Page   1
 
            
 
            
 
            
 
            
 
            before the iowa industrial commissioner
 
            ____________________________________________________________
 
            _____
 
                                          :
 
            DUANE R. HEIDT,               :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :      File No. 916737
 
            LINN PHOTO CO.,               :
 
                                          :        A P P E A L
 
                 Employer,                :
 
                                          :      D E C I S I O N
 
            and                           :
 
                                          :
 
            CRUM & FORSTER COMMERCIAL     :
 
            INS.,                         :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ____________________________________________________________
 
            _____
 
            STATEMENT OF THE CASE
 
            Defendants appeal from an arbitration decision awarding 
 
            temporary total disability benefits as the result of an 
 
            alleged injury on June 30, 1989.
 
            The record on appeal consists of the transcript of the 
 
            arbitration proceeding and joint exhibits A through E.  Both 
 
            parties filed briefs on appeal.  Defendants filed a reply 
 
            brief.
 
            ISSUES
 
            Defendants state the following issues on appeal:
 
            
 
                 I.  Whether the deputy erred in finding that 
 
                 claimant sustained a compensable injury on June 
 
                 30, 1989 involving both upper extremities?
 
            
 
                 II.  In the alternative, if it is found that 
 
                 claimant sustained a compensable injury, whether 
 
                 the deputy erred in making an award of penalty 
 
                 benefits pursuant to section 86.13?
 
            FINDINGS OF FACT
 
            The findings of fact contained in the proposed agency 
 
            decision filed November 20, 1990 are adopted as final agency 
 
            action, with the exception of those portions of the findings 
 
            of fact dealing with the assessment of penalty under Iowa 
 
            Code section 86.13.
 
            CONCLUSIONS OF LAW
 
            The conclusions of law contained in the proposed agency 
 
            decision filed November 20, 1990 addressing the issue of 
 
            causal connection are adopted as final agency action.
 
            In regards to the assessment of a penalty under Iowa Code 
 
            section 86.13, it is found that defendants acted reasonably 
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            in withholding the voluntary payment of disability benefits.  
 
            The medical evidence showed two opinions on causal 
 
            connection of claimant's condition to his work injury.  Dr. 
 
            Hales' opinion stated that claimant's condition was probably 
 
            causally connected to his work.  Dr. Colah's opinion 
 
            acknowledged that claimant's condition was possibly 
 
            connected to his work activity.  In that a possibility is 
 
            insufficient to establish causal connection, the medical 
 
            evidence contained two differing, although not necessarily 
 
            contradicting, opinions on the issue of causation.  The 
 
            issue of causal connection was fairly debatable and a 
 
            penalty is not appropriate. 
 
            WHEREFORE, the decision of the deputy is affirmed in part 
 
            and reversed in part.
 
            order
 
            THEREFORE, it is ordered:
 
            That defendants shall pay unto claimant six point two eight 
 
            six (6.286) weeks of temporary total disability benefits at 
 
            the rate of one hundred ninety-five and 19/100 dollars 
 
            ($195.19), beginning with the period of June 30, 1989 to and 
 
            not including August 13, 1989.
 
            That defendants shall pay accrued weekly benefits in a lump 
 
            sum and shall receive credit against the award for weekly 
 
            benefits previously paid.  The record indicates there has 
 
            been no previous benefits of any kind paid to claimant.
 
            That defendants shall pay claimant's medical expenses 
 
            incurred to date which amount to three thousand five hundred 
 
            sixty-nine and 30/100 dollars ($3,569.30), and also shall 
 
            pay his future medical expenses that are necessary for the 
 
            continued treatment of claimant's bilateral carpal tunnel 
 
            syndrome problems and bilateral ulnar nerve condition.
 
            That defendant shall pay interest on unpaid weekly benefits 
 
            awarded herein as set forth in Iowa Code section 85.30.
 
            That defendants shall pay the costs of this matter including 
 
            the transcription of the hearing.  
 
            
 
                 That defendant shall file claim activity reports as 
 
            required by this agency pursuant to rule 343 IAC 3.1(2).
 
            Signed and filed this ____ day of February, 1992.
 
            
 
            
 
            
 
            
 
                      ________________________________
 
                               BYRON K. ORTON
 
                          INDUSTRIAL COMMISSIONER
 
            
 
            Copies To:
 
            
 
            Mr. Thomas M. Wertz
 
            Attorney at Law
 
            4089 21st Ave. SW, Ste 114
 
            Cedar Rapids, Iowa 52404
 
            
 
            Mr. Harry W. Dahl
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            Attorney at Law
 
            974 73rd St., Ste 16
 
            Des Moines, Iowa 50312
 
            
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
            4000.1
 
            Filed February 25, 1992
 
            Byron K. Orton
 
            BJO
 
            before the iowa industrial commissioner
 
            ____________________________________________________________
 
            _____
 
                                          :
 
            DUANE R. HEIDT,               :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :      File No. 916737
 
            LINN PHOTO CO.,               :
 
                                          :        A P P E A L
 
                 Employer,                :
 
                                          :      D E C I S I O N
 
            and                           :
 
                                          :
 
            CRUM & FORSTER COMMERCIAL     :
 
            INS.,                         :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ____________________________________________________________
 
            _____
 
            
 
            4000.1
 
            Deputy's decision affirmed on issue of causal connection, 
 
            but reversed on award of penalty benefits.  There were two 
 
            physician opinions on the record on causal connection.  The 
 
            first doctor said claimant's condition was "possibly" 
 
            connected to his work injury; the second doctor said it was 
 
            "probably" related.  In that a "possible" opinion on causal 
 
            connection would be insufficient to carry claimant's burden 
 
            and the deputy might have given greater weight to this 
 
            physician over the "probable" physician, defendants were 
 
            found to have acted reasonably in not voluntarily paying 
 
            benefits.  
 
            
 
 
            
 
            Page   1
 
            
 
            
 
            
 
            
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            DUANE R. HEIDT,               :
 
                                          :
 
                 Claimant,                :
 
                                          :        File No. 916737
 
            vs.                           :
 
                                          :
 
            LINN PHOTO CO.,               :     A R B I T R A T I O N
 
                                          :
 
                 Employer,                :        D E C I S I O N
 
                                          :
 
            and                           :
 
                                          :
 
            CRUM & FORSTER COMMERCIAL     :
 
            INS.,                         :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
                              STATEMENT OF THE CASE
 
            
 
                 This case came on for hearing on November 1, 1990, in 
 
            Cedar Rapids, Iowa.  This is a proceeding in arbitration 
 
            wherein the claimant seeks compensation for temporary total 
 
            disability benefits as a result of an alleged injury 
 
            occurring on June 30, 1989.  The record in the proceeding 
 
            consists of the testimony of claimant, Mary Rohrbacher; 
 
            joint exhibits A, B, D and E; and claimant's exhibit 1.
 
            
 
                                      issues
 
            
 
                 The issues for resolution are:
 
            
 
                 1.  Whether claimant's alleged June 30, 1989 injury 
 
            arose out of and in the course of his employment;
 
            
 
                 2.  Whether claimant's alleged condition and temporary 
 
            total disability is causally connected to his June 30, 1989 
 
            injury;
 
            
 
                 3.  Claimant's entitlement to temporary total 
 
            disability benefits; and,
 
            
 
                 4.  Whether claimant is entitled to 86.13 penalty 
 
            benefits.
 
            
 
                     
 
            
 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            findings of fact
 
            
 
                 The undersigned deputy having heard the testimony and 
 
            considered all the evidence, finds that:
 
            
 
                 Claimant is 34 years old and has been working for 
 
            defendant employer beginning in 1985 continuously for the 
 
            last approximate four years and three months.  Defendant 
 
            employer's business is basically film processing and 
 
            finishing and performing those services that go along with 
 
            this type business, such as repairing photo equipment.
 
            
 
                 Claimant was off work for two years prior to beginning 
 
            work for defendant employer with a back injury which was 
 
            caused while claimant was working for his brother installing 
 
            and loading carpet.  Part of this time claimant was a 
 
            student at Iowa State University.  His work history before 
 
            college is not significant herein but it did involve working 
 
            at a sand and gravel company and in the carpet business.
 
            
 
                 Claimant said his back injury did not affect his arms 
 
            and he never had any other injuries before his alleged June 
 
            30, 1989 injury.
 
            
 
                 Claimant's job responsibilities with defendant employer 
 
            involves sorting film into two baskets, loading it into his 
 
            company vehicle and delivering it or any repaired equipment 
 
            to approximately 34 places and picking up film to be 
 
            processed or equipment to be repaired and then returning it 
 
            to claimant's place of employment.  Claimant also was 
 
            responsible for checking and maintaining the car he drives 
 
            as to fuel levels and washing and interior maintenance.  
 
            Claimant said the baskets that were loaded and ready for 
 
            delivery may weigh from 20 to 70 pounds.  Claimant now 
 
            drives an average of 402 miles per day.  He works a 10 hour 
 
            day.  In the past, claimant has averaged as much as 414 
 
            miles per day with 44 accounts.
 
            
 
                 The claimant and Mrs. Rohrbacher described the car 
 
            claimant drives as basically a Deluxe Toyota Corolla.  
 
            Claimant described how he drives and the inconveniences 
 
            during his 400 mile traveling day due to the car and various 
 
            positions of his hands, arms and body.  It appeared through 
 
            extensive cross-examination that claimant's manner of 
 
            holding the steering wheel often with arms outstretched and 
 
            elbows locked was possibly an unorthodox position, 
 
            particularly if claimant was having an arm and a nerve 
 
            problem.  There is no set or established way for steering or 
 
            driving a car nor is there any specific company 
 
            requirements.  In fact, driving with both hands would be 
 
            most advisable for a better total control of a vehicle.  It 
 
            would also seem, at least at times, that driving as claimant 
 
            did could be more relaxing or relieve boredom due to the 
 
            extensive number of miles claimant drives per day.
 
            
 
                 Claimant said he first experienced pain in his left arm 
 
            and elbow in December 1987 after having worked for defendant 
 
            employer 17 to 18 months.  He said that four to five months 
 
            later the pain involved the entire arm, leg and shoulder.  
 
            Claimant testified that the right arm, but not the shoulder, 
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            began hurting around February 1988 and by approximately 
 
            August 1988 the right elbow and hand was hurting.  Claimant 
 
            is right-handed.
 
            
 
                 Claimant indicated the pain let up on weekends.  He 
 
            said that his pain was so bad during the week he could 
 
            hardly stand it.
 
            
 
                 Claimant first saw an orthopedic specialist, Walter J. 
 
            Hales, M.D., on April 24, 1989.  Dr. Hales specializes in 
 
            the hand as part of his orthopedic practice.
 
            
 
                 Claimant first missed work due to his arm problems on 
 
            June 30, 1989, at which time he had a left carpal tunnel 
 
            release surgery in two places.  Claimant was off work six 
 
            weeks and two days.  Claimant indicated his left wrist has 
 
            improved, but he continues to have problems with his left 
 
            upper extremities and the radiating pain down his elbow into 
 
            his fingers.
 
            
 
                 Claimant is continuing to see Dr. Hales and said 
 
            further ulnar nerve surgery had been discussed with 
 
            claimant.  Claimant acknowledged that he has worked 
 
            full-time since his carpal tunnel surgery and being off work 
 
            approximately six weeks.  Claimant was examined extensively 
 
            as to why he originally picked a May 5, 1989 date of injury.  
 
            It appears this is the first day he told defendant employer 
 
            of his problem.  Since claimant contends he has a cumulative 
 
            injury, the first date he was off work because of his 
 
            condition was June 30, 1989 and that is the injury date the 
 
            parties have stipulated to in the prehearing report.  This 
 
            agency has held in the past that the deputy has discretion, 
 
            particularly in cumulative trauma cases, to pick the date 
 
            that is obvious although it may not have been specified in 
 
            the petition.  The 28th Workers' Compensation Symposium, 
 
            June 7 and 8, 1990, pages 65 through 67.  See Deheer v. 
 
            Clarklift of Des Moines, file No. 804325.  It is obvious all 
 
            the parties know that it is the same incident or cumulative 
 
            circumstances for which claimant makes the claim for his 
 
            alleged injury and involves the same medical conditions for 
 
            which claimant complains.  The undersigned finds that the 
 
            alleged injury date is June 30, 1989 and no party is 
 
            prejudiced by that date and that date conforms to the facts 
 
            and various pleadings.  Strict rules of pleading do not 
 
            apply to workers' compensation cases.
 
            
 
                 Claimant denies that he had any arm pain, injury or 
 
            problems while working for his brother in the middle 1980's 
 
            installing and loading carpet.
 
            
 
                 Mary Rohrbacher, an employee with defendant employer 
 
            for the last ten years, is claimant's route manager and 
 
            supervisor.  She basically supported claimant's testimony in 
 
            those areas in which she had similar knowledge or experience 
 
            as the claimant.  She indicated all her work evaluations of 
 
            the claimant have been very good.  She has driven with 
 
            claimant on a very limited basis, approximately five times 
 
            during claimant's employment with defendant employer.  She 
 
            agreed with claimant's testimony as to his manner of 
 
            driving.  She emphasized claimant is a very safe driver.
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
            
 
                 Walter J. Hales, M.D., an orthopedic hand surgeon, 
 
            testified by way of his deposition on June 25, 1990.  He 
 
            performed surgery on claimant's hand on June 30, 1989.  The 
 
            doctor has no current plans to operate on claimant's right 
 
            hand or arm.  He last saw claimant on June 4, 1990, shortly 
 
            before he gave his deposition.  His examination of claimant 
 
            on that date found claimant's continuing problem involving a 
 
            pinched nerve of the ulnar nerve at claimant's left elbow.  
 
            He indicated he did not but could do an impairment rating 
 
            without another examination.  Dr. Hales indicated claimant 
 
            said his complaints were worse when he was driving.
 
            
 
                 Taking the testimony of Dr. Hales as a whole, the 
 
            undersigned finds that the doctor believes there is a causal 
 
            connection between claimant's left carpal tunnel and surgery 
 
            and his driving.  Although it is also clear the doctor feels 
 
            claimant's left ulnar nerve condition and irritation is 
 
            caused by his driving, the condition currently does not 
 
            warrant surgery.  He feels continuing conservative treatment 
 
            only is warranted at this time.  The doctor was surprised 
 
            claimant drove 400 miles a day and has in excess of 30 
 
            stops.  He testified that he has run into similar problems 
 
            claimant has with other patients who do a lot of driving.
 
            
 
                 The doctor acknowledged claimant has experienced some 
 
            problems with his right hand but said the right hand had 
 
            been primarily without carpal tunnel and he didn't see a lot 
 
            of involvement of the ulnar nerve on that side (Joint 
 
            Exhibit A, page 18).  He said there is no permanent ulnar 
 
            nerve damage at the present time (Jt. Ex. A, p. 20).  On 
 
            June 1, 1989, Dr. Hales causally connected claimant's left 
 
            carpal tunnel to his driving for defendant employer.  He 
 
            more or less reiterated this on April 20, 1990.  Also, at 
 
            that time, he indicated claimant's driving would contribute 
 
            to his ulnar nerve neuritis (Jt. Ex. B, pp. 2 and 4).  On 
 
            July 27, 1989, Dr. Hales wrote that claimant has been 
 
            temporary totally disabled from June 30, 1989 and will be 
 
            disabled until approximately September 4, 1989 due to 
 
            surgery performed on his left wrist.  In fact, the parties 
 
            agreed that claimant was off from that beginning date up to 
 
            and not including August 13, 1989 (Jt. Ex. B, p. 3).  Dr. 
 
            Hales' notes on September 14, 1989 reflect:
 
            
 
                 Recheck.  It is becoming more and more obvious 
 
                 that he his [sic] cubital tunnel syndrome that was 
 
                 present on the left side originally that we had 
 
                 documented before surgery in the chart and 
 
                 explained to him he will have to have it done 
 
                 later appears to be evolving in that regard.  He 
 
                 continues to have aching and pain in that elbow, 
 
                 numbness and tingling in the little and ring 
 
                 finger on the left side.  He is getting more 
 
                 involvement on the right but the biggest problem 
 
                 continues to be on the left side.
 
            
 
                    We will try a Lister splint on the left to see 
 
                 if that will make any difference but it is 
 
                 unlikely it will.  If not he is going to probably 
 
                 have to consider undergoing cubital tunnel release 
 

 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
                 on the left side.
 
            
 
            (Jt. Ex. B, p. 6)
 
            
 
                 Dr. Hales' notes on December 7, 1989 reflect:
 
            
 
                 Duane comes back today.  Duane has not been helped 
 
                 with the Lister splint with the other conservative 
 
                 measures for his cubital tunnel syndrome.  We told 
 
                 him that we think he should consider having the 
 
                 ulnar nerve decompressed at the elbow, that we 
 
                 doubt very much there is any permanent damage to 
 
                 the nerve, aned [sic] if he can tolerate the 
 
                 symptoms longer it would certainly be safe to do 
 
                 so, but they are probably unlikely to resolve 
 
                 based on the duration that they have been there at 
 
                 present.
 
            
 
            (Jt. Ex. B, p. 7)
 
            
 
                 Claimant's June 30, 1989 surgery has been described as:
 
            
 
                 Release of ulnar and median nerve from left distal 
 
                 forearm through Guyon's canal into the palm and 
 
                 release of the median nerve through the distal 
 
                 forearm and carpal tunnel with epineurotomy and 
 
                 release of the motor branch of the median nerve.
 
            
 
            (Jt. Ex. D)
 
            
 
                 Claimant's EMG report (Jt. Ex. D, p. 2) assesses 
 
            claimant's condition as mild bilateral carpal tunnel 
 
            syndrome by electrophysiologic analysis.
 
            
 
                 Defendants sent claimant to X. R. Colah, M.D., on June 
 
            21, 1989 for a second opinion.  Dr. Colah opined claimant 
 
            did have a bilaterally positive Phelan's sign and that 
 
            carpal tunnel decompression is the procedure of choice for 
 
            the condition.  He added that:  "Regarding the question 
 
            whether a carpal tunnel syndrome can be precipitated by 
 
            driving for prolonged periods, although this is certainly 
 
            possible, I have not seen this presentation in others in 
 
            similar occupations." (Jt. Ex. E)
 
            
 
                 It isn't clear what the doctor means by similar 
 
            occupations; in other words, photo delivery or just driving.  
 
            It is obvious the doctor would not run into many patients in 
 
            the particular field and manner of driving and delivery that 
 
            claimant was in, unlike with truck drivers where there are 
 
            thousands in the field.
 
            
 
                 The parties dispute as to whether claimant's alleged 
 
            injury arose out of and in the course of claimant's 
 
            employment.  Although defendants apparently do not seem to 
 
            think 400 miles is a lot of miles to drive per day, five 
 
            days per week, especially when there are 34 or more times a 
 
            driver can stop to break his driving time, the undersigned 
 
            believes this is a lot of driving in a day and even more so 
 
            with 34 stops.  It is obvious this isn't entirely interstate 
 
            driving as any town is always off such highways.  There is 
 

 
            
 
            Page   6
 
            
 
            
 
            
 
            
 
            no evidence of the type of highways or roads traveled by 
 
            claimant.  There is usually only so many ways a person can 
 
            drive and this is limited as well as trying to be 
 
            comfortable.  There is no other evidence without speculating 
 
            as to how claimant gradually developed his condition to his 
 
            hands and arms.
 
            
 
                 The undersigned finds the greater weight of evidence 
 
            shows claimant incurred a left carpal tunnel syndrome 
 
            condition and had surgery for the same on June 30, 1989.  It 
 
            is also found that claimant has evidence in his right arm of 
 
            a carpal tunnel condition developing from his occupation 
 
            with defendant employer.  Claimant also has developed 
 
            bilateral ulnar nerve problems that need attention and 
 
            conservative treatment but not surgery at this time.  The 
 
            undersigned finds claimant should have continuing treatment 
 
            which may prevent claimant's condition from worsening and 
 
            resulting in a loss of time from work.  It is found 
 
            claimant's cumulative bilateral carpal tunnel injury and 
 
            condition and ulnar nerve injury and condition arose out of 
 
            and in the course of claimant's employment.  The undersigned 
 
            further finds that claimant's medical conditions in his arms 
 
            and wrists were caused by claimant's cumulative injury on 
 
            June 30, 1989.  Dr. Hales is a more credible doctor.  He is 
 
            the treating doctor and performed claimant's surgery on June 
 
            30, 1989.
 
            
 
                 Claimant was off work from June 30, 1989 up to and not 
 
            including August 13, 1989, which is 6.286 weeks.  Claimant 
 
            is entitled to 6.286 weeks of temporary total disability 
 
            benefits at the rate of $195.19.  Claimant is entitled to 
 
            have continuing competent treatment for his carpal tunnel 
 
            syndrome condition and symptoms and ulnar nerve condition at 
 
            defendants' expense.  Defendants shall pay all claimant's 
 
            medical expenses.  Defendants have denied liability and 
 
            originally set out 85.27 as an issue.  Since defendants have 
 
            denied liability from the beginning, they are not able to 
 
            credibly contend claimant's medical is unauthorized.  It 
 
            appears claimant's expenses to date are $3,569.30.
 
            
 
                 Claimant requested 86.13 penalty benefits.  The 
 
            undersigned believes this is a close issue and that 
 
            defendants should have paid claimant for the time off, from 
 
            June 30, 1989 to and not including August 13, 1989.  In 
 
            listening to defendant employer's manager, Mary Rohrbacher, 
 
            it is hard to believe she had anything to do with 
 
            withholding benefits.  She seems very supportive of 
 
            claimant.  The undersigned finds benefits were withheld 
 
            without reasonable or probable cause or excuse.  Claimant is 
 
            entitled to three additional weeks of benefits under the 
 
            provisions of 86.13.
 
            
 
                                conclusions of law
 
            
 
                 Claimant has the burden of proving by a preponderance 
 
            of the evidence that he received an injury on June 30, 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). 
 

 
            
 
            Page   7
 
            
 
            
 
            
 
            
 
            
 
                 The claimant has the burden of proving by a 
 
            preponderance of the evidence that the injury of June 30, 
 
            1989 is causally related to the disability on which he now 
 
            bases his claim.  Bodish v. Fischer, Inc., 257 Iowa 516, 133 
 
            N.W.2d 867 (1965).  Lindahl v. L. O. Boggs, 236 Iowa 296, 18 
 
            N.W.2d 607 (1945).  A possibility is insufficient; a 
 
            probability is necessary.  Burt v. John Deere Waterloo 
 
            Tractor Works, 247 Iowa 691, 73 N.W.2d 732 (1955).  The 
 
            question of causal connection is essentially within the 
 
            domain of expert testimony.  Bradshaw v. Iowa Methodist 
 
            Hospital, 251 Iowa 375, 101 N.W.2d 167 (1960). 
 
            
 
                 However, expert medical evidence must be considered 
 
            with all other evidence introduced bearing on the causal 
 
            connection.  Burt, 247 Iowa 691, 73 N.W.2d 732.  The opinion 
 
            of experts need not be couched in definite, positive or 
 
            unequivocal language.  Sondag v. Ferris Hardware, 220 N.W.2d 
 
            903 (Iowa 1974).  However, the expert opinion may be 
 
            accepted or rejected, in whole or in part, by the trier of 
 
            fact.  Id. at 907.  Further, the weight to be given to such 
 
            an opinion is for the finder of fact, and that may be 
 
            affected by the completeness of the premise given the expert 
 
            and other surrounding circumstances.  Bodish, 257 Iowa 516, 
 
            133 N.W.2d 867.  See also Musselman, 261 Iowa 352, 154 
 
            N.W.2d 128.
 
            
 
                 Iowa Code section 85.33(1) provides:
 
            
 
                    Except as provided in subsection 2 of this 
 
                 section, the employer shall pay to an employee for 
 
                 injury producing temporary total disability weekly 
 
                 compensation benefits, as provided in section 
 
                 85.32, until the employee has returned to work or 
 
                 is medically capable of returning to employment 
 
                 substantially similar to the employment in which 
 
                 the employee was engaged at the time of injury, 
 
                 whichever occurs first.
 
            
 
                 It is not necessary that claimant prove his disability 
 
            results from a sudden unexpected traumatic event.  It is 
 
            sufficient to show that a disability developed gradually or 
 
            progressively from work activity over a period of time.  
 
            McKeever Custom Cabinets v. Smith, 379 N.W.2d 368 (Iowa 
 
            1985).  The McKeever court also held that the date of injury 
 
            in a gradual injury case is the time when pain prevents the 
 
            employee from continuing to work.  In McKeever the injury 
 
            date coincides with the time claimant was finally compelled 
 
            to give up his job.  This date was then utilized in 
 
            determining rate and the timeliness of the claimant's claim 
 
            under Iowa Code section 85.26 and notice under Iowa Code 
 
            section 85.23.
 
            
 
                 Iowa Code section 86.13 provide, in part:
 
            
 
                    If a delay in commencement or termination of 
 
                 benefits occurs without reasonable or probable 
 
                 cause or excuse, the industrial commissioner shall 
 
                 award benefits in addition to those benefits 
 
                 payable under this chapter, or chapter 85, 85A, or 
 

 
            
 
            Page   8
 
            
 
            
 
            
 
            
 
                 85B, up to fifty percent of the amount of benefits 
 
                 that were unreasonably delayed or denied.
 
            
 
                 It is further concluded that:
 
            
 
                 Claimant incurred a cumulative bilateral carpal tunnel 
 
            syndrome injury and condition on June 30, 1989, which arose 
 
            out of and in the course of his employment and that the left 
 
            carpal tunnel injury required surgery on June 30, 1989, at 
 
            which time claimant missed work until and not including 
 
            August 13, 1989.
 
            
 
                 Claimant incurred a bilateral ulnar nerve condition on 
 
            June 30, 1989, which arose out of and in the course of his 
 
            employment and that such ulnar nerve medical conditions do 
 
            not yet require surgery but require future medical 
 
            conservative care so as to try to prevent increased ultimate 
 
            surgery, impairment and/or loss of time from claimant's 
 
            work.
 
            
 
                 Claimant's cumulative bilateral carpal tunnel syndrome 
 
            injury and condition and bilateral ulnar nerve condition was 
 
            caused by claimant's work-related injury on June 30, 1989, 
 
            when claimant first missed work to have left carpal tunnel 
 
            syndrome surgery.
 
            
 
                 Claimant is entitled to have his medical expenses 
 
            currently in the amount of $3,569.30 paid by defendants.  
 
            Also, he is entitled to have his future medical for the 
 
            continued treatment of his bilateral carpal tunnel syndrome 
 
            condition and bilateral ulnar nerve condition paid.
 
            
 
                 Claimant is entitled to 6.286 weeks of temporary total 
 
            disability benefits at the weekly rate of $195.19.
 
            
 
                 Claimant is entitled to three additional weeks of 86.13 
 
            benefits at the rate of $195.19.
 
            
 
                           
 
            
 
            
 
            Page   9
 
            
 
            
 
            
 
            
 
            order
 
            
 
                 THEREFORE, it is ordered:
 
            
 
                 That defendant shall pay unto claimant six point two 
 
            eight six (6.286) weeks of temporary total disability 
 
            benefits at the rate of one hundred ninety-five and 19/100 
 
            dollars ($195.19), beginning with the period of June 30, 
 
            1989 to and not including August 13, 1989.
 
            
 
                 That defendants shall pay accrued weekly benefits in a 
 
            lump sum and shall receive credit against the award for 
 
            weekly benefits previously paid.  The record indicates there 
 
            has been no previous benefits of any kind paid to claimant.
 
            
 
                 That defendants shall pay claimant's medical expenses 
 
            incurred to date which amount to three thousand five hundred 
 
            sixty-nine and 30/100 dollars ($3,569.30), and also shall 
 
            pay his future medical expenses that are necessary for the 
 
            continued treatment of claimant's bilateral carpal tunnel 
 
            syndrome problems and bilateral ulnar nerve condition.
 
            
 
                 That claimant is entitled to three (3) weeks of 86.13 
 
            penalty benefits at the rate of one hundred ninety-five and 
 
            19/100 dollars ($195.19), which totals five hundred 
 
            eighty-five and 57/100 dollars ($585.57).
 
            
 
                 That defendants shall pay interest on benefits awarded 
 
            herein as set forth in Iowa Code section 85.30.
 
            
 
                 That defendants shall pay the costs of this action, 
 
            pursuant to Division of Industrial Services Rule 343-4.33.
 
            
 
                 That defendants shall file an activity report upon 
 
            payment of this award as required by this agency, pursuant 
 
            to Division of Industrial Services Rule 343-3.1
 
            
 
                 Signed and filed this _____ day of November, 1990.
 
            
 
            
 
            
 
            
 
                                          ______________________________
 
                                          BERNARD J. O'MALLEY
 
                                          DEPUTY INDUSTRIAL COMMISSIONER
 
            
 
            Copies to:
 
            
 
            Mr Thomas M Wertz
 
            Attorney at Law
 
            4089 21st Ave SW Ste 114
 
            Cedar Rapids IA 52404
 

 
            
 
            Page  10
 
            
 
            
 
            
 
            
 
            
 
            Mr Harry W Dahl
 
            Attorney at Law
 
            974 73rd St  Ste 16
 
            Des Moines IA 50312
 
            
 
 
         
 
 
 
 
 
                   5-1100; 5-1108.52; 5-1801
 
                   5-4000.2; 2500
 
                   Filed November 20, 1990
 
                   Bernard J. O'Malley
 
         
 
                     before the iowa industrial commissioner
 
         ____________________________________________________________
 
                                       :
 
         DUANE R. HEIDT,               :
 
                                       :
 
              Claimant,                :
 
                                       :        File No. 916737
 
         vs.                           :
 
                                       :
 
         LINN PHOTO CO.,               :     A R B I T R A T I O N
 
                                       :
 
              Employer,                :        D E C I S I O N
 
                                       :
 
         and                           :
 
                                       :
 
         CRUM & FORSTER COMMERCIAL     :
 
         INS.,                         :
 
                                       :
 
              Insurance Carrier,       :
 
              Defendants.              :
 
         ___________________________________________________________
 
         
 
         5-1801
 
         Claimant awarded 6.286 weeks of temporary total disability 
 
         benefits due to being off work because of left carpal tunnel 
 
         surgery.
 
         
 
         5-1100; 5-1108.50
 
         Found claimant's cumulative bilateral carpal tunnel and ulnar 
 
         nerve injury and condition arose out of and in the course of 
 
         claimant's employment and was caused by claimant's work injury.
 
         
 
         5-4000.2
 
         Claimant awarded three weeks of 86.13 penalty benefits.
 
         
 
         2500
 
         Claimant entitled to future medical to continue conservative 
 
         treatment of his bilateral treatment of his bilateral carpal 
 
         tunnel and ulnar nerve problems so as to try and prevent future 
 
         surgery, injury and impairment.
 
         There was no evidence of permanent impairment, but it is obvious 
 
         from prehearing motions to continue and to dismiss which were 
 
         denied by another deputy, that there was an impairment rating 
 
         received after the 15 day exclusion rule.
 
         
 
 
            
 
            Page   1
 
            
 
            
 
            
 
            
 
            
 
            
 
            
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            DONALD E. MYERS,              :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :         File No. 916738
 
                                          :
 
            LAURIDSEN FOODS, INC.,        :      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.              :
 
            ____________________________________________________________
 
            
 
                              statement of the case
 
            
 
                 This is a proceeding in arbitration upon the August 1, 
 
            1989 petition for Iowa Workers' Compensation Act benefits 
 
            filed by claimant Donald E. Myers against his former 
 
            employer, Lauridsen Foods, Inc., and its insurance carrier, 
 
            Hartford Insurance Company.  This cause came on for hearing 
 
            in Mason City, Iowa, on October 22, 1990.
 
            
 
                 The record consists of claimant's exhibits A and B and 
 
            the testimony of claimant, his wife Kathryn Myers and Donald 
 
            Gifford.
 
            
 
                                      issues
 
            
 
                 The parties have stipulated to the existence of an 
 
            employment relationship between claimant and Lauridsen Foods 
 
            at all times relevant.
 
            
 
                 Issues presented for resolution include:
 
            
 
                 1.  Whether claimant sustained an injury arising out of 
 
            and in the course of his employment with Lauridsen Foods, 
 
            Inc.;
 
            
 
                 2.  Whether there exists a causal relationship between 
 
            the work injury and any subsequent permanent disability 
 
            (hearing loss);
 
            
 
                 3.  The nature and extent of claimant's disability, if 
 
            any; and,
 
            
 
                 4.  Whether claimant is entitled to medical benefits 
 
            under Iowa Code section 85.27.
 
            
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            
 
            
 
            
 
                                 findings of fact
 
            
 
                 The undersigned deputy industrial commissioner, having 
 
            heard the testimony and considered all of the evidence, 
 
            finds:
 
            
 
                 Donald E. Myers, 57 years of age at hearing, currently 
 
            suffers from impaired hearing, particularly as to higher 
 
            pitched frequencies, and especially those above three 
 
            thousand Hertz (cycles per second).
 
            
 
                 While serving in the U.S. military, claimant 
 
            experienced an explosion at close range.  According to his 
 
            testimony, his ears rang for a while thereafter and tinnitus 
 
            in one ear set in about one year after he left the military 
 
            while he was employed at Universal Manufacturing as a parts 
 
            foreman.  Claimant left that work in 1972 to work for a 
 
            manufacturer of parking lot equipment, mostly as a welder.  
 
            He took work with defendant in January 1979.
 
            
 
                 Lauridsen Foods, Inc., manufactures hams for a 
 
            well-known meat packing company, Armour Foods.  For the 
 
            first two years, claimant helped construct the plant (and, 
 
            in particular, was exposed to a loud and high-pitched corn 
 
            dryer), working perhaps 60 hours per week.  Although 
 
            claimant and his wife indicated that he had excellent 
 
            hearing when he began work with Lauridsen, he did suffer 
 
            from tinnitus in at least one ear (claimant's testimony) and 
 
            wore self-supplied ear plugs during the years of 
 
            construction.  However, chart notes of Joseph M. Rooney, 
 
            M.D., dated September 11, 1976 make reference to chronic 
 
            ringing in the ears, plural.  This is found more reliable 
 
            and shows bilateral preexisting tinnitus.
 
            
 
                 Thereafter, claimant worked as a maintenance foreman 
 
            and, after one to two years, as plant engineer.  His duties 
 
            took him throughout the plant for assorted maintenance jobs, 
 
            particularly on machines, and included paper work which he 
 
            performed at his headquarters in the maintenance shop.  
 
            Noise levels varied throughout the plant, typically in 
 
            excess of 80 decibels.
 
            
 
                 Claimant was discharged from his employment on February 
 
            16, 1988.  Job Service benefits were denied on the basis 
 
            that Mr. Myers had committed disqualifying job misconduct by 
 
            publicly threatening to conduct himself so as to force 
 
            Lauridsen to fire him against the backdrop of some earlier 
 
            unsatisfactory conduct.  Myers v. Employment Appeal Bd., 462 
 
            N.W.2d 734 (Iowa App. 1990).  By coincidence, this writer 
 
            initially decided that contested case in the course of his 
 
            former employment as a Job Service hearing officer.  
 
            However, no independent recollection of that remote hearing 
 
            remains, so the coincidence is not a factor here.
 
            
 
                 Claimant's hearing loss has been measured by audiogram 
 
            on ten occasions between September 1982 and September 1990.  
 
            Calculated under the statutory formula set forth in Iowa 
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            
 
            
 
            
 
            Code section 85B.5, they show the following:
 
            
 
                      09-28-82                     2.19  %
 
                      02-21-83                     0     %
 
                      01-06-84                     0     %
 
                      04-22-85                     0     %
 
                      09-17-85                     3.75  %
 
                      09-18-86                     3.125 %
 
                      09-17-87                     0.9375%
 
                      02-25-88                     0.9375%
 
                      04-15-90                     5.9375%
 
                      09-17-90                    10     %
 
            
 
                 Claimant has substantially greater hearing loss at 
 
            higher frequencies.  Clinical audiologist Anne Nerison, 
 
            M.A., CCC-A/SP, evaluated claimant on April 5, 1990.  
 
            Calculation of hearing loss at two thousand, three thousand 
 
            and four thousand Hertz indicated that hearing loss caused 
 
            by excessive occupational noise exposure had occurred.  She 
 
            felt claimant's loss would create significant problems with 
 
            speech discrimination at normal background levels, 
 
            particularly in a moderately noisy background, but also felt 
 
            that claimant's speech discrimination was such that he would 
 
            be expected to do well with hearing aids.  She recommended 
 
            two (Ms. Nerison writes on the stationery of Algona Hearing 
 
            Aid Service).
 
            
 
                 Noise levels in the Lauridsen plant were measured in 
 
            1982 and 1983 by James Tatum.  Measured sound pressure 
 
            levels varied up to 104 decibels in both years.  Sound 
 
            levels were measured again in 1988, 1989 and 1990 by Don 
 
            Gifford, currently Lauridsen's human resources manager, a 
 
            position which includes the duties of safety director.  He 
 
            found readings up to 97 decibels in 1990.  The maintenance 
 
            shop, where claimant spent the majority of his time, was 
 
            measured at 54, 57, 63 and 65 decibels by Mr. Gifford.  
 
            Nonetheless, there were a number of readings in excess of 90 
 
            decibels recorded at each measurement and it is reasonable 
 
            to suppose that claimant, as he testified, was required to 
 
            spend substantial time in close proximity to noisy machines 
 
            due to his maintenance duties.
 
            
 
                 Claimant testified that Tatum falsified readings, often 
 
            by reducing them 10 decibels.  However, claimant is not 
 
            found to be a reliable witness in his own behalf.  He was 
 
            clearly a disgruntled employee even before he was 
 
            discharged, as is shown by his threat to engage in 
 
            unacceptable employment so as to force Lauridsen to 
 
            discharge him.  No doubt the discharge and ensuring Job 
 
            Service litigation did little to reduce that ill will.  
 
            Claimant's demeanor at hearing was suggestive of residual 
 
            bitterness.  His testimony was directly inconsistent with 
 
            that of Don Gifford on the issue of whether other complaints 
 
            of hearing loss were made to the safety committee on which 
 
            both served.  Claimant's hearing testimony was inconsistent 
 
            with his earlier deposition testimony on the significant 
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
            
 
            
 
            
 
            issue of when his tinnitus developed (in his deposition, he 
 
            denied that tinnitus preexisted his association with 
 
            Lauridsen).
 
            
 
                 Although claimant and his wife testified to his 
 
            excellent hearing prior to 1979, despite tinnitus, there is 
 
            reason for doubt.  Claimant did not take hearing tests 
 
            offered by the company on September 27, 1983, September 26 
 
            and 27 and December 3, 1984.  He specifically refused to 
 
            take the last examination and told Gifford that he had 
 
            suffered a hearing problem ever since he had been in the 
 
            military, citing this as his reason for avoiding the 
 
            scheduled audiogram.  However, on cross-examination, Gifford 
 
            agreed that claimant had not specified that his trouble 
 
            consisted of a hearing loss as opposed to tinnitus.  
 
            Claimant's testimony on rebuttal that his use of the word 
 
            "military" referred to "military campaigns at Lauridsen 
 
            Foods" as opposed to the U.S. military is unpersuasive.
 
            
 
                                conclusions of law
 
            
 
                 Claimant asserts that his hearing loss is causally 
 
            related to a long history of exposure to excessive noise 
 
            levels during his employment with Lauridsen Foods, not to a 
 
            single traumatic incident such as the explosion to which he 
 
            was exposed during military service.  Prior to 1985, hearing 
 
            loss was compensated as a scheduled member disability under 
 
            Iowa Code section 85.34(2)(r).  Now, hearing loss continues 
 
            to be compensated under the schedule in the following 
 
            language:
 
            
 
                 For the loss of hearing, other than occupational 
 
                 hearing loss as defined in section 85B.4, 
 
                 subsection 1, weekly compensation during fifty 
 
                 weeks, and for the loss of hearing in both ears, 
 
                 weekly compensation during one hundred 
 
                 seventy-five weeks.  For occupational hearing 
 
                 loss, weekly compensation as provided in the Iowa 
 
                 occupational hearing loss Act [chapter 85B].
 
            
 
                 Occupational hearing loss is now compensated under 
 
            chapter 85B.  It is defined in section 85B.4(1) as follows:
 
            
 
                 "Occupational hearing loss" means a permanent 
 
                 sensorineural loss of hearing in one or both ears 
 
                 in excess of twenty-five decibels if measured from 
 
                 international standards organization or American 
 
                 national standards institute zero reference level, 
 
                 which arises out of and in the course of 
 
                 employment caused by prolonged exposure to 
 
                 excessive noise levels.
 
            
 
                 In the evaluation of occupational hearing loss, 
 
                 only the hearing levels at the frequencies of five 
 
                 hundred, one thousand, two thousand, and three 
 
                 thousand Hertz shall be considered.
 
            
 

 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
            
 
            
 
            
 
                 Excessive noise level is defined as sound capable of 
 
            producing occupational hearing loss, thus completing a 
 
            circle.  Section 85B.5 defines excessive noise level as 
 
            sound exceeding various intensities at given durations 
 
            pursuant to a table.  The table is presumptive evidence of 
 
            excessive noise level, but levels below those standards may 
 
            still be found to cause an occupational hearing loss.  
 
            Muscatine County v. Morrison, 409 N.W.2d 685 (Iowa 1987).
 
            
 
                 This decision finds that claimant sustained an 
 
            occupational hearing loss.  Claimant has a loss at the four 
 
            frequencies which the statute sets forth as the exclusive 
 
            frequencies by which occupational hearing loss is measured.  
 
            He also has a hearing loss at higher frequencies, but, even 
 
            assuming that this loss is causally related to his 
 
            employment, they are not compensable under chapter 85B.  It 
 
            is argued that hearing loss at frequencies other than those 
 
            specified in chapter 85B should be separately compensated 
 
            under chapter 85 per the schedule.  Claimant takes the 
 
            position that the legislature "carved out" occupational 
 
            hearing loss at the four specified frequencies to be 
 
            compensated under chapter 85B, but that hearing loss at 
 
            other frequencies should still be compensated under chapter 
 
            85, as was the case prior to enactment of chapter 85B in 
 
            1985.  He cites footnote 1 in Muscatine County, as 
 
            establishing that loss of hearing "is" a scheduled injury 
 
            under 85.34(2)(r) in support of this argument.  However, his 
 
            argument is not persuasive.  The court stated:
 
            
 
                 The Iowa legislature expressed its desire that 
 
                 occupational hearing losses be compensable by 
 
                 enacting a specific chapter dealing with such 
 
                 losses.  Chapter 85B is unique among workers' 
 
                 compensation laws.  By adopting time and intensity 
 
                 exposure standards, the legislature did not seek 
 
                 to rule out hearing losses that do not rise to 
 
                 those levels; rather, the legislature sought to 
 
                 simplify prior problems of proof by recognizing 
 
                 presumptive exposure levels for gradual 
 
                 noise-induced hearing loss.
 
            
 
            Muscatine County, 409 N.W.2d at 687-688.
 
            
 
                 It appears to this writer that the legislature intended 
 
            chapter 85B to be the exclusive remedy for hearing loss 
 
            "caused by prolonged exposure to excessive noise levels."  
 
            Iowa Code section 85B.4(1).  It is most unlikely that the 
 
            General Assembly intended that a single hearing loss related 
 
            to prolonged noise exposure be arbitrarily separated into 
 
            the loss at four specified frequencies and loss at other 
 
            frequencies, and the two parts separately compensated under 
 
            different chapters.  If such a cumbersome procedure had been 
 
            intended, the legislature would surely have so specified, 
 
            rather than by implication only.  It is much more reasonable 
 

 
            
 
            Page   6
 
            
 
            
 
            
 
            
 
            
 
            
 
            
 
            to conclude that the legislature intended all hearing loss 
 
            caused by "prolonged exposure to excessive noise levels" to 
 
            be compensated under chapter 85 and for hearing loss brought 
 
            about through traumatic incident (e.g., blows, explosions) 
 
            to remain compensable under the schedule set forth in 
 
            chapter 85.  Those frequencies mandated by the statute for 
 
            evaluating occupational hearing loss are significant because 
 
            they are vital in comprehending human speech.  There is also 
 
            agency authority to this effect, including a prior ruling in 
 
            this case.  Lilly v. P L M Railcar Maintenance Co., file 
 
            number 865324 (Arb. Decn., December 22, 1989); Smith v. 
 
            Jasper County Care Facility, file number 810107 (Arb. Decn., 
 
            March 15, 1989).  It is so held.
 
            
 
                 Defendants take the position that claimant has failed 
 
            to prove any occupational hearing loss, specifically noting 
 
            his preexisting history of tinnitus.  They also point to 
 
            claimant's admission of preexisting hearing problems to 
 
            Donald Gifford and his failure to take scheduled audiograms.
 
            
 
                 Claimant certainly has hearing loss at frequencies 
 
            other than those measured pursuant to chapter 85B.  Very 
 
            likely, some or all of that hearing loss preexisted 1979 
 
            when claimant began work with Lauridsen Foods.  However, 
 
            preexisting hearing loss at frequencies other than those 
 
            mandated by 85B.4(1) is irrelevant since it is not 
 
            compensable under chapter 85B in any event.  What is 
 
            significant is the extent of claimant's hearing loss at five 
 
            hundred, one thousand, two thousand and three thousand Hertz 
 
            and whether the same is causally related to excessive noise 
 
            levels at Lauridsen Foods, Inc.
 
            
 
                 Here, the audiograms claimant has taken are of supreme 
 
            importance.  Although claimant's audiogram of September 28, 
 
            1982 showed a 2.19 percent hearing loss at the four measured 
 
            frequencies, his next three audiograms in 1983, 1984 and 
 
            1985 showed zero percent impairment.  It seems a fair 
 
            inference that claimant's preemployment history, whatever it 
 
            may have been, did not cause permanent hearing impairment at 
 
            the four specified frequencies.  Audiograms in 1985 and 1986 
 
            showed, respectively, binaural hearing loss of 3.75 and 
 
            3.125 percent.  The last audiogram while claimant was 
 
            employed showed a .9375 percent loss, as did an audiogram 
 
            taken on February 25, 1988, just two weeks after he was 
 
            discharged.
 
            
 
                 On April 15, 1990, more than two years later, another 
 
            audiogram showed a 5.9375 percent hearing loss.  Since 
 
            leaving Lauridsen Foods, claimant has worked as a welder in 
 
            a job that he testified was much quieter, and in which he in 
 
            any event wears hearing protective devices.  Claimant does 
 
            have a hearing loss at the four specified frequencies, and 
 
            the only expert evidence in the record is to the effect that 
 
            it was caused by exposure to occupational noise.  Claimant's 
 

 
            
 
            Page   7
 
            
 
            
 
            
 
            
 
            
 
            
 
            
 
            work after leaving Lauridsen Foods has not been shown to be 
 
            sufficient noisy as to cause hearing loss.  It has long been 
 
            recognized as the prevailing view that permanent hearing 
 
            loss cannot be validly measured until approximately six 
 
            months' separation from the noisy environment.  John Deere 
 
            Dubuque Works v. Weyant, 442 N.W.2d 101 (Iowa 1989).  It is 
 
            held that claimant has met his burden of proof in 
 
            establishing that his hearing loss as measured on April 15, 
 
            1990 arose out of and in the course of his employment with 
 
            Lauridsen Foods.  The words "arising out of" refer to the 
 
            course or source of the injury.  McClure v. Union, et al., 
 
            Counties, 188 N.W.2d 283 (Iowa 1971).  This requirement is 
 
            satisfied by showing a causal relationship between the 
 
            employment and the injury.  Sheerin v. Holin Co., 380 N.W.2d 
 
            415 (Iowa 1986).  Under section 85B.11, an employer is 
 
            liable for an occupational hearing loss "to which the 
 
            employment has contributed," although not liable for 
 
            previous loss.  Previous loss, as measured by the statutory 
 
            frequencies, has not been shown.
 
            
 
                 Pursuant to section 85B.9, hearing loss is measured by 
 
            audiograms, and in particular that audiogram having the 
 
            lowest threshold following notice of an occupational hearing 
 
            loss claim.  Notice, in this case, came on March 30, 1988, 
 
            in the form of a letter from claimant's attorney to 
 
            Employers Mutual, thought at that time to be the insurance 
 
            carrier at risk in this matter.  See Exhibit B-1.  Two 
 
            audiograms have been taken since that date:  April 15, 1990 
 
            and September 17, 1990.  They showed hearing loss of 5.9375 
 
            percent and 10 percent, respectively.  The lower threshold 
 
            is 5.9375 percent.  Although defendants complain of the time 
 
            gap (and particularly, that claimant has worked in 
 
            subsequent employment), they had two years from notice of 
 
            this claim to arrange for an audiogram at their own expense.  
 
            Claimant even requested that they do so.  The petition in 
 
            this matter was filed on August 1, 1989, and all discovery 
 
            provisions applicable to contested cases under chapter 17A 
 
            were then available.
 
            
 
                 Under Iowa Code section 85B.6, compensation is payable 
 
            for a maximum of 175 weeks, and for a proportionate period 
 
            in cases of partial occupational hearing loss.  One hundred 
 
            seventy-five weeks multiplied by 5.9375 percent is 10.39 
 
            weeks.
 
            
 
                 Claimant also seeks to have a hearing aid provided 
 
            under Iowa Code section 85.27.  Chapter 85 is applicable to 
 
            occupational hearing loss cases under section 85B.14.  
 
            Defendants shall be ordered to provide claimant a suitable 
 
            hearing aid.
 
            
 
                                      order
 
            
 
                 THEREFORE, IT IS ORDERED:
 
            
 
                 Defendants shall pay unto claimant ten point three nine 
 

 
            
 
            Page   8
 
            
 
            
 
            
 
            
 
            
 
            
 
            
 
            (10.39) weeks of permanent partial disability benefits 
 
            pursuant to Iowa Code chapter 85B at the stipulated rate of 
 
            four hundred thirty-one and 58/100 dollars ($431.58) and 
 
            totalling four thousand four hundred eighty-four and 11/100 
 
            dollars ($4,484.11).  Benefits commence February 16, 1988.
 
            
 
                 All accrued weekly benefits shall be paid in a lump sum 
 
            together with statutory interest thereon pursuant to Iowa 
 
            Code section 85.30.
 
            
 
                 Defendants shall provide claimant a suitable hearing 
 
            aid.
 
            
 
                 The costs of this action shall be assessed to 
 
            defendants pursuant to rule 343 IAC 4.33.
 
            
 
                 Defendants shall file a claim activity report upon 
 
            compliance with this decision pursuant to rule 343 IAC 3.1.
 
            
 
                 Signed and filed this ______ day of ____________, 1991.
 
            
 
                 
 
            
 
                 
 
                 
 
                                          ______________________________
 
                                          DAVID RASEY
 
                                          DEPUTY INDUSTRIAL COMMISSIONER
 
            
 
            Copies To:
 
            
 
            Mr. Mark S. Soldat
 
            Attorney at Law
 
            714 East State Street
 
            Algona, Iowa  50511
 
            
 
            Mr. George H. Capps
 
            Attorney at Law
 
            P.O. Box 971
 
            Des Moines, Iowa  50304
 
            
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                           2208
 
                           Filed April 26, 1991
 
                           DAVID RASEY
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            DONALD E. MYERS,              :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :         File No. 916738
 
                                          :
 
            LAURIDSEN FOODS, INC.,        :      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.              :
 
            ____________________________________________________________
 
            
 
            2208
 
            Claimant suffered hearing loss both at the four frequencies 
 
            (500, 1000, 2000, 3000 Hz.) mandated by 85B.4(1), and, to a 
 
            greater extent, at higher frequencies.  He argued that loss 
 
            at other frequencies should be separately compensated under 
 
            85.34(2)(r).  This argument was rejected.  Held that hearing 
 
            loss caused by prolonged exposure to excessive noise levels 
 
            should be compensated pursuant to Chapter 85B, while hearing 
 
            loss of traumatic origin is to be compensated as a scheduled 
 
            loss.
 
            
 
 
            
 
            Page   1
 
            
 
            
 
            
 
            
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            CLETUS TIGGES,                :
 
                                          :        File No. 916741
 
                 Claimant,                :
 
                                          :     A R B I T R A T I O N
 
            vs.                           :
 
                                          :        D E C I S I O N
 
            JOHN DEERE DUBUQUE WORKS OF   :
 
            DEERE & COMPANY,              :
 
                                          :
 
                 Employer,                :
 
                 Self-Insured,            :
 
                 Defendant.               :
 
            ___________________________________________________________
 
            
 
            
 
                              STATEMENT OF THE CASE
 
            
 
                 This is a proceeding in arbitration brought by Cletus 
 
            Tigges, claimant, against John Deere Dubuque Works of Deere 
 
            & Company, employer (hereinafter referred to as Deere), a 
 
            self-insured defendant, for workers' compensation benefits 
 
            as a result of an alleged injury on May 31, 1989.  On August 
 
            14, 1991, a hearing was held on claimant's petition and the 
 
            matter was considered fully submitted at the close of this 
 
            hearing.
 
            
 
                 The parties have submitted a prehearing report of con
 
            tested issues and stipulations which was approved and 
 
            accepted as a part of the record of this case at the time of 
 
            hearing.  The oral testimony and written exhibits received 
 
            during the hearing are set forth in the hearing transcript.
 
            
 
                                      issues
 
            
 
                 The parties submitted the following issues for determi
 
            nation in this proceeding:
 
            
 
                   I.  Whether claimant received an injury arising out 
 
            of and in the course of employment;
 
            
 
                  II.  Whether the claim is timely; and,
 
            
 
                 III.  The extent of claimant's entitlement to benefits.
 
            
 
                                 findings of fact
 
            
 
                 Having heard the testimony and considered all the evi
 
            dence, the deputy industrial commissioner finds as follows:
 
            
 
                 A credibility finding is necessary to this decision as 
 
            defendant places claimant's credibility at issue during 
 
            cross-examination as to the nature and timing of the claimed 
 
            injury and disabilities.  From  their demeanor while testi
 
            fying all witnesses testifying at the hearing, including the 
 
            claimant, are found credible.
 
            
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
                 Claimant, age 57, worked for Deere for 30 years until 
 
            May 31, 1987, at which time he retired.  For his last 19 to 
 
            20 years at Deere, claimant was assigned to the engine 
 
            assembly line and to a specific job on that line.  This job 
 
            involved the assembly onto 3-6 cylinder engines of an oil 
 
            pump and a flywheel housing.  While the engines were hanging 
 
            from overhead hooks, claimant would first use a speed and 
 
            torque wrench to hand tighten the bolts on the oil pump and 
 
            then use an air wrench to assemble the housing.  The fly
 
            wheel housings were heavy weighing from 50 to 80 pounds 
 
            each.  Although there was some disagreement among the wit
 
            nesses as to whether the torque wrench was set at 35 or 40 
 
            pounds, there was little dispute that claimant's job 
 
            involved repetitive heavy use of the arms and shoulders.  
 
            Much of the work was performing while his arms were out
 
            stretched between the shoulder and waist level.  Claimant's 
 
            supervisors at Deere testified at hearing that claimant was 
 
            a very good employee and one supervisor stated that he 
 
            wished that all of his employees were like claimant.
 
            
 
                 Claimant testified that his retirement from Deere was 
 
            voluntary.  However, he stated that he suffered from aches 
 
            and pains including right shoulder stiffness approximately 
 
            seven years before the retirement and hoped that the retire
 
            ment would improve the condition.  He stated that he 
 
            reported this pain to one of his supervisors on one occasion 
 
            but was told that if he could not handle the job that he 
 
            should quit.  Claimant stated that he took large quantities 
 
            of aspirin for his pain while working.  The record estab
 
            lishes that claimant is certainly not a complainer.  The 
 
            company physician testified that the frequency of claimant's 
 
            medical complaints and treatment at the Deere medical clinic 
 
            was unusually low.  Claimant stated at hearing that his 
 
            shoulder condition did not prevent or restrict him from 
 
            working.  Claimant stated that he has not looked for employ
 
            ment since leaving Deere and apparently is not planning on 
 
            returning to the work force.
 
            
 
                 Exactly two years after his retirement, claimant sought 
 
            treatment for right shoulder pain.  He was referred to David 
 
            S. Field, M.D., a board certified orthopedic surgeon.  
 
            According to Dr. Field's office notes, claimant reported the 
 
            onset of pain three months earlier with no report of 
 
            specific injury.  The treatment ultimately involved ortho
 
            scopic surgery to the shoulder to repair torn cartilage in 
 
            the labrum.  Also, degenerative arthritis of the acromio
 
            clavicular (AC) joint was found and the joint was injected 
 
            with medication.  Following recovery from the surgery, 
 
            claimant returned to Dr. Field in April of 1990, for a 
 
            second surgery.  This time Dr. Field repaired a small tear 
 
            in the rotator cuff of the right shoulder.  At the present 
 
            time claimant continues to have right shoulder problems and 
 
            has been treated since the second surgery by an associate of 
 
            Dr. Field, Scott Schemmel, M.D., another orthopedic surgeon.  
 
            Dr. Schemmel states that if further injections into the 
 
            shoulder do not help, a third surgery may be necessary.
 
            
 
                 It could not be found from the evidence presented that 
 
            claimant's right shoulder problems treated by Dr. Field and 
 
            Dr. Schemmel are causally connected to his work at Deere.  
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            The deficiency in claimant's case stems from the lack of 
 
            supportive medical expert testimony and the lack of 
 
            non-medical evidence to support a causal connection finding.  
 
            Although Dr. Field stated in his deposition that claimant's 
 
            problems can be due to repetitive use of the shoulder at 
 
            Deere, he could only opine that this was a medical possibil
 
            ity, not a probability.  He stated that many persons who 
 
            have not been subjected to repetitive use of the shoulder 
 
            suffer from such a condition as a part of the normal aging 
 
            process.  Dr. Schemmel likewise opined that the post-second 
 
            surgery problems were only possibly work related and he 
 
            could not provide any degree of probability.  The company 
 
            physician at Deere also testified at hearing that he did not 
 
            believe that claimant's problems were work related.
 
            
 
                 Finally, although claimant stated that he had some 
 
            shoulder problems in the years before retirement and this is 
 
            believed by this deputy industrial commissioner, it is 
 
            rather obvious that claimant was not compelled by his pain 
 
            to seek treatment until two years after ending his work at 
 
            Deere.  The fact that the condition continued to worsen when 
 
            claimant was not working is evidence that the condition may 
 
            not be caused by the work.  Given the lack of a continuous 
 
            pattern of medical complaints and treatment, the undersigned 
 
            must rely heavily upon expert opinion.  In this case, expert 
 
            opinion that the work was only possibly a cause of the con
 
            dition was insufficient to establish the requisite causal 
 
            connection.
 
            
 
                                conclusions of law
 
            
 
                 Claimant has the burden of proving by a preponderance 
 
            of the evidence that claimant received an injury which arose 
 
            out of and in the course of employment.  The words "out of" 
 
            refer to the cause or source of the injury.  The words "in 
 
            the course of" refer to the time and place and circumstances 
 
            of the injury.  See Cedar Rapids Community Sch. v. Cady, 278 
 
            N.W.2d 298 (Iowa 1979); Crowe v. DeSoto Consol. Sch. Dist., 
 
            246 Iowa 402, 68 N.W.2d 63 (1955).  An employer takes an 
 
            employee subject to any active or dormant health impair
 
            ments, and a work connected injury which more than slightly 
 
            aggravates the condition is considered to be a personal 
 
            injury.  Ziegler v. United States Gypsum Co., 252 Iowa 613, 
 
            620, 106 N.W.2d 591 (1960) and cases cited therein.
 
            
 
                 It is not necessary that claimant prove his disability 
 
            results from sudden unexpected traumatic event.  It is suf
 
            ficient to show that the disability developed gradually or 
 
            progressively from work activity over a period of time.  
 
            McKeever Custom Cabinets v. Smith, 379 N.W.2d 368 (Iowa 
 
            1985).
 
            
 
                 The question of causal connection is essentially within 
 
            the domain of expert medical opinion.  Bradshaw v. Iowa 
 
            Methodist Hospital, 251 Iowa 375, 101 N.W.2d 167 (1960).  
 
            The opinion of experts need not be couched in definite, pos
 
            itive or unequivocal language and the expert opinion may be 
 
            accepted or rejected, in whole or in part, by the trier of 
 
            fact.  Sondag v. Ferris Hardware, 220 N.W.2d 903 (Iowa 
 
            1974).  The weight to be given to such an opinion is for the 
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
            finder of fact, and that may be affected by the completeness 
 
            of the premise given the expert and other surrounding cir
 
            cumstances.  Bodish v. Fischer, Inc., 257 Iowa 516, 133 
 
            N.W.2d 867 (1965).
 
            
 
                 Furthermore, if the available expert testimony is 
 
            insufficient alone to support a finding of causal connec
 
            tion, such testimony may be coupled with nonexpert testimony 
 
            to show causation and be sufficient to sustain an award.  
 
            Giere v. Asse Haugen Homes, Inc., 259 Iowa 1065, 146 N.W.2d 
 
            911, 915 (1966).  Such evidence does not, however, compel an 
 
            award as a matter of law.  Anderson v. Oscar Mayer & Co., 
 
            217 N.W.2d 531, 536 (Iowa 1974).
 
            
 
                 In the case sub judice, although a finding of causal 
 
            connection can be made with an expert opinion only express
 
            ing a possible causal connection, the lay testimony in this 
 
            case was simply insufficient to bolster this opinion to show 
 
            by a preponderance of the evidence that claimant suffered a 
 
            work injury.  The fact remains that claimant's problems are 
 
            just as likely caused by the aging process or other activi
 
            ties other than claimant's work.  Although claimant is con
 
            vinced that it is work related, claimant is not a doctor and 
 
            the undersigned must rely upon the available expert opinion 
 
            provided.
 
            
 
                 As claimant failed to show a work injury, the issues of 
 
            the timeliness of his claim and of his notice are moot.
 
            
 
                 As claimant's claim is arguable and he appeared honest 
 
            at hearing, claimant will be awarded the costs of this 
 
            action.
 
            
 
                           
 
            
 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
            order
 
            
 
                 1.  Claimant's petition for workers' compensation bene
 
            fits filed herein is dismissed with prejudice and benefits 
 
            are denied.
 
            
 
                 2.  Defendants shall pay the costs of this action pur
 
            suant to rule 343 IAC 4.33, including reimbursement to 
 
            claimant for any filing fee paid in this matter.
 
            
 
            
 
            
 
                 Signed and filed this ____ day of August, 1991.
 
            
 
            
 
            
 
            
 
            
 
                                          ______________________________
 
                                          LARRY P. WALSHIRE
 
                                          DEPUTY INDUSTRIAL COMMISSIONER
 
            
 
            Copies To:
 
            
 
            Mr. Michael J. Coyle
 
            Attorney at Law
 
            200 Security Bldg
 
            Dubuque  IA  52001
 
            
 
            Mr. Leo A. McCarthy
 
            Attorney at Law
 
            222 Fischer Bldg
 
            P O Box 239
 
            Dubuque  IA  52004
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                           5-1108
 
                           Filed August 28, 1991
 
                           LARRY P. WALSHIRE
 
            before the iowa industrial commissioner
 
            ____________________________________________________________
 
                      :
 
            CLETUS TIGGES, :
 
                      :        File No. 916741
 
                 Claimant, :
 
                      :     A R B I T R A T I O N
 
            vs.       :
 
                      :        D E C I S I O N
 
            JOHN DEERE DUBUQUE WORKS OF   :
 
            DEERE & COMPANY,    :
 
                      :
 
                 Employer, :
 
                 Self-Insured,  :
 
                 Defendant.     :
 
            ___________________________________________________________
 
            
 
            
 
            
 
            5-1108
 
            Benefits denied for failure to provide sufficient lay 
 
            evidence to show causal connection when all the experts 
 
            agreed to only a possible causal connection.
 
            
 
 
            
 
            Page   1
 
            
 
            
 
            
 
            
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            CATHERINE L. EDMUNDSON,       :
 
                                          :
 
                 Claimant,                :
 
                                          :        File No. 916750
 
            vs.                           :
 
                                          :
 
            IOWA STATE UNIVERSITY,        :     A R B I T R A T I O N
 
            HORTICULTURE DEPARTMENT,      :
 
                                          :        D E C I S I O N
 
                 Employer,                :
 
                                          :
 
            and                           :
 
                                          :
 
            STATE OF IOWA,                :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
                                   introduction
 
            
 
                 This is a proceeding in arbitration filed by Catherine 
 
            L. Edmundson, claimant, against Iowa State University, 
 
            Horticulture Department, employer, and State of Iowa, 
 
            insurance carrier, defendants, for benefits as a result of 
 
            an alleged injury which occurred on August 10, 1987.  A 
 
            hearing was held in Des Moines, Iowa, on July 18, 1990, and 
 
            the case was fully submitted at the close of the hearing.  
 
            Claimant was represented by Dennis L. Hanssen.  Defendants 
 
            were represented by Robert D. Wilson.
 
            
 
                 The record consists of the testimony of Catherine L. 
 
            Edmundson, claimant, John Kolmer, co-employee, and Greg 
 
            Malcom, co-employee, and joint exhibits 1 through 5, 
 
            consisting of 19 consecutively numbered pages.
 
            
 
                                   stipulations
 
            
 
                 The parties stipulated to the following matters at the 
 
            time of the hearing:
 
            
 
                 1.  That an employer-employee relationship existed 
 
            between claimant and the employer at the time of the alleged 
 
            injury.
 
            
 
                 2.  That the rate of compensation, in the event of an 
 
            award of benefits, now or in the future, is $97.92 per week.
 
            
 
                 3.  That the fees charged for medical services or 
 
            supplies rendered are fair and reasonable and that these 
 
            expenses were incurred for reasonable and necessary medical 
 
            treatment.
 
            
 
                 4.  That the causal connection of these expenses to 
 
            treatment for a medical condition upon which claimant is 
 
            found basing her claim is admitted but that the causal 
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            connection of this condition to a work injury remains an 
 
            issue to be decided in these proceedings.
 
            
 
                 5.  That defendants make no claim for credit for either 
 
            employee nonoccupational group health plan benefits paid to 
 
            claimant prior to hearing or for workers' compensation 
 
            benefits paid to claimant prior to hearing.
 
            
 
                 6.  That in the event it is determined that defendants 
 
            are liable for an injury arising out of and in the course of 
 
            employment with employer that defendants will pay future 
 
            medical benefits and temporary disability benefits for 
 
            claimant's time off work caused by the future treatment.
 
            
 
                      amendment to hearing assignment order
 
            
 
                 At the time of the hearing, Deputy Industrial 
 
            Commissioner Helenjean Walleser, at the request of the 
 
            parties, amended the hearing assignment order to bifurcate 
 
            the issues of: (1) whether the injury was the cause of 
 
            permanent disability, and (2) whether claimant is entitled 
 
            to permanent disability benefits.
 
            
 
                                      issues
 
            
 
                 The parties submitted the following issues for 
 
            determination:
 
            
 
                 1.  Whether claimant sustained an injury on August 10, 
 
            1987 which arose out of and in the course of her employment 
 
            with the employer, and more specifically, whether the injury 
 
            arose in the course of employment, and whether claimant was 
 
            engaged in horseplay at the time of the injury; and,
 
            
 
                 2.  Whether defendants are liable for medical benefits 
 
            incurred up to the date of the hearing.
 
            
 
                               preliminary matters
 
            
 
                 At the time of the hearing, claimant withdrew the 
 
            disputed issue of alternate medical care shown on the 
 
            hearing assignment order and defendants withdrew the issue 
 
            of notice under Iowa Code section 85.23 and intoxication 
 
            under 85.16(2) as shown on the hearing assignment order.
 
            
 
                                 findings of fact
 
            
 
                 It is determined that claimant did sustain an injury 
 
            which arose out of and in the course of her employment with 
 
            employer.  It is further determined that claimant was in the 
 
            course of her employment at the time of the injury.  It is 
 
            determined that claimant was not engaged in horseplay which 
 
            took claimant out of the course of her employment at the 
 
            time of her injury.
 
            
 
                 Claimant started to school at Iowa State University in 
 
            the fall of 1986 as a horticulture major.  In May 1987, she 
 
            became employed at the Horticulture Research Station as an 
 
            assistant to one of the professors.  She did not take a 
 
            pre-employment physical examination, but in her testimony 
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            she denied any prior or subsequent shoulder injuries and 
 
            there is no medical evidence of any prior or subsequent 
 
            shoulder injuries.  Her duties included mixing soils, 
 
            applying fertilizers, weeding the plots, and data collection 
 
            for the professor.
 
            
 
                 On August 10, 1987, one of the buildings where she 
 
            worked had new cement poured in it.  During the morning 
 
            break, claimant, John Kolmer, Greg Malcom, and some others 
 
            decided to take the jeep and go to this building and put 
 
            their initials in the newly poured concrete.
 
            
 
                 Claimant testified three times that her purpose in 
 
            going to the site was to see the place where she had worked 
 
            previously and would work again in the future to mix soils 
 
            and obtain tractor equipment.  Kolmer and Malcom testified 
 
            that in their opinion, claimant's motive for going to the 
 
            construction site was to put her initials in the cement as 
 
            they had planned to do.
 
            
 
                 This building was entered by a hole in the side of it 
 
            which required a person to go under some boards and over 
 
            some other boards.  While entering through this hole, 
 
            claimant tripped and fell forward landing on her left 
 
            shoulder.  Kolmer, Malcom and possibly others witnessed the 
 
            accident.  Claimant was taken to Iowa State University 
 
            Clinic where she was treated for a dislocation of the left 
 
            shoulder with closed-type of reduction  (Joint Exhibit 4, 
 
            page 5).  An x-ray after the reduction disclosed no evidence 
 
            of fracture or chip of the glenohumeral joint (Jt. Ex. 4, 
 
            pp. 5,6).  On August 17, 1987, she reported to the doctor 
 
            that it still feels like it snaps or pops with certain 
 
            movements.  On August 26, 1987, it was noted that the left 
 
            shoulder was much improved.  On August 31, 1987, she had a 
 
            fairly good range of motion but some limitation to abduction 
 
            and external rotation.  She was placed on a rehabilitation 
 
            program which included swimming in a modified form (Jt. Ex. 
 
            4, p. 7).  Claimant did not seek any medical attention again 
 
            for her left shoulder until July 7, 1989 when she saw John 
 
            A. Grant, M.D., an orthopedic surgeon. (Jt. Ex. 1,2).
 
            
 
                 Claimant worked in the fall of 1987 and the spring of 
 
            1988 as an assistant to another professor in the 
 
            horticulture department.  She was able to perform this 
 
            employment without any shoulder problems.  She did notice 
 
            problems when she lifted her left arm overhead or when she 
 
            attempted to put her left arm under her pillow to sleep.  
 
            She cannot sleep comfortablly on her left side.  In the 
 
            summer of 1988, claimant worked a horticulture internship 
 
            without problems except lifting water buckets which weighed 
 
            20 to 25 pounds caused her to feel a pull in her left arm.  
 
            She further found that she was unable to perform the crawl 
 
            stroke while swimming.  Claimant worked as a nurse's aide 
 
            from October 1988 to March 1989 without any problems caused 
 
            by this work.  After that she worked for a landscaping 
 
            company as an assistant manager.  This job required her to 
 
            lift up to 50 pounds.
 
            
 
                 She began to have recurrent dislocations of her left 
 
            shoulder beginning in the fall of 1988.
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
            
 
                 In November of 1988, she reached to turn off the alarm 
 
            and dislocated her shoulder while lying in bed.  When she 
 
            laid back, it went back into place.  She sought no medical 
 
            treatment, continued to work and used her right arm rather 
 
            than her left arm.  In May of 1989, she dislocated the left 
 
            shoulder again when she turned to switch off the light with 
 
            her left arm.  Again, she received no medical treatment and 
 
            continued to work.
 
            
 
                 A third dislocation occurred in June of 1989 when she 
 
            reached backwards with her left arm.  Again, she received no 
 
            medical treatment.  A fourth dislocation occurred on July 7, 
 
            1989 while lying on a beanbag in her living room with her 
 
            arms overhead.  She continued to work but this time she saw 
 
            John Grant, M.D., an orthopedic surgeon, who treated an 
 
            anterior inferior dislocation of the left shoulder and 
 
            reduced it without anesthesia and he recommended surgery to 
 
            prevent further dislocations and her problems with abduction 
 
            and external rotation (Jt. Ex. 2).  On April 3, 1990, Dr. 
 
            Grant stated:
 
            
 
                    It was my recommendation that she undergo 
 
                 surgical repair of the recurring dislocation.  The 
 
                 need for repair is the multiple recurring 
 
                 dislocations of the shoulder that are the direct 
 
                 result of the initial work-related injury.
 
            
 
                    The ease with which her shoulder now dislocates 
 
                 will at times place her in a position of risk, 
 
                 should she be climbing or doing other various 
 
                 activities.  These activities could, in fact, 
 
                 endanger her life if it were something like 
 
                 swimming or climbing ladders or scaffolding.
 
            
 
            (Jt. Ex. 1)
 
            
 
                 Claimant saw Scott Neff, D.O., an orthopedic surgeon, 
 
            for an independent medical examination on June 27, 1990.  He 
 
            found that her left shoulder was markedly abnormal.  He 
 
            relied on claimant's history of the first dislocation in 
 
            August of 1987 and the four subsequent dislocations 
 
            described above.  Dr. Neff recommended an MRI before surgery 
 
            followed by a Bankart capsular shift type procedure  (Jt. 
 
            Ex. 3).  Claimant testified that she would be willing to 
 
            have Dr. Neff perform the surgery, she simply would like to 
 
            have the problem corrected.
 
            
 
                 Claimant conceded that she was not involved in the 
 
            construction project of pouring the cement floor.  However, 
 
            she had performed soil mixing at that building and used 
 
            tractor parts which were stored in that building and she 
 
            wanted to inspect the site where she would be working in the 
 
            future in that building.  She denied that she entered the 
 
            building to write her name in the concrete.  She 
 
            acknowledged that she did not take the previous x-ray and 
 
            medical report from the Iowa State clinic to Dr. Grant when 
 
            she saw him on July 7, 1989 and again on July 17, 1989.
 
            
 
                 Claimant conceded that she did not have any inspection 
 

 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
            or supervisory responsibilities with regard to the cement 
 
            pouring construction project but at the same time there was 
 
            no specific prohibition or reason why she could not go and 
 
            inspect it if she wanted to.  A person named Adrian Lucas, 
 
            who was a full-time employee of employer, was aware of her 
 
            visit to the newly poured cement floor and was present at 
 
            the time.  He was like an overseer for employer of all that 
 
            transpired at the research station and he did not raise any 
 
            objection or specifically prohibit her from going to the 
 
            site.  Claimant's testimony at this point was corroborated 
 
            by Malcom.  Malcom also testified that when claimant entered 
 
            the building, she stated "watch this."
 
            
 
                 As a factual matter, it is determined that one of 
 
            claimant's motives to go to the building where the injury 
 
            occurred was to see the concrete improvement at a place 
 
            where she had previously and in the future planned to work.  
 
            This is a reasonable and logical reason for her motivation 
 
            in going to the building.  The fact that Kolmer and Malcom 
 
            believed that claimant was going to the building to put her 
 
            initials in the newly poured concrete as they were going to 
 
            do is a reasonable conclusion on their part, also.  However, 
 
            their testimony is an opinion, an impression or conclusion 
 
            on their part for the reason they could not know what was in 
 
            claimant's mind and she was not quoted as giving any reason 
 
            to them for going to the construction site.  It is entirely 
 
            possible, and probably the fact of the matter, that claimant 
 
            went to the construction site for both reasons.  The 
 
            testimony of Kolmer and Malcom as to claimant's motivation, 
 
            although different from claimant's, nevertheless, did not 
 
            factually contradict what she stated was her intention in 
 
            this matter.  Her testimony, which is credible, is the best 
 
            evidence of what her own intention was in this matter.
 
            
 
                 There was no evidence to show that claimant was 
 
            prohibited from going to the construction site to inspect 
 
            the place where she had worked and planned to work in the 
 
            future.  There was no evidence that claimant was admonished, 
 
            reprimanded or punished in any way after going to the 
 
            construction site.  A full-time overseer for employer was 
 
            present and voiced no complaints about her trip to the 
 
            construction site.  Even though Kolmer and Malcom testified 
 
            that it was claimant's intention to put her initials in the 
 
            concrete, neither one of them testified that it was improper 
 
            for her to go to the construction site at the time of the 
 
            injury.  In view of the foregoing evidence, it is not 
 
            possible to say that claimant was engaged in horseplay, 
 
            especially when it is considered that all of the 
 
            participants in the endeavor were young college age students 
 
            working on a summer project and no rigid employment rules or 
 
            prohibition against claimant's being at the construction 
 
            site were introduced into evidence.
 
            
 
                 For the foregoing reasons, it is determined, as a 
 
            factual matter, that claimant did sustain an injury which 
 
            arose out of and in the course of her employment with 
 
            employer when she injured her shoulder on August 10, 1987 
 
            and that her behavior in going to the construction site did 
 
            not constitute horseplay.  Furthermore, the recorded Iowa 
 
            cases indicate that horseplay occurs when one employee 
 

 
            
 
            Page   6
 
            
 
            
 
            
 
            
 
            injures another employee as a result of some frivolous act 
 
            and that is not the case under the facts of this case.  Ford 
 
            v. Barcus, 261 Iowa 616, 155 N.W.2d 507 (Iowa 1968); Wittmer 
 
            v. Dexter Mfg. Co., 204 Iowa 180, 214 N.W. 700 (1927); Baker 
 
            v. Roberts & Beier, 209 Iowa 290, 228 N.W. 9 (1929); Swanson 
 
            v. Lynch Roofing and Siding, Thirty-third Biennial Rep., 
 
            Iowa Indus. Comm'r 150 (Appeal Decision 1977); Cox v. Great 
 
            Plains Beef Co., Thirty-fourth Biennial Rep., Iowa Indus. 
 
            Comm'r 80 (1979); Winters v. Asgrow Seed Co., Thirty-fourth 
 
            Biennial Rep., Iowa Indus. Comm'r 347 (1978); Klinker v. 
 
            Wilson Foods Corp., Thirty-fourth Biennial Rep., Iowa Indus. 
 
            Comm'r 167 (Appeal Decision 1979).  Therefore, in addition, 
 
            it is determined that claimant's behavior did not constitute 
 
            horseplay and that the injury did occur in the course of 
 
            claimant's employment.
 
            
 
                 From the medical point of view, Dr. Grant clearly 
 
            stated: "The need for repair is the multiple recurring 
 
            dislocations of the shoulder that are the direct result of 
 
            the initial work-related injury." (Jt. Ex. 1)  Dr. Neff 
 
            proceeded on the basis of the work injury and recurring 
 
            locations which occurred subsequent to that time which had 
 
            no other traumatic reason for onset other than simple, 
 
            natural and normal movements of the left arm.
 
            
 
                 Claimant has requested payment of a medical bill from 
 
            the McFarland Clinic and Dr. Grant for treatment and x-ray 
 
            of the left shoulder in the amount of $223.50 (Jt. Ex. 18) 
 
            and bill from Mary Greeley Medical Center, dated July 7, 
 
            1989, in the amount of $89.85 for the emergency room, 
 
            medical supplies and an x-ray (Jt. Ex. 19).  It is 
 
            determined that this treatment was caused by this injury and 
 
            claimant is entitled to recover for these medical expenses.  
 
            Defendants assert that Dr. Grant was not provided with the 
 
            earlier x-ray and medical treatment at the Iowa State 
 
            Medical Clinic on August 10, 1987.  However, it is 
 
            determined that claimant established causation between the 
 
            employment and the injury by the testimony of Dr. Grant and 
 
            Dr. Neff.  If defendants wanted either doctor to examine 
 
            this earlier medical information, it was incumbent upon 
 
            defendants to obtain the controverting or contradicting 
 
            evidence from the doctors.  It is further noted that there 
 
            was no medical evidence or any other evidence introduced by 
 
            defendants to refute that claimant's current shoulder 
 
            condition was not caused by this injury.
 
            
 
                                conclusions of law
 
            
 
                 Wherefore, based on the evidence presented and the 
 
            foregoing and following principles of law, these conclusions 
 
            of law are made.
 
            
 
                 Claimant did sustain a burden of proof by a 
 
            preponderance of the evidence that she sustained an injury 
 
            on August 10, 1987 which arose out of and in the course of 
 
            her employment with employer and which was not the result of 
 
            horseplay in the context of the Iowa cases on that point.  
 
            See the citation of legal authority in the findings of fact 
 
            above.  Defendants are correct in stating that horseplay is 
 
            not an affirmative defense but rather, historically, in 
 

 
            
 
            Page   7
 
            
 
            
 
            
 
            
 
            Iowa, the issue of horseplay has been treated as an "arising 
 
            out of" issue.  Wittmer, 204 Iowa 180, 214 N.W. 700; Ford, 
 
            155 N.W.2d 507; Winters, Thirty-fourth Biennial Rep., Iowa 
 
            Ind. Comm'r 347 (1978).  Iowa Code section 85.3(1); 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); Crowe v. DeSoto Consolidated School 
 
            District, 246 Iowa 402, 68 N.W.2d 63 (1955); McClure v. 
 
            Union, et al., Counties, 188 N.W.2d 283 (Iowa 1971).
 
            
 
                 Actual work activity at the time of injury is 
 
            unnecessary.  Bushing v. Iowa R. & L. Co., 208 Iowa 1010, 
 
            1019, 226 N.W. 719, 723 (1929).  Emphasis is placed on 
 
            whether the employee is furthering the employer's business, 
 
            whether or not the task is common to the job or outside the 
 
            usual employment duties.  Iowa Workers' Compensation Law and 
 
            Practice, Lawyer and Higgs, Section 1-1, p. 39.  Sister Mary 
 
            Benedict v. St. Mary's Corp., 225 Iowa 847, 124 N.W.2d 548 
 
            (1963).  Claimant testified that her motive in going to the 
 
            construction project was to inspect or observe the place 
 
            where she had worked in the past and would be working in the 
 
            future after new concrete had been poured to improve the 
 
            work site.  If claimant is familiar with the place where she 
 
            has and will work an employer would be benefited by this 
 
            information.  Briar Cliff College v. Campolo, 360 N.W.2d 91 
 
            (Iowa 1984).
 
            
 
                 The Iowa Supreme Court has frequently stated that the 
 
            Iowa Workers' Compensation Law is to be interpreted broadly 
 
            and liberally in favor of the injured worker and his 
 
         n July 7, 1989.
 
            
 
                                      order
 
            
 
                 THEREFORE, It Is Ordered:
 
            
 
                 That defendants pay to claimant or the provider of 
 
            medical services three hundred thirteen and 35/100 dollars 
 
            ($313.35) for McFarland Clinic and Mary Greeley Medical 
 
            Center.
 
            
 
                 That defendants abide by the stipulation at hearing to 
 
            pay for the future medical expenses and temporary disability 
 
            which are caused by the future treatment of this left 
 
            shoulder injury.
 
            
 
                 That the costs of this action are charged to defendants 
 
            pursuant to Division of Industrial Services Rule 343-4.33.
 
            
 
                 That defendants file claim activity reports as 
 
            requested by this agency pursuant to Division of Industrial 
 
            Services Rule 343-3.1.
 
            
 
                 That this case be placed back into assignment for a 
 
            future hearing on the bifurcated issues of causal connection 
 
            and entitlement to permanent disability benefits.
 
            
 
                 Signed and filed this _____ of July, 1990.
 
            
 
            
 
            
 
            
 
                                          ______________________________
 
                                          WALTER R. McMANUS, JR.
 
                                          DEPUTY INDUSTRIAL COMMISSIONER
 

 
            
 
            Page   9
 
            
 
            
 
            
 
            
 
            Copies to:
 
            
 
            Mr Dennis L Hanssen
 
            Attorney at Law
 
            Terrace Ctr  Ste 111
 
            2700 Grand Ave
 
            Des Moines IA 50312
 
            
 
            Mr Robert D Wilson
 
            Assistant Attorney General
 
            Hoover State Office Bldg
 
            Tort Claims
 
            Des Moines IA 50319
 
            
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                          1106, 1108.50, 1401, 1402.20
 
                                          1402.30, 1402.60
 
                                          51801, 51802, 51803, 52501,
 
                                          52700
 
                                          Filed July 27, 1990
 
                                          Walter R. McManus, Jr.
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            CATHERINE L. EDMUNDSON,       :
 
                                          :
 
                 Claimant,                :
 
                                          :        File No. 916750
 
            vs.                           :
 
                                          :
 
            IOWA STATE UNIVERSITY,        :     A R B I T R A T I O N
 
            HORTICULTURE DEPARTMENT,      :
 
                                          :        D E C I S I O N
 
                 Employer,                :
 
                                          :
 
            and                           :
 
                                          :
 
            STATE OF IOWA,                :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
            1106; 1108.50; 1401; 1402.20; 1402.30; 1402.60
 
            Claimant did sustain an injury arising out of and in the 
 
            course of employment.  She was not engaged in horseplay at 
 
            the time of the injury.
 
            
 
            51801; 51802; 51803
 
            Bifurcated.
 
            
 
            52501; 52700
 
            Defendants ordered to pay for medical expenses to date and 
 
            future medical expenses as stipulated.
 
            
 
            
 
 
         
 
 
 
 
 
 
 
 
 
 
 
                    BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         _________________________________________________________________
 
                     
 
         JOHN MILLER,     
 
                     
 
              Claimant,   
 
                     
 
         vs.         
 
                                                File No. 916756
 
         JIMMY DEAN MEAT COMPANY,   
 
                                                   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 
 
         December 14, 1993 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 June, 1993.
 
         
 
         
 
         
 
         
 
                                      ________________________________
 
                                              BYRON K. ORTON
 
                                         INDUSTRIAL COMMISSIONER
 
         
 
         Copies To:
 
         
 
         Mr. Steven C. Jayne
 
         Attorney at Law
 
         5835 Grand Ave., Ste 201
 
         Des Moines, Iowa 50312
 
         
 
         Mr. Helmut Mueller
 
         Attorney at Law
 
         RR 5
 
         Osceola, Iowa 50213
 
         
 
         Mr. Glenn Goodwin
 
         Attorney at Law
 
         4th Floor, Equitable Bldg.
 
         Des Moines, Iowa 50309
 
         
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                                1108.30; 2907
 
                                                Filed June 24, 1993
 
                                                Byron K. Orton
 
            
 
                      BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
            
 
            JOHN MILLER,     
 
                        
 
                 Claimant,   
 
                        
 
            vs.         
 
                                               File No. 916756
 
            JIMMY DEAN MEAT COMPANY,   
 
                                                 A P P E A L
 
                 Employer,   
 
                                               D E C I S I O N
 
            and         
 
                        
 
            TRAVELERS INSURANCE COMPANY,    
 
                        
 
                 Insurance Carrier,    
 
                 Defendants.      
 
            ____________________________________________________________
 
            
 
            
 
            1108.30
 
            Claimant failed to prove by a preponderance of the evidence 
 
            that long-term exposure to elevated levels of carbon dioxide 
 
            caused his organic brain syndrome.  Claimant's expert 
 
            provided a very plausible and perhaps correct analysis 
 
            supporting causation, but there was no previously known 
 
            incident reported in any of the medical journals where an 
 
            exposure of the type the claimant experienced produced the 
 
            condition which afflicted this claimant.  The claim was 
 
            therefore denied.
 
            
 
            2907
 
            Defendants failed to make discovery by failing to disclose 
 
            requested records.  As a sanction, the costs of the action 
 
            were assessed against defendants despite the fact that they 
 
            prevailed on the merits of the claim.
 
            
 
 
            
 
            Page   1
 
            
 
            
 
            
 
            
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            JOHN MILLER,                  :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :      File No. 916756
 
            JIMMY DEAN MEAT COMPANY,      :
 
                                          :  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 John 
 
            Miller against Jimmy Dean Meat Company and Travelers 
 
            Insurance Company.  The claim asserts that Miller has 
 
            developed organic brain syndrome which has severely impaired 
 
            his intellectual functioning as a result of being exposed to 
 
            carbon dioxide during the nine years that he was employed by 
 
            Jimmy Dean Meat Company.  The principle issue in the case is 
 
            whether or not the condition was caused by Miller's 
 
            employment.
 
            
 
                 The case was heard at Des Moines, Iowa, on June 3, 
 
            1992.  The record in this proceeding consists of joint 
 
            medical exhibits 1 through 8, claimant's exhibits 1 through 
 
            9 and defendants' exhibits A, B and C.  The record also 
 
            contains testimony from claimant's spouse, Gale Miller; John 
 
            Miller; David Sams; Marilyn Dorland; and Kingsley B. Grant, 
 
            M.D.
 
            
 
                                 findings of fact
 
            
 
                 John Miller is a 52-year-old married man who is 
 
            apparently totally disabled from gainful employment by an 
 
            intellectual disability referred to as an organic brain 
 
            syndrome.  Miller has been extensively evaluated.  
 
            Pathologist Kingsley B. Grant, M.D., has expressed the 
 
            opinion that the condition is a result of workplace exposure 
 
            to carbon dioxide.  From the record it is quite clear that 
 
            Miller was exposed to high levels of carbon dioxide.  The 
 
            fact that David Sams concealed information which should have 
 
            been provided in response to discovery requests is certainly 
 
            a strong indicator that the employer knew that high levels 
 
            of carbon dioxide were present and desired to conceal that 
 
            fact.  Douglas W. Brenton, M.D., a neurologist, initially 
 
            felt that Miller had Alzheimer's disease, but after 
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            continued treatment, changed his opinion to where he 
 
            currently feels that Miller suffers from a disorder which is 
 
            due to excessive alcohol consumption known as Korsakov's 
 
            Psychosis (joint exhibit 2).  Greg Hicklin, M.D., a 
 
            specialist in pulmonary medicine, expressed the opinion that 
 
            Miller's exposure to carbon dioxide did not impact him 
 
            neurologically in any manner (jt. ex. 1).
 
            
 
                 Miller was also evaluated at the Mayo Clinic.  The 
 
            conclusions reached were that Miller was suffering from an 
 
            indeterminate organic mental disorder.  It was felt that the 
 
            syndrome was an unusual one which did not have the features 
 
            of alcohol toxicity or hypoxic injury (ex. 3).  (Injury from 
 
            carbon dioxide exposure is a form of hypoxic injury.)
 
            
 
                 The record of this case does not show any evidence of a 
 
            history of alcohol abuse, which history is essential for the 
 
            assessment of Dr. Brenton to be accepted.  Further, Dr. 
 
            Brenton's assessment is irreconcilable with that reached by 
 
            the Mayo Clinic physicians and is therefore rejected.
 
            
 
                 The record of this case contains a number of articles 
 
            from medical journals dealing with carbon dioxide exposure.  
 
            The articles show that exposure to carbon dioxide can be 
 
            harmful in a number of ways and can produce death.  The 
 
            articles do not, however, establish that exposure to carbon 
 
            dioxide has the potential to cause any condition which even 
 
            resembles the syndrome which afflicts John Miller, except 
 
            possibly in those cases where there has been an acute, high 
 
            level exposure which produced lack of consciousness.  The 
 
            rational and logic presented by Dr. Grant is very 
 
            compelling.  It provides an answer to the perplexing 
 
            question of what caused John Miller to develop the organic 
 
            brain syndrome which afflicts him.  The explanation given by 
 
            Dr. Grant may or may not be the correct answer.  The 
 
            evidence to the contrary is certainly not overwhelming.  
 
            
 
                 The evidence in this case does, however, overwhelming 
 
            show that very little is known with certainty about the 
 
            effects of long-term exposure to elevated levels of carbon 
 
            dioxide.  Use of the term "elevated levels" is intended to 
 
            mean levels which exceed OSHA guidelines but which are not 
 
            sufficiently high to produce loss of consciousness or the 
 
            other commonly recognized symptoms of overexposure to carbon 
 
            dioxide.  
 
            
 
                 While it is certainly possible that John Miller's 
 
            organic brain syndrome did result from his exposure to 
 
            elevated levels of carbon dioxide at the Jimmy Dean Meat 
 
            Company plant, a ruling by the undersigned to that effect 
 
            would be the only known instance in the history of medical 
 
            science that such an exposure produced the condition which 
 
            afflicts John Miller.  Under these circumstances, the 
 
            evidence shows it to be possible but not probable, that 
 
            Miller's condition resulted from workplace carbon dioxide 
 
            exposure.  While there are a number of commonly recognized 
 
            adverse effects which can result from exposure to elevated 
 
            or high levels of carbon dioxide, the condition which 
 
            afflicts John Miller is not one of them.  
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            
 
                                conclusions of law
 
            
 
                 The party who would suffer loss if an issue were not 
 
            established has the burden of proving that issue by a 
 
            preponderance of the evidence.  Iowa R. of App. P. 14(f).
 
            
 
                 The claimant has the burden of proving by a 
 
            preponderance of the evidence that the alleged injury 
 
            actually occurred and that it arose out of and in the course 
 
            of employment.  McDowell v. Town of Clarksville, 241 N.W.2d 
 
            904 (Iowa 1976); Musselman v. Cent. Tel. Co., 261 Iowa 352, 
 
            154 N.W.2d 128 (1967).  The words "arising out of" refer to 
 
            the cause or source of the injury.  The words "in the course 
 
            of" refer to the time, place and circumstances of the 
 
            injury.  Sheerin v. Holin Co., 380 N.W.2d 415 (Iowa 1986); 
 
            McClure v. Union County, 188 N.W.2d 283 (Iowa 1971).
 
            
 
                 The claimant has the burden of proving by a 
 
            preponderance of the evidence that the exposure is a 
 
            proximate cause of the disability on which the claim is 
 
            based.  A cause is proximate if it is a substantial factor 
 
            in bringing about the result; it need not be the only cause.  
 
            A preponderance of the evidence exists when the causal 
 
            connection is probable rather than merely possible.  
 
            Blacksmith v. All-American, Inc., 290 N.W.2d 348 (Iowa 
 
            1980); Holmes v. Bruce Motor Freight, Inc., 215 N.W.2d 296 
 
            (Iowa 1974).
 
            
 
                 The question of causal connection is essentially within 
 
            the domain of expert testimony.  The expert medical evidence 
 
            must be considered with all other evidence introduced 
 
            bearing on the causal connection between the injury and the 
 
            disability.  The weight to be given to any expert opinion is 
 
            determined by the finder of fact and may be affected by the 
 
            accuracy of the facts relied upon by the expert as well as 
 
            other surrounding circumstances.  The expert opinion may be 
 
            accepted or rejected, in whole or in part.  Sondag v. Ferris 
 
            Hardware, 220 N.W.2d 903 (Iowa 1974); Anderson v. Oscar 
 
            Mayer & Co., 217 N.W.2d 531 (Iowa 1974); Bodish v. Fischer, 
 
            Inc., 257 Iowa 516, 133 N.W.2d 867 (1965).
 
            
 
                 As previously found, there is a very distinct 
 
            possibility that John Miller's organic brain syndrome 
 
            resulted from workplace carbon dioxide exposure.  That 
 
            possibility is not, however, sufficiently strong to be 
 
            considered a probability.  Dr. Grant is eminently qualified 
 
            and, as a pathologist, is appropriately trained to address 
 
            the issue as any of the physicians in this case.  His 
 
            opinion, however, is irreconcilable with that of the Mayo 
 
            Clinic physicians who not only determined that the condition 
 
            was not alcohol related, but also determined that it was 
 
            probably not related to hypoxia, a term which refers to lack 
 
            of oxygen.
 
            
 
                 The burden of proof is a preponderance of the evidence.  
 
            This means that the evidence must show that it is more 
 
            likely than not that exposure to carbon dioxide was a 
 
            substantial factor in producing the organic brain syndrome.  
 
            The evidence in this case shows such a causal relationship 
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
            to be possible but it does not show it to be more likely 
 
            than not.  Dr. Grant's opinion provides a plausible theory.  
 
            It is not a substitute for evidence which shows a proven 
 
            cause and effect relationship between carbon dioxide 
 
            exposure and the condition which afflicts John Miller.
 
            
 
                 It is therefore concluded that claimant has failed to 
 
            prove by a preponderance of the evidence that the condition 
 
            upon which his claim is based was proximately caused by the 
 
            exposure to carbon dioxide which he experienced at his place 
 
            of employment.  He is, therefore, not entitled to any 
 
            recovery in this case.
 
            
 
                 It is noted that in this case there was a failure to 
 
            make adequate discovery with regard to other complaints and 
 
            grievances regarding carbon dioxide exposure at the Jimmy 
 
            Dean Meat Company plant.  Some sort of sanction is 
 
            appropriate for that behavior despite the fact the employer 
 
            prevails on this claim.  An appropriate sanction is 
 
            difficult to fashion.  The sanction which will be imposed is 
 
            that all the costs of this proceeding are assessed against 
 
            defendants.  
 
            
 
                                      order
 
            
 
                 IT IS THEREFORE ORDERED that claimant take nothing from 
 
            this proceeding.
 
            
 
                 It is further ordered that the costs of this action are 
 
            assessed against the defendants.
 
            
 
                 Signed and filed this ____ day of December, 1992.
 
            
 
            
 
            
 
            
 
                                          ______________________________
 
                                          MICHAEL G. TRIER
 
                                          DEPUTY INDUSTRIAL COMMISSIONER    
 
            
 
            Copies to:
 
            
 
            Mr. Steven C. Jayne
 
            Attorney at Law
 
            5835 Grand Ave STE 201
 
            Des Moines, Iowa  50312
 
            
 
            Mr. Helmut Mueller
 
            Attorney at Law
 
            RR 5
 
            Osceola, Iowa  550213
 
            
 
            Mr. Glenn Goodwin
 
            Attorney at Law
 
            4th Floor Equitable Bldg
 
            Des Moines, Iowa  50309
 
            
 
            
 
                 
 
            
 
 
            
 
            Page   1
 
            
 
            
 
            
 
            
 
                                          1108.30 2907
 
                                          Filed December 14, 1992
 
                                          Michael G. Trier
 
            before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            JOHN MILLER,                  :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :      File No. 916756
 
            JIMMY DEAN MEAT COMPANY,      :
 
                                          :  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.              :
 
            ___________________________________________________________
 
            
 
            1108.30
 
            Claimant failed to prove by a preponderance of the evidence 
 
            that long-term exposure to elevated levels of carbon dioxide 
 
            caused his organic brain syndrome.  Claimant's expert 
 
            provided a very plausible and perhaps correct analysis 
 
            supporting causation, but there was no previously known 
 
            incident reported in any of the medical journals where an 
 
            exposure of the type the claimant experienced produced the 
 
            condition which afflicted this claimant.  The claim was 
 
            therefore denied. 
 
            
 
            2907
 
            Defendants failed to make discovery by failing to disclose 
 
            requested records.  As a sanction, the costs of the action 
 
            were assessed against defendants despite the fact that they 
 
            prevailed on the merits of the claim.
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
            
 
            JOHN MILLER,     
 
                        
 
                 Claimant,   
 
                                                File No. 916756
 
            vs.         
 
                                                   O R D E R
 
            JIMMY DEAN MEAT COMPANY,   
 
                                                    N U N C
 
                 Employer,   
 
                                                     P R O
 
            and         
 
                                                    T U N C
 
            TRAVELERS INSURANCE COMPANY,    
 
                        
 
                 Insurance Carrier,    
 
                 Defendants.      
 
            ____________________________________________________________
 
            
 
            The appeal decision filed June 24, 1993 contains a 
 
            typographical error.  In the first paragraph the date of the 
 
            deputy's decision should be December 14, 1992.
 
            Signed and filed this ____ day of July, 1993.
 
            
 
            
 
            
 
            
 
                                      ________________________________
 
                                              BYRON K. ORTON
 
                                         INDUSTRIAL COMMISSIONER
 
            
 
            Copies To:
 
            
 
            Mr. Steven C. Jayne
 
            Attorney at Law
 
            5835 Grand Ave., Ste 201
 
            Des Moines, Iowa 50312
 
            
 
            Mr. Helmut Mueller
 
            Attorney at Law
 
            RR 5
 
            Osceola, Iowa 50213
 
            
 
            Mr. Glenn Goodwin
 
            Attorney at Law
 
            4th Floor, Equitable Bldg.
 
            Des Moines, Iowa 50309
 
            
 
 
         
 
 
 
 
 
 
 
 
 
                    BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         _________________________________________________________________
 
                     
 
         LARRY DAVIS,     
 
                     
 
              Claimant,   
 
                     
 
         vs.         
 
                                                  File No. 916761
 
         GRIFFIN WHEEL CORP.,       
 
                                                   A P P E A L
 
              Employer,   
 
                                                 D E C I S I O N
 
         and         
 
                     
 
         SECOND INJURY FUND OF IOWA,     
 
                     
 
              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 
 
         February 11, 1992 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 October, 1992.
 
         
 
         
 
         
 
         
 
                                      ________________________________
 
                                               BYRON K. ORTON
 
                                         INDUSTRIAL COMMISSIONER
 
         
 
         Copies To:
 
         
 
         Mr. James P. Hoffman
 
         Attorney at Law
 
         P.O. Box 1087
 
         Keokuk, Iowa 52632
 
         
 
         Mr. John E. Kultala
 
         Attorney at Law
 
         511 Blondeau St.
 
         Keokuk, Iowa 52632
 
         
 
         Mr. Charles S. Lavorato
 
         Assistant Attorney General
 
         Tort Claims Division
 
         Hoover State Office Bldg.
 
         Des Moines, Iowa 50319
 
         
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                               9998
 
                                               Filed October 29, 1992
 
                                               Byron K. Orton
 
 
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER            
 
            ____________________________________________________________
 
            LARRY DAVIS,     
 
                        
 
                 Claimant,   
 
                        
 
            vs.         
 
                                               File No. 916761
 
            GRIFFIN WHEEL CORP.,       
 
                                                A P P E A L
 
                 Employer,   
 
                                              D E C I S I O N
 
            and         
 
                        
 
            SECOND INJURY FUND OF IOWA,     
 
                        
 
                 Defendants.      
 
            ____________________________________________________________
 
            
 
            9998
 
            
 
                 Summary affirmance of deputy's decision filed February 
 
            11, 1992.
 
            
 
 
            
 
            Page   1
 
            
 
            
 
            
 
            
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            LARRY DAVIS,                  :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :       File No. 916761
 
            GRIFFIN WHEEL,                :
 
                                          :    A R B I T R A T I O N
 
                 Employer,                :
 
                                          :       D E C I S I O N
 
            and                           :
 
                                          :
 
            SECOND INJURY FUND OF IOWA,   :
 
                                          :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
            
 
                           STATEMENT OF THE CASE
 
            
 
                 This is a proceeding in arbitration brought by Larry 
 
            Davis, claimant, against Griffin Wheel Corporation, employer 
 
            (hereinafter referred to as Griffin), and the Second Injury 
 
            Fund, defendants, for workers' compensation benefits as a 
 
            result of an alleged injury on January 17, 1989.  On January 
 
            14, 1992, a hearing was held on claimant's petition and the 
 
            matter was considered fully submitted at the close of this 
 
            hearing.
 
            
 
                 The parties have submitted a prehearing report of con
 
            tested issues and stipulations contained herein which were 
 
            approved and accepted as a part of the record of this case 
 
            at the time of hearing.  The oral testimony and written 
 
            exhibits received during the hearing are set forth in the 
 
            hearing transcript.
 
            
 
                 According to the prehearing report, the parties have 
 
            stipulated to the following matters:
 
            
 
                 1.  An employee-employer relationship existed between 
 
            claimant and Griffin at the time of the alleged injury.
 
            
 
                 2.  Claimant is not seeking temporary total disability 
 
            or healing period benefits as a result of the alleged injury 
 
            herein.
 
            
 
                 3.  If the injury is found to have caused permanent 
 
            disability, with reference to the Second Injury Fund claim, 
 
            the type of disability is an industrial disability to the 
 
            body as a whole.
 
            
 
                 4.  Claimant's rate of weekly compensation shall be 
 
            $339.39. 
 
            
 
                 5.  All requested medical benefits have been or will be 
 
            paid by defendants. 
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            
 
                                      ISSUES
 
            
 
                 The parties submitted the following issues for determi
 
            nation in this proceeding:
 
            
 
                  I.  Whether claimant received an injury arising out of 
 
            and in the course of employment; and,
 
            
 
                 II.  The extent of claimant's entitlement to permanent 
 
            disability benefits.
 
            
 
                                 FINDINGS OF FACT
 
            
 
                 Having heard the testimony and considered all of the 
 
            evidence, the deputy industrial commissioner finds as 
 
            follows:
 
            
 
                 A credibility finding is necessary to this decision as 
 
            defendants placed claimant's credibility at issue during 
 
            cross-examination as to the nature and extent of the injury 
 
            and disability.  From his demeanor while testifying, 
 
            claimant is credible.
 
            
 
                 Claimant has worked for Griffin for the last 15 years 
 
            and continues to do so at the present time.  At the time of 
 
            the alleged injury herein, involving his left arm, claimant 
 
            was performing the "first helper" job at Griffin.  This job 
 
            involves shoveling iron ore by hand into furnaces using a 
 
            scoop shovel.  This obviously required the repetitive use of 
 
            claimant's hands and arms to lift 25-40 pounds of ore for 
 
            each scoop.  Since the alleged work injury, claimant has 
 
            been reassigned to the job of "oiler."  This job involves 
 
            the oiling and greasing of machinery in the plant on an as 
 
            needed basis.  According to his personnel records, claimant 
 
            is considered a good employee at Griffin. 
 
            
 
                 On or about January 17, 1989, claimant injured his left 
 
            arm while shoveling ore at Griffin.  This injury has been 
 
            diagnosed by claimant's treating physician, John Havey M.D., 
 
            as epicondylitis or tennis elbow.  The condition is an 
 
            overuse syndrome precipitated by claimant's work activity at 
 
            Griffin.  Claimant has had right elbow problems since a 
 
            childhood fracture.  In 1978, he refractured the elbow caus
 
            ing greater difficulties.
 
            
 
                 It is specifically found that claimant suffered a 25 
 
            percent permanent partial impairment as a result of the 1978 
 
            injury to his elbow.  This finding is based upon the uncon
 
            troverted opinion of the treating physician at the time, 
 
            Richard J. Brennan, M.D., (Exhibit 13, page 275).  The con
 
            tinued existence of this permanent impairment at the time of 
 
            the second injury herein was confirmed by Dr. Havey in his 
 
            deposition testimony.  The medical records submitted into 
 
            the record verify continuing right arm symptoms over the 
 
            years since 1978.
 
            
 
                 Claimant testified that he compensated for his right 
 
            arm problems by learning how to shovel left handed.  
 
            Claimant believes this caused his left arm problems.  Dr. 
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            Havey agrees with claimant in that the overuse of the left 
 
            arm is the probable result of compensating for the right arm 
 
            disability due to his shoveling activity at work.  
 
            Defendants assert that the left arm difficulties are not 
 
            work-related because claimant first notice the pain while 
 
            driving off duty.  However, claimant is credible and states 
 
            that his off duty work and recreational activity, including 
 
            fishing and bow hunting, is less strenuous than his work at 
 
            Griffin.
 
            
 
                 The diagnosis and treatment of the left tennis elbow 
 
            occurred at only one appointment with Dr. Havey. Dr. Havey 
 
            opined at that time that claimant's symptoms would continue 
 
            if he did not change jobs at Griffin to avoid repetitive 
 
            lifting and repeated use of his arms.  Claimant was then 
 
            assigned to the oiler job.  Claimant states that he immedi
 
            ately improved and has not returned to Dr. Havey for further 
 
            treatment.  However, claimant complains of continuing pain 
 
            even with his oiler job, including "shocking" type pain and 
 
            swelling.  However, he has not sought further treatment form 
 
            Dr. Havey.
 
            
 
                 It could not be found that claimant suffered permanent 
 
            impairment as a result of his tennis elbow injury of January 
 
            17, 1989.  Clearly the reason for the problem was due to the 
 
            right arm problems and claimant's need to compensate for it.  
 
            Claimant admitted to a dramatic improvement in his condition 
 
            when he was reassigned.  There is no medical opinion that 
 
            specifically opines that the tennis elbow condition caused 
 
            permanent impairment by itself.  On May 31, 1991, Dr. Havey 
 
            in exhibit 14 stated in answer to a question that claimant's 
 
            left arm is permanent "[a]s long as he uses it for heavy 
 
            forceful work" and adds that "[i]t is possible to heal this 
 
            with rest & time & change of activities."  Such a statement 
 
            by itself is insufficient to establish permanency given the 
 
            other evidence in the record.
 
            
 
                 Although, claimant may still be having some symptoms 
 
            today, it is obvious that these symptoms are minor as 
 
            claimant has not sought further treatment from Dr. Havey.  
 
            It has been three years since claimant's last appointment 
 
            with Dr. Havey.  Claimant has not missed worked as a result 
 
            of left arm problems.
 
            
 
                    
 
            
 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
            CONCLUSIONS OF LAW
 
            
 
                  I.  The Fund raises an affirmative defense that the 
 
            condition complained of is not an injury compensable under 
 
            Chapter 85 of the Code but an occupational disease under 
 
            Chapter 85A of the Code.  The Fund argues that by defini
 
            tion, a compensable injury is not an injury.  Iowa Code sec
 
            tion 61.5(b).  The claimant has not plead occupational dis
 
            ease.  The Fund apparently asserts that claimant's claim 
 
            should be compensated under Chapter 85A or be dismissed.
 
            
 
                 Assuming legal theories, as opposed to operative facts, 
 
            must be plead before they can be applied by this agency, the 
 
            undersigned does not feel that 85A is available to the Fund 
 
            as an affirmative defense.  Although the undersigned has 
 
            ruled in one instance that a particular overuse syndrome 
 
            qualified as an occupational disease, Atkins v. Monarch Mfg, 
 
            File No. 816825, Arbitration Decision, March 27, 1990, it 
 
            was also held in that case that any condition or injury 
 
            could qualify under the criteria set forth in McSpadden v. 
 
            Big Ben Coal Co., 288 N.W.2d 181, (Iowa 1980).  It was not 
 
            held categorically, that carpal tunnel syndrome or any other 
 
            particular condition would always qualify as an occupational 
 
            disease.
 
            
 
                 Although another fellow deputy commissioner in Hoffman 
 
            v. Second Injury Fund File Nos. 831136 and 869798, 
 
            (Arbitration Decision, August 10, 1990), ruled that Chapter 
 
            85A is available as a defense to a Fund claim, this decision 
 
            is not binding upon the undersigned.  Workers compensation 
 
            laws are humanitarian in purpose and to be interpreted lib
 
            erally in favor of the injured worker.  Caterpillar Tractor 
 
            Co. v. Shook, 313 N.W.2d 503, 506 (Iowa 1981).  It would be 
 
            contrary to the purposes of the workers' compensation law to 
 
            allow defendants to use Chapter 85A as a defense and a means 
 
            to deny compensation when 85A was not raised as a legal 
 
            theory by the claimant.  The occupational disease provisions 
 
            of Chapter 85A are solely designed as an additional humani
 
            tarian benefit to injured workers or an additional theory or 
 
            means to recover workers' compensation benefits.  It cannot 
 
            be used in a defensive posture by defendants.  Iowa Code 
 
            section 85A.16 states that the provisions of Chapter 85 so 
 
            far as applicable and not inconsistent with 85A, shall apply 
 
            in occupational disease cases.  Iowa Code section 85.26(4) 
 
            clearly states that no claim or proceedings for benefits 
 
            shall be maintained by any person other than the injured 
 
            worker.  Consequently, a claim under 85A can only be main
 
            tained by the injured employee, not any defendant or the 
 
            Second Injury Fund.
 
            
 
                 However, even if it were a valid defense, the Fund 
 
            failed to carry its burden of proof to show that the condi
 
            tion herein is peculiar to the industry involved or more 
 
            prevalent at Griffin than any other places of employment, 
 
            critical conditions precedent to any showing of an occupa
 
            tional disease under McSpadden.
 
            
 
                 Claimant has the burden of proving by a preponderance 
 
            of the evidence that claimant received an injury arising out 
 
            of and in the course of employment.  The words "out of" 
 

 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
            refer to the cause or source of the injury.  The words "in 
 
            the course of" refer to the time and place and circumstances 
 
            of the injury.  See generally, Cedar Rapids Community Sch.  
 
            v. Cady, 278 N.W.2d 298 (Iowa 1979); Crowe v. DeSoto Consol. 
 
            Sch. Dist., 246 Iowa 402, 68 N.W.2d 63 (1955).  An employer 
 
            takes an employee subject to any active or dormant health 
 
            impairments. A work connected injury which more than 
 
            slightly aggravates the condition is considered to be a per
 
            sonal injury.  Ziegler v. United States Gypsum Co., 252 Iowa 
 
            613, 620, 106 N.W.2d 591 (1960), and cases cited therein.
 
            
 
                 It is not necessary that claimant prove his disability 
 
            results from a sudden unexpected traumatic event.  It is 
 
            sufficient to show that the disability developed gradually 
 
            or progressively from work activity over a period of time.  
 
            McKeever Custom Cabinets v. Smith, 379 N.W.2d 368 (Iowa 
 
            1985).  The McKeever Court also held that the date of injury 
 
            in gradual injury cases is the time when pain prevents the 
 
            employee from continuing to work.  In McKeever the injury 
 
            date coincided with the time claimant was finally compelled 
 
            to give up his job.  This date was then used by the court to 
 
            determine rate and the timeliness of claimant's claim under 
 
            Iowa Code section 85.26 and notice under Iowa Code section 
 
            85.23.
 
            
 
                 In the case sub judice, claimant clearly demonstrated 
 
            by uncontroverted medical opinion that he suffered tennis 
 
            elbow from his work at Griffin.  However, he was unable to 
 
            show that the injury was a cause of permanent impairment.
 
            
 
                 II.  With reference to the claim against Griffin, the 
 
            injury is a scheduled member injury to the left arm.  
 
            Without some degree of permanent impairment, claimant cannot 
 
            be awarded permanent disability benefits.  When the result 
 
            of an injury is loss to a scheduled member, the compensation 
 
            payable is limited to that set forth in the appropriate sub
 
            division of code section 85.34(2).  Barton v. Nevada Poultry 
 
            Co., 253 Iowa 285, 110 N.W.2d 660 (1961).  Therefore, defen
 
            dant Griffin is entitled to an order dismissing the claim.
 
            
 
                 With reference to the claim against the Second Injury 
 
            Fund, claimant also seeks additional disability benefits 
 
            under Iowa Code sections 85.63--85.69.  This fund was cre
 
            ated to compensate an injured worker for a permanent indus
 
            trial disability resulting from the combined effect of two 
 
            separate injuries to a scheduled member.  The purpose of 
 
            such a scheme of compensation was to encourage employers to 
 
            hire or retain handicapped workers.  See Anderson v. Second 
 
            Injury Fund, 262 N.W.2d 789 (Iowa 1978).  There are three 
 
            requirements under the statute to invoke second injury fund 
 
            liability.  First, there must be a permanent loss or loss of 
 
            use of one hand, arm, foot, leg or eye.  Secondly, there 
 
            must be a permanent loss or loss of use of another such mem
 
            ber or organ through a compensable subsequent injury.  
 
            Third, there must be permanent industrial disability to the 
 
            body as a whole arising from both the first and second 
 
            injuries which is greater in terms of relative weeks of com
 
            pensation than the sum of the sceduled allowances for those 
 
            injuries.  If there is greater industrial disability due to 
 
            the combined effects of the prior loss and the secondary 
 

 
            
 
            Page   6
 
            
 
            
 
            
 
            
 
            loss than equals the value of the prior and secondary losses 
 
            combined, then the fund will be charged with the difference.  
 
            Anderson, Id.
 
            
 
                 In this case as claimant failed to establish permanency 
 
            for the second injury.  Therefore, the Fund is entitled to a 
 
            dismissal of the claim.  Clearly, claimant suffered a job 
 
            transfer to oiler but this was due to the right arm problems 
 
            not the left.
 
            
 
                                      ORDER
 
            
 
                 1.  Claimant's petition against Griffin and the Second 
 
            Injury Fund is dismissed.
 
            
 
                 2.  Defendant Griffin shall pay the costs of this 
 
            action pursuant to Rule 343 IAC 4.33, including reimburse
 
            ment to claimant for any filing fee paid in this matter.
 
            
 
            
 
                 Signed and filed this ____ day of February, 1992.
 
            
 
            
 
                                          ______________________________
 
                                          LARRY P. WALSHIRE
 
                                          DEPUTY INDUSTRIAL COMMISSIONER
 
            
 
            Copies To:
 
            
 
            Mr. James P. Hoffman
 
            Attorney at Law
 
            Middle Rd
 
            Box 1087
 
            Keokuk  IA  52632
 
            
 
            Mr. John E. Kultala
 
            Attorney at Law
 
            511 Blondeau St
 
            Keokuk  IA  52632
 
            
 
            Mr. Charles S. Lavorato
 
            Assistant Attorney General
 
            Hoover State Office Bldg
 
            Des Moines IA  50319
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                          5-1803
 
                                          Filed February 11, 1992
 
                                          LARRY P. WALSHIRE
 
            before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            LARRY DAVIS,                  :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :       File No. 916761
 
            GRIFFIN WHEEL,                :
 
                                          :    A R B I T R A T I O N
 
                 Employer,                :
 
                                          :       D E C I S I O N
 
            and                           :
 
                                          :
 
            SECOND INJURY FUND OF IOWA,   :
 
                                          :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
            
 
            5-1803
 
            
 
                  Non-precedential, extent of disability case.