BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
            
 
            LARRY G. REEDY,       
 
                        
 
                 Claimant,                   File No. 968752/940673
 
                        
 
            vs.                                  A P P E A L
 
                        
 
            WCI, LAUNDRY DIVISION,              D E C I S I O N
 
                        
 
                 Employer,   
 
                 Self-Insured,    
 
                 Defendant.       
 
            ____________________________________________________________
 
            The record, including the transcript of the hearing before 
 
            the deputy and all exhibits admitted into the record, has 
 
            been reviewed de novo on appeal.
 
            
 
                                     ISSUES
 
            
 
            The issues on appeal and cross-appeal are whether claimant 
 
            failed to disclose to the employer the nature of his prior 
 
            back condition; the extent of claimant's industrial 
 
            disability, if any, resulting from work injuries on February 
 
            15, 1990 and June 13, 1990; and whether claimant is barred 
 
            from receiving benefits by reason of alleged 
 
            misrepresentations on his application for employment with 
 
            defendant employer.
 
            
 
                               FINDINGS OF FACT
 
            
 
            The findings of fact contained in the proposed agency 
 
            decision filed April 17, 1992 are adopted as set forth 
 
            below.  Segments designated by asterisks (*****) indicate 
 
            portions of the language from the proposed agency decision 
 
            that have been intentionally deleted and do not form a part 
 
            of this final agency decision.  Segments designated by 
 
            brackets ([ ]) indicate language that is in addition to the 
 
            language of the proposed agency decision.
 
            *****
 
            [On January 22, 1990 Larry Reedy (hereinafter claimant) 
 
            applied for work with WCI, Laundry Division (hereinafter 
 
            employer or WCI).  Claimant's application form indicated 
 
            that he had drawn workers' compensation in 1984 when he 
 
            cracked a rib and returned to work in approximately four 
 
            weeks.  (Joint Exhibit 2, page 1)
 
            
 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            A medical information form from claimant completed January 
 
            24, 1990 indicated that claimant had been injured in Vietnam 
 
            in 1968.  The only surgical operations listed were 
 
            "abdominal area (Viet Nam) chest, back."  (Jt. Ex. 2, p. 42)  
 
            The only listing of hospitalizations were "Viet Nam 
 
            1968-1969."  (Jt. Ex. 2, p. 43)  The physical examination 
 
            indicated many surgical scars from shrapnel wounds in the 
 
            abdomen.  (Jt. Ex. 2, p. 44)  Joseph X. Latella, D.O., 
 
            conducted a preemployment physical of claimant.  Dr. 
 
            Latella, testified he did not look at claimant's back but he 
 
            did examine claimant's back by having claimant do certain 
 
            activities.  (Jt. Ex. 19, p. 32)  Claimant testified that he 
 
            indicated in the application forms that he responded he did 
 
            not have back trouble or back pain/injury because he wasn't 
 
            having any problems.  (Transcript, p. 62)  He also testified 
 
            that Dr. Latella asked about the scar on his back and that 
 
            he was unclothed except for his undershorts when Dr. Latella 
 
            did his examination.  (Tr., p. 66)  Dr. Latella testified 
 
            that he did not observe the scar on claimant's low back at 
 
            the time of the preemployment physical.  (Jt. Ex. 19, pp. 
 
            29-30)  He also testified that claimant told him that 
 
            surgical operations on the back claimant reported on the 
 
            written form were from shrapnel wounds.  As will be 
 
            discussed more thoroughly below, claimant had extensive back 
 
            problems before his job with this employer.
 
            
 
            It must be concluded from this evidence that claimant 
 
            intentionally did not report his back problems and surgery 
 
            in 1983 and 1984 in the preemployment process.  Claimant 
 
            argues that the failure to report these problems were either 
 
            due to oversight or because he understood the written forms 
 
            to mean current problems.  Neither of these explanation is 
 
            plausible.  One does not ordinarily forget about something 
 
            as significant as back surgery, especially when specifically 
 
            asked.  Also, if claimant believed the forms only applied to 
 
            current problems it is unexplained why he would have listed 
 
            the surgical procedures for shrapnel wounds in 1968. 
 
            Claimant began working for the employer on or about February 
 
            5, 1990.]  On or about February 15, 1990 and again on June 
 
            13, 1990, claimant injured his low back while lifting at 
 
            work.  Defendant admits to the second injury.  These 
 
            injuries arose out of and in the course of his employment at 
 
            WCI.  The first involved an attempt to lift a piece of 
 
            equipment weighing almost 100 pounds and the second while 
 
            repetitively lifting 20-30 pound boxes.  In each case, 
 
            claimant felt a tearing or ripping sensation and the 
 
            immediate onset of low back pain and numbness in his legs.
 
            Claimant was laid off briefly after the first injury until 
 
            March 5, 1990, at which time he returned to work and was 
 
            immediately sent home.  His doctor at the time released him 
 
            on March 16, 1990, with no restrictions.  After the second 
 
            injury, claimant did not recover as fast and was eventually 
 
            referred by the company doctor to claimant's former 
 
            neurosurgeon, Thomas Carlstrom, M.D.  [Claimant's employment 
 
            with WCI was terminated effective June 21, 1990 because "a 
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            number of facts pertinent to the hiring decision were 
 
            deleted, falsified and/or misrepresented" during the 
 
            preemployment process.  (Jt. Ex. 2, p. 2)]  Dr. Carlstrom 
 
            treated claimant conservatively until December 7, 1990, at 
 
            which time claimant reached maximum healing according to Dr. 
 
            Carlstrom.  Dr. Carlstrom's views are uncontroverted in the 
 
            record.
 
            ***** Claimant had extensive back problems before his job at 
 
            WCI.  In 1981 and 1982, claimant suffered several low back 
 
            injuries while working for a lumber company which required 
 
            time off work and medical treatment.  The last injury 
 
            involving a fall necessitated low back surgery.  Dr. 
 
            Carlstrom rated claimant's impairment in 1984 from these 
 
            injuries as consisting of a 10 percent permanent partial 
 
            impairment to the body as a whole with permanent work 
 
            restrictions against lifting over 50 pounds or 20-30 pounds 
 
            repetitively.  Claimant eventually quit his lumber company 
 
            job upon the advice of Dr. Carlstrom and began working with 
 
            his father in a saw sharpening business.  This business, 
 
            which is claimant's only employment at the present time, 
 
            consists of not only sharpening saw blades, but soldering 
 
            carbide tips onto steel saw blades.
 
            
 
            After his release by Dr. Carlstrom in 1984, claimant did not 
 
            seek medical attention until November 1987 when he suffered 
 
            back pain after lifting a large TV set.  This only lasted a 
 
            few days according to the available medical records.  
 
            Claimant did not seek treatment again until after the 1990 
 
            injuries herein.
 
            
 
            Claimant states that he recovered from the 1984 disability 
 
            and was able to perform heavy lifting in the saw sharpening 
 
            business.  He also successfully drove and unloaded trucks in 
 
            employment for six months before his employment at WCI.  
 
            However, it is readily apparent that he did not fully 
 
            recover.  Dr. Carlstrom today believes that he suffers from 
 
            the same permanent impairment caused by the injuries at the 
 
            lumber company.  Although he may have been able to perform 
 
            occasional heavy lifting in his employment before WCI, after 
 
            only 10 days of production work at WCI, he began having 
 
            problems.  By his own testimony, claimant continued to have 
 
            problems until he left after the second injury in June 1990.  
 
            Claimant's friend, who testified at hearing, stated that he 
 
            observed no problems immediately before the WCI employment.  
 
            However, he was observing claimant in a relaxed and 
 
            recreational mode; not while he was performing heavy, 
 
            repetitive production work.
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
            Despite the prior impairment from the injuries suffered at 
 
            the lumber company, it must be found that the work injuries 
 
            at WCI, as found herein, were a cause of additional 
 
            permanent partial impairment and additional work restric
 
            tions.  *****  [Dr. Carlstrom treated claimant for both the 
 
            injuries in 1983-1984 and in 1990.  Dr. Carlstrom clearly 
 
            indicated that claimant had a permanent impairment as a 
 
            result of his injury with WCI.  It is however unclear 
 
            whether Dr. Carlstrom felt that the injuries in 1990 
 
            resulted in an additional or new functional impairment.  
 
            (Jt. Ex. N, pp. 114, 117; Jt. Ex. 18, p. 41, 43 and 44)  
 
            However, Dr. Carlstrom clearly indicated that claimant's 
 
            restrictions had changed as a result of the injuries with 
 
            WCI.  The restrictions in 1990 were 15-20 pounds repetitive 
 
            lifting and 30 pounds maximum.  (Jt. Ex. 18, p. 14)]
 
            Claimant is 42 years of age with only a ninth grade 
 
            education but has a GED.  He has extensive experience in 
 
            truck driving, private investigation work, and management 
 
            experience.  Claimant's past employment consists primarily 
 
            of jobs requiring heavy work.  His earnings after leaving 
 
            the lumber company in 1984 and before returning to trucking 
 
            driving in the late 1980's was extremely low.  *****
 
            Admittedly, claimant's work restrictions now imposed by Dr. 
 
            Carlstrom would prevent a return to work at WCI or most 
 
            other types of production work.  However, the work injuries 
 
            at WCI only added to an already significant impairment and 
 
            loss of earning capacity arising from the lumber company 
 
            injuries.  *****  Dr. Carlstrom clearly states that his 
 
            prior condition made claimant susceptible to these injuries.
 
            Although the work injuries herein only mildly added to 
 
            claimant's disability, it still must be compensated.  
 
            Therefore, it is found that the work injuries of February 
 
            15, 1990 and June 13, 1990 were a cause of a five percent 
 
            loss of earning capacity.
 
            
 
                                 CONCLUSIONS OF LAW
 
            
 
            The conclusions of law contained in the proposed agency 
 
            decision filed April 17, 1992 are adopted as set forth 
 
            below.  Segments designated by asterisks (*****) indicate 
 
            portions of the language from the proposed agency decision 
 
            that have been intentionally deleted and do not form a part 
 
            of this final agency decision.  Segments designated by 
 
            brackets ([ ]) indicate language that is in addition to the 
 
            language of the proposed agency decision.
 
              
 
              I. Claimant has the burden of proving by a preponderance 
 
            of the evidence that he received injuries arising out of and 
 
            in the course of employment.  The words "out of" refer to 
 
            the cause or source of the injury.  The words "in the course 
 
            of" refer to the time and place and circumstances of the 
 
            injury.  See generally, Cedar Rapids Community Sch. v. Cady, 
 
            278 N.W.2d 298 (Iowa 1979); Crowe v. DeSoto Consol. Sch. 
 
            Dist., 246 Iowa 402, 68 N.W.2d 63 (1955).  An employer takes 
 
            an employee subject to any active or dormant health 
 
            impairments.  A work connected injury which more than 
 
            slightly aggravates the condition is considered to be a per
 

 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
            sonal injury.  Ziegler v. U.S. Gypsum, 252 Iowa 613, 620, 
 
            106 N.W.2d 591 (1961), and cases cited therein.
 
            In the case sub judice, the only contested injury was the 
 
            one claimed in February 1990.  As explained in the Findings 
 
            of Fact, claimant carried his burden of proof and 
 
            established this injury.
 
            
 
            Defendant asserts an affirmative defense that claimant is 
 
            barred from workers' compensation benefits by reason of 
 
            claimant's misrepresentations contained in his initial 
 
            application for employment with defendant employer.  As 
 
            authority, defendant cites 1C Larson, Workmen's Compensation 
 
            Law section 47.53 in which Larson describes his view that 
 
            benefits should be denied if the following three factors are 
 
            found to exist:
 
            
 
            (1) The employee must have knowingly and wilfully [sic] made 
 
            a false representation as to his physical condition.  (2) 
 
            The employer must have relied upon the false representation 
 
            and this reliance must have been a substantial factor in the 
 
            hiring.  (3) There must have been a causal connection 
 
            between the false representation and the injury.
 
            In those jurisdictions where the statute has not 
 
            specifically adopted an employee's misrepresentation of 
 
            physical condition as a defense, the Larson rule was judi
 
            cially adopted under theories of mutuality of contract and 
 
            equitable estoppel.  However, Iowa has not adopted this rule 
 
            either by statute or common law.
 
            
 
            This agency has to date rejected such a defense.  Keifer v. 
 
            Swift Independent Packing, File Nos. 713057 & 741318, 
 
            (Appeal Decision dated September 12, 1986, at page 2).  The 
 
            only Iowa Supreme Court case on this issue occurred in 1918 
 
            where the court held that a false statement of age on an 
 
            employment application by a minor was no defense to a 
 
            workers' compensation claim by that minor.  Secklich v. 
 
            Harris-Emery Co. 184 Iowa 1025, 169 N.W. 325 (1918).
 
            As workers' compensation is a creature of statute, the 
 
            statute itself provides the best guidance on this issue.  
 
            Iowa Code section 85.18 states as follows:  "No contract, 
 
            rule, or device whatsoever shall operate to relieve the 
 
            employer, in whole or in part, from any liability created by 
 
            this chapter except as herein provided."
 
            
 
            [While the argument made by defendant that the claimant 
 
            ought to be barred from recovering workers' compensation 
 
            benefits because of misrepresentation in the preemployment 
 
            process may have some attraction, that argument would be 
 
            more appropriately made to the legislature.  Iowa Code 
 
            chapter 85 has not adopted defendant's argument.  The 
 
            language contained in Iowa Code section 85A.7 barring 
 
            recovery for disability from an occupational disease is not 
 
            found in Iowa Code chapter 85.  If the legislature had 
 
            intended to extend the provisions of Iowa Code section 85A.7 
 
            to Iowa Code chapter 85, it would have done so.  It should 
 
            also be remembered that the Iowa Supreme Court has 
 
            consistently held that Iowa workers' compensation law is 
 
            liberally construed in favor of the worker.  See e.g., 
 

 
            
 
            Page   6
 
            
 
            
 
            
 
            
 
            Mortimer v. Fruehauf Corp., ___ N.W.2d ___ (Iowa 1993).]
 
            However, any misleading or false statement in an employment 
 
            application does have a bearing on the credibility of the 
 
            claimant.  Also, if the claimant has been terminated 
 
            subsequent to the work injury due to discovery of any such 
 
            misrepresenta-tions, such a termination would be justified 
 
            and unrelated to the work injury.  Consequently, any lack of 
 
            earnings resulting from such a termination would not 
 
            increase an award of disability benefits as a result of the 
 
            work injury.
 
             
 
             II.  As the claimant has shown that the work injury was a 
 
            cause a permanent physical impairment or limitation upon 
 
            activity involving the body as a whole, the degree of 
 
            permanent disability must be measured pursuant to Iowa Code 
 
            section 85.34(2)(u).  However, unlike scheduled member dis
 
            abilities, the degree of disability under this provision is 
 
            not measured solely by the extent of a functional impairment 
 
            or loss of use of a body member.  A disability to the body 
 
            as a whole or an "industrial disability" is a loss of earn
 
            ing capacity resulting from the work injury.  Diederich v. 
 
            Tri-City Railway Co., 219 Iowa 587, 593, 258 N.W. 899 
 
            (1935).  A physical impairment or restriction on work activ
 
            ity may or may not result in such a loss of earning capac
 
            ity.  Examination of several factors determines the extent 
 
            to which a work injury and a resulting medical condition 
 
            caused an industrial disability.  These factors include the 
 
            employee's medical condition prior to the injury, immedi
 
            ately 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
 
            
 
            
 
            Page   7
 
            
 
            
 
            
 
            
 
            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.  See Peterson v. Truck Haven 
 
            Cafe, Inc. (Appeal Decision, February 28, 1985).
 
            
 
            In the case sub judice, it was found that claimant suffered 
 
            a mild five percent loss of his earning capacity as a result 
 
            of the work injury.  Such a finding entitles claimant to 25 
 
            weeks of permanent partial disability benefits as a matter 
 
            of law under Iowa Code section 85.34(2)(u) which is five 
 
            percent of 500 weeks, the maximum allowable number of weeks 
 
            for an injury to the body as a whole in that subsection.
 
            *****
 
            WHEREFORE, the decision of the deputy is affirmed.
 
            
 
                                      ORDER
 
            
 
            THEREFORE, it is ordered:
 
            
 
            That defendant shall pay to claimant twenty-five (25) weeks 
 
            of permanent partial disability benefits at a rate of one 
 
            hundred ninety-three and 74/l00 dollars ($193.74) per week 
 
            from December 8, 1990.
 
            
 
            That defendant shall pay to claimant healing period benefits 
 
            from June 13, 1990 through December 7, 1990, at the rate of 
 
            one hundred ninety-three and 74/l00 dollars ($193.74) per 
 
            week.
 
            
 
            That defendant shall pay the medical expenses listed in the 
 
            prehearing report.  Claimant shall be reimbursed for any of 
 
            these expenses paid by him.  Otherwise, defendant shall pay 
 
            the provider directly.  
 
            
 
            That defendant shall pay for any and all diagnostic or other 
 
            treatment ordered or recommended by Dr. Carlstrom for 
 
            treatment of claimant's current low back condition.
 
            
 
            That defendant shall pay accrued weekly benefits in a lump 
 
            sum and shall receive credit against this award for all 
 
            benefits previously paid.
 
            
 
            That defendant shall pay interest on weekly benefits awarded 
 
            herein as set forth in Iowa Code section 85.30. 
 
            
 
            That claimant and defendants shall share equally the costs 
 
            of the appeal including transcription of the hearing.  
 
            
 
            That defendant 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.
 
            
 
            That defendant shall file activity reports on the payment of 
 
            this award as requested by this agency pursuant to rule 343 
 
            IAC 3.1.
 
            
 
            Signed and filed this ____ day of August, 1993.
 
            
 
            
 
            
 
            
 
                                      ________________________________
 
                                               BYRON K. ORTON
 
                                         INDUSTRIAL COMMISSIONER
 
            
 
            Copies To:
 

 
            
 
            Page   8
 
            
 
            
 
            
 
            
 
            
 
            Mr. Tito Trevino
 
            Mr. Jerry L. Schnurr, III
 
            Attorneys at Law
 
            801 Carver Building
 
            P O Box 1680
 
            Fort Dodge, Iowa  50501
 
            
 
            Mr. Robert C. Landess
 
            Attorney at Law
 
            2700 Grand Ave.  Ste 111
 
            Des Moines, Iowa 50312
 
            
 
 
            
 
 
 
 
 
                                             1600; 5-1803
 
                                             Filed August 12, 1993
 
                                             Byron K. Orton
 
            
 
                      BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
            
 
            LARRY G. REEDY,       
 
                        
 
                 Claimant,                   File No. 968752/940673
 
                        
 
            vs.                                   A P P E A L
 
                        
 
            WCI, LAUNDRY DIVISION,              D E C I S I O N
 
                        
 
                 Employer,   
 
                 Self-Insured,    
 
                 Defendant.       
 
            ____________________________________________________________
 
           
 
            1600
 
            Defendant's argument that claimant's claim for benefits 
 
            should be barred because of misrepresentation during the 
 
            preemployment process was rejected.  This defense has not 
 
            been adopted in Iowa in either state or case law.  Claimant 
 
            did misrepresent his lower back condition during the 
 
            preemployment process and was terminated from employment for 
 
            doing so.  The defense of misrepresentation is not 
 
            applicable to Iowa Code chapter 85 and is a matter for the 
 
            legislature to consider.
 
            
 
            5-1803
 
            Claimant's work injuries did result in a permanent condition 
 
            with increased restrictions.  It was clear that claimant had 
 
            a loss of earnings capacity prior to employment with 
 
            defendant employer.  Claimant's loss of earnings capacity 
 
            did increase because of the injuries in this case and 
 
            claimant was awarded five percent industrial disability from 
 
            the injuries involved in this case.
 
            
 
 
            
 
            Page   1
 
            
 
            
 
            
 
            
 
            
 
                      before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            LARRY G. REEDY,               :
 
                                          :       File Nos. 968752
 
                 Claimant,                :                 940673
 
                                          :
 
            vs.                           :     A R B I T R A T I O N
 
                                          :
 
            WCI, LAUNDRY DIVISION,        :        D E C I S I O N
 
                                          :
 
                 Employer,                :
 
                 Self-Insured,            :
 
                 Defendant.               :
 
            ___________________________________________________________
 
            
 
            
 
                              STATEMENT OF THE CASE
 
            
 
                 This is a proceeding in arbitration brought by Larry 
 
            Reedy, claimant, against WCI, Laundry Division, employer 
 
            (hereinafter referred to as WCI), a self-insured defendant, 
 
            for workers' compensation benefits as a result of alleged 
 
            injuries on February 15, 1990 and June 13, 1990.  On 
 
            February 26, 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.
 
            
 
                 According to the prehearing report, the parties have 
 
            stipulated to the following matters:
 
            
 
                 1.  An employee-employer relationship existed between 
 
            claimant and WCI at the time of the alleged injuries
 
            
 
                 2.  On June 13, 1990, claimant received an injury aris
 
            ing out of and in the course of employment with WCI.
 
            
 
                 3.  Claimant is seeking temporary total or healing 
 
            period benefits from June 14, 1990 and defendant agreed that 
 
            he was not working from June 14, 1990 through August 3, 
 
            1990.
 
            
 
                 4. If the injury is found to have caused permanent dis
 
            ability, the type of disability is an industrial disability 
 
            to the body as a whole.
 
            
 
                 5.  Claimant was married at the time of the alleged 
 
            injuries.
 
            
 
                 6.  The medical bills submitted by claimant at the 
 
            hearing are causally connected to the medical condition upon 
 
            which the claim herein is based, but that the issue of their 
 
            causal connection to any work injury remains an issue to be 
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            decided herein.
 
            
 
                                      ISSUES
 
            
 
                 The parties submitted the following issues for determi
 
            nation in this proceeding:
 
            
 
                   I.  Whether claimant received an injury on February 
 
            15, 1990, arising out of and in the course of employment; 
 
            
 
                  II.  The extent of claimant's entitlement to disabil
 
            ity benefits; and,
 
            
 
                 III.  The extent of claimant's entitlement to medical 
 
            benefits.
 
            
 
                                 FINDINGS OF FACT
 
            
 
                 Having heard the testimony and considered all of the 
 
            evidence, the deputy industrial commissioner finds as 
 
            follows:
 
            
 
                 Claimant worked for WCI from February 5, 1990 until 
 
            June 21, 1990, at which time he was terminated for misrepre
 
            senting his past medical history on his initial employment 
 
            application.  At WCI claimant was a production worker which 
 
            required occasional heavy lifting and repetitive lifting and 
 
            bending.
 
            
 
                 Defendant placed claimant's credibility at issue with 
 
            reference to the occurrence of the first work injury and to 
 
            his claim that he recovered from disability caused by a 
 
            prior work injury with another employer.  Certainly, there 
 
            was doubt about claimant.  He admitted that he had not been 
 
            truthful to the Veterans Administration in the past as he 
 
            did not feel he was fairly treated.  Clearly, it was shown 
 
            that claimant was not honest and forthright about disclosing 
 
            to WCI, at the time he was hired, several prior work 
 
            injuries involving his low back, especially the last injury 
 
            which lead to back surgery, permanent disability and the 
 
            loss of his job at the time.  Each time he was asked about 
 
            prior injuries or back problems, he either denied any prob
 
            lems or only gave misleading answers that failed to put 
 
            defendant on notice that claimant had an extensive history 
 
            of back problems.  However, claimant's demeanor at hearing 
 
            was good and he appeared to be testifying truthfully while 
 
            under oath.  Therefore, claimant is found credible.
 
            
 
                 On or about February 15, 1990 and again on June 13, 
 
            1990, claimant injured his low back while lifting at work.  
 
            Defendant admits to the second injury.  These injuries arose 
 
            out of and in the course of his employment at WCI.  The 
 
            first involved an attempt to lift a piece of equipment 
 
            weighing almost 100 pounds and the second while repetitively 
 
            lifting 20-30 pound boxes.  In each case, claimant felt a 
 
            tearing or ripping sensation and the immediate onset of low 
 
            back pain and numbness in his legs.
 
            
 
                 Claimant was laid off briefly after the first injury 
 
            until March 5, 1990, at which time he returned to work and 
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            was immediately sent home.  His doctor at the time released 
 
            him on March 16, 1990, with no restrictions.  After the sec
 
            ond injury, claimant did not recover as fast and was eventu
 
            ally referred by the company doctor to claimant's former 
 
            neurosurgeon, Thomas Carlstrom, M.D.  Dr. Carlstrom treated 
 
            claimant conservatively until December 7, 1990, at which 
 
            time claimant reached maximum healing according to Dr. 
 
            Carlstrom.  Dr. Carlstrom's views are uncontroverted in the 
 
            record.
 
            
 
                 As stated above, claimant had extensive back problems 
 
            before his job at WCI.  In 1981 and 1982, claimant suffered 
 
            several low back injuries while working for a lumber company 
 
            which required time off work and medical treatment.  The 
 
            last injury involving a fall necessitated low back surgery.  
 
            Dr. Carlstrom rated claimant's impairment in 1984 from these 
 
            injuries as consisting of a 10 percent permanent partial 
 
            impairment to the body as a whole with permanent work 
 
            restrictions against lifting over 50 pounds or 20-30 pounds 
 
            repetitively.  Claimant eventually quit his lumber company 
 
            job upon the advice of Dr. Carlstrom and began working with 
 
            his father in a saw sharpening business.  This business, 
 
            which is claimant's only employment at the present time, 
 
            consists of not only sharpening saw blades, but soldering 
 
            carbide tips onto steel saw blades.
 
            
 
                 After his release by Dr. Carlstrom in 1984, claimant 
 
            did not seek medical attention until November 1987 when he 
 
            suffered back pain after lifting a large TV set.  This only 
 
            lasted a few days according to the available medical 
 
            records.  Claimant did not seek treatment again until after 
 
            the 1990 injuries herein.
 
            
 
                 Claimant states that he recovered from the 1984 dis
 
            ability and was able to perform heavy lifting in the saw 
 
            sharpening business.  He also successfully drove and 
 
            unloaded trucks in employment for six months before his 
 
            employment at WCI.  However, it is readily apparent that he 
 
            did not fully recover.  Dr. Carlstrom today believes that he 
 
            suffers from the same permanent impairment caused by the 
 
            injuries at the lumber company.  Although he may have been 
 
            able to perform occasional heavy lifting in his employment 
 
            before WCI, after only 10 days of production work at WCI, he 
 
            began having problems.  By his own testimony, claimant 
 
            continued to have problems until he left after the second 
 
            injury in June 1990.  Claimant's friend, who testified at 
 
            hearing, stated that he observed no problems immediately 
 
            before the WCI employment.  However, he was observing 
 
            claimant in a relaxed and recreational mode; not while he 
 
            was performing heavy, repetitive production work.
 
            
 
                 Despite the prior impairment from the injuries suffered 
 
            at the lumber company, it must be found that the work 
 
            injuries at WCI, as found herein, were a cause of additional 
 
            permanent partial impairment and additional work restric
 
            tions.  According to the uncontroverted views of Dr. 
 
            Carlstrom, who treated claimant for both injuries causing 
 
            disability, claimant has suffered an additional 10 percent 
 
            impairment and claimant now has work restrictions against 
 
            any lifting over 30 pounds as a result of the two work 
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
            injuries of February 15, 1990 and June 13, 1990.
 
            
 
                 Claimant is 42 years of age with only a ninth grade 
 
            education but has a GED.  He has extensive experience in 
 
            truck driving, private investigation work, and management 
 
            experience.  Claimant's past employment consists primarily 
 
            of jobs requiring heavy work.  His earnings after leaving 
 
            the lumber company in 1984 and before returning to trucking 
 
            driving in the late 1980's was extremely low.  This probably 
 
            was a likely reason for seeking employment inconsistent with 
 
            Dr. Carlstrom's restrictions imposed in 1984.
 
            
 
                 Admittedly, claimant's work restrictions now imposed by 
 
            Dr. Carlstrom would prevent a return to work at WCI or most 
 
            other types of production work.  However, the work injuries 
 
            at WCI only added to an already significant impairment and 
 
            loss of earning capacity arising from the lumber company 
 
            injuries.  Had claimant been truthful and honest in filling 
 
            out his employment application and fully candid with the 
 
            company physician at the initial employment physical, it is 
 
            likely that he would never have been hired or suffered these 
 
            injuries.  Dr. Carlstrom clearly states that his prior con
 
            dition made claimant susceptible to these injuries.
 
            
 
                 Although the work injuries herein only mildly added to 
 
            claimant's disability, it still must be compensated.  
 
            Therefore, it is found that the work injuries of February 
 
            15, 1990 and June 13, 1990 were a cause of a five percent 
 
            loss of earning capacity.
 
            
 
                 With reference to claimant's gross rate of weekly com
 
            pensation, it is found that during the 13 week period before 
 
            the work injury of June 13, 1990, claimant earned an average 
 
            of $288.61 per week.  This is based upon the figures veri
 
            fied by claimant contained in the attachment to the prehear
 
            ing report.  This figure includes the two short weeks of 
 
            April 1 and 15.  It could not be found that these weeks were 
 
            unrepresentive of claimant's customary earnings as claimant 
 
            could not remember exactly why they were short and stated 
 
            that probably he ran out of work.  It is further found that 
 
            claimant was entitled to and did take three exemptions on 
 
            his income tax returns based upon himself, his wife and his 
 
            wife's child which he was supporting. Claimant's testimony 
 
            on all of these matters was not refuted by defendant.
 
            
 
                 The requested medical expenses set forth in the pre
 
            hearing report are found causally connected to the work 
 
            injuries found herein.  It is also found that these expenses 
 
            are for reasonable and necessary treatment of the work 
 
            injury and the charges are reasonable.  Dr. Carlstrom's 
 
            testimony on these matters is uncontroverted.
 
            
 
                 Furthermore, the further testing recommended by Dr. 
 
            Carlstrom to evaluate the need for further treatment is also 
 
            found causally connected to the work injuries and consti
 
            tutes reasonable and necessary treatment.
 
            
 
                                CONCLUSIONS OF LAW
 
            
 
                   I. Claimant has the burden of proving by a preponder
 

 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
            ance of the evidence that he received injuries arising out 
 
            of and in the course of employment.  The words "out of" 
 
            refer to the cause or source of the injury.  The words "in 
 
            the course of" refer to the time and place and circumstances 
 
            of the injury.  See generally, Cedar Rapids Community Sch. 
 
            v. Cady, 278 N.W.2d 298 (Iowa 1979); Crowe v. DeSoto Consol. 
 
            Sch. Dist., 246 Iowa 402, 68 N.W.2d 63 (1955).  An employer 
 
            takes an employee subject to any active or dormant health 
 
            impairments. A work connected injury which more than 
 
            slightly aggravates the condition is considered to be a per
 
            sonal injury.  Ziegler v. U.S. Gypsum, 252 Iowa 613, 620, 
 
            106 N.W.2d 591 (1961), and cases cited therein.
 
            
 
                 In the case sub judice, the only contested injury was 
 
            the one claimed in February 1990.  As explained in the 
 
            Findings of Fact, claimant carried his burden of proof and 
 
            established this injury.
 
            
 
                 Defendant asserts an affirmative defense that claimant 
 
            is barred from workers' compensation benefits by reason of 
 
            claimant's misrepresentations contained in his initial 
 
            application for employment with defendant employer.  As 
 
            authority, defendant cites 1C Larson, Workmen's Compensation 
 
            Law section 47.53 in which Larson describes his view that 
 
            benefits should be denied if the following three factors are 
 
            found to exist:
 
            
 
                 (1) The employee must have knowingly and wilfully 
 
                 [sic] made a false representation as to his physi
 
                 cal condition.  (2) The employer must have relied 
 
                 upon the false representation and this reliance 
 
                 must have been a substantial factor in the hiring.  
 
                 (3) There must have been a causal connection 
 
                 between the false representation and the injury.
 
            
 
                 In those jurisdictions where the statute has not 
 
            specifically adopted an employee's misrepresentation of 
 
            physical condition as a defense, the Larson rule was judi
 
            cially adopted under theories of mutuality of contract and 
 
            equitable estoppel.  However, Iowa has not adopted this rule 
 
            either by statute or common law.
 
            
 
                 This agency has to date rejected such a defense.  
 
            Keifer v. Swift Independent Packing, File Nos. 713057 & 
 
            741318, (Appeal Decision dated September 12, 1986, at page 
 
            2).  The only Iowa Supreme Court case on this issue occurred 
 
            in 1918 where the court held that a false statement of age 
 
            on an employment application by a minor was no defense to a 
 
            workers' compensation claim by that minor.  Secklich v. 
 
            Harris-Emery Co. 184 Iowa 1025, 169 N.W. 325 (1918).
 
            
 
                 As workers' compensation is a creature of statute, the 
 
            statute itself provides the best guidance on this issue.  
 
            Iowa Code section 85.18 states as follows:  "No contract, 
 
            rule, or device whatsoever shall operate to relieve the 
 
            employer, in whole or in part, from any liability created by 
 
            this chapter except as herein provided."
 
            
 
                 However, any misleading or false statement in an 
 
            employment application does have a bearing on the credibil
 

 
            
 
            Page   6
 
            
 
            
 
            
 
            
 
            ity of the claimant.  Also, if the claimant has been termi
 
            nated subsequent to the work injury due to discovery of any 
 
            such misrepresentations, such a termination would be justi
 
            fied and unrelated to the work injury.  Consequently, any 
 
            lack of earnings resulting from such a termination would not 
 
            increase an award of disability benefits as a result of the 
 
            work injury.
 
            
 
                  II.  As the claimant has shown that the work injury 
 
            was a cause a permanent physical impairment or limitation 
 
            upon activity involving the body as a whole, the degree of 
 
            permanent disability must be measured pursuant to Iowa Code 
 
            section 85.34(2)(u).  However, unlike scheduled member dis
 
            abilities, the degree of disability under this provision is 
 
            not measured solely by the extent of a functional impairment 
 
            or loss of use of a body member.  A disability to the body 
 
            as a whole or an "industrial disability" is a loss of earn
 
            ing capacity resulting from the work injury.  Diederich v. 
 
            Tri-City Railway Co., 219 Iowa 587, 593, 258 N.W. 899 
 
            (1935).  A physical impairment or restriction on work activ
 
            ity may or may not result in such a loss of earning capac
 
            ity.  Examination of several factors determines the extent 
 
            to which a work injury and a resulting medical condition 
 
            caused an industrial disability.  These factors include the 
 
            employee's medical condition prior to the injury, immedi
 
            ately 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.  See Peterson v. Truck Haven Cafe, Inc. (Appeal 
 
            Decision, February 28, 1985).
 
            
 
                 In the case sub judice, it was found that claimant suf
 
            fered a mild 5 percent loss of his earning capacity as a 
 
            result of the work injury.  Such a finding entitles claimant 
 
            to 25 weeks of permanent partial disability benefits as a 
 
            matter of law under Iowa Code section 85.34(2)(u) which is 5 
 
            percent of 500 weeks, the maximum allowable number of weeks 
 
            for an injury to the body as a whole in that subsection.
 
            
 
                 Claimant's entitlement to permanent partial disability 
 
            also entitles him to weekly benefits for healing period 
 
            under Iowa Code section 85.34 from the date of injury until 
 
            claimant returns to work; until claimant is medically capa
 
            ble of returning to substantially similar work to the work 
 
            he was performing at the time of injury; or, until it is 
 
            indicated that significant improvement from the injury is 
 
            not anticipated, whichever occurs first.  It was found that 
 
            claimant reached maximum healing on December 7, 1990.  
 
            Healing period benefits will be awarded accordingly.
 
            
 
                 The parties dispute as to rate of compensation centers 
 
            around the calculation of his gross wages.  As claimant's 
 
            hours varied greatly from week to week, the previous 13 
 

 
            
 
            Page   7
 
            
 
            
 
            
 
            
 
            weeks must be utilized to calculate the rate under Iowa Code 
 
            section 85.36(6).  However, this agency has held that weeks 
 
            which contain absences due to illness, vacation or other 
 
            causes unrelated to lapses in work are not representative 
 
            weeks and should be excluded from the calculation.  Lewis v. 
 
            Aalf's Mfg. Co. 1 Iowa Indus. Comm'r Rep. 206 (Appeal 
 
            Decision 1980).  Overtime pay is not included in the rate 
 
            calculation, only overtime hours at the straight time pay 
 
            rate.  Rule 343 IAC 8.2.
 
            
 
                 In the case sub judice, claimant failed to show that 
 
            the short weeks in question were unrepresentative and 
 
            therefore they were included.  Given Dr. Carlstrom's 
 
            deposition opinions that identified both work injuries 
 
            herein as the cause of the disability and his treatment, 
 
            there is a problem as to which rate for each injury may 
 
            vary.  However, the parties only submitted information as to
 
            
 
            
 
            Page   8
 
            
 
            
 
            
 
            
 
            the second injury and the rate will consequently be based 
 
            only on the information available.
 
            
 
                 According to the Commissioner's published rate booklet 
 
            for injuries in FY 90, a gross rate of $288.61, marital 
 
            status and entitlement to three exemptions, computes to a 
 
            weekly rate of compensation in the amount of $193.74.
 
            
 
                 III.  Pursuant to Iowa Code section 85.27, claimant is 
 
            entitled to payment of reasonable medical expenses incurred 
 
            for treatment of a work injury.  Claimant is entitled to an 
 
            order of reimbursement if he has paid those expenses.  
 
            Otherwise, claimant is entitled only to an order directing 
 
            the responsible defendants to make such payments directly to 
 
            the provider.  See Krohn v. State, 420 N.W.2d 463 (Iowa 
 
            1988).
 
            
 
                 In the case at bar, claimant has shown entitlement to 
 
            the requested expenses and they will be awarded.  Also, fur
 
            ther diagnostic testing and treatment was also shown and 
 
            such will be ordered.
 
            
 
                                      ORDER
 
            
 
                 1.  Defendant shall pay to claimant twenty-five (25) 
 
            weeks of permanent partial disability benefits at a rate of 
 
            one hundred ninety-three and 74/l00 dollars ($193.74) per 
 
            week from December 8, 1990.
 
            
 
                 2.  Defendant shall pay to claimant healing period 
 
            benefits from June 13, 1990 through December 7, 1990, at the 
 
            rate of one hundred ninety-three and 74/l00 dollars 
 
            ($193.74) per week.
 
            
 
                 3.  Defendant shall pay the medical expenses listed in 
 
            the prehearing report.  Claimant shall be reimbursed for any 
 
            of these expenses paid by him.  Otherwise, defendant shall 
 
            pay the provider directly along with any lawful late payment 
 
            penalties imposed upon the account by the provider.
 
            
 
                 4.  Defendant shall pay for any and all diagnostic or 
 
            other treatment ordered or recommended by Dr. Carlstrom for 
 
            treatment of claimant's current low back condition.
 
            
 
                 5.  Defendant shall pay accrued weekly benefits in a 
 
            lump sum and shall receive credit against this award for all 
 
            benefits previously paid.
 
            
 
                 6.  Defendant shall pay interest on weekly benefits 
 
            awarded herein as set forth in Iowa Code section 85.30. 
 
            
 
                 7.  Defendant shall pay the costs of this action pur
 
            suant to rule 343 IAC 4.33, including reimbursement to 
 
            claimant for any filing fee paid in this matter.
 
            
 
                 8.  Defendant shall file activity reports on the pay
 
            ment of this award as requested by this agency pursuant to 
 
            rule 343 IAC 3.1.
 
            
 
            
 

 
            
 
            Page   9
 
            
 
            
 
            
 
            
 
                 Signed and filed this ____ day of April, 1992.
 
            
 
            
 
            
 
            
 
            
 
                                          ______________________________
 
                                          LARRY P. WALSHIRE
 
                                          DEPUTY INDUSTRIAL COMMISSIONER
 
            
 
            Copies To:
 
            
 
            Mr. Tito Trevino
 
            Mr. Jerry L. Schnurr, III
 
            Attorneys at Law
 
            801 Carver Building
 
            P O Box 1680
 
            Fort Dodge, Iowa  50501
 
            
 
            Mr. Robert C. Landess
 
            Attorney at Law
 
            Terrace Center  STE 111
 
            2700 Grand Avenue
 
            Des Moines, Iowa  50312
 
            
 
 
            
 
            
 
            
 
            
 
            
 
            
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
                                          :
 
            NANCY JUETT,                  :
 
                                          :
 
                 Claimant,                :         File Nos. 916008
 
                                          :                   940674
 
            vs.                           :                   936525
 
                                          :                   936526
 
            ORAL B LABORATORIES, INC.,    :                   936527
 
                                          :
 
                 Employer,                :      A R B I T R A T I O N
 
                 Self-Insured,            :
 
                                          :         D E C I S I O N
 
            and                           :
 
                                          :
 
            CIGNA INSURANCE COMPANY,      :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ____________________________________________________________
 
            
 
                              STATEMENT OF THE CASE
 
            
 
                 These are proceedings in arbitration brought by the 
 
            claimant, Nancy Juett, against her employer, Oral B 
 
            Laboratories, Inc., and its insurance carrier, Cigna 
 
            Insurance Company, to recover benefits under the Iowa 
 
            Workers' Compensation Act as the result of injuries 
 
            allegedly sustained on March 20, 1989; April 24, 1989; and, 
 
            April 27, 1989.  At time of hearing, claimant presented a 
 
            motion to dismiss file number 936527, which motion the 
 
            undersigned granted.  These matters came on for hearing 
 
            before the undersigned deputy industrial commissioner at 
 
            Cedar Rapids, Iowa, on May 19, 1992.  First reports of 
 
            injury have been filed.
 
            
 
                 The record consists of the testimony of claimant, of 
 
            Gary Pasha, of Jeff Smith, and of Marcy Kuhl, R.N., as well 
 
            as of joint exhibits 1 through 12 and claimant's exhibits A 
 
            and B.
 
            
 
                              STIPULATION AND ISSUES
 
            
 
                 Pursuant to the hearing assignment order, the 
 
            prehearing report, and the oral stipulation of the parties, 
 
            the parties have stipulated to the following:  that claimant 
 
            received a gross weekly wage of $410.00 and was married and 
 
            entitled to four exemptions at the time of her alleged 
 
            injuries, entitling her to a weekly compensation rate of 
 
            $266.42; that claimant was off work on account of her 
 
            conditions from April 27, 1989, through March 5, 1990, and 
 
            from August 9, 1990, through May 14, 1991; and, that 
 
            claimant did receive an injury arising out of and in the 
 
            course of her employment to her left upper extremity on 
 
            April 27, 1989.  In this regard, while claimant contends 
 
            defendants have admitted a left shoulder as well as a left 
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            upper extremity injury on April 27, 1989, the pleadings 
 
            clearly demonstrate that defendants admitted a left upper 
 
            extremity injury only.
 
            
 
                 The parties also stipulate that defendants are entitled 
 
            to a credit for weekly compensation benefits previously paid 
 
            in the following particulars:  temporary total, that is, 
 
            healing period benefits, from April 27, 1989, through 
 
            January 4, 1990, equalling 36.143 weeks of benefits paid at 
 
            the rate of $266.00, which equals $9,603.00; temporary total 
 
            disability, that is, healing period benefits, from January 
 
            11, 1990, through January 15, 1990, equalling 1.286 weeks of 
 
            benefits paid at the rate of $266.00, which equals $152.31 
 
            (it is found that actual payment was for 4 days of benefits 
 
            equalling .571 weeks of benefits); temporary partial 
 
            disability benefits from January 4, 1990, through January 
 
            11, 1990, equalling 1.143 weeks of benefits for a payment of 
 
            $137.50; temporary partial disability benefits from January 
 
            15, 1990, through March 5, 1990, equalling 7.143 weeks of 
 
            benefits for a payment of $741.49; and, permanent partial 
 
            disability benefits from August 9, 1990, through January 31, 
 
            1991, equalling 25.143 weeks of benefits paid at the rate of 
 
            $266.00, which equals $6,668.75.
 
            
 
                 Issues remaining to be decided are:
 
            
 
                 1. Whether claimant has received injuries arising out 
 
            of and in the course of her employment on March 20, 1989; 
 
            April 24, 1989; and, April 27, 1989, as relates to her left 
 
            upper extremity, left shoulder, right upper extremity, and 
 
            her vena cava thrombosis of the subclavian vein in her left 
 
            shoulder;
 
            
 
                 2.  Whether a causal relationship exists between 
 
            claimant's alleged injuries and her claimed disabilities;
 
            
 
                 3.  Whether claimant is entitled to benefits and the 
 
            nature and extent of any benefit entitlement;
 
            
 
                 4.  Whether claimant's conditions constitute 
 
            occupational diseases under chapter 85A;
 
            
 
                 5.  Whether the defenses of chapter 85A are therefore 
 
            applicable;
 
            
 
                 6.  Whether claimant is entitled to a penalty for 
 
            unreasonable delay or denial of benefits under section 
 
            86.13(4); and,
 
            
 
                 7.  Whether claimant gave defendants appropriate notice 
 
            pursuant to section 85.23 relative to her alleged injuries.
 
            
 
                                 FINDINGS OF FACT
 
            
 
                 The deputy, having heard the testimony and considered 
 
            the evidence, finds:
 
            
 
                 Claimant is a 49-year-old lady who has completed high 
 
            school and has had no other education or advanced training.  
 
            She has been employed with Oral B Laboratories since 
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            November 1976, although she is currently off work for a 
 
            nonwork-related surgically treated lower back condition.
 
            
 
                 Claimant has had prior work experience as a car hop, a 
 
            waitress, an office orders router and as a factory 
 
            assembler.  From her hiring until approximately 1978, 
 
            claimant worked in the brush making department at Oral B.  
 
            She then worked as an inspector, product finisher and 
 
            packager in quality control until she returned to the brush 
 
            making department in May 1986.  She concurrently worked as a 
 
            dispatcher who returned surplus machine supplies to the 
 
            supply area and as a crew leader who performed approximately 
 
            1-5 hours of crew supervision work per week.  The balance of 
 
            claimant's brush making work time was spent operating brush 
 
            making machinery.
 
            
 
                 The machine operator loaded toothbrush handles and 
 
            nylon magazines into the brush making machine.  These 
 
            materials were stacked in boxes weighing no more than 24.6 
 
            pounds.  Approximately 18 toothbrush handle boxes were 
 
            handled per eight-hour shift.  After the brush making 
 
            machine brushes automatically made the machine operator used 
 
            a pickup tool to pick up approximately 36 brushes and place 
 
            them into loaded boxes or trays.  When full, boxes of 
 
            finished brushes weigh 13.1 pounds.  When full, trays of 
 
            finished brushes weigh approximately 5-7.25 pounds.  
 
            Approximately 18 boxes or 36 trays are filled per shift.
 
            
 
                 During the shift, an operator would load nylon 
 
            cartridges into the machine requiring hand loading of a 
 
            nylon cartridge approximately 20 times per hour.  The 
 
            brush-making machine most in use from 1988 onward did not 
 
            require hand loading of nylon cartridges.  Some, but not 
 
            substantial, force is required to pick up toothbrushes with 
 
            the pickup tool.  Ninety percent of a production shift 
 
            worker's time involved using the pickup tool to load and 
 
            unload brushes.  Loading and unloading brushes with the 
 
            pickup tool takes approximately 10-15 seconds.
 
            
 
                 Claimant exaggerated the amount of heavy lifting and 
 
            overhead work required in her job in the brush making 
 
            department.  Nevertheless, a certain amount of 
 
            shoulder-level and above activity was required in loading 
 
            and unloading brushes and in retrieving and replacing 
 
            machine supplies and finished products.  Likewise, 
 
            claimant's job in the brush making department did not 
 
            involve constant, unrelenting repetitive motion.  It did 
 
            involve sufficient repetitive activities over the course of 
 
            a work day and over the course of an extended work period 
 
            that the activities in toto were sufficient to produce 
 
            cumulative trauma disorders related to repetitive work.
 
            
 
                 Claimant had problems with tennis elbow on the right 
 
            and previous right carpal tunnel syndrome.  On April 27, 
 
            1989, Elizabeth M. Loeb, M.D., diagnosed claimant as having 
 
            right epicondylitis.  K. M. Brandt, M.D., claimant's family 
 
            physician, reported claimant having right tennis elbow 
 
            symptoms on April 7, 1989.  Dr. Brandt had previously 
 
            treated claimant for right tennis elbow on October 12, 1981.  
 
            The doctor had diagnosed probable right subscapular bursitis 
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
            with referred rhomboid pain on December 9, 1981.  X-rays 
 
            taken December 10, 1981, showed minimal degenerative changes 
 
            in the thoracic spine.  Dr. Brandt's notes report that 
 
            claimant was involved in cake decorating and bowling when 
 
            her tennis elbow was initially diagnosed in 1981.  
 
            Claimant's bilateral mid-thromboid problems initially were 
 
            reported in November 1981 after claimant pushed a television 
 
            at home.  No doctor expressly relates claimant's right upper 
 
            extremity or right shoulder complaints to her work with Oral 
 
            B Labs.  Given claimant's previous history regarding the 
 
            right extremity and the right shoulder and the lack of any 
 
            express medical causation testimony linking that condition 
 
            to claimant's work, the evidence as presented does not 
 
            demonstrate that claimant's right upper extremity or right 
 
            shoulder, or both alleged conditions arose out of and in the 
 
            course of her employment with Oral B Labs or are in any 
 
            manner causally related to any injury sustained at Oral B 
 
            Labs.
 
            
 
                 On April 18, 1988, Dr. Brandt reported that claimant 
 
            had a painful left thumb joint and noted that claimant used 
 
            the thumb to continuously push a lever at work.  On April 7, 
 
            1989, Dr. Brandt indicated that claimant had definite 
 
            trigger finger of the left index finger.  On April 27, 1989, 
 
            Elizabeth M. Loeb, M.D., reported that claimant had a left 
 
            index finger condition of either a cyst or tendonitis.  On 
 
            May 9, 1989, Mark C. Mysnyk, M.D., reported that claimant 
 
            reported tenderness volarly at the MCP joint of her [left] 
 
            index finger with pain upon direct pressure.  On 
 
            examination, she had no triggering.  No masses or nodules 
 
            were found on the tendon.  Range of motion of the index fin
 
            ger was normal.  Dr. Mysnyk indicated that claimant felt her 
 
            "hand" had begun bothering her after a change in her work 
 
            duties with new job tasks involving frequent use of her 
 
            hands.  The doctor then opined that claimant's left index 
 
            finger pain volarly at the MCP joint was of uncertain 
 
            etiology.  He reported that treatment for the index finger 
 
            would consist of observation.  It is found that the medical 
 
            evidence presented is sufficient to establish that 
 
            claimant's work likely resulted in periods of pain involving 
 
            the left index finger.  It is not found that such periods of 
 
            pain were of sufficient seriousness to raise to the level of 
 
            injury which arose out of and in the course of claimant's 
 
            employment.  Likewise, in that the evidence does not 
 
            demonstrate any ongoing treatment or care of the left index 
 
            finger or any need for such treatment and care, it is found 
 
            that whatever problems may exist relative to the left index 
 
            finger do not rise to the level of a permanent disability as 
 
            contemplated under the Workers' Compensation Act.
 
            
 
                 Claimant began experiencing symptoms on her left side 
 
            in fall of 1988.  On March 20, 1989, claimant attempted to 
 
            help an injured co-employee to the co-employee's car.  
 
            Claimant experienced sharp left shoulder pain such that 
 
            claimant determined it was necessary to seek treatment of 
 
            the shoulder condition.  On April 7, 1989, claimant saw Dr. 
 
            Brandt who described her left side condition as work-related 
 
            left rotator cuff tenderness with full range of motion.  On 
 
            April 24, 1989, claimant experienced pain in the left 
 
            shoulder when the shoulder popped while she was operating a 
 

 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
            brush making machine.  Claimant cried on account of the 
 
            severity of the pain and her supervisor then brought her 
 
            left side condition to the attention of Oral B's nursing 
 
            department.
 
            
 
                 Claimant saw Dr. Loeb on approximately April 27, 1989.  
 
            Dr. Loeb diagnosed frozen left shoulder with biceps 
 
            tendonitis.  Claimant was off work as of April 27, 1989.  On 
 
            June 19, 1989, Dr. Mysnyk performed left shoulder 
 
            acromioplasty with excision of calcific tendinitis.  On 
 
            February 22, 1991, Dr. Mysnyk opined that claimant's 
 
            calcific tendinitis of her left shoulder most likely was job 
 
            related.  Contrary causation medical evidence is not in the 
 
            record.  Likewise, but for permanent partial impairment 
 
            ratings initially stated as to the left upper extremity and 
 
            then converted to body as a whole ratings, the record does 
 
            not offer evidence limiting claimant's left side condition 
 
            to her left upper extremity and not to her shoulder.  It is 
 
            expressly found that a causal relationship exists between 
 
            claimant's left shoulder condition and her work at Oral B 
 
            Laboratories such that claimant did sustain an injury 
 
            arising out of and in the course of her employment to her 
 
            left shoulder at Oral B Laboratories.  It is further found 
 
            that the date of injury for claimant's cumulative left 
 
            shoulder injury is the date she was actually off work on 
 
            account of the injury, that is, April 27, 1989.  The 
 
            incidents of pain of March 20, 1989, and of popping and pain 
 
            of April 24, 1989, are found to be manifestations of the 
 
            left shoulder condition and are not found to be separate 
 
            specific injuries to the left shoulder.  See McMurrin v. 
 
            Quaker Oats Company, I Iowa Industrial Comm'r Report 222 
 
            (Appeal Decision, April 28, 1981).
 
            
 
                 On August 1, 1989, Dr. Mysnyk reported that claimant 
 
            had swelling of the entire [left] arm with sensitivity.  He 
 
            could not explain the condition but suspected reflex 
 
            sympathetic dystrophy.  Dr. Mysnyk referred claimant to the 
 
            University of Iowa Hospitals and Clinics where, on 
 
            examination on August 22, 1989, claimant had a left hand 
 
            temperature of 33.2 degrees centigrade and a right hand 
 
            temperature of 32.4 degrees centigrade.  A stellate ganglion 
 
            block was performed.  Subsequent to the block, claimant had 
 
            a left hand temperature of 37 degrees centigrade and a right 
 
            hand temperature of 34 degrees centigrade and experienced a 
 
            moderate decrease in her left shoulder pain from 
 
            approximately the time of the block, that is, from 
 
            approximately 2 p.m. on August 22, 1989, until the morning 
 
            of August 23, 1989.  Claimant had two subsequent stellate 
 
            ganglion blocks performed.  Each produced a pain reduction 
 
            for no more than 1 to 1/2 hours.
 
            
 
                 Claimant initially saw R. F. Neiman, M.D., a 
 
            neurologist, on December 28, 1989.  Dr. Neiman indicated 
 
            that claimant's left hand had no unusual shininess and no 
 
            unusual sensitivity.  He reported that it was unusual that 
 
            claimant experienced an increased temperature on the left 
 
            side subsequent to stellate blocks in that, usually in 
 
            reflex sympathetic dystrophy, decreased temperature would 
 

 
            
 
            Page   6
 
            
 
            
 
            
 
            
 
            then be expected.  Dr. Neiman referred claimant to James A. 
 
            Wiese, M.D., for a venogram in an attempt to ascertain 
 
            whether a venous obstruction accounted for claimant's 
 
            significant swelling.
 
            
 
                 On January 8, 1990, Dr. Wiese interpreted claimant's 
 
            left arm venogram as demonstrating subclavian vein 
 
            thrombosis.  Dilation of the vein was subsequently 
 
            attempted.  The vein was found to be totally occluded, 
 
            however.  Claimant subsequently was fitted with a Jobst 
 
            stocking on the upper extremity for the venous distension.
 
            
 
                 On January 8, 1990, Dr. Wiese reported that claimant's 
 
            subclavian vein thrombosis was possibly related to her 
 
            history of repetitive motions of the upper extremity, but 
 
            was more likely idiopathic.  He described the thrombosis as 
 
            a complete obstruction of the subclavian vein stating that 
 
            its location and appearance were fairly typical for 
 
            idiopathic subclavian vein thrombosis.  He then stated that 
 
            the process is often related to repetitious strenuous 
 
            motions of the upper extremity described in weight lifters 
 
            and volleyball players and the process may be work related 
 
            with stasis, recurrent trauma and venospasm, all described 
 
            as etiologic factors.
 
            
 
                 On May 12, 1992, Dr. Neiman opined that claimant's 
 
            repetitive activity with the left arm was either the 
 
            responsible cause for her subclavian vein thrombosis or the 
 
            vein thrombosis "could be" a post-operative complication 
 
            related to claimant's June 19, 1989, left shoulder 
 
            acromioplasty.
 
            
 
                 William W. Eversmann, Jr., M.D., a board-certified 
 
            orthopaedic surgeon with additional qualifications in hand 
 
            surgery, and whose practice is confined to surgery of the 
 
            hand and upper extremity, initially saw claimant subsequent 
 
            to her work injuries on June 26, 1990.  Dr. Eversmann 
 
            believes that claimant's thrombosis is not related to her 
 
            work.  Dr. Eversmann expressed his belief that, in that the 
 
            thorax protects the subclavian vein, a significant blow to 
 
            the body with fracture of the clavicle would be necessary to 
 
            produce traumatic thrombosis of the subclavian vein.  On 
 
            April 7, 1990, the doctor expressed the opinion that the 
 
            thrombosis may be related to claimant's surgery.  In his 
 
            deposition of May 4, 1992, Dr. Eversmann indicated that that 
 
            opinion was expressed without knowing the exact nature of 
 
            claimant's surgery.  In the deposition, Dr. Eversmann 
 
            further stated that claimant did not use her shoulder on 
 
            flexion, abduction, or external rotation sufficiently in her 
 
            work for her work to have created her vascular problems.
 
            
 
                 It is expressly found that the evidence is insufficient 
 
            to establish that claimant's repetitive work activities per 
 
            se produced her subclavian vein thrombosis.  It is further 
 
            expressly found that claimant's surgery of June 19, 1989, 
 
            was a proximate cause of her subclavian vein thrombosis.  
 
            This finding is consistent with claimant's medical history 
 
            in that claimant did not have symptoms of the vein 
 
            thrombosis, that is, left arm swelling, until after her 
 

 
            
 
            Page   7
 
            
 
            
 
            
 
            
 
            surgery.  This finding is also consistent with the opinions 
 
            of both Drs. Neiman and Eversmann that claimant's subclavian 
 
            vein thrombosis could have resulted from her surgery of June 
 
            19, 1989, for her work-related left shoulder calcific 
 
            tendinitis.  Claimant's subclavian vein thrombosis and her 
 
            subsequent disability, impairment and restrictions related 
 
            to that condition constitute a disability which is the 
 
            sequela of her June 27, 1989, work injury.
 
            
 
                 Claimant's injury to her left shoulder did not result 
 
            from a single traumatic event, but rather from a series of 
 
            microtraumas over a period of time.  Results of trauma are 
 
            not generally considered to constitute part of the 
 
            definition of a disease.  See Noble v. Lamoni Products, File 
 
            Nos. 851309 and 857575 (App. Decn., May 7, 1992).  It is 
 
            expressly found that claimant's work-related left shoulder 
 
            condition, including its sequela of a subclavian vein 
 
            thrombosis, is a cumulative injury under chapter 85 and not 
 
            an occupational disease under chapter 85A.
 
            
 
                 Defendant employer was aware that claimant complained 
 
            of left shoulder problems as well as left upper extremity 
 
            problems when claimant left work on account of her 
 
            cumulative injury on April 27, 1992.  Defendant employer's 
 
            nursing department timely received medical reports relative 
 
            to claimant's swelling in her left arm subsequent to her 
 
            June 19, 1989, surgery.  Defendant employer also had access 
 
            to Dr. Neiman's medical reports relative to the discovery of 
 
            claimant's subclavian vein thrombosis.  It is expressly 
 
            found that defendant employer had proper notice of 
 
            claimant's cumulative work injury sustained on April 27, 
 
            1989, and proper notice of the disabling sequela of that 
 
            work injury, namely the subclavian vein thrombosis found by 
 
            way of venogram on January 8, 1990.
 
            
 
                 On June 16, 1990, Dr. Neiman opined that claimant was 
 
            at maximum medical improvement.  On September 21, 1990, Dr. 
 
            Eversmann opined that claimant was at maximum medical 
 
            improvement.  The evidence does not demonstrate that 
 
            claimant improved substantially after the September 21, 
 
            1990, date.  Indeed, Dr. Neiman assigned an impairment 
 
            rating related to claimant's subclavian vein thrombosis on 
 
            September 27, 1990.  In that Dr. Eversmann continued to 
 
            treat claimant relative to that and her other shoulder 
 
            conditions through the summer of 1990, his opinion as to 
 
            maximum medical improvement attainment is accepted over the 
 
            earlier date Dr. Neiman expressed.  It is further found that 
 
            claimant's failure to return to work with the employer 
 
            subsequent to September 21, 1990, does not result in an 
 
            entitlement to greater healing period benefits.  Claimant 
 
            was receiving vocational rehabilitation assistance in 
 
            finding jobs within her limitations throughout this period.  
 
            Additionally, claimant was working part-time as a bartender 
 
            and cook at a local bowling alley and bar and grill during 
 
            that time.  She also attained short-term employment as a 
 
            bowling score keeper during that time.  Additionally, 
 
            claimant's employer continued to avail itself of finding 
 

 
            
 
            Page   8
 
            
 
            
 
            
 
            
 
            jobs within claimant's restrictions.
 
            
 
                 Dr. Eversmann has opined that claimant has a four 
 
            percent permanent partial impairment of the left upper 
 
            extremity as a result of limitations of wrist extension and 
 
            limitations of range of motion of the left elbow and 
 
            shoulder.  Dr. Eversmann has restricted claimant from 
 
            repetitive motion activities and reported that she should do 
 
            maximum lifting of 35 pounds with occasional lifting of 
 
            20-35 pounds above the waist and of 15 pounds from the floor 
 
            to the waist.  Dr. Neiman has opined that claimant has a 
 
            nine percent permanent partial impairment of the upper 
 
            extremity which translates into a five percent impairment of 
 
            the body as a whole as a result of losses of motion in the 
 
            left shoulder.  He has further opined that, while neither 
 
            the AMA guides nor the orthopaedic guides contain advice as 
 
            to rating of that condition, it is probable that claimant 
 
            has a 7-10 percent body as a whole permanent partial 
 
            impairment as the result of her subclavian vein thrombosis 
 
            with arm swelling related to almost all activities.  Dr. 
 
            Neiman, on April 22, 1992, concurred in Dr. Eversmann's 
 
            restrictions of September 21, 1990.  Those restrictions are 
 
            found to be claimant's permanent restrictions related to her 
 
            work-related injury.  Despite the absence of published 
 
            guides relative to assessment of permanent partial 
 
            impairment from subclavian vein thrombosis, the record 
 
            establishes that that condition does impair claimant.  Dr. 
 
            Neiman's assessment of a 7-10 percent permanent partial 
 
            impairment of the body as a whole on account of that 
 
            condition appears reasonable.  It is found that claimant's 
 
            left shoulder condition, including her subclavian vein 
 
            thrombosis, has produced a moderate body as a whole 
 
            impairment.  It is likewise found that claimant's employer 
 
            made commendable attempts to accommodate claimant in 
 
            securing work within her restrictions and in assisting her 
 
            in eventually returning to a full-time position with the 
 
            employer.  Were claimant not now off work on account of her 
 
            nonwork-related back injury, claimant would be working in 
 
            "pick and pack", an order supply position in which wages are 
 
            greater than are wages received in the brush making 
 
            department.  Additionally, changes made in the brush making 
 
            department since claimant's April 27, 1989, injury appar
 
            ently would make that position also within claimant's 
 
            restrictions.  Further, claimant has already demonstrated 
 
            her ability to work as a wage earner in other positions in 
 
            her community.  She has worked from 3 to 35 hours per week 
 
            as a bartender-cook since her work release.  She also worked 
 
            for several weeks as a bowling tournament scorekeeper.  
 
            Hence, claimant both has been accommodated by her employer 
 
            and has skills she can use within her restrictions to secure 
 
            other gainful employment.  It is expressly found that 
 
            claimant has had a loss of earning capacity of 20 percent as 
 
            the result of her work-related injury of April 27, 1989.
 
            
 
                 Defendants compensated claimant and attempted to 
 
            accommodate claimant and return her to work as the result of 
 

 
            
 
            Page   9
 
            
 
            
 
            
 
            
 
            the acknowledged left upper extremity condition.  Reasonable 
 
            causation questions existed as to whether claimant's 
 
            subclavian vein condition related to her work injury.  
 
            Defendants' argument that claimant's condition resulted in 
 
            scheduled member disability only was perhaps more tenuous.  
 
            Yet the medical evidence, in particular Dr. Eversmann's 
 
            impairment rating, are such that that argument cannot be 
 
            found to be altogether unreasonable.  It is not found that 
 
            defendants unreasonably delayed or denied claimant either 
 
            healing period or permanent partial disability benefits such 
 
            that a penalty under section 86.13, unnumbered paragraph 4, 
 
            is appropriate.
 
            
 
                                CONCLUSIONS OF LAW
 
            
 
                 The claimant has the burden of proving by a 
 
            preponderance of the evidence that the alleged injury 
 
            actually occurred and that it arose out of and in the course 
 
            of employment.  McDowell v. Town of Clarksville, 241 N.W.2d 
 
            904 (Iowa 1976); Musselman v. Cent. Tel. Co., 261 Iowa 352, 
 
            154 N.W.2d 128 (1967).  The words "arising out of" refer to 
 
            the cause or source of the injury.  The words "in the course 
 
            of" refer to the time, place and circumstances of the 
 
            injury.  Sheerin v. Holin Co., 380 N.W.2d 415 (Iowa 1986); 
 
            McClure v. Union County, 188 N.W.2d 283 (Iowa 1971).
 
            
 
                 The claimant has the burden of proving by a 
 
            preponderance of the evidence that the injury is a proximate 
 
            cause of the disability on which the claim is based.  A 
 
            cause is proximate if it is a substantial factor in bringing 
 
            about the result; it need not be the only cause.  A 
 
            preponderance of the evidence exists when the causal 
 
            connection is probable rather than merely possible.  
 
            Blacksmith v. All-American, Inc., 290 N.W.2d 348 (Iowa 
 
            1980); Holmes v. Bruce Motor Freight, Inc., 215 N.W.2d 296 
 
            (Iowa 1974).
 
            
 
                 The question of causal connection is essentially within 
 
            the domain of expert testimony.  The expert medical evidence 
 
            must be considered with all other evidence introduced 
 
            bearing on the causal connection between the injury and the 
 
            disability.  The weight to be given to any expert opinion is 
 
            determined by the finder of fact and may be affected by the 
 
            accuracy of the facts relied upon by the expert as well as 
 
            other surrounding circumstances.  The expert opinion may be 
 
            accepted or rejected, in whole or in part.  Sondag v. Ferris 
 
            Hardware, 220 N.W.2d 903 (Iowa 1974); Anderson v. Oscar 
 
            Mayer & Co., 217 N.W.2d 531 (Iowa 1974); Bodish v. Fischer, 
 
            Inc., 257 Iowa 516, 133 N.W.2d 867 (1965).
 
            
 
                 Expert testimony that a condition could be causally 
 
            related to claimant's employment together with nonexpert 
 
            testimony tending to show causation may be sufficient to 
 
            sustain an award but does not compel an award.  Anderson v. 
 
            Oscar Mayer & Co., 217 N.W.2d 531, 536 (Iowa 1974).
 
            
 
                 Claimant has not established an injury to her right 
 
            upper extremity or right shoulder which arose out of and in 
 
            the course of her employment.
 
            
 

 
            
 
            Page  10
 
            
 
            
 
            
 
            
 
                 Claimant has not established an injury to her left 
 
            index finger which arose out of and in the course of her 
 
            employment.
 
            
 
                 Claimant has established an injury of April 27, 1989, 
 
            to her left shoulder.  Claimant has established a causal 
 
            connection between that injury and claimed disability.  
 
            Claimant has further established that her subclavian vein 
 
            thrombosis discovered by way of venogram on January 8, 1990, 
 
            was a sequela of the April 27, 1989, left shoulder condition 
 
            and subsequent surgery.  Claimant has further established 
 
            that she has sustained disability related to the subclavian 
 
            vein thrombosis which disability relates to her April 27, 
 
            1989, work injury.
 
            
 
                 Section 85.23 requires an employee to give notice of 
 
            the occurrence of an injury to the employer within 90 days 
 
            from the date of the occurrence, unless the employer has 
 
            actual knowledge of the occurrence of the injury.
 
            
 
                 The purpose of the 90-day notice or actual knowledge 
 
            requirement is to give the employer an opportunity to timely 
 
            investigate the facts surrounding the injury.  The actual 
 
            knowledge alternative to notice is met when the employer, as 
 
            a reasonably conscientious manager, is alerted to the 
 
            possibility of a potential compensation claim through 
 
            information which makes the employer aware that the injury 
 
            occurred and that it may be work related.  Dillinger v. City 
 
            of Sioux City, 368 N.W.2d 176 (Iowa 1985); Robinson v. Dep't 
 
            of Transp., 296 N.W.2d 809 (Iowa 1980).  The time period for 
 
            giving notice does not begin to run until the claimant as a 
 
            reasonable person, should recognize the nature, seriousness 
 
            and probable compensable character of the injury.  The 
 
            reasonableness of claimant's conduct is to be judged in 
 
            light of claimant's education and intelligence.  Claimant 
 
            must know enough about the condition or incident to realize 
 
            that it is both serious and work connected.  Positive 
 
            medical information is unnecessary if information from any 
 
            source gives notice of the condition's probable 
 
            compensability.  Robinson, 296 N.W.2d at 812.
 
            
 
                 Failure to give notice is an affirmative defense which 
 
            the employer must prove by a preponderance of the evidence.  
 
            DeLong v. Highway Comm'n, 229 Iowa 700, 295 N.W. 91 (1940).
 
            
 
                 Defendants have failed to establish that claimant did 
 
            not give appropriate notice of her April 27, 1989, work 
 
            injury.
 
            
 
                 When the disability develops gradually over a period of 
 
            time, the "cumulative injury rule" applies.  For time 
 
            limitation purposes, the compensable injury is held to occur 
 
            when because of pain or physical disability, the claimant 
 
            can no longer work.  McKeever Custom Cabinets v. Smith, 379 
 
            N.W.2d 368 (Iowa 1985).
 
 
 
                 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 
 

 
            
 
            Page  11
 
            
 
            
 
            
 
            
 
            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).
 
            
 
                 Claimant has established that her April 27, 1989, work 
 
            condition was an injury arising out of and in the course of 
 
            her employment under chapter 85 and not an occupational 
 
            disease under chapter 85A.
 
            
 
                 Section 85.34(1) provides that healing period benefits 
 
            are payable to an injured worker who has suffered permanent 
 
            partial disability until (1) the worker has returned to 
 
            work; (2) the worker is medically capable of returning to 
 
            substantially similar employment; or (3) the worker has 
 
            achieved maximum medical recovery.  The healing period can 
 
            be considered the period during which there is a reasonable 
 
            expectation of improvement of the disabling condition.  See 
 
            Armstrong Tire & Rubber Co. v. Kubli, 312 N.W.2d 60 (Iowa 
 
            Ct. App. 1981).  Healing period benefits can be interrupted 
 
            or intermittent.  Teel v. McCord, 394 N.W.2d 405 (Iowa 
 
            1986).
 
            
 
                 Claimant has established an entitlement to healing 
 
            period benefits from April 27, 1989, through September 21, 
 
            1990.  Defendants shall receive credit for benefits 
 
            previously paid.
 
            
 
                 Since claimant has an impairment to the body as a 
 
            whole, an industrial disability has been sustained.  
 
            Industrial disability was defined in Diederich v. Tri-City 
 
            Ry. Co., 219 Iowa 587, 258 N.W.2d 899 (1935) as follows: "It 
 
            is therefore plain that the legislature intended the term 
 
            'disability' to mean 'industrial disability' or loss of 
 
            earning capacity and not a mere 'functional disability' to 
 
            be computed in the terms of percentages of the total 
 

 
            
 
            Page  12
 
            
 
            
 
            
 
            
 
            physical and mental ability of a normal man."
 
            
 
                 Functional impairment is an element to be considered in 
 
            determining industrial disability which is the reduction of 
 
            earning capacity, but consideration must also be given to 
 
            the injured employee's age, education, qualifications, 
 
            experience, motivation, loss of earnings, severity and situs 
 
            of the injury, work restrictions, inability to engage in 
 
            employment for which the employee is fitted and the 
 
            employer's offer of work or failure to so offer.  Olson v. 
 
            Goodyear Serv. Stores, 255 Iowa 1112, 125 N.W.2d 251 (1963); 
 
            McSpadden v. Big Ben Coal Co., 288 N.W.2d 181 (Iowa 1980); 
 
            Barton v. Nevada Poultry Co., 253 Iowa 285, 110 N.W.2d 660 
 
            (1961).
 
            
 
                 Compensation for permanent partial disability shall 
 
            begin at the termination of the healing period.  
 
            Compensation shall be paid in relation to 500 weeks as the 
 
            disability bears to the body as a whole.  Section 85.34.
 
            
 
                 An injury to a scheduled member may, because of after 
 
            effects or compensatory change, result in permanent 
 
            impairment of the body as a whole.  Such impairment may in 
 
            turn be the basis for a rating of industrial disability.  It 
 
            is the anatomical situs of the permanent injury or 
 
            impairment which determines whether the schedules in section 
 
            85.34(2)(a) - (t) are applied.  Lauhoff Grain v. McIntosh, 
 
            395 N.W.2d 834 (Iowa 1986); Blacksmith v. All-American, 
 
            Inc., 290 N.W.2d 348 (Iowa 1980); Dailey v. Pooley Lumber 
 
            Co., 233 Iowa 758, 10 N.W.2d 569 (1943).  Soukup v. Shores 
 
            Co., 222 Iowa 272, 268 N.W. 598 (1936).
 
            
 
                 When disability is found in the shoulder, a body as a 
 
            whole situation may exist.  Alm v. Morris Barick Cattle Co., 
 
            240 Iowa 1174, 38 N.W.2d 161 (1949).  In Nazarenus v. Oscar 
 
            Mayer & Co., II Iowa Industrial Commissioner Report 281 
 
            (App. 1982), a torn rotator cuff was found to cause 
 
            disability to the body as a whole.
 
            
 
                 Claimant has established an entitlement to permanent 
 
            partial disability benefits of 20 percent of the body as a 
 
            whole.
 
            
 
                 Section 86.13 permits an award of up to 50 percent of 
 
            the amount of benefits delayed or denied if a delay in 
 
            commencement or termination of benefits occurs without 
 
            reasonable or probable cause or excuse.  The standard for 
 
            evaluating the reasonableness of defendants' delay in 
 
            commencement or termination is whether the claim is fairly 
 
            debatable.  Where a claim is shown to be fairly debatable, 
 
            defendants do not act unreasonably in denying payment.  See 
 
            Stanley v. Wilson Foods Corp., File No. 753405 (App. August 
 
            23, 1990); Seydel v. Univ. of Iowa Physical Plant, File No. 
 
            818849 (App. November 1, 1989).
 
            
 
                 Claimant has not established an entitlement to 
 
            additional benefits on account of defendants' unreasonable 
 
            delay or denial of benefits.
 
            
 
                                      ORDER
 

 
            
 
            Page  13
 
            
 
            
 
            
 
            
 
            
 
                 THEREFORE, IT IS ORDERED:
 
            
 
                 Defendants pay claimant permanent partial disability 
 
            benefits for one hundred (100) weeks at the rate of two 
 
            hundred sixty-six and 42/100 dollars ($266.42) per week with 
 
            those payments to commence on September 22, 1990.
 
            
 
                 Defendants receive credit as appropriate for benefits 
 
            previously paid.
 
            
 
                 Defendants pay claimant healing period benefits at the 
 
            rate of two hundred sixty-six and 42/100 dollars ($266.42) 
 
            per week from April 27, 1989, through September 21, 1990, 
 
            for those times in which claimant was actually off work.
 
            
 
                 Defendants receive credit as appropriate for benefits 
 
            previously paid, including credit for temporary partial 
 
            disability benefits previously paid.
 
            
 
                 Defendants pay accrued amounts in a lump sum.
 
            
 
                 Defendants pay interest pursuant to Iowa Code section 
 
            85.30, as amended.
 
            
 
                 Defendants pay costs pursuant to rule 343 IAC 4.33.
 
            
 
                 Defendants file claim activity reports as ordered by 
 
            the agency pursuant to rule 343 IAC 3.1.
 
            
 
            
 
                 Signed and filed this ______ day of ____________, 1992.
 
            
 
                 
 
            
 
                 
 
                 
 
                                          ______________________________
 
                                          HELENJEAN M. WALLESER
 
                                          DEPUTY INDUSTRIAL COMMISSIONER
 
            
 
            Copies To:
 
            
 
            Mr. James M. Peters
 
            Attorney at Law
 
            115 Third Street SE
 
            Suite 1200
 
            Cedar Rapids, Iowa  52401
 
            
 
            Mr. John M. Bickel
 
            Attorney at Law
 
            500 Firstar Bank Building
 
            P.O. Box 2107
 
            Cedar Rapids, Iowa  52406-2107
 
            
 
 
         
 
 
 
 
 
 
 
 
 
 
 
                                         1108.50; 1803; 2203; 2209
 
                                         Filed July 20, 1992
 
                                         HELENJEAN WALLESER
 
         
 
                 BEFORE THE IOWA INDUSRIAL COMMISSIONER
 
         ____________________________________________________________
 
                                       :
 
         NANCY JUETT,                  :
 
                                       :
 
              Claimant,                :         File Nos. 916008
 
                                       :                   940674
 
         vs.                           :                   936525
 
                                       :                   936526
 
         ORAL B LABORATORIES, INC.,    :                   936527
 
                                       :
 
              Employer,                :      A R B I T R A T I O N
 
              Self-Insured,            :
 
                                       :         D E C I S I O N
 
         and                           :
 
                                       :
 
         CIGNA INSURANCE COMPANY,      :
 
                                       :
 
              Insurance Carrier,       :
 
              Defendants.              :
 
         ____________________________________________________________
 
         
 
         
 
         1108.50
 
         Claimant's subclavian vein thrombosis found to be a sequela of 
 
         cumulative left shoulder injury where symptoms of thrombosis 
 
         first appeared subsequent to left shoulder acromioplasty with 
 
         excision of calcific tendinitis and physicians opined surgery 
 
         might have produced thrombosis.
 
         Claimant's right tennis elbow and left trigger finger not  found 
 
         to be injuries arising out of and in the course of employment.
 
         
 
         
 
         2203; 2209
 
         Claimant's left shoulder condition found to be an injury and not 
 
         an occupational disease.  Claimant's left shoulder condition 
 
         found to be one cumulative injury; alleged specific incidents of 
 
         injury found to be manifestations of the cumulative condition and 
 
         not separate injuries.
 
         
 
         
 
         1803
 
         Claimant, 49 years old with high school diploma whose employer 
 
         had accommodated, awarded 20 percent permanent partial disability 
 
         benefits.
 
         
 
 
            
 
            Page   1
 
            
 
            
 
            
 
            
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            MICHELE M. HOLLAND,           :
 
                                          :       File No. 940675
 
                 Claimant,                :
 
                                          :    A R B I T R A T I O N
 
            vs.                           :
 
                                          :       D E C I S I O N
 
            DUBUQUE PRINTING-BRIAN BOLTON,:
 
                                          :
 
                 Employer,                :
 
                 Defendant.               :
 
            ___________________________________________________________
 
            
 
            
 
                              STATEMENT OF THE CASE
 
            
 
                 This is a proceeding in arbitration brought by Michele 
 
            M. Holland, claimant, against Brian Bolton d/b/a Dubuque 
 
            Printing, employer (hereinafter referred to as Bolton whose 
 
            insurance status is unknown), defendant, for workers' 
 
            compensation benefits as a result of an alleged injury on 
 
            February 13, 1990.  On August 15, 1991, a hearing was held 
 
            on claimant's petition and the matter was considered fully 
 
            submitted at the close of this hearing.
 
            
 
                 Prior to hearing, the undersigned sanctioned defendant 
 
            for failure to comply with an order from this agency to file 
 
            a responsive pleading to claimant's petition for benefits.  
 
            This sanction consisted of closing the record to defendant.  
 
            Finally, defendant failed to appear at hearing despite 
 
            adequate notice.  In addition to the sanctions, default is 
 
            hereby entered and liability established.  Despite entry of 
 
            default, full factual findings are made in this decision to 
 
            establish liability otherwise.
 
            
 
                 Claimant chose not to retain a court reporter for this 
 
            hearing.  Claimant agreed in lieu thereof that this decision 
 
            and the exhibits received into the evidence shall constitute 
 
            the only official record of oral proceedings for purposes of 
 
            review or appeal.
 
            
 
                                      issues
 
            
 
                  I.  Whether claimant received an injury arising out of 
 
            and in the course of employment with Bolton; and,
 
            
 
                 II.  The extent of claimant's entitlement to medical 
 
            benefits.
 
            
 
                     
 
            
 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            findings of fact
 
            
 
                 Having heard the testimony and considered all the 
 
            evidence, the deputy industrial commissioner finds as 
 
            follows:
 
            
 
                 From her demeanor while testifying, claimant is found 
 
            credible.  All of the findings below are based primarily on 
 
            claimant's oral sworn testimony which was uncontroverted.
 
            
 
                 It is found that Brian Bolton, whose address is 2739 
 
            Central Avenue, Dubuque, Iowa, owned and operated a printing 
 
            business called Dubuque Printing at 1130 Iowa Street, 
 
            Dubuque, Iowa at the time of the alleged injury herein.  
 
            This business is no longer operating.  Claimant has not 
 
            received written notice of any bankruptcy proceeding.
 
            
 
                 Claimant was employed by Bolton for two years from 
 
            August 1989 until June 1990 as a press operator.  Claimant 
 
            earned $8.00 per hour in this job at the time of the alleged 
 
            injury.  Her normal work week consisted of 40 hours a week.
 
            
 
                 On or about February 13, 1990, claimant injured her 
 
            left foot.  This injury arose out of and in the course of 
 
            her employment at Bolton.  While walking into the print 
 
            shop, an automatic door shut behind her lacerating her left 
 
            heel.  This injury was reported to Bolton and his wife 
 
            transported claimant to Mercy Hospital.  Emergency room 
 
            physicians at Mercy Hospital in Dubuque treated the 
 
            laceration with sutures and she was sent home with 
 
            instructions to elevate the foot and apply ice packs.  
 
            Claimant testified at hearing that she recovered from this 
 
            injury and states that she has suffered no permanent effects 
 
            or disability as a result of the injury.
 
            
 
                 Claimant stated that she lost no work as a result of 
 
            the injury.  However, she incurred medical expenses in the 
 
            amount of $75.00, represented by exhibit 1, which is a bill 
 
            for the treatment of her foot injury at Mercy Hospital.  It 
 
            is found that this $75.00 expense is causally connected to 
 
            the work injury of February 13, 1990, and such charges are 
 
            fair and reasonable charges for fair and reasonable 
 
            treatment of the work injury.
 
            
 
                 To date, Bolton refuses to pay the Mercy Hospital bill 
 
            and claimant has been forced to incur this liability.  
 
            Bolton offered no excuse to claimant for non-payment other 
 
            than lack of insurance.
 
            
 
                                conclusions of law
 
            
 
                   I.  Claimant has the burden of proving by a 
 
            preponderance of the evidence that claimant received an 
 
            injury which arose out of and in the course of employment.  
 
            The words "out of" refer to the cause or source of the 
 
            injury.  The words "in the course of" refer to the time and 
 
            place and circumstances of the injury.  See Cedar Rapids 
 
            Community Sch. v. Cady, 278 N.W.2d 298 (Iowa 1979); Crowe v. 
 
            DeSoto Consol. Sch. Dist., 246 Iowa 402, 68 N.W.2d 63 
 
            (1955).  An employer takes an employee subject to any active 
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            or dormant health impairments, and a work connected injury 
 
            which more than slightly aggravates the condition is 
 
            considered to be a personal injury.  Ziegler v. United 
 
            States Gypsum Co., 252 Iowa 613, 620, 106 N.W.2d 591 (1960) 
 
            and cases cited therein.
 
            
 
                 In the case sub judice, claimant's credible testimony 
 
            established a work injury.
 
            
 
                  II.  Pursuant to Iowa Code section 85.27, claimant is 
 
            entitled to payment of reasonable medical expenses incurred 
 
            for treatment of a work injury.  However, claimant is 
 
            entitled to an order of reimbursement only if claimant has 
 
            paid those expenses.  Otherwise, claimant is entitled to 
 
            only an order directing the responsible defendants to make 
 
            such payments.  See Krohn v. State, 420 N.W.2d 463 (Iowa 
 
            1988).
 
            
 
                 In the case at bar, claimant's credible testimony and 
 
            exhibits 1 and 2 established entitlement to medical benefits 
 
            in the amount of $75.00.
 
            
 
                                      order
 
            
 
                 1.  Defendant, Brian Bolton, shall pay to claimant the 
 
            sum of seventy-five and no/l00 dollars ($75.00).  Claimant 
 
            shall be reimbursed for any of these expenses paid by her.  
 
            Otherwise, defendant shall pay the provider directly along 
 
            with any lawful late payment penalties imposed upon the 
 
            account by the provider.
 
            
 
                 2.  Defendant 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 August, 1991.
 
            
 
            
 
            
 
            
 
            
 
                                          ______________________________
 
                                          LARRY P. WALSHIRE
 
                                          DEPUTY INDUSTRIAL COMMISSIONER
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
            
 
            
 
            
 
            
 
            Copies To:
 
            
 
            Ms. Michele M. Holland
 
            17723 Valley Ridge Rd
 
            Durango  IA  52039
 
            REGULAR & CERTIFIED MAIL
 
            
 
            Brian Bolton
 
            2739 Central Ave
 
            Dubuque  IA  52001
 
            REGULAR & CERTIFIED MAIL
 

 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                           5-1100
 
                           Filed August 28, 1991
 
                           LARRY P. WALSHIRE
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            MICHELE M. HOLLAND,           :
 
                                          :       File No. 940675
 
                 Claimant,                :
 
                                          :    A R B I T R A T I O N
 
            vs.                           :
 
                                          :       D E C I S I O N
 
            DUBUQUE PRINTING-BRIAN BOLTON,:
 
                                          :
 
                 Employer,                :
 
                 Defendant.               :
 
            ___________________________________________________________
 
            
 
            
 
            
 
            5-1100
 
            Pro se claimant awarded payment of a hospital bill against a 
 
            pro se and uninsured employer.
 
            
 
 
            
 
            Page   1
 
            
 
            
 
                     BEFORE THE IOWA INDUSTRIAL COMMISIONER
 
             ____________________________________________________________
 
                      
 
            DONALD D. CARSNER,    
 
                        
 
                 Claimant,                     File No. 940690
 
                        
 
            vs.                                 A P P E A L
 
                        
 
            ROCKWELL GOSS,                     D E C I S I O N
 
                        
 
                 Employer,   
 
                 Self-Insured,    
 
                 Defendant.      
 
            ____________________________________________________________
 
            
 
            The record, including the transcript of the hearing before 
 
            the deputy and all exhibits admitted into the record, has 
 
            been reviewed de novo on appeal.
 
            
 
                                  ISSUE
 
            
 
            Those portions of the proposed agency decision pertaining to 
 
            issues not raised on appeal are adopted as a part of this 
 
            appeal decision.  The issue raised on appeal is:  Whether 
 
            the deputy commissioner erred in finding that claimant's 
 
            injury arose in the course of his employment with Rockwell 
 
            Goss; accordingly claimant is barred from recovering 
 
            permanent partial disability and medical benefits.
 
            
 
                              FINDINGS OF FACT
 
            
 
            The findings of fact contained in the proposed agency 
 
            decision filed December 12, 1991 are adopted as set forth 
 
            below.  Segments designated by asterisks (*****) indicate 
 
            portions of the language from the proposed agency decision 
 
            that have been intentionally deleted and do not form a part 
 
            of this final agency decision.
 
            *****
 
            Claimant is a 33-year-old factory worker who worked at Goss 
 
            from June 1988 until he was laid off in September 1991.  At 
 
            the time of the alleged injury, claimant was working an 
 
            afternoon to evening shift as a finish painter.  It was the 
 
            attendance policy at Goss at the time of the alleged injury 
 
            to liberally allow employees to leave early on Friday 
 
            evenings before a weekend.  This policy was designed to 
 
            improve Friday evening attendance at work.
 
            At the time of the alleged injury, the plant building in 
 
            which claimant was working was surrounded by a six foot 
 
            industrial fence located around the perimeter of the plant.  
 
            According to Goss management, the fence was installed to 
 
            insure that employees would not leave the plant 
 
            unsupervised.  Employees entering or leaving the plant must 
 
            enter or exit through various gates in the fence to travel 
 
            to and from various parking lots located on Goss's premises.  
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            These gates are operated only by an electric motor either by 
 
            a switch located in an adjacent guard shack or by operation 
 
            of an electric eye located outside of the fence.  During the 
 
            day, guards are located at each gate.  Claimant usually 
 
            parked his car in a parking area that required him to use 
 
            Gate F.  However, after 5:00 p.m., there usually were no 
 
            guards stationed at Gate F.  Claimant and two union 
 
            officials testified at hearing that when a guard was not 
 
            present, employees desiring to exit or enter the plant 
 
            through Gate F customarily used a wooden stick located near 
 
            the fence to activate the electric eye.  Claimant testified 
 
            that on a few occasions the electric eye technique would not 
 
            work and rather than walk to a different gate, which would 
 
            require several minutes of extra walking, he and two or 
 
            three other employees would simply climb over the gate.
 
            On the evening of the injury of June 20, 1990, claimant and 
 
            a fellow employee obtained permission to leave early as it 
 
            was a Friday evening.  When they left, as usually was the 
 
            case, a guard was not stationed at Gate F and they attempted 
 
            to use the wooden stick technique.  When this failed, they 
 
            climbed the gate.  In jumping from the gate, claimant 
 
            suffered an injury to his left knee.  Apparently, another 
 
            employee contacted claimant's supervisor who came to the 
 
            scene.  Claimant was then sent to the hospital to receive 
 
            treatment for the knee.
 
            There is little dispute as to the nature of the injury.  
 
            Claimant suffered a sufficient injury to the left knee to 
 
            warrant surgery.  Claimant was off work from June 20, 1990 
 
            through September 9, 1990, as a result of this treatment 
 
            according to claimant's treating orthopedic surgeon, William 
 
            Roberts, M.D.  Claimant then returned to work and remained 
 
            working until his layoff.  Dr. Roberts opines in exhibit 1 
 
            that due to the work injury of June 20, 1990, claimant 
 
            suffered a 24 percent permanent partial impairment to the 
 
            left leg.  This opinion is uncontroverted in the record.  
 
            Claimant had suffered a prior injury to his left leg and 
 
            knee in April 1990 in an altercation with police officers 
 
            during an OWI arrest for which he received treatment.  
 
            However, Dr. Roberts was aware of this injury according to 
 
            the hospital admission records of June 20, 1990.  Therefore, 
 
            it must be assumed that Roberts took this prior injury into 
 
            account when he rendered his causal connection opinions.
 
            Defendant asserts that claimant's act of climbing the gate 
 
            was in violation of an instructional work rule imposed upon 
 
            employees at the Goss plant.  Defendant relies upon a memo 
 
            from Brian Westlake, a management official at Goss in charge 
 
            of security.  Westlake testified that this memo was posted 
 
            on the employee bulletin boards in the plant prior to the 
 
            injury.  This memo stated as follows:
 
            
 
                 Date:  MARCH 23, 1990
 
            
 
                 TO:  EAST PLANT FOREMEN
 
            
 
                 Subject:  EAST SIDE PARKING LOT SECURITY
 
                 THE "F" GATE GUARD IS ASSIGNED SECURITY ROUNDS OF THE 
 
            OFFICES AND PROPERTY AFTER 5:00 PM EACH DAY.  WHEN EMPLOYEES 
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            FROM YOUR DEPARTMENTS WORK FLEXIBLE HOURS AND MUST LEAVE AT 
 
            TIMES OTHER THAN SCHEDULED SHIFT CHANGE TIMES, NOTIFY THE 
 
            "A" GATE GUARD POST AT EXTENSION 410 AND REPORT AN EMPLOYEE 
 
            WILL NEED ACCESS TO THE "F" GATE EXIT.  THE PLANT SECURITY 
 
            FORCE IS IN CONTACT BY TWO-WAY RADIO AND WILL THEN SUMMON 
 
            THE GUARD TO THIS EXIT.
 
            
 
            (Joint Exhibit 5)
 
            Witnesses testifying on behalf of claimant testified that 
 
            they did not see this memo prior to the injury.  Regardless 
 
            of whether or not this memo was posted prior to the injury, 
 
            it is specifically found that this memo does not establish a 
 
            work rule or an instruction to be followed by claimant or 
 
            any other nonmanagement employment at Goss.  Indeed, the 
 
            only employee who violated this memo or instruction was 
 
            claimant's foreman who failed to call the guards to allow 
 
            access to the F gate exit as specifically instructed in the 
 
            memo.
 
            
 
                 *****
 
            Therefore, it is found that claimant's leg injury on June 
 
            20, 1990, arose out of and in the course of his employment 
 
            at Goss.
 
            conclusions of law
 
            The conclusions of law contained in the proposed agency 
 
            decision filed December 12, 1991 are adopted as final agency 
 
            action.
 
            WHEREFORE, the decision of the deputy is affirmed.
 
            
 
                                      ORDER
 
            
 
                 THEREFORE, it is ordered:
 
            That defendant shall pay to claimant fifty-two point eight 
 
            (52.8) weeks of permanent partial disability benefits at the 
 
            rate of three hundred eighty-one and 66/l00 dollars 
 
            ($381.66) per week from September 10, 1990.
 
            
 
                 That defendant shall pay to claimant healing period 
 
            benefits from June 20, 1990 through September 9, 1990, at 
 
            the rate of three hundred eighty-one and 66/l00 dollars 
 
            ($381.66) per week.
 
            That defendant shall pay the medical expenses listed in the 
 
            prehearing report.  Claimant shall be reimbursed for any of 
 
            these expenses paid by him.  Otherwise, defendant shall pay 
 
            the provider directly along with any lawful late payment 
 
            penalties imposed upon the account by the provider.
 
            That defendant shall pay accrued weekly benefits in a lump 
 
            sum.
 
            That defendant shall receive credit for previous payment of 
 
            benefits under a nonoccupational group insurance plan 
 
            pursuant to Iowa Code section 85.38(2), as stipulated by the 
 
            parties in the prehearing report.
 
            That defendant shall pay the interest on weekly benefits 
 
            awarded herein as set forth in Iowa Code section 85.30.
 
            
 
                 That defendants shall pay the costs of this matter 
 
            including transcription of the hearing and shall reimburse 
 
            claimant for the filing fee if previously paid by claimant.
 
            That defendant shall file activity reports on the payment of 
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
            this award as requested by this agency pursuant to rule 343 
 
            IAC 3.1.
 
            Signed and filed this ____ day of March, 1993.
 
            
 
            
 
            
 
            
 
                                      ________________________________
 
                                               BYRON K. ORTON
 
                                         INDUSTRIAL COMMISSIONER
 
            
 

 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
            Copies To:
 
            
 
            Mr. Mark T. Hedberg
 
            Attorney at Law
 
            840 Fifth Ave
 
            Des Moines, IA  50309
 
            
 
            Mr. John M. Bickel
 
            Attorney at Law
 
            500 MNB Bldg
 
            P.O. Box 2107
 
            Cedar Rapids, IA  52406
 
            
 
 
            
 
 
 
              
 
                                              1106
 
                                              Filed March 29, 1993
 
                                              Byron K. Orton
 
            
 
                      BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
                        
 
            DONALD D. CARSNER,    
 
                        
 
                 Claimant,                     File No. 940690
 
                        
 
            vs.                                  A P P E A L
 
                        
 
            ROCKWELL GOSS,                     D E C I S I O N
 
                        
 
                 Employer,   
 
                 Self-Insured,    
 
                 Defendant.       
 
            ____________________________________________________________
 
          
 
            
 
            1106
 
            Injury sustained by claimant while jumping over a gate while 
 
            exiting a plant.  Found work related and compensable.
 
            
 
 
            
 
            Page   1
 
            
 
            
 
            
 
            
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            DONALD D. CARSNER,            :
 
                                          :        File No. 940690
 
                 Claimant,                :
 
                                          :     A R B I T R A T I O N
 
            vs.                           :
 
                                          :        D E C I S I O N
 
            ROCKWELL GOSS,                :
 
                                          :
 
                 Employer,                :
 
                 Self-Insured,            :
 
                 Defendant.               :
 
            ___________________________________________________________
 
            
 
            
 
                              STATEMENT OF THE CASE
 
            
 
                 This is a proceeding in arbitration brought by Donald 
 
            D. Carsner, claimant, against Rockwell Goss, employer 
 
            (hereinafter referred to as Goss), a self-insured defendant, 
 
            for workers' compensation benefits as a result of an alleged 
 
            injury on June 20, 1990.  On October 30, 1991, a hearing was 
 
            held on claimant's petition and the matter was considered 
 
            fully submitted at the close of this hearing.
 
            
 
                 The parties have submitted a prehearing report of con
 
            tested issues and stipulations which was approved and 
 
            accepted as a part of the record of this case at the time of 
 
            hearing.  The oral testimony and written exhibits received 
 
            during the hearing are set forth in the hearing transcript.
 
            
 
                 According to the prehearing report, the parties have 
 
            stipulated to the following matters:
 
            
 
                 1.  An employee-employer relationship existed between 
 
            claimant and Goss at the time of the alleged injury.
 
            
 
                 2.  Claimant is seeking temporary total disability or 
 
            healing period benefits from June 20, 1990 through September 
 
            9, 1990, and defendant agrees that claimant was not working 
 
            during this period of time.
 
            
 
                 3.  If the injury is found to have caused permanent 
 
            disability, the type of disability is a scheduled member 
 
            disability to the left leg.
 
            
 
                 4.  If permanent disability benefits are awarded, they 
 
            shall begin as of September 10, 1990.
 
            
 
                 5.  Claimant's rate of weekly compensation shall be 
 
            $381.66.
 
            
 
                 6.  With reference to the medical bills requested by 
 
            claimant, it was agreed that the provider of services to 
 
            claimant would testify that their bills were fair and rea
 
            sonable and defendant does not offer any contrary evidence.  
 
            It is also agreed that these expenses are causally connected 
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            to the medical condition upon which the claimant is basing 
 
            his claim in this case, but the issue of their causal con
 
            nection to a work injury remains in dispute.
 
            
 
                                      issues
 
            
 
                 The parties submitted the following issues for determi
 
            nation in this proceeding:
 
            
 
                   I.  Whether claimant received an injury arising out 
 
            of and in the course of his employment at Goss;
 
            
 
                  II.  The extent of claimant's entitlement to disabil
 
            ity benefits; and,
 
            
 
                 III.  The extent of claimant's entitlement to medical 
 
            benefits.
 
            
 
                                 findings of fact
 
            
 
                 Having heard the testimony and considered all the evi
 
            dence, the deputy industrial commissioner finds as follows:
 
            
 
                 A credibility finding is necessary to this decision as 
 
            defendant places claimant's credibility at issue during 
 
            cross-examination as to the nature and extent of the injury 
 
            and disability.  From his demeanor while testifying, 
 
            claimant is found credible.
 
            
 
                 Claimant is a 33-year-old factory worker who worked at 
 
            Goss from June 1988 until he was laid off in September 1991.  
 
            At the time of the alleged injury, claimant was working an 
 
            afternoon to evening shift as a finish painter.  It was the 
 
            attendance policy at Goss at the time of the alleged injury 
 
            to liberally allowed employees to leave early on Friday 
 
            evenings before a weekend.  This policy was designed to 
 
            improve Friday evening attendance at work.
 
            
 
                 At the time of the alleged injury, the plant building 
 
            in which claimant was working was surrounded by a six foot 
 
            industrial fence located around the perimeter of the plant.  
 
            According to Goss management, the fence was installed to 
 
            insure that employees would not leave the plant unsuper
 
            vised.  Employees entering or leaving the plant must enter 
 
            or exit through various gates in the fence to travel to and 
 
            from various parking lots located on Goss's premises.  These 
 
            gates are operated only by an electric motor either by a 
 
            switch located in an adjacent guard shack or by operation of 
 
            an electric eye located outside of the fence.  During the 
 
            day, guards are located at each gate.  Claimant usually 
 
            parked his car in a parking area that required him to use 
 
            Gate F.  However, after 5:00 p.m., there usually were no 
 
            guards stationed at Gate F.  Claimant and two union offi
 
            cials testified at hearing that when a guard was not pre
 
            sent, employees desiring to exit or enter the plant through 
 
            Gate F customarily used a wooden stick located near the 
 
            fence to activate the electric eye.  Claimant testified that 
 
            on a few occasions the electric eye technique would not work 
 
            and rather than walk to a different gate, which would 
 
            require several minutes of extra walking, he and two or 
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            three other employees would simply climb over the gate.
 
            
 
                 On the evening of the injury of June 20, 1990, claimant 
 
            and a fellow employee obtained permission to leave early as 
 
            it was a Friday evening.  When they left, as usually was the 
 
            case, a guard was not stationed at Gate F and they attempted 
 
            to use the wooden stick technique.  When this failed, they 
 
            climbed the gate.  In jumping from the gate, claimant suf
 
            fered an injury to his left knee.  Apparently, another 
 
            employee contacted claimant's supervisor who came to the 
 
            scene.  Claimant was then sent to the hospital to receive 
 
            treatment for the knee.
 
            
 
                 There is little dispute as to the nature of the injury.  
 
            Claimant suffered a sufficient injury to the left knee to 
 
            warrant surgery.  Claimant was off work from June 20, 1990 
 
            through September 9, 1990, as a result of this treatment 
 
            according to claimant's treating orthopedic surgeon, William 
 
            Roberts, M.D.  Claimant then returned to work and remained 
 
            working until his layoff.  Dr. Roberts opines in exhibit 1 
 
            that due to the work injury of June 20, 1990, claimant suf
 
            fered a 24 percent permanent partial impairment to the left 
 
            leg.  This opinion is uncontroverted in the record.  
 
            Claimant had suffered a prior injury to his left leg and 
 
            knee in April 1990 in an altercation with police officers 
 
            during an OWI arrest for which he received treatment.  
 
            However, Dr. Roberts was aware of this injury according to 
 
            the hospital admission records of June 20, 1990.  Therefore, 
 
            it must be assumed that Roberts took this prior injury into 
 
            account when he rendered his causal connection opinions.
 
            
 
                 Defendant asserts that claimant's act of climbing the 
 
            gate was in violation of an instructional work rule imposed 
 
            upon employees at the Goss plant.  Defendant relies upon a 
 
            memo from Brian Westlake, a management official at Goss in 
 
            charge of security.  Westlake testified that this memo was 
 
            posted on the employee bulletin boards in the plant prior to 
 
            the injury.  This memo stated as follows:
 
            
 
     
 
            
 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
            Date:  MARCH 23, 1990
 
            
 
                 TO:  EAST PLANT FOREMEN
 
            
 
                 Subject:  EAST SIDE PARKING LOT SECURITY
 
            
 
                      THE "F" GATE GUARD IS ASSIGNED SECURITY 
 
                 ROUNDS OF THE OFFICES AND PROPERTY AFTER 5:00 PM 
 
                 EACH DAY.  WHEN EMPLOYEES FROM YOUR DEPARTMENTS 
 
                 WORK FLEXIBLE HOURS AND MUST LEAVE AT TIMES OTHER 
 
                 THAN SCHEDULED SHIFT CHANGE TIMES, NOTIFY THE "A" 
 
                 GATE GUARD POST AT EXTENSION 410 AND REPORT AN 
 
                 EMPLOYEE WILL NEED ACCESS TO THE "F" GATE EXIT.  
 
                 THE PLANT SECURITY FORCE IS IN CONTACT BY TWO-WAY 
 
                 RADIO AND WILL THEN SUMMON THE GUARD TO THIS EXIT.
 
            
 
            (Joint Exhibit 5)
 
            
 
                 Witnesses testifying on behalf of claimant testified 
 
            that they did not see this memo prior to the injury.  
 
            Regardless of whether or not this memo was posted prior to 
 
            the injury, it is specifically found that this memo does not 
 
            establish a work rule or an instruction to be followed by 
 
            claimant or any other nonmanagement employment at Goss.  
 
            Indeed, the only employee who violated this memo or instruc
 
            tion was claimant's foreman who failed to call the guards to 
 
            allow access to the F gate exit as specifically instructed 
 
            in the memo.
 
            
 
                 It must be conceded, however, that claimant should have 
 
            known that any exit through a gate unsupervised by a guard 
 
            was contrary to the obvious purpose of the industrial fence 
 
            and the gates.  However, management at Goss should also have 
 
            taken more care in establishing procedures to ensure that 
 
            employees are not unusually inconvenienced in exiting or 
 
            entering the plant.  Management at Goss should have known of 
 
            the practice of employees using the wooden stick technique 
 
            to trip the electric eye or the acts of climbing over the 
 
            fence.  How else would employees exit through Gate F when a 
 
            guard was not present?
 
            
 
                 Defendant asserts that claimant's act of climbing the 
 
            fence was unreasonable and needlessly dangerous conduct.  
 
            This clearly is not the case.  Although claimant's act of 
 
            climbing the fence may not have been wise in retrospect, he 
 
            is a young, healthy male and climbing or jumping from a six 
 
            foot gate would usually not be considered dangerous 
 
            activity.
 
            
 
                 Therefore, it is found that claimant's leg injury on 
 
            June 20, 1990, arose out of and in the course of his employ
 
            ment at Goss.
 
            
 
                    
 
            
 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
            conclusions of law
 
            
 
                   I.  Claimant has the burden of proving by a prepon
 
            derance of the evidence that claimant received an injury 
 
            which arose out of and in the course of employment.  The 
 
            words "out of" refer to the cause or source of the injury.  
 
            The words "in the course of" refer to the time and place and 
 
            circumstances of the injury.  See Cedar Rapids Community 
 
            Sch. v. Cady, 278 N.W.2d 298 (Iowa 1979); Crowe v. DeSoto 
 
            Consol. Sch. Dist., 246 Iowa 402, 68 N.W.2d 63 (1955).  An 
 
            employer takes an employee subject to any active or dormant 
 
            health impairments, and a work connected injury which more 
 
            than slightly aggravates the condition is considered to be a 
 
            personal injury.  Ziegler v. United States Gypsum Co., 252 
 
            Iowa 613, 620, 106 N.W.2d 591 (1960) and cases cited 
 
            therein.
 
            
 
                 Injuries occurring during egress and ingress from a 
 
            work station while on the employer's premises are covered by 
 
            workers' compensation statute.  Paras v. Power Manufacturing 
 
            Company, Thirty-three Biennial Report, Iowa Industrial 
 
            Commissioner 147 (Appeal Decision 1977).
 
            
 
                 In the case sub judice, claimant relies upon the 
 
            defenses of rule violation and rash act.  First, defendant 
 
            fails to establish that any exit through or over a gate 
 
            without a guard being present was a violation of any rule or 
 
            instruction to employees generally.  However, even if such a 
 
            violation could be implied from the very existence of the 
 
            fence, the defense is not available to defendant in this 
 
            case because the employer should have known that the workers 
 
            were customarily traveling through the gate in this matter.  
 
            1A Larson Workmen's Compensation Law, section 30.21 at 6-2 
 
            (1990).
 
            
 
                 With reference to the defense of unusual rash act, 
 
            defendant again failed to show that the act of jumping off 
 
            the fence was an unusual or rash act for a young, healthy 
 
            male.  Furthermore, such a defense is not viable in the 
 
            State of Iowa.  See Lawyer & Higgs, Iowa Workers' 
 
            Compensation -- Law and Practice, section 6-10, pp. 51-52.
 
            
 
                  II.  Claimant must establish by a preponderance of the 
 
            evidence the extent of weekly benefits for permanent dis
 
            ability to which claimant is entitled.  Permanent partial 
 
            disabilities are classified as either scheduled or unsched
 
            uled.  A specific scheduled disability is evaluated by the 
 
            functional method; the industrial method is used to evaluate 
 
            an unscheduled disability.  Martin v. Skelly Oil Co., 252 
 
            Iowa 128, 133, 106 N.W.2d 95, 98 (1960); Graves v. Eagle 
 
            Iron Works, 331 N.W.2d 116 (Iowa 1983); Simbro v. DeLong's 
 
            Sportswear, 332 N.W.2d 886, 997 (Iowa 1983).  When the 
 
            result of an injury is loss to a scheduled member, the com
 
            pensation payable is limited to that set forth in the appro
 
            priate subdivision of Code section 85.34(2).  Barton v. 
 
            Nevada Poultry Co., 253 Iowa 285, 110 N.W.2d 660 (1961).  
 
            "Loss of use" of a member is equivalent to 'loss' of the 
 
            member.  Moses v. National Union C.M. Co., 194 Iowa 819, 184 
 
            N.W. 746 (1922).  Pursuant to Code section 85.34(2)(u) the 
 

 
            
 
            Page   6
 
            
 
            
 
            
 
            
 
            industrial commissioner may equitably prorate compensation 
 
            payable in those cases wherein the loss is something less 
 
            than that provided for in the schedule.  Blizek v. Eagle 
 
            Signal Company, 164 N.W.2d 84 (Iowa 1969).
 
            
 
                 In the case sub judice, it was found that claimant suf
 
            fered a 24 percent permanent partial loss of use to his left 
 
            leg.  Based upon such a finding, claimant is entitled as a 
 
            matter of law to 52.8 weeks of permanent partial disability 
 
            benefits under Iowa Code section 85.34(2)(o) which is 24 
 
            percent of 220 weeks, the maximum allowable number of weeks 
 
            for an injury to the leg of that subsection.
 
            
 
                 As claimant has established entitlement to permanent 
 
            partial disability, claimant is entitled to weekly benefits 
 
            for healing period under Iowa Code section 85.34 from the 
 
            date of injury until he returns to work.  It was found that 
 
            claimant was off work from June 20, 1990 through September 
 
            9, 1990.  Healing period benefits will be awarded accord
 
            ingly.
 
            
 
                 III.  Pursuant to Iowa Code section 85.27, claimant is 
 
            entitled to payment of reasonable medical expenses incurred 
 
            for treatment of a work injury.  However, claimant is enti
 
            tled to an order of reimbursement only if claimant has paid 
 
            those expenses.  Otherwise, claimant is entitled to only an 
 
            order directing the responsible defendants to make such pay
 
            ments.  See Krohn v. State, 420 N.W.2d 463 (Iowa 1988).
 
            
 
                 In the case at bar, the parties stipulated that the 
 
            requested expenses are causally connected to the condition 
 
            claimed to be work-related.  The fighting dispute in this 
 
            case is whether or not the injury was related to claimant's 
 
            job and arose out of employment.  As the injury was found to 
 
            have arisen from the employment, the expenses by operation 
 
            of the stipulation are held compensable.  The requested 
 
            expenses will be awarded accordingly.
 
            
 
                                      order
 
            
 
                 1.  Defendant shall pay to claimant fifty-two point 
 
            eight (52.8) weeks of permanent partial disability benefits 
 
            at the rate of three hundred eighty-one and 66/l00 dollars 
 
            ($381.66) per week from September 10, 1990.
 
            
 
                 2.  Defendant shall pay to claimant healing period 
 
            benefits from June 20, 1990 through September 9, 1990, at 
 
            the rate of three hundred eighty-one and 66/l00 dollars 
 
            ($381.66) per week.
 
            
 
                 3.  Defendant shall pay the medical expenses listed in 
 
            the prehearing report.  Claimant shall be reimbursed for any 
 
            of these expenses paid by him.  Otherwise, defendant shall 
 
            pay the provider directly along with any lawful late payment 
 
            penalties imposed upon the account by the provider.
 
            
 
                 4.  Defendant shall pay accrued weekly benefits in a 
 
            lump sum.
 
            
 
                 5.  Defendant shall receive credit for previous payment 
 

 
            
 
            Page   7
 
            
 
            
 
            
 
            
 
            of benefits under a nonoccupational group insurance plan 
 
            pursuant to Iowa Code section 85.38(2), as stipulated by the 
 
            parties in the prehearing report.
 
            
 
                 6.  Defendant shall pay the interest on weekly benefits 
 
            awarded herein as set forth in Iowa Code section 85.30.
 
            
 
                 7.  Defendant shall pay the cost of this action pur
 
            suant to rule 343 IAC 4.33, including reimbursement to 
 
            claimant for any filing fee paid in this matter.
 
            
 
                 8.  Defendant shall file activity reports on the pay
 
            ment of this award as requested by this agency pursuant to 
 
            rule 343 IAC 3.1.
 
            
 
            
 
            
 
                 Signed and filed this ____ day of December, 1991.
 
            
 
            
 
            
 
            
 
            
 
                                          ______________________________
 
                                          LARRY P. WALSHIRE
 
                                          DEPUTY INDUSTRIAL COMMISSIONER
 
            
 
            
 
            
 
            Copies To:
 
            
 
            Mr. Mark T. Hedberg
 
            Attorney at Law
 
            840 Fifth Ave
 
            Des Moines  IA  50309
 
            
 
            Mr. John M. Bickel
 
            Attorney at Law
 
            500 MNB Bldg
 
            P O Box 2107
 
            Cedar Rapids  IA  52406
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                               1106
 
                                               Filed December 12, 1991
 
                                               LARRY P. WALSHIRE
 
            before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            DONALD D. CARSNER,            :
 
                                          :        File No. 940690
 
                 Claimant,                :
 
                                          :     A R B I T R A T I O N
 
            vs.                           :
 
                                          :        D E C I S I O N
 
            ROCKWELL GOSS,                :
 
                                          :
 
                 Employer,                :
 
                 Self-Insured,            :
 
                 Defendant.               :
 
            ___________________________________________________________
 
            
 
            
 
            
 
            1106
 
            
 
                 Injury sustained by claimant while jumping over a gate 
 
            while exiting a plant.  Found work related and compensable.