BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
_________________________________________________________________
 
            
 
LARRY CLATT,     
 
            
 
     Claimant,   
 
            
 
vs.         
 
                                  File Nos. 931119/1020222
 
SAUER-SUNDSTRAND,     
 
                                       A P P E A L
 
     Employer,   
 
                                     D E C I S I O N
 
and         
 
            
 
LIBERTY MUTUAL,       
 
            
 
     Insurance Carrier,    
 
     Defendants.      
 
_________________________________________________________________
 
 
 
The record, including the transcript of the hearing before the deputy 
 
and all exhibits admitted into the record, has been reviewed de novo on 
 
appeal.  The decision of the deputy filed June 27, 1994 is affirmed and 
 
is adopted as the final agency action in this case.
 
 
 
Claimant shall pay the costs of the appeal, including the preparation 
 
of the hearing transcript.
 
 
 
Signed and filed this ____ day of December, 1994.      
 
 
 
                                ________________________________                 
 
                                 BYRON K. ORTON           
 
                                 INDUSTRIAL COMMISSIONER
 
 
 
 
 
Copies To:
 
 
 
Mr. Steven C. Jayne
 
Attorney At Law
 
5835 Grand Ave., Ste 201
 
Des Moines, Iowa 50312
 
 
 
Mr. Harry W. Dahl
 
Attorney at Law
 
974 73rd St., Suite 16
 
Des Moines, Iowa  50312
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
                              2203; 2204; 1402.30; 1402.40
 
                              Filed December 22, 1994
 
                              Byron K. Orton
 
 
 
           BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
_________________________________________________________________
 
            
 
LARRY CLATT,     
 
            
 
     Claimant,   
 
            
 
vs.         
 
                                File Nos. 931119/1020222
 
SAUER-SUNDSTRAND,     
 
                                     A P P E A L
 
     Employer,   
 
                                 D E C I S I O N
 
and         
 
            
 
LIBERTY MUTUAL,       
 
            
 
     Insurance Carrier,    
 
     Defendants.      
 
_________________________________________________________________
 
 
 
2203; 2204; 1402.30; 1402.40
 
 
 
Claimant, who had been previously held to have developed occupational 
 
asthma, renewed his claim after his employment had been terminated.  
 
There was no showing of disablement and the claim for occupational 
 
disease benefits was denied.
 
 
 
Claimant had developed a major depressive disorder but the evidence 
 
failed to show that the employment played a substantial part in 
 
producing that depressive disorder.
 
 
 
 
            
 
            Page   1
 
            
 
            
 
            
 
            
 
            
 
            
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            LARRY CLATT,                  :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :         File No. 931119
 
            SUNDSTRAND-SAUER,             :
 
                                          :      A R B I T R A T I O N
 
                 Employer,                :
 
                                          :         D E C I S I O N
 
            and                           :
 
                                          :
 
            LIBERTY MUTUAL,               :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ____________________________________________________________
 
            
 
                              statement of the case
 
            
 
                 This is a proceeding in arbitration brought by Larry 
 
            Clatt against his employer, Sundstrand-Sauer, and its 
 
            insurance carrier, Liberty Mutual Insurance Company.  Clatt 
 
            alleges that he sustained an occupational disease, namely 
 
            asthma, as a result of exposure to environmental irritants 
 
            at his place of employment.  Clatt seeks compensation for 
 
            permanent partial disability and payment of medical expenses 
 
            associated with his alleged condition.
 
            
 
                 The primary issues to be determined are whether Larry 
 
            Clatt sustained an occupational disease as a result of his 
 
            employment with Sundstrand-Sauer and determination of his 
 
            entitlement to receive weekly compensation for permanent 
 
            partial disability and payment of expenses of treatment 
 
            under Code section 85.27.
 
            
 
                 The case was heard and fully submitted at Des Moines, 
 
            Iowa on January 31, 1991.  The evidence consists of 
 
            testimony from Larry Clatt, Steven R. Wanzek, M.D., Lynn A. 
 
            Schulte, Scott Lee and Doris Johnson.  The record also 
 
            contains claimant's exhibits 1 through 4 and defendants' 
 
            exhibits A-1 through A-13.
 
            
 
                     
 
            
 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            
 
            
 
            findings of fact
 
            
 
                 Having considered all the evidence received, together 
 
            with the appearance and demeanor of the witnesses, the 
 
            following findings of fact are made.
 
            
 
                 It is found that Larry Clatt has not become actually 
 
            incapacitated from performing his normal work with the 
 
            employer or from earning equal wages in other employment as 
 
            the result of any respiratory condition which afflicts him.
 
            
 
                 Larry Clatt has incurred expenses in treating his 
 
            respiratory condition.  Such expenses, as found in exhibit 
 
            1-h through 1-q and 2-b and 2-c total $1,628.65.  It was 
 
            stipulated in the prehearing report that, in the event of an 
 
            award, the employer was entitled to credit for payments 
 
            under the non-occupational group plan in the amount of 
 
            $1,196.89.  The stipulated amount is slightly different than 
 
            the itemized statement which claimant attached to the 
 
            prehearing report, but in view of the status of the amount 
 
            as being stipulated, it is found that the employer's 
 
            non-occupational group medical insurance carrier has paid 
 
            $1,196.89 towards the total bills incurred.  Claimant has 
 
            paid the balance with his own funds, namely $431.76.
 
            
 
                 Larry Clatt has worked for Sundstrand-Sauer as a 
 
            machinist for approximately 18 years.  Part of his work 
 
            involved using a pedestal grinder on which he ground various 
 
            metal materials, some of which were a cemented carbide 
 
            product with a cobalt binder.  The safety data sheet for 
 
            those materials cautions against inhaling the dust and 
 
            states that a small percentage of individuals exposed to the 
 
            dust can develop respiratory disease, including asthma 
 
            (claimant's exhibit 3).
 
            
 
                 The place where claimant worked has been tested by 
 
            Aires Environmental Services, Ltd., and found to exceed 
 
            recognized safety standards for cobalt exposure (claimant's 
 
            exhibit 4; defendants' exhibits A-8 and A-12).  An 
 
            industrial hygiene study was also performed by National 
 
            Environmental Testing, Inc., which showed substantially 
 
            lesser quantities of cobalt (defendants' exhibit A-13).  The 
 
            exposure levels found by the National Environmental Testing, 
 
            Inc., appear to not exceed recognized industrial hygiene 
 
            standards.  The testing methods used by Aires do not appear 
 
            to be typical since most typical sampling performed by 
 
            industrial hygienists is conducted by collecting samples 
 
            continuously throughout an entire work day.  Exhibit A-13 
 
            likewise shows short sample times on two of its four 
 
            sampling methods.  Based upon the evidence in the record of 
 
            this case, it cannot be determined whether or not the cobalt
 
            
 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            
 
            
 
            exposure at claimant's work place exceeded any recognized 
 
            health or safety standards.  The testing does, however, 
 
            clearly establish the existence of cobalt dust and other 
 
            dusts in the claimant's work place.
 
            
 
                 The medical evidence in this case comes from three 
 
            physicians, namely Tamarisa Narayan, M.D., Paul From, M.D., 
 
            and Steven Wanzek, M.D.  Dr. Wanzek is board certified in 
 
            internal medicine and pulmonology.  Dr. From is board 
 
            certified in internal medicine, but not in pulmonology.  The 
 
            record does not contain the status of board certification 
 
            for Dr. Narayan, but in view of the signature found at 
 
            exhibit B-3, it is likely that Dr. Narayan is a specialist 
 
            in pulmonary medicine and is likely board certified in that 
 
            speciality.  Dr. Wanzek has treated the claimant for his 
 
            respiratory condition since 1985 while Drs. Narayan and From 
 
            examined the claimant for purposes of this litigation.  Dr. 
 
            Wanzek has diagnosed claimant as having asthma (transcript, 
 
            pages 29-35).  Dr. Wanzek expressed the opinion that the 
 
            exposure to non-specific irritants, in particular the dust 
 
            at his place of employment, exacerbated Clatt's asthma 
 
            (transcript, pages 36-42).  Dr. Wanzek went on to explain 
 
            that the question of why one person develops asthma and 
 
            another does not is not well understood, though it is 
 
            currently believed by the medical community that asthma is 
 
            an inflammatory disorder and that dust and irritants enhance 
 
            the inflammation and become a significant part of the 
 
            continuation of the asthma (transcript, pages 43 and 44; 
 
            exhibits 1-c; 1-f; B-5, page 7; B-5, page 8).
 
            
 
                 Drs. From and Narayan do not agree with the diagnosis 
 
            of asthma.  Dr. From states that claimant has chronic 
 
            bronchitis (exhibits B-1; B-2, pages 14-18).  Dr. From 
 
            agreed that the bronchitis could be related to claimant's 
 
            work exposures, but he was unwilling to affirmatively state 
 
            that such was the case (exhibit B-2, pages 24 and 39).  Dr. 
 
            From agreed that anything which is an irritant to the lungs 
 
            will further irritate claimant's chronic bronchitis (exhibit 
 
            B-2, page 32).  Dr. From likewise agreed that the greater 
 
            the exposure, the greater the likelihood of a relationship 
 
            between the employment exposure and the respiratory disorder 
 
            (exhibit B-2, page 31).  Dr. From stated that he was unable 
 
            to conclude that there was any cause and effect relationship 
 
            between claimant's symptoms and his work, in particular 
 
            because his examination of the claimant was normal and there 
 
            was no history of any trauma, other than claimant having 
 
            read the data sheet for the product and that that was the 
 
            point at which his symptoms became apparent (exhibit B-2, 
 
            pages 23-26).  It is noted that claimant's reading of the 
 
            material safety data sheet occurred in 1989, approximately 
 
            four years after he began treating for the condition and its 
 
            symptoms with Dr. Wanzek.
 
            
 
                 Dr. Narayan, like Dr. From, found no evidence of 
 
            claimant having reversible bronchospastic disease or 
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
            
 
            
 
            hyperreactive airways.  The report of July 21, 1989 states 
 
            that the diagnosis of asthma is suspect (exhibit B-3).
 
            
 
                 A review of the actual testing results does corroborate 
 
            Dr. Wanzek's assessment of the case, though Dr. Wanzek 
 
            correctly characterized the test results as "borderline" in 
 
            his May 8, 1990 office note (exhibit 1-g).  Dr. Wanzek's 
 
            assessment is accepted as being correct because he has been 
 
            the treating physician and is therefore more familiar with 
 
            the claimant, his symptoms and his responses to treatment 
 
            than either Dr. From or Dr. Narayan.  Further, his 
 
            assessment is found to be correct because he appears to be 
 
            basing his opinions upon more current medical information 
 
            than Dr. From, in particular with regard to the methacholine 
 
            challenge test results.  Further, claimant has shown 
 
            improvement with treatment which Dr. Wanzek has provided, a 
 
            situation which would not be expected to exist if the 
 
            diagnosis were incorrect.  The evidence shows that Clatt was 
 
            healthy when he commenced the employment where he was 
 
            exposed to substances known to have the potential to induce 
 
            asthma.  The record does not disclose exposure to other 
 
            agents known to have the ability to induce asthma.  It is 
 
            therefore found that Larry Clatt is afflicted with asthma 
 
            and that the dusts to which he is exposed at his place of 
 
            employment trigger a reaction in his airways which 
 
            exacerbates the underlying condition.  It is further found 
 
            to be more likely than not that the continued exposure over 
 
            the years to the dust in Clatt's place of employment, 
 
            combined with a preexisting predisposition, caused Clatt to 
 
            develop asthma.  Since the asthma has developed and become 
 
            symptomatic, he now reacts to other substances as well as 
 
            those from his employment.
 
            
 
                 Claimant's asthma has a direct causal connection with 
 
            his employment and followed as a natural incident to the 
 
            dust exposure from grinding.  The condition did not occur 
 
            independent of the employment.  Claimant would not have been 
 
            equally exposed to cobalt dust outside of his employment 
 
            since it seems to be a product of grinding carbide tools.
 
            
 
                                conclusions of law
 
            
 
                 It is concluded that Larry Clatt has proven, by a 
 
            preponderance of the evidence, that he contracted asthma as 
 
            a result of his exposure to dust at his place of employment.  
 
            Clatt has further proven, by a preponderance of the 
 
            evidence, that the asthma is an occupational disease.  
 
            McSpadden v. Big Ben Coal Co., 288 N.W.2d 181, 190 (Iowa 
 
            1980); 1B Larson Workmen's Compensation Law, sections 41.31- 
 
            41.33; Section 85A.8, Code of Iowa.
 
            
 
                 Since Larry Clatt is not incapacitated from performing 
 
            his usual work, he is not entitled to recover any weekly 
 
            compensation for permanent partial disability.  His only 
 
            entitlement is to recover expenses of medical treatment for 
 
            his condition.  Sections 85A.4 and 85A.5, Code of Iowa.  
 
            Claimant is therefore entitled to recover from the 
 

 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
            
 
            
 
            defendants the sum of $431.76 as reimbursement for the 
 
            medical expenses he has paid in treating his respiratory 
 
            condition.  The employer is, as stipulated, entitled to 
 
            credit for the amount paid by its group carrier.
 
            
 
                 It is noted that even if the assessment of this case 
 
            made by Dr. From were correct, namely that Clatt suffers 
 
            from chronic bronchitis which is aggravated by exposure to 
 
            irritants, the result would likely be the same with regard 
 
            to the defendants' liability for payment of the medical 
 
            expenses.  The situation might be an injury which is an 
 
            aggravation of a preexisting condition.  It is even possible 
 
            that the irritant exposure might be the source of the 
 
            chronic bronchitis condition, and as such an occupational 
 
            disease in its own right.
 
            
 
                                      order
 
            
 
                 IT IS THEREFORE ORDERED that defendants pay Larry Clatt 
 
            four hundred thirty-one and 76/100 dollars ($431.76) under 
 
            the provisions of Iowa Code section 85.27 as reimbursement 
 
            for expenses incurred in treating his occupational disease.
 
            
 
                 IT IS FURTHER ORDERED that claimant take nothing from 
 
            this proceeding in the way of weekly compensation benefits.
 
            
 
                 IT IS FURTHER ORDERED that the costs of this action are 
 
            assessed against defendants pursuant to rule 343 IAC 4.33.
 
            
 
                 IT IS FURTHER ORDERED that defendants file claim 
 
            activity reports as requested by this agency pursuant to 
 
            rule 343 IAC 3.1.
 
            
 
                 Signed and filed this ______ day of ____________, 1991.
 
            
 
                 
 
            
 
            
 
            
 
                                          ______________________________
 
                                          MICHAEL G. TRIER
 
                                          DEPUTY INDUSTRIAL COMMISSIONER
 

 
            
 
            Page   6
 
            
 
            
 
            
 
            
 
            
 
            
 
            
 
            Copies To:
 
            
 
            Mr. Steven C. Jayne
 
            Attorney at Law
 
            5835 Grand Avenue
 
            Suite 201
 
            Des Moines, Iowa  50312
 
            
 
            Mr. Harry W. Dahl
 
            Attorney at Law
 
            974 73rd Street
 
            Suite 16
 
            Des Moines, Iowa  50312
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                           1108.40; 1402.40; 2203
 
                           Filed May 8, 1991
 
                           MICHAEL G. TRIER
 
            before the iowa industrial commissioner
 
            ____________________________________________________________
 
                      :
 
            LARRY CLATT,   :
 
                      :
 
                 Claimant, :
 
                      :
 
            vs.       :
 
                      :         File No. 931119
 
            SUNDSTRAND-SAUER,   :
 
                      :      A R B I T R A T I O N
 
                 Employer, :
 
                      :         D E C I S I O N
 
            and       :
 
                      :
 
            LIBERTY MUTUAL,     :
 
                      :
 
                 Insurance Carrier,  :
 
                 Defendants.    :
 
            ____________________________________________________________
 
            
 
            1108.40; 2203
 
            Claimant prevailed, despite conflicting evidence, in proving 
 
            that he was afflicted with asthma and that the condition was 
 
            causally connected to his employment.
 
            
 
            1402.40
 
            Claimant, who was still employed and earning at the normal 
 
            rate, held not to have met the disablement standard of 
 
            section 85A.4.  He was therefore allowed to recover the 
 
            expenses of medical treatment only under section 85A.5.
 
            
 
 
            
 
            
 
            
 
            
 
            
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ------------------------------------------------------------
 
            LARRY CLATT,                  :
 
                                          :
 
                 Claimant,                :  File Nos. 931119 & 1020222
 
                                          :
 
            vs.                           R E V I E W - R E O P E N I N G
 
                                          :  
 
            SAUER-SUNDSTRAND,             :           A N D
 
                                          :  
 
                 Employer,                :    A R B I T R A T I O N
 
                                          :     
 
            and                           :       D E C I S I O N
 
                                          :       
 
            LIBERTY MUTUAL,               :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ------------------------------------------------------------
 
                              STATEMENT OF THE CASE
 
            
 
                 This decision concerns two proceedings brought by Larry 
 
            Clatt against his former employer and its insurance carrier.  
 
            File number 931119 is a review-reopening proceeding from the 
 
            arbitration decision entered May 8, 1991, wherein claimant 
 
            was held to have developed occupational asthma and was 
 
            awarded expenses of medical treatment.  File number 1020222 
 
            is an arbitration proceeding which alleges a date of 
 
            disability of August 29, 1991.  Claimant is seeking 
 
            compensation based upon his asthma condition and also upon a 
 
            depressive disorder.  The case was heard at Des Moines, 
 
            Iowa, on March 15, 1994.  The evidence consists of testimony 
 
            from Larry Clatt, Sandra Clatt, Dan Dyvig, Doris Johnson, 
 
            and Gregory Wuhs.  The record also contains joint exhibits 1 
 
            through 5, claimant's exhibits A and B and defendants' 
 
            exhibits A, C and E.  Official notice was taken of the 
 
            transcript of the prior hearing conducted in file number 
 
            931119 and the exhibits introduced into evidence at that 
 
            prior hearing.
 
            
 
                                 FINDINGS OF FACT
 
            
 
                 The evidence introduced does not show claimant's 
 
            asthmatic condition to have become disabling.  Regardless of 
 
            whether the date of August 29, 1991 or February 6, 1989 is 
 
            applied, claimant has not shown that he is disabled as a 
 
            result of his occupational asthma.  He worked for this 
 
            employer in his customary occupation up until the date of 
 
            his coerced resignation.  He worked performing similar work 
 
            for three different employers after leaving 
 
            Sauer-Sundstrand.  There is some evidence to indicate that 
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            the asthma might have been a problem with the third employer 
 
            but in view of claimant's depressive disorder, it cannot be 
 
            determined whether or not his asthma symptoms were 
 
            significant.  The claimant's description of his symptoms at 
 
            that time is found to not be reliable.
 
            
 
                 The evidence from Jack L. Dodd, M.D., and Michael 
 
            Taylor, M.D., psychiatrists, describe a number of symptoms 
 
            which are present when depression, in the medical sense, is 
 
            present.  According to Sandra Clatt, claimant's spouse of 30 
 
            years, claimant began developing problems with sleep, crying 
 
            when it was not appropriate, getting up to go to work, loss 
 
            of memory and loss of energy during the time leading up to 
 
            when his employment with Sauer-Sundstrand terminated.  
 
            During that same period of time it was noted by claimant's 
 
            supervisors that he had difficulty interacting appropriately 
 
            with coworkers.  Dr. Dodd, in his deposition, gave a 
 
            somewhat meandering description of some characteristics 
 
            commonly seen in persons who are afflicted with depression.  
 
            It is not uncommon for them to be hypochondriacal.  Their 
 
            judgment and cognitive abilities are often impaired.  What 
 
            the individual sees as the causes or history surrounding and 
 
            leading up to the depression is not necessarily accurate.  
 
            (joint exhibit 2, pages 8-19, 31 & 36-38).  As indicated by 
 
            Dr. Dodd, depression is often a summation of a variety of 
 
            causative factors.  (jt. ex. 2, pp. 40-42).  
 
            
 
                 The evidence establishes conclusively that the claimant 
 
            is afflicted with a major depressive disorder.  Dr. Dodd is, 
 
            however, unwilling to causally connect the depression with 
 
            claimant's occupationally induced asthma, other conditions 
 
            at the place of employment with Sauer-Sundstrand or even 
 
            with the termination of employment from Sauer-Sundstrand.  
 
            (jt. ex. 2, p. 16).  Dr. Taylor feels that there is no 
 
            causal relationship between the Sauer-Sundstrand job and 
 
            claimant's depression.  (jt. ex. 3, pp. 11-13).  The history 
 
            upon which Dr. Taylor relies is found to be inaccurate.  It 
 
            is specifically found that Dr. Dodd is correct when he 
 
            states that the patient is not necessarily an accurate 
 
            historian.  Dr. Taylor's statement that the claimant knows 
 
            best how he was feeling at various times is found to not be 
 
            accurate or reliable.  The undersigned rejects the 
 
            propositions that a person who is mentally impaired by a 
 
            major depressive disorder is necessarily a reliable 
 
            historian, that such a person is able to accurately identify 
 
            the onset of the depression or the cause of the depression.  
 
            Whenever the evidence from Dr. Taylor conflicts with that 
 
            from Dr. Dodd, Dr. Dodd is found to be correct and the 
 
            evidence from Dr. Taylor is rejected.  Nevertheless, the 
 
            record of this case does not show Larry Clatt's asthma to be 
 
            a significant factor in producing his depression nor does it 
 
            show the termination of the employment relationship with 
 
            Sauer-Sundstrand to have been a substantial factor in 
 
            producing the depression.  
 
            
 
                 Claimant's depressive symptoms were present for a 
 
            considerable amount of time before the events leading to the 
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            resignation occurred.  The claimant's depression could 
 
            possibly have some basis in his employment stresses, but the 
 
            evidence simply fails to show any such connection to be a 
 
            probability.  From the evidence that was presented, it is 
 
            quite possible that some of claimant's difficulties in his 
 
            employment relationship at Sauer-Sundstrand were a result of 
 
            an ongoing, but unrecognized, depression which continued to 
 
            exist and progress after the employment relationship 
 
            terminated.  
 
            
 
                                CONCLUSIONS OF LAW
 
            
 
                 Iowa workers' compensation law distinguishes 
 
            occupational diseases from work injuries.  An occupational 
 
            disease is a disease which arises out of and in the course 
 
            of the employee's employment.  The disease must have a 
 
            direct causal connection with the employment and must follow 
 
            as a natural incident from injurious exposure occasioned by 
 
            the nature of the employment.  While the disease need not be 
 
            foreseeable or expected, after its contraction, it must 
 
            appear to have had its origin in a risk connected with the 
 
            employment and to have resulted from that risk.  A disease 
 
            which follows from a hazard to which an employee has or 
 
            would have been equally exposed outside of the occupation is 
 
            not a compensable occupational disease.
 
            
 
                 The claimant need meet only two basic requirements to 
 
            prove causation of an occupational disease.  First, the 
 
            disease must be causally related to the exposure to the 
 
            harmful conditions in the field of employment.  Second, the 
 
            harmful conditions must be more prevalent in the employment 
 
            than in everyday life or other occupations.  Section 85A.8; 
 
            McSpadden v. Big Ben Coal Co., 288 N.W.2d 181 (Iowa 1980).
 
            
 
                 Where an employee is injuriously exposed to hazardous 
 
            conditions producing occupational disease while employed by 
 
            several successive employers, the employer where the 
 
            employee was last injuriously exposed is liable for the 
 
            total disability.  Doerfer Div. of CCA v. Nicol, 359 N.W.2d 
 
            428 (Iowa 1984).
 
            
 
                 To be compensable, an aggravation of an occupational 
 
            disease must be more than a temporary aggravation curable by 
 
            removal from the exposure.  McNeil v. Grove Feed Mill, II 
 
            Iowa Industrial Commissioner Report 261 (App. 1981).
 
            
 
                 In cases of nontraumatically-caused mental injury, the 
 
            industrial commissioner follows the "Wisconsin" rule which 
 
            is favored in 1B Larson The Law of Workmen's Compensation, 
 
            42.23(b).  Desgranges v. Dep't of Human Services, File No. 
 
            760747 (App. Dec. August 19, 1988).
 
            
 
                 Under the "Wisconsin" rule, a nontraumatically-caused 
 
            mental injury is compensable only when the injury "resulted 
 
            from a situation of greater dimensions than the day-to-day 
 
            mental stresses and tensions which all employees must 
 
            experience."  Swiss Colony v. Dep't of Indus., L. & H. R., 
 
            72 Wis. 2d 46, 240 N.W.2d 128 (1976).  In other words, both 
 
            medical and legal causation must be resolved before finding 
 
            an injury arising out of employment.  The medical causation 
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
            issue involves an examination into the cause and effect 
 
            relationship between the stresses and tensions at work and 
 
            the mental difficulties.  If the medical causation issue is 
 
            resolved in favor of the claimant, legal causation is 
 
            examined.  Legal causation involves a determination of 
 
            whether the work stresses and tensions, when viewed 
 
            objectively and not as perceived by claimant, were "out of 
 
            the ordinary from the countless emotional strains and 
 
            differences that employees encounter daily without serious 
 
            mental injury."  School Dist. #1 v. Dep't of Indus., L. & H. 
 
            R., 62 Wis. 2d 370, 215 N.W.2d 373 (1974).
 
            
 
                 The claimant has the burden of proving by a 
 
            preponderance of the evidence that the alleged condition 
 
            actually occurred and that it arose out of and in the course 
 
            of employment.  McDowell v. Town of Clarksville, 241 N.W.2d 
 
            904 (Iowa 1976); Musselman v. Cent. Tel. Co., 261 Iowa 352, 
 
            154 N.W.2d 128 (1967).  The words "arising out of" refer to 
 
            the cause or source of the injury.  The words "in the course 
 
            of" refer to the time, place and circumstances of the 
 
            injury.  Sheerin v. Holin Co., 380 N.W.2d 415 (Iowa 1986); 
 
            McClure v. Union County, 188 N.W.2d 283 (Iowa 1971).
 
            
 
                 The claimant has the burden of proving by a 
 
            preponderance of the evidence that the condition is a 
 
            proximate cause of the disability on which the claim is 
 
            based.  A cause is proximate if it is a substantial factor 
 
            in bringing about the result; it need not be the only cause.  
 
            A preponderance of the evidence exists when the causal 
 
            connection is probable rather than merely possible.  
 
            Blacksmith v. All-American, Inc., 290 N.W.2d 348 (Iowa 
 
            1980); Holmes v. Bruce Motor Freight, Inc., 215 N.W.2d 296 
 
            (Iowa 1974).
 
            
 
                 The question of causal connection is essentially within 
 
            the domain of expert testimony.  The expert medical evidence 
 
            must be considered with all other evidence introduced 
 
            bearing on the causal connection between the condition and 
 
            the disability.  The weight to be given to any expert 
 
            opinion is determined by the finder of fact and may be 
 
            affected by the accuracy of the facts relied upon by the 
 
            expert as well as other surrounding circumstances.  The 
 
            expert opinion may be accepted or rejected, in whole or in 
 
            part.  Sondag v. Ferris Hardware, 220 N.W.2d 903 (Iowa 
 
            1974); Anderson v. Oscar Mayer & Co., 217 N.W.2d 531 (Iowa 
 
            1974); Bodish v. Fischer, Inc., 257 Iowa 516, 133 N.W.2d 867 
 
            (1965).
 
            
 
                 The evidence in the record of this case fails to show 
 
            that claimant's occupational asthma has reached the 
 
            threshold of disablement which is required in sections 85A.4 
 
            and 85A.5.  Accordingly, he is not entitled to recover any 
 
            weekly compensation on account of the occupational asthma 
 
            which he has developed.  The disease did not cause him to 
 
            leave his employment at Sauer-Sundstrand and it did not 
 
            cause him to be unable to perform work as a machinist with 
 
            other employers.  
 
            
 
                 Claimant's depressive disorder might possibility have 
 
            been precipitated in some part from his employment.  
 

 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
            Possible causative factors include claimant's concern over 
 
            exposure to potentially injurious substances, the potential 
 
            for developing asthma, the stresses of litigation in the 
 
            case which was previously taken to hearing and the stress 
 
            associated with being forced to decide whether to resign or 
 
            take his chances upon being involuntarily laid off.  The 
 
            record of this case shows claimant to have had symptoms of 
 
            depression prior to 1989 and long prior to the time that the 
 
            process of the termination of his employment was initiated.  
 
            The greater likelihood is as expressly indicated by Dr. 
 
            Taylor that the depression had its onset as a result of 
 
            unidentified factors and the claimant's individual 
 
            susceptibility.  While Dr. Taylor's identification of a date 
 
            of onset is expressly rejected by the undersigned in view of 
 
            the inaccurate history upon which he relied.  The ultimate 
 
            conclusion is, nevertheless, accepted as being correct.  It 
 
            is consistent with the opinions expressed by Dr. Dodd.  
 
            
 
                 It is therefore concluded that claimant is not entitled 
 
            to recover any weekly compensation benefits under any of the 
 
            theories asserted.  
 
            
 
                 The employer shall furnish reasonable surgical, 
 
            medical, dental, osteopathic, chiropractic, podiatric, 
 
            physical rehabilitation, nursing, ambulance and hospital 
 
            services and supplies for all conditions compensable under 
 
            the workers' compensation law.  The employer shall also 
 
            allow reasonable and necessary transportation expenses 
 
            incurred for those services.  The employer has the right to 
 
            choose the provider of care, except where the employer has 
 
            denied liability for the injury.  Section 85.27.  Holbert v. 
 
            Townsend Engineering Co., Thirty-second Biennial Report of 
 
            the Industrial Commissioner 78 (Review-reopen 1975).
 
            
 
                 The record of this case contains a claim for expenses 
 
            incurred in treating the claimant's depression.  It does not 
 
            appear to contain any claim for expenses incurred in 
 
            treating claimant's asthma.  Accordingly, claimant is not 
 
            entitled to any recover under the provisions of section 
 
            85.27 in this case.  
 
            
 
                                      ORDER
 
            
 
                 IT IS THEREFORE ORDERED that claimant take nothing in 
 
            file 931119 or file 1020222.
 
            
 
                 It is further ordered that each party be responsible 
 
            for paying the costs incurred by that party in participating 
 
            in this proceeding.  
 
            
 
                 Signed and filed this __________ day of June, 1994.
 
            
 
            
 
            
 
            
 
                                          ______________________________
 
                                          MICHAEL G. TRIER
 
                                          DEPUTY INDUSTRIAL COMMISSIONER    
 
            
 
            
 

 
            
 
            Page   6
 
            
 
 
 
 
 
            
 
            COPIES TO:
 
            
 
            Mr. Steven Jayne
 
            Attorney at Law
 
            5835 Grand Ave
 
            Des Moines, Iowa  50312
 
            
 
            Mr. Harry Dahl, Sr.
 
            Attorney at Law
 
            974 - 73rd St, STE 16
 
            Des Moines, Iowa  50312
 
            
 
            
 
 
            
 
            
 
            
 
            
 
                                          2203 2204 1402.30 1402.40
 
                                          Filed June 27, 1994
 
                                          Michael Trier
 
            
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ------------------------------------------------------------
 
            LARRY CLATT,   
 
                      
 
                 Claimant,             File Nos. 931119 & 1020222
 
                      
 
            vs.                       R E V I E W - R E O P E N I N G
 
                        
 
            SAUER-SUNDSTRAND,                    A N D
 
                        
 
                 Employer,                A R B I T R A T I O N
 
                           
 
            and                              D E C I S I O N
 
                             
 
            LIBERTY MUTUAL,     
 
                      
 
                 Insurance Carrier,  
 
                 Defendants.    
 
            ------------------------------------------------------------
 
            2203 2204 1402.30 1402.40
 
            
 
            Claimant, who had been previously held to have developed 
 
            occupational asthma, renewed his claim after his employment 
 
            had been terminated.  There was no showing of disablement 
 
            and the claim for occupational disease benefits was denied.
 
            Claimant had developed a major depressive disorder but the 
 
            evidence failed to show that the employment played a 
 
            substantial part in producing that depressive disorder.
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                    BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
            
 
            ALBERT J. HARTL, SR.,      
 
                        
 
                 Claimant,                    File No. 931120
 
                        
 
            vs.                                 A P P E A L
 
                        
 
            QUAKER OATS COMPANY,              D E C I S I O N
 
                        
 
                 Employer,   
 
                 Defendant.       
 
            ____________________________________________________________
 
            
 
            The record, including the transcript of the hearing before 
 
            the deputy and all exhibits admitted into the record, has 
 
            been reviewed de novo on appeal.  The decision of the deputy 
 
            filed October 20, 1992 is affirmed and is adopted as the 
 
            final agency action in this case.
 
            Defendant shall pay the costs of the appeal, including the 
 
            preparation of the hearing transcript.
 
            Signed and filed this ____ day of July, 1993.
 
            
 
            
 
            
 
            
 
                                     ________________________________
 
                                             BYRON K. ORTON
 
                                       INDUSTRIAL COMMISSIONER
 
            
 
            Copies To:
 
            
 
            Mr. Robert R. Rush
 
            Attorney at Law
 
            P.O. Box 2457
 
            Cedar Rapids, Iowa 52406-2457
 
            
 
            Mr. James E. Shipman
 
            Mr. James M. Peters
 
            Attorneys at Law
 
            1200 MNB Building
 
            Cedar Rapids, Iowa 52401
 
            
 
 
            
 
 
 
              
 
 
 
 
 
                                                 4000.2
 
                                                 Filed July 22, 1993
 
                                                 Byron K. Orton
 
            
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
        
 
            ALBERT J. HARTL, SR.,      
 
                        
 
                 Claimant,                      File No. 931120
 
                        
 
            vs.                                   A P P E A L
 
                        
 
            QUAKER OATS COMPANY,                D E C I S I O N
 
                        
 
                 Employer,   
 
                 Defendant.       
 
            ____________________________________________________________
 
                
 
            4000.2
 
            Held that in the recent case of Boylan v. American Motorists 
 
            Ins. Co., No. 250/91-1520, Iowa Supreme Court filed 
 
            September 23, 1992, the court recognized not only bad faith 
 
            but also negligent conduct as grounds to invoke the penalty 
 
            provisions of section 86.13.
 
            Found unreasonable was employer's denial of the claim on the 
 
            basis of its expressed desire to make claimant wait as long 
 
            as possible for his money regardless of the medical evidence 
 
            and to force claimant into litigation to soften a claimant 
 
            up for settlement.
 
            
 
 
            
 
            
 
            
 
            
 
            
 
                    BEFORE THE IOWA INDUSTRIAL COMMISSIONER            
 
            ____________________________________________________________
 
                                          :
 
            ALBERT J. HARTL, SR.,         :
 
                                          :       File No. 931120
 
                 Claimant,                :
 
                                          :    A R B I T R A T I O N
 
            vs.                           :
 
                                          :       D E C I S I O N
 
            QUAKER OATS COMPANY,          :
 
                                          :
 
                 Employer,                :
 
                 Defendant.               :
 
            ___________________________________________________________
 
            
 
            
 
                          STATEMENT OF THE CASE
 
            
 
                 This is a proceeding in arbitration brought by Albert 
 
            J. Hartl, Sr., claimant, against Quaker Oats Company, 
 
            employer, hereinafter referred to as Quaker, a self-insured 
 
            defendant, for workers' compensation benefits as a result of 
 
            an alleged injury on August 10, 1989.  On September 1, 1992, 
 
            a hearing was held on claimant's petition and the matter was 
 
            considered fully submitted at the close of this hearing.
 
            
 
                 The parties have submitted a prehearing report of con
 
            tested issues and stipulations which was approved and 
 
            accepted as a part of the record of this case at the time of 
 
            hearing.  The oral testimony and written exhibits received 
 
            during the hearing are set forth in the hearing transcript.
 
            
 
                                      ISSUES
 
            
 
                 The only issue submitted by the parties for determina
 
            tion in this proceeding is the extent, if any, of claimant's 
 
            entitlement to additional weekly benefits for an alleged 
 
            unreasonable delay or denial of benefits under Iowa Code 
 
            section 86.13(4).
 
            
 
                                 FINDINGS OF FACT
 
            
 
                 Having heard the testimony and considered all of the 
 
            evidence, the deputy industrial commissioner finds as 
 
            follows:
 
            
 
                 On April 9, 1991, this agency issued an arbitration 
 
            decision finding that claimant suffered an injury on August 
 
            10, 1989.  Claimant suffered an injury arising out of and in 
 
            the course of her employment with Quaker.  The decision also 
 
            found that the injury was a cause of permanent partial dis
 
            ability and awarded compensation based upon a finding of a 
 
            six percent loss of earning capacity as a result of the 
 
            injury.  The relatively low award was probably due to the 
 
            fact that claimant was able to return to his former work 
 
            after medical treatment with no loss of earnings.  This 
 
            decision was appealed but the appeal was later dismissed at 
 
            which time claimant was paid the award.  Claimant received 
 
            no payment of benefits prior to the dismissal of the appeal.  
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            However, claimant has received group plan disability bene
 
            fits for his time off.
 
            
 
                 After a review of the evidence and the April 9, 1991 
 
            decision, the findings of fact contained in the decision are 
 
            adopted herein and by reference incorporated into this deci
 
            sion.  This includes the following language in the Findings 
 
            of Fact on page 4 of the decision:
 
            The evidence concerning the cause of claimant's August 1989 
 
            cervical spine difficulties is confusing....
 
            The above mentioned medical reports could be interpreted in 
 
            several ways....
 
            
 
                 The undersigned similarly finds that the evidence of 
 
            causation between the claimant's work activities immediately 
 
            prior to the August 10, 1989 injury and his subsequent 
 
            treatment, including a surgical cervical decompression by 
 
            James R. LaMorgese, M.D., was far from clear.
 
            
 
                 Claimant has had a long-standing history of cervical 
 
            disc disease since 1983 and a surgical discectomy at two 
 
            levels of claimant's cervical spine in October 1983.  In 
 
            April 1989, claimant and Quaker entered into a compromise 
 
            settlement of all of his claims stemming from a cervical 
 
            back work injury on June 7, 1983 and industrial cervical 
 
            disease due to trauma.  The settlement was subject to 
 
            review-reopening.
 
            
 
                 The fighting issue was whether or not the events lead
 
            ing up to the complaints of cervical back pain on August 10, 
 
            1989 were a continuation of the old injury or a new injury 
 
            by way of aggravation of the old injury.  Claimant was first 
 
            seen by Chad D. Abernathy, M.D., a neurosurgeon.  His office 
 
            notes reflect that claimant complained of a new discomfort 
 
            emanating from his right cervical region down into the arm 
 
            but did not identify an specific action which brought on 
 
            this pain.  "[R]ather it has come on steadily and 
 
            progressively in a step wise fashion."  Dr. Abernathy's 
 
            impression was "progressive degenerative joint disease of 
 
            the cervical spine of an arthritic type."
 
            
 
                 Claimant was next seen on September 7, 1989 by James R. 
 
            LaMorgese, M.D.  Dr. LaMorgese has treated claimant for a 
 
            number of years.  On September 26, 1989, Dr. LaMorgese 
 
            admitted claimant to the hospital for testing stating in the 
 
            admission report that the patient may well have cervical 
 
            spondylosis at the same two levels of prior surgery "that 
 
            has been aggravated by his work with subsequent injury."  In 
 
            his discharge note, Dr. LaMorgese stated that claimant's 
 
            condition was "work aggravated or related injury."
 
            
 
                 On November 14, 1989, Dr. LaMorgese states in his 
 
            office notes as follows:
 
            
 
                 The patient and I discussed the cause for his cer
 
                 vical disk disease.  I do feel that it is related 
 
                 to his previous cervical problems from work.  I 
 
                 think it is a further aggravation of his 
 
                 pre-existing condition with further injury.
 
            
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
                 In a formal letter report dated November 29, 1989, the 
 
            doctor states as follows: 
 
            
 
                 It is my feeling that the patient's recurrent pain 
 
                 is related to continuing work related activities.  
 
                 I think it is an extension of his old injury after 
 
                 reviewing the history with Mr. Hartl rather than a 
 
                 new, separate episode.  I cannot tell you if there 
 
                 is any new impairment rating for Mr. Hartl at this 
 
                 time.
 
            
 
                 On August 21, 1990, the doctor states as follows:
 
            
 
                 I feel that he [Hartl] has a permanent partial 
 
                 disability rating as a body as a whole of 18%.  I 
 
                 feel that he has received a further impairment of 
 
                 6% as a body as a whole related to his newest 
 
                 injury of the neck.
 
            
 
                 In a letter from the claims adjuster, Karma Kelly, to 
 
            her superior dated May 1, 1990, Kelly indicates that "based 
 
            on the medical records that have been received thusfar, it 
 
            does appear that these medical records are supporting the 
 
            fact that the claimants [sic] work activity since 1983 have 
 
            aggravated his preexisting condition to the point of needing 
 
            the surgery of 1989 and subsequent permanent disability."  
 
            She further states:  "Even though compensability is ques
 
            tionable, we do not feel that we have enough evidence to 
 
            proceed with a complete denial of this accumulative trauma 
 
            claim."  In July 1990, Kelly writes her superior again stat
 
            ing that Quaker adamantly wishes to deny the claim.  She 
 
            states that Quaker feels that claimant has had "one too many 
 
            Worker's [sic] Compensation settlement awards already, and 
 
            they are not interested in volunteering another one to him 
 
            at this time."  She indicates that Quaker does not wish to 
 
            offer any settlement regardless of the medical records.  
 
            Quaker understood that they may not be successful but that 
 
            they wanted to make claimant wait for the money as long as 
 
            possible.  Kelly adds that both herself and Quaker are 
 
            "hoping, as the months go by, the insured may soften up" and 
 
            consider extending some authority for settlement.
 
            
 
                 At hearing, a Quaker representative and Kelly testified 
 
            that the confusion in the records was the primary reason for 
 
            the denial.  Ralph Gearhart, the attorney for defendants at 
 
            the time, testified that his defense was based upon several 
 
            facts.  First there was a lack of specific injury or activ
 
            ity which precipitated the pain.  Claimant on August 10, 
 
            1989 stated to Dr. Abernathy that he did not know what was 
 
            causing his problems.  Gearhart also discussed what he felt 
 
            were confusing opinions of Dr. LaMorgese with Dr. Abernathy 
 
            and stated that he showed a video tape of the type of work 
 
            claimant was performing on August 10, 1989 to Dr. LaMorgese 
 
            but received no satisfactory response.  It was Gearhart's 
 
            contention that claimant was not performing any strenuous 
 
            activity to warrant a new injury on August 10, 1989.  Also, 
 
            claimant returned to full duty on the same job as he had on 
 
            August 10, 1989 after his medical treatment without loss of 
 
            pay or status.  Gearhart states that this fact alone would 
 
            justify an argument that claimant has no loss of earning 
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
            capacity as a result of the injury and is entitled to no 
 
            permanent disability regardless of additional impairment.
 
            
 
                 It is found that at no time did defendant seek another 
 
            medical opinion, nor did they press Dr. LaMorgese for an 
 
            explanation for his apparent waffling.  Given the Karma 
 
            Kelly letters, it would appear that the claim of confusion 
 
            is an after thought to justify denial.  Kelly certainly did 
 
            not consider the records confusing.  In any event, Quaker 
 
            wanted to force claimant to hearing regardless of any 
 
            medical reports and that is precisely what happened.
 
            
 
                                CONCLUSIONS OF LAW
 
            
 
                  I.  Claimant seeks additional weekly benefits under 
 
            Iowa Code section 86.13, unnumbered last paragraph.  That 
 
            provision states that if a delay in commencement or termina
 
            tion of benefits occurs without reasonable or probable cause 
 
            or excuse, the industrial commissioner shall award extra 
 
            weekly benefits in an amount not to exceed fifty percent of 
 
            the amount of benefits that were unreasonably delayed or 
 
            denied.  Defendants may deny or delay the payment of bene
 
            fits only when the claim is fairly debatable.  Seydel v. U 
 
            of I Physical Plant, Appeal Decision, November 1, 1989.  
 
            When the claim is "fairly debatable" the insurer is entitled 
 
            to debate it, whether the debate concerns a matter of fact 
 
            or law."  The Supreme Court recently has clarified the 
 
            grounds necessary to impose a section 86.13 penalty.
 
            
 
                 In the recent case of Boylan v. American Motorists Ins. 
 
            Co., No 250/91-1520, Iowa Supreme Court filed September 23, 
 
            1992, the court stated as follows:
 
            
 
                 We conclude that it is unlikely that the legisla
 
                 ture intended the penalty provision in section 
 
                 86.13 to be the sole remedy for all types of 
 
                 wrongful conduct by carriers with respect to      
 
                 administration of workers' compensation benefits.  
 
                 By its terms, it applies only to delay in com
 
                 mencement or termination of benefits.  It contem
 
                 plates negligent conduct rather than the willful 
 
                 or reckless acts that are required to establish a 
 
                 cause of action under Dolan.
 
            
 
                 (emphasis added)
 
            
 
                 Consequently, not only bad faith but also negligent 
 
            conduct can invoke the penalty provisions of section 86.13.  
 
            In reviewing the propriety of defendant's actions, Iowa Code 
 
            section 507B.4(9) lists uniform unfair settlement claim 
 
            practices for insurance companies.  This listing is useful 
 
            as a statement of public policy to identify the types of 
 
            claim settlement practices that should be viewed unreason
 
            able.  Failing to promptly and fully investigate a claim and 
 
            to make claimant institute litigation to secure benefits are 
 
            two types of unfair claim practices in this listing.
 
            
 
                 In the case sub judice, the lack of a specific trauma 
 
            is not reason to deny a claim in Iowa under McKeever Custom 
 
            Cabinets v. Smith, 379 N.W.2d 368 (Iowa 1985).  Attorney 
 

 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
            Gearhart is correct that even if there was clear causation, 
 
            returning the claimant back to work without loss of wages 
 
            can form the basis of a complete denial of permanency bene
 
            fits.  As this was a body as a whole case, the measure of 
 
            entitlement is not the extent of functional impairment but 
 
            loss of earning capacity. Diederich v. Tri-City R. Co., 219 
 
            Iowa 587, 593, 258 N.W. 899 (1935).  A finding of impairment 
 
            does not mandate a finding of loss of earning capacity when 
 
            there has been no lost earnings or employment.  See Bearce 
 
            v. FMC Corp, 465 N.W.2d 531 (Iowa 1991)
 
            
 
                 However, Gearhart's industrial disability argument 
 
            would not justify a denial of healing period benefits for 
 
            time lost from work.  Admittedly, Dr. LaMorgese's views were 
 
            confusing.  But, his most recent views clearly supported 
 
            claimant's case.  Iowa Code section 86.13 as now interpreted 
 
            by Boylan, creates an affirmative duty for workers' compen
 
            sation insurance carriers and self-insureds to act reason
 
            ably once a claim is filed.  Acting reasonably means to 
 
            fully and fairly investigate a claim, not to stand back and 
 
            deny a claim simply because they wish to deny a claim.
 
            
 
                 In the case before us, it was unreasonable for Quaker 
 
            to deny a claim on the basis of its desire to make claimant 
 
            wait as long as possible for his money regardless of the 
 
            medical evidence.  It was unreasonable for Quaker to force 
 
            claimant into litigation to soften a claimant up for 
 
            settlement.
 
            
 
                 Attorney Gearhart did a very competent job of 
 
            attempting to justify Quaker's actions.  But, in reviewing 
 
            the propriety of a denial of benefits, we do not look at the 
 
            matter in retrospect to find some legitimate basis for the 
 
            denial.  We examine the conduct of the defendants at the 
 
            time of the denial and the actual reasons for the denial.  
 
            The Karma Kelly letters provide us with the actual reasons 
 
            in this case and they do not constitute reasonable behavior.
 
            
 
                 Therefore, claimant has shown that the delay in 
 
            commencing healing period benefits was unreasonable.  As the 
 
            denial in this case was particularly oppressive, the maximum 
 
            penalty will be imposed.  The actions of Quaker were more 
 
            than negligent.  The actions constitute bad faith.
 
            
 
                                      ORDER
 
            
 
                 1.  Claimant's application for penalty benefits is 
 
            granted.  Claimant shall be awarded additional weekly bene
 
            fits in a lump sum consisting of one half (1/2) of the num
 
            ber of weeks awarded for healing period and permanent 
 
            partial disability in the Arbitration Decision of April 9, 
 
            1991 (27.286) weeks at the rate of three hundred fifty and 
 
            31/l00 dollars ($350.31) per week).
 
            
 
                 2.  Defendant Quaker shall pay the costs of this action 
 
            pursuant to rule 343 IAC 4.33, including reimbursement to 
 
            claimant for any filing fee paid in this matter.
 
            
 
            
 
                 Signed and filed this ____ day of October, 1992.
 

 
            
 
            Page   6
 
            
 
            
 
            
 
            
 
            
 
            
 
            
 
                                          ______________________________
 
                                          LARRY P. WALSHIRE
 
                                          DEPUTY INDUSTRIAL COMMISSIONER
 
            
 
            Copies To:
 
            
 
            Mr. Robert R. Rush
 
            Attorney at Law
 
            526 2nd Avenue SE
 
            P O Box 2457
 
            Cedar Rapids, Iowa  52406-2457
 
            
 
            Mr. James E. Shipman
 
            Mr. James M. Peters
 
            Attorneys at Law
 
            1200 MNB Building
 
            Cedar Rapids, Iowa  52401
 
            
 
 
            
 
            
 
            
 
            
 
            
 
                      BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
                      
 
            ALBERT J. HARTL, SR.,    
 
                      
 
                 Claimant, 
 
                      
 
            vs.       
 
                       
 
            QUAKER OATS COMPANY,     
 
                                           File Nos.  735135 & 931120
 
                 Self-Insured   
 
                 Employer, 
 
                                            A R B I T R A T I O N    
 
            and       
 
                      
 
            QUAKER OATS COMPANY,               D E C I S I O N
 
                      
 
                 Employer, 
 
                      
 
            and       
 
                      
 
            IDEAL MUTUAL INSURANCE CO. by 
 
            IOWA INSURANCE GUARANTY ASSOC.
 
                      
 
                 Insurance Carrier,  
 
                 Defendants.    
 
            ___________________________________________________________
 
                               STATEMENT OF THE CASE
 
            
 
                 This is a proceeding in arbitration and 
 
            review-reopening brought by Albert J. Hartl, Sr., as a 
 
            result of injuries to his neck which occurred on June 7, 
 
            1983 and August 10, 1989.  Claimant had settled the June 7, 
 
            1983, injury through an agreement for settlement filed on 
 
            March 31, 1989, in file number 735135.  Defendant, Ideal 
 
            Mutual Insurance Company, by the Iowa Insurance Guaranty 
 
            Association, is a party in interest only with respect to the 
 
            June 3, 1983, claim set forth in file number 735135.  
 
            Defendant, Quaker Oats Company was self-insured as of August 
 
            10, 1989.
 
 
 
                 With respect to the August 10, 1989, injury set forth 
 
 
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            in file 931120, self-insured defendant, Quaker Oats Company 
 
            denied compensability for the injury and paid benefits under 
 
            nonoccupational group health plan coverage.
 
 
 
                 This case was heard and fully submitted at Cedar 
 
            Rapids, Iowa, on February 19, 1991.  The record in the 
 
            proceeding consists of joint exhibits I through VI; 
 
            claimant's exhibit 1; self-insured Quaker Oats exhibits AA, 
 
            II, KK and LL; Ideal Mutual exhibits BB, CC and DD; and 
 
            testimony from claimant, Myrna Hartl, Dennis Purcell and 
 
            Erma Mrazek.
 
 
 
                                      ISSUES
 
 
 
 
 
                 The issues presented for determination are as follows:
 
            
 
                 1.  Whether claimant sustained an injury on August 10, 
 
            1989, arising out of and in the course of employment with 
 
            employer;
 
 
 
                 2.  Whether the alleged injuries caused temporary 
 
            disability and the extent thereof;
 
            
 
                 3.  Whether the alleged injuries caused permanent 
 
            disability and the extent of entitlement under Iowa Code 
 
            section 85.34(2)(u);
 
            
 
                 4.  The commencement date for permanent partial 
 
            disability; and 
 
 
 
            
 
 
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
                 5.  Claimant's entitlement to reimbursement for medical 
 
            benefits under Iowa Code section 85.27 and the causal 
 
            connection to the alleged injuries.
 
            
 
                 Iowa Code section 85.38(2) credit was asserted as an 
 
            issue by self-insured employer.  A ruling was made that the 
 
            credit under section 85.38(2) was not an issue at hearing 
 
            for the reason that it was not listed as a hearing issue on 
 
            the hearing assignment order filed September 10, 1990.
 
            
 
                                 FINDINGS OF FACT
 
 
 
                 Having considered all the evidence received the 
 
            following findings of fact are made:
 
            
 
                 Claimant, Albert J. Hartl, Sr., first started work for 
 
            Quaker Oats Company in 1956.  He incurred an injury to his 
 
            neck on June 7, 1983, arising out of and in the course of 
 
            employment with Quaker Oats Company.  That claim was insured 
 
            by Ideal Mutual Insurance Company, which is now in 
 
            receivership, by Iowa Insurance Guaranty Association.  The 
 
            June 7, 1983, claim, which is identified as file number 
 
            735135, was settled on April 17, 1989 (exhibit AA).  The 
 
            settlement agreement specifically allocated 13.25 percent 
 
            permanent partial disability to the body as a whole to the 
 
            June 7, 1983, injury (ex. AA).  Subsequent to the June 7, 
 
            1983 injury, claimant returned to work for employer with the 
 
            work restrictions of working no more then eight hours per 
 
            day due to the June 1983 cervical spine injury (ex. Ia, 
 
            pages 1 & 2).  
 
 
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
 
 
                 Claimant returned to work for employer performing 
 
            substantially similar duties as compared to those performed 
 
            prior to the June 1983 accident.  On August 19, 1989, 
 
            claimant reported increased pain in his cervical spine and 
 
            into the arm.  Claimant, on August 19, 1989, consulted with 
 
            Chad D. Abernathy, M.D., who diagnosed progressive joint 
 
            disease of the cervical spine of an arthritic type (ex. Ia, 
 
            p. 12).  Claimant testified that the cervical pain was a new 
 
            type of pain that he had not experienced before.  The 
 
            medical history documents this fact (ex. Ia, p. 12).  
 
            
 
                 A posterior cervical decompression surgery was 
 
            performed on the C6-7 vertebrae on September 27, 1989 (ex. 
 
            Ia, p. 24).  On November 14, 1989, James R. LaMorgese, M.D., 
 
            opined that the most recent injury was a further aggravation 
 
            of claimant's preexisting condition (ex. Ia, p. 14).  
 
            Claimant was released to return to work for employer on 
 
            January 29, 1990 (ex. Ia, p. 14).  
 
 
 
                 Claimant did return to work for employer and continued 
 
            on with the same duties that he was performing prior to 
 
            August 10, 1989.  No new restrictions were imposed upon 
 
            claimant other than those which had been previously imposed 
 
            for the 1983 injury.  Claimant reported that the majority of 
 
            his arm pain had been corrected by the surgery.  However, 
 
            claimant still experiences neck pain and stated that 
 
            anything he does is more difficult now than before the 
 
            August 1989 injury.  
 
 
 
            
 
 
 

 
            
 
            Page   5
 
            
 
            
 
            
 
                 Claimant reported that he had received massage therapy, 
 
            which in essence a whole body massage therapy, in order to 
 
            alleviate some of his pain.  Claimant testified that he paid 
 
            for these expenses out of his own pocket.  The treating 
 
            physician, Dr. LaMorgese, approved of the massage therapy, 
 
            but did not prescribe it.  
 
            
 
                 Claimant testified that the medical expenses for 
 
            treatment of the cervical spine condition subsequent to 
 
            August 1989, were paid for by the employer's nonoccupational 
 
            group health plan with the exception of certain deductibles.  
 
            Claimant also testified that he had received no payments of 
 
            weekly workers' compensation benefits, but that he had 
 
            received disability payments through employer's 
 
            nonoccupational disability program.  Claimant testified that 
 
            he was able to return to his duties for employer in 1989 
 
            without significant difficulty.  Claimant did report that he 
 
            missed work starting September 15, 1990 through September 
 
            21, 1990, for a total of seven days.  Claimant attributed 
 
            this lost time to the cervical spine difficulties.  
 
 
 
                 Myrna Hartl testified that she has been claimant's wife 
 
            for 34 years.  She has also been an employee of employer for 
 
            about 28 or 29 years.  She stated that subsequent to the 
 
            September 1989 surgery, claimant has experienced difficulty 
 
            with his cervical spine.  She stated that the last surgery 
 
            slowed him down in all of his activities. 
 
            
 
                 Dennis Purcell testified that he has worked for Quaker 
 
            Oats for 26 years.  He has been a production supervisor for 
 
 
 

 
            
 
            Page   6
 
            
 
            
 
            
 
            
 
            22 years with employer.  His duties involve managing the 
 
            production of employees.
 
            
 
                 Purcell testified that he had been claimant's 
 
            supervisor during the time periods in question.  He was 
 
            aware of claimant's cervical spine problems which occurred 
 
            in 1983.  He described claimant as a conscious, steady and 
 
            good worker.  He stated that claimant did not have problems 
 
            with absenteeism.  He stated that at the present time, 
 
            claimant is able to do all jobs assigned to him without 
 
            complaints.  He further testified that the most recent 
 
            surgery has not affected claimant's ability to perform his 
 
            job for employer.  Purcell testified that exhibit KK, a 
 
            video tape, fairly and accurately represents the basic 
 
            components of claimant's job both before and after the 
 
            alleged August 1989 injury.  
 
            
 
                 Erma Mrazek testified that she has been working for 
 
            employer for about 4 1/2 years as supervisor of health and 
 
            benefits.  In that capacity she handles work-related 
 
            injuries on behalf of employer.  She testified that the 
 
            majority of claimant's medical expenses were paid by INA 
 
            Insurance or Prudential.  She stated that there is a $400 
 
            deductible that the employee must pay, but this is offset by 
 
            a $400 expense account that the employee can draw upon to 
 
            pay for assorted medical expenses.  After the $400 
 
            deductible claimant pays 15 percent of covered expenses.  
 
            After the total costs come to about $6,000 to $7,000, the 
 
            insurance pays for 100 percent.
 
 
 
            
 
 
 

 
            
 
            Page   7
 
            
 
            
 
            
 
                 Mrazek testified that the health insurance did not 
 
            cover claimant's full-body massage therapy program.  She 
 
            testified that the massage therapy has physical and 
 
            psychological benefits, but does not heal or cure injuries 
 
            and was not a covered treatment under the health insurance 
 
            program.  She did not recommend massage therapy personally 
 
            or professionally.
 
           
 
                 The first issue concerns liability in the 
 
            review-reopening action entitled file number 735135.  The 
 
            issue is whether claimant's current complaints, which 
 
            originated in August 1989, relate to the June 7, 1983, 
 
            injury and are compensable under that file number.  
 
            
 
                 The evidence concerning the cause of claimant's August 
 
            1989 cervical spine difficulties is confusing.  On one hand 
 
            Dr. Abernathy diagnoses claimant's problem as progressive 
 
            joint disease of the cervical spine of an arthritic type 
 
            (ex. Ia, p. 12).  On the other hand, claimant's history 
 
            given to the medical professionals indicates a new type of 
 
            pain that he had not experienced before (ex. Ia, p. 12).  
 
            Dr. LaMorgese states that the cause of the current problems 
 
            is a further injury of a preexisting condition and is not 
 
            directly related to the previous cervical spine problems 
 
            (ex. Ia, p. 14).  On November 29, 1989, Dr. LaMorgese stated 
 
            that the patient's recurrent cervical pain was related to 
 
            continuing work-related activities (ex. Ia, p. 24).  In the 
 
            same letter, Dr. LaMorgese stated that the current injury is 
 
            an extension of the old injury rather than a new separate 
 
            episode and the problem was causally related to previous 
 
 
 

 
            
 
            Page   8
 
            
 
            
 
            
 
            
 
            neck problems (ex. 1a, p. 24).  
 
            
 
                 The above mentioned medical reports could be 
 
            interpreted in several different ways.  The record is clear 
 
            that claimant had a preexisting work-related injury to the 
 
            cervical spine on June 7, 1983, which resulted in C5-6 and 
 
            C6-7 discectomies.  It is also apparent from the record that 
 
            claimant continued working for employer subsequent to his 
 
            discharge from care for the June 1983 injury.  
 
            
 
                 Upon considering all the evidence received, it is found 
 
            that the proceeding is properly one in arbitration for a new 
 
            injury rather than review-reopening in that the medical 
 
            treatment, surgery and disability, are attributable to an 
 
            aggravation of a preexisting condition rather than the mere 
 
            outgrowth of the original injury.  Dr. LaMorgese's 
 
            statements that the patient's recurrent pain is related to 
 
            continuing work-related activities and the medical history 
 
            relating a new kind of pain indicate that claimant sustained 
 
            an aggravation of the prior work-related injury.  In the 
 
            case at hand it appears that the aggravation is the current 
 
            cause of the need for medical treatment and the current 
 
            cause of disability as opposed to a naturally occurring 
 
            sequela of the original June 1983 injury.  
 
            
 
                 Between the 1983 injury and August 1989 injury, the 
 
            employer ceased being insured and became self-insured.  
 
            Having found that the August 1989 cervical spine complaints 
 
            are the result of new intervening factors, it follows that 
 
            defendant Ideal Mutual Insurance Company, by Iowa Insurance 
 
 
 

 
            
 
            Page   9
 
            
 
            
 
            
 
            
 
            Guaranty Association, is not liable for any workers' 
 
            compensation benefits in this case.  Claimant shall take 
 
            nothing from the review-reopening in file number 735135 as 
 
            he has failed to prove by a preponderance of the evidence 
 
            that the current cervical spine problems are causally 
 
            connected to the June 7, 1983, cervical spine injury.  
 
            
 
                 Claimant has also filed a petition in arbitration under 
 
            file number 931120 alleging that a work-related injury 
 
            occurred on August 10, 1989.  The first issue to be decided 
 
            is whether claimant sustained an injury on August 10, 1989, 
 
            arising out of and in the course of employment with the 
 
            self-insured employer Quaker Oats Company.  Defendant Quaker 
 
            Oats contends that claimant's allegation of an injury should 
 
            fail as he could point to no specific incident which caused 
 
            the injury.  Claimant counters by arguing that the most 
 
            recent cervical spine problems are the result of cumulative 
 
            or repetitive injury.
 
            
 
                 Claimant's job for employer was called the instant oats 
 
            line operator.  He started this job in February 1983 (ex. 
 
            II, p. 15).  A description of the instant oats line operator 
 
            duties is set forth in exhibit II, page 16.  The actual job 
 
            duties are also set forth in the video tape marked and 
 
            entered as exhibit KK.  Claimant described his job duties as 
 
            requiring lifting, pushing, pulling, bending, stooping and 
 
            reaching.  Claimant was required to lift boxes of cartons 
 
            that weighed as much as 30 pounds.  Claimant occasionally 
 
            lifted cases of product that weighed 10 to 15 pounds.  
 
 
 
            Claimant would move waste barrels of several different sizes 
 
 
 

 
            
 
            Page  10
 
            
 
            
 
            
 
            
 
            that weighed between 60 and 70 pounds.  He was required to 
 
            move pallets as many as 10 times per day.  Claimant also had 
 
            responsibility for doing maintenance on machines when they 
 
            became jammed by boxes.  This required claimant to crawl 
 
            into the machine and tear up boxes piece by piece in order 
 
            to clear the jam.  
 
            
 
                 Claimant testified that no accident or injury 
 
            precipitated his cervical spine pain in August 1989.  He 
 
            stated that it was a pain that came on gradually.  
 
            
 
                 It is found that on August 19, 1989, claimant sustained 
 
            an injury arising out of and in the course of employment 
 
            with employer while performing duties as an instant oats 
 
            line operator.  The injury was in the form of an aggravation 
 
            to a preexisting cervical spine condition.  
 
            
 
                 The next issue is whether the August 10, 1989, injury 
 
            resulted in permanent partial disability.  The treating 
 
            physician opined that claimant's permanent partial 
 
            impairment was 18 percent of the body as a whole with 6 
 
            percent attributable to the recent injury to the neck (ex. 
 
            Ia, p. 30).  Dr. LaMorgese had rated claimant's 1983 
 
            cervical spine injury at 12 percent permanent partial 
 
            impairment to the body as a whole (ex. Ia, p. 19).  Dr. 
 
            LaMorgese was the treating physician for the August 1989 
 
            complaints.  He was also the treating physician for the 1983 
 
            cervical spine problem.  His opinion on impairment, with 
 
            respect to the 1989 cervical spine problem, is accepted as 
 
            correct.  It is found that as a result of the August 10, 
 
 
 

 
            
 
            Page  11
 
            
 
            
 
            
 
            
 
            1989, injury to the cervical spine claimant has sustained 
 
            permanent disability.  
 
            
 
                 The parties stipulated that if the injury is found to 
 
            be a cause of disability, that the type of permanent 
 
            disability is industrial disability to the body as a whole.  
 
            Factors to be considered when assessing industrial 
 
            disability include claimant's age, education, experience, 
 
            work restrictions, permanent impairment and employer's offer 
 
            of work.  
 
            
 
                 Claimant, age 54 at the time of injury, completed the 
 
            eighth grade of school and has no additional training 
 
            subsequent to that time.  Claimant's work experience 
 
            consists primarily of farm labor, three years in the 
 
            military and his continuous work for employer since 1956 as 
 
            a laborer.  
 
            
 
                 Claimant has work restrictions limiting him to no 
 
            overtime work as a result of the 1983 cervical spine injury.  
 
            The 1989 aggravation resulted in no new work restrictions.  
 
            Claimant was allowed to return to his former job as an 
 
            instant oats line operator as of January 1990.  He is 
 
            currently physically capable of performing those duties.  He 
 
            receives the same rate of pay as he did prior to the August 
 
            10, 1989 injury.  
 
            
 
                 Claimant's impairment as a result of the August 10, 
 
            1989, aggravation was rated at 6 percent to the body as a 
 
            whole.  Contrary opinions of impairment were not offered.  
 
 
 

 
            
 
            Page  12
 
            
 
            
 
            
 
 
 
                 In this case, the employer, in good faith, offered 
 
            claimant his old job back.  Claimant accepted the offer of 
 
            employment and has worked continuously since January 1990 
 
            with the exception of one week of absence which claimant 
 
            attributes to his cervical spine injury.  
 
            
 
                 Having considered all of the material factors, it is 
 
            found that claimant sustained 6 percent industrial 
 
            disability as a result of the August 10, 1989, aggravation 
 
            injury of the cervical spine.  It should be noted that the 
 
            preexisting industrial disability is revealed in the 
 
            agreement for settlement marked exhibit AA.  The 6 percent 
 
            industrial disability is the excess industrial disability 
 
            over and above that which claimant had sustained in the June 
 
            1983 injury.  In other words, the 6 percent industrial 
 
            disability is the amount attributable to the August 10, 
 
            1989, aggravation injury alone and of itself.  
 
            
 
                 Having found that the August 10, 1989, aggravation was 
 
            a cause of permanent disability, it follows that the lost 
 
            time should be classified as healing period.  
 
            
 
                 The next issue is whether the alleged injury of August 
 
            10, 1989, is a cause of healing period and the extent 
 
            thereof.  Claimant testified that he first lost time from 
 
            the job on August 11, 1989, as a result of the August 10, 
 
            1989 injury.  The medical records substantiate that claimant 
 
            began receiving treatment for the injury on August 10, 1989 
 
            (ex. Ia, p. 12).  Claimant was then off work continuously 
 
 
 

 
            
 
            Page  13
 
            
 
            
 
            
 
            until being released by Dr. LaMorgese on January 29, 1990.  
 
            During that period of lost time, the medical records reveal 
 
            that claimant was under treatment for the cervical spine 
 
            condition (ex. Ia, pp. 12-14).  During the period in 
 
            question claimant did receive a cervical spine surgery (ex. 
 
            Ia, p. 24).  It is found that claimant's healing period 
 
            began August 11, 1989, and continued through January 29, 
 
            1990 (ex. Ia, p. 14).  It is also found that the period of 
 
            lost time is causally related to the August 10, 1989, 
 
            cervical spine injury as demonstrated by the medical records 
 
            and claimant's testimony.  The medical records clearly 
 
            reveal that from August 11, 1989 through January 29, 1990, 
 
            claimant was under the continuous care of medical providers 
 
            for treatment of the cervical spine condition.  Claimant's 
 
            release to return to work by the treating physician on 
 
            January 29, 1990, ends the healing period.  
 
            
 
                 Claimant also alleges entitlement to healing period 
 
            beginning September 15, 1990 through September 21, 1990.  It 
 
            is found that claimant has failed to prove entitlement to 
 
            healing period during that time for the reason that no 
 
            causal connection to the August 10, 1989, injury has been 
 
            shown.  Claimant's testimony that he was off work during 
 
            that period of time is not substantiated by sufficient 
 
            medical evidence to prove by a preponderance of the evidence 
 
            that the disability was causally connected to the August 10, 
 
            1989 injury.  In other words, claimant failed to present an 
 
            authorization taking him off work during that period which 
 
            linked the lost time to the August 10, 1989 injury.  Absent 
 
            such an off-work authorization, claimant's request for the 
 
 
 

 
            
 
            Page  14
 
            
 
            
 
            
 
            additional week of healing period must fail.  
 
            
 
                 The next issue concerns the commencement date for 
 
            payment of permanent partial disability.  Such benefits 
 
            begin at the end of healing period.  Having found that the 
 
            healing period ended on January 29, 1990, it follows that 
 
            permanent partial disability payments must begin on January 
 
            30, 1990.  
 
            
 
                 The final issue concerns claimant's entitlement to Iowa 
 
            Code section 85.27 benefits.  Since claimant has established 
 
            liability on the part of self-insured employer Quaker Oats 
 
            Company, he is entitled to payment of reasonable and 
 
            necessary medical benefits which are causally related to the 
 
            August 10, 1989, cervical spine injury.
 
            
 
                 However, the facts of this case present certain 
 
            subissues.  The first question concerns the compensability 
 
            of claimant's massage therapy expenditures.  Claimant 
 
            testified that he was receiving massage therapy in order to 
 
            alleviate pain.  However, the fact was not controverted that 
 
            such massage therapy was not prescribed by a physician.  It 
 
            is found that the therapeutic massage expenses, shown in 
 
            plaintiff's exhibit 1, are not reasonable and necessary 
 
            medical treatment as contemplated by Iowa Code section 85.27 
 
            for the reason that they were not prescribed by a treating 
 
            physician.  Claimant has failed to prove entitlement to 
 
            reimbursement for the expenses incurred with Soigneur Body 
 
            Therapy and any associated mileage expenses.
 
 
 
            
 
 
 

 
            
 
            Page  15
 
            
 
            
 
            
 
            
 
                 The next issue concerns claimant's request for direct 
 
            reimbursement for medical expenses.  Claimant testified that 
 
            he had paid only a portion of his medical expenses out of 
 
            his own pocket.  The majority of the expenses were paid for 
 
            by employer's group health insurance carrier.  Claimant has 
 
            proven entitlement to reimbursement for medical expenses 
 
            related the August 10, 1989, cervical spine injury.  All of 
 
            the expenses presented, with the exception of those listed 
 
            in exhibit 1, are causally related to the August 10, 1989, 
 
            injury and are compensable.  However, claimant is only 
 
            entitled to receive payment direct from employer for those 
 
            expenses which were paid for out of his own pocket.  
 
            Employer is directly responsible to the third parties in 
 
            order to satisfy any other outstanding medical expenses.  
 
            Therefore, employer must access its health insurance records 
 
            in order to determine the exact amount of money expended by 
 
            claimant in order to satisfy deductibles on the medical 
 
            expenses in question.  The exact amount of out-of-pocket 
 
            expense incurred by claimant is to be reimbursed direct to 
 
            claimant.  All other unpaid work-related medical expenses 
 
            are to be paid by employer direct to the third party 
 
            providing such services.  
 
            
 
                 It should be noted that at the time of hearing, 
 
            claimant was unable to specify the exact amount of 
 
            out-of-pocket medical expense that he incurred for the 
 
            August 10, 1989, injury.  The commission will not speculate 
 
            as to the amount of medical expenses to be reimbursed to a 
 
            claimant, nor will the defendant be unjustly enriched due to 
 
            claimant's failure to specify an exact amount.  The parties 
 
 
 

 
            
 
            Page  16
 
            
 
            
 
            
 
            
 
            are directed to work together the determine the actual 
 
            amount of out-of-pocket expenses through a review of the 
 
            insurance records in order to satisfy the medical 
 
            obligations.  
 
            
 
                 The next issue concerning medical expenses concerns 
 
            claimant's transportation costs shown in exhibit VIb.  
 
            Claimant lists costs for transportation related to trips to 
 
            doctors and pharmacies.  Iowa Code section 85.27 allows 
 
            reasonable and necessary transportation expenses incurred 
 
            for such services.  It is found that claimant has proven 
 
            entitlement to reimbursement for transportation expenses 
 
            listed in VIb.  The transportation expenses in exhibit VIb 
 
            relate directly to the August 10, 1989, cervical spine 
 
            injury.
 
            
 
                                CONCLUSIONS OF LAW
 
            
 
                 When a worker sustains an injury, later sustains 
 
            another injury, and subsequently seeks to reopen an award 
 
            predicated on the first injury, he or she must prove one of 
 
            two things: (a) that the disability for which he or she 
 
            seeks additional compensation was proximately caused by the 
 
            first injury, or (b) that the second injury (and ensuing 
 
            disability) was proximately caused by the first injury.  
 
            DeShaw v. Energy Manufacturing Company, 192 N.W.2d 777, 780 
 
            (Iowa 1971). 
 
            
 
                 Claimant has failed to prove by a preponderance of the 
 
            evidence that the disability for which he seeks additional 
 
 
 

 
            
 
            Page  17
 
            
 
            
 
            
 
            
 
            compensation was proximately caused by the injury of June 7, 
 
            1983.  Claimant shall take nothing from file number 735135.
 
            
 
                 While a claimant is not entitled to compensation for 
 
            the results of a preexisting injury or disease, the mere 
 
            existence at the time of a subsequent injury is not a 
 
            defense.  Rose v. John Deere Ottumwa Works, 247 Iowa 900, 
 
            908, 76 N.W.2d 756, 760-61 (1956).  If the claimant had a 
 
            preexisting condition or disability that is aggravated, 
 
            accelerated, worsened or lighted up so that it results in 
 
            disability, claimant is entitled to recover.  Nicks v. 
 
            Davenport Produce Co., 254 Iowa 130, 115 N.W.2d 812, 815 
 
            (1962).
 
            
 
                 When an aggravation occurs in the performance of an 
 
            employer's work and a causal connection is established, 
 
            claimant may recover to the extent of the impairment.  
 
            Ziegler v. United States Gypsum Co., 252 Iowa 613, 620, 106 
 
            N.W.2d 591, 595 (1960).
 
            
 
                 Claimant has proven by a preponderance of the evidence 
 
            that he sustained an injury on August 10, 1989, to his 
 
            cervical spine, arising out of and in the course of 
 
            employment with employer.  The injury was an aggravation to 
 
            a preexisting cervical spine condition caused by the 
 
            repetitive nature of claimant's work as an operator on the 
 
            instant oats line.
 
            
 
                 An employee is not entitled to recover for the results 
 
            of a preexisting injury or disease but can recover for an 
 
 
 

 
            
 
            Page  18
 
            
 
            
 
            
 
            
 
            aggravation thereof which resulted in the disability found 
 
            to exist.  Olson v. Goodyear Service Stores, 255 Iowa 1112, 
 
            125 N.W.2d 251 (1963); Yeager v. Firestone Tire & Rubber 
 
            Co., 253 Iowa 369, 112 N.W.2d 299 (1961); Ziegler, 252 Iowa 
 
            613, 106 N.W.2d 591 (1960).  See also Barz v. Oler, 257 Iowa 
 
            508, 133 N.W.2d 704 (1965); Almquist v. Shenandoah 
 
            Nurseries, 218 Iowa 724, 254 N.W. 35 (1934).
 
            
 
                 Functional impairment is an element to be considered in 
 
            determining industrial disability which is the reduction of 
 
            earning capacity, but consideration must also be given to 
 
            the injured employee's age, education, qualifications, expe
 
            rience and inability to engage in employment for which he is 
 
            fitted.  Olson, 255 Iowa 1112, 125 N.W.2d 251 (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
 
 
 

 
            
 
            Page  19
 
            
 
            
 
            
 
            
 
            ability include the employee's medical condition prior to 
 
            the injury, immediately after the injury, and presently; the 
 
            situs of the injury, its severity and the length of healing 
 
            period; the work experience of the employee prior to the 
 
            injury, after the injury and potential for rehabilitation; 
 
            the employee's qualifications intellectually, emotionally 
 
            and physically; earnings prior and subsequent to the injury; 
 
            age; education; motivation; functional impairment as a 
 
            result of the injury; and inability because of the injury to 
 
            engage in employment for which the employee is fitted.  Loss 
 
            of earnings caused by a job transfer for reasons related to 
 
            the injury is also relevant.  These are matters which the 
 
            finder of fact considers collectively in arriving at the 
 
            determination of the degree of industrial disability.
 
            
 
                 There are no weighting guidelines that indicate how 
 
            each of the factors are to be considered.  There are no 
 
            guidelines which give, for example, age a weighted value of 
 
            ten percent of the total value, education a value of fifteen 
 
            percent of total, motivation - five percent; work experience 
 
            - thirty percent, etc.  Neither does a rating of functional 
 
            impairment directly correlate to a degree of industrial 
 
            disability to the body as a whole.  In other words, there 
 
            are no formulae which can be applied and then added up to 
 
            determine the degree of industrial disability.  It therefore 
 
            becomes necessary for the deputy or commissioner to draw 
 
            upon prior experience, general and specialized knowledge to 
 
            make the finding with regard to degree of industrial dis
 
            ability.   See Peterson v. Truck Haven Cafe, Inc., (Appeal 
 
            Decision, February 28, 1985); Christensen v. Hagen, Inc., 
 
 
 

 
            
 
            Page  20
 
            
 
            
 
            
 
            
 
            (Appeal Decision, March 26, l985).
 
            
 
                 Claimant has proven that the August 10, 1989, injury is 
 
            a cause of permanent disability based upon Dr. LaMorgese's 
 
            record and claimant's testimony.  Upon considering all the 
 
            material factors, it is found that the evidence in this case 
 
            supports an award of 6 percent permanent partial disability 
 
            which entitles the claimant to recover 30 weeks of benefits 
 
            under Iowa Code section 85.34(2)(u) as a result of the 
 
            aggravation injury to his cervical spine.  
 
            
 
                 Section 85.34(1), Code of Iowa, provides that healing 
 
            period benefits are payable to an injured worker who has 
 
            suffered permanent partial disability until (1) he has 
 
            returned to work; (2) is medically capable of returning to 
 
            substantially similar employment; or (3) has achieved 
 
            maximum medical recovery.  The industrial commissioner has 
 
            recognized that healing period benefits can be interrupted 
 
            or intermittent.  Willis v. Lehigh Portland Cement Company, 
 
            Vol. 2-1, State of Iowa Industrial Commissioner Decisions, 
 
            485 (1984).
 
            
 
                 Claimant has proven by a preponderance of the evidence 
 
            the causal connection and entitlement to healing period 
 
            benefits as a result of the August 10, 1989, injury.  
 
            Healing period benefits begin August 11, 1989 and continue 
 
            through January 29, 1990.  
 
            
 
                 Iowa Code section 85.34(2) provides that compensation 
 
            for permanent partial disability shall begin at the 
 
 
 

 
            
 
            Page  21
 
            
 
            
 
            
 
            
 
            termination of the healing period.  Iowa Code section 
 
            85.34(2)(u) provides that compensation for a nonscheduled or 
 
            body as a whole injury shall be paid in relation to 500 
 
            weeks and the disability bears to the body as a whole.
 
            
 
                 Having found that the healing period benefits end on 
 
            January 29, 1990, it follows that claimant has carried his 
 
            burden in proving January 30, 1990, as the commencement date 
 
            for permanent partial disability benefits.  
 
            
 
                 The employer, for all injuries compensable under 
 
            chapter 85 or chapter 85A, shall furnish reasonable 
 
            surgical, medical, dental, osteopathic, chiropractic, 
 
            podiatric, physical rehabilitation, nursing, ambulance and 
 
            hospital services and supplies; therefore, and shall allow 
 
            reasonable necessary transportation expenses incurred for 
 
            such services.  The employer has the right to choose the 
 
            provider of care.  Iowa Code section 85.27.
 
            
 
                  "Claimant is not entitled to reimbursement for medical 
 
            bills unless he shows that he paid them from his own funds."  
 
            See Caylor v. Employers Mut. Cas. Co., 337 N.W.2d 890 
 
            (Iowa App. 1983).
 
            
 
                 Claimant has proven entitlement to reimbursement for 
 
            medical expenses causally related to the August 10, 1989, 
 
            cervical spine injury.  Claimant is entitled to direct 
 
            reimbursement for medical bills that he paid from his own 
 
            funds.  The employer is responsible for direct payment for 
 
            all other related medical expenses.  
 
 
 

 
            
 
            Page  22
 
            
 
            
 
            
 
 
 
                 Claimant has failed to prove by a preponderance of the 
 
            evidence that the massage therapy expenses are reasonable 
 
            and necessary medical expenses under Iowa Code section 
 
            85.27.
 
            
 
                 Claimant has proven by a preponderance of the evidence 
 
            entitlement to reimbursement for his transportation expenses 
 
            incurred in relation to the reasonable and necessary medical 
 
            treatment related to the August 10, 1989, injury.  Claimant 
 
            is not entitled to reimbursement for transportation expenses 
 
            incurred when involved in the massage therapy as shown in 
 
            plaintiff's exhibit 1 as said expenses are not compensable 
 
            under Iowa Code section 85.27.
 
            
 
                 A deputy commissioner is without jurisdiction to 
 
            consider an issue, not listed as an issue on the hearing 
 
            assignment order.  See Joseph Presswood v. Iowa Beef 
 
            Processors, (Appeal Decision filed November 14, 1986) 
 
            holding an issue not noted on the hearing assignment order 
 
            is an issue that is waived.
 
            
 
                 At the time of hearing, employer asserted Iowa Code 
 
            section 85.38(2) credit as an issue.  Claimant objected 
 
            stating that the issue had only been raised on the day of 
 
            hearing.  Iowa Code section 85.38(2) was not considered a 
 
            hearing issue for the reason that it was not raised in the 
 
            hearing assignment order filed on September 10, 1990.  
 
            
 
                                      ORDER
 
 
 

 
            
 
            Page  23
 
            
 
            
 
            
 
 
 
                 IT IS, THEREFORE, ORDERED:
 
            
 
                 Defendant Quaker Oats Company, self-insured, is to pay 
 
            claimant healing period benefits at the rate of three 
 
            hundred fifty and 31/100 dollars ($350.31) per week for the 
 
            period August 11, 1989 through January 29, 1990, in file 
 
            number 931120.
 
            
 
                 Defendant Quaker Oats Company, self-insured, is to pay 
 
            claimant thirty (30) weeks of permanent partial disability 
 
            benefits at the rate of three hundred fifty and 31/100 
 
            dollars ($350.31) per week commencing January 30, 1990, in 
 
            file number 931120.
 
            
 
                 It if further ordered that defendant Quaker Oats 
 
            Company, self-insured, shall pay for claimant's reasonable 
 
            and necessary medical and transportation expenses as 
 
            outlined in the opinion, in file number 931120.  Claimant 
 
            shall be reimbursed for medical bills that he has paid from 
 
            his own funds, in file number 931120.  
 
            
 
                 It is further ordered that claimant take nothing from 
 
            file number 735135.
 
            
 
                 It is further ordered that defendants shall receive 
 
            credit for benefits previously paid.
 
            
 
                 It is further ordered that all accrued benefits are to 
 
            be paid in a lump sum.
 
 
 

 
            
 
            Page  24
 
            
 
            
 
            
 
 
 
                 It is further ordered that interest will accrue 
 
            pursuant to Iowa Code section 85.30. 
 
            
 
                 It is further ordered that the costs of this action are 
 
            assessed against defendant Quaker Oats, self-insured, 
 
            pursuant to rule 343 IAC 4.33.
 
            
 
                 It is further ordered that defendant Quaker Oats, 
 
            self-insured, file claim activity reports as requested by 
 
            this agency pursuant to rule 343 IAC 3.1.
 
            Signed and filed this ____ day of March, 1991.
 
 
 
            
 
            
 
                                          ______________________________
 
                                          MARLON D. MORMANN
 

 
            
 
            Page  25
 
            
 
            
 
            
 
            
 
                                          DEPUTY INDUSTRIAL COMMISSIONER    
 
            
 
            Copies to:
 
            
 
            Mr. Robert Rush
 
            Attorney at Law
 
            526 2nd Ave SE
 
            PO Box 2457
 
            Cedar Rapids, Iowa  52406
 
            
 
            Mr. John Bickel
 
            Mr. Ralph W. Gearhart
 
            Attorneys at Law
 
            500 MNB Bldg.
 
            PO Box 2107
 
            Cedar Rapids, Iowa  52406
 
            
 
            Mr. William L. Dawe
 
            Attorney at Law
 
            801 Grand Ave, STE 3700
 
            Des Moines, Iowa  
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                             4000.2
 
                                             Filed October 20, 1992
 
                                             LARRY P. WALSHIRE
 
   
 
                    BEFORE THE IOWA INDUSTRIAL COMMISSIONER            
 
            ____________________________________________________________
 
            ALBERT J. HARTL, SR.,    
 
                                              File No. 931120
 
                 Claimant, 
 
                                          A R B I T R A T I O N
 
            vs.       
 
                                              D E C I S I O N
 
            QUAKER OATS COMPANY,     
 
                      
 
                 Employer, 
 
                 Defendant.     
 
            ___________________________________________________________
 
            
 
            
 
            4000.2
 
            Held that in the recent case of Boylan v. American Motorists 
 
            Ins. Co., No. 250/91-1520, Iowa Supreme Court filed 
 
            September 23, 1992, the court recognized not only bad faith 
 
            but also negligent conduct as grounds to invoke the penalty 
 
            provisions of section 86.13.
 
            Found unreasonable was employer's denial of the claim on the 
 
            basis of its expressed desire to make claimant wait as long 
 
            as possible for his money regardless of the medical evidence 
 
            and to force claimant into litigation to soften a claimant 
 
            up for settlement.
 
            
 
 
         
 
         
 
         
 
         
 
         
 
                                52905 51100 51802 51803 52206 52500 
 
                                Filed April 9, 1991
 
                                Marlon D. Mormann
 
         
 
                BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         ____________________________________________________________
 
                                       :
 
         ALBERT J. HARTL, SR.,         :
 
                                       :
 
              Claimant,                :
 
                                       :
 
         vs.                           :
 
                                       : 
 
         QUAKER OATS COMPANY,          :
 
                                       :  File Nos.  735135 & 931120
 
              Self-Insured             :
 
              Employer,                :
 
                                       :     A R B I T R A T I O N   and 
 
         and                           :
 
                                       :   R E V I E W - R E O P E N I N G
 
         QUAKER OATS COMPANY,          :      
 
                                       :          D E C I S I O N
 
              Employer,                :
 
                                       :
 
         and                           :
 
                                       :
 
         IDEAL MUTUAL INSURANCE CO. by :
 
         IOWA INSURANCE GUARANTY ASSOC.:
 
                                       :
 
              Insurance Carrier,       :
 
              Defendants.              :
 
         ___________________________________________________________
 
         
 
         52905
 
         Claimant failed to prove that his present cervical spine 
 
         condition was related to his 1983 injury and claimant took 
 
         nothing in file number 735135.
 
         
 
         51100 51802 51803 52206 52500
 
         Claimant established an aggravation injury to the cervical spine 
 
         which resulted in a cervical disc surgery.  Claimant entitled to 
 
         healing period and medical benefits.
 
         However, claimant denied reimbursement for whole body massage as 
 
         no showing was made that the massages were prescribed by a 
 
         physician.
 
         Claimant, age 54, with eighth grade education, sustained a 
 
         cervical aggravation injury with 6 percent additional impairment 
 
         and not increased work restrictions.  Claimant returned to his 
 
         old job with employer with the same rate of pay.  Claimant 
 
         awarded 6 percent additional industrial disability over and above 
 
         the preexisting permanent partial disability.