BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
                                          :
 
            EUGENE FIKE,                  :
 
                                          :
 
                 Claimant,                :      File No. 946021
 
                                          :
 
            vs.                           :
 
                                          :  A R B I T R A T I O N
 
            JOHN DEERE WATERLOO WORKS,    :
 
                                          :      D E C I S I O N
 
                 Employer,                :    
 
                 Self-Insured,            :      
 
                 Defendant.               :
 
            ___________________________________________________________
 
            
 
                                   INTRODUCTION
 
            
 
                 This is a proceeding in arbitration brought by Eugene 
 
            Fike, claimant, against John Deere Waterloo Works, employer 
 
            and self-insured defendant, for benefits as the result of an 
 
            alleged occupational hearing loss which occurred on 
 
            September 30, 1987.  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.  Defendant was represented by John W. Rathert.  The 
 
            record consists of the testimony of Eugene V. Fike, 
 
            claimant; James L. Conrad, former coemployee; Kay Harkness, 
 
            claimant's daughter; Lawrence A. Bowman, claimant's witness; 
 
            Paul Fagenbaum, claimant's witness; and joint exhibits 1 
 
            through 11.  The deputy ordered a transcript of the hearing.  
 
            Both parties 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;
 
            
 
                 Whether claimant is entitled to occupational hearing 
 
            loss compensation, and if so, the extent of benefits to 
 
            which he is entitled; and
 
            
 
                 Whether claimant commenced a timely action as required 
 
            by Iowa Code sections 85B.14 and 85.26(1) has been asserted 
 
            as an affirmative defense by defendant.
 
            Whether defendant should be equitably estopped from 
 
            asserting the statute of limitations as a defense.
 
            
 
            
 
                                 FINDINGS OF FACT
 
            
 
                    statute of limitations/equitable estoppel
 
            
 
                 It is determined that the original proceeding for 
 
            occupational hearing loss was not commenced within two years 
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            of the occurrence of the injury as required by Iowa Code 
 
            section 85.26(1).  The date of occurrence of the 
 
            occupational hearing loss is the date of claimant's 
 
            retirement on September 30, 1987.  Iowa Code section 85B.8.  
 
            The original notice and petition filed in the industrial 
 
            commissioner's office is dated July 31, 1990.  Therefore, 
 
            the original proceeding was not commenced within two years 
 
            of the date of the occurrence of the occupational hearing 
 
            loss.  Nevertheless, defendant is equitably estopped from 
 
            asserting the statute of limitations as a bar to this 
 
            proceeding.
 
            
 
                 Under the doctrine of equitable estoppel, the statute 
 
            of limitations may not be asserted as a bar to a claim for 
 
            workers' compensation.  Lawyer and Higgs, Iowa Workers' 
 
            Compensation--Law and Practice, (2d ed.) section 11.16, page 
 
            104.
 
            
 
                 The four essential elements of equitable estoppel are 
 
            as follows:
 
            
 
                 1.  False representation or concealment of material 
 
            facts,
 
            
 
                 2.  Lack of knowledge of the true facts on the part of 
 
            the person to whom the misrepresentation or concealment is 
 
            made,
 
            
 
                 3.  Intent of the party making the representation that 
 
            the party to whom it is made shall rely thereon,
 
            
 
                 4.  Reliance on such fraudulent statement or 
 
            concealment by the party to whom made resulting in his 
 
            prejudice.
 
            
 
                 Strict proof of all four elements is usually demanded.  
 
            Paveglio v. Firestone Tire and Rubber Co., 167 N.W.2d 636, 
 
            638-39 (Iowa 1969); DeWall v. Prentice, 224 N.W.2d 428 (Iowa 
 
            1974); Carter v. Continental Telephone Co., 373 N.W.2d 524 
 
            (Iowa 1985); Veach v. Wolff Transportation Co., Vol. I no. 1 
 
            State of Iowa Industrial Commissioner Decisions 246 (App. 
 
            Dec. 1984); Jacobsen v. Iowa Paint Mfg. Co., Thirty-second 
 
            Biennial Report of the Industrial Commissioner 111 (App. 
 
            Dec. 1976); Hartzler v. Iowa Beef Processors, Inc., file 
 
            number 716000 (1987).
 
            
 
                 Claimant is a career employee of employer.  He started 
 
            to work for employer in 1955 at age 23.  After a lay off, he 
 
            started again with employer in 1958 at age 26 and worked 
 
            there practically continuously for over 29 years until his 
 
            retirement on September 30, 1987, at age 55 (transcript 
 
            pages 49-50).
 
            
 
                 As will be seen in the next section of this decision, 
 
            claimant worked for over 29 years of his adult working 
 
            lifetime, from age 26 to age 55, in a loud noise environment 
 
            which many times constituted an excessive noise level as 
 
            provided in Iowa Code section 85B.5.
 
            
 
                 Claimant testified that after he retired on September 
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            30, 1987, he first learned that he had two years within 
 
            which to file a claim for occupational hearing loss in the 
 
            summer of 1989 (tr. p. 90).  More specifically, he estimated 
 
            that is was in June or July 1989 (tr. p. 103).  Claimant 
 
            learned of the two-year requirement from a friend and former 
 
            coemployee that he chanced to meet and have a causal 
 
            conversation with at K-Mart (tr. pp. 91, 101, 126).  The 
 
            friend and former coemployee was a union representative, 
 
            however, claimant did not consult with him in an official 
 
            capacity even though claimant had been a member of the union 
 
            (tr. p. 103).  It was simply a chance meeting (tr. p. 126).  
 
            The friend told claimant that he had two years within which 
 
            to file a claim for occupational hearing loss (tr. pp. 91, 
 
            127).  
 
            
 
                 Claimant testified that he had known this man for 
 
            several years and the man knew that claimant had a hearing 
 
            problem (tr. p. 105).  Claimant testified that he was 
 
            probably adjusting his hearing aid during the conversation 
 
            in order to hear the friend and that is why the man told him 
 
            that he had two years from the date of retirement in which 
 
            to file an occupational hearing loss claim (tr. pp. 105, 
 
            126).  Claimant indicated to his friend that he would file a 
 
            claim for occupational hearing loss within two years of his 
 
            retirement date (tr. pp. 91, 127).
 
            
 
                 Claimant testified that he telephoned employer and 
 
            talked to Mr. Ray Treiber, manager of benefits (tr. pp. 
 
            91-93).  Claimant testified that he talked to Mr. Treiber in 
 
            July or August 1989.  Claimant related, "Yes.  I indicated 
 
            to Mr. Treiber that I had learned that I had two years from 
 
            the time I had retired to file a claim, and that's why I was 
 
            there to see him....To file a claim for hearing loss." (tr. 
 
            p. 93).  Claimant further related that Treiber told him that 
 
            it would be necessary to test him.  Treiber then scheduled a 
 
            hearing test by employer's medical department.  Claimant 
 
            testified, "And I assumed that that was the procedure I had 
 
            to follow.  I had no reason not to trust him." (tr. p. 94).
 
            
 
                 Treiber set up an appointment for claimant with 
 
            employer's medical director, Charles D. Bendixen, M.D., in 
 
            the fall of 1989 (tr. pp. 92-94).  
 
            
 
                 Neither Mr. Treiber nor Dr. Bendixen testified at the 
 
            hearing or by deposition.  Treiber was present at the 
 
            hearing but chose not to testify.
 
            
 
                 There is a note of Dr. Bendixen dated October 10, 1989, 
 
            after the statute of limitations had expired on September 
 
            30, 1989, which stated that he saw claimant on September 21, 
 
            1989, who was inquiring about possible hearing loss 
 
            compensation.  The note states that Dr. Bendixen took an 
 
            audiogram, but also made an appointment with Bruce L. 
 
            Plakke, Ph.D., for an audiological evaluation preparatory to 
 
            making a determination as to claimant's eligibility for 
 
            hearing loss workers' compensation (ex. 2-22).  Claimant 
 
            testified that he did not have any discussion with Dr. 
 
            Bendixen about the two year requirement.  However, he was 
 
            told by Dr. Bendixen that he would have to see Bruce L. 
 
            Plakke, Ph.D., at the University of Northern Iowa for an 
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
            audiological evaluation (tr. pp. 94-95).  
 
            
 
                 Claimant testified that the original appointment with 
 
            Dr. Plakke was rescheduled for a later date.  A letter from 
 
            Dr. Bendixen to claimant dated October 10, 1989, told 
 
            claimant that the appointment had been made for him to see 
 
            Dr. Plakke on October 16, 1989.  In that letter Dr. Bendixen 
 
            stated to claimant, "After I receive your evaluation from 
 
            Dr. Plakke, our Medical Department, Safety Department and 
 
            Personnel Department will meet to make a determination 
 
            regarding your eligibility for possible hearing loss 
 
            compensation." (ex. 2-20).  Dr. Plakke performed his 
 
            evaluation and sent the results to Dr. Bendixen on October 
 
            16, 1989 (ex. 2-32; tr. p. 96).  
 
            
 
                 Claimant testified that he felt that he had followed 
 
            the procedures that he was instructed to follow and employer 
 
            had not indicated to him that he had not done so at that 
 
            point (tr. p. 97).  
 
            
 
                 Claimant was then instructed to undergo a third 
 
            post-retirement audiogram at the Wolfe Clinic at 
 
            Marshalltown (tr. p. 98).  Claimant next received a letter 
 
            dated January 16, 1990, from Dr. Bendixen which stated, "We 
 
            are still in the process of evaluating a number for [sic] 
 
            retirees who have applied for hearing loss compensation.  
 
            You are one of the group in whom we feel more complete 
 
            Otologic examination is warranted before we can make a final 
 
            determination regarding your eligibility for hearing loss 
 
            compensation." (exs. 2-21; 6-3).
 
            
 
                 Next, claimant was sent a letter on February 19, 1990, 
 
            from Treiber stating that his claim for workers' 
 
            compensation benefits was denied.  The letter concluded, 
 
            "Thanks for taking the time for the evaluations, and the 
 
            best to you in your retirement." (ex. 6-2).  There is a 
 
            handwritten notation of February 21, 1990, at the bottom of 
 
            this letter to the effect that Dr. Bendixen advised that 
 
            this letter was in error and that claimant should keep his 
 
            appointment with the Wolfe Clinic (ex. 6-2).  
 
            
 
                 The Wolfe Clinic evaluated claimant on April 9, 1990 
 
            (ex. 2-18).  Dr. Bendixen wrote to Treiber on April 19, 
 
            1990, that claimant's workers' compensation claim should be 
 
            denied (ex. 2-17).  A second denial letter was sent to 
 
            claimant on April 27, 1990, which again thanked him for the 
 
            time he gave them for the evaluations and wished him the 
 
            best in his retirement (ex. 2-16).  
 
            
 
                 Claimant testified that he then contacted an attorney 
 
            (tr. p. 99).  He further testified that if he had known that 
 
            his claim would be turned down when he first saw Treiber and 
 
            Dr. Bendixen in the fall of 1989, he would have contacted an 
 
            attorney at that time.  Claimant was asked and answered as 
 
            follows:
 
            
 
                 Q.  Why didn't you contact an attorney in August 
 
                 when you contacted John Deere?
 
            
 
                 A.  Because I trusted the people at John Deere.  I 
 

 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
                 felt like I was doing what was required.
 
            
 
            (transcript page 100).
 
            
 
                 Kay Harkness, claimant's daughter, testified that her 
 
            father told her that he had a claim for hearing loss and 
 
            that he intended to pursue it in a timely manner (tr. pp. 
 
            132-133).  
 
            
 
                 Lawrence A. Bowman, a retired employee of employer, 
 
            testified that he learned from a union publication that he 
 
            had two years to file for occupational hearing loss (tr. pp. 
 
            134-139).  He retired on November 23, 1988.  He contacted 
 
            Dr. Bendixen on July 19, 1990, and told Dr. Bendixen he had 
 
            two years from the time he retired to get this cleared up 
 
            (tr. pp. 139-140).  Dr. Bendixen made an appointment for him 
 
            at the Wolfe Clinic on September 18, 1990, which he kept 
 
            (tr. pp. 141-142).  Bowman then received a letter from 
 
            Treiber on December 20, 1990, after the statute of 
 
            limitations had expired which denied his workers' 
 
            compensation claim for occupational hearing loss.  He 
 
            identified it as the identical letter that had been sent to 
 
            claimant and further noted that the word noise had been 
 
            misspelled in both letters (tr. p. 143).  Bowman testified 
 
            that if he had known that his claim was going to be denied 
 
            that he would have contacted an attorney before the 
 
            expiration of the statute of limitations (tr. pp. 144-145).  
 
            Thus, in the case of Bowman, the investigation was completed 
 
            before the statute of limitations had expired, but his claim 
 
            was not denied until after the statute of limitations had 
 
            expired legally barring his claim.
 
            
 
                 Paul Fagenbaum, a retired employee of employer, 
 
            testified that he retired on March 31, 1988.  He also 
 
            learned of his hearing loss rights from the union 
 
            newsletter, The Pioneer.  Fagenbaum also contacted the union 
 
            representative who told him to contact the employer.  
 
            Fagenbaum testified that he contacted Dr. Bendixen on March 
 
            1, 1990.  At that time he stated, "When I walked in and seen 
 
            him, the first thing I told him was I was there for one 
 
            purpose only and I stated that my two years were almost up 
 
            and I wanted to file a claim for my hearing loss."  (tr. p. 
 
            148).  Dr. Bendixen administered an audiology test but 
 
            stated he could not tell if it was job related or not and 
 
            that it would be necessary to see the Wolfe Clinic in 
 
            Marshalltown.  An appointment was set up for May 16, 1990, 
 
            which is a date after which the statute of limitations would 
 
            expire on March 31, 1990.  This question was then asked of 
 
            and answered by Bowman:
 
            
 
                 Q.  And what did that lead you to believe 
 
                 regarding of your filing of your claim?
 
            
 
                 A.  It lead me to believe that I was legitimate in 
 
                 filing my claim for a hearing loss.
 
            
 
                 Q.  Within the two-year period?
 
            
 
                 A.  Within the two-year period.
 
            
 

 
            
 
            Page   6
 
            
 
            
 
            
 
            
 
            (transcript pages 149-150)
 
            
 
                 The Wolfe Clinic sent the results of their audiological 
 
            evaluation of Fagenbaum to employer on May 17, 1990.  On 
 
            August 31, 1990, claimant and his wife contacted Dr. 
 
            Bendixen.  Fagenbaum testified, "We called Dr. Bendixen and 
 
            he said, and I quote, at this time it looks like it's going 
 
            to be a compensible [sic] loss." (tr. p. 150).  They were 
 
            instructed that they would receive a letter from Treiber 
 
            within two weeks.  Claimant recontacted Dr. Bendixen on 
 
            September 18, 1990, "Because I felt that my claim was 
 
            filed..." (tr. p. 151).  On September 19, 1990, he was told 
 
            by Dr. Bendixen that Treiber still had the claim under 
 
            consideration.  On September 27, 1990, he received a letter 
 
            from Treiber which denied his workers' compensation 
 
            occupational hearing loss claim (tr. pp. 151-152).  
 
            
 
                 Fagenbaum testified that if he had known that his claim 
 
            would have been denied back in March 1990, he would have 
 
            contacted his own attorney in the first place.  Fagenbaum 
 
            identified his denial letter as identical to the letter sent 
 
            to claimant in this case, including the misspelling of the 
 
            word noise (tr. pp. 152-153).
 
            
 
                 When Treiber finally denied claimant's workers' 
 
            compensation claim for occupational hearing loss by a letter 
 
            dated April 27, 1990, the letter is identical to the letter 
 
            which he sent to claimant on February 19, 1990, and it is 
 
            identical to the letter he sent to both Bowman and Fagenbaum 
 
            (exs. 2-16; 6-2)
 
            
 
                 Although the experience of claimant, Bowman and 
 
            Fagenbaum vary in some details, they are, nevertheless, 
 
            relevant to show habit and practice of employer in handling 
 
            hearing loss claims at or near the expiration of the statute 
 
            of limitations.  Rule 406 Iowa Rules of Evidence.  It is the 
 
            kind of evidence on which reasonably prudent persons are 
 
            accustomed to rely in the conduct of their serious affairs.  
 
            Iowa Administrative Procedure Act 17A.14(1); Defendant's 
 
            posthearing brief pages 2-4. 
 
            
 
                 From the foregoing evidence, it is determined that the 
 
            statute of limitations had expired when claimant filed his 
 
            original notice and petition.  Claimant retired on September 
 
            30, 1987.  The statute expired on September 30, 1989.  The 
 
            action was not commenced until July 31, 1990.  Thus, the 
 
            original notice and petition, which is the only act 
 
            constituting commencement of an action, Iowa Code section 
 
            85.26(3), was not filed within two years from the date of 
 
            the occurrence of the occupational hearing loss.  Iowa Code 
 
            section 85.26(1) and 85B.8.
 
            
 
                 It is further determined that defendant is equitably 
 
            estopped from asserting the statute of limitations as a bar 
 
            to this action for the reason that claimant has met the 
 
            strict requirements for the application of the doctrine of 
 
            equitable estoppel.
 
            
 
                 First, claimant has established defendant concealed a 
 
            material fact.  The material fact concealed in this case was 
 

 
            
 
            Page   7
 
            
 
            
 
            
 
            
 
            that by following the procedure prescribed by employer to 
 
            investigate and determine their liability, the statute of 
 
            limitations would expire before this procedure would be 
 
            completed.  Furthermore, employer would notify claimant of 
 
            its determination of its liablity after the statute of 
 
            limitations had expired.  The concealment permitted employer 
 
            to investigate the claim after the statute had expired to 
 
            obtain evidence with which to deny the claim on the merits 
 
            before claimant would be alerted to seek legal counsel.  
 
            Secondly, it provided employer with the defense of the 
 
            statute of limitations irrespective of whether their 
 
            investigative process produced evidence to deny the claim on 
 
            the merits or not.
 
            
 
                 Second, claimant lacked the knowledge that he had not 
 
            legally commenced an action.  He was told he had to file a 
 
            claim within two years.  He told Treiber that he had to file 
 
            a claim within two years.  Claimant stated that he believed 
 
            that he had properly filed a claim within the time 
 
            limitations for filing a claim.  There is no evidence that 
 
            he had any knowledge of any other requirement about the 
 
            proper filing of a claim or the commencing of an action.  
 
            Claimant testified that his sole and entire knowledge was 
 
            that related to him by a friend who stated that he had to 
 
            file a claim within two years from his retirement date.  
 
            This lack of knowledge of the true facts was not unreason
 
            able as demonstrated by the fact that at least two other 
 
            employees believed that filing a claim with the employer 
 
            legally protected their rights.
 
            
 
                 Third, it is determined that it was the intent of 
 
            employer that claimant rely upon the false impression that 
 
            he had timely filed a claim which would not be timely when 
 
            their investigation was completed.  This is evidenced by the 
 
            fact that two other employees, who contacted employer 
 
            stating that they wished to file a claim within the two year 
 
            period for filing claims, were treated in a similar fashion.  
 
            Claimant's situation is not an isolated instance.  Rather, 
 
            there is proof that employer followed a course of dealings 
 
            with a number of employees in the same general manner.  
 
            Intent is seldom, if ever, capable of direct proof.  It is 
 
            presumed, however, that one intends the natural consequences 
 
            of his own acts.  Veach, vol. I no. 1, Iowa Industrial 
 
            Commissioner Decisions 246, 248 cited previously.  Claimant 
 
            followed employer's instructions to his prejudice.
 
            
 
                 Fourth, it is determined that claimant relied on the 
 
            concealment by employer that while he was following their 
 
            procedure to investigate his claim that the statute of 
 
            limitations would expire during the course of their 
 
            investigation.  Claimant testified, "I felt I had instigated 
 
            the process." (tr. p. 126).  Claimant was asked why he did 
 
            not contact an attorney in August of 1989 when he contacted 
 
            employer and claimant responded, "Because I trusted the 
 
            people at John Deere.  I felt I was doing what was 
 
            required."  (tr. p. 100).  With respect to whether claimant 
 
            had filed a claim, he responded, "I felt I had followed 
 
            procedure and they had not indicated to me that I had not." 
 
            (tr. p. 97).  Claimant further testified that when he was 
 
            told that hearing tests would be required, "...I assumed 
 

 
            
 
            Page   8
 
            
 
            
 
            
 
            
 
            that that was the procedure I had to follow.  I had no 
 
            reason not to trust him."  (tr. p. 94).  
 
            
 
                 Defendant employer was not obligated to explain to 
 
            claimant his legal rights and their legal obligations.  
 
            Furthermore, defendant employer was not obligated to 
 
            instruct claimant to seek his own counsel for an explanation 
 
            of the rights and liabilities of the parties.  Defendant was 
 
            obligated not to induce claimant to embark upon a lengthy 
 
            course of investigation beyond the time of the expiration of 
 
            the statute of limitations and then use this information to 
 
            deny the claim based upon the information obtained. 
 
            
 
                 When defendant sent claimant upon a lengthy course of 
 
            investigation that continued until after the statute of 
 
            limitations had expired and continued to deal with claimant 
 
            for a prolonged period of time after the statute had 
 
            expired, and even denied his claim once and renewed the 
 
            course of investigation to obtain further evidence at the 
 
            Wolfe Clinic which was used to deny his claim, then it can 
 
            safely be stated that defendant should be equitably estopped 
 
            from asserting the statute of limitations as a bar to 
 
            claimant's recovery.  Cardwell v. Iowa Lutheran Hospital, 
 
            Thirty-third Biennial Report of the Industrial Commissioner, 
 
            88, 92 (1977).
 
            
 
                 Estoppel in its broadest sense is a penalty paid by one 
 
            perpetrating wrong by known fraud or by an affirmative act 
 
            which, though without fraudulent intent, may result in legal 
 
            fraud on another.  Black's Law Dictionary, fourth ed. page 
 
            649.  Veach, vol. I no. 1, Iowa Industrial Commissioner 
 
            Decisions 246, 247.
 
            
 
                 The doctrine of equitable estoppel is designed to 
 
            prevent fraud and injustice and may come into play whenever 
 
            a party cannot in good conscious, gainsay his prior acts or 
 
            assertions.  Dart v. Thompson, 261 Iowa 237, 243-44, 154 
 
            N.W.2d 82 (1967).
 
            
 
                 Even though claimant displayed ignorance of the law and 
 
            simple, unsophisticated and naive diligence and intelligence 
 
            by not seeking counsel of his own choosing to find out the 
 
            rights and liabilities of the parties, nevertheless, the 
 
            conduct of defendant employer of inducing claimant to embark 
 
            upon a course of investigation after the running of the 
 
            statute of limitations to obtain information to deny his 
 
            claim appears to be an unfair or deceptive act or practice 
 
            in the business of insurance which would possibly merit 
 
            investigation by the insurance commissioner pursuant to the 
 
            provisions of Iowa Code section 507B.3, particularly in view 
 
            of the fact that this was not an isolated instance but 
 
            appears to be a course of dealings with a number of 
 
            employees over a period of time.
 
            
 
                 The typical way which the insurance industry 
 
            investigates such a claim is pursuant to a nonwaiver 
 
            agreement with the claimant prior to requesting claimant to 
 
            cooperate in getting information or cooperating in other 
 
            aspects of the investigation of the claim.  Such a nonwaiver 
 
            agreement provides that the parties agree that the insurance 
 

 
            
 
            Page   9
 
            
 
            
 
            
 
            
 
            carrier will investigate the claim made by claimant at the 
 
            request of the claimant but in so doing does not waive any 
 
            right to deny insurance coverage, employ any defense, or to 
 
            pay, deny or enter into a compromise settlement of the 
 
            alleged loss.
 
            
 
                 Furthermore, the conduct of employer indicates that it 
 
            may have actually intended to waive the statute of 
 
            limitations initially because the denial letter sent to 
 
            claimant, Bowman and Fagenbaum denied their claims on the 
 
            basis of the merits of their respective cases rather than 
 
            the basis of the statute of limitations even though the 
 
            statue of limitations had expired when the denial letters 
 
            were sent.  Dr. Bendixen, employer's medical director, 
 
            represented to claimant and Fagenbaum that their claims 
 
            might be favorably considered after the statute of 
 
            limitations had expired.  Fagenbaum testified that Dr. 
 
            Bendixen told him "...it looks like it's going to be a 
 
            compensable loss." (tr. p. 150).  On October 10, 1989, after 
 
            the statue of limitations had expired, Dr. Bendixen wrote to 
 
            claimant that after he received Dr. Plakke's evaluation that 
 
            his claim for occupational hearing loss would be considered 
 
            (ex. 2-20).  In January of 1990, after the statute of 
 
            limitations had expired, claimant received a letter from Dr. 
 
            Bendixen that stated the employer was still evaluating a 
 
            number of claims of retirees who had applied for hearing 
 
            loss compensation (exs. 2-21 and 6-3).  After claimant was 
 
            initially denied by letter in February of 1990 after the 
 
            examination by Dr. Plakke, Dr. Bendixen told claimant to 
 
            ignore the denial letter and to go and be examined by the 
 
            Wolfe Clinic (ex. 6-2).  The answer filed by employer on 
 
            September 17, 1990, did not assert a statute of limitations 
 
            defense.  A prehearing conference was held on March 6, 1992, 
 
            and the case was rescheduled because neither party had 
 
            completed discovery, but employer did not assert the statute 
 
            of limitations.  A second prehearing conference was set for 
 
            December 12, 1991, and it was not until December 11, 1991, 
 
            that employer amended its answer to assert the statute of 
 
            limitations under Iowa Code section 85.26(1).  
 
            
 
                 Claimant did not assert the discovery rule as a reason 
 
            for not commencing a timely action and therefore, the 
 
            discovery rule is not an issue to be decided in this case.
 
            
 
                 In conclusion, it is determined that the occupational 
 
            hearing loss claim was not timely commenced but defendant 
 
            employer is equitably estopped from asserting the statute of 
 
            limitations as a bar to this action.
 
            
 
                            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.
 
            
 

 
            
 
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                 Iowa Code section 85B.4(2) defines excessive noise 
 
            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 testified and prepared an exhibit in which he 
 
            divided his employment with employer into four periods of 
 
            time, specified the work performed and described the noise 
 
            level in his opinion for each of these periods of time (ex. 
 
            8).
 
            
 
                 First, from July 14, 1958 to July 10, 1961, claimant 
 
            worked on assembly lines and in tractor repair where the 
 
            noise level was general to loud.
 
            
 
                 Second, claimant worked from December 1, 1961 to August 
 
            12, 1969, testing transmissions where the noise level was 
 
            very loud.
 
            
 
                 Third, claimant worked from August 12, 1969 to May 4, 
 
            1981, as a bench and line assembler where the noise level 
 
            was general to loud.
 
            
 
                 Fourth, claimant worked from May 4, 1981 to September 
 
            30, 1987, in transmission testing again and with the bending 
 
            machine where the noise level was very noisy.
 
            
 
                 During the first period of employment, claimant worked 
 
            in departments 13, 42, 43, 44, 45, and 50.  He also worked 
 
            in department 46 during his short tour of temporary 
 
            employment in 1955.  
 
            
 
                 Company records show that the noise level in department 
 
            13 on August 23-25, 1971, was 102 to 104 decibels at the 
 
            blowoff station and 90-98 decibels at machine number 9622 
 
            (ex. 5-2).  The noise level in department 50 at various 
 
            machines ranged from a low of 83 decibels to a high of 92 
 

 
            
 
            Page  11
 
            
 
            
 
            
 
            
 
            decibels (ex. 5-2).  On July 12, 1977, a noise overexposure 
 
            report at machine 5926 showed that the operator was 
 
            receiving a noise dose ranging from 118 percent to 894 
 
            percent of the maximum allowable noise dose and that it 
 
            exceeded the 115 decibel maximum allowable pressure level.  
 
            This report also noted that employees working in adjacent 
 
            areas had registered complaints about the noise generated by 
 
            this machine (ex. 5-3).  The parties agreed that the figure 
 
            894 percent should be 89.4 percent as is shown on exhibit 
 
            5-4.  Other reports showed the noise level in department 13 
 
            as either being over 115 decibels (ex. 5-5) or otherwise 
 
            capable of causing excessive noise.  Another exhibit 
 
            prepared on September 11, 1974, showed the noise levels in 
 
            department 13 of several machines as ranging between a low 
 
            of 80 decibels and a high of 92 decibels (exs. 5-6 - 5-21).  
 
            
 
                 Noise levels in department 42 exceeded 115 decibels on 
 
            May 6, 1972, and were recorded at 85 and 85.56 decibels on 
 
            April 7, 1977 (exs. 5-56 - 5.60).  
 
            
 
                 The exposure in department 45 on December 15, 1975, 
 
            exceeded 115 decibels and was reported that the employee was 
 
            overexposed (ex. 5-62).  In department 46, noise levels of 
 
            between 96 decibels and 104 decibels were reported on July 
 
            19, 1972 (ex. 5-63).  Other reports for department 46 show 
 
            noise levels of between 94 decibels and 106 decibels and 
 
            that hearing protection was required (exs. 5-66, 5-67).  
 
            
 
                 A report for department 50 on August 23-25, 1971, shows 
 
            that decibel levels range between a low of 63 and a high of 
 
            92 (exs. 5-2, 5-68).  Claimant operated impact wrenches in 
 
            assembly and noise level reports for impact wrenches are 
 
            shown as 80-90 decibels, 80-87 decibels and 82-94 decibels 
 
            in department 50 (ex. 5-69).  A report on October 30, 1970, 
 
            for department 50 showed decibels ranging between a low of 
 
            91.5 and a high of 93 decibels (ex. 5-70).  A report on 
 
            March 20, 1970, showed decibels ranging between 88 decibels 
 
            and 96 decibels in department 50 (ex. 5-71).
 
            
 
                 During the second period described by claimant he 
 
            worked in departments 41, 50 and 52.  There are no reports 
 
            for department 41.  The decibel levels for department 50 
 
            have already been given and in department 52 decibel levels 
 
            ranged from 92 to 100 on November 17, 1971 (ex. 5-77).  In 
 
            department 52 they exceeded 115 decibels on March 21, 1972 
 
            (ex. 5-80) and exceeded 115 decibels again on March 27, 1972 
 
            (ex. 5-82).  In department 52 they exceeded 115 decibels 
 
            again on May 17, 1973 (ex. 5-84).  In department 52 noise 
 
            exceeded 115 decibels again on March 2, 1973 and March 5, 
 
            1973 (exs. 5-85, 5-86).  
 
            
 
                 Claimant stated that he worked in departments 50, 50A 
 
            and 130 in the third period of time.  They are no reports 
 
            for department 130.  Reports for department 50 have been 
 
            given previously.  Reports for department 50A are reported 
 
            at 82 and 84 decibels on August 23-25, 1971 (ex. 5-72).  
 
            Another report with the date cut off by the copy machine for 
 
            department 50A shows decibel levels between 78 and 87 (ex. 
 
            5-73).
 
            
 

 
            
 
            Page  12
 
            
 
            
 
            
 
            
 
                 In the fourth period of time described by claimant, the 
 
            record shows that claimant worked in departments 44B, 52B, 
 
            57, 344, 376, and 536.  Various reports in January 1982 
 
            reflect decibel levels in department 376 between a low of 79 
 
            and a high of 94 (exs. 5-27 - 5-49) and sometimes exceeded 
 
            115 decibels (ex. 5-50).  A report on September 29, 1987, at 
 
            the time claimant retired from department 376, which was 
 
            based on a study done on August 13, 1987, showed sound 
 
            measurements of 116 decibels, at the drop housing; 105 
 
            decibels at the transmission; and 104 decibels at the drive 
 
            mechanism of the transmission testing machine that claimant 
 
            operated (ex. 5-52).  A specific report for the name Gene 
 
            Fike on August 13, 1987, showed that exposure exceeded 115 
 
            decibels (ex. 5-53 - 5-55).  
 
            
 
                 A report for department 52B on August 23-25, 1971, 
 
            showed a decibel level of 96 (ex. 5-88) and 90 decibels (ex. 
 
            5-89).  Another report for department 52B on April 16, 1975, 
 
            showed decibel levels of between 110 and 114 (ex. 5.94).  
 
            
 
                 Reports for department 536, dated February 16, 1984, 
 
            for Gene Fike showed that 115 decibels was exceeded in 
 
            department 536 (exs. 5-105 - 5-108).  
 
            
 
                 A report for department 57 on August 23-25, 1987, shows 
 
            decibel levels between 90 and 92 (ex. 5-109).  For 
 
            department 57 on January 25, 1982, decibel levels of between 
 
            80 and 87 were reported for department 57 (exs. 5-110, 
 
            5-111).  Department 57 on January 19, 1992, showed decibel 
 
            levels between 79.3 and 92.9 (exs. 5-112, 5-113).  Another 
 
            report for department 57 on March 4, 1974, showed that the 
 
            employee was overexposed (ex. 5-114).  Other decibel levels 
 
            for department 57 recorded on June 23, 1976, were between 78 
 
            decibels and 94 decibels (ex. 5-15).
 
            
 
                 Claimant testified that he did not experience any 
 
            long-term exposure to loud noises previous to working for 
 
            employer (tr. p. 54).  Claimant admitted seeing ear doctors 
 
            for an infection and noises in his ears, but denied he had 
 
            suffered any hearing loss problems prior to working for 
 
            employer (tr. pp. 106-125, 54).  Claimant testified that his 
 
            hearing loss began sometime between 1961 and 1969 when he 
 
            worked on the transmission test machines (tr. p. 125).  When 
 
            claimant tested transmissions there were three sources of 
 
            noise (1) the dyno motor which ran the transmission, (2) the 
 
            transmission and (3) the hydraulic power takeoff was also 
 
            being tested (tr. p. 77).  
 
            
 
                 Claimant further testified that when he was testing 
 
            transmissions just before he retired in department 376, he 
 
            was told that the noise level exceeded 120 decibels.  He 
 
            operated this machine 12 to 16 hours a day.  It hurt his 
 
            ears in spite of the fact that he was wearing sponge rubber 
 
            inserts and ear muffs for hearing protection (tr. pp. 
 
            87-88).  
 
            
 
                 There are no sound level reports for departments 44B 
 
            and 344.
 
            
 
                 Claimant explained and the diagram, exhibit 9, showed 
 

 
            
 
            Page  13
 
            
 
            
 
            
 
            
 
            that claimant faced a console in front of him but the dyno, 
 
            transmission and power takeoff were on his left.  Claimant 
 
            testified, "I would say that 90 percent of the noise input 
 
            that I was exposed to was hitting me from the left side, 
 
            because that's where it was."  (tr. p. 90). 
 
            
 
                 Claimant also testified that the equipment in the 
 
            console in front of him also produced noise.  He said that 
 
            these hydraulic pumps and motors in the cabinet created 
 
            equal or more of a high pitched level than the dyno which 
 
            powered the transmission (tr. pp. 77-78).  In transmission 
 
            testing there was another testing station in front of 
 
            claimant and two others behind him that generated the same 
 
            amount of noise because they were performing the same 
 
            function.  Across the aisle there were four other units 
 
            performing a secondary test which also produced much noise 
 
            (tr. p. 79; ex. 9).  Claimant tested transmissions from 1961 
 
            to 1969 and again from 1981 to 1987 (tr. p. 82).  
 
            
 
                 James L. Conrad, a former coemployee of claimant and a 
 
            current 27-year employee of employer, testified that he 
 
            worked with claimant in the early 80's in departments 52B, 
 
            536 and 376 which are transmission test areas.  Conrad 
 
            described claimant's work station and marked on the diagram 
 
            that claimant stood in front of the console and verified 
 
            that the transmission being tested was on his left side.  
 
            Conrad corroborated claimant's testimony that the dyno made 
 
            a whining noise in addition to the high pitched noise of the 
 
            transmission itself.  The witness described the noise level, 
 
            "It's noisy.  It's noisy.  When you get a battery of those 
 
            running, it's noisy." (tr.  p. 31).  He also verified that 
 
            there were other machines adjacent to claimant making the 
 
            same noise as well as more machines across the aisle from 
 
            claimant which were also testing transmissions.  
 
            
 
                 Conrad also verified that they worked extensive 
 
            overtime (tr. p. 38).  There were many 12 and 14-hour days 
 
            (tr. p. 40).  Conrad also stated that hearing protection was 
 
            not required when claimant worked there, but later several 
 
            tests were run and hearing protection is now required to 
 
            work in these areas (tr. pp. 42-44).  Conrad admitted that 
 
            he was not a test machine operator.  He was a repairman and 
 
            performed repair work on the testing machines in those areas 
 
            (tr. pp. 46-48).
 
            
 
                 Claimant testified that hearing protection was not 
 
            required when he worked for employer but that he began using 
 
            it sometime between 1961 and 1969 to muffle the noise 
 
            because it hurt his ears.  Claimant testified that the noise 
 
            caused ringing in his ears and tension headaches.  He said 
 
            the hearing protection helped muffle the noise but he could 
 
            still hear it (tr. pp. 84-85, 119).  Just prior to his 
 
            retirement he was testing the transmission of a road grader 
 
            which had 16 forward speeds and 4 reverse speeds which were 
 
            not running in oil traveling at approximately 2500 r.p.m.'s 
 
            during a 20-minute test cycle.  He said the noise was very 
 
            excessive.  It bothered his ears.  It hurt even though he 
 
            wore sponge rubber inserts and ear muffs (tr. p. 120).  
 
            Claimant testified that he complained and one of the company 
 
            sound engineers came out and monitored the sound and showed 
 

 
            
 
            Page  14
 
            
 
            
 
            
 
            
 
            him that he was hearing 120 decibels while the machine was 
 
            operating.  Claimant added that he operated that machine 12 
 
            to 16 hours per day, some times six days a week, in 
 
            department 376 just prior to his retirement (tr. pp. 86-88, 
 
            120).
 
            
 
                 Claimant denied any significant noise exposure after 
 
            retiring from employer (tr. p. 100).  
 
            
 
                 Claimant testified that wearing ear protection helped 
 
            muffle the noise for his own comfort and safety so that it 
 
            did not hurt to hear the noise (tr. pp. 121-122).
 
            
 
                 During the course of claimant's employment with 
 
            employer, eight audiograms were performed.  The first one 
 
            was made on September 8, 1977, which is some 19 years after 
 
            claimant had been exposed to high levels of noise (ex. 
 
            2-15).  Furthermore, this was subsequent to the first 
 
            traumatic period of high noise between 1961 and 1969 when 
 
            the noise hurt his ears and he began voluntarily wearing 
 
            hearing protection.  Claimant was working in department 50A 
 
            on September 8, 1977.  This first audiogram shows 
 
            significant loss in both the right and left ear at the 
 
            higher frequencies of 2000 and 3000 hertz.  A second 
 
            audiogram on June 2, 1980, when claimant worked in 
 
            department 50A showed increased losses in both ears at the 
 
            lower decibels (ex. 2-13).
 
            
 
                 Claimant was then transferred back into transmission 
 
            testing and the next audiogram on June 2, 1981, when he 
 
            worked in department 376 showed significant loss of hearing 
 
            in both ears at all four frequencies, but the loss was 
 
            greatest in both ears at the higher decibels of 2000 hertz 
 
            and 3000 hertz (ex. 2-4).
 

 
            
 
            Page  15
 
            
 
            
 
            
 
            
 
         
 
              The next audiogram on August 3, 1981, when claimant worked 
 
         in department 52B, showed some improvement in his hearing (ex. 
 
         2-1).
 
         
 
              The next four audiograms demonstrate a continued loss of 
 
         hearing in both ears at 2000 hertz and 3000 hertz, but the 
 
         greatest and most marked loss was at 3000 hertz in the left ear.  
 
         These tests were performed on November 8, 1982, for department 
 
         52B (ex. 2-9); January 31, 1984, in department 536 (ex. 2-7); 
 
         March 1, 1985, in department 536 (ex. 2-6); and April 4, 1986, in 
 
         department 57 (ex. 2-5).  It was during this period of time that 
 
         claimant and Conrad testified that claimant was exposed to the 
 
         high pitched whining of the dyno, the transmission and the rock 
 
         shaft in claimant's left ear.  
 
         The next audiogram was performed by employer after claimant's 
 
         retirement in the course of the investigation of this claim on 
 
         September 21, 1989, by P. Kramer (ex. 2-1).  This audiogram 
 
         showed even a greater loss than was recorded on April 4, 1986, 
 
         which may well be explained by the fact that claimant testified 
 
         that during his last year and one-half in department 376 he was 
 
         testing the transmission of a road grader which was louder than 
 
         anything else he had ever tested and one of the sound engineers 
 
         told him that the level of sound exceeded 120 decibels.  
 
         Claimant's testimony is born out by a dosimeter exposure record 
 
         dated August 13, 1987, about a month before claimant retired for 
 
         department 376 which indicated that noise level in that depart
 
         ment exceeded 115 decibels (ex. 5-53).  A specific report on 
 
         claimant's work station on August 13, 1987, showed that the 
 
         exposure exceeded 115 decibels (ex. 5-53 - 5-55).
 
         
 
              Iowa Code section 85B.4(1) defines occupational hearing loss 
 
         as sensorineural loss 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) 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 rating shown in the chart is 90 
 
         decibels.  Many of the sound level surveys described above show 
 
         decibel ratings 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 far in excess of 105 
 
         decibels.
 
         
 
              The sound level surveys do not necessarily correlate in all 
 
         cases with the dates that claimant worked in these departments, 
 
         but they are, nevertheless, indicative of the sound level in 
 
         these departments. 
 

 
         
 
         Page òòò 16        
 
         
 
         
 
         
 
         
 
              Claimant testified that he worked 8, 10, 12, 14, and some
 
         times 16 hours per day in these noise levels five or six days per 
 
         week.  Conrad corroborated claimant's testimony that they worked 
 
         an extensive amount of overtime.  
 
         
 
              Therefore, claimant has established prolonged exposure to 
 
         excessive noise levels.  Moreover, 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.  Muscatine County v. Morrison, 409 N.W.2d 685 (Iowa 
 
         1987; Weyant v. John Deere Dubuque Works, file number 801718 
 
         (App. Dec. February 22, 1988).  Prolonged exposure at lower 
 
         decibels may constitute an excessive noise level.
 
         
 
              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 constitute 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).
 
         
 
              On October 16, 1989, Dr. Plakke found that claimant's 
 
         responses were reliable and showed a moderate to severe 
 
         sensorineural hearing loss bilaterally (ex. 2-32).
 
         
 
              On April 11, 1990, Michael W. Hill, M.D., an 
 
         otolaryn-gologist at the Wolfe Clinic, stated that his 
 
         audiometric evaluation revealed a severe high frequency 
 
         sensorineural hearing loss bilaterally with the left ear 
 
         significantly more impaired than the right ear.  He said that a 
 
         large component of this hearing loss was noise induced, but he 
 
         could not explain the difference for the greater loss in the left 
 
         ear based on noise.  He recommended a hearing aid for better 
 
         hearing (ex. 2-18).  
 
         
 
              E.L. Grandon, M.D., an otolaryngologist, examined claimant 
 
         on October 15, 1991, and found that claimant sustained a severe 
 
         sensorineural hearing loss much worse on the left than on the 
 
         right.  He testified that claimant's hearing loss can be 
 
         attributed in great part to his exposure to noise while employed 
 
         for 29 years at the John Deere plant (ex. 1-1).
 
         
 
              Thus, claimant has proven by a preponderance of the evidence 
 
         that he sustained a sensorineural loss of hearing in both ears 
 
         caused by noise which arose out of and in the course of employ
 
         ment caused by prolonged exposure to excessive noise levels.  It 
 
         will be seen that this loss exceeds 25 decibels in the next 
 
         section of this decision.
 
         
 
              Some of the common causes of nonemployment hearing loss are 
 
         ruled out in this case for the reason that claimant has never 
 
         performed any military service, there is no family history of 
 
         hearing loss, claimant has never farmed, claimant has never snow
 
         mobiled or worked with woodworking tools.  He did hunt some in 
 
         his earlier years once or twice a season with his sons-in-law, 
 

 
         
 
         Page òòò 17        
 
         
 
         
 
         
 
         but his exposure to loud noise from hunting would be minimal.  
 
         Dr. Grandon said claimant denied any childhood hearing difficulty 
 
         or ear infections.  He stated that claimant never used a chain 
 
         saw (ex. 1-3).  Dr. Hill of the Wolfe Clinic stated that claimant 
 
         has had minimal recreational exposure (ex. 2-18).
 
         
 
              Defendant maintained that claimant's occupational hearing 
 
         loss claim should be denied because (1) Dr. Hill at the Wolfe 
 
         Clinic could not explain the difference between the right ear and 
 
         the left ear on the basis of noise exposure (ex. 2-18); 
 
         (2) employer records in 1981 indicated that claimant had a 
 
         preexisting loss dating back to 1958; and (3) claimant used 
 
         hearing protection at work and therefore, his loss occurred 
 
         primarily outside of his employment.  These reasons are contained 
 
         in a memorandum from Dr. Bendixen to Mr. Treiber dated April 19, 
 
         1990 (ex. 2-19).  Shortly thereafter on April 27, 1990, Treiber 
 
         sent his final denial letter to claimant denying the claim on the 
 
         basis that claimant had not sustained a work-caused occupational 
 
         hearing loss (ex. 2-16).  
 
         
 
              Employer's medical records contain a notation by Dr. R.D. 
 
         Acker dated September 8, 1977, when claimant requested his first 
 
         audiogram.  Dr. Acker noted that claimant thought he had a simi
 
         lar audiogram with severe high tone loss in the left ear about 10 
 
         years ago by a private physician (ex. 2-25).  In addition, 
 
         another company medical notation, dated June 2, 1980 prepared by 
 
         S.L. Casta at the time of that audiogram, noted that claimant saw 
 
         a private physician in 1958 for chiruping in his right ear which 
 
         started even before 1958 while driving a diesel truck with a 
 
         screaming supercharged engine (ex. 2-24).  Dr. Casta repeated 
 
         this information at the time of the August 3, 1981, audiogram.  
 
         Dr. Casta added that claimant was told by the private physician 
 
         in 1958 that he had damage in the inner ear (ex. 2-23).  Claimant 
 
         denied any noise exposure from his previous employments as a 
 
         delivery truck driver and routeman for various employers (tr. p. 
 
         54).  He denied any loud exposure from recreational activities 
 
         (tr. pp. 55-56).
 
         
 
              On cross-examination, claimant acknowledged that in-between 
 
         his temporary and permanent employment with John Deere between 
 
         1955 and 1958, he did drive a truck on a temporary basis and made 
 
         one or two trips into Chicago with the truck that made a loud 
 
         engine noise.  It was not a long-term job (tr. pp. 108-111).  
 
         
 
              Claimant acknowledged that he did see a private physician 
 
         for noises, more specifically, ringing in his ears in possibly 
 
         1958, but denied that he had seen a physician for any loss of 
 
         hearing.  Claimant further denied that he used the word chiruping 
 
         and stated that was the doctor's terminology not his (tr. pp. 
 
         112-118).  Claimant had no recollection of stating that he had 
 
         damage to his inner ear (tr. p. 115).  Claimant said that he saw 
 
         the doctor for noises, not hearing loss.  The doctor did not pre
 
         scribe a hearing aid at that time for hearing loss (tr. p. 123).  
 
         Claimant stated the problem with his ear or ears at that time was 
 
         an infection and that it was only temporary (tr. p. 124).  
 
         
 
              Thus, defendant has alleged a hearing loss prior to employ
 
         ment with employer based on company medical records prepared by 
 
         company doctors who focused on outside causes for claimant's 
 

 
         
 
         Page òòò 18        
 
         
 
         
 
         
 
         hearing loss rather than the extremely high decibel exposures 
 
         that claimant was exposed to eight or more hours per day, five or 
 
         six days per week while claimant was working for employer.  
 
         Claimant disputed these entries made by Dr. Acker and Dr. Casta 
 
         and the terminology that the doctors chose to use.  If claimant 
 
         did, in fact, have a significant loss of hearing prior to his 
 
         employment, then it would seem that the private physicians would 
 
         have prescribed a hearing aid for claimant at that time.  Like
 
         wise, if the doctor felt claimant was losing his hearing he would 
 
         have scheduled another re-test at a later date.  Claimant testi
 
         fied that no hearing aid was prescribed.  Claimant's testiomony 
 
         that his hearing loss first began between 1961 and 1969 is deter
 
         mined to be the best evidence of when his hearing loss began.  It 
 
         comports best with all of the other evidence in this case.  
 
         
 
              Claimant has established a prima facie case that he did 
 
         sustain a sensorineural noise induced hearing loss which was 
 
         caused by his employment.  The innuendos suggested by Dr. Casta 
 
         in the employer's medical record are not sufficient to rebut the 
 
         overwhelming prima facie case established by claimant by the 
 
         noise level surveys and his testimony and the testimony of 
 
         Conrad.
 
         
 
              Furthermore, if defendant seeks an apportionment of the 
 
         loss, the burden of proof is upon the employer to show the exis
 
         tence and extent of any preexisting disability or else the 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 dif
 
         ference between the percent of occupational hearing loss deter
 
         mined 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.
 
         
 
              The fact that Dr. Hill cannot explain a greater loss in the 
 
         left ear on the basis of noise was explained by claimant and 
 
         Conrad in their testimony at the hearing.  Dr. Hill's consterna
 
         tion may be influenced by the fact that he was the second evalua
 
         tor hired by employer to produce evidence to defend this case.
 
         
 
              The fact that claimant continued to suffer hearing loss even 
 

 
         
 
         Page òòò 19        
 
         
 
         
 
         
 
         though he was wearing double ear protection, may well be ex
 
         plained by the fact that the company sound engineer told claimant 
 
         that he was working in an environment of 120 decibels when he was 
 
         testing road grader transmissions just prior to his retirement.  
 
         Claimant agreed that hearing protection does muffle the noise, 
 
         but it was still possible to hear the noise.  It is entirely 
 
         possible that the high decibels of noise exposure which claimant 
 
         received over his adult working lifetime for employer for over 29 
 
         years, could have caused continued hearing loss in spite of the 
 
         fact that claimant was wearing hearing protection.  Considering 
 
         the extremely high decibels to which claimant was exposed to for 
 
         8 to 12 hours per day and five or six days per week for 29 years, 
 
         it is not unreasonable that he could suffer hearing impairment 
 
         even though he wore hearing protection.  The evidence of noise 
 
         exposure outside of claimant's employment is extremely minimal.  
 
         No other hearing disease was established by employer.
 
         
 
              Wherefore, it is determined that claimant has sustained an 
 
         occupational hearing loss which is a permanent sensorineural 
 
         hearing loss 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.
 
         
 
                               EXTENT OF DISABILITY
 
         
 
              It is determined that claimant has sustained a total 
 
         binaural hearing loss of 64.0625 percent and is entitled to 
 
         112.10937 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.  In this 
 
         case, there were four audiograms taken after the time when 
 
         claimant notified Treiber in the summer of 1989 that he wished to 
 
         file his claim within two years after his retirement for an 
 
         occupational hearing loss.  
 
         
 
              The first audiogram was performed by P. Kramer at John Deere 
 
         on September 21, 1989, and based on the figures used, indicates a 
 
         binaural hearing loss of 62.1875 percent.  This audiogram cannot 
 
         be used for two reasons.  First, the qualifications of the person 
 
         performing the test are not shown anywhere in the record and Iowa 
 
         Code section 85B.9 specifies that audiometric examinations shall 
 
         be made by a person with certain qualifications.  The qualifica
 
         tions of the person performing the John Deere test are unknown.  
 
         Secondly, the John Deere audiogram did not give readings below 90 
 
         decibels whereas the other three audiograms do give readings be
 
         low 90 decibels and for that reason the calculated binaural 
 
         hearing loss, based on the John Deere examination, is artifi
 
         cially too low.  For these reasons, the John Deere audiogram is 
 
         not considered to be the lowest and is not used in the determina
 
         tion in the amount of occupational hearing loss in this case.
 
         
 
              The Wolfe Clinic audiogram was either performed by or under 
 
         the supervision of an otolaryngologist, Dr. Hill, but it resulted 
 
         in the highest percent of binaural hearing loss, to wit, 77.1875 
 
         percent.  There was no explanation why the Wolfe Clinic audiogram 
 
         of Dr. Hill was inordinately higher than the others unless it was 
 
         trying to make a case that claimant's loss was higher after he 
 

 
         
 
         Page òòò 20        
 
         
 
         
 
         
 
         was removed from the high noise environment in an attempt to 
 
         suggest that something other than employment was causing his 
 
         hearing loss.  Pottebaum v John Deere, Dubuque Works, file number 
 
         954480 (App. Dec. 7-13-92).
 
         
 
              Dr. Plakke is a Ph.D., and his letterhead shows that he is a 
 
         licensed audiologist and his calculated binaural hearing loss is 
 
         65.9375 percent and is not the lowest percent of loss.
 
         
 
              The lowest percent of loss was established by Dr. Grandon or 
 
         an audiologist under his supervision, and Dr. Grandon, like Dr. 
 
         Hill, is an otolaryngologist.  Dr. Grandon's determination of 
 
         loss is 64.0625 which is fairly close to the determination of Dr. 
 
         Plakke.  Differences can occur because of differences in the 
 
         examiner, examinee, equipment, and technique employed on any 
 
         given day or time.
 
         
 
              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 rela
 
         tion which the calculated binaural hearing loss bears to an 
 
         allowable total loss of hearing of 175 weeks.  
 
         
 
              Dr. Grandon's percent of binaural hearing loss is .640625 x 
 
         175 weeks and equals 112.10937 weeks times the stipulated rate of 
 
         $486.82 and results in a total award of $54,577.08.
 
         
 
                                   HEARING AID
 
 
 
         Iowa Code section 85B.12 provides that an employer who is liable 
 
         for occupational hearing loss of an employee is required
 
         
 
         
 
         Page òòò 21        
 
         
 
         
 
         
 
         
 
         to provide the employee with a hearing aide unless it will not 
 
         materially improve the employee's ability to hear.
 
         
 
              Claimant testified that he first acquired a hearing aide on 
 
         November 20, 1982, and has purchased two other upgraded and more 
 
         efficient hearing aids since then (ex. 8).  Thus, a hearing aide 
 
         does materially improve claimant's hearing and claimant is 
 
         entitled to a hearing aid pursuant to section 85B.12.
 
         
 
              Dr. Hill recommended a hearing aid.
 
         
 
                                CONCLUSIONS OF LAW
 
         
 
              Wherefore, based upon the foregoing and following principles 
 
         of law, these conclusions of law are made:
 
         
 
              That this action was not commenced within two years of the 
 
         occurrence of the occupational hearing loss as required by Iowa 
 
         Code section 85B.14 and Iowa Code section 85.26(1), but that 
 
         defendant is equitably estopped from asserting the statute of 
 
         limitation. Paveglio, 167 N.W.2d 636, 638-39; DeWall, 224 N.W.2d 
 
         428; Carter, 373 N.W.2d 524; Veach, Vol. I no. 1 State of Iowa 
 
         Industrial Commissioner Decisions 246; Jacobsen, Thirty-second 
 
         Biennial Report of the Industrial Commissioner 111; Hartzler, 
 
         file number 716000.
 
         
 
              That claimant did sustain 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 has sustained a 64.0625 percent occupational 
 
         hearing loss and is entitled to 112.10937 weeks of occupational 
 
         hearing loss compensation at the stipulated rate of $486.82 in 
 
         the total amount of $54,577.08.
 
         
 
              That paragraph 1a of section 9.1b of the Guides to the 
 
         Evaluation of Permanent Impairment, third edition, which indi
 
         cates that frequencies greater than 100 decibels shall be taken 
 
         as 100 decibels (ex. 11) is not applicable in Iowa for the reason 
 
         that rule 343 IAC 2.4 of the Iowa Administrative Procedure Act 
 
         provides that the Guides are adopted as a guide for determining 
 
         permanent partial disabilities under Iowa Code section 85.34(2) 
 
         sections a through r.  The Guides have not been adopted for 
 
         application to occupational hearing loss cases.  Iowa Code 
 
         section 85B.9 specifies how hearing loss is to be measured and 
 
         places no limitation on readings in excess of 100 decibels.
 
         
 
                                      ORDER
 
         
 
              THEREFORE, IT IS ORDERED:
 
         
 
              That defendant pay to claimant one hundred twelve point one 
 
         zero nine three seven (112.10937) weeks of occupational hearing 
 
         loss compensation at the stipulated rate of four hundred 
 
         eighty-six and 82/100 dollars ($486.82) in the total amount of 
 
         fifty-four thousand five hundred seventy-seven and 08/100 dollars 
 
         ($54,577.08) commencing on September 30, 1987, as stipulated to 
 

 
         
 
         Page òòò 22        
 
         
 
         
 
         
 
         by the parties.
 
         
 
              That this amount is 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 a 
 
         suitable hearing aid for 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 86.40 86.19(1) and rule 343 IAC 4.3.  Claimant is also 
 
         entitled to the filing fee with the industrial commissioner in 
 
         the amount of sixty-five ($65) and the report of Dr. Grandon in 
 
         the amount of seventy-five ($75) for a total amount of one 
 
         hundred forty dollars ($140).  Claimant is not entitled to the 
 
         copy fee in the amount of seventy-two and 45/100 dollars ($72.45) 
 
         in order to secure a copy of claimant's deposition.
 
         
 
              That defendant file claim activity reports as requested by 
 
         this agency pursuant to rule 343 IAC 3.1.
 
         
 
              Signed and filed this ____ day of July, 1992.
 
         
 
         
 
         
 
         
 
                                       ______________________________
 
                                       WALTER R. McMANUS, JR.
 
                                       DEPUTY INDUSTRIAL COMMISSIONER    
 
         
 
         Copies to:
 
         
 
         Mr. Robert Fulton
 
         Attorney at Law
 
         First National Bldg, 6th Floor
 
         E 4th and Sycamore
 
         PO Box 2634
 
         Waterloo, Iowa  50704-2634
 
         
 
         Mr. John Rathert
 
         Attorney at Law
 
         PO Box 178
 
         Waterloo, Iowa  50704-0178
 
         
 
 
            
 
            
 
            
 
            
 
            
 
                                          2402 1403.30 2901 2102 
 
                                          51108.50 51401 2208 51803
 
                                          Filed July 24, 1992
 
                                          Walter R. McManus, Jr.
 
            
 
                    BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
                                          :
 
            EUGENE FIKE,                  :
 
                                          :
 
                 Claimant,                :      File No. 946021
 
                                          :
 
            vs.                           :
 
                                          :  A R B I T R A T I O N
 
            JOHN DEERE WATERLOO WORKS,    :
 
                                          :      D E C I S I O N
 
                 Employer,                :    
 
                 Self-Insured,            :      
 
                 Defendant.               :
 
            ___________________________________________________________
 
            
 
            2402 1403.30 2901
 
            Claimant failed to commence an action by filing an original 
 
            notice and petition for an occupational hearing loss within 
 
            two years after his retirement.
 
            
 
            2102
 
            Claimant strictly proved the four elements of equitable 
 
            estoppel and employer was equitably estopped from asserting 
 
            the statute.  Cites.
 
            Near the end of the filing period, claimant announced his 
 
            intention to employer to file a claim for occupational 
 
            hearing loss before the expiration of the two-year period of 
 
            limitations.  Employer set claimant on a course of 
 
            investigation and concealed the fact that when claimant had 
 
            completed the additional audiograms and evaluations, that 
 
            the time for commencing an action would have expired.  Thus, 
 
            employer used the period of investigation after the statue 
 
            had expired to accumulate evidence to attempt to deny the 
 
            claim on the merits and irrespective of what the 
 
            investigation revealed, claimant finally would still be 
 
            barred from bringing an action due to the expiration of the 
 
            statutory period for commencing an action.  Until the claim 
 
            was finally denied, employer implied the claim was under 
 
            consideration for payment.
 
            Two other retired employees testified that employer did 
 
            essentially the same thing to them.
 
            Even after the statute had expired and employer had sent the 
 
            first denial letter to claimant, the employer then reversed 
 
            the decision and requested claimant to obtain another 
 
            audiogram implying that his claim would still possibly 
 
            receive favorable consideration.
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            Employer's conduct could possibly be the subject of an 
 
            investigation by the insurance commissioner pursuant to Iowa 
 
            Code section 507B.3.
 
            The proper insurance industry practice under the 
 
            circumstances would have been to investigate the claim under 
 
            a nonwaiver agreement.
 
            
 
            51108.50 51401 2208
 
            Claimant proved occupational hearing loss by the 
 
            overwhelming evidence through noise level reports, 
 
            audiograms over the years, a coemployee, and his own 
 
            testimony.  Outside exposures were minimal.  Plant exposures 
 
            were humongous.
 
            
 
            51803
 
            The first audiogram taken by employer after notice of claim 
 
            could not be used even though it was the lowest rating 
 
            because the qualifications of the person who took the test 
 
            were not in evidence and because the rating did not record 
 
            values below a 90 decibel loss.
 
            Claimant's evaluator was the lowest acceptable rating and it 
 
            was close to an independent rating requested by employer.
 
            Employer's last audiogram and evaluation was inordinately 
 
            higher than all of the others and was suspect for that 
 
            reason.
 
            Award amounted to $54,477.08 plus a suitable hearing aid.
 
            The AMA Guides could not be used to throw out decibel levels 
 
            below 100 decibels because rule 343 IAC 2.4 provides that 
 
            the AMA Guides apply only to injuries under Iowa Code 
 
            section 85.34(2) a-r.  The AMA Guides have not been adopted 
 
            for hearing loss cases in Iowa.  Hearing loss is measured by 
 
            Iowa Code section 85B.9.
 
            The burden of proof of a preexisting hearing loss to reduce 
 
            benefits or an apportionment of loss is upon the employer.  
 
            Employer failed to prove preexisting loss by a preponderance 
 
            of the evidence and wa dheld liable for the entire loss.
 
            
 
 
            
 
            Page   1
 
            
 
            
 
            
 
            
 
            before the iowa industrial commissioner
 
            ____________________________________________________________
 
            _____
 
                                          :
 
            ROBERT SOUKUP,                :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :      File Nos. 927412/946025
 
            D and S SHEET METAL, INC.,    :
 
                                          :
 
                 Employer,                :
 
                                          :
 
            and                           :            A P P E A L
 
                                          :
 
            SECURA INSURANCE CO.,         :
 
                                          :
 
                 Insurance Carrier,       :
 
                                          :
 
            and                           :
 
                                          :
 
            SECOND INJURY FUND OF IOWA,   :
 
                                          :
 
                 Defendants.              :
 
            ____________________________________________________________
 
            ____
 
                                          :
 
            ROBERT SOUKUP,                :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :           File No. 858701
 
            MARESH SHEET METAL WORKS,     :
 
                                          :
 
                 Employer,                :
 
                                          :
 
            and                           :           D E C I S I O N
 
                                          :
 
            HAWKEYE SECURITY,             :
 
                                          :
 
                 Insurance Carrier,       :
 
                                          :
 
            and                           :
 
                                          :
 
            SECOND INJURY FUND OF IOWA,   :
 
                                          :
 
                 Defendants.              :
 
            ____________________________________________________________
 
            ____
 
            The record, including the transcript of the hearing before 
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            the deputy and all exhibits admitted into the record, has 
 
            been reviewed de novo on appeal.  The decision of the deputy 
 
            filed May 1, 1991 is affirmed and is adopted as the final 
 
            agency action in this case.
 
            Claimant shall pay the costs of the appeal, including the 
 
            preparation of the hearing transcript.
 
            Signed and filed this ____ day of December, 1991.
 
            
 
            
 
            
 
            
 
                      ________________________________
 
                               BYRON K. ORTON
 
                          INDUSTRIAL COMMISSIONER
 
            
 
            Copies To:
 
            
 
            Mr. Robert Rush
 
            Attorney at Law
 
            526 2nd Ave. SE
 
            Cedar Rapids, Iowa 52406
 
            
 
            Mr. David Mason
 
            Mr. Mark Fransdal
 
            Attorneys at Law
 
            315 Clay St.
 
            P.O. Box 627
 
            Cedar Falls, Iowa 50613
 
            
 
            Ms. Shirley A. Steffe
 
            Assistant Attorney General
 
            Tort Claims Division
 
            Hoover State Office Bldg.
 
            Des Moines, Iowa 50319
 
            
 
            
 
 
            
 
            Page   1
 
            
 
            
 
            
 
            
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            ROBERT SOUKUP,                :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          : File Nos.  927412 & 946025
 
            D and S SHEET METAL, INC.,    :
 
                                          :  A R B I T R A T I O N
 
                 Employer,                :      
 
                                          :      D E C I S I O N
 
            and                           :
 
                                          :
 
            SECURA INSURANCE CO.,         :
 
                                          :
 
                 Insurance Carrier,       :
 
                                          :
 
            and                           :
 
                                          :
 
            SECOND INJURY FUND OF IOWA,   :
 
                                          :
 
                 Defendants.              :
 
            ____________________________________________________________
 
            _____
 
                                          :
 
            ROBERT SOUKUP                 :
 
                                          :
 
                 Claimant                 :
 
                                          :
 
            vs.                           :      File No.  858701
 
                                          :
 
            MARESH SHEET METAL WORKS,     :
 
                                          :
 
                 Employer,                :    A R B I T R A T I O N
 
                                          :
 
            and                           :
 
                                          :       D E C I S I O N
 
            HAWKEYE SECURITY,             :
 
                                          :
 
                 Insurance Carrier,       :
 
                                          :
 
            and                           :
 
                                          :
 
            SECOND INJURY FUND OF IOWA,   :
 
                                          :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
                              statement of the case
 
            
 
                 This is a proceeding in arbitration brought by Robert 
 
            Soukup as a result of injuries to his shoulder which 
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            occurred on May 5, 1989, his knee which occurred on July 2, 
 
            1987 and his neck which occurred on May 14, 1990.  Defendant 
 
            Second Injury Fund of Iowa is a party in file numbers 858701 
 
            and 927412 and has denied liability.  Defendant D and S 
 
            Sheet Metal is a party in File numbers 927412 and 946025 and 
 
            has denied liability, but has paid some weekly benefits and 
 
            medical expenses.  In file number 858701, the employer 
 
            Maresh Sheet Metal Works and insurance carrier Hawkeye 
 
            Security settled their liability by agreement for settlement 
 
            filed October 12, 1990, and they are no longer parties to 
 
            this action.
 
            
 
                 The case was heard and fully submitted at Des Moines, 
 
            Iowa, on March 19, 1991.  The record in the proceeding 
 
            consists of claimant's exhibits 1 through 4, employer's 
 
            exhibits A through X, testimony from claimant, Judith 
 
            Soukup, Richard Duncalf, Mark DeRycke and Chad Sherwood.
 
            
 
                                      issues
 
            
 
                 The issues presented for determination in file number 
 
            858701 are as follows:
 
            
 
                 1.  Second injury fund liability;
 
            
 
                 2.  Iowa Code section 85A;
 
            
 
                 3.  Odd-lot; and 
 
            
 
                 4.  Taxation of costs.
 
            
 
                 Issues presented for determination in file number 
 
            927412 are as follows:
 
            
 
                 1.  Whether claimant sustained an injury to his right 
 
            shoulder on May 5, 1989, arising out of and in the course of 
 
            employment with employer;
 
            
 
                 2.  Causal connection to temporary disability;
 
            
 
                 3.  Casual connection to permanent disability and the 
 
            extent of industrial disability;
 
            
 
                 4.  Weekly rate of compensation;
 
            
 
                 5.  Defense of Iowa Code section 85.23;
 
            
 
                 6.  Defense of Iowa Code section 85.26
 
            
 
                 7.  Iowa Code section 85.27 benefits;
 
            
 
                 8.  Chapter 85A benefits;
 
            
 
                 9.  Odd-lot;
 
            
 
                 10. Second injury fund liability;
 
            
 
                 11. Commencement date for payment of second injury fund 
 
            benefits; and
 
            
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
                 12. Taxation of costs.
 
            
 
                 Issues presented for determination in file number 
 
            946025 are as follows:
 
            
 
                 1.  Whether claimant sustained an injury to his neck on 
 
            May 14, 1990, which arose out of and in the course of 
 
            employment with employer;
 
            
 
                 2.  Employer-employee relationship;
 
            
 
                 3.  Causal connection to temporary disability and the 
 
            extent of temporary disability;
 
            
 
                 4.  Causal connection to permanent disability and the 
 
            extent of industrial disability;
 
            
 
                 5.  Weekly rate of compensation;
 
            
 
                 6.  Defense of Iowa Code section 85.23;
 
            
 
                 7.  Defense of Iowa Code section 85.26;
 
            
 
                 8.  Iowa Code section 85.27 benefits;
 
            
 
                 9. Chapter 85A benefits;
 
            
 
                 10. Odd-lot;
 
            
 
                 11. Commencement date for payment of permanent partial 
 
            disability benefits; and
 
            
 
                 12. Taxation of costs.
 
            
 
                                 findings of fact
 
            
 
                 Having considered all the evidence received the 
 
            following findings of fact are made:
 
            
 
                 Claimant, Robert Soukup, was born on June 26, 1933.  He 
 
            dropped out of high school in the ninth grade, but completed 
 
            his GED while in the military.  Claimant went into the 
 
            service at age 19 and served from June of 1953 through May 
 
            of 1955.  After leaving the service claimant went to work 
 
            for Rath Packing Company, a job which he had performed prior 
 
            to entering the service.  Claimant was a production worker 
 
            for the meat packing business.  Claimant worked as a meat 
 
            packer from about 1955 until mid-1962.  
 
            
 
                 After leaving Rath Packing Company, claimant worked for 
 
            Culligan Water Softener Company.  He then went back to work 
 
            as a meat cutter in Marion, Iowa, for about a year and later 
 
            became a fireman trainee.  
 
            
 
                 In November of 1966, claimant went to work for 
 
            Universal Climate Control as a sheet metal worker and had 
 
            been so employed in the craft until May of 1989.  
 
            
 
                 Claimant described a health history which consisted of 
 
            a large number of orthopedic problems.  Claimant's history 
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
            of injuries ranged from spinal injuries to injuries to the 
 
            lower extremities and upper extremities combined with 
 
            headaches.  Claimant also revealed that he had a mild 
 
            history of ulcers.  
 
            
 
                 Claimant reported that he had a surgery to his neck in 
 
            the early 1970's.  After the surgery, he went back to 
 
            perform sheet metal work in Iowa and continued performing 
 
            that work without restrictions.  
 
            
 
                 Claimant describes his job as a sheet metal worker as 
 
            one of heavy manual labor.  Claimant stated that his duties 
 
            consist of hanging air ducts which connect heating and 
 
            cooling units in both residential and commercial properties.  
 
            The tools that claimant worked with consisted of hammers, 
 
            screwdrivers, tin snips and roto drivers.  Weights lifted 
 
            averaged 20 to 30 pounds, but went up to 50 to 75 pounds.  
 
            Claimant described his usual lifting as nothing typical.  
 
            Each job would have a different lifting requirement.  
 
            Performing duct work required extensive overhead use of the 
 
            arms and shoulders.  
 
            
 
                 As a sheet metal worker claimant also performed 
 
            exterior work which consisted of installing siding and 
 
            gutters on the exteriors of buildings.  Claimant stated that 
 
            the sheet metal work required extensive use of shoulders and 
 
            arms repetitively and use of all parts of the body.  
 
            
 
                 In 1980, claimant sustained a rotator cuff tear to his 
 
            left shoulder which resulted in surgery.  This injury 
 
            resulted in a permanent partial impairment of 9 percent to 
 

 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
            the body as a whole or 15 percent to the left upper 
 
            extremity (exhibit 1a, page 15 and ex. 1b, p. 39).  It is 
 
            found that the 1980 injury to the left shoulder resulted in 
 
            a loss of use of the left upper extremity to the extent of 
 
            15 percent permanent partial disability.  
 
            
 
                 Claimant returned to work after the shoulder injury to 
 
            perform his usual services in the sheet metal craft.  
 
            Claimant reported that after the left shoulder injury 
 
            residual symptoms existed in that he had less strength and a 
 
            loss of range of motion.  
 
            
 
                 Claimant incurred another injury in about 1983 to the 
 
            left foot.  Claimant stated that he had pain between two 
 
            toes which was diagnosed as Morton's neuroma.  Surgery was 
 
            performed by Albert R. Coates, M.D.  Residual numbness and 
 
            loss of sensation remained in the foot after the surgery.  
 
            Claimant described the residual effects as tolerable.  
 
            Claimant incurred 3 percent impairment to the left lower 
 
            extremity as a result of the injury and resulting surgery 
 
            (ex. 1a, p. 11; ex. 1b, p. 15).  It is found that claimant 
 
            sustained a loss of use of the left foot as a result of the 
 
            1983 left foot injury.  The evidence indicates that the left 
 
            foot impairment lies within the foot as opposed to the lower 
 
            extremity, as shown by the situs of the injury which was 
 
            located between the web space of the toes.  No evidence was 
 
            presented which demonstrated impairment that went beyond the 
 
            ankle.  
 
            
 
                 Having considered all the evidence presented; including 
 
            the medical records, claimant's testimony and having 
 
            consulted the AMA Guides to the Evaluation of Permanent 
 
            Impairment; it is found that claimant sustained 4 percent 
 
            permanent partial disability to the left foot as a result of 
 
            the 1983 injury.  
 
            
 
                 On July 2, 1987, claimant sustained an injury to his 
 
            right knee while employed by Maresh Sheet Metal Works, Inc.  
 
            Claimant settled that claim under an agreement for 
 
            settlement with Maresh Sheet Metal and its insurance carrier 
 
            Hawkeye Security on October 12, 1990.  Claimant agreed to a 
 
            7 1/2 percent impairment of his right knee as a result of 
 
            that injury.  John R. Walker, M.D., had rated the impairment 
 
            as 10 percent to the right lower extremity (ex. 1a).  Dr. 
 
            Coates had rated the impairment as 5 percent of the right 
 
            lower extremity (ex. 1b, p. 42).  It is found that as a 
 
            result of the July 2, 1987, injury, claimant sustained a 7 
 
            1/2 percent loss of use of the right lower extremity.
 
            
 
                 Subsequent to the right knee injury, claimant returned 
 
            to the sheet metal craft in 1987 and continued working for 
 
            contractors in the Cedar Rapids area.  
 
            
 
                 In 1988, claimant started to experience shoulder 
 
            problems.  Claimant had been working for defendant, D and S 
 
            Sheet Metals intermittently since 1986.  Claimant was laid 
 
            off by D and S Sheet Metal in the winter of 1988 and did 
 
            other work for a company called Novak Heating.  In March of 
 
            1989, claimant went back to work for D and S Sheet Metal.  
 
            Claimant continued on with this work for D and S Sheet Metal 
 

 
            
 
            Page   6
 
            
 
            
 
            
 
            
 
            until early May 1989 when he was admitted for right shoulder 
 
            surgery.  
 
            
 
                 Claimant stated that the repetitive nature of his work 
 
            as a sheet metal worker for D and S caused pain to occur in 
 
            his right shoulder.  The pain prevented claimant from 
 
            returning to employment on or about May 3, 1989.  Surgery 
 
            was performed on claimant's right shoulder on May 5, 1989.  
 
            During the months of March, April and May of 1989, claimant 
 
            was performing duties for employer consisting of flashing, 
 
            guttering and hanging downspout work.  Claimant stated that 
 
            subsequent to his return to D and S Sheet Metal in March 
 
            1989 both shoulders started to hurt on the first day of 
 
            work.  The pain in claimant's shoulders continued to 
 
            increase during the following months until the surgery of 
 
            May 5, 1989.  
 
            
 
                 Subsequent to the right shoulder surgery, claimant went 
 
            to physical therapy for treatment for the right shoulder 
 
            injury.  After a long period of convalescence, claimant was 
 
            discharged from care for the right shoulder injury.  Dr. 
 
            Coates was claimant's treating physician and he assigned a 9 
 
            percent impairment rating to the body as a whole for the 
 
            right shoulder injury (ex. 1b, p. 43).  Dr. Walker rated 
 
            claimant's right shoulder impairment as 14 percent to the 
 
            body as a whole.  It is found that Dr. Coates' assessment of 
 
            impairment is correct as he has been claimant's treating 
 
            physician since 1978 for orthopedic problems.  Dr. Coates' 
 
            familiarity with claimant's overall health situation leads 
 
            to the conclusion that his assessment of impairment and 
 
            opinions are more credible than those given by Dr. Walker 
 
            who saw claimant on only one occasion.  It is also found 
 
            that claimant sustained a loss of use of the right upper 
 
            extremity amounting to 15 percent permanent partial 
 
            disability (ex. 1b, p. 39).  
 
            
 
                 Claimant has also alleged that he incurred an injury on 
 
            May 14, 1990, which aggravated his preexisting spine 
 
            condition.  Claimant testified that after receiving 
 
            extensive therapy in 1989 for treatment of his right 
 
            shoulder injury that he started experiencing cervical 
 
            problems.  Dr. Coates was of the opinion that the cervical 
 
            problems were not linked to claimant's employment (ex. 1b, 
 
            p. 18; ex. W, pp. 43 & 44).  
 
            
 
                 Dr. Walker performed an independent examination on June 
 
            19, 1990, which was offered as claimant's exhibit 1a.  In 
 
            the text of his lengthy opinion, Dr. Walker came to the 
 
            conclusion that claimant's preexisting cervical spondylosis 
 
            was aggravated by work activities performed for defendant 
 
            employer.  
 
            
 
                 As previously stated, Dr. Coates' opinions and 
 
            assessments are found to be more credible than those offered 
 
            by Dr. Walker in that Dr. Coates has been claimant's 
 
            treating surgeon since about 1978.  Dr. Walker appears to 
 
            have seen claimant only during the year 1990.  Dr. Coates' 
 
            extensive history with claimant's multiple problems leads to 
 
            the conclusion that his opinions are more credible and more 
 

 
            
 
            Page   7
 
            
 
            
 
            
 
            
 
            accurate than those offered by Dr. Walker.  Dr. Coates' 
 
            opinion concerning the alleged aggravation of claimant's 
 
            cervical condition by employment activities is found to be 
 
            correct.  
 
            
 
                 Claimant applied for and received social security 
 
            disability as a result of his inability to perform gainful 
 
            employment.  Claimant has also applied for and received 
 
            disability benefits through his union due to his inability 
 
            to perform sheet metal work.  At the time of hearing, 
 
            claimant was receiving approximately $665 per month from the 
 
            sheet metal workers' plan and $80 per month from social 
 
            security disability along with $397.12 per week from 
 
            defendant insurance company.  The sheet metal worker 
 
            benefits started in May of 1990.  
 
            
 
                 Claimant stated that he has not applied for any jobs 
 
            subsequent to May of 1989.  He has also failed to request 
 
            vocational rehabilitation assistance from employer and or 
 
            retraining from employer.  Claimant had testified in 
 
            December of 1990, at his deposition, that he felt that he 
 
            could drive a truck.  At the time of hearing, claimant 
 
            stated that he felt he could drive a truck, but that he 
 
            could not do it all day long.
 
            
 
                 Judith Soukup testified that she is claimant's wife of 
 
            23 years.  She stated that claimant has not worked since the 
 
            spring of 1989.  She stated that he has had increased 
 
            discomfort over the last years with his shoulders.  She 
 
            stated that minor tasks around the house are difficult 
 
            because of the pain that he experiences in his shoulders and 
 
            back.  
 
            
 
                 Mark DeRycke testified that he has worked for D and S 
 
            Sheet Metal for almost five years.  His father-in-law owns D 
 
            and S Sheet Metal.  Mark stated that he is a shop foreman at 
 
            this time, but was an apprentice during the period that 
 
            claimant worked for employer.  He stated that he worked with 
 
            claimant for about one to two years on and off.  He stated 
 
            that as an apprentice he was a helper to the journeyman.  
 
            The apprentice would do the menial tasks while the 
 
            journeyman would attend to the more difficult task of laying 
 
            out the work.  He described flashing work as being very easy 
 
            work when compared to performing overhead duct work.  He 
 
            also testified that claimant discussed retirement as did 
 
            most of the employees who were over 40 years of age.  He 
 
            stated that claimant had calcium deposits on his elbows 
 
            which he complained about.  DeRycke could recall no other 
 
            injuries which claimant incurred on the job.
 
            
 
                 Chad Allen Sherwood testified that he has worked for 
 
            employer for about three years.  He installs duct work, 
 
            flashing, and does general sheet metal apprentice work.  He 
 
            also worked as an apprentice to claimant during the period 
 
            in question.  He stated that he learned of the shoulder 
 
            injury after claimant had left work in May of 1989.  He 
 
            stated that as an apprentice he would perform much of the 
 
            heavy manual labor while the journeyman would perform the 
 
            skillful work.  He stated that claimant had often complained 
 

 
            
 
            Page   8
 
            
 
            
 
            
 
            
 
            of being stiff in the mornings when he would come to work.  
 
            Sherwood recalled claimant stating that his knees would 
 
            become sore after a full day of work.  He recalled no other 
 
            statements concerning pain or injuries associated with work 
 
            which were made by claimant.  Sherwood also testified that 
 
            the average work week is 40 hours.  He stated that in the 
 
            winter months the number of hours worked will quite often be 
 
            less.  
 
            
 
                 Richard Duncalf testified that he is the owner of D and 
 
            S Sheet Metal.  He started the company five years ago.  He 
 
            testified that his company performs sheet metal work for 
 
            both industrial and commercial properties.  He stated that 
 
            he had hired claimant several times over the years prior to 
 
            May of 1989.  He stated that 60 to 70 percent of the work 
 
            performed by claimant would be exterior sheet metal work.  
 
            He was unable to remember what claimant did for the last 
 
            several months of work at his place of employment.  Duncalf 
 
            described claimant as a good field man who always had his 
 
            job completed in less hours than were allotted.  Duncalf 
 
            stated that even during the last few weeks of employment 
 
            claimant had not lost his efficiency with respect to 
 
            performing his sheet metal work.
 
            
 
                 Duncalf stated that he had no memory of shoulder 
 
            complaints made by claimant while on the job.  Duncalf 
 
            stated that the first he knew of claimant's shoulder 
 
            complaints was a few days before the surgery of May 5, 1989.  
 
            Duncalf stated that once he learned of the surgery he 
 
            instructed the appropriate personnel to complete a first 
 
            report of injury and mail it to the insurance carrier.  That 
 
            first report of injury was evidently lost as it was not 
 
            contained in the industrial commissioner's file or in 
 
            defendants' records.  
 
            
 
                 Duncalf stated that during the early months of 1989 his 
 
            workers were not performing a full 40 hours of work per 
 
            week.  He stated that in April of 1989 they would have began 
 
            increasing the number of hours worked in order to get closer 
 
            to 40 hours per week.  
 
            
 
                 On cross-examination Duncalf stated that the first 
 
            report of injury was prepared by his people about three days 
 
            before the shoulder surgery.  Duncalf stated that the hourly 
 
            wage used for preparing the first report was $17.12 per hour 
 
            as that was claimant's wage at the time of the alleged 
 
            injury in May 1989.
 
            
 
                 Claimant has alleged in file number 946025 that he 
 
            incurred an injury to his cervical spine on May 14, 1990, 
 
            arising out of and in the course of employment with 
 
            employer.  Claimant contends that he had a preexisting 
 
            cervical spine condition which was aggravated as a result of 
 
            work activities performed for defendant employer.  Claimant 
 
            has the burden of proving by a preponderance of the evidence 
 
            that the aggravation of his condition was caused by work 
 
            performed for employer.  It is found that claimant has 
 
            failed to prove by a preponderance of the evidence that his 
 
            cervical spine condition was aggravated by his employment 
 

 
            
 
            Page   9
 
            
 
            
 
            
 
            
 
            activities for employer.  The reasoning follows:
 
            
 
                 Claimant's cervical spine symptoms did not first appear 
 
            while claimant was still working for employer.  Instead, the 
 
            symptoms first occurred many months after claimant had left 
 
            employer's employment.  Second, Dr. Coates was of the 
 
            opinion that the aggravation of the cervical spine condition 
 
            was a possibility and not a probability.  As previously 
 
            stated, Dr. Coates' opinions are found to be more credible 
 
            and correct.  Dr. Coates' statement that the cervical spine 
 
            pain is the result of a degenerative process not related to 
 
            work is convincing (ex. W., pp. 43 & 44).  The resulting 
 
            conclusion is that claimant has failed to bring forth 
 
            sufficient credible medical evidence which proves that his 
 
            cervical spine condition was aggravated by work for 
 
            employer.  Claimant has failed to prove by a preponderance 
 
            of the evidence that he sustained an injury on May 14, 1990, 
 
            arising out of and in the course of employment with 
 
            employer.  Resolution of this issue is dispositive of all 
 
            other issues with the exception of taxation of costs which 
 
            will be addressed later in this decision.  
 
            
 
                 Claimant has filed a petition in file number 858701 
 
            alleging an injury to the right knee arising out of and in 
 
            the course of employment with employer, Maresh Sheet Metal, 
 
            on July 2, 1987.  Defendants employer and insurance carrier 
 
            settled their claim with claimant with an agreement for 
 
            settlement and are no longer necessary parties to this 
 
            proceeding.  The second injury fund remains as the sole 
 
            defendant in this file number.  
 
            
 
                 In order to prove liability for second injury fund 
 
            benefits, claimant must establish that he had a loss of use 
 
            of a scheduled member in this file number.  Claimant has 
 
            carried his burden in proving by a preponderance of the 
 
            evidence that he sustained a loss of use of his right lower 
 
            extremity in 1987 amounting to 7 1/2 percent permanent 
 
            partial disability.  Pursuant to Iowa Code section 
 
            85.34(2)(o) the fund is entitled to a credit of 16.5 weeks 
 
            of benefits for the loss of use of the right lower 
 
            extremity.  
 
            
 
                 Claimant must also prove a preexisting loss of use of 
 
            an appropriate scheduled member.  In 1980, claimant 
 
            sustained an injury to his left shoulder which resulted in a 
 
            loss of use of the left upper extremity amounting to 15 
 
            percent permanent partial disability.  This injury becomes 
 
            part of the equation notwithstanding the fact that it was a 
 
            body as a whole injury.  Iowa Code section 85.64 states only 
 
            that a loss of use must be found in order to establish fund 
 
            liability.  It is apparent that the left shoulder injury 
 
            resulted in a loss of use of the left upper extremity.  
 
            Therefore, the loss of use of the left upper extremity must 
 
            be used as part of the second injury fund calculation.  The 
 
            fund is entitled to a 15 percent credit for the  1980 left 
 
            upper extremity which amounts to 37.5 weeks of benefits 
 
            under Iowa Code section 85.34(2)(m).
 
            
 
                 In the case at hand, claimant has established a prior 
 

 
            
 
            Page  10
 
            
 
            
 
            
 
            
 
            loss of use of another qualifying scheduled member under 
 
            Iowa Code section 85.64.  The evidence presented established 
 
            that claimant sustained a left foot injury in 1983 which 
 
            resulted in 4 percent permanent partial disability to his 
 
            foot.  All prior losses of applicable scheduled members must 
 
            be factored in when determining second injury fund 
 
            liability.  In the case at hand, the fund is entitled to a 
 
            credit resulting from the 4 percent permanent partial 
 
            disability for the 1983 left foot amounting to six weeks of 
 
            benefits under Iowa Code section 85.32(2)(n).  
 
            
 
                 All totaled, the fund is entitled to 60 weeks of credit 
 
            for scheduled member disability stemming from the 1987 right 
 
            lower extremity injury, the 1980 left upper extremity and 
 
            the 1983 left foot injury.  
 
            
 
                 The next determination is the extent of industrial 
 
            disability which stems from the three previously discussed 
 
            injuries.  Factors to be considered when assigning 
 
            industrial disability include claimant's age, education, 
 
            experience, work history and impairment.  Claimant was age 
 
            54 at the time of the 1987 knee injury and in the prime of 
 
            his working life.  Claimant dropped out of the ninth grade 
 
            of high school, but completed his GED while in the military.  
 
            He had no other formal education beyond his GED.  Claimant's 
 
            work history is primarily that of a skilled and also 
 
            unskilled manual laborer.  The three injuries in question 
 
            did not appear to impose severe work restrictions upon 
 
            claimant which precluded him from returning to work in the 
 
            same line of work that he had previous training and 
 
            experience.  Subsequent to each of the three injuries, 
 
            claimant was able to return to his chosen avocation of sheet 
 
            metal work and perform the services required of him.  The 
 
            impairment ratings issued by the doctors do indicate 
 
            residual symptoms.  As a manual laborer, claimant was 
 
            required to perform work with his hands, arms, legs and 
 
            feet.  Residual disability located in claimant's upper 
 
            extremity along with one lower extremity and one foot would 
 
            definitely have an impact upon claimant's ability to perform 
 
            manual labor.  The surgeries and resulting disability put 
 
            claimant in a position of being less competitive in the open 
 
            job market when competing with younger, healthier and better 
 
            educated manual laborers.  
 
            
 
                 Having considered all the material factors and all the 
 
            evidence presented, it is found that as a result of the 
 
            right lower extremity injury of 1987, the left foot injury 
 
            of 1983, and the left shoulder injury of 1980, claimant 
 
            sustained 15 percent industrial disability and is entitled 
 
            to 75 weeks of permanent partial disability less 60 weeks of 
 
            scheduled member disability for a total of 15 weeks of 
 
            industrial disability under Iowa Code section 85.64.
 
            
 
                 The calculations are as follows:
 
            
 
                 15% x 500 = 75   weeks
 
            
 
                 minus       16.5 weeks (1987 right lower extremity)
 
            
 
                 minus        6.0 weeks (1983 left foot)
 

 
            
 
            Page  11
 
            
 
            
 
            
 
            
 
            
 
                 minus       37.5 weeks (1980 left upper extremity)
 
            
 
                 TOTAL       15   weeks 858701 liability
 
            
 
                 The issue of occupational disease under Iowa Code 
 
            section 85A was raised as an issue by second injury fund.  
 
            It is found that the injury of July 2, 1987, was not an 
 
            occupational injury under that code section.  The evidence 
 
            presented clearly revealed that the July 2, 1987, injury 
 
            came from a specific trauma as opposed to an occupational 
 
            disease.  
 
            
 
                 The odd-lot doctrine was raised as an issue by claimant 
 
            with respect to second injury fund liability.  In order to 
 
            prove odd-lot a worker must establish that an injury makes a 
 
            worker incapable of obtaining employment in any well known 
 
            branch of the labor market.  In the case at hand, claimant 
 
            returned to work subsequent to his July 1987 injury in the 
 
            avocation for which he had previous training and experience 
 
            and continued to be so employed until May of 1989.  Claimant 
 
            has clearly failed to meet his burden in proving that 
 
            subsequent to July 1987, he was not capable of employment.  
 
            
 
                 Even if claimant had proven that his current 
 
            unemployment status is attributable to the 1987 knee injury 
 
            along with the 1983 left foot injury and the 1980 left upper 
 
            extremity injury, his request for odd-lot status would still 
 
            fail.  Agency precedent indicates that if claimant has 
 
            failed to search for employment, he cannot make out a prima 
 
            facie case of odd-lot.  
 
            
 
                 The issue of taxation of costs will be addressed later 
 
            in the decision.  
 
            
 
                 The final issues concern file number 927412 wherein 
 
            claimant alleges an injury to his right shoulder arising out 
 
            of and in the course of employment with employer on May 5, 
 
            1989.  
 
            
 
                 The issue of Iowa Code section 85A benefits concerning 
 
            occupational disease was raised as an issue by second injury 
 
            fund in file number 927412.  It is found that this case is 
 
            not one which should be decided under chapter 85A as 
 
            claimant's shoulder injury is more appropriately 
 
            characterized as a cumulative trauma as opposed to an 
 
            occupational disease.  Testimony at hearing and exhibits 
 
            offered indicate that claimant's right shoulder injury 
 
            resulted from repetitive microtrauma incurred while employed 
 
            in the sheet metal craft.  Insufficient evidence has been 
 
            provided to prove by a preponderance of the evidence that 
 
            claimant's right shoulder injury should be litigated under 
 
            chapter 85A as an occupational disease.  Instead, this case 
 
            is more appropriately characterized as one of repetitive 
 
            trauma under McKeever Custom Cabinets v. Smith, 379 N.W.2d 
 
            368, 374 (Iowa 1985).
 
            
 
                 The next issue concerns whether claimant sustained an 
 
            injury arising out of and in the course of employment with 
 
            employer on May 5, 1989.  Defendants brought forth evidence 
 

 
            
 
            Page  12
 
            
 
            
 
            
 
            
 
            which revealed that claimant was not working on May 5, 1989, 
 
            in that he was undergoing surgery for his right shoulder 
 
            problem.  The evidence presented at hearing indicates that 
 
            claimant's last day of work with employer was on or about 
 
            May 2, 1989.  Claimant's reliance on May 5, 1989, as a date 
 
            of injury does not cause his case to fail.  The Iowa Supreme 
 
            Court has stated that selection of an injury date is 
 
            unimportant in a case where the evidence reveals another 
 
            date which is close in time was the actual injury date.  See 
 
            Yeager v. Firestone Tire and Rubber Co., 253 Iowa 369, 
 
            373-74, 112 N.W.2d 299, 301 (1961).  The cumulative trauma 
 
            doctrine set forth in McKeever indicates that the 
 
            appropriate injury date is the last day of work for 
 
            employer.  In the case at hand, it was apparent that 
 
            claimant could not remember his last day of work for 
 
            employer and instead chose the date of surgery which was 
 
            within one week of his last day of work.  It is found that 
 
            the date of surgery, which was May 5, 1989, is an 
 
            appropriate date of injury in a cumulative trauma case, if 
 
            claimant cannot specify the last day of work.  
 
            
 
                 The issue central to this case concerns whether the 
 
            alleged cumulative trauma injury actually arose out of and 
 
            in the course of employment with employer.  Claimant 
 
            testified that he worked as a sheet metal worker performing 
 
            repetitive tasks with his hands and arms.  Some of the work 
 
            performed for employer required overhead work when 
 
            installing ducts.  Much of claimant's work during the last 
 
            few months required repetitive use of his hands and arms 
 
            when installing flashing on the exterior parts of buildings.  
 
            The medical evidence clearly reveals that claimant had a 
 
            preexisting right shoulder injury which had plagued him for 
 
            years.  However, the claim does not fail based on the fact 
 
            that the shoulder condition may have preexisted his 
 
            employment with employer.  It is found that claimant 
 
            sustained an aggravation of a preexisting right shoulder 
 
            condition on or about May 5, 1989, arising out of and in the 
 
            course of employment with employer.  The aggravation was 
 
            caused by the repetitive nature of claimant's tasks as a 
 
            sheet metal worker when employed by employer.  It is also 
 
            found that the aggravation was material and caused the need 
 
            for a shoulder surgery which occurred on May 5, 1989.  
 
            
 
                 The first issue to be addressed concerns employer's 
 
            affirmative defense of lack of notice under Iowa Code 
 
            section 85.23.  Employer asserts that it did not have notice 
 
            of the right shoulder injury within 90 days of its alleged 
 
            occurrence.  At hearing, Richard Duncalf that he was the 
 
            owner of D and S Sheet Metal.  Duncalf stated that he filled 
 
            out a first report of injury on claimant's right shoulder 
 
            injury within a few days prior to the surgery of May 5, 
 
            1989.  The testimony offered by Duncalf makes it clear that 
 
            employer was aware of an alleged right shoulder injury 
 
            occurring while claimant was employed by employer.  It is 
 
            found that defendants have failed to prove the lack of 
 
            notice defense under Iowa Code section 85.23.
 
            
 
                 Defendants have also alleged the affirmative defense of 
 
            statute of limitations pursuant to Iowa Code section 85.26.  
 
            Under that code section claimant has two years to file from 
 

 
            
 
            Page  13
 
            
 
            
 
            
 
            
 
            the date of injury and three years to file from the date of 
 
            injury if weekly benefits were paid.  The prehearing report 
 
            and order approving the same indicates that weekly benefits 
 
            were paid in this case as late as January 25, 1990.  
 
            Claimant's petition was filed on November 14, 1989.  It is 
 
            found that defendants have failed to prove that claimant 
 
            failed to file within the applicable statute of limitations 
 
            in that claimant filed within three years of the last 
 
            payment of weekly benefits.  
 
            
 
                 The next issue to be decided concerns the causal 
 
            connection of the injury to a period of temporary 
 
            disability.  The medical evidence presented by Dr. Coates 
 
            clearly indicates claimant sustained a prolonged period of 
 
            convalescence as a direct result of the right shoulder 
 
            surgery which occurred on May 5, 1989.  The parties 
 
            stipulated that if the injury is found to be a cause of 
 
            temporary disability, that claimant is entitled to healing 
 
            period beginning May 5, 1989, through January 25, 1990.  It 
 
            is found that the injury is a cause of healing period and 
 
            the stipulated period of disability is correct.  Claimant is 
 
            entitled to healing period benefits beginning May 5, 1989, 
 
            through January 25, 1990, in file number 927412.
 
            
 
                 The next issue to be decided is whether the May 5, 
 
            1989, shoulder injury is a cause of permanent disability.  
 
            Both Dr. Coates and Dr. Walker were of the opinion that 
 
            claimant sustained permanent impairment as a result of the 
 
            May 5, 1989, shoulder injury.  Contrary medical opinions 
 
            concerning impairment were not offered.  If is found that 
 
            the May 5, 1989, injury resulted in permanent disability to 
 
            the body as a whole.
 
            
 
                 The parties stipulated that if the injury is found to 
 
            be a cause of disability, that it should be evaluated 
 
            industrially.  Factors to be considered include claimant's 
 
            age, education, experience, permanent impairment and work 
 
            restrictions.  The evaluation of industrial disability for 
 
            which employer and defendant insurance carrier are liable 
 
            must be performed in a context as if the right shoulder 
 
            injury is the only injury for which claimant is being 
 
            evaluated.  That is the right shoulder injury of May 5, 
 
            1989, is being evaluated industrially alone and of itself 
 
            without consideration of the other injuries.  
 
            
 
                 Claimant was age 55 at the time of the injury which 
 
            would give him an expected work life of an additional 10 
 
            years.  At the time of the injury, he had no additional 
 
            training beyond the ninth grade of high school and a GED 
 
            which was earned in the military.  His work experience 
 
            consisted of manual labor as a packing house worker and 
 
            skilled manual labor as a sheet metal worker.  His hourly 
 
            rate of pay was $17.12 per hour at the time of injury.  The 
 
            right shoulder surgery resulted in an impairment rating of 9 
 
            percent to the body as a whole according to the treating 
 
            physician (ex. W, p. 38).  A functional capacity assessment 
 
            was performed on claimant on December 11, 1989 (ex. 1b, p. 
 
            51).  The results of the assessment indicate that claimant 
 
            should be restricted from using his right arm over his head 
 

 
            
 
            Page  14
 
            
 
            
 
            
 
            
 
            and he should not go back to his previous employment as a 
 
            sheet metal worker.  These restrictions do state that 
 
            claimant is restricted from performing work for which he has 
 
            previous training and experience.  However, the restrictions 
 
            appear to apply to all of claimant's injuries with respect 
 
            to his restriction from returning to sheet metal work.  A 
 
            more logical interpretation of the physical capacity 
 
            assessment would be that claimant is restricted from 
 
            performing work which requires overhead use of the right 
 
            shoulder.  This would restrict claimant from performing 
 
            installation of ducts and pipe work.  However, it would not 
 
            necessarily prevent claimant from performing exterior sheet 
 
            metal work such as installation of flashing and gutters.  
 
            
 
                 Having considered all the evidence and the material 
 
            factors, it is found that as a result of the May 5, 1989, 
 
            right shoulder injury, claimant sustained 15 percent 
 
            permanent partial disability to the body as a whole.  This 
 
            assessment of industrial disability is in addition to the 15 
 
            percent industrial disability assigned in file number 
 
            858701.  This brings claimant's total industrial disability 
 
            to 30 percent to the body as a whole as a result of all 
 
            injuries discussed to this point.  To be certain no 
 
            confusion exists it must be stated that the additional 15 
 
            percent industrial disability is the responsibility of 
 
            defendant employer and insurance carrier in file number 
 
            927412.  
 
            
 
                 The next issue concerns claimant's weekly rate of 
 
            compensation.  Claimant contends that his weekly rate of 
 
            compensation should be based on a flat week consisting of 40 
 
            hours.  Defendants contend that claimant's rate should be 
 
            based upon his earnings for 11 weeks prior to the date of 
 
            alleged injury.  The testimony offered by the various 
 
            witnesses indicated that as a general rule, the work in the 
 
            sheet metal craft was seasonal in nature.  The evidence 
 
            reveals that a standard 40-hour week was the exception as 
 
            opposed to the rule.  It is found that the average hours 
 
            worked in the 11 weeks preceding claimant's injury of May 5, 
 
            1989, is a more reliable indicator of claimant's average 
 
            weekly wage.  Defendants' stated rate of $397.12 per week is 
 
            found to be correct.  It is also found that claimant's gross 
 
            weekly wage is $651 per week with the stipulated marital 
 
            status of married and entitled to three exemptions.
 
            
 
                 The next issue concerns claimant's entitlement to 
 
            odd-lot status.  The evidence clearly reveals that claimant 
 
            failed to make a search for work subsequent to his May 5, 
 
            1989, injury.  Claimant has failed to bring forth sufficient 
 
            evidence proving that he is not employable and his claim for 
 
            odd-lot status thereby fails as against employer and second 
 
            injury fund.  
 
            
 
                 The next issue concerns claimant's entitlement to Iowa 
 
            Code section 85.27 benefits.  Exhibit 3 sets forth a list of 
 
            medical expenses which claimant alleges were incurred as a 
 
            result of injuries at D and S Sheet Metal.  The first bill 
 
            concerns one from Dr. John Walker in the amount of $1,074.  
 

 
            
 
            Page  15
 
            
 
            
 
            
 
            
 
            It is apparent from the file that the only services rendered 
 
            by Dr. Walker were for the independent medical exam of June 
 
            19, 1990 (ex. 1a).  This examination was an independent 
 
            medical examination under Iowa Code section 85.39 which was 
 
            approved by Deputy Industrial Commissioner Michelle A. 
 
            McGovern on or about April 15, 1990.  A deputy commissioner 
 
            is without jurisdiction to overturn the ruling of another 
 
            deputy commissioner.  The ruling by Deputy McGovern on April 
 
            15, 1990, is enforceable.  It should be noted that the 
 
            parties stipulated in the prehearing report and order 
 
            approving the same that the fees charged for the medical 
 
            services or supplies rendered are fair and reasonable.  This 
 
            deputy is without jurisdiction to modify the charges made by 
 
            Dr. John Walker for the June 19, 1990, independent medical 
 
            exam.  However, it should be noted that defendant employer 
 
            is only responsible for charges associated with that 
 
            particular medical exam.  It is noted that exhibit 1a page 
 
            17 and page 18 is a report issued by Dr. Walker for the 
 
            disability determination services.  Defendants are not 
 
            responsible for payment of that bill to the extent it is 
 
            included in the $1,074 charge.  
 
            
 
                 The second expense concerns medication from Osco Drug 
 
            in the amount of $201.36.  Dr. Coates stated in his 
 
            deposition that the medication was necessary with respect to 
 
            treatment of the right shoulder injury notwithstanding the 
 
            fact that it may have beneficial effects to other injuries.  
 
            It is found that the expense incurred for medication from 
 
            Osco Drug in the amount of $201.36 is compensable under Iowa 
 
            Code section 85.27 (ex. W, pp. 59 & 60).  
 
            
 
                 The remaining medical expenses shown in exhibit 3 
 
            concern various expenses which were incurred while 
 
            physicians were attempting to determine whether claimant's 
 
            problem was related to the right shoulder or to the cervical 
 
            spine.  Dr. Coates states that on April 30, 1990, he ordered 
 
            an MRI in a effort to explain the chronic nature of the 
 
            shoulder pain (ex. W, p. 55).  It is found that all medical 
 
            services incurred up to and including April 30, 1990, are 
 
            reasonable and necessary medical treatment for the right 
 
            shoulder injury.  Any medical services subsequent to April 
 
            30, 1990, which concern diagnosis or treatment of the 
 
            cervical spine condition are not compensable in this file 
 
            number even if the bill or statement describes treatment for 
 
            pain in limb when in conjunction with a cervical problem.  
 
            The pain in claimant's right upper extremity subsequent to 
 
            April 30, 1990, was clearly a result of the cervical 
 
            problems that claimant was incurring.  The only medical 
 
            expenses which are compensable subsequent to April 30, 1990, 
 
            are those which were specifically incurred for treatment of 
 
            claimant's right shoulder problem which resulted in an 
 
            acromioplasty and a distal clavicle resection. 
 
            
 
                 Claimant's transportation expenses are also compensable 
 
            under Iowa Code section 85.27 with respect to those incurred 
 
            on April 30, 1990, or before as shown in claimant's exhibit 
 
            number 2.
 

 
            
 
            Page  16
 
            
 
            
 
            
 
            
 
            
 
                 It should be noted that the second injury fund is not 
 
            responsible for section 85.27 benefits.  
 
            
 
                 The next issue concerns second injury fund liability in 
 
            file number 927412.  In order to prove fund liability in 
 
            this file number, claimant must establish a loss of use of a 
 
            specified scheduled member under Iowa Code section 85.64.  
 
            Claimant's injury to the right shoulder resulted in a 15 
 
            percent permanent partial impairment of the right upper 
 
            extremity.  It is found that claimant has sustained his 
 
            burden in proving a loss of use of the right upper extremity 
 
            to the extent of 15 percent.  Dr. Coates' assessment of 
 
            impairment is accepted as correct for the same reason as 
 
            previously expressed.  
 
            
 
                 In order to evaluate industrial disability in a second 
 
            injury fund claim, all prior scheduled member injuries which 
 
            resulted in loss of use must be considered.  Therefore, in 
 
            evaluating the industrial disability to be assigned to the 
 
            fund the 1980 left upper extremity injury must be considered 
 
            along with the 1983 left foot injury, the 1987 right knee 
 
            injury and the 1989 right upper extremity injury.  When 
 
            combining the four injuries and their resulting disability, 
 
            it appears that claimant would now be precluded from 
 
            returning to his occupation of sheet metal worker due to the 
 
            restriction from performing repetitive work with both upper 
 
            extremities.  This places claimant in a worse position than 
 
            when the right shoulder injury was considered alone and of 
 
            itself.  This factor tends to increase claimant's industrial 
 
            disability.  However, claimant has shown little motivation 
 
            to return to the work force subsequent to being released by 
 
            the treating physician.  Claimant's lack of motivation to 
 
            return to work combined with the limited number of years 
 
            remaining in his work life have a tendency to mitigate 
 
            against industrial disability.  Having considered the loss 
 
            of use in the four scheduled members, it is found that 
 
            claimant's cumulative industrial disability is 40 percent 
 
            which entitles claimant to receive 200 weeks of benefits.  
 
            The second injury fund is entitled to a credit for 60 weeks 
 
            of benefits allocated to scheduled member disability in file 
 
            number 858701.  The fund is also entitled to receive credit 
 
            for 15 weeks of permanent partial disability benefits paid 
 
            in file number 858701 pursuant to Iowa Code section 85.64.  
 
            And finally, the fund is entitled to receive credit for 75 
 
            weeks of permanent partial disability benefits paid by 
 
            employer in file number 927412 pursuant to Iowa Code section 
 
            85.34(2)(u).  The commencement date for payment of the 50 
 
            weeks of benefits by the second injury fund is 75 weeks 
 
            subsequent to January 26, 1990.  
 
            
 
                 The calculations are as follows:
 
            
 
                 40% x 500 = 200 weeks
 
            
 
                 minus        60 weeks 858701 scheduled member
 
            
 
                 minus        15 weeks 858701 second injury fund
 
            
 
                 minus        75 927412 employer
 

 
            
 
            Page  17
 
            
 
            
 
            
 
            
 
            
 
                 TOTAL        50  weeks 927412 second injury fund 
 
            liability
 
            
 
                 The fund is not entitled to receive a credit for social 
 
            security benefits paid to claimant under section 85.64.  
 
            Insufficient evidence was presented to prove that the 
 
            benefits were paid on account of the right shoulder injury 
 
            as opposed to the spine complaints.
 
            
 
                 The final issue concerns taxation of costs.  Defendants 
 
            contend that claimant should not be allowed to recover costs 
 
            expended in obtaining copies of medical records.  
 
            Defendants' contentions are without merit.  Rule 343 IAC 
 
            4.33 states that the costs of obtaining two doctors' reports 
 
            may be taxed as costs.  "Doctors' reports" can be 
 
            interpreted as requesting a written report or requesting 
 
            copies of the doctors' records.  Therefore, defendants shall 
 
            reimburse claimant for the two expenses incurred by claimant 
 
            when requesting records or requesting reports.  It should be 
 
            noted that the 85.39 examination with Dr. Walker is not 
 
            included in this case in that it was addressed by order of 
 
            another deputy industrial commissioner.  Claimant has the 
 
            right to request taxation for two reports or requests for 
 
            records.
 
            
 
                 The costs are taxed equally between the second injury 
 
            fund and D & S Sheet Metal.  Claimant is only entitled to 
 
            reimbursement for costs paid out of his own funds.  
 
            
 
                 It should be noted that the exhibits contain 
 
            considerable duplication.  The parties are admonished to be 
 
            more careful when presenting exhibits.  Duplication 
 
            decreases judicial efficiency and may result in sanctions 
 
            under rule 343 IAC 4.36 or Iowa Rule of Civil Procedure Rule 
 
            80 or Iowa Code section 619.19.
 
            
 
                                conclusions of law
 
            
 
                 The claimant has the burden of proving by a 
 
            preponderance of the evidence that the injury of May 14, 
 
            1990, 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). 
 
            
 
                 Claimant has failed to establish in file number 946025 
 
            his work for employer caused an injury to his cervical spine 
 
            on May 14, 1990, arising out of and in the course of 
 
            employment.
 
            
 
                 Under Iowa Code section 85.63 through 85.69, three 
 
            requirements must be met in order to establish Fund 
 
            liability:  First, claimant must have previously lost or 
 
            lost the use of a hand, an arm, a foot, a leg, or an eye; 
 

 
            
 
            Page  18
 
            
 
            
 
            
 
            
 
            second, through another compensable injury, claimant must 
 
            sustain another loss or loss of use of another member; and 
 
            third, permanent disability must exist as to both injuries.  
 
            If the second injury is limited to a scheduled member, then 
 
            the employer's liability is limited to the schedule and the 
 
            Fund is responsible for the excess industrial disability 
 
            over the combined scheduled loss of the first and second 
 
            injuries.  See Simbro v. DeLong's Sportswear, 332 N.W.2d 886 
 
            (Iowa 1983) and Second Injury Fund v. Neelans, 436 N.W.2d 
 
            355 (Iowa 1989).
 
            
 
                 In file number 858701 claimant has established 
 
            entitlement to 15 weeks of benefits to be paid by the State 
 
            of Iowa Second Injury Fund.
 
            
 
                 Occupational diseases shall be only those diseases 
 
                 which arise out of and in the course of the 
 
                 employee's employment.  Such diseases shall have a 
 
                 direct causal connection with the employment and 
 
                 must have followed as a natural incident thereto 
 
                 from injurious exposure occasioned by the nature 
 
                 of the employment.  Such disease must be 
 
                 incidental to the character of the business, 
 
                 occupation or process in which the employee was 
 
                 employed and not independent of the employment.  
 
                 Such disease need not have been foreseen or 
 
                 expected but after its contraction it must appear 
 
                 to have had its origin in a risk connected with 
 
                 the employment and to have resulted from that 
 
                 source as an incident and rational consequence.  A 
 
                 disease which follows from a hazard to which an 
 
                 employee has or would have been equally exposed 
 
                 outside of said occupation is not compensable as 
 
                 an occupational disease.  McSpadden v. Big Ben 
 
                 Coal Co., 288 N.W.2d 181 (Iowa 1980); Frit 
 
                 Industries v. Langenwalter, 443 N.W.2d 88 (Iowa 
 
                 App. 1989).
 
            
 
            (Iowa Code section 85A.8)
 
            
 
                 Claimant and second injury fund have failed to prove by 
 
            a preponderance of the evidence that the injuries in file 
 
            numbers 858701 and 927412 are occupational diseases under 
 
            Chapter 85A.
 
            
 
                 Under the odd-lot doctrine, which was formally adopted 
 
            by the Iowa Supreme Court in Guyton, supra, a worker becomes 
 
            an odd-lot employee when an injury makes the worker 
 
            incapable of obtaining employment in any well-known branch 
 
            of the labor market.  An odd-lot worker is thus totally 
 
            disabled if the only services the worker can perform are so 
 
            limited in quality, dependability, or quantity that a 
 
            reasonably stable market for them does not exist.  Id., 
 
            citing Lee v. Minneapolis Street Railway Company, 230 
 
            Minn.315, 320, 41 N.W.2d 433, 436 (1950).  The rule of odd-
 
            lot allocates the burden of production of evidence.  If the 
 
            evidence of degree of obvious physical impairment, coupled 
 
            with other facts such as claimant's mental capacity, 
 
            education, training or age, places claimant prima facie in 
 
            the odd-lot category, the burden should be on the employer 
 

 
            
 
            Page  19
 
            
 
            
 
            
 
            
 
            to show that some kind of suitable work is regularly and 
 
            continuously available to the claimant.  Certainly in such 
 
            cases it should not be enough to show that claimant is 
 
            physically capable of performing light work and then round 
 
            out the case for noncompensable by adding a presumption that 
 
            light work is available.  Guyton, 373 N.W.2d at 105.
 
            
 
                 When a worker makes a prima facie case of total 
 
            disability by producing substantial evidence that the worker 
 
            is not employable in the competitive labor market, the 
 
            burden to produce evidence of suitable employment shifts to 
 
            the employer.  If the employer fails to produce such 
 
            evidence and the trier of fact finds the worker falls in the 
 
            odd-lot category, the worker is entitled to a finding of 
 
            total disability.  Even under the odd-lot doctrine, the 
 
            trier of fact is free to determine the weight and 
 
            credibility of the evidence in determining whether the 
 
            worker's burden of persuasion has been carried.  Only in an 
 
            exceptional case would evidence be sufficiently strong to 
 
            compel a finding of total disability as a matter of law.  
 
            Guyton, 373 N.W.2d at 106.  The court went on to state:
 
            
 
                    The commissioner did not in his analysis 
 
                 address any of the other factors to be considered 
 
                 in determining industrial disability.  Industrial 
 
                 disability means reduced earning capacity.  Bodily 
 
                 impairment is merely one factor in a gauging 
 
                 industrial disability.  Other factors include the 
 
                 worker's age, intelligence, education, 
 
                 qualifications, experience, and the effect of the 
 
                 injury on the worker's ability to obtain suitable 
 
                 work.  See Doerfer Division of CCA v. Nicol, 359 
 
                 N.W.2d 428, 438 (Iowa 1984).  When the combination 
 
                 of factors precludes the worker from obtaining 
 
                 regular employment to earn a living, the worker 
 
                 with only a partial functional disability has a 
 
                 total disability.  See McSpadden v. Big Ben Coal 
 
                 Co, 288 N.W.2d 181, 192 (Iowa 1980).
 
            
 
                 If a claimant has made no attempt to find work, then he 
 
            cannot be determined to be an odd-lot employee.  Emshoff v. 
 
            Petroleum Transportation Services, file no. 753723 (Appeal 
 
            Decision March 31, 1987); Collins v. Friendship Village, 
 
            Inc., IAWC Decisions of the Iowa Industrial Commissioner 151 
 
            (1988).
 
            
 
                 In file numbers 858701 and 927412 claimant has failed 
 
            to prove by a preponderance of the evidence that he is 
 
            incapable of obtaining employment in any well known branch 
 
            of the labor market and his claim for odd-lot status fails.
 
            
 
                 Defendants have raised the issue of lack of notice of 
 
            the work injury within 90 days from the date of the 
 
            occurrence of the injury under section 85.23.  Lack of such 
 
            notice is an affirmative defense.  DeLong v. Highway 
 
            Commissioner, 229 Iowa 700, 295 N.W. 91 (1940).  In Reddick 
 
            v. Grand Union Tea Co., 230 Iowa 108, 296 N.W. 800 (1941), 
 
            the Iowa Supreme Court has ruled that once claimant sustains 
 
            the burden of showing that an injury arose out of and in the 
 
            course of employment, claimant prevails unless defendants 
 

 
            
 
            Page  20
 
            
 
            
 
            
 
            
 
            can prove by a preponderance of the evidence an affirmative 
 
            defense.  Although an employer may have actual knowledge of 
 
            an injury, the actual knowledge requirement under section 
 
            85.23 is not satisfied unless the employer has information 
 
            putting him on notice that the injury may be work related.  
 
            Robinson v. Department of Transportation, 296 N.W.2d 809 
 
            (Iowa 1980).
 
            
 
                 Defendants in file number 927412 have failed to prove 
 
            by a preponderance of the evidence that claimant failed to 
 
            give notice of the injury within 90 days of its occurrence.  
 
            The testimony offered by Mr. Duncalf clearly reveals that 
 
            employer was aware of an allegation of a work-related injury 
 
            to the right shoulder prior to May 5, 1989.
 
            
 
                  An original proceeding for benefits under this 
 
                 chapter or chapter 85A, 85B, or 86, shall not be 
 
                 maintained in any contested case unless the 
 
                 proceeding is commenced within two years from the 
 
                 date of the occurrence of the injury for which 
 
                 benefits are claimed or, if weekly compensation 
 
                 benefits are paid under section 86.13, within 
 
                 three years from the date of the last payment of 
 
                 weekly compensation benefits.
 
            
 
            [Iowa Code section 85.26(1)]
 
            
 
                 Defendants have failed to prove by a preponderance of 
 
            the evidence in file number 927412 that the claimant is 
 
            barred by the statute of limitations as claimant filed 
 
            within three years of the last payment of weekly benefits.
 
            
 
                 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 injury must both arise out of and be in the course 
 
            of the employment.  Crowe v. DeSoto Consol. Sch. Dist., 246 
 
            Iowa 402, 68 N.W.2d 63 (1955) and cases cited at pp. 405-406 
 
            of the Iowa Report.  See also Sister Mary Benedict v. St. 
 
            Mary's Corp., 255 Iowa 847, 124 N.W.2d 548 (l963) and Hansen 
 
            v. State of Iowa, 249 Iowa 1147, 91 N.W.2d 555 (1958).
 
            
 
                 The words "out of" refer to the cause or source of the 
 
            injury.  Crowe, 246 Iowa 402, 68 N.W.2d 63 (1955). 
 
            
 
                 The words "in the course of" refer to the time and 
 
            place and circumstances of the injury.  McClure v. Union 
 
            et al. Counties, 188 N.W.2d 283 (Iowa 1971); Crowe, 246 Iowa 
 
            402, 68 N.W.2d 63 (1955).
 
            
 
                 Selection of an injury date is unimportant in a 
 
            workers' compensation case, Yeager v. Firestone Tire and 
 
            Rubber Co., 253 Iowa 369, 373-74, 112 N.W.2d 299, 301 
 
            (1961).
 
            
 
                 Claimant has sustained his burden in file number 927412 
 
            in proving that he sustained an injury to his right shoulder 
 
            on May 5, 1989, which arose out of and in the course of 
 
            employment with employer.
 

 
            
 
            Page  21
 
            
 
            
 
            
 
            
 
            
 
                 The opinions of experts need not be couched in 
 
            definite, positive or unequivocal language.  Sondag v. 
 
            Ferris Hardware, 220 N.W.2d 903 (Iowa 1974).  An opinion of 
 
            an expert based upon an incomplete history is not binding 
 
            upon the commissioner, but must be weighed together with the 
 
            other disclosed facts and circumstances.  Bodish, 257 Iowa 
 
            516, 133 N.W.2d 867 (1965).  The expert medical evidence 
 
            must be considered with all other evidence introduced 
 
            bearing on the causal connection between the injury and the 
 
            disability.  Burt, 247 Iowa 691, 73 N.W.2d 732 (1955).  In 
 
            regard to medical testimony, the commissioner is required to 
 
            state the reasons on which testimony is accepted or 
 
            rejected.  Sondag, 220 N.W.2d 903 (1974).
 
            
 
                 Functional impairment is an element to be considered in 
 
            determining industrial disability which is the reduction of 
 
            earning capacity, but consideration must also be given to 
 
            the injured employee's age, education, qualifications, expe
 
            rience and inability to engage in employment for which he is 
 
            fitted.  Olson v. Goodyear Service Stores, 255 Iowa 1112, 
 
            125 N.W.2d 251 (1963).  Barton v. Nevada Poultry, 253 Iowa 
 
            285, 110 N.W.2d 660 (1961).
 
            
 
                 A finding of impairment to the body as a whole found by 
 
            a medical evaluator does not equate to industrial disabil
 
            ity.  This is so as impairment and disability are not syn
 
            onymous.  Degree of industrial disability can in fact be 
 
            much different than the degree of impairment because in the 
 
            first instance reference is to loss of earning capacity and 
 
            in the latter to anatomical or functional abnormality or 
 
            loss.  Although loss of function is to be considered and 
 
            disability can rarely be found without it, it is not so that 
 
            a degree of industrial disability is proportionally related 
 
            to a degree of impairment of bodily function.
 
            
 
                 Factors to be considered in determining industrial dis
 
            ability include the employee's medical condition prior to 
 
            the injury, immediately after the injury, and presently; the 
 
            situs of the injury, its severity and the length of healing 
 
            period; the work experience of the employee prior to the 
 
            injury, after the injury and potential for rehabilitation; 
 
            the employee's qualifications intellectually, emotionally 
 
            and physically; earnings prior and subsequent to the injury; 
 
            age; education; motivation; functional impairment as a 
 
            result of the injury; and inability because of the injury to 
 
            engage in employment for which the employee is fitted.  Loss 
 
            of earnings caused by a job transfer for reasons related to 
 
            the injury is also relevant.  These are matters which the 
 
            finder of fact considers collectively in arriving at the 
 
            determination of the degree of industrial disability.
 
            
 
                 There are no weighting guidelines that indicate how 
 
            each of the factors are to be considered.  There are no 
 
            guidelines which give, for example, age a weighted value of 
 
            ten percent of the total value, education a value of fifteen 
 
            percent of total, motivation - five percent; work experience 
 
            - thirty percent, etc.  Neither does a rating of functional 
 
            impairment directly correlate to a degree of industrial 
 
            disability to the body as a whole.  In other words, there 
 

 
            
 
            Page  22
 
            
 
            
 
            
 
            
 
            are no formulae which can be applied and then added up to 
 
            determine the degree of industrial disability.  It therefore 
 
            becomes necessary for the deputy or commissioner to draw 
 
            upon prior experience, general and specialized knowledge to 
 
            make the finding with regard to degree of industrial dis
 
            ability.   See Peterson v. Truck Haven Cafe, Inc., (Appeal 
 
            Decision, February 28, 1985); Christensen v. Hagen, Inc., 
 
            (Appeal Decision, March 26, l985).
 
            
 
                 Claimant has proven by a preponderance of the evidence 
 
            that the May 5, 1989, injury to the right shoulder resulted 
 
            in permanent disability.
 
            
 
                 Upon considering all the material factors in file 
 
            number 927412 it is found that the evidence in this case 
 
            supports an award of 15 percent permanent partial disability 
 
            attributable to the May 5, 1989, injury which entitles the 
 
            claimant to recover from defendant employer 75 weeks of 
 
            benefits under Iowa code section 85.34(2)(u).
 
            
 
                 The basis of compensation shall be the weekly 
 
                 earnings of the injured employee at the time of 
 
                 the injury.  Weekly earnings means gross salary, 
 
                 wages, or earnings of an employee to which such 
 
                 employee would have been entitled had the employee 
 
                 worked the customary hours for the full pay period 
 
                 in which the employee was injured, as regularly 
 
                 required by the employee's employer for the work 
 
                 or employment for which the employee was employed, 
 
                 computed or determined as follows and then rounded 
 
                 to the nearest dollar:
 
            
 
                 ...
 
            
 
                 6.  In the case of an employee who is paid on a 
 
                 daily, or hourly basis, or by the output of the 
 
                 employee, the weekly earnings shall be computed by 
 
                 dividing by thirteen the earnings, not including 
 
                 overtime or premium pay, of said employee earned 
 
                 in the employ of the employer in the last 
 
                 completed period of thirteen consecutive calendar 
 
                 weeks immediately preceding the injury.
 
            
 
                 
 
            (Iowa Code section 85.36)
 
            
 
                 Claimant has proven that he is entitled to a weekly 
 
            compensation rate of $397.12 in file number 927412.
 
            
 
                 The employer, for all injuries compensable under 
 
            chapter 85 or chapter 85A, shall furnish reasonable 
 
            surgical, medical, dental, osteopathic, chiropractic, 
 
            podiatric, physical rehabilitation, nursing, ambulance and 
 
            hospital services and supplies; therefore, and shall allow 
 
            reasonable necessary transportation expenses incurred for 
 
            such services.  The employer has the right to choose the 
 
            provider of care.  Iowa Code section 85.27.
 
            
 
                 Claimant has proven entitlement to reimbursement from 
 
            employer for section 85.27 expenses in file number 927412 as 
 

 
            
 
            Page  23
 
            
 
            
 
            
 
            
 
            outlined in the opinion.
 
            
 
                 In file number 927412 claimant has established 
 
            entitlement to 50 weeks of benefits to be paid by the State 
 
            of Iowa Second Injury Fund.
 
            
 
                 Payments from the fund begin after the full period of 
 
            payments by employer.  Iowa Code section 85.64.  Employer 
 
            has been ordered to pay 75 weeks of benefits beginning 
 
            January 26, 1990.  Therefore, the commencement date for 
 
            payment of fund benefits in file number 927412 is 75 weeks 
 
            after January 26, 1990.
 
            
 
                 All costs incurred in the hearing before the deputy 
 
            commissioner shall be taxed in the discretion of the deputy 
 
            commissioner unless otherwise required by the rule of civil 
 
            procedure governing discovery.  Iowa Code section 86.40.  
 
            Rule 343 IAC 4.33.
 
            
 
                 Costs are taxed equally between the second injury fund 
 
            and D & S Sheet Metal.  Claimant has the right to tax the 
 
            expense of obtaining two reports or requests for medical 
 
            records as a cost. 
 
            
 
                                      order
 
            
 
                 IT IS THEREFORE, ORDERED:
 
            
 
                 Claimant take nothing in file number 946025.
 
            
 
                 In file number 858701, the Second Injury Fund of Iowa 
 
            pay claimant fifteen (15) weeks of permanent partial 
 
            disability benefits commencing sixteen point five (16.5) 
 
            weeks after August 16, 1987, at a weekly rate of three 
 
            hundred ninety-six and 74/100 dollars ($396.74).
 
            
 
                 Employer/insurance carrier are to pay claimant healing 
 
            period benefits in file number 927412 at the weekly rate of 
 
            three hundred ninety-seven and 12/100 dollars ($397.12) for 
 
            the period May 5, 1989 through January 25, 1990.
 
            
 
                 Employer/insurance carrier are to pay claimant 
 
            seventy-five (75) weeks of permanent partial disability 
 
            benefits in file number 927412 at the rate of three hundred 
 
            ninety-seven and 12/100 dollars ($397.12) per week 
 
            commencing January 26, 1990.
 
            
 
                 In file number 927412 the Second Injury Fund of Iowa 
 
            pay claimant fifty (50) weeks of permanent partial 
 
            disability commencing seventy-five (75) weeks after January 
 
            26, 1990, at the rate of three hundred ninety-seven and 
 
            12/100 dollars ($397.12).
 
            
 
                 Employer/insurance carrier in file number 927412 are to 
 
            pay claimant's medical expenses as outlined in the opinion.
 
            
 
                 It is further ordered that employer/insurance carrier 
 
            and the Second Injury Fund of Iowa each pay one-half of the 
 
            costs of these proceedings pursuant to rule 343 IAC 4.33.
 
            
 

 
            
 
            Page  24
 
            
 
            
 
            
 
            
 
                 It is further ordered that employer/insurance carrier 
 
            file a first report of injury in file number 946025 for the 
 
            injury date of May 14, 1990.
 
            
 
                 It is further ordered that defendants shall receive 
 
            credit for benefits previously paid.
 
            
 
                 It is further ordered that all accrued benefits are to 
 
            be paid in a lump sum.
 
            
 
                 It is further ordered that interest will accrue on 
 
            benefits paid by employer pursuant to Iowa Code section 
 
            85.30. 
 
            
 
                 It is further ordered that interest shall accrue on 
 
            benefits paid by second injury fund commencing on the date 
 
            of this decision.  Second Injury Fund of Iowa v. Braden, 459 
 
            N.W.2d 467, 473 (Iowa 1990).
 
            
 
                 It is further ordered that defendants file claim 
 
            activity reports as requested by this agency pursuant to 
 
            rule 343 IAC 3.1.
 
            
 
                 Signed and filed this ____ day of May, 1991.
 
            
 
            
 
            
 
            
 
                                          ______________________________
 
                                          MARLON D. MORMANN
 
                                          DEPUTY INDUSTRIAL COMMISSIONER    
 
            
 
            Copies to:
 
            
 
            Mr. Robert Rush
 
            Attorney at Law
 
            526 2nd Ave SE
 
            Cedar Rapids, Iowa  52406
 
            
 
            
 
            
 
            Mr. David Mason
 
            Mr. Mark Fransdal
 
            Attorneys at Law
 
            315 Clay St.
 
            PO Box 627
 
            Cedar Falls, Iowa  50613
 
            
 
            Ms. Shirley A. Steffe
 
            Assistant Attorney General
 
            Hoover State Office Bldg.
 
            Des Moines, Iowa  50319
 
            
 
            
 
            
 
 
            
 
            Page   1
 
            
 
            
 
            
 
            
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            DANIEL J. MORSE,              :
 
                                          :
 
                 Claimant,                :         File No. 946026
 
                                          :
 
            vs.                           :      A R B I T R A T I O N
 
                                          :
 
            LONNIE DEAN, d/b/a            :         D E C I S I O N
 
            C.L.A.S.S. TRUCKING,          :
 
                                          :
 
                 Employer,                :
 
                 Defendant.               :
 
            ____________________________________________________________
 
            
 
                              statement of the case
 
            
 
                 This is a proceeding in arbitration brought by Daniel 
 
            J. Morse against Lonnie Dean, d/b/a C.L.A.S.S. Trucking, 
 
            based upon injuries that Morse sustained in a truck accident 
 
            on or about May 21, 1989.  Claimant seeks compensation for 
 
            healing period, permanent partial disability and payment of 
 
            medical expenses.  Two primary issues which are in the case 
 
            are whether Morse was an employee of Lonnie Dean and whether 
 
            Morse had deviated from his employment at the time of the 
 
            accident.
 
            
 
                 The case was heard at Burlington, Iowa, on October 8, 
 
            1991.  The evidence consists of testimony from Daniel J. 
 
            Morse, Thelma I. McConahay, Mike Van Ness and Lonnie Dean.  
 
            The record also contains jointly offered exhibits 1 through 
 
            5 and defendant's exhibit 6.
 
            
 
                                 findings of fact
 
            
 
                 Having considered all the evidence received, together 
 
            with the appearance and demeanor of the witnesses, the 
 
            following findings of fact are made.
 
            
 
                 There is no real dispute in this case regarding the 
 
            fact of Morse being injured while driving a truck in the 
 
            manner which is alleged.  The primary issue in the case is 
 
            whether Morse was an employee of Lonnie Dean.  There is a 
 
            great deal of conflicting evidence in the case.  There are a 
 
            number of inconsistencies in the testimony from several of 
 
            the witnesses.  Some statements from some of the witnesses 
 
            are likewise considered less than fully credible.  Some 
 
            matters are, however, established without any substantial 
 
            conflict in the evidence.
 
            
 
                 The truck which Morse was driving at the time of the 
 
            accident was owned by a person named Larry Littlejohn.  
 
            Morse had never met Littlejohn.  Morse had never spoken with 
 
            Littlejohn on the telephone.  It is possible that Morse did 
 
            not even have Littlejohn's telephone number.  All the 
 
            arrangements and discussions which led to Morse being placed 
 
            into the status of driving the truck were conducted between 
 
            Morse and Lonnie Dean.  While there are disagreements 
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            regarding the details, Morse came into contact with Lonnie 
 
            Dean at the Billup Tire Store in Burlington, Iowa, at which 
 
            time Morse expressed interest in driving and Dean directed 
 
            him to Dean's place of business at Sperry, Iowa.  Morse then 
 
            worked with Dean regarding becoming qualified to drive.  
 
            Dean advised Morse that he had a job driving the truck.  
 
            There is a dispute with regard to whether or not Dean 
 
            advised Morse that Littlejohn was the owner of the truck or 
 
            Morse's employer, but it is not disputed that the name of 
 
            C.L.A.S.S. Trucking was displayed on the truck.  While the 
 
            method by which Morse's pay was to be computed and paid to 
 
            him is a subject of controversy, it is clear that all 
 
            discussions regarding pay were conducted between Dean and 
 
            Morse.  Littlejohn played no part whatsoever in placing 
 
            Morse in the driver's seat of the truck other than, perhaps, 
 
            to have expressed consent to Dean for the actions Dean had 
 
            taken.
 
            
 
                 Exhibit 1 is the lease agreement between Littlejohn and 
 
            Dean.  Under the lease agreement, particularly in paragraphs 
 
            2 and 6, it is quite clear that Dean was responsible to the 
 
            public and shippers for the operation of the truck and was 
 
            given complete possession and control of the use of the 
 
            truck.
 
            
 
                 In paragraph 5, the lessor, Littlejohn, was required to 
 
            keep the truck in good repair and pay all expenses of its 
 
            operation associated with fuel and mileage taxes, tolls and 
 
            the like.
 
            
 
                 Under paragraph 8, C.L.A.S.S. was required to display 
 
            its name on the vehicle.
 
            
 
                 Paragraphs 7 and 10 provide that C.L.A.S.S. was 
 
            responsible for public liability insurance and that the 
 
            lessor, Littlejohn, would "identify" [sic] (believed to mean 
 
            "indemnify") C.L.A.S.S. for certain damages to cargo and for 
 
            payment of fines and other expenses resulting from lessor's 
 
            negligence.
 
            
 
                 In paragraph 12 of the agreement, it is stated that 
 
            lessor retains the status of an independent contractor to 
 
            the lessee and the lessor agrees to be responsible for and 
 
            to provide workers' compensation coverage for all drivers 
 
            furnished to the lessee.  The amendment to paragraph 5 again 
 
            states that the lessor, Littlejohn, is to be responsible for 
 
            workers' compensation and other insurance.
 
            
 
                 At no point in the lease agreement is there any 
 
            requirement that Littlejohn provide Dean with a driver for 
 
            the truck.  There is nothing in the agreement which would 
 
            prohibit Dean from hiring a driver and placing a driver in 
 
            the truck.
 
            
 
                 It is undisputed that Dean arranged the loads which 
 
            Morse was to haul.  Dean and Van Ness both testified that 
 
            they provided Morse with a precise route to follow for the 
 
            trip on which the accident occurred.  It is recognized that 
 
            there may be some discrepancy with regard to precisely what 
 
            the instructions actually were, but there is no dispute that 
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            instructions were given.
 
            
 
                 It is clear that Dean is the person Morse looked to as 
 
            his supervisor and director and that Dean actually 
 
            functioned as the supervisor and director without any 
 
            notable input from Littlejohn.
 
            
 
                 This trip when the accident occurred was apparently the 
 
            second trip that Morse made under the direction of Dean.  He 
 
            apparently had made one trip to Chicago and back.  On this 
 
            trip, Dean initially testified that he picked up the load at 
 
            Dubuque, but the fact of the matter was later shown to be 
 
            that the load was picked up at Bettendorf.  There is a 
 
            dispute with regard to where the load was to be delivered.  
 
            According to Morse, it was to be delivered at Camp Hill, 
 
            Pennsylvania, which is near Harrisburg, while Dean and Van 
 
            Ness identified the destination as Bloomsburg, Pennsylvania.  
 
            Regardless of which destination was correct, the fact of the 
 
            matter is that Morse was considerably off course at the time 
 
            of the accident.  It is found that Morse was an 
 
            inexperienced, immature driver who had simply gotten lost.  
 
            There is no evidence that he intentionally deviated from the 
 
            most direct and reasonable primary route to his destination.
 
            
 
                 It is found that, at the time of the accident, Morse 
 
            was driving under Dean's authority and permits.  Morse was 
 
            providing work which was part of the normal work of Dean's 
 
            business.  Dean was the party responsible for completion of 
 
            the tasks which Morse was assigned to perform.  Morse 
 
            obtained his directives from Dean.  Dean received payment 
 
            from the customers for the work which Morse performed.  Dean 
 
            would be responsible to the customers if Morse failed to 
 
            perform the work adequately.  The agreement between Dean and 
 
            Littlejohn under which Morse was permitted to drive 
 
            Littlejohn's truck was a long-term contract of one year 
 
            which tied the truck exclusively to Dean.  Littlejohn had 
 
            not filed a certificate of insurance showing workers' 
 
            compensation coverage with Dean for any employees which 
 
            Littlejohn might hire or might have hired.
 
            
 
                 After Morse wrecked the truck, he was taken to a 
 
            Cincinnati hospital and obtained medical treatment.  Upon 
 
            his return to Burlington, he received further treatment.  
 
            The services described in exhibit 5 appear to be consistent 
 
            with services that would be performed for an individual who 
 
            has been involved in a motor vehicle accident.  Morse's 
 
            statement that all the charges were incurred in treating the 
 
            injuries from that accident and were not incurred for 
 
            treating any other symptoms or conditions is accepted as 
 
            being correct.  There being no evidence to the contrary, it 
 
            is determined that the services were reasonable since they 
 
            were apparently provided by licensed medical professionals.  
 
            The amounts charged are consistent with charges seen in 
 
            other cases before this agency where similar services have 
 
            been provided.  In the absence of any evidence to the 
 
            contrary, those charges are found to be reasonable.
 
            
 
                 Following the accident, Morse submitted some of his 
 
            bills to Dean and Dean indicated that he would attempt to 
 
            get them paid.  It is not certain whether Dean represented 
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
            that he would pay them, that he would certainly get them 
 
            paid or that he would merely attempt to get them paid.  The 
 
            bills were not paid.  Apparently, neither Littlejohn nor 
 
            Dean had workers' compensation insurance to cover Morse.
 
            
 
                 While there is evidence in the record which indicates 
 
            that truck drivers are paid $.18 per mile, $.25 per mile, or 
 
            25 percent of the load, there is no evidence showing what 
 
            amounts those computations would produce for a typical truck 
 
            driver or what amounts were actually earned by Morse.  Morse 
 
            was never paid for any of the work he performed.  When 
 
            considering federal minimum wage laws and typical earnings 
 
            for truck drivers as seen in other cases before this agency, 
 
            it is found that the usual earnings for similar services 
 
            where such services are rendered by paid employees would not 
 
            be less than $200 per week, an amount which is equivalent to 
 
            pay at the rate of $5.00 per hour based upon a 40-hour work 
 
            week.  While many truck drivers earn considerably more than 
 
            $200 per week, the absence of any evidence whatsoever of 
 
            what a driver could have been expected to earn working under 
 
            the authority of C.L.A.S.S. Trucking requires that the 
 
            amount in this case be placed at the lower end of the scale.
 
            
 
                 While Morse has continuing complaints regarding his 
 
            physical condition, there is no evidence from any physician 
 
            in the record of this case which shows him to have any 
 
            permanent impairment or permanent disability.  He was 
 
            released to resume work effective June 28, 1989, without any 
 
            restrictions (exhibit 2).
 
            
 
                                conclusions of law
 
            
 
                 The first issue to be addressed is that of the 
 
            employer-employee relationship.  In a similar case, the Iowa 
 
            Supreme Court held the motor carrier to be the employer of 
 
            the driver, despite a contract which provided for 
 
            independent contractor status.  Towers v. Watson Brothers 
 
            Co., 229 Iowa 387, 294 N.W. 594 (1940).  While the more 
 
            recent case of Elliott v. Wilkinson, 248 Iowa 667, 81 N.W.2d 
 
            925 (1957) would seem to provide a conflicting result, the 
 
            cases are not irreconcilable.  It is particularly noted that 
 
            this claimant was not a party to any written contract 
 
            entered into between Littlejohn and Dean.  Even showing it 
 
            to him or explaining it to him would not alter or relieve 
 
            any employer's statutory dutiesbe reffe        yer of          Attorney at Law
 
            305 North Third Street, Suite 520
 
            Burlington, Iowa  52601
 
            
 
            Mr. Patrick L. Woodward
 
            Mr. William Scott Power
 
            Attorneys at Law
 
            321 North Third Street
 
            P.O. Box 1046
 
            Burlington, Iowa  52601
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                               1402.10; 1504; 2501; 3001
 
                                               Filed December 16, 1991
 
                                               MICHAEL G. TRIER
 
            before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            DANIEL J. MORSE,              :
 
                                          :
 
                 Claimant,                :         File No. 946026
 
                                          :
 
            vs.                           :      A R B I T R A T I O N
 
                                          :
 
            LONNIE DEAN, d/b/a            :         D E C I S I O N
 
            C.L.A.S.S. TRUCKING,          :
 
                                          :
 
                 Employer,                :
 
                 Defendant.               :
 
            ____________________________________________________________
 
            
 
            1402.10; 1504
 
            Motor carrier held to be employer of driver of truck which 
 
            was leased to the motor carrier, despite provisions of the 
 
            written lease agreement which stated that the owner of the 
 
            truck would provide workers' compensation for drivers.  The 
 
            lease did not expressly require the truck owner to provide a 
 
            driver and the owner played no significant part in hiring or 
 
            directing the driver.  The requirement for a certificate of 
 
            insurance was discussed including the recent change which 
 
            now relieves the motor carrier from liability in these types 
 
            of cases regardless of whether or not the truck owner has 
 
            purchased insurance and how the recent statutory change in 
 
            1991 effectively repealed the 1986 amendment and the supreme 
 
            court case of Towers v. Watson Brothers Co., 229 Iowa 387, 
 
            294 N.W. 594 (1940).
 
            
 
            2501
 
            Claimant was allowed to recover his medical expenses 
 
            resulting from truck accident where there was no evidence 
 
            that the expenses were excessive or incurred for unnecessary 
 
            treatment.  Agency expertise relied upon.
 
            
 
            3001
 
            Evidence was silent upon information from which a rate of 
 
            compensation could be based.  Section 85.36(8) was applied.  
 
            Gross weekly earnings of $200 were found based upon federal 
 
            minimum wage laws and wages of truck drivers seen in other 
 
            cases.  Since claimant had introduced no evidence of the 
 
            earnings of other truck drivers, the rate was placed at $200 
 
            per week, an amount at the low end of the range of 
 
            reasonable wages for truck drivers.