BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
                                          :
 
            BENNETT NELSON,               :
 
                                          :        File Nos. 916703
 
                 Claimant,                :                  837062
 
                                          :
 
            vs.                           :          A P P E A L
 
                                          :
 
            WILSON FOODS, INC.,           :        D E C I S I O N
 
                                          :
 
                 Employer,                :
 
                 Defendant.               :
 
            ___________________________________________________________
 
            The record, including the transcript of the hearing before 
 
            the deputy and all exhibits admitted into the record, has 
 
            been reviewed de novo on appeal.  The proposed agency 
 
            decision filed October 10, 1991 is affirmed and is adopted 
 
            as the final agency action in this case, with the following 
 
            correction to the first sentence of finding of fact six on 
 
            page four:
 
            
 
                 On April 1, 1989, claimant was reassigned to 
 
                 perform duties in the wiener room of defendant 
 
                 employer's plant.
 
            Claimant shall pay the costs of the appeal, including the 
 
            preparation of the appeal transcript. 
 
            Signed and filed this ____ day of March, 1992.
 
            
 
            
 
            
 
            
 
                                    ________________________________
 
                                            BYRON K. ORTON
 
                                       INDUSTRIAL COMMISSIONER
 
            
 
            Copies To:
 
            
 
            Mr. Harry H. Smith
 
            Attorney at Law
 
            P O Box 1194
 
            Sioux City, Iowa  51102
 
            
 
            Mr. David L. Sayre
 
            Attorney at Law
 
            223 Pine Street
 
            P O Box 535
 
            Cherokee, Iowa  51012
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                                 9998
 
                                                 Filed March 20, 1992
 
                                                 BYRON K. ORTON
 
            
 
                    BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
                                          :
 
            BENNETT NELSON,               :
 
                                          :        File Nos. 916703
 
                 Claimant,                :                  837062
 
                                          :
 
            vs.                           :          A P P E A L
 
                                          :
 
            WILSON FOODS, INC.,           :        D E C I S I O N
 
                                          :
 
                 Employer,                :
 
                 Defendant.               :
 
            ___________________________________________________________
 
            
 
            
 
            
 
            9998
 
            Summary affirmance of deputy's decision filed October 10, 
 
            1991.
 
            
 
 
         
 
 
 
 
 
 
 
 
 
 
 
         note: the second file number appearing in this decision was added 
 
         after the deputy's decision that found a second injury; thus, 
 
         there is only one deputy decision corresponding to this appeal 
 
         decision, found under #916715
 
         
 
         before the iowa industrial commissioner
 
         ____________________________________________________________
 
                   :
 
         GAYLE FOOR,    :
 
                   :
 
              Claimant, :
 
                   :
 
         vs.       :
 
                   :   File Nos. 946067/916715
 
         LOUIS RICH,    :
 
                   :         A P P E A L
 
              Employer, :
 
                   :       D E C I S I O N
 
         and       :
 
                   :
 
         THE HARTFORD,  :
 
                   :
 
              Insurance Carrier,  :
 
              Defendants.    :
 
         ___________________________________________________________
 
          The record, including the transcript of the hearing before the 
 
         deputy and all exhibits admitted into the record, has been 
 
         reviewed de novo on appeal.  The decision of the deputy filed 
 
         August 16, 1990 is affirmed and is adopted as the final agency 
 
         action in this case. 
 
         Defendants shall pay the costs of the appeal, including the 
 
         preparation of the hearing transcript.
 
         Signed and filed this ____ day of January, 1991.
 
         
 
         
 
         
 
         
 
                   ________________________________
 
                            CLAIR R. CRAMER
 
                    ACTING INDUSTRIAL COMMISSIONER
 
         
 
         Copies To:
 
         
 
         Mr. David W. Newell
 
         Attorney at Law
 
         323 East 2nd St.
 
         Muscatine, Iowa 52761
 
         
 
         Mr. Larry L. Shepler
 
         Attorney at Law
 
         Suite 102 Executive Square
 
         400 Main Street
 
         Davenport, Iowa 52801
 
         
 
 
            
 
 
 
 
 
 
 
 
 
 
 
            9998
 
            Filed January 31, 1991
 
            WRM
 
            Clair R. Cramer
 
            note: the second file number appearing in this decision was 
 
            added after the deputy's decision that found a second 
 
            injury; thus, there is only one deputy decision 
 
            corresponding to this appeal decision, found under #916715
 
            before the iowa industrial commissioner
 
            ____________________________________________________________
 
                      :
 
            GAYLE FOOR,    :
 
                      :
 
                 Claimant, :
 
                      :
 
            vs.       :
 
                      :   File Nos. 946067/916715
 
            LOUIS RICH,    :
 
                      :         A P P E A L
 
                 Employer, :
 
                      :       D E C I S I O N
 
            and       :
 
                      :
 
            THE HARTFORD,  :
 
                      :
 
                 Insurance Carrier,  :
 
                 Defendants.    :
 
            ___________________________________________________________
 
            
 
            
 
            9998
 
            
 
                 Summary affirmance of deputy's decision filed August 
 
            16, 1990.
 
            
 
 
            
 
            Page   1
 
            
 
            
 
            
 
            
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            GAYLE FOOR,                   :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :      File No.  916715
 
            LOUIS RICH,                   :
 
                                          :  A R B I T R A T I O N
 
                 Employer,                :
 
                                          :      D E C I S I O N
 
            and                           :
 
                                          :
 
            HARTFORD INSURANCE COMPANY,   :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
                                   INTRODUCTION
 
            
 
                 This is a proceeding in arbitration brought by Gayle 
 
            Foor, claimant, against Louis Rich, employer, and The 
 
            Hartford, insurance carrier, defendants, for an alleged 
 
            injury which occurred on or about May 8, 1988.  Claimant was 
 
            represented by David N. Newell.  Defendants were represented 
 
            by Larry L. Shepler.  A hearing was held in Davenport, Iowa, 
 
            on July 31, 1990, and the case was fully submitted at the 
 
            close of the hearing.  Although claimant's attorney expected 
 
            claimant and her husband to appear and testify, neither 
 
            claimant nor her husband appeared at the hearing.  
 
            Claimant's attorney stated on the record that he believed he 
 
            had probably somehow failed to properly notify claimant and 
 
            her husband of the time, date and place of the hearing.  The 
 
            record consists of joint exhibits A through E; claimant's 
 
            exhibit 1; and the testimony of Linda Riley, employer's 
 
            safety and security supervisor.  Claimant's deposition, 
 
            marked claimant's exhibit 1, was admitted into evidence over 
 
            the objection of defendants' counsel.  The deputy ordered a 
 
            transcript of the hearing.  Defendants' attorney submitted 
 
            an excellent brief.  Claimant's attorney did not file a 
 
            brief.
 
            
 
                                   stipulations
 
            
 
                 The parties stipulated to the following matters:
 
            
 
                 That an employer-employee relationship existed between 
 
            claimant and employer at the time of the alleged injury.
 
            
 
                 That the rate of compensation, in the event of an award 
 
            of benefits, is $171.15 per week.
 
            
 
                 That claimant's entitlement to medical benefits has 
 
            been or will be paid by defendants.
 
            
 
                 That defendants seek no credit for either employee 
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            nonoccupational group health plan benefits or workers' 
 
            compensation benefits paid to claimant prior to hearing.
 
            
 
                 That there are no bifurcated claims.
 
            
 
                 The issue of credit under Iowa Code section 85.38(2), 
 
            as shown on the hearing assignment order, was withdrawn by 
 
            defendants at the time of the hearing.
 
            
 
                 The issue of medical benefits under Iowa Code section 
 
            85.27, as designated on the hearing assignment order, was 
 
            withdrawn by claimant at the time of the hearing.
 
            
 
                 That even though the written prehearing report shows 
 
            that causal connection and entitlement to temporary 
 
            disability are issues in this case, nevertheless, claimant's 
 
            counsel stated near the end of the hearing that claimant 
 
            makes no claim for temporary disability benefits because 
 
            claimant was fully paid up until the time of her 
 
            termination.
 
            
 
                                      issues
 
            
 
                 The parties submitted the following issues for 
 
            determination at the time of the hearing:
 
            
 
                 Whether claimant sustained an injury on or about May 8, 
 
            1988, which arose out of and in the course of employment 
 
            with employer.
 
            
 
                 Whether the injury was the cause of permanent 
 
            disability.
 
            
 
                 Whether claimant is entitled to permanent disability 
 
            benefits, and if so, the nature and extent of benefits to 
 
            which she is entitled.
 
            
 
                                 findings of fact
 
            
 
                 It is determined that claimant did sustain an injury on 
 
            or about May 8, 1988, which arose out of and in the course 
 
            of employment when she developed paronychial infection and 
 
            subungual infection of the left middle finger.  It is also 
 
            determined that claimant sustained an injury which arose out 
 
            of and in the course of employment to her fingers, hands, 
 
            wrists and forearms of both upper extremities on October 27, 
 
            1988, when it was first diagnosed.
 
            
 
                 In her deposition, claimant described, "Then my left 
 
            hand, it would be the middle finger, when I was working one 
 
            day it swelled up very big and almost looked like it was 
 
            smashed.  The nail was black and blue and it was white 
 
            around it and it was very large."  (claimant's exhibit 1, 
 
            page 14).  The exact date that this was reported to employer 
 
            is obliterated by a punch hole for a binder, but it appears 
 
            to be on or about May 6 or 8, 1988 (ex. B, p. 11).  
 
            
 
                 Employer sent claimant to William Catalona, M.D., an 
 
            orthopedic surgeon, who further referred claimant to the 
 
            University of Iowa Hospitals and Clinics.  The company's 
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            medical record for June 8, 1988, reflects, "Doctors feel its 
 
            related to the `pinching' motion she does constantly on her 
 
            job." (jt. ex. B, p. 11).  K.C. Madison, M.D., and C.W. 
 
            Love, M.D., at the University of Iowa, diagnosed onycholysis 
 
            and subungual debris of the left index and long finger.  
 
            They noted that claimant uses the thumb, index finger and 
 
            third finger which is protected by a steel mesh glove to 
 
            pinch the meat while she trims it with her dominant right 
 
            hand and arm.  They diagnosed, "Probable traumatic 
 
            onycholysis and nail changes." (jt. ex. D, p. 1).  These 
 
            doctors stated in a letter to Dr. Catalona on June 9, 1988, 
 
            "The changes of onycholysis and subungual debris are most 
 
            probably due to minor repetitive trauma." (jt. ex. D, p. 2).  
 
            
 
                 Claimant was then referred from the dermatology 
 
            department to the orthopedic department where claimant was 
 
            examined on June 16, 1988, by William F. Blair, M.D., and 
 
            Dr. Longnecker, (full name unknown).  They found no 
 
            erythema, swelling or limitation of range of motion in the 
 
            left hand.  X-rays appeared normal.  They diagnosed, 
 
            "Assessment:  Overuse syndrome with arthralgias involving 
 
            the PIP and DIP joint of the left long finger and the DIP's 
 
            of the left ring and small fingers."  (jt. ex. D, p. 3).  
 
            They recommended medications and rotating jobs in the 
 
            factory.  Claimant also mentioned a history of paresthesias 
 
            involving the middle three fingers on her right hand.  A 
 
            Tinel's test and Phalen's test were negative.  They stated 
 
            that she was asymptomatic at the time of their examination 
 
            (ex. D, p. 3).
 
            
 
                 Claimant testified by deposition that her job on the 
 
            white meat trim line and the job of cutting turkey tails 
 
            were repetitive and continuous (cl. ex. 1, pp. 10 and 28).  
 
            Claimant returned to see Dr. Blair on October 27, 1988, at 
 
            which time he diagnosed cumulative trauma syndrome.  He 
 
            advised her to seek alternative employment, preferably in a 
 
            clerical or secretarial position (ex. D, pp. 4 & 5).  In his 
 
            deposition, Dr. Blair stated, "Well, I thought that her work 
 
            history and her description of the type of work that she was 
 
            doing and the duration that she had been doing that work was 
 
            relevant." (jt. ex. A, p. 8).  He accepted her subjective 
 
            complaints as true, but found no objective pathological 
 
            condition except for the pain (jt. ex. K pp. 9-18).  He said 
 
            that cumulative trauma disorder is most commonly experienced 
 
            in people who are involved in highly repetitive and 
 
            sometimes stressful occupations (jt. ex. A, p. 19).  He 
 
            agreed that psychosocial stress would compound the situation 
 
            (jt. ex. A, p. 20).  At the time of this injury and 
 
            treatment, claimant had financial problems, was returning to 
 
            stressful factory work from babysitting, was involved in a 
 
            divorce proceeding, her 14-year-old daughter was the victim 
 
            of a physical assault and was involved in a criminal lawsuit 
 
            over that, and claimant was charged by employer with 
 
            absenteeism.
 
            
 
                 Dr. Blair conceded that he did find that claimant also 
 
            suffered from a snapping of the ulnar nerve over the medial 
 
            epicondyle, but he did not attribute it to her employment 
 
            and did not consider it disabling (jt. ex. A, p. 21).  He 
 
            described it as a subluxing ulnar nerve (jt. ex. A, p. 29).  
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
            Dr. Blair did not think that placing restrictions on 
 
            claimant's work or prescribing physical therapy would be of 
 
            any assistance (jt. ex. A, pp. 20 & 21).  He did grant that 
 
            even though he had no objective pathological medical 
 
            findings that, nevertheless, claimant's perception of her 
 
            pain had evolved and worsened in between his two 
 
            examinations (ex. A, pp. 32-34).
 
            
 
                 As for causal connection of the employment to the 
 
            injury, Dr. Blair testified:
 
            
 
                 A.  It's extremely rare to see this type of pain 
 
                 syndrome in a patient who doesn't come out of an 
 
                 industrial environment in which they've been doing 
 
                 repetitive high stress work so in that sense, yes, 
 
                 I think it's pretty clear that her work was a 
 
                 contributing factor.
 
            
 
                 Q.  So there is definitely a clear causal 
 
                 relationship between the work that she was doing 
 
                 and the condition that you found?
 
            
 
                 A.  Yes, I believe that's true.
 
            
 
            (joint exhibit A, page 34).
 
            
 
                 Claimant did not prove that the subluxation of the 
 
            ulnar nerve at the right elbow was caused by her employment.  
 
            Claimant did prove that the injury extends beyond her 
 
            fingers, hands and wrists to the arms (jt. ex. D, pp. 3-5).  
 
            Even though the paronychia first developed and was noted on 
 
            or about May 8, 1988, claimant testified by her deposition 
 
            that bilateral hand complaints developed shortly after she 
 
            started to work for employer in February 1988 (cl. ex. 1, 
 
            pp. 9 and 14-23).  Dr. Catalona's records on September 12, 
 
            1988, reflect that claimant reported, "Pain both wrists & 
 
            left mid. & index fings..." (jt. ex. C, p. 6).  Also on 
 
            September 12, 1988, he recommended alternate work, no other 
 
            treatment will help, because of pain in both wrists (ex. C, 
 
            p. 5).  
 
            
 
                 The company medical records show that claimant 
 
            complained of pain in both hands and arms and fingers on 
 
            October 3, 1988 ( jt. ex. B, p. 6).  
 
            
 
                 Doctors Blair and Longnecker diagnosed overuse syndrome 
 
            with arthralgias involving the PIP and DIP joint of the left 
 
            long finger and the DIP's of the left ring and small fingers 
 
            on June 16, 1988 (Jt. ex. D, p. 3).  Dr. Blair stated that 
 
            claimant indicated the location of her pain on October 27, 
 
            1988 was in the fingers, palms, wrists and forearm areas of 
 
            both upper extremities.  She claimed that the pain tends to 
 
            shoot up her forearm.  He did find tenderness to palpitation 
 
            in all of these areas and in the region of the medial 
 
            epicondyle (jt. ex. D, p. 4).  
 
            
 
                 Therefore, it is determined that claimant has sustained 
 
            a bilateral injury to both the right and left upper 
 
            extremity which occurred at the same time pursuant to Iowa 
 
            Code section 85.34(2)(s) at the time it was diagnosed by Dr. 
 

 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
            Blair on October 27, 1988.  
 
            
 
                causal connection-permanent disability-entitlement
 
            
 
                 Dr. Blair testified that based upon the AMA Guides to 
 
            the Evaluation of Permanent Impairment, which emphasized 
 
            objective deficits that claimant has no objective deficits 
 
            (jt. ex. A, pp. 36 & 37).  He then continued to say:
 
            
 
                    Therefore, any impairment ratings relative to 
 
                 her case become by definition extremely subjective 
 
                 and I don't know the right or wrong answer to 
 
                 doing impairment ratings in this situation.  
 
                 Generally I define an impairment rating somewhere 
 
                 in the range of zero to 10 percent in this type of 
 
                 situation based on the patient's complaints of 
 
                 pain alone.
 
            
 
            (joint exhibit A, p. 37)
 
            
 
                 Dr. Blair added that this was a permanent impairment 
 
            and that he believed that her complaints were genuine and 
 
            that she had a genuine pain experience (jt. ex. A, p. 37).
 
            
 
                 Dr. Blair was chosen by Dr. Catalona who was chosen by 
 
            defendants.  This impairment rating is not rebutted, contro
 
            verted, contradicted or refuted by any other medical 
 
            evaluator.
 
            
 
                 Therefore, it is determined that based upon claimant's 
 
            testimony, Dr. Blair's testimony and impairment rating, and 
 
            agency expertise [Iowa Administrative Procedure Act 
 
            17A.14(5)], that claimant has sustained a 5 percent 
 
            permanent impairment to each upper extremity that occurred 
 
            simultaneously.  Iowa Code section 85.34(2)(s).  Five 
 
            percent of each extremity combines to 10 percent of to the 
 
            body as a whole.  AMA Guides to the Evaluation of Permanent 
 
            Impairment, third edition, combined values chart page 246.
 
            
 
                 Employer offered claimant several opportunities at 
 
            light duty which enabled her to work at full pay in spite of 
 
            her limitations.  She refused to perform the last 
 
            opportunity stating that she was unable to perform the work 
 
            because of the hours and transportation problems.  
 
            Therefore, employer found it necessary to terminate 
 
            claimant.  Claimant's attorney did concede that claimant 
 
            made no claim for temporary disability benefits because 
 
            employer did offer claimant several light duty jobs, all of 
 
            which claimant performed and for which she received full 
 
            pay, up until the time of her termination.  Therefore, the 
 
            commencement date for permanent partial disability benefits 
 
            is October 27, 1988 when claimant was diagnosed with 
 
            bilateral upper extremity problems by Dr. Blair.
 
            
 
                                conclusions of law
 
            
 
                 Wherefore, based on the evidence presented and the 
 
            foregoing and following principles of law, these conclusions 
 
            of law are made:
 
            
 

 
            
 
            Page   6
 
            
 
            
 
            
 
            
 
                 That claimant did not sustain the burden of proof by a 
 
            preponderance of the evidence that she sustained an injury 
 
            to her right elbow which arose out of and in the course of 
 
            employment.
 
            
 
                 That claimant sustained an injury which arose out of 
 
            and in the course of employment on or about May 8, 1988, to 
 
            the left middle finger and another injury on October 27, 
 
            1988 to the fingers, hands, wrists and arms of both upper 
 
            extremities.  Iowa Code section 85.3; 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).
 
            
 
                 That claimant did sustain the burden of proof by a 
 
            preponderance of the evidence that she sustained bilateral 
 
            injuries to both upper extremities at the same time on 
 
            October 27, 1988.  Iowa Code section 85.34(2)(s).
 
            
 
                 That the injury to the left middle finger was not the 
 
            cause of permanent disability.
 
            
 
                 That claimant sustained the burden of proof by a 
 
            preponderance of the evidence that the injury to the upper 
 
            extremities on October 27, 1988, was the cause of permanent 
 
            disability.  Bodish v. Fischer, Inc., 257 Iowa 516, 133 
 
            N.W.2d 867 (1965); Lindahl v. L.O. Boggs Co., 236 Iowa 296 
 
            18 N.W.2d 607 (1945).
 
            
 
                 That claimant sustained the burden of proof by a 
 
            preponderance of the evidence that she sustained a 5 percent 
 
            permanent impairment to each upper extremity and that these 
 
            impairments combine to 10 percent of 500 weeks.  Iowa Code 
 
            section 85.34(2)(s); AMA Guides to the Evaluation of 
 
            Permanent Impairment, third edition, combined values chart 
 
            page 246.  
 
            
 
                 That claimant has sustained the burden of proof by a 
 
            preponderance of the evidence that she is entitled to 50 
 
            weeks of permanent partial disability benefits.  Iowa Code 
 
            section 85.34(2)(s).
 
            
 
                                      order
 
            
 
                 THEREFORE, IT IS ORDERED:
 
            
 
                 That defendants pay to claimant fifty (50) weeks of 
 
            permanent partial disability benefits at the rate of one 
 
            hundred seventy-one and 15/100 dollars ($171.15) per week in 
 
            the total amount of eight thousand five hundred fifty-seven 
 
            and 50/100 dollars ($8,557.50) commencing on October 27, 
 
            1988.
 
            
 
                 That all accrued benefits are to be paid in a lump sum.
 
            
 
                 That interest will accrue pursuant to Iowa Code section 
 
            85.30. 
 
            
 
                 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.
 

 
            
 
            Page   7
 
            
 
            
 
            
 
            
 
            
 
                 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 for the 
 
            bilateral upper extremity injury of October 27, 1988.
 
            
 
                 That defendants are not obligated to file a first 
 
            report of injury for the possible injury to the right ulnar 
 
            nerve which was neither alleged in the petition nor found to 
 
            be an injury arising out of and in the course of employment, 
 
            even though it was suggested by the evidence introduced.
 
            
 
                 Signed and filed this ____ day of August, 1990.
 
            
 
            
 
            
 
            
 
                                          ______________________________
 
                                          WALTER R. McMANUS, JR.
 
                                          DEPUTY INDUSTRIAL COMMISSIONER    
 
            
 
            
 
            Copies to:
 
            
 
            Mr. David Newell
 
            Attorney at Law
 
            323 E. 2nd St
 
            PO Box 175
 
            Muscatine, Iowa  52761
 
            
 
            Mr. Larry L. Shepler
 
            Attorney at Law
 
            STE 102 Executive Square
 
            400 Main St
 
            Davenport, Iowa  52801
 
            
 
            
 
            
 
                 
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                          1106; 1401; 1402.20;
 
                                          1402.30; 1402.40
 
                                          Filed August 16, 1990
 
                                          Walter M. McManus, Jr.
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            GAYLE FOOR,                   :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :      File No.  916715
 
            LOUIS RICH,                   :
 
                                          :  A R B I T R A T I O N
 
                 Employer,                :
 
                                          :      D E C I S I O N
 
            and                           :
 
                                          :
 
            HARTFORD INSURANCE COMPANY,   :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
            1106; 1401; 1402.20; 1402.30; 1402.40
 
            
 
            The evidence disclosed three injuries even though the 
 
            petition alleged one cumulative injury to the upper 
 
            extremities.
 
            Claimant sustained an infection injury on May 8, 1988 to the 
 
            left middle finger but it was not the cause of any temporary 
 
            or permanent disability.
 
            Claimant did not prove that the subluxation of the ulnar 
 
            nerve in her right elbow was caused by her employment.
 
            Claimant did prove a bilateral injury to the fingers, 
 
            wrists, hands and arms of both upper extremities on a 
 
            separate date later than the original alleged injury date 
 
            and was awarded benefits under Iowa Code section 
 
            85.34(2)(s).
 
            
 
 
         
 
         Page   1
 
         
 
         
 
         
 
         
 
         
 
         
 
         
 
         
 
                     before the iowa industrial commissioner
 
         _________________________________________________________________
 
                                         :
 
         DIANNE MEINHARDT,               :
 
                                         :
 
              Claimant,                  :       File No. 916721
 
                                         :
 
         vs.                             :          A P P E A L
 
                                         :
 
         TODD UNIFORM SERVICES,          :        D E C I S I O N
 
                                         :
 
              Employer,                  :
 
              Self-Insured,              :
 
              Defendant.                 :
 
         _________________________________________________________________
 
         
 
              The record, including the transcript of the hearing before 
 
         the deputy and all exhibits admitted into the record, has been 
 
         reviewed de novo on appeal.
 
         
 
                                      issue
 
         
 
              Those portions of the proposed agency decision pertaining to 
 
         issues not raised on appeal are adopted as a part of this appeal 
 
         decision.  The issue raised on appeal is whether the deputy erred 
 
         in ruling that claimant failed to give notice within 90 days of 
 
         the September 20, 1988 injury date, that she sustained a work 
 
         injury or at least should have realized the probable compensable 
 
         character at the time.
 
         
 
                                 findings of fact
 
         
 
              The findings of fact contained in the proposed agency 
 
         decision filed April 24, 1991 are adopted as final agency action.
 
         
 
                                conclusions of law
 
         
 
              The conclusions of law contained in the proposed agency 
 
         decision filed April 24, 1991 are adopted as set forth below.  
 
         Segments designated by asterisks (*****) indicate portions of the 
 
         language from the proposed agency decision that have been 
 
         intentionally deleted and do not form a part of this final agency 
 
         decision.  Segments designated by brackets ([ ]) indicate 
 
         language that is in addition to the language of the proposed 
 
         agency decision.
 
         
 
              Section 85.23 of the Iowa Code provides:
 
         
 
                 Unless the employer or the employer's representative 
 
              shall have actual knowledge of the occurrence of an 
 
              injury received within ninety days from the date of the 
 
              occurrence of the injury, or unless the employee or 
 
              someone on the employee's behalf or a dependent or 
 
              someone on the dependent's behalf shall give notice 
 
              thereof to the employer within ninety days from the 
 
              date of the occurrence of the injury, no compensation 
 

 
         
 
         Page   2
 
         
 
         
 
         
 
         
 
         
 
         
 
         
 
              shall be allowed.
 
         
 
              Failure to give notice if an affirmative defense which the 
 
         employer must prove by a preponderance of the evidence.  DeLong 
 
         v. Highway Commission, 229 Iowa 700, 295 N.W. 91 (1940).  Mefferd 
 
         v. Ed Miller & Sons, Inc., Thirty-third Biennial Report of the 
 
         Industrial Commissioner 191 (Appeal Decision 1977).
 
         
 
              The time period contemplated in Iowa Code section 85.23 does 
 
         not begin to run until the claimant has knowledge of the nature 
 
         of his disability.  Jacques v. Farmers Lbr. & Sup. Co., 242 Iowa 
 
         548, 47 N.W.2d 236, 239 (1951).
 
         
 
              An employer's actual knowledge of occurrence of injury must 
 
         include some information that the injury is work-connected in 
 
         order to satisfy the alternative notice of claim requirement.  
 
         Robinson v. Department of Transp., 296 N.W.2d 809, 812 (Iowa 
 
         1980).  The interpretation in Robinson was confirmed in Doerfer 
 
         Division of CCA v. Nicol, 359 N.W.2d 428, 435 (Iowa 1984).
 
         
 
              A claimant's duty to give notice of injury arises when the 
 
         claimant should recognize the nature, seriousness and probable 
 
         compensable character of his injury or disease.  The 
 
         reasonableness of claimant's conduct is to be judged in light of 
 
         his education and intelligence.  Claimant must know enough about 
 
         the injury or disease to realize that it is both serious and 
 
         work-connected, but positive medical information is unnecessary 
 
         if he has information from any source which puts him on notice of 
 
         its probable compensability.  Robinson, 296 N.W.2d 809, 812.
 
         
 
              The purpose of the 90 day notice or actual knowledge 
 
         requirement is to give the employer an opportunity to timely 
 
         investigate the acts of the injury.  Id.:  Knipe v. Skelgas Co., 
 
         229 Iowa 740, 748, 294 N.W. 880, 884 (1940); Hobbs v. Sioux City, 
 
         231 Iowa 860, 2 N.W.2d 275 (1942); Dillinger v. City of Sioux 
 
         City, 368 N.W.2d 176 (Iowa 1985).  Koopmans v. Iowa Electric 
 
         Light and Power Company, (Appeal Decision dated December 30, 
 
         1981) on appeal to Iowa Supreme Court.
 
         
 
              The word "compensable" in the workers' compensation notice 
 
         context is not used to connote legal knowledge that a claim is 
 
         within the workers' compensation act.  Rather, "compensable" 
 
         means that the disabling injury was work connected.  Quaker Oats 
 
         Co. v. Miller, 370 So.2d 1363, 1366 (Miss. 1979).
 
         
 
              Unless a statute that imposes a period of limitations 
 
         expressly authorizes exceptions for extenuating circumstahat claimant's 
 
         condition was not due to an injury or sickness arising out of his 
 
         patient's employment.  The attending physician's statement was 
 
         completed subsequent to April 25, 1989, the date marked as 
 
         claimant's last visit with Dr. Saathoff.  Therefore, at least as 
 
         of April 25, 1989, claimant's treating podiatrist was not 
 
         claiming the injury was due to a work injury on September 20, 
 
         1988.  It was later when the physician changed his opinion.  More 
 
         than 90 days had transpired since the alleged injury date.  
 
         However, in the same period, claimant had made application for 
 
         long-term disability benefits for an injury which she claimed was 
 
         nonwork related.  The filing of the workers' compensation claim 
 
         seems to be an after thought.
 
         
 
              *****
 
         
 
              [Iowa Code section 85.23 requires an injured worker to give 
 
         notice of the work injury to his or her employer within 90 days 
 
         of the injury.  Claimant was compelled to leave work because of 
 
         her foot condition on December 28, 1988.  Under McKeever Custom 
 
         Cabinets v. Smith, 379 N.W.2d 368 (Iowa 1985), claimant's date of 
 
         injury for a cumulative injury is the date on which claimant's 
 
         injury compels her to leave work.  
 
         
 
              Claimant reported her foot condition to her supervisors on 
 
         September 20, 1988, which was prior to her leaving work.  
 
         However, the notice must convey information to the employer not 
 
         only that an injury has occurred, but that the injury was 
 
         possibly work related.  Robinson v. Dept. of Transportation, 296 
 
         N.W.2d 809 (Iowa 1980).  Claimant did not give any indication to 
 
         her employers on September 20, 1988, that the foot condition was 
 
         caused by her work.  
 
         
 
              However, claimant's injury is subject to the discovery rule.  
 
         The time period contemplated by Iowa Code section 85.23 does not 
 
         begin to run until the claimant, as a reasonable person, should 
 

 
         
 
         Page   4
 
         
 
         
 
         
 
         
 
         
 
         
 
         
 
         recognize the nature, seriousness, and probable compensable 
 
         nature of her injury.  Doerfer Division of CCA v. Nicol, 359 
 
         N.W.2d 428, 435 (Iowa 1984); Robinson, 296 N.W.2d 809.  Utilizing 
 
         December 28, 1988, the last day claimant worked, as the date of 
 
         injury, 90 days from that date would be approximately April 1, 
 
         1989.  Claimant's doctors at that point in time were advising her 
 
         that her foot condition was of unknown etiology or not work 
 
         related.  Also during this period claimant sought long term 
 
         disability benefits, which required her assertion the injury was 
 
         not work related.  Coupled with the medical evidence available to 
 
         claimant at that time, claimant did not then know and could not 
 
         have known her condition was work related.
 
         
 
              Claimant was certainly aware her condition was work related 
 
         when Dr. Saathoff so stated in his deposition on January 26, 
 
         1990.  By then, claimant had previously filed, on August 4, 1989, 
 
         her petition and original notice, clearly putting defendant on 
 
         notice that she felt her injury was work related.  
 
         
 
              A failure to comply with the notice requirement of 85.23 is 
 
         an affirmative defense.  Defendant bears the burden of proof to 
 
         show a failure to comply with the section.  Under the discovery 
 
         rule, claimant's 90 days under Iowa Code section 86.23 does not 
 
         begin to run until claimant knows or should have known that her 
 
         condition was both serious and work related.  The record does not 
 
         show that claimant was on notice her condition was work related 
 
         until Dr. Saathoff so stated in his deposition.  By then, 
 
         defendant had received notice that the injury was work related 
 
         via the petition filed on August 4, 1989.  Defendant has failed 
 
         to carry its burden to show that this notice was beyond 90 days 
 
         from when claimant realized or should have realized her injury 
 
         was work related.  Claimant has complied with the notice 
 
         requirement of Iowa Code section 85.23. 
 
         
 
              It is not necessary to remand the case for further 
 
         proceedings.  The parties presented their evidence at the 
 
         hearing, and the record is complete for purposes of this de novo 
 
         review. 
 
         
 
              An initial issue is whether claimant's current foot 
 
         condition is causally connected to her alleged cumulative work 
 
         injury.  Dr. Saathoff originally stated that the condition was 
 
         not work related.  Dr. Dietz opined that the condition was of 
 
         unknown causation.  Dr. Riggins stated the condition was probably 
 
         not work related, although Dr. Riggins conceded that standing on 
 
         a cement floor could possibly cause claimant's condition. 
 
         
 
              The only evidence of causal connection in the record is Dr. 
 
         Saathoff's deposition statement that claimant's condition was 
 
         caused by her work.  This statement was given some eight months 
 
         after Dr. Saathoff last examined claimant, and it is contradicted 
 
         by several prior assessments by Dr. Saathoff prior to the 
 
         initiation of litigation that the condition was not work related.  
 
         It is also contradicted by the opinions of Dr. Dietz and Dr. 
 
         Riggins.  Dr. Saathoff acknowledged that claimant had a 
 
         congenital foot bone anomaly that claimant told him had been 
 
         bothering her for a period of 20 years.  Claimant's foot 
 

 
         
 
         Page   5
 
         
 
         
 
         
 
         
 
         
 
         
 
         
 
         condition and scarring from the removal of warts from her foot at 
 
         age 16 are as likely or more likely causes of her present 
 
         condition.
 
         
 
              Claimant bears the burden of proof on this issue.  The 
 
         greater weight of the evidence indicates that claimant has failed 
 
         to carry her burden of proof to show that her present foot 
 
         condition is caused by her work activity.]
 
         
 
              WHEREFORE, the decision of the deputy is affirmed and 
 
         modified.
 
         
 
                                      order
 
         
 
              THEREFORE, it is ordered:
 
         
 
              That claimant takes nothing from these proceedings.
 
         
 
              That claimant shall pay the costs of the appeal including 
 
         the transcription of the hearing.   
 
         
 
              Signed and filed this ____ day of February, 1993.
 
         
 

 
         
 
         Page   6
 
         
 
         
 
         
 
         
 
         
 
         
 
         
 
         
 
         
 
         
 
                                       ________________________________
 
                                                BYRON K. ORTON
 
                                           INDUSTRIAL COMMISSIONER
 
         
 
         Copies To:
 
         
 
         Mr. James P. Hoffman
 
         Attorney at Law
 
         Middle Road, Box 1087
 
         Keokuk, Iowa 52632
 
         
 
         Mr. Charles O. Frazier
 
         Attorney at Law
 
         206 N. 7th St.
 
         Keokuk, Iowa 52632
 
         
 
 
            
 
 
 
 
 
 
 
 
 
 
 
            2401; 5-1108.50
 
            Filed February 26, 1993
 
            Byron K. Orton
 
            MAM
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
            _____
 
                                            :
 
            DIANNE MEINHARDT,               :
 
                                            :
 
                 Claimant,                  :       File No. 916721
 
                                            :
 
            vs.                             :          A P P E A L
 
                                            :
 
            TODD UNIFORM SERVICES,          :        D E C I S I O N
 
                                            :
 
                 Employer,                  :
 
                 Self-Insured,              :
 
                 Defendant.                 :
 
            ____________________________________________________________
 
            _____
 
            
 
            2401
 
            Claimant had a congenital foot condition that was a possible 
 
            cause for her condition, and all of claimant's doctors told 
 
            claimant her condition was not work related.  Held that 90 
 
            day period under section 85.23 did not begin to run under 
 
            discovery rule until claimant had medical information that 
 
            her condition was work related.  Claimant's action was not 
 
            barred by section 85.23.
 
            
 
            5-1108.50
 
            Claimant failed to prove a causal connection between her 
 
            foot condition and her work activity where two doctors said 
 
            it was not caused by work; one doctor said it was not but 
 
            some symptoms could "possibly" be caused by work; and the 
 
            only doctor in the record stating a causal connection did so 
 
            only after litigation was begun and after repeatedly denying 
 
            a causal connection in numerous earlier reports.
 
            
 
 
            
 
            Page   1
 
            
 
            
 
            
 
            
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            DIANNE MEINHARDT,             :
 
                                          :          File No. 916721
 
                 Claimant,                :
 
                                          :       A R B I T R A T I O N
 
            vs.                           :
 
                                          :          D E C I S I O N
 
            TODD UNIFORM SERVICES,        :
 
                                          :
 
                 Employer,                :
 
                 Self-Insured,            :
 
                 Defendant.               :
 
            ___________________________________________________________
 
            
 
            
 
                              statement of the case
 
            
 
                 This is a proceeding in arbitration upon the petition 
 
            of claimant, Dianne Meinhardt, against her employer Todd 
 
            Uniform Services, self-insured employer, defendant.  The 
 
            case was heard on April 4, 1991, in Burlington, Iowa at the 
 
            Des Moines County Courthouse.  The record consists of the 
 
            testimony of claimant and the testimony of Orville Clark 
 
            Eads.  Additionally, the record consists of joint exhibits 
 
            1-16.
 
            
 
                                      issues
 
            
 
                 The issues to be determined are:  1)  whether there is 
 
            a causal relationship between the alleged injury and the 
 
            disability; 2) whether claimant is entitled to temporary 
 
            disability/healing period benefits or permanent partial 
 
            disability benefits; and, 3) whether claimant tendered 
 
            proper notice to defendant pursuant to section 85.23.
 
            
 
                                 findings of fact
 
            
 
                 This deputy, having heard the testimony and considered 
 
            all the evidence, finds:
 
            
 
                 Claimant is 37 years old.  She commenced her employment 
 
            with defendant in 1981.  Initially, she was hired as a 
 
            laborer where she was required to fold and press towels 
 
            while she stood on cement floors for 7 1/2 hours per day.  
 
            Then claimant was assigned to the wash floor where she stood 
 
            8 hours per day while she carried loads of clothes, weighed 
 
            them, and placed the loads into machines.  Later, claimant 
 
            transferred to the position of route runner.  She stood on 
 
            cement floors for 9 hours per day.  Finally, claimant became 
 
            a route driver.
 
            
 
                 Claimant had experienced previous "c-warts" on her feet 
 
            when she was 16 years old.  At that time the warts were 
 
            removed.  Claimant testified she had no other complications 
 
            until 1987 or 1988 when she again experienced problems with 
 
            her feet.  Over time, the problems persisted until September 
 
            20, 1988.  The problem became severe enough for claimant to 
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            verbally report her condition to Roger Craig, immediate 
 
            supervisor, and to Orville Eads, general manager.
 
            
 
                 Claimant sought medical attention from Mark A. 
 
            Saathoff, D.P.M., on November 28, 1988.  Dr. Saathoff, in 
 
            his report of June 28, 1989, diagnosed claimant's condition 
 
            as:
 
            
 
                 Patient was not treated during period 5-1-88 to 
 
                 8-1-88; however, was treated 11-28, 12-12, 12-16, 
 
                 12-29-88, 1-3; 1-10, 1-20, 1-27-89, 2-13, 2-16, 
 
                 2-17, 2-24-89, 3-3, 3-20, 3-22-89, 4-25-89.
 
            Diagnoses: (733.99)(726.91) Hypertrophy of 2nd & 
 
            5th metatarsal heads bilateral and head of 
 
            proximal and base of distal phalanges hallux 
 
            bilateral; (735.4) Hammer toe, 5th toe, right.
 
            
 
                 Patient underwent surgical intervention December 
 
                 29, 1988 on right foot consisting of Plantar 
 
                 condylectomy 2nd & 5th metatarsal heads, [sic]  
 
                 Resection hypertrophied medial aspects head 
 
                 proximal and base distal phalanges hallux and 
 
                 resection head proximal phalanx 5th toe.  Patient 
 
                 underwent surgical intervention February 16, 1989 
 
                 on left foot consisting of Plantar conylectomy 
 
                 [sic] 2nd & 5th metatarsal heads and resection 
 
                 hypertrophied medial aspects head proximal and 
 
                 base distal phalanges, hallux.
 
            
 
                 Patient subsequently developed post-operative adhe
 
                 sions, capsulitis, tendonitis; 2nd 
 
                 metatarso-phalangeal articulation bilateral with 
 
                 metatarsalgia.
 
            
 
                 Patient underwent multiple physical therapy 
 
                 modalities and evaluation by Dr. Dietz in Iowa 
 
                 City; University Hospital on April 17, 1989.  The 
 
                 patient's course of recovery and return to work is 
 
                 undeterminable.  However, I would anticipate 
 
                 restricted work duties with partial limitations 
 
                 with return to work; including avoidance of duties 
 
                 requiring prolonged ambulation or pushing off with 
 
                 the toes.  If I can be of any further assistance, 
 
                 please do not hesitate to call on me.
 
            
 
                 Dr. Saathoff testified by way of deposition that 
 
            claimant was impaired by 70 percent to each foot.  The 
 
            pediatrist testified he last examined claimant in December 
 
            of 1989.
 
            
 
                 Claimant also treated with Fred Dietz, M.D., at the 
 
            University of Iowa.  Dr. Dietz diagnosed claimant's 
 
            condition as:
 
            
 
                 Chronic foot pain of unknown etiology.  Previously 
 
                 it was thought that the patient's foot pain was 
 
                 caused by scar hypertrophy.
 
            
 
                 Claimant engaged in conservative treatment after her 
 
            diagnosis was made.  She was provided with stretching 
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            exercises, new shoe inserts and a different medication.  
 
            Other than post surgical changes, claimant's x-rays were 
 
            normal.
 
            
 
                 For purposes of rendering an evaluation, claimant saw 
 
            Keith Riggins, M.D.  In his reports of December 13, 1989 and 
 
            December 18, 1989, Dr. Riggins opined:
 
            
 
                 Examination of both feet demonstrates well-healed 
 
                 surgical incisions.  Plantar hyperkeratoses are 
 
                 present over the head of the second and fifth 
 
                 metatarsals bilaterally.
 
            
 
                 Ms. Meinhardt suffers from the condition of 
 
                 metatarsalgia secondary to plantar hyperkeratoses 
 
                 which has been resistant to both surgical and 
 
                 conservative modes of treatment.  It is considered 
 
                 unlikely to improve significantly in the future.  
 
                 Ms. Meinhardt should be able to engage in 
 
                 occupational activities where are primarily 
 
                 sedentary in nature and do not require continuous 
 
                 or prolonged standing, but I would certainly not 
 
                 consider her totally disabled.
 
            
 
                     ...
 
            
 
                 The following information is provided regarding 
 
                 the condition of the feet of Dianne L. Meinhardt.
 
            
 
                 Metatarsalgia secondary to plantar hyperkeratoses 
 
                 is a condition which develops as a result of 
 
                 increased prominence of the metatarsal heads in 
 
                 the area of the "ball" of the foot.  The condition 
 
                 is not directly related to her activities at work 
 
                 as separated from activities in general, and more 
 
                 than likely would have developed even in the 
 
                 absence of the described activities at work.
 
            
 
                 Dr. Saathoff released claimant to return to work as of 
 
            May 1, 1989.  She did not return to her position and she was 
 
            terminated effective June 1, 1989.  Following her 
 
            termination, claimant enrolled in college and she has been 
 
            working toward her degree in social work.  Claimant has not 
 
            been employed since leaving the employ of defendant.
 
            
 
                                conclusions of law
 
            
 
                 Section 85.23 of the Iowa Code provides:
 
            
 
                 Unless the employer or the employer's 
 
                 representative shall have actual knowledge of the 
 
                 occurrence of an injury received within ninety 
 
                 days from the date of the occurrence of the 
 
                 injury, or unless the employee or someone on the 
 
                 employee's behalf or a dependent or someone on the 
 
                 dependent's behalf shall give notice thereof to 
 
                 the employer within ninety days from the date of 
 
                 the occurrence of the injury, no compensation 
 
                 shall be allowed.
 
            
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
                 Failure to give notice is an affirmative defense which 
 
            the employer must prove by a preponderance of the evidence.  
 
            DeLong v. Highway Commission, 229 Iowa 700, 295 N.W. 91 
 
            (1940).  Mefferd v. Ed Miller & Sons, Inc., Thirty-Third 
 
            Biennial Report of the Industrial Commissioner 191 (Appeal 
 
            Decision 1977).
 
            
 
                 The time period contemplated in Iowa Code section 85.23 
 
            does not begin to run until the claimant has knowledge of 
 
            the nature of his disability.  Jacques v. Farmers Lbr. & 
 
            Sup. Co., 242 Iowa 548, 47 N.W.2d 236, 239 (1951).
 
            
 
                 An employer's actual knowledge of occurrence of injury 
 
            must include some information that the injury is 
 
            work-connected in order to satisfy the alternative notice of 
 
            claim requirement.  Robinson v. Department of Transp., 296 
 
            N.W.2d 809, 812 (Iowa 1980).  The interpretation in Robinson 
 
            was confirmed in Doerfer Division of CCA v. Nicol, 359 
 
            N.W.2d 428, 435 (Iowa 1984).
 
            
 
                 A claimant's duty to give notice of injury arises when 
 
            the claimant should recognize the nature, seriousness and 
 
            probable compensable character of his injury or disease.  
 
            The reasonableness of claimant's conduct is to be judged in 
 
            light of his education and intelligence. Claimant must know 
 
            enough about the injury or disease to realize that it is 
 
            both serious and work-connected, but positive medical 
 
            information is unnecessary if he has information from any 
 
            source which puts him on notice of its probable 
 
            compensability.  Robinson, supra.
 
            
 
                 The purpose of the 90 day notice or actual knowledge 
 
            requirement is to give the employer an opportunity to timely 
 
            investigate the acts of the injury.  Id.:  Knipe v. Skelgas 
 
            Co., 229 Iowa 740, 748, 294 N.W. 880, 884 (1940); Hobbs v. 
 
            Sioux City, 231 Iowa 860, 2 N.W.2d 275 (1942); Dillinger v. 
 
            City of Sioux City, 368 N.W.2d 176 (Iowa 1985).  Koopmans v. 
 
            Iowa Electric Light and Power Company, (Appeal Decision 
 
            dated December 30, l981) on appeal to Iowa Supreme Court).
 
            
 
                 The word "compensable" in the workers' compensation 
 
            notice context is not used to connote legal knowledge that a 
 
            claim is within the workers' compensation act.  Rather, 
 
            "compensable" means that the disabling injury was work 
 
            connected.  Quaker Oats Co. v. Miller, 370 So.2d 1363, 1366 
 
            (Miss. 1979).
 
            
 
                 Unless a statute that imposes a period of limitations 
 
            expressly authorizes exceptions for extenuating 
 
            circumstances, it must be applied uniformly even though the 
 
            result may be harsh.  Burgess v. Great Plains Bag 
 
            Corporation, 409 N.W.2d 676, 679 (Iowa 1987).
 
            
 
                 A mistake of law is no more an excuse in connection 
 
            with a late compensation claim than anywhere else, unless 
 
            expressly made so by statute.  3 Larson, Workmen's 
 
            Compensation Law, Section 78.47 at 15-334.
 
            
 
                 The initial determination in the instant case, is 
 
            whether claimant has given notice of her claim to her 
 

 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
            employer under section 85.23.  The statute allows for two 
 
            types of notice.
 
            
 
                 The first type of notice is actual knowledge of the 
 
            occurrence of an injury within 90 days.  The second type of 
 
            notice allowed by statute is notice given to the employer by 
 
            the injured employee within 90 days from the date of the 
 
            occurrence of the injury.  Claimant admits no formal written 
 
            notice was tendered to employer.
 
            
 
                 In the instant case, claimant testified that she 
 
            brought her foot condition to the attention of her immediate 
 
            supervisor, Roger Craig, and to the attention of the general 
 
            manager, Orville Eads, on September 21, 1988.  There is no 
 
            evidence that she stated the injury was work related or that 
 
            she conveyed that belief to management.  It was the day 
 
            after the alleged date of injury when her condition was 
 
            discussed.  Claimant did not see Dr. Saathoff until November 
 
            28, 1988.  By claimant's own admission at the hearing, Dr. 
 
            Saathoff did not indicate the problems were even work 
 
            related until his deposition.  Moreover, as of the date the 
 
            physician completed the attending physician's statement, Dr. 
 
            Saathoff had acknowledged that claimant's condition was not 
 
            due to an injury or sickness arising out of his patient's 
 
            employment.  The attending physician's statement was 
 
            completed subsequent to April 25, 1989, the date marked as 
 
            claimant's last visit with Dr. Saathoff.  Therefore, at 
 
            least as of April 25, 1989, defendant's treating podiatrist 
 
            was not claiming the injury was due to a work injury on 
 
            September 20, 1988.  It was later when the physician changed 
 
            his opinion.  More than 90 days had transpired since the 
 
            alleged injury date.  However, in the same period, claimant 
 
            had made application for long-term disability benefits for 
 
            an injury which she claimed was non-work related.  The 
 
            filing of the worker's compensation claim seems to be an 
 
            after thought.
 
            
 
                 Claimant should have realized the probable compensable 
 
            character of her injury or disease within 90 days of the 
 
            September 20, 1988, injury date if, in fact, she had 
 
            sustained a work injury.  Given claimant's education and 
 
            intelligence, it would be reasonable to believe that at 
 
            least walking and standing on cement floors could have 
 
            aggravated claimant's foot condition, and she could have a 
 
            possible workers' compensation claim.
 
            
 
                 Until the petition was filed on June 27, 1989, 
 
            defendant had no indication that claimant was alleging a 
 
            work related injury on September 20, 1988.  In fact, 
 
            defendant-employer had every reason to believe the injury 
 
            was not work related.  Long-term disability benefits were 
 
            claimed based on contrary evidence.  The petition was filed 
 
            nearly nine months after the injury occurred.  Claimant did 
 
            not comply with section 85.23 and there was no excusable rea
 
            son for failing to tender notice.
 
            
 
                                      order
 
            
 
                 THEREFORE, IT IS ORDERED:
 
            
 

 
            
 
            Page   6
 
            
 
            
 
            
 
            
 
                 Claimant takes nothing further from these proceedings.
 
            
 
                 Each party shall pay her/its own costs pursuant to 
 
            section 85.30.
 
            
 
            
 
                 Signed and filed this ____ day of April, 1991.
 
            
 
            
 
            
 
            
 
                                          ______________________________               
 
            MICHELLE A. McGOVERN
 
                                          DEPUTY INDUSTRIAL COMMISSIONER
 
            
 
            Copies To:
 
            
 
            Mr. James P. Hoffman
 
            Attorney at Law
 
            Middle Rd
 
            Box 1087
 
            Keokuk  IA  52632
 
            
 
            Mr. Charles O. Frazier
 
            Attorney at Law
 
            206 N 7th St
 
            Keokuk  IA  52632
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                           5-2800
 
                           Filed April 24, 1991
 
                           MICHELLE A. McGOVERN
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            DIANNE MEINHARDT,             :
 
                                          :          File No. 916721
 
                 Claimant,                :
 
                                          :       A R B I T R A T I O N
 
            vs.                           :
 
                                          :          D E C I S I O N
 
            TODD UNIFORM SERVICES,        :
 
                                          :
 
                 Employer,                :
 
                 Self-Insured,            :
 
                 Defendant.               :
 
            ___________________________________________________________
 
            
 
            
 
            
 
            5-2800
 
            Claimant failed to tender notice pursuant to section 85.23 
 
            within 90 days.
 
            
 
 
         
 
 
 
 
 
 
 
 
 
 
 
         before the iowa industrial commissioner
 
         ____________________________________________________________
 
                                       :
 
         PAUL L. RYERSON,              :
 
                                       :
 
              Claimant,                :
 
                                       :
 
         vs.                           :
 
                                       :        File No. 916736
 
         O & W TRANSPORT, INC.,        :
 
                                       :          A P P E A L
 
              Employer,                :
 
                                       :        D E C I S I O N
 
         and                           :
 
                                       :
 
         TRAVELERS INSURANCE COMPANY,  :
 
                                       :
 
              Insurance Carrier,       :
 
              Defendants.              :
 
         ___________________________________________________________
 
         
 
         The record, including the transcript of the hearing before the 
 
         deputy and all exhibits admitted into the record, has been 
 
         reviewed de novo on appeal.  The decision of the deputy filed 
 
         June 26, 1991, is affirmed and is adopted as the final agency 
 
         action in this case. 
 
         Claimant shall pay the costs of the appeal, including the 
 
         preparation of the hearing transcript.
 
         Signed and filed this ____ day of December, 1991.
 
         
 
         
 
         
 
         
 
                   ________________________________
 
                            BYRON K. ORTON
 
                        INDUSTRIAL COMMISSIONER
 
         
 
         Copies To:
 
         
 
         Mr. Dennis L. Hanssen
 
         Attorney at Law
 
         Terrace Center, STE 111
 
         2700 Grand Avenue
 
         Des Moines  IA  50312
 
         
 
         Mr. Richard G. Blane, II
 
         Attorney at Law
 
         803 Fleming Bldg
 
         Des Moines  IA  50309
 
         
 
 
            
 
 
 
 
 
 
 
 
 
 
 
            9998
 
            Filed December 16, 1991
 
            BRYON K. ORTON
 
            PJL
 
                      before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            PAUL L. RYERSON,              :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :        File No. 916736
 
            O & W TRANSPORT, INC.,        :
 
                                          :          A P P E A L
 
                 Employer,                :
 
                                          :        D E C I S I O N
 
            and                           :
 
                                          :
 
            TRAVELERS INSURANCE COMPANY,  :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
            
 
            9998
 
            
 
                 Summary affirmance of deputy's decision filed June 26, 
 
            1991.
 
            
 
 
            
 
            Page   1
 
            
 
            
 
            
 
            
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            PAUL L. RYERSON,              :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :      File No. 916736
 
            O & W TRANSPORT, INC.,        :
 
                                          :    A R B I T R A T I O N
 
                 Employer,                :
 
                                          :      D E C I S I O N
 
            and                           :
 
                                          :
 
            TRAVELERS INSURANCE COMPANY,  :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
                              statement of the case
 
            
 
                 This is a proceeding in arbitration brought by Paul 
 
            Ryerson against his employer, O & W Transport, Inc., and its 
 
            insurance company, The Travelers Insurance Company, based 
 
            upon an alleged injury which occurred on February 13, 1989.
 
            
 
                 The following issues were presented for resolution:
 
            
 
                 1.  Whether claimant received an injury which arose out 
 
            of and in the course of his employment;
 
            
 
                 2.  Whether there is a causal connection between the 
 
            alleged injury and the disability;
 
            
 
                 3.  Whether claimant is entitled to temporary 
 
            disability or healing period benefits, or permanent partial 
 
            or total disability benefits;
 
            
 
                 4.  Whether claimant is entitled to medical benefits 
 
            pursuant to Iowa Code section 85.27.
 
            
 
                 Defendants have raised the affirmative defense of 
 
            inadequate notice pursuant to Iowa Code section 85.23.
 
            
 
                 The case was heard and fully submitted at Des Moines, 
 
            Iowa on March 11, 1991.  The record consists of testimony 
 
            from Paul Ryerson; Keith Onnen; and, Delors Onnen; and, 
 
            joint exhibits 1-8.
 
            
 
                     
 
            
 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            findings of fact
 
            
 
                 Having considered all of the evidence received, the 
 
            following findings of fact are made:
 
            
 
                 Paul Ryerson is a 51 year old married man.  He did not 
 
            graduate from high school, having thoroughly completed the 
 
            eleventh grade.  He has not received his GED certificate.
 
            
 
                 In 1959, claimant began trade school at the Universal 
 
            Autobody Trade School in Omaha, Nebraska.  He attended the 
 
            school for seven (7) months, but did not complete the 
 
            course, and did not receive a certificate.
 
            
 
                 From 1959 to 1963, claimant worked in the autobody 
 
            trade at several car dealerships.  In 1963 he became 
 
            self-employed in the autobody repair trade.  Claimant's 
 
            business eventually provided towing services to trucks, and 
 
            in 1982 he became self-employed in the trucking business.  
 
            In 1986, claimant sold his trucks and began over-the-road 
 
            trucking services based out of Whittier, California.  
 
            Claimant testified he did not sustain any injuries arising 
 
            out of and in the course of his employment while working 
 
            from 1959 to 1987.
 
            
 
                 Claimant began to work for defendant, O & W Transport 
 
            in December of 1988.  He was hired to drive trucks and 
 
            deliver loads from Sioux City, Iowa to California.
 
            
 
                 On February 9, 1989, claimant was dispatched from Sioux 
 
            City, Iowa to Tucson, Arizona to deliver frozen meat 
 
            products.
 
            
 
                 Claimant asserts that on February 13, 1989, as he was 
 
            unloading products from the truck, he slipped inside of the 
 
            truck and was hit by a box filled with frozen pork 
 
            trimmings, weighing approximately 84 pounds.  Claimant 
 
            continued to unload the products, and stated that he called 
 
            the employer's office, spoke with "Wendy" and told her about 
 
            the accident.  Claimant testified that Wendy did not 
 
            instruct him to do anything, and he proceeded to finish his 
 
            work.
 
            
 
                 Claimant remained in Phoenix, Arizona during the next 
 
            several days waiting for a load to haul back to Iowa.  
 
            During his stay in Arizona, claimant was required to sleep 
 
            in his truck, and was denied clearance to stay in a motel 
 
            room.
 
            
 
                 On February 16, 1989, claimant received a load of 
 
            palletized lettuce in Yuma, Arizona, which was to be 
 
            delivered in Chariton, Iowa on February 19, 1989.  After the 
 
            alleged incident on February 13, 1989, claimant made several 
 
            calls to the employer, but testified that he did not mention 
 
            the accident again.
 
            
 
                 Claimant arrived in Chariton, Iowa, on Sunday, February 
 
            19, 1989.  He was unable to dispose of the load until 
 
            February 21, 1989, and again was required to sleep in his 
 
            truck during the lay-over.  Claimant testified that his 
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            right arm was in so much pain that he had to have his son 
 
            drive to Chariton and help him unload the products.  
 
            (Transcript, Page 28)
 
            
 
                 After the truck was unloaded, claimant returned to 
 
            defendant's shop in Perry, Iowa and quit. 
 
            
 
                 Claimant's next employment came in April of 1989, when 
 
            he secured work with Smith Body and Paint.  He testified 
 
            that he was terminated because he was unable to perform the 
 
            required job duties.  Claimant then began to work with 
 
            Wrightway Express, and was required to pass a DOT physical 
 
            prior to beginning his job duties.  He did not mention 
 
            problems with his arm or shoulder.
 
            
 
                 Claimant stated that on June 24, 1989, during a trip 
 
            from Iowa to California, he began to have additional 
 
            problems with his "injury."  (Tr. p. 22)
 
            
 
                 Claimant returned to Des Moines, Iowa and informed 
 
            Wrightway Express that he "would not be able to continue to 
 
            work as a previous injury to his arm had flared up and he 
 
            would have to seek medical attention."  (Joint exhibit 4, p. 
 
            1) 
 
            
 
                 Claimant then sought medical attention in the emergency 
 
            room at the hospital in Mason City, Iowa.  He was treated by 
 
            Kenneth Washburn, M.D.  Claimant complained of right 
 
            shoulder and arm pain which he associated with loading and 
 
            unloading a truck.  Claimant was given a shot in the trigger 
 
            point of the right shoulder, and the diagnosis was 
 
            myofascial pain syndrome.
 
            
 
                 Claimant returned to Dr. Washburn on June 29, 1989.  He 
 
            continued to complain of right shoulder and arm pain, 
 
            although the doctor noted that the trigger point in the 
 
            upper trapezius-supraspinatus area was not as severe as on 
 
            the prior visit.  Claimant was kept off of duty.
 
            
 
                 He returned to Dr. Washburn on July 6, 1989, and the 
 
            pain had migrated into the right shoulder and the back of 
 
            claimant's arm.  Dr. Washburn diagnosed an acute C7 nerve 
 
            root compromise on the right side.  He also diagnosed a mild 
 
            to early right carpal syndrome with a possible "double 
 
            crush" syndrome.  Dr. Washburn's notes indicate that 
 
            claimant could recall "no antecedent trauma", although he 
 
            had increasing pain in the posterior right shoulder over the 
 
            last three weeks.  Dr. Washburn diagnosed myofascial pain 
 
            syndrome.  (Jt. Ex. 1, pp. 12-21)  Claimant underwent x-rays 
 
            on June 29, 1989, which showed degenerative changes and the 
 
            narrowing of the C5-6 disc space with considerable lipping 
 
            from the opposing aspects of the vertebral bodies.  The 
 
            overall impression was degenerative changes of the cervical 
 
            spine.  (Jt. Ex. 1, p. 22)
 
            
 
                 Claimant was referred by Dr. Washburn to D. W. Beck, 
 
            M.D., a neurological surgeon.  Claimant saw Dr. Beck on 
 
            August 14, 1989 for evaluation.  Dr. Beck made the following 
 
            assessment:
 
            
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
                 As you know, Mr. Ryerson is a 49 year old 
 
                 gentlemen who injured himself while driving a 
 
                 truck in February.  At that time he had neck pain 
 
                 and right shoulder and arm pain.  He made another 
 
                 run in his truck in June, but has not really done 
 
                 any work besides that.  He claims he has right arm 
 
                 weakness. . . .
 
            
 
                 Examination reveals him to be a very large 
 
                 gentlemen.  He had full range of motion of his 
 
                 neck without discomfort.  He has normal reflexes 
 
                 in the upper extremities.  He has a significantly 
 
                 weak right triceps muscle compared to the left.  
 
                 His grip on the right is also weak.
 
            
 
                 I evaluated his C-spines.  He has some 
 
                 degenerative disc disease at C5-6.  C6-7 is not 
 
                 seen very well.
 
            
 
                 It is my impression that Mr. Ryerson probably has 
 
                 a C6-7 disc problem giving him his weakness in the 
 
                 triceps and grip.  Since he is getting better, I 
 
                 recommend he continue what he is doing, that is 
 
                 home traction and anti-inflammatory medications. . 
 
                 . . He claims the reason he couldn't do the MRI 
 
                 was because of pain.  If we cannot do the MRI, 
 
                 then we will have to do a myelogram.
 
            
 
                 Claimant also sought treatment from a chiropractor, Ron 
 
            Masters, II, D.O., from August 7, 1989 through January 23, 
 
            1990.  (Jt. Ex. 1, pp. 3-11)
 
            
 
                 Claimant underwent an EMG and nerve conduction study at 
 
            the Park Clinic in Mason City on December 6, 1989.  The 
 
            report states that claimant was ninety percent normal as far 
 
            as the C7 nerve root compromise.  The overall impression was 
 
            that the claimant had evidence of a mild right carpal tunnel 
 
            syndrome, and he was restricted to no heavy use of the right 
 
            arm unless a splint was worn.  He was to continue to take 
 
            ANSAID and to use traction.  (Jt. Ex. 1, p. 24)
 
            
 
                 Claimant also underwent a functional capacity test, 
 
            dated July 27, 1989.  The results of the test indicated that 
 
            claimant was only allowed to lift or carry up to five (5) 
 
            pounds occasionally.  He could occasionally bend or stoop, 
 
            but was to never push or pull, climb, or reach above 
 
            shoulder level.  He could rotate his head and drive 
 
            occasionally, and was able to operate foot controls and 
 
            handle or grip frequently.  Most notably, claimant's work 
 
            tolerance was to improve.  Additionally, claimant was to 
 
            alternatively sit, stand and walk during a normal eight (8) 
 
            work day.  (Jt. Ex. 1, p. 30)
 
            
 
                 In July, August, September and October of 1989, and 
 
            February, April, November of 1990, and January of 1991, 
 
            claimant applied for disability benefits through ITT 
 
            Financial Services.  On the first five applications, 
 
            claimant designated a February 13, 1989 injury date; on the 
 
            last three applications, claimant indicated a June 24, 1989 
 
            injury date.
 

 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
            
 
                 From approximately September 9, 1989 through present, 
 
            claimant has returned to work, primarily in the trucking 
 
            business.  Claimant's position allows him to only drive the 
 
            loads to the destination, and he is not required to load and 
 
            unload freight.  Claimant testified that he is not to lift 
 
            anything weighing more than 30 pounds, and is not to lift 
 
            anything unless he is wearing a splint on his right hand.  
 
            (Tr., p. 39)
 
            
 
                         analysis and conclusions of law
 
            
 
                 The first issue to be addressed is whether claimant 
 
            sustained an injury on February 13, 1989 which arose out of 
 
            and in the course of his employment with defendant, O & W 
 
            Transport, Inc.
 
            
 
                 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).
 
            
 
                 Claimant has the burden of proving by a preponderance 
 
            of the evidence that he received an injury on February 13, 
 
            1989, which arose out of and in the course of his 
 
            employment. McDowell v. Town of Clarksville, 241 N.W.2d 904 
 
            (Iowa 1976); Musselman v. Central Telephone Co., 261 Iowa 
 
            352, 154 N.W.2d 128 (1967). 
 
            
 
                 The injury must both arise out of and be in the course 
 
            of the employment.  Crowe v. DeSoto Consol. Sch. Dist., 246 
 
            Iowa 402, 68 N.W.2d 63 (1955) and cases cited at pp. 405-406 
 
            of the Iowa Report.  See also Sister Mary Benedict v. St. 
 
            Mary's Corp., 255 Iowa 847, 124 N.W.2d 548 (l963) and Hansen 
 
            v. State of Iowa, 249 Iowa 1147, 91 N.W.2d 555 (1958).
 
            
 
                 The words "out of" refer to the cause or source of the 
 
            injury.  Crowe, 246 Iowa 402, 68 N.W.2d 63. 
 
            
 
                 The words "in the course of" refer to the time and 
 
            place and circumstances of the injury.  McClure v. Union 
 
            et al. Counties, 188 N.W.2d 283 (Iowa 1971); Crowe, 246 Iowa 
 
            402, 68 N.W.2d 63.
 
            
 
                 Claimant described the incident in which a box of 
 
            frozen meat products hit him on the shoulder consistently 
 
            and with clarity.  He had explained early on in his 
 
            testimony that his entire load had been loaded incorrectly, 
 
            and as a result he was forced to move four (4) pallets of 
 
            products each time he made a drop on the way from Sioux 
 
            City, Iowa to Phoenix, Al capacity test, 
 
            dated July 27, 1989.  The results of the test indicated that 
 
            claimant was only allowed to lift or carry up to five (5) 
 
            pounds occasionally.  He could occasionally bend or stoop, 
 
            but was to never push or pull, climb, or reach above 
 
            shoulder level.  He could rotate his head and drive 
 
            occasionally, and was able to operate foot controls and 
 
            handle or grip frequently.  Most notably, claimant's work 
 
            tolerance was to improve.  Additionally, claimant was to 
 
            alternatively sit, stand and walk during a normal eight (8) 
 
            work day.  (Jt. Ex. 1, p. 30)
 
            
 
                 In July, August, September and October of 1989, and 
 
            February, April, November of 1990, and January of 1991, 
 
            claimant applied for disability benefits through ITT 
 
            Financial Services.  On the first five applications, 
 
            claimant designated a February 13, 1989 injury date; on the 
 
            last three applications, claimant indicated a June 24, 1989 
 
            injury date.
 

 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
            
 
                 From approximately September 9, 1989 through present, 
 
            claimant has returned to work, primarily in the trucking 
 
            business.  Claimant's position allows him to only drive the 
 
            loads to the destination, and he is not required to load and 
 
            unload freight.  Claimant testified that he is not to lift 
 
            anything weighing more than 30 pounds, and is not to lift 
 
            anything unless he is wearing a splint on his right hand.  
 
            (Tr., p. 39)
 
            
 
                         analysis and conclusions of law
 
            
 
                 The first issue to be addressed is whether claimant 
 
            sustained an injury on February 13, 1989 which arose out of 
 
            and in the course of his employment with defendant, O & W 
 
            Transport, Inc.
 
            
 
                 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).
 
            
 
                 Claimant has the burden of proving by a preponderance 
 
            of the evidence that he received an injury on February 13, 
 
            1989, which arose out of and in the course of his 
 
            employment. McDowell v. Town of Clarksville, 241 N.W.2d 904 
 
            (Iowa 1976); Musselman v. Central Telephone Co., 261 Iowa 
 
            352, 154 N.W.2d 128 (1967). 
 
            
 
                 The injury must both arise out of and be in the course 
 
            of the employment.  Crowe v. DeSoto Consol. Sch. Dist., 246 
 
            Iowa 402, 68 N.W.2d 63 (1955) and cases cited at pp. 405-406 
 
            of the Iowa Report.  See also Sister Mary Benedict v. St. 
 
            Mary's Corp., 255 Iowa 847, 124 N.W.2d 548 (l963) and Hansen 
 
            v. State of Iowa, 249 Iowa 1147, 91 N.W.2d 555 (1958).
 
            
 
                 The words "out of" refer to the cause or source of the 
 
            injury.  Crowe, 246 Iowa 402, 68 N.W.2d 63. 
 
            
 
                 The words "in the course of" refer to the time and 
 
            place and circumstances of the injury.  McClure v. Union 
 
            et al. Counties, 188 N.W.2d 283 (Iowa 1971); Crowe, 246 Iowa 
 
            402, 68 N.W.2d 63.
 
            
 
                 Claimant described the incident in which a box of 
 
            frozen meat products hit him on the shoulder consistently 
 
            and with clarity.  He had explained early on in his 
 
            testimony that his entire load had been loaded incorrectly, 
 
            and as a result he was forced to move four (4) pallets of 
 
            products each time he made a drop on the way from Sioux 
 
            City, Iowa to Phoenix, Al capacity test, 
 
            dated July 27, 1989.  The results of the test indicated that 
 
            claimant was only allowed to lift or carry up to five (5) 
 
            pounds occasionally.  He could occasionally bend or stoop, 
 
            but was to never push or pull, climb, or reach above 
 
            shoulder level.  He could rotate his head and drive 
 
            occasionally, and was able to operate foot controls and 
 
            handle or grip frequently.  Most notably, claimant's work 
 
            tolerance was to improve.  Additionally, claimant was to 
 
            alternatively sit, stand and walk during a normal eight (8) 
 
            work day.  (Jt. Ex. 1, p. 30)
 
            
 
                 In July, August, September and October of 1989, and 
 
            February, April, November of 1990, and January of 1991, 
 
            claimant applied for disability benefits through ITT 
 
            Financial Services.  On the first five applications, 
 
            claimant designated a February 13, 1989 injury date; on the 
 
            last three applications, claimant indicated a June 24, 1989 
 
            injury date.
 

 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
            
 
                 From approximately September 9, 1989 through present, 
 
            claimant has returned to work, primarily in the trucking 
 
            business.  Claimant's position allows him to only drive the 
 
            loads to the destination, and he is not required to load and 
 
            unload freight.  Claimant testified that he is not to lift 
 
            anything weighing more than 30 pounds, and is not to lift 
 
            anything unless he is wearing a splint on his right hand.  
 
            (Tr., p. 39)
 
            
 
                         analysis and conclusions of law
 
            
 
                 The first issue to be addressed is whether claimant 
 
            sustained an injury on February 13, 1989 which arose out of 
 
            and in the course of his employment with defendant, O & W 
 
            Transport, Inc.
 
            
 
                 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).
 
            
 
                 Claimant has the burden of proving by a preponderance 
 
            of the evidence that he received an injury on February 13, 
 
            1989, which arose out of and in the course of his 
 
            employment. McDowell v. Town of Clarksville, 241 N.W.2d 904 
 
            (Iowa 1976); Musselman v. Central Telephone Co., 261 Iowa 
 
            352, 154 N.W.2d 128 (1967). 
 
            
 
                 The injury must both arise out of and be in the course 
 
            of the employment.  Crowe v. DeSoto Consol. Sch. Dist., 246 
 
            Iowa 402, 68 N.W.2d 63 (1955) and cases cited at pp. 405-406 
 
            of the Iowa Report.  See also Sister Mary Benedict v. St. 
 
            Mary's Corp., 255 Iowa 847, 124 N.W.2d 548 (l963) and Hansen 
 
            v. State of Iowa, 249 Iowa 1147, 91 N.W.2d 555 (1958).
 
            
 
                 The words "out of" refer to the cause or source of the 
 
            injury.  Crowe, 246 Iowa 402, 68 N.W.2d 63. 
 
            
 
                 The words "in the course of" refer to the time and 
 
            place and circumstances of the injury.  McClure v. Union 
 
            et al. Counties, 188 N.W.2d 283 (Iowa 1971); Crowe, 246 Iowa 
 
            402, 68 N.W.2d 63.
 
            
 
                 Claimant described the incident in which a box of 
 
            frozen meat products hit him on the shoulder consistently 
 
            and with clarity.  He had explained early on in his 
 
            testimony that his entire load had been loaded incorrectly, 
 
            and as a result he was forced to move four (4) pallets of 
 
            products each time he made a drop on the way from Sioux 
 
            City, Iowa to Phoenix, Al capacity test, 
 
            dated July 27, 1989.  The results of the test indicated that 
 
            claimant was only allowed to lift or carry up to five (5) 
 
            pounds occasionally.  He could occasionally bend or stoop, 
 
            but was to never push or pull, climb, or reach above 
 
            shoulder level.  He could rotate his head and drive 
 
            occasionally, and was able to operate foot controls and 
 
            handle or grip frequently.  Most notably, claimant's work 
 
            tolerance was to improve.  Additionally, claimant was to 
 
            alternatively sit, stand and walk during a normal eight (8) 
 
            work day.  (Jt. Ex. 1, p. 30)
 
            
 
                 In July, August, September and October of 1989, and 
 
            February, April, November of 1990, and January of 1991, 
 
            claimant applied for disability benefits through ITT 
 
            Financial Services.  On the first five applications, 
 
            claimant designated a February 13, 1989 injury date; on the 
 
            last three applications, claimant indicated a June 24, 1989 
 
            injury date.
 

 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
            
 
                 From approximately September 9, 1989 through present, 
 
            claimant has returned to work, primarily in the trucking 
 
            business.  Claimant's position allows him to only drive the 
 
            loads to the destination, and he is not required to load and 
 
            unload freight.  Claimant testified that he is not to lift 
 
            anything weighing more than 30 pounds, and is not to lift 
 
            anything unless he is wearing a splint on his right hand.  
 
            (Tr., p. 39)
 
            
 
                         analysis and conclusions of law
 
            
 
                 The first issue to be addressed is whether claimant 
 
            sustained an injury on February 13, 1989 which arose out of 
 
            and in the course of his employment with defendant, O & W 
 
            Transport, Inc.
 
            
 
                 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).
 
            
 
 
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                      5-1402.50; 5-1403.30
 
                      Filed June 26, 1991
 
                      PATRICIA J. LANTZ
 
            before the iowa industrial commissioner
 
            ____________________________________________________________
 
                      :
 
            PAUL L. RYERSON,    :
 
                      :
 
                 Claimant, :
 
                      :
 
            vs.       :
 
                      :      File No. 916736
 
            O & W TRANSPORT, INC.,   :
 
                      :    A R B I T R A T I O N
 
                 Employer, :
 
                      :      D E C I S I O N
 
            and       :
 
                      :
 
            TRAVELERS INSURANCE COMPANY,  :
 
                      :
 
                 Insurance Carrier,  :
 
                 Defendants.    :
 
            ___________________________________________________________
 
            
 
            5-1402.50; 5-1403.30
 
            Defendants raised the affirmative defense of lack of timely 
 
            notice of a work-related injury under Iowa Code section 
 
            85.23.
 
            Claimant, a truck driver, was injured while unloading frozen 
 
            meat.  He testified that he felt immediate pain and swelling 
 
            in his arm.  He also testified that the day after the 
 
            accident, his arm hurt and he was unable to unload his 
 
            truck, and had to call his son for help.
 
            No actual notice was given; claimant argued notice was 
 
            tolled under the discovery rule because he was not aware 
 
            that the injury was serious and work-related.
 
            Benefits denied.