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                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            RICHARD R. QUINONES,          :
 
                                          :         File No. 839079,
 
                 Claimant,                :         931306 & 930911
 
                                          :
 
            vs.                           :      A R B I T R A T I O N
 
                                          :
 
            ALUMINUM COMPANY OF AMERICA,  :         D E C I S I O N
 
                                          :
 
                 Employer,                :
 
                 Self-Insured,            :
 
                 Defendant.               :
 
            ___________________________________________________________
 
            
 
            
 
                              STATEMENT OF THE CASE
 
            
 
                 This is a proceeding in arbitration brought by Richard 
 
            R. Quinones, claimant, against Aluminum Company of America, 
 
            self-insured employer, under the Iowa Workers' Compensation 
 
            Act as a result of injuries sustained on November 11, 1986, 
 
            May 19, 1988 and September 28, 1989.  This matter came on 
 
            for hearing before the undersigned deputy industrial 
 
            commissioner on March 1, 1991 in Davenport, Iowa.  The 
 
            record was considered fully submitted at the close of the 
 
            hearing.  Claimant was present and testified.  Also present 
 
            and testifying at the hearing was S. L. Casta, M.D., 
 
            defendant-employer's company doctor.  The record in this 
 
            case also consists of joint exhibits 1-22.
 
            
 
                                      issues
 
            
 
                 Pursuant to the prehearing report and order dated March 
 
            1, 1991, the parties have stipulated as follows:
 
            
 
                 1.  That the times off work for which claimant seeks 
 
            temporary total disability or healing period benefits is 
 
            November 12, 1986 through December 28, 1986; May 21, 1988 
 
            through August 7, 1988; and September 29, 1989 through March 
 
            21, 1990;
 
            
 
                 2.  That if the injury is found to be a cause of 
 
            permanent disability, such disability is an industrial 
 
            disability to the body as a whole;
 
            
 
                 3.  That in the event of an award of weekly benefits, 
 
            the rate of weekly compensation is $347.45 on claim number 
 
            839079; $349.80 on claim number 931306; and $357.62 on claim 
 
            number 930911; that all requested medical benefits have been 
 
            or will be paid by defendant; that defendant has paid 
 
            $2,333.22 on claim number 839079; $3,921.32 on claim 931306; 
 
            and $8,889.72 on claim number 930911 and are entitled to a 
 
            credit of $15,144.26.  The issues remaining for resolution 
 
            include:
 
            
 
                 1.  Whether claimant received injuries on November 11, 
 
            1986, May 19, 1988 and September 28, 1989 which arose out of 
 

 
            
 
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            and in the course of his employment;
 
            
 
                 2.  Whether a causal relationship exists between 
 
            claimant's claimed injuries and his claimed disabilities;
 
            
 
                 3.  The nature and extent of any benefit entitlement; 
 
            and,
 
            
 
                 4.  Whether section 85.55 bars any of claimant's 
 
            claims.
 
            
 
                                 findings of fact
 
            
 
                 The undersigned has carefully considered all the 
 
            testimony given at the hearing, the arguments made, the 
 
            evidence contained in the exhibits herein, and makes the 
 
            following findings:
 
            
 
                 Claimant was born on January 6, 1946 and completed the 
 
            twelfth grade of school.  Claimant has worked for Alcoa 
 
            since October 1965.  His primary work activity has been as a 
 
            packager.  Claimant's medical history includes a lumbar 
 
            laminectomy in 1966 for a disc herniation at L4-5 on the 
 
            right side.  Claimant had been in a non-work related 
 
            accident and underwent surgery by William D. Reinwein, M.D.  
 
            He returned to work on January 4, 1968, with a 25 pound 
 
            lifting limit and no work involving repeated twisting or 
 
            stooping.  On January 4, 1968, claimant signed a Waiver on 
 
            Account of Physical Defect form acknowledging these 
 
            restrictions (Exhibit 18, page 138).  On September 18, 1973, 
 
            E. M. Stimac, M.D., increased claimant's lifting restric
 
            tions to 50 pounds (Ex. 18, p. 141).  On February 16, 1977, 
 
            Dr. Reinwein lifted all claimant's restrictions and reported 
 
            that he has "no restrictions whatsoever" and he is able to 
 
            perform any work he is qualified for (Ex. 18, p. 142).  
 
            Claimant testified that he requested this release from Dr. 
 
            Reinwein because he wanted to apply for another position at 
 
            the plant.  On February 17, 1977, E. M. Stimac, M.D., Alcoa 
 
            plant physician at the time, changed claimant's restrictions 
 
            to reflect Dr. Reinwein's opinions (Ex. 18, p. 143).
 
            
 
                 Claimant testified that he was relatively asymptomatic 
 
            until November 11, 1986, when, while at work, lifting a 75 
 
            pound roll above his head he felt a snap in his back and 
 
            fell to the floor with pain which radiated into his right 
 
            leg.  X-rays performed were basically negative except for 
 
            some narrowing at the L4-5 area.  He was hospitalized at St. 
 
            Luke's from November 11 through November 15, 1986.  A CT 
 
            scan was performed and revealed evidence of minimal 
 
            herniation of L4-5 of the L5 nerve.  At the time of 
 
            discharge he had complete resolution of radicular pain (Ex. 
 
            5).
 
            
 
                 Claimant was off work from November 12, 1986 through 
 
            December 28, 1986. He participated in physical therapy and 
 
            took oral analgesics and muscle relaxants.  His physical 
 
            activities were restricted.  By December 28, 1986, his 
 
            condition had improved and Byron W. Rovine, M.D., 
 
            neurological surgeon, released claimant to return to work on 
 
            December 29, 1986, with a 25 pound lifting limit and 
 

 
            
 
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            restrictions on climbing and working in cramped positions 
 
            (Ex. 1, pp. 1-3).
 
            
 
                 Claimant was seen by Dr. Rovine for a follow-up 
 
            evaluation on April 5, 1988.  He presented with complaints 
 
            of mid and upper lumbar backache similar to those complained 
 
            of in November 1986.  Clinically, there was no evidence of 
 
            radiculopathy or acutely recurrent disc herniation.  He 
 
            opined that "[h]e has developed, as a result of previous 
 
            surgery and his injury of November, 1986, a lumbar spine 
 
            that is markedly intolerant to physical stress."  It was his 
 
            opinion that the only logical course of action is for 
 
            claimant to find a job that would not involve lifting, 
 
            pushing or pulling more than 25 pounds or involve excessive 
 
            bending, stooping or any climbing (Ex. 1, pp. 5-6).
 
            
 
                 Claimant testified that on May 19, 1988, he and another 
 
            worker were asked by the foreman to pick up and move a large 
 
            steel mirror, a distance of 20 feet.  He stated that it was 
 
            heavy and awkward to handle and during the course of moving 
 
            it he experienced an abrupt onset of pain in the left 
 
            mid-lumbar area.  He was seen in the company medical 
 
            department and an ice pack was applied to the lower back 
 
            area.  On May 20, 1988, he was examined by Dr. Rovine who 
 
            gave him 200 mg. of Depo Medrol, intra-muscularly.  It was 
 
            recommended that he rest at home, use warm applications by 
 
            heating pad or soaking in a tub, and take analgesics.  A 
 
            follow-up evaluation by Dr. Rovine on June 3, 1988, revealed 
 
            fair back motion, negative straight leg raising bilaterally, 
 
            normal reflexes and no weakness.  Dr. Rovine then referred 
 
            the claimant for participation in a work-hardening exercise 
 
            program.  After completing the program at the Bettendorf 
 
            Physical Therapy Center, Dr. Rovine released claimant to 
 
            return to work on Monday, August 8, 1988 (Ex. 1, p. 10).  
 
            The same work restrictions were imposed as in 1986 (Ex. 18, 
 
            pp. 144-145).
 
            
 
                 After being off work from May 21, 1988 through August 
 
            7, 1988, claimant returned to work on August 8, 1988.  He 
 
            was relatively asymptomatic until September 28, 1989, when, 
 
            while at work, pulling on some metal with his arms elevated 
 
            above shoulder level and leaning forward, he felt something 
 
            give in his lower back.  He immediately experienced severe 
 
            pain radiating from his back over the right buttock, down 
 
            the back of the right thigh and the lateral aspect of the 
 
            calf all the way to the outside of his right ankle.  He 
 
            sought treatment in the company medical department and was 
 
            then referred to Dr. Rovine for a more thorough examination.  
 
            This was performed on September 28, 1989.  On examination, 
 
            Dr. Rovine observed that "[t]he present episode is different 
 
            from prior episodes because he has had definite sciatic pain 
 
            and shows some evidence of first sacral radiculopathy, on 
 
            the right side."  A CT scan was performed on October 2, 1989 
 
            and revealed no evidence of disc herniation but evidence of 
 
            spinal stenosis at the L5-Sl level (Ex. 5, pp. 45-46).  The 
 
            claimant's condition improved with rest and medication and 
 
            Dr. Rovine felt that he should be able to return to limited 
 
            work on October 30, 1989, with his already existing 
 
            restrictions, in terms of lifting, pushing, pulling and 
 
            carrying, and an additional restriction of no reaching above 
 

 
            
 
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            shoulder height (Ex. 1, p. 13).
 
            
 
                 Claimant testified that there was no work available for 
 
            him at Alcoa with the restrictions imposed by Dr. Rovine and 
 
            therefore he did not return to work on October 30, 1989.  
 
            Instead, Alcoa sent him to the Work Fitness Center where he 
 
            attended a Job Seeking Skills class and vocational 
 
            rehabilitation.  Utilizing claimant's age, work history, 
 
            physical restrictions, transferable skills and test results, 
 
            it was determined that he had a 70 percent loss of access to 
 
            jobs previously available to him as well as a significant 
 
            salary loss in the limited number of jobs he was now able to 
 
            perform (Ex. 8, pp. 63-70).
 
            
 
                 The claimant developed a severe recurrence of low back 
 
            pain at home on January 19, 1990.  He had reached over to 
 
            pick up a piece of paper off the floor and developed severe 
 
            low back pain.  He was treated in the emergency room and 
 
            prescribed rest and oral medication.  On January 23, 1990, 
 
            he was evaluated by Dr. Rovine.  He exhibited a straightened 
 
            lumbar curvature and a massively restricted lumbar spine in 
 
            all directions.  Dr. Rovine opined that claimant could only 
 
            perform, "extremely sedentary work" (Ex. 1, p. 16).  On 
 
            February 9, 1990, Dr. Rovine discharged claimant from his 
 
            care (Ex. 1, p. 17).
 
            
 
                 Claimant testified that on March 21, 1990, he found 
 
            part-time work as a security officer with International 
 
            Security Service.  He worked two eight hour shifts until 
 
            January 19, 1991, when he extended his work time to 32 hours 
 
            per week.  He earns $3.85 per hour.  This is a substantial 
 
            decrease from the $13.50 per hour he was earning while at 
 
            Alcoa.  Claimant also testified that on April 1, 1990, after 
 
            24 1/2 years with Alcoa, his disability retirement benefits 
 
            commenced.  He receives $561.00 per month in retirement 
 
            benefits in addition to a $400 per month disability 
 
            supplement.
 
            
 
                 Claimant was referred by the Alcoa Medical Department 
 
            to Daniel B. Johnson, M.D., for comprehensive evaluation on 
 
            May 9, 1990.  The claimant presented with complaints of low 
 
            back and leg pain.  On examination, he displayed moderate 
 
            postural tremor and intention tremor.  Dr. Johnson felt he 
 
            was neurologically intact, however, clinically by history he 
 
            has a recurrent radiculopathy on the right.  He recommended 
 
            an MRI scan of the lumbosacral spine and an EMG and nerve 
 
            conduction study (Ex. 22, p. 169).
 
            
 
                 S. L. Casta, M.D., current Alcoa plant physician, 
 
            testified that, in his opinion, claimant's back injuries 
 
            after 1967 were injuries which occurred directly or 
 
            indirectly because of claimant's physical defect.  He stated 
 
            that claimant would not have had his subsequent injuries but 
 
            for his earlier surgery and resulting weakness.
 
            
 
                                conclusions of law
 
            
 
                 The issues to be determined in this case include 
 
            whether claimant sustained injuries on November 11, 1986, 
 
            May 19, 1988 and September 28, 1989, which arose out of and 
 

 
            
 
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            in the course of employment with defendant-employer and 
 
            whether the injuries are a cause of temporary and permanent 
 
            disability and, if so, the nature and extent thereof.
 
            
 
                 Claimant has the burden of proving by a preponderance 
 
            of the evidence that he received injuries on November 11, 
 
            1986, May 19, 1988 and September 28, 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). 
 
            
 
                 An employee is entitled to compensation for any and all 
 
            personal injuries which arise out of and in the course of 
 
            the employment.  Section 85.3(1).
 
            
 
                 The injury must both arise out of and be in the course 
 
            of the employment.  Crowe v. DeSoto Consol. Sch. Dist., 246 
 
            Iowa 402, 68 N.W.2d 63 (1955) and cases cited at pp. 405-406 
 
            of the Iowa Report.  See also Sister Mary Benedict v. St. 
 
            Mary's Corp., 255 Iowa 847, 124 N.W.2d 548 (l963) and Hansen 
 
            v. State of Iowa, 249 Iowa 1147, 91 N.W.2d 555 (1958).
 
            
 
                 The words "out of" refer to the cause or source of the 
 
            injury.  Crowe, 246 Iowa 402, 68 N.W.2d 63 (1955). 
 
            
 
                 The words "in the course of" refer to the time and 
 
            place and circumstances of the injury.  McClure v. Union 
 
            et al. Counties, 188 N.W.2d 283 (Iowa 1971); Crowe, 246 Iowa 
 
            402, 68 N.W.2d 63 (1955).
 
            
 
                 "An injury occurs in the course of the employment when 
 
            it is within the period of employment at a place the 
 
            employee may reasonably be, and while he is doing his work 
 
            or something incidental to it."  Cedar Rapids Comm. Sch. 
 
            Dist. v. Cady, 278 N.W.2d 298 (Iowa 1979), McClure, 188 
 
            N.W.2d 283 (Iowa 1971); Musselman, 261 Iowa 352, 154 N.W.2d 
 
            128 (1967). 
 
            
 
                 The supreme court of Iowa in Almquist v. Shenandoah 
 
            Nurseries, 218 Iowa 724, 731-32, 254 N.W. 35, 38 (1934) 
 
            discussed the definition of personal injury in workers' 
 
            compensation cases as follows:
 
            
 
                 While a personal injury does not include an occupa
 
                 tional disease under the Workmen's Compensation 
 
                 Act, yet an injury to the health may be a personal 
 
                 injury.  [Citations omitted.]  Likewise a personal 
 
                 injury includes a disease resulting from an 
 
                 injury....The result of changes in the human body 
 
                 incident to the general processes of nature do not 
 
                 amount to a personal injury.  This must follow, 
 
                 even though such natural change may come about 
 
                 because the life has been devoted to labor and 
 
                 hard work.  Such result of those natural changes 
 
                 does not constitute a personal injury even though 
 
                 the same brings about impairment of health or the 
 
                 total or partial incapacity of the functions of 
 
                 the human body. 
 
            
 
                    ....
 

 
            
 
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                 A personal injury, contemplated by the Workmen's 
 
                 Compensation Law, obviously means an injury to the 
 
                 body, the impairment of health, or a disease, not 
 
                 excluded by the act, which comes about, not through the 
 
                 natural building up and tearing down of the human body, 
 
                 but because of a traumatic or other hurt or damage to 
 
                 the health or body of an employee.  [Citations 
 
                 omitted.]  The injury to the human body here 
 
                 contemplated must be something, whether an accident or 
 
                 not, that acts extraneously to the natural processes of 
 
                 nature, and thereby impairs the health, overcomes, 
 
                 injures, interrupts, or destroys some function of the 
 
                 body, or otherwise damages or injures a part or all of 
 
                 the body.
 
            
 
                 The claimant has the burden of proving by a 
 
            preponderance of the evidence that the injuries of November 
 
            11, 1986, May 19, 1988 and September 28, 1989, are 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 tes
 
            timony.  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 (1967).
 
            
 
                 While a claimant is not entitled to compensation for 
 
            the results of a preexisting injury or disease, the mere 
 
            existence at the time of a subsequent injury is not a 
 
            defense.  Rose v. John Deere Ottumwa Works, 247 Iowa 900, 
 
            908, 76 N.W.2d 756, 760-61 (1956).  If the claimant had a 
 
            preexisting condition or disability that is aggravated, 
 
            accelerated, worsened or lighted up so that it results in 
 
            disability, claimant is entitled to recover.  Nicks v. 
 
            Davenport Produce Co., 254 Iowa 130, 115 N.W.2d 812, 815 
 
            (1962).
 
            
 
                 When an aggravation occurs in the performance of an 
 
            employer's work and a causal connection is established, 
 
            claimant may recover to the extent of the impairment.  
 
            Ziegler v. United States Gypsum Co., 252 Iowa 613, 620, 106 
 
            N.W.2d 591, 595 (1960).
 

 
            
 
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                 The Iowa Supreme Court cites, apparently with approval, 
 
            the C.J.S. statement that the aggravation should be material 
 
            if it is to be compensable.  Yeager v. Firestone Tire & 
 
            Rubber Co., 253 Iowa 369, 112 N.W.2d 299 (1961); 100 C.J.S. 
 
            Workmen's Compensation sec. 555(17)a.
 
            
 
                 Our supreme court has stated many times that a claimant 
 
            may recover for a work connected aggravation of a 
 
            preexisting condition.  Almquist, 218 Iowa 724, 254 N.W. 35 
 
            (1934).  See also Auxier v. Woodward State Hosp. Sch., 266 
 
            N.W.2d 139 (Iowa 1978); Gosek v. Garmer and Stiles Co., 158 
 
            N.W.2d 731 (Iowa 1968); Barz v. Oler, 257 Iowa 508, 133 
 
            N.W.2d 704 (1965); Olson v. Goodyear Service Stores, 255 
 
            Iowa 1112, 125 N.W.2d 251 (1963); Yeager, 253 Iowa 369, 112 
 
            N.W.2d 299 (1961); Ziegler, 252 Iowa 613, 106 N.W.2d 591 
 
            (1960).
 
            
 
                 An employer takes an employee subject to any active or 
 
            dormant health impairments, and a work connected injury 
 
            which more than slightly aggravates the condition is 
 
            considered to be a personal injury.  Ziegler, 252 Iowa 613, 
 
            620, 106 N.W.2d 591 (1960), and cases cited.
 
            
 
                 An employee is not entitled to recover for the results 
 
            of a preexisting injury or disease but can recover for an 
 
            aggravation thereof which resulted in the disability found 
 
            to exist.  Olson, 255 Iowa 1112, 125 N.W.2d 251 (1963); 
 
            Yeager, 253 Iowa 369, 112 N.W.2d 299 (1961); Ziegler, 252 
 
            Iowa 613, 106 N.W.2d 591 (1960).  See also Barz, 257 Iowa 
 
            508, 133 N.W.2d 704 (1965); Almquist, 218 Iowa 724, 254 N.W. 
 
            35 (1934).
 
            
 
                 Based upon the aforementioned medical evidence, 
 
            claimant has demonstrated by a preponderance of the evidence 
 
            that he suffered work-related injuries on November 11, 1986, 
 
            May 19, 1988 and September 28, 1989, which are causally 
 
            related to the disability on which he now basis his claim.
 
            
 
                 The evidence in this case clearly demonstrates that the 
 
            claimant had a preexisting back impairment and residual 
 
            weakness as a result of surgery for a herniated nucleus 
 
            pulposus performed in September 1967.  As a result of the 
 
            surgery, claimant was restricted to lifting 25 pounds and 
 
            unable to perform work involving repeated twisting or 
 
            stooping.  Claimant acknowledged these restrictions and 
 
            signed a waiver form on January 4, 1968, which was approved 
 
            by the industrial commissioner (Ex. 18, pp. 138-139 & Ex. 
 
            19, p. 161).
 
            
 
                 Claimant has demonstrated by a preponderance of the 
 
            evidence that he sustained injuries on November 11, 1986, 
 
            May 19, 1988 and September 28, 1989, which aggravated, 
 
            accelerated, worsened and "lighted up" his preexisting back 
 
            condition.  On November 11, 1986, claimant sustained a back 
 
            strain while lifting a 75 pound roll of wrapping paper at 
 
            work.  He was treated conservatively with physical therapy, 
 
            rest, heat and analgesics.  He was off work from November 
 
            12, 1986 through December 28, 1986.  Dr. Rovine released him 
 
            to return to work on December 29, 1986, with a 25 pound 
 

 
            
 
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            lifting limitation and with restrictions on climbing and 
 
            working in cramped positions (Ex. 1, p. 3).  These restric
 
            tions are the same as those imposed in 1968.  Claimant 
 
            returned to the same job, at the same rate of pay, that he 
 
            had prior to November 11, 1986.  Claimant did not incur 
 
            additional permanent disability as a result of this injury 
 
            and is entitled to temporary total disability during the 
 
            period of time he was off work from November 12, 1986 
 
            through December 28, 1986.  Claimant is entitled to 6.7l4 
 
            weeks of compensation for temporary total disability at the 
 
            rate of $347.45 per week for a period from November 12, 1986 
 
            through December 28, 1986.  The parties have stipulated that 
 
            defendant has paid claimant 6.7l4 weeks of compensation at 
 
            the stipulated rate of $347.45 during this period of time.  
 
            Therefore, defendant shall receive a credit for benefits 
 
            previously paid and claimant is not entitled to any further 
 
            benefits under claim number 839079.
 
            
 
                 On May 19, 1988, claimant suffered another low back 
 
            strain while moving a 100 pound steel mirror while at work.  
 
            He was off work from May 21, 1988 through August 7, 1988.  
 
            He participated in a physical therapy program and on August 
 
            8, 1988, Dr. Rovine released him to return to work with the 
 
            same restrictions as before.  Claimant returned to the same 
 
            type of work he was performing as prior to the injury.  It 
 
            is evident that claimant suffered a temporary aggravation of 
 
            his preexisting condition which prevented him from working.  
 
            He incurred no additional permanency and was released to 
 
            return to his former occupation with the same restrictions 
 
            that he had prior to the injury.  Therefore, on claim number 
 
            931306, claimant is entitled to 11.286 weeks of temporary 
 
            total disability benefits at the stipulated rate of $349.80.  
 
            The parties have stipulated that defendant paid claimant 
 
            11.286 weeks of temporary partial disability benefits from 
 
            May 21, 1988 through August 7, 1988 at the stipulated rate 
 
            of $347.45.  The defendant is entitled to a credit for 
 
            payment of compensation benefits during this period of time.
 
            
 
                 On September 28, 1989, claimant suffered a strain type 
 
            injury to his low back.  Dr. Rovine stated that this episode 
 
            is different from the prior episodes because of definite 
 
            sciatic pain and evidence of first sacral radiculopathy, on 
 
            the right side (Ex. 1, p. 12).  A CT scan taken on October 
 
            2, 1989, showed no disc herniation but did reveal evidence 
 
            of spinal stenosis at the L5-Sl level.  Dr. Rovine reported 
 
            on October 25, 1989, as follows:
 
            
 
                 I think that he will be able to return to limited 
 
                 work, on October 30, 1989.  I have given him a 
 
                 slip indicating that in addition to his already 
 
                 existing restrictions, in terms of lifting, 
 
                 pushing, pulling and carrying, he will also be 
 
                 prohibited from doing any sort of job that 
 
                 involves reaching above shoulder height.  This was 
 
                 the mechanism of his most recent recurrent strain.
 
            
 
            (Ex. 1, p. 13)
 
            
 
                 In view of these additional restrictions, claimant 
 
            could not return to his prior work activity at Alcoa and 
 

 
            
 
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            employer-defendant indicated that they had no jobs which 
 
            could accommodate these restrictions.  Instead, employer 
 
            sent claimant to a Work Fitness Center for work assessment 
 
            and vocational rehabilitation.  On March 21, 1990, claimant 
 
            found part-time employment as a security officer.  He 
 
            testified that this job pays $3.85 an hour.  On April 1, 
 
            1990, claimant was forced to retire from Alcoa.  He receives 
 
            $561.00 per month in disability retirement benefits from the 
 
            company.
 
            
 
                 It is evident that claimant's September 28, 1989 injury 
 
            has resulted in additional permanent disability.  The 
 
            parties have stipulated that if it is found that claimant 
 
            suffered permanent disability as a result of this injury, 
 
            then such disability is an industrial disability to the body 
 
            as a whole.  The issue to be determined by the undersigned 
 
            is the extent of claimant's industrial disability.
 
            
 
                 Functional impairment is an element to be considered in 
 
            determining industrial disability which is the reduction of 
 
            earning capacity, but consideration must also be given to 
 
            the injured employee's age, education, qualifications, 
 
            experience and inability to engage in employment for which 
 
            he is fitted.  Olson v. Goodyear Service Stores, 255 Iowa 
 
            1112, 125 N.W.2d 251 (1963).  Barton v. Nevada Poultry, 253 
 
            Iowa 285, 110 N.W.2d 660 (1961).
 
            
 
                 A finding of impairment to the body as a whole found by 
 
            a medical evaluator does not equate to industrial disabil
 
            ity.  This is so as impairment and disability are not syn
 
            onymous.  Degree of industrial disability can in fact be 
 
            much different than the degree of impairment because in the 
 
            first instance reference is to loss of earning capacity and 
 
            in the latter to anatomical or functional abnormality or 
 
            loss.  Although loss of function is to be considered and 
 
            disability can rarely be found without it, it is not so that 
 
            a degree of industrial disability is proportionally related 
 
            to a degree of impairment of bodily function.
 
            
 
                 Factors to be considered in determining industrial dis
 
            ability include the employee's medical condition prior to 
 
            the injury, immediately after the injury, and presently; the 
 
            situs of the injury, its severity and the length of healing 
 
            period; the work experience of the employee prior to the 
 
            injury, after the injury and potential for rehabilitation; 
 
            the employee's qualifications intellectually, emotionally 
 
            and physically; earnings prior and subsequent to the injury; 
 
            age; education; motivation; functional impairment as a 
 
            result of the injury; and inability because of the injury to 
 
            engage in employment for which the employee is fitted.  Loss 
 
            of earnings caused by a job transfer for reasons related to 
 
            the injury is also relevant.  These are matters which the 
 
            finder of fact considers collectively in arriving at the 
 
            determination of the degree of industrial disability.
 
            
 
                 There are no weighting guidelines that indicate how 
 
            each of the factors are to be considered.  There are no 
 
            guidelines which give, for example, age a weighted value of 
 
            ten percent of the total value, education a value of fifteen 
 
            percent of total, motivation - five percent; work experience 
 

 
            
 
            Page  10
 
            
 
            
 
            
 
            
 
            - thirty percent, etc.  Neither does a rating of functional 
 
            impairment directly correlate to a degree of industrial 
 
            disability to the body as a whole.  In other words, there 
 
            are no formulae which can be applied and then added up to 
 
            determine the degree of industrial disability.  It therefore 
 
            becomes necessary for the deputy or commissioner to draw 
 
            upon prior experience, general and specialized knowledge to 
 
            make the finding with regard to degree of industrial dis
 
            ability.  See Peterson v. Truck Haven Cafe, Inc., (Appeal 
 
            Decision, February 28, 1985);  Christensen v. Hagen, Inc., 
 
            (Appeal Decision, March 26, l985).
 
            
 
                 Claimant was released to return to limited work 
 
            activity on October 30, 1989.  At that time, he was 43 years 
 
            old and a high school graduate.  He had worked for 24 years 
 
            as a laborer and packager at the Alcoa plant in Davenport, 
 
            Iowa.  At the time of his forced retirement he was earning 
 
            $13.50 per hour.  Claimant can no longer perform even light 
 
            work activity and has been limited to "extremely sedentary 
 
            work" (Ex. 1, p. 16).  Vocational evidence indicates that 
 
            the claimant has a 70 percent loss of assess to jobs which 
 
            were previously available to him prior to his injury and, 
 
            while before his injury he had access to 29,822 jobs, he now 
 
            has access to 8,912 positions.  The highest weekly wage 
 
            average for these jobs is $435.00 and the lowest is $107.00.  
 
            Claimant now works at a job paying $3.85 per hour.  Claimant 
 
            has experienced a significant wage loss and loss of earning 
 
            capacity.  Claimant's impairment precludes him from 
 
            performing his past relevant work at Alcoa.  Based on a work 
 
            assessment evaluation performed at the Work Fitness Center, 
 
            the claimant's limited educational background and 
 
            specialized work experienced, in addition to his significant 
 
            physical limitations, he is limited to entry-level 
 
            occupations not requiring highly technical and skilled work 
 
            activity.  Claimant has worked 16 hours a week as a security 
 
            officer since March 21 1990.  In January 1991, he added two 
 
            more days to his schedule and now works 32 hours a week.  
 
            However, he testified that he feels run down and fatigued 
 
            because of the additional working time and does not know how 
 
            long he can continue doing this.
 
            
 
                 Even though claimant was not planning to retire, his 
 
            retirement income must be considered in determining 
 
            industrial disability.  Certainly, it is a fact to consider 
 
            when determining claimant's motivation to work.  This factor 
 
            is considered along with the aforementioned factors in 
 
            determining the extent of claimant's industrial disability.
 
            
 
                 Thus, after carefully considering claimant's medical 
 
            condition prior to and immediately after this September 28, 
 
            1989 injury; his work experience prior to the injury, after 
 
            the injury and his potential for rehabilitation; his 
 
            intellectual ability; his earnings prior and subsequent to 
 
            the injury; age; education; motivation; and inability, 
 
            because of the injury, to engage in employment for which he 
 
            is fitted; loss of earnings and earning capacity; the 
 
            undersigned concludes that the total evidence in this case 
 
            supports an award of 40 percent permanent partial disability 
 

 
            
 
            Page  11
 
            
 
            
 
            
 
            
 
            which entitles claimant to recover 200 weeks of benefits 
 
            under Iowa Code section 85.34(2)(u).
 
            
 
                 Accordingly, as to claimant's claim number 930911, he 
 
            is entitled to healing period benefits from September 28, 
 
            1989 through October 29, 1989 when Dr. Rovine released him 
 
            to return to restricted work activity.  This entitles him to 
 
            4.571 weeks of healing period benefits at the stipulated 
 
            rate of $357.62.  Claimant is entitled to 200 weeks of 
 
            permanent partial disability benefits at the stipulated rate 
 
            of $357.62 commencing October 30, 1989.  Defendants have 
 
            already paid 24.857 weeks of disability benefits at the 
 
            stipulated rate of $357.62 on this claim and are entitled to 
 
            a credit of $8,889.36.
 
            
 
                 Defendant asserts a defense in this case under Iowa 
 
            Code section 85.55.  This section of the Code states as 
 
            follows:
 
            
 
                 No employee or dependent to whom this chapter 
 
                 applies, shall have power to waive any of the 
 
                 provisions of this chapter in regard to the amount 
 
                 of compensation which may be payable to such 
 
                 employee or dependent hereunder.  However, any 
 
                 person who has some physical defect which 
 
                 increases the risk of injury, may, subject to the 
 
                 approval of the industrial commissioner, enter 
 
                 into a written agreement with the employee's 
 
                 employer waiving compensation for injuries which 
 
                 may occur directly or indirectly because of such 
 
                 physical defect, provided, however, that such 
 
                 waiver shall not affect the employee's benefits to 
 
                 be paid from the second injury fund under the 
 
                 provisions of section 85.64.
 
            
 
                 Defendant argues that the waiver agreement signed by 
 
            claimant on January 4, 1968, remains in full force and 
 
            effect because such has not been revoked by the industrial 
 
            commissioner.  Based on Dr. Casta's testimony, defendant 
 
            further argues that the back injuries for which claimant now 
 
            seeks workers' compensation benefits are injuries which 
 
            occurred directly or indirectly because of his preexisting 
 
            physical defect (referred to as "Residual weakness as a 
 
            result of surgery for a herniated nucleus pulposis"), and, 
 
            as such, waived his right to compensation when he signed the 
 
            85.55 agreement.
 
            
 
                 Section 85.55 provides that no employee may waive his 
 
            rights under Chapter 85 except he may, under 85.55, waive 
 
            compensation for the results of an injury which occurs 
 
            directly or indirectly because of a physical defect.  The 
 
            compensable injuries in this case are not a direct or 
 
            indirect result of claimant's physical defect, but an 
 
            aggravation of a preexisting condition which the Iowa 
 
            Supreme Court has consistently held to be compensable.  When 
 
            an aggravation of a preexisting condition occurs in the 
 
            performance of an employer's work and a causal connection is 
 
            established, claimant may recover to the extent of the 
 
            impairment.  Ziegler v. United States Gypsum Co., (1960).
 

 
            
 
            Page  12
 
            
 
            
 
            
 
            
 
            
 
                 The Iowa Workers' Compensation statute is "for the 
 
            benefit of the working man and should be, within reason, 
 
            liberally construed."  Barton v. Nevada Poultry Co., 110 
 
            N.W.2d 660, 662 (1961).  Liberal construction of the statute 
 
            should be construed in favor of the claimant.  Thus, the 
 
            undersigned concludes that the 85.55 agreement herein does 
 
            not waive employer's liability as to claimant's November 11, 
 
            1986, May 19, 1988 and September 28, 1989 injuries, because 
 
            such injuries did not occur directly or indirectly as a 
 
            result of claimant's physical defect but rather were a 
 
            separate injury resulting from the aggravation of a preex
 
            isting condition resulting in further disability.
 
            
 
                                      order
 
            
 
                 THEREFORE, IT IS ORDERED:
 
            
 
                 In reference to claim number 839079, it is ordered that 
 
            defendant pay to claimant six point seven-one-four (6.714) 
 
            weeks of temporary total disability benefits at the 
 
            stipulated rate of three hundred forty-seven and 45/l00 
 
            dollars ($347.45) for the period from November 12, 1986 
 
            through December 28, 1986.
 
            
 
                 As to claim number 931306, it is ordered that defendant 
 
            pay to claimant eleven point two-eight-six (ll.286) weeks of 
 
            temporary total disability benefits at the stipulated rate 
 
            of three hundred forty-nine and 80/l00 dollars ($349.80) for 
 
            the period from May 21, 1988 through August 7, 1988.
 
            
 
                 As to claim number 930911, defendant shall pay to 
 
            claimant four point five-seven-one (4.571) weeks of healing 
 
            period benefits at the stipulated rate of three hundred 
 
            fifty-seven and 62/l00 dollars ($357.62) for the period from 
 
            September 28, 1989 through October 29, 1989.
 
            
 
                 As to claim number 930911, defendant shall pay to 
 
            claimant two hundred (200) weeks of permanent partial 
 
            disability benefits at the stipulated rate of three hundred 
 
            fifty-seven and 62/l00 dollars ($357.62) per week commencing 
 
            October 30, 1989.
 
            
 
                 That defendant receive credit for any benefits 
 
            previously paid.
 
            
 
                 That defendant pay accrued amounts in a lump sum.
 
            
 
                 That defendant pay interest pursuant to Iowa Code 
 
            section 85.30.
 
            
 
                 That defendant file claim activity reports as required 
 
            by this agency.
 
            
 
                 That defendant pay all of the costs pursuant to rule 
 
            343 IAC 4.33.
 
            
 
            
 
            
 
                 Signed and filed this ____ day of April, 1991.
 

 
            
 
            Page  13
 
            
 
            
 
            
 
            
 
            
 
            
 
            
 
            
 
            
 
                                          ______________________________               
 
            JEAN M. INGRASSIA
 
                                          DEPUTY INDUSTRIAL COMMISSIONER
 
            
 
            Copies To:
 
            
 
            Mr. Michael W. Liebbe
 
            Attorney at Law
 
            116 E 6th St
 
            P O Box 339
 
            Davenport  IA  52805
 
            
 
            Mr. Thomas N. Kamp
 
            Attorney at Law
 
            600 Davenport Bank Bldg
 
            Davenport  IA  52801
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                           1402.30; 1801.1;
 
                           1802; 1803; 2206
 
                           Filed April 23, 1991
 
                           JEAN M. INGRASSIA
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            RICHARD R. QUINONES,          :
 
                                          :         File No. 839079,
 
                 Claimant,                :         931306 & 930911
 
                                          :
 
            vs.                           :      A R B I T R A T I O N
 
                                          :
 
            ALUMINUM COMPANY OF AMERICA,  :         D E C I S I O N
 
                                          :
 
                 Employer,                :
 
                 Self-Insured,            :
 
                 Defendant.               :
 
            ___________________________________________________________
 
            
 
            
 
            1402.30; 1801.1; 1802; 1803; 2206
 
            Claimant awarded temporary partial disability benefits in 
 
            claim #'s 839079 and 931306 and healing period and permanent 
 
            partial disability benefits in claim #930911 when he 
 
            aggravated a preexisting back condition.
 
            Defendant raised an 85.55 defense alleging that the above 
 
            injuries occurred directly or indirectly because of 
 
            claimant's preexisting physical defect (residual weakness as 
 
            a result of surgery for a herniated nucleus pulposus and he 
 
            waived his right to compensation when he signed the 85.55 
 
            agreement.
 
            The undersigned concluded that the compensable injuries in 
 
            this case were not a direct or indirect result of claimant's 
 
            physical defect, but an aggravation of a preexisting 
 
            condition which the Iowa Supreme Court has consistently held 
 
            to be compensable.  Ziegler v. United States Gypsum Co.
 
            
 
 
            
 
            Page   1
 
            
 
            
 
            
 
            
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            DONALD PALMER,                :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :      File No.  930995
 
            HERMAN BROWN COMPANY,         :
 
                                          :  A R B I T R A T I O N
 
                 Employer,                :
 
                                          :      D E C I S I O N
 
            and                           :
 
                                          :
 
            EMPLOYERS MUTUAL COMPANIES,   :         
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
                              statement of the case
 
            
 
                 This is a proceeding in arbitration brought by Donald 
 
            Palmer, claimant; against Herman Brown Company, employer; 
 
            and Employers Mutual Companies, insurance carrier; to 
 
            recover benefits under the Iowa Workers' Compensation Act as 
 
            a result of an alleged injury sustained on September 28, 
 
            1989.  This matter came on for hearing before the 
 
            undersigned deputy industrial commissioner on November 5, 
 
            1991, in Des Moines, Iowa.  The record was considered fully 
 
            submitted at the close of the hearing.  The record in this 
 
            case consists of joint exhibits 1 through 15 and testimony 
 
            from claimant, Roger Marquardt, Denny Roupe, Craig Alcott, 
 
            Jerry Wilkinson, and Gerald Scott Dennis.  
 
            
 
                                      issues
 
            
 
                 Pursuant to the prehearing report/order and statements 
 
            at the hearing, the parties have presented the following 
 
            issues for resolution:
 
            
 
                 1.  Whether claimant sustained an injury on September 
 
            28, 1989, which arose out of and in the course of employment 
 
            with employer;
 
            
 
                 2.  Whether the injury is a cause of either temporary 
 
            or permanent disability; and,
 
            
 
                 3.  Whether claimant is entitled to temporary or 
 
            permanent disability benefits, and if so, the extent of 
 
            benefits to which he is entitled.
 
            
 
                 Defendants assert an affirmative defense under Iowa 
 
            Code section 85.16(1) and (3).  
 
            
 
                                 findings of fact
 
            
 
                 The undersigned has carefully considered all of the 
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            testimony given at the hearing, arguments made and evidence 
 
            contained in the exhibits herein, and makes the following 
 
            findings:
 
            
 
                 Claimant was born on September 15, 1937, and completed 
 
            the ninth grade of school.  He received his GED certificate 
 
            while serving in the military.  Prior to June 11, 1973, 
 
            claimant's work experience consisted of manual labor.  
 
            Claimant was hired by employer on June 11, 1973, to work as 
 
            a field service mechanic.  This job required setting up 
 
            heavy construction equipment, delivering it to customers and 
 
            instructing them in its use.  He traveled about 50,000 miles 
 
            a year and worked at least 45 hours per week.  He earned 
 
            $11.50 an hour at the time of his alleged injury on 
 
            September 28, 1989.  In addition, he received medical and 
 
            dental benefits and participated in a retirement plan.  
 
            Claimant admitted that prior to September 1989 he had some 
 
            minor back problems and received chiropractic manipulations.  
 
            
 
                 Claimant testified that he was injured at work on 
 
            September 28, 1989, when Dennis Eldridge, the parts manager, 
 
            came up behind him and struck the back side of his left knee 
 
            with his knee.  He stated that the incident occurred at 4:30 
 
            p.m.
 
            
 
                 Craig Alcott, claimant's supervisor prior to Jerry 
 
            Wilkinson, also testified at the hearing.  He stated that he 
 
            was present and witnessed the event that occurred on 
 
            September 28, 1989.  He testified that he, Gerald Dennis and 
 
            claimant had gathered around claimant's pickup truck for 
 
            morning coffee.  He witnessed Dennis Eldridge walking behind 
 
            claimant and putting his knee in the back of claimant's 
 
            knee.  He observed that claimant buckled and leaned against 
 
            his truck.  However, they all joked about the matter and he 
 
            did not think anything more about it.  He said the incident 
 
            took place around 7 a.m.  
 
            
 
                 Gerald Scott Dennis also testified at the hearing.  He 
 
            also stated that the incident occurred early in the morning 
 
            and prior to 8 a.m. when he punched in.  To the best of his 
 
            recollection, Craig Alcott was not present when the incident 
 
            between claimant and Dennis Eldridge occurred.  He also 
 
            described the incident as a surprise event.  He stated that 
 
            claimant was not aware that Dennis was behind him and was 
 
            taken off guard when Dennis gave him the knee.  
 
            
 
                 Dennis Eldridge testified by way of deposition on 
 
            August 22, 1991.  He stated that the incident occurred at 
 
            4:30 p.m. in employer's shop.  He testified that claimant 
 
            knew he was approaching because he called him over to show 
 
            him some parts.  He stated that he accidently hit claimant's 
 
            knee with his right leg.  He observed that claimant slumped 
 
            forward against his pickup and grunted.  They joked the 
 
            incident off and walked around to the back of the pickup and 
 
            talked about the parts that were in the back of claimant's 
 
            truck.  He stated that Gerald Dennis was the only other 
 
            person in the area at the time.  
 
            
 
                 Claimant testified that it was his opinion that Dennis 
 
            Eldridge intended to knock his legs out from under him.  
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            However, when he reported the incident to Jackie Buffum, he 
 
            described the incident as an accident because he knew Dennis 
 
            Eldridge would get fired for fooling around.  He insisted 
 
            that Craig Alcott was not present at the time, but he told 
 
            him what had happened.
 
            
 
                 The pertinent medical evidence of record indicates that 
 
            on July 14, 1988, while lifting a piece of boom section in 
 
            Carroll, Iowa, claimant hurt his back.  He underwent 
 
            chiropractic manipulations with M.J. Tindle, D.C.  On 
 
            December 28, 1988, he slipped on ice on employer's premises 
 
            and twisted his back and hip.  This incident occurred early 
 
            in the morning, before he punched in for work.  Initially he 
 
            was told that his time off work and medical treatment would 
 
            not be covered by workers' compensation.  However, this was 
 
            later reversed and he was paid benefits (exhibit 13).  He 
 
            treated with Dr. Tindle who released him to return to work 
 
            on February 4, 1989, with restrictions against extremely 
 
            heavy lifting.  
 
            
 
                 Claimant submitted a copy of his handwritten diary 
 
            which has been accepted into evidence and numbered exhibit 
 
            13.  A notation dated September 28, 1989, states as follows:
 
            
 
                 4:30 pm.  I was standing next to my service truck 
 
                 putting my tools away (in our shop).  I had all my 
 
                 weight resting on my left leg.  Dennis Eldrige 
 
                 [sic], our general parts manager, came up behind 
 
                 me.  He struck the back side of my left knee with 
 
                 his knee in a horse-play [sic] fashion.  I'm sure 
 
                 no intent for personal injury was intended.  When 
 
                 my knee went out from under me I went straight 
 
                 down.  I caught my self on the side of my service 
 
                 truck to keep from going to the floor.  At that 
 
                 point I felt a very great sharp pain in my lower 
 
                 back, pulled myself up-right [sic] and let Mr. 
 
                 Eldrige [sic] know...
 
            
 
            (exhibit 13)
 
            
 
                 Claimant testified that he returned to work despite 
 
            left leg and hip pain.  However, by October 20, 1989, the 
 
            pain became so intense that he left work early.  He was told 
 
            by Dr. Tindle that the same disc was damaged this time as 
 
            last year when he slipped on the ice.  On October 22, 1989, 
 
            he called Craig Alcott at home and told him to tell Jerry 
 
            Wilkinson that he would not be in on Monday.  He also told 
 
            him that he would file a workers' compensation claim with 
 
            Loren Ganoe by phone.  On October 23, 1989, he called Loren 
 
            Ganoe at home and reported the injury.  On October 31, 1989, 
 
            he spoke with Jackie Buffum and an appointment was made for 
 
            an examination and x-rays at Madison County Memorial 
 
            Hospital in Winterset, Iowa (ex. 13).
 
            
 
                 X-rays of claimant's lumbar spine were taken on 
 
            November 17, 1989, and revealed narrowing of the L3-4, L4-5 
 
            and L5-S1 disc spaces and spurring anteriorly.  An MRI study 
 
            was also performed and showed degeneration at L3-4, L4-5 and 
 
            L5-S1.  On December 6, 1989, claimant saw Peter Wirtz, M.D.  
 
            Dr. Wirtz advised claimant that surgical correction would 
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
            relieve the pain in his leg, but not in his back.  He was 
 
            also advised that he may have some scarring of the nerve and 
 
            continued numbness and weakness of the muscles as well as 
 
            other possible neurologic involvement (exs. 1 & 3).  
 
            
 
                 Claimant was admitted by Dr. Wirtz to Mercy Hospital 
 
            Medical Center on January 9, 1990, where he underwent a 
 
            laminectomy; partial diskectomy; spur removal at lumbar 4-5, 
 
            on the left; and exploration of lumbar 5-sacral 1 with 
 
            partial diskectomy.  The operative report indicates that he 
 
            tolerated the procedure well and left the operating room in 
 
            good condition (ex. 6).  
 
            
 
                 When examined by Dr. Wirtz on April 18, 1990, claimant 
 
            was able to flex to 90 degrees with lateral flexion 45/45 
 
            degrees.  He was advised that he could return to work on 
 
            April 23, 1990, with lifting, bending, twisting, and pushing 
 
            limitations involving his back.  Dr. Wirtz gave claimant a 5 
 
            percent impairment rating (ex. 3).  Claimant returned to 
 
            employer on April 25, 1990.  Due to his light work 
 
            restrictions, he was offered a shop clerk position in the 
 
            service department.  This job paid $8 an hour.  Claimant 
 
            testified that he found the job very boring.  He also 
 
            resented the $3 decrease in pay.  
 
            
 
                 Testimony was received from Jerome Wilkinson, service 
 
            manager and claimant's shop clerk supervisor.  He stated 
 
            that claimant was uncooperative and refused to occasionally 
 
            work Saturdays or take on additional duties.  The company 
 
            president had received complaints from a customer regarding 
 
            claimant's telephone matter.  On October 4, 1990, he was 
 
            terminated from his job as a shop clerk.  He was put on a 
 
            special recall status until November 10, 1990, when he was 
 
            finally terminated after he refused to accept a parts clerk 
 
            position in Fort Dodge, Iowa.  
 
            
 
                 Mr. Wilkinson's testimony was corroborated by Dennis 
 
            Roupe, company treasurer.  
 
            
 
                                conclusions of law
 
            
 
                 The first issue to be determined is whether claimant's 
 
            September 28, 1989, injury arose out of and in the course of 
 
            employment with employer, and if so, whether the affirmative 
 
            defense under Iowa Code section 85.16(1) and (3) defeats the 
 
            claim.  Claimant bears the burden of proof to show that his 
 
            injury arose out of and in the course of employment.  
 
            Musselman v. Central Telephone Co., 261 Iowa 352, 154 
 
            N.W.2d 128 (1967).  Defendants, on the other hand, bear the 
 
            burden of establishing the affirmative defense.  Everts v. 
 
            Jorgensen, 289 N.W. 11 (Iowa 1939).
 
            
 
                 Iowa Code section 85.16 provides in pertinent part as 
 
            follows:
 
            
 
                 No compensation under this chapter shall be 
 
                 allowed for an injury caused:
 
            
 
                 1.  By the employee's willful intent to injure the 
 
                 employee's self or to willfully injure another.
 

 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
            
 
                 ...
 
            
 
                 3.  By the willful act of a third party directed 
 
                 against the employee for reasons personal to such 
 
                 employee.
 
            
 
                 Professor Larson in the Law of Workmen's Compensation, 
 
            section 11.2 at 3-132 (1972 ed.) states:
 
            
 
                 ...It is universally agreed that if the assault 
 
                 grew out of an argument over the performance of 
 
                 the work, the possession of the tools of equipment 
 
                 used in the work, delivery of a paycheck, quitting 
 
                 work, trying to act as peace maker between 
 
                 quarreling co-employees and the like, the assault 
 
                 is compensable.
 
            
 
                 Clearly, in this case, the incident between claimant 
 
            and Dennis Eldridge was a playful encounter between two 
 
            coworkers which resulted in unfortunate consequences.  
 
            Claimant did not initiate nor aggressively participate in 
 
            horseplay.  Therefore, claimant's claim does not fail on the 
 
            basis of a proven horseplay defense.  Ford v. Barcus, 261 
 
            Iowa 616, 155 N.W.2d 507 (1968) and Wittmer v. Dexter 
 
            Manufacturing Co., 204 Iowa 181, 214 N.W. 700 (1927).
 
            
 
                 As to defendants' 85.16(3) defense, there is no 
 
            evidence in this case to demonstrate that Dennis Eldridge 
 
            intended to assault and willfully injure for reasons totally 
 
            unrelated to work.  Claimant denied any personal animosity 
 
            or quarrel with Mr. Eldridge prior to the incident and 
 
            indicated that they were on friendly terms.  Mr. Eldridge's 
 
            behavior, although juvenile, was merely playful with 
 
            unfortunate consequences. 
 
            
 
                 Thus, applying the previously mentioned standards to 
 
            the facts in this case, the undersigned must find that 
 
            defendants' affirmative defense of horseplay and willful 
 
            intent to injure is without merit in this case.
 
            
 
                 The next issue to be determined is whether claimant 
 
            received an injury on September 28, 1989, which arose out of 
 
            and in the course of employment with employer.  
 
            
 
                 Claimant has the burden of proof.  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); McClure v. Union, Et Al., Counties, 
 
            188 N.W.2d 283 (1971); Crowe v. DeSoto Consol. Sch. Dist., 
 
            246 Iowa 402, 68 N.W.2d 63 (1955).  An employer takes an 
 
            employee subject to any active or dormant health 
 
            impairments, and a work-connected injury which more than 
 
            slightly aggravates the condition is considered to be a 
 
            personal injury.  Ziegler v. United States Gypsum Co., 252 
 
            Iowa 613, 620, 106 N.W.2d 591 (1960), and cases cited.
 
            
 
                 "An injury occurs in the course of the employment when 
 
            it is within the period of employment at a place the 
 

 
            
 
            Page   6
 
            
 
            
 
            
 
            
 
            employee may reasonably be, and while he is doing his work 
 
            or something incidental to it."  Cedar Rapids Comm. Sch., 
 
            278 N.W.2d 298; McClure, 188 N.W.2d 283; Musselman v. 
 
            Central Telephone Co., 261 Iowa 352, 154 N.W.2d 128 (1967). 
 
            
 
                 There is contradictory evidence in this case as to 
 
            whether the incident involved in claimant's injury occurred 
 
            at 4:30 p.m., as alleged by claimant and Mr. Eldridge, or 
 
            prior to 8 a.m., as alleged by Mr. Alcott and Mr. Dennis.  
 
            
 
                 Professor Larson in the Law of Workmen's Compensation, 
 
            section 21.60(a) at 5-45-50 (1990 ed.) states:
 
            
 
                 The course of employment, for employees having a 
 
                 fixed time and place of work, embraces a 
 
                 reasonable interval before and after official 
 
                 working hours while the employee is on the 
 
                 premises engaged in preparatory or incidental 
 
                 acts.  The rule is not confined to activities that 
 
                 are necessary; it is sufficient if they can be 
 
                 said to be reasonably incidental to the work.  
 
                 What constitutes a reasonable interval depends not 
 
                 only on the length of time involved but also on 
 
                 the circumstances occasioning the interval and the 
 
                 nature of the employee's activity.  Awards have 
 
                 been made when the employee was injured preparing 
 
                 to punch in, 10 minutes before her work shift 
 
                 began, during a trip to the toilet 15 minutes 
 
                 before starting time, changing clothes or placing 
 
                 his lunch on a table 20 minutes early, arriving 23 
 
                 minutes early to change clothes and have a cup of 
 
                 coffee, arranging clothes 30 minutes early, 
 
                 arriving 30 minutes or 45 minutes early, and 
 
                 arriving one hour early or leaving 15 minutes or 
 
                 even one hour late because of transportation 
 
                 arrangements.  Indeed, when the activity involved 
 
                 was that of sharpening knives for the day's work, 
 
                 an injury to a butcher two hours before starting 
 
                 time was held covered.
 
            
 
                 In the case at hand, claimant's injury occurred while 
 
            on employer's premises.  He customarily arrived at work 
 
            early and gathered with other employees to have a cup of 
 
            coffee.  Whether the incident occurred during the morning 
 
            hours prior to punching in or in the afternoon hour prior to 
 
            punching out is irrelevant in this case.  An early arrival 
 
            was not unreasonable nor unknown to employer.  Whether 
 
            claimant was drinking coffee while socializing with other 
 
            employees or cleaning up his tools at the end of the day, is 
 
            not critical.  The injury occurred at a place and time where 
 
            claimant might reasonably be expected to be.  Regardless of 
 
            the time that the incident herein occurred, there is no 
 
            dispute that the claimant was indeed injured while at work 
 
            and on employer's premises.  Accordingly, the undersigned 
 
            concludes that claimant has met his burden of proof that he 
 
            sustained an injury on September 28, 1989, arising out of 
 
            and in the course of employment with employer.
 
            
 
                 The next issue to be determined is whether claimant's 
 
            injury is causally related to the disability on which he now 
 

 
            
 
            Page   7
 
            
 
            
 
            
 
            
 
            bases his claim.  
 
            
 
                 The claimant has the burden of proving by a 
 
            preponderance of the evidence that the injury of September 
 
            28, 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.
 
            
 
                 If the available expert testimony is insufficient alone 
 
            to support a finding of causal connection, such testimony 
 
            may be coupled with nonexpert testimony to show causation 
 
            and be sufficient to sustain an award.  Giere v. Aase 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 and Company, 217 N.W.2d 
 
            531, 536 (1974).  To establish compensability, the injury 
 
            need only be a significant factor, not the only factor 
 
            causing the claimed disability.  Blacksmith v. All-American, 
 
            Inc., 290 N.W.2d 348 (Iowa 1980).
 
            
 
                 While a claimant is not entitled to compensation for 
 
            the results of a preexisting injury or disease, the mere 
 
            existence at the time of a subsequent injury is not a 
 
            defense.  Rose v. John Deere Ottumwa Works, 247 Iowa 900, 
 
            908, 76 N.W.2d 756, 760-61 (1956).  If the claimant had a 
 
            preexisting condition or disability that is aggravated, 
 
            accelerated, worsened or lighted up so that it results in 
 
            disability, claimant is entitled to recover.  Nicks v. 
 
            Davenport Produce Co., 254 Iowa 130, 115 N.W.2d 812, 815 
 
            (1962).
 
            
 
                 When an aggravation occurs in the performance of an 
 
            employer's work and a causal connection is established, 
 
            claimant may recover to the extent of the impairment.  
 
            Ziegler, 252 Iowa 613, 620, 106 N.W.2d 591, 595.
 
            
 
                 An employer takes an employee subject to any active or 
 
            dormant health impairments, and a work connected injury 
 
            which more than slightly aggravates the condition is 
 
            considered to be a personal injury.  Ziegler, 252 Iowa 613, 
 

 
            
 
            Page   8
 
            
 
            
 
            
 
            
 
            620, 106 N.W.2d 591 and cases cited.
 
            
 
                 An employee is not entitled to recover for the results 
 
            of a preexisting injury or disease but can recover for an 
 
            aggravation thereof which resulted in the disability found 
 
            to exist.  Olson v. Goodyear Service Stores, 255 Iowa 1112, 
 
            125 N.W.2d 251 (1963); Yeager v. Firestone Tire & Rubber 
 
            Co., 253 Iowa 369, 112 N.W.2d 299 (1961); Ziegler, 252 Iowa 
 
            613, 106 N.W.2d 591.  See also Barz v. Oler, 257 Iowa 508, 
 
            133 N.W.2d 704 (1965); Almquist v. Shenandoah Nurseries, 218 
 
            Iowa 724, 254 N.W. 35 (1934).
 
            
 
                 The parties do not dispute that claimant's alleged 
 
            injury is a cause of temporary and permanent disability.  
 
            Defendants paid claimant healing period benefits from 
 
            October 23, 1989 through April 24, 1990.  Claimant contends 
 
            that he is entitled to healing period benefits through 
 
            August 2, 1990, when Dr. Wirtz stated that he achieved 
 
            maximum medical improvement.  However, claimant returned to 
 
            work on April 25, 1990, and worked until October 4, 1990, 
 
            when he was put on special recall status.  He was paid his 
 
            full salary until November 10, 1990, when he was terminated.  
 
            Defendants paid claimant temporary partial disability 
 
            benefits from April 24, 1990 through June 25, 1990.  
 
            
 
                 Iowa Code section 85.34(1) provides that healing period 
 
            benefits are payable to an injured worker who has suffered 
 
            permanent partial disability until (1) he has returned to 
 
            work; (2) is medically capable of returning to substantially 
 
            similar employment; or (3) has achieved maximum medical 
 
            recovery.
 
            
 
                 Dr. Wirtz, claimant's treating physician, released 
 
            claimant to return to work on April 23, 1990, with 
 
            limitations of lifting, bending, twisting, and pushing with 
 
            his back (ex. 8, page. 13).  Claimant's diary indicates that 
 
            on April 23, 1990, he left for work at 5:20 a.m. and when he 
 
            got to work had coffee with Ronnie Cowden.  At 8 a.m. he met 
 
            with Jerry Wilkinson and presented his work release.  At 1 
 
            p.m. he met with Joel Garrey and Dennis Roupe.  At this 
 
            time, he was offered three options including front parts 
 
            counter clerk, shop clerk and trade inspections/shop office 
 
            work.  These jobs paid between $8/$10 an hour.  Claimant 
 
            went home that evening and thought about his options.  On 
 
            April 24, 1990, Jerry Wilkinson called and told him to 
 
            report to work on April 25, 1990, as a shop clerk at $8 an 
 
            hour.  On April 25, 1990, claimant reported to his new job 
 
            as a shop clerk (ex. 13).  
 
            
 
                 After carefully considering the total evidence, the 
 
            undersigned concludes that claimant is entitled to receive 
 
            healing period benefits from October 23, 1989 through April 
 
            24, 1990.  Claimant returned to full-time employment on 
 
            April 25, 1990.  Iowa Code section 85.34(2) provides that 
 
            compensation for permanent partial disability benefits shall 
 
            begin at the termination of the healing period.  
 
            Accordingly, claimant's permanent partial disability 
 
            benefits shall commence on April 25, 1990, when his healing 
 
            period benefits terminated.  
 
            
 

 
            
 
            Page   9
 
            
 
            
 
            
 
            
 
                 The next issue to be determined is the extent of 
 
            claimant's entitlement to weekly compensation for permanent 
 
            disability.  The parties have stipulated that the type of 
 
            permanent disability is an industrial disability to the body 
 
            as a whole.  
 
            
 
                 Functional impairment is an element to be considered in 
 
            determining industrial disability which is the reduction of 
 
            earning capacity, but consideration must also be given to 
 
            the injured employee's age, education, qualifications, expe
 
            rience and inability to engage in employment for which he is 
 
            fitted.  Olson, 255 Iowa 1112, 125 N.W.2d 251.  Barton v. 
 
            Nevada Poultry, 253 Iowa 285, 110 N.W.2d 660 (1961).
 
            
 
                 A finding of impairment to the body as a whole found by 
 
            a medical evaluator does not equate to industrial disabil
 
            ity.  This is so as impairment and disability are not syn
 
            onymous.  Degree of industrial disability can in fact be 
 
            much different than the degree of impairment because in the 
 
            first instance reference is to loss of earning capacity and 
 
            in the latter to anatomical or functional abnormality or 
 
            loss.  Although loss of function is to be considered and 
 
            disability can rarely be found without it, it is not so that 
 
            a degree of industrial disability is proportionally related 
 
            to a degree of impairment of bodily function.
 
            
 
                 Factors to be considered in determining industrial dis
 
            ability include the employee's medical condition prior to 
 
            the injury, immediately after the injury, and presently; the 
 
            situs of the injury, its severity and the length of healing 
 
            period; the work experience of the employee prior to the 
 
            injury, after the injury and potential for rehabilitation; 
 
            the employee's qualifications intellectually, emotionally 
 
            and physically; earnings prior and subsequent to the injury; 
 
            age; education; motivation; functional impairment as a 
 
            result of the injury; and inability because of the injury to 
 
            engage in employment for which the employee is fitted.  Loss 
 
            of earnings caused by a job transfer for reasons related to 
 
            the injury is also relevant.  These are matters which the 
 
            finder of fact considers collectively in arriving at the 
 
            determination of the degree of industrial disability.
 
            
 
                 There are no weighting guidelines that indicate how 
 
            each of the factors are to be considered.  There are no 
 
            guidelines which give, for example, age a weighted value of 
 
            ten percent of the total value, education a value of fifteen 
 
            percent of total, motivation - five percent; work experience 
 
            - thirty percent, etc.  Neither does a rating of functional 
 
            impairment directly correlate to a degree of industrial 
 
            disability to the body as a whole.  In other words, there 
 
            are no formulae which can be applied and then added up to 
 
            determine the degree of industrial disability.  It therefore 
 
            becomes necessary for the deputy or commissioner to draw 
 
            upon prior experience, general and specialized knowledge to 
 
            make the finding with regard to degree of industrial dis
 
            ability.   See Peterson v. Truck Haven Cafe, Inc., vol. 1, 
 
            no. 3 State of Iowa Industrial Commissioner Decisions 654, 
 
            658 (Appeal Decision February 28, 1985); Christensen v. 
 
            Hagen, Inc., vol. I, no. 3, State of Iowa Industrial 
 
            Commissioner Decisions 529 (Appeal Decision March 26, 1985).
 

 
            
 
            Page  10
 
            
 
            
 
            
 
            
 
            
 
                 There are no weighting guidelines that indicate how 
 
            each of the factors are to be considered.  There are no 
 
            formulae which can be applied and then added up to determine 
 
            the degree of industrial disability to the body as a whole.  
 
            It, therefore, becomes necessary for the deputy or 
 
            commissioner to draw upon prior experience and general and 
 
            specialized knowledge to make a finding with regard to the 
 
            degree of industrial disability.  See, Peterson, vol. 1, no. 
 
            3 State of Iowa Industrial Commissioner Decisions at 658; 
 
            Christensen, vol. I, no. 3, State of Iowa Industrial 
 
            Commissioner Decisions at 535.
 
            
 
                 In this instance several factors are relevant.  
 
            Claimant's age plays a role.  Claimant's proximity to 
 
            advanced age and consequently retirement age, affects his 
 
            industrial disability.  Claimant is near the end of his 
 
            normal work life.  Compared to a younger worker with the 
 
            same injury, claimant has lost less future earning capacity 
 
            as a result of his injury.  McClellan v. Midwest Biscuit 
 
            Co., file number 802020, (Iowa Industrial Commissioner 
 
            Appeal September 20, 1989).  According to Roger Marquardt, 
 
            claimant has lost 50 percent access to the job market by 
 
            virtue of his age, education and past relevant work.  
 
            Claimant currently has the capacity to perform light work 
 
            activity.  This precludes him from performing work as a 
 
            field service mechanic and other heavy equipment maintenance 
 
            and repair jobs.  Claimant's functional impairment ratings 
 
            range from 8 percent (ex. 5) to 20 percent (ex. 8, p. 19).  
 
            He has been given minimal to significant restrictions.  
 
            
 
                 Daniel J. McGuire, M.D., saw claimant on June 13, 1991, 
 
            and stated that while he has some lack of range of motion of 
 
            the lumbar spine, this would improve with an active 
 
            stretching program (ex. 5, p. 2).  Dr. Wirtz, who last saw 
 
            claimant on October 17, 1990, restricted him to lifting no 
 
            more than 10 pounds and standing, bending or stooping on a 
 
            repetitive basis (ex. 8, p. 25).  Claimant testified that he 
 
            applied for unemployment compensation benefits on November 
 
            10, 1990, when he was terminated and has filed at least 60 
 
            work applications since that time.  It is difficult to 
 
            determine claimant's potential for the labor market since he 
 
            has not seriously tried to work since November 1990.  
 
            Schofield v. Iowa Beef Processors, Inc., II Iowa Industrial 
 
            Commissioner Report 334, 336 (1981).  According to Mr. 
 
            Marquardt, claimant has lost access to the semi-skilled 
 
            labor market although he possesses some transferable work 
 
            skills from his prior job.  Between 30 and 35 percent of the 
 
            unskilled labor market is within his physical limitations.  
 
            Accordingly, claimant's earning capacity has been 
 
            significantly reduced.  Claimant's ability to be retrained 
 
            is limited by his age and back condition.  
 
            
 
                 Based upon the foregoing factors, all of the factors 
 
            used to determine industrial disability, and employing 
 
            agency expertise, it is determined that claimant sustained 
 
            50 percent industrial disability.  Accordingly, he is 
 
            entitled to 250 weeks of permanent partial disability 
 
            benefits commencing April 25, 1990, at the rate of $309.82.  
 
            
 

 
            
 
            Page  11
 
            
 
            
 
            
 
            
 
                                      order
 
            
 
                 THEREFORE, IT IS ORDERED:
 
            
 
                 That defendants pay to claimant twenty six-point two 
 
            eight six (26.286) weeks of healing period benefits at the 
 
            rate of three hundred nine and 82/100 dollars ($309.82) per 
 
            week from October 23, 1989 through April 24, 1990.
 
            
 
                 That defendants pay to claimant two hundred fifty (250) 
 
            weeks of permanent partial disability benefits at the rate 
 
            of three hundred nine and 82/100 dollars ($309.82) per week 
 
            commencing April 25, 1990.
 
            
 
                 That all accrued benefits be paid in a lump sum.
 
            
 
                 That defendants receive credit for benefits previously 
 
            paid.
 
            
 
                 That interest accrue pursuant to Iowa Code section 
 
            85.30.
 
            
 
                 That defendants pay the costs of this action pursuant 
 
            to rule 343 IAC 4.33.
 
            
 
                 That defendants file claim activity reports as 
 
            requested by this agency pursuant to rule 343 IAC 3.1.
 
            
 
                 Signed and filed this ____ day of November, 1991.
 
            
 
            
 
            
 
            
 
                                          ______________________________
 
                                          JEAN M. INGRASSIA
 
                                          DEPUTY INDUSTRIAL COMMISSIONER    
 
            
 
            Copies to:
 
            
 
            Mr. Patrick W. Brick
 
            Attorney at Law
 
            550 39th St. STE 200
 
            Des Moines, IA  50312
 
            
 
            Mr. D. Brian Scieszinski
 
            Attorney at Law
 
            801 Grand Ave STE 3700
 
            Des Moines, IA  50309-2727
 
            
 
 
            
 
            Page   1
 
            
 
            
 
            
 
            
 
                      1105 1602 1402.30 51802 51803
 
                      Filed November 22, 1991
 
                      Jean M. Ingrassia
 
            before the iowa industrial commissioner
 
            ____________________________________________________________
 
		                      :
 
            DONALD PALMER,	      :
 
                     		      :
 
                 Claimant, 	      :
 
                		      :
 
		            vs.       :
 
                      		      :      File No.  930995
 
            HERMAN BROWN COMPANY,     :
 
		                      :  A R B I T R A T I O N
 
                 Employer,	      :
 
                     		      :      D E C I S I O N
 
		            and       :
 
                		      :
 
            EMPLOYERS MUTUAL COMPANIES,:         
 
                     		      :
 
                 Insurance Carrier,   :
 
                 Defendants.          :
 
            ___________________________________________________________
 
            
 
            1105 1602
 
            Claimant, a 54-year old field service mechanic, injured his 
 
            back when another employee came up behind him and gave him a 
 
            knee in the back of his right leg.  Claimant slipped and 
 
            twisted his back.  An MRI examination revealed degeneration 
 
            at the L3-4, L4-5 and L5-S1 areas.  Claimant underwent a 
 
            laminectomy and diskectomy on January 9, 1990, and was 
 
            released for light duty on April 23, 1990.  He returned to 
 
            full-time employment, with restrictions, on April 25, 1990.  
 
            He was placed in a job that paid $3 less ($8) than what he 
 
            earned at the time of his injury.  He worked as a shop clerk 
 
            until October 4, 1990, when he was removed from this job 
 
            because of an attitude problem and an unwillingness to 
 
            cooperate with his supervisor.  He was put on recall status 
 
            until he was terminated on November 10, 1990.  
 
            Defendants raised the defense of horseplay and willful 
 
            injury under Iowa Code section 85.16(1) and (3).  
 
            After carefully considering the total evidence it was 
 
            determined that defendants failed to meet their burden of 
 
            proof relative to 85.16(1) defense and that of horseplay.  
 
            Claimant's conduct did not constitute horseplay.  Ford v. 
 
            Barcus, 261 Iowa 616, 155 N.W.2d 507 (1968); Wittmer v. 
 
            Dexter Manufacturing Co., 204 Iowa 181, 214 N.W. 700 (1927) 
 
            stand for the proposition that an employee who voluntarily 
 
            initiates and aggressively participates in horseplay and who 
 
            is injured does not sustain an injury arising out of and in 
 
            the course of employment.  The facts in this case clearly 
 
            indicate that claimant did not engage in horseplay.  
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            Under Iowa Code section 85.16(3), defendants must establish 
 
            that the assault occurred because of the employment and was 
 
            not independent of it.  The issue is whether the injury 
 
            arose out of claimant's employment or whether the injury was 
 
            caused by the willful act of a third party directed against 
 
            claimant for reasons personal to claimant.  The incident 
 
            described herein was no more than a playful encounter which 
 
            unfortunately resulted in a serious injury.
 
            
 
            1402.30 
 
            Defendants also argue that claimant's injury did not arise 
 
            out of and in the course of his employment because it 
 
            occurred prior to claimant's work day which started at 8 
 
            a.m.  
 
            The evidence as to this issue is conflicting.  Claimant and 
 
            the perpetrator testified that the incident occurred at 4:30 
 
            at the end of the work day while claimant was cleaning his 
 
            tools.  One witness to the incident and a disputed witness 
 
            to the incident (claimant and perpetrator deny the other 
 
            witness was present), indicate that the incident occurred at 
 
            7 a.m. while claimant was having coffee in employer's 
 
            garage.  The evidence clearly indicated that claimant 
 
            customarily arrived at work early in the morning.  Employer 
 
            was aware that claimant and others gathered for coffee on 
 
            the work premises prior to punching in.  The injury occurred 
 
            at a place where claimant might reasonably be expected to 
 
            be.  His arrival time was not unreasonable nor unbeknown to 
 
            employer.  Employer acquiesced in his employees meeting 
 
            prior to the work day and socializing over coffee.  Whether 
 
            the incident occurred at 7 a.m. or 4:30 p.m. was found to be 
 
            irrelevant.  Larson in the Law of Workmen's Compensation, 
 
            section 21.60(a) states that "course of employment for 
 
            employees having a fixed time and place of work, embraces a 
 
            reasonable interval before and after official working hours 
 
            while the employee is on the premises engaged in preparatory 
 
            or incidental acts."  The act of drinking coffee and 
 
            socializing with co-employees found to be reasonably 
 
            incident to his work and did not take claimant out of the 
 
            course of his employment.
 
            
 
            51802 51803
 
            Claimant awarded healing period benefits from the date of 
 
            the injury until he was released to return to work on April 
 
            24, 1990.  He was awarded 250 weeks of permanent partial 
 
            disability benefits at the rate of $309.82 per week in view 
 
            of his age (54), education (ninth grade and GED 
 
            certificate), inability to perform his past relevant very 
 
            heavy work activity, and 50 percent loss of access to the 
 
            competitive job market because of his restriction to light 
 
            work activity.
 
            
 
 
            
 
            Page   1
 
            
 
            
 
            
 
            
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            DENNIS CAPPS,                 :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :      File No.  931104
 
            FIRESTONE TIRE AND RUBBER CO.,:
 
                                          :  A R B I T R A T I O N
 
                 Employer,                :
 
                                          :      D E C I S I O N
 
            and                           :
 
                                          :
 
            CIGNA,                        :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
                              statement of the case
 
            
 
                 This is a proceeding in arbitration brought by Dennis 
 
            Capps as a result of injuries to his cervical spine which 
 
            occurred on September 1, 1988.  Defendants admitted 
 
            compensability for the injury and paid medical expenses.
 
            
 
                 The case was heard and fully submitted at Des Moines, 
 
            Iowa, on May 13, 1991.  The record in the proceeding 
 
            consists of joint exhibits 1 through 53 and A, B, D, E and F 
 
            and testimony from claimant.
 
            
 
                                      issues
 
            
 
                 The issues presented for determination are as follows:
 
            
 
                 1.  Claimant's entitlement to reimbursement for Iowa 
 
            Code section 85.27 expenses; and
 
            
 
                 2.  Claimant's entitlement to permanent partial 
 
            disability under Iowa Code section 85.34(2)(u) and the 
 
            causal connection to permanent disability.
 
            
 
                                 findings of fact
 
            
 
                 Having considered all the evidence received the 
 
            following findings of fact are made:
 
            
 
                 Claimant injured his neck on September 1, 1988, while 
 
            working for employer when he was struck by a falling tire.  
 
            Claimant had suffered a prior neck injury in 1984 while 
 
            working for employer and was awarded 25 percent industrial 
 
            disability.
 
            
 
                 Claimant was given conservative treatment for the 
 
            September 1, 1988, neck injury by Robert C. Jones, M.D., who 
 
            diagnosed the injury as a herniated disc at C6/7 and found a 
 
            causal connection to the September 1, 1988, injury (exhibits 
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            43 and 45).  The diagnosis of C6/7 is distinguished from the 
 
            May 1984 injury which resulted in a C5/6 fusion surgery.  
 
            Dr. Jones did not restrict claimant from work either 
 
            temporarily or permanently as a result of the September 1, 
 
            1988, injury.
 
            
 
                 Claimant was examined by David J. Boarini, M.D., at 
 
            defendants' request on March 25, 1991 (ex. 46).  Dr. Boarini 
 
            opined that claimant's current neck problems were not 
 
            related to the September 1988 incident and that claimant's 
 
            impairment had not changed since 1987.  
 
            
 
                 Dr. Boarini's opinion on causal connection is rejected 
 
            as he saw claimant on only one occasion after September 1, 
 
            1988, and is not as familiar with claimant's overall 
 
            treatment.  Dr. Jones' opinion that claimant's C6/7 spine 
 
            problem is related to the September 1, 1988, incident is 
 
            found to be correct.  Not only is Dr. Jones the treating 
 
            doctor for the September 1988 accident, but he also treated 
 
            claimant for the 1984 cervical spine injury and is much more 
 
            familiar with claimant's medical history.
 
            
 
                 Dr. Jones found claimant to have sustained 10 percent 
 
            permanent partial impairment as a result of the September 1, 
 
            1988, injury [ex. 46(a)].  Dr. Boarini stated that no 
 
            impairment resulted.  Once again, Dr. Jones' opinion on 
 
            permanent impairment is found to be correct as he was the 
 
            primary treating physician in this case.  It is also noted 
 
            that claimant was diagnosed with a herniated disc at C6/7 
 
            which weighs in favor of a finding of permanent disability.  
 
            The extent of impairment does not, however, establish the 
 
            extent of industrial disability.
 
            
 
                 Factors to be considered when assessing industrial 
 
            disability include claimant's age, education, experience, 
 
            impairment, work restrictions and employer's offer of work.
 
            
 
                 Claimant was age 46 at the time of injury.  His work 
 
            experience and education are essentially the same as stated 
 
            in the arbitration decision offered as exhibit E, with the 
 
            exception of his start date for work at Brady which is 
 
            actually 1972.
 
            
 
                 Claimant's impairment for the September 1, 1988, injury 
 
            ranged from 0 to 10 percent with no additional work 
 
            restrictions being imposed by either doctor.  Claimant was 
 
            able to continue his work for employer through the date of 
 
            hearing at the same duties he was performing on September 1, 
 
            1988.  Claimant's hourly rate of pay has increased 
 
            subsequent to the September 1, 1988, injury.
 
            
 
                 Factors which weigh against a finding of industrial 
 
            disability include the lack of more severe work 
 
            restrictions, claimant's return to work at the same work and 
 
            the increase in actual earnings.
 
            
 
                 Factors which weigh in favor of a finding of industrial 
 
            disability include Dr. Jones' opinion on impairment and a 
 
            finding of a C6/7 herniated disc.
 
            
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
                 Evidence was offered which indicated that surgery may 
 
            be forthcoming as a result of the September 1, 1988, injury.  
 
            The possibility of a future surgery is too speculative to 
 
            consider when assessing industrial disability.  Therefore, 
 
            any change in condition resulting from future surgery will 
 
            be subject to review-reopening.
 
            
 
                 Having considered all the evidence, it is found that 
 
            the September 1, 1988, C6/7 herniated disc injury has caused 
 
            5 percent industrial disability.  This award of industrial 
 
            disability is in addition to that awarded in file number 
 
            779672 on October 29, 1987.
 
            
 
                 The final issue to be resolved concerns claimant's 
 
            entitlement to reimbursement for $1293 in medical expense 
 
            incurred for treatment on February 21, 1991.  The expense 
 
            was for tests ordered by Dr. Jones who is the treating 
 
            physician in this matter.  The tests were used to diagnose 
 
            and treat claimant's cervical spine injury which is at issue 
 
            in this matter.  As such, the expenses are causally 
 
            connected to the work injury and are compensable.
 
            
 
                                conclusions of law
 
            
 
                 The opinions of experts need not be couched in 
 
            definite, positive or unequivocal language.  Sondag v. 
 
            Ferris Hardware, 220 N.W.2d 903 (Iowa 1974).  An opinion of 
 
            an expert based upon an incomplete history is not binding 
 
            upon the commissioner, but must be weighed together with the 
 
            other disclosed facts and circumstances.  Bodish v. Fischer, 
 
            Inc., 257 Iowa 516, 133 N.W.2d 867 (1965).  The expert 
 
            medical evidence must be considered with all other evidence 
 
            introduced bearing on the causal connection between the 
 
            injury and the disability.  Burt v. John Deere Waterloo 
 
            Tractor Works, 247 Iowa 691, 73 N.W.2d 732 (1955).  In 
 
            regard to medical testimony, the commissioner is required to 
 
            state the reasons on which testimony is accepted or 
 
            rejected.  Sondag v. Ferris Hardware, 220 N.W.2d 903 (Iowa 
 
            1974).
 
            
 
                 Functional impairment is an element to be considered in 
 
            determining industrial disability which is the reduction of 
 
            earning capacity, but consideration must also be given to 
 
            the injured employee's age, education, qualifications, expe
 
            rience and inability to engage in employment for which he is 
 
            fitted.  Olson v. Goodyear Service Stores, 255 Iowa 1112, 
 
            125 N.W.2d 251 (1963).  Barton v. Nevada Poultry, 253 Iowa 
 
            285, 110 N.W.2d 660 (1961).
 
            
 
                 A finding of impairment to the body as a whole found by 
 
            a medical evaluator does not equate to industrial disabil
 
            ity.  This is so as impairment and disability are not syn
 
            onymous.  Degree of industrial disability can in fact be 
 
            much different than the degree of impairment because in the 
 
            first instance reference is to loss of earning capacity and 
 
            in the latter to anatomical or functional abnormality or 
 
            loss.  Although loss of function is to be considered and 
 
            disability can rarely be found without it, it is not so that 
 
            a degree of industrial disability is proportionally related 
 
            to a degree of impairment of bodily function.
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
            
 
                 Factors to be considered in determining industrial dis
 
            ability include the employee's medical condition prior to 
 
            the injury, immediately after the injury, and presently; the 
 
            situs of the injury, its severity and the length of healing 
 
            period; the work experience of the employee prior to the 
 
            injury, after the injury and potential for rehabilitation; 
 
            the employee's qualifications intellectually, emotionally 
 
            and physically; earnings prior and subsequent to the injury; 
 
            age; education; motivation; functional impairment as a 
 
            result of the injury; and inability because of the injury to 
 
            engage in employment for which the employee is fitted.  Loss 
 
            of earnings caused by a job transfer for reasons related to 
 
            the injury is also relevant.  These are matters which the 
 
            finder of fact considers collectively in arriving at the 
 
            determination of the degree of industrial disability.
 
            
 
                 There are no weighting guidelines that indicate how 
 
            each of the factors are to be considered.  There are no 
 
            guidelines which give, for example, age a weighted value of 
 
            ten percent of the total value, education a value of fifteen 
 
            percent of total, motivation - five percent; work experience 
 
            - thirty percent, etc.  Neither does a rating of functional 
 
            impairment directly correlate to a degree of industrial 
 
            disability to the body as a whole.  In other words, there 
 
            are no formulae which can be applied and then added up to 
 
            determine the degree of industrial disability.  It therefore 
 
            becomes necessary for the deputy or commissioner to draw 
 
            upon prior experience, general and specialized knowledge to 
 
            make the finding with regard to degree of industrial dis
 
            ability.   See Peterson v. Truck Haven Cafe, Inc., (Appeal 
 
            Decision, February 28, 1985); Christensen v. Hagen, Inc., 
 
            (Appeal Decision, March 26, l985).
 
            
 
                 Claimant has proven by a preponderance of the evidence 
 
            that the September 1, 1988, injury is a cause of permanent 
 
            disability.
 
            
 
                 Upon considering all the material factors, it is found 
 
            that the evidence in this case supports an award of 5 
 
            percent permanent partial disability which entitles claimant 
 
            to recover 25 weeks of benefits under Iowa Code section 
 
            85.34(2)(u) as a result of the September 1, 1988, cervical 
 
            spine injury.
 
            
 
                 The employer, for all injuries compensable under 
 
            chapter 85 or chapter 85A, shall furnish reasonable 
 
            surgical, medical, dental, osteopathic, chiropractic, 
 
            podiatric, physical rehabilitation, nursing, ambulance and 
 
            hospital services and supplies; therefore, and shall allow 
 
            reasonable necessary transportation expenses incurred for 
 
            such services.  The employer has the right to choose the 
 
            provider of care.  Iowa Code section 85.27.
 
            
 
                 Claimant has proven by a preponderance of the evidence 
 
            that the medical expenses incurred on February 21, 1991, are 
 
            causally connected to the work injury and, as such, are 
 
            compensable expenses.
 
            
 
                                      order
 

 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
            
 
                 IT IS THEREFORE, ORDERED:
 
            
 
                 Defendants are to pay claimant twenty-five (25) weeks 
 
            of permanent partial disability benefits at the rate of two 
 
            hundred forty-seven and 66/100 dollars ($247.66) per week 
 
            commencing September 2, 1988.
 
            
 
                 Defendants are to pay medical expenses totaling one 
 
            thousand two hundred ninety-three dollars ($1293).
 
            
 
                 It is further ordered that defendants shall receive 
 
            credit for benefits previously paid.
 
            
 
                 It is further ordered that all accrued benefits are to 
 
            be paid in a lump sum.
 
            
 
                 It is further ordered that interest will accrue 
 
            pursuant to Iowa Code section 85.30. 
 
            
 
                 It is further ordered that the costs of this action are 
 
            assessed against defendants pursuant to rule 343 IAC 4.33.
 
            
 
                 It is further ordered that defendants file claim 
 
            activity reports as requested by this agency pursuant to 
 
            rule 343 IAC 3.1.
 
            
 
                 Signed and filed this ____ day of May, 1991.
 
            
 
            
 
            
 
            
 
                                          ______________________________
 
                                          MARLON D. MORMANN
 
                                          DEPUTY INDUSTRIAL COMMISSIONER    
 
            
 
            
 
            
 
            
 
            
 
            Copies to:
 
            
 
            Mr. Robert W. Pratt
 
            Attorney at Law
 
            6959 University Ave
 
            Des Moines, Iowa  50311
 
            
 
            Mr. Marvin Duckworth
 
            Attorney at Law
 
            2700 Grand Ave. STE 111
 
            Des Moines, Iowa  50312
 
            
 
            
 
 
            
 
            Page   1
 
            
 
            
 
            
 
            
 
                      51803 52500
 
                      Filed May 23, 1991
 
                      Marlon D. Mormann
 
            before the iowa industrial commissioner
 
            ____________________________________________________________
 
                      :
 
            DENNIS CAPPS,  :
 
                      :
 
                 Claimant, :
 
                      :
 
            vs.       :
 
                      :      File No.  931104
 
            FIRESTONE TIRE AND RUBBER CO.,:
 
                      :  A R B I T R A T I O N
 
                 Employer, :
 
                      :      D E C I S I O N
 
            and       :
 
                      :
 
            CIGNA,    :
 
                      :
 
                 Insurance Carrier,  :
 
                 Defendants.    :
 
            ___________________________________________________________
 
            
 
            51803
 
            Claimant, at age 46 with impairment of 0 to 10 percent, due 
 
            to a C6/7 herniated disc with no surgery, was awarded 5 
 
            percent permanent partial disability.  Claimant had no 
 
            surgery, no permanent work restrictions, had remained at the 
 
            same job and achieved a higher rate of pay.  Future surgery 
 
            was speculative and left as an issue on review-reopening.
 
                 
 
            52500
 
            Claimant awarded $1293 in unpaid medical benefits.
 
            
 
 
            
 
            Page   1
 
            
 
            
 
            
 
            
 
            
 
            
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            JAMES H. HERRON,              :
 
                                          :
 
                 Claimant,                :         File No. 931105
 
                                          :
 
            vs.                           :      A R B I T R A T I O N
 
                                          :
 
            JOHN DEERE DUBUQUE WORKS      :         D E C I S I O N
 
            OF DEERE & COMPANY,           :
 
                                          :
 
                 Employer,                :
 
                 Self-Insured,            :
 
                 Defendant.               :
 
            ____________________________________________________________
 
            
 
                              STATEMENT OF THE CASE
 
            
 
                 This is a proceeding in arbitration brought by James H. 
 
            Herron against his former employer, John Deere Dubuque Works 
 
            of Deere & Company, in which he asserts that he sustained an 
 
            occupational hearing loss and seeks permanent partial 
 
            disability compensation.
 
            
 
                 The issues identified for determination are whether 
 
            Herron's hearing loss arose out of and in the course of his 
 
            employment and, if so, determination of the amount of 
 
            compensation he is entitled to recover.  The employer 
 
            asserts the affirmative defense of lack of notice under 
 
            section 85.23 of The Code.
 
            
 
                 The case was heard in Dubuque, Iowa on March 29, 1991.  
 
            The evidence in the case consists of testimony from M. L. 
 
            McClennahan, M.D., and James H. Herron.  The record also 
 
            includes jointly offered exhibits 1 through 7.
 
            
 
                                 findings of fact
 
            
 
                 Having considered all the evidence received, together 
 
            with the appearance and demeanor of the witnesses, the 
 
            following findings of fact are made.
 
            
 
                 James H. Herron is a 55-year-old man who retired from 
 
            John Deere Dubuque Works effective December 31, 1987 after 
 
            31 years of service with the company.
 
            
 
                 Herron had some difficulty with his ears in 1973 when 
 
            he underwent bilateral myringotomy surgery with tubes in 
 
            order to cure ear infection (exhibit 3, page 2; exhibit 4, 
 
            pages 3 and 4).
 
            
 
                 Approximately two years later, on September 30, 1975, 
 
            claimant was administered a screening type of audiogram 
 
            which was arranged by his employer.  The test showed a mild 
 
            hearing loss with the loss being slightly greater in the 
 
            left ear than in the right (exhibit 3).
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            
 
            
 
            
 
                 Prior to 1975, Herron had worked in positions which 
 
            presented a known hazard for hearing damage.  Subsequent to 
 
            1974, the only position he held was that of a tool grinder, 
 
            a department which was not shown to present a recognized 
 
            hazard to hearing (exhibit 5).  According to claimant, the 
 
            tool grind department, number 38, was not generally 
 
            considered to be one of the noisy areas in the plant.  He 
 
            did, however, relate that it was adjacent to department 17 
 
            which contained machines which were known to be extremely 
 
            noisy.  Claimant wore hearing protection since 1984 when it 
 
            was required by the employer for all employees in the 
 
            factory.
 
            
 
                 Herron had not actually worked in the plant since early 
 
            June 1987 when he underwent coronary artery bypass surgery.  
 
            Following that surgery, he never actually resumed work, but 
 
            instead retired effective December 31, 1987.
 
            
 
                 On May 30, 1989, Herron contacted Craig C. Herther, 
 
            M.D., a board-certified otolaryngologist with complaints of 
 
            a gradual right hearing loss over the past few years and 
 
            tinnitus in the right ear.  An audiogram was conducted which 
 
            showed a severe to profound sensory neural hearing loss in 
 
            the right ear, but near normal hearing in the left ear 
 
            (exhibit 4, pages 1, 2 and 6).  The audiogram taken in 1989 
 
            actually showed the hearing in claimant's left ear to be 
 
            slightly improved in comparison to the 1975 audiogram.  The 
 
            difference is found to be due to a combination of the 1975 
 
            test having been a less accurate screening, rather than a 
 
            highly accurate diagnostic test and also due to fatigue.  
 
            Herron had been out of a noisy environment for several 
 
            months when the 1989 test was administered, but he had been 
 
            working in a noisy environment only minutes prior to the 
 
            1975 audiogram.  Overall, however, the tests failed to show 
 
            any significant reduction in Herron's left ear hearing 
 
            between 1975 and 1989.  Over the same period, the audiograms 
 
            show an extremely large reduction in the hearing 
 
            capabilities of claimant's right ear.  The record does not 
 
            show with any reasonable degree of specificity the point in 
 
            time at over which the major reduction in hearing ability in 
 
            claimant's right ear occurred.
 
            
 
                 Dr. McClennahan stated at hearing that noise-induced 
 
            hearing losses are usually approximately equal bilaterally.  
 
            In his opinion, Herron's hearing loss in his right ear, to 
 
            the extent that it exceeded the loss in the left ear, was 
 
            not a result of noise exposure at his place of employment.  
 
            In a report dated August 30, 1990, Dr. Herther reported that 
 
            it was unlikely that the loss of hearing in claimant's right 
 
            ear was due to noise.
 
            
 
                 The results of an audiogram can be somewhat diagnostic 
 
            for the source of a hearing loss.  The audiogram for 
 
            claimant's left ear is classic for that commonly seen with a 
 
            noise-induced hearing loss.  It is classic in the sense that 
 
            the hearing ability in the left ear is essentially normal at 
 
            the lower frequencies and then drops off commencing at 
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            
 
            
 
            approximately 3,000 Hertz.  The hearing in claimant's right 
 
            ear is nowhere near normal in the lower frequencies.  Agency 
 
            experience is consistent with the testimony from Dr. 
 
            McClennahan regarding long-term noise-induced hearing losses 
 
            being approximately equal bilaterally.  The only exception 
 
            is when the source of the noise is located relatively much 
 
            farther from the less affected ear than from the seriously 
 
            affected ear.  Such a factual setting normally has the 
 
            source of noise only inches or at most a few feet from the 
 
            affected ear.  Such a situation has not been shown to have 
 
            existed in this case.  The noisy machines in department 17, 
 
            while they might have been on Herron's right side, were 
 
            clearly several feet away from Herron.  Both of Herron's 
 
            ears would have been essentially equally exposed to the 
 
            noise from department 17.
 
            
 
                 It is found that noise exposure at the John Deere 
 
            Dubuque Works caused a hearing loss in both of James H. 
 
            Herron's ears in an amount which is approximately equal to 
 
            that shown for his left ear in the 1989 audiogram (exhibit 
 
            4).  The amount of noise-induced hearing loss in either of 
 
            Herron's ears does not exceed an average of 25 decibels when 
 
            measured at the frequencies of 500, 1000, 2000 and 3000 
 
            Hertz.  While it may be possible that noise produced the 
 
            balance of the loss in claimant's right ear, the evidence 
 
            shows that possibility to be unlikely.
 
            
 
                                conclusions of law
 
            
 
                 Claimant has the burden of proving by a preponderance 
 
            of the evidence that he received an injury on December 31, 
 
            1987 which arose out of and in the course of his employment. 
 
            McDowell v. Town of Clarksville, 241 N.W.2d 904 (Iowa 
 
            1976); Musselman v. 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.  McClure v. Union County, 188 N.W.2d 283, 287 
 
            (Iowa 1971); Crowe v. DeSoto Consol. Sch. Dist., 246 Iowa 
 
            402, 68 N.W.2d 63 (1955).  The "arising out of" requirement 
 
            is satisfied by showing a causal relationship between the 
 
            employment and the injury.  Sheerin v. Holin Co., 380 N.W.2d 
 
            415, 417 (Iowa 1986).
 
            
 
                 James H. Herron has failed to prove, by a preponderance 
 
            of the evidence, that he is entitled to recover any 
 
            compensation for occupational hearing loss under the 
 
            provisions of Chapter 85B of The Code of Iowa.
 
            
 
                 The testimony from Dr. McClennahan clearly establishes 
 
            a basis for apportionment of the right ear hearing loss 
 
            between that which was likely induced by noise exposure and 
 
            that which most likely resulted from some other unidentified 
 
            cause.  Tussing v. George A. Hormel & Co., 417 N.W.2d 457 
 
            (Iowa 1988); Varied Enterprises, Inc. v. Sumner, 353 N.W.2d 
 
            407 (Iowa 1984).
 
            
 
                 Since the ruling on the merits disposes of the case, it 
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
            
 
            
 
            is not necessary to address the notice issue which had been 
 
            raised as an affirmative defense.
 
            
 
                                      order
 
            
 
                 IT IS THEREFORE ORDERED that James H. Herron take 
 
            nothing from this proceeding.
 
            
 
                 IT IS FURTHER ORDERED that the costs of this action are 
 
            assessed against the claimant pursuant to rule 343 IAC 4.33.
 
            
 
                 Signed and filed this ______ day of ____________, 1991.
 
            
 
                 
 
            
 
                 
 
                 
 
                                          ______________________________
 
                                          MICHAEL G. TRIER
 
                                          DEPUTY INDUSTRIAL COMMISSIONER
 
            
 
            Copies To:
 
            
 
            Mr. Michael J. Coyle
 
            Attorney at Law
 
            200 Security Building
 
            Dubuque, Iowa  52001
 
            
 
            Mr. Leo A. McCarthy
 
            Attorney at Law
 
            222 Fischer Building
 
            P.O. Box 239
 
            Dubuque, Iowa  52004
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                           5-1108.50; 5-2208
 
                           Filed April 2, 1991
 
                           MICHAEL G. TRIER
 
            before the iowa industrial commissioner
 
            ____________________________________________________________
 
                      :
 
            JAMES H. HERRON,    :
 
                      :
 
                 Claimant, :         File No. 931105
 
                      :
 
            vs.       :      A R B I T R A T I O N
 
                      :
 
            JOHN DEERE DUBUQUE WORKS :         D E C I S I O N
 
            OF DEERE & COMPANY, :
 
                      :
 
                 Employer, :
 
                 Self-Insured,  :
 
                 Defendant.     :
 
            ____________________________________________________________
 
            
 
            5-1108.50; 5-2208
 
            Claimant failed to prove, by a preponderance of the 
 
            evidence, that his noise-induced hearing loss was of 
 
            sufficient severity to permit an award under Chapter 85B.