Page   1
 
            
 
            
 
            
 
            
 
            before the iowa industrial commissioner
 
            ____________________________________________________________
 
            _____
 
                      :
 
            E. KENNETH JONES,   :
 
                      :
 
                 Claimant, :
 
                      :
 
            vs.       :
 
                      :      File No. 908648
 
            CONTINENTAL BAKING COMPANY,   :
 
                      :        A P P E A L
 
                 Employer, :
 
                      :      D E C I S I O N
 
            and       :
 
                      :
 
            AETNA CASUALTY & SURETY, :
 
                      :
 
                 Insurance Carrier,  :
 
                 Defendants.    :
 
            ____________________________________________________________
 
            _____
 
            STATEMENT OF THE CASE
 
            Defendants appeal from an arbitration decision filed April 
 
            24, 1990, awarding permanent partial disability benefits as 
 
            the result of alleged injuries occurring in late summer, 
 
            1987, and on February 28, 1989.  The record on appeal 
 
            consists of the transcript of the arbitration proceeding; 
 
            claimant's exhibits 1 through 9; and defendants' exhibit A.  
 
            Both parties filed briefs on appeal.
 
            issues
 
            Defendants state the following issues on appeal:
 
            1.  The deputy erred in applying the discovery rule to 
 
            claimant's traumatic injury of April 22, 1986 and concluding 
 
            that the statute did not begin to run until late summer of 
 
            1987.
 
            2.  The deputy erred in applying the cumulative injury rule 
 
            to claimant's traumatic injury of April 22, 1986 and 
 
            concluding that the statute did not begin to run until 
 
            February 28, 1989.
 
            3.  The deputy's finding that claimant could not reasonably 
 
            have known of the seriousness of his injury until late 
 
            summer of 1987 was not supported by substantial evidence 
 
            when viewed as a whole.
 
            review of the evidence
 
            The arbitration decision adequately and accurately reflects 
 
            the pertinent evidence and it will not be set forth herein.
 
            applicable law
 
            The citations of law in the arbitration decision are 
 
            appropriate to the issues and the evidence.
 
            analysis
 
            On appeal, defendants urge that the deputy erred in finding 
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            dates of injury within the statute of limitations.  The 
 
            deputy found that claimant suffered an injury during the 
 
            "late summer of 1987," and another injury date on February 
 
            28, 1989.
 
            Essentially, claimant worked as a bread truck driver, and 
 
            injured his right knee on April 22, 1986 when he stepped out 
 
            of the truck onto a rock, twisted his knee and fell to the 
 
            ground.  Claimant sought medical attention, and x-rays were 
 
            taken.  Claimant was not given any restrictions.  Claimant 
 
            did not miss any work.  Claimant's work required him to step 
 
            in and out of his delivery truck up to 125 times per day.  
 
            Claimant continued to experience pain throughout the 
 
            remainder of 1986, and in late summer of 1987, claimant 
 
            began to experience a grinding sensation in his knee.  In 
 
            1988, claimant developed a lump on his knee, and he returned 
 
            to his physician at that time.  Claimant then underwent 
 
            surgery, which required him to leave work February 28, 1989.  
 
            Under the discovery rule enunciated in Orr v. Lewis Central 
 
            School District, 298 N.W.2d 256, 261 (Iowa 1980), and 
 
            Robinson v. Department of Transportation, 296 N.W.2d 809, 
 
            812 (Iowa 1980), the statute of limitations would not start 
 
            to run until claimant recognized the nature, seriousness and 
 
            probable compensable character of his injury.  Thus, the 
 
            deputy established April 22, 1986 as claimant's injury date 
 
            but found that claimant could not have known of the 
 
            seriousness of the injury until late summer 1987, when 
 
            claimant began to experience the grinding pain in his knee.
 
            The deputy also found an injury date of February 28, 1989, 
 
            based on the cumulative injury rule.  The deputy concluded 
 
            that claimant suffered repetitive trauma from the daily 
 
            actions of stepping into and out of the van that aggravated 
 
            his prior knee injury.  The testimony of Jerry L. Jochims, 
 
            M.D., indicated that claimant's knee eventually "wore out."
 
            Defendants argue on appeal that claimant's injury is not 
 
            subject to the discovery rule, because claimant's condition 
 
            flows from an identifiable, traumatic event.  Defendants 
 
            argue that there should be a distinction between "latent 
 
            injuries" and "traumatic injuries with latent 
 
            manifestation."  Defendants cite LeBeau v. Dimig, 446 N.W.2d 
 
            800 (Iowa 1989).  LeBeau is a tort case, dealing with the 
 
            discovery rule in an automobile accident case.  The 
 
            plaintiff received a head injury, which appeared minor at 
 
            first but later turned out to be the cause of epilepsy.  
 
            However, the statute of limitations had expired by the time 
 
            the epileptic condition was discovered.
 
            In LeBeau, the Iowa Supreme Court used the "traumatic event 
 
            latent manifestation" analysis.  In the "latent 
 
            manifestation" case the Court reasoned, the injured party is 
 
            entit    knowledge is a question of fact for the commissioner to 
 
            decide.  It is also noted that in Robinson, it was found 
 
            that the claimant was aware of both the nature and 
 
            seriousness of his offense at the time of his heart attack 
 
            and benefits were denied.
 
            
 
                 In this case, claimant was aware of the work-related 
 
            nature of his injury, and was also aware of its seriousness 
 
            as indicated by the fact that he experienced considerable 
 
            pain and felt compelled to seek medical treatment.  
 
            Claimant's argument that the statute of limitations period 
 
            should begin to run from the summer of 1987 is rejected.  
 
            Claimant was aware of the seriousness of his April 22, 1986 
 
            injury immediately upon experiencing the injury.  Claimant's 
 
            action for the April 22, 1986 injury is barred by the 
 
            statute of limitations.
 
            
 
                 However, claimant's activity of stepping in and out of 
 
            the truck numerous times each day constituted a cumulative 
 
            injury which aggravated his knee condition.  The repetitive 
 
            trauma of stepping in and out of the truck is a separate and 
 
            distinct injury from the April 22, 1986 incident where 
 
            claimant stepped on a rock and twisted his knee.  Under 
 
            McKeever Custom Cabinets v. Smith, 379 N.W.2d 368 (Iowa 
 
            1985), the date of injury for a cumulative injury is the 
 
            date on which claimant is compelled, due to pain from the 
 
            injury, to leave work.  In this case, claimant's activity of 
 
            stepping into and out of his delivery truck was viewed by 
 
            Dr. Jochims as "wearing out" claimant's knee.  Claimant has 
 
            established a cumulative injury in the form of repetitive 
 
            trauma to his right knee, which constituted an aggravation 
 
            of his April 22, 1986 injury.  Claimant's right knee was 
 
            made more susceptible to cumulative injury by the April 22, 
 
            1986 incident.
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
            
 
                 The cumulative injury would have its own period of 
 
            limitation.  The correct date of injury under McKeever would 
 
            be the date claimant was compelled to leave work because of 
 
            the injury.  Claimant left work on February 28, 1989 to 
 
            undergo surgery on his right knee for the effects of the 
 
            cumulative aggravation of his knee condition.  February 28, 
 
            1989 is the date of injury for claimant's aggravation 
 
            injury.  Claimant filed his action on May 8, 1989.  
 
            Claimant's action is timely to the extent he seeks benefits 
 
            for the aggravation of his April 22, 1986 injury, that has 
 
            resulted from cumulative trauma following the April 22, 1986 
 
            incident.
 
            
 
                 If claimant's traumatic injury to his knee had caused 
 
            disability separate and distinct from the disability caused 
 
            by his cumulative injury caused by repeatedly stepping in 
 
            and out of the truck, an apportionment between the two 
 
            injuries would be necessary.  However, the record indicates 
 
            that the traumatic injury to the knee did not result in 
 
            disability.  Claimant was able to continue working without 
 
            interruption or formal medical restriction until the 
 
            grinding pain began in 1987, the result of months of 
 
            stepping in and out of the truck over 100 times daily.  It 
 
            is found that all of claimant's present disability is caused 
 
            by the cumulative injury.  Bearce v. FMC Corporation, 465 
 
            N.W.2d 531 (Iowa 1991).
 
            findings of fact
 
            1.  Claimant started to work for employer in May of 1967, 
 
            continued to work for employer for 23 years and was still 
 
            employed by employer at the time of the hearing on March 14, 
 
            1990.
 
            2.  Claimant stepped on a three inch rock in a parking lot 
 
            which turned his ankle and twisted his knee while delivering 
 
            bread for employer on April 22, 1986.
 
            3.  Claimant sustained an initial injury arising out of and 
 
            in the course of the employment with employer on April 22, 
 
            1986.
 
            4.  Claimant was off work for surgery from February 28, 1989 
 
            to July 10, 1989.  
 
            5.  Claimant's work following his April 22, 1986 injury 
 
            required stepping in and out of a van approximately 125 
 
            times per working day.
 
            6.  Claimant experienced a "grinding sensation" and 
 
            deterioration of his knee condition beginning in the summer 
 
            of 1987.
 
            7.  Claimant suffered a cumulative injury to his knee as a 
 
            result of stepping in and out of the van.
 
            8.  Claimant's original notice and petition was filed with 
 
            the industrial commissioner on April 20, 1989.
 
            conclusions of law
 
            Claimant sustained an injury to his right knee arising out 
 
            of and in the course of his employment on April 22, 1986.
 
            Claimant's action for benefits based on the April 22, 1986 
 
            injury is barred by Iowa Code section 85.26(1).
 
            Under the cumulative injury rule claimant sustained an 
 

 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
            injury that arose out of and in the course of employment on 
 
            February 28, 1989.
 
            Claimant's action for benefits based on the February 28, 
 
            1989 injury is not barred by Iowa Code section 85.26(1).
 
            Claimant's April 22, 1986 injury did not result in permanent 
 
            disability and an apportionment is not appropriate.
 
            Claimant is entitled to 18 weeks and 6 days of temporary 
 
            disability benefits for the period from February 28, 1989 to 
 
            July 10, 1989.
 
            Claimant is entitled to 77 weeks of permanent partial 
 
            disability benefits for a  35 percent impairment to the 
 
            right leg.
 
            Claimant is entitled to the medical expenses enumerated 
 
            above in the total amount of $7,048.72.
 
            WHEREFORE, the decision of the deputy is affirmed in part 
 
            and reversed in part.
 
            order
 
            THEREFORE, it is ordered:
 
            That defendants pay to claimant eighteen point eight five 
 
            seven (18.857) weeks of healing period benefits at the rate 
 
            of two hundred fifty-eight and 95/100 dollars ($258.95) per 
 
            week as stipulated to by the parties in the total amount of 
 
            four thousand eight hundred eighty-three and 02/100 dollars 
 
            ($4,883.02) commencing on February 28, 1989.
 
            That defendants pay to claimant seventy-seven (77) weeks of 
 
            permanent partial disability benefits at the rate of two 
 
            hundred fifty-eight and 95/100 dollars ($258.95) per week in 
 
            the total amount of nineteen thousand nine hundred 
 
            thirty-nine and 15/100 dollars ($19,939.15) commencing on 
 
            July 10, 1989.
 
            That defendants are not entitled to any credit for 
 
            nonoccupational group health plan benefits or workers' 
 
            compensation benefits paid to claimant prior to hearing.
 
            That all accrued benefits are to be paid in a lump sum.
 
            That interest will accrue pursuant to Iowa Code section 
 
            85.30.
 
            That defendants pay to claimant or the provider of medical 
 
            services seven thousand forty-eight and 72/100 dollars 
 
            ($7,048.72) in medical expenses itemized above.
 
            That defendants pay the costs of the arbitration proceeding 
 
            including the cost of the transcription of the hearing.  
 
            
 
                 That defendants file claim activity reports as 
 
            requested by this agency pursuant to rule 343 IAC 3.1.
 
            
 
                 That defendants file a first report of injury within 
 
            twenty (20) days of the signing and filing of this decision.
 
            Signed and filed this ____ day of September, 1991.
 
            
 
            
 
            
 
            
 
                      ________________________________
 
                               BYRON K. ORTON
 
                          INDUSTRIAL COMMISSIONER
 
            
 

 
            
 
            Page   6
 
            
 
            
 
            
 
            
 
            Copies To:
 
            
 
            Mr. William Bauer
 
            Attorney at Law
 
            100 Valley Street
 
            P.O. Box 517
 
            Burlington, Iowa 51601
 
            
 
            Mr. Thomas N. Kamp
 
            Attorney at Law
 
            600 Davenport Bank Bldg.
 
            Davenport, Iowa 52801
 
            
 
 
         
 
 
 
 
 
 
 
 
 
 
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         E. KENNETH JONES,
 
         
 
              Claimant,
 
         
 
         VS.
 
                                                 File No.  908648
 
         CONTINENTAL BAKING COMPANY,
 
                                               A R B I T R A T I 0 N
 
              Employer,
 
                                                  D E C I S I 0 N
 
         and
 
         
 
         AETNA CASUALTY AND SURETY,
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
                                   INTRODUCTION
 
         
 
              This is a proceeding in arbitration brought by E. Kenneth 
 
         Jones, claimant, against Continental Baking Company, employer, 
 
         and Aetna Casualty and Surety Insurance Company, insurance 
 
         carrier, defendants, for benefits as a result of an alleged 
 
         injury which occurred on March 24, 1988.  A hearing was held in 
 
         Burlington, Iowa, on March 14, 1990, and the case was fully 
 
         submitted at the close of the hearing.  Claimant was represented 
 
         by William Bauer.  Defendants were represented by Thomas N. Kamp.  
 
         The record consists of the testimony of E. Kenneth Jones, 
 
         claimant; claimant's exhibits 1 through 9 and defendants' exhibit 
 
         A.  The deputy ordered a transcript of the hearing.  Both 
 
         attorneys submitted excellent briefs.
 
         
 
                                   STIPULATIONS
 
         
 
              The parties stipulated to the following matters at the time 
 
         of the hearing:
 
         
 
              That an employer-employee relationship existed between 
 
         claimant and employer at the time of the alleged injury.
 
         
 
              That the times off work for which claimant now seeks 
 
         temporary disability benefits is from February 28, 1989 to July 
 
         10, 1989.
 
         
 
         
 
         
 
         JONES VS. CONTINENTAL BAKING CO.
 
         Page 2
 
         
 
         
 
              That the extent of entitlement to weekly compensation for 
 
         permanent disability, if defendants are liable for an injury, is 
 
         77 weeks for a 35 percent loss of use of the right leg.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              That the commencement date for permanent partial disability 
 
         benefits., in the event such benefits are awarded is, July 11, 
 
         1989.
 
         
 
              That the rate of compensation, in the event of an award, is 
 
         $227.60 per week for an injury date of April 22, 1986 and that it 
 
         is $258.95 for an injury date of March 24, 1988.
 
         
 
              That claimant's entitlement to medical benefits under Iowa 
 
         Code section 85.27 will be paid by defendants if liability is 
 
         established.
 
         
 
              That defendants make no claim for credit for benefits paid 
 
         prior to hearing either as non-occupational group health plan 
 
         benefits or as workers' compensation benefits.
 
         
 
              That there are no bifurcated claims.
 
         
 
              That claimant's itemized statement of costs attached to the 
 
         prehearing report, which total $134.90, have actually been paid 
 
         by claimant.
 
         
 
                                      ISSUES
 
         
 
              The parties submitted the following issues for determination 
 
         at the time of the hearing:
 
         
 
              Whether claimant sustained an injury on March 24, 1988, 
 
         which arose out of and in the course of employment with employer.
 
         
 
              Whether the injury was the cause of either temporary or 
 
         permanent disability.
 
         
 
              Whether claimant is entitled to temporary disability 
 
         benefits, and if so, the extent of benefits to which he is 
 
         entitled.
 
         
 
              Defendants have asserted the affirmative defense of 
 
         claimant's failure to commence a timely action pursuant to Iowa 
 
         Code section 85.26.
 
         
 
                                PRELIMINARY MATTER
 
         
 
              The prehearing report indicated that defendants were 
 
         asserting the affirmative defense of claimant's failure to give 
 
         timely notice pursuant to Iowa Code section 85.23, however, since 
 
         this was not designated as a hearing issue on the hearing
 
         
 
         
 
         
 
         JONES VS. CONTINENTAL BAKING CO.
 
         Page 3
 
         
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         assignment order, this issue will not be addressed in the 
 
         decision.  Deputies determine only issues which are raised at the 
 
         prehearing conference and designated as hearing issues on the 
 
         hearing assignment order.  Presswood v. Iowa Beef Processors, Inc
 
         ., file no. 735442 (Appeal Decision November 14, 1986) 
 
         (transcript page.7).
 
         
 
                             SUMMARY OF THE EVIDENCE
 
         
 
              Claimant, born April 27, 1941, was 48 years old at the time 
 
         of the hearing.  He started to work for employer in May of 1967.  
 
         He has worked for employer for 23 years and he continued to work 
 
         for employer at the time of the hearing.  Claimant drove a bread 
 
         truck all of this time delivering bread to different stores in 
 
         the Keokuk, Fort Madison and Carthage area.  Claimant estimated 
 
         that he would get in and out of the truck approximately 125 to 
 
         150 times a day.
 
         
 
              At the time of hearing, claimant testified that he was 5 
 
         foot 11 inches tall and weighed 305 pounds.  He estimated that he 
 
         weighed 285 pounds in 1986 and also in 1988.  He attributed the 
 
         weight gain to when he quit smoking. His job included lifting 
 
         trays of bread which weighed approximately 10 or 12 pounds onto a 
 
         rack, pushing the rack into the store and unloading the rack onto 
 
         the shelves.  He usually put 10 or 12 trays on a rack (tr. pp. 
 
         12-15; exhibit A, pp. 1-10).
 
         
 
              On Tuesday, April 22, 1986, claimant stepped out of the 
 
         truck in a parking lot onto a three inch piece of road rock, 
 
         twisted his right knee and foot and fell to the ground.  He felt 
 
         a tearing sensation in his right knee and felt immediate pain 
 
         (tr. pp. 15, 16, 29-32; ex. A, pp. 10-13).  This was his last 
 
         stop, and a recall just to check the shelves, so he was able to 
 
         drive home after the fall without checking the store.  He 
 
         reported the injury to his supervisor and an accident report was 
 
         completed on that same day.  Claimant denied any knee problems 
 
         prior to this incident (tr. pp. 16 & 31; ex. A, pp. 13-15).
 
         
 
              Wednesday, April 23, 1986, was his day off, but his knee was 
 
         hurting more on Wednesday than it was on Tuesday.  It was swollen 
 
         and painful and it hurt to walk on it (tr. pp. 17 & 31).  
 
         Claimant worked on Thursday and Friday, April 24 and 25, 1986.  
 
         The right knee was getting worse and claimant chose to see Jerry 
 
         L. Jochims, M.D., an orthopedic surgeon, on Friday, April 25, 
 
         1986. Dr. Jochims examined claimant, took x-rays and gave him a 
 
         cortisone shot.  The doctor did not place any restrictions on his 
 
         physical activities.  Saturday, April 26, 1986 and Sunday, April 
 
         27, 1986, were non-working days.  On Monday, April 28 and 
 
         Tuesday, April 29, 1986, the company sent a driver to drive the 
 
         route and claimant went with him and showed him what to do.  
 
         Claimant was paid for these two days by employer.  Claimant did 
 
         not lose any
 
         
 
         
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         JONES VS. CONTINENTAL BAKING CO.
 
         Page 4
 
         
 
         
 
         time from work on account of the fall (tr. pp. 17-21, 32 & 33; 
 
         ex. A, pp. 15-17). Employer consented to  Dr. Jochims and paid 
 
         the bill.
 
         
 
              Claimant continued to have persistent pain for the remainder 
 
         of 1986 off and on, but did not return to see Dr. Jochims.  
 
         Claimant testified that climbing steps and getting in and out of 
 
         the van repeatedly everyday caused the persistent pain.  This 
 
         problem continued in 1987, but claimant did not go and see a 
 
         doctor.  It seemed to get gradually worse (tr. pp. 20-22, 32-35; 
 
         ex. A, pp. 20-22).  Claimant denied any other injuries of any 
 
         kind other than the slip and fall on April 22, 1986 (ex. A, p. 
 
         23; tr. p. 24).
 
         
 
              A lump formed on his knee in 1987 or 1988 and claimant 
 
         returned to see Dr. Jochims on March 24, 1988.  His best 
 
         recollection seemed to be that the lump was noticeable in 1988 
 
         (tr. pp. 23 & 24; 34-36; ex. A, pp. 22-24).  Dr. Jochims 
 
         mentioned arthritis and recommended surgery.  Claimant was 
 
         recuperating from hernia surgery at that time and declined 
 
         surgery on his knee.  Instead he performed exercises, took 
 
         anti-inflammatory drugs and had a wedge installed in his shoe 
 
         (tr. pp. 24, 25; ex. A, pp. 24 & 25).  Claimant did not have 
 
         surgery until March 1, 1989 (tr. p. 27; ex. A, p. 25).  Claimant 
 
         received physical therapy and was returned to work on July 10, 
 
         1989 (tr. p. 28), but he still has the lump and arthritic 
 
         condition in his right knee (ex. A, pp. 26 & 27). Dr. Jochims 
 
         indicated a total knee replacement might be necessary in the 
 
         future (tr. p. 27).
 
         
 
              Claimant said none of his bills have been paid.  Health 
 
         insurance would not pay because they contended it was a workers' 
 
         compensation claim.  Workers' compensation would not pay because 
 
         they contended that the statute of limitations had run (ex. A, 
 
         pp. 27-29).  Claimant returned to work after the surgery and is 
 
         working in the same capacity on the same route that he has worked 
 
         for several years (tr. pp. 26 & 27).  Claimant testified that 
 
         this injury and the resulting surgery has either eliminated or 
 
         severely restricted his hunting and fishing activities (tr. pp. 
 
         37-41).  His right knee is very sore (tr. p. 27) and it hurts 
 
         constantly (ex. A, p. 34).
 
         
 
              Claimant further clarified that in the late summer of 1987, 
 
         he could feel a grinding sensation in his knee.  He said it was 
 
         very painful everyday climbing in and out of the truck (tr. p. 
 
         27).  Claimant testified that he based the.calculation of getting 
 
         in and out of the step-van 125 times a day upon the fact that he 
 
         had 36 stops and that he gets in and out of the step-van at least 
 
         twice at each stop (tr. p. 43).
 
         
 
              Dr. Jochims noted on April 25, 1986 that claimant may have a 
 
         small bursitis between the superficial and deep layers of the
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
         
 
         
 
         JONES VS. CONTINENTAL BAKING CO.
 
         Page 5
 
         
 
         
 
         medial collateral ligament and gave him a cortisone injection.  
 
         There was no popping or cracking or locking in the knee.  
 
         Physical examination demonstrated normal knee ligaments.  
 
         Patellar compression tests were negative.  There was no evidence 
 
         of quad athophy.  There was no deformity.  There was a full range 
 
         of motion.  Dr. Jochims concluded, "He was advised to follow with 
 
         this office on a prn basis.  I do not believe that he'll have any 
 
         significant time off work or any long term permanent impairment 
 
         because of this injury." (ex. 6, p. 1).
 
         
 
              Dr. Jochims entry, when claimant returned to see him again, 
 
         on March 24, 1988 noted that claimant had developed the formation 
 
         of a lump on the medial aspect of the right knee which is 
 
         bothersome and painful to him.  On this occasion the doctor said 
 
         the physical examination demonstrated moderate genuvarum on the 
 
         right knee with probable medial osteophyte formation.  The x-ray 
 
         of his knee demonstrated almost total obliteration of the medial 
 
         joint space with widening laterally consistent with moderate 
 
         genuvarum.  Dr. Jochims recommended a valgus wedge osteotomy, but 
 
         claimant declined because he was recuperating from a hernia 
 
         operation a week and a half earlier on March 14, 1988.  Instead 
 
         Dr. Jochims prescribed valgus shoe wedges, prescribed anti- 
 
         inflammatory medications and strengthening exercises.  On  March 
 
         15, 1989, Dr. Jochims reviewed the situation on April 25, 1986 
 
         and March 24, 1988 and concluded by hindsight that claimant had 
 
         sustained a tear of the medial meniscus or a subchondral fracture 
 
         which was not obvious on the one time visit in April of 1986.  
 
         Dr. Jochims then concluded:
 
         
 
              Thereafter, probably as well aggravated by his weight,
 
              but certainly within all reasonable medical probability
 
              deteriorated to the extent that he literally 'wore out'
 
              the medial aspect of his knee which has resulted in the
 
              current problem.  I find no problem what-so-ever in the
 
              causal relationship between his original injury
 
              reported of April 22nd, 1986, and the subsequent
 
              surgery which has been necessitated at this time.
 
         
 
         (ex. 8, p. 2)
 
         
 
              Dr. Jochims wrote to claimant's counsel again on November 
 
         30, 1989.  In this letter Dr. Jochims stated:
 
         
 
              Obviously I believe that we are looking at a sequence
 
              of events and that he probably had a meniscal tear in
 
              his injury of 1986.  Because of his failure to have
 
              this treated at that time and, also because he
 
              continued to work regularly on his knee there was
 

 
         
 
 
 
 
 
 
 
 
 
 
 
              accumulative effect of recurring and constant re-
 
              aggravations which brought his knee from a moderately
 
              severe and very significant injury of 1986 to the
 
         
 
         
 
         
 
         JONES VS. CONTINENTAL BAKING CO.
 
         Page 6
 
         
 
         
 
              status of a rather severe degenerative arthritis of the
 
              medial compartment requiring a valgus wedge tibial
 
              osteotomy in January of 1989.
 
         
 
              It should also be noted that continued and constant use
 
              of his right knee will probably also bring him to the
 
              point of requiring a total knee arthroplasty in his
 
              knee at a predictable future time and in all likelihood
 
              [sic] of time which would occur prior to his normal
 
              retirement date of presumed age 65.
 
         
 
         (ex. 9)
 
         
 
              Dr. Jochims assessed the following permanent functional 
 
         impairment rating:
 
         
 
              Based on the Manual for Orthopaedic Surgeons in
 
              Evaluating Permanent Physical Impairment, which is the
 
              only manual I have referencing a total knee
 
              arthroplasty.  It is my opinion that at present based
 
              on the presence of severe degenerative arthritis with
 
              corrective proximal valgus wedge tibial osteotomy as a
 
              reconstruction, Mr. Jones is presently 35% permanently
 
              and partially disabled to the involved lower extremity.
 
         
 
         (ex. 9, p. 1).
 
         
 
              Claimant presented the following medical bills for payment:
 
         
 
                                   MEDICAL BILLS
 
         
 
         
 
         Exhibit  1  K.L. Wilcox, M.D.          Anesthesiology     $  
 
         455.00
 
         Exhibit  2  Orthopaedic
 
                     Reconstruction Surgery
 
                     Associates                 Dr. Jochims         
 
         2,013.49
 
         Exhibit  3  Burlington Medical Ctr     Hospital Charges      
 
         179.70
 
         Exhibit  4  Burlington Medical Ctr     Hospital Charges    
 
         4,028.53
 
         Exhibit  5  Hawkeye Rehabilitation
 
                     and Physical Therapy
 
                     Clinic                     Physical Therapy      
 
         372.00
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
                                             TOTAL                 $7,048.
 
         72
 
         
 
                           APPLICABLE LAW AND ANALYSIS
 
         
 
              An employee is entitled to compensation for any and all 
 
         personal injuries which arise out of and in the course of the 
 
         employment.  Section 85.3(l).
 
         
 
              Claimant has the burden of proving  by a preponderance of 
 
         the evidence that he received an injury which arose out of and in 
 
         the
 
         
 
         JONES VS. CONTINENTAL BAKING CO.
 
         Page 7
 
         
 
         
 
         course of his employment.  McDowell v. Town of Clarksville, 241 
 
         N.W.2d 904 (Iowa 1976); Musselman v. Central Telephone Co., 261 
 
         Iowa 352, 154 N.W.2d 128 (1967).
 
         
 
              The injury must both arise out of and be in the course of 
 
         the employment.  Crowe v. DeSoto Consol. Sch. Dist., 246 Iowa 
 
         402, 68 N.W.2d 63 (1955) and cases cited at pp. 405-406 of the 
 
         Iowa Report.  See also Sister Mary Benedict v. St. Mary's Corp., 
 
         255 Iowa 847, 124 N.W.2d 548 (1963) and Hansen v. State of Iowa, 
 
         249 Iowa 1147, 91 N.W.2d 555 (1958).
 
         
 
              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, 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).
 
         
 
              The right of a worker to receive compensation for injuries 
 
         sustained which arose out of and in the course of employment is 
 
         statutory.  The statute conferring this right can also fix the 
 
         amount of compensation to be paid for different specific 
 
         injuries, and the employee is not entitled to compensation except 
 
         as provided by the statute.  Soukup v. Shores Co., 222 Iowa 272, 
 
         268 N.W. 598 (1936).
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              Claimant did sustain the burden of proof by a preponderance 
 
         of the evidence that he sustained an initial injury on April 22, 
 
         1986, when he stepped on a three inch rock, in a parking lot 
 
         which turned his foot and twisted his knee and he fell to the 
 
         ground.  Claimant clearly described the events which caused his 
 
         injury.  He reported the injury.  An accident report was  
 
         completed.  He chose to see Dr. Jochims which the employer agreed 
 
         to and also paid the bill.  Claimant's testimony is supported by 
 
         Dr. Jochims office report.  Claimant's testimony and Dr..Jochims 
 
         reports are
 
         
 
         
 
         
 
         JONES VS. CONTINENTAL BAKING CO.
 
         Page 8
 
         
 
         
 
         not rebutted, controverted, contradicted or refuted by any other 
 
         evidence. Defendants called no witnesses and introduced no 
 
         competing medical testimony.
 
         
 
              Dr. Jochims erroneously believed that this was a small 
 
         bursitis between the superficial and deep layers of the medial 
 
         collateral ligament when he saw claimant on April 25, 1986.  On 
 
         March 24, 1988, his physical examination demonstrated moderate 
 
         genuvarum of the right knee with probable medial osteophyte 
 
         formation.  X-rays demonstrated almost total obliteration of the 
 
         medial joint space.  A valgus wedge osteotomy was recommended.  
 
         Later, on March 17, 1989, Dr. Jochims realized that claimant had 
 
         sustained a tear of the medial meniscus or a subchondral fracture 
 
         which was not obvious in April of 1986.  In the meantime, " ... 
 
         his injury progressed and deteriorated to the extent that he 
 
         literally 'wore out' the medial aspect of his knee which has 
 
         resulted in the current problem."
 
         
 
              Back on August 25, 1986, Dr. Jochims led claimant to believe 
 
         that he would not need any significant time off work and that he 
 
         would not have any long-term permanent impairment.  Claimant 
 
         apparently relied on Dr. Jochims' diagnosis and treatment and did 
 
         not lose any time from work.  A driver assisted claimant for two 
 
         days, but claimant was present and was paid for these two days 
 
         when he directed the substitute driver around his route. Although 
 
         claimant possibly could justify two days off work, claimant, 
 
         nevertheless, did not lose any time from work.
 
         
 
              Claimant.proceeded to work as if he did not have a serious 
 
         injury.  After the cortisone injection in April of 1986, he only 
 
         experienced some pain or difficulty off and on through the 
 
         balance of 1986 and the early part of 1987.  In late summer of 
 
         1987, he could feel a grinding sensation in his right knee.  It 
 
         was painful every day climbing in and out of the truck (tr. p. 
 
         27). Eventually a lump formed on the medial aspect of his knee 
 
         sometime in 1987 or 1988.  His best recollection was  that  it 
 
         probably occurred in 1988  (tr. p. 23; ex. A, p. 22).  When 
 
         claimant could no longer stand the pain, he went back to Dr. 
 
         Jochims on March 24, 1988, and found out that he needed a valgus 
 
         wedge tibial osteotomy.  He declined this surgery at that time 
 
         because he was recovering from a hernia surgery a week and a half 
 
         earlier.  In addition he admitted he had an aversion to hospitals 
 
         and this surgery on his knee.  He first preferred,the 
 
         conservative measures of medications, exercises and the shoe 
 
         wedge.  Claimant eventually consented to the knee surgery on 
 
         March 1, 1989.  The parties agreed that he was off work for 18 
 
         weeks and 6 days from February 28, 1989 to July  10,  1989.  The 
 
         parties agreed that claimant was entitled to 77 weeks of 
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         permanent partial disability benefits for a 35 percent permanent 
 
         functional impairment to the right leg.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
         
 
         
 
         JONES VS. CONTINENTAL BAKING CO.
 
         Page 9
 
         
 
         
 
              Defendants assert the affirmative defense of the statute of 
 
         limitations and assert that claimant failed to commence an action 
 
         within two years of the injury as required by Iowa Code section 
 
         85.26(i).  Defendants aver that the injury occurred on April 22, 
 
         1986.  Claimant's petition was dated April 13, 1989.  It was 
 
         served on defendants on April 21, 1989.  It was not received and 
 
         filed in the industrial commissioner's office until May 8, 1989.  
 
         Thus, claimant's petition was not timely filed and the action was 
 
         not timely commenced within two years as required by Iowa Code 
 
         section 85.26(l).
 
         
 
              The discovery rule has been held to be applicable to the two 
 
         year statute of limitations in workers' compensation cases.  Orr 
 
         vs. Lewis Central School District, 298 N.W.2d 256, 261 (Iowa 
 
         1980).  The court held that the two year period in which to file 
 
         a claim does not start running until the worker should know his 
 
         injury is "both serious and work connected."  Id. at 257; 
 
         Robinson vs. Department of Transportation, 296 N.W.2d 809, 812 
 
         (Iowa 1980).  Dr. Jochims told claimant he should lose no time 
 
         from work and that he did not have a permanent impairment.  
 
         Claimant apparently tried to fulfill that prophecy.  The same 
 
         rule applies to the notice limit under Iowa Code section 85.23. 
 
         Jacques vs. Farmers Lumber & Supply Co., 242 Iowa 548, 47 N.W.2d 
 
         236 (1951).
 
         
 
              This rule has saved many legitimate claims where the 
 
              employee, acting with typical American stoicism,
 
              injures a shoulder or back and continues to work,
 
              reasonably believing the injury is minor and will go
 
              away.  When the worker finds out many months later the
 
              "minor" injury has become disabling and is actually a
 
              torn rotator cuff or disc, the notice provision should
 
              not, and does not, bar an otherwise legitimate claim
 
              for benefits so long as the worker reasonably failed to
 
              recognize the seriousness of the injury.
 
         
 
         (Lawyer and Higgs, Iowa Workers' Compensation--Law & Practice, 
 
         section 10-9 Seriousness of injury unrecognized, p. 79)
 
         
 
              Based on the evidence in this record, the first indication 
 
         to claimant that his injury was more serious than predicted by 
 
         Dr. Jochims was when he felt the grinding sensation in the knee 
 
         in late summer of 1987.  Claimant added that it was painful every 
 
         day climbing in and out of the truck.  Therefore, it is 
 
         determined that the date of injury from the discovery rule point 
 
         of view is late summer of 1987.  The period of limitations would 
 
         expire in late summer of 1989.  Claimant commenced this action by 
 
         filing his petition in the industrial commissioner's office on 
 
         May 8, 1989.  Therefore, claimant's action was timely filed based 
 
         upon the discovery rule.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
         
 
         
 
         JONES VS. CONTINENTAL BAKING CO.
 
         Page 10
 
         
 
         
 
              Defendants cite the case of LeBeau vs. Dimiq , 446 N.W.2d 
 
         800 (Iowa, October 18, 1989).  LeBeau is an automobile tort case.  
 
         The court balanced the interest of claimants employing the 
 
         discovery rule against the interest of defendants who need a 
 
         definite time to know when their liability for an injury will be 
 
         terminated.  In LeBeau, plaintiff received relatively minor 
 
         injuries at the time of an automobile accident to her head and 
 
         neck which were later determined to be the cause of epilepsy 
 
         after the two year period of limitations under Iowa Code section 
 
         614.1(2)(1987) had expired.  The Supreme Court denied LeBeau the 
 
         benefits of the discovery rule and opted to protect defendants 
 
         with the certainty of a reliable statute of limitations.  As 
 
         pointed out, LeBeau was a common law tort action arising out of 
 
         an automobile accident.  It is now determined that the LeBeau 
 
         decision does not apply to workers' compensation law.  It is a 
 
         well known fact that the statutes of limitations applied to 
 
         workers' compensation cases are manifestly different and more 
 
         liberal than the statute of limitations applied to tort cases 
 
         generally.  One example is that workers' compensation provides an 
 
         unlimited time period for medical expenses.  Another example is 
 
         that the workers' compensation law provides for a 
 
         review-reopening after a case is (finally) decided.  Another 
 
         example is that a review-reopening can be commenced within three 
 
         years of the last payment of compensation rather than two years.  
 
         Another example is that the workers' compensation law provides 
 
         both the discovery rule and the cumulative injury rule so that 
 
         the beneficent purposes of the workers' compensation law can be 
 
         carried out.  Orr, 298 N.W.2d 256, 261 (Iowa, November 12, 1980); 
 
         McKeever Custom Cabinets vs. Smith, 379 N.W.2d 368, 372, 273.
 
         
 
              The LeBeau decision did not discuss workers' compensation or 
 
         take into consideration their previous workers' compensation 
 
         holdings in Orr, Robinson, and Jacques.  Furthermore, even though 
 
         McKeever Custom Cabinets vs. Smith, 397 N.W.2d, 368 (Iowa, 
 
         December 18, 1985) was decided on cumulative injury  principles, 
 
         the Supreme Court nevertheless, affirmed that the discovery rule 
 
         may apply where a compensable injury occurs at one time, but the 
 
         employee acting a reasonable person does not recognize its 
 
         "nature, seriousness and probable compensable character until 
 
         later."  LeBeau did not cite McKeever or overrule these comments 
 
         made in the McKeever case, which is a workers' compensation case.
 
         
 
              The court further held in Orr:
 
         
 
                (1)  We must apply the workers' compensation statute
 
              broadly and liberally in furtherance of its
 
              humanitarian objective.  See Halstead v. Johnson's
 
              Texaco, 264 N.W.2d 757, 759 (Iowa 1978).  Courts do not
 

 
         
 
 
 
 
 
 
 
 
 
 
 
              favor statutes of limitations.  When two
 
              interpretations of a limitations statute are possible,
 
              the one giving the longer period to a litigant seeking
 
         
 
         
 
         
 
         JONES VS. CONTINENTAL BAKING CO.
 
         Page 11
 
         
 
         
 
              relief is to be preferred and applied.  Sprung v.
 
              Rasmussen, 180 N.W.2d 430, 433 (Iowa 1970).
 
         
 
              Defendants cite Lewis v. Dee Zee Mfg, file number 797154, 
 
         (arbitration decision filed December 11, 1989), but this case is 
 
         distinguishable from Lewis.  In Lewis, claimant received an 
 
         initial knee injury which weakened his knee and later suffered 
 
         two episodes which were sequelae and recurrences of the initial 
 
         injury.  In this case, claimant initially injured his knee on 
 
         April 22, 1986, but did not discover it was a serious injury 
 
         until late summer of 1987 when he felt a grinding sensation 
 
         climbing in and out of his step-van while delivery bread.  
 
         Claimant in this case did not suffer separate indentifiable 
 
         subsequent injuries.  Defendants also cite Koopmans vs. 
 
         Electric Light and Power Company, file number 694831 (filed 
 
         December 30, 1987).  This case is distinguishable from 
 
         Koopmans because the decision in this case is not based upon 
 
         claimant's error of law or lack of knowledge of the two year 
 
         statute of limitations of the law.
 
         
 
              Superimposed upon the discovery rule in this case is the 
 
         cumulative injury rule acknowledged by the supreme court in 
 
         McKeever Custom Cabinets, 379 N.W.2d 368 (Iowa, December 18, 
 
         1985). In McKeever, claimant suffered two earlier injuries in 
 
         1978 and 1979 and repeated minor traumas to the wrist caused by 
 
         hammering and operating vibrating power tools were determined to 
 
         have caused a cumulative injury.  The injury date was determined 
 
         to be when claimant, because of pain or physical inability, was 
 
         no longer able to work.  In this case, claimant suffered an 
 
         initial injury by twisting his knee on April 22, 1986.  
 
         Subsequent to that time he sustained repeated traumas an 
 
         estimated 125 to 150 times each working day when he entered and 
 
         exited his step-van in making bread deliveries.  Claimant 
 
         testified he had 36 stops.  He went into and out of the van at 
 
         least twice on every stop and on a number of occasions stepped 
 
         into the van and stepped out of the van on his injured knee more 
 
         than two times.  Like Smith, Jones in this case, after an initial 
 
         injury, sustained minor repeated traumas to his right knee an 
 
         estimated 125 to 150 times per working day.  Claimant works long 
 
         days.  He testified that he worked 12 to 14 hours per day (tr. p. 
 
         37).  He apparently worked four days a week because Wednesday was 
 
         his day off and he did not work the Saturday and Sunday after the 
 
         initial injury on April 22, 1986.  Jones, in this case, like 
 
         Smith in his case, was supported by the doctor's testimony.  Dr. 
 
         Jochims stated:
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              Obviously I believe that we are looking at a sequence
 
              of events and that he probably had a meniscal tear in
 
              his injury of 1986.  Because of his failure to have
 
              this treated at that time and, also because he
 
              continued to work regularly on his knee there was
 
         
 
         
 
         
 
         JONES VS. CONTINENTAL BAKING CO.
 
         Page 12
 
         
 
         
 
              accumulative effect of recurring and constant re-
 
              aggravations which brought his knee from a moderately
 
              severe and very significant injury of 1986 to the
 
              status of a rather severe degenerative arthritis of the
 
              medial compartment requiring a valgus wedge tibial
 
              osteotomy in January of 1989.
 
         
 
         (ex. 9, p. 1)
 
         
 
              Therefore, it is determined that claimant is entitled to the 
 
         cumulative injury rule and it is determined that the injury date 
 
         in this case is February 28, 1989, when claimant was forced to 
 
         leave work because of his pain and physical inability to have the 
 
         valgus wedge tibial osteotomy.
 
         
 
              Defendants cite Fowler vs. Sears Roebuck and Co., an 
 
         unpublished court of appeals decision and Baker vs. Armour-Dial 
 
         Co., filed May 20, 1988.  These cases are distinguishable from 
 
         the instant case because in each of them claimant had a 
 
         preexisting and long-standing back condition which recurred a 
 
         number of times.  In this case, claimant simply injured himself 
 
         once on April 22, 1986.  He did not have any other subsequent 
 
         separate identifiable injuries or treatment for injuries.  Rather 
 
         he sustained minor traumas of which he was unaware from entering 
 
         and exiting the step-van and compounding the initial injury on 
 
         April 22, 1986.
 
         
 
                                 FINDINGS OF FACT
 
         
 
              Wherefore, based upon the evidence presented, the following 
 
         findings of fact are made:
 
         
 
              That claimant started to work for employer in May of 1967, 
 
         continued to work for employer for 23 years and was still 
 
         employed by employer at the time of the hearing on March 14, 
 
         1990.
 
         
 
              That claimant stepped on a three inch rock in a parking lot 
 
         which turned his ankle and twisted his knee while delivering 
 
         bread for employer on April 22, 1986.
 
         
 
              That claimant sustained an initial injury arising out of and 
 
         in the course of the employment with employer on April 22, 1986.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              That this injury was the cause of.claimant to be off work 
 
         for surgery from February 28, 1989 to July 10, 1989.
 
         
 
              That this injury was the cause of the 35 percent permanent 
 
         impairment to claimant's right knee assessed by Dr. Jochims.
 
         
 
         
 
         
 
         JONES VS. CONTINENTAL BAKING CO.
 
         Page 13
 
         
 
         
 
              That claimant did not know nor could he reasonably have 
 
         known of the seriousness of his injury until it began grinding in 
 
         late summer of 1987 when he stepped into and out of the step-van 
 
         delivering bread.
 
         
 
              That claimant sustained several minor traumas approximately 
 
         125 to 150 times per working day when he stepped into and out of 
 
         the step-van making bread deliveries after April 22, 1986 until 
 
         he was forced to leave work due to the pain and physical 
 
         disability on February 28, 1989.
 
         
 
              That claimant's original notice and petition was filed with 
 
         the industrial commissioner on May 8, 1989.
 
         
 
              That the parties stipulated that claimant's time off work 
 
         for temporary disability was from February 28, 1989 to July 10, 
 
         1989.
 
         
 
              That the parties stipulated that claimant sustained a 35 
 
         percent permanent impairment to the right leg.
 
         
 
              That claimant sustained $7,048.72 in medical expenses.
 
         
 
                                CONCLUSIONS OF LAW
 
         
 
              Wherefore, based on the evidence presented and the foregoing 
 
         principles of law, the following conclusions of law are made:
 
         
 
              That under the discovery rule claimant sustained an injury 
 
         which arose out of and in the course of employment in late summer 
 
         of 1987.
 
         
 
              That under the cumulative injury rule claimant sustained an 
 
         injury that arose out of and in the course of employment on 
 
         February 28, 1989.
 
         
 
              That when two interpretations of the limitations statute are 
 
         possible the one giving the longer period to the litigant seeking 
 
         relief is to be preferred and applied which is the injury date of 
 
         February 28, 1989.
 
         
 
              That the injury was the cause of both temporary and 
 
         permanent disability.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              That claimant is entitled to 18 weeks and 6 days of 
 
         temporary disability benefits for the period from February 28, 
 
         1989 to July 10, 1989.
 
         
 
              That claimant is entitled to 77 weeks of permanent partial 
 
         disability benefits for a 35 percent impairment to the right leg.
 
         
 
         
 
         
 
         JONES VS. CONTINENTAL BAKING CO.
 
         Page 14
 
         
 
         
 
              That claimant is entitled to the medical expenses enumerated 
 
         above in the total amount of $7,048.72.
 
         
 
                                      ORDER
 
         
 
              THEREFORE, IT IS ORDERED:
 
         
 
              That defendants pay to claimant eighteen point eight five 
 
         seven (18.857) weeks of healing period benefits at the rate of 
 
         two hundred fifty-eight and 95/100 dollars ($258.95) per week as 
 
         stipulated to by the parties in the total amount of four thousand 
 
         eight hundred eighty-three and 02/100 dollars ($4,883.02) 
 
         commencing on February 28, 1989.
 
         
 
              That defendants pay to claimant seventy-seven (77)-weeks of 
 
         permanent partial disability benefits at the rate of two hundred 
 
         fifty-eight and 95/100 dollars ($258.95) per week in the total 
 
         amount of nineteen thousand nine hundred thirty-nine and 15/100 
 
         dollars ($19,939.15) commencing on July 10, 1989.
 
         
 
              That defendants are not entitled to any credit for 
 
         non-occupational group health plan benefits or workers' 
 
         compensation benefits paid to claimant prior to hearing.
 
         
 
              That all accrued benefits are to be paid in a lump sum.
 
         
 
              That interest will accrue pursuant to Iowa Code section 
 
         85.30.
 
         
 
              That defendants pay to claimant or the provider of medical 
 
         services seven thousand forty-eight and 72/100 dollars 
 
         ($7,048.72) in medical expenses itemized above.
 
         
 
              That the costs of this action, including the cost of the 
 
         transcript, are charged to defendants pursuant to Division of 
 
         Industrial Services Rule 343-4.33, and more specifically, 
 
         claimant is entitled to one hundred thirty-four and 90/100 
 
         dollars ($134.90) in costs as itemized on paragraph 12d of the 
 
         prehearing report for (1) industrial commissioner filing fee 
 
         sixty-five dollars ($65); (2) sheriff of Scott County to serve 
 
         original notice and petition thirty dollars ($30); (3) M.J.W. 
 
         Court Reporting for the deposition of claimant in the amount of 
 
         thirty-nine and 90/100 dollars ($39.90).
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              That defendants file claim activity reports as requested by 
 
         this agency pursuant to Division of Industrial Services Rule 
 
         343-3.1.
 
         
 
              That defendants file a first report of injury within ten 
 
         (10) days of the signing and filing of this decision.
 
         
 
         
 
         
 
         JONES VS. CONTINENTAL BAKING CO.
 
         Page 15
 
         
 
         
 
              Signed and filed this 24th day of April, 1990.
 
         
 
         
 
         
 
         
 
         
 
         
 
         
 
                                       WALTER R. McMANUS, JR.
 
                                       DEPUTY INDUSTRIAL COMMISSIONER
 
         
 
         copies to:
 
         
 
         Mr. William Bauer
 
         Attorney at Law
 
         100 Valley Street
 
         PO Box 517
 
         Burlington, Iowa  52601
 
         
 
         Mr. Thomas N. Kamp
 
         Attorney at Law
 
         600 Davenport Bank Bldg
 
         Davenport, Iowa  52801
 
         
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
 
         
 
 
 
 
 
 
 
 
 
 
 
                                         1107, 1108.10; 1401; 1402.20;
 
                                         1402.30; 1402.40; 1402,50;1402.60
 
                                         1403.30; 2209; 51802; 51803; 
 
         2401;
 
                                         2402; 52907
 
                                         Filed April 24, 1990
 
                                         Walter R. McManus, Jr.
 
         
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         E. KENNETH JONES,
 
         
 
              Claimant,
 
         
 
         VS.
 
         
 
                                                 File No.  908648
 
         CONTINENTAL BAKING COMPANY,
 
         
 
                                                 A R B I T R A T I 0 N
 
              Employer,
 
         
 
                                                 D E C I S I 0 N
 
         and
 
         
 
         AETNA CASUALTY AND SURETY,
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
         1107; 1108.10; 1401; 1402.20; 1402.30; 1402.40; 1402.50; 1402.60;
 
         1403.30; 2209
 
         
 
              Claimant proved an injury arising out of and in the course 
 
         of employment when he stepped from his bread delivery van onto a 
 
         road rock, turned his foot and twisted his knee.  Defendants 
 
         introduced no opposing evidence.  The injury was found to be the 
 
         cause of temporary and permanent disability.
 
         
 
         51802
 
         
 
              Parties stipulated to time off work for surgery and claimant 
 
         awarded healing period benefits for that period.
 
         
 
         51803
 
         
 
              Parties agreed on 77 weeks of permanent partial disability 
 
         to the right leg based on a 35 percent permanent functional 
 
         impairment rating and claimant was awarded 77 weeks of permanent 
 
         partial disability benefits.
 
         
 
         2401; 2402
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
              Claimant was entitled to the discovery rule based on 
 
         Jacques, Orr,  Robinson, and McKeever.  It was determined that 
 
         the recent Iowa Supreme  Court Case of LeBeau v. Dimiq which 
 
         balanced
 
         
 
         
 
         
 
         JONES VS. CONTINENTAL BAKING CO.
 
         Page 2
 
         
 
         
 
         the interests between claimants receiving the discovery rule and 
 
         defendants having the certainty of the statute of limitation in 
 
         favor of defendants in an automobile tort case has no application 
 
         to workers' compensation law.  Several other defendants cases 
 
         were distinguished.
 
         
 
         2209
 
         
 
              Claimant also found to be analogous to Smith in the 
 
         McKeever case and was entitled to the cumulative injury rule.  
 
         Like Smith, Jones had an initial injury, then followed several 
 
         minor unidentifiable traumas to his right knee from stepping into 
 
         and out of his bread delivery step-van 125 to 150 times a working 
 
         day.  Again, other defendant's cases were distinguished.
 
         
 
         2401; 2402
 
         
 
              Claimant given the longer period of limitations which was 
 
         the cumulative injury rule citing Orr.
 
         
 
         5201; 52700
 
         
 
              Claimant awarded medical benefits.
 
         
 
         52907
 
         
 
              Claimant awarded itemized statement of costs.
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
 
            
 
            Page   1
 
            
 
            
 
            
 
            
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            PAUL JOHN FILIPPELLI,         :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :       File No. 908671
 
            McDONALD'S HAMBURGERS,        :
 
                                          :    A R B I T R A T I O N
 
                 Employer,                :
 
                                          :       D E C I S I O N
 
            and                           :
 
                                          :
 
            AMERICAN MOTORISTS INSURANCE, :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
            
 
                              Statement of the case
 
            
 
                 This is a proceeding in arbitration brought by John 
 
            Paul Filippelli, claimant, against McDonald's Hamburgers, 
 
            employer (hereinafter referred to as McDonald's), and 
 
            American Motorists Insurance, insurance carrier, defendants, 
 
            for workers' compensation benefits as a result of an alleged 
 
            injury on February 19, 1989.  On March 21, 1990, a hearing 
 
            was held on claimant's petition and the matter was consid
 
            ered fully submitted at the close of this hearing.
 
            
 
                 The parties have submitted a prehearing report of con
 
            tested issues and stipulations which was approved and 
 
            accepted as a part of the record of this case at the time of 
 
            hearing.  The testimony and written exhibits received during 
 
            the hearing are set forth in the hearing transcript.
 
            
 
                 According to the prehearing report, the parties have 
 
            stipulated that an employee-employer relationship existed 
 
            between claimant and McDonald's at the time of the alleged 
 
            injury.
 
            
 
                                      issues
 
            
 
                 The parties submitted the following issues for determi
 
            nation in this proceeding:
 
            
 
                   I.  Whether claimant received an injury arising out 
 
            of and in the course of his employment;
 
            
 
                  II.  The extent of claimant's entitlement to disabil
 
            ity benefits; and,
 
            
 
                 III.  The extent of claimant's entitlement to medical 
 
            benefits.
 
            
 
                                 findings of fact
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            
 
                 Having heard the testimony and considered all the evi
 
            dence, the deputy industrial commissioner finds as follows:
 
            
 
                 Claimant, age 19, worked for McDonald's a few weeks 
 
            prior to the alleged injury.  Claimant testified that he 
 
            injured his low back on February 19, 1989, while manhandling 
 
            a heavy ice cream shake machine while cleaning on the night 
 
            shift.  There were no witnesses to the incident.  Claimant 
 
            testified that he felt immediate pain after the incident and 
 
            that he knew at the time that he had suffered an injury.  He 
 
            stated that he initially felt that the injury was only a 
 
            muscle pull that would subside over time.  However, the pain 
 
            grew worse and he began receiving medical treatment on March 
 
            13, 1989.
 
            
 
                 It could not be found that claimant suffered the injury 
 
            as asserted.  There is no question that claimant had a 
 
            severe back problem due to a herniated disc in his low back 
 
            which required corrective surgery.  As a result, claimant 
 
            has suffered a permanent partial impairment.  However, 
 
            claimant, in this case, failed to show by a preponderance of 
 
            the evidence that the herniated disc was due to an injury at 
 
            McDonald's.  Claimant's failure of proof stems from an 
 
            inability on the part of this deputy commissioner to find 
 
            from the evidence that claimant was credible.  On the other 
 
            hand, it also could not be found that claimant lacked credi
 
            bility.  Claimant appeared to be a fine young man at 
 
            hearing.
 
            
 
                 Claimant did not prevail in this case due to the incon
 
            sistencies in the story pointed out by defense counsel.  
 
            Because of these inconsistencies, the undersigned is unable 
 
            to make a finding, positive or negative, as to claimant's 
 
            credibility.  Without a positive credibility finding, there 
 
            is a lack of medical opinion to show the causal connection 
 
            between the back condition and the alleged injury.  All of 
 
            the medical opinions offered are based only upon a history 
 
            of an injury provided by claimant.  The following is a 
 
            delineation of the serious inconsistencies.
 
            
 
                 On March 13, 1989, claimant first sought treatment from 
 
            William Jagiello, D.O., a family practice physician.  
 
            Despite claimant's testimony that he knew that he had 
 
            injured himself on February 19, 1989 because of the onset of 
 
            immediate pain, claimant has stated to Dr. Jagiello when he 
 
            first sought treatment that he "doesn't know of injuring it 
 
            [back and thigh]" according to the handwritten office notes 
 
            of Dr. Jagiello.  Later, on March 27, 1989, claimant 
 
            returned to Dr. Jagiello with continued complaints of back 
 
            and leg pain.  At that time, according to Dr. Jagiello's 
 
            office notes, claimant stated that he injured his left thigh 
 
            three months previously while playing racquetball with his 
 
            brother.  Although the initial cramp subsided, low back pain 
 
            began a week later and periodically recurred since that 
 
            time.  Claimant reported that the pain had become worse over 
 
            the last three and one half weeks.  According to Dr. 
 
            Jagiello, no history of an injury at McDonald's was given to 
 
            him at the time.  Claimant was then referred by Dr. Jagiello 
 
            a couple of days later to a neurosurgeon, Stuart R. Winston, 
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            M.D.  Again, no history of injury or any back problems while 
 
            working at McDonald's was provided to Dr. Winston.  The only 
 
            history was a complaint of back and leg pain of three and 
 
            one half weeks duration.  After his initial visit, further 
 
            testing was performed by Dr. Winston.
 
            
 
                 Claimant returned to Dr. Winston on April 3, 1989, and 
 
            was told that he had a herniated disc and that arrangements 
 
            should be made for surgery.  According to Dr. Winston's 
 
            records, claimant stated to Dr. Winston that he had talked 
 
            to his supervisor at McDonald's and that his treatment was a 
 
            workers' compensation matter.  This was the first time 
 
            claimant told any physician that the back problems were work 
 
            related.  On April 6, 1989, claimant delivered to both Dr. 
 
            Winston and Dr. Jagiello a handwritten note indicating that 
 
            he was injured while moving the shake machine and felt imme
 
            diate pain.  He also stated in this note that he had talked 
 
            to his supervisors on two occasions about this incident, the 
 
            last time being on March 27, 1989, in which he indicated 
 
            that he was filing a workers' compensation claim.  At hear
 
            ing, claimant denied the accuracy of the records of both Dr. 
 
            Jagiello and Dr. Winston stating that he did report the 
 
            shake machine incident to them when he was first treated.
 
            
 
                 Claimant testified that when his back problems began he 
 
            was concerned about his insurance status as his dad was 
 
            unemployed and that his family did not have medical insur
 
            ance.  He stated that he talked to one of the assistance 
 
            managers, Todd Worthington, about his insurance status after 
 
            the injury.  Claimant testified that he believed this was on 
 
            March 21, 1989, the date McDonald's reported that they first 
 
            became aware of his back condition in the first report of 
 
            injury.  On two occasions, claimant testified at hearing 
 
            that he also reported on March 21, 1989 to Worthington the 
 
            occurrence of the shake machine incident and that he was 
 
            claiming workers' compensation.  However, claimant later 
 
            changed his testimony and testified that he just reported to 
 
            Worthington that he had back problems on that date, not how 
 
            the condition arose.  Again, claimant had stated in the 
 
            handwritten note of April 5, 1989 to his doctors that he 
 
            first claimed workers' compensation on March 27, 1989.  In 
 
            an apparent attempt to explain inconsistencies, claimant 
 
            finally testified at hearing that he was not familiar with 
 
            workers' compensation matters.
 
            
 
                 The store manager, Joseph Roney, Jr., testified that he 
 
            first became aware that claimant was seeking workers' com
 
            pensation benefits on the evening of April 3, 1989, when 
 
            claimant and his father met with him and related to him the 
 
            shake machine incident.  He then caused the first report of 
 
            injury to be prepared.  He admitted that he put a March 21, 
 
            1989 date on the form as the date he first became aware of 
 
            claimant's condition but stated that this was probably a 
 
            date he came up with from reviewing the schedule changes.
 
            
 
                 Claimant's counsel argues that claimant's own first 
 
            report of injury establishes that claimant reported a work 
 
            injury before the alleged inconsistencies and histories were 
 
            provided to physicians.  However, claimant admits he only 
 
            initially discussed his back condition, not its work 
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
            relatedness, to McDonald's at the time on that date and that 
 
            he was only concerned about who was going to pay for his 
 
            treatment.  It is found that claimant first reported the 
 
            alleged work injury to McDonald's on April 3, 1989, when he 
 
            and his father met with Rooney and that he did not report a 
 
            work injury to his physicians until he delivered the note of 
 
            April 6, 1989.
 
            
 
                 Both Dr. Winston and Dr. Jagiello testified in their 
 
            depositions that the findings of a herniated disc are con
 
            sistent with a history of pushing and pulling a heavy shake 
 
            machine.  However, both testified that their causal connec
 
            tion opinions are dependent upon the correctness of the his
 
            tory of the shake machine incident.  These were the only 
 
            supportive causal connection medical opinions in the record.  
 
            As it cannot be found that the shake machine incident actu
 
            ally occurred, the medical opinions are of little value on 
 
            the causal connection issue.  Another neurosurgeon retained 
 
            by defendants opined that the back condition was the result 
 
            of the racquetball incident reported to Dr. Jagiello.  Dr. 
 
            Jagiello in his deposition pointed out that claimant could 
 
            very well have injured himself playing racquetball as he was 
 
            not in good physical condition for such strenuous exercise.  
 
            Claimant admitted to discussing with Dr. Jagiello during his 
 
            initial visits the playing of racquetball approximately once 
 
            a month with his brother.
 
            
 
                 Finally, claimant's counsel argues that claimant has a 
 
            learning disability and is mentally incapable of lying.  
 
            Neither Dr. Winston nor the undersigned deputy during 
 
            claimant's testimony observed any severe intellectual 
 
            dysfunction on the part of claimant in the magnitude 
 
            asserted by his counsel.
 
            
 
                    
 
            
 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
            conclusions of law
 
            
 
                 Claimant has the burden of proving by a preponderance 
 
            of the evidence that claimant received an injury which arose 
 
            out of and in the course of employment.  The words "out of" 
 
            refer to the cause or source of the injury.  The words "in 
 
            the course of" refer to the time and place and circumstances 
 
            of the injury.  See Cedar Rapids Community Sch. v. Cady, 278 
 
            N.W.2d 298 (Iowa 1979); Crowe v. DeSoto Consol. Sch. Dist., 
 
            246 Iowa 402, 68 N.W.2d 63 (1955).  An employer takes an 
 
            employee subject to any active or dormant health impair
 
            ments, and a work connected injury which more than slightly 
 
            aggravates the condition is considered to be a personal 
 
            injury.  Ziegler v. United States Gypsum Co., 252 Iowa 613, 
 
            620, 106 N.W.2d 591 (1960) and cases cited therein.
 
            
 
                 In the case sub judice, the evidence was too conflict
 
            ing to warrant a positive finding of credibility in order to 
 
            find a work injury.  As claimant had the burden of proof, a 
 
            lack of evidence compels a denial of the claim.
 
            
 
                                      order
 
            
 
                 1.  Claimant's claim is denied.
 
            
 
                 2.  Each party shall pays its own costs of this action 
 
            as set forth in rule 343 IAC 4.33.
 
            
 
            
 
            
 
                 Signed and filed this ____ day of January, 1991.
 
            
 
            
 
            
 
            
 
            
 
                                          ______________________________
 
                                          LARRY P. WALSHIRE
 
                                          DEPUTY INDUSTRIAL COMMISSIONER
 
            
 
            Copies To:
 
            
 
            Mr. Dennis L. Hanssen
 
            Attorney at Law
 
            2700 Grand Ave  Suite 111
 
            Des Moines  IA  50312
 
            
 
            Mr. Paul C. Thune
 
            Attorney at Law
 
            P O Box 9130
 
            Des Moines  IA  50306
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                           5-1100
 
                           Filed January 17, 1991
 
                           LARRY P. WALSHIRE
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            PAUL JOHN FILIPPELLI,         :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :       File No. 908671
 
            McDONALD'S HAMBURGERS,        :
 
                                          :    A R B I T R A T I O N
 
                 Employer,                :
 
                                          :       D E C I S I O N
 
            and                           :
 
                                          :
 
            KEMPER,                       :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
            
 
            
 
            5-1100
 
            Credibility contest.  Unable to make a positive finding of 
 
            credibility in favor of claimant.  As the medical evidence 
 
            was solely dependent upon the history of injury provided by 
 
            claimant, the claim was denied.
 
            
 
 
         
 
         Page   1
 
         
 
         
 
         
 
         
 
         
 
         
 
         
 
         before the iowa industrial commissioner
 
         ____________________________________________________________
 
                   :
 
         ROSE BUSS,     :
 
                   :
 
              Claimant, :
 
                   :
 
         vs.       :
 
                   :      File No. 908685
 
         JON SCRIVEN,   :
 
                   :        A P P E A L
 
              Employer, :
 
                   :      D E C I S I O N
 
         and       :
 
                   :
 
         THE FIDELITY & COMPANY   :
 
         OF, NY, c/o UAC,    :
 
                   :
 
              Insurance Carrier,  :
 
              Defendants.    :
 
         ___________________________________________________________
 
         The parties submitted this case to arbitration on stipulated 
 
         facts.  The record has been reviewed de novo on appeal.  The 
 
         decision of the deputy filed January 10, 1990 is affirmed and 
 
         adopted as the final agency action in this case with the 
 
         following additional analysis:
 
         The deputy refers to both the arbitration decision and the appeal 
 
         decision of Klodt v. Hillside Manor Care Center, since the 
 
         arbitration decision was appealed the deputy's arbitration 
 
         decision is no longer viable step in the proceeding.  Tussing v. 
 
         George A. Hormel & Co., 461 N.W.2d 450 (Iowa 1990).  Correct 
 
         reference to the law governing this issue can be found in Klodt 
 
         v. Hillside Manor Care Center, Appeal Decision filed August 17, 
 
         1989.
 
         Claimant shall pay the costs of the appeal, including the 
 
         preparation of the hearing transcript.
 
         Signed and filed this ____ day of September, 1991.
 
         
 
         
 
         
 
         
 
                   ________________________________
 
                            BYRON K. ORTON
 
                       INDUSTRIAL COMMISSIONER
 
         
 

 
         
 
         Page   2
 
         
 
         
 
         
 
         
 
         
 
         
 
         
 
         Copies To:
 
         
 
         Mr. John E. Behnke
 
         Attorney at Law
 
         Box F
 
         Parkersburg, Iowa 50665
 
         
 
         Mr. Michael R. Hoffmann
 
         Attorney at Law
 
         Breakwater Bldg.
 
         3708 75th St.
 
         Des Moines, Iowa 50322
 
         
 
 
            
 
 
 
 
 
 
 
 
 
 
 
            9998
 
            Filed September 17, 1991
 
            Byron K. Orton
 
            BJO
 
            before the iowa industrial commissioner
 
            ____________________________________________________________
 
                      :
 
            ROSE BUSS,     :
 
                      :
 
                 Claimant, :
 
                      :
 
            vs.       :
 
                      :      File No. 908685
 
            JON SCRIVEN,   :
 
                      :        A P P E A L
 
                 Employer, :
 
                      :      D E C I S I O N
 
            and       :
 
                      :
 
            THE FIDELITY & COMPANY   :
 
            OF, NY, c/o UAC,    :
 
                      :
 
                 Insurance Carrier,  :
 
                 Defendants.    :
 
            ___________________________________________________________
 
            
 
            9998
 
            
 
                 Summary affirmance of deputy's decision filed January 
 
            10, 1990.
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                   BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         ROSE BUSS,
 
         
 
              Claimant,                               File No. 908685
 
         
 
         vs.                                       A R B I T R A T I O N
 
         
 
         JON  SCRIVEN,                                D E C I S I O N
 
         
 
              Employer,
 
                                                         F I L E D
 
         and
 
                                                        JAN 10 1990
 
         THE FIDELITY & COMPANY OF,
 
         NY, c/o UAC                           IOWA INDUSTRIAL COMMISSIONER
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         
 
                                   INTRODUCTION
 
         
 
              This is a proceeding in arbitration brought by the claimant, 
 
         Rose Buss, against John Scriven, employer, and The Fidelity & 
 
         Casualty Company of NY, c/o UAC, insurance carrier, to recover 
 
         benefits as a result of an alleged injury sustained on December 
 
         3, 1988.  This matter was scheduled to come on for hearing on 
 
         December 28, 1989 in Waterloo, Iowa.  On December 26, 1989, the 
 
         parties, on a joint application, submitted this case on a 
 
         stipulation of facts.  The application was granted.  The exhibits 
 
         submitted with the joint application and stipulation of facts 
 
         were not specifically marked.  The parties stipulated to the 
 
         following:
 
         
 
              1.  The First Report of Injury accurately sets forth the 
 
         facts and circumstances of the claimed injury.
 
         
 
              2.  The claimed injury took place during working hours, on 
 
         the employer's premises and while claimant was working in the 
 
         employer's kitchen.'
 
         
 
              3.  Claimant has incurred medical expenses totaling $877.00, 
 
         temporary total disability which would, in the event of an award 
 
         of compensation entitle her to $29.65, and has incurred a filing 
 
         fee of $65.00.
 
         
 
              4.  Claimant has incurred no permanent partial disability 
 
         and has returned to her former work duties.
 
         
 
              5.  The medical records and reports attached to claimant's 
 
         and defendants' two (one each) Notices of Intent as filed 
 
         herewith are stipulated into evidence.
 
         
 
                                                
 
                                                         
 
                                      ISSUE
 
         
 
              The issue for resolution is whether the alleged injury on 
 
         December 3, 1988 arose out of and in the course of claimant's 
 
         employment.
 
         
 
                              REVIEW OF THE EVIDENCE
 
         
 
              The first report of injury indicates that claimant's alleged 
 
         injury was caused by claimant eating some beef which became 
 
         lodged in her throat.  Medical records indicate that 
 
         esophagogastroduodenoscopy was performed on December 3, 1988 in 
 
         order to remove the foreign body in the esophagus.  Sartori 
 
         Memorial Hospital records indicate that this procedure was 
 
         successful and that after the meat was pushed into the stomach 
 
         the gastroesophageal junction looked normal except for a 
 
         superficial abrasion caused by dislodging the meat.  The 
 
         stipulation previously set out encompasses the balance of the 
 
         important facts of this case and will not be repeated in this 
 
         review of the evidence.
 
         
 
                           APPLICABLE LAW AND ANALYSIS
 
         
 
              Claimant has the burden of proving by a preponderance of the 
 
         evidence that she received an injury on December 3, 1988 which 
 
         arose out of and in the course of her employment.  McDowell v. 
 
         Town of Clarksville, 241 N.W.2d 904 (Iowa 1976); Musselman v. 
 
         Central Telephone Co., 261 Iowa 352, 154 N.W.2d 128 (1967).
 
         
 
              An employee is entitled to compensation for any and all 
 
         personal injuries which arise out of and in the course of the 
 
         employment.  Section 85.3(1).
 
         
 
              The injury must both arise out of and be in the course of 
 
         the employment.  Crowe v. DeSoto Consol. Sch. Dist., 246 Iowa 
 
         402, 68 N.W.2d 63 (1955) and cases cited at pp. 405-406 of the 
 
         Iowa Report.  See also Sister Mary Benedict v. St. Mary's Corp., 
 
         255 Iowa 847, 124 N.W.2d 548 (1963) and Hansen v. State of Iowa, 
 
         249 Iowa  1147, 91 N.W.2d 555 (1958).
 
         
 
              The words "out of" refer to the cause or source of the 
 
         injury.  Crowe, 246 Iowa 402, 68 N.W.2d 63.
 
         
 
              The words "in the course of" refer to the time and place and 
 
         circumstances of the injury.  McClure, 188 N.W.2d 283; Crowe, 246 
 
         Iowa 402, 68 N.W.2d 63.
 
         
 
              "An injury occurs in the course of the employment when it is 
 
         within the period of employment at a place the employee may 
 
         reasonably be, and while he is doing his work or something 
 
         incidental to it."  Cedar Rapids Comm. Sch. Dist. v. Cady, 278 
 
         N.W.2d 298 (Iowa 1979), McClure, 188 N.W.2d 283; Musselman, 261 
 
         Iowa 352, 154 N.W.2d 128.
 
         
 
              Claimant was employed with defendant employer as a waitress 
 
                                                
 
                                                         
 
         and cook's helper.  At the time of her alleged injury, she was 
 
         specifically working in the kitchen.  The evidence is not clear 
 
         as to whether claimant was eating lunch or nibbling or tasting 
 
         various foods as she was cooking it or preparing it for serving 
 
         the customers.  There is no evidence that would indicate that her 
 
         eating some beef was either a requirement of her employment or 
 
         did claimant's employment significantly increase any work place 
 
         hazards.  It is obvious the work place enabled her easy access to 
 
         food and whether allowed her or not, gave her an opportunity to 
 
         grab a bite of food at the employer's expense.  The mere fact 
 
         that an injury or incident occurred while at work does not equate 
 
         to the fact that it arose out of and in the course of claimant's 
 
         employment.  There is no evidence that claimant had to eat lunch 
 
         on the run or while working in the kitchen or serving customers. 
 
         It appears this lodging of the meat occurred around 3:15 p.m. on 
 
         December 3, 1988.  This normally would not be a regular lunch 
 
         period in most businesses.
 
         
 
              There is no evidence that the claimant's work in any way 
 
         significantly increased the danger of such an injury.  Klodt v. 
 
         Hillside Manor Care Center, file number 588422, Appeal Decision 
 
         filed August 17, 1989.  See also Klodt arbitration decision filed 
 
         February 1, 1989 which sets out the basic rule regarding meals. 
 
         The undersigned finds that claimant's injury did not arise out of 
 
         and in the course of her employment.
 
         
 
                                 FINDINGS OF FACT
 
         
 
              1.  Claimant has failed in her burden of proof to show her 
 
         injury on December 3, 1988 was the result of her employment.
 
         
 
              2.  Claimant's injury was not the result of any particular 
 
         requirement at work or hazard of the work place.
 
         
 
              3.  At the time of claimant's injury, she was an employee of 
 
         defendant employer.
 
         
 
              4.  Claimant's employment did not significantly increase the 
 
         danger of injury to her.
 
         
 
                                CONCLUSION OF LAW
 
         
 
              Claimant's injury on December 3, 1988 did not arise out of 
 
         and in the course of claimant's employment.
 
         
 
                                      ORDER
 
         
 
              That claimant take nothing from these proceedings.
 
         
 
              That claimant shall pay the costs of this action pursuant to 
 
         Division of Industrial Services Rule 343-4.33.
 
         
 
              Signed and filed this 10th day of January, 1990.
 
         
 
         
 
                                                
 
                                                         
 
         
 
         
 
         
 
         
 
                                            BERNARD J. O'MALLEY
 
                                            DEPUTY INDUSTRIAL 
 
                                            COMMISSIONER
 
         
 
         Copies To:
 
         
 
         Mr John E Behnke
 
         Attorney at Law
 
         Box F
 
         Parkersburg, IA  50665
 
         
 
         Mr Michael R. Hoffmann
 
         Attorney at Law
 
         500 Liberty Bldg
 
         Des Moines, IA  50309
 
 
 
         
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                            1100
 
                                            Filed January 10, 1990
 
                                            Bernard J. O'Malley
 
         
 
                   BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         ROSE BUSS,
 
         
 
              Claimant,
 
         
 
         vs.
 
                                                    File No. 908685
 
         JON SCRIVEN,
 
                                                 A R B I T R A T I 0 N
 
              Employer,
 
                                                    D E C I S I 0 N
 
         and
 
         
 
         THE FIDELITY & COMPANY OF,
 
         NY, c/o UAC
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
         1100
 
         
 
              Found claimant's injury did not arise out of and in the 
 
         course of her employment.  Case submitted on stipulated facts 
 
         by the parties.  A piece of meat was lodged in claimant's 
 
         esophagus.  Claimant was a cook's helper and waitress for 
 
         defendant employer.  There was no evidence that claimant was to 
 
         be eating, nibbling or tasting food as a requirement of her 
 
         employment during her working hours.
 
 
 
 
 
 
 
         
 
         
 
 
 
 
 
 
 
 
 
 
 
 
                 BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
 
 
 JERRY O. JOHNSON,
 
                                                     File Nos. 844459 
 
      Claimant,                                                860953
 
 
 
 vs.
 
                                                       A P P E A L                             
 
 
 
 SECOND INJURY FUND OF IOWA,
 
                                                     D E C I S I O N
 
      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.
 
 
 
 Claimant has appealed a proposed decision by a deputy industrial 
 
 commissioner filed October 24, 1990. Claimant has indicated in his 
 
 appeal brief that he is not appealing the deputy's decision in file 
 
 number 908689 (alleged date of injury December 3, 1987). The 
 
 employer and the employee settled their matters pursuant to an 
 
 agreement for settlement prior to the hearing. The agreement for 
 
 settlement was approved by this agency on October 30, 1990.
 
 
 
                               ISSUE
 
 
 
 The issue on appeal is:
 
 
 
       Whether claimant is entitled to second injury fund benefits.
 
 
 
                          FINDINGS OF FACT
 
 
 
      Claimant was born September 17, 1942. He finished the eleventh 
 
 grade. The claimant described himself as getting poor grades in 
 
 school. He began working for Wilson Foods in September 1983 and 
 
 worked there and for its successor Cedar Rapids Meat doing business 
 
 as Farmstead Foods. He worked there until it closed in March 1990. 
 
 During his 27 years of employment in the meat packing industry he 
 
 was also self-employed doing odd jobs.
 
 
 
 In 1982 claimant began having pain in his left arm. In September 
 
 1984 he was first seen by William Eversmann, Jr., M.D. Dr. 
 
 Eversmann is an orthopedic surgeon who is a subspecialist in hand 
 
 surgery. Dr. Eversmann diagnosed claimant as having pronator 
 
 syndr~ome which is the compression of the median nerve in
 

 
 
 
 
 
 
 
 JOHNSON V. SECOND INJURY FUND OF IOWA 
 
 Page 2
 
 
 
 
 
 
 
 the proximal forearm (Claimant Exhibit 4, page 7, lines 7-10). He 
 
 also felt that claimant had carpal tunnel syndrome as well. 
 
 Claimant had surgery on September 24, 1984, which involved a 
 
 release of the pronator syndrome and pressure of carpal tunnel 
 
 left side and release of Guyton's canal. The doctor opined the 
 
 cause of claimant's problems and ultimate surgery was his 
 
 repetitive actions and motion while working for Farmland as a meat 
 
 cutter. The preoperative and postoperative diagnoses were pronator 
 
 and carpal tunnel syndrome (Cl. Ex. 2, p. 93).
 
 
 
      On November 5, 1986, claimant sought medical treatment for 
 
 the first time for his right arm problems which began two to three 
 
 months previously. The occupational therapy records indicate that 
 
 on December 8, 1986, claimant started developing symptoms in his 
 
 right hand (Cl. Ex. 2, p. 30). Claimant saw Dr. Eversmann again on 
 
 January 21, 1987. An electrodiagnostic study showed changes in the 
 
 ulna nerve axis in claimant's right side in the elbow area. On 
 
 January 28, 1987, claimant had surgery involving a medial 
 
 epicondylectomy decompression of the ulnar nerve of the right 
 
 elbow (Cl. Ex. 2, p. 98). The preoperative and postoperative 
 
 diagnoses were cubital tunnel syndrome of the right ulnar nerve.
 
 
 
 On September 4, 1987, claimant testified he pulled something in 
 
 his left arm while grabbing a piece of meat at work. He again 
 
 sought treatment from Dr. Eversmann. Dr. Eversmann's office note 
 
 on October 6, 1987 indicated that claimant's symptoms were new but 
 
 may indicate an increasing problem based on the previous problem 
 
 (Cl. Ex. 2, p. 14). The doctor eventually performed surgery for 
 
 these problems on December 9, 1987. The preoperative and 
 
 postoperative diagnoses were left cubital syndrome with 
 
 compression of the left ulnar nerve at the elbow (Cl. Ex. 2, p. 
 
 97). Dr. Eversmann indicated that claimant would be able to return 
 
 to work the first of February 1988 (Cl. Ex. 2, p. 17).
 
 
 
 Claimant has had several impairment ratings for his various 
 
 problems. On February 15, 1983, Warren N. Verdeck, M.D., estimated 
 
 that claimant had a four percent "disability" of the left upper 
 
 extremity (Cl. Ex. 2, p. 6). Dr. Verdeck's rating was prior to the 
 
 first surgery on claimant's left arm. After the first surgery on 
 
 claimant's left arm Dr. Eversmann gave an impairment rating of 10 
 
 percent of the left upper extremity. This 10 percent rating was 
 
 given on July 19, 1985 (Cl. Ex. 2, p. 55). Dr. Eversmann gave an 
 
 impairment rating of the right upper extremity of 12 percent. This 
 
 rating which followed the January 28, 1987 surgery was given in 
 
 February 1988 and repeated on May 1, 1989 (Cl. Ex. 2, p. 87). 
 
 Following the third surgery (the second on claimant's left arm) on 
 
 December 9, 1987, Dr. Eversmann gave an impairment rating of 12 
 
 percent of the left arm. The rating was "all inclusive for that 
 
 extremity" (Cl. Ex. 2, p. 90).
 

 
 
 
 
 
 
 
 JOHNSON V. SECOND INJURY FUND OF IOWA 
 
 Page 3
 
 
 
 
 
      Claimant was also evaluated by John R. Walker, M.D., in 
 
 December 1985 (Cl. Ex. 2, p. 104). Dr. Eversmann's opinions and 
 
 rating will be accepted because he was the long-time treating 
 
 physician, was a hand specialist, made ratings after all three 
 
 surgeries and made the most recent ratings.
 
 
 
 Claimant worked in the meat packing industry for 27 years before 
 
 the plant closed in March 1990. He testified he was able to 
 
 perform light duty work at the plant because a friend of his 
 
 switched jobs with him. He further testified that he would still 
 
 be working at Farmstead if it had not closed. He also testified 
 
 that he has worked to improve his reading skills and has sought 
 
 employment. He has assisted his son in the home building industry 
 
 but has not done hammering. He has made $100 to $150 per week 
 
 since March 1990. The parties stipulated that the rate of 
 
 compensation following the September 1987 injury (December 1987 
 
 surgery) was $202.27 per week. Dr. Eversmann placed no 
 
 restrictions on claimant's job assignments (Cl. Ex. 4, p. 25) but 
 
 has given claimant impairment ratings of 12 percent of each of the 
 
 upper extremities.
 
 
 
                        CONCLUSIONS OF LAW
 
 
 
      Iowa Code section 85.64 governs Second Injury Fund liability. 
 
 Before liability of the Fund is triggered, two requirements must 
 
 be met. First, the employee must have previously experienced a 
 
 permanent loss or loss of use of a hand, arm, foot, leg or eye. 
 
 Second, the employee must sustain a loss or loss of use of another 
 
 such specified member or organ through a compensable injury.
 
 
 
 The Second Injury Fund Act exists to encourage the hiring of 
 
 handicapped persons by making a current employer responsible only 
 
 for the amount of disability related to an injury occurring while 
 
 that employer employed the handicapped individual as if the 
 
 individual had no preexisting disability. See Anderson v. Second 
 
 Injury Fund, 262 N.W.2d 789 (Iowa 1978); Lawyer and Higgs, Iowa 
 
 Workers~ Compensation-Law and Practice, 17-1.
 
 
 
 The Fund is responsible for all industrial disability caused by 
 
 the most recent injury, less the disability for which the employer 
 
 is responsible, and also less the compensable value of the 
 
 preexisting disability. Iowa Code section 85.64. Second Injury 
 
 Fund of Iowa v. Braden, 459 N.W.2d 467 (Iowa 1990); Second Injury 
 
 Fund v. Neelans, 436 N.W.2d 335 (Iowa 1989); Second Iniury Fund v. 
 
 Mich. Coal Co., 274 N.W.2d 300 (Iowa 1970).
 
 
 
 In this case it is clear that claimant has proved facts that 
 
 trigger Second Injury Fund (Fund) liability. Claimant's first 
 

 
 
 
 
 
 
 
 JOHNSON V. SECOND INJURY FUND OF IOWA 
 
 Page 4
 
 
 
 
 
 injury resulted in surgery on September 24, 1984 to his left arm
 
 because of pronator and carpal tunnel syndromes.  This injury 
 
 resulted in a 10 percent permanent impairment of the left upper 
 
 extremity. Subsequent to that loss he had a cumulative work injury 
 
 to the right arm. The loss to the right arm was a 12 percent 
 
 permanent impairment. He had another cumulative work injury to the 
 
 left arm which resulted in surgery in December 1987. This injury 
 
 caused an additional permanent impairment to the left arm. After 
 
 the second injury and surgery to the left arm the total permanent 
 
 impairment was 12 percent of the left arm. The injury to the right 
 
 arm was diagnosed as cubital tunnel syndrome and the later injury 
 
 to the left arm was also cubital tunnel syndrome. A fair reading 
 
 of Dr. Eversmann's testimony is that the cubital tunnel syndrome 
 
 of the right and left arm developed during the same time period 
 
 and manifested themselves at different times. However, claimant 
 
 had a prior loss to the left arm consisting of pronator and carpal 
 
 tunnel syndromes and a subsequent loss to the right arm consisting 
 
 of cubital tunnel syndrome so fund benefits are triggered. The 
 
 cubital tunnel syndrome "injuries" to the right and left arms 
 
 occurred at different times because they manifested themselves at 
 
 different times.
 
 
 
      The Fund argues that it is not liable because claimant's 
 
 bilateral upper extremity problems are an occupational disease. 
 
 The evidence is insufficient to conclude that claimant's 
 
 repetitive motion disorder is an occupational disease. In 
 
 addition, this agency has recently ruled that the repetitive 
 
 motion disorder of carpal tunnel syndrome is not an occupational 
 
 disease but is instead compensable under Iowa Chapter 85. See 
 
 Nobel v. Lamoni Products, File Nos. 857575 and 851309, Appeal 
 
 Decision May 7, 1992.
 
 
 
 Functional impairment is an element to be considered in 
 
 determining industrial disability which is the reduction of 
 
 earning capacity, but consideration must also be given to the 
 
 injured employee's age, education, qualifications, experience and 
 
 inability to engage in employment for which the employee is 
 
 fitted. Olson v. Goodyear Serv. 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. Impairment and 
 
 disability are not synonymous. The degree of industrial disability 
 
 can be much different than the degree of impairment because 
 
 industrial disability references to loss of earning capacity and 
 
 impairment references 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 
 

 
 
 
 
 
 JOHNSON V. SECOND INJURY FUND OF IOWA 
 
 Page 5
 
 
 
 
 
 
 
 impairment of bodily function.
 
 
 
      Factors to be considered in determining industrial disability 
 
 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 the healing period; the 
 
 work experience of the employee prior to the injury and after the 
 
 injury and the 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. Likewise, an 
 
 employer's refusal to give any sort of work to an impaired 
 
 employee may justify an award of disability. McSpadden v. Big Ben 
 
 Coal Co., 288 N.W.2d 181 (Iowa 1980). 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. 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 as well as 
 
 general and specialized knowledge to make the finding with regard 
 
 to degree of industrial disability. See Christensen v. Haqen, 
 
 Inc., Vol. 1 No. 3 State of Iowa Industrial Commissioner 
 
 Decisions 529 (App. March 26, 1985); Peterson v. Truck Haven Cafe, 
 
 Inc., Vol. 1 No. 3 State of Iowa Industrial Commissioner Decisions 
 
 654 (App. February 28, 1985).
 
 
 
 Compensation for permanent partial disability shall begin at the 
 
 termination of the healing period. Compensation shall be paid in 
 
 relation to 500 weeks as the disability bears to the body as a 
 
 whole. Iowa Code section 85.34.
 
 
 
 In this case, when all relevant factors are considered, it is 
 
 found that claimant has sustained a loss of earning capacity. He 
 
 has permanent impairment of 12 percent of each of his arms. He has 
 
 had an actual loss of earnings. Claimant's job with this employer 
 
 is not available. He has looked for but has not gained employment. 
 
 His work experience of 27 years in the meat packing industry does 
 
 not easily transfer to other types of employment. Claimant was 46 
 
 years old in 1988 and his chances for vocational rehabilitation 
 
 are unclear. Claimant's current cumulative industrial disability 
 
 is 25 percent.
 
 
 

 
 
 
 
 
 JOHNSON V. SECOND INJURY FUND OF IOWA 
 
 Page 6
 
 
 
 
 
 The next step to determine the Fund's liability is to determine 
 
 the nature and extent of claimant's disabiliies from
 
 each of his injuries. Dr. Eversmann's impairment ratings will be 
 
 accepted. His ratings were: a 10 percent impairment of the left 
 
 arm after surgery in September 1984; a 12 percent impairment of 
 
 the right arm after the surgery in January 1987; and a total of 12 
 
 percent (or an additional 2 percent) to the left arm after the 
 
 December 1987 surgery.
 
 
 
      Claimant's current cumulative industrial disability is 25 
 
 percent. The liability of the Fund is 65 weeks.
 
 
 
 (.25 x 500) - [(.10 x 250) + (.12 x 250) + (.02 x 250)]
 
 
 
 The Fund benefits begin after the end of the disability period of 
 
 claimant's last injury to his left arm. Dr. Eversmann indicated 
 
 claimant's healing period for this injury would end the first of 
 
 February 1988, when claimant was able to return to work. Because 
 
 Dr. Eversmann gave an impairment rating of 10 percent to 
 
 claimant's left arm following claimant's first surgery to his left 
 
 arm and a total 12 percent impairment rating after the second 
 
 surgery to the left arm, claimant's disability to his left arm 
 
 caused by the last injury is two percent. Two percent disability 
 
 of the arm represents five weeks. The Fund benefits begin five 
 
 weeks after the first of February 1988. Because all Fund benefits 
 
 have now accrued they should be paid in a lump sum. Interest on 
 
 the benefits shall accrue from the date of this decision. See 
 
 Second Iniury Fund of Iowa v. Braden, 459 N.W.2d 467 (Iowa 1990).
 
 
 
 In summary, claimant has proved a permanent loss of use of his 
 
 left arm in 1984, two subsequent work-related injuries which 
 
 resulted in permanent loss of use of his right arm and additional 
 
 loss of use of his left arm. Claimant has proved a current 
 
 cumulative industrial disability of 25 percent and 12 percent 
 
 disability to each of his arms. Claimant has also proved 
 
 entitlement to 65 weeks of second injury fund benefits.
 
 
 
        WHEREFORE, the decision of the deputy is reversed.
 
 
 
                                ORDER
 
 
 
      THEREFORE, it is ordered:
 
 
 
 That the second injury fund pay claimant sixty-five (65) weeks of 
 
 benefits at the rate of two hundred two and 27/100 dollars 
 
 ($202.27) per week.
 
 
 
 That the second injury fund pay the benefits in a lump sum.
 
 
 
 That interest on unpaid benefits shall accrue from the date of 
 

 
 
 
 
 
 JOHNSON V. SECOND INJURY FUND OF IOWA
 
 Page 7
 
 
 
 
 
 this decision. 
 
 
 
 That the second injury fund shall pay the costs of this 
 
 matter including the transcription of the hearing.
 
 
 
 That the second injury fund shall reimburse claimant one
 
 half of the filing fee.
 
 
 
 Signed and filed this 31st day of August, 1992.
 
 
 
 
 
 
 
                                       BYRON K. ORTON
 
                                   INDUSTRIAL COMMISSIONER
 
 
 
 Copies To:
 
 
 
 Mr. James M. Peters
 
 Mr. James E. Shipman
 
 Attorneys at Law
 
 1200 MNB Building
 
 Cedar Rapids, Iowa  52401
 
 
 
 Mr. E. J. Giovannetti
 
 Attorney at Law
 
 Terrace Center  STE 111
 
 2700 Grand
 
 Des Moines, Iowa  50312
 
 
 
 Mr. Joseph M. Barron
 
 Attorney at Law
 
 218 6th Avenue  STE 300
 
 P O Box 9130
 
 Des Moines, Iowa  50309
 
 
 
 Ms. Shirley Steffe
 
 Assistant Attorney General
 
 Tort Claims Division
 
 Hoover State Office Building
 
 Des Moines, Iowa  50319
 
 
 
 
 
 
 
 
 
 
 
 
                                                  3202; 3203; 2209
 
                                                  Filed August 31, 1992
 
                                                  BYRON K. ORTON
 
                               
 
 
 
                BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
 
 
 JERRY O. JOHNSON,
 
                                               File Nos. 844459
 
      Claimant,                                          860953
 
                                                         908689
 
 vs.
 
                                                 A P P E A L
 
 SECOND INJURY FUND OF IOWA,
 
                                               D E C I S I O N
 
      Defendant.
 
 
 
 2209: 3202: 3203
 
 
 
 This case involved only the employee and the Second Injury Fund. 
 
 Claimant sustained a work-related injury in 1984 which resulted 
 
 in a 10 percent permanent impairment to the left arm. In 1987 he 
 
 had two separate surgeries for cubital tunnel syndrome. The first 
 
 surgery in 1987 was in January to the right arm and resulted in a 
 
 12 percent permanent impairment. The second surgery in 1987 was 
 
 in December and resulted in an additional 2 percent permanent 
 
 impairment to the left arm.
 
 
 
 Claimant was a 46-year-old meat packer with 27 years experience 
 
 in the meat packing business. He had been unemployed except for 
 
 some odd jobs since the closing of the meat packing business. 
 
 Claimant was found to have a 25 percent industrial disability and 
 
 the Fund was liable to claimant for 65 weeks of benefits.
 
 
 
 The Fund's defense that there was a simultaneous injury to his 
 
 right and left arms was rejected because claimant had had a prior 
 
 loss to his left arm.
 
 
 
 The Fund's defense that claimant's repetitive motion disorder was 
 
 an occupational disease was also rejected citing to Noble v. 
 
 Lamoni Products, File Nos. 857575 and 851309, Appeal Decision May 
 
 7, 1992.