BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
_________________________________________________________________
 
            
 
DIANE YOCKEY,    
 
            
 
     Claimant,   
 
            
 
vs.         
 
                                     File No. 953110
 
IOWA DEPT. OF TRANSPORTATION,   
 
                                       A P P E A L
 
     Employer,   
 
                                     D E C I S I O N
 
and         
 
            
 
STATE OF IOWA,   
 
            
 
     Insurance Carrier,    
 
     Defendant.       
 
_________________________________________________________________
 
The record, including the transcript of the hearing before the deputy 
 
and all exhibits admitted into the record, has been reviewed de novo on 
 
appeal.  The decision of the deputy filed May 25, 1994 is affirmed and 
 
is adopted as the final agency action in this case.
 
 
 
Claimant and defendants shall share equally the costs of the appeal 
 
including transcription of the hearing.
 
 
 
Signed and filed this ____ day of February, 1995.      
 
                             ________________________________                 
 
                             BYRON K. ORTON           
 
                             INDUSTRIAL COMMISSIONER
 
 
 
Copies To:
 
 
 
Mr. Bruce H. Stoltze
 
Attorney at Law
 
550 39th St  STE 200
 
Des Moines  IA  50312
 
 
 
Ms. Julie Burger
 
Assistant Attorney General
 
Iowa Dept of Transportation
 
800 Lincoln Way
 
Ames  IA  50010
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
                              1801; 1803; 2900
 
                              Filed February 21, 1995
 
                              Byron K. Orton
 
 
 
         BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
____________________________________________________________
 
DIANE YOCKEY, 
 
          
 
     Claimant, 
 
          
 
vs.       
 
                                     File No. 953110
 
IOWA DEPT. OF TRANSPORTATION, 
 
                                       A P P E A L
 
     Employer, 
 
                                     D E C I S I O N
 
and       
 
          
 
STATE OF IOWA,     
 
          
 
     Insurance Carrier,  
 
     Defendants.    
 
___________________________________________________________
 
1801; 1803
 
Claimant was awarded temporary total disability benefits as a result of 
 
a fall from a pick up truck.  Claimant missed several days of work 
 
subsequent to the work injury.  The authorized treating physician 
 
restricted claimant to light duty.  She performed light duty from June 
 
25, 1990 through July 13, 1990.  On July 13, 1990, claimant was 
 
terminated from her employment.  The unrefuted testimony during the 
 
hearing established that claimant was told she was terminated because 
 
she could not perform the job adequately.
 
 
 
Claimant was also entitled to temporary total disability benefits from 
 
the date she was terminated until she was able to return to work in 
 
substantially similar employment.
 
 
 
2900
 
Prior to taking testimony, defendant made a motion to exclude certain 
 
medical evidence.  Claimant resisted the motion.  Defendant reported 
 
she had received the evidence only seven days prior to the date of the 
 
back up hearing date.  Defendant also argued that the evidence in 
 
question was prejudicial to defendant.  
 
 
 
Held that the evidence, if admitted, would substantially prejudice 
 
defendant.  The evidence, in so far as it discussed a permanent 
 
impairment rating was prejudicial to defendant and was excluded from 
 
the record.
 
 
 
 
         
 
         
 
         
 
         
 
         
 
                    BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         ____________________________________________________________
 
                                       :
 
         DIANE YOCKEY,                 :
 
                                       :
 
              Claimant,                :
 
                                       :
 
         vs.                           :
 
                                       :         File No. 953110
 
         IOWA DEPT. OF TRANSPORTATION, :
 
                                       :      A R B I T R A T I O N
 
              Employer,                :
 
                                       :         D E C I S I O N
 
         and                           :
 
                                       :
 
         STATE OF IOWA,                :
 
                                       :
 
              Insurance Carrier,       :
 
              Defendant.               :
 
         ___________________________________________________________
 
         
 
         
 
                              STATEMENT OF THE CASE
 
         
 
              This is a proceeding in arbitration upon the petition of 
 
         claimant, Diane Yockey, against her former employer, the Iowa 
 
         Department of Transportation, self-insured employer.  The case 
 
         was heard on May 17, 1994 at the office of the industrial 
 
         commissioner in Des Moines, Iowa.  The record consists of the 
 
         testimony of claimant.  The record also consists of joint 
 
         exhibits 1-6; claimant's exhibit 1, with the exception of any 
 
         paragraphs dealing with permanent impairment ratings; and 
 
         defendant's exhibit 1.
 
         
 
              Prior to the commencement of the hearing, defendant filed a 
 
         motion to exclude documents.  Claimant filed a resistance.  The 
 
         deputy industrial commissioner determined prejudice would result 
 
         if claimant could introduce evidence regarding a permanent 
 
         impairment rating, since the evidence had only been obtained on 
 
         May 10, 1994.  
 
         
 
              Claimant made an oral request to keep the record open so 
 
         that a deposition could be taken of John A. Hurley, M.D.  
 
         Defendant resisted claimant's oral motion.  The deputy determined 
 
         the record would not remain open for the purpose of taking 
 
         additional testimony.
 
         
 
                                      ISSUES
 
         
 
              The issues to be determined are:  1) whether there is a 
 
         causal relationship between the work injury and any temporary or 
 
         permanent disability; and 2) whether claimant is entitled to any 
 
         healing period or to any permanent partial disability benefits.
 
         
 
                                 FINDINGS OF FACT
 
         
 
              The deputy, having heard the testimony and considered all of 
 

 
         
 
         Page   2
 
         
 
         
 
         
 
         the evidence, finds:
 
         
 
              Claimant is the 39-year-old widowed mother of four children.  
 
         She did not receive a high school diploma.  However, she does 
 
         have her GED.  Claimant also has some training in the field of 
 
         cosmetology.  She did not complete her course of study in this 
 
         area.  She needs three additional months of schooling.  
 
         Consequently, she does not hold a valid license as a 
 
         cosmetologist.
 
         
 
              Claimant has held a variety of positions in food service and 
 
         retailing.  She has also engaged in assembly line work.
 
         
 
              Her earnings have been at the low end of the wage scale.  
 
         Usually claimant has earned in the $4.50 to $5.00 per hour pay 
 
         scale.
 
         
 
              Currently, claimant is employed at a casino.  She works in 
 
         "the bank section" of the casino.  She started as a cashier where 
 
         she was paid $6.00 per hour.  Because of her excellent work, she 
 
         has received several raises.  At the time of the hearing claimant 
 
         was earning $8.50 per hour.  This was the highest wage scale 
 
         which claimant had ever achieved in her career.
 
         
 
              With respect to the issues in this case, claimant commenced 
 
         employment in February of 1990.  She was hired as a heavy 
 
         equipment operator.  Claimant described her duties as involving 
 
         heavy physical labor.  Her duties included those duties which 
 
         were listed in joint exhibit 4-4.  Some of those duties involved:
 
         
 
                       1.  kneeling
 
                       2.  climbing
 
                       3.  lifting chunks of concrete
 
                       4.  stooping
 
                       5.  crawling
 
                       6.  carrying signs
 
                       7.  handling and changing tires
 
                       8.  cutting trees
 
                       9.  shoveling snow
 
                      10.  driving trucks with manual transmissions and                     
 
                            clutches
 
         
 
              On the date in question, claimant was handling a large 
 
         orange traffic sign which was mounted in her pickup truck.  It 
 
         was an extremely windy day.  While claimant was in the bed of the 
 
         truck, a huge gust of wind blew the sign into claimant and she 
 
         fell backwards from the bed of the truck.  Claimant landed flat 
 
         on her back.
 
         
 
              The injury was unwitnessed.  As a result, claimant picked 
 
         herself up from the pavement, got into her truck and she drove to 
 
         the maintenance shop.  She did not believe she had been injured 
 
         in the fall.  Claimant did not report the work injury to anyone 
 
         on that day.  Claimant indicated she had scraped her right 
 
         forearm in the fall.
 
         
 
              On the following day, claimant reported her work injury to a 
 
         co-employee, Clifton Clever.  Mr. Clever was not a member of 
 

 
         
 
         Page   3
 
         
 
         
 
         
 
         management.
 
         
 
              Claimant testified that with each day she began to 
 
         experience increasing back pain.  She reported that her back hurt 
 
         in the area between her shoulders and the pain shot down her 
 
         back.  Claimant attempted "home remedies" to alleviate her pain.  
 
         Claimant took aspirin, she used a heating pad, she had a neighbor 
 
         walk on her back, and she soaked in a tub.  None of the usual 
 
         remedies was helpful.
 
         
 
              Because claimant's condition did not improve, she sought 
 
         emergency room treatment at Burgess Memorial Hospital in Onawa, 
 
         Iowa.  The record indicates that claimant went to the emergency 
 
         room on June 19, 1990.  The hospital notes, for that date, 
 
         provide in relevant portion:
 
         
 
                S:  Ms. Yockey is a 35-year-old white female who  
 
              presents to the ER at 0100 on 6-19-90, with complaints 
 
              of back pain per one week's duration.  She injured her 
 
              back approximately one week ago and [sic] working on a 
 
              sign.  She had a friend walk on her back at that time 
 
              and she states it popped her back in about 10 different 
 
              places.  She felt better initially, but the pain began 
 
              to get worse and finally became severe this evening.  
 
              She states she has increased pain with a deep breath as 
 
              well as with twisting, lying down and sitting....
 
         
 
                 O:  Ribs are essentially nontender to palpation, no 
 
              increaed [sic] pain with lateral compression of 
 
              thoracic cage, however anterior posterior compression 
 
              reproduces the pain.  Minimal tenderness on palpation 
 
              of the fourth (unreadable)...
 
         
 
                 q. 8 hours x 5 days #15.  Called to Stangel Pharmacy 
 
              message machine.  Tab 2 800 mg. MOtrin [sic] starter 
 
              dose given in ER.  Patient is given a work profile 
 
              limiting her to 25 lbs. lifting with no repetitive 
 
              twisting, bending, x 5 days.  She is to return to 
 
              clinic in 5 days if needed or if pain becomes worse, 
 
              call the clinic for an appointment sooner.  6-21-90/m.
 
         
 
         (Exhibit 3, pages 2-3)
 
         
 
              Two days later claimant returned to Garred Medical Clinic, 
 
         P.C., for follow up care.  The clinical note indicated:
 
         
 
                 S:  Patient comes to the clinic today for recheck of 
 
              her back pain.  She complains of continuing pain 
 
              although it is getting better with her 
 
              anti-inflammatories.  She also complains of epigastric 
 
              pain radiating to her back particularly when 
 
              swallowing.  The pills seem to get stuck in the 
 
              epigastric area before going down.  She denies any 
 
              previous history of peptic ulcer or hiatal hernia 
 
              reflux.
 
         
 
                 O:  Thoracic spinous processes T4/5 and 9/10 tender 
 
              on palpation with pain on palpation of paraspinal 
 

 
         
 
         Page   4
 
         
 
         
 
         
 
         
 
              muscles; however, this is less than previous exam.  
 
              Abdominal exam with mild pain on palpation of 
 
              epigastric area in right upper quadrant.  No guarding 
 
              rebound, or masses noted.  Liver function studies and 
 
              amylase within normal limits.
 
         
 
         (Ex. 3, p.4)
 
         
 
              X-rays of claimant's back were ordered.  The x-rays were 
 
         taken at Burgess Memorial Hospital.  The x-ray report is listed 
 
         as joint exhibit 4-1.  Most of the report is illegible.  However, 
 
         it appears to the undersigned deputy industrial commissioner that 
 
         the final sentence states:  "IMPRESSION:  1) Mildly increased 
 
         degenerative changes, T9-T10."
 
         
 
              Gerard J. Stanley, M.D., restricted claimant's activities.  
 
         Initially, claimant was restricted to:  "No lifting greater than 
 
         25 lb or repetative [sic] bending, lifting, or twisting for 5 
 
         days-  Return to clinic as needed for follow up."  (Ex. 4, p. 2)
 
         
 
              Dr. Stanley modified the restrictions.  He indicated that:
 
         
 
              limited duty; no heavy lifting (25 lb.)  No standing 
 
              etc. I crossed of [sic] a job description.  May do 
 
              circled items /c limitations listed.
 
         
 
                       x 2 wks
 
         
 
                       Return to work 25 June 90
 
         
 
         (Ex. 4, p. 3)
 
         
 
              Claimant was thus precluded from engaging in operating 90 
 
         pound jackhammers; lifting chunks of concrete to be loaded or 
 
         unloaded; crawling inside circular and box culverts; carrying 
 
         signs and wood posts; handling and changing tires; and cutting 
 
         trees and brush with axes and chainsaws.
 
         
 
              On July 7, 1990, claimant returned to the clinic.  Again she 
 
         was seeking follow up care.  The clinical note for that date 
 
         indicated that:
 
         
 
                 Patient returns to the clinic today for followup of 
 
              her back pain and gastritis.  She states that the back 
 
              pain has improved somewhat.  She is having no current 
 
              problems with her gastritis.
 
         
 
                 O:  Able to heel-toe walk quite well.  Straight leg 
 
              raise is negative.  Figure 4 test negative.  Mild pain 
 
              right sciatic groove with palpation.  Tender to  
 
              palpation over the posterior superior right iliac crest 
 
              and S1 joint.  There are small trigger points noted 
 
              along the paraspinal muscles lumbar to thoracic, left 
 
              and right.  DTR's are equal and 1-2+ bilateral, patella 
 
              and ankle jerk.
 
         
 
                 A:  Back pain slowly resolving.
 
         
 

 
         
 
         Page   5
 
         
 
         
 
         
 
         
 
                 P:  Will start Flexeril 10 mg. 1 tid x. 10 days.  
 
              Note to employer to continue duty limitations x. 2 
 
              weeks.  She was referred to physical therapy for 
 
              Williams stretching exercises with heat, cold or 
 
              ultrasound as needed.  Return to clinic in two weeks 
 
              for followup.
 
         
 
         (Ex. 4, p. 5)
 
         
 
              Claimant participated in physical therapy.  Roger Svec, LPT, 
 
         noted the following relative to claimant's treatment:
 
         
 
                A: This patient seemed to be very irritated at T4, 
 
                   especially with secondary muscle spasm surrounding 
 
                   this area.
 
         
 
                 STG:  1)  Increase active range of motion,                            
 
              especially in rotation.
 
         
 
                       2)  Decrease pain in thoracic back area.
 
         
 
                P: Continue three x weekly for e. stim. and ice as       
 
                   well as ultrasound and continued evaluation.
 
         
 

 
         
 
         Page   6
 
         
 
         
 
         
 
         
 
         (Ex. 5)
 
         
 
              Claimant returned to work in a light duty capacity on June 
 
         25, 1990.  She testified she was able to complete her light 
 
         duties.  Claimant's restrictions were never lifted by the 
 
         authorized treating physician, Dr. Stanley.
 
         
 
              However, on July 13, 1990, claimant's employment was 
 
         terminated.  During questioning from the deputy industrial 
 
         commissioner, claimant indicated she was told she was terminated 
 
         because she could not do her job properly.  At the time of her 
 
         termination, claimant was still a probationary employee.
 
         
 
              She remained unemployed from July 13, 1990 until January of 
 
         1991 when she commenced employment with River Sales.  While she 
 
         was employed at River Sales, claimant testified she engaged in 
 
         heavy lifting.  At times, claimant testified she lifted more than 
 
         25 pounds in her position at River Sales.
 
         
 
              Several months later, John A. Hurley, M.D., of the Division 
 
         of Rheumatology at Creighton University, examined claimant.  The 
 
         physician authored a report dated September 18, 1990.  In his 
 
         report Dr. Hurley opined:
 
         
 
              Physical Exam reveals no evidence of peripheral active 
 
              synovial disease.  There is some reproduction of pain 
 
              in the thoracic spine on extremes of lateral rotation 
 
              and bending of the cervical spine.  Rotation of the 
 
              torso does reproduce some of the pain.  Toe touching 
 
              does not bring on any pain.
 
         
 
              There is some tenderness on palpation of the 
 
              mid-thoracic spinous processes as well as the 
 
              perispinal musculature.
 
         
 
              Impression:
 
         1.  Soft tissue injury - secondary to accident.
 
         
 
              Comments:  Dr. Mock, I think Mrs. Yockey has some soft 
 
              tissue injury.  I have taken the liberty of reviewing 
 
              her x-ray, and I do not see any change as compared to 
 
              several years ago.  I do not see any vertebral 
 
              compression fractures.  There is some very mild 
 
              degenerative arthritis that I do not think is 
 
              associated with her fall.  I think most of her pain is 
 
              soft tissue in nature and, as such, should improve 
 
              although this sometimes takes many months.
 
         
 
              From a symptomatic standpoint, I have taken the liberty 
 
              of giving her Ansaid 100 mg t.i.d. and started her on 
 
              Flexeril to be taken at nighttime.
 
          
 
         (Ex. 6, pp. 1 & 2)
 
         
 
              In January of 1993, claimant again saw  Dr. Hurley.  The 
 
         physician authored a report.  In it, Dr. Hurley opined:
 
         
 
                 She states that she continues to have pain, but that 
 

 
         
 
         Page   7
 
         
 
         
 
         
 
              it is not as severe at her current job, because of the 
 
              fact that she can alternate positions.
 
         
 
                 The pain is located in the interscapula area and 
 
              does increase with prolonged sitting or standing.  The 
 
              pain will also bother her at nighttime and has awakened 
 
              her on occasion.  The pain is helped somewhat by 
 
              Tylenol, but it does not completely subside with this.  
 
              There was no history of back discomfort or pain prior 
 
              to this accident.
 
         
 
                 On today's evaluation, there is no evidence of 
 
              peripheral synovitis in the upper or lower extremities 
 
              or cervical spine.  Neurological exam is normal.
 
         
 
                 Examination of the back reveals a normal contour.  
 
              There is no evidence of perispinal spasm.  There is 
 
              some tenderness upon palpation over the spine processes 
 
              in the inter scapula area between approximately T-3 and 
 
              T-6.  Flexion of the back is done without pain.  
 
              Lateral bending of the back is accomplished with only 
 
              minimal pain.  Rotation, however, is accomplished with 
 
              full range of motion, but with pain.
 
         
 
                 Impression:  Interscapular pain-secondary to 
 
              accident which occurred in June of 1990.
 
         
 
                 X-ray was taken today and was compared to X-ray of 
 
              6-90 and 8-89.  There are essentially no changes.  
 
              There continues to be some mild degenerative changes 
 
              anteriorally at T9, T10 and a mild compression 
 
              deformity at T8.
 
         
 
         (Ex. 6, p. 3)
 
         
 
              Dr. Hurley authored a final report, dated May 4, 1994.  Only 
 
         part of the report was admitted as a portion of the evidence at 
 
         the hearing.  The portion of the report which focused on a 
 
         permanent partial impairment rating was excised from the report.  
 
         The part of the report which summarized previous reports was 
 
         admitted.  In claimant's exhibit 1, Dr. Hurley wrote in part:
 
         
 
              With respect to your particular questions, I offer the 
 
              following:
 
         
 
              1. It is my opinion that her injury arose out of and in 
 
                 the course of her employment.  I also think that 
 
                 this injury is consistent with Ms. Yockey's 
 
                 statement.
 
         
 
              2. I have not seen Ms. Yockey since January of 1993, 
 
                 but would anticipate due to the length of time since 
 
                 the onset of the pain that she has reached maximum 
 
                 medical improvement.
 
         
 
                 Whether Ms. Yockey could return to her previous work 
 
              activity is uncertain to me, again, because of the fact 
 
              that I haven't seen her in well over a year, I would 
 

 
         
 
         Page   8
 
         
 
         
 
         
 
              think that any activity which was associated with a lot 
 
              of physical work such as lifting, bending and twisting 
 
              would certainly aggravate her condition.
 
         
 
                 From the standpoint of restrictions, I would ask Ms. 
 
              Yockey not to be involved in a position that involved a 
 
              lot of lifting, twisting, or bending.  She would also 
 
              do best, I think, from an occupation that would allow 
 
              her to alternate positions as the need arose.
 
         
 
                                CONCLUSIONS OF LAW
 
         
 
              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).
 
         
 
              The burden of proof is on the party asserting the 
 
         affirmative of an issue in an administrative proceeding; "on the 
 
         party who would suffer loss if the issue were not established."  
 
         Wonder Life Co. v. Liddy, 207 N.W.2d 27 (Iowa 1973); Norland v. 
 
         Ides, 412 N.W.2d 904 (Iowa 1987).
 
         
 
              The claimant has the burden of proving by a preponderance of 
 
         the evidence that the injury is a proximate cause of the 
 
         disability on which the claim is based.  A cause is proximate if 
 
         it is a substantial factor in bringing about the result; it need 
 
         not be the only cause.  A preponderance of the evidence exists 
 
         when the causal connection is probable rather than merely 
 
         possible.  Blacksmith v. All-American, Inc., 290 N.W.2d 348 (Iowa 
 
         1980); Holmes v. Bruce Motor Freight, Inc., 215 N.W.2d 296 (Iowa 
 
         1974).
 
         
 
              The question of causal connection is essentially within the 
 
         domain of expert testimony.  The expert medical evidence must be 
 
         considered with all other evidence introduced bearing on the 
 
         causal connection between the injury and the disability.  The 
 
         weight to be given to any expert opinion is determined by the 
 
         finder of fact and may be affected by the accuracy of the facts 
 
         relied upon by the expert as well as other surrounding 
 
         circumstances.  The expert opinion may be accepted or rejected, 
 
         in whole or in part.  Sondag v. Ferris Hardware, 220 N.W.2d 903 
 
         (Iowa 1974); Anderson v. Oscar Mayer & Co., 217 N.W.2d 531 (Iowa 
 
         1974); Bodish v. Fischer, Inc., 257 Iowa 516, 133 N.W.2d 867 
 
         (1965).
 
         
 
              In the case before the undersigned deputy industrial 
 
         commissioner, the claimant has proven there is a nexus between 
 
         claimant's work injury and claimant's back condition.  Dr. 
 
         Stanley and Dr. Hurley provide medical opinions which support 
 
         such a conclusion.  Dr. Stanley had restricted claimant to light 
 
         duty shortly after the work injury.  Dr. Hurley opines in 
 
         claimant's exhibit 1 that claimant's condition is consistent with 
 
         her work injury.
 
         
 
              In cases of doubt, the workers' compensation statute is to 
 
         be liberally construed to extend its benefits to every employee 
 
         who can fairly be brought within it.  Sugared v. Silver Crest 
 
         Golf Club, 256 Iowa 453, 459, 129 N.W.2d 636, 639 (1964).
 

 
         
 
         Page   9
 
         
 
         
 
         
 
         
 
              Claimant has proven by a preponderance of the evidence there 
 
         is a nexus between the work injury and claimant's back condition.  
 
         The next issue she is required to prove is the nature and extent 
 
         of her work injury.  Claimant has failed to establish that she 
 
         has sustained any permanency.  In fact, the evidence supports a 
 
         contrary conclusion.  Claimant does not have any permanent 
 
         impairment.  She has been able to return to work.  She has 
 
         successfully worked as an assembly line worker.  She has also 
 
         been able to find employment as a cashier.  Both positions are 
 
         the types of positions which she had held prior to her work 
 
         injury.  Claimant has testified she has even engaged in lifting 
 
         25 or more pounds during the course of her employment with River 
 
         Sales.
 
         
 
              Claimant is diagnosed as having a soft tissue injury which 
 
         is secondary to her work injury.  Since September of 1990, 
 
         claimant has only sought medical treatment for her back on one 
 
         occasion.  That occasion occurred in January of 1993.  Since 
 
         January of 1993, claimant has had no medical treatment.  During 
 
         the course of the hearing, the undersigned deputy had ample time 
 
         to personally observe claimant.  Throughout the duration of her 
 
         testimony, claimant was able to sit without any apparent 
 
         discomfort or pain.  She did not alternate sitting with standing.  
 
         Nor did claimant squirm in her chair.  It is apparent to this 
 
         deputy that claimant has not sustained any permanent impairment.  
 
         She is not entitled to any permanent partial disability benefits.
 
         
 
              Claimant, on the other hand, has proven that she has 
 
         sustained a temporary total disability.  Section 85.33(1) governs 
 
         the payment of temporary total disability benefits.  The section 
 
         provides:
 
         
 
                 1.  Except as provided in subsection 2 of this 
 
              section, the employer shall pay to an employee for 
 
              injury producing temporary total disability weekly 
 
              compensation benefits, as provided in section 85.32, 
 
              until the employee has returned to work or is medically 
 
              capable of returning to employment substantially 
 
              similar to the employment in which the employee was 
 
              engaged at the time of injury, whichever occurs first.
 
         
 
              Claimant was off work from June 19, 1990 through June 24, 
 
         1990.  She was restricted to light duty by the authorized 
 
         treating physician, Dr. Stanley.  Claimant returned to light duty 
 
         on June 25, 1990.  She worked without apparent problems until she 
 
         was terminated on July 13, 1990.  According to claimant's 
 
         unrefuted testimony, she was informed that she was terminated 
 
         because she could not perform the work in a satisfactory manner.  
 
         At that point in time, claimant was unemployed.  It seems to this 
 
         deputy, claimant was not able to perform even light duty tasks.  
 
         Otherwise, defendant would have allowed claimant to return to 
 
         work.  
 
         
 
              From July 13, 1990 through January 1, 1991, claimant was 
 
         unemployed.  She was not able to secure substantially similar 
 
         employment until January of 1991.  Claimant did not provide the 
 
         exact date on which she commenced her employment with River Sales 
 

 
         
 
         Page  10
 
         
 
         
 
         
 
         
 
         where she worked on the assembly line.  Therefore, for purposes 
 
         of this action, the undersigned deputy determines that claimant 
 
         could not return to substantially similar employment until 
 
         January 2, 1991.  Claimant is entitled to temporary total 
 
         disability benefits from June 19, 1990 through June 24, 1990, and 
 
         from July 13, 1990 through January 1, 1991.  She is entitled to 
 
         25.571 weeks of temporary total disability benefits for that 
 
         period at the stipulated rate of $214.75 per week.
 
         
 
                                      ORDER
 
         
 
              THEREFORE, it is ordered:
 
         
 
              Defendant shall pay unto claimant twenty-five point 
 
         five-seven-one (25.571) weeks of temporary total disability 
 
         benefits at the stipulated rate of two hundred fourteen and 
 
         75/l00 dollars ($214.75) per week for the periods from June 19, 
 
         1990 through June 24, 1990, and from July 13, 1990 through 
 
         January 1, 1991.
 
         
 
              Defendant shall take credit for all benefits previously 
 
         paid.
 
         
 
              Accrued benefits are to be paid in a lump sum together with 
 

 
         
 
         Page  11
 
         
 
         
 
         
 
         
 
         statutory interest at the rate of ten percent (10%) per year 
 
         pursuant to section 85.30, Iowa Code, as amended.
 
         
 
              Defendant shall file a claim activity report as requested by 
 
         this division and pursuant to rule 343 IAC 3.1.
 
         
 
              Costs are taxed to defendant pursuant to rule 343 IAC 4.33.
 
         
 
         
 
         
 
              Signed and filed this ____ day of May, 1994.
 
         
 
         
 
         
 
                                       ______________________________               
 
                                       MICHELLE A. McGOVERN
 
                                       DEPUTY INDUSTRIAL COMMISSIONER
 

 
         
 
         Page  12
 
         
 
         
 
         
 
         
 
         
 
         
 
         
 
         Copies To:
 
         
 
         Mr Bruce H Stoltze
 
         Attorney at Law
 
         550-39th Street, Suite 200
 
         Des Moines, Iowa 50312
 
         
 
         Ms Julie Burger
 
         Mr Noel C Hindt
 
         Assistant Attorney Generals
 
         Iowa Department of Transportation
 
         800 Lincoln Way
 
         Ames, Iowa 50010
 
         
 
 
         
 
 
 
 
 
 
 
 
 
 
 
                                              1801; 1803; 2900
 
                                              Filed May 25, 1994
 
                                              MICHELLE A McGOVERN
 
         
 
                      BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         ____________________________________________________________
 
                   
 
         DIANE YOCKEY,  
 
                   
 
              Claimant, 
 
                   
 
         vs.       
 
                                                 File No. 953110
 
         IOWA DEPT. OF TRANSPORTATION, 
 
                                              A R B I T R A T I O N
 
              Employer, 
 
                                                 D E C I S I O N
 
         and       
 
                   
 
         STATE OF IOWA, 
 
                   
 
              Insurance Carrier,  
 
              Defendants.    
 
         ___________________________________________________________
 
         
 
         
 
         1801; 1803
 
         Claimant was awarded temporary total disability benefits as a 
 
         result of a fall from a pick up truck.  Claimant missed several 
 
         days of work subsequent to the work injury.  The authorized 
 
         treating physician restricted claimant to light duty.  She 
 
         performed light duty from June 25, 1990 through July 13, 1990.  
 
         On July 13, 1990, claimant was terminated from her employment.  
 
         The unrefuted testimony during the hearing established that 
 
         claimant was told she was terminated because she could not 
 
         perform the job adequately.
 
         
 
         Claimant was also entitled to temporary total disability benefits 
 
         from the date she was terminated until she was able to return to 
 
         work in substantially similar employment.
 
         
 
         
 
         2900
 
         Prior to taking testimony, defendant made a motion to exclude 
 
         certain medical evidence.  Claimant resisted the motion.  
 
         Defendant reported she had received the evidence only seven days 
 
         prior to the date of the back up hearing date.  Defendant also 
 
         argued that the evidence in question was prejudicial to 
 
         defendant.  
 
         
 
         The deputy industrial commissioner determined that the evidence, 
 
         if admitted, would substantially prejudice defendant.  The 
 
         evidence, in so far as it discussed a permanent impairment rating 
 
         was prejudicial to defendant and was excluded from the record.
 

 
         
 
 
 
 
 
 
 
 
 
         Claimant made an oral motion to keep the record open after the 
 
         hearing so that a deposition of a medical expert could be take 
 
         post hearing.  Defendant resisted claimant's motion.  The deputy 
 
         held that the record would not remain open subsequent to the date 
 
         of the hearing.
 
         
 
 
            
 
            
 
                  
 
                  
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
            THOMAS F. COLLIER,    
 
                        
 
                 Claimant,   
 
                        
 
            vs.         
 
                                                  File No. 953453
 
            SIOUX CITY 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
 
            
 
            Defendants state the following issues on appeal:
 
            
 
            1.  Whether the Deputy Commissioner erred in finding that 
 
            the Claimant was "exposed to Dursban" and; whether the 
 
            Deputy Industrial Commissioner erred in finding that the 
 
            levels of exposure were sufficient to cause minor symptoms 
 
            to claimant "given his level of sensitivity to the substance 
 
            (a matter of individual variation)" a fact unsupported by 
 
            testimony; and;
 
            
 
            2.  Whether the Deputy Industrial Commissioner erred in 
 
            concluding that in late 1989 Dursban was in a crystallizing 
 
            form and was activated by humidity or moisture thus causing 
 
            "new levels" which "were sufficiently high to cause 
 
            symptoms."
 
            
 
            3.  Whether the Deputy Industrial Commissioner erred in 
 
            concluding that claimant's numerous symptoms, including both 
 
            upper respiratory and lower respiratory were exacerbated by 
 
            Dursban exposure and Butcher's deodorant solution and 
 
            exposure to construction dust.
 
            
 
            4.  Whether or not the Deputy Industrial Commissioner  erred 
 
            in concluding that exposure to "those substances" bears a 
 
            causal relationship to claimant's continued cipricol upper 
 
            and lower respiratory problems and dependence on 
 
            medication, including a dangerous oral steroid.
 
            
 
            5.  Whether the Deputy Industrial Commissioner erred in 
 
            finding that the claimant had sustained an "industrial 
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            disability" when he had returned to full-time employment for 
 
            full-time wages without restriction.
 
            
 
            6.  Whether the Deputy Industrial Commissioner's arbitration 
 
            decision of April 27, 1993 is based not on fact but on 
 
            speculation, conjecture and surmise.
 
            
 
                               FINDINGS OF FACT
 
            
 
            The findings of fact contained in the proposed agency 
 
            decision filed April 27, 1993 are adopted as final agency 
 
            action.
 
            
 
                               CONCLUSIONS OF LAW
 
            
 
            The conclusions of law contained in the proposed agency 
 
            decision filed April 27, 1993 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.  Segments designated by 
 
            brackets ([ ]) indicate language that is in addition to the 
 
            language of the proposed agency decision.
 
            
 
                 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).
 
            
 
                 Claimant also has the burden of proving by a 
 
            preponderance of the evidence that the injury is a proximate 
 
            cause of the disability on which the claim is based.  A 
 
            cause is proximate if it is a substantial factor in bringing 
 
            about the result; it need not be the only cause.  A 
 
            preponderance of the evidence exists when the causal 
 
            connection is probable rather than merely
 
            
 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            possible.  Blacksmith v. All-American, Inc., 290 N.W.2d 348 
 
            (Iowa 1980); Holmes v. Bruce Motor Freight, Inc., 215 N.W.2d 
 
            296 (Iowa 1974).
 
            
 
                 The "arising out of" requirement is satisfied by 
 
            showing a causal relationship between the employment and the 
 
            injury.  Sheerin v. Holin Co., 380 N.W.2d 415 (Iowa 1986).
 
            
 
                 The question of causal connection is essentially within 
 
            the domain of expert testimony.  The expert medical evidence 
 
            must be considered with all other evidence introduced 
 
            bearing on the causal connection between the injury and the 
 
            disability.  The weight to be given to any expert opinion is 
 
            determined by the finder of fact and may be affected by the 
 
            accuracy of the facts relied upon by the expert as well as 
 
            other surrounding circumstances.  The expert opinion may be 
 
            accepted or rejected, in whole or in part.  Sondag v. Ferris 
 
            Hardware, 220 N.W.2d 903 (Iowa 1974); Anderson v. Oscar 
 
            Mayer & Co., 217 N.W.2d 531 (Iowa 1974); Bodish v. Fischer, 
 
            Inc., 257 Iowa 516, 133 N.W.2d 867 (1965).
 
            
 
                 Although causal relationship to claimant's current 
 
            condition is very much in dispute, the medical evidence 
 
            overwhelmingly establishes that exposure to Dursban caused 
 
            at least a temporary onset of various symptoms.  Dr. 
 
            Bainbridge agrees.  Dr. Wilder agrees.  Dr. Thoman agrees.  
 
            Even Dr. Zorn agrees.  Dr. Hepper addresses the chronic 
 
            problem, but does not address temporary symptoms.  Claimant 
 
            has clearly met his burden of proof in establishing an 
 
            injury arising out of and in the course of employment by 
 
            reason of toxic exposure to Dursban TC, and to a lesser 
 
            extent, deodorant solution and construction dust.
 
            
 
                 That injury caused a healing period under Iowa Code 
 
            section 85.34(1).  Claimant was off work from April 30 
 
            through May 9 and again on June 16, 1990 (one week, four 
 
            days).  Healing period can be interrupted or intermittent.  
 
            Willis v. Lehigh Portland Cement Co., II-1 Iowa Industrial 
 
            Commissioner Decisions 485 (1984).
 
            
 
                 Under Iowa Code section 85.34(1), healing period is 
 
            compensable beginning on the date of injury and continuing 
 
            until the employee has returned to work, it is medically 
 
            indicated that significant improvement from the injury is 
 
            not anticipated, or until the employee is medically capable 
 
            of returning to substantially similar employment, whichever 
 
            first occurs.  Permanency benefits accrue from the end of 
 
            healing period.
 
            
 
                 Of course, the parties vigorously dispute whether this 
 
            exposure caused permanent disability (or even, whether 
 
            claimant's current condition is an industrial "disability").  
 
            This issue is
 
            
 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
            at the heart of the case and is properly resolved by 
 
            considering the conflicting medical opinion.  Claimant's 
 
            upper and lower respiratory problems must be reviewed 
 
            separately.
 
            
 
                 Mr. Collier's asthmatic condition will be considered 
 
            first.  Dr. Bainbridge, in addition to being extremely well 
 
            qualified, including board certification in occupational 
 
            medicine, has the advantage of being a primary treating 
 
            physician.  Although his opinion was couched in terms of 
 
            strong probabilities, he believes claimant's cyclical 
 
            asthmatic condition was caused by Dursban exposure and has 
 
            concluded that this agent rendered claimant's airways "very 
 
            sensitive to a lot of different environmental agents."  Dr. 
 
            Bainbridge's opinion was based on a correct history, in that 
 
            he was aware that Dr. Oggel had found no evidence consistent 
 
            with asthma or lung disease in 1986.
 
            
 
                 Dr. Thoman, a board certified toxicologist, attributed 
 
            hyperreactive airway disease with resultant increased 
 
            susceptibility to respiratory infection and chemical 
 
            sensitization to Dursban exposure.  It will be recalled, 
 
            however, that increased sensitization to different 
 
            environmental agents is a controversial theory.
 
            
 
                 Dr. Hepper found it difficult to attribute both chronic 
 
            sinusitis and chronic asthmatic bronchitis to "exposure 
 
            which occurred some time ago," but apparently was referring 
 
            to the original onset of mild symptoms following the 
 
            pesticide application in 1987, and without considering the 
 
            greatly increased exposure beginning in late 1989.
 
            
 
                 Dr. Zorn, a board certified pulmonologist, is indeed 
 
            highly qualified, but lacks the credentials in clinical 
 
            toxicology and occupational medicine of Drs. Thoman and 
 
            Bainbridge.  He finds that claimant's current condition was 
 
            not causally related by the exposure, and generally does not 
 
            believe that Dursban causes bronchial hyperreactivity.  The 
 
            weight to be given Dr. Zorn's opinion, however, is 
 
            diminished by his mistaken belief that claimant had achieved 
 
            a return to his physical state prior to exposure and his 
 
            belief that claimant suffered a genetic asthmatic condition 
 
            prior to exposure, whereas Dr. Oggel (an expert who actually 
 
            saw and treated claimant in 1986) found otherwise.
 
            
 
                 The preponderance of evidence shows that claimant's 
 
            cyclical condition of asthmatic ill being and resultant 
 
            prednisone dependence is causally linked to Dursban 
 
            exposure.  While cross-sensitization to other environmental 
 
            agents is less well established (Dr. Zorn's quoted testimony 
 
            on this subject is of comparable persuasiveness as the 
 
            opinions of Drs. Bainbridge and
 
            
 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
            Thoman), it also simply makes sense that an individual so 
 
            damaged by asthma should refrain from exposure to other 
 
            respiratory inhalants or irritants (as suggested by Dr. 
 
            Thoman).
 
            
 
                 Industrial disability was defined in Diederich v. 
 
            Tri-City Ry. Co., 219 Iowa 587, 258 N.W.2d 899 (1935) as 
 
            follows: "It is therefore plain that the legislature 
 
            intended the term 'disability' to mean 'industrial 
 
            disability' or loss of earning capacity and not a mere 
 
            'functional disability' to be computed in the terms of 
 
            percentages of the total physical and mental ability of a 
 
            normal man."
 
            
 
                 Functional impairment is an element to be considered in 
 
            determining industrial disability which is the reduction of 
 
            earning capacity, but consideration must also be given to 
 
            the injured employee's age, education, qualifications, 
 
            experience, motivation, loss of earnings, severity and situs 
 
            of the injury, work restrictions, inability to engage in 
 
            employment for which the employee is fitted and the 
 
            employer's offer of work or failure to so offer.  Olson v. 
 
            Goodyear Serv. Stores, 255 Iowa 1112, 125 N.W.2d 251 (1963); 
 
            McSpadden v. Big Ben Coal Co., 288 N.W.2d 181 (Iowa 1980); 
 
            Barton v. Nevada Poultry Co., 253 Iowa 285, 110 N.W.2d 660 
 
            (1961).
 
            
 
                 Compensation for permanent partial disability shall 
 
            begin at the termination of the healing period.  
 
            Compensation shall be paid in relation to 500 weeks as the 
 
            disability bears to the body as a whole.  Section 85.34.
 
            
 
                 Even though claimant's actual earnings have not been 
 
            diminished, he has sustained a diminution of earning 
 
            capacity.  A showing that there has been no loss of actual 
 
            earnings does not preclude a finding of industrial 
 
            disability.  Michael v. Harrison County, 34th Biennial 
 
            Report of The Iowa Industrial Commissioner 218 (1979); 
 
            [Arrow-Acme Corp. v. Bellamy, 500 N.W.2d 92 (Iowa App. 
 
            1993).]  However, claimant's loss of earning capacity is 
 
            relatively limited.  Without question, claimant's symptoms 
 
            have reduced his activities and enjoyment of life.  However, 
 
            discomfort alone is not equivalent to industrial disability 
 
            absent an effect on earning capacity.  Clute v. Countryside 
 
            Retirement Home, Number 876351 (Arb. Decn. November 29, 
 
            1990).  Claimant's argument that industrial disability 
 
            should equal or exceed physical impairment ratings is 
 
            rejected.  Impairment ratings are only one factor in 
 
            determining industrial disability.
 
            
 
                 However, there are factors tending to show industrial 
 
            disability.  While defendant employer has been able to keep 
 
            claimant gainfully employed, he is doubtless a less 
 
            attractive candidate to other potential employers on the 
 
            competitive labor market, educational or otherwise.  
 
            Claimant has engaged in strenuous hobbies/employment 
 
            activities during the summer school break, activities which 
 
            he should now avoid pursuant to the restrictions very 
 
            reasonably suggested by Dr. Thoman.  This includes welding, 
 

 
            
 
            Page   6
 
            
 
            
 
            
 
            
 
            in which claimant has substantial experience.  While 
 
            claimant may not have a history of actual employment for 
 
            remuneration in these hobby areas, that is a matter of 
 
            choice, not necessity.  With several months off in which he 
 
            could work at skilled auto mechanics or welding jobs, 
 
            claimant had a capacity for additional earnings which no 
 
            longer exists to the same degree.  The necessity of 
 
            continued use of Prednisone exposes claimant to increased 
 
            likelihood of ancillary problems such as frequent pneumonia.
 
            
 
                 Considering then these factors in specific and the 
 
            record otherwise in general, it is held that claimant has 
 
            sustained a permanent partial disability equivalent to ***** 
 
            [25] percent of the body as a whole, or ***** [125] weeks.  
 
            Permanency benefits shall be payable from June 17, 1990.
 
            
 
                 On appeal, defendants misapply the case of Bearce v. 
 
            FMC Corporation, 465 N.W.2d 531 (Iowa 1991).  That case is 
 
            limited to apportionment when a body part affected by a work 
 
            injury also had a prior disability.  It does not stand for 
 
            the proposition that if a claimant returns to work after a 
 
            work injury, he has not suffered an industrial disability.  
 
            Second Injury Fund v. Hodgins, 461 N.W.2d 454 (Iowa 1990).
 
            
 
                 The parties also dispute entitlement to medical 
 
            benefits.  Causal connection has been established pursuant 
 
            to the above analysis.  Defendants shall pay the medical 
 
            expenses set forth in joint exhibit 37, directly paying 
 
            providers and reimbursing claimant as set forth in that 
 
            exhibit along with travel expenses of $410.34.
 
            
 
                 The rate of compensation is also disputed.  The parties 
 
            agree that claimant was paid an annual salary of $36,461.  
 
            However, although this salary was paid over 12 months, 
 
            claimant worked only 9 months.  The rate should be 
 
            calculated on a 9 month basis rather than a 12 month basis.  
 
            Evers v. West Delaware County Community School District, 
 
            (App. Decn. December 29, 1989).  On that basis, claimant 
 
            earned a monthly total of $4,051.22.  According to Iowa Code 
 
            section 85.36(4), the monthly gross earnings should be 
 
            multiplied by 12 and subsequently divided by 52 to determine 
 
            an average gross weekly wage: $934.90.  According to the 
 
            Guide to Iowa Workers' Compensation Claim Handling published 
 
            by the Commissioner and effective on the date of injury, a 
 
            married individual entitled to three exemptions (as the 
 
            parties have stipulated) and gross weekly wages of $935 is 
 
            entitled to a compensation rate of $541.53.
 
            WHEREFORE, the decision of the deputy is affirmed and 
 
            modified.
 
            
 
                                     ORDER
 
            
 
            THEREFORE, it is ordered:
 
            
 
                 That defendants shall pay unto claimant one point five 
 
            seven one (1.571) weeks of healing period benefits at the 
 
            rate of five hundred forty-one and 53/100 dollars ($541.53) 
 
            commencing April 30, 1990.
 
            
 
                 That defendants shall pay unto claimant one hundred 
 
            twenty-five (125) weeks of permanent partial disability 
 
            benefits at the rate of five hundred forty-one and 53/100 
 

 
            
 
            Page   7
 
            
 
            
 
            
 
            
 
            dollars ($541.53) commencing June 17, 1990.
 
            
 
                 That defendants shall pay the medical expenses set 
 
            forth on joint exhibit 37, including mileage.  As to 
 
            claimant personally, this totals one thousand five hundred 
 
            three and 85/100 dollars ($1,503.84).
 
            
 
                 That all accrued weekly benefits shall be paid in a 
 
            lump sum together with statutory interest.
 
            That defendants shall pay the costs of this matter including 
 
            the transcription of the hearing.  
 
            Signed and filed this ____ day of February, 1994.
 
            
 
            
 
            
 
            
 
                                         ________________________________
 
                                                BYRON K. ORTON
 
                                          INDUSTRIAL COMMISSIONER
 
            
 
            Copies To:
 
            
 
            Mr. Charles T. Patterson
 
            Attorney at Law
 
            PO Box 3086
 
            Sioux City Iowa 51102
 
            
 
            Mr. Frank T. Harrison
 
            Attorney at Law
 
            2700 Grand Ave., Ste 111
 
            Des Moines, Iowa 50312
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                             1108.30; 2205; 1803; 3002
 
                                             Filed February 25, 1994
 
                                             Byron K. Orton
 
            
 
                      BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
            THOMAS F. COLLIER,    
 
                        
 
                 Claimant,   
 
                        
 
            vs.         
 
                                                    File No. 953453
 
            SIOUX CITY 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.      
 
            ____________________________________________________________
 
            1108.30; 2205
 
            Claimant proved cyclical upper and lower respiratory 
 
            problems were caused by exposure to Dursban in middle school 
 
            biology classroom.
 
            
 
            1803
 
            Loss of ability to engage in auto mechanics and welding 
 
            constitutes a loss of earning capacity, even though 
 
            claimant's history was recreational, not for remuneration.
 
            
 
            3002
 
            School teacher's rate was calculated on 9-month basis, not 
 
            12-month basis.
 
 
            
 
            Page   1
 
            
 
            
 
            
 
            
 
            
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
                                          :
 
            THOMAS F. COLLIER,            :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :      File No. 953453
 
            SIOUX CITY 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
 
            
 
                 Claimant Thomas Collier, a school teacher, seeks 
 
            benefits under the Iowa Workers' Compensation Act upon his 
 
            petition in arbitration against defendant employer Sioux 
 
            City Community Schools and its insurance carrier, Employers 
 
            Mutual Companies.  Mr. Collier asserts that he sustained 
 
            industrial disability by reason of exposure to a toxic 
 
            pesticide.  He allegedly sustained injury arising out of and 
 
            in the course of employment on April 25, 1990.
 
            
 
                 This cause came on for hearing in Sioux City, Iowa on 
 
            November 18, 1992.  Testimony was received from claimant, 
 
            Mike Dodd, Jim Gaul, Borse Pettersson, Walter Balmer, David 
 
            Adam, Richard Sutter, Michael Voloshen, Gary Winters, June 
 
            Lorimor, and Gerald Otto.  In addition, joint exhibits 1-38 
 
            were received into evidence.  Those exhibits include the 
 
            deposition testimony of Roger Harder, Robyn Barricks, Carl 
 
            Ramsey and Drs. Craig Bainbridge and Steven Zorn.
 
            
 
                 This decision holds that claimant did sustain injury as 
 
            he alleges and awards permanent partial disability benefits. 
 
            
 
                                      ISSUES
 
            
 
                 The parties have stipulated to the existence of an 
 
            employment relationship between claimant and Sioux City 
 
            Community Schools on or about April 25, 1990.
 
            
 
     
 
            
 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            Issues presented for resolution include:
 
            
 
                 1.  Whether claimant sustained injury arising out of 
 
            and in the course of employment;
 
            
 
                 2.  Whether there exists a causal nexus between the 
 
            alleged injury and either temporary or permanent disability;
 
            
 
                 3.  The extent of temporary and permanent disability, 
 
            if any;
 
            
 
                 4.  The rate of compensation;
 
            
 
                 5.  Entitlement to medical benefits.
 
            
 
                 With respect to medical benefits, the parties have 
 
            stipulated that medical expenses were fair and reasonable 
 
            and incurred for reasonable and necessary treatment.  
 
            Defendants admit causal connection between those expenses 
 
            and the medical condition upon which claimant bases his 
 
            claim, but deny causal connection to the alleged work 
 
            injury.  Defendants further claim that the expenses were 
 
            unauthorized, but this defense was ruled invalid at hearing 
 
            because defendants have denied liability on the claim, 
 
            thereby forfeiting the right to control the course of 
 
            medical treatment.
 
            
 
                                 FINDINGS OF FACT
 
            
 
                 The undersigned deputy industrial commissioner finds:
 
            
 
                 Thomas Collier, 51 years of age at hearing, has been 
 
            awarded a Bachelor of Arts Degree by Morningside College and 
 
            a Master of Arts Degree by Washington State University.  
 
            Since obtaining his advanced degree, Mr. Collier has also 
 
            taken numerous other university level courses, mostly in 
 
            scientific disciplines.  He has been a public school teacher 
 
            for some 29 years, the last 24 with defendant Sioux City 
 
            Community School District.  He was a middle school biology 
 
            teacher in April 1990.
 
            
 
                 Mr. Collier is a large, robust-appearing man.  During 
 
            his life, he has been quite physically active, engaging 
 
            heavily in such outdoor activities as hunting and fishing.  
 
            He also is something of a tinkerer, working on antique 
 
            automobiles and other mechanical devices.  He can weld, do 
 
            construction work, and has skills in automobile mechanics.  
 
            
 
                 Unfortunately, Mr. Collier is no longer healthy.  He 
 
            suffers from severe sinusitis and asthma.  His problems can 
 
            be traced back to 1987, when his biology classroom, Room 
 
            105, was treated for termites.
 
            
 
                 The pesticide company hired for this job proved inept.  
 
            Under the pine tongue-in-groove flooring of Room 105 was to 
 
            be found, in descending order, a wooden subfloor, a series 
 
            of parallel "sleepers" or floor joists filled with rather 
 
            crumbly, fragile concrete, a waterproof tile or mastic 
 
            compound, and a heavy portland cement foundation.  The 
 
            exterminating company drilled approximately six holes to 
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            apply a termite insecticide known as Dursban TC in front of 
 
            an exterior greenhouse window, but failed to drill 
 
            completely through the bottom concrete layer and into the 
 
            underlying soil.  The insecticide, unable to reach the 
 
            ground, apparently pooled above the waterproof mastic layer.  
 
            There, it proved to be something of a toxic timebomb.
 
            
 
                 In retrospect, Mr. Collier believes he may have 
 
            experienced some symptoms for as long as three years before 
 
            early 1990.  However, it was in November 1989 that he 
 
            developed headaches to the degree that he began keeping 
 
            records on a pocket calendar.  His symptomatology 
 
            progressively increased and worsened, including nausea, 
 
            fatigue and dizziness.  By January 1990, he reported these 
 
            problems to the school principal, Jim Gaul.  Early 
 
            complaints were not only of headache and other symptoms, but 
 
            of an unpleasant damp and moldy odor in the room.  By this 
 
            time, some students had also complained of headache.
 
            
 
                 On February 15, 1990, the room was treated for the odor 
 
            by drilling holes in the floor around the perimeter of the 
 
            room and pouring in a concentrated deodorant solution. 
 
            
 
                 Near this time, claimant agreed to an experimental 
 
            trade of classrooms with another teacher, Walter Balmer.  
 
            Mr. Balmer has been a science teacher for 15 years, 11 years 
 
            at East Middle School.  He did not particularly detect an 
 
            odor, except as might be expected of a science room equipped 
 
            with a greenhouse, but quickly developed a dull headache and 
 
            sinus condition and felt "lousy" by the end of both days of 
 
            the switch.  Those two days were the only days he suffered 
 
            those symptoms.  Balmer refused to continue in Room 105 and 
 
            switched back with claimant.
 
            
 
                 At about this time, a steam pipe was found to be 
 
            leaking near Room 105.  As much as three thousand gallons of 
 
            water may have escaped into the walls and floors for an 
 
            unknown time before the leak was discovered.
 
            
 
                 During April, as shown by the pocket calendar, symptoms 
 
            continued to develop, including cough and drainage.  On 
 
            April 9, the calendar notes that claimant was "out of 105 
 
            until fixed."  Mr. Collins first missed work for illness on 
 
            April 10, 11 and 12. 
 
            
 
                 On April 16, the school district began to take up the 
 
            wooden flooring in Room 105.  Robyn Barricks, building 
 
            service technician engineer, testified to a pesticide order 
 
            (which she had reported to her supervisor on February 15) 
 
            which became worse when the subfloor area was exposed to the 
 
            air.  Floor removal continued on April 17, following which 
 
            the workers were called away to another job.  They returned 
 
            April 26, after which the room was closed off.
 
            
 
                 In the meantime, claimant taught in a nearby classroom, 
 
            close enough to be bothered by the construction dust.
 
            
 
                 The school district then contracted for study by an 
 
            environmental consultant, Ramsey-Schilling Consulting Group, 
 
            Inc.
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
            
 
                 Carl Ramsey, President of Ramsey-Schilling, testified 
 
            that a phase I investigation of Room 105's problems was 
 
            begun on May 23.  Ramsey reported that he and environmental 
 
            chemist Theresa O'Neil detected a definite "pesticide" or 
 
            "mothball" odor immediately upon entering the room.  In the 
 
            report given to the school district, the investigators 
 
            described experiencing physical symptoms themselves after 
 
            being in the room only a short period for initial 
 
            evaluation.
 
            
 
                 Among other tests, Ramsey-Schilling sought to detect 
 
            Chlorpyrifos (the active ingredient in Dursban TC) in two 
 
            locations, including in front of the greenhouse window where 
 
            the pesticide had originally been applied.  Analysis of the 
 
            air sample at that point by High Performance Liquid 
 
            Chromatography disclosed a concentration of 110 
 
            micrograms/cubic meter.
 
            
 
                 The National Academy of Science has set threshold limit 
 
            values for a 24-hour exposure at 10 ug/cubic meter and for 
 
            an 8-hour day at 200 ug/cubic meter.  But, that body 
 
            simultaneously recommends a more stringent domestic 
 
            inhalation standard of no greater than 10 ug/cubic meter.
 
            
 
                 Chlorpyrifos is an organophosphate insecticide which 
 
            kills insects by destroying the normal nerve functions. 
 
            Signs and symptoms of organic phosphate poisoning may 
 
            include: headache, dizziness, incoordination, muscle 
 
            twitching, tremors, nausea, abdominal cramps, diarrhea, 
 
            sweating, pinpoint pupils, blurred vision, salivation, 
 
            tearing, excessive urination and chest tightness.  
 
            "Ancestors of Dursban have long been known and were in fact 
 
            used to exterminate prisoners in Nazi Germany."  Bloomquist 
 
            v. Wapello County, ___N.W.2d___ (Iowa, April 21, 1993).  The 
 
            substance dries to a crystalline form and has a potency half 
 
            life of five years.  However, it evaporates quickly when 
 
            exposed to the atmosphere, especially when exposed to 
 
            sunlight.  By the time additional air samples were taken on 
 
            June 28, they showed concentrations of chlorpyrifos as 
 
            "within safe parameters."  The apparent explanation is 
 
            depletion through exposure to sunlight.  Ramsey-Schilling 
 
            concluded that persons in Room 105 would not have been 
 
            exposed to high levels of chlorpyrifos or the "Butcher's" 
 
            deodorant prior to the wood and concrete floor being torn 
 
            up.
 
            
 
                 The huge decrease in Dursban concentration between May 
 
            23 and June 28 suggests that there may well have been a 
 
            corresponding reduction in levels between April 16 (when the 
 
            floor began to be torn up) and May 23.  Likewise, the 
 
            Ramsey-Schilling report does not take into account the 
 
            likelihood that Dursban was "activated" from the crystalline 
 
            form by humidity or actual moisture from the nearby steam 
 
            leak.  Considering that a number of witnesses reported a 
 
            pesticide odor in early 1990, and given the striking 
 
            temporal relationship to the increase in claimant's 
 
            symptoms, this possibility seems very likely indeed.  The 
 
            dramatic and otherwise unexplained experience of Mr. Balmer 
 
            also strongly supports this theory.
 

 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
            
 
                 Apart from such ancillary symptoms as nausea and 
 
            dizziness, claimant suffered (and suffers) from both upper 
 
            respiratory (sinusitis) and lower respiratory (asthma) 
 
            illnesses.  He has been treated for the former by W. H. 
 
            Wilder, M.D., and, surgically, at the Mayo Clinic.  He has 
 
            primarily treated for the latter problems with Craig 
 
            Bainbridge, M.D.
 
            
 
                 Dr. Bainbridge is a well qualified physician, board 
 
            certified in four separate specialities: internal medicine, 
 
            pulmonary disease, occupational medicine and critical care 
 
            medicine.  He practices primarily in the field of pulmonary 
 
            disease.  Dr. Bainbridge testified by deposition on April 1, 
 
            1992.  
 
            
 
                 Dr. Bainbridge first saw claimant on May 4, 1990, 
 
            shortly after a dramatic and disabling asthma attack (the 
 
            first of his life) suffered during a hunting competition in 
 
            late April.  According to David Adam, a hunting and fishing 
 
            friend of claimant's (and a member of the school board from 
 
            1976 to 1982), Mr. Collier was physically able to hunt only 
 
            for approximately five minutes.  
 
            
 
                 Dr. Bainbridge's original impression was of resolving 
 
            pneumonia in the right lower lobe and asthmatic bronchitis.  
 
            He recommended that claimant complete a regimen of 
 
            antibiotics and prescribed Prednisone, an oral steroid.
 
            
 
                 By May 22, claimant's pneumonia had resolved and he was 
 
            much better, following which Dr. Bainbridge recommended an 
 
            inhaled steroid for at least one month before returning care 
 
            to a family physician.
 
            
 
                 However, claimant returned on June 18, with complaints 
 
            of chest tightness and constant productive cough; peak flow 
 
            measurements were markedly decreased.  By June 25, though, 
 
            he was much improved.
 
            
 
                 Dr. Bainbridge has continued to treat claimant to the 
 
            present day, especially with Prednisone, AeroBid (an oral 
 
            steroid spray) and Theo-Dur, a medication used to dilate 
 
            bronchial tubes and improve asthmatic conditions.  Of these 
 
            medications, Prednisone has the most potential danger:
 
            
 
                    A.  Prednisone is a corticosteroid and has a 
 
                 number of side effects.  Prednisone can make one 
 
                 more susceptible to infections.  It can decrease 
 
                 the cortex of the bones and predispose to 
 
                 osteoporosis.  There are some subcutaneous changes 
 
                 in the skin that can make a person bruise easier.  
 
                 It can make one gain weight.  It can induce 
 
                 hyperglycemia or steroid-induced diabetes, and 
 
                 there are other problems that Prednisone can 
 
                 cause.
 
            
 
            (Bainbridge Deposition, Pages 13-14).
 
            
 
                 Dr. Bainbridge further testified that he had made 
 
            multiple attempts to taper claimant completely off 
 

 
            
 
            Page   6
 
            
 
            
 
            
 
            
 
            Prednisone, or at least to reduce him to the lowest possible 
 
            dosage.  Unfortunately, this has proven impossible.  
 
            Claimant's asthma will flare and cause increased coughing, 
 
            wheezing and shortness of breath until Prednisone is 
 
            restored or increased.
 
            
 
                 Dr. Bainbridge's long-term diagnosis is of asthma.  The 
 
            primary symptoms are shortness of breath, tightness in the 
 
            chest and cough.  Continued use of Prednisone makes claimant 
 
            a little more susceptible to some infections, and asthmatics 
 
            generally tend to have more pneumonias than the general 
 
            population.
 
            
 
                 Asked as to causation, Dr. Bainbridge testified:
 
            
 
                    Q.  Can you state your professional opinion as 
 
                 to whether or not the asthmatic condition of which 
 
                 you have diagnosed Mr. Collier, and for which 
 
                 you've followed him from May of 1994 forward, is 
 
                 an occupational asthmatic condition?
 
            
 
                    A.  I think there's a good chance that Mr. 
 
                 Collier's asthma could be called occupational 
 
                 asthma, as there is a -- I suspect there's a 
 
                 strong probability that there is an agent which 
 
                 has rendered his airways very sensitive to a lot 
 
                 of different environmental agents.
 
            
 
                    Q.  When you say there's an agent that has a 
 
                 strong probability of rendering him sensitive to 
 
                 agents, this Dursban cholinesterase inhibitor, is 
 
                 that the agent, or some component of it, that 
 
                 you're speaking of?
 
            
 
                    A.  I suspect there's a strong probability that 
 
                 that could be the agent.
 
            
 
            (Bainbridge Deposition, Page 19).
 
            
 
                 As to prognosis, Dr. Bainbridge testified that claimant 
 
            probably would have continued difficulty, especially with 
 
            minor respiratory infections or exposure to certain 
 
            environmental agents, and moderate to significant medical 
 
            problems due to asthma, including pneumonia, bronchospasms 
 
            and difficulty with such environmental agents as smoke, 
 
            dust, fumes and even heavy perfume.  At the time of his 
 
            deposition, Dr. Bainbridge was unprepared to rate 
 
            impairment.  He stated that he could do so after a 
 
            subsequent examination, but none appears of record.  Dr. 
 
            Bainbridge placed no restrictions on claimant's vocational 
 
            activities.
 
            
 
                 Dr. Bainbridge's opinions were based in part on 
 
            claimant having no history of asthma prior to 1987.  As it 
 
            happens, claimant had been seen at Sioux City Allergy 
 
            Associates on July 14, 1986 with complaints of itchy eyes, 
 
            chest pain and occasional sensation of tightness in the 
 
            chest.  Claimant noted at that time that cold air and odors 
 
            gave some sensation of tightness, but he was able to run and 
 
            participate in athletic endeavors such as road races with no 
 

 
            
 
            Page   7
 
            
 
            
 
            
 
            
 
            breathing problem whatsoever.  Chart notes of Dr. James 
 
            Oggel showed an impression in part of "no evidence 
 
            consistent with asthma or lung disease."  Dr. Oggel wondered 
 
            if claimant's history of rib trauma (numerous fractured ribs 
 
            in a childhood fall and, later, playing football) might not 
 
            account for chest discomfort.
 
            
 
                 In August 1990, claimant was seen for upper respiratory 
 
            problems at the Mayo Clinic in Rochester, Minnesota.  Norman 
 
            G. Hepper, M.D., a thoracic diseases and internal medicine 
 
            specialist, noted that x-rays of the sinuses showed complete 
 
            opacification of the frontal, ethmoid and left maxillary 
 
            sinuses.  On August 9, claimant underwent surgery for the 
 
            establishment of bilateral nasoantral windows and bilateral 
 
            intranasal ethmoidectomy; diseased tissue was removed from 
 
            all areas.
 
            
 
                 On August 31, Dr. Hepper wrote that claimant should 
 
            always have an antibiotic on hand and should continue 
 
            avoidance of exposure to bronchial irritants.  Dr. Hepper 
 
            found it "difficult" to attribute current chronic sinusitis 
 
            and chronic asthmatic bronchitis to "exposure which occurred 
 
            some time ago."  This reference is to May 1987.  He was 
 
            inclined to feel that claimant had suffered an infection 
 
            that spring, and that this had been the major problem.
 
            
 
                 In the intervening years, claimant's condition has 
 
            varied significantly and in cyclical fashion.  From feeling 
 
            well, he develops symptoms of drainage which progressively 
 
            worsen, then are followed by heavy congestion and general 
 
            lower respiratory problems.  He is treated with antibiotics 
 
            and increased Prednisone, gradually returning to "normal" 
 
            status.  These symptoms somewhat affect his ability to teach 
 
            (he blows his nose in class excessively and suffers throat 
 
            tightness which hampers speaking).  However, his attendance 
 
            record has remained very good.
 
            
 
                 Claimant began seeing Dr. Wilder for upper respiratory 
 
            problems in May 1992.  Physical examination revealed polyps 
 
            on the right side of the nose and much mucous on both sides.  
 
            Assessment was of chronic sinusitis and polyposis with 
 
            perhaps an element of vasomotor rhinitis.  Computerized 
 
            tomography of the sinus on August 4, 1992 showed marked 
 
            mucosal thickening in both frontal and maxillary sinuses 
 
            with opacification of the majority of the ethmoid air cells 
 
            and possible loss of bone secondary to osteomyelitis.
 
            
 
                 Dr. Wilder's chart note of June 10, 1992, contains an 
 
            observation that claimant's "trouble was probably started by 
 
            insecticide exposures."
 
            
 
                 Claimant has also been seen for evaluation by two other 
 
            physicians, Mark Thoman, M.D., and Steven K. Zorn, M.D.
 
            
 
                 Dr. Thoman is board certified in both pediatrics and 
 
            clinical toxicology.  His report of October 19, 1992 pointed 
 
            out that the history of termiticide application correlated 
 
            with claimant's symptomatology and that air sampling 
 
            revealed Dursban contamination in excess of what is known to 
 
            cause symptoms.  Dr. Thoman concluded that the most probable 
 

 
            
 
            Page   8
 
            
 
            
 
            
 
            
 
            cause of claimant's symptomatology was exposure to Dursban 
 
            TC from Room 105 (that symptomatology had earlier been 
 
            described as respiratory distress, coughing, pneumonia, 
 
            nausea, dizziness, headache and muscle aches and pain).
 
            
 
                 Dr. Thoman went on to state that claimant's "effects 
 
            and sequelae" were, to a reasonable degree of medical 
 
            probability, a result of Dursban exposure.  Dr. Thoman 
 
            further stated that claimant suffered hyperreactive airway 
 
            disease with resultant increased susceptibility to 
 
            respiratory infections and chemical sensitization as a 
 
            result of Dursban exposure.  He suggested restrictions 
 
            against working in environments in which pesticides, 
 
            respiratory inhalants or irritants such as smoke, cleaning 
 
            solutions, or other chemicals were present.  Dr. Thoman also 
 
            estimated functional impairment as a 30 to 40 percent 
 
            "disability."
 
            
 
                 At this point, a few words about Dr. Thoman are in 
 
            order.  Under Iowa Code section 17A.14(5), this agency's 
 
            experience, technical competence and specialized knowledge 
 
            may be utilized in the evaluation of evidence.  As a board 
 
            certified clinical toxicologist, Dr. Thoman has frequently 
 
            been called upon to offer expert opinion in litigation 
 
            before this agency.  In Luna v. Meredith/Burda, (Arbitration 
 
            Decision, February 25, 1993), it was recognized that his 
 
            opinion has at times been accepted by the agency, but at 
 
            other times not.  In particular, the undersigned recognized 
 
            in Peck v. Merrill Manufacturing Co., File Number 894350 
 
            (Arbitration Decision, February 26, 1991) that Dr. Thoman's 
 
            views on the subject of chemical sensitization are similar 
 
            to those who subscribe to the theory of "clinical ecology."  
 
            This is a controversial subject in medical science.  Some 
 
            proponents believe in environmental illnesses whose victims 
 
            may become allergic or sensitized to practically all manmade 
 
            chemicals and substances.  To date, the American Medical 
 
            Association has not accepted this theory.  In any event, it 
 
            seems fair to say that non-allergic chemical sensitization 
 
            is a theory somewhat outside the mainstream of current 
 
            medical opinion.
 
            
 
                 Steven Zorn, M.D., is a board certified pulmonologist.  
 
            He testified by deposition on September 27, 1991.  Dr. Zorn 
 
            saw claimant for an independent medical evaluation on August 
 
            16, 1991.  Dr. Zorn's complete pulmonary function study 
 
            revealed a normal forced vital capacity, mild decrease in 
 
            the FEV 1 (Forced Expiratory Volume in 1 second) and 
 
            reduction in FEF (Forced Expiratory Flow Rate).  Normal 
 
            total lung capacity and residual volume were normal.  
 
            Claimant responded well to bronchial dilators, with FEF 1 
 
            improving from 76 percent of predicted to 89 percent of 
 
            predicted and FEF improving from 43 percent to 77 percent of 
 
            predicted.  Dr. Zorn's impression was of reversible, mild 
 
            airway obstruction of asthmatic type.
 
            
 
                 Claimant also underwent a cardiopulmonary exercise 
 
            stress test which Dr. Zorn saw as normal, without evidence 
 
            of exercise limitation compared to claimant's age and sex in 
 
            either the cardiac or pulmonary systems.  Base line 
 
            screening spirometry was normal without evidence of 
 

 
            
 
            Page   9
 
            
 
            
 
            
 
            
 
            exercise-induced bronchospasm.
 
            
 
                 Dr. Zorn concluded that claimant's asthma was not "at 
 
            present" causing any limitation in activity.  He believed 
 
            that exposure to Dursban and Butcher's solution were likely 
 
            to have exacerbated the asthma between May 1989 and April 
 
            1990 and that persistence of symptoms from May 1990 through 
 
            July or August 1990 were attributable to construction dust 
 
            and ethmoid sinusitis.  Dr. Zorn further stated that 
 
            Dursban, dust and Butcher's solution exacerbated but did not 
 
            cause claimant's asthmatic tendency, which he saw as genetic 
 
            in origin.  He believed the clinical presentation of the 
 
            genetic predisposition was likely to surface when claimant 
 
            was exposed to non-specific irritants, whether they be cold 
 
            weather, toxic fumes or dust.  Dr. Zorn further opined that 
 
            any irritant effect from exposure to those agents should 
 
            have disappeared two months after claimant's removal from 
 
            the environment (by August 1990) and stated his belief that 
 
            claimant should be able to discontinue his bronchial 
 
            dilators.
 
            
 
                 In his deposition testimony, Dr. Zorn made clear that 
 
            he understood from claimant's history that Mr. Collier had 
 
            achieved "back to normal" status, that is, "back to the 
 
            condition he was before he was exposed to the fumes."  (Zorn 
 
            Deposition, page 49).  No doubt this was a good faith 
 
            misunderstanding, but a misunderstanding nevertheless.  
 
            Actually, on the day claimant visited Dr. Zorn, he was at 
 
            the high point of his cyclical deterioration/improvement of 
 
            symptoms.  Although claimant did quite well in exercise 
 
            testing, it is worth noting that he intentionally made a 
 
            "macho" effort to perform well (doing so is consistent with 
 
            a Minnesota Multiphasic Personality Inventory interpreted at 
 
            the Mayo Clinic in 1985); but so draining that claimant was 
 
            unable to drive himself back home after the evaluation and 
 
            was hospitalized within a few days.  Claimant testified that 
 
            he is not always able to perform so well, and that this 
 
            level of exertion itself is much reduced from what he could 
 
            do before.
 
            
 
                 Dr. Zorn testified in somewhat more detail as to the 
 
            causation issue.  He believes that claimant has a genetic 
 
            predisposition to develop asthma, and that this condition 
 
            was temporarily (but not permanently) aggravated by exposure 
 
            to Dursban TC.  He does not believe that Dursban caused 
 
            residual bronchial hyperreactivity, and, except for such 
 
            caustics as hydrochloric acid, does not believe that any 
 
            toxic agents result in residual hypersensitivity: 
 
            
 
                    Q.  Do you have an opinion with reasonable 
 
                 medical certainty based on your expertise, your 
 
                 examination, the testing that's attached to your 
 
                 report of August 16th -- almost all of which I 
 
                 don't understand -- as to whether or not it 
 
                 permanently aggravated the underlying asthmatic 
 
                 tendency or temporarily aggravated it?
 
            
 
                    A.  I believe it temporarily aggravated it.
 
            
 
                    Q.  Why do you say that, sir?
 

 
            
 
            Page  10
 
            
 
            
 
            
 
            
 
            
 
                    A.  Because the organophosphates are agents 
 
                 which work to stimulate bronchospasm.  They work 
 
                 by blocking an enzyme in the body.  Once you 
 
                 remove that substance from the person's 
 
                 environment, it is no longer there to cause the 
 
                 bronchospasm.  It is a chemical phenomena that 
 
                 they produce.  It is not an immune response that 
 
                 you develop.  You do not have antibodies to 
 
                 organophosphates.
 
            
 
            (Zorn Deposition, Pages 81-82).
 
            
 
                 As to symptoms other than asthmatic, Dr. Zorn opined:
 
            
 
                    Q.  Does it appear from those complaints that 
 
                 are noted in that document that there are physical 
 
                 problems or complaints that would be in addition 
 
                 to or apart from what we might classify as classic 
 
                 asthmatic complaints?
 
            
 
                    A.  Yes.
 
            
 
                    Q.  Do you have any opinions as to what would 
 
                 account for those complaints that are apart from 
 
                 any traditional asthmatic complaints?
 
            
 
                    A.  I would suspect it would be the Dursban.
 
            
 
            (Zorn Deposition, Page 55).
 
            
 
                 Asked specifically whether ethmoid sinusitis was 
 
            related to Dursban exposure, Dr. Zorn offered his suspicion 
 
            that this was an independent problem, but did not discuss 
 
            the issue in further detail.  He rates claimant as having, 
 
            at worst, a ten to twenty percent impairment under the 
 
            American Medical Association Guides to the Evaluation of 
 
            Permanent Impairment, but does not attribute claimant's 
 
            continued need for medication to Dursban exposure.
 
            
 
                 All of this disparate medical opinion comes from highly 
 
            qualified and respected sources.  Close questions are 
 
            presented as to which opinions should be given greater 
 
            weight.  
 
            
 
                 Specific findings follow:
 
            
 
                 1.  Claimant was exposed to Dursban, a toxic 
 
                 substance, from 1987 through the date of injury.  
 
                 During much of that time, levels of exposure were 
 
                 sufficient to cause minor symptoms to claimant, 
 
                 given his level of sensitivity to the substance (a 
 
                 matter of individual variation).
 
            
 
                 2.  Beginning in late 1989, the Dursban under the 
 
                 floor of Room 105 was activated from its 
 
                 crystalline form by humidity or moisture from a 
 
                 nearby steam pipe leak.  The new levels were 
 
                 sufficiently high to cause symptoms in other 
 
                 people and to greatly exacerbate claimant's 
 

 
            
 
            Page  11
 
            
 
            
 
            
 
            
 
                 symptoms.
 
            
 
                 3.  Claimant's numerous symptoms, including both 
 
                 upper respiratory and lower respiratory problems 
 
                 were exacerbated not only by increased Dursban 
 
                 exposure, but by the application of Butcher's 
 
                 deodorant solution and, after leaving Room 105, 
 
                 continued exposure to construction dust from the 
 
                 floor removal project in 105.
 
            
 
                 4.  Exposure to those substances bears a causal 
 
                 relationship to claimant's continued cyclical 
 
                 upper and lower respiratory problems and 
 
                 dependence on medication, including a dangerous 
 
                 oral steroid.
 
            
 
                         ANALYSIS AND 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).
 
            
 
                 Claimant also has the burden of proving by a 
 
            preponderance of the evidence that the injury is a proximate 
 
            cause of the disability on which the claim is based.  A 
 
            cause is proximate if it is a substantial factor in bringing 
 
            about the result; it need not be the only cause.  A 
 
            preponderance of the evidence exists when the causal 
 
            connection is probable rather than merely possible.  
 
            Blacksmith v. All-American, Inc., 290 N.W.2d 348 (Iowa 
 
            1980); Holmes v. Bruce Motor Freight, Inc., 215 N.W.2d 296 
 
            (Iowa 1974).
 
            
 
                 The "arising out of" requirement is satisfied by 
 
            showing a causal relationship between the employment and the 
 
            injury.  Sheerin v. Holin Co., 380 N.W.2d 415 (Iowa 1986).
 
            
 
                 The question of causal connection is essentially within 
 
            the domain of expert testimony.  The expert medical evidence 
 
            must be considered with all other evidence introduced 
 
            bearing on the causal connection between the injury and the 
 
            disability.  The weight to be given to any expert opinion is 
 
            determined by the finder of fact and may be affected by the 
 
            accuracy of the facts relied upon by the expert as well as 
 
            other surrounding circumstances.  The expert opinion may be 
 
            accepted or rejected, in whole or in part.  Sondag v. Ferris 
 
            Hardware, 220 N.W.2d 903 (Iowa 1974); Anderson v. Oscar 
 
            Mayer & Co., 217 N.W.2d 531 (Iowa 1974); Bodish v. Fischer, 
 
            Inc., 257 Iowa 516, 133 N.W.2d 867 (1965).
 
            
 
                 Although causal relationship to claimant's current 
 
            condition is very much in dispute, the medical evidence 
 
            overwhelmingly establishes that exposure to Dursban caused 
 

 
            
 
            Page  12
 
            
 
            
 
            
 
            
 
            at least a temporary onset of various symptoms.  Dr. 
 
            Bainbridge agrees.  Dr. Wilder agrees.  Dr. Thoman agrees.  
 
            Even Dr. Zorn agrees.  Dr. Hepper addresses the chronic 
 
            problem, but does not address temporary symptoms.  Claimant 
 
            has clearly met his burden of proof in establishing an 
 
            injury arising out of and in the course of employment by 
 
            reason of toxic exposure to Dursban TC, and to a lesser 
 
            extent, deodorant solution and construction dust.
 
            
 
                 That injury caused a healing period under Iowa Code 
 
            section 85.34(1).  Claimant was off work from April 30 
 
            through May 9 and again on June 16, 1990 (one week, four 
 
            days).  Healing period can be interrupted or intermittent.  
 
            Willis v. Lehigh Portland Cement Co., II-1 Iowa Industrial 
 
            Commissioner Decisions 485 (1984).
 
            
 
                 Under Iowa Code section 85.34(1), healing period is 
 
            compensable beginning on the date of injury and continuing 
 
            until the employee has returned to work, it is medically 
 
            indicated that significant improvement from the injury is 
 
            not anticipated, or until the employee is medically capable 
 
            of returning to substantially similar employment, whichever 
 
            first occurs.  Permanency benefits accrue from the end of 
 
            healing period.
 
            
 
                 Of course, the parties vigorously dispute whether this 
 
            exposure caused permanent disability (or even, whether 
 
            claimant's current condition is an industrial "disability").  
 
            This issue is at the heart of the case and is properly 
 
            resolved by considering the conflicting medical opinion.  
 
            Claimant's upper and lower respiratory problems must be 
 
            reviewed separately.
 
            
 
                 Mr. Collier's asthmatic condition will be considered 
 
            first.  Dr. Bainbridge, in addition to being extremely well 
 
            qualified, including board certification in occupational 
 
            medicine, has the advantage of being a primary treating 
 
            physician.  Although his opinion was couched in terms of 
 
            strong probabilities, he believes claimant's cyclical 
 
            asthmatic condition was caused by Dursban exposure and has 
 
            concluded that this agent rendered claimant's airways "very 
 
            sensitive to a lot of different environmental agents."  Dr. 
 
            Bainbridge's opinions was based on a correct history, in 
 
            that he was aware that Dr. Oggel had found no evidence 
 
            consistent with asthma or lung disease in 1986.
 
            
 
                 Dr. Thoman, a board certified toxicologist, attributed 
 
            hyperreactive airway disease with resultant increased 
 
            susceptibility to respiratory infection and chemical 
 
            sensitization to Dursban exposure.  It will be recalled, 
 
            however, that increased sensitization to different 
 
            environmental agents is a controversial theory.
 
            
 
                 Dr. Hepper found it difficult to attribute both chronic 
 
            sinusitis and chronic asthmatic bronchitis to "exposure 
 
            which occurred some time ago," but apparently was referring 
 
            to the original onset of mild symptoms following the 
 
            pesticide application in 1987, and without considering the 
 
            greatly increased exposure beginning in late 1989.
 
            
 

 
            
 
            Page  13
 
            
 
            
 
            
 
            
 
                 Dr. Zorn, a board certified pulmonologist, is indeed 
 
            highly qualified, but lacks the credentials in clinical 
 
            toxicology and occupational medicine of Drs. Thoman and 
 
            Bainbridge.  He finds that claimant's current condition was 
 
            not causally related by the exposure, and generally does not 
 
            believe that Dursban causes bronchial hyperreactivity.  The 
 
            weight to be given Dr. Zorn's opinion, however, is 
 
            diminished by his mistaken belief that claimant had achieved 
 
            a return to his physical state prior to exposure and his 
 
            belief that claimant suffered a genetic asthmatic condition 
 
            prior to exposure, whereas Dr. Oggel (an expert who actually 
 
            saw and treated claimant in 1986) found otherwise.
 
            
 
                 The preponderance of evidence shows that claimant's 
 
            cyclical condition of asthmatic ill being and resultant 
 
            prednisone dependence is causally linked to Dursban 
 
            exposure.  While cross-sensitization to other environmental 
 
            agents is less well established (Dr. Zorn's quoted testimony 
 
            on this subject is of comparable persuasiveness as the 
 
            opinions of Drs. Bainbridge and Thoman), it also simply 
 
            makes sense that an individual so damaged by asthma should 
 
            refrain from exposure to other respiratory inhalants or 
 
            irritants (as suggested by Dr. Thoman).
 
            
 
                 Industrial disability was defined in Diederich v. 
 
            Tri-City Ry. Co., 219 Iowa 587, 258 N.W.2d 899 (1935) as 
 
            follows: "It is therefore plain that the legislature 
 
            intended the term 'disability' to mean 'industrial 
 
            disability' or loss of earning capacity and not a mere 
 
            'functional disability' to be computed in the terms of 
 
            percentages of the total physical and mental ability of a 
 
            normal man."
 
            
 
                 Functional impairment is an element to be considered in 
 
            determining industrial disability which is the reduction of 
 
            earning capacity, but consideration must also be given to 
 
            the injured employee's age, education, qualifications, 
 
            experience, motivation, loss of earnings, severity and situs 
 
            of the injury, work restrictions, inability to engage in 
 
            employment for which the employee is fitted and the 
 
            employer's offer of work or failure to so offer.  Olson v. 
 
            Goodyear Serv. Stores, 255 Iowa 1112, 125 N.W.2d 251 (1963); 
 
            McSpadden v. Big Ben Coal Co., 288 N.W.2d 181 (Iowa 1980); 
 
            Barton v. Nevada Poultry Co., 253 Iowa 285, 110 N.W.2d 660 
 
            (1961).
 
            
 
                 Compensation for permanent partial disability shall 
 
            begin at the termination of the healing period.  
 
            Compensation shall be paid in relation to 500 weeks as the 
 
            disability bears to the body as a whole.  Section 85.34.
 
            
 
                 Even though claimant's actual earnings have not been 
 
            diminished, he has sustained a diminution of earning 
 
            capacity.  A showing that there has been no loss of actual 
 
            earnings does not preclude a finding of industrial 
 
            disability.  Michael v. Harrison County, 34th Biennial 
 
            Report of The Iowa Industrial Commissioner 218 (1979).  
 
            However, claimant's loss of earning capacity is relatively 
 
            limited.  Without question, claimant's symptoms have reduced 
 
            his activities and enjoyment of life.  However, discomfort 
 

 
            
 
            Page  14
 
            
 
            
 
            
 
            
 
            alone is not equivalent to industrial disability absent an 
 
            effect on earning capacity.  Clute v. Countryside Retirement 
 
            Home, Number 876351 (Arb. Decn. November 29, 1990).  
 
            Claimant's argument that industrial disability should equal 
 
            or exceed physical impairment ratings is rejected.  
 
            Impairment ratings are only one factor in determining 
 
            industrial disability.
 
            
 
                 However, there are factors tending to show industrial 
 
            disability.  While defendant has been able to keep claimant 
 
            gainfully employed, he is doubtless a less attractive 
 
            candidate to other potential employers on the competitive 
 
            labor market, educational or otherwise.  Claimant has 
 
            engaged in strenuous hobbies/employment activities during 
 
            the summer school break, activities which he should now 
 
            avoid pursuant to the restrictions very reasonably suggested 
 
            by Dr. Thoman.  This includes welding, in which claimant has 
 
            substantial experience.  While claimant may not have a 
 
            history of actual employment for remuneration in these hobby 
 
            areas, that is a matter of choice, not necessity.  With 
 
            several months off in which he could work at skilled auto 
 
            mechanics or welding jobs, claimant had a capacity for 
 
            additional earnings which no longer exists to the same 
 
            degree.  The necessity of continued use of Prednisone 
 
            exposes claimant to increased likelihood of ancillary 
 
            problems such as frequent pneumonia.
 
            
 
                 Considering then these factors in specific and the 
 
            record otherwise in general, it is held that claimant has 
 
            sustained a permanent partial disability equivalent to 
 
            fifteen percent of the body as a whole, or 75 weeks.  
 
            Permanency benefits shall be payable from June 17, 1990.
 
            
 
                 The parties also dispute entitlement to medical 
 
            benefits.  Causal connection has been established pursuant 
 
            to the above analysis.  Defendants shall pay the medical 
 
            expenses set forth in joint exhibit 37, directly paying 
 
            providers and reimbursing claimant as set forth in that 
 
            exhibit along with travel expenses of $410.34.
 
            
 
                 The rate of compensation is also disputed.  The parties 
 
            agree that claimant was paid an annual salary of $36,461.  
 
            However, although this salary was paid over 12 months, 
 
            claimant worked only 9 months.  The rate should be 
 
            calculated on a 9 month basis rather than a 12 month basis.  
 
            Evers v. West Delaware County Community School District, 
 
            (App. Decn. December 29, 1989).  On that basis, claimant 
 
            earned a monthly total of $4,051.22.  According to Iowa Code 
 
            section 85.36(4), the monthly gross earnings should be 
 
            multiplied by 12 and subsequently divided by 52 to determine 
 
            an average gross weekly wage: $934.90.  According to the 
 
            Guide to Iowa Workers' Compensation Claim Handling published 
 
            by the Commissioner and effective on the date of injury, a 
 
            married individual entitled to three exemptions (as the 
 
            parties have stipulated) and gross weekly wages of $935 is 
 
            entitled to a compensation rate of $541.53.
 
            
 
                                      ORDER
 
            
 
                 THEREFORE, IT IS ORDERED:
 

 
            
 
            Page  15
 
            
 
            
 
            
 
            
 
            
 
                 Defendants shall pay unto claimant one point five seven 
 
            one (1.571) weeks of healing period benefits at the rate of 
 
            five hundred forty-one and 53/100 dollars ($541.53) 
 
            commencing April 30, 1990.
 
            
 
                 Defendants shall pay unto claimant seventy-five (75) 
 
            weeks of permanent partial disability benefits at the rate 
 
            of five hundred forty-one and 53/100 dollars ($541.53) 
 
            commencing June 17, 1990.
 
            
 
                 Defendants shall pay the medical expenses set forth on 
 
            joint exhibit 37, including mileage.  As to claimant 
 
            personally, this totals one thousand five hundred three and 
 
            85/100 dollars ($1,503.84).
 
            
 
                 All accrued weekly benefits shall be paid in a lump sum 
 
            together with statutory interest.
 
            
 
                 Costs are assessed to defendants.
 
            
 
                 Signed and filed this ____ day of April, 1993.
 
            
 
            
 
            
 
            
 
                                          
 
                                        ________________________________
 
                                          DAVID R. RASEY
 
                                          DEPUTY INDUSTRIAL COMMISSIONER
 
            
 
            Copies To:
 
            
 
            Mr Charles T Patterson
 
            Attorney at Law
 
            701 Pierce Street Ste 200
 
            PO Box 3086
 
            Sioux City Iowa 51102
 
            
 
            Mr Frank T Harrison
 
            Attorney at Law
 
            Terrace Center Ste 111
 
            2700 Grand Avenue
 
            Des Moines Iowa 50312
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                              1108.30;2205;1803;3002
 
                                              Filed April 27, 1993
 
                                              DAVID R. RASEY
 
            
 
                      BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
                      
 
            THOMAS F. COLLIER,  
 
                      
 
                 Claimant, 
 
                      
 
            vs.       
 
                                                File No. 953453
 
            SIOUX CITY 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.    
 
            ___________________________________________________________
 
            
 
            1108.30; 2205
 
            Claimant proved cyclical upper and lower respiratory 
 
            problems were caused by exposure to Dursban in middle school 
 
            biology classroom.
 
            
 
            1803
 
            Loss of ability to engage in auto mechanics and welding 
 
            constitutes a loss of earning capacity, even though 
 
            claimant's history was recreational, not for remuneration.
 
            
 
            3002
 
            School teacher's rate was calculated on 9-month basis, not 
 
            12-month basis.
 
            
 
 
            
 
            
 
            
 
            
 
            
 
                                              51402.30 51801 51402.60 
 
                                              Filed October 23, 1992
 
                                              Michael G. Trier
 
 
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
                      
 
            STEVEN BOLT,   
 
                      
 
                 Claimant, 
 
                      
 
            vs.       
 
                                               File No. 953680
 
            J.M. FOSTER, INC.,  
 
                                          A R B I T R A T I O N
 
                 Employer, 
 
                                              D E C I S I O N
 
            and       
 
                      
 
            CNA INSURANCE COMPANY,   
 
                      
 
                 Insurance Carrier,  
 
                 Defendants.    
 
            ___________________________________________________________
 
            
 
            51402.30 51801 51402.60
 
            In a disputed case, claimant was found to have sustained 
 
            injury which arose out of and in the course of employment as 
 
            alleged.  He was awarded temporary total disability and 
 
            medical expenses, including expenses incurred after the end 
 
            of the period of temporary disability where he had 
 
            continuing residual complaints and the treatment was 
 
            effective at reducing those complaints.  
 
            
 
 
            
 
            Page   1
 
            
 
            
 
            
 
            
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                           :
 
            MICHAEL R. DELAY,              :
 
                                           :
 
                 Claimant,                 :
 
                                           :
 
            vs.                            :
 
                                           :    File Nos. 953774 & 
 
            954476
 
            WOODWARD STATE HOSPITAL SCHOOL,:
 
                                           :      A R B I T R A T I O N
 
                 Employer,                 :
 
                                           :         D E C I S I O N
 
            and                            :
 
                                           :
 
            STATE OF IOWA,                 :
 
                                           :
 
                 Insurance Carrier,        :
 
                 Defendant.                :
 
            ___________________________________________________________
 
            
 
            
 
                              STATEMENT OF THE CASE
 
            
 
                 This is a proceeding in arbitration brought by Michael 
 
            R. DeLay, claimant, against Woodward State Hospital School, 
 
            employer, and the State of Iowa, insurance carrier, to 
 
            recover benefits under the Iowa Workers' Compensation Act as 
 
            a result of injuries sustained on March 7, 1990 and March 
 
            29, 1990.  This matter came on for hearing before the 
 
            undersigned deputy industrial commissioner on October 8, 
 
            1991.  The record was considered fully submitted at the 
 
            close of the hearing.  The record in this case consists of 
 
            joint exhibits 1-82 and defendant's exhibits 1-12.  The 
 
            record also consists of claimant's testimony and testimony 
 
            from his wife.  Defendant presented testimony from Gary 
 
            Books, Steve Overstreet and Margene Lockamy.
 
            
 
                                      issues
 
            
 
                 Pursuant to the prehearing report and order dated 
 
            October 8, 1991, the parties presented the following issues 
 
            for resolution:  
 
            
 
                 1.  Whether claimant sustained injuries on March 7, 
 
            1990 and March 29, 1990, which arose out of and in the 
 
            course of employment with employer;
 
            
 
                 2.  Whether the alleged injuries are a cause of 
 
            temporary and permanent disability and, if so, the extent 
 
            thereof; and,
 
            
 
                 3.  Whether claimant's medical expenses are causally 
 
            connected to the work injuries.
 
            
 
                 Defendant raises the affirmative defense of lack of 
 
            notice under Iowa Code section 85.23 as it pertains to 
 
            claimant's March 7, 1990 injury.
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            
 
                                 findings of fact
 
            
 
                 The undersigned has carefully considered all the 
 
            testimony given at the hearing, the arguments made and the 
 
            evidence contained in the exhibits herein, and makes the 
 
            following findings:
 
            
 
                 Claimant was born on April 16, 1961 and has been 
 
            married for five years.  He had no children at the time of 
 
            his alleged injuries.  In March 1990, he earned $301.00 per 
 
            week.  Claimant has a GED certificate and 75 hours of 
 
            college credit from the University of Northern Iowa.  Prior 
 
            to securing employment at Woodward State School, claimant 
 
            worked four years at Story County Care Facility and eight 
 
            months as a security officer for Garst Seed Company in 
 
            Madrid, Iowa.  In November 1989, he commenced employment at 
 
            the Woodward State Hospital School as a resident treatment 
 
            worker.  His duties included supervision and escorting of 
 
            mentally retarded, developed mentally disabled and mentally 
 
            disabled patients.  He received a permanent assignment to 
 
            #101 Cottage which is a house-type setting with 16 patients.  
 
            Claimant testified that prior to March 7, 1990, he was in 
 
            excellent health and had no history of back problems.
 
            
 
                 At the hearing, claimant testified that on March 7, 
 
            1990, around 9:45 p.m., he had to restrain a patient by 
 
            applying a Mandt hold.  In the process, the patient became 
 
            agitated and violent and caused both to slip and fall in the 
 
            dormitory hallway.  Claimant testified that he did not fill 
 
            out an incident report because he did not realize the 
 
            severity of his injury.  Although other workers were 
 
            allegedly nearby when the accident occurred, none came to 
 
            his assistance.  Claimant testified that he reported the 
 
            incident to his supervisor, Gary Books which Mr. Books 
 
            denied.  Claimant lost no time from work as a result of any 
 
            injury caused by this alleged incident.
 
            
 
                 Claimant also testified that on March 29, 1990, he had 
 
            another encounter with the same patient as on March 7, 1990.  
 
            He stated that this incident occurred at 4:15 p.m. in the 
 
            dormitory hallway.  Claimant testified that he completed an 
 
            Incident Report and called the state nurse to report the 
 
            event.  Claimant worked his entire shift on March 29, 30 and 
 
            31.  Claimant testified that he worked through April 5, 
 
            1990, without difficulty.  On the evening of April 5, 1990, 
 
            while bending to take an onion from the cupboard, claimant 
 
            testified that his back gave out.  He had surgery and was 
 
            released to return to work on June 11, 1990, with no 
 
            restrictions.  He worked a full day on the eleventh but felt 
 
            that the work he was assigned to do was beyond his physical 
 
            capacity.  He returned to his treating physician on June 12, 
 
            1990 and was given another work release which included a 75 
 
            pound lifting restriction and a prohibition against 
 
            restraining difficult patients.  Instead of returning to 
 
            work, claimant applied for long-term leave without pay.  
 
            This was later denied.  On July 13, 1990, he was terminated 
 
            from hospital employment.  Subsequently, he worked one week 
 
            in June 1991 laying sod at Beaver Run Golf Course.  He quit 
 
            this job because he could not perform the lifting 
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            requirements.  On July 19, 1991, he was re-hired by the 
 
            State of Iowa to work as a computer operator with the 
 
            Department of Natural Resources.  This work is 
 
            sedentary-light in nature and requires knowledge of computer 
 
            operations.  He earns $9.89 per hour which is the same 
 
            hourly rate he earned when he was terminated.
 
            
 
                 The pertinent medical evidence of record reveals that 
 
            on March 21, 1990, claimant presented to Kevin Massick, 
 
            M.D., with complaints of recurrent pain in the left gluteal 
 
            region, extending down the right thigh and shin into his 
 
            toes.  Dr. Massick diagnosed sciatica and prescribed Empirin 
 
            and a heating pad.  His condition did not improve and an 
 
            appointment was made for him to see George Makari, M.D., 
 
            neurologist at Mercy Hospital (Joint Exhibit 1).
 
            
 
                 Claimant was scheduled for an appointment with Dr. 
 
            Makari on April 6, 1990.  He testified that on April 5, 
 
            1990, after returning home from work, he bent down to 
 
            retrieve an onion from the cupboard and experienced 
 
            paralysis from the waist down.  He testified that he turned 
 
            the burner off on the stove and then crawled to his upstairs 
 
            bedroom.  He stated he was unable to walk or reach the wall 
 
            telephone to call for assistance.  He stated that he crawled 
 
            into bed and was in excruciating pain.  His wife came home 
 
            at 1:00 a.m. but he was half asleep and did not tell her 
 
            about the incident.  The next morning he awoke at 6:00 a.m. 
 
            and kept a previously scheduled office visit with Dr. 
 
            Makari.  Dr. Makari admitted him to Mercy Hospital that 
 
            afternoon for pain management, traction and evaluation.
 
            
 
                 An MRI scan of the lumbosacral spine was performed on 
 
            April 6, 1990.  It revealed a small central L5-Sl disc 
 
            herniation, L4-5 disc bulge and mild foraminal stenosis 
 
            bilaterally at L5-Sl (Ex. 5).  Patient progress notes 
 
            indicate that claimant was dissatisfied with his treatment 
 
            and requested discharge on April 7, 1990 (Exs. 9-10).
 
            
 
                 Claimant's symptoms persisted and on April 18, 1990, he 
 
            was seen in Mercy Hospital's Emergency Department.  He was 
 
            diagnosed with a lumbar disc syndrome and advised to 
 
            continue traction and Ibuprofen (Ex. 13).
 
            
 
                 Claimant testified that he was dissatisfied with Dr. 
 
            Makari's treatment and asked Dr. Massick for another 
 
            referral.  He saw Robert C. Jones, M.D., a neurologist, for 
 
            a second opinion on April 23, 1990.  He presented with pain 
 
            in the low back and right lower extremity area with numbness 
 
            and tingling in the right great toe.  During a follow-up 
 
            examination on April 26, 1990, Dr. Jones recommended surgery 
 
            (Ex. 15).
 
            
 
                 Claimant was admitted to Mercy Hospital Medical Center 
 
            on May 1, 1990, and Dr. Jones performed a lumbar laminectomy 
 
            at L4 on the right with removal of a large sequestrated disc 
 
            (Ex. 29).  Claimant was discharged on May 6, 1990, with 
 
            diagnoses of lumbar disc with lumbar radiculopathy (Ex. 
 
            15-45).
 
            
 
                 Dr. Jones released claimant to return to regular work 
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
            duties on June 11, 1990.  He imposed no weight lifting 
 
            restrictions (Ex. 46).  Claimant testified that he returned 
 
            to work on June 11, 1990 and was transferred to cottage 
 
            #104.  His first day back, he had to put a restraining 
 
            device on the head of a maladaptive patient.  He felt that 
 
            in view of his surgery he should not be required to do this 
 
            type of work and informed his supervisor, Lila Holdsworth of 
 
            this fact.  He stated that Lila suggested that he return to 
 
            Dr. Jones with a description of the duties performed by a 
 
            resident treatment specialist to determine whether he could 
 
            medically perform this job.  Dr. Jones prepared another work 
 
            release on June 12, 1990 and restricted claimant to lifting 
 
            between 50-75 pounds (Ex. 48).  Claimant did not return to 
 
            work.  Instead he put in for Long Term Disability and was 
 
            maintained on Leave of Absence status pending decision of 
 
            his request.  On July 12, 1990, he was notified that "we 
 
            will be removing you from the payroll while awaiting 
 
            resolution of the Long Term Disability application.  Your 
 
            last day of employment will be July 13, 1990...." (Ex. 69)  
 
            Claimant testified that his request was eventually denied.
 
            
 
                 On August 22, 1990, Dr. Jones reported to claimant's 
 
            attorney that "I would estimate Mr. DeLay's permanent 
 
            physical impairment to be 8% based on the AMA guides and my 
 
            experience...." (Ex. 50)  On January 14, 1991, Dr. Jones 
 
            wrote to claimant's attorney that claimant's severely 
 
            ruptured lumbar disc came on after working with a violent 
 
            patient at Woodward State Hospital in March of 1990 (Ex. 
 
            51).  Finally, on February 18, 1991, Dr. Jones prepared 
 
            another return to work release indicating that claimant was 
 
            able to return to regular duties on February 19, 1991 (Ex. 
 
            52).
 
            
 
                                conclusions of law
 
            
 
                 Claimant contends that he suffered two work related 
 
            injuries to his back on March 7, 1990 and March 29, 1990, 
 
            the severity of which was not apparent to him until April 6, 
 
            1990, when he received the results of an MRI scan of the 
 
            lumbar spine.  Defendant disputes claimant's contentions and 
 
            deny that he sustained injuries which arose out of and in 
 
            the course of employment with employer.
 
            
 
                 Claimant has the burden of proving by a preponderance 
 
            of the evidence that he received injuries on March 7, 1990 
 
            and March 29, 1990, which arose out of and in the course of 
 
            his employment.  McDowell v. Town of Clarksville, 241 N.W.2d 
 
            904 (Iowa 1976); Musselman v. Central Telephone Co., 261 
 
            Iowa 352, 154 N.W.2d 128 (1967). 
 
            
 
                 An employee is entitled to compensation for any and all 
 
            personal injuries which arise out of and in the course of 
 
            the employment.  Section 85.3(1).
 
            
 
                 The injury must both arise out of and be in the course 
 
            of the employment.  Crowe v. DeSoto Consol. Sch. Dist., 246 
 
            Iowa 402, 68 N.W.2d 63 (1955) and cases cited at pp. 405-406 
 
            of the Iowa Report.  See also Sister Mary Benedict v. St. 
 
            Mary's Corp., 255 Iowa 847, 124 N.W.2d 548 (l963) and Hansen 
 
            v. State of Iowa, 249 Iowa 1147, 91 N.W.2d 555 (1958).
 

 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
            
 
                 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).
 
            
 
                 "An injury occurs in the course of the employment when 
 
            it is within the period of employment at a place the 
 
            employee may reasonably be, and while he is doing his work 
 
            or something incidental to it."  Cedar Rapids Comm. Sch. 
 
            Dist. v. Cady, 278 N.W.2d 298 (Iowa 1979), McClure, 188 
 
            N.W.2d 283 (Iowa 1971); Musselman, 261 Iowa 352, 154 N.W.2d 
 
            128 (1967). 
 
            
 
                 The supreme court of Iowa in Almquist v. Shenandoah 
 
            Nurseries, 218 Iowa 724, 731-32, 254 N.W. 35, 38 (1934) 
 
            discussed the definition of personal injury in workers' 
 
            compensation cases as follows:
 
            
 
                 
 
            
 
                 While a personal injury does not include an occupa
 
                 tional disease under the Workmen's Compensation 
 
                 Act, yet an injury to the health may be a personal 
 
                 injury.  [Citations omitted.]  Likewise a personal 
 
                 injury includes a disease resulting from an 
 
                 injury....The result of changes in the human body 
 
                 incident to the general processes of nature do not 
 
                 amount to a personal injury.  This must follow, 
 
                 even though such natural change may come about 
 
                 because the life has been devoted to labor and 
 
                 hard work.  Such result of those natural changes 
 
                 does not constitute a personal injury even though 
 
                 the same brings about impairment of health or the 
 
                 total or partial incapacity of the functions of 
 
                 the human body. 
 
            
 
                    ....
 
            
 
                 
 
                 A personal injury, contemplated by the Workmen's 
 
                 Compensation Law, obviously means an injury to the 
 
                 body, the impairment of health, or a disease, not 
 
                 excluded by the act, which comes about, not through the 
 
                 natural building up and tearing down of the human body, 
 
                 but because of a traumatic or other hurt or damage to 
 
                 the health or body of an employee.  [Citations 
 
                 omitted.]  The injury to the human body here 
 
                 contemplated must be something, whether an accident or 
 
                 not, that acts extraneously to the natural processes of 
 
                 nature, and thereby impairs the health, overcomes, 
 
                 injures, interrupts, or destroys some function of the 
 
                 body, or otherwise damages or injures a part or all of 
 
                 the body.
 
            
 
                 Claimant testified that on March 7, 1990, he was 
 
            involved in an incident with a maladaptive patient named 
 

 
            
 
            Page   6
 
            
 
            
 
            
 
            
 
            David Speck.  He testified that he had to separate Mr. Speck 
 
            from another patient and in the process of escorting him 
 
            back to his bedroom they both fell and hit the floor.  He 
 
            experienced some discomfort in his back upon hitting the 
 
            ground.  He testified that although there were other people 
 
            nearby, no one witnessed the incident.  He stated that he 
 
            did not fill out an incident report because he was not aware 
 
            of the severity of his injury at that time.  He worked the 
 
            rest of his shift that evening and took no time off work due 
 
            to the incident.  His supervisor, Gary Books, testified that 
 
            he was not notified of a work-related injury on March 7, 
 
            1990.
 
            
 
                 Claimant has the burden of proof.  Claimant has not 
 
            shown by a preponderance of the evidence that he received an 
 
            injury on March 7, 1990, which arose out of and in the 
 
            course of employment with employer.  Claimant's testimony in 
 
            this regard is not supported by the documentary evidence in 
 
            the record and, in fact, is specifically refuted by his 
 
            supervisor.  Claimant was not unaware of the procedure for 
 
            filing an incident report.  Without corroboration, the 
 
            undersigned cannot accept claimant's version of the events 
 
            that transpired on March 7, 1990.
 
            
 
                 Even if claimant had prevailed on the arising out of 
 
            and in the course of employment issue, claimant's claim as 
 
            to a March 7, 1990 injury would have failed on account of 
 
            his failure to give his employer timely notice of his 
 
            condition as required by Iowa Code section 85.23.
 
            
 
                 Section 85.23 requires an employee to give notice of 
 
            the occurrence of an injury to the employer within 90 days 
 
            from the date of the occurrence, unless the employer had 
 
            actual knowledge of the occurrence of the injury.
 
            
 
                 The purpose of the 90-day notice or actual knowledge 
 
            requirement is to give the employer an opportunity to timely 
 
            investigate the facts surrounding the injury.  The actual 
 
            knowledge alternative to notice is met when the employer, as 
 
            a reasonably conscientious manager, is alerted to the 
 
            possibility of a potential compensation claim through 
 
            information which makes the employer aware that the injury 
 
            occurred and that it may be work related.  Dillinger v. City 
 
            of Sioux City, 368 N.W.2d 176 (Iowa 1985); Robinson v. 
 
            Department of Transp., 296 N.W.2d 809 (Iowa 1980).  The time 
 
            period for giving notice does not begin to run until the 
 
            claimant, as a reasonable person, should recognize the 
 
            nature, seriousness and probable compensable character of 
 
            the injury.  The reasonableness of claimant's conduct is to 
 
            be judged in light of claimant's education and intelligence.  
 
            Claimant must know enough about the condition or incident to 
 
            realize that it is both serious and work connected.  
 
            Positive medical information is unnecessary if information 
 
            from any source gives notice of the condition's probable 
 
            compensability.  Robinson, 296 N.W.2d 809.
 
            
 
                 Failure to give notice is an affirmative defense which 
 
            the employer must prove by a preponderance of the evidence.  
 
            DeLong v. Highway Commission, 229 Iowa 700, 295 N.W. 91 
 
            (1940).
 

 
            
 
            Page   7
 
            
 
            
 
            
 
            
 
            
 
                 Claimant clearly did not give his employer actual 
 
            notice of his injury within 90 days of the incident.  He 
 
            filed an original notice and petition regarding this alleged 
 
            injury on October 12, 1990.  At the hearing, claimant's 
 
            supervisor presented a log he personally kept of all 
 
            employee actions related to on-the-job absences.  There are 
 
            no entries pertinent to a March 7, 1990, work-related 
 
            injury.  In fact, on April 4, 1990, claimant called in sick 
 
            indicating that his back went out when he was at home.  He 
 
            called back on April 9, 1990, and was specifically asked 
 
            whether his back problem was an on-the-job injury.  Claimant 
 
            answered in the negative and stated that his back went out 
 
            when he was picking up a vegetable at home.  When he called 
 
            on April 23, 1990, to inform employer that he was having 
 
            back surgery, Mr. Books again asked him if he was sure that 
 
            this was not an on-the-job injury.  He stated again that he 
 
            had hurt his back at home (Defendant's Ex. 11).  Claimant 
 
            had every opportunity to put employer on notice that an 
 
            incident occurred at work which resulted in a back injury.  
 
            However, he failed to do so.  For the above reasons, it is 
 
            concluded that claimant's failure to comply with the notice 
 
            requirement of section 85.23 also prevents him from 
 
            recovering from employer on account of his  claimed injury 
 
            on March 7, 1990.  Therefore, claimant takes nothing from 
 
            this proceeding in agency File No. 954476.
 
            
 
                 Claimant has also failed to meet his burden of proof in 
 
            regard to his alleged March 29, 1990 injury.
 
            
 
                 Claimant's testimony conflicts with the documentary 
 
            evidence of record.  Claimant testified that on March 29, 
 
            1990, he was restraining Mr. Speck in the hallway and 
 
            slipped and fell on the wet floor.  He testified that he 
 
            experienced back pain as a result of the fall.  On this 
 
            occasion, he filed an incident report stating that "[d]uring 
 
            a [sic] aggression of client #7713 I bit my lip and 
 
            experienced some lower back pain/tenderness." (Exs. 67, 
 
            81-82)  The incident occurred at 3:30 p.m. and claimant 
 
            reported it to Nurse Lockamy.  The nurse recorded the event 
 
            on the incident report and indicated that claimant declined 
 
            to see a physician.  Claimant's recitation of the events 
 
            which allegedly occurred on March 29, 1990, do not correlate 
 
            with the incident report in a few respects.  First, in 
 
            describing the incident, claimant did not mention that he 
 
            slipped and fell on a wet floor.  Secondly, claimant 
 
            testified that the patient who was the subject of this 
 
            incident was the same Mr. Speck he encountered on March 7, 
 
            1990.  In his written description of the incident, claimant 
 
            identifies client #7713.  Client #7713 is a Mr. Eugene 
 
            Hanson.  Thirdly, claimant testified that the incident 
 
            occurred in the hallway of the dormitory.  The incident 
 
            report indicates that the incident occurred in the 
 
            "courtroom."  Mr. Books testified that the courtroom is the 
 
            canteen.  He also stated that Mr. Speck would not have been 
 
            in the canteen because it wasn't one of his regular stops.  
 
            He also testified that claimant reported a March 7, 1990 
 
            incident to him and identified patient #7713 as being 
 
            involved.
 
            
 

 
            
 
            Page   8
 
            
 
            
 
            
 
            
 
                 Thus, it appears that claimant's testimonial version of 
 
            the March 29, 1990, incident significantly conflicts with 
 
            the incident report he completed within one hour after the 
 
            incident occurred.  The undersigned finds that the 
 
            statements recited in the written incident report are more 
 
            reliable than claimant's testimony since they were written 
 
            closer to the incident and prior to filing a workers' 
 
            compensation claim.  It is also difficult to understand why 
 
            claimant neglected to describe a slip-and-fall incident, if 
 
            in fact one occurred, when he completed the incident report.  
 
            Furthermore, while it is possible that claimant confused the 
 
            identification of the patient involved, it is unlikely that 
 
            he could not remember the place where the event occurred. 
 
            Claimant testified that he slipped in the hallway.  The 
 
            Incident Report identifies the canteen as the location of 
 
            the event.  Claimant testified that the patient involved was 
 
            Mr. Speck.  The Incident Report identifies Mr. Hanson as the 
 
            patient involved.
 
            
 
                 The evidence is conflicting and confusing.  Mr. Books' 
 
            Employee Action log shows that when claimant called on April 
 
            9, 1990, he indicated he would be back to work on April 15, 
 
            1990 (Deft's Ex. 11).  Instead of returning to work on April 
 
            15, 1990, claimant called Mr. Books, who was not in the 
 
            office that day, and spoke to Mr. Steve Overstreet who just 
 
            happened to be working that Sunday afternoon.  He informed 
 
            Mr. Overstreet that he hurt his back while working in the 
 
            garden.  Claimant testified that he had no significant back 
 
            pain or limitations which required being off work until 
 
            April 6, 1990, when, while leaning over to get an onion, he 
 
            felt excruciating pain.  This incident occurred after work 
 
            when claimant was at home.
 
            
 
                 After carefully considering the total evidence in this 
 
            case, the undersigned concludes that claimant has not shown 
 
            by a preponderance of the evidence that he received an 
 
            injury on March 29, 1990, arising out of and in the course 
 
            of employment with employer.  Numerous inconsistencies in 
 
            claimant's testimony and his inability to remember certain 
 
            dates and events cast doubt on the veracity of his 
 
            contentions.  Furthermore, some of his testimony is 
 
            contradicted by other witnesses and the documentary evi
 
            dence.  Claimant is not a credible witnesses.  He has made 
 
            too many inconsistent statements which make it impossible to 
 
            support a recovery in this case.  Where the versions of the 
 
            injury change, the undersigned cannot determine which 
 
            version to believe.  This determination is dispositive of 
 
            all other issues.  Therefore, claimant takes nothing from 
 
            File No. 953774.
 
            
 
                                      order
 
            
 
                 Claimant takes nothing from this proceeding in agency 
 
            File Nos. 954476 and 953774.
 
            
 
                 The parties shall pay their own costs.
 
            
 
            
 
            
 
                 Signed and filed this ____ day of October, 1991.
 

 
            
 
            Page   9
 
            
 
            
 
            
 
            
 
            
 
            
 
            
 
            
 
            
 
                                          ______________________________               
 
            JEAN M. INGRASSIA
 
                                          DEPUTY INDUSTRIAL COMMISSIONER
 

 
            
 
            Page  10
 
            
 
            
 
            
 
            
 
            
 
            
 
            
 
            Copies To:
 
            
 
            Mr. John D. Jordan
 
            Attorney at Law
 
            801 Keeler St
 
            P O Box 219
 
            Boone  IA  50036
 
            
 
            Mr. Dean A. Lerner
 
            Assistant Attorney General
 
            Hoover State Office Bldg
 
            Des Moines  IA  50319
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                           5-1100
 
                           Filed October 22, 1991
 
                           JEAN M. INGRASSIA
 
            before the iowa industrial commissioner
 
            ___________________________________________________________
 
		                       :
 
            MICHAEL R. DELAY,          :
 
                       		       :
 
                 Claimant,  	       :
 
		                       :
 
		            vs.        :
 
                		       :    File Nos. 953774 & 954476
 
            WOODWARD STATE HOSPITAL SCHOOL,:
 
                       		       :      A R B I T R A T I O N
 
                 Employer,  	       :
 
		                       :         D E C I S I O N
 
		            and        :
 
                		       :
 
            STATE OF IOWA,  	       :
 
                       		       :
 
                 Insurance Carrier,    :
 
                 Defendants.           :
 
            ___________________________________________________________
 
            
 
            
 
            
 
            5-1100
 
            Claimant, a resident treatment worker at Woodward State 
 
            School, alleges work-related injuries on March 7, 1990 and 
 
            March 29, 1990.  Claimant's inconsistent statements make it 
 
            impossible to support a recovery in this case.  Where the 
 
            versions of the injuries change, the undersigned cannot tell 
 
            what version to believe.  Claimant is not a credible 
 
            witness.  He made too many inconsistent statements in regard 
 
            to the manner in which he was supposedly injured.  Some of 
 
            his testimony was contradicted by other witnesses and the 
 
            documentary evidence.  After reviewing the total evidence in 
 
            this case, the undersigned concludes that claimant did not 
 
            receive injuries arising out of and in the course of his 
 
            employment with employer.