Page   1
 
            
 
            
 
            
 
            
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            LARRY D. ANDERSON,            :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :         File No. 931110
 
            ARMOUR FOOD COMPANY,          :
 
                                          :      A R B I T R A T I O N
 
                 Employer,                :
 
                                          :         D E C I S I O N
 
            and                           :
 
                                          :
 
            HARTFORD INSURANCE COMPANY.,  :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
            
 
                              statement of the case
 
            
 
                 This is a proceeding in arbitration upon the petition 
 
            of claimant, Larry D. Anderson, against his employer, Armour 
 
            Food Company, and its insurance carrier, Hartford Insurance 
 
            Company, defendants.  The case was heard on January 17, 
 
            1991, in Mason City, Iowa at the Cerro Gordo County 
 
            Courthouse.  The record consists of the testimony of 
 
            claimant and the testimony of John R. Cottrell, best friend 
 
            of claimant.  The record also consists of the testimony of 
 
            Carl Brant.  Additionally, the record consists of claimant's 
 
            exhibits 1-11, 13-17, 20, 23-25, 26 and defendants' exhibits 
 
            C, E, F, I, K and L.
 
            
 
                                      issue
 
            
 
                 The sole issue to be determined is:  the nature and 
 
            extent of claimant's permanent disability.
 
            
 
                                 findings of fact
 
            
 
                 The deputy, having heard the testimony and considered 
 
            all the evidence, finds:
 
            
 
                 Claimant was 28 years old at the time of his hearing.  
 
            He is the father of one child.  In December of 1983, 
 
            claimant commenced employment with defendant-employer.  He 
 
            held positions as a belly press operator and bacon cash and 
 
            line slicer.
 
            
 
                 Claimant testified he began experiencing problems in 
 
            the right upper extremity, the right shoulder and the right 
 
            neck area.  He testified he felt a burning sensation from 
 
            his armpit through his fingers and that he felt shoulder 
 
            strain.
 
            
 
                 Claimant was first removed from work because of the 
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            aforementioned complaints on December 10, 1987.  The company 
 
            doctor, Kenneth B. Washburn, M.D., initially treated 
 
            claimant.  Treatment was conservative.  Claimant's condition 
 
            did not improve and he was referred to Michael Crane, M.D., 
 
            a board certified orthopedic surgeon.
 
            
 
                 Dr. Crane diagnosed claimant as having a subluxing 
 
            nerve of the right ulnar nerve.  Dr. Crane performed three 
 
            surgeries on the right upper extremity.  Claimant continued 
 
            to experience pain.  Dr. Crane opined claimant had a type of 
 
            sympathetic dystrophy.  As of February 24, 1989, Dr. Crane 
 
            rated claimant as having a 20 percent impairment to the 
 
            right upper extremity.
 
            
 
                 Claimant was referred by Dr. Crane to the Mercy 
 
            Hospital Pain Clinic.  There claimant was treated by James 
 
            Blessman, M.D., and Dana Simon, M.D.  Claimant received two 
 
            stellate ganglion blocks.
 
            
 
                 In his discharge summary, Dr. Blessman described 
 
            claimant's physical findings.  He wrote:
 
            
 
                 Physical Findings:
 
            
 
                 Subjective:
 
            
 
                 Reports "feels like pressure in the armpit". [sic]  
 
                 He reported pain from above the rt. elbow to the 
 
                 finger.  He felt tingling and numbness in rt. 
 
                 digits 4 & 5.  Shooting pain was felt down the rt. 
 
                 medial forearm to the wrist.  He states that his 
 
                 pain is decreased by rest and increased with 
 
                 lifting and repetitive rt. elbow flexion and 
 
                 extension.  He sleeps with his rt. arm abducted 
 
                 and externally rotated.
 
            
 
                 Objective:
 
            
 
                 Larry wears an elbow pad on the rt. elbow.  Light 
 
                 pressure on the rt. dorsoventral forearm elicits 
 
                 pain.  He points to the medical elbow as the point 
 
                 of greatest pain.
 
            
 
     
 
            
 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            Palpation:
 
            
 
                       Tenderness is noted at:
 
                        rt. occipital protuberance 
 
            increased
 
                          tingling at elbow.
 
                        rt. cervical transverse 
 
            processes.
 
                           rt. trapezius, upper fibers.
 
            
 
                 Extremities:  He has pain along the right forearm 
 
                 in the area of the ulnar nerve and it is almost 
 
                 hypersensitive with pain going from the elbow down 
 
                 into the wrist.
 
            
 
                 I looked for heavy metal exposure in this 
 
                 gentleman, also history of diabetes or thyroid 
 
                 disease.  I did not find any.  He did appear to 
 
                 drink a considerable amount of alcohol in the 
 
                 past.  He reportedly stopped drinking completely 
 
                 January 1st.  I did advise him that it appeared 
 
                 tome [sic] that he had neuropathy of the ulnar 
 
                 nerve and would recommend that he stay off of 
 
                 alcohol completely.
 
            
 
                 Dr. Blessman also recommended in the same report:
 
            
 
                 Other working limitations consisted with no 
 
                 repetitive grasping or flexion of the right elbow.  
 
                 It was felt that maximum improvement was reached 
 
                 on 2/10/89.
 
            
 
                 Dr. Crane opined claimant had reached a plateau with 
 
            respect to his condition as of February 24, 1989.  The 
 
            orthopedic surgeon restricted claimant from engaging in 
 
            repetitive work with the right upper extremity.  The 
 
            physician also restricted claimant from working overhead for 
 
            eight hours per day.
 
            
 
                 Defendant-employer terminated claimant on June 1, 1989, 
 
            because of claimant's permanent work restrictions.  Claimant 
 
            obtained subsequent employment at Decker Truck Lines as an 
 
            over-the-road truck driver.  He held that position for 
 
            approximately eight months until he voluntarily terminated 
 
            his position.  Later claimant was employed as a pipe line 
 
            laborer.
 
            
 
                                conclusions of law
 
            
 
                 The right of a worker to receive compensation for 
 
            injuries sustained which arose out of and in the course of 
 
            employment is statutory. The statute conferring this right 
 
            can also fix the amount of compensation to be paid for 
 
            different specific injuries, and the employee is not 
 
            entitled to compensation except as provided by the statute.  
 
            Soukup v. Shores Co., 222 Iowa 272, 268 N.W. 598 (1936).
 
            
 
                 An injury to a scheduled member may, because of after 
 
            effects (or compensatory change), result in permanent 
 
            impairment of the body as a whole.  Such impairment may in 
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
            turn form the basis for a rating of industrial disability.  
 
            Dailey v. Pooley Lumber Co., 233 Iowa 758, 10 N.W.2d 569 
 
            (1943).  Soukup, 222 Iowa 272, 268 N.W. 598 (1936).
 
            
 
                 An injury to a scheduled member which, because of 
 
            after-effects (or compensatory change), creates impairment 
 
            to the body as a whole entitles claimant to industrial 
 
            disability.  Barton v. Nevada Poultry Co., 253 Iowa 285, 110 
 
            N.W.2d 660 (1961).  Daily, 233 Iowa 758, 10 N.W.2d 569 
 
            (1943).
 
            
 
                 An injury is the producing cause; the disability, 
 
            however, is the result, and it is the result which is 
 
            compensated.  Barton, 253 Iowa 285, 110 N.W.2d 660 (1961); 
 
            Dailey, 233 Iowa 758, 10 N.W.2d 569 (1943).
 
            
 
                 The mere fact that the rating pertains to a scheduled 
 
            member does not mean the disability is restricted to a 
 
            schedule.  Pullen v. Brown & Lambrecht Earthmoving, 
 
            Incorporated, II Iowa Industrial Commissioner Reports 308 
 
            (Appeal Decision 1982).
 
            
 
                 If a claimant contends he has industrial disability he 
 
            has the burden of proving his injury results in an ailment 
 
            extending beyond the scheduled loss.  Kellogg v. Shute and 
 
            Lewis Coal Co., 256 Iowa 1257, 130 N.W.2d 667 (1964).
 
            
 
                 If claimant has an impairment to the body as a whole, 
 
            an industrial disability has been sustained.  Industrial 
 
            disability was defined in Diederich v. Tri-City Railway Co., 
 
            219 Iowa 587, 593, 258 N.W.2d 899, 902 (1935) as follows: 
 
            "It is therefore plain that the legislature intended the 
 
            term `disability' to mean `industrial disability' or loss of 
 
            earning capacity and not a mere `functional disability' to 
 
            be computed in the terms of percentages of the total 
 
            physical and mental ability of a normal man."
 
            
 
                 Claimant has not proven by a preponderance of the 
 
            evidence that he has an injury which results in an ailment 
 
            extending beyond the scheduled loss to the right upper 
 
            extremity.  Claimant's complaints to Drs. Washburn and Crane 
 
            primarily deal with complaints of the right arm, elbow, hand 
 
            and fingers.  Likewise, complaints made to Dr. Blessman 
 
            center around the right arm and elbow.  Claimant does not 
 
            seek treatment for the neck and right shoulder throughout 
 
            the course of his healing period.  Medical records are 
 
            devoid of testing for right shoulder or neck difficulties.  
 
            There is no objective evidence of right shoulder or neck 
 
            problems.  Claimant is treated for a subluxing ulnar nerve.  
 
            The affected area is the right arm, wrist and fingers.
 
            
 
                 It is only when claimant seeks an independent medical 
 
            exam from John R. Walker, M.D., that claimant expresses 
 
            multi problems with the right shoulder, neck and with numb 
 
            headaches.  The complaints are first voiced nearly 18 months 
 
            after claimant's original injury date.  The only causal 
 
            connection to the injury date is the report of Dr. Walker.  
 
            Even then, Dr. Walker only "very possibly" relates the 
 
            shoulder problem to claimant's work injury.  Dr. Walker does 
 
            not use a probable standard in establishing the requisite 
 

 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
            causal connection.  Therefore, in light of the above, it is 
 
            the determination of the undersigned that claimant has only 
 
            sustained an injury to the right upper extremity.  Claimant 
 
            has not proven he has sustained an injury beyond the loss to 
 
            the scheduled member.
 
            
 
                 Dr. Crane has rated claimant as having a 20 percent 
 
            impairment to the right upper extremity.  Dr. Walker has 
 
            rated claimant as having a 32 percent impairment to the body 
 
            as a whole.  It is impossible to determine how much of that 
 
            32 percent impairment is allocated to the right upper 
 
            extremity.  Claimant is restricted from all repetitive 
 
            activities with the right arm.  He is unable to return to 
 
            employment in the packing plant.  In light of the foregoing, 
 
            it is the determination of the undersigned that claimant has 
 
            a 30 percent impairment to the right upper extremity.  Under 
 
            section 85.34(2)(m), claimant is entitled to 75 weeks of 
 
            permanent partial disability benefits at the stipulated rate 
 
            of $264.86 per week.
 
            
 
                                      order
 
            
 
                 THEREFORE, IT IS ORDERED:
 
            
 
                 Defendants are to pay seventy-five (75) weeks of 
 
            permanent partial disability benefits commencing on February 
 
            27, 1989, at the stipulated rate of two hundred sixty-four 
 
            and 86/l00 dollars ($264.86) per week.
 
            
 
                 Interest shall be paid pursuant to section 85.30.
 
            
 
                 Defendants are responsible for costs pursuant to rule 
 
            343 IAC 4.33.
 
            
 
                 Defendants shall file a claim activity report as 
 
            requested by this division pursuant to rule 343 IAC 3.l.
 

 
            
 
            Page   6
 
            
 
            
 
            
 
            
 
            
 
            
 
            
 
            
 
                 Signed and filed this ____ day of May, 1991.
 
            
 
            
 
            
 
            
 
            
 
                                          ______________________________               
 
            MICHELLE A. McGOVERN
 
                                          DEPUTY INDUSTRIAL COMMISSIONER
 
            
 
            Copies To:
 
            
 
            Mr. Robert S. Kinsey, III
 
            Attorney at Law
 
            214 N Adams
 
            P O Box 679
 
            Mason City  IA  50401
 
            
 
            Mr. Marvin E. Duckworth
 
            Attorney at Law
 
            Terrace Center  STE 111
 
            2700 Grand Ave
 
            Des Moines  IA  50312
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                           5-1803
 
                           Filed May 24, 1991
 
                           MICHELLE A. McGOVERN
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            LARRY D. ANDERSON,            :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :         File No. 931110
 
            ARMOUR FOOD COMPANY,          :
 
                                          :      A R B I T R A T I O N
 
                 Employer,                :
 
                                          :         D E C I S I O N
 
            and                           :
 
                                          :
 
            HARTFORD INSURANCE COMPANY.,  :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
            
 
            
 
            5-1803
 
            Claimant sustained a 30 percent permanent partial disability 
 
            to his right upper extremity.
 
            
 
 
            
 
            Page   1
 
            
 
            
 
            
 
            
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            LARRY D. ANDERSON,            :     File No. 931110
 
                                          :
 
                 Claimant,                :       DECISION ON
 
                                          :
 
            vs.                           :      SECOND INJURY
 
                                          :
 
            SECOND INJURY FUND OF IOWA,   :      FUND BENEFITS
 
                                          :
 
                 Defendants               :
 
            ___________________________________________________________
 
            
 
                              statement of the case
 
            
 
                 This is a proceeding brought by claimant, Larry D. 
 
            Anderson, against the Second Injury Fund of Iowa, as the 
 
            sole defendant.
 
            
 
                 This matter came on for hearing on March 25, 1992, at 
 
            Mason City, Iowa.
 
            
 
                 The record in this case consists of the testimony of 
 
            the claimant, and claimant's exhibits 1 through 23.
 
            
 
                                      issues
 
            
 
                 The parties submit the following issues for resolution:
 
            
 
                 1.  Whether claimant received an injury on December 10, 
 
            1987, which arose out of and in the course of his 
 
            employment; and,
 
            
 
                 2.  Whether claimant is entitled to additional 
 
            permanent partial disability benefits from the Second Injury 
 
            Fund of Iowa.
 
            
 
                                 findings of fact
 
            
 
                 The undersigned deputy, having reviewed all the 
 
            evidence received, finds the following facts:
 
            
 
                 Claimant, Larry Anderson, was born on February 16, 
 
            1962.  At the time of the hearing, he was 30 years of age, 
 
            lived in Mason City, Iowa, and is a divorced father of one 
 
            son.
 
            
 
                 Claimant graduated from high school in June of 1980, 
 
            and has received no further education.
 
            
 
                 On a part-time basis during high school, and for 
 
            approximately three years after graduating from high school, 
 
            claimant held several jobs with department stores, 
 
            restaurants, and construction work.  Claimant earned between 
 
            $3 and $5 per hour.
 
            
 
                 His most notable employment after high school was 
 
            working as a route salesperson with Pepsi Cola.  During 
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            three and one-half years with the company, claimant stated 
 
            that he used repetitively his arms to pull off cases of pop 
 
            from the truck.
 
            
 
                 In December of 1983, claimant began to work for Armour 
 
            Food Company.  He worked in the bacon department as a slicer 
 
            for five and one-half years.  Claimant described his job as 
 
            pressing bacon together onto cardboard sheets and sending 
 
            the product down the assembly line.  While pressing the 
 
            bacon together, claimant stated that his arms endured 
 
            pressure in an inward and downward manner.
 
            
 
                 In July of 1986, claimant sustained an injury to his 
 
            leg while walking upstairs to work.  He slipped and 
 
            hyperextended his right knee and required medical attention 
 
            from a A. Wolbrink, M.D.  Claimant underwent arthroscopic 
 
            surgery and was off of work for six to eight weeks.  He was 
 
            able to return to work as a bacon slicer, and continued in 
 
            that capacity until December of 1987.  At that time, 
 
            claimant stated that he noticed pain in his right arm and 
 
            shoulder.  He reported to his supervisor, Carl Brandt, and 
 
            was taken to the nurse's office.  He was sent to Kenneth B. 
 
            Washburn, M.D., and referred to an orthopedic specialist, 
 
            Michael W. Crane, M.D.  Dr. Crane diagnosed claimant's 
 
            problem as a subluxing nerve of the right ulnar nerve.  
 
            Eventually, three surgeries were performed on claimant's 
 
            right upper extremity, concentrated in the elbow area.  The 
 
            final surgery was performed on December 2, 1988, and in 
 
            February of 1989, it was recommended that claimant attend a 
 
            pain clinic.  Dr. Crane was of the opinion that claimant had 
 
            sustained a 20 percent permanent functional impairment to 
 
            the right upper extremity, confined to the right arm.  He 
 
            recommended that claimant not partake in repetitious work, 
 
            especially in the meat packing industry (Claimant's Exhibit 
 
            18, pages 3-9).  Claimant received a second opinion from 
 
            John Walker, M.D.
 
            
 
                 Claimant was terminated from his job with Armour Foods 
 
            shortly after he was released to return to work.
 
            
 
                 During 1989, he worked for Decker Truck Lines as an 
 
            over-the-road semi truck driver.  Claimant left this 
 
            employment after seven months due to right arm pain.
 
            
 
                 Next, claimant worked for several pipeline companies 
 
            installing gas lines.  These positions provided claimant 
 
            with short term work, and he earned between $10.81 to $14.57 
 
            per hour.
 
            
 
                 In February of 1991, claimant began working for K-Brick 
 
            Distributors.  He works as a warehouseman and performs 
 
            general maintenance duties.  He earns $6.50 per hour and 
 
            works 45 hours per week.
 
            
 
                 An arbitration decision filed May 24, 1991, determined 
 
            that claimant had sustained a 30 percent impairment to the 
 
            right upper extremity.  He was awarded 75 weeks of permanent 
 
            partial disability benefits.
 
            
 
                 Claimant filed a second petition on January 2, 1991, 
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            which alleges that he was entitled to Second Injury Fund 
 
            benefits. Claimant states that he sustained a 2 percent 
 
            functional impairment of the right lower extremity, which 
 
            was assigned to him after Dr. Crane examined him in November 
 
            of 1990.  However, Dr. Crane's notes are somewhat 
 
            contradictory, as he states the following:
 
            
 
                    I examined Larry Anderson on the 27th of 
 
                 November, 1990.  Enclosed is my office note 
 
                 regarding that visit.  As you can see, his knee 
 
                 really examines quite well.  Other than some 
 
                 subjective complaints there is very little I could 
 
                 document.  I do note that in his arthroscopy Dr. 
 
                 Wolbrink excised a plica medialis.  This is a 
 
                 congenital problem that becomes symptomatic 
 
                 usually after some trauma.  There is not a 
 
                 particular permanent partial disability assigned 
 
                 to that through the AMA guidebook.
 
            
 
            (Cl. Ex. 17)
 
            
 
                         analysis and conclusions of law
 
            
 
                 The first issue to be addressed is whether claimant 
 
            sustained an injury on December 10, 1987, which arose out of 
 
            and in the course of his employment.
 
            
 
                 An employee is entitled to compensation for any and all 
 
            personal injuries which arise out of and in the course of 
 
            the employment.  Section 85.3(1).
 
            
 
                 Claimant has the burden of proving by a preponderance 
 
            of the evidence that he received an injury on December 10, 
 
            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. Central Telephone Co., 261 Iowa 
 
            352, 154 N.W.2d 128 (1967). 
 
            
 
                 The injury must both arise out of and be in the course 
 
            of the employment.  Crowe v. DeSoto Consol. Sch. Dist., 246 
 
            Iowa 402, 68 N.W.2d 63 (1955) and cases cited at pp. 405-406 
 
            of the Iowa Report.  See also Sister Mary Benedict v. St. 
 
            Mary's Corp., 255 Iowa 847, 124 N.W.2d 548 (l963) and Hansen 
 
            v. State of Iowa, 249 Iowa 1147, 91 N.W.2d 555 (1958).
 
            
 
                 The words "out of" refer to the cause or source of the 
 
            injury.  Crowe, 246 Iowa 402, 68 N.W.2d 63.
 
            
 
                 The words "in the course of" refer to the time and 
 
            place and circumstances of the injury.  McClure v. Union 
 
            et al. Counties, 188 N.W.2d 283 (Iowa 1971); Crowe, 246 Iowa 
 
            402, 68 N.W.2d 63.
 
            
 
                 An injury occurs in the course of the employment when 
 
            it is within the period of employment at a place the 
 
            employee may reasonably be, and while he is doing his work 
 
            or something incidental to it."  Cedar Rapids Comm. Sch. 
 
            Dist. v. Cady, 278 N.W.2d 298 (Iowa 1979), McClure, 188 
 
            N.W.2d 283; Musselman, 261 Iowa 352, 154 N.W.2d 128.
 
            
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
                 Claimant's position in the bacon department of Armour 
 
            Food Company required him to use his upper extremities on a 
 
            repeated basis.  On December 10, 1987, claimant was working 
 
            during his normal shift, and was performing his required job 
 
            duties in an appropriate manner.  He was able to describe 
 
            for the undersigned deputy his job duties, and she is 
 
            convinced that he sustained a cumulative injury which 
 
            required him to leave work in December of 1987.
 
            
 
                 As a result, it is found that claimant has sustained 
 
            his burden of proof and has shown by a preponderance of the 
 
            evidence that he was injured during his employment in 
 
            December of 1987.
 
            
 
                 The next issue to be addressed is whether claimant is 
 
            entitled to additional permanent partial disability benefits 
 
            from the Second Injury Fund of Iowa.
 
            
 
                 Before the Second Injury Fund is exposed to liability, 
 
            three requirements must be met.  First, the employee must 
 
            have lost or lost the use of a hand, foot, leg or eye.  
 
            Next, the employee must sustain another loss or loss of use 
 
            of another member or organ through a compensable injury.  
 
            Finally, permanent disability must exist as to both the 
 
            initial injury and the second injury.  See Allen v. Second 
 
            Injury Fund, 34 Biennial Rep., Iowa Indus. Comm'r 15 (1980); 
 
            Ross v. Servicemaster-Story Co., 34 Biennial Rep. Iowa 
 
            Industrial Comm'r 273 (1979).
 
            
 
                 The Fund is responsible for the difference between 
 
            total disability and disability for which the employer at 
 
            the time of the second injury is responsible.  Section 
 
            85.64.  Second Injury Fund v. Mich. Coal Co., 274 N.W.2d 300 
 
            (Iowa 1970), Second Injury Fund v. John Deere Component 
 
            Works, Iowa Supreme Court Case No. 88-399, filed February 
 
            22, 1989.
 
            
 
                 The prior impairment must be permanent in nature and 
 
            must have hindered the claimant's ability to obtain or 
 
            retain effective employment.  Anderson v. Second Injury 
 
            Fund, 262 N.W.2d 789 (Iowa 5979).
 
            
 
                 Although Dr. Crane initially indicates that claimant 
 
            sustained a 2 percent functional impairment of the right 
 
            lower extremity, his final notation dated December 18, 1990, 
 
            indicates that there are no objective findings with respect 
 
            to any physical impairment of claimant's right knee.  It has 
 
            been noted by the agency that pain which is not 
 
            substantiated by clinical findings is not a substitute for 
 
            the impairment.  See Waller v. Chamberlain, II Iowa 
 
            Industrial Commissioner Report 419, 425 (1981).  The record 
 
            does not indicate any substantial, significant clinical 
 
            findings which correlate with the objective pain expressed 
 
            by claimant.  Nothing in the evidence suggests that claimant 
 
            has any medical restrictions that would show permanent loss 
 
            of function.  As a result, claimant has failed to prove by a 
 
            preponderance of the evidence that he sustained a permanent 
 
            loss or loss of use of the right lower extremity.
 
            
 
                                      order
 

 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
            
 
                 THEREFORE, it is ordered:
 
            
 
                 That claimant take nothing from these proceedings.
 
            
 
                 That defendants shall pay the costs of this action, 
 
            pursuant to rule 343 IAC 4.33.
 
            
 
                 Signed and filed this ____ day of April, 1992.
 
            
 
            
 
            
 
            
 
                                          
 
            ________________________________
 
                                          PATRICIA J. LANTZ
 
                                          DEPUTY INDUSTRIAL COMMISSIONER
 
            
 
            Copies To:
 
            
 
            Mr Robert S Kinsey III
 
            Attorney at Law
 
            214 N Adams
 
            P O Box 679
 
            Mason City IA 50401
 
            
 
            Mr Charles S Lavorato
 
            Assistant Attorney General
 
            Tort Claims
 
            Hoover Building
 
            LOCAL
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                          5-3200
 
                                          Filed: April 29, 1992
 
                                          Patricia J. Lantz
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            LARRY D. ANDERSON,            :     File No. 931110
 
                                          :
 
                 Claimant,                :       DECISION ON
 
                                          :
 
            vs.                           :      SECOND INJURY
 
                                          :
 
            SECOND INJURY FUND OF IOWA,   :      FUND BENEFITS
 
                                          :
 
                 Defendants               :
 
            ___________________________________________________________
 
            
 
            5-3200
 
            Claimant was previously awarded 75 weeks to compensate him 
 
            for a permanent disability to his right upper extremity.
 
            Claimant filed a petition against the Second Injury Fund of 
 
            Iowa, and alleged a prior permanent loss to the right lower 
 
            extremity.
 
            Although the treating physician initially noted a 2% loss to 
 
            the right lower extremity, the final report indicated that 
 
            there were no objective findings to substantiate the 
 
            impairment.
 
            Claimant took nothing from the proceedings.
 
            
 
 
            
 
            Page   1
 
            
 
            
 
            
 
            
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            WARREN W. MILLER,             :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :        File No. 931111
 
            KOSSUTH FABRICATORS, INC.,    :
 
                                          :     A R B I T R A T I O N
 
                 Employer,                :
 
                                          :        D E C I S I O N
 
            and                           :
 
                                          :
 
            IOWA MUTUAL INSURANCE COMPANY,:
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
                              statement of the case
 
            
 
                 This case came on for hearing on January 16, 1991, in 
 
            Des Moines, Iowa.  This is a proceeding in arbitration 
 
            wherein claimant seeks compensation for healing period 
 
            benefits and permanent partial disability benefits and 86.13 
 
            penalty benefits as a result of an alleged injury occurring 
 
            on October 24, 1989.  The record in the proceedings consists 
 
            of the testimony of the claimant, claimant's wife, Pamela 
 
            Miller, Mark Dahl, Susan Parsons, Mike Gregg, and Brian 
 
            Schiltz; claimant's exhibits 1 through 20; and defendants' 
 
            exhibits A through J.
 
            
 
                                      issues
 
            
 
                 The issues for resolution are:
 
            
 
                 1.  Whether claimant's alleged injury of October 24, 
 
            1989 arose out of and in the course of claimant's 
 
            employment;
 
            
 
                 2.  Whether claimant's alleged impairment and 
 
            disability is causally connected to his October 24, 1989 
 
            injury;
 
            
 
                 3.  The nature and extent of claimant's disability and 
 
            entitlement to disability benefits;
 
            
 
                 4.  Whether claimant is entitled to 85.27 medical 
 
            benefits with the issue being authorization and causal 
 
            connection;
 
            
 
                 5.  Whether claimant is entitled to 86.13 penalty 
 
            benefits; and,
 
            
 
                 6.  Whether claimant is entitled to mileage 
 
            reimbursement and costs.
 
            
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
                                 findings of fact
 
            
 
                 The undersigned deputy having heard the testimony and 
 
            considered all the evidence, finds that:
 
            
 
                 Claimant personally testified at the hearing and also 
 
            by way of deposition in November 1990.
 
            
 
                 Claimant is a 36-year-old high school graduate.  He 
 
            started Mankato Technical College in September 1990 and 
 
            anticipates finishing this two-year course in 1992 resulting 
 
            in a sales and marketing degree.
 
            
 
                 Claimant embarked on his further education after some 
 
            doctors suggested he look into more formal education.  It is 
 
            obvious from the medical testimony and reports that it was 
 
            questionable whether claimant could return to the work he 
 
            was doing at the time of his alleged injury.  Claimant hopes 
 
            to be a manufacturing representative.  It is undisputed that 
 
            claimant has received no support or rehabilitation of any 
 
            kind from defendant employer, except in December 1990 when 
 
            defendants offered some help.  Prior to December 1990, all 
 
            rehabilitation efforts were solely by the claimant.
 
            
 
                 Claimant described his work history prior to beginning 
 
            work in October 1987 for defendant employer.  This prior 
 
            history is set out in claimant's Exhibit 20 and involves 
 
            many various jobs, none lasting for any extended number of 
 
            years.  Claimant indicated all those jobs involved either 
 
            bending, stretching, heavy lifting, a lot of walking, 
 
            repetitive work, intense physical labor, or a combination of 
 
            these.  Claimant concluded that he cannot do any of those 
 
            former jobs or similar work because of his current 
 
            restrictions and physical condition which he contends 
 
            resulted from his October 24, 1989 injury.  Claimant went 
 
            through the prior jobs and explained why he could not do 
 
            that work today.
 
            
 
                 Claimant was hired by defendant employer as a designer 
 
            in October 1987.  He had some design experience due to other 
 
            prior jobs.  After approximately one and one-half months, 
 
            claimant was taken off this job and placed in the machine 
 
            shop making food handling and stainless steel conveyor 
 
            machines.  This job involved many facets of work.  Claimant 
 
            indicated that this work was at times light, heavy and very 
 
            repetitive.
 
            
 
                 Prior to October 24, 1989, claimant raced his own stock 
 
            cars in the summer of 1987, 1988 and 1989.  He said his wife 
 
            and a friend were his pit crew.  Claimant related some 
 
            accidents he had while racing but emphasized he never hurt 
 
            his back or legs nor sought medical help as a result of any 
 
            of these accidents.  There is no medical evidence to dispute 
 
            claimant's testimony in this area.
 
            
 
                 Claimant said his general physical condition was good 
 
            prior to June 1989, and in June 1989 he experienced a sharp 
 
            pain in his right hip and upper leg at work.  Claimant did 
 
            not seek medical help for this and it only lasted two days.  
 
            He said he told the company about it as he was limping a 
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            little.  He made no claim and continued to work and did not 
 
            miss any work because of this incident.  Other than this 
 
            incident, claimant indicated he was in good health until his 
 
            October 24, 1989 injury.
 
            
 
                 In October 1989, claimant was moved to a larger, 
 
            heavier job.  Claimant testified that on October 24, 1989, 
 
            he was cutting off 50 pound blocks of steel and later that 
 
            afternoon felt a sharp pain in his lower back and into his 
 
            leg as he was picking up the blocks of steel and reaching to 
 
            place them into a machine.  Claimant contends he told his 
 
            supervisor but there is total disagreement by defendants on 
 
            this point.  This is immaterial in this decision as notice 
 
            is not an issue.  As to credibility, this will be addressed 
 
            later as there are several areas in which the parties 
 
            disagree and which are cited by the parties as credibility 
 
            issues.
 
            
 
                 Claimant related he left defendant employer's place of 
 
            business at approximately 5:20 p.m. on October 24, 1989, and 
 
            eventually went home, took a tub bath and went to bed due to 
 
            his pain.  Claimant indicated he could not walk to the 
 
            bathroom because he hurt so bad.  Claimant's wife and his 
 
            friend and wife helped dress and take claimant to the 
 
            Mankato Clinic the next morning.  Claimant was eventually 
 
            put into the hospital and surgery was performed on his back 
 
            on October 30, 1989.
 
            
 
                 Claimant said he was referred to the OFC Back Care 
 
            Center, a rehabilitation facility, and went there for 
 
            outpatient treatment on December 1, 1989 until the end of 
 
            January 1990.  He was going through various exercise 
 
            treatments at this facility.  Claimant indicated the reason 
 
            he quit going was because he ran out of money and could not 
 
            afford it.  Defendants were paying nothing.  Claimant 
 
            indicated he is still doing home exercises.   Any medical 
 
            bills that have been paid were paid through claimant's 
 
            health insurance policy with defendant employer.  No 
 
            workers' compensation benefits have been paid.
 
            
 
                 Claimant testified he did not try to find work until 
 
            Brian W. Nelson, M.D., gave claimant a 10 percent impairment 
 
            rating on May 23, 1990 (Claimant's Exhibit 7), and 
 
            established certain restrictions; namely, 20 pound lifting 
 
            limit, avoid repetitive stooping and bending, and must 
 
            frequently change positions where he doesn't sit or stand 
 
            for excessive periods of time.  Claimant indicated these are 
 
            his current restrictions, also.
 
            
 
                 Claimant's current complaints are:  pain down his right 
 
            leg, lower back, pain in his right foot, irritation from 
 
            standing or sitting, inability to lift over 20 pounds 
 
            without problems, and an inability to repetitively sit and 
 
            stand for one hour or more without changing positions.  He 
 
            emphasized his October 1989 injury has prevented him from 
 
            driving a stock car, doing sign painting or going to hockey 
 
            and football games.  Claimant acknowledged that it was 
 
            recommended to him that his back care treatment be reviewed 
 
            by the Sister Kenny Foundation.  He would like this to be 
 
            done but the lack of money to pay for it prevents him from 
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
            doing so.  Claimant states he is unable to return to work at 
 
            defendant employer with his present restrictions.  This was 
 
            reaffirmed by the testimony of Brian Schiltz, who worked 
 
            with claimant and is the son of the owner of defendant 
 
            employer.
 
            
 
                 Claimant decided in September 1990 to go back to 
 
            school.  He indicated he has borrowed money to put with 
 
            other grants to pay for his education.  He indicated he 
 
            intends to continue schooling but would consider returning 
 
            to defendant employer if offered a job and if the job 
 
            complimented his restrictions.  Claimant said he is getting 
 
            all A's in his school courses.  Claimant feels he has more 
 
            rehabilitation potential.  Claimant acknowledged he has not 
 
            contacted defendant employer for a job.
 
            
 
                 Claimant was asked about the notation by a doctor of a 
 
            fall on his coccyx in 1979 resulting in no fracture 
 
            (Defendants' Exhibit F, page 1).  Claimant emphasized he 
 
            never had a fall.
 
            
 
                 Claimant emphatically defended his actions in going to 
 
            school and taking a sales and marketing course and intends 
 
            to continue even though a belated December 1990 
 
            rehabilitation counselor's report disagreed with claimant's 
 
            actions.
 
            
 
                 Claimant's wife testified that claimant was in bed and 
 
            hurting bad when she came home around 8:30 p.m. on October 
 
            24, 1989.  Claimant told her he was hurt at work.  At 6:55 
 
            a.m. the next morning, claimant's wife called Brian Schiltz, 
 
            at defendant employer's, and told him her husband was hurt 
 
            at work and that she was taking her husband to the doctor 
 
            and the hospital.  This is verified by claimant's Exhibit 
 
            16.  She said Brian then indicated he didn't think claimant 
 
            was injured at work.  Claimant and her friends then put 
 
            claimant into the car to take him to the doctor as claimant 
 
            was unable to dress and help himself.
 
            
 
                 Mrs. Miller contends that Brian Schiltz told her on 
 
            October 25, 1989 that claimant could not come back to work 
 
            if he isn't 100 percent.  Brian Schiltz adamantly denied 
 
            this statement.  Taking all the testimony as a whole, and 
 
            the attitude of defendant employer from the beginning, the 
 
            undersigned believes Brian Schiltz, on behalf of defendant 
 
            employer, did make that statement.  Brian Schiltz later 
 
            testified that with claimant's current restrictions, whether 
 
            it be 20 pounds or 40 pounds maximum lifting, claimant would 
 
            not be able to return to work and perform any jobs at 
 
            defendant employer's.  Mrs. Miller basically corroborated 
 
            several areas of claimant's testimony and there is no 
 
            necessity of setting that out further in this decision.
 
            
 
                 Mark Dahl, claimant's friend, acknowledged that he was 
 
            claimant's pit crewman, along with claimant's wife, when 
 
            claimant raced the stock car.  He indicated claimant was not 
 
            injured in any racing accidents in 1989 and he was in the 
 
            pit for every race.  He knows of no physical problems 
 
            claimant had up to October 20, 1989, a Friday, when he was 
 
            with claimant at a stock car dinner.  He then saw claimant 
 

 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
            over the weekend after claimant had taken his truck to pick 
 
            up a motor.  He knew of no health problems claimant had at 
 
            that time.  He described claimant's current problems as he 
 
            observed him and related what claimant can and cannot do 
 
            since the October 1989 incident.
 
            
 
                 Claimant's sister, Susan Parsons, knew of no physical 
 
            problems claimant had prior to his October 24, 1989 injury.  
 
            She lived in a different town and only saw her brother 
 
            occasionally, approximately every one or two months.  Ms. 
 
            Parsons tried to explain or rationalize how claimant's 
 
            records (Defendants' Exhibit F) could erroneously reflect 
 
            claimant fell on his coccyx in 1979.  Ms. Parsons indicated 
 
            she fell on her coccyx and broke it in 1980 or 1981.  She 
 
            explained a prior records mix-up.  It is unnecessary to 
 
            relate anything more regarding this dispute as the 
 
            undersigned finds that regardless of this reference in 
 
            claimant's records and the dispute arising therefrom, there 
 
            is no evidence of any condition claimant presently has that 
 
            has resulted from anything that occurred in 1979, 1980 or 
 
            1981, and as will be later seen in this decision.
 
            
 
                 Michael Gregg, a former worker with defendant employer 
 
            who quit two weeks before the hearing, is currently a 
 
            self-employed car salesman.  He is also a friend of Brian 
 
            Schiltz.
 
            
 
                 Brian Schiltz, son of the owner of defendant employer, 
 
            testified as to various similar alleged actions concerning 
 
            claimant to which Mr. Gregg also testified.  These similar 
 
            items involved the alleged playing of tricks, the telling of 
 
            unbelievable jokes, claimant's toilet habits, whether 
 
            claimant left the place of employment on October 24, 1989, 
 
            at 4:20 to 4:30 or at approximately 5:20 p.m., whether he 
 
            reported or referred to any injury he received that day, or 
 
            whether claimant was hurt, and what car or truck claimant 
 
            was driving on the day of the alleged injury.  It was an 
 
            obvious attempt to hold claimant out as a liar or an 
 
            untruthful individual.  Both Gregg and Schiltz concluded 
 
            claimant was a liar and that he was not hurt.  Claimant also 
 
            called these two defendant witnesses untruthful.
 
            
 
                 The undersigned finds it unnecessary to set out in 
 
            detail in this decision the parties' many areas of factual 
 
            dispute.  As will be seen hereafter, there will not be a 
 
            resolution of who the undersigned believes is lying or is 
 
            not credible as to several of the areas of the witnesses' 
 
            testimony.
 
            
 
                 Schiltz indicated claimant is still considered an 
 
            employee at defendant employer and the employer is still 
 
            paying for claimant's medical insurance.
 
            
 
                 A deposition of Edwin Markey, M.D., (Defendants' 
 
            Exhibit 12) was taken by telephone on December 17, 1990.  He 
 
            first examined claimant on October 25, 1989 in the emergency 
 
            room.  He related claimant's history.  Although there was 
 
            some indication claimant had prior back pains, the doctor 
 
            indicated claimant said his problems resulted from heavy 
 
            lifting of some steel on October 24, 1989, which brought 
 

 
            
 
            Page   6
 
            
 
            
 
            
 
            
 
            claimant in to see him, and that this is what developed into 
 
            his leg pain.  The doctor said claimant was incapacitated so 
 
            he moved the claimant to the hospital for further 
 
            evaluation.
 
            
 
                 The doctor performed surgery on claimant on October 30, 
 
            1989.  Dr. Markey discussed claimant's bulging disc at S-1 
 
            pressing on a nerve.  He also noted some large boney spurs 
 
            and disc calcification.  He said the spurs and calcification 
 
            were not caused by the October 24, 1989 injury and that the 
 
            disc nerve compression was the number one problem.  He 
 
            performed a right L-5,S1 laminectomy, diskectomy and spur 
 
            impaction on October 30, 1989 (Cl. Ex. 1, p. 10).
 
            
 
                 The doctor testified claimant's herniation could have 
 
            been there since the summer of 1989.  The doctor made it 
 
            clear that the disc herniation can occur at any time with 
 
            little or major provocation.  Even a sneeze or a cough can 
 
            cause a herniation.  The doctor emphasized he relies on what 
 
            the patient tells him to help determine the cause.
 
            
 
                 The doctor acknowledged a February 1990 letter in which 
 
            he encouraged claimant to seek light work at that time as 
 
            long as claimant didn't have to "drive a car too far, 
 
            doesn't have to do repetitive bending or lifting, lifting 
 
            more than 40 pounds...." (Cl. Ex. 12, p. 24)  Dr. Markey 
 
            acknowledged that he opined in a letter of May 23, 1990, 
 
            that claimant had an 11 percent impairment and that 
 
            claimant's episode at work on October 24, 1989 caused a 
 
            condition for which he saw the claimant the following day 
 
            and did surgery soon thereafter (Cl. Ex. 12, pp. 28 and 32).  
 
            Dr. Markey was asked whether he felt claimant had any 
 
            significant improvement after his report of February 
 
            [January] 8, 1990, and he answered that claimant got worse 
 
            (Cl. Ex. 12, p. 31).  The doctor indicated disappointment in 
 
            the lack of rehabilitation claimant had which the doctor 
 
            thought was necessary.  He said claimant was never able to 
 
            accomplish the things he expected claimant would accomplish 
 
            after surgery.  This is why he recommended claimant should 
 
            complete a back care rehabilitation program (Cl. Ex. 12, p. 
 
            39).  Also, in a February 8, 1990 letter (Cl. Ex. 3) he 
 
            understood claimant was unable to complete the back 
 
            rehabilitation program because of lack of funds.  He agreed 
 
            with Dr. Nelson's restrictions on claimant; namely, 
 
            permanent 20 pound lifting restriction, avoiding repetitive 
 
            stooping and bending, changing positions frequently, and no 
 
            sitting or standing for excessive periods of time.
 
            
 
                 The doctor indicated claimant reached maximum recovery 
 
            around October 30, 1990, one year after claimant's surgery.  
 
            he did not change claimant's 11 percent impairment rating 
 
            that he opined in May 1990, after he saw claimant for the 
 
            last time on October 8, 1990.  Dr. Markey thinks claimant's 
 
            lifting limit could be 40 pounds rather than the 20 pound 
 
            limit placed by Dr. Nelson of the OFC Back Care Center.  The 
 
            doctor was extensively questioned on direct, 
 
            cross-examination, redirect, and recross-examination as to 
 
            claimant's healing period.  He consistently concluded that 
 
            claimant reached maximum recovery one year after surgery, 
 
            namely, October 30, 1990.
 

 
            
 
            Page   7
 
            
 
            
 
            
 
            
 
            
 
                 Brian W. Nelson, M.D., owner of the OFC Back Care 
 
            Center, also made a recommendation and report of December 5, 
 
            1989, that claimant should receive back care rehabilitation.  
 
            In April 1990, Dr. Nelson still writes his concern that 
 
            claimant should undergo rehabilitation and further wrote 
 
            that "From the facts that I know on this case it does appear 
 
            that it is work related." (Cl. Ex. 4, p. 9)
 
            
 
                 In his May 23, 1990 report, Dr. Markey expressed that 
 
            claimant needs to complete his rehabilitation course and it 
 
            is mandatory that he do so.  He acknowledged that claimant 
 
            is without funds.  He opined maximum medical improvement 
 
            will be obtained after completion of the back care center 
 
            rehabilitation program and that claimant presently has an 11 
 
            percent impairment.  He issued restrictions and set a final 
 
            evaluation for October 1990 (Cl. Ex. 6, pp. 2 and 3).
 
            
 
                 On the same date, Dr. Nelson opined claimant had a 10 
 
            percent impairment at that time and opined rehabilitation 
 
            could improve claimant.  He also gave claimant a permanent 
 
            20 pound weight restriction and claimant was to avoid 
 
            repetitive stooping and bending and be able to change 
 
            positions frequently as to sitting or standing for excessive 
 
            periods of time (Cl. Ex. 7).  On October 23, 1990, Dr. 
 
            Nelson wrote a letter setting out what appears to be the 
 
            last written restrictions set out for this claimant (Cl. Ex. 
 
            11).  The undersigned finds that these are, in fact, the 
 
            current restrictions that are applicable to claimant at this 
 
            time; namely, that claimant has a 20 pound lifting 
 
            restriction and should avoid repetitive stooping and 
 
            bending.
 
            
 
                 In an October 12, 1990 letter, Dr. Markey indicated 
 
            claimant was still having difficulties and suggested 
 
            claimant's case be reviewed by the Sister Kenny Institute 
 
            for any future treatment, if indicated (Cl. Ex. 10).
 
            
 
                 Defendants' Exhibit G is a report of a certified 
 
            insurance rehabilitation specialist who obviously came into 
 
            the picture in December 1990 after the trial of this case 
 
            had been set.  This report is of little or no value in this 
 
            matter.  This report appears to have been prepared solely 
 
            for an exhibit or testimony purposes and the undersigned 
 
            finds it is a "johnny come lately" exhibit. If defendants 
 
            were interested in helping claimant, especially after the 
 
            numerous medical comments of claimant needing 
 
            rehabilitation, then they should have participated earlier 
 
            in claimant's treatment and tried to get claimant back to 
 
            work with them or at other employment.
 
            
 
                 As referred to earlier, there has been considerable 
 
            dispute in the testimony as to certain actions of the 
 
            claimant and that claimant is not credible.  Although the 
 
            undersigned does not find claimant not credible, a person 
 
            can be not credible and still be injured.  Defendants' 
 
            position is that claimant must have been injured in a 1979 
 
            fall or in 1989 stock car race incidents or possibly moving 
 
            a motor that he purchased and had placed in claimant's truck 
 
            approximately three days before his injury.  Of course, all 
 

 
            
 
            Page   8
 
            
 
            
 
            
 
            
 
            of this is speculation as there is no medical evidence to 
 
            support defendants' contention.
 
            
 
                 Considering the sequence of events, the closeness in 
 
            the periods of time to various events, including the alleged 
 
            injury, the phone call by the wife to the employer, the 
 
            taking of claimant to the doctor, the surgery that was 
 
            performed, and the conclusions of the doctor based on the 
 
            history as they know it and as told to him by claimant, the 
 
            undersigned finds that claimant, in fact, injured his back 
 
            on October 24, 1989 at work, which resulted in claimant 
 
            having herniated disc surgery on October 30, 1989, which 
 
            ultimately resulted in claimant having an 11 percent 
 
            impairment to his body as a whole and ultimate restrictions.  
 
            The undersigned further finds that claimant's October 24, 
 
            1989 injury did arise out of and in the course of his 
 
            employment.
 
            
 
                 Claimant contends his healing period began on October 
 
            24, 1989 to and including October 24, 1990.  Defendants 
 
            contend claimant's healing period at the most ended May 23, 
 
            1990, which was the date of Dr. Markey's 11 percent 
 
            impairment rating.  It is obvious from the May 23, 1990 
 
            letter of Dr. Markey that he did not consider claimant 
 
            reaching maximum healing and that his impairment was based 
 
            on what he thought was claimant's impairment at that time.  
 
            It is obvious in Dr. Markey's and Dr. Nelson's reports that 
 
            they felt claimant could improve and suggested a back 
 
            rehabilitation program.  Claimant was in that program a few 
 
            weeks, but because of funds was unable to continue.  He was 
 
            improving while he was in the program.  Dr. Markey is 
 
            definitive in his testimony (Cl. Ex. 12, p. 55) whereby 
 
            after extensive examination, he concludes that claimant 
 
            reached maximum healing one year after his surgery which 
 
            would be October 30, 1989.  The undersigned therefore finds 
 
            that claimant's healing period began on October 24, 1989 to 
 
            and including October 30, 1990.
 
            
 
                 Claimant is 36 years old and has not worked since 
 
            October 24, 1989, the date of his injury.  Claimant's 
 
            healing period did not cease until October 30, 1990.  
 
            Claimant started school again in September 1990 in a two 
 
            year course.  Defendants brought in at a late date a 
 
            rehabilitation consultant who believes that this is not the 
 
            proper choice for claimant.  Unfortunately, defendants 
 
            should have thought about helping claimant earlier rather 
 
            than coming at this point and suggesting, after claimant has 
 
            obtained certain financing and grants, that he should drop 
 
            out of school and try to do something else.  It is true that 
 
            claimant has not made any real effort to try to find a job.  
 
            Claimant cannot be faulted for this under the circumstances 
 
            of this case.  If claimant sought a job and was honest with 
 
            the potential employer as to his medical, it would be hard 
 
            to believe that any employer would hire claimant under those 
 
            circumstances.  Defendants have no position for claimant in 
 
            their place of employment and it was affirmed by defendant 
 
            employer at the hearing that there would be no job for 
 
            claimant with his current permanent restrictions.  
 
            
 
                 Taking into consideration those criteria which are used 
 

 
            
 
            Page   9
 
            
 
            
 
            
 
            
 
            in determining the extent of industrial disability, namely, 
 
            but not limited to, claimant's age, education, healing 
 
            period, medical history prior to and after the injury, 
 
            claimant's skills, employment history, nature of claimant's 
 
            injury, the permanent restrictions and claimant's 
 
            motivation, the undersigned finds that claimant has incurred 
 
            a loss of earning capacity as a result of his work-related 
 
            October 24, 1989 injury.  The undersigned finds that 
 
            claimant has a 25 percent industrial disability.
 
            
 
                 Defendants raise an 85.27 medical benefits issue.  This 
 
            agency has consistently held that when defendants deny 
 
            liability, and liability is found, they are responsible for 
 
            claimant's medical expenses that were necessary and 
 
            reasonable.  The undersigned finds that claimant's medical 
 
            expenses set out on claimant's Exhibit 14 are reasonable and 
 
            necessary and were caused by claimant's work-related October 
 
            24, 1989 injury and that those bills should be paid.  
 
            Defendants are given credit as stipulated by the parties for 
 
            the $3,537.58 that was paid by the Employers Group Insurance 
 
            as set out on said exhibit.  The undersigned also finds that 
 
            defendants are responsible for the mileage expenses set out 
 
            on claimant's Exhibit 19 in the amount of $656.25.  As to 
 
            the costs in dispute, the undersigned finds that defendants 
 
            are responsible for reimbursing the claimant for the $65 
 
            filing fee, as represented by claimant's Exhibit 18, but 
 
            that defendants are not responsible for the other bills 
 
            shown thereon which are considered by the undersigned as a 
 
            cost of doing business for claimant as they refer to costs 
 
            of getting certain copies of medical bills and the cost of 
 
            the claimant's copy of Dr. Murphy's deposition.  Defendants 
 
            obviously had the cost of the original deposition and 
 
            defendants, of course, have the cost of obtaining their own 
 
            copies of certain exhibits.
 
            
 
                 The claimant contends there should be 86.13 penalty 
 
            benefits assessed against defendants.  Taking all the 
 
            circumstances into consideration, it would appear that early 
 
            in the period after claimant's injury delaying commencement 
 
            of benefits on the part of defendants may have by a narrow 
 
            margin passed as reasonable.  When the May 23, 1990 report 
 
            of Dr. Markey and the report on the same date of Dr. Nelson 
 
            came into existence, the undersigned believes that 
 
            defendants then became at risk for liability under this 
 
            section.  This belief is supported by defendants making a 
 
            last ditch effort to obtain their own rehabilitation 
 
            consultant in December 1990 and issue a report one month 
 
            before the trial.  There seems to be no logic in bringing a 
 
            rehabilitation expert in at that time other than as a "hired 
 
            gun."  There was nothing that really happened that would 
 
            cause said expert to come in at that point in time versus 
 
            coming into the picture at least by May or June 1990.  The 
 
            undersigned finds there was some delay in the commencement 
 
            of benefits to the claimant without reasonable or probable 
 
            cause or excuse.  The undersigned, therefore, finds that 
 
            defendants are responsible for an additional 5 weeks of 
 
            penalty benefits payable to claimant.
 

 
            
 
            Page  10
 
            
 
            
 
            
 
            
 
            
 
                 The parties dispute the rate which should be paid for 
 
            any benefits that are found to be owing in this matter.  
 
            Claimant contends the rate should be $213.77 per week and 
 
            defendants contend it should be $212.63 per week, a 
 
            difference of $1.14 per week.  Claimant's Exhibit 17 sets 
 
            out the figures.  The undersigned finds that the last 15 
 
            weeks set out on claimant's Exhibit 17 should be considered 
 
            and that from those weeks the $264 for the period of July 30 
 
            to August 5, 1989 should be excluded as an unusual or short 
 
            week and the $495 for the week of October 22 to October 28, 
 
            1989 should be excluded as having included an unusual lump 
 
            sum amount.  The remaining 13 weeks total divided by 13 
 
            amounts to a gross income of $332.15 per week.  Claimant's 
 
            rate of weekly benefits is found to $213.77 based on 
 
            claimant's entitlement of two exemptions.
 
            
 
                                conclusions of law
 
            
 
                 Claimant has the burden of proving by a preponderance 
 
            of the evidence that he received an injury on October 24, 
 
            1989, which arose out of and in the course of his 
 
            employment. McDowell v. Town of Clarksville, 241 N.W.2d 904 
 
            (Iowa 1976); Musselman v. Central Telephone Co., 261 Iowa 
 
            352, 154 N.W.2d 128 (1967). 
 
            
 
                 The claimant has the burden of proving by a 
 
            preponderance of the evidence that the injury of October 24, 
 
            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 (1967).
 
            
 
                 If claimant has an impairment to the body as a whole, 
 
            an industrial disability has been sustained.  Industrial 
 
            disability was defined in Diederich v. Tri-City Railway Co., 
 
            219 Iowa 587, 593, 258 N.W.2d 899, 902 (1935) as follows: 
 
            "It is therefore plain that the legislature intended the 
 
            term `disability' to mean `industrial disability' or loss of 
 
            earning capacity and not a mere `functional disability' to 
 
            be computed in the terms of percentages of the total 
 

 
            
 
            Page  11
 
            
 
            
 
            
 
            
 
            physical and mental ability of a normal man."
 
            
 
                 Iowa Code section 85.34(1) provides that if an employee 
 
            has suffered a personal injury causing permanent partial 
 
            disability, the employer shall pay compensation for a 
 
            healing period from the day of the injury until (1) the 
 
            employee returns to work; or (2) it is medically indicated 
 
            that significant improvement from the injury is not 
 
            anticipated; or (3) until the employee is medically capable 
 
            of returning to substantially similar employment.
 
            
 
                 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.
 
            
 
                 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 
 

 
            
 
            Page  12
 
            
 
            
 
            
 
            
 
            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).
 
            
 
                 Iowa Code section 86.13 provides, in part:
 
            
 
                    If a delay in commencement or termination of 
 
                 benefits occurs without reasonable or probable 
 
                 cause or excuse, the industrial commissioner shall 
 
                 award benefits in addition to those benefits 
 
                 payable under this chapter, or chapter 85, 85A, or 
 
                 85B, up to fifty percent of the amount of benefits 
 
                 that were unreasonably delayed or denied.
 
            
 
                 It is further concluded that:
 
            
 
                 Claimant's injury of October 24, 1989 arose out of and 
 
            in the course of his employment.
 
            
 
                 Claimant's work-related October 24, 1989 injury caused 
 
            claimant to incur a low back injury, an 11 percent permanent 
 
            impairment to his body as a whole and a right L-5,S1 
 
            laminectomy, diskectomy.
 
            
 
                 Claimant's October 24, 1989 work-related injury caused 
 
            claimant to incur permanent restrictions of 20 pounds and 
 
            the avoidance of repetitive stooping and bending.
 
            
 
                 Claimant's October 24, 1989 work-related injury caused 
 
            claimant to incur a healing period beginning on October 24, 
 
            1989 to and including October 30, 1990, which amounts to 
 
            53.143 weeks of healing period benefits at the rate of 
 
            $213.77 per week.
 
            
 
                 Defendants are to pay all claimant's medical expenses 
 
            as set out in claimant's Exhibit 14, with a credit as set 
 
            out therein.
 
            
 
                 Defendants are responsible for payment of 86.13 penalty 
 
            benefits to claimant involving 5 weeks ($1,068.85).
 
            
 
                                      order
 
            
 
                 THEREFORE, it is ordered:
 
            
 
                 That defendants shall pay unto claimant healing period 
 
            benefits at the rate of two hundred thirteen and 77/100 
 
            dollars ($213.77) for the period beginning October 24, 1989 
 
            to and including October 30, 1990, which involves 
 
            fifty-three point one four three (53.143) weeks.
 
            
 
                 That defendants shall pay unto claimant one hundred 
 
            twenty-five weeks of permanent partial disability benefits 
 
            at the rate of two hundred thirteen and 77/100 dollars 
 
            ($213.77) beginning October 31, 1990.
 
            
 
                 That defendants shall pay accrued weekly benefits in a 
 
            lump sum and shall receive credit against the award for 
 

 
            
 
            Page  13
 
            
 
            
 
            
 
            
 
            weekly benefits previously paid.  Defendants have paid no 
 
            previous weekly benefits but are to receive credit for three 
 
            thousand five hundred thirty-seven and 58/100 dollars 
 
            ($3,537.58) in medical expenses.
 
            
 
                 That defendants shall pay all of claimant's medical 
 
            expenses set out in claimant's Exhibit 14 and shall receive 
 
            credit shown thereon.
 
            
 
                 That defendants shall pay mileage in the amount of six 
 
            hundred thirty-six and 25/100 dollars ($636.25), as shown on 
 
            claimant's Exhibit 19.
 
            
 
                 That defendants are responsible for the sixty-five 
 
            dollar ($65.00) costs on claimant's Exhibit 18.  The 
 
            remaining costs of said exhibit are to be paid by claimant.
 
            
 
                 That defendants are to pay five (5) weeks or one 
 
            thousand sixty-eight and 85/100 ($1,068.85) for 86.13 
 
            penalty benefits to claimant.
 
            
 
                 That defendants shall pay interest on benefits awarded 
 
            herein as set forth in Iowa Code section 85.30.
 
            
 
                 That defendants shall pay the costs of these actions, 
 
            pursuant to rule 343 IAC 4.33.
 
            
 
                 That defendants shall file an activity report upon 
 
            payment of these awards as required by this agency, pursuant 
 
            to rule
 
            343 IAC 3.1
 
            
 
                 Signed and filed this ____ day of February, 1991.
 
            
 
            
 
                                          ______________________________
 
                                          BERNARD J. O'MALLEY
 
                                          DEPUTY INDUSTRIAL COMMISSIONER
 
            
 
            Copies to:
 
            
 
            Mr Robert S Kinsey III
 
            Attorney at Law
 
            214 N Adams
 
            P O Box 679
 
            Mason City IA 50401
 
            
 
            Mr Paul R Doster
 
            Attorney at Law
 
            215 W Call St
 
            Algona IA 50511
 
            
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                      5-1100; 5-1108; 5-1802
 
                      5-1803; 5-2500; 4000.2
 
                      Filed February 6, 1991
 
                      Bernard J. O'Malley
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            WARREN W. MILLER,             :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :        File No. 931111
 
            KOSSUTH FABRICATORS, INC.,    :
 
                                          :     A R B I T R A T I O N
 
                 Employer,                :
 
                                          :        D E C I S I O N
 
            and                           :
 
                                          :
 
            IOWA MUTUAL INSURANCE COMPANY,:
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
            5-1100
 
            Found claimant's injury arose out of and in the course of 
 
            his employment.
 
            
 
            5-1108; 5-1802; 5-1803
 
            Found claimant's work injury caused claimant to incur an 11% 
 
            permanent partial impairment to his body as a whole and a 
 
            need for right L5-S1 laminectomy diskectomy, all resulting 
 
            in a 25% industrial disability and 53.143 weeks of healing 
 
            period.
 
            
 
            5-2500; 4000.2
 
            Claimant awarded 5 weeks ($1.068.85) of 86.13 penalty 
 
            benefits, mileage and medical.
 
            
 
 
            
 
            Page   1
 
            
 
            
 
            
 
            
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            JEREMY PERGANDE,              :
 
                                          :
 
                 Claimant,                :         File No. 931117
 
                                          :
 
            vs.                           :      A R B I T R A T I O N
 
                                          :
 
            FDL FOODS, INC.,              :         D E C I S I O N
 
                                          :
 
                 Employer,                :
 
                 Self-Insured,            :
 
                 Defendant.               :
 
            ____________________________________________________________
 
            
 
                              statement of the case
 
            
 
                 This is a proceeding in arbitration brought by Jeremy 
 
            Pergande, claimant, against FDL Foods, Inc., self-insured 
 
            employer, to recover benefits under the Iowa Workers' 
 
            Compensation Act as a result of an injury sustained on 
 
            September 28, 1989.  This matter came on for hearing before 
 
            the undersigned deputy industrial commissioner on June 5, 
 
            1991 in Dubuque, Iowa.  The record was considered fully 
 
            submitted at the close of the hearing.  The record in this 
 
            case consists of joint exhibits 1 and 2, claimant's exhibits 
 
            A and B, and defendant's exhibit 1.
 
            
 
                                      issues
 
            
 
                 Pursuant to the prehearing report and order dated June 
 
            5, 1991, the parties have stipulated that:
 
            
 
                 1.  An employer-employee relationship existed between 
 
            claimant and employer at the time of the alleged injury;
 
            
 
                 2.  Claimant sustained an injury on September 28, 1989 
 
            which arose out of and in the course of employment with 
 
            employer;
 
            
 
                 3.  The alleged injury is a cause of temporary 
 
            disability;
 
            
 
                 4.  The extent of temporary disability is from 
 
            September 28, 1989 through December 20, 1989;
 
            
 
                 5.  The commencement date for permanent partial 
 
            disability, in the event such benefits are awarded, is 
 
            stipulated to be December 20, 1989;
 
            
 
                 6.  Claimant's marital status at the time of his injury 
 
            is single with one dependent; and,
 
            
 
                 7.  Defendant paid claimant 11.857 weeks of 
 
            compensation at the rate of $34.22 per week prior to the 
 
            hearing.
 
            
 
                 The issues remaining to be decided include:
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            
 
                 1.  Whether claimant's work injury is a cause of 
 
            permanent disability and, if so, the extent of entitlement 
 
            to weekly compensation;
 
            
 
                 2.  The rate of weekly compensation; and,
 
            
 
                 3.  Whether claimant is entitled to medical benefits 
 
            under Iowa Code section 85.27.
 
            
 
                                 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 testified that, on June 12, 1989, he started 
 
            employment at FDL Foods gutting hogs.  He stated that this 
 
            was a part-time job.  He worked the 3 p.m. to 7 p.m. shift.  
 
            In this capacity, he gutted between 500-800 hogs per night.  
 
            He testified that he was asymptomatic prior to joining the 
 
            company.  By early September 1989, he had pain, numbness and 
 
            tingling in his left hand.  He initially sought treatment 
 
            through the company medical department and was prescribed 
 
            conservative therapy by Dr. Faber, the company physician.  
 
            Being dissatisfied with this treatment, claimant saw Dr. 
 
            McDermott who referred him to David S. Field, M.D.  Dr. 
 
            Field referred him for carpal tunnel testing and, based on 
 
            the results, performed a median nerve/carpal tunnel repair.  
 
            Claimant was released to return to his regular work activity 
 
            in December 1989.  He returned to the hog kill operation 
 
            pulling guts, but found he could not do the job and asked 
 
            for easier work.  Since no other work was available, he quit 
 
            in December 1989.  He was unemployed until May 1990 when he 
 
            got a job with Keeler Paint Center where he paints and 
 
            sandblasts.
 
            
 
                 Tom Osterholz also testified at the hearing.  Mr. 
 
            Osterholz is director of safety, security and workers' 
 
            compensation benefits at FDL Foods.  He testified that there 
 
            are no normal shifts in the hog kill operation.  Although 
 
            the starting time for employees is the same depending upon 
 
            their shift, the length of the work day depends on the 
 
            number of hogs to be killed that day.  He stated that 
 
            claimant's medical treatment and surgery were not authorized 
 
            by the company.  He stated that claimant notified Dr. Faber 
 
            on October 6, 1989 that Dr. Field had prescribed surgery.  
 
            He was advised that the company would not pay his medical 
 
            bills because Dr. Field was not an authorized physician.
 
            
 
                 Darlene Kaufman, registered nurse in the company 
 
            medical department, also testified at the hearing.  She 
 
            stated that joint exhibit 1 is a copy of claimant's medical 
 
            record which is kept by the medical department.  She 
 
            testified that, according to those records, claimant first 
 
            presented to the department on August 30, 1989 with 
 
            complaints of left hand, index, middle and ring finger pain 
 
            and swelling.  On August 31, 1989, claimant saw Dr. Faber 
 
            who prescribed conservative therapy.  According to company 
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            medical records, claimant did not return for any of the 
 
            recommended treatment.  On October 2, 1989, claimant 
 
            presented to the medical department and informed them that 
 
            he had decided to treat with another physician.  Ms. Kaufman 
 
            stated that, if claimant had participated in conservative 
 
            therapy and if such therapy was unsuccessful, EMG testing 
 
            would have been ordered and referral to a specialist made.
 
            
 
                 The evidence of record indicates that the claimant 
 
            presented to the company medical department on August 30, 
 
            1989 with complaints of left hand, index, middle and ring 
 
            finger pain and swelling.  He had been working gutting hogs 
 
            for the past two months.  The next day, he saw the company 
 
            physician, Dr. Faber, and the doctor diagnosed tendonitis 
 
            and prescribed vitamins and Advil (exhibit 1, page 1).
 
            
 
                 On September 28, 1989, claimant saw Dr. Field for an 
 
            orthopaedic evaluation.  Dr. Field reported that claimant's 
 
            symptomatology was suggestive but not diagnostic of carpal 
 
            tunnel syndrome.  He recommended EMG and nerve conduction 
 
            studies (exhibit 1, page 15).  These were performed on 
 
            October 11, 1989 and interpreted by Patrick R. Sterrett, 
 
            M.D.  His interpretation indicated that this study was 
 
            abnormal as to the left median and sensory nerve with 
 
            significant reduction in the recruitment of the thenar 
 
            muscles of the left hand (exhibit 1, page 17).  On October 
 
            27, 1989, claimant underwent decompression of the left 
 
            carpal tunnel by Dr. Field at Mercy Health Center (exhibit 
 
            1, page 19).  Sutures were removed on November 6, 1989 
 
            (exhibit 1, page 15).
 
            
 
                 There is no indication from the medical records that 
 
            claimant required follow-up care.  Dr. Field did not assign 
 
            a permanent impairment rating nor restrict claimant's 
 
            activities subsequent to surgery (exhibit B).  In this 
 
            regard, claimant testified that he was released to return to 
 
            full duty in December 1989 with no restrictions.  He also 
 
            testified that he lifts weights and has no residuals from 
 
            his left hand surgery which interfere with his work activity 
 
            in any way.
 
            
 
                                conclusions of law
 
            
 
                 Claimant bears the burden of proof.  Claimant has 
 
            failed to show, by a preponderance of the evidence, that he 
 
            has suffered a left hand injury that has resulted in a 
 
            permanent physical impairment.  No physician who has treated 
 
            and/or examined claimant has indicated that he has a 
 
            permanent impairment due to left hand injury and subsequent 
 
            surgery.  Claimant's own testimony corroborates an absence 
 
            of permanency or restrictions related to left carpal tunnel 
 
            syndrome.  Accordingly, claimant is not st type of medical benefits 
 
                 clause, the employer is required to furnish 
 
                 medical and hospital services in the first 
 
                 instance. . . .
 
            
 
                 . . . .
 
            
 
                 [I]t is generally held that the employee should 
 
                 ordinarily not incur medical expense without first 
 
                 giving the employer a reasonable opportunity to 
 
                 furnish such services, and if he does so, the 
 
                 employee will be liable for that expense himself. 
 
                 . . .
 
            
 
                 . . . If the employer has sufficient knowledge of 
 
                 the injury to be aware that medical treatment is 
 
                 necessary, he has the affirmative and continuing 
 
                 duty to supply medical treatment that is prompt, 
 
                 in compliance with the statutory prescription on 
 
                 choice of doctors, and adequate; if the employer 
 
                 fails to do so, the claimant may make suitable 
 
                 independent arrangements at the employer's 
 
                 expense.
 
            
 
                 It is usually held that, when the employee has 
 
                 furnished the employer with the facts of his 
 
                 injury, it is up to the employer to instruct the 
 
                 employee on what to do to obtain medical 
 
                 attention, and to inform him regarding the medical 
 
                 and surgical aid to be furnished. . . .
 
            
 
                 The employer need not actually have refused 
 
                 medical services; it is enough that he has 
 
                 neglected to provide them. . . .
 
            
 

 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
                 [T]he furnishing of medical services by the 
 
                 employer must be prompt; if there is undue delay, 
 
                 the employer may become liable for services 
 
                 engaged by the employee in the meantime. . . .
 
            
 
                 Moreover, if the employee has once justifiably 
 
                 engaged a doctor on his own initiative, a belated 
 
                 attempt by the employer to offer a doctor chosen 
 
                 by the employer will not cut off the right of the 
 
                 employee to continue with the employee's 
 
                 doctor. . . .
 
            
 
                 Defendant contends that claimant's medical treatment 
 
            and subsequent surgery were unauthorized and, therefore, it 
 
            is not responsible for the $2,203.43 in medical bills which 
 
            were paid for, not by claimant, but by Medicaid under Title 
 
            XIX (exhibit A).
 
            
 
                 As previously noted, claimant initially presented to 
 
            the medical department at FDL Foods on August 30, 1989 with 
 
            complaints of left hand and finger pain.  On August 31, 
 
            1989, he was evaluated by the company physician and a 
 
            temporary diagnosis of tendonitis was made.  He was also 
 
            prescribed conservative therapy.  Claimant's testimony that 
 
            he participated in shock and whirlpool treatments for one 
 
            week in September 1989 was refuted by Darlene Kaufman, the 
 
            company nurse.  Ms. Kaufman stated that, if claimant had in 
 
            fact taken these treatments, they would have been recorded 
 
            in claimant's medical file.  There are no entries in 
 
            claimant's medical record between August 31, 1989 and 
 
            October 2, 1989.  Thus, the documentary evidence does not 
 
            support claimant's testimony.  The record does indicate that 
 
            claimant, on his own, sought a second opinion regarding his 
 
            left hand pain.  When he reported the results of the second 
 
            opinion to the medical department on October 2, 1989, he was 
 
            advised that, since he did not return to the medical 
 
            department for treatment and chose to go to his own 
 
            physician, he was responsible for payment of his own bills 
 
            (exhibit 1, page 2).
 
            
 
                 The evidence is clear that claimant incurred medical 
 
            expenses without first giving the employer a reasonable 
 
            opportunity to furnish such services and he failed to follow 
 
            prescribed treatment.
 
            
 
                 When claimant filed his original notice and petition, 
 
            he alleged an injury date of August 30, 1989.  In the Answer 
 
            to claimant's petition, employer denied liability for an 
 
            injury on August 30, 1989.  At the prehearing conference 
 
            held on January 2, 1991, defendant admitted compensability 
 
            of an injury on September 28, 1989.  This was reaffirmed in 
 
            the prehearing report and order dated June 5, 1991.  Under 
 
            Iowa Code section 85.27, defendant is entitled to choose the 
 
            medical care as long as it is offered promptly and is 
 
            reasonably suited to treat the injury without undue 
 
            inconvenience.  Claimant did not give defendant an 
 
            opportunity to choose such care.  Claimant knowingly sought 
 
            unauthorized medical benefits after unreasonably refusing 
 
            the care offered by defendant.  Therefore, defendant's 
 
            defense of lack of authorization is valid and claimant is 
 

 
            
 
            Page   6
 
            
 
            
 
            
 
            
 
            not entitled to the medical benefits he now seeks for the 
 
            unauthorized care and treatment obtained after August 31, 
 
            1989.
 
            
 
                 The final issue to be determined in this case is the 
 
            rate of compensation.
 
            
 
                 Defendant has paid claimant 11.857 weeks of temporary 
 
            total disability benefits at the rate of $34.22 per week.  
 
            Defendant arrived at this figure by adding claimant's gross 
 
            pay from June 23, 1989 through September 29, 1989 and 
 
            dividing by 50 ($1,856.53 divided by 50 equals $37.13 per 
 
            week average wage).  Using the July 1, 1989 Guide to Iowa 
 
            Workers' Compensation Claim Handling rate book, they arrived 
 
            at a weekly compensation rate of $34.22.  Defendant used, 
 
            for the basis of their computation, Iowa Code section 
 
            85.36(10).  This section states as follows:
 
            
 
                 If an employee earns either no wages or less than 
 
                 the usual weekly earnings of the regular full-time 
 
                 adult laborer in the line of industry in which the 
 
                 employee is injured in that locality, the weekly 
 
                 earnings shall be one-fiftieth of the total 
 
                 earnings which the employee has earned from all 
 
                 employment during the twelve calendar months 
 
                 immediately preceding the injury.
 
            
 
                 After carefully considering the total evidence in this 
 
            case, the undersigned is persuaded that Iowa Code section 
 
            85.36(6) is applicable to this case.  That section provides 
 
            as follows:
 
            
 
                 In the case of an employee who is paid on a daily, 
 
                 or hourly basis, or by the output of the employee, 
 
                 the weekly earnings shall be computed by dividing 
 
                 by thirteen the earnings, not including overtime 
 
                 or premium pay, of said employee earned in the 
 
                 employ of the employer in the last completed 
 
                 period of thirteen consecutive calendar weeks 
 
                 immediately preceding the injury.
 
            
 
                 In this regard, Mr. Osterholz testified that all 
 
            employees on claimant's part-time shift start at the same 
 
            time every day, but the length of their work day depends 
 
            upon the number of hogs to be killed that day.  It is 
 
            evident that claimant is paid depending upon the output of 
 
            his work.  His pay history for the weeks June 23, 1989 
 
            through September 22, 1989 indicates that his average weekly 
 
            wage was $130.43.  Using the July 1, 1989 Guide to Iowa 
 
            Workers' Compensation Claim Handling rate book, claimant's 
 
            rate of weekly compensation is $92.17.  Since defendant paid 
 
            claimant 11.857 weeks of compensation at the rate of $34.22 
 
            per week, claimant has been underpaid temporary total 
 
            disability benefits and is entitled to the difference 
 
            between what he was paid and what he should have been paid.
 
            
 
                           
 
            
 
            
 
            Page   7
 
            
 
            
 
            
 
            
 
            order
 
            
 
                 THEREFORE, IT IS ORDERED:
 
            
 
                 Claimant is entitled to eleven point eight five seven 
 
            (11.857) weeks of temporary total disability benefits at the 
 
            rate of ninety-two and 17/100 dollars ($92.17) per week.
 
            
 
                 Defendant shall be given credit for all payments 
 
            voluntarily made to claimant prior to the filing of this 
 
            decision.
 
            
 
                 Accrued weekly benefits shall be paid in a lump sum 
 
            together with statutory interest thereon pursuant to Iowa 
 
            Code section 85.30.
 
            
 
                 The costs of this action shall be assessed to defendant 
 
            pursuant to rule 343 IAC 4.33.  Because the filing fee was 
 
            deferred in this matter, defendant shall forward sixty-five 
 
            and 00/100 dollars ($65.00) to this office within ten (10) 
 
            days of the filing of this decision.
 
            
 
                 Defendant shall file a final report when this award is 
 
            paid pursuant to rule 343 IAC 3.1.
 
            
 
                 Signed and filed this ______ day of ____________, 1991.
 
            
 
                 
 
            
 
                 
 
                 
 
                                          ______________________________
 
                                          JEAN M. INGRASSIA
 
                                          DEPUTY INDUSTRIAL COMMISSIONER
 
            
 
            Copies To:
 
            
 
            Mr. James H. Reynolds
 
            Attorney at Law
 
            1045 Main Street
 
            Dubuque, Iowa  52001
 
            
 
            Mr. James M. Heckmann
 
            Attorney at Law
 
            One CyCare Plaza
 
            Suite 216
 
            Dubuque, Iowa  52001
 
            
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                               5-1801; 5-2505; 5-3003
 
                                               Filed June 19, 1991
 
                                               JEAN M. INGRASSIA
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            JEREMY PERGANDE,              :
 
                                          :
 
                 Claimant,                :         File No. 931117
 
                                          :
 
            vs.                           :      A R B I T R A T I O N
 
                                          :
 
            FDL FOODS, INC.,              :         D E C I S I O N
 
                                          :
 
                 Employer,                :
 
                 Self-Insured,            :
 
                 Defendant.               :
 
            ____________________________________________________________
 
            
 
            5-1801
 
            
 
                 Claimant awarded temporary total disability benefits.  
 
            Permanency not established.  No restrictions or impairment 
 
            rating after decompression of left carpal tunnel.
 
            
 
            5-2505
 
            
 
                 Defendant refused to pay any medical expenses for 
 
            treatment asserting lack of authorization under 85.27.  
 
            Claimant refused to cooperate with recommended conservative 
 
            care and obtained a second medical opinion, diagnostic 
 
            testing and surgery without authorization from defendant.  
 
            Employer admitted compensability of claimant's injury and 
 
            offered medical care which claimant refused.  Defendant not 
 
            responsible for medical bills under 85.27.
 
            
 
            5-3003
 
            
 
                 The parties disputed the rate of compensation.  
 
            Defendant had paid 11.857 weeks of compensation at the rate 
 
            of $34.22 per week.  Computation pursuant to 85.36(10).  Due 
 
            to the nature of claimant's work as a part-time hog gutter, 
 
            section 85.36(6) rather than 85.36(10) found applicable to 
 
            this case.  Claimant's rate of compensation found to be 
 
            $92.17 per week rather than $34.22.
 
            
 
 
            
 
            Page   1
 
            
 
            
 
            
 
            
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            LEE SCHWAB,                   :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :      File No. 931118
 
            PIONEER HI-BRED INTERNATIONAL,:
 
            INC.,                         :
 
                                          :     A R B I T R A T I O N
 
                 Employer,                :
 
                                          :       D E C I S I O N
 
            and                           :
 
                                          :
 
            HARTFORD INSURANCE COMPANY,   :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
                              STATEMENT OF THE CASE
 
            
 
                 This case came on for hearing on April 29, 1991, at 
 
            Waterloo, Iowa.  This is a proceeding in arbitration wherein 
 
            claimant seeks compensation for permanent partial disability 
 
            benefits as a result of an alleged injury or occupational 
 
            disease occurring on June 2, 1989.  The record in the 
 
            proceeding consists of the testimony of claimant, Danny 
 
            Stearns, Marvin Meyer, Bill Thompson and Joseph Ronald 
 
            Donohue; joint exhibits A, B and C; and claimant's exhibits 
 
            1, 2, 5 through 12.  Claimant offered into evidence 
 
            claimant's exhibits 13 through 16 to which defendants 
 
            objected.  A ruling was reserved until this decision.  Said 
 
            exhibits are admitted into evidence and defendants' 
 
            objections are overruled.
 
            
 
                                      issues
 
            
 
                 The issues for resolution are:
 
            
 
                 1.  Whether claimant's injury arose out of and in the 
 
            course of his employment;
 
            
 
                 2.  Whether claimant's alleged disability or 
 
            occupational disease is causally connected to an alleged 
 
            June 2, 1989 injury;
 
            
 
                 3.  The nature and extent of claimant's disability and 
 
            entitlement to benefits;
 
            
 
                 4.  Whether claimant has an 85A occupational disease; 
 
            and,
 
            
 
                 5.  Whether claimant is entitled to 85.27 medical 
 
            benefits as to items 1 through 4 set out in item 8 of the 
 
            prehearing report and set out as exhibits 9, 10, 11 and 12.
 
            
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
                                 findings of fact
 
            
 
                 The undersigned deputy, having heard the testimony and 
 
            considered all the evidence, finds that:
 
            
 
                 Claimant is a 34-year-old high school graduate with no 
 
            other formal post-high school education.  Claimant described 
 
            his work history prior to beginning work for defendant 
 
            employer in 1976.  This prior history mainly involved 
 
            working in a laundry and painting a few houses.
 
            
 
                 Beginning 1976, claimant first worked at defendant 
 
            employer's Reinbeck, Iowa soybean plant.  Claimant said he 
 
            began developing breathing problems in 1984 about every 
 
            other week.  Claimant would buy an over-the-counter inhaler 
 
            spray which would help him by spraying in his mouth.  
 
            Claimant said there were no masks at first, but in 1982 to 
 
            1983 there were hard plastic masks available but no 
 
            direction to use them.  Claimant indicated he met Danny 
 
            Stearns around this time and became friends.  They boxed 
 
            twice a week and went to boxing classes.  Claimant said his 
 
            breathing condition gradually became worse.  In January 
 
            1986, claimant was then transferred to defendant employer's 
 
            Renwick plant.
 
            
 
                 Claimant said he has smoked since the eleventh grade 
 
            and smoked one pack a day or less when he first worked for 
 
            defendant employer.  He contends he does not smoke now.  He 
 
            acknowledged that Steven Zorn, M.D., and Sherry Bulten, 
 
            M.D., told him to stop smoking.  He said no one at defendant 
 
            employer's place of business told him not to smoke at the 
 
            plant and there were no notices except in the warehouse.  
 
            There was a break room for smoking.
 
            
 
                 Claimant described or agreed with other witnesses' 
 
            description of the plant operation and his duties.  
 
            Claimant's job basically involved cleaning the bins with an 
 
            air hose and repairing and maintenance at the plant.  This 
 
            type of work created a lot of dust.  He described the heavy 
 
            breathing attacks he would get from the dust in the air.  
 
            This resulted in claimant wheezing, increased heartbeat, 
 
            coughing up phlegm and black dirt, and needing to use his 
 
            inhaler spray three to four times a week to open up his 
 
            lungs.
 
            
 
                 Claimant was asked many times about using a mask.  It 
 
            appears claimant's testimony as a whole is that he claimed 
 
            he always used a mask but repeatedly emphasized there was 
 
            not notice to use a mask but there was a hearing device 
 
            notice posted near the cleaner room.
 
            
 
                 Claimant said the number of times a day or week in 
 
            which the grain bins need to be clean varied.  Claimant 
 
            indicated someone came to the plant to test the dust.  He 
 
            related that a discussion occurred after an examination by 
 
            Dr. Zorn regarding claimant going to a different job 
 
            involving no dust.  Claimant indicated there was no 
 
            different job available or offered.  He said he would have 
 
            taken a dust-free job, if offered.  Claimant related that 
 
            the use of a space-type helmet was discussed by defendant 
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            employer's personnel department and an insurance company 
 
            representative while claimant was still working at the 
 
            plant.
 
            
 
                 Claimant related that he picked a date of June 2, 1989 
 
            to quit defendant employer so as to coincide with the 
 
            slowest grain production period and to give sufficient 
 
            notice to defendant employer to fill his position.  Claimant 
 
            said he wasn't smoking much at this time.  He said he quit 
 
            entirely two months ago.
 
            
 
                 Since leaving defendant employer, claimant has done 
 
            exterior painting, landscaping, mowing, moving and hauling.  
 
            Claimant then indicated he worked a short time at Luck 
 
            Heating and Air Conditioning in February-March 1990, but 
 
            could not do the work due to its effect on his breathing.  
 
            He said every time he came in contact with the furnace dust, 
 
            he reacted.
 
            
 
                 Claimant said he made a list of 40 places he went to in 
 
            his job hunt.  Claimant said he has not returned to boxing 
 
            or too much exertion because it is hard to breathe when he 
 
            is doing it.
 
            
 
                 Claimant acknowledged that Dr. Zorn, in 1990, told him 
 
            to stop smoking.  He contends he was only smoking one 
 
            cigarette in two weeks at that time.  He indicated at the 
 
            time of his June 2, 1989 alleged injury that he was smoking 
 
            five cigarettes a day.  Claimant's attention was then called 
 
            to his July 9, 1990 deposition in which claimant said he was 
 
            smoking two packs or less a day.  Claimant indicated that 
 
            Dr. Zorn only gave him a breathing test as his examination.
 
            
 
                 Claimant testified he had a job lined up to be a 
 
            partner in a roofing operation when he quit in June 1989.  
 
            Although claimant said the partnership business was not set 
 
            up at the time, it is obvious to the undersigned that it was 
 
            at a stage that claimant felt assured it was going to be a 
 
            reality after he quit defendant employer.  Claimant said the 
 
            arrangement did not work out and the people involved did not 
 
            pursue their plan.
 
            
 
                 Claimant's first job after leaving defendant employer 
 
            was for three months thereafter and involved painting 
 
            houses, mowing, landscaping, laying rock and railroad ties, 
 
            and digging up yards.  Claimants said he had no problems 
 
            doing this.  Claimant indicated that later when doing 
 
            certain jobs such as sweeping out his garage or going to the 
 
            dump, he had problems if there was dust.
 
            
 
                 Danny Stearns testified as to when he and claimant both 
 
            worked full time at defendant employer's in the early 
 
            1980's.  He said claimant was always working in the mill 
 
            room.  He described claimant's job in the mill room, which 
 
            was keeping the beans running and getting the dirt out of 
 
            the bins.  They became friends while working there.  
 
            Stearns' last day of work was in 1985 at the Waterloo plant.  
 
            He said there was no notice at the plant to wear masks or 
 
            special clothing.  He said the company policy on smoking 
 
            changed because of the cigarette butts lying around, but he 
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
            said no one from defendant employer said the employees 
 
            should not smoke.  He knew of no breathing problem claimant 
 
            had while Mr. Stearns worked there.
 
            
 
                 Stearns said defendant employer had 3M masks to wear 
 
            when the employee cleaned out the bins and he observed 
 
            claimant wearing a mask.  He indicated the dust would 
 
            penetrate two masks and that he would spit up the dye that 
 
            was used on the beans.  He knew claimant left the  plant to 
 
            go to the Renwick, Iowa plant but kept in contact with him.
 
            
 
                 Stearns now works for Lucks Heating and Cooling which 
 
            is his and his uncle's business.  He offered claimant a job 
 
            installing furnaces.  He indicated claimant would be in the 
 
            basement and the dirt would cause him to have heavy 
 
            wheezing.  Claimant had to spray medicine in his mouth.  He 
 
            indicated claimant would be told to go outside because of 
 
            his problem.  Stearns related that claimant could not be 
 
            useful in his company and he was afraid of claimant's 
 
            condition.  Claimant worked there four weeks in March 1990.  
 
            Stearns said he would employ claimant if claimant was able 
 
            to do the work.  The pay is $5.50 per hour up to $12.00 per 
 
            hour.  Stearns said he and claimant were real active boxers 
 
            sparring one-half to three-quarters of an hour without 
 
            trouble.  He related claimant went six to eight rounds.  He 
 
            testified claimant cannot do this anymore.
 
            
 
                 Marvin Meyer, a farmer, testified he started working 
 
            for defendant employer part time in June 1985 as a welder at 
 
            the Renwick plant.  He said he met claimant in the fall of 
 
            1986 when claimant was transferred there.  Meyer changed 
 
            from welding to helping cleaning and processing beans with 
 
            claimant as his foreman.  He described the plant operation 
 
            air system (Claimant's Exhibit 8).  Meyer said there was 
 
            dust in the air and when the beans were cleaned, it was very 
 
            dusty.  He said he had to change his clothes before getting 
 
            into the truck due to the dirt and dust at the plant.  He 
 
            said there was no notice as to wearing masks that the 
 
            company provided but there was a sign as to a need for a 
 
            hearing device to be used.  Meyer said he would use a mask 
 
            only in cleaning out the bins.  He said claimant was very 
 
            faithful in wearing the masks.  Meyer recalled one occasion 
 
            when he sent the claimant home as claimant was gasping, 
 
            choking and had a hard time breathing.  Meyer said masks 
 
            were available but he was not told to use a mask.  Meyer 
 
            indicated that someone came to defendant employer's plant to 
 
            monitor the dust one day.  Meyer said claimant used a mask 
 
            more than he did.  He acknowledged that the soybean 
 
            conditioning began at the plant around the first week of 
 
            December until around April 15 each year and claimant would 
 
            do welding and maintenance for defendant employer the rest 
 
            of the time in the off season.  Claimant helped him put in 
 
            the production equipment in the new building and tower.
 
            
 
                 Meyer said he has not seen claimant since he left 
 
            defendant employer in 1989.  He related claimant told him he 
 
            was leaving as claimant could not breathe and because of the 
 
            dust.  Meyer said he observed claimant having trouble 
 
            breathing and chocking.
 
            
 

 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
                 Bill Thompson, plant supervisor for defendant employer 
 
            since July 1, 1982, testified he was acquainted with 
 
            claimant who reported to him at times.  He said he talked 
 
            with claimant four or five times on a daily basis.  He 
 
            described claimant's main duties, including the cleaning.  
 
            He said the cleaning varied.  Sometimes it occurred only one 
 
            time a week.  He related claimant was a very good worker and 
 
            his skills were in metal work.  He testified claimant never 
 
            came to him to complain about the dust levels at the plant 
 
            and he saw claimant every day.  He has had no contact with 
 
            claimant since he left the plant.  He indicated he never 
 
            observed that claimant stopped work because of shortness of 
 
            breath, including when he assisted the claimant in jobs that 
 
            produce dust.  He said he heard from the plant manager, Mr. 
 
            Donohue, that claimant left the plant due to breathing 
 
            problems.  He noticed near the end of claimant's employment 
 
            that claimant did not seem as dedicated to the job as when 
 
            he began.  Thompson was asked by defendant employer to find 
 
            claimant a less dusty job prior to claimant announcing in 
 
            late 1988 that he was leaving.  Thompson stated that no job 
 
            offer or effort to find claimant a job has occurred since 
 
            June 2, 1989.
 
            
 
                 Joseph Ronald Donohue, the plant manager since July 
 
            1986, knows claimant and described claimant's duties.  He 
 
            said claimant was defendant employer's best welder and 
 
            repairman.  He said defendant employer's plant has a central 
 
            duct system.  He described the dust suction process.  He 
 
            indicated masks are made available by the company to all 
 
            employees but there is no policy that they must wear them.  
 
            He was aware that claimant had breathing problems.  He met 
 
            claimant on November 4, 1988, as to leaving defendant 
 
            employer in the spring because claimant said he had a hard 
 
            time breathing.  Mr. Donohue said that defendant employer 
 
            tried to find claimant another position or another place for 
 
            claimant to work before claimant had come to him on November 
 
            4, 1988.  He said when claimant came to him, claimant was 
 
            not asking for another position.  He indicated he was 
 
            surprised that claimant was leaving his employment.  He said 
 
            claimant also had cluster migraine headaches that became so 
 
            bad he had to leave work for two days.  Donohue said the 
 
            company was looking at ways to prevent dust from getting to 
 
            claimant.  Until claimant gave notice of leaving, defendant 
 
            employer was still looking into getting a helmet for 
 
            claimant to try.  Donohue said they offered this helmet to 
 
            claimant who indicated he had already talked to the man and 
 
            claimant thought it would be too cumbersome and was not 
 
            willing to wear it.  Thompson said that although the company 
 
            was still working to get the helmet for the claimant when 
 
            the company was notified by claimant that he was leaving 
 
            June 2, 1989, the company then disregarded getting the 
 
            helmet since claimant was leaving and the season and the 
 
            need for it would be over.  Donohue said the unit concept 
 
            and type was offered to claimant within three weeks prior to 
 
            the November 4, 1988 date.  Donohue acknowledged that prior 
 
            to November 4, 1988, claimant was having respiratory 
 
            problems and Donohue had talked to the insurance company on 
 
            August 8, 1988 as to claimant's problem, on which date he 
 
            and the plant secretary issued a first report of injury.  
 

 
            
 
            Page   6
 
            
 
            
 
            
 
            
 
            Donohue first acknowledged that prior to claimant's leaving 
 
            work on June 2, 1989, claimant never received the dust 
 
            inhalation preventive device nor had claimant seen it but 
 
            defendant employer was only trying to explain it to claimant 
 
            as to what it would be like.
 
            
 
                 Donohue admitted he knew the air sampling tests in 
 
            February 1988 were going to be done (Cl. Ex. 7).
 
            
 
                 Claimant's medical records on September 30, 1987 with 
 
            Charles Wirtz, M.D., indicated claimant had a past medical 
 
            history remarkable for asthma and a history of headaches.  
 
            Claimant's physical examination on this date contains 
 
            nothing as to a dust problem or complaint.  It appeared 
 
            claimant's basic complaint at the time of his exam was 
 
            headache and he related a family history of migraine 
 
            headaches (Cl. Ex. 1).
 
            
 
                 Dr. Zorn's report of October 14, 1988, indicated that 
 
            claimant's exposure to soybean dust does aggravate his 
 
            symptoms.  It indicates that there are other factors in 
 
            claimant's environment that are unrelated to his employment 
 
            that are aggravating his asthma.  These include both his 
 
            wife's cigarette smoking, family pets (dog hair), and other 
 
            allergens such as house dust, weed mix, early tree mix and 
 
            possibly feathers.  The doctor indicated that claimant's 
 
            history is that of reversible airway obstruction.  However, 
 
            the doctor believes that if claimant could completely 
 
            discontinue his smoking, remove the dog from the home and 
 
            work in an area free from heavy exposure to soybean dust, 
 
            these symptoms would disappear.  He also indicated that 
 
            since asthmatics have exacerbations of bronchospasm on 
 
            exposure to cold weather, this may be a consideration in the 
 
            retraining process (Cl. Ex. 1; Jt. Ex. A)
 
            
 
                 Dr. Zorn's August 23, 1990 report indicates:
 
            
 
                    I believe that he could further decrease his 
 
                 episodes of bronchospasm by adding 
 
                 bronchodilator....It is also likely that if he is 
 
                 able to discontinue his cigarette smoking for a 
 
                 period of three to four months, we would see 
 
                 further improvement in pulmonary function testing.
 
            
 
                    ....
 
            
 
                    Mr. Lee Schwab's present symptoms of mild 
 
                 asthma at this time cannot be contributed to 
 
                 exposure to soybean dust for the following 
 
                 reasons:
 
            
 
                      A)  He has not been around soybeans 
 
                      since leaving Pioneering Hi-Bred in June 
 
                      of 1989.
 
            
 
                      B)  Soybean dust would not result in the 
 
                      persistence of his symptoms once out of 
 
                      the environment.
 
            
 
                      C)  Mr Schwab still has agents in his 
 

 
            
 
            Page   7
 
            
 
            
 
            
 
            
 
                      environment that can exacerbate his 
 
                      asthmatic tendencies including cigarette 
 
                      smoke, house dust and weed mix.
 
            
 
            (Jt. Ex. A)
 
            
 
                 Claimant contends his incapacitation from performing 
 
            the employer's work or earning equal wages in other suitable 
 
            employment is because of an occupational disease.  It was of 
 
            interest to the undersigned that claimant asked several 
 
            witnesses whether smoking was or was not allowed and whether 
 
            there were signs of "no smoking" posted.  Claimant has been 
 
            a smoker averaging one and one-half packs a day for several 
 
            years.  In his medical history and testimony, claimant 
 
            indicated he allegedly decreased his smoking to two 
 
            cigarettes per week in October 1987 and at the time of his 
 
            alleged June 2, 1989 injury, he was smoking five cigarettes 
 
            a day.  His attention was called to his July 9, 1990 
 
            deposition in which he said he was smoking two packs or less 
 
            a day.  Claimant has obviously tried to impress upon the 
 
            undersigned that smoking is not a factor in claimant's 
 
            condition.
 
            
 
                 It is immaterial whether signs are posted or not.  
 
            Claimant is a mature adult and obviously the doctor tried to 
 
            impress upon him not to smoke because of claimant's medical 
 
            situation.  There is no indication that the smoking by 
 
            others at the plant was a cause of any of claimant's 
 
            problems and that there was a break room for those who 
 
            smoked.  Unless the claimant smoked, he would not have to go 
 
            into the break room and be subjected to the smoke.  Dr. 
 
            Zorn's October 14, 1988 report also indicates claimant's 
 
            wife is a one pack per day smoker and claimant told the 
 
            doctor that his wife smoked outside the home because 
 
            cigarette smoke bothered him.  It is common knowledge what 
 
            the effects of smoking to the smoker and the effects to the 
 
            inhaler, including a nonsmoker, can be.  It is immaterial 
 
            whether defendant posted "no smoking" signs.
 
            
 
                 In his description of disputes (page 4), claimant 
 
            attacks Dr. Zorn's report in that claimant refers to page 3 
 
            being an obvious redraft as it appears it has been typed on 
 
            a different typewriter.  The undersigned presumes the 
 
            doctor's signature in his report refers to its entire 
 
            content.  Claimant seems to indirectly refer that the former 
 
            "draft" was different and not as detrimental to claimant's 
 
            case.  This contention has no basis or credibility in this 
 
            case.
 
            
 
                 Dr. Zorn, a pulmonary heart specialist, wrote on 
 
            October 14, 1988 (Jt. Ex. A), that claimant's history is 
 
            that of a reversal airway obstruction.  He also indicated 
 
            that if claimant would discontinue certain things, that his 
 
            symptoms would disappear.  The doctor was very clear in his 
 
            August 23, 1990 report (Jt. Ex. B) that there is no medical 
 
            evidence which causally connects claimant's complaints, 
 
            medical condition, alleged disability or occupational 
 
            disease to his June 2, 1989 injury.  Claimant has not 
 
            excluded from his immediate environment certain agents such 
 
            as smoke and the family pet.  There is no evidence that 
 

 
            
 
            Page   8
 
            
 
            
 
            
 
            
 
            claimant's wife has stopped smoking and the evidence is not 
 
            convincing that claimant has entirely given up cigarette 
 
            smoking.  There is no evidence that the dog is out of 
 
            claimant's close environment.
 
            
 
                 Obviously, claimant should be staying away from all 
 
            agents that may cause or acerbate claimant's allergies or 
 
            asthma condition.  Some agents are literally impossible to 
 
            eradicate.  Claimant has left his employment with defendant 
 
            employer in order to remove himself from an obvious agent.  
 
            The evidence shows that this has been beneficial to claimant 
 
            and he is improving.  Dr. Zorn said claimant's condition is 
 
            reversible and will gradually disappear.  Defendant employer 
 
            does not owe claimant a job in an environment that will 
 
            activate claimant's allergies or asthma.  Claimant can't 
 
            insist upon working in an environment that can be harmful to 
 
            him.  It appears from the evidence that claimant did not 
 
            make a genuine effort to work with defendant employer when 
 
            they were trying to accommodate claimant and get him a 
 
            filter unit.  It appears others were not bothered by the 
 
            environment as claimant was.  It appears claimant did not 
 
            like wearing the mask made available.  Claimant must use 
 
            some self-help.  Claimant removed himself from the 
 
            environment after giving several months notice.  It was 
 
            reasonable for defendant employer to give up trying to 
 
            obtain a special helmet for claimant after claimant gave 
 
            notice that he was going to quit.
 
            
 
                 Claimant was desirous to go into business with someone 
 
            else and this appears from the record to be a main 
 
            motivating factor for the timing of claimant's leaving 
 
            defendant employer.  The business arrangement fell through.  
 
            This has resulted in claimant having a difficult time 
 
            finding work that doesn't affect his allergies or asthmatic 
 
            condition.
 
            
 
                 Claimant has failed to show by a preponderance of the 
 
            evidence that working for defendant employer proximately 
 
            caused permanent disability or a compensable occupational 
 
            disease.  Claimant has failed to carry his burden of proof.
 
            
 
                 The undersigned finds that the greater weight of 
 
            evidence does not show claimant actually became 
 
            incapacitated while performing his duties at defendant 
 
            employer or from equal wages in other suitable employment 
 
            because of an occupational disease.  It is further found 
 
            that claimant does not have an occupational disease as 
 
            defined by 85A.4 of the Iowa Code.  There are other factors 
 
            in claimant's environment unrelated to his employment that 
 
            are aggravating claimant's asthma or allergies.  Claimant 
 
            has a tendency for asthma and claimant's present symptoms of 
 
            mild asthma cannot be contributed at the present time to 
 
            exposure to soybean dust but can be contributed to other 
 
            agents in claimant's environment, including but not limited 
 
            to cigarette smoking, house dust and weed mix.
 
            
 
                 The parties' prehearing report has Item No. 2 marked as 
 
            disputed and also stipulated as to whether claimant received 
 
            an injury that arose out of and in the course of claimant's 
 
            employment.  Joint Exhibit 6, Request No. 1 and response 
 

 
            
 
            Page   9
 
            
 
            
 
            
 
            
 
            thereto, indicated an admission that a work injury was 
 
            sustained, but denied claimant's present disability.  In 
 
            looking at the parties' disputes and contentions attached to 
 
            the prehearing report, it appears that any admission of a 
 
            work injury involved a temporary injury and that such 
 
            temporary injury was not sufficient and lasting enough to 
 
            result in any temporary total disability or healing period.  
 
            The undersigned will proceed on the basis that the parties' 
 
            dispute any compensable injury that arose out of and in the 
 
            course of claimant's employment which would result in any 
 
            payable healing period or temporary total disability or 
 
            permanent partial disability benefits.  The undersigned 
 
            finds that claimant did not incur a compensable injury, 
 
            including an occupational disease, that arose out of and in 
 
            the course of claimant's employment.
 
            
 
                 As to the issue of 85.27 medical benefits, items 1 
 
            through 4 set out in the prehearing report and referred to 
 
            as Claimant's Exhibits 9, 10, 11 and 12, the undersigned 
 
            finds that these four items are not causally connected to 
 
            claimant's June 2, 1989 alleged injury for reasons 
 
            previously set out.  The undersigned finds there is no 
 
            industrial disability or occupational disease as a result of 
 
            a June 2, 1989 injury.
 
            
 
                                CONCLUSIONS OF LAW
 
            
 
                 Claimant has the burden of proving by a preponderance 
 
            of the evidence that he received an injury on June 2, 1989 
 
            which arose out of and in the course of his employment. 
 
            McDowell v. Town of Clarksville, 241 N.W.2d 904 (Iowa 
 
            1976); Musselman v. Central Telephone Co., 261 Iowa 352, 154 
 
            N.W.2d 128 (1967). 
 
            
 
                 The claimant has the burden of proving by a 
 
            preponderance of the evidence that the injury of June 2, 
 
            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). 
 
            
 
                 Chapter 85A.4 of the Iowa Code provides:
 
            
 
                    Disablement as that term is used in this 
 
                 chapter is the event or condition where an 
 
                 employee becomes actually incapacitated from 
 
                 performing the employee's work or from earning 
 
                 equal wages in other suitable employment because 
 
                 of an occupational disease as defined in this 
 
                 chapter in the last occupation in which such 
 
                 employee is injuriously exposed to the hazards of 
 
                 such disease.
 
            
 
                 Chapter 85A.8 of the Iowa Code provides, in part:
 
            
 

 
            
 
            Page  10
 
            
 
            
 
            
 
            
 
                    Occupational diseases shall be only those 
 
                 diseases which arise out of and in the course of 
 
                 the employee's employment.  Such diseases shall 
 
                 have a direct causal connection with the 
 
                 employment and must have followed as a natural 
 
                 incident thereto from injurious exposure 
 
                 occasioned by the nture of the employment.  Such 
 
                 disease must be incidental to the character of the 
 
                 business, occupation or process in which the 
 
                 employee was employed and not independent of the 
 
                 employment.  Such disease need not have been 
 
                 foreseen or expected but after its contraction it 
 
                 must appear to have had its origin in a risk 
 
                 connected with the employment and to have resulted 
 
                 from that source as an incident and rational 
 
                 consequence.  A disease which follows from a 
 
                 hazard to which an employee has or would have been 
 
                 equally exposed outside of said occupation is not 
 
                 compensable as an occupational disease.
 
            
 
                 It is further concluded that:
 
            
 
                 Claimant failed to carry his burden of proof to show 
 
            that claimant's exposure to soybean dust was the proximate 
 
            cause of claimant's alleged June 2, 1989 injury or alleged 
 
            occupational disease, current allergies or mild asthmatic 
 
            condition.
 
            
 
                 Claimant quit defendant employer's on June 2, 1989, as 
 
            claimant was going into a roofing partnership with another 
 
            person or persons, which arrangement fell through.  This 
 
            anticipated business venture was a material reason for 
 
            claimant leaving defendant employer before attempting to 
 
            cooperate with the employer and finding and using a proper 
 
            filtering apparatus for claimant's benefit.
 
            
 
                 Claimant did not try to work with defendant employer in 
 
            trying to obtain a filter unit to filter any dust that would 
 
            or was affecting the claimant.  Claimant had decided to 
 
            leave his employment with defendant employer before the 
 
            satisfactory filter apparatus could be obtained.  Defendant 
 
            employer was making a good faith effort to accommodate 
 
            claimant in his particular allergies or asthmatic condition 
 
            or tendencies.
 
            
 
                 Claimant did not make a good faith effort to eliminate 
 
            certain allergens in his environment in which he had direct 
 
            or indirect control, namely, smoke, dog hair or animal(s) on 
 
            his premises, which nonwork environmental agents along with 
 
            other environmental agents were contributing factors to 
 
            claimant's medical condition, allergies and asthmatic 
 
            condition or tendencies.
 
            
 
                 Claimant has an allergenic asthmatic condition that is 
 
            effected by many environmental agents, such as dog hair, 
 
            dust, weed mix, soybean dust and smoke.  This condition is 
 
            effected by the exposure of claimant to these agents.  
 
            Claimant's condition and the extent is reversible upon 
 
            claimant removing himself from as many of these agents as 
 
            possible.
 

 
            
 
            Page  11
 
            
 
            
 
            
 
            
 
            
 
                 Claimant's current alleged symptoms of mild asthma 
 
            cannot be contributed to exposure to soybean dust.
 
            
 
                 Claimant failed in his burden of proof to show he has a 
 
            permanent disability or occupational disease under 85A as a 
 
            result of exposure to soybean dust while working for 
 
            defendant employer versus exposure to many other nonwork 
 
            environmental agents and allergens.
 
            
 
                                      order
 
            
 
                 THEREFORE, it is ordered:
 
            
 
                 That claimant takes nothing from these proceedings.
 
            
 
                 That the costs shall be divided equally by the parties 
 
            pursuant to 343 IAC 4.33.
 
            
 
                 Signed and filed this ____ day of May, 1991.
 
            
 
            
 
                                          ______________________________
 
                                          BERNARD J. O'MALLEY
 
                                          DEPUTY INDUSTRIAL COMMISSIONER
 
            
 
            Copies to:
 
            
 
            Mr W H Gilliam
 
            Attorney at Law
 
            722 Water St
 
            Waterloo IA 50703
 
            
 
            Mr George H Capps
 
            Attorney at Law
 
            P O Box 971
 
            Des Moines IA 50304
 
            
 
            
 
                 
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                      1402.20; 1402.30; 1402.40
 
                      2203; 1100; 1108; 1108.40
 
                      Filed May 22, 1991
 
                      Bernard J. O'Malley
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            LEE SCHWAB,                   :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :      File No. 931118
 
            PIONEER HI-BRED INTERNATIONAL,:
 
            INC.,                         :
 
                                          :     A R B I T R A T I O N
 
                 Employer,                :
 
                                          :       D E C I S I O N
 
            and                           :
 
                                          :
 
            HARTFORD INSURANCE COMPANY,   :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
            1100; 1402.30; 1402.40; 1402.20
 
            Found claimant failed to prove he incurred an occupational 
 
            disease (85A) or an industrial disability which arose out of 
 
            and in the course of his employment.
 
            
 
            1108.40; 1108; 2203
 
            Claimant failed to prove causation between alleged injury or 
 
            occupational disease and his mild asthmatic or allergy 
 
            conditions.  A pulmonary heart specialist opined claimant's 
 
            problems subsided when removed from the allergen, soybean 
 
            dust and would further subside if he quit smoking, was not 
 
            subjected to wife's smoking, removed animal(s) from his 
 
            house, and avoided, if possible, environment nonwork-related 
 
            allergens.  Claimant's condition was found to be reversible.