BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
           
 
                                          :
 
            E. JEANNE ZENTNER,            :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :    File Nos. 946036/946037
 
            ALGONA COMMUNITY SCHOOL       :
 
            DISTRICT,                     :
 
                                          :           R E M A N D
 
                 Employer,                :
 
                                          :         D E C I S I O N
 
            and                           :
 
                                          :
 
            EMPLOYERS MUTUAL COMPANIES,   :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ____________________________________________________________
 
            
 
            This case is on remand from the Iowa District Court for 
 
            Kossuth County.  The defendants, employer and its insurance 
 
            carrier, requested a briefing schedule and an opportunity 
 
            for oral argument.  Claimant resisted defendants' request.  
 
            The issues on remand were raised in the original appeal of 
 
            the proposed decision of the deputy industrial commissioner.  
 
            Those issues were previously discussed in the parties' 
 
            briefs and no further briefs are necessary.
 
            
 
                                   ISSUES
 
            
 
            The issues on remand are:
 
            Whether the testimony of Dr. Sim is the basis of a finding 
 
            that the claimant suffered a cumulative injury; and
 
            When the employee, in the exercise of reasonable diligence, 
 
            should have discovered the nature, seriousness and probable 
 
            compensable character of her injury and whether the two year 
 
            statute of limitation applies in this case.
 
            
 
                              FINDINGS OF FACT
 
            
 
            The findings of fact in the appeal decision filed July 23, 
 
            1992 are incorporated by reference.  The following 
 
            additional findings of fact are made.
 
            An office note from the Park Clinic dated April 12, 1988 
 
            states:
 
               Mrs. Zentner comes in today.  Three weeks after her 
 
            accident, she was just totally disabled.  She said she had 
 
            to put her foot up in the air.  She was teaching but 
 
            couldn't do anything else.  She couldn't do her painting, 
 
            had trouble driving.  She just had a miserable time.  She 
 
            developed quite a bit of bruising.  Today everything appears 
 
            to be doing quite well.  I think she is back to her baseline 
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            state.  I don't think she sustained any permanent 
 
            impairment.  She does have some small capillaries in the 
 
            back of her thigh but these don't look like there is a 
 
            significant problem with them either.  Will recheck her on a 
 
            prn basis.
 
            
 
            (Joint Exhibit 1, page 3)
 
            An office note by Franklin H. Sim, M.D., dated March 28, 
 
            1990 states in part:  "The patient has rather marked pain, 
 
            disability, swelling and inflammation related to DJD. ... 
 
            She has symptoms with flexion/extension activities.  She is 
 
            unable to do stairs, except for one at a time."  (Jt Ex. 1, 
 
            p. 5)
 
            In a letter dated April 19, 1990 Dr. Sim wrote:
 
            She is a 65-year-old teacher who complained of severe right 
 
            knee pain.  This is worse with stairs and with standing.  
 
            She also noted a clicking and grinding sensation.  In 
 
            February 1988 she slipped on the floor and fell with her 
 
            knee in a hyperextended position.  She developed posterior 
 
            knee pain exacerbated by weight bearing.  Her symptoms were 
 
            gradually improving, but in November 1988 she had flareup of 
 
            the symptoms associated with increased activities.  She has 
 
            had persistent symptoms since last fall with a continued 
 
            fusion.
 
               When I saw her she had rather marked pain, disability, 
 
            swelling, and inflammation related to degenerative joint 
 
            disease. ... She has symptoms worse with flexion and 
 
            extension activities such as stairs. ...
 
            ....The future for this knee is not good what with the 
 
            severe degenerative changes, particularly medially.
 
            
 
            (Jt Ex. 1, p. 13)
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            In a letter dated April 1, 1991 Dr. Sim wrote:
 
               Our records indicate that she first injured her right 
 
            knee in February 1988 when she slipped on the floor and fell 
 
            down with her knee in the hyperextended position.  Following 
 
            this, she began to have posterior knee pain exacerbated by 
 
            weight bearing.  Our records indicate that she told us that 
 
            her symptoms gradually subsided, and in November 1988 after 
 
            helping her mother move to a different home, she had a 
 
            flareup of her symptoms....
 
               On clinical examination which was confirmed by 
 
            arthroscopy, she does have significant degenerative joint 
 
            disease in all three compartments of her knee.  I don't 
 
            think the initial injury that she described caused the 
 
            arthritis, but I do feel that her work-related activities 
 
            would certainly aggravate it....
 
               ....Since the degenerative joint disease is a progressive 
 
            condition, I expect with further wear that she will require 
 
            further treatment in the future such as total knee 
 
            arthroplasty.
 
            
 
            (Claimant's Ex. A, p. 5)
 
            
 
                           CONCLUSIONS OF LAW
 
            
 
            The first issue to be resolved is whether the medical 
 
            evidence of Dr. Sim is the basis of a finding that claimant 
 
            suffered a cumulative injury.
 
            
 
                 The party who would suffer loss if an issue were not 
 
            established has the burden of proving that issue by a 
 
            preponderance of the evidence.  Iowa R. App. P. 14(f).
 
            
 
                 A personal injury contemplated by the workers' 
 
            compensation law means an injury, the impairment of health 
 
            or a disease resulting from an injury which comes about, not 
 
            through the natural building up and tearing down of the 
 
            human body, but because of trauma.  The injury must be 
 
            something which acts extraneously to the natural processes 
 
            of nature and thereby impairs the health, interrupts or 
 
            otherwise destroys or damages a part or all of the body.  
 
            Although many injuries have a traumatic onset, there is no 
 
            requirement for a special incident or an unusual occurrence.  
 
            Injuries which result from cumulative trauma are 
 
            compensable.  McKeever Custom Cabinets v. Smith, 379 N.W.2d 
 
            368 (Iowa 1985); Olson v. Goodyear Serv. Stores, 255 Iowa 
 
            1112, 125 N.W.2d 251 (1963); Ford v. Goode, 240 Iowa 1219, 
 
            38 N.W.2d 158 (1949); Almquist v. Shenandoah Nurseries, 
 
            Inc., 218 Iowa 724, 254 N.W. 35 (1934).  An occupational 
 
            disease covered by chapter 85A is specifically excluded from 
 
            the definition of personal injury.  Iowa Code section 
 
            85.61(5); Iowa Code section 85A.8.
 
            
 
                 It is clear that Dr. Sim thought that this 65 year old 
 
            claimant had significant degenerative joint disease.  It was 
 
            also his opinion that the initial injury, the slip and fall, 
 
            did not cause claimant's arthritis.  He also stated that the 
 
            degenerative joint disease was a progressive condition.  
 
            Nothing in Dr. Sim's records indicates that the physical 
 
            activity by claimant (stairs and standing) which may have 
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
            worsened claimant's symptoms were limited to work-related 
 
            activities.  Those same activities are day to day type 
 
            activities and may well have been involved in November 1988 
 
            when claimant helped her mother move.
 
            
 
                 Claimant has not proved she suffered a cumulative 
 
            work-related injury.  Not only has claimant not met her 
 
            burden of proof, but the evidence in this case demonstrates 
 
            that claimant's progressive condition was degenerative joint 
 
            disease which resulted from the natural tearing down of 
 
            claimant's body.  This disease was not caused by her initial 
 
            injury.  While Dr. Sim thought that claimant's work activity 
 
            may aggravate claimant's arthritis, he clearly did not say 
 
            that the work activity caused the arthritis.  Furthermore, 
 
            because Dr. Sim recognized that the degenerative joint 
 
            disease is a progressive condition he did not attribute 
 
            claimant's condition to her work.
 
            
 
                 The second issue to be resolved is when the employee, 
 
            in the exercise of reasonable diligence, should have 
 
            discovered the nature, seriousness and probable compensable 
 
            character of her injury and whether the two year statute of 
 
            limitation applies in this case.
 
            
 
                 An original proceeding for benefits must be commenced 
 
            within two years from the date of the occurrence of the 
 
            injury for which benefits are claimed or within three years 
 
            from the date of the last payment of weekly compensation 
 
            benefits if weekly compensation benefits have been paid 
 
            under Iowa Code section 86.13.  Iowa Code section 85.26(1).  
 
            A proceeding in review-reopening must be commenced within 
 
            three years from the date of the last payment of weekly 
 
            benefits under either an award for payments or an agreement 
 
            for settlement.  Iowa Code section 85.26(2).  The "discovery 
 
            rule" may extend the time for filing a claim where weekly 
 
            benefits have not yet been paid.  The rule does not extend 
 
            the time for filing a claim where benefits have been paid.  
 
            Orr v. Lewis Cent. School Dist., 298 N.W.2d 256 (Iowa 
 
            1980).  Under the rule, the time during which a proceeding 
 
            may be commenced does not begin to run until the claimant, 
 
            as a reasonable person, should recognize the nature, 
 
            seriousness and probable compensable character of the 
 
            condition.  The reasonableness of claimant's conduct is to 
 
            be judged in light of the claimant's education and 
 
            intelligence.  Claimant must know enough about the condition 
 
            to realize that it is both serious and work connected.  Orr, 
 
            298 N.W.2d at 261; Robinson v. Dep't of Transp., 296 N.W.2d 
 
            809 (Iowa 1980).
 
            
 
                 Failure to timely commence an action under the 
 
            limitations statute is an affirmative defense which 
 
            defendants must prove by a preponderance of the evidence.  
 
            DeLong v. Highway Comm'n, 229 Iowa 700, 295 N.W. 91 (1940).
 
            In Venga v. John Deere Component Works, 498 N.W.2d 422 (Iowa 
 
            App. 1993), the court held that for purposes of the notice 
 
            requirement of Iowa Code section 85.23, the employee must 
 
            realize an injury will have an impact on employment.
 
            In this case claimant had a traumatic injury when she 
 

 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
            slipped and fell in the school.  There was little dispute 
 
            the injury occurred while claimant was at work.  She sought 
 
            immediate medical attention.  The notes from the Park Clinic 
 
            dated April 12, 1988 clearly indicate that claimant thought 
 
            her injury was serious.  Assuming for the sake of this 
 
            decision, that the discovery rule is applicable, claimant as 
 
            a reasonable person should have recognized the nature, 
 
            seriousness and probable compensable character of the injury 
 
            when the injury occurred in February 1988.  Claimant clearly 
 
            recognized the nature, seriousness and probable compensable 
 
            nature of her injury at or before the time she reported to 
 
            the Park Clinic information necessary to make the note dated 
 
            April 12, 1988.  That information also clearly shows that 
 
            the claimant realized the injury would have an impact on her 
 
            employment.  This conclusion is supported by testimony of 
 
            claimant's witnesses about claimant's condition following 
 
            the slip and fall.
 
            While claimant may not have known the exact medical nature 
 
            of her injury until January 1990 when Dr. Crane told her 
 
            that she had ligament damage which would require surgery, 
 
            she certainly knew in February 1988 that she had injured her 
 
            knee and that the injury was serious.
 
            Claimant brought her claim on August 3, 1990.  Claimant's 
 
            claim is barred by the two year statute of limitations in 
 
            Iowa Code section 85.26(1).
 
            
 
                                     ORDER
 
            
 
            THEREFORE, it is ordered:
 
            
 
                 That claimant take nothing from these proceedings for 
 
            an alleged injury on February 28, 1988 (file no. 946036).
 
            
 
                 That claimant take nothing from these proceedings for 
 
            an alleged injury on or about April 10, 1990 (file no. 
 
            946037).
 
            
 
                 That claimant shall pay the costs of this matter 
 
            including the transcription of the hearing.  
 
            
 
                 Signed and filed this ____ day of June, 1993.
 
            
 
            
 
            
 
            
 
                                          
 
                                     ________________________________
 
                                                   BYRON K. ORTON
 
                                              INDUSTRIAL COMMISSIONER
 
            
 
            Copies To:
 
            
 
            Mr. Mark S. Soldat
 
            Attorney at Law
 
            714 E. State St.
 
            Algona, Iowa 50511
 
            
 
            Ms. Valerie A. Fandel
 
            Mr. Marvin E. Duckworth
 
            Attorneys at Law
 

 
            
 
            Page   6
 
            
 
            
 
            
 
            
 
            2700 Grand Ave., Ste 111
 
            Des Moines, Iowa 50312
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                               1100; 1402.30; 2402
 
                                               Filed June 30, 1993
 
                                               Byron K. Orton
 
            
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
            
 
                                          :
 
            E. JEANNE ZENTNER,            :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :    File Nos. 946036/946037
 
            ALGONA COMMUNITY SCHOOL       :
 
            DISTRICT,                     :
 
                                          :           R E M A N D
 
                 Employer,                :
 
                                          :         D E C I S I O N
 
            and                           :
 
                                          :
 
            EMPLOYERS MUTUAL COMPANIES,   :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ____________________________________________________________
 
          
 
            1100; 1402.30
 
            Claimant failed to prove a cumulative injury.  Claimant, 65 
 
            years old, had degenerative joint disease.  Claimant's 
 
            traumatic injury did not cause the disease.  Claimant's work 
 
            activities of standing and walking stairs did not cause the 
 
            disease.  The disease and its condition were the results of 
 
            normal wear and tear on the body.
 
            
 
            2402
 
            Claimant's claim was barred by the two year statute of 
 
            limitation.  Assuming the discovery rule was applicable for 
 
            a traumatic event, it was determined that claimant, as a 
 
            reasonable person, should have known of the nature, 
 
            seriousness and compensable character of the injury at the 
 
            time of her injury.  She had a slip and fall injury, sought 
 
            medical care and restricted her activities at the time of 
 
            the injury.
 
            
 
 
            
 
            Page   1
 
            
 
            
 
            
 
            
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            E. JEANNE ZENTNER,            :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :       File Nos. 946036
 
                                          :                 946037
 
            ALGONA COMMUNITY SCHOOL       :
 
            DISTRICT,                     :
 
                                          :     A R B I T R A T I O N
 
                 Employer,                :
 
                                          :       D E C I S I O N
 
            and                           :
 
                                          :
 
            EMPLOYERS MUTUAL COMPANIES,   :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
                              statement of the case
 
            
 
                 This case came on for hearing on August 5, 1991, in 
 
            Fort Dodge, Iowa.  This is a proceeding in arbitration 
 
            wherein claimant seeks compensation for permanent partial 
 
            disability benefits as a result of right leg scheduled 
 
            member injuries on February 22, 1988 and April 10, 1990.  
 
            The record in the proceedings consist of the testimony of 
 
            claimant, Jerry Payne, Harriet Simons, Floyd Thies, Carol 
 
            Kenyon, and Harold Pryor; and joint exhibit 1; claimant's 
 
            exhibits A and B; and defendants' exhibits 1 through 5.
 
            
 
                                      issues
 
            
 
                 The issues in both cases for resolution are:
 
            
 
                 1.  Whether claimant's injuries arose out of and in the 
 
            course of her employment;
 
            
 
                 2.  Whether there is any causal connection to 
 
            claimant's alleged disability and the respective injuries;
 
            
 
                 3.  The nature and extent of claimant's permanent 
 
            disability and entitlement to disability benefits;
 
            
 
                 4.  The rate for any compensation that would be 
 
            payable, if any;
 
            
 
                 5.  Claimant's entitlement to 85.27 medical benefits, 
 
            causation only;
 
            
 
                 6.  Claimant's entitlement to 86.13 penalty benefits; 
 
            and
 
            
 
                 7.  How interest on temporary and permanent disability 
 
            benefits is to be computed.
 
            
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
                 Regarding the February 22, 1988 alleged injury, an 
 
            additional issue is whether claimant's action was filed 
 
            timely, as provided by Iowa Code section 85.26.
 
            
 
                 The parties initially indicated that credit for certain 
 
            medical was an issue with the parties basically disputing 
 
            the exact figure.  As discussed at the hearing, the parties 
 
            did stipulate subsequently as to the exact figure for 
 
            credit.  Therefore, it is no longer an issue regarding this 
 
            decision.
 
            
 
                                 findings of fact
 
            
 
                 The undersigned having heard the testimony and 
 
            considered all the evidence, finds that:
 
            
 
                 Claimant is a 67-year-old art teacher and artist who 
 
            has taught art for twenty years.  She began working for 
 
            defendant employer in 1971 to the present.  She signs yearly 
 
            contracts and works most of the year and gets paid twice per 
 
            month, except in June she gets checks for three months at 
 
            one time.  Claimant described her work days and hours.  She 
 
            is on her feet most of the day.  Her classrooms are on the 
 
            second floor and requires walking up 23 to 24 steps.  There 
 
            is no elevator.  She sells or rents paintings on the side.  
 
            She has a mandatory school physical every three years but 
 
            gets one every year.  Prior to February 22, 1988, she said 
 
            she had no musculoskeletal problems.
 
            
 
                 She said she maintained her own home and did all the 
 
            work except for mowing and shoveling prior to February 22, 
 
            1988.  She also has her art studio in the basement of her 
 
            home which involves climbing or descending 20 steps.  She 
 
            also indicated she wore high heels two-thirds of the time 
 
            prior to February 22, 1988.  She related the extent of her 
 
            need to walk.
 
            
 
                 She described her fall on February 22, 1988, while 
 
            attending a retirement party or coffee for the 
 
            superintendent.  The hours were within her normal end of the 
 
            day work hours.  She indicated the floor had just been waxed 
 
            and while walking in the school building to the event, her 
 
            right leg shot out in front of her.  She explained her 
 
            subsequent pain and the location of the injury.  She 
 
            eventually continued on to the party but left for home 
 
            early.
 
            
 
                 Claimant related her visit to the doctor.  She 
 
            indicated the primary concern was her right hand but 
 
            acknowledged she had bruises on her right thigh.
 
            
 
                 Claimant said she had no understanding of any bone 
 
            damage but her leg did hurt and she could not walk normally 
 
            up into August 1988.  Going up and down stairs was a 
 
            problem.  She said she received no medical attention from 
 
            April 28, 1988 to December 15, 1989 as to her right leg but 
 
            the symptoms flared up again in the fall of 1989.
 
            
 
                 In November 1989, claimant helped her mother move, but 
 
            claimant claims she did not have any leg difficulties while 
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            moving her mother.  The leg flared up later.  Claimant 
 
            contends others helped move all the heavy boxes and 
 
            furniture.  Claimant's leg then began getting worse 
 
            gradually after the move and claimant went to the 
 
            chiropractor in December 1989 as she thought something was 
 
            out of place.
 
            
 
                 Claimant went to M.W. Crane, M.D., and claimant's right 
 
            knee was injected with cortisone.  She described the 
 
            excruciating pain similar to the February 22, 1988 pain.  
 
            Claimant took off work on December 19 and 20, 1988, and 
 
            received sick pay.  Claimant contends she felt she was going 
 
            to get better.  She understood her medical bills would be 
 
            paid.  She indicated no one told her she was not covered by 
 
            workers' compensation.  The undersigned notes that no one 
 
            told her she would be covered by workers' compensation 
 
            either.
 
            
 
                 Claimant went to Mayo Clinic and eventually had right 
 
            knee surgery on April 10, 1990.  She said the surgery helped 
 
            but she cannot go up and down stairs, climb ladders and get 
 
            down on her knees and do various household cleaning as she 
 
            did before.  She described the other things she cannot do or 
 
            do as well before her alleged injury.  Claimant contends 
 
            that between April 12, 1988 and December 15, 1989 (the 
 
            latter date she saw Steven A. Mueller, D.C.), she changed 
 
            her activities outside of school as to weight bearing 
 
            activities.
 
            
 
                 Claimant explained her experience with Scott B. Neff, 
 
            D.O., to whom defendant insurance company sent her in 
 
            January 1991.  She emphasized the rude and unprofessional 
 
            conduct of this doctor.  Claimant's friend, Harriet Simons, 
 
            went with her.  The undersigned believes the rude, 
 
            unprofessional, embarrassing, humiliating conduct of Dr. 
 
            Neff took place.  Mrs. Simons verified it.  This conduct is 
 
            demeaning to the medical profession and obviously taints the 
 
            doctor's effectiveness and the reliability of his opinions.  
 
            Likewise, this type of conduct should not taint the issues 
 
            herein.
 
            
 
                 On cross-examination, claimant was asked several 
 
            questions regarding events and circumstances within the two 
 
            years of the statute of limitations period that would 
 
            indicate to the claimant that she may or did have problems 
 
            with her knee which may have resulted from her February 22, 
 
            1988 fall.  Some of these events were:  claimant contends 
 
            she had trouble during February and August 1988; claimant 
 
            had trouble dressing in August 1988 and never fully 
 
            recovered by August 1988; claimant couldn't walk without a 
 
            limp; December 9, 1989, cortisone injections were done; Dr. 
 
            Crane said claimant may need surgery and on February 21, 
 
            1990, Dr. Crane discussed surgery again with claimant.
 
            
 
                 Claimant said she first knew she was not going to get 
 
            better around January 1990 and thought she might need 
 
            surgery.  Claimant was referred to defendants' exhibit 3 in 
 
            which she referred to the "stress of moving furniture Boxes 
 
            and the work was just too much.  Gradually I realized I was 
 
            limping."
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
            
 
                 Claimant emphasized that prior to her return to school 
 
            in the fall of 1989, she had no idea she would have 
 
            permanent impairment.
 
            
 
                 Jerry Payne, a sciences teacher with defendant employer 
 
            for 31 years, has known claimant since 1967 as a teacher and 
 
            socially.  He related the activities claimant did at school 
 
            and at home, including climbing ladders to wash windows and 
 
            trim trees.  He said he has seen claimant every day since 
 
            1986 and two to four nights a week for coffee after school.  
 
            He was aware of claimant's fall in February 1988 and 
 
            indicated she has not been the same since.  He said claimant 
 
            has had increased difficulty after school started in 1989.  
 
            He indicated she does not do some of the outside activities 
 
            she once did.  He said it took three days altogether to move 
 
            claimant's mother in November 1989 and claimant helped all 
 
            three days.
 
            
 
                 The witness testified that claimant lost sleep and this 
 
            wore her down.  Although it appears this witness was with 
 
            claimant a lot after school, it is hard to believe how he 
 
            knew claimant's sleep patterns.
 
            
 
                 Harriet Simons testified she has known claimant 40 
 
            years.  She noticed claimant limped after February 22, 1988, 
 
            and not before.  She went with claimant to Dr. Neff's office 
 
            and related his unprofessional conduct.  She verified 
 
            claimant's accounting of the doctor visit.
 
            
 
                 Floyd Thies has been a school counselor for defendant 
 
            employer for 24 years.  He has known claimant since 1986.  
 
            Prior to February 22, 1988, claimant was very energetic and 
 
            had no problem walking.  He saw claimant every school day.  
 
            He said he observed an improvement in claimant from February 
 
            1988 to the fall of 1989.  After September 1989, he noticed 
 
            some deterioration.  It appears to the undersigned that this 
 
            person knew nothing of claimant helping move her mother.
 
            
 
                 Carol Kenyon has worked for defendant employer 28 
 
            years.  She is an accountant and works in the payroll and 
 
            with the attendance records.  She is aware of claimant's 
 
            fall in February 1988.  She said a first report of injury 
 
            was sent to claimant and she approved it (Defendants' 
 
            Exhibit 2, page 5).  The employer also sent one signed by 
 
            the employer representative (Def. Ex. 2, p. 7) with the same 
 
            information as defendants' exhibit 2, page 5.  She said 
 
            claimant then filed another first report in March 1990 and 
 
            referred to a May 1988 injury.  The employer would not sign 
 
            this because it was not work related.  It appears to the 
 
            undersigned that this report involved a February 22, 1988 
 
            incident and not a new incident in May 1988.  Ms. Kenyon 
 
            went over the claimant's attendance records and claimant 
 
            missed approximately four days between February 22, 1988 and 
 
            April 10, 1990, and none were claimed missed because of 
 
            injury except for a February 23, 1988 date in which claimant 
 
            missed one-half day to go to the doctor due to February 22, 
 
            1988 fall.  She further testified as to the time claimant 
 
            missed after April 10, 1990.
 
            
 

 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
                 Harold Pryor, the superintendent of the school district 
 
            of defendant employer, testified as to claimant's salary 
 
            during various school years.
 
            
 
                 Defendants' exhibit 1 reflects Dr. Neff's opinion.  He 
 
            could not for sure causally connect claimant's fall and her 
 
            meniscus tear.  He said claimant's knee arthritis was not 
 
            caused by her fall.  Claimant has had longstanding 
 
            preexisting degenerative arthritis in the knee in his 
 
            opinion.  His other comments are set out in said exhibit and 
 
            in light of this decision setting out more detail is not 
 
            necessary.
 
            
 
                 There is no question that an incident at work occurred 
 
            on February 22, 1988.  The undersigned believes the greater 
 
            weight of evidence supports the fact that claimant incurred 
 
            an injury that arose out of and in the course of her 
 
            employment on February 22, 1988.  Claimant was working at 
 
            her job with defendant employer and attended a function not 
 
            only within her work hours but that it would be expected she 
 
            would attend the reception at the end of the day for the 
 
            school official.  Therefore, the undersigned finds that an 
 
            injury arose out of and in the course of claimant's 
 
            employment on February 22, 1988.
 
            
 
                 Defendants raise the defense that the statute of 
 
            limitations has run under the provision of Iowa Code section 
 
            85.26.  There is no question that claimant's petition was 
 
            filed over 29 months from the date of the February 22, 1988 
 
            incident at work.  Claimant contends that the statute had 
 
            not run based on the premise that the claimant had not 
 
            discovered the nature, seriousness and probable compensable 
 
            character of the injury causing her disability.
 
            
 
                 The greater weight of evidence shows that claimant was 
 
            aware of her injury and was having problems resulting from 
 
            her February 22, 1988 fall.  It appears that claimant was 
 
            getting much better up until the fall of 1989 when she 
 
            indicates her condition was deteriorating again.  She 
 
            relates to the fact that school was starting and she was 
 
            performing more activities in connection with her job, those 
 
            activities mainly being on her feet several hours a day, 
 
            walking and carrying certain art supplies.  Claimant related 
 
            that she was active in maintaining her home and had a studio 
 
            in her basement.  She also tried to give the impression that 
 
            after school ends in June, her activities substantially 
 
            lessen.  Taking the record as a whole and listening to this 
 
            individual's apparent desire to stay active, the undersigned 
 
            does not believe that her activities slowed down to the 
 
            extent that she relates.  It would appear that claimant 
 
            continued to be very active on her feet and in her work in 
 
            certain additional replacement activities when she was not 
 
            at school during the regular school year.
 
            
 
                 Claimant seemed to downplay the moving of her mother 
 
            over a three day period in November 1989.  Obviously, she 
 
            does not hide the fact as it is evident but seem to think 
 
            there were no consequences resulting from this move.  
 
            Claimant related how stressful the heavy work was in moving 
 
            (Def. Ex. 3, p. 2).  It appears that it was after the 
 

 
            
 
            Page   6
 
            
 
            
 
            
 
            
 
            November 1989 move of her mother that things began to 
 
            substantially deteriorate and approximately five months 
 
            thereafter she had surgery.  Claimant had longstanding 
 
            preexisting degenerative arthritis in the knee according to 
 
            Dr. Neff (Def. Ex. 1) and confirmed by Dr. Sim's operative 
 
            report.  There was a degenerative meniscus tear as well as 
 
            arthritic disease.  The undersigned believes that there was 
 
            an intervening event, namely, the moving of her mother that 
 
            could have been a substantial factor in the deterioration of 
 
            claimant's condition as it appears she was improving, at 
 
            least up to September 1989.  The undersigned believes that 
 
            the real deterioration began after the November 1989 move of 
 
            her mother.
 
            
 
                 The evidence shows several instances in which claimant 
 
            should have known the nature and consequences of her fall.  
 
            Claimant testified that as of January 1990, she believed she 
 
            would need surgery.  The evidence also shows that a doctor 
 
            indicated a possibility of surgery within the two year 
 
            period and reaffirmed the day before the two year period 
 
            from the fall elapsed.
 
            
 
                 Claimant contends she did not know how serious her 
 
            injury was.  If the statute of limitations had not run with 
 
            the facts we have in this case, then you would have the 
 
            extension of the statute of limitations in a overwhelming 
 
            number of cases which would make Iowa Code section 85.26 
 
            meaningless.  Often, no one knows the seriousness of an 
 
            injury until there is surgery.  Claimant contends in the 
 
            case at bar that she did not know the seriousness of her 
 
            February 22, 1988 fall until she had the April 10, 1990 
 
            surgery, at which time she claims another injury.  
 
            Additionally, claimant contends she did not know the 
 
            probable compensable character of her injury.  The 
 
            overwhelming evidence indicates that claimant had to have 
 
            known that her problems she was experiencing within the two 
 
            years of her February 22, 1988 fall were because of this 
 
            fall.  Claimant is an educated individual.  The employee 
 
            signed a first report in addition to the employer filling 
 
            one out and signing it.  This was done by claimant.  She 
 
            later filed another first report referring to a May 1988 
 
            injury which the undersigned earlier had indicated appears 
 
            to have been the February 22, 1988 fall for which she was 
 
            filing another first report in May 1990.  It is confusing as 
 
            to why she did that other than to confuse the record.
 
            
 
                 The undersigned finds that claimant was aware of the 
 
            nature of her February 22, 1988 fall and that there were 
 
            consequences flowing therefrom and if she did not know, she 
 
            should have known.  The undersigned also finds that claimant 
 
            knew or should have known the probable compensable nature of 
 
            her February 22, 1988 fall and injury and that claimant made 
 
            a mistake of law and not a mistake of fact.  Claimant's 
 
            failure to recognize the applicability of workers' 
 
            compensation law to her fall and injury on February 22, 1988 
 
            was mistake of law and not a mistake of fact.  The discovery 
 
            rule looks to the point in time where claimant in view of 
 
            her education and intelligence should have recognized that 
 
            the injury was both serious and work related.  The discovery 
 
            rules does not contemplate a determination of when claimant 
 

 
            
 
            Page   7
 
            
 
            
 
            
 
            
 
            recognizes her available legal remedies.  The undersigned 
 
            believes that if, in fact, the discovery was applicable in 
 
            the case herein, then we would have a flood of cases in 
 
            which a person had surgery in excess of two years after an 
 
            event and claimed that they did not discover the seriousness 
 
            or probable consequences of their injury until they had the 
 
            surgery.  One could see, particularly in back cases 
 
            involving vertebrae that a scheme could be developed which 
 
            would make the statute of limitations under 85.26 for the 
 
            most part meaningless in a good many workers' compensation 
 
            cases.
 
            
 
                 It is undisputed unless the discovery rule is 
 
            applicable herein, that claimant's action involving a 
 
            February 22, 1988 fall was, in fact, filed contrary to Iowa 
 
            Code section 85.26.  Therefore, the undersigned finds that 
 
            claimant did not file her action within the required time 
 
            limit of the statute of limitations section 85.26 of the 
 
            Code of Iowa.  By the greater weight of evidence the 
 
            defendants have sustained their defense in this respect.
 
            
 
                 The resolution of this last issue disposes of this case 
 
            and there would not necessary be any need to proceed further 
 
            with any other issues regarding claimant's alleged February 
 
            22, 1988 injury.  Claimant takes nothing from this alleged 
 
            February 22, 1988 injury.
 
            
 
                 Regarding the April 10, 1990 alleged cumulative injury, 
 
            it appears to the undersigned that this date was picked 
 
            because claimant had surgery on that date and that this 
 
            would help support claimant's contention regarding her 
 
            February 22, 1988 alleged injury, and as a safeguard provide 
 
            a forum for supplemental or additional recovery for a second 
 
            injury in case claimant's contention failed in the February 
 
            22, 1988 injury.
 
            
 
                 From the facts of this case, it would appear that had 
 
            there been a timely filed action for a February 22, 1988 
 
            injury,the events that occurred on April 10, 1990 and 
 
            thereafter would have brought about an action for 
 
            review-reopening, the basis for review-reopening being that 
 
            there was additional medical and time off and impairment not 
 
            anticipated or known as a result of the February 22, 1988 
 
            injury.
 
            
 
                 There can be no review-reopening procedure unless there 
 
            was a prior decision, memorandum of agreement, or payments 
 
            made.  The claimant has failed to timely proceed regarding 
 
            the February 22, 1988 injury.  There can be no consideration 
 
            from the review-reopening standpoint regarding an April 10, 
 
            1990 alleged injury or an untimely filed February 22, 1988 
 
            injury.
 
            
 
                 Claimant contends that her continued activity over the 
 
            years resulted in a cumulative injury on April 10, 1990.  
 
            The undersigned finds that there was not a new injury, 
 
            cumulative or otherwise, on April 10, 1990, but that the 
 
            surgery was a consequence that arose out claimant's February 
 
            22, 1988 fall, or was the result of an intervening event, 
 
            namely, claimant moving her mother in November 1989, at 
 

 
            
 
            Page   8
 
            
 
            
 
            
 
            
 
            which time claimant's right knee began deteriorating to such 
 
            an extent that surgery was needed in April 1990.  Claimant 
 
            is 67 years old and it is obvious the effects of her 
 
            activity, including moving her mother, could have been a 
 
            substantial intervening cause that resulted in her April 
 
            1990 surgery or without which intervening cause, the April 
 
            1990 surgery would not have been necessary.  The medical 
 
            evidence also indicates the degenerative arthritic disease 
 
            claimant has and at this point in time, particularly after 
 
            claimant moved her mother and the deterioration began, that 
 
            that also could be a substantial cause of claimant's 
 
            problems.
 
            
 
                 The undersigned finds that claimant failed to prove she 
 
            incurred a cumulative injury on April 10, 1990, that arose 
 
            out of and in the course of her employment.  Claimant 
 
            further failed to prove that her disability which she now 
 
            alleges was causally connected to an April 10, 1990 injury.
 
            
 
                 The above findings regarding the April 10, 1990 alleged 
 
            injury makes all the other issues moot and there is no 
 
            necessity to further addresss any other issues.
 
            
 
                 The undersigned finds that claimant takes nothing from 
 
            these proceedings regarding an April 10, 1990 alleged 
 
            injury.
 
            
 
                                conclusions of law
 
            
 
                 Claimant has the burden of proving by a preponderance 
 
            of the evidence that she received injuries on February 22, 
 
            1988 and April 10, 1990, which arose out of and in the 
 
            course of her employment. McDowell v. Town of Clarksville, 
 
            241 N.W.2d 904 (Iowa 1976); Musselman v. Central Telephone 
 
            Co., 261 Iowa 352, 154 N.W.2d 128 (1967). 
 
            
 
                 The claimant has the burden of proving by a 
 
            preponderance of the evidence that the injuries of February 
 
            22, 1988 and April 10, 1990 are causally related to the 
 
            disability on which she now bases her 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). 
 
            
 
                 Iowa adopts the discovery rule which provides that the 
 
            period of limitations does not begin to run until the 
 
            claimant knows of his or her injury and its probable 
 
            compensable nature.  Orr v. Lewis Cent. Sch. Dist., 298 
 
            N.W.2d 256 (1980).
 
            
 
                 Iowa Code section 85.26 provides, in part:
 
            
 
                    An original proceeding for benefits under this 
 
                 chapter or chapter 85A, 85B, or 86, shall not be 
 
                 maintained in any contested case unless the 
 

 
            
 
            Page   9
 
            
 
            
 
            
 
            
 
                 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.
 
            
 
                 In regard to the February 22, 1988 alleged injury, it 
 
            is concluded that:
 
            
 
                 Claimant incurred an injury that arose out of and in 
 
            the course of her employment on February 22, 1988, but 
 
            failed to file an action under the provisions of Iowa Code 
 
            section 85.26 within the two year period.
 
            
 
                 Claimant, in view of her education and intelligence, 
 
            knew of or should have recognized that her February 22, 1988 
 
            injury was both serious and work related and that she knew 
 
            of the nature and probable compensable nature of the injury 
 
            causing any disability for which she suffered.
 
            
 
                 Claimant's failure to file her action under Iowa Code 
 
            section 85.26, Code of Iowa, was a mistake of law and not a 
 
            mistake of fact.
 
            
 
                 As to the April 10, 1990 alleged injury, it is 
 
            concluded that:
 
            
 
                 Claimant has failed to prove that she incurred a new or 
 
            cumulative separate injury on April 10, 1990 that arose out 
 
            of and in the course of her employment.
 
            
 
                 Claimant failed to show that her alleged disability 
 
            allegedly resulting from an April 10, 1990 injury was caused 
 
            by the April 10, 1990 injury.
 
            
 
                           
 
            
 
            
 
            Page  10
 
            
 
            
 
            
 
            
 
            order
 
            
 
                 THEREFORE, it is ordered:
 
            
 
                 Regarding claimant's alleged February 22, 1988 injury, 
 
            claimant takes nothing from this proceeding.
 
            
 
                 Regarding claimant's alleged April 10, 1990 alleged 
 
            injury, claimant takes nothing from this proceeding.
 
            
 
                 That claimant shall pay the costs of these actions.
 
            
 
                 Signed and filed this ____ day of August, 1991.
 
            
 
            
 
            
 
                                          ______________________________
 
                                          BERNARD J. O'MALLEY
 
                                          DEPUTY INDUSTRIAL COMMISSIONER
 
            
 
            Copies to:
 
            
 
            Mr Mark S Soldat
 
            Attorney at Law
 
            714 E State St
 
            Algona IA 50511
 
            
 
            Ms Valerie A Fandel
 
            Mr Marvin Duckworth
 
            Attorneys at Law
 
            Terrace Ctr  Ste 111
 
            2700 Grand Ave
 
            Des Moines IA 50312
 
            
 
            
 
                 
 
            
 
 
            
 
            
 
            
 
            
 
            
 
 
 
                      BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
            E. JEANNE ZENTNER,            :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :    File Nos. 946036/946037
 
            ALGONA COMMUNITY SCHOOL       :
 
            DISTRICT,                     :
 
                                          :           A P P E A L
 
                 Employer,                :
 
                                          :         D E C I S I O N
 
            and                           :
 
                                          :
 
            EMPLOYERS MUTUAL COMPANIES,   :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ____________________________________________________________
 
            
 
                 The record, including the transcript of the hearing 
 
            before the deputy and all exhibits admitted into the record, 
 
            has been reviewed de novo on appeal.
 
            
 
                                      ISSUES
 
            
 
                 The issues on appeal are:
 
            
 
                 Whether claimant proved an injury that arose out of and 
 
            in the course of her employment on February 22, 1988.
 
            
 
                 Whether claimant is barred from recovery of benefits 
 
            from a February 22, 1988 injury, if any, by the statute of 
 
            limitations in Iowa Code section 85.26.
 
            
 
                 Whether claimant has proved she suffered an injury that 
 
            arose out of and in the course of her employment on or about 
 
            April 10, 1990.
 
            
 
                                 FINDINGS OF FACT
 
            
 
                 The findings of fact contained in the proposed agency 
 
            decision filed August 30, 1991 are adopted as set forth 
 
            below.  Segments designated by asterisks (*****) indicate 
 
            portions of the language from the proposed agency decision 
 
            that have been intentionally deleted and do not form a part 
 
            of this final agency decision.
 
            
 
                 Claimant is a 67-year-old art teacher and artist who 
 
            has taught art for twenty years.  She began working for 
 
            defendant employer in 1971 to the present.  She signs yearly 
 
            contracts and works most of the year and gets paid twice per 
 
            month, except in June she gets checks for three months at 
 
            one time.  Claimant described her work days and hours.  She 
 
            is on her feet most of the day.  Her classrooms are on the 
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            second floor and requires walking up 23 to 24 steps.  There 
 
            is no elevator.  She sells or rents paintings on the side.  
 
            She has a mandatory school physical every three years but 
 
            gets one every year.  Prior to February 22, 1988, she said 
 
            she had no musculoskeletal problems.
 
            
 
                 She said she maintained her own home and did all the 
 
            work except for mowing and shoveling prior to February 22, 
 
            1988.  She also has her art studio in the basement of her 
 
            home which involves climbing or descending 20 steps.  She 
 
            also indicated she wore high heels two-thirds of the time 
 
            prior to February 22, 1988.  She related the extent of her 
 
            need to walk.
 
            
 
                 She described her fall on February 22, 1988, while 
 
            attending a retirement party or coffee for the 
 
            superintendent.  The hours were within her normal end of the 
 
            day work hours.  She indicated the floor had just been waxed 
 
            and while walking in the school building to the event, her 
 
            right leg shot out in front of her.  She explained her 
 
            subsequent pain and the location of the injury.  She 
 
            eventually continued on to the party but left for home 
 
            early.
 
            
 
                 Claimant related her visit to the doctor.  She 
 
            indicated the primary concern was her right hand but 
 
            acknowledged she had bruises on her right thigh.
 
            
 
                 Claimant said she had no understanding of any bone 
 
            damage but her leg did hurt and she could not walk normally 
 
            up into August 1988.  Going up and down stairs was a 
 
            problem.  She said she received no medical attention from 
 
            April 28, 1988 to December 15, 1989 as to her right leg but 
 
            the symptoms flared up again in the fall of 1989.
 
            
 
                 In November 1989, claimant helped her mother move, but 
 
            claimant claims she did not have any leg difficulties while 
 
            moving her mother.  The leg flared up later.  Claimant 
 
            contends others helped move all the heavy boxes and 
 
            furniture.  Claimant's leg then began getting gradually 
 
            worse after the move and claimant went to the chiropractor 
 
            in December 1989 as she thought something was out of place.
 
            
 
                 Claimant went to M.W. Crane, M.D., and claimant's right 
 
            knee was injected with cortisone.  She described the 
 
            excruciating pain similar to the February 22, 1988 pain.  
 
            Claimant took off work on December 19 and 20, 1988, and 
 
            received sick pay.  Claimant contends she felt she was going 
 
            to get better.  She understood her medical bills would be 
 
            paid.  She indicated no one told her she was not covered by 
 
            workers' compensation. *****
 
            
 
                 Claimant went to Mayo Clinic and eventually had right 
 
            knee surgery on April 10, 1990.  She said the surgery helped 
 
            but she cannot go up and down stairs, climb ladders and get 
 
            down on her knees and do various household cleaning as she 
 
            did before.  She described the other things she cannot do or 
 
            do as well before her alleged injury.  Claimant contends 
 
            that between April 12, 1988 and December 15, 1989 (the 
 
            latter date she saw Steven A. Mueller, D.C.), she changed 
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            her activities outside of school as to weight bearing 
 
            activities.
 
            
 
                 Claimant explained her experience with Scott B. Neff, 
 
            D.O., to whom defendant insurance company sent her in 
 
            January 1991.  ***** Claimant's friend, Harriet Simons, went 
 
            with her. *****
 
            
 
                 On cross-examination, claimant was asked several 
 
            questions regarding events and circumstances within the two 
 
            years of the statute of limitations period that would 
 
            indicate to the claimant that she may or did have problems 
 
            with her knee which may have resulted from her February 22, 
 
            1988 fall.  Some of these events were:  claimant contends 
 
            she had trouble during February and August 1988; claimant 
 
            had trouble dressing in August 1988 and never fully 
 
            recovered by August 1988; claimant couldn't walk without a 
 
            limp; December 9, 1989, cortisone injections were done; Dr. 
 
            Crane said claimant may need surgery and on February 21, 
 
            1990, Dr. Crane discussed surgery again with claimant.
 
            
 
                 Claimant said she first knew she was not going to get 
 
            better around January 1990 and thought she might need 
 
            surgery.  Claimant was referred to defendants' exhibit 3 in 
 
            which she referred to the "stress of moving furniture Boxes 
 
            and the work was just too much.  Gradually I realized I was 
 
            limping."
 
            
 
                 Claimant emphasized that prior to her return to school 
 
            in the fall of 1989, she had no idea she would have 
 
            permanent impairment.
 
            
 
                 Jerry Payne, a sciences teacher with defendant employer 
 
            for 31 years, has known claimant since 1967 as a teacher and 
 
            socially.  He related the activities claimant did at school 
 
            and at home, including climbing ladders to wash windows and 
 
            trim trees.  He said he has seen claimant every day since 
 
            1986 and two to four nights a week for coffee after school.  
 
            He was aware of claimant's fall in February 1988 and 
 
            indicated she has not been the same since.  He said claimant 
 
            has had increased difficulty after school started in 1989.  
 
            He indicated she does not do some of the outside activities 
 
            she once did.  He said it took three days altogether to move 
 
            claimant's mother in November 1989 and claimant helped all 
 
            three days.
 
            
 
                 The witness testified that claimant lost sleep and this 
 
            wore her down.  Although it appears this witness was with 
 
            claimant a lot after school, it is hard to believe how he 
 
            knew claimant's sleep patterns.
 
            
 
                 Harriet Simons testified she has known claimant 40 
 
            years.  She noticed claimant limped after February 22, 1988, 
 
            and not before.  She went with claimant to Dr. Neff's office 
 
            and related his unprofessional conduct.  She verified 
 
            claimant's accounting of the doctor visit.
 
            
 
                 Floyd Thies has been a school counselor for defendant 
 
            employer for 24 years.  He has known claimant since 1986.  
 
            Prior to February 22, 1988, claimant was very energetic and 
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
            had no problem walking.  He saw claimant every school day.  
 
            He said he observed an improvement in claimant from February 
 
            1988 to the fall of 1989.  After September 1989, he noticed 
 
            some deterioration. *****
 
            
 
                 Carol Kenyon has worked for defendant employer 28 
 
            years.  She is an accountant and works in the payroll and 
 
            with the attendance records.  She is aware of claimant's 
 
            fall in February 1988.  She said a first report of injury 
 
            was sent to claimant and she approved it (Defendants' 
 
            Exhibit 2, page 5).  The employer also sent one signed by 
 
            the employer representative (Def. Ex. 2, p. 7) with the same 
 
            information as defendants' exhibit 2, page 5.  She said 
 
            claimant then filed another first report in March 1990 and 
 
            referred to a May 1988 injury.  The employer would not sign 
 
            this because it was not work related.  It appears ***** that 
 
            this report involved a February 22, 1988 incident and not a 
 
            new incident in May 1988.  Ms. Kenyon went over the 
 
            claimant's attendance records and claimant missed 
 
            approximately four days between February 22, 1988 and April 
 
            10, 1990, and none were claimed missed because of injury 
 
            except for a February 23, 1988 date in which claimant missed 
 
            one-half day to go to the doctor due to February 22, 1988 
 
            fall.  She further testified as to the time claimant missed 
 
            after April 10, 1990.
 
            
 
                 Harold Pryor, the superintendent of the school district 
 
            of defendant employer, testified as to claimant's salary 
 
            during various school years.
 
            
 
                 Defendants' exhibit 1 reflects Dr. Neff's opinion.  He 
 
            could not for sure causally connect claimant's fall and her 
 
            meniscus tear.  He said claimant's knee arthritis was not 
 
            caused by her fall.  Claimant has had longstanding 
 
            preexisting degenerative arthritis in the knee in his 
 
            opinion.  His other comments are set out in said exhibit and 
 
            in light of this decision setting out more detail is not 
 
            necessary.
 
            
 
                 There is no question that an incident at work occurred 
 
            on February 22, 1988.  ***** The greater weight of evidence 
 
            supports the fact that claimant incurred an injury that 
 
            arose out of and in the course of her employment on February 
 
            22, 1988.  Claimant was working at her job with defendant em
 
            ployer and attended a function not only within her work 
 
            hours but that it would be expected she would attend the 
 
            reception at the end of the day for the school official.  
 
            Therefore, the undersigned finds that an injury arose out of 
 
            and in the course of claimant's employment on February 22, 
 
            1988.
 
            
 
                 *****
 
            
 
                 The greater weight of evidence shows that claimant was 
 
            aware of her injury and was having problems resulting from 
 
            her February 22, 1988 fall.  It appears that claimant was 
 
            getting much better up until the fall of 1989 when she 
 
            indicates her condition was deteriorating again.  She 
 
            relates to the fact that school was starting and she was 
 
            performing more activities in connection with her job, those 
 

 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
            activities mainly being on her feet several hours a day, 
 
            walking and carrying certain art supplies.  Claimant related 
 
            that she was active in maintaining her home and had a studio 
 
            in her basement.  She also tried to give the impression that 
 
            after school ends in June, her activities substantially 
 
            lessen. ***** It would appear that claimant continued to be 
 
            very active on her feet and in her work in certain 
 
            additional replacement activities when she was not at school 
 
            during the regular school year.
 
            
 
                 Claimant seemed to downplay the moving of her mother 
 
            over a three day period in November 1989.  Obviously, she 
 
            does not hide the fact as it is evident but seems to think 
 
            there were no consequences resulting from this move.  
 
            Claimant related how stressful the heavy work was in moving 
 
            (Def. Ex. 3, p. 2).  It appears that it was after the 
 
            November 1989 move of her mother that things began to 
 
            substantially deteriorate and approximately five months 
 
            thereafter she had surgery.  Claimant had longstanding 
 
            preexisting degenerative arthritis in the knee according to 
 
            Dr. Neff (Def. Ex. 1) and confirmed by Dr. Sim's operative 
 
            report.  There was a degenerative meniscus tear as well as 
 
            arthritic disease.  ***** The moving of her mother that 
 
            could have been a substantial factor in the deterioration of 
 
            claimant's condition as it appears she was improving, at 
 
            least up to September 1989.  ***** The real deterioration 
 
            began after the November 1989 move of her mother.
 
            
 
                 *****
 
            
 
                                CONCLUSIONS OF LAW
 
            
 
                 The claimant has the burden of proving by a 
 
            preponderance of the evidence that the alleged injury 
 
            actually occurred and that it arose out of and in the course 
 
            of employment.  McDowell v. Town of Clarksville, 241 N.W.2d 
 
            904 (Iowa 1976); Musselman v. Cent. Tel. Co., 261 Iowa 352, 
 
            154 N.W.2d 128 (1967).  The words "arising out of" refer to 
 
            the cause or source of the injury.  The words "in the course 
 
            of" refer to the time, place and circumstances of the 
 
            injury.  Sheerin v. Holin Co., 380 N.W.2d 415 (Iowa 1986); 
 
            McClure v. Union County, 188 N.W.2d 283 (Iowa 1971).
 
            
 
                 There is little argument that claimant suffered an 
 
            injury on February 22, 1988 that arose out of and in the 
 
            course of her employment.  The real issue regarding the 
 
            February 23, 1988 injury date is whether recovery of 
 
            benefits is barred by the statute of limitations.
 
            
 
                 Claimant filed this action on August 3, 1990.  
 
            Claimant's claim would be barred by the provisions of Iowa 
 
            Code section 85.26(1) unless the discovery rule is applied.  
 
            The discovery rule was discussed in Jones v. Continental 
 
            Baking Company, Appeal Decision, September 24, 2991, File 
 
            No. 908648 and Origer v. Ley Motor Company, Appeal Decision, 
 
            November 18, 1991, File No. 848639.
 
            
 
                    Under the discovery rule enunciated in Orr v. 
 
                 Lewis Central School District, 298 N.W.2d 256, 261 
 
                 Iowa 1980), and Robinson v. Department of 
 

 
            
 
            Page   6
 
            
 
            
 
            
 
            
 
                 Transportation, 296 N.W.2d 809, 812 (Iowa 1980), 
 
                 the statute of limitations would not start to run 
 
                 until claimant recognized the nature, seriousness 
 
                 and probable compensable character of his 
 
                 injury....
 
            
 
                    ....
 
            
 
                    Defendants argue on appeal that claimant's 
 
                 injury is not subject to the discovery rule, 
 
                 because claimant's condition flows from an 
 
                 identifiable, traumatic event.  Defendants argue 
 
                 that there should be a distinction between "latent 
 
                 injuries" and "traumatic injuries with latent 
 
                 manifestation."  Defendants cite LeBeau v. Dimig, 
 
                 446 N.W.2d 800 (Iowa 1989).  LeBeau is a tort 
 
                 case, dealing with the discovery rule in an 
 
                 automobile accident case.  The plaintiff received 
 
                 a head injury, which appeared minor at first but 
 
                 later turned out to be the cause of epilepsy.  
 
                 However, the statute of limitations had expired by 
 
                 the time the epileptic condition was discovered.
 
            
 
                    In LeBeau, the Iowa Supreme Court used the 
 
                 "traumatic event latent manifestation" analysis.  
 
                 In the "latent manifestation" case the Court 
 
                 reasoned, the injured party is entitled to the 
 
                 discovery rule rather than charging him with facts 
 
                 which are "unknown and inherently unknowable."  In 
 
                 the "traumatic event" case, however, the injured 
 
                 party has been injured by a noticeable, traumatic 
 
                 occurrence, where the injured party realizes both  
 
                 that he has been injured, and what is responsible 
 
                 for his injury, even though the full extent of the 
 
                 harm is not yet known.
 
            
 
                    The LeBeau court found that allowing the use of 
 
                 the discoverys recently reviewed LeBeau, 
 
            446 N.W.2d 800, and stated:  "Because we classified LeBeau's 
 
            suit as a traumatic event/latent manifestation case, we 
 
            refused to apply the discovery rule."  Wilber v. 
 
            Owens-Corning Fiberglass Corp., 476 N.W.2d 74, 76 (Iowa 
 
            1991).
 
            
 
                 In this case claimant had a traumatic injury on 
 
            February 28, 1988 and the claim which was brought on August 
 
            3, 1990 is barred by Iowa Code section 85.26(1).
 
            
 
                 Even if the discovery rule were to be applied, 
 
            claimant's claim would be barred by Iowa Code section 
 
            85.26(1).  The February 28, 1988 injury was a traumatic 
 
            event.  Claimant reported it to a supervisor, approved a 
 
            first report of injury on February 23, 1988, and sought 
 
            medical care at the time of the injury.  There was little 
 
            dispute the injury occurred while claimant was at work.  
 
            Claimant should have recognized the nature, seriousness, and 
 
            probable compensable character of her injury in February 
 
            1988.  Claimant argues in her appeal brief that the three 
 
            year statute of limitations in Iowa Code section 85.26(2) 
 
            should apply.  There is no reliable evidence that claimant 
 
            was paid weekly workers' compensation benefits for her 
 
            February 22, 1988 injury.  Mere payment for "time off" does 
 
            not mean that the payments were weekly workers' compensation 
 
            benefits.  It is also noted that claimant did not miss three 
 
            days of work because of this injury and any benefits would 
 
            not have been weekly workers' compensation benefits.  See 
 
            Iowa Code section 85.32.  Iowa Code section 85.26(2) is not 
 
            applicable.  Claimant's claim for the February 22, 1988 
 
            injury is barred by Iowa Code section 85.26(1).
 
            
 
                 The last issue to be resolved is whether claimant 
 
            proved she sustained an injury that arose out of and in the 
 
            course of her employment on or about April 10, 1990.
 
            
 
                 A personal injury contemplated by the workers' 
 
            compensation law means an injury, the impairment of health 
 
            or a disease resulting from an injury which comes about, not 
 
            through the natural building up and tearing down of the 
 
            human body, but because of trauma.  The injury must be 
 
            something which acts extraneously to the natural processes 
 
            of nature and thereby impairs the health, interrupts or 
 
            otherwise destroys or damages a part or all of the body.  
 
            Although many injuries have a traumatic onset, there is no 
 
            requirement for a special incident or an unusual occurrence.  
 
            Injuries which result from cumulative trauma are 
 
            compensable.  McKeever Custom Cabinets v. Smith, 379 N.W.2d 
 
            368 (Iowa 1985); Olson v. Goodyear Serv. Stores, 255 Iowa 
 
            1112, 125 N.W.2d 251 (1963); Ford v. Goode, 240 Iowa 1219, 
 

 
            
 
            Page   8
 
            
 
            
 
            
 
            
 
            38 N.W.2d 158 (1949); Almquist v. Shenandoah Nurseries, 
 
            Inc., 218 Iowa 724, 254 N.W. 35 (1934).  An occupational 
 
            disease covered by chapter 85A is specifically excluded from 
 
            the definition of personal injury.  Iowa Code section 
 
            85.61(5); Iowa Code section 85A.8.
 
            
 
                 There is no evidence that claimant sustained a 
 
            traumatic injury on or about April 10, 1990.  That injury 
 
            date was picked because claimant left work because of her 
 
            leg condition.  That leg condition was possibly the result 
 
            of her February 22, 1988 work injury.  It is more likely 
 
            that the condition was a result of claimant's activity in 
 
            moving her mother's household belongings in November 1989 or 
 
            a degenerative arthritic condition, or a combination of 
 
            these two.  Neither Dr. Sim nor Dr. Neff causally related 
 
            claimant's knee condition to a cumulative injury.  
 
            Claimant's work activities as described in her testimony do 
 
            not appear to be the type that would result in a cumulative 
 
            injury.  Claimant has failed to prove she sustained an 
 
            injury, traumatic or cumulative, that arose out of and in 
 
            the course of her employment on or about April 10, 1990.
 
            
 
                 WHEREFORE, the decision of the deputy is affirmed.
 
            
 
                                      ORDER
 
            
 
                 THEREFORE, it is ordered:
 
            
 
                 That claimant take nothing from these proceedings for 
 
            an alleged injury on February 28, 1988 (file no. 946036).
 
            
 
                 That claimant take nothing from these proceedings for 
 
            an alleged injury on or about April 10, 1990 (file no. 
 
            946037).
 
            
 
                 That claimant shall pay the costs of this matter 
 
            including the transcription of the hearing.  
 
            
 
                 Signed and filed this ____ day of July, 1992.
 
            
 
            
 
            
 
            
 
                                          
 
                                         ________________________________
 
                                                   BYRON K. ORTON
 
                                              INDUSTRIAL COMMISSIONER
 
            
 
            Copies To:
 
            
 
            Mr. Mark S. Soldat
 
            Attorney at Law
 
            714 E. State St.
 
            Algona, IA 50511
 
            
 
            Ms. Valerie A. Fandel
 
            Mr. Marvin E. Duckworth
 
            Attorneys at Law
 
            2700 Grand Ave., Ste 111
 
            Des Moines, IA 50312
 

 
            
 
            Page   9
 
            
 
            
 
            
 
            
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                               1100; 1402.30; 2402
 
                                               Filed July 23, 1992
 
                                               Byron K. Orton
 
            
 
            
 
                    BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
            E. JEANNE ZENTNER,            :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :    File Nos. 946036/946037
 
            ALGONA COMMUNITY SCHOOL       :
 
            DISTRICT,                     :
 
                                          :           A P P E A L
 
                 Employer,                :
 
                                          :         D E C I S I O N
 
            and                           :
 
                                          :
 
            EMPLOYERS MUTUAL COMPANIES,   :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ____________________________________________________________
 
            
 
            1100; 1402.30
 
            Found claimant's April 10, 1990 alleged cumulative injury 
 
            did not arise out of and in the course of claimant's 
 
            employment.  It was not a new injury.  Claimant's surgery on 
 
            April 10, 1990 was an outgrowth of her untimely filed 
 
            petition involving her February 22, 1988 injury.
 
            
 
            2402
 
            Found claimant's petition involving her February 22, 1988 
 
            work injury was not timely filed contrary to Iowa Code 
 
            section 85.26 (statute of limitations).  Claimant's alleged 
 
            discovery contention not accepted.  Discovery rule is not 
 
            applicable when there is a traumatic event with latent 
 
            manifestation.  There was no reliable evidence of payment of 
 
            weekly workers' compensation benefits and therefore three 
 
            year statute of limitations in Iowa Code section 85.26(2) 
 
            did not apply.
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                      2402; 1100
 
                      Filed August 30, 1991
 
                      Bernard J. O'Malley
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            E. JEANNE ZENTNER,            :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :       File Nos. 946036
 
                                          :                 946037
 
            ALGONA COMMUNITY SCHOOL       :
 
            DISTRICT,                     :
 
                                          :     A R B I T R A T I O N
 
                 Employer,                :
 
                                          :       D E C I S I O N
 
            and                           :
 
                                          :
 
            EMPLOYERS MUTUAL COMPANIES,   :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
            2402
 
            Found claimant's petition involving her February 22, 1988 
 
            work injury was not timely filed contrary to 85.26 (statute 
 
            of limitations).  Claimant's failure to file was a mistake 
 
            of law and not mistake of fact.  Claimant's alleged 
 
            discovery contention not accepted.
 
            
 
            1100
 
            Found claimant's April 10, 1990 alleged cumulative injury 
 
            did not arise out of and in the course of claimant's 
 
            employment.  It was not a new injury.  Claimant's surgery on 
 
            April 10, 1990 was an outgrowth of her untimely filed 
 
            petition involving her February 22, 1988 injury.
 
            
 
 
            
 
            Page   1
 
            
 
            
 
            
 
            
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            MIGUEL ARTEAGA,               :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :       File Nos. 946045
 
                                          :                 913243
 
            JOHN MORRELL & CO.,           :
 
                                          :    A R B I T R A T I O N
 
                 Employer,                :
 
                                          :       D E C I S I O N
 
            and                           :
 
                                          :
 
            NATIONAL UNION FIRE           :
 
            INSURANCE COMPANY,            :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
            
 
                              statement of the case
 
            
 
                 This is a consolidated proceeding in arbitration 
 
            brought by Miguel Arteaga, claimant, against John Morrell & 
 
            Company, employer, and National Union Fire Insurance 
 
            Company, insurance carrier, defendants, for workers' compen
 
            sation benefits as a result of alleged injuries on May 1, 
 
            1989 and May 12, 1989.  On March 20, 1992, a hearing was 
 
            held on claimant's petition and the matter was considered 
 
            fully submitted at the close of this hearing.
 
            
 
                                      issues
 
            
 
                 The hearing assignment order submitted the following 
 
            issues for determination in this proceeding:
 
            
 
                   I.  Whether claimant received an injury arising out 
 
            of and in the course of employment;
 
            
 
                  II.  The extent of claimant's entitlement to disabil
 
            ity benefits; and,
 
            
 
                 III.  The extent of claimant's entitlement to medical 
 
            benefits.
 
            
 
                                 findings of fact
 
            
 
                 Neither claimant nor defendants appeared for the oral 
 
            hearing scheduled at the last prehearing conference for 
 
            March 20, 1992.  This agency received no notification of any 
 
            settlement prior to the hearing.  The record was opened but 
 
            no evidence was offered.  The record was then closed.
 
            
 
                                conclusions of law
 
            
 
                 Claimant has the burden of proving by a preponderance 
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            of the evidence that claimant received an injury which arose 
 
            out of and in the course of employment.  The words "out of" 
 
            refer to the cause or source of the injury.  The words "in 
 
            the course of" refer to the time and place and circumstances 
 
            of the injury.  See Cedar Rapids Community Sch. v. Cady, 278 
 
            N.W.2d 298 (Iowa 1979); Crowe v. DeSoto Consol. Sch. Dist., 
 
            246 Iowa 402, 68 N.W.2d 63 (1955).
 
            
 
                 As claimant has the burden of proof, by offering no 
 
            evidence he failed to establish a work injury compensable 
 
            under Iowa workers' compensation law.
 
            
 
                                      order
 
            
 
                 1.  Claimant's claims are denied and his petitions are 
 
            dismissed with prejudice.
 
            
 
                 2.  Claimant shall pay the costs of these actions pur
 
            suant to rule 343 IAC 4.33.
 
            
 
            
 
            
 
                 Signed and filed this ____ day of March, 1992.
 
            
 
            
 
            
 
            
 
            
 
                                          ______________________________
 
                                          LARRY P. WALSHIRE
 
                                          DEPUTY INDUSTRIAL COMMISSIONER
 
            
 
            Copies To:
 
            
 
            Mr. Sheldon M. Gallner
 
            Attorney at Law
 
            803 3rd Avenue
 
            P O Box 1588
 
            Council Bluffs, Iowa  51502
 
            
 
            Mr. Thomas M. Plaza
 
            Ms. Rita C. Grimm
 
            Attorneys at Law
 
            70l Pierce Street
 
            STE 200
 
            P O Box 3086
 
            Sioux City, Iowa  51102
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                          5-1803
 
                                          Filed March 25, 1992
 
                                          LARRY P. WALSHIRE
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            MIGUEL ARTEAGA,               :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :       File Nos. 946045
 
                                          :                 913243
 
            JOHN MORRELL & CO.,           :
 
                                          :    A R B I T R A T I O N
 
                 Employer,                :
 
                                          :       D E C I S I O N
 
            and                           :
 
                                          :
 
            NATIONAL UNION FIRE           :
 
            INSURANCE COMPANY,            :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
            
 
            
 
            5-1803 - Non-precedential
 
            
 
 
 
 
 
 
 
 
 
 
 
 
                  BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
 
 
 DELMER SKEEL,
 
 
 
      Claimant,
 
      
 
                                                     File No. 946051
 
 KWIK SHOPS, INC.,
 
                                                       A P P E A L
 
      Employer,                   
 
                                                     D E C I S I O N
 
 and                           
 
 
 
 CNA INSURANCE COMPANIES,
 
 
 
      Insurance Carrier, 
 
      Defendants.
 
      
 
      
 
      
 
 The record, including the transcript of the hearing before the 
 
 deputy and all exhibits admitted into the record, has been 
 
 reviewed de novo on appeal.
 
 
 
 The file in this matter contains a deposition of Arlo B. Brakel, 
 
 M.D., taken July 15, 1991. Both parties refer to the deposition 
 
 in their appeal briefs. Dr. Brakel's deposition is considered 
 
 and is part of the record.
 
 
 
                             ISSUE
 
 
 
      The issue on appeal is:
 
 
 
 Whether claimant has proved that he sustained an injury that 
 
 arose out of and in the course of his employment with defendant 
 
 employer.
 
 
 
                        FINDINGS OF FACT
 
 
 
      The findings of fact contained in the proposed agency 
 
 decision filed October 3, 1991 are adopted as set forth below. 
 
 Segments designated by brackets ([ ]) indicate language that is 
 
 in addition to the language of the proposed agency decision.
 
 
 
 Claimant, born on September 9, 1932, was 59 years old at the 
 
 time of the hearing. He attended school through the eighth 
 
 grade, and completed two years of high school through 
 
 correspondence courses. He has had no other formal education.
 

 
 
 
 
 
 
 
 SKEEL V. KWIK SHOPS, INC.
 
 Page 2
 
 
 
 
 
 
 
 Claimant began working for the defendant, or its predecessor in 
 
 interest, for approximately ten years until the date of the 
 
 alleged injury on March 25, 1989. Claimant has not worked since 
 
 this date.
 
 
 
 Claimant worked as a night clerk in the convenience store, and his 
 
 duties included waiting on customers, stocking the shelves and ice 
 
 machine, and cleaning the fountain machine. Claimant stated that 
 
 he had to lift items weighing between 25 pounds and 60 pounds. 
 
 Claimant was an hourly employee, and earned $5.35 per hour. He has 
 
 received several appreciation awards for his work, and has 
 
 undergone manager training.
 
 
 
 When claimant was 17 years of age, he contracted undulant fever. 
 
 The effects of the undulant fever left him with a dropped ankle, a 
 
 decrease in muscle tone and loss of balance in his lower 
 
 extremities. Claimant is unable to walk without some type of 
 
 assistance, and has a severely impaired sense of balance.
 
 
 
 At the hearing, claimant described his work-related incident in 
 
 the following manner. One day in late January or February, 
 
 claimant stated that he fell as he was mopping a newly rewaxed 
 
 floor. When he fell, claimant stated he believed he hit his neck 
 
 on a lower shelf. Claimant stated that his neck "stung", he rolled 
 
 over onto his knees, got up and continued working.
 
 
 
 After finishing his shift, claimant proceeded to make an 
 
 appointment with Wilkens Chiropractic Clinic in Bettendorf, Iowa. 
 
 He received treatment from Dr. Wilkinson on two occasions, and was 
 
 then referred to Arlo Brakel, M.D., a microvascular neurosurgeon. 
 
 Dr. Brakel's notes reveal the following information:
 
 
 
      January-February he went to get out of bed, but he couldn't 
 
      feel his legs. He has had pain in his lumbar back area 
 
      constant [sic] for 3 years. The things that really concerned 
 
      him was that his gait has gotten much worse and he has been 
 
      having trouble moving. He also has had numbness and tingling 
 
      in his feet with severe leg cramps. He also has had an 
 
      increase in falling.... He does complain of dizziness at 
 
      which time he states he passes out.
 
      
 
 (Joint Exhibit B, page 10).
 
 
 
      Claimant was scheduled to undergo a CT of the brain and 
 
 cervical x-rays. The results of the CT scan were normal, but 
 
 claimant presented with an unusual cervical spine series which 
 
 notes retrolisthesis of C3 on C4. Claimant then underwent a 
 
 myelogram, and as a result was scheduled for an anterior interbody 
 
 fusion. This surgery was performed on April 18, 1989.
 

 
 
 
 
 
 
 
 SKEEL V. KWIK SHOPS, INC.
 
 Page 3
 
 
 
 
 
 
 
 The hospital records from Mercy Hospital in Davenport, Iowa, 
 
 indicate that claimant was experiencing progressive disuse of the 
 
 lower extremities and sharp pains in the neck and head region, as 
 
 well as intermittent syncopal and near sign syncopal episodes. 
 
 Claimant related a lifelong history of spastic paraparesis. 
 
 Additionally, claimant stated that he had been having significant 
 
 worsening of his gait over a number of weeks prior to the 
 
 admission, with numbness and tingling in his feet and severe leg 
 
 cramps. Claimant's history noted that he had a number of falls at 
 
 which time he states some were precipitated by certain movements 
 
 of his neck. (Jt. Ex. C, pp. 17-21).
 
 
 
 The surgical notes which described the operation also contained a 
 
 patient history:
 
 
 
      In the months of January and February of 1989, the patient 
 
      found several instances of inability to feel his legs when 
 
      attempting to arise out of bed. He had noted a progressive 
 
      difficulty with low back pain over a three year period, but 
 
      had seen a more rapidly progressive deterioration of his 
 
      gait. He had had intermittent trouble moving and had 
 
      experienced a progressive syndrome of increasing numbness and 
 
      tingling in his feet and cramping of his legs. He had had 
 
      episodes of falling which seemed to be more of a collapse 
 
      syndrome with a collapse of his legs and syncope when holding 
 
      his head in extension.
 
      
 
 (Jt. Ex. C, p. 30).
 
 
 
      On May 4, 1990, Dr. Brakel, who had been treating claimant 
 
 since March of 1989 and who performed the surgery, was of the 
 
 following opinion:
 
 
 
 He stated that he had a prior history of difficulty with his legs which he felt 
 
 was related to an infection as a teenager. He stated that this was undulant 
 
 fever. He had been stable for a number of years, but noted that within the year 
 
 or two prior to our evaluation walking had become progressively impaired. 
 
 Spasticity in his legs was worsening, he specifically noted that when he 
 
 extended his neck, or was squatting down under a counter he had sudden loss of 
 
 all muscle tone and had fallen to the floor. He denied any loss of 
 
 consciousness. He had fallen a number of times at work.
 
 
 
 To reiterate, this patient has had cervical instability, perhaps exacerbated by 
 
 a number of falls
 

 
 
 
 
 
 
 
 SKEEL V. KWIK SHOPS, INC.
 
 Page 4
 
 
 
 
 
 
 
      at the work place. This certainly was a predecessor of 
 
      injury by his apparent fever but the impingement on his 
 
      spinal cord has created further damage.
 
      
 
 (Jt. Ex. B, pp. 15-16).
 
 
 
      Dr. Brakel concluded that claimant's total impairment 
 
 was 50 percent of the body as a whole. (Jt. EX. B, p. 15).
 
 
 
 [Dr. Brakel testified in his deposition:
 
 
 
      Q. Now, this falling situation, do we know why this 
 
      occurred?
 
      
 
      A. In part.
 
      
 
      Q. Okay. What do we know?
 
      
 
      A. That the long-established difficulty of deformity of 
 
      his legs on the basis of the original neurologic injury 
 
      at age 17 was causing significant compromise of his 
 
      gait. The finding of instability in his neck with 
 
      transient impingement on the cervical cord suggested 
 
      that this condition was adding to his problems more 
 
      acutely and perhaps accounted for the progressive 
 
      difficulty within the last months to years.
 
      
 
      Q. And the cause of the neck problem is something that I 
 
      think you said previously that we can~t put our finger 
 
      on, or I think you used the term multifaceted.
 
      
 
      A. Correct.
 
      
 
      Q. Doctor, do you have an opinion to a reasonable degree 
 
      of medical probability as to the cause of Mr. Skeel's 
 
      neck problems?
 
      
 
      A. Yes.
 
      
 
      Q. Okay. And what is that opinion?
 
      
 
      A. That this was a gradually progressive syndrome with 
 
      origins in -- of a degenerative nature, feasibly 
 
      punctuated at times by injuries having occurred as a 
 
      result of his baseline problem with gait and multiple 
 
      falls.
 
      
 
      
 
         ....
 
 SKEEL V. KWIK SHOPS, INC.
 
 Page 5
 
 
 
 
 
 
 
 Q. Did he also -- let me ask you to assume that in the course of his employment 
 
 at Xwik Shop he was lifting items in the neighborhood of 40 to 60 pounds.
 
 
 
 A. I was not aware of that.
 
 
 
 Q. And I think that would consist of slurpy jars and Coca-Cola cases. Do you 
 
 have an opinion to a reasonable degree of medical certainty as to whether or 
 
 not lifting of items of between 40 and 60 pounds and repetitive squatting, 
 
 bending over, stooping, would those be the kinds of activities that would cause 
 
 compression of his spinal cord?
 
 
 
 A. As a retrospective analysis, given the pathology which was found, those 
 
 positions would cause abnormal neck movement, impinging upon the cord, yes.
 
 
 
 Q. Well, are you saying -- let me put it this way: Would the -- would those 
 
 falls then, would they be a significant factor or an accelerating factor in his 
 
 cervical instability?
 
 
 
 A. Yes.
 
 
 
 Q. And the falls were caused, I take it, from the intermittent compression of 
 
 the spinal cord?
 
 
 
 A. Our opinion, after finding instability, was that one could not help but 
 
 acknowledge pre-existing factors leading to a tendency toward falling. However, 
 
 certain aspects of his history such as progressive neurologic deficit suggested 
 
 a new factor, and once cervical instability was found with what we felt was 
 
 inciting factors, such as accompaniment of near-syncopal episodes precipitating 
 
 falls evidently --
 
 
 
         ....
 
 
 
 Q. Doctor, I'm hearing that the syncope, or the fainting episodes, are directly 
 
 connected with the impingement of the spinal cord; is that correct?
 
 
 
 A. In absence of other evidence we felt so, yes.
 
 
 
 Q. So, in other words, the reason that Mr. Skeel fell was because he had a 
 
 problem with his neck and impingement on the cord which would cause him to be 
 
 faint, he would fall, this might give additional damage to the neck, which 
 
 would -- we kind of get a vicious circle; am I stating this correctly?
 

 
 
 
 
 
 
 
 SKEEL V. KWIK SHOPS, INC.
 
 Page 6
 
 
 
 
 
 A. That's correct.
 
 
 
 Q. Would you expect a person like Mr. Skeel that had the ankle and knee and toe 
 
 problems and muscle and balance problems that resulted in frequent falling for 
 
 a long number of years to do damage to his neck such as the damage that you 
 
 found?
 
 
 
 A. It's quite feasible.
 
 
 
         ....
 
 
 
 Q. But you did say that you find really discrete types of falls in the sense 
 
 that some falls could have been caused by the childhood disease, whatever it 
 
 was, and the other falls could have been caused by the impingement of the 
 
 spinal cord, right?
 
 
 
 A. At least once we had Dr. Johnson's input that there appeared to have been 
 
 another entity as a causation of falling.
 
 
 
 Q. And as I understand your testimony, Doctor, the bending and lifting and 
 
 stooping as explained to you by Delmer Skeel, together with the assumption I 
 
 have asked you to make about the weight of the objects that he was lifting, 
 
 caused an impingement of his spinal cord which in turn caused his cervical 
 
 instability; is that a fair statement?
 
 
 
 A. With high probability, yes.
 
 
 
 Q. With high probability?
 
 
 
 A. Yes.
 
 
 
      Dr. Brakel indicated that claimant's falls were due to a long-established 
 
 difficulty of deformity of claimant's legs and instability in his neck with 
 
 transient impingement on the cervical cord. At one point in his testimony Dr. 
 
 Brakel opined that one cervical problem was multifaceted because it was 
 
 degenerative "feasibly" punctured by problems with gait and multiple falls. The 
 
 doctor later seems to indicate that it was probable that the impingement of the 
 
 spinal cord was caused by bending, lifting and stooping.
 
 
 
 Clearly, the proximate cause of claimant's falls were the difficulty of 
 
 deformity of his legs and the instability in his neck. Also, clearly the 
 
 deformity of claimant's legs was not work-related. The instability in 
 
 claimant's neck had several possible origins. These origins were claimant's 
 
 degenerative
 

 
 
 
 
 
 
 
 SKEEL V. KWIK SHOPS, INC.
 
 Page 7
 
 
 
 
 
 
 
 condition, claimant's multiple falls, claimant's gait and 
 
 claimant's work activities of bending, lifting and stooping. Only 
 
 claimant's work activities of bending, lifting and stooping were 
 
 work-related. Given what may be inconsistencies in Dr. Brakel's 
 
 opinions and given the variety of possible plausible causes, it 
 
 cannot be said that the probable cause of claimant's neck 
 
 instability was work-related. Claimant has not proved that the 
 
 instability of his neck was work-related. Likewise, claimant has 
 
 not proved that his employment was the probable cause of a fall, 
 
 if any, at work. Claimant's work was not a substantial 
 
 contribution to claimant's fall, if any.
 
 
 
      In summary, claimant has not proved that he sustained an 
 
 injury that arose out of and in the course of his employment. He 
 
 has not proved that a cervical instability was probably work
 
 related. He has not proved that his work was a substantial 
 
 contribution to causing him to fall. It is also worth noting that 
 
 the patient histories provided by claimant to the various medical 
 
 care providers do not substantiate his version of the fall.]
 
 
 
 As of the date of the hearing, claimant had not returned to work. 
 
 He was receiving Social Security disability benefits. His 
 
 physical condition had deteriorated some, as he stated he could 
 
 not walk without assistance, but could stand in limited 
 
 quantities of time.
 
 
 
                        CONCLUSIONS OF LAW
 
 
 
      Claimant has the burden of proving by a preponderance of the 
 
 evidence that he received an injury on or about March 25, 1989 
 
 which arose out of and in the course of his employment. McDowell 
 
 v. Town of Clarksville, 241 N.W.2d 904 (Iowa 1976); Musselman v. 
 
 Central Telephone Co., 261 Iowa 352, 154 N.W.2d 128 (1967).
 
 
 
 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 (1963) 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).
 

 
 
 
 
 
 
 
 SKEEL V. XWIX SHOPS, INC.
 
 Page 8
 
 
 
 
 
 A determination that an injury "arises out of" the employment 
 
 contemplates a causal connection between the conditions under 
 
 which the work was performed and the resulting injury; i.e., the 
 
 injury followed as a natural incident of the work. Musselman, 261 
 
 Iowa 352, 154 N.W.2d 128 (1967); Reddick v. Grand Union Tea Co., 
 
 230 Iowa 108, 296 N.W. 800 (1941).
 
 
 
 Claimant's alleged fall or falls are in the category of 
 
 idiopathic falls. "To shift the loss in the idiopathic fall cases 
 
 to the employment, then it is reasonable to require a showing of 
 
 at least some substantial employment contribution to the harm." I 
 
 Larson, Workmen's compensation law, 12.14 page 3-369.
 
 
 
 WHEREFORE, the decision of the deputy is affirmed.
 
 
 
                              ORDER
 
 
 
      THEREFORE, it is ordered:
 
 
 
 That claimant take nothing from these proceedings.
 
 
 
 hat claimant shall pay the costs of the appeal including 
 
 transcription of the hearing.
 
 
 
 That claimant and defendants shall pay their own respective costs 
 
 for all other costs.
 
 
 
 
 
 Signed and filed this 31st day of August, 1992.
 
 
 
 
 
 
 
 
 
 
 
                                        BYRON K. ORTON
 
                                   INDUSTRIAL COMMISSIONER
 
 
 

 
 
 
 
 
Page 9 
 
 
 
           COPIES TO:
 
 
 
            Mr. Michael J. McCarthy
 
            Attorney at Law
 
            701 Kahl Building
 
            Davenport, Iowa  52801
 
            
 
            Mr. Elliott R. McDonald. Jr.
 
            Attorney at Law
 
            P O Box 2746
 
            Davenport, Iowa  52809
 
            
 
 
 
 
 
 
 
 
 
 
 
            
 
 
 
 
 
 
 
 
 
 
                                                1101
 
                                                Filed August 31, 1992
 
                                                BYRON K. ORTON
 
                               
 
                    BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
 
 
 DELMER SKEEL,
 
 
 
      Claimant,
 
 
 
 vs.
 
                                                File No. 946051
 
 KWIK SHOPS, INC.,
 
                                                 A P P E A L
 
      Employer,
 
                                               D E C I S I O N
 
 and
 
 
 
 CNA INSURANCE COMPANIES,
 
 
 
      Insurance Carrier, 
 
      Defendants.
 
      
 
      
 
 1101
 
 
 
 Claimant, who had contracted undulant fever as a teenager and as 
 
 a result was left with very weak lower extremities and an 
 
 inability to walk unassisted, allegedly fell at work. Claimant 
 
 had a history of falls and the falls were attributable to 
 
 difficulty of deformity of his legs and impingement on the 
 
 cervical cord. The impingement on the cervical cord had a variety 
 
 of possible origins, only one of which was work-related. It was 
 
 not probable that instability of claimant's neck was caused by 
 
 his employment.
 
 
 
 Claimant did not prove an injury arising out of and in the course 
 
 of his employment.
 
 
 
 
            
 
            Page   1
 
            
 
            
 
            
 
            
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            DELMAR SKEEL,                 :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :      File No. 946051
 
            KWIK SHOPS, INC.,             :
 
                                          :    A R B I T R A T I O N
 
                 Employer,                :
 
                                          :      D E C I S I O N
 
            and                           :
 
                                          :
 
            CNA INSURANCE COMPANIES,      :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
                 
 
            
 
                                   introduction
 
            
 
                 This is a proceeding in arbitration brought by Delmar 
 
            Skeel, claimant, against Kwik Shop, Inc., employer, and CNA 
 
            Insurance Companies, insurance carrier.  Mr. Skeel has 
 
            alleged that he sustained a work-related injury on March 25, 
 
            1989.
 
            
 
                 A hearing was held in Davenport, Iowa on August 22, 
 
            1991, and the case was fully submitted at the close of the 
 
            hearing.  The record consists of the testimony of Delmar 
 
            Skeel, Amanda Powell, and Judy Zindel; joint exhibits A-D; 
 
            and, claimant's exhibit 1.
 
            
 
                                      issues
 
            
 
                 The parties submitted the following issues for 
 
            determination at the time of the hearing:
 
            
 
                 1.  Whether claimant received an injury on March 25, 
 
            1989 which arose out of and in the course of his employment;
 
            
 
                 2.  Whether there is a causal relationship between the 
 
            alleged injury and claimant's disability;
 
            
 
                 3.  Whether claimant is entitled to temporary total 
 
            disability or healing period benefits, or permanent partial 
 
            or permanent total disability benefits;
 
            
 
                 4.  Whether claimant is entitled to medical benefits as 
 
            governed by Iowa Code section 85.27.
 
            
 
                 Defendants have raised the affirmative defense of 
 
            whether claimant gave timely notice as provided for under 
 
            Iowa Code section 85.23.
 
            
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
                                 findings of fact
 
            
 
                 Claimant, born on September 9, 1932, was 59 years old 
 
            at the time of the hearing.  He attended school through the 
 
            eight grade, and completed two years of high school through 
 
            correspondence courses.  He has had no other formal 
 
            education.
 
            
 
                 Claimant began working the defendant, or its 
 
            predecessor in interest, for approximately ten years until 
 
            the date of the alleged injury on March 25, 1989.  Claimant 
 
            has not worked since this date.
 
            
 
                 Claimant worked as a night clerk in the convenience 
 
            store, and his duties included waiting on customers, 
 
            stocking the shelves and ice machine, and cleaning the 
 
            fountain machine.  Claimant stated that he had to lift items 
 
            weighing between 25 pounds and 60 pounds.  Claimant was an 
 
            hourly employee, and earned $5.35 per hour.  He has received 
 
            several appreciation awards for his work, and has undergone 
 
            manager training.
 
            
 
                 When claimant was 17 years of age, he contracted 
 
            undulant fever.  The effects of the undulant fever left him 
 
            with a dropped ankle, a decrease in muscle tone and loss of 
 
            balance in his lower extremities.  Claimant is unable to 
 
            walk without some type of assistance, and has a severely 
 
            impaired sense of balance.
 
            
 
                 At the hearing, claimant described his work-related 
 
            incident in the following manner.  One day in late January 
 
            or February, claimant stated that he fell as he was mopping 
 
            a newly rewaxed floor.  When he fell, claimant stated he 
 
            believed he hit his neck on a lower shelf.  Claimant stated 
 
            that his neck "stung", he rolled over onto his knees, got up 
 
            and continued working.
 
            
 
                 After finishing his shift, claimant proceeded to make 
 
            an appointment with Wilkens Chiropractic Clinic in 
 
            Bettendorf, Iowa.  He received treatment from Dr. Wilkinson 
 
            on two occasions, and was then referred to Arlo Brakel, 
 
            M.D., a microvasuclar neurosurgeon.  Dr. Brackel's notes 
 
            reveal the following information:
 
            
 
                 January-February he went to get out of bed, but he 
 
                 couldn't feel his legs.  He has had pain in his 
 
                 lumbar back area constant [sic] for 3 years.  The 
 
                 things that really concerned him was that his gait 
 
                 has gotten much worse and he has been having 
 
                 trouble moving.  He also has had numbness and 
 
                 tingling in his feet with severe leg cramps.  He 
 
                 also has had an increase in falling. . . . He does 
 
                 complain of dizziness at which time he states he 
 
                 passes out.
 
            
 
            (Joint Exhibit B, page 10).
 
            
 
                 Claimant was scheduled to undergo a CT of the brain and 
 
            cervical x-rays.  The results of the CT scan were normal, 
 
            but claimant presented with an unusual cervical spine series 
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            which notes retrolisthesis of C3 on C4.  Claimant then 
 
            underwent a myleogram, and as a result was scheduled for an 
 
            anterior interbody fusion.  This surgery was performed on 
 
            April 18, 1989.
 
            
 
                 The hospital records from Mercy Hospital in Davenport, 
 
            Iowa, indicate that claimant was experiencing progressive 
 
            disuse of the lower extremities and sharp pains in the neck 
 
            and head region, as well as intermittent syncopal and near 
 
            sign syncopal episodes.  Claimant related a lifelong history 
 
            of spastic paraparesis.  Additionally, claimant stated that 
 
            he had been having significant worsening of his gait over a 
 
            number of weeks prior to the admission, with numbness and 
 
            tingling in his feet and severe leg cramps.  Claimant's 
 
            history noted that he had had a number of falls at which 
 
            time he states some were precipitated by certain movements 
 
            of his neck.  (Jt. Ex. C, pp. 17-21).
 
            
 
                 The surgical notes which described the operation also 
 
            contained a patient history:
 
            
 
                 In the months of January and February of 1989, the 
 
                 patient found several instances of inability to 
 
                 feel his legs when attempting to arise out of bed.  
 
                 He had noted a progressive difficulty with low 
 
                 back pain over a three year period, but had seen a 
 
                 more rapidly progressive deterioration of his 
 
                 gait.  He had had intermittent trouble moving and 
 
                 had experienced a progressive syndrome of 
 
                 increasing numbness and tingling in his feet and 
 
                 cramping of his legs.  He had had episodes of 
 
                 falling which seemed to be more of a collapse 
 
                 syndrome with a collapse of his legs and syncope 
 
                 when holding his head in extension.
 
            
 
            (Jt. Ex. C, p. 30).
 
            
 
                 On May 4, 1990, Dr. Brakel, who had been treating 
 
            claimant since March of 1989 and who performed the surgery, 
 
            was of the following opinion:
 
            
 
                 He stated that he had a prior history of 
 
                 difficulty with his legs which he felt was related 
 
                 to an infection as a teenager.  He stated that 
 
                 this was undulant fever.  He had been stable for a 
 
                 number of years, but noted that within the year or 
 
                 two prior to our evaluation walking had become 
 
                 progressively impaired.  Spasticity in his legs 
 
                 was worsening, he specifically noted that when he 
 
                 extended his neck, or was squatting down under a 
 
                 counter he had sudden loss of all muscle tone and 
 
                 had fallen to the floor.  He denied any loss of 
 
                 consciousness.  He had fallen a number of times at 
 
                 work.
 
            
 
                    ....
 
            
 
                 To reiterate, this patient has had cervical 
 
                 instability, perhaps exacerbated by a number of 
 
                 falls at the work place.  This certainly was a 
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
                 predecessor of injury by his apparent fever but 
 
                 the impingement on his spinal cord has created 
 
                 further damage.
 
            
 
            (Jt. Ex. B, pp. 15-16).
 
            
 
                 Dr. Brakel concluded that claimant's total impairment 
 
            was 50 percent of the body as a whole.  (Jt. Ex. B, p. 15).
 
            
 
                 As of the date of the hearing, claimant had not 
 
            returned to work.  He was receiving Social Security 
 
            disability benefits.  His physical condition had 
 
            deteriorated some, as he stated he could not walk without 
 
            assistance, but could stand in limited quantities of time.
 
            
 
                         analysis and conclusions of law
 
            
 
                 The first issue to be discussed is whether claimant 
 
            received an injury on March 25, 1989 which arose out of and 
 
            in the course of his employment.
 
            
 
                 The claimant has the burden of proving by a 
 
            preponderance of the evidence that the alleged injury 
 
            actually occurred and that it arose out of and in the course 
 
            of employment.  The words "arising out of" refer to the 
 
            cause or source of the injury.  The words "in the course of" 
 
            refer to the time, place and circumstances of the injury.  
 
            Sheerin v. Holin Co., 380 N.W.2d 415, 417 (Iowa 1986); 
 
            McClure v. Union, et al., Counties, 188 N.W.2d 283, 287 
 
            (Iowa 1971).
 
            
 
                 Professor Larson, in discussing the arising out of 
 
            element of an injury suggests three categories of risk.  The 
 
            first category are risks distinctly associated with 
 
            employment which are universally compensable.  The second 
 
            category are risks personal to the claimant which are 
 
            universally noncompensable.  The third category are neutral 
 
            risks which generate the most controversy.  I Larson, 
 
    1/210.31(a        Copies To:
 
            
 
            Mr Michael J McCarthy
 
            Attorney at Law
 
            701 Kahl Building
 
            Davenport Iowa 52801
 
            
 
            Mr Elliott R McDonald Jr
 
            Attorney at Law
 
            PO Box 2746
 
            Davenport Iowa 52809
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                      5-1101
 
                      Filed October 3, 1991
 
                      PATRICIA J. LANTZ
 
            before the iowa industrial commissioner
 
            ____________________________________________________________
 
		                      :
 
            DELMAR SKEEL,	      :
 
                      		      :
 
                 Claimant, 	      :
 
                      		      :	
 
		            vs.       :
 
                		      :      File No. 946051
 
            KWIK SHOPS, INC.,         :
 
 		                      :    A R B I T R A T I O N
 
                 Employer,	      :
 
		                      :      D E C I S I O N
 
		            and       :
 
                		      :
 
            CNA INSURANCE COMPANIES,  :
 
                      		      :
 
                 Insurance Carrier,   :
 
                 Defendants.          :
 
            ___________________________________________________________
 
            
 
            5-1101
 
            Claimant, who had contracted undulant fever as a teenager 
 
            and as a result was left with very weak lower extremities 
 
            and an inability to walk unassisted, fell at work.
 
            Held: Claimant's employment did not subject him to a risk 
 
            greater than nonemployees.  The cause of the fall did not 
 
            bear any special relationship to the work.