BEFORE THE IOWA INDUSTRIAL COMMISSIONER ____________________________________________________________ : DAVID HAGEN, : : Claimant, : File No. 940698 : vs. : : A R B I T R A T I O N DEERE AND COMPANY, : : D E C I S I O N Employer, : Self-Insured, : Defendant. : ___________________________________________________________ INTRODUCTION This is a proceeding in arbitration brought by David Hagen, claimant, against Deere and Company, employer and self-insured defendant, for benefits as the result of an alleged hearing loss which occurred on March 31, 1989. A hearing was held in Waterloo, Iowa, on April 29, 1992, and the case was fully submitted at the close of the hearing. Claimant was represented by Robert D. Fulton. Defendants were represented by John W. Rathert. The record consists of the testimony of David Hagen, claimant; Richard Eldridge, coworker; Helen Hagen, claimant's wife; and joint exhibits 1 through 8. The deputy ordered a transcript of the hearing. Both attorneys submitted excellent posthearing briefs. ISSUES The parties submitted the following issues for determination at the time of the hearing: Whether claimant sustained an occupational hearing loss which arose out of and in the course of employment with employer caused by prolonged exposure to excessive noise levels; Whether claimant is entitled to occupational hearing loss compensation, and if so, the extent of benefits to which he is entitled. FINDINGS OF FACT occupational hearing loss It is determined that claimant has sustained an occupational hearing loss pursuant to Iowa Code section 85B. Iowa Code section 85B.4(1) defines occupational hearing loss as a permanent sensorineural loss of hearing in one or both ears in excess of 25 decibels which arises out of and in the course of employment caused by prolonged exposure to excessive noise levels. Iowa Code section 85B.4(2) defines excessive noise Page 2 level as sound capable of producing occupational hearing loss. Iowa Code section 85B.5 states that excessive noise level is sound which exceeds the times and intensities listed in the table shown in that section. This table provides in part as follows: Duration per day hours Sound Level, dBA slow response 8 90 7 91 6 92 5 93 4 1/2 94 4 95 3 1/2 96 3 97 2 1/2 98 2 1/4 99 2 100 1 3/4 101 1 1/2 102 1 1/4 103 1 1/8 104 1 105 Claimant is a 30-year employee of employer. Claimant graduated from high school in 1958 and worked approximately nine months making laminated wrappers for another company, but then started to work for employer on March 11, 1959. He then started to work for employer and has worked there for 30 years until his retirement on March 31, 1989. He did not have any outside or part-time employment of any kind (transcript pages 7-10). The dates, departments and the job duties which claimant performed from March 11, 1959 to March 31, 1989, are shown on exhibit 6-2. Claimant testified and exhibit 6-2 shows, that from March 11, 1959 to November 13, 1959, a period of approximately eight months, that claimant worked in department 36. Claimant testified that department 36 is the heat treat department which was noisy due to the furnaces and ceiling fans in this department (tr. p. 15). Claimant further testified that the furnaces made a roaring sound from the flames and that the ceiling fans contributed additional noise to the environment (tr. p. 16). In a prepared statement prior to hearing, claimant wrote that from March 11, 1959 to November 13, 1959, that he worked in department 36 which was the heat treat department which had loud furnaces and fans (exhibit 5-1). A machine noise survey for department 36 on April 18, 1972, showed a decibel level of 92 (ex. 4-89). A plant noise survey form for January 26, 1972, showed noise levels of 102 and 105 decibels (ex. 4-90). Another plant noise survey form on January 26, 1972, for department 36 showed decibel levels of 92 and 95 (ex. 4-91). Page 3 Claimant was laid off from November 13, 1959, until April 12, 1960, a period of approximately five months. From April 12, 1960 to August 15, 1960, a period of four months, claimant worked in department 14C. Claimant testified that this was the turret lathe department and he experienced noise from the cutting tools (tr. p. 17). Claimant related that there was a lot of high pitched grinding noise from 30 to 40 grinders in this department. Claimant further testified that he worked in this department at least eight hours per day and sometimes he performed overtime (tr. pp. 21-22). Claimant examined exhibit 4-6 and testified that essentially the same machines were in this department when he worked there (tr. p. 21). The exhibit shows decibels ranging from a low of 82 decibels to a high of 108 decibels on May 3 and 4, 1976 (ex. 4-6 through 4-8). Another noise survey for department 14C listed several machines and showed decibel levels between a low of 81 decibels and a high of 106 decibels. The date of this report is cut off by the copy machine (ex. 4-9). Another plant noise survey form, dated January 26, 1972, showed decibel levels of 92 and 95 for one of the machines in the department (ex. 4-10). Another plant noise survey form for August 19, 1971, showed decibel levels of 95 and it was recommended that the operator of the machine should wear hearing protection. The evaluator also recommended that excessive noise level should be reduced to acceptable levels by feasible engineering and/or administrative controls (ex. 4-11). Still another plant noise survey form for department 14C showed decibel levels from 88 to 90 at a particular machine on August 19, 1971 (ex. 4-12). A noise level survey for department 14C on a date which is cut off by the copy machine showed that the employee was overexposed but the overexposure did not exceed 115 decibels (ex. 4-2). Two other reports do not indicate whether the employee was overexposed or not. These entries were not completed. The dates of the reports were cut off by the copy machine (exs. 4-3; 4-4). From August 15, 1960 until June 16, 1961, a period of approximately 10 months, claimant worked in department 24 (ex. 6-2). Claimant testified that in department 24 he operated a grinder which performed the finish grind after a part had been hobbed and heat treated. He described this as a big machine with a large grinding wheel turned by an electric motor which ground transmission parts down to tolerance. He indicated that this was metal grinding on metal which caused a high pitched grinding sound (exs. 18-20). A dosimeter exposure record for department 24 showed that the operator of a machine on May 18, 1976, was overexposed but that the exposure did not exceed 115 decibels (ex. 4-55). Another dosimeter report for May 19, 1976, showed an operator in department 24 was overexposed and the exposure exceeded 115 decibels (ex. 4-56). Another dosimeter report for May 19, 1976, in department 24 showed that the operator of a machine was overexposed but it did not exceed 115 decibels (ex. 4-57). A list of several machines on May 7, 1976, showed decibel levels between a low of 84 and a high of 95 (ex. 4-58). Another report for Page 4 department 24 on November 3, 1971, showed decibel levels between a low of 78 and a high of 92 near various machines (ex. 4-59). From June 16, 1961 until March 2, 1962, a period of nine months approximately, claimant was on lay off (ex. 6, p. 2). From March 2, 1962 until June 1, 1962, a period of three months, claimant returned to work in department 24, which has been described above. From June 1, 1962 until June 19, 1962, a period of 18 days, claimant was on lay off again (ex. 6-2). From June 19, 1962 until July 1, 1968, a period of approximately six years and a few days, claimant worked as an assembler in department 25 (ex. 6-2). Claimant testified that he ground a cam shaft with a grinder again. He testified that there were five or six grinders in a battery. He related that there were two roughing grinders, one finish grinder and another grinder that would grind bearings. This was a very large machine with a large grinding wheel grinding on metal which would make a high pitched noise. Claimant testified that he performed these duties for eight and sometimes twelve hours per day and sometimes worked on Saturday. The bearing grinder was twice as big as the other two grinders. It had four grinding wheels. It had a bigger motor and made more noise which again was high pitched. Claimant related that he worked a lot of overtime in department 25 (tr. pp. 24-27). In a separate written statement and the diagram of the layout of this department claimant wrote that he ran a battery of five machines which consisted of large electric motors, hydraulic pumps and valves and ground cam shafts (ex. 5-1). A noise level data sheet dated August 23, 24, and 25, 1971, showed noise levels in department 25 ranging between 89 decibels and 97 decibels (ex. 4-13). Another departmental noise survey for department 25 made on July 16, 1973, recorded decibels ranging between a low of 82 decibels and a high of 106 decibels (ex. 4-62 and 4-63). Another plant noise level survey form dated November 18, 1971, for department 25 recorded 95 decibels and recommended that hearing protection should be worn (ex. 4-64). A noise survey of department 25 on May 13, 1971, reported decibel levels of 92, 95 and 115. It stated the operator of this machine was overexposed and that personal hearing protection should be provided and used by employees exposed to excessive noise levels (ex. 4-65). A survey in department 25 on November 7, 1972, disclosed decibel levels of 95, 97 and 100. A dosimeter record on November 7, 1972, in department 25 showed that the employee was overexposed and the decibels exceeded 115 decibels (ex. 4-70). A noise survey form on December 2, 1969, for department 25 reported decibel levels of 96, 100, 102, and 103 (ex. 4-71). A dosimeter exposure record in department 25 on July 17, 1973, showed the employee was overexposed but the decibel level did not exceed 115 decibels. Dosimeter reports occurred for Page 5 department 25 on July 17, 1973 (ex. 4-73), July 16, 1973 (ex. 4-75), August 28, 1973 (ex. 4-76), September 25, 1973 (ex. 4-77), January 22, 1974 (ex. 4-78), and February 26, 1973 (ex. 4-82). An employee was overexposed and the overexposure exceeded 115 decibels in department 25 on December 17, 1974 (ex. 4-83). Claimant testified that he knew the names of these persons named on these noise level reports and that he worked with them in the same department as a coemployee (tr. pp. 26-29). Claimant did not recall being tested personally during any of these surveys (tr. p. 29). From July 1, 1968 until January 5, 1972, a period of approximately three and one-half years, claimant continued to work in department 25 but this time as an assembler of transmission parts. He testified that this was not as noisy as the grinders, but it was noisy because he was still close to the grinders in the same room (tr. p. 30). From January 5, 1972 until April 3, 1972, a period of approximately three months, claimant worked as an assembler in department 23. He testified that this was not as noisy as the machine areas (tr. p. 31). Dosimeter exposure records for department 23 on May 10, 1976, reveal that the employee tested was overexposed and that the decibels exceeded 115 decibels (exs. 4-37 through 4-39). Another employee was overexposed but the exposure did not exceed 115 decibels (ex. 4-40). A departmental noise survey dated May 7, 1976, for numerous machines showed decibel levels ranging between a low of 84 decibels and a high of 109 decibels (exs. 4-41 and 4-42). A dosimeter exposure record for department 23 on May 16, 1974, showed the employee was overexposed and the exposure exceeded 115 decibels (ex. 4-43). A machine noise survey in department 23 on April 11, 1972, shows that the employee received a 147 percent exposure for an eight-hour shift and that the maximum allowable exposure for an eight-hour shift was 100 percent. The reporter also added that the operator was exposed to 116 decibels or more sometime during the shift and added that he is allowed no exposure at this level and that hearing protection should be worn (ex. 4-44). A dosimeter exposure record in department 23 on April 11, 1972, showed the employee to be overexposed and the overexposure exceeded 115 decibels (ex. 4-45). A machine noise survey in department 23 on February 29, 1972, recorded exposures of 90, 92, 95, 97, and 100 decibels (ex. 4-46). A plant noise survey form on November 9, 1970, disclosed decibel levels of 92, 93, 95, 96, and 104 in department 23 (ex. 4-47). On November 18, 1971, a plant noise survey form in department 23 revealed decibel exposures of 92, 95, 97, 100, and 102 (ex. 4-48). Reports for department 23 on September 11, 1973; January 3, 1974; November 11, 1974; and March 22, 1974; reported that these employees were overexposed but that the decibel level did not exceed 115 decibels (ex. 4-50 through 4-54). From April 3, 1972 until October 29, 1973, a period of one year and six months, claimant worked as a machine tool Page 6 operator in department 21 (ex. 6-2). Claimant testified that he operated a broach machine that cut splines inside of gears. Claimant testified that this work was "fairly noisy." He said that it created a low pitched rumbling noise from pulling the teeth through the part (tr. pp. 31-33). A noise level data sheet for department 21 dated August 23, 24, and 25, 1971, showed noise levels from a low of 89 decibels to a high of 94 decibels in department 21 (ex. 4-13 and 4-14). A department noise level survey on July 17, 1973, for department 21 listed numerous machines with reported noise levels between a low of 82 and a high of 100 decibels (ex. 4-15). A similar report on July 18, 1973, for department 21 showed decibel levels between a low of 83 and a high of 100 decibels (ex. 4-16). A similar report for department 21 on September 5, 1973, showed decibel levels with a low of 84 and a high of 96 (ex. 4-17). A plant noise survey form dated January 13, 1972, recorded noise levels of 90, 92, 95, 97, 104, and 105 decibels (ex. 4-18). A plant noise survey form for department 21 dated January 14, 1972, reported noise levels of 92 and 95 decibels (ex. 4-19). A plant noise survey form for department 21 dated January 15, 1973, showed a noise level of 91 decibels (ex. 4-20). Several dosimeter exposure records for department 21 from May 25, 1973 through January 16, 1974, show that several employees were overexposed but that the decibel level did not exceed 115 decibels (ex. 4-21 through 4-36). From October 29, 1973, until July 28, 1980, a period of approximately six years and 10 months, claimant worked as a machine tool operator in department 33A (ex. 6-2). In his written job description claimant stated that there was a large 4-foot by 4-foot fan about six feet away from his work area which he later got moved farther away (ex. 5, p. 1). At hearing, claimant testified that he ground transmission parts and hydraulic pump parts with a large grinding wheel approximately four inches wide and 36 inches in diameter from 8 to 12 hours per day. He explained that a regular shift was 8 hours and overtime was 12 hours. Claimant testified that hearing protection was not required or provided and that he did not wear any hearing protection (tr. pp. 35-36). A departmental noise survey conducted on May 15, 1975, for numerous machines in department 33A showed a low decibel level of 80 decibels and a high decibel level of 96 decibels (ex. 4-84). A similar survey of similar machines in department 33A on April 25, 1972, recorded a low decibel level of 80 decibels and a high decibel level of 100 decibels (ex. 4-85). A plant noise survey form on April 27, 1971, showed decibel level of 86 and 88 in department 33A (ex. 4-86). Another noise survey believed to be conducted in department, with the exact date unknown because the copy machine cut off the department number and the date, showed decibels with a low level of 84 and a high level of 107 (ex. 4-88). From July 28, 1980 until November 16, 1987, a period of seven years and four months, claimant worked in department Page 7 517 as a cylinder grinder operator (ex. 6-2). In claimant's written description of his job he wrote that from November 2, 1981 until November 16, 1987, he operated a CNC grinder in department 517 that was very large and had many electric motors and hydraulic pumps (ex. 5-2). He testified that there was more noise in this department at this period of time because there were more machines operating at the same time (tr. p. 37). Dosimeter records for department 517 on various dates, mostly in 1988, show dBA levels of 85, 82.6, 85.8, 84.7, 83.6, and 85.1 (exs. 4-100 through 4-105). From November 16, 1987, until claimant's retirement on March 31, 1989, a period of approximately one year and four months, claimant worked as a tool setter in department 503 (ex. 6-2). Dosimeter exposure records in 1988, in department 503, shown on the available records are 78.3, 75.6, 84.2, 77.7, 77.2, 79.8, 92.6, and 71.1 (exs. 4-92 through 4-97). The only dosimeter record for claimant personally, is for November 28, 1988, in department 503, where is was recorded that the equivalent dBA level was 77.7 (ex. 4-95). A study of the audiograms performed by employer beginning in 1976 through 1979, when claimant worked in department 33A, shows a steady decibel loss in both his left and right ears (exs. 3-8, 3-9, 3-11, 3-17, & 3-21). Audiograms performed by the company in 1980, 1981, 1982, and 1983, show a slight decrease in the decibel loss in both the left and right ears (exs. 3-6, 3-7, & 3-10). Audiograms for 1984 and later will be given after the following testimony is considered. Claimant testified that he first started noticing hearing problems in 1985 or 1986 because his ears would ring a lot and he could not understand people in crowds or if there was other background noise (tr. pp. 38-39, 66). Helen Hagen, claimant's wife of 33 years, testified that she first noted that claimant was having hearing problems six or seven years ago which would be approximately 1985 (tr. p. 90). She said claimant complained of ringing in his ears. She had to repeat herself when she spoke to claimant and he played the television much louder (tr. p. 91). This would have been at the time when claimant worked in department 517 operating the same machine that he did in department 33A but said that it was louder because there was a battery of 10 to 12 machines in his immediate vicinity (ex. 5-1; tr. pp. 36-37). Richard Eldridge, a coemployee of claimant, testified that he is a 20-year employee of employer and that he worked with claimant in departments 33A and 517 for quite a few years (tr. pp. 72-73). He verified that they operated large machines and large grinding wheels which were grinding on metal that made a whining noise while grinding. In addition, the machines themselves made a noise like a roar from the hydraulic motors (tr. pp. 74-75). Eldridge verified that claimant operated a larger grinder. The bigger the machine, the bigger the motors and the bigger the Page 8 grinding wheels. He estimated that there were 14 machines operating in this department (tr. pp. 74-75). This dialogue transpired between counsel and the witness: Q. How would you describe the noise from all of them together? A. It's loud. The more machines you got running, the louder it gets. (transcript pages 76-77) Eldridge stated that they worked a lot of overtime in departments 33A and 517, up to 12 hours a day and six or seven days a week (tr. p. 77). Eldridge corroborated claimant by testifying that the noise was worse in department 517 because there were three or four times as many machines operating and in addition, they had tandem lines of grinders in a line in sequence operating in that department (tr. p. 78). Eldridge further testified, "And like a lot of the parts that it ran were hollow tubes and they would go through the grinders and they would just scream." (tr. p. 78). It was a high pitched, intense noise that lasted from a few hours up to a few days (tr. pp. 78-79). Eldridge further testified, "It's like certain days, like when they ran them hollow tubes, I forget what they call them, it was earshattering in there." (tr. p. 80). The witness stated that they also worked overtime off and on in department 517 (tr. p. 81). He further testified that when claimant worked there, the employees were not required to wear hearing protection, but now employees, plant wide, are required to wear hearing protection (tr. p. 81). The audiograms performed by employer on August 31, 1984 (ex. 3-10) and September 12, 1985 (ex. 3-9), when claimant was in department 517, again registered a renewed marked increase in hearing loss in both ears. A subsequent audiogram performed by employer on May 8, 1987, when claimant worked in department 517, showed a continued increase of hearing loss in the left ear (exs. 33-11, 3-17, & 3-21). The next audiogram performed by employer on June 16, 1988, when claimant worked in department 503, showed a substantial increase of hearing loss in both ears which calculated out to an 8.75 percent occupational hearing loss (exs. 3-4, 3-15, 3-16, & 3-18). The next audiogram performed by employer on November 10, 1989, approximately seven months after claimant retired on March 31, 1989, showed a slightly increased loss of hearing in the right ear and calculated out to be a 10.9375 percent of occupational hearing loss (ex. 3-2). Wherefore, based on the foregoing evidence, claimant has made a prima facie case and has sustained the burden of proof as a matter of fact that he has sustained an occupational hearing loss in excess of 25 decibels in one or Page 9 both ears which arose out of and in the course of employment with employer due to prolonged exposure to excessive noise levels. Claimant testified that he worked in a noisy environment by describing the work he performed and the noise it created. Eldridge corroborated claimant's testimony that claimant worked in a very noisy work environment in department 33A and department 517 where several machines were operating in tandem making a high pitched whine from the grinding and a loud roar from the operation of the machines themselves. Employers noise level reports and surveys show that the noise in the departments in which claimant worked frequently exceeded 90 decibels and sometimes exceeded 115 decibels. Even though the dates of the reports do not necessarily correlate with the times when claimant worked in those departments, they, nevertheless, establish the general noise level in these departments. Claimant's evidence was not controverted, contradicted, rebutted, or refuted. In fact, defendant presented no separate evidence. Even though claimant was not placed at a particular point on any of these reports where the noise level was excessive, nevertheless, claimant testified that he knew many of the people named in these reports and that he worked with them in the same department at the same time as a coemployee. The audiograms show a steady increase in claimant's hearing loss from 1976 through 1979 and a further increase from 1984 through 1989. At the request of employer, claimant was examined by Michael W. Hill, M.D., a otolaryngologist at the Wolfe Clinic on April 9, 1990. Dr. Hill begins his report by stating that this 51-year-old gentleman relates that he spent 30 years at John Deere operating a grinder without any type of ear protection. Dr. Hill concluded that his clinical impression was bilateral sensorineural hearing loss, the majority of which is most likely noise induced. He recommended binaural hearing aids (ex. 3-12). Claimant was also examined by his own evaluator, E.L. Grandon, M.D., and otolaryngologist, on October 16, 1991. Dr. Grandon stated that his audiogram reveals a bilateral sensorineural hearing loss, much worse in the right ear than the left for speech reception. Dr. Grandon added that it was his feeling that the type of audiogram curve was indicative of noise exposure and he further felt that the majority of claimant's hearing loss above that of an aging process must be considered to be acoustic trauma (ex. 1-1). Thus, two otolaryngologists established that claimant has a sensorineural bilateral hearing loss which is noise induced. Even though neither doctor specifically stated that it was caused by claimant's work, Dr. Hill saw fit to record that claimant worked on a grinding machine for 30 years without hearing protection and Dr. Grandon recorded in his history that claimant worked for 30 years in a noisy environment around noisy fans. Page 10 The claimant has the burden of proving by a preponderance of the evidence that the injury of March 31, 1989, is causally related to the disability on which he now bases his claim. Bodish v. Fischer, Inc., 257 Iowa 516, 133 N.W.2d 867 (1965). Lindahl v. L. O. Boggs, 236 Iowa 296, 18 N.W.2d 607 (1945). A possibility is insufficient; a probability is necessary. Burt v. John Deere Waterloo Tractor Works, 247 Iowa 691, 73 N.W.2d 732 (1955). The question of causal connection is essentially within the domain of expert testimony. Bradshaw v. Iowa Methodist Hospital, 251 Iowa 375, 101 N.W.2d 167 (1960). However, expert medical evidence must be considered with all other evidence introduced bearing on the causal connection. Burt, 247 Iowa 691, 73 N.W.2d 732. The opinion of experts need not be couched in definite, positive or unequivocal language. Sondag v. Ferris Hardware, 220 N.W.2d 903 (Iowa 1974). However, the expert opinion may be accepted or rejected, in whole or in part, by the trier of fact. Id., at 907. Further, the weight to be given to such an opinion is for the finder of fact, and that may be affected by the completeness of the premise given the expert and other surrounding circumstances. Bodish, 257 Iowa 516, 133 N.W.2d 867. See also Musselman v. Central Telephone Co., 261 Iowa 352, 154 N.W.2d 128 (1967). When the opinions of Dr. Hill and Dr. Grandon are taken into consideration along with claimant's testimony, the testimony of Eldridge, the noise level reports, and the audiograms taken over the years, it is determined that claimant has sustained the burden of proof by a preponderance of the evidence that he sustained a bilateral sensorineural hearing loss in one or both ears which arose out of and in the course of employment with employer due to prolonged exposure to excessive noise levels. Iowa Code section 85B.4(2) specifies that excessive noise level means sound capable of producing occupational hearing loss. Iowa Code section 85B.5 states that excessive noise level is sound which exceeds the times and intensities listed in the table. The lowest decibel exposure reading shown in the chart is 90 decibels. Many of the sound level surveys described above show decibel readings for the departments in which claimant worked far in excess of 90 decibels. The highest decibel exposure rating in the table is 105 decibels. Many of the sound level surveys described above show decibel exposures even in excess of 105 decibels. Claimant and Eldridge testified that claimant worked eight hours per day and sometimes 12 hours per day in these noise levels and sometimes they worked six days or more a week. Therefore, claimant has established prolonged exposure to excessive noise levels. Page 11 Claimant also established that he worked at noise levels in the high 70's and at the 80 to 90 decibel level. The noise levels set out in section 85B.5 are presumptive only. They do not constitute minimum levels at which a noise level will be viewed as excessive. Prolonged exposure at lower levels may constitute an excessive noise level. Muscatine County v. Morrison, 409 N.W.2d 685 (Iowa 1987); Weyent v. John Deere Dubuque Works, file number 801718 (App. Dec. 1988). Irrespective or whether claimant's exposure was 15 decibels above or below 90 decibels by a few degrees, claimant has proven that he was exposed to excessive noise levels for long hours, several days a week for 30 years. It has often been held that prolonged exposure during a person's adult working lifetime to noise levels in excess of those shown in section 85B.5 constitutes an occupational hearing loss. Koster v. John Deere Dubuque Works, file number 806022 (April 30, 1987); Croft v. John Morrell & Co., file number 804211 (June 17, 1987); Kautz v. John Morrell & Co., file number 815285 (June 17, 1987); Bisgard v. John Morrell & Co., file number 805242 (January 21, 1988); Bland v. John Morrell & Co., file number 805241 (January 19, 1988); Slingerland v. John Morrell & Co., file number 805240 (January 19, 1988); Fike v. John Deere Waterloo Works, file number 946021 (July 24, 1992). Defendant contends that several nonwork activities of claimant either caused or may have contributed to his hearing loss such as operating farm tractors when he was a student in high school living at home, hunting, target practice with a pistol, operating a chain saw, owning a race car, operating a snowmobile, and flying an airplane. First of all, there is no medical evidence or any other evidence that any of these activities, alone or together, either caused or contributed to claimant's hearing loss. Based on the evidence presented, it would be conjecture and speculation to say that any of these activities caused any hearing loss. Claimant never consulted a physician for hearing loss at anytime for treatment for hearing loss. Secondly, claimant demonstrated that most of these activities were only occasional or short-lived and to the best of his knowledge did not affect his hearing. Claimant testified that he did not have any unusual noise exposures prior to or subsequent to his employment with employer. Claimant testified that he operated a 35 to 40-horse power tractor three or four years at home when he was in high school in the spring and the fall, but denied any problem with his hearing until after he became involved in factory work (tr. pp. 10, 48, 51, 60). Claimant testified that his hunting was limited to three, four, five, or six times per year between ages 15 and 43. He further testified that when he went hunting, he fired a limited number of shots, such as five or ten shots, per occasion (tr. pp. 11, 49, 64). He denied ever trap shooting which does require continuous repetitive firing Page 12 (tr. p. 49). Claimant further testified that when his pistol practice effected his ears, he began wearing ear protection. Furthermore, this occurred back between 1975 and 1982 and he only did it approximately twice a month (tr. pp. 12, 13, 40, 44). Claimant admitted he operated a chain saw three or four times a year in the late 1970's and early 1980's when it was fashionable to cut wood for your own wood stove. He only did this for a few hours on a few days of the year (tr. pp. 14, 59). Claimant acknowledged that he owned a stock car which he worked on in 1966, 1967 and 1968, but that he did not drive it in races himself. Again, stock car races only last a couple hours, a couple times a week and the race cars only raced 10 to 20 minutes per race (tr. pp. 47, 48, 60, 65, 67). Claimant testified that he remodeled airplanes in his own shop. He has a license and flies airplanes, but has not flown an airplane in the last year and one-half. He had two planes, one was noisy and the other was not. Claimant explained that when you fly you have headphones on your ears which protects your ears from the noise of the airplane (tr. pp. 52-54, 61-62). Claimant testified that he did operate a snowmobile back in 1972 and 1976 but that the noise is kept out of your hearing because of wearing a hood and a helmet over that. Furthermore, he would only ride for one or one and one-half hours for a day or two and only approximately twice a year (tr. pp. 54-56, 62-63). Claimant testified that none of these sporadic and occasional activities compared to the noise he received on his job eight or more hours per day, five, six or seven days a week for 30 years (tr. pp. 59, 62). Claimant's wife corroborated that he hunted only three or four times a season. She snowmobiled with him quite a bit of the time without suffering hearing loss. When they snowmobiled, it only lasted from a half hour to a couple of hours. They wore protective masks and covered everything except their eyes and wore a helmet on top of that. She testified she also has flown with claimant on a number of occasions. These flights lasted anywhere from 20 minutes to maybe an hour and a half in the summer months. He only used a chain saw to cut enough wood for the winter. She helped him with this quite a bit of the time by stacking the logs. She also attended the stock car races with claimant. This case is similar to a decision of the Iowa Supreme Court in which they found that there was sufficient evidence that claimant's employment caused occupational hearing loss in spite of the fact there was other adult pursuits such as, infantryman, hunter and part-time sawmill worker. John Deere Dubuque Works of Deere and Co. v. Meyers, 410 N.W.2d 255 (Iowa 1987). Page 13 Defendant asserts that something other than claimant's employment caused his hearing loss for the reason that it has continued to deteriorate after his retirement. Claimant testified that it had changed after retirement and that it was getting worse (tr. p. 56). In addition to that, Dr. Hill stated that claimant had a 27.1875 percent hearing loss on April 9, 1990 (exs. 2-1, 3-13, 3-14). Dr. Grandon stated that claimant had a 21 percent hearing loss on October 16, 1991 (exs. 1-2, 1-4). However, Dr. Grandon did some rounding in his calculations and the precise percent of hearing loss based upon his audiology results would be a 20.3125 percent loss. Defendant relies upon the decision of Pottebaum v. John Deere Dubuque Works, file number 954480 (App. Dec. 1992). The Pottebaum case is distinguishable from this case because in the Pottebaum case (1) the noise exposure measured in the range of the high 70's to the mid 80's in decibels and (2) Mervin Lee McClenahan, M.D., the plant physician, testified that in his opinion the noise levels in the plant to which Pottebaum was subjected were not sufficient to have caused his hearing loss. The other physician in Pottebaum did not express an opinion on causation. Thus, in Pottebaum the only medical opinion which addressed causal connection stated that the noise levels in the John Deere plant were not sufficient to have caused Pottebaum's hearing loss. In Pottebaum, Dr. McClenahan was the only testimony on causation by a physician and it was uncontroverted, uncontradicted, unrebutted, and unrefuted. In this case, the decibel levels are far in excess of those presumed to be an excessive noise level because they exceeded 90 decibels for long periods of time during claimant's employment. Moreover, in this case, there is no medical testimony from any physician comparable to that of Dr. McClenahan to the effect that this hearing loss was not caused by claimant's employment. Not even Dr. Hill, defendant's evaluator, stated that claimant's hearing loss was not caused by plant noise. Defendant also points out that claimant's mother and brother have hearing problems and wear hearing aids which suggests a hereditary predisposition for hearing loss. However, both Dr. Hill and Dr. Grandon testified that claimant's hearing loss was bilateral, sensorineural and noise induced. This would tend to rule out hereditary predisposition. The deputy in the Pottebaum case and the industrial commissioner concluded that the fact that claimant's hearing loss continued to deteriorate after retirement was a strong indication that the hearing loss was not necessarily caused by the employment. However, in Pottebaum, this merely corroborated the opinion of Dr. McClenahan that the employment did not cause the hearing loss and the fact that the other medical doctor gave no opinion on whether the hearing loss was caused by work. In this case, there is no medical opinion of no causal connection to be corroborated. Page 14 In the Pottebaum case, it was concluded that claimant proved that work possibly caused claimant's hearing loss, but claimant did not prove that it probably caused his hearing loss. In this case, claimant has proved that his work did cause his hearing loss and defendant has only raised the possibility that other factors may have caused his hearing loss. The possibilities suggested by defendant are not supported by any medical evidence. A possibility is insufficient proof of causal connection. Causal connection requires proof of probability. Burt v. John Deere Waterloo Works, 247 Iowa 691, 793 N.W.2d 732 (1955). In this case, (1) the opinions of Dr. Hill and Dr. Grandon that claimant's hearing loss was bilateral, sensorineural and noise induced, combined with (2) noise level surveys available during the history of claimant's 30 years of employment with employer that show that he worked in areas where the decibel level exceeded 90 degrees which is defined by statute to be excessive and (3) the available audiology reports that show a generally increasing loss over the period of claimant's 30-year employment history, coupled with (4) the testimony of claimant and Eldridge that the noise levels in departments 33A and 517 were extremely loud constitute the weight of the evidence and establish that claimant has sustained a work-caused occupational hearing loss. When the medical evidence is considered with all of the other evidence in this case, the weight of the evidence is that claimant has sustained an occupational hearing loss in excess of 25 decibels in one or both ears which arose out of and in the course of employment with employer from prolonged exposure to excessive noise levels. Burt, 247 Iowa 691, 793 N.W.2d 732; Sondag v. Ferris Hardware, 220 N.W.2d 903 (Iowa 1974). When medical evidence alone is not sufficient to support a finding of casual connection it may, nevertheless, be coupled with nonexpert testimony to sustain a finding of causal connection. Giere v. Aase Haugen Homes, Inc., 259 Iowa 1065, 146 N.W.2d 911, 915 (1966). Furthermore, claimant need not prove that work was the sole cause of his hearing loss, he need only prove that it is traceable to work and claimant has more than satisfied this burden. Langford v. Kellar Excavating and Grading, Inc., 191 N.W.2d 667 (Iowa 1971). The fact that claimant's hearing has continued to deteriorate after his employment is simply an unexplained fact in this case. It can neither be assumed that the possible continual loss after retirement was or was not caused by claimant's work. There is simply no evidence to explain this factor. Claimant has established a compensable hearing loss by the weight of the evidence in this case. Some consideration might be given to the fact that the readings that tend to be lower were all performed by employer at employer's facility by persons employed by the employer; whereas, the two higher readings were recorded by two persons outside the plant who were acting as independent evaluators and were otolaryngologists. Possibly employer's readings were too low all along. Page 15 EXTENT OF DISABILITY It is determined that claimant has sustained a total binaural hearing loss of 20.3125 percent based upon the evaluation of Dr. Grandon and that claimant is entitled to 35.55 weeks of occupational hearing loss compensation. Iowa Code section 85B.9 specifies that if more than one audiogram is taken following the notice of an occupational hearing loss claim, the audiogram having the lowest threshold shall be used to calculate occupational hearing loss. The exact date when claimant made a claim is not a matter of evidence in this record. However, three audiograms were taken after the date of retirement. The first was performed by employer on November 10, 1989, and showed a 10.9375 percent loss. The second report was taken by Dr. Hill on April 9, 1990, and showed a 27.1875 loss. The third audiogram was taken by Dr. Grandon on October 16, 1991, and showed a 20.3125 loss. Based upon these audiogram results, claimant's hearing deteriorated after retirement according to the tests of November 10, 1989, and the test of April 9, 1990; however, at the time he saw Dr. Grandon, his hearing had showed improvement rather than continued deterioration. Thus, it is not true that claimant's hearing has continued to deteriorate since his retirement when according to the last audiogram it was showing improvement. Iowa Code section 85B.9 specifies that audiometric examinations shall be made by persons who are certified by the Council of Accreditation in Occupational Hearing Conservation or by persons trained in formal course work in ear conduction audiometry at an accredited educational institution or who are licensed audiologists. None of the employer's audiograms show the qualifications of the examiner. Therefore, they cannot be used to determine the occupational hearing loss. The lowest audiogram taken following claimant's retirement is the audiogram of Dr. Grandon which shows a 20.3125 loss (exs. 1-2, 1-4) and it is used to determine the extent of loss in this case. There is no explanation for why Dr. Hill's audiogram is inordinately higher than those of the employer and Dr. Grandon. This is another reason to exclude it. Iowa Code section 85B.6 states that the maximum compensation is 175 weeks for a total occupational hearing loss and that a partial loss is payable for a period proportionate to the relation which the calculated binaural hearing loss bears to an allowable total hearing loss of 175 weeks. Dr. Grandon's percent of binaural hearing loss is .203125 times 175 weeks and equals 35.55 weeks times the stipulated rate of $397.26 per week and results in a total award of $14,122.59. If defendant seeks an apportionment of loss, the burden of proof is upon the employer to show the existence and extent of any preexisting determined loss; otherwise, the Page 16 entire disability is attributed to the current defendant. Varied Enterprises v. Sumner, 353 N.W.2d 407 (Iowa 1984); Becker v. D & E Easy Distributing Co., 247 N.W.2d 727, 731 (Iowa 1976); Rule 14(f)(5) Iowa Rules of Appellate Procedure. Moreover, Iowa Code section 85B.11 provides that if there is a preexisting hearing loss, the employer is liable for the difference between the percent of occupational hearing loss determined as of the date of the audiometric examination used to determine occupational hearing loss and the percentage of loss established by the preemployment audiometric examination. In this case, there is no preemployment audiometric examination. Iowa Code section 85B.11 is an affirmative defense and the burden of proving an entitlement to a reduction rests on the employer. The generally accepted proposition is that the burden of proving anything rests on the proponent and this rule has been applied to administrative proceedings [Rule 14(f)(5) Iowa Rules of Appellate Procedure; Wonder Life Company v. Liddy, 207 N.W.2d 27 (Iowa 1973); Henderson v. John Morrell and Co., file number 825137 (Nov. 20, 1987); Lilly v. PLM Railcar Maintenance Co., file number 865324 (Dec. 22, 1989)]. In this case, defendant has not introduced any evidence which established that claimant did, in fact, have any hearing loss prior to his employment with employer, and secondly, if he did have such a loss, the extent of it has not been established. As previously discussed, defendant's suggestions of hearing loss caused by outside factors and possibly hereditary predisposition, were not supported by any medical evidence or any evidence of any kind. There is no evidence that claimant ever sought any treatment of any kind for hearing problems caused by either his employment or factors outside of his employment. HEARING AID Iowa Code section 85B.12 provides that an employer who is liable for occupational hearing loss of an employee is required to provide the employee with a hearing aid unless it will not materially improve the employee's ability to hear. Dr. Hill recommended binaural hearing aids. Claimant had never used a hearing aid prior to the time of the hearing, but he testified that he planned to order one (tr. p. 39). Claimant's loss is severe enough that a hearing aid should materially improve his ability to communicate. There was no evidence that a hearing aid would not improve his ability to communicate. Therefore, defendant is ordered to provide claimant with binaural hearing aids as recommended by Dr. Hill. CONCLUSIONS OF LAW Page 17 Wherefore, based upon the foregoing and following principles of law, these conclusions of law are made: That claimant sustained an occupational hearing loss which is a permanent sensorineural loss of hearing in both ears in excess of 25 decibels which arose out of and in the course of employment with employer which was caused by prolonged exposure to excessive noise levels. Iowa Code sections 85B.4 and 85B.5. That claimant sustained a 20.3125 percent occupational hearing loss and entitled to 35.55 weeks of occupational hearing loss compensation at the stipulated rate of $397.26 in the total amount of $14,122.59. Iowa Code section 85B.6. That claimant is entitled to binaural hearing aids. Iowa Code section 85B.12. ORDER THEREFORE, IT IS ORDERED: That defendant pay to claimant thirty-five point fifty-five (35.55) weeks of occupational hearing loss compensation at the stipulated rate of three hundred ninety-seven and 26/100 dollars ($397.26) per week in the total amount of fourteen thousand one hundred twenty-two and 59/100 dollars ($14,122.59) commencing on March 31, 1989, as stipulated to by the parties. That all accrued benefits are to be paid in a lump sum. That interest will accrue pursuant to Iowa Code section 85.30. That defendant either purchase or reimburse claimant for binaural hearing aids which will materially improve claimant's condition. That the costs of this action, including the cost of the attendance of the court reporter at hearing and the cost of the transcript, are charged to defendant pursuant to and Iowa Code sections 86.19(1), 86.40 and rule 343 IAC 4.33. Claimant is also entitled to the filing fee with the industrial commissioner in the amount of sixty-five ($65) and the audiogram and medical report of Dr. Grandon in the amount of seventy-five ($75). These two costs total one hundred forty dollars ($140). Claimant is not entitled to the court reporter fee in the amount of seventy and 15/100 dollars ($70.15) to obtain a copy of the deposition of claimant. That defendant file claim activity reports as requested by this agency pursuant to rule 343 IAC 3.1. Signed and filed this ____ day of August, 1992. Page 18 ______________________________ WALTER R. McMANUS, JR. DEPUTY INDUSTRIAL COMMISSIONER Copies to: Mr. Robert Fulton Attorney at Law First National Bldg., 6th Floor E 4th & Sycamore PO Box 2634 Waterloo, Iowa 50704-2634 Mr. John Rathert Attorney at Law PO Box 178 Waterloo, Iowa 50307-0178 1108.50 1401 2208 1808 Filed August 31, 1992 Walter R. McManus, Jr. BEFORE THE IOWA INDUSTRIAL COMMISSIONER ____________________________________________________________ : DAVID HAGEN, : : Claimant, : File No. 940698 : vs. : : A R B I T R A T I O N DEERE AND COMPANY, : : D E C I S I O N Employer, : Self-Insured, : Defendant. : ___________________________________________________________ 1108.50 1401 2208 Claimant proved an occupational hearing loss by (1) his testimony, (2) testimony of a coemployee, (3) numerous noise level surveys and tests conducted at the employer's plant over several years, (4) audiograms that showed a general increase in his loss of hearing, and (5) the testimony of two otolaryngologists who stated his loss was bilateral, sensorineural and noise induced. Claimant worked in high noise levels sometimes exceeding 105 decibels (Iowa Code section 85B.5) and even 115 decibels at times during his 30 years of employment with employer where he worked between 8 to 12 hours per day anywhere from five to seven days per week. 1808 Employer's audiogram after retirement could not be used to determine the extent of loss because the qualifications of the person who performed the hearing test were not known and the statue (ICS 85B.9) requires certain qualifications. The lowest audiogram taken after retirement under the supervision of an otolaryngologist was claimant's evaluator. Defendant's evaluation was inordinately and unexplainably high compared to the other audiograms which was another reason for not using it. Award amounted to $14,122.59 plus suitable bilateral hearing aids. Defendant failed to meet the burden of proof that any of claimant's hearing loss was due to his farming, hunting, target shooting, snowmobiling, cutting wood with a chain saw, working on stock car engines or working on airplane engines and flying airplanes. The burden of proving a preexisting hearing loss or an apportionment of benefits is upon employer and employer submitted no evidence of any prior loss. Several cases cited. BEFORE THE IOWA INDUSTRIAL COMMISSIONER ____________________________________________________________ AMPARO CALDERON, Claimant, File No. 940699 vs. A P P E A L IBP, INC., 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. The decision of the deputy filed July 3, 1991 is affirmed and is adopted as the final agency action in this case. Defendant shall pay the costs of the appeal, including the preparation of the hearing transcript. Signed and filed this ____ day of July, 1992. ________________________________ BYRON K. ORTON INDUSTRIAL COMMISSIONER Copies To: Mr. David W. Newell Attorney at Law P.O. Box 175 Muscatine, Iowa 52761 Ms. Marie L. Welsh Attorney at Law P.O. Box 515, Dept #41 Dakota City, NE 68731 9998 Filed July 28, 1992 Byron K. Orton BEFORE THE IOWA INDUSTRIAL COMMISSIONER ____________________________________________________________ AMPARO CALDERON, Claimant, File No. 940699 vs. A P P E A L IBP, INC., D E C I S I O N Employer, Self-Insured, Defendant. ____________________________________________________________ 9998 Summary affirmance of deputy's decision filed July 3, 1991. Page 1 before the iowa industrial commissioner ____________________________________________________________ : AMPARO CALDERON, : : File No. 940699 Claimant, : : vs. : A R B I T R A T I O N : IBP, : D E C I S I O N : Employer, : Self-Insured, : Defendant : : ___________________________________________________________ statement of the case This case came on for hearing on June 21, 1991, at Burlington, Iowa. This is a proceeding in arbitration wherein claimant seeks compensation for permanent partial disability benefits as a result of an alleged injury occurring on March 20, 1989. The prehearing report indicates a disputed date of March 15, 1989. The record in this case consists of the testimony of the claimant and Sherri Wilson; and defendant's exhibits A through E. issues The issues for resolution are: 1. Whether claimant's injury arose out of and in the course of his employment; 2. Whether there is any causal connection between claimant's alleged injury and his alleged permanent disability; 3. The nature and extent of claimant's disability and entitlement to disability benefits, the issue being as to what scheduled member, if any, is affected; 4. The rate at which any disability benefits would be paid; and, 5. Whether the defense of 85.33(3) is valid and applicable. findings of fact The undersigned deputy having heard the testimony and considered all the evidence, finds that: Claimant is a 29-year-old who finished four years of schooling in Mexico. He testified through an interpreter. His work history has been mainly as a field worker. He does not know when he began work with defendant but later his memory was refreshed and he agreed with the records that he Page 2 began the second time five or six months before his March 20, 1989 alleged injury. Later on, on cross-examination, defendant's counsel indicated the record showed claimant first worked for IBP in April 1987 and was fired in July 1987 and rehired in January 1988. Claimant seems to agree to this to the best of his knowledge if that is what the record says. Claimant has worked at IBP on more than one occasion. His first employment with them ended when it was discovered claimant had not put on his work application he had received workers' compensation. Claimant was rehired six months after this. Claimant described his job and duties which involved initially trimming pork cheeks and later doing round heads (cutting off ears). This job change from Grade 1 to Grade 2 occurred when claimant was having trouble with his hands and fingers. Claimant indicated his fingers would lock. Claimant contends he told his supervisor about his hand problem but defendant did nothing about it. Claimant testified that the doctor took him off the cheek trimming job and put him on the round head job the latter two months prior to March 20, 1989. He said his right hand fingers started locking again. Claimant said he had surgery on his right hand and went back to work without missing any work except for the day of the surgery. The surgery was March 23, 1989. Claimant indicated the doctor told him not to use knives but after one month defendant required him to use knives anyway. Claimant said his hands again started hurting. He related he returned to the doctor who then wrote that claimant should not be put on knife duty. Claimant was then put on another job. Claimant was fired on August 24, 1989. When asked why, he said his father was sick in Mexico and he returned to Mexico to see his father. He indicated he had passport problems returning to the United States, resulting in his returning later than originally requested. He said defendant would not take him back but said he could put in a new application and start over. Claimant's leave of absence to go to Mexico began on August 24, 1989 and was to end September 5, 1989. He actually returned on December 22, 1989. Claimant said he called his wife, who he understood called IBP as to his late return. Claimant understood he was fired because IBP could not put him anywhere because of his hand problems and not because of his late return. Claimant was shown a paper he signed as to why he was fired. He said he could not read it and was told to sign it. Claimant then worked at Louis Rich Packing Company in a job not requiring a knife. He said that he was fired from this job due to his hand problems. He does not know when he began the job but it lasted approximately three months. Claimant indicated Louis Rich did not want him any longer due to his hand surgery. Page 3 Claimant said he never had hand problems before he worked at IBP. He indicated he cannot pick up or grab heavy objects and hold on to them. On cross-examination, it was brought out that when claimant was returned to work, a restriction was not to use his right hand and only to use his left hand. His right hand and arm were in a sling initially. On May 25, 1989, claimant was returned to full duty but was not to use a knife. This appears to be his only restriction. Claimant's job was pulling fat off heads without the use of a knife, but claimant indicated they put him everywhere without the use of a knife except on one occasion they gave him knife duty which was hard for him. It appears that May 25, 1989 was his last visit to Calvin Atwell, M.D., the doctor who had performed his surgery. Sherri Wilson, defendant's workers' compensation coordinator beginning in March 1989, has been employed with defendant since 1986 and knows claimant. Claimant had his surgery around the time she started her workers' compensation position and he talked to her when he had his bandages from his surgery. Ms. Wilson said claimant did not miss any work except for the day of the surgery. Ms. Wilson said claimant was put in a light duty position after the surgery within his restrictions and was able to do the job. She said the light duty job involved checking cheek meat for pieces of bone and required the use of one hand only. Ms. Wilson disagreed that claimant was put back to using knives. She indicated she periodically checked the floor and this is what she observed but she had no knowledge as to when she checked the floors. It appears obvious to the undersigned that claimant was not to use knives, so if he was it was contrary to his restrictions and the employer understood this. Ms. Wilson said she did not know claimant went to Mexico or why he was late returning until after the fact, but she never knew of his passport problems or whether he reported this. Claimant's employment records show claimant had a finger locking problem on March 15 and March 20, 1989, and three and four trigger finger problems and surgery on March 23, 1989. On May 26, 1989, claimant was returned to full duty with recommendation of no knives (Defendant's Exhibit B11). It appears claimant originally was having problems with both wrists in August 1988. The left wrist problem apparently resolved itself and claimant makes claim only as to his right hand (Def. Ex. C21). The medical records (Def. Ex. C) indicate claimant's right hand problems were gradually getting worse until it ended with his March 23, 1989 surgery (Def. Ex. E3). Claimant claimed a March 20, 1989 work injury to his right Page 4 hand in his petition. The prehearing report shows a disputed March 15, 1989 injury. Claimant missed work only one day, the day of his March 23, 1989 surgery. The undersigned finds that this is the day of claimant's injury and it arose out of and in the course of his employment. The medical records overwhelmingly support claimant's contention that his hand and finger problems began at a time after beginning employment with defendant. The record shows claimant missed no work except for the day of the surgery and lost no pay on that day. Therefore, claimant is not entitled to any healing period. Defendant's exhibit C53 reflects claimant's surgery involved a release of A-1 pulley of the right third and fourth fingers on March 23, 1989 and that claimant could return to work the next day on restricted duty. Claimant was restricted for using knives as shown by defendant's exhibits C65 through C69 even though he was otherwise returned to full duty on May 26, 1989. Claimant's May 25, 1989 medical records (Def. Ex. E9) shows claimant attempted to return to the use of knives one- half day and he had increased problems again. There is nothing in the record to show that claimant's restrictions of no use of knives has been removed. There is no rating of impairment and apparently none was requested. Any rating usually done, if under the AMA Guides, deals with loss of motion and not loss of use resulting from things other than loss of motion. We are dealing in this case only with a scheduled member. Defendants contend that, if there is liability, the injury involves the fingers and not the hand. Claimant contends there is a body as a whole injury over the objections of defendant and if not body as a whole injury, at least an injury to claimant's right hand. At the beginning of the hearing, the undersigned told the parties that the body as a whole would not be an issue as claimant plead a right hand scheduled injury. Also, the parties were notified by the undersigned that claimant's raising at the hearing for the first time an occupational disease, would not be an issue. The evidence obviously shows there is not a body as a whole injury herein anyway. The greater weight of evidence shows claimant lost the use of his right hand to perform the job he was doing at the time of his March 23, 1989 injury up to May 26, 1989. This restriction still exists. There is no further medical evidence to show the restriction was lifted or should be lifted. Claimant still complains of his problems. Claimant was allegedly fired because he was late returning from Mexico after seeing his father who was ill. It appears questionable as to the true underlying reason for claimant's firing. This late return gave defendant an excuse to rid itself of a person who has a right hand injury. It is obvious that two good hands are essential in the meat packing industry and particularly in the ability to use a knife. There is no evidence whether claimant is left or Page 5 right handed. The law of averages would indicate he is right handed. Sherri Wilson seemed to imply claimant was using his right hand contrary to his restrictions and possibly this added to his problems. It is reasonable to believe that in defendant's jobs use of both hands is important and it is hard to imagine one would not be tempted automatically to use both hands to help out unless it was tied behind his back or in a sling and fitted to the body. Likewise, if one were right handed, it is not unreasonable to believe that one would at least occasionally cause the right hand to help out. Ms. Wilson did not know how many times or when she observed this. The undersigned finds the use of claimant's right hand or arm is of no consequence in the overall situation other than to show the need to use both scheduled members to more efficiently do a job. The undersigned finds claimant's March 23, 1989 injury caused claimant to incur a trigger finger and lock finger problems on his right hand and this resulted in claimant being unable to use his right hand to hold and maneuver a knife at his normal work position that he had at the time of his injury on March 23, 1989. The undersigned finds the injury to the fingers extends to the loss of the use of the right hand. The record shows claimant's problems return when he uses a knife at work. There is no contrary evidence from defendant. The undersigned finds claimant has a 20 percent loss of the use of his right hand as a result of a work-related March 23, 1989 injury. Defendant raised the issue of 85.33(3). There is no reliable evidence to support this issue. Claimant has not refused work or light duty. In fact, defendant fired him. It appears he came back to his job after a reasonable request for leave of absence and there was no job. It is true claimant was delayed in his return but if defendant wanted him back it would have been easy for the employer to accept him. As indicated before, defendant's conduct is questionable based on the facts herein. It is apparent that defendant realized that claimant has a permanent injury resulting in some loss of the use of his right hand which would substantially affect his ability to work for defendant. The final issue involves the rate. Claimant contends the gross wage is $323.87 and defendant contends it is $312.40. The undersigned took the full 15 weeks prior to claimant's March 23, 1989 injury and subtracted from the 15 weeks, the abnormal week ending January 28, 1989, which involved only 30 hours, and also there was no February 11, 1989 week, which was apparently skipped over. The undersigned also presumes the week ending March 18, 1989 was a 40 hour week. As provided by 85.36(6), the regular weekly income was considered excluding any overtime or premium pay. The undersigned arrived at a gross weekly income of $270.78, which converts based on four exemptions to a $186.10 weekly rate which the undersigned finds is applicable herein. In summary, the undersigned finds claimant incurred a work injury on March 23, 1989, which arose out of and in the course of his employment, which injury caused claimant to Page 6 incur a surgery to his fingers on the right hand and a loss of some use of his right hand so as to enable him to hold a knife or like objects. Claimant did not miss any work except for the day of his surgery for which he was paid and claimant is entitled to no healing period. Claimant did not refuse work. Claimant's benefits are payable at the weekly rate of $186.10. Claimant has permanent partial disability of his right hand of 20 percent entitling claimant to 38 weeks of permanent partial disability benefits. conclusions of law Claimant has the burden of proving by a preponderance of the evidence that he received an injury on March 23, 1989, which arose out of and in the course of his employment. McDowell v. Town of Clarksville, 241 N.W.2d 904 (Iowa 1976); Musselman v. Central Telephone Co., 261 Iowa 352, 154 N.W.2d 128 (1967). An employee is entitled to compensation for any and all personal injuries which arise out of and in the course of the employment. Section 85.3(1). The claimant has the burden of proving by a preponderance of the evidence that the injury of March 23, 1991 is causally related to the disability on which he now bases his claim. Bodish v. Fischer, Inc., 257 Iowa 516, 133 N.W.2d 867 (1965). Lindahl v. L. O. Boggs, 236 Iowa 296, 18 N.W.2d 607 (1945). A possibility is insufficient; a probability is necessary. Burt v. John Deere Waterloo Tractor Works, 247 Iowa 691, 73 N.W.2d 732 (1955). The question of causal connection is essentially within the domain of expert testimony. Bradshaw v. Iowa Methodist Hospital, 251 Iowa 375, 101 N.W.2d 167 (1960). An injury is the producing cause; the disability, however, is the result, and it is the result which is compensated. Barton v. Nevada Poultry Co., 253 Iowa 285, 110 N.W.2d 660 (1961); Dailey v. Pooley Lumber Co., 233 Iowa 758, 10 N.W.2d 569 (1943). Iowa Code section 85.34(1) provides that if an employee has suffered a personal injury causing permanent partial disability, the employer shall pay compensation for a healing period from the day of the injury until (1) the employee returns to work; or (2) it is medically indicated that significant improvement from the injury is not anticipated; or (3) until the employee is medically capable of returning to substantially similar employment. This agency has held that the deputy is not bound in cases of this nature to the alleged injury date if another date is more applicable. The parties are obviously considering the same medical condition and cumulative-type injury. Deheer v. Clarklift of Des Moines, File No. 804325 (May 12, 1989); McCoy v. Donaldson Company, Inc., File Nos. 805200 and 752670 (April 28 1989); Shank v. Mercy Hospital Medical Center, File No. 719627 (August 28, 1989). Iowa Code section 85.34(2)(l) provides, in part: Page 7 For all cases of permanent partial disability compensation shall be paid as follows: .... (l) For the loss of a hand, weekly compensation during one hundred ninety weeks. Iowa Code section 85.36(6) provides: In the case of an employee who is paid on a daily, or hourly basis, or by the output of the employee, the weekly earnings shall be computed by dividing by thirteen the earnings, shall be computed by dividing by thirteen the earnings, not including overtime or premium pay, of said employee earned in the employ of the employer in the last completed period of thirteen consecutive calendar weeks immediately preceding the injury. It is further concluded that: Claimant incurred an injury that arose out of and in the course of his employment on March 23, 1989. Claimant's work injury caused claimant to incur surgery and a permanent restriction as to the use of his right hand. Claimant's work injury caused claimant to incur a 20 percent loss of use of his right hand resulting in a 20 percent permanent partial disability. Claimant is entitled to no healing period. Claimant did not refuse work. Claimant's weekly rate of compensation is $186.10. Page 8 order THEREFORE, it is ordered: That claimant is entitled to thirty-eight (38) weeks of permanent partial disability benefits at the weekly rate of one hundred eighty-six and 10/100 dollars ($186.10) beginning March 24, 1989. That defendant shall pay the accrued weekly benefits in a lump sum and shall receive credit against the award of weekly benefits previously paid. The record indicates that defendant has paid no weekly benefits but that all medical bills have been paid. That defendant shall pay interest on benefits awarded herein as set forth in Iowa Code section 85.30. That defendant shall pay the costs of this action, pursuant to rule 343 IAC 4.33. That defendant shall file an activity report upon payment of this award as required by this agency, pursuant to rule 343 IAC 3.1. Signed and filed this ____ day of July, 1991. ______________________________ BERNARD J. O'MALLEY DEPUTY INDUSTRIAL COMMISSIONER Copies to: Mr David W Newell Attorney at Law 323 E Second St P O Box 175 Muscatine IA 52761 Ms Marie L Welsh Attorney at Law P O Box 515 Dept #41 Dakota City NE 68731 1100; 1108.50 1803; 5-3002 Filed July 3, 1991 Bernard J. O'Malley before the iowa industrial commissioner ____________________________________________________________ : AMPARO CALDERON, : : File No. 940699 Claimant, : : vs. : A R B I T R A T I O N : IBP, : D E C I S I O N : Employer, : Self-Insured, : Defendant : : ___________________________________________________________ 1100 Found cumulative right hand injury arose out of and in the course of claimant's employment on March 23, 1989. This date was chosen as it is only date claimant missed work due to surgery. Claimant plead March 20, 1989 and prehearing report stated a disputed March 15, 1989 date. 1108.50; 1803 Found causal connection to claimant's hand surgery and permanent restriction of use of claimant's right hand. There was no rating because no one asked for one, but the restriction of use of right hand was never lifted by the doctor. Deputy found a 20 percent permanent impairment resulting in 38 weeks of permanent partial disability benefits. 5-3002 Deputy determined rate based on 85.36(6). Denied defendant's defense of 85.33(3), refusal of work. BEFORE THE IOWA INDUSTRIAL COMMISSIONER ------------------------------------------------------------ SANDRA BROWN, : : Claimant, : : vs. : : File No. 940905 MIDWEST CONNECTION, : : A R B I T R A T I O N Employer, : : D E C I S I O N and : : TRAVELERS INSURANCE, : : Insurance Carrier, : Defendants. : ------------------------------------------------------------ STATEMENT OF THE CASE This is a proceeding in arbitration brought by Sandra Brown against her former employer Midwest Connection, Inc. and the Travelers Insurance Company based upon an injury that occurred on January 16, 1990. Sandra's medical expenses have been paid. She has been paid weekly compensation at the rate of $179.22 per week for an amount believed to be 180 6/7 weeks at the time of hearing. That amount includes permanent partial disability compensation benefits. It was stipulated that permanent partial disability compensation benefits are payable commencing March 7, 1992. It was also stipulated that claimant is single and entitled to one exemption in computing her rate of compensation. The disputed issues in the case are determining the rate of compensation and the amount of permanent partial disability. A substantial part of the rate dispute involves payments characterized by the employer as per diem and unloading allowance. The case was heard at Des Moines, Iowa, on January 19, 1994. The evidence consists of testimony from Sandra Brown and Larry Spain. The evidence also contains exhibits 1, 3 through 63 and 65. FINDINGS OF FACT Sandra Brown is a 43-year-old woman who lives at Kirkman, Iowa, population 90. She is a 1968 high school graduate. After high school, Sandra worked as a nurse's aide for approximately a year and then as a desk clerk and maid at a motel in Harlan, Iowa, for approximately two years. She worked at the Montgomery Ward Catalog Store in Harlan, Iowa, Page 2 from 1976 through 1979 where she started as a sales clerk and was promoted to assistant manager. She performed bookkeeping, checked freight that was received, ran an adding machine and a Teletype machine. From 1979 through 1984 Sandra drove a school bus for the Harlan School District. Commencing in 1985, Sandra began driving a semi over-the-road. She has always been a company employee and performed as a team driver with Tyrone Sheffler. She has never been an owner-operator. Over the years she worked for a variety of different employers. Her income tax returns show that she never earned more than $10,000 per year. (exhibits 48-50). Sandra commenced work for Midwest Connection, Inc. on or about September 13, 1989. (ex. 55-2). She was off work from October 24 through November 23, 1989. She then worked consistently until her injury of January 16, 1990. From September 13, 1989 to January 16, 1990, is a span of 18 weeks. She was off work 4 3/7 weeks in October through late November. When normal holidays are deducted, it appears as though her entire amount of work for Midwest Connection, Inc., covers a period of 13 weeks. During her time with Midwest Connection Sandra earned a total of $3,822.45 as shown on the W-2 forms. (exs. 52-53). Sandra was also paid $20 per load as an allowance for the cost of unloading the trucks she drove. She was permitted to unload the trucks and retain the allowance herself or she was entitled to use the allowance to hire a lumper to perform the unloading. Sandra's pay for driving was computed at the rate of $.20 per mile. When actually making payment of earnings to her, the employer treated $14 per day as a per diem allowance for food and other expenses. Other expenses such as motel expenses were reimbursed. Expenses associated with the truck were also reimbursed. Over those 13 weeks, the unloading allowance totals $580. The peculiar factor regarding the per diem allowance in this case is that the $14 per day allowance is deducted from the total earnings when computed at the rate of $.20 per mile. The amount of the allowance is $14 per day, however, regardless of the number of miles driven on any particular day. Exhibit 54 contains a breakdown of the claimant's earnings. There appears to be one missing document which appears to cover the period of time running through October 23, 1989. When comparing the year to date earnings as shown on the other sheets, it appears as though the earnings from that document would have been $167.30. It would be expected that there would have also been a $20 unloading allowance associated with that apparently missing trip record. This makes the total of the unloading allowance $600. There is little dispute about the facts and circumstances surrounding Sandra's injury on January 16, 1990. She slipped and fell while unloading the trailer of the truck she had been driving. She underwent an extended course of medical care which ultimately led to cervical disc fusion surgery being performed by Michael J. Morrison, M.D., Page 3 on October 4, 1991. (ex. 22). On March 6, 1992, Dr. Morrison indicated that Sandra had achieved maximum medical improvement and that she could return to restricted work for a temporary period of six to eight weeks and then resume activity as tolerated. On March 16, 1992, Dr. Morrison stated that her final diagnosis was anterior cervical fusion C5-6, muscle contraction headaches and a chronic cervical strain. He assigned a 10 percent permanent impairment rating to the injury. (ex. 25). Sandra stated that at the present time she has a headache almost every day. She stated that if she is too active she has pain in the back of her head and neck and spasms in her neck. She complained of pain in her left arm and hand. Sandra attempted to resume truck driving on one occasion but found the discomfort too great. Since recovering from surgery, she has searched for clerical work without much success. She has applied for jobs in the Harlan, Denison and Atlantic areas. At the time of hearing she had recently started driving a person to dialysis treatment. She earns $5 per hour and works 15 hours per week. It is the only employment she has found thus far. Sandra plans to take a computer course at Iowa Western Community College. Sandra underwent a work capacity evaluation on June 12, 1992. The results were considered to be valid. Her limitations were defined as sitting limited to 45 to 60 minutes at a time and standing for up to 2 1/2 hours if she is able to move. Her walking capability, however, was only 10 minutes at a time. She exhibited good grip with the right hand but below normal with the left. She was assessed at being capable of carrying 25 to 35 pounds occasionally. She was also assessed as capable of lifting 10 pounds frequently with her left hand or 25 pounds frequently with her right hand. (ex. 43). Gayle Tichaner, a vocational consultant, indicated that claimant would likely experience a 40 to 50 percent loss of earnings. She based her assessment upon assumed preinjury earnings of approximately $22,000 per year and with postinjury earnings of approximately $6 per hour. Tichaner indicated that claimant has a loss of access to jobs and was not competitively employable without retraining. (exs. 44-45). Some of claimant's work seeking activities have been performed with the assistance of vocational counselor Elecia Busse. (ex. 60). Through assistance from Roger Carter, a vocational counselor, claimant is enrolled in courses to improve her typing and bookkeeping skills. (ex. 46). CONCLUSIONS OF LAW Industrial disability or loss of earning capacity is a concept that is quite similar to impairment of earning capacity, an element of damage in a tort case. Impairment of physical capacity creates an inference of lessened earning capacity. The basic element to be determined, however, is the reduction in value of the general earning Page 4 capacity of the person, rather than the loss of wages or earnings in a specific occupation. Post-injury earnings create a presumption of earning capacity. The earnings are not synonymous with earning capacity and the presumption may be rebutted by evidence showing the earnings to be an unreliable indicator. Bearce v. FMC Corp., 465 N.W.2d 531 (Iowa 1991); DeWall v. Prentice, 224 N.W.2d 428, 435 (Iowa 1974); Carradus v. Lange, 203 N.W.2d 565 (Iowa 1973); Holmquist v. Volkswagon of America, Inc., 261 N.W.2d 516 (Iowa App. 1977) A.L.R.3d 143; Michael v. Harrison County, Thirty-fourth Biennial Report of the Industrial Commissioner 218 (1979); 2 Larson Workmen's Compensation Law, sections 57.21 and 57.31. The assessment of this case made by Dr. Morrison and the functional capacity evaluation is found to be correct. Claimant is not physically capable of resuming work as an over-the-road truck driver. She is limited to light or sedentary work. In view of the location where claimant resides, there are probably few job opportunities unless she commutes a considerable distance each day. This would be so even if she were uninjured. Her work as a truck driver was based out of Ankeny, Iowa, and other locations away from her residence. The assessment made by Gayle Tichaner is defective in the sense that Tichaner assumed preinjury earnings of $22,000 per year. Claimant's earnings with this employer and with her previous employers as shown on her tax returns shows that assumption to be incorrect. She has never earned more than $10,000 per year though she likely would have exceeded that amount if she had not been injured while working for this employer. Her taxable earnings probably would have been in the range of $15,000 per year. A full-time worker earning $6 per hour would have gross weekly earnings of $240 per week. That computes to $12,480 annually. Sandra appears reasonably intelligent and capable of learning. When her preinjury earnings are considered with her postinjury earning capability, and all the other material factors of industrial disability, it is determined that Sandra has experienced a 25 percent permanent partial disability as a result of the January 16, 1990 injury. This entitles her to recover 125 weeks of compensation for permanent partial disability. The rate of compensation is at issue in this case. The rate turns upon determination of the amount of the gross earnings, a term defined in Iowa Code section 85.61(3) as follows: "Gross earnings" means recurring payments by employer to the employee for employment, before any authorized or lawfully required deduction or withholding of funds by the employer, excluding irregular bonuses, retroactive pay, overtime, penalty pay, reimbursement of expenses, expense allowances, and the employer's contribution for Page 5 welfare benefits. At first glance, it would appear as though the per diem allowance and the unloading allowance are both to be excluded under the express terms of the statute. That is not necessarily so. The name placed upon a particular type of payment is not controlling. It is necessary to look at the true nature of the payment when determining whether it is a reimbursement of expenses or expenses allowance. Black's Law Dictionary, sixth ed., 1990, defines per diem as "by the day, an allowance or amount of so much per day." A "per diem allowance" has been held to be properly included in earnings where the per diem allowance is computed based upon the amount of work performed. Phillips v. C and K Transport, file number 844999 (App. Dec. May 26, 1993); It is clear that the per diem allowance of $14 per day used in this case meets the dictionary definition. It is similar to the situation where an allowance of $15 per day was excluded from earnings. Norton v. Stylecraft, Inc., Vol. 1 No. 4 State of Iowa Industrial Commissioner Decisions 1001 (App. Dec. 1985). In a perfect situation a per diem allowance would be payable by the employer without any regard whatsoever to the amount of work performed by the employee. In this case, the per diem of $14 per day is essentially deducted from the employee's earnings. Nevertheless, the $14 per day is applied regardless of whether the employee earns $25 in that day or $250. It is clear that the allowance is based upon the number of days, a measure which bears a rational relationship to the expenses to which it is directed, namely meals. The fact that it provides a benefit to the employee and employer in the form of taxes, and perhaps other matters as well, does not necessarily mean that the per diem allowance is a sham. The system used in this case is determined to be within the range of reason. It is not a sham or device which is impermissibly intended to relieve the employer from liability created by chapter 85 of the Code. Reimbursement of meal expenses on a per diem, rather than direct reimbursement basis, is certainly a reasonable and proper activity. Since the amount of the expense allowance is $14 per day, the amount used in this case is determined to be reasonable. Accordingly, the amount treated by the employer as a per diem allowance is properly excluded from the claimant's gross earnings as an expense allowance. The unloading allowance of $20 per load is a different matter. Unloading trucks is a part of the work activities performed by many truck drivers, including Sandra Brown. In fact, it is the activity in which she was engaged at the time of injury. While she was permitted to hire a lumper, if one was available, there is certainly no requirement that she do so. Absent some express prohibition by an employer, a truck driver could normally hire a lumper at his or her own expense. It is determined that when unloading is a part of a truck driver's work, characterization of the unloading Page 6 fee as an allowance does not control its character for purposes of determining gross earnings. It is pay that the driver receives for the work that the drivers performs for the employer. It is work that is a regular part of the employer's business. Accordingly, the allowance is to be included when computing the gross earnings. The unloading fees in this case are determined to be $600 over the 13 weeks that the claimant was employed. When added to her gross earnings as shown on the W-2 forms, her gross earnings for the 13 weeks are $4,422.45. It is determined that Code section 85.36(6) is the appropriate means of determining the average weekly wage. When applied to the claimant's earnings, her average weekly wage is $340.19. Under the 1989 benefit booklet, her weekly rate of compensation is therefore $207.18. ORDER IT IS THEREFORE ORDERED that all weekly compensation benefits due and payable to Sandra Brown be paid at the rate of two hundred seven and 18/100 dollars ($207.18). All payments previously paid shall be adjusted by adding twenty-seven and 96/100 dollars ($27.96) per week. The cumulative total of the adjustment for payments made at the incorrect rate shall be paid to claimant in a lump sum together with interest pursuant to section 85.30. It is further ordered that defendants pay Sandra Brown one hundred twenty-five (125) weeks of compensation for permanent partial disability at the rate of two hundred seven and 18/100 dollars ($207.18) per week payable commencing March 7, 1992, as stipulated in the hearing report. Defendants shall receive dollar-for-dollar credit for all amounts previously paid. All past due amounts resulting from payments being paid at the incorrect rate or otherwise shall be paid to the claimant in a lump sum together with interest pursuant to section 85.30. It is further ordered that the costs of this action are assessed against defendants pursuant to rule 343 IAC 4.33. It is further ordered that defendants file claim activity reports as requested by this agency. Signed and filed this __________ day of March, 1994. ______________________________ MICHAEL G. TRIER DEPUTY INDUSTRIAL COMMISSIONER Copies to: Mr. Jacob J. Peters Attorney at Law 233 Pearl St PO Box 1078 Page 7 Council Bluffs, Iowa 51502 Mr. James Thorn Attorney at Law PO Box 398 Council Bluffs, Iowa 51502 3001 1803 Filed March 22, 1994 Michael G. Trier BEFORE THE IOWA INDUSTRIAL COMMISSIONER ------------------------------------------------------------ SANDRA BROWN, Claimant, vs. File No. 940905 MIDWEST CONNECTION, A R B I T R A T I O N Employer, D E C I S I O N and TRAVELERS INSURANCE, Insurance Carrier, Defendants. ------------------------------------------------------------ 3001 An employee truck driver was paid $.20 per mile for driving, but of that amount, $14 per day was paid to her as a per diem expense allowance. She was also paid $20 per load as an unloading allowance which could be used to hire a lumper or which could be retained by her if she unloaded. Claimant was injured while unloading. It was held that the per diem allowance was not so unreasonable as to constitute a sham. It was based upon days of travel rather than the amount of work performed. It was held properly excludable from gross earnings. The unloading allowance was held, however, to be included in gross earnings since it was pay for the work that the claimant performed as part of the regular duties of her employment. Characterization of a payment as an expense allowance was held to not be controlling as to its true character. Analysis of the facts is required. 1803 Forty-four-year-old claimant with cervical fusion awarded 25 percent permanent partial disability. She was restricted to light or sedentary work. Her postinjury earning capacity was determined to be $6 per hour. Prior to the injury she had never earned more than $10,000 per year. 5102.40 2501 2503 Filed October 26, 1992 Michael G. Trier BEFORE THE IOWA INDUSTRIAL COMMISSIONER ____________________________________________________________ DEBRA PARSON, Claimant, vs. File No. 940972 KELLY SERVICES, A R B I T R A T I O N Employer, D E C I S I O N and CNA INSURANCE, Insurance Carrier, Defendants. ___________________________________________________________ 51502.40 Claimant failed to prove injury extended beyond her hand. 2501 2503 Care not shown to be unauthorized. Employer who claims unauthorized has burden of proof on that issue.