defendants; that 
 
            defendants paid a total of 79.925 weeks of compensation at 
 
            the stipulated rate, after conversion of actual payments to 
 
            that rate.
 
            
 
                 The sole issue presented for resolution is the extent 
 
            of claimant's entitlement to compensation for permanent 
 
            disability.
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            
 
                                 findings of fact
 
            
 
                 The undersigned deputy, having heard the testimony and 
 
            considered all of the evidence, finds:
 
            
 
                 Claimant was born on May 13, 1951, and was 39 years of 
 
            age on the day of hearing.  He graduated from high school in 
 
            1969 after taking a curriculum oriented towards shop 
 
            courses.  Since then, he began a drafting course at a 
 
            community college, but left after one-half semester because 
 
            he found the academic subjects too difficult.  Claimant has 
 
            no other education or military experience.
 
            
 
                 Claimant's first job out of school was with a company 
 
            that fabricated large steel beams and the like for bridge 
 
            construction.  Some of this was physically demanding work 
 
            and required the ability to read blueprints.  Thereafter, he 
 
            accepted a position as conductor for a railroad, holding 
 
            this position for about 12 years until 1983.  This was a 
 
            desk job, but also involved duties in the rail yard as 
 
            switch foreman.  The job required clerical skills, involved 
 
            supervision of brakemen, and paid approximately $3,000 per 
 
            month when claimant left the work.
 
            
 
                 In August, 1983, claimant purchased a semi-tractor and 
 
            began work as an owner/operator.  He worked for several 
 
            companies, including defendant starting in May, 1987.  
 
            Duties included strapping and chaining loads and 
 
            manipulating tarpaulins weighing approximately 100 pounds.
 
            
 
                 Following his release to return to work in August, 
 
            1988, claimant accepted work as a farmhand, working 10-12 
 
            hours a day for approximately three months.  He operated 
 
            certain farm equipment and did some hauling, earning $5.00 
 
            per hour.  Thereafter, he again tried working as a truck 
 
            driver for Agri Industries, but left after about one month 
 
            because of persistent back pain.  Claimant was then off work 
 
            for a few months due to the season until returning to work 
 
            as a farmhand with Swanson Farms.
 
            
 
                 Claimant's next job ran from about May through October 
 
            or November, 1989.  He worked for Railflight Transportation 
 
            transporting truck trailers to the city of Omaha.  
 
            Thereafter, he worked as a driver for Mid-American Transport 
 
            until approximately February, 1990.  Claimant left this work 
 
            again due to persistent back pain, eventually accepting 
 
            reemployment as a farmhand in March, 1990, where he remained 
 
            until June 1.
 
            
 
                 Claimant worked from June 1 through July 7 (only three 
 
            days before hearing) with United Building Centers delivering 
 
            lumber in a small straight truck at $5.00 per hour.  
 
            Claimant again left that work because of back pain.
 
            
 
                 Claimant described his work injury as having occurred 
 
            when his truck stalled and he restarted the engine with 
 
            booster cables.  He slipped on the fuel tank and fell, 
 
            developing severe pain in the lower back, right leg, hip and 
 
            right shoulder.  He sought treatment that afternoon from H. 
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            A. Barquist, D.O.  However, after two days of treatment, 
 
            claimant was referred by defendants to David T. Berg, D.O.
 
            
 
                 Claimant eventually underwent surgery at the hands of 
 
            David J. Boarini, M.D., on January 8, 1988.  The surgery was 
 
            described as L4-5 hemilaminotomy on the right and disc 
 
            excision.
 
            
 
                 Dr. Boarini wrote on August 30, 1988 that claimant had 
 
            regained a normal range of motion in the back and his 
 
            neurological examination was intact.  Claimant was rated as 
 
            having sustained a 5-6 percent permanent partial impairment 
 
            based on the laminectomy with some residual back pain, but 
 
            no neurological deficit.  Claimant was advised against any 
 
            heavy lifting or prolonged sitting, although it was hoped 
 
            that this would improve with time.  Dr. Boarini "suspected" 
 
            that a change of occupation would be claimant's best 
 
            recourse, although he was not restricted from any specific 
 
            activity.
 
            
 
                 Claimant continued to see Dr. Berg during his 
 
            convalescence.  Dr. Berg released claimant to return to work 
 
            on August 22, 1988 for light duty with a 40-pound lifting 
 
            limit, no prolonged sitting and no work above the head.
 
            
 
                 Claimant saw Dr. Berg again in March, 1989 (the last 
 
            physician he has seen, although he had a pending appointment 
 
            with Dr. Boarini at time of hearing).  Dr. Berg found 
 
            claimant's symptoms and level of pain to be largely 
 
            unchanged from the year before, although claimant reported 
 
            his pain as slightly less.  Dr. Berg had no additional 
 
            comments on claimant's medical restrictions.
 
            
 
                 Claimant was also seen for evaluation by Jerome G. 
 
            Bashara, M.D., in November, 1988.  Dr. Bashara found motion 
 
            of the lumbar spine to be restricted with mild lumbar 
 
            paraspinous muscle spasm and diagnosed herniated lumbar disc 
 
            at L4-5, postoperative status with mild residuals.  He rated 
 
            claimant as having sustained a 12 percent permanent partial 
 
            physical impairment of the body as a whole.
 
            
 
                 Claimant also saw John H. Kelley, M.D., for his 
 
            complaints of shoulder pain.  Dr. Kelley found a full range 
 
            of motion of the shoulder, but performed an arthrogram on 
 
            the basis of complaints of pain.  The arthrogram proved 
 
            negative and claimant has not been given an impairment 
 
            rating or medical restrictions by Dr. Kelley (although, as 
 
            has been seen, Dr. Berg limited him from working above his 
 
            head).
 
            
 
                                conclusions of law
 
            
 
                 Functional impairment is an element to be considered in 
 
            determining industrial disability which is the reduction of 
 
            earning capacity, but consideration must also be given to 
 
            the injured employee's age, education, qualifications, expe
 
            rience and inability to engage in employment for which he is 
 
            fitted.  Olson v. Goodyear Service Stores, 255 Iowa 1112, 
 
            125 N.W.2d 251 (1963).  Barton v. Nevada Poultry, 253 Iowa 
 
            285, 110 N.W.2d 660 (1961).
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
            
 
                 A finding of impairment to the body as a whole found by 
 
            a medical evaluator does not equate to industrial disabil
 
            ity.  This is so as impairment and disability are not syn
 
            onymous.  Degree of industrial disability can in fact be 
 
            much different than the degree of impairment because in the 
 
            first instance reference is to loss of earning capacity and 
 
            in the latter to anatomical or functional abnormality or 
 
            loss.  Although loss of function is to be considered and 
 
            disability can rarely be found without it, it is not so that 
 
            a degree of industrial disability is proportionally related 
 
            to a degree of impairment of bodily function.
 
            
 
                 Factors to be considered in determining industrial dis
 
            ability include the employee's medical condition prior to 
 
            the injury, immediately after the injury, and presently; the 
 
            situs of the injury, its severity and the length of healing 
 
            period; the work experience of the employee prior to the 
 
            injury, after the injury and potential for rehabilitation; 
 
            the employee's qualifications intellectually, emotionally 
 
            and physically; earnings prior and subsequent to the injury; 
 
            age; education; motivation; functional impairment as a 
 
            result of the injury; and inability because of the injury to 
 
            engage in employment for which the employee is fitted.  Loss 
 
            of earnings caused by a job transfer for reasons related to 
 
            the injury is also relevant.  These are matters which the 
 
            finder of fact considers collectively in arriving at the 
 
            determination of the degree of industrial disability.
 
            
 
                 There are no weighting guidelines that indicate how 
 
            each of the factors are to be considered.  There are no 
 
            guidelines which give, for example, age a weighted value of 
 
            ten percent of the total value, education a value of fifteen 
 
            percent of total, motivation - five percent; work experience 
 
            - thirty percent, etc.  Neither does a rating of functional 
 
            impairment directly correlate to a degree of industrial 
 
            disability to the body as a whole.  In other words, there 
 
            are no formulae which can be applied and then added up to 
 
            determine the degree of industrial disability.  It therefore 
 
            becomes necessary for the deputy or commissioner to draw 
 
            upon prior experience, general and specialized knowledge to 
 
            make the finding with regard to degree of industrial dis
 
            ability.  See Peterson v. Truck Haven Cafe, Inc., (Appeal 
 
            Decision, February 28, 1985); Christensen v. Hagen, Inc., 
 
            (Appeal Decision, March 26, l985).
 
            
 
                 Claimant now complains of an inability to stand or sit 
 
            for any length of time and of pain that has become worse 
 
            since his surgery.  While he can squat, he claims to be 
 
            unable to bend (although surveillance photograph 13a 
 
            submitted into evidence appears to show him bending and 
 
            pulling a heavy truck tire from its storage space) and 
 
            states that he is unable to push, run or participate in 
 
            sports and various activities he had enjoyed prior to the 
 
            work injury.  In particular, he claims of an inability to 
 
            drive truck.
 
            
 
                 Both claimant's back and shoulder injuries will be 
 
            considered for purposes of determining his industrial 
 
            disability, since one of his medical restrictions relates to 
 

 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
            the shoulder (although not from the primary treating 
 
            physician).  It seems likely that claimant would be able to 
 
            perform his old job as a conductor, or like clerical duties.  
 
            Claimant has shown that he is able to work long hours as a 
 
            farmhand, but it should further be noted that this employer 
 
            has been accommodating, and not all farm work would be so 
 
            suitable.  The major factor in this case is that claimant 
 
            seems unable to continue his work as a truck driver, work he 
 
            had been doing for some four and one-half years prior to his 
 
            injury.  Claimant had purchased his own vehicles and was 
 
            obviously committed to this line of endeavor when he was 
 
            injured.  Claimant is restricted from prolonged sitting, was 
 
            specifically told that he should probably change his 
 
            occupation by Dr. Boarini, and has proven himself unable to 
 
            continue working as a truck driver because of his persistent 
 
            back pain.  Defendants have failed to offer claimant 
 
            continued employment within his restrictions and have made 
 
            no efforts whatsoever to provide vocational rehabilitation 
 
            or to help claimant seek other work.
 
            
 
                 On the other hand, claimant is a high school graduate, 
 
            has skills in drafting, has shown that he can perform 
 
            successfully as a clerk and supervisor, and is of an age and 
 
            apparent intelligence suitable for successful retraining in 
 
            another field.  His lifting restriction is not unduly 
 
            onerous considering the excision of a disc, and it is 
 
            unclear for what work the restriction against working 
 
            overhead claimant might be disqualified.  The restriction 
 
            against prolonged sitting is, given claimant's work history, 
 
            the most clearly and severely limiting factor.
 
            
 
                 Considering the record in general and these factors in 
 
            particular, it is held that claimant has sustained an 
 
            industrial disability equivalent to 45 percent of the body 
 
            as a whole, or 225 weeks.
 
            
 
                 The parties stipulated to a rate of $249.86, based upon 
 
            gross weekly earnings of $374.20, a marital status of 
 
            married and entitlement to three exemptions.  That rate, 
 
            pursuant to the Guide to Iowa Workers' Compensation Claim 
 
            Handling booklet published by this office and effective July 
 
            1, 1987, would be correct for an individual with five, 
 
            rather than three, exemptions.  The correct rate based on 
 
            three exemptions is $241.18.  Therefore, this rate will be 
 
            adopted, notwithstanding the parties' stipulation.
 
            
 
                                      order
 
            
 
                 THEREFORE, IT IS ORDERED:
 
            
 
                 Defendants shall pay unto claimant forty-four (44) 
 
            weeks of healing period benefits at the rate of two hundred 
 
            forty-one and 18/100 dollars ($241.18) per week commencing 
 
            October 13, 1987 and totalling ten thousand six hundred 
 
            eleven and 92/100 dollars ($10,611.92).
 
            
 
                 Defendants shall pay unto claimant two hundred 
 
            twenty-five (225) weeks of permanent partial disability 
 
            benefits at the rate of two hundred forty-one and 18/100 
 
            dollars ($241.18) per week commencing August 16, 1988 and 
 

 
            
 
            Page   6
 
            
 
            
 
            
 
            
 
            totalling fifty-four thousand two hundred sixty-five and 
 
            50/100 dollars ($54,265.50).
 
            
 
                 All accrued benefits shall be paid in a lump sum 
 
            together with statutory interest thereon pursuant to Iowa 
 
            Code section 85.30.
 
            
 
                 Defendants shall have credit for all benefits paid 
 
            voluntarily prior to hearing.
 
            
 
                 The costs of this action shall be assessed to 
 
            defendants pursuant to Division of Industrial Services Rule 
 
            343-4.33.
 
            
 
                 Defendants shall file claim activity reports as 
 
            requested by this agency pursuant to Division of Industrial 
 
            Services Rule 343-3.1.
 
            
 
                 Signed and filed this ______ day of ____________, 1990.
 
            
 
                 
 
            
 
                 
 
                 
 
                                          ______________________________
 
                                          DAVID RASEY
 
                                          DEPUTY INDUSTRIAL COMMISSIONER
 
            
 
            Copies To:
 
            
 
            Mr. David D. Drake
 
            Attorney at Law
 
            West Towers Office Complex
 
            1200 35th Street, Suite 500
 
            W. Des Moines, Iowa  50265
 
            
 
            Mr. Tito Trevino
 
            Attorney at Law
 
            503 Snell Building
 
            P.O. Box 1680
 
            Fort Dodge, Iowa  50501
 
            
 
            
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                               5-1803
 
                                               Filed September 17, 1990
 
                                               DAVID RASEY
 
            before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            CRAIG EDWARDS,                :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :         File No. 908602
 
            DECKER TRUCK LINE, INC.,      :
 
                                          :      A R B I T R A T I O N
 
                 Employer,                :
 
                                          :         D E C I S I O N
 
            and                           :
 
                                          :
 
            LIBERTY MUTUAL INS. CO.,      :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ____________________________________________________________
 
            
 
            5-1803
 
            Industrial disability determination.
 
            
 
 
            
 
            Page   1
 
            
 
            
 
            
 
            
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            MICHAEL JOHN KEATING,         :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :         File No. 908628
 
            WELLS DAIRY, INC.,            :
 
                                          :      A R B I T R A T I O N
 
                 Employer,                :
 
                                          :         D E C I S I O N
 
            and                           :
 
                                          :
 
            KEMPER GROUP,                 :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ____________________________________________________________
 
            
 
                              statement of the case
 
            
 
                 This is a proceeding in arbitration upon the April 17, 
 
            1989 petition of claimant, Michael John Keating, against 
 
            defendant employer, Wells Dairy, Inc., and its insurance 
 
            carrier, Kemper Group, seeking benefits under the Iowa 
 
            Workers' Compensation Act as the result of an injury 
 
            sustained on May 7, 1987.  The cause came on for hearing in 
 
            Sioux City, Iowa, on September 11, 1990.  The record 
 
            consists of joint exhibits A 1 through 279, B 1 through 48, 
 
            and C 1 through 71, plaintiff's exhibits D 1 and 2 and the 
 
            testimony of claimant, Steven Falk and David Calhoun.
 
            
 
                                      issues
 
            
 
                 The parties have stipulated that an employment 
 
            relationship existed on May 7, 1987, and that claimant 
 
            sustained an injury (at least to his arm) arising out of and 
 
            in the course of that employment.
 
            
 
                 The following issues are presented for resolution:
 
            
 
                 1.  Whether there exists a causal relationship between 
 
            the injury and any resulting temporary or permanent 
 
            disability;
 
            
 
                 2.  The nature and extent of that disability, if any;
 
            
 
                 3.  Whether claimant is entitled to medical benefits 
 
            under Iowa Code section 85.27;
 
            
 
                 4.  Whether claimant is entitled to penalty benefits 
 
            under Iowa Code section 86.13; and,
 
            
 
                 5.  Whether the claim ("as to anything other than the 
 
            elbow") is barred by lack of timely notice under Iowa Code 
 
            section 85.23.
 
            
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
                                 findings of fact
 
            
 
                 The undersigned deputy industrial commissioner, having 
 
            heard the testimony and considered all of the evidence, 
 
            finds:
 
            
 
                 Michael John Keating, age 37, is a 1972 high school 
 
            graduate.  He has worked as a laborer, painter and carpet 
 
            salesperson.
 
            
 
                 Claimant was employed by Wells Dairy, Inc., on December 
 
            30, 1986 and was laid off on September 11, 1987.  Wells 
 
            Dairy is an ice cream manufacturer.  Claimant was first 
 
            employed as a janitor, responsible for cleaning machines.
 
            
 
                 On May 7, 1987, claimant was assigned to clean "foot 
 
            baths" (for disinfecting shoes) and slipped on a concrete 
 
            ramp while carrying a five-gallon bottle of solution.  He 
 
            testified to falling on his elbow and face, jamming the 
 
            shoulder and neck.  He immediately reported the incident to 
 
            foreman Steven Falk, but Falk specifically recalled claimant 
 
            reporting an injury to the elbow only, even pointing it out, 
 
            with no mention of the shoulder, neck or head.
 
            
 
                 Falk advised claimant to further report the injury to 
 
            safety manager David Calhoun.  Claimant testified that he 
 
            then told Calhoun he had fallen on the elbow, jamming the 
 
            shoulder and neck and striking the head.  Calhoun, on the 
 
            other hand, testified that although the incident was 
 
            described in detail, claimant did not mention in that 
 
            conversation or the following day, complaints of injury to 
 
            anything but the elbow.  The injury report contemporaneously 
 
            filled out by Calhoun described the injury as "contusions on 
 
            elbow."
 
            
 
                 The injury report notes further conversations on May 11 
 
            and May 13.  Calhoun testified that he first learned of a 
 
            claimed injury to anything other than the elbow in December 
 
            1987 (when he saw the bill of A. D. Krull, D.C.).
 
            
 
                 Claimant was first seen by a regular company physician, 
 
            Ron R. Hiemstra, M.D., on May 12, 1987.  Chart notes of that 
 
            date reflect that claimant fell about two weeks ago and 
 
            injured his right elbow which was described as very painful 
 
            since then, with shooting pains from the elbow to the 
 
            fingers in the ulnar distribution.  Assessment was of 
 
            contusion to the ulnar nerve.  Claimant was given an elbow 
 
            protector.  No mention is made of complaints to the 
 
            shoulder, neck or head.
 
            
 
                 Immediately prior to accepting work with Wells Dairy in 
 
            December 1986 (this necessitated a change in residence), 
 
            claimant had sought regular chiropractic treatments from D. 
 
            J. Wagner, M.D.  An application for treatment filled out by 
 
            Mr. Keating showed major complaints of headache, neck out of 
 
            position, tension in the back and neck and numbness in the 
 
            right leg.  A human figure diagram was marked with an "X" 
 
            showing pain (among other places) near the base of the 
 
            cervical or top of the thoracic spine.  The condition was 
 
            described as having developed following a neck injury in 
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            1969, in which three discs were "separated."  Claimant 
 
            indicated that he used to see a chiropractor two times a 
 
            year for the condition.  Dr. Wagner's consultation notes of 
 
            October 8 (the date of initial treatment) showed that 
 
            claimant had pulled his upper back and neck on October 5, 
 
            while lifting a lawnmower into his truck and that he had 
 
            moved furniture on October 7.  Major complaints were 
 
            described as headache in the temple area, painful and stiff 
 
            neck, tension in the upper back and neck and numbness in the 
 
            L5 dermatome to the right calf.  Claimant's neck was 
 
            described as having been sore for some six weeks.
 
            
 
                 Before moving to accept work with defendant, claimant 
 
            saw Dr. Wagner on some 21 occasions between October 8 and 
 
            December 29, 1986 (although only three times in December).  
 
            Further notes indicate that claimant cancelled at least one 
 
            January 1987 appointment after he moved.
 
            
 
                 On cross-examination, claimant conceded that he had 
 
            understated his visits to Dr. Wagner in an earlier 
 
            deposition.  In a post-trial brief, defendants repeatedly 
 
            refer to claimant's allegedly false or misleading testimony 
 
            in a deposition of December 21, 1989.  However, that 
 
            deposition was not offered into evidence for impeachment 
 
            purposes, although another deposition taken of claimant on 
 
            August 10, 1990 was received.  Nonetheless, it is worth 
 
            noting that claimant testified on direct examination that 
 
            the "kink" in his neck was gone with no further pain when he 
 
            discontinued treatment with Dr. Wagner, but was surprised to 
 
            learn on cross-examination of the chart notes reflecting a 
 
            later cancelled appointment.
 
            
 
                 On June 2, 1987, claimant sought chiropractic treatment 
 
            from A. D. Krull, D.C.  Claimant's self-described complaints 
 
            were of tightness in the neck and back and diminished motion 
 
            of the neck.  Of interest here, he described those problems 
 
            as stemming from a 1972 high school neck injury:  three 
 
            discs out of place.  No mention was made of the work injury.  
 
            On February 23, 1990, Dr. Krull wrote to defendants' 
 
            attorney to note that claimant was seen on June 2 with the 
 
            previously-described complaints, on September 5, 1987 with 
 
            no mention of injury, and on November 17, 1987 when he was 
 
            for the first time advised that claimant had been injured in 
 
            a fall in May 1987.  It was at the time of the November 
 
            visit that Dr. Krull diagnosed strain and subluxation of the 
 
            right elbow.  Soon after July 1988, claimant visited again 
 
            to explain that the dates of June 2, 1987 through January 
 
            11, 1988 should be covered under workers' compensation.  It 
 
            was only then that Dr. Krull compliantly altered his notes, 
 
            penciling the work injury into his June 2, 1987 chart notes.  
 
            Claimant, however, maintained in his testimony that he did 
 
            contemporaneously advise Dr. Krull of the work injury and 
 
            that chart notes were incorrect.
 
            
 
                 Claimant saw David G. Paulsrud, M.D., on June 18, 1987.  
 
            He gave a history of falling on the elbow a month before, 
 
            striking the lateral epicondylar area and having pain and 
 
            tenderness "in there" since that time and with pain 
 
            associated with heavy use of the hand.  Diagnosis was of 
 
            traumatic epicondylitis and claimant was treated with a 
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
            tennis elbow strap and ice.  No mention is made in the notes 
 
            of any complaint of shoulder, neck or head symptoms.  On the 
 
            other hand, claimant testified at trial that he informed Dr. 
 
            Paulsrud that he had jammed his shoulder and neck, although 
 
            the worst pain was sited in the elbow.
 
            
 
                 Claimant saw Dr. Hiemstra again on January 14, 1988.  
 
            It was then that he first advised that physician that his 
 
            neck had been bothering him since the 1987 fall.  Assessment 
 
            was of myofascitis and tendonitis.  X-rays of the thoracic 
 
            spine and elbow showed no fracture.
 
            
 
                 Claimant was seen in the emergency room of St. Lukes 
 
            Regional Medical Center by E. C. Gray, M.D., on June 29, 
 
            1987, only six weeks following the work injury.  Claimant 
 
            had suffered a contusion to the right foot while "he was 
 
            playing volleyball in the sand yesterday and his right foot 
 
            got stuck in the sand when he lunged for the ball and he 
 
            twisted his foot."  Claimant, on the other hand, testified 
 
            that this incident occurred while he was batting a ball 
 
            using his left hand in a non-competitive manner with a nine- 
 
            or ten-year-old girl.
 
            
 
                 Claimant began seeing Horst G. Blume, M.D., an 
 
            orthopaedic surgeon, on March 29, 1988.  He presented with 
 
            complaints of pain in the right elbow, neck pain and 
 
            occipital headache pain.  In addition to the subject work 
 
            injury, claimant gave history of a wrestling incident in 
 
            1969 causing some cervical disc pain.  "He wore a soft 
 
            collar for approximately six weeks and was completely free 
 
            from pain after that."  Dr. Blume clearly did not have 
 
            benefit of knowing that claimant had sought chiropractic 
 
            care twice a year since then, nor that he had suffered an 
 
            incident in late 1986 requiring 21 chiropractic treatments 
 
            in less than three months.
 
            
 
                 On June 26, 1988, Dr. Blume wrote that he had diagnosed 
 
            claimant's condition as injury to the humeral radial joint 
 
            complex on the right side without evidence of any bone 
 
            fracture relative the right elbow.  He stated that 
 
            claimant's pain condition in the superior border of the 
 
            trapezius was related to myofascial pain condition syndrome, 
 
            but not cervical disc pathology or nerve root irritation.  
 
            He believed claimant to have reached maximum medical 
 
            recovery on June 20, 1988 and within reasonable medical 
 
            probability that claimant had sustained a permanent 
 
            impairment to the right upper extremity, including the arm, 
 
            shoulder and neck, of 20 percent as the direct result of the 
 
            subject work injury.  It is unclear whether Dr. Blume's 
 
            impairment rating is intended as a percentage of the body as 
 
            a whole or of the right arm.  He restricted claimant against 
 
            any type of work activity involving excessive pushing, 
 
            pulling or repetitive movements of the right arm, work above 
 
            shoulder level, or lifting more than 20 pounds occasionally.  
 
            In a letter dated November 15, 1988, Dr. Blume clarified his 
 
            restrictions by stating that claimant should lift only 10 
 
            pounds in any repetitive activity and should avoid twisting 
 
            and turning of the neck.  However, Dr. Blume now believed 
 
            that claimant had some discogenic pain and suggested a 
 
            discogram at C5-6 and C6-7 to determine which disc was 
 

 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
            "responsible for the patient's pain."
 
            
 
                 Claimant was seen for evaluation by John J. Dougherty, 
 
            M.D., on October 13, 1988.  Following examination and review 
 
            of x-rays, Dr. Dougherty diagnosed:
 
            
 
                 CERVICAL SPINE PAIN, PERHAPS A MILD TRAUMATIC 
 
                 MYOFIBROSITIS SUPERIMPOSED UPON WHAT APPEARS TO BE 
 
                 SOME MILD CONGENITAL ANOMALY IN THE UPPER CERVICAL 
 
                 SPINE WITH POSSIBLY A MILD TRAUMATIC MYOFIBROSITIS 
 
                 A MILD NARROWING OF C-4-5 WITH WHAT APPEARS TO BE 
 
                 A FRACTURE SPINOUS PROCESS OF D-1 SOME RESTRICTION 
 
                 OF MOTION OF THE RIGHT SHOULDER, ETIOLOGY ? 
 
                 PREVIOUS CONTUSION OF THE RIGHT ELBOW LATERALLY, 
 
                 PREVIOUS BONE GRAFT OF THE RIGHT NAVICULAR AND 
 
                 WITH ATROPHY OF THE EXTENSOR SURFACE OF THE 
 
                 FOREARM.
 
            
 
                 It is interesting that Dr. Dougherty wrote that 
 
            claimant denied any previous difficulty or injury.  He found 
 
            it difficult to get a "coherent history" and repeatedly 
 
            suggested that things did not "add up."  He believed the 
 
            spinous fracture at D-1 (also known as T-1) to be old, 
 
            probably an evulsion fracture.  He was not "terribly 
 
            impressed" with the elbow and noted that shoulder complaints 
 
            do not appear in the medical records near the time of 
 
            injury.  He concluded:
 
            
 
                 Basically, I would feel that perhaps he's got 
 
                 minimal disability of his right upper extremity.  
 
                 Certainly would not think it is more than about 
 
                 5%.  Again, in attempting to go thru the records 
 
                 and determine when things happened, it is hard for 
 
                 me to tell.  The stories just don't seem to jive 
 
                 in my opinion.
 
            
 
                 In a post-script, Dr. Dougherty clarified that the 
 
            shoulder was giving claimant more trouble than anything 
 
            else, but since no one had mentioned the shoulder in the 
 
            contemporaneous medical records, it was apparently related 
 
            to recent activity and not to the subject work injury.
 
            
 
                 Claimant was also seen for evaluation by Joel T. 
 
            Cotton, M.D., on July 31, 1990.  The history Mr. Keating 
 
            gave Dr. Cotton included:
 
            
 
                 He states that he has never been bothered by pain 
 
                 in the neck prior to the injury of May 7, 1987.  
 
                 He reports in 1969 he had an injury to the neck 
 
                 for which he wore a neck brace for four months.  
 
                 From that time in 1969, however, up until the time 
 
                 of the May 7, 1987, injury he did not suffer from 
 
                 any pain in the neck whatsoever, never received 
 
                 any type of medical or chiropractic treatment for 
 
                 neck pain, and was able to do all activity 
 
                 unrestricted without experiencing discomfort in 
 
                 the neck region.  He had a transient problem 
 
                 effecting [sic] his low back complaining of pain 
 
                 approximately two years before the 1987 injury for 
 
                 which he received no more than three chiropractic 
 

 
            
 
            Page   6
 
            
 
            
 
            
 
            
 
                 treatments with complete resolution of that 
 
                 problem.  On no occasion did the chiropractor need 
 
                 to treat the neck or shoulder on that occasion or 
 
                 on any other occasion.
 
            
 
                 As has been seen, this history is blatantly false.  The 
 
            history given Dr. Dougherty was similarly false.  Since Dr. 
 
            Blume made no mention of claimant's extensive chiropractic 
 
            history, especially in the three months before commencement 
 
            of work with Wells Dairy, it is clear that this physician 
 
            was also given a history either false or so incomplete as to 
 
            have the same effect.  Dr. Cotton commented on this 
 
            defective history in the following terms:
 
            
 
                 There appears to be a significant discrepancy in 
 
                 the history obtained from the patient at the time 
 
                 of my evaluation and the medical records which are 
 
                 available for my review.  According to records of 
 
                 Dr. Wagner, a chiropractor, this individual was 
 
                 receiving multiple chiropractic treatments to the 
 
                 area of the neck from October, 1986, through 
 
                 December, 1986.  Furthermore, according to these 
 
                 medical records, Mr. Keating reported he was 
 
                 receiving chiropractic treatment "two times a year 
 
                 I used to see a chiropractor".  This information 
 
                 would suggest to me that Mr. Keating has a 
 
                 longstanding pre-existing problem of neck pain and 
 
                 headache and it is my opinion based upon a 
 
                 reasonable degree of medical certainty that upon 
 
                 review of these records that Mr. Keating's current 
 
                 complaints are basically identical to the symptoms 
 
                 he has had in the past preceding the injury of 
 
                 May, 1987.
 
            
 
                 Dr. Cotton also noted that although claimant reported 
 
            doing virtually no physical labor in the course of his 
 
            landscaping business (essentially the same as his testimony 
 
            at trial), there were significant callouses, especially on 
 
            the right, to a degree only seen in patients performing 
 
            heavy physical activity using the upper extremities, more so 
 
            on the right.
 
            
 
                 Dr. Cotton concluded to a reasonable degree of medical 
 
            certainty that claimant's neurological examination was 
 
            normal with no evidence of permanent partial impairment 
 
            relative injuries to the neck, shoulder, elbow, cervical 
 
            spine or cervical nerve roots.  Claimant had reached maximum 
 
            medical benefits, could perform all usual and customary 
 
            activities without restriction and would require no 
 
            additional significant medical attention based on current 
 
            complaints.
 
            
 
                 Claimant was also seen for evaluation by Peter D. 
 
            Wirtz, M.D., on August 1, 1990.  Dr. Wirtz was also 
 
            apparently unaware of claimant's history of extensive 
 
            chiropractic treatment to the neck.  Dr. Wirtz found some 
 
            reduction in range of motion and diagnosed musculoskeletal 
 
            strain of the neck, tendonitis to the right shoulder and 
 
            tendonitis to the right elbow.  Dr. Wirtz rendered no 
 
            opinion as to whether these findings were causally related 
 

 
            
 
            Page   7
 
            
 
            
 
            
 
            
 
            to the work injury.
 
            
 
                 Claimant testified that after he was laid off by Wells 
 
            Dairy in October, 1987 (he had continued to work until then, 
 
            but on different jobs), he drew unemployment benefits for 
 
            several months, then took a position as a painter.  This 
 
            lasted only a short time, following which he took work as a 
 
            paperhanger for a national department store for a few weeks, 
 
            then as a painter for a painting contractor.  He 
 
            subsequently opened his own lawn and landscaping business, 
 
            and has remained so engaged for two years through trial.  A 
 
            review of incomplete business records, particularly payroll 
 
            records, indicates that claimant probably participated 
 
            actively in this physical work to a much greater degree than 
 
            he now maintains.
 
            
 
                                conclusions of law
 
            
 
                 The parties have stipulated that claimant sustained a 
 
            work injury on May 7, 1987 (although a reading of 
 
            defendants' brief indicates that they now seek to 
 
            unilaterally revoke that stipulation; this shall not be 
 
            allowed), but dispute whether there exists a causal 
 
            relationship between the injury and any resulting temporary 
 
            or permanent disability.
 
            
 
                 The supreme court of Iowa in Almquist v. Shenandoah 
 
            Nurseries, 218 Iowa 724, 731-32, 254 N.W. 35, 38 (1934) 
 
            discussed the definition of personal injury in workers' 
 
            compensation cases as follows:
 
            
 
                 While a personal injury does not include an 
 
                 occupational disease under the Workmen's 
 
                 Compensation Act, yet an injury to the health may 
 
                 be a personal injury.  [Citations omitted.]  
 
                 Likewise a personal injury includes a disease 
 
                 resulting from an injury....The result of changes 
 
                 in the human body incident to the general 
 
                 processes of nature do not amount to a personal 
 
                 injury.  This must follow, even though such 
 
                 natural change may come about because the life has 
 
                 been devoted to labor and hard work.  Such result 
 
                 of those natural changes does not constitute a 
 
                 personal injury even though the same brings about 
 
                 impairment of health or the total or partial 
 
                 incapacity of the functions of the human body. 
 
            
 
                    ....
 
                 
 
                 A personal injury, contemplated by the Workmen's 
 
                 Compensation Law, obviously means an injury to the 
 
                 body, the impairment of health, or a disease, not 
 
                 excluded by the act, which comes about, not through the 
 
                 natural building up and tearing down of the human body, 
 
                 but because of a traumatic or other hurt or damage to 
 
                 the health or body of an employee.  [Citations 
 
                 omitted.]  The injury to the human body here 
 
                 contemplated must be something, whether an accident or 
 
                 not, that acts extraneously to the natural processes of 
 
                 nature, and thereby impairs the health, overcomes, 
 

 
            
 
            Page   8
 
            
 
            
 
            
 
            
 
                 injures, interrupts, or destroys some function of the 
 
                 body, or otherwise damages or injures a part or all of 
 
                 the body.
 
            
 
                 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. 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 
 
            Hosp., 251 Iowa 375, 101 N.W.2d 167 (1960). 
 
            
 
                 However, expert medical evidence must be considered 
 
            with all other evidence introduced bearing on the causal 
 
            connection.  Burt, 247 Iowa 691, 73 N.W.2d 732.  The opinion 
 
            of experts need not be couched in definite, positive or 
 
            unequivocal language.  Sondag v. Ferris Hardware, 220 N.W.2d 
 
            903 (Iowa 1974).  However, the expert opinion may be 
 
            accepted or rejected, in whole or in part, by the trier of 
 
            fact.  Id. at 907.  Further, the weight to be given to such 
 
            an opinion is for the finder of fact, and that may be 
 
            affected by the completeness of the premise given the expert 
 
            and other surrounding circumstances.  Bodish, 257 Iowa 516, 
 
            133 N.W.2d 867.  See also Musselman v. Cent. Tel. Co., 261 
 
            Iowa 352, 154 N.W.2d 128 (1967).
 
            
 
                 While a claimant is not entitled to compensation for 
 
            the results of a preexisting injury or disease, the mere 
 
            existence at the time of a subsequent injury is not a 
 
            defense.  Rose v. John Deere Ottumwa Works, 247 Iowa 900, 
 
            908, 76 N.W.2d 756, 760-61 (1956).  If the claimant had a 
 
            preexisting condition or disability that is aggravated, 
 
            accelerated, worsened or lighted up so that it results in 
 
            disability, claimant is entitled to recover.  Nicks v. 
 
            Davenport Produce Co., 254 Iowa 130, 115 N.W.2d 812, 815 
 
            (1962).
 
            
 
                 Claimant's version of events is dubious to a very high 
 
            degree.  When he reported the injury to Steven Falk, he 
 
            pointed to the elbow, but did not mention injuring his 
 
            shoulder, head or neck.  He claims to have specifically told 
 
            David Calhoun that he jammed his shoulder and neck and 
 
            struck his head, but Calhoun testified to the contrary that 
 
            no complaints of injury to anything but the elbow were made 
 
            and his contemporaneous injury report merely set forth 
 
            contusions on the elbow.  The first physician seen, at the 
 
            offices of Dr. Hiemstra, prepared chart notes reflecting an 
 
            elbow injury with shooting pains from the elbow to the 
 
            fingers, but no mention is made of complaints to the 
 
            shoulder, neck or head.  Dr. Krull was seen on June 2, but 
 
            not only was no mention made of the work injury, but 
 
            claimant specified that his problems stemmed from a 1972 
 
            high school wrestling injury.  Only following July 1988 did 
 
            claimant assert to Dr. Krull that the work injury had caused 
 
            various problems, who then altered chart notes on request.  
 
            Claimant's testimony was inconsistent with Dr. Krull's 
 

 
            
 
            Page   9
 
            
 
            
 
            
 
            
 
            evidence.  Dr. Paulsrud was seen on June 18, 1987.  Again, 
 
            no mention is made in that physician's notes of any 
 
            complaint of shoulder, neck or head symptoms.  Again, 
 
            claimant testified that Dr. Paulsrud's notes are in error.
 
            
 
                 The history claimant gave to Dr. Krull shows that he 
 
            had frequently sought chiropractic treatment since his neck 
 
            injury in (variously) 1969 or 1972.  During the three months 
 
            prior to beginning work with Wells Dairy, claimant found it 
 
            necessary to seek chiropractic treatment to the neck on some 
 
            21 occasions from Dr. Wagner.  This was apparently ongoing 
 
            treatment broken by the necessity of changing residence to 
 
            accept the new job, since at least one January 1987 
 
            appointment was cancelled.  Yet, claimant denied or omitted 
 
            preexisting neck problems in histories given to Dr. 
 
            Dougherty, Dr. Cotton, Dr. Wirtz, and Dr. Blume.  While Dr. 
 
            Blume found a causal connection between the work injury and 
 
            claimant's current condition of ill being (Dr. Wirtz also 
 
            has found strain or tendonitis), the history fatally 
 
            undermines that opinion since Dr. Blume was clearly unaware 
 
            of claimant's preexisting problems.  Dr. Cotton found 
 
            claimant's current symptoms to be basically identical to 
 
            those which preceded the stipulated injury.
 
            
 
                 Based on the foregoing, it is held that claimant has 
 
            failed to meet his burden of proof in establishing that his 
 
            injury of May 7, 1987 extended to or caused disability, 
 
            either temporary or permanent, beyond the right elbow.
 
            
 
                 Claimant missed no time from work by reason of his 
 
            elbow injury.  Therefore, he is not entitled to healing 
 
            period or temporary total disability benefits.
 
            
 
                 Evidence concerning whether the elbow injury caused 
 
            permanent disability is in some dispute.  Claimant's 
 
            testimony is unreliable as to current complaints.  Dr. 
 
            Blume's impairment rating combines the arm, shoulder and 
 
            neck.  Based on the work restrictions he prescribed, it 
 
            appears that Dr. Blume gave emphasis to shoulder and neck 
 
            complaints.  Dr. Dougherty was not "terribly impressed" with 
 
            claims of elbow disability and concluded that "perhaps" 
 
            claimant had minimal disability of the right upper 
 
            extremity, certainly not more than about five percent.  Dr. 
 
            Cotton found no permanent disability causally related to the 
 
            work injury.  Dr. Wirtz found tendonitis in the right elbow, 
 
            but rendered no impairment rating or opinion as to whether 
 
            it was causally related to the work injury.
 
            
 
                 Considering these factors then, it is held that 
 
            claimant has failed to meet his burden of proof in 
 
            establishing that he has sustained a permanent disability to 
 
            the right upper extremity.
 
            
 
                 Claimant also asserts entitlement to medical benefits.  
 
            The disputed benefits appear related to complaints other 
 
            than to the right elbow, and thus are not causally related 
 
            to the stipulated incident of May 7, 1987.
 
            
 
                 Other issues are rendered moot.
 
            
 

 
            
 
            Page  10
 
            
 
            
 
            
 
            
 
                                      order
 
            
 
                 THEREFORE, IT IS ORDERED:
 
            
 
                 Claimant shall take nothing further from these 
 
            proceedings.
 
            
 
                 The costs of this action are assessed to claimant 
 
            pursuant to rule 343 IAC 4.33.
 
            
 
                 Signed and filed this ______ day of ____________, 1991.
 
            
 
                 
 
            
 
                 
 
                 
 
                                          ______________________________
 
                                          DAVID RASEY
 
                                          DEPUTY INDUSTRIAL COMMISSIONER
 
            
 
            Copies To:
 
            
 
            Mr. Dennis J. Mahr
 
            Attorney at Law
 
            318 Insurance Centre
 
            507 7th Street
 
            Sioux City, Iowa  51101
 
            
 
            Mr. Thomas M. Plaza
 
            Attorney at Law
 
            200 Home Federal Building
 
            P.O. Box 3086
 
            Sioux City, Iowa  51102
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                           5-1402.40
 
                           Filed March 14, 1991
 
                           DAVID RASEY
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            MICHAEL JOHN KEATING,         :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :         File No. 908628
 
            WELLS DAIRY, INC.,            :
 
                                          :      A R B I T R A T I O N
 
                 Employer,                :
 
                                          :         D E C I S I O N
 
            and                           :
 
                                          :
 
            KEMPER GROUP,                 :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ____________________________________________________________
 
            
 
            5-1402.40
 
            Claimant lacked credibility and failed to prove that elbow 
 
            injury (for which no time was lost) extended to body or 
 
            caused disability.
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
            before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            JEAN M. CALHOON,              :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :      File No. 908644
 
            AALFS MANUFACTURING COMPANY,  :
 
                                          :        A P P E A L
 
                 Employer,                :
 
                                          :      D E C I S I O N
 
            and                           :
 
                                          :
 
            AETNA CASUALTY & SURETY       :
 
            COMPANY,                      :
 
                                          :
 
                 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 March 21, 1991, is affirmed and is adopted as the 
 
            final agency action in this case. 
 
            Defendants shall pay the costs of the appeal, including the 
 
            preparation of the hearing transcript.
 
            Signed and filed this 29 day of December, 1992.
 
            
 
            
 
            
 
            
 
                      ________________________________
 
                               BYRON K. ORTON
 
                           INDUSTRIAL COMMISSIONER
 
            
 
            Copies To:
 
            
 
            Mr. Harry H. Smith
 
            Attorney at Law
 
            P.O. Box 1194
 
            Sioux City, IA  51102
 
            
 
            Ms. Judith Ann Higgs
 
            Attorney at Law
 
            200 Home Federal Building
 
            P.O. Box 3086
 
            Sioux City, IA  51102
 
            
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
            before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            JEAN M. CALHOON,              :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :      File No. 908644
 
            AALFS MANUFACTURING COMPANY,  :
 
                                          :        A P P E A L
 
                 Employer,                :
 
                                          :      D E C I S I O N
 
            and                           :
 
                                          :
 
            AETNA CASUALTY & SURETY,      :
 
            COMPANY
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
            9998
 
            
 
                 Summary affirmance of deputy's decision filed March 21, 
 
            1991.
 
            
 
                 Signed and filed this ____ day of December, 1992.
 
            
 
 
            
 
            Page   1
 
            
 
            
 
            
 
            
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            JEAN M. CALHOON,              :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :         File No. 908644
 
                                          :
 
            AALFS MANUFACTURING COMPANY,  :      A R B I T R A T I O N
 
                                          :
 
                 Employer,                :         D E C I S I O N
 
                                          :
 
            and                           :
 
                                          :
 
            AETNA CASUALTY & SURETY       :
 
            COMPANY,                      :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ____________________________________________________________
 
            
 
                              statement of the case
 
            
 
                 This is a proceeding in arbitration upon the April 20, 
 
            1989 petition of claimant Jean M. Calhoon seeking benefits 
 
            under the Iowa Workers' Compensation Act from employer Aalfs 
 
            Manufacturing Company and its insurance carrier, Aetna 
 
            Casualty & Surety Company.  Claimant alleges a work injury 
 
            to her shoulder of July 20, 1988.  The cause came on for 
 
            hearing in Sioux City, Iowa, on September 12, 1990.  The 
 
            record consists of joint exhibits 1 through 48, claimant's 
 
            exhibits 49 through 55 and defendants' exhibits 1 and 2.
 
            
 
                                      issues
 
            
 
                 The parties have stipulated that an employment 
 
            relationship existed between Jean Calhoon and Aalfs 
 
            Manufacturing Company on July 20, 1988, to a weekly 
 
            compensation rate of $100.98 and that certain benefits were 
 
            voluntarily paid prior to hearing.
 
            
 
                 Issues presented for resolution include:
 
            
 
                 1.  Whether claimant sustained an injury arising out of 
 
            and in the course of her employment with Aalfs 
 
            Manufacturing;
 
            
 
                 2.  Whether there exists a causal relationship between 
 
            that injury and any subsequent temporary or permanent 
 
            disability;
 
            
 
                 3.  The nature and extent of claimant's disability, if 
 
            any; and,
 
            
 
                 4.  Whether claimant is entitled to medical benefits 
 
            under Iowa Code section 85.27.
 
            
 
                                 findings of fact
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            
 
                 The undersigned deputy industrial commissioner, having 
 
            heard the testimony and considered all of the evidence, 
 
            finds:
 
            
 
                 Jean M. Calhoon, 38 years of age at hearing, is a 1970 
 
            high school graduate and has attended one year of college.  
 
            She also attended a business college for six months before 
 
            the school closed.  Since then, she has worked in concession 
 
            stands and as a teller for a race track, as a waitress, a 
 
            bakery worker, a cashier, a cab driver, and for some eight 
 
            or nine years in the meat packing industry in various line 
 
            positions.  In 1981, she worked about four months for 
 
            defendant Aalfs, a manufacturer of blue jeans.  Thereafter, 
 
            she purchased a tavern business as a partner, but also held 
 
            second jobs.  She worked in the meat industry, as a sandwich 
 
            maker and delicatessen cashier, and again as a band and tuck 
 
            operator for Aalfs, beginning in 1985 and continuing until 
 
            being discharged on December 7, 1988.  She also worked for 
 
            Aalfs in labels, boxing and repair of jeans.
 
            
 
                 Claimant was working on a repair job on July 28, 1988.  
 
            While attempting to transfer a stack of blue jeans from a 
 
            cart to her work station, the cart rolled.  Claimant tried 
 
            to complete the maneuver, but felt something "pop" in the 
 
            right shoulder, causing immediate pain at least down through 
 
            the arm into the fingers.  Somewhat later, claimant has 
 
            given history of pain also radiating up through the neck.  
 
            Claimant finished her job that day and worked the next two 
 
            days.  She was first seen on August 2, 1988 at Morningside 
 
            Family Practice, P.C.  Physicians there include Richard 
 
            Budensiek, D.O., Michael Jennings, M.D., John N. Redwine, 
 
            D.O., and Daniel M. Rhodes, M.D.  Numerous "workers' 
 
            compensation" forms were prepared by physicians at that 
 
            office during 1988 and 1989.  Significant notes include a 
 
            finding of causal relationship between the work injury and 
 
            diagnosed right shoulder strain on August 2 by Dr. Redwine 
 
            ("Is this injury related to work?  Yes.").  Claimant was 
 
            released to return to work on August 3 with restricted use 
 
            of the right arm for that week.  On August 5, Dr. Redwine 
 
            added an assessment of carpal tunnel syndrome on the right.  
 
            Chart notes reflect that right shoulder pain was worse.  
 
            Chart notes of August 2 and August 5 show moderate spasm of 
 
            the right shoulder, and reduced range of motion on the 
 
            earlier date.  On August 5, Dr. Redwine restricted claimant 
 
            to no use of the right arm and prescribed a splint.  That 
 
            restriction was continued on August 9, but claimant 
 
            apparently continued to work.
 
            
 
                 On August 23, Dr. Redwine's chart notes reflect that 
 
            the shoulder was better and his workers' compensation form 
 
            referred only to carpal tunnel syndrome.  On August 30, 
 
            claimant continued to complain of numbness and tingling in 
 
            the wrist and hand with radiation to the shoulder.  She was 
 
            not then working.
 
            
 
                 Nerve conduction and electromyography testing was 
 
            performed on September 12 at Marian Health Center.  D. Nitz, 
 
            M.D., found no evidence of carpal tunnel or ulnar neuropathy 
 
            or evidence of cervical radiculopathy.  On September 13, Dr. 
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            Redwine made no mention of shoulder complaints and released 
 
            claimant to return to work without restriction.
 
            
 
                 On December 15, claimant returned and was seen by Dr. 
 
            Budensiek.  On that date, he opined that tendonitis of the 
 
            right shoulder was causally related to the work injury of 
 
            July 28.  Claimant was then not working but able to return 
 
            to work if restricted against repeated abduction of the 
 
            right shoulder.
 
            
 
                 By this date, claimant had already been discharged.  
 
            Although defendants maintain that she was discharged for 
 
            excessive absenteeism, a Job Service hearing officer held in 
 
            a contested case proceeding that Aalfs had failed to prove 
 
            that the discharge was for job-related misconduct.  Of 
 
            course, while the decision does not appear of record 
 
            (another decision involving claimant's failure to timely 
 
            submit claims while disqualified during litigation does 
 
            appear of record), it would not necessarily have been 
 
            established that claimed absenteeism was not a legitimate 
 
            motivation for the discharge, but only that statutory job 
 
            misconduct had not been established.
 
            
 
                 On December 23, Dr. Budensiek had an impression of 
 
            bursitis and tendonitis in the right shoulder.  Claimant was 
 
            released to return to work without restrictions.
 
            
 
                 Claimant returned on January 6, 1989.  Dr. Budensiek 
 
            restricted claimant against repeated lifting overhead, but 
 
            released her for work.  Dr. Budensiek made similar findings 
 
            on January 13 and January 27, but noted that range of motion 
 
            in the right shoulder was normal on the latter date.
 
            
 
                 Claimant was seen by Dr. Rhodes on February 27, 1989.  
 
            His impression was of right shoulder tendonitis and right 
 
            chest wall pain and myositis, which he opined were related 
 
            to a work injury.  On March 13, Dr. Rhodes noted that 
 
            shoulder pain had been increased since claimant had an 
 
            argument with her employer at Aalfs "who grabbed her on the 
 
            shoulder."  Curiously, this note post-dates claimant's 
 
            discharge by over three months.  No other evidence of this 
 
            incident appears of record.  Assessment was of right 
 
            shoulder tendonitis and possible biceps tendonitis.  The 
 
            earliest date claimant would be able to return to work was 
 
            then "unknown" and claimant was restricted to "no lifting" 
 
            with the right arm.
 
            
 
                 Claimant was seen again by Dr. Budensiek on November 13 
 
            and December 8, 1989.  He again felt claimant suffered 
 
            tendonitis of the right shoulder.  On the latter occasion, 
 
            range of motion was normal, but abduction beyond 90 degrees 
 
            was painful.  Noting that claimant had by then undergone 
 
            arthrogram of the shoulder and CT scan and myelogram of the 
 
            cervical spine, chart notes reflect:
 
            
 
                 Nothing has shown up so I think this patient is 
 
                 permanently disable [sic].  Will continue on 
 
                 Motrin and no use of her right shoulder.  She can 
 
                 not use the left had [sic] because of the severe 
 
                 tremor.
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
            
 
                 Claimant was next seen by Kevin Liudahl, M.D.  In a 
 
            treatment authorization form dated April 6, 1989, Dr. 
 
            Liudahl found restrictions then unknown, but opined that the 
 
            injury (then believed a right rotator cuff tear) was work 
 
            related.  James C. Beeler, M.D., then performed an 
 
            arthrogram at Dr. Liudahl's request, but the test proved 
 
            negative for rotator cuff or other shoulder damage.  Chart 
 
            notes of Dr. Liudahl reflect that as of March 16 claimant 
 
            was to rest her shoulder for a week and then return to light 
 
            duty, with normal activities anticipated in the third week.  
 
            However, on April 6, claimant was to stay off work until 
 
            following the arthrogram.  On April 21, he noted:  "I do not 
 
            think she is a candidate for work.  Possibly be able to 
 
            start some light duty when she returns a week from Monday."  
 
            However, Dr. Liudahl apparently did not see claimant again.  
 
            He reiterated that the injury was work related (again, by 
 
            checking a form to that effect).  His examination of that 
 
            date revealed pain increasing on resisted overhead 
 
            activities.  Claimant continued to complain of aches in the 
 
            anterior aspect of the shoulder, especially with overhead 
 
            activities.  Impression was of recalcitrant right 
 
            subacromial bursitis.
 
            
 
                 EMG and nerve conduction studies were again made by Dr. 
 
            B. Krysztofiak, on August 1, 1989.  Results were in keeping 
 
            with mild C-6 radiculopathy, but there was no EMG indication 
 
            of superimposed ulnar neuropathy, carpal tunnel syndrome or 
 
            brachial plexopathy on the right side.
 
            
 
                 Claimant was next seen on August 25 by Ralph F. Reeder, 
 
            M.D., a neurosurgeon.  On physical examination, claimant was 
 
            tender.  No spasm was found.  Range of motion of the right 
 
            shoulder was full, but generated pain.  Dr. Reeder's 
 
            impression was of a right C-6 radiculopathy, but he 
 
            suspected that the problem might turn out to be associated 
 
            with shoulder pain.  At his request, myelogram and CT scans 
 
            were performed on August 30.  Dr. Beeler reported an 
 
            impression of the spinal canal being at the lower limits of 
 
            normal in size from C-4 to C-7, mild bulging of the annulus 
 
            at C6-7 and negative CT exam at C4-5 and C5-6.  Dr. Reeder 
 
            interpreted the myelogram to show very mild bulging at C3-4, 
 
            4-5 and 5-6 with impingement on the dural sac but not spinal 
 
            cord compression.  Claimant was described as having a 
 
            congenitally small spinal canal, but within normal limits.  
 
            There was no evidence of lateral disc herniation or 
 
            compression of nerve roots from C-4 to C-7.
 
            
 
                 Claimant was seen for evaluation by Pat Luse, D.C., of 
 
            the Nebraska Chiropractic & Nutrition Clinic on January 22, 
 
            1990.  He found diminished range of motion of the cervical 
 
            spine and right shoulder and hypesthesia along the right C-6 
 
            nerve root.  He found crepitation in the right shoulder 
 
            joint and trigger points.  His diagnosis was of right 
 
            rotator cuff tear with associated hypomobility and 
 
            crepitation, C-6 nerve root impairment and cervical dorsal 
 
            myofascitis.  He opined that "this injury" was consistent 
 
            with the work incident and, using the American Medical 
 
            Association Guides to the Evaluation of Permanent 
 
            Impairment, believed claimant had sustained a 15 percent 
 

 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
            impairment to the body as a whole.  He believed that 
 
            claimant had lost significant range of motion in the last 
 
            six months.  Since an arthrogram had earlier shown that 
 
            claimant did not suffer a rotator cuff tear, it is possible 
 
            that a subsequent injury may have occurred.  Or, that part 
 
            of the diagnosis may simply be wrong.  It is in any event 
 
            not established that claimant suffered a torn rotator cuff.  
 
            Dr. Luse felt claimant was restricted from returning to work 
 
            "requiring any significant use of the right upper 
 
            extremity."
 
            
 
                 Claimant was evaluated for physical functional capacity 
 
            limitations by B. T. Woodburn, M.D.  Dr. Woodburn reported 
 
            on January 4, 1990 that claimant could lift only 10 pounds 
 
            occasionally or frequently, that her upper extremities were 
 
            limited as to pushing and pulling, and the right upper 
 
            extremity was limited with respect to activities such as 
 
            typing, key punch operation and operation of hand controls.  
 
            Claimant was restricted for safety reasons against the use 
 
            of hand-operated machinery.  Another such assessment was 
 
            done by C. J. Metts, M.D., who reported on February 27, 
 
            1990, that claimant could occasionally lift 20 pounds, but 
 
            frequently only 10.  Dr. Metts found the severity of 
 
            claimant's symptoms disproportionate based on medically 
 
            determinable impairments, presumably meaning objectively 
 
            quantifiable impairments.
 
            
 
                 Claimant now complains that she is limited in numerous 
 
            activities, such as lawn mowing, snow shoveling, blow drying 
 
            her hair with the right hand, carrying groceries, sleeping 
 
            and athletic activities.  She complains of pain under the 
 
            armpit to the shoulder blade and numbness to the fingers 
 
            upon lifting.  She finds it hard to lift her arm over about 
 
            half way, even for light tasks such as hair combing.
 
            
 
                 Claimant has longstanding problems of tremor to the 
 
            left hand and thumb.  These were the subject of an unrelated 
 
            compromise special case settlement approved by this office.  
 
            This writer observed a noticeable tremor of the right hand 
 
            when claimant was sworn in at hearing, but medical records 
 
            make no mention of any such problem.  Presumably, claimant 
 
            was merely nervous.
 
            
 
                 Claimant continued to work in her bar from time to time 
 
            until leaving that business on January 27, 1990.  However, 
 
            she testified that her activities were much reduced after 
 
            December 1988.  It is noteworthy that claimant reported a 
 
            false work search contact with respect to her job insurance 
 
            claim, claiming that she applied for work and was "not 
 
            hired" at the very bar in which she then had a partnership 
 
            interest.
 
            
 
                 Claimant was on at least two occasions under 
 
            surveillance by Steve Koenig of Silverhawk Investigations.  
 
            His report of June 27, 1989 and subsequent testimony 
 
            suggests that claimant was much more active in her 
 
            activities at the bar ("Rowdy's") than she now lets on, as 
 
            she was seen tending bar, vacuuming, moving tables, loading 
 
            a cooler and carrying a small ice bucket.  However, his 
 
            report and testimony concerning events of July 19, 1989 
 

 
            
 
            Page   6
 
            
 
            
 
            
 
            
 
            strongly buttresses claimant's case.  Claimant was seen 
 
            engaging in a softball game.  The record and her appearance 
 
            as a witness indicate that Ms. Calhoon is athletic.  She was 
 
            noted batting at 7:45 and again at 8:19 p.m., but there is 
 
            no indication that she took the field with her team.  Given 
 
            this time lapse, it is unlikely that the team "batted 
 
            around" without taking the field.  Claimant testified that 
 
            she limited her participation to being a designated hitter 
 
            because of the shoulder injury.  This rings true.  It is 
 
            entirely credible on this medical record that claimant would 
 
            be able to swing a softball bat, but not engage in the 
 
            overhead arm motions necessary to throw a softball.  
 
            Claimant was a long-term member of her softball team, and 
 
            the fact that she did not take the field strongly implies 
 
            that she was unable because she could not throw.  It has not 
 
            been shown that claimant was aware of this surveillance.  It 
 
            is also unlikely that she would have played softball at all 
 
            while knowingly under surveillance if it was her plan to 
 
            falsely claim injury.
 
            
 
                 It is found that claimant did sustain an injury to her 
 
            shoulder as she alleges.  Her allegations of continuing and 
 
            current complaints of functional disability to the shoulder 
 
            from lingering effects of the injury are also accepted as 
 
            established, although it seems fair to conclude that she has 
 
            done little to minimize her physical limitations for 
 
            purposes of this litigation.  Claimant's demonstrated 
 
            willingness to play fast and loose with her Job Service 
 
            claim for benefits does little to inspire trust, but it is 
 
            improbable that she would have undergone invasive testing 
 
            such as an arthrogram and a myelogram in the absence of 
 
            painful and disabling residual symptoms.
 
            
 
                                conclusions of law
 
            
 
                 Claimant has the burden of proving by a preponderance 
 
            of the evidence that she received an injury on July 20, 1988 
 
            which arose out of and in the course of her employment. 
 
            McDowell v. Town of Clarksville, 241 N.W.2d 904 (Iowa 
 
            1976); Musselman v. Cent. Tel. 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 July 20, 
 
            1988 is causally related to the disability on which she now 
 
            bases her 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 
 
            Hosp., 251 Iowa 375, 101 N.W.2d 167 (1960). 
 
            
 
                 However, expert medical evidence must be considered 
 
            with all other evidence introduced bearing on the causal 
 
            connection.  Burt, 247 Iowa 691, 73 N.W.2d 732.  The opinion 
 
            of experts need not be couched in definite, positive or 
 
            unequivocal language.  Sondag v. Ferris Hardware, 220 N.W.2d 
 

 
            
 
            Page   7
 
            
 
            
 
            
 
            
 
            903 (Iowa 1974).  However, the expert opinion may be 
 
            accepted or rejected, in whole or in part, by the trier of 
 
            fact.  Id. at 907.  Further, the weight to be given to such 
 
            an opinion is for the finder of fact, and that may be 
 
            affected by the completeness of the premise given the expert 
 
            and other surrounding circumstances.  Bodish, 257 Iowa 516, 
 
            133 N.W.2d 867.  See also Musselman v. Cent. Tel. Co., 261 
 
            Iowa 352, 154 N.W.2d 128 (1967).
 
            
 
                 Claimant was engaged in the performance of assigned 
 
            duties when she suffered the shoulder injury that gave rise 
 
            to this contested case.  Every physician to have registered 
 
            an opinion on the issue has found periods of temporary or 
 
            permanent disability causally related to the lifting 
 
            incident.  Even though many of these opinions were merely in 
 
            the form of checking a box or completing a blank, this has 
 
            been held satisfactory expert proof of causation.  Pulju v. 
 
            IBP, Inc., file number 804656 (App. Decn., 1989).  There is 
 
            no controverting expert opinion of record.
 
            
 
                 Under Iowa Code section 85.34(1), healing period is 
 
            compensable beginning on the date of injury and continuing 
 
            until the employee has returned to work, it is medically 
 
            indicated that significant improvement from the injury is 
 
            not anticipated, or until the employee is medically capable 
 
            of returning to substantially similar employment, whichever 
 
            first occurs.
 
            
 
                 The injury date was July 28, 1988, rather than July 20 
 
            as alleged in claimant's petition.  Claimant was not 
 
            immediately taken off work, although it appears that she may 
 
            have missed some time from work at scattered intervals.  The 
 
            record lacks sufficient specificity to support an award of 
 
            healing period benefits.
 
            Functional impairment is an element to be considered in 
 
            determining industrial disability which is the reduction of 
 
            earning capacity, but consideration must also be given to 
 
            the injured employee's age, education, qualifications, expe
 
            rience and inability to engage in employment for which he is 
 
            fitted.  Olson v. Goodyear Service Stores, 255 Iowa 1112, 
 
            125 N.W.2d 251 (1963).  Barton v. Nevada Poultry, 253 Iowa 
 
            285, 110 N.W.2d 660 (1961).
 
            A finding of impairment to the body as a whole found by a 
 
            medical evaluator does not equate to industrial disability.  
 
            This is so as impairment and disability are not synonymous.  
 
            Degree of industrial disability can in fact be much 
 
            different than the degree of impairment because in the first 
 
            instance reference is to loss of earning capacity and in the 
 
            latter to anatomical or functional abnormality or loss.  
 
            Although loss of function is to be considered and disability 
 
            can rarely be found without it, it is not so that a degree 
 
            of industrial disability is proportionally related to a 
 
            degree of impairment of bodily function.
 
            Factors to be considered in determining industrial dis
 
            ability include the employee's medical condition prior to 
 
            the injury, immediately after the injury, and presently; the 
 
            situs of the injury, its severity and the length of healing 
 

 
            
 
            Page   8
 
            
 
            
 
            
 
            
 
            period; the work experience of the employee prior to the 
 
            injury, after the injury and potential for rehabilitation; 
 
            the employee's qualifications intellectually, emotionally 
 
            and physically; earnings prior and subsequent to the injury; 
 
            age; education; motivation; functional impairment as a 
 
            result of the injury; and inability because of the injury to 
 
            engage in employment for which the employee is fitted.  Loss 
 
            of earnings caused by a job transfer for reasons related to 
 
            the injury is also relevant.  These are matters which the 
 
            finder of fact considers collectively in arriving at the 
 
            determination of the degree of industrial disability.
 
            
 
                 There are no weighting guidelines that indicate how 
 
            each of the factors are to be considered.  There are no 
 
            guidelines which give, for example, age a weighted value of 
 
            ten percent of the total value, education a value of fifteen 
 
            percent of total, motivation - five percent; work experience 
 
            - thirty percent, etc.  Neither does a rating of functional 
 
            impairment directly correlate to a degree of industrial 
 
            disability to the body as a whole.  In other words, there 
 
            are no formulae which can be applied and then added up to 
 
            determine the degree of industrial disability.  It therefore 
 
            becomes necessary for the deputy or commissioner to draw 
 
            upon prior experience, general and specialized knowledge to 
 
            make the finding with regard to degree of industrial dis
 
            ability.  See Peterson v. Truck Haven Cafe, Inc., (Appeal 
 
            Decision, February 28, 1985); Christensen v. Hagen, Inc., 
 
            (Appeal Decision, March 26, 1985).
 
            
 
                 The parties dispute whether this injury is to the arm 
 
            or the body as a whole.  Claimant presented with reduced 
 
            range of motion of the shoulder and spasm of the trapezius 
 
            muscle.  She has continued pain and symptomatology all the 
 
            way to the neck, although the record does not support a 
 
            holding that neurological problems, C-6 radiculopathy in 
 
            particular, are causally related to the initial injury.  
 
            Rather, although there have been varying diagnoses from the 
 
            fingers to the neck (all found causally related by at least 
 
            some of the medical practitioners).  Dr. Budensiek's and Dr. 
 
            Liudahl's diagnoses of bursitis and tendonitis in the 
 
            shoulder seem reasonable.  Each was a treating physician.  
 
            As noted, claimant did present with objective signs.  Every 
 
            physician who has rendered an opinion finds impairment, even 
 
            though objective signs at present are minimal.  It is worth 
 
            noting that Dr. Luse's findings are suspect because he 
 
            believed claimant to have sustained a rotator cuff tear and 
 
            observed crepitation.  Claimant's condition may have changed 
 
            for unknown reasons by the time she visited Dr. Luse, since 
 
            a prior arthrogram was negative for rotator cuff damage and 
 
            crepitation (a grating sound in the joint) had not 
 
            previously been noted by the numerous physicians to have 
 
            seen claimant earlier, being even specifically denied by Dr. 
 
            Budensiek.
 
            
 
                 Dr. Budensiek restricted claimant against repeated 
 
            overhead lifting when he saw her in January 1989.  The 
 
            record does not show that these restrictions have ever been 
 

 
            
 
            Page   9
 
            
 
            
 
            
 
            
 
            lifted.  Dr. Rhodes felt claimant restricted to "no lifting" 
 
            with the right arm.  When Dr. Liudahl last saw claimant, he 
 
            did not believe she was then a candidate for work.  However, 
 
            he obviously felt claimant would be able to work in the 
 
            future, since he speculated that she might begin light duty 
 
            when she next returned.  The evaluations of Dr. Woodburn and 
 
            Dr. Metts are consistent, if perhaps more detailed.  Dr. 
 
            Woodburn felt claimant could lift only ten pounds and was 
 
            limited as to pushing, pulling and against use of 
 
            hand-operated machinery for safety reasons and with respect 
 
            to activities such as typing and operation of hand controls.  
 
            Dr. Metts, although he found claimant's symptoms to be 
 
            disproportionate to objective signs, limited claimant to 
 
            occasional lifting of 20 pounds and frequent lifting of 10 
 
            pounds.  Claimant's self-described limitations in daily life 
 
            are less trustworthy as a measure of disability.  
 
            Nonetheless, this writer believes that she has indeed 
 
            sustained a significant diminution in the scope of her 
 
            activities.
 
            
 
                 Claimant's restrictions might not bar her from working 
 
            in concession stands, as a teller, as a waitress, a cab 
 
            driver or a cashier, but could well affect potential 
 
            employment as a bakery worker, line worker in meat packing 
 
            and, in particular, in the manufacture of blue jeans.  While 
 
            claimant continued to work after her injury, her permanent 
 
            restrictions were not then in place.  And, it must not be 
 
            forgotten that defendant did not keep claimant employed, 
 
            itself a factor in assessing industrial disability.  
 
            McSpadden v. Big Ben Coal Co., 288 N.W.2d 181 (Iowa 1980).  
 
            While defendant claims that claimant was discharged for 
 
            absenteeism, whatever her record in that regard may have 
 
            been, it was not deemed misconduct in the unemployment 
 
            insurance litigation between these parties.  On the other 
 
            hand, claimant continued operating her bar long after the 
 
            injury, and she has no doubt developed various transferrable 
 
            skills from that experience.  She is a high school graduate 
 
            and certainly appears to be of suitable age and intelligence 
 
            for retraining.  Nonetheless, at age 38, she would normally 
 
            be expected to be in her peak earning years, and earning 
 
            capacity has been significantly reduced by this injury.
 
            
 
                 Considering then these factors in specific and the 
 
            record otherwise in general, it is held that claimant has 
 
            sustained an industrial disability equivalent to 40 percent 
 
            of the body as a whole, or 200 weeks as a percentage of 500.
 
            
 
                 Medical expenses are also sought under Iowa Code 
 
            section 85.27.  Disputed expenses are set forth in 
 
            claimant's exhibits 49 through 54.  Defendants have 
 
            stipulated that the fees charged are fair and reasonable, 
 
            but dispute whether they were incurred for reasonable and 
 
            necessary medical treatment and causal nexus to the work 
 
            injury.  Claimant has met her burden of proof on both 
 
            counts.  Claimant's symptoms were wide-ranging, from the 
 
            fingers to the neck, and diagnoses were many and varied.  
 
            All of the medical costs either involve therapy 
 

 
            
 
            Page  10
 
            
 
            
 
            
 
            
 
            (particularly physical therapy) or appear reasonably 
 
            calculated to reach an appropriate diagnosis.  Claimant 
 
            shall be awarded all medical expenses on exhibits 49 through 
 
            54.
 
            
 
                                      order
 
            
 
                 THEREFORE, IT IS ORDERED:
 
            
 
                 Defendants shall pay unto claimant two hundred (200) 
 
            weeks of permanent partial disability benefits at the 
 
            stipulated rate of one hundred and 98/100 dollars ($100.98) 
 
            per week commencing July 28, 1988 and totalling twenty 
 
            thousand one hundred ninety-six and 00/100 dollars 
 
            ($20,196.00).
 
            
 
                 Defendants shall have credit for all voluntary benefits 
 
            paid.
 
            
 
                 All accrued weekly benefits shall be paid in a lump sum 
 
            together with statutory interest thereon pursuant to Iowa 
 
            Code section 85.30.
 
            
 
                 Defendants shall pay the medical expenses set forth in 
 
            claimant's exhibits 49 through 54, totalling two thousand 
 
            one hundred forty-four and 18/100 dollars ($2,144.18).
 
            
 
                 The costs of this action shall be assessed to 
 
            defendants pursuant to rule 343 IAC 4.33.
 
            
 
                 Defendants shall file claim activity reports as 
 
            requested by this agency pursuant to rule 343 IAC 3.1.
 
            
 
                 Signed and filed this ______ day of ____________, 1991.
 
            
 
                 
 
            
 
                 
 
                 
 
                                          ______________________________
 
                                          DAVID RASEY
 
                                          DEPUTY INDUSTRIAL COMMISSIONER
 
            
 
            Copies To:
 
            
 
            Mr. Harry H. Smith
 
            Attorney at Law
 
            P.O. Box 1194
 
            Sioux City, Iowa  51102
 
            
 
            Ms. Judith Ann Higgs
 
            Attorney at Law
 
            200 Home Federal Building
 
            P.O. Box 3086
 
            Sioux City, Iowa  51102
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                           1402.20; 3701
 
                           Filed March 21, 1991
 
                           DAVID RASEY
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            JEAN M. CALHOON,              :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :         File No. 908644
 
                                          :
 
            AALFS MANUFACTURING COMPANY,  :      A R B I T R A T I O N
 
                                          :
 
                 Employer,                :         D E C I S I O N
 
                                          :
 
            and                           :
 
                                          :
 
            AETNA CASUALTY & SURETY       :
 
            COMPANY,                      :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ____________________________________________________________
 
            
 
            1402.20; 3701
 
            Surveillance redounded to claimant's benefit where gumshoe 
 
            reported that she participated in a softball contest, 
 
            batting but not fielding.  Claimant, naturally athletic, 
 
            credibly testified that she served her team as a designated 
 
            batter only because she was unable to throw due to a 
 
            contested shoulder injury.  This explanation was credible 
 
            and consistent with the medical record.  Claimant was found 
 
            to have established that she sustained an injury as per her 
 
            allegations.