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. Page 10 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.