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 
 

 
            
 
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            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).   
 
            
 

 
            
 
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                 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 
 

 
            
 
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            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 
 

 
            
 
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            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 
 

 
            
 
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            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 
 

 
            
 
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            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.