5-1801
 
                                                  Filed May 24, 1993
 
                                                  Jean M. Ingrassia
 
            
 
                      BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
                      
 
            VERLIN FREDERICK,   
 
                      
 
                 Claimant, 
 
                      
 
            vs.       
 
                                                 File No. 954006
 
            SEARS ROEBUCK & COMPANY, 
 
                                              A R B I T R A T I O N
 
                 Employer, 
 
                                                  D E C I S I O N
 
            and       
 
                      
 
            ALLSTATE INSURANCE CO.,  
 
                      
 
                 Insurance Carrier,  
 
                 Defendants.    
 
            ___________________________________________________________
 
            
 
            5-1801
 
            
 
            Claimant found entitled to temporary total disability 
 
            benefits for time off work as a result of an injury to his 
 
            right ankle while at home.  Such injury was found to be the 
 
            proximate result of the original injury on June 27, 1990.
 
            Causation was established by claimant's treating surgeon.  
 
            He stated that claimant's bimalleolar fracture was 
 
            significantly related to his previous heel injury and heel 
 
            fractures.  Defendants produced no medical evidence to the 
 
            contrary.
 
            
 
 
            
 
            Page   1
 
            
 
            
 
            
 
            
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
            _____
 
                                            :
 
            BONNIE STEPHENSON,              :
 
                                            :
 
                 Claimant,                  :
 
                                            :
 
            vs.                             :
 
                                            :    File Nos. 954358/954359
 
            FURNAS ELECTRIC,                :
 
                                            :           A P P E A L
 
                 Employer,                  :
 
                                            :         D E C I S I O N
 
            and                             :
 
                                            :
 
            LIBERTY MUTUAL INSURANCE        :
 
            COMPANY,                        :
 
                                            :
 
                 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
 
            
 
                 Claimant states the following issues on appeal:
 
            
 
                    Whether the deputy erred in concluding Bonnie's 
 
                 second healing period expired July 29, 1990;
 
            
 
                    Whether the deputy erred in concluding the 
 
                 defendants are not financially responsible for the 
 
                 purchase of a hot tub prescribed by an authorized 
 
                 treating physician for the treatment of her work 
 
                 related repetitive motion disorder;
 
            
 
                    Whether the deputy erred in concluding Bonnie's 
 
                 repetitive motion disorder is a scheduled member 
 
                 instead of a body as a whole condition entitling 
 
                 her to an award of industrial disability benefits 
 
                 when the unrefuted medical and lay testimony 
 
                 established that the symptoms and pathology 
 
                 associated with her disorder are not confined to 
 
                 either of her left or right arms but rather 
 
                 include both shoulders and areas of the
 
            
 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            anatomy immediately proximal to the shoulders 
 
            including the paracervical and scapular regions;
 
            
 
                    Whether the deputy erred in failing to award 
 
                 permanent total disability benefits pursuant to 
 
                 section 85.34(2)(s) and (3) for the disablement 
 
                 associated with her repetitive motion disorder 
 
                 when the unrefuted medical evidence clearly 
 
                 established Bonnie was incapable of performing 
 
                 even sedentary employment activities;
 
            
 
                    Whether the deputy erred in refusing to rule 
 
                 upon Bonnie's contention that her repetitive 
 
                 motion disorder is an occupational disease as 
 
                 defined by section 85A.8, entitling her to 
 
                 benefits pursuant to section 85A.4;
 
            
 
                    Whether the deputy erred in sustaining the 
 
                 defendants' motion to strike the testimony of 
 
                 Bonnie's vocational expert notwithstanding the 
 
                 fact that the identity of the witness and the 
 
                 content of his opinions and conclusions was 
 
                 disclosed via supplemental answers to 
 
                 interrogatories 30 days prior to hearing in 
 
                 compliance with the hearing assignment order and 
 
                 IRCP 125(c).
 
            
 
                                 findings of fact
 
            
 
                 The findings of fact contained in the proposed agency 
 
            decision filed December 20, 1991 are adopted as set forth 
 
            below.  Segments designated by asterisks (*****) indicate 
 
            portions of the language from the proposed agency decision 
 
            that have been intentionally deleted and do not form a part 
 
            of this final agency decision.
 
            
 
                 Claimant is a 42-year-old high school graduate who has 
 
            no other formal education.  Claimant's work history prior to 
 
            January of 1984 included working as a waitress and as a 
 
            department store clerk.  She then worked six months for 
 
            defendant employer beginning January of 1984 and after a 
 
            layoff, she was a waitress and salad and roll maker until 
 
            she began working for defendant employer again in January 
 
            1986.  Claimant worked for defendant employer until June of 
 
            1990.  Claimant described her work duties in her various 
 
            jobs.
 
            
 
                 Claimant described in detail her duties on the assembly 
 
            line while working for defendant employer, which duties 
 
            included building switches.  Claimant contends she had no 
 
            prior problems with her hands and arms or shoulders prior to 
 
            her alleged injuries.
 
            
 
                 Claimant described the expected efficiency levels 
 
            required and indicated an 80 percent requirement after 90 
 
            days.  Claimant's exhibit 4, pages 29 to 44, show her 
 
            reviews and the fact she was not able to meet the goals.  
 
            She said she needed to be faster.  Claimant related the 
 
            extensive use of her hands and arms in her work.  Claimant 
 
            said she often felt popping in the shoulder, arms and neck 
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            when she had to exert certain pressure in the use of torque 
 
            screwdrivers, etc.  At times, claimant said she had to lift 
 
            boxes of switches weighing up to 50 pounds.
 
            
 
                 Claimant related that she made an appointment on 
 
            December 2, 1988, to see the doctor.  She had bid on another 
 
            job because of her arm trouble.  Claimant said she scheduled 
 
            an interview but needed to leave to see the doctor.  The 
 
            interviewer told her she wasn't needed in the other bid job 
 
            if she had arm trouble.
 
            
 
                 Claimant said that when she first saw Thomas J. Lower, 
 
            D.O., for her right arm, shoulder and neck, he indicated 
 
            claimant had the same problem on the left even though 
 
            claimant was not experiencing problems on the left.  Splints 
 
            were put on both arms and claimant was given light duty.  
 
            Claimant described her medical treatment and related her 
 
            right hand and elbow surgery in March 1989 performed by 
 
            Douglas S. Reagan, M.D.
 
            
 
                 Claimant bid into a setup job in 1989 and held this job 
 
            until the end of her employment with defendant employer in 
 
            June of 1990 (Claimant's Exhibit 4, page 45).  On June 18, 
 
            1990, Thomas W. Bower, LPT, put an electricity apparatus on 
 
            claimant to test her and claimant said she experienced 
 
            extreme pain.  Claimant continued to have problems with her 
 
            arms and said she could not stand to have someone touch her 
 
            arm or shoulder.  Claimant hasn't worked since June 21, 
 
            1990.
 
            
 
                 Claimant said riding a lawn mower, riding in or driving 
 
            a car bothers her.  Vibrations trigger the pain.
 
            
 
                 In joint exhibit E, page 13, Dr. Reagan sets out 
 
            claimant's restrictions on August 9, 1990, which included a 
 
            five pound lifting restriction, no use of the right hand and 
 
            limited use of the left hand.  On October 4, 1990, joint 
 
            exhibit E, page 15, Dr. Reagan sets out claimant's 
 
            restrictions which included the five pound lifting 
 
            restriction and limited use of claimant's right hand and 
 
            working at her own speed.  He said this condition was work 
 
            related.  Dr. Reagan recommended claimant be referred to 
 
            vocational rehabilitation for her bilateral upper extremity 
 
            problems (Jt. Ex. E, p. 22).
 
            
 
                 Claimant indicated the doctor said some people are 
 
            benefited by the use of a hot tub.  Claimant used a friend's 
 
            tub and it
 
            
 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
            helped.  Claimant purchased a hot tub in March of 1991.  
 
            After six weeks, claimant was improved and the doctor then 
 
            wrote a prescription for a hot tub for claimant on May 31, 
 
            1991 (Jt. Ex. E, p. 9).  By May 1991, claimant said she was 
 
            able to increase her activities.
 
            
 
                 Claimant stated she tried to find work beginning 
 
            December 1990 in Osceola, and has sent out over 95 
 
            applications and has had a few interviews but has not been 
 
            hired.  She related her restrictions and arm problems are 
 
            affecting her ability to get a job.  Claimant said she is 
 
            never without pain.
 
            
 
                 Claimant was making $6.47 per hour and had family 
 
            insurance, retirement benefits and dental insurance when she 
 
            worked for defendant employer.  She said she can't get 
 
            insurance now.
 
            
 
                 Eldon Stephenson, claimant's husband, testified that he 
 
            and claimant did a lot of things together as a family and 
 
            now it is different.  Claimant no longer golfs and does not 
 
            use a computer.  She no longer does gardening, yard work, 
 
            etc.  He related claimant cannot do the crafts and painting 
 
            she used to do.
 
            
 
                 He related the hot tub bids and said they now have a 
 
            hot tub outside.  The hot tub cost $1,291 (Cl. Ex. 7).  He 
 
            acknowledged Dr. Reagan wrote a prescription after claimant 
 
            used a friend's hot tub and he and claimant eventually 
 
            bought a hot tub (Jt. Ex. E, p. 9).
 
            
 
                 Joint exhibit C, page 1, sets out claimant's right 
 
            carpal tunnel, ulnar tunnel and cubital tunnel release 
 
            surgery.
 
            
 
                 On March 29, 1990, Dr. Reagan opined a 6 percent 
 
            impairment to claimant's right upper extremity (Jt. Ex. E, 
 
            p. 5).  On June 28, 1990, Dr. Reagan indicated the insurance 
 
            company thought his rating was too high and the insurance 
 
            carrier sent claimant to Thomas Bower, LPT, who opined an 
 
            eight percent impairment.  Dr. Reagan thought that was 
 
            reasonable.  On August 9, 1990, Dr. Reagan felt that 
 
            claimant would not be able to return to her prior employment 
 
            with defendant employer.  He gave claimant a work release 
 
            for no use of claimant's right upper extremity and light 
 
            duty for the left upper extremity (Jt. Ex. E, p. 7).  Dr. 
 
            Reagan's notes of March 21, 1990, reflects a six percent 
 
            permanent partial impairment of claimant's upper left 
 
            extremity.
 
            
 
                 Joint exhibit E, pages 15 and 22, show an October 4, 
 
            1990 letter which appears to be claimant's current permanent 
 
            restrictions.  Dr. Reagan also recommended claimant be 
 
            referred to vocational rehabilitation (Jt. Ex. E, pp. 21 and 
 
            22).  Joint exhibit E, page 1, reflects Mr. Bower's eight 
 
            percent permanent partial impairment of claimant's right 
 
            upper extremity.
 
            
 
                 *****
 
            
 

 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
                                conclusions of law
 
            
 
                 The first issue to be resolved is the extent of 
 
            claimant's healing period.  Iowa Code section 85.34(1) 
 
            provides that healing period benefits are payable to an 
 
            injured worker who has suffered permanent partial disability 
 
            until (1) the worker has returned to work; (2) the worker is 
 
            medically capable of returning to substantially similar 
 
            employment; or (3) the worker has achieved maximum medical 
 
            recovery.  The healing period can be considered the period 
 
            during which there is a reasonable expectation of 
 
            improvement from the disabling condition.  See Armstrong 
 
            Tire & Rubber Co. v. Kubli, 312 N.W.2d 60 (Iowa App. 1981).  
 
            Healing period benefits can be interrupted or intermittent.  
 
            Teel v. McCord, 394 N.W.2d 405 (Iowa 1986).  On August 9, 
 
            1990 Dr. Reagan, claimant's treating doctor, gave claimant 
 
            her work release.  That work release indicates that on that 
 
            date her healing period ended.
 
            
 
                 The second issue to be decided is if defendants are 
 
            liable for the purchase of claimant's hot tub.  Iowa Code 
 
            section 85.27 provides in relevant part:
 
            
 
                    The employer, for all injuries compensable 
 
                 under this chapter or chapter 85A, shall furnish 
 
                 reasonable surgical, medical, dental, osteopathic, 
 
                 chiropractic, podiatric, physical rehabilitation 
 
                 nursing, ambulance and hospital services and 
 
                 supplies therefor and shall allow reasonably 
 
                 necessary transportation expenses incurred for 
 
                 such services.  The employer shall also furnish 
 
                 reasonable and necessary crutches, artificial 
 
                 members and appliances but shall not be required 
 
                 to furnish more than one set of permanent 
 
                 prosthetic devices.
 
            
 
            Claimant has the burden of proving entitlement to 
 
            reimbursement for the hot tub.  Claimant cites no authority 
 
            which supports her position.  Purchase of the hot tub is 
 
            clearly not specifically authorized under Iowa Code section 
 
            85.27.  Dr. Reagan's "prescription" for a hot tub can be 
 
            given little weight, if any.  The "prescription" was written 
 
            in May 1991 two months after the hot tub was purchased and 
 
            it is clear that the "prescription" was written pursuant to 
 
            the patient's request.  (See Joint Exhibit E, page 11)
 
            
 
                 The third issue to be resolved is whether claimant's 
 
            disability is a scheduled member injury.  The claimant has 
 
            the burden of proving by a preponderance of the evidence 
 
            that the
 
            
 
            
 
            Page   6
 
            
 
            
 
            
 
            
 
            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).
 
            
 
                 The right of an employee to receive compensation for 
 
            injuries sustained is statutory. The statute conferring this 
 
            right can also fix the amount of compensation payable for 
 
            different specific injuries.  The employee is not entitled 
 
            to compensation except as the statute provides.  Soukup v. 
 
            Shores Co., 222 Iowa 272, 268 N.W. 598 (1936).
 
            
 
                 Compensation for permanent partial disability begins at 
 
            termination of the healing period.  Iowa Code section 
 
            85.34(2).  Permanent partial disabilities are classified as 
 
            either scheduled or unscheduled.  A specific scheduled 
 
            disability is evaluated by the functional method; the 
 
            industrial method is used to evaluate an unscheduled 
 
            disability.  Simbro v. Delong's Sportswear, 332 N.W.2d 886 
 
            (Iowa 1983); Graves v. Eagle Iron Works, 331 N.W.2d 116 
 
            (Iowa 1983); Martin v. Skelly Oil Co., 252 Iowa 128, 106 
 
            N.W.2d 95 (1960).
 
            
 
                 An injury to a scheduled member may, because of after 
 
            effects or compensatory change, result in permanent 
 
            impairment of the body as a whole.  Such impairment may in 
 
            turn be the basis for a rating of industrial disability.  It 
 
            is the anatomical situs of the permanent injury or 
 
            impairment which determines whether the schedules in Iowa 
 
            Code section 85.34(2)"a"-"t" are applied.  Lauhoff Grain v. 
 
            McIntosh, 395 N.W.2d 834 (Iowa 1986); Blacksmith v. 
 
            All-American, Inc., 290 N.W.2d 348 (Iowa 1980); Dailey v. 
 
            Pooley Lumber Co., 233 Iowa 758, 10 N.W.2d 569 (1943).  
 
            Soukup v. Shores Co., 222 Iowa 272, 268 N.W. 598 (1936).
 
            
 
     
 
            
 
            
 
            Page   7
 
            
 
            
 
            
 
            
 
            Claimant has not met her burden of proving that her 
 
            disability extends into the body as a whole.  A claimant's 
 
            subjective complaints of pain are not sufficient to extend 
 
            an injury to a body as a whole.  The impairment ratings of 
 
            Dr. Reagan, claimant's treating doctor indicate the 
 
            impairment is limited to the claimant's arms.  Claimant 
 
            cites no reliable medical evidence in the record to support 
 
            her allegation that her disability extends into the body as 
 
            a whole.
 
            
 
                 Because claimant's disability is limited to scheduled 
 
            members and because all parties agree that she has had a 
 
            simultaneous injury, claimant is to be evaluated pursuant to 
 
            Iowa Code section 85.34(2)(s).
 
            
 
                 Total disability does not mean a state of absolute 
 
            helplessness.  Permanent total disability occurs where the 
 
            injury wholly disables the employee from performing work 
 
            that the employee's experience, training, education, 
 
            intelligence and physical capacities would otherwise permit 
 
            the employee to perform.  See McSpadden v. Big Ben Coal Co., 
 
            288 N.W.2d 181 (Iowa 1980); Diederich v. Tri-City Ry. Co., 
 
            219 Iowa 587, 258 N.W. 899 (1935).
 
            
 
                 A finding that claimant could perform some work despite 
 
            claimant's physical and educational limitations does not 
 
            foreclose a finding of permanent total disability, however.  
 
            See Chamberlin v. Ralston Purina, File No. 661698 (App. 
 
            October 29, 1987); Eastman v. Westway Trading Corp., II Iowa 
 
            Industrial Commissioner Report 134 (App. 1982).
 
            
 
                 Claimant is not permanently totally disabled.  She is 
 
            employable.  Claimant's entitlement to benefits is under 
 
            Iowa Code section 85.34(2)(s).  Dr. Reagan has given 
 
            claimant a six percent permanent partial impairment of the 
 
            upper left extremity.  Although he originally rated 
 
            claimant's impairment to the upper right extremity as six 
 
            percent he subsequently agreed that an eight percent rating 
 
            was reasonable.  Therefore, claimant's impairment rating to 
 
            the right upper extremity is eight percent.  The six and 
 
            eight percent impairment ratings convert to a combined value 
 
            of nine percent of the body as a whole using the AMA Guides 
 
            to the Evaluation of Permanent Impairment.  The nine percent 
 
            disability entitles claimant to 45 weeks of permanent 
 
            partial disability.
 
            
 
                 The next issue to be resolved is whether claimant's 
 
            condition is an occupational disease.  Claimant has been 
 
            diagnosed as having had carpal tunnel syndrome.  Dr. Reagan 
 
            on February 3, 1989 indicated that she may have also had 
 
            ulnar tunnel syndrome and cubital tunnel syndrome.  All 
 
            these were caused by repetitive motion traumas.  This agency 
 
            has previously ruled that bilateral carpal tunnel syndrome 
 
            caused by repetitive trauma is not an occupational disease 
 
            and would be compensable under Iowa Code chapter 85.  Noble 
 
            v. Lamoni Products, (file nos. 857575 and 851309) (Appeal 
 
            decision May 7, 1992).  The reasoning contained in Noble, 
 
            Id., are incorporated by reference in this decision.
 
            
 
                 The last issue to be resolved is whether the deputy 
 

 
            
 
            Page   8
 
            
 
            
 
            
 
            
 
            abused his discretion in finding the testimony of claimant's 
 
            vocational expert should be excluded.  Defendants had served 
 
            interrogatories on claimant requesting identification of 
 
            expert witnesses.  Claimant's counsel contacted the 
 
            vocational expert in October 1991 about the possibility of 
 
            testifying.  (This matter was scheduled for hearing in an 
 
            order dated July 11, 1991.)  Claimant supplemented her 
 
            answers to interrogatories to include the name of the expert 
 
            on November 6, 1991.  It is not an abuse of discretion to 
 
            not allow the testimony of the vocational expert.  If, as 
 
            claimant contends, the testimony was important to determine 
 
            employability of claimant, then it would be reasonable to 
 
            expect defendants to be notified in a more timely manner so 
 
            that they could prepare their case.  It was not an abuse of 
 
            discretion to exclude the testimony of the vocational 
 
            expert.
 
            
 
                 WHEREFORE, the decision of the deputy is affirmed and 
 
            modified.
 
            
 
                                      order
 
            
 
                 THEREFORE, it is ordered:
 
            
 
                 That defendants shall pay claimant healing period 
 
            benefits at the rate of one hundred eighty and 13/100 
 
            dollars ($180.13) per week for the period beginning December 
 
            24, 1988 through September 7, 1989, and beginning again June 
 
            21, 1990 through August 9, 1990.
 
            
 
                 That defendants shall pay unto claimant forty-five (45) 
 
            weeks of permanent partial disability benefits at the rate 
 
            of one hundred eighty and 13/100 dollars ($180.13), 
 
            commencing August 10, 1990.
 
            
 
                 That defendants shall pay accrued weekly benefits in a 
 
            lump sum and shall receive credit against the award for 
 
            weekly benefits previously paid.  
 
            
 
                 That defendants do not have to pay for a hot tub for 
 
            the claimant.
 
            
 
                 That defendants shall pay interest on benefits awarded 
 
            herein as set forth in Iowa Code section 85.30.
 
            
 
                 That claimant shall pay the costs of the appeal 
 
            including the transcription of the hearing.  Defendants 
 
            shall pay all other costs.
 
            
 
                 That defendants shall file an activity report upon 
 
            payment of this award as required by this agency, pursuant 
 
            to rule 343 IAC 3.1.
 
            
 
                 Signed and filed this ____ day of December, 1992.
 
            
 
            
 
            
 
            
 
                                          
 
            ________________________________
 

 
            
 
            Page   9
 
            
 
            
 
            
 
            
 
                                                   BYRON K. ORTON
 
                                              INDUSTRIAL COMMISSIONER
 
            
 
            Copies To:
 
            
 
            Mr. Steven C. Jayne
 
            Attorney at Law
 
            5835 Grand Ave.,  Ste 201
 
            Des Moines, IA 50312
 
            
 
            Mr. Joseph Cortese II
 
            Attorney at Law
 
            500 Liberty Bldg.
 
            Des Moines, IA 50309
 
            
 
            Mr. Helmut A. Mueller
 
            Attorney at Law
 
            RR 5
 
            Osceola, IA 50213
 
            
 
 
         
 
 
 
 
 
                                       5-1802; 5-1803.1; 5-2203;
 
                                       2500; 5-3700
 
                                       Filed December 21, 1992
 
                                       BYRON K. ORTON
 
                                       BJO
 
         
 
                           before the iowa industrial 
 
                                   commissioner
 
         _________________________________________________________________
 
                                         :
 
         BONNIE STEPHENSON,              :
 
                                         :
 
              Claimant,                  :
 
                                         :
 
         vs.                             :
 
                                         :    File Nos. 954358/954359
 
         FURNAS ELECTRIC,                :
 
                                         :           A P P E A L
 
              Employer,                  :
 
                                         :         D E C I S I O N
 
         and                             :
 
                                         :
 
         LIBERTY MUTUAL INSURANCE        :
 
         COMPANY,                        :
 
                                         :
 
              Insurance Carrier,         :
 
              Defendants.                :
 
         _________________________________________________________________
 
         
 
         5-1802
 
         Claimant's healing period ended when claimant was released to 
 
         return to work.
 
         
 
         5-1803.1
 
         Claimant's bilateral carpal tunnel syndrome was compensated 
 
         pursuant to 85.34(2)(s).  Claimant's subjective complaints of 
 
         pain were not sufficient to extend disability to the body as a 
 
         whole.
 
         
 
         5-2203
 
         Claimant's repetitive trauma disorders were not occupational 
 
         diseases.  Noble v. Lamoni Products, (Appeal Decision May 7, 
 
         1992) cited as authority.
 
         
 
         2500
 
         Defendants not liable for purchase of hot tub for claimant.  
 
         Claimant's doctor "prescribed" hot tub after it had been 
 
         purchased and after claimant requested the prescription.
 
         
 
         5-3700
 
         It was not an abuse of discretion to exclude testimony of expert 
 
         witness when interrogatories were not supplemented in a timely 
 
         manner.
 
         
 
 
            
 
            Page   1 
 
            
 
            
 
            
 
            
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            BONNIE STEPHENSON,            :
 
                                          :
 
                 Claimant,                :      File Nos. 954358
 
                                          :                954359
 
            vs.                           :
 
                                          :
 
            FURNAS ELECTRIC,              :
 
                                          :     A R B I T R A T I O N
 
                 Employer,                :
 
                                          :        D E C I S I O N
 
            and                           :
 
                                          :
 
            LIBERTY MUTUAL INSURANCE,     :
 
            COMPANY,                      :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
                              STATEMENT OF THE CASE
 
            
 
                 This case came on for hearing on December 5, 1991, at 
 
            Des Moines, Iowa.  This is a proceeding in arbitration 
 
            wherein claimant seeks compensation for permanent partial 
 
            disability benefits as a result of alleged injuries on 
 
            December 2, 1988 and December 24, 1988.  The record in the 
 
            proceedings consist of the testimony of the claimant; 
 
            claimant's husband, Eldon Stephenson; joint exhibits A 
 
            through F; and claimant's exhibits 4 through 8.
 
            
 
                                      issues
 
            
 
                 The issues for resolution are:
 
            
 
                 1.  The nature and extent of claimant's permanent 
 
            disability and entitlement to disability benefits;
 
            
 
                 2.  Claimant's entitlement to 85.27 medical benefits.  
 
            The only item in dispute is the cost of a hot tub; and,
 
            
 
                 3.  Whether claimant has an 85A occupational disease.
 
            
 
                                 findings of fact
 
            
 
                 The undersigned deputy, having heard the testimony and 
 
            considered all the evidence, finds that:
 
            
 
                 Claimant is a 42-year-old high school graduate who has 
 
            no other formal education.  Claimant's work history prior to 
 
            January of 1984 included working as a waitress and as a 
 
            department store clerk.  She then worked six months for 
 
            defendant employer beginning January of 1984 and after a 
 
            layoff, she was a waitress and salad and roll maker until 
 
            she began working for defendant employer again in January 
 
            1986.  Claimant worked for defendant employer until June of 
 
            1990.  Claimant described her work duties in her various 
 

 
            
 
            Page   2 
 
            
 
            
 
            
 
            
 
            jobs.
 
            
 
                 Claimant described in detail her duties on the assembly 
 
            line while working for defendant employer, which duties 
 
            included building switches.  Claimant contends she had no 
 
            prior problems with her hands and arms or shoulders prior to 
 
            her alleged injuries.
 
            
 
                 Claimant described the expected efficiency levels 
 
            required and indicated an 80 percent requirement after 90 
 
            days.  Claimant's exhibit 4, pages 29 to 44, show her 
 
            reviews and the fact she was not able to meet the goals.  
 
            She said she needed to be faster.  Claimant related the 
 
            extensive use of her hands and arms in her work.  Claimant 
 
            said she often felt popping in the shoulder, arms and neck 
 
            when she had to exert certain pressure in the use of torque 
 
            screwdrivers, etc.  At times, claimant said she had to lift 
 
            boxes of switches weighing up to 50 pounds.
 
            
 
                 Claimant related that she made an appointment on 
 
            December 2, 1988, to see the doctor.  She had bid on another 
 
            job because of her arm trouble.  Claimant said she scheduled 
 
            an interview but needed to leave to see the doctor.  The 
 
            interviewer told her she wasn't needed in the other bid job 
 
            if she had arm trouble.
 
            
 
                 Claimant said that when she first saw Thomas J. Lower, 
 
            D.O., for her right arm, shoulder and neck, he indicated 
 
            claimant had the same problem on the left even though 
 
            claimant was not experiencing problems on the left.  Splints 
 
            were put on both arms and claimant was given light duty.  
 
            Claimant described her medical treatment and related her 
 
            right hand and elbow surgery in March 1989 performed by 
 
            Douglas S. Reagan, M.D.
 
            
 
                 Claimant bid into a setup job in 1989 and held this job 
 
            until the end of her employment with defendant employer in 
 
            June of 1990 (Claimant's Exhibit 4, page 45).  On June 18, 
 
            1990, Thomas W. Bower, LPT, put an electricity apparatus on 
 
            claimant to test her and claimant said she experienced 
 
            extreme pain.  Claimant continued to have problems with her 
 
            arms and said she could not stand to have someone touch her 
 
            arm or shoulder.  Claimant hasn't worked since June 21, 
 
            1990.
 
            
 
                 Claimant said riding a lawn mower, riding in or driving 
 
            a car bothers her.  Vibrations trigger the pain.
 
            
 
                 In joint exhibit E, page 13, Dr. Reagan sets out 
 
            claimant's restrictions on August 9, 1990, which included a 
 
            5 pound lifting restriction, no use of the right hand and 
 
            limited use of the left hand.  On October 4, 1990, joint 
 
            exhibit E, page 15, Dr. Reagan sets out claimant's 
 
            restrictions which included the 5 pound lifting restriction 
 
            and limited use of claimant's right hand and working at her 
 
            own speed.  He said this condition was work related.  Dr. 
 
            Reagan recommended claimant be referred to vocational 
 
            rehabilitation for her bilateral upper extremity problems 
 
            (Jt. Ex. E, p. 22).
 
            
 

 
            
 
            Page   3 
 
            
 
            
 
            
 
            
 
                 Claimant indicated the doctor said some people are 
 
            benefited by the use of a hot tub.  Claimant used a friend's 
 
            tub and it helped.  Claimant purchased a hot tub in March of 
 
            1991.  After six weeks, claimant was improved and the doctor 
 
            then wrote a prescription for a hot tub for claimant on May 
 
            31, 1991 (Jt. Ex. E, p. 9).  By May 1991, claimant said she 
 
            was able to increase her activities.
 
            
 
                 Claimant stated she tried to find work beginning 
 
            December 1990 in Osceola, and has sent out over 95 
 
            applications and has had a few interviews but has not been 
 
            hired.  She related her restrictions and arm problems are 
 
            affecting her ability to get a job.  Claimant said she is 
 
            never without pain.
 
            
 
                 Claimant was making $6.47 per hour and had family 
 
            insurance, retirement benefits and dental insurance when she 
 
            worked for defendant employer.  She said she can't get 
 
            insurance now.
 
            
 
                 Eldon Stephenson, claimant's husband, testified that he 
 
            and claimant did a lot of things together as a family and 
 
            now it is different.  Claimant no longer golfs and does not 
 
            use a computer.  She no longer does gardening, yard work, 
 
            etc.  He related claimant cannot do the crafts and painting 
 
            she used to do.
 
            
 
                 He related the hot tub bids and said they now have a 
 
            hot tub outside.  The hot tub cost $1,291 (Cl. Ex. 7).  He 
 
            acknowledged Dr. Reagan wrote a prescription after claimant 
 
            used a friend's hot tub and he and claimant eventually 
 
            bought a hot tub (Jt. Ex. E, p. 9).
 
            
 
                 Joint exhibit C, page 1, sets out claimant's right 
 
            carpal tunnel, ulnar tunnel and cupital tunnel release 
 
            surgery.
 
            
 
                 On March 29, 1990, Dr. Reagan opined a 6 percent 
 
            impairment to claimant's right upper extremity (Jt. Ex. E, 
 
            p. 5).  On June 28, 1990, Dr. Reagan indicated the insurance 
 
            company thought his rating was too high and the insurance 
 
            carrier sent claimant to Thomas Bower, LPT, who opined an 8 
 
            percent impairment.  Dr. Reagan thought that was reasonable.  
 
            On August 9, 1990, Dr. Reagan felt that claimant would not 
 
            be able to return to her prior employment with defendant 
 
            employer.  He gave claimant a work release for no use of 
 
            claimant's right upper extremity and light duty for the left 
 
            upper extremity (Jt. Ex. E, p. 7).  Dr. Reagan's notes of 
 
            March 21, 1990, reflects a 6 percent permanent partial 
 
            impairment of claimant's upper left extremity.
 
            
 
                 Joint exhibit E, pages 15 and 22, show an October 4, 
 
            1990 letter which appears to be claimant's current permanent 
 
            restrictions.  Dr. Reagan also recommended claimant be 
 
            referred to vocational rehabilitation (Jt. Ex. E, pp. 21 and 
 
            22).  Joint exhibit E, page 1, reflects Mr. Bower's 8 
 
            percent permanent partial impairment of claimant's right 
 
            upper extremity.
 
            
 
                 There is no dispute that claimant incurred a 
 

 
            
 
            Page   4 
 
            
 
            
 
            
 
            
 
            simultaneous bilateral carpal tunnel injury on December 2, 
 
            1988 or December 24, 1988.  The parties explained that the 
 
            December 2, 1988 is the date claimant reported the symptoms 
 
            and on December 24, 1988 is the date of disablement and lost 
 
            time.  All the parties agree that there was a simultaneous 
 
            bilateral carpal tunnel that occurred on one of the two 
 
            dates.   For purposes of this decision, the undersigned 
 
            finds December 24, 1988 as the date of the simultaneous 
 
            bilateral carpal tunnel injury.
 
            
 
                 Claimant contends that he has industrial disability and 
 
            body as a whole injury and that her injuries are not limited 
 
            to scheduled members or only limited to the provisions of 
 
            85.34(2)(s).  There is no specific reference as far as any 
 
            impairment as to reasons for the restrictions relating to 
 
            anything other than claimant's bilateral carpal tunnel 
 
            condition.  Claimant is obviously using joint exhibit E, 
 
            pages 24 through 27, to indicate that these injuries extend 
 
            into claimant's body as a whole.  Notwithstanding the fact 
 
            the doctor basically agreed to the statements in claimant's 
 
            attorney's letter, the doctor did not specifically adjust or 
 
            change his impairment proceedings which prior to those 
 
            letters was strictly in reference to claimant's upper 
 
            extremities with no specific mention that they extend into 
 
            the body as a whole.  The undersigned finds that claimant's 
 
            simultaneous bilateral carpal tunnel injury on December 24, 
 
            1988 did not extend into claimant's body as a whole and that 
 
            we are, in fact, dealing with an injury under the provisions 
 
            of 85.34(2)(s).
 
            
 
                 The insurance company paid on the basis of 40 weeks of 
 
            permanent partial disability benefits arriving at the figure 
 
            by taking 6 percent permanent impairment to claimant's left 
 
            and right upper extremities and converting them under the 
 
            charts and arriving at an 8 percent combined chart body as a 
 
            whole impairment rating.  The insurance company was not 
 
            satisfied with Dr. Reagan's 6 percent permanent impairment 
 
            to claimant's right upper extremity and requested another 
 
            opinion.  They received that other opinion which indicated 
 
            an 8 percent permanent impairment.  The undersigned finds 
 
            that under the circumstances, the 8 percent is more accurate 
 
            and Dr. Reagan considers that reasonable too.  It could be 
 
            determined that he agreed that his 6 percent should be 8, or 
 
            at least he did not disagree with an 8 percent.  Using the 
 
            combined charts, this would come to a 9 percent combined 
 
            body as a whole permanent impairment.
 
            
 
                 The undersigned is concerned by the extensive 
 
            restrictions that the claimant has.  Dr. Reagan's October 5, 
 
            1990 letter indicates that claimant may return to light duty 
 
            activities with the following permanent restrictions, 
 
            namely, a 5 pound weight lifting restriction, no repetitive 
 
            activities, use of a splint and work at her own speed for 
 
            both upper extremities.  These restrictions do not seem to 
 
            have been changed to the present.  The doctor recommended 
 
            that claimant not return to her employment duties with 
 
            defendant employer as she would probably aggravate her 
 
            disorders, resulting in symptoms and disability.  Claimant's 
 
            exhibits 5, pages 49, 51 and 53, indicate defendant employer 
 
            does not have any work available for claimant within Dr. 
 

 
            
 
            Page   5 
 
            
 
            
 
            
 
            
 
            Reagan's restrictions.  There is no specific indication, 
 
            when the doctor and LPT opined an impairment, that they 
 
            specifically considered claimant's inability to return to 
 
            work and severe restrictions in the impairment. 
 
            
 
                  Looking at the record as a whole, it does not seem 
 
            that those impairment ratings are reasonable in light of the 
 
            severe restrictions this claimant has.  The undersigned 
 
            believes that he has the discretion to take all of the 
 
            circumstances into consideration, including agency 
 
            precedence or experience, and determine the extent of 
 
            claimant's impairments.  The undersigned is not specifically 
 
            going to increase the particular impairments that the doctor 
 
            and the physical therapist arrived at, but the undersigned 
 
            is taking into consideration those impairments and the 
 
            severe restrictions in determining that claimant, in fact, 
 
            has more than a 9 percent body as a whole impairment under 
 
            the provisions of 85.34(2)(s).  The undersigned feels that 
 
            45 weeks (9 times 500 weeks) would be unfair and unjust 
 
            under the facts of this case considering the severe 
 
            restrictions.  It is obvious that the employer is not able 
 
            to provide any work within those restrictions and it doesn't 
 
            look like the employer is disagreeing with those 
 
            restrictions.  The medical opinions do not indicate how they 
 
            arrived at the impairment and do not indicate they referred 
 
            to the AMA Guides.  It appears to the undersigned that the 
 
            impairment ratings do not appear consistent with the severe 
 
            restrictions claimant has and the limitation of no 
 
            repetitive activities.  Therefore, the undersigned is 
 
            finding that claimant is entitled to 75 weeks of permanent 
 
            partial disability benefits rather than what would otherwise 
 
            have been 45 weeks if there was strict reliance on 8 and 6 
 
            percent permanent partial impairment and using the combined 
 
            charts under 85.34(2)(s).
 
            
 
                 The parties are disputing over the extent of claimant's 
 
            healing period.  Claimant contends the healing period is 
 
            June 21, 1990 up to October 4, 1990, which is the date the 
 
            doctor gave claimant's restrictions (Jt. Ex. E, p. 15 and 
 
            22) and defendants contend it is June 21, 1990 through July 
 
            29, 1990.  There are some additional times earlier than 
 
            those periods to which the parties are not in dispute.  If 
 
            one looked at the medical records at the time where 
 
            impairment opinions were given, there would even be 
 
            different times than what the defendants contend.  The 
 
            undersigned believes that the defendants' contention is 
 
            correct based on the medical evidence and the undersigned so 
 
            finds.  The undersigned therefore finds, considering all the 
 
            healing period including that which the parties are not in 
 
            dispute, that the claimant incurred a healing period from 
 
            December 24, 1988 through September 7, 1989, and June 21, 
 
            1990 through July 29, 1990.
 
            
 
                 Claimant contends he is entitled to the cost of a hot 
 
            tub under the provisions of 85.27.  It is undisputed that 
 
            the claimant bought the hot tub prior to the doctor writing 
 
            a prescription.  It is obvious the doctor wrote a 
 
            prescription after claimant used the hot tub and seemed to 
 
            receive relief.  The undersigned believes that the hot tub 
 
            is an instrument that has multi-use.  There are others 
 

 
            
 
            Page   6 
 
            
 
            
 
            
 
            
 
            besides claimant living at the premises and the hot tub is 
 
            available for them to use.  Even though there is no 
 
            testimony that others use the hot tub, the undersigned finds 
 
            that the hot tub has other than medical use and that 
 
            defendants should not be obligated to pay for it.
 
            
 
                 As an alternative, claimant contends that his medical 
 
            condition is an occupational disease under 85A.  The 
 
            undersigned has consistently held the position that when you 
 
            have scheduled member injuries, agency precedent to date 
 
            holds that they are not considered an occupational disease.
 
            
 
                 The undersigned feels that there is no need to go into 
 
            detail as far as explaining his position and covering the 
 
            various pros and cons until the industrial commissioner 
 
            and/or higher authority finds that scheduled member injuries 
 
            can be occupational diseases.  The undersigned is not 
 
            desirous of getting into the dispute or finding contrary to 
 
            current agency precedence.  The undersigned realizes that 
 
            there is a very small minority of deputies that are finding 
 
            occupational diseases in scheduled member cases, but that 
 
            this is contrary to not only agency precedence but contrary 
 
            to the majority of the deputies' opinions.
 
            
 
                                conclusions of law
 
            
 
                 Iowa Code section 85.34(2)(2) provides, in part:  "The 
 
            loss of both arms, or both hands, or both feet, or both 
 
            legs, or both eyes, or any two thereof, caused by a single 
 
            accident, shall equal five hundred weeks and shall be 
 
            compensated as such."
 
            
 
                 Workers' compensation benefits for permanent partial 
 
            disability of two members caused by a single accident is a 
 
            scheduled benefit under Iowa Code section 85.34(2)(s) and 
 
            that the degree of impairment caused by a partial loss must 
 
            be computed on the basis of functional, rather than 
 
            industrial disability.  Simbro v. DeLong's Sportswear, 332 
 
            N.W.2d 886 (1983).
 
            
 
                 Iowa Code section 85.34(1) provides that if an employee 
 
            has suffered a personal injury causing permanent partial 
 
            disability, the employer shall pay compensation for a 
 
            healing period from the day of the injury until (1) the 
 
            employee returns to work; or (2) it is medically indicated 
 
            that significant improvement from the injury is not 
 
            anticipated; or (3) until the employee is medically capable 
 
            of returning to substantially similar employment.
 
            
 
     
 
            
 
            
 
            Page   7 
 
            
 
            
 
            
 
            
 
            It is further concluded that:
 
            
 
                 Claimant incurred an injury on December 24, 1988, that 
 
            resulted in a simultaneous bilateral carpal tunnel injury to 
 
            claimant's right and left upper extremity, resulting in 
 
            claimant incurring 75 weeks of permanent partial disability 
 
            benefits at the rate of $180.13 per week with benefits 
 
            beginning July 30, 1990.
 
            
 
                 Claimant did not incur a simultaneous bilateral carpal 
 
            tunnel syndrome on December 2, 1988.
 
            
 
                 Claimant is not entitled to have defendants pay for a 
 
            hot tub under the provisions of 85.27 of the Iowa Code.
 
            
 
                 Claimant does not have an occupational disease under 
 
            the provisions of chapter 85A.
 
            
 
                                      order
 
            
 
                 THEREFORE, it is ordered:
 
            
 
                 That defendants shall pay unto claimant healing period 
 
            benefits at the rate of one hundred eighty and 13/100 
 
            dollars ($180.13) per week for the period beginning December 
 
            24, 1988 through September 7, 1989, and beginning again June 
 
            21, 1990 through July 29, 1990, which encompasses forty-two 
 
            (42) weeks.
 
            
 
                 That defendants shall pay unto claimant seventy-five 
 
            (75) weeks of permanent partial disability benefits at the 
 
            rate of one hundred eighty and 13/100 dollars ($180.13), 
 
            commencing July 30, 1990.
 
            
 
                 That defendants shall pay accrued weekly benefits in a 
 
            lump sum and shall receive credit against the award for 
 
            weekly benefits previously paid.  The parties stipulated 
 
            that defendants have paid sixty-one point eight five seven 
 
            (61.857) weeks of benefits.
 
            
 
                 Defendants do not have to pay for a hot tub for the 
 
            claimant.
 
            
 
                 That defendants shall pay interest on benefits awarded 
 
            herein as set forth in Iowa Code section 85.30.
 
            
 
                 That defendants shall pay the costs of this action, 
 
            pursuant to rule 343 IAC 4.33.
 
            
 
                 That defendants shall file an activity report upon 
 
            payment of this award as required by this agency, pursuant 
 
            to rule 343 IAC 3.1.
 
            
 
     
 
            
 
            
 
            Page   8 
 
            
 
            
 
            
 
            
 
            Signed and filed this ____ day of December, 1991.
 
            
 
            
 
            
 
                                          ______________________________
 
                                          BERNARD J. O'MALLEY
 
                                          DEPUTY INDUSTRIAL COMMISSIONER
 
            
 
            Copies to:
 
            
 
            Mr Steven C Jayne
 
            Attorney at Law
 
            5835 Grand Ave  Ste 201
 
            Des Moines IA 50312
 
            
 
            Mr Joseph Cortese II
 
            Attorney at Law
 
            500 Liberty Bldg
 
            Des Moines IA 50309
 
            
 
            Mr Helmut A Mueller
 
            Attorney at Law
 
            RR 5
 
            Osceola IA 50213
 
            
 
            
 
                 
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                          1803.1; 1803; 5-1802
 
                                          2203; 2505
 
                                          Filed 12-20-91
 
                                          Bernard J. O'Malley
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            BONNIE STEPHENSON,            :
 
                                          :
 
                 Claimant,                :      File Nos. 954358
 
                                          :                954359
 
            vs.                           :
 
                                          :
 
            FURNAS ELECTRIC,              :
 
                                          :     A R B I T R A T I O N
 
                 Employer,                :
 
                                          :        D E C I S I O N
 
            and                           :
 
                                          :
 
            LIBERTY MUTUAL INSURANCE,     :
 
            COMPANY,                      :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
            1803.1; 1803
 
            Held claimant entitled to 75 weeks of permanent partial 
 
            disability under 85.34(2)(s) for a bilateral simultaneous 
 
            carpal tunnel syndrome.  Impairment ratings of 6 and 8 were 
 
            opined which converted to 45 weeks (9% x 500 = 45 weeks), 
 
            but claimant has severe restrictions and deputy used agency 
 
            experience, and considering entire record found 75 weeks 
 
            under 85.34(2)(s).
 
            
 
            5-1802
 
            Deputy accepted defendants' healing period ending through 
 
            July 29, 1990 rather than claimant's October 4, 1990.
 
            
 
            2505
 
            Found defendants not liable to pay for claimant's hot tub 
 
            under 85.27.  Hot tub prescription written two months after 
 
            claimant already bought a hot tub.  Also, hot tube available 
 
            for family use.
 
            
 
            2203
 
            Held not an occupational disease.  Deputy referred to 
 
            current agency precedent and did not go into detail on this 
 
            alternative claim.
 
            
 
 
            
 
            
 
            
 
            
 
            
 
            
 
                    BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
                                          :
 
            PAUL E. FAGENBAUM,            :
 
                                          :
 
                 Claimant,                :      File No. 954362
 
                                          :
 
            vs.                           :
 
                                          :  A R B I T R A T I O N
 
            JOHN DEERE WATERLOO WORKS,    :
 
                                          :      D E C I S I O N
 
                 Employer,                :    
 
                 Self-Insured,            :      
 
                 Defendant.               :
 
            ___________________________________________________________
 
            
 
                              STATEMENT OF THE CASE
 
            
 
                 This is a proceeding in arbitration brought by Paul E. 
 
            Fagenbaum, claimant, against John Deere Waterloo Works, 
 
            self-insured employer, defendant, to recover benefits under 
 
            the Iowa Workers' Compensation Act as a result of an injury 
 
            sustained on March 31, 1988.  This matter came on for 
 
            hearing before the undersigned deputy industrial 
 
            commissioner on October 20, 1992, in Waterloo, Iowa.  The 
 
            record was considered fully submitted at the close of the 
 
            hearing.  The claimant was present and testified.  Also 
 
            present and testifying were Roberta Fagenbaum, Larry Meyer 
 
            and Kenneth Taylor.  The documentary evidence identified in 
 
            the record consists of joint exhibits 1 through 7 and 
 
            defendant's exhibit A.
 
            
 
                                      ISSUES
 
            
 
                 Pursuant to the prehearing report and order dated 
 
            October 20, 1988, the parties have presented the following 
 
            issues for resolution:
 
            
 
                 1.  Whether claimant sustained an occupational hearing 
 
            loss which arose out of and in the course of employment with 
 
            employer;
 
            
 
                 2.  Whether the work injury is a cause of permanent 
 
            disability; and,
 
            
 
                 3.  The extent of entitlement to weekly compensation 
 
            for permanent disability, if defendant is found liable for 
 
            the injury.
 
            
 
                                 FINDINGS OF FACT
 
            
 
                 The undersigned has carefully considered all the 
 
            testimony given at the hearing, arguments made, evidence 
 
            contained in the exhibits herein, and makes the following 
 
            findings:
 
            
 
                 Claimant is 29-year employee of employer.  Claimant 
 
            graduated from high school in 1955 and worked approximately 
 
            four years with the railroad laying new rails and painting.  
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            He commenced working for employer on March 23, 1959.  He 
 
            retired on March 31, 1988.
 
            
 
                 The dates, departments and the job duties which 
 
            claimant performed from March 23, 1959 to March 31, 1988, 
 
            are shown on exhibit 7-2.
 
            
 
                 Claimant testified and exhibit 7-2 shows, that from 
 
            March 23, 1959 through April 24, 1972, a period of 
 
            approximately ten years, minus lay offs, claimant worked in 
 
            the foundry in departments 98, 97, 89, and 88.  He described 
 
            the foundry department as very noisy and surrounded by other 
 
            noisy departments.  From 1972 through 1975, he worked on the 
 
            assembly paint line.  This department was in close proximity 
 
            to the mig welders.  Their duties included grinding and 
 
            buffing metal which emitted a very high pitched sound.  In 
 
            1979 he worked as a parts handler which was in close 
 
            proximity to the reclaim booth where used grinders were 
 
            sanded.  During the last two years of his employment, from 
 
            1986 to 1988, he operated a fork lift in the shipping 
 
            department.  The noise level in this department was muted 
 
            compared to the other departments in which he previously 
 
            worked.  
 
            
 
                 Employer's noise level reports and surveys show that 
 
            the noise in the departments in which claimant frequently 
 
            worked exceeded 90 decibels and sometimes exceed 115 
 
            decibels.  The reports establish a general noise level in 
 
            the departments in which claimant worked during his tenure 
 
            with employer.
 
            
 
                 Claimant testified that he worked in or near a noisy 
 
            environment by describing the work he performed and the work 
 
            performed around him and the noise it created.  Claimant's 
 
            testimony was corroborated by two retired John Deere 
 
            employees, Larry Meyer and Kenneth Taylor, who worked in 
 
            departments described by claimant.  
 
            
 
                 Claimant's evidence was not controverted, contradicted, 
 
            rebutted, or refuted except the alleged onset date of his 
 
            hearing deficit.  Claimant testified that he first noticed a 
 
            diminishment in his hearing capacity in 1974.  However, in 
 
            his deposition taken in March 1991, he stated that this 
 
            deficit became apparent in 1984.
 
            
 
                 The medical evidence contains the results of 
 
            audiometric testing performed while claimant was an employee 
 
            with employer.  The results indicate that in 1971 he had 
 
            zero total, binaural (both ears) percent hearing loss.  In 
 
            1983 he had 1.56 total, binaural percent hearing loss 
 
            (exhibit 3B); and in 1987 he had 11.8 total, binaural 
 
            percent hearing loss (ex. 3A).  
 
            
 
                 On March 1, 1990, claimant presented to C.D. Bendixen, 
 
            M.D., employer's company doctor, inquiring about hearing 
 
            loss compensation.  On March 7, 1990, Dr. Bendixen reported 
 
            that claimant has had a 9 percent binaural hearing drop 
 
            since he was tested just prior to retirement (ex. 4-4).  An 
 
            audiogram performed in March 1990 revealed a 19.1 total 
 
            binaural percent hearing loss (ex. 3).  Dr. Bendixen 
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            believed that claimant's hearing loss was caused by a 
 
            process other than noise since the loss was more prevalent 
 
            in the lower frequencies.  He referred him to Michael W. 
 
            Hill, M.D., at the Wolfe Clinic (ex. 4-4).
 
            
 
                 Claimant was seen by Dr. Hill on May 17, 1990, for 
 
            evaluation of his hearing.  An audiometric test revealed a 
 
            sloping high frequency sensorineural hearing loss 
 
            representing a 15.6 total binaural percent hearing loss 
 
            (exs. 2; 4-1).
 
            
 
                 Dr. Hill reviewed the results of audiometric testing 
 
            performed in May 1990 and concluded that claimant's 
 
            persistent hearing loss was due to presbycusis (ex. 4-1).
 
            
 
                 Claimant was referred to E.L. Grandon, M.D., for 
 
            evaluation and audiogram on October 17, 1991.  According to 
 
            Dr. Grandon, claimant's audiogram revealed a bilateral 
 
            sensorineural hearing loss with poorer discrimination in the 
 
            right ear than the left.  Using the formula set out in Iowa 
 
            Code section 85B.9, Dr. Grandon calculated claimant's 
 
            binaural hearing loss at 22 percent.  Contrary to Dr. Hill, 
 
            it was Dr. Grandon's opinion that claimant's significant 
 
            hearing loss was work related (ex. 1).
 
            
 
                                CONCLUSIONS OF LAW
 
            
 
                 The first issue to be determined is whether claimant 
 
            has sustained an occupational hearing loss pursuant to Iowa 
 
            Code section 85B.
 
            
 
                 Iowa Code section 85B.4(1) defines occupational hearing 
 
            loss as a permanent sensorineural loss of hearing in one or 
 
            both ears in excess of 25 decibels which arises out of and 
 
            in the course of employment caused by prolonged exposure to 
 
            excessive noise levels.
 
            
 
                 Iowa Code section 85B.4(2) defines excessive noise 
 
            level as sound capable of producing occupational hearing 
 
            loss.
 
            
 
                 Iowa Code section 85B.5 states that excessive noise 
 
            level is sound which exceeds the times and intensities 
 
            listed in the table shown in that section.  A decibel level 
 
            exceeding 90 in an 8-hour workday is considered excessive.  
 
            
 
                 As with any type of workers' compensation claim, 
 
            including an occupational hearing loss claim, the claimant 
 
            has the burden of proving by a preponderance of the evidence 
 
            that he has a hearing loss due to noise exposure in the work 
 
            environment and it is causally related to the disability on 
 
            which he now bases his claim.  Bodish v. Fischer, Inc., 257 
 
            Iowa 516, 133 N.W.2d 867 (1965); Lindahl v. L.O. Boggs Co., 
 
            236 Iowa 296 18 N.W.2d 607 (1945); Burt v. John Deere 
 
            Waterloo Tractor Works, 247 Iowa 691, 73 N.W.2d 732 (1955).  
 
            The question of causal connection is essentially within the 
 
            domain of expert testimony.  Bradshaw v. Iowa Methodist 
 
            Hospital, 251 Iowa 375, 101 N.W.2d 167 (1960).
 
            
 
                 However, expert medical evidence must be considered 
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
            with all other evidence introduced bearing on the causal 
 
            connection.  Burt, 247 Iowa 691, 73 N.W.2d 732.  The opinion 
 
            of experts need not be couched in definite, positive or 
 
            unequivocal language.  Sondag v. Ferris Hardware, 220 N.W.2d 
 
            903 (Iowa 1974).  However, the expert opinion may be 
 
            accepted or rejected, in whole or in part, by the trier of 
 
            fact.  Id., at 907.  Further, the weight to be given to such 
 
            an opinion is for the finder of fact, and that may be 
 
            affected by the completeness of the premise given the expert 
 
            and other surrounding circumstances.  Bodish, 257 Iowa 516, 
 
            133 N.W.2d 867.  See also Musselman v. Central Telephone 
 
            Co., 261 Iowa 352, 154 N.W.2d 128 (1967).
 
            
 
                 When the opinions of Dr. Hill and Dr. Grandon are taken 
 
            into consideration, along with claimant's testimony, the 
 
            testimony of Larry Meyer and Kenneth Taylor, the noise level 
 
            reports, and the audiograms taken over the years, it is 
 
            determined that claimant has sustained his burden of proof 
 
            by a preponderance of the evidence that he sustained a 
 
            bilateral sensorineural hearing loss in one or both ears 
 
            which arose out of and in the course of employment with 
 
            employer due to prolonged exposure to excessive noise 
 
            levels.
 
            
 
                 Employer's own records show that sound level surveys 
 
            conducted reveal decibel ratings for the departments in 
 
            which claimant either worked or worked around, exceeded 90 
 
            decibels.  Claimant testified that he worked eight hours per 
 
            day, at least five days per week for 29 years.  Therefore, 
 
            claimant has established prolonged exposure to excessive 
 
            noise levels.
 
            
 
                 Defendant asserts that something other than claimant's 
 
            employment caused his hearing loss for the reason that it 
 
            has continued to deteriorate after his retirement.  However, 
 
            both Dr. Hill and Dr. Grandon describe claimant's hearing 
 
            loss as bilateral and sensorineural.  Dr. Grandon felt that 
 
            it was noise induced and work related.  Dr. Hill suggested 
 
            that aging was the cause.  However, when considering their 
 
            opinions in conjunction with employer's noise level surveys 
 
            and claimant's long history of employment in areas where the 
 
            decibel level exceeded 90 decibels as well as audiology 
 
            reports that show a generally increasing loss of hearing 
 
            over the period of claimant's employment, claimant has 
 
            sustained his burden of proof as to a work-caused 
 
            occupational hearing loss.  When the medical evidence is 
 
            considered with all of the other evidence in this case, the 
 
            weight of the evidence is that claimant has sustained an 
 
            occupational hearing loss in excess of 25 decibels in one or 
 
            both ears which arose out of and in the course of employment 
 
            with employer from prolonged exposure to excessive noise 
 
            levels.
 
            
 
                 When medical evidence alone is not sufficient to 
 
            support a finding of causal connection, it may, 
 
            nevertheless, be coupled with nonexpert testimony to sustain 
 
            a finding of causal connection.  Giere v. Aase Haugen Homes, 
 
            Inc., 259 Iowa 1065, 146 N.W.2d 911, 915 (1966).  
 
            Furthermore, claimant need not prove that work was the sole 
 
            cause of his hearing loss, he need only prove that it is 
 

 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
            traceable to work and claimant has more than satisfied this 
 
            burden.  Langford v. Kellar Excavating and Grading, Inc., 
 
            191 N.W.2d 667 (Iowa 1971).
 
            
 
                 The fact that claimant's hearing has continued to 
 
            deteriorate after his employment is simply an unexplained 
 
            fact in this case.  It can neither be assumed that the 
 
            possible continual loss after retirement was or was not 
 
            caused by claimant's work.  There is simply no evidence to 
 
            explain this factor.  Claimant has established a compensable 
 
            hearing loss by the weight of the evidence in this case.  
 
            
 
                 The next issue to be determined is the extent of 
 
            claimant's disability.  Iowa Code section 85B.9 specifies 
 
            that if more than one audiogram is taken following the 
 
            notice of an occupational hearing loss claim, the audiogram 
 
            having the lowest threshold shall be used to calculate 
 
            occupational hearing loss.  The exact date when claimant 
 
            made a claim is not a matter of evidence in this record.  
 
            However, three audiograms were taken after the date of 
 
            retirement.  The first was performed by employer in March 
 
            1990 and showed a 19.1 percent loss.  The second was taken 
 
            by Dr. Hill on May 16, 1990, and showed a 15.6 percent loss.  
 
            The third audiogram was taken by Dr. Grandon on October 17, 
 
            1991, and showed a 22 percent loss.  
 
            
 
                 The lowest audiogram taken following claimant's 
 
            retirement is the audiogram of Dr. Hill which shows a 15.6 
 
            percent loss (exs. 2 & 4), and is used to determine the 
 
            extent of loss in this case.
 
            
 
                 Iowa Code section 85B.6 states that the maximum 
 
            compensation is 175 weeks for a total occupational hearing 
 
            loss and that a partial loss is payable for a period 
 
            proportionate to the relation which the calculated binaural 
 
            hearing loss bears to an allowable total hearing loss of 175 
 
            weeks.  Since there is no preexisting hearing loss in this 
 
            case, apportionment is not appropriate.  
 
            
 
                 Dr. Hill's percent of binaural hearing loss is 15.6.  
 
            This loss times 175 weeks equals 27.3 weeks.  Claimant is 
 
            entitled to 27.3 weeks of permanent disability benefits at 
 
            the rate of $314.10 per week.  
 
            
 
                                      ORDER
 
            
 
                 THEREFORE, IT IS ORDERED:
 
            
 
                 That defendant pay to claimant twenty-seven point three 
 
            (27.3) weeks of occupational hearing loss compensation at 
 
            the stipulated rate of three hundred fourteen and 10/100 
 
            dollars ($314.10) per week in the total amount of eight 
 
            thousand four hundred sixty-five and 73/100 dollars 
 
            ($8,465.73) commencing on March 31, 1988, as stipulated to 
 
            by the parties.
 
            
 
                 That all accrued benefits are to be paid in a lump sum.
 
            
 
                 That interest will accrue pursuant to Iowa Code section 
 
            85.30.
 

 
            
 
            Page   6
 
            
 
            
 
            
 
            
 
            
 
                 That the costs of this action be assessed to defendant 
 
            pursuant to rule 343 IAC 4.33.
 
            
 
                 That defendant file claim activity reports as required 
 
            by the agency pursuant to rule 343 IAC 3.1.
 
            
 
                 Signed and filed this ____ day of November, 1992.
 
            
 
            
 
            
 
            
 
                                          ______________________________
 
                                          JEAN M. INGRASSIA
 
                                          DEPUTY INDUSTRIAL COMMISSIONER    
 
            
 
            Copies to:
 
            
 
            Mr. Robert Fulton
 
            Attorney at Law
 
            First National Bldg - 6th Floor
 
            E 4th and Sycamore
 
            PO Box 2634
 
            Waterloo, Iowa  50703-2634
 
            
 
            Mr. John Rathert
 
            Attorney at Law
 
            PO Box 178
 
            Waterloo, Iowa  50704-0178
 
            
 
                 
 
            
 
 
            
 
            
 
            
 
            
 
            
 
                                             1108.50 1401 2208 1808
 
                                             Filed November 3, 1992
 
                                             Jean M. Ingrassia
 
 
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
                      
 
            PAUL E. FAGENBAUM,  
 
                      
 
                 Claimant,                        File No. 954362
 
                      
 
            vs.       
 
                                              A R B I T R A T I O N
 
            JOHN DEERE WATERLOO WORKS,    
 
                                                 D E C I S I O N
 
                 Employer, 
 
                 Self-Insured,        
 
                 Defendant.     
 
            ___________________________________________________________
 
            
 
            1108.50 1401 2208
 
            Claimant proved an occupational hearing loss by his 
 
            testimony, testimony of other retired employees, noise level 
 
            surveys and tests conducted at employer's plant over several 
 
            years, audiograms that showed a general increase in loss of 
 
            hearing and specialists who stated that his loss was 
 
            bilateral and sensorineural.  Claimant worked for 29 years 
 
            in high noise levels exceeding 90 decibels, 8 hours per day, 
 
            five days per week.
 
            
 
            1808
 
            Pursuant to Iowa Code section 85B.9, if more than one 
 
            audiogram is taken following this notice of an occupational 
 
            hearing loss claim, the audiogram having the lowest 
 
            threshold was used to calculate claimant's occupational 
 
            hearing loss.
 
            Claimant was awarded 27.3 weeks (175 wks x 15.6 %) of 
 
            occupational hearing loss compensation at the stipulated 
 
            rate of $314.10 per week, in the total amount of $8,465.73.
 
            
 
 
            
 
            Page   1
 
            
 
            
 
            
 
            
 
            
 
            
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            CAROL COLLINS,                :
 
            f/k/a CAROL WILLIS,           :
 
                                          :
 
                 Claimant,                :         File Nos. 916241
 
                                          :                   954364
 
            vs.                           :
 
                                          :      A R B I T R A T I O N
 
            DEPARTMENT OF HUMAN SERVICES, :
 
                                          :         D E C I S I O N
 
                 Employer,                :
 
                                          :
 
            and                           :
 
                                          :
 
            STATE OF IOWA,                :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ____________________________________________________________
 
            
 
                              statement of the case
 
            
 
                 These are proceedings in arbitration upon the petition 
 
            of claimant, Carol Collins, against her employer, Department 
 
            of Human Services, and State of Iowa, defendant.  The case 
 
            was heard on November 13, 1991, in Des Moines, Iowa.  The 
 
            record consists of the testimony of claimant, the testimony 
 
            of Jeff Johnson, vocational counselor, and the testimonies 
 
            of Mickey Love, Dave Morris, and Johanna Dippold.  
 
            Additionally, the record consists of claimant's exhibits 1 
 
            through 11, and defendant's exhibits A through F.
 
            
 
                                      issues
 
            
 
                 The issues to be determined are:  1) whether claimant 
 
            is entitled to temporary or permanent benefits; and, 2) 
 
            whether claimant is entitled to medical benefits pursuant to 
 
            section 85.27.
 
            
 
                                 findings of fact
 
            
 
                 The deputy, having heard the testimony and considered 
 
            all the evidence, finds:
 
            
 
                 Claimant is 39 years old.  She is married and has four 
 
            children.  Claimant received her GED in 1976.  Afterwards, 
 
            claimant attended a 6- to 8-month key punch course in 
 
            California.  Then, she became employed in the key punch 
 
            area.  She held various positions in the area of key punch 
 
            and data entry.  The positions were all in California.
 
            
 
                 In 1986, claimant moved to Iowa.  She again became 
 
            employed in the area of data entry.  In May of 1987, 
 
            claimant commenced her employment with the State of Iowa.  
 
            She was hired as a system support worker.  Her duties 
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            
 
            
 
            included data entry, filing microfilm, flipping papers, 
 
            opening and delivering mail, and answering the phone.
 
            
 
                 In 1989, claimant began experiencing difficulties with 
 
            her left hand and wrist.  She sought treatment from Lawrence 
 
            Valin, M.D., her family physician.  Dr. Valin referred 
 
            claimant to Robert F. Breedlove, M.D., an orthopedic 
 
            specialist.
 
            
 
                 Dr. Breedlove diagnosed claimant's condition as:
 
            
 
                 1.  Left carpal tunnel syndrome with compression 
 
                 neuropathy of the ulnar nerve at Guyon's Canal.
 
            
 
                 2.  DeQuervain's disease of the left wrist.
 
            
 
                 Dr. Breedlove treated claimant conservatively; however, 
 
            conservative treatment was unsuccessful.  As a consequence, 
 
            Dr. Breedlove performed a carpal tunnel release, a 
 
            deQuervain's release, and he excised a ganglion cyst from 
 
            the left hand.  Following the surgery, claimant developed 
 
            reflex sympathetic dystrophy.  Dr. Breedlove released 
 
            claimant to return to work on June 26, 1989, for four hours 
 
            per day with no data entry.
 
            
 
                 As of August 30, 1989, claimant was released to return 
 
            to work with normal activity.  She began using her right 
 
            hand.  Later, she experienced difficulties with her right 
 
            wrist and hand.  Her right hand began to swell and she had 
 
            pain.  In February of 1990, Dr. Breedlove diagnosed 
 
            claimant's condition as right carpal tunnel syndrome and 
 
            reflex sympathetic dystrophy of the left upper extremity.
 
            
 
                 On March 14, 1990, Dr. Breedlove performed a right 
 
            carpal tunnel release.  Dr. Breedlove opined claimant's 
 
            prognosis was guarded.  Claimant experienced numbness and 
 
            pain.  She was placed in a pain management program where she 
 
            received medication and therapy.  Claimant also began 
 
            psychological counseling.
 
            
 
                 Dr. Breedlove rated claimant as having a 20 percent 
 
            impairment to each hand.  He opined everything possible had 
 
            been done for claimant as of June 18, 1991.
 
            
 
                 James W. Dennert, M.D., testified by way of deposition.  
 
            Dr. Dennert practices psychiatry in Des Moines.  He first 
 
            saw claimant in July of 1991.  He treated claimant for 
 
            chronic dysthymic disorder.  In his testimony, Dr. Dennert 
 
            causally related claimant's depressive symptoms to 
 
            claimant's hands.  Dr. Dennert testified:
 
            
 
                 . . . and I have seen in just the time I've seen 
 
                 her that when her hands are bothering her more, 
 
                 she definitely has an increase in her symptoms.  
 
                 When her hands are bothering her less, her 
 
                 symptoms improve.
 
            
 
            (Exhibit 9, page 11, lines 14-17).
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            
 
            
 
            
 
                 As far as claimant's psychiatric condition was 
 
            concerned, Dr. Dennert opined that:
 
            
 
                 A.  Well, the chronic dysthymia is a chronic 
 
                 condition which does somewhat wax and wane.  The 
 
                 complicating factor here, of course, is the 
 
                 apparently chronic condition leading to pain in 
 
                 her hands.  From what I gather from the history 
 
                 from seeing Ms. Collins, I do not see any change, 
 
                 any significant change, in her course for the 
 
                 foreseeable future.  As far as I can see, I would 
 
                 expect that we would continue to be dealing with 
 
                 the same sorts of problems and continue to need to 
 
                 treat both the pain and the depressive symptoms.
 
            
 
            (Exhibit 9, page 14, lines 2-13).
 
            
 
                 Later in his deposition, Dr. Dennert testified that:
 
            
 
                 A.  I don't know.  It varies, and there's -- there 
 
                 isn't any periodicity to it.  It's not like she's 
 
                 off a month, on a month.  It waxes and wanes, is 
 
                 not a regular cycle.  It clearly relates to a very 
 
                 large extent to the pain that she's having in her 
 
                 hands.  And that apparently relates to how much 
 
                 she uses them as well as, you know, how cold it 
 
                 is, and things like that.
 
            
 
            (Exhibit 9, page 22, lines 17-24).
 
            
 
                 Dr. Dennert also testified that, from a psychiatric 
 
            viewpoint, claimant was capable of working when she was not 
 
            having any acute period of depression.  Additionally, Dr. 
 
            Dennert testified he was treating claimant for the 
 
            psychological sequelae of her pain problems.  (Exhibit 9, 
 
            page 40, lines 14-18).
 
            
 
                 At the time of the hearing, claimant was not actively 
 
            employed.  There were no openings available to her with the 
 
            Department of Human Services, or with other divisions of the 
 
            State.  Claimant spent much of her day resting, keeping 
 
            house, or playing bingo.
 
            
 
                                conclusions of law
 
            
 
                 The first issue to be addressed is whether claimant has 
 
            sustained an occupational disease as a result of her 
 
            employment with defendant, and therefore would entitle 
 
            claimant to industrial disability benefits pursuant to Iowa 
 
            Code chapter 85A.
 
            
 
                 Section 85A.8 of The Iowa Code defines occupational 
 
            disease.  The section states that:
 
            
 
                 Occupational diseases shall be only those diseases 
 
                 which arise out of and in the course of the 
 
                 employee's employment.  Such diseases shall have a 
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
            
 
            
 
                 direct causal connection with the employment and 
 
                 must have followed as a natural incident thereto 
 
                 from injurious exposure occasioned by the nature 
 
                 of the employment.  Such disease must be 
 
                 incidental to the character of the business, 
 
                 occupation or process in which the employee was 
 
                 employed and not independent of the employment.  
 
                 Such disease need not have been foreseen or 
 
                 expected but after its contraction it must appear 
 
                 to have had its origin in a risk connected with 
 
                 the employment and to have resulted from that 
 
                 source as an incident and rational consequence.  A 
 
                 disease which follows from a hazard to which an 
 
                 employee has or would have been equally exposed 
 
                 outside of said occupation is not compensable as 
 
                 an occupational disease.
 
            
 
                 To prove the causation element described in section 
 
            85A.8, claimant must show by a preponderance of the evidence 
 
            (1) the disease is causally related to the exposure to the 
 
            harmful conditions of the field of employment, and (2) the 
 
            harmful conditions must be more prevalent in the employment 
 
            concerned than in everyday life or in other occupations.  
 
            Siefkas v. Furnas Electric Co., File No. 944404 
 
            (Arbitration Decision, November 12, 1991), appeal filed 
 
            November 21, 1991 (citing McSpadden v. Big Ben Coal Co., 288 
 
            N.W.2d 181 (Iowa 1980)); Frit Indus. v. Langenwalter, 443 
 
            N.W.2d 88 (Iowa App. 1989).
 
            
 
                 According to the deputy industrial commissioner writing 
 
            Siefkas, File No. 944404, slip op. at 5:
 
            
 
                    Although McSpadden might be read as eliminating 
 
                 the arising out of and in the course of 
 
                 requirements, the statute clearly retains those 
 
                 elements.  Perhaps the intent of the opinion in 
 
                 McSpadden is to emphasize the peculiar aspects of 
 
                 occupational disease.  Lawyer & Higgs, Iowa 
 
                 Workers' Compensation -- Law and Practice, Chapter 
 
                 18, sections 1-3.
 
            
 
                    It is conceivable that repetitive motion 
 
                 disorders may constitute either an injury or an 
 
                 occupational disease depending upon the particular 
 
                 facts in the case.  Accordingly, determinations as 
 
                 to what constitutes an occupational disease must 
 
                 be made on a case-by-case basis.
 
            
 
                 With respect to compensation for occupational disease, 
 
            section 85A.14 provides that:
 
            
 
                 No compensation shall be payable under this 
 
                 chapter for any condition of physical or mental 
 
                 ill-being, disability, disablement, or death for 
 
                 which compensation is recoverable on account of 
 
                 injury under the workers' compensation law.
 
            
 
                 In Peters v. Lamoni Auto Assemblies, Inc., File No. 
 

 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
            
 
            
 
            809203 (Appeal Decision, March 31, 1989), aff'd district 
 
            court October 6, 1989, then Industrial Commissioner David E. 
 
            Linquist held that claimant did not sustain her burden of 
 
            proof that her left carpal tunnel syndrome was an 
 
            occupational disease.  Commissioner Linquist also determined 
 
            that, since claimant was entitled to benefits under chapter 
 
            85, she was not entitled to benefits pursuant to section 
 
            85A.14.
 
            
 
                 In the case before this deputy, the record clearly 
 
            demonstrates that claimant has been diagnosed with bilateral 
 
            carpal tunnel syndrome.  Claimant testified she had no 
 
            problems with her hands and wrists prior to her employment 
 
            with the State in May of 1987.  She alleged no specific 
 
            trauma or injury.  She testified her symptoms gradually 
 
            worsened.  Claimant testified she was required to perform 
 
            data entry duties.  Dr. Breedlove, the treating physician, 
 
            related the carpal tunnel syndrome to claimant's keying 
 
            duties.
 
            
 
                 Claimant has the burden of proof.  She has demonstrated 
 
            that her injury arose out of and in the course of her 
 
            employment.  Defendant does not dispute the arising out of 
 
            and in the course of employment factor.
 
            
 
                 With respect to the existence of an occupational 
 
            disease, there must be a direct causal connection with the 
 
            employment following as a natural incident from an injurious 
 
            exposure occasioned by the nature of the work.  Such 
 
            condition must be incidental to the character of the 
 
            business, occupation or process in which claimant was 
 
            employed and not independent of the employment.  It need not 
 
            have been foreseen or expected, but after its contraction, 
 
            it must appear to have its origin in a risk connected with 
 
            the employment and to have resulted from that source as an 
 
            incident and rational consequence.  Iowa Code section 85A.8.
 
            
 
                 To satisfy the requirements of an occupational disease, 
 
            the Iowa Supreme Court in McSpadden, 288 N.W.2d 181, stated 
 
            that claimant must meet two basic requirements.  Firstly, 
 
            claimant must demonstrate that the disease is causally 
 
            related to the exposure to harmful conditions in the 
 
            employment arena in which claimant is engaged.  Secondly, 
 
            claimant must establish that the harmful conditions are more 
 
            prevalent in the employment sector than in everyday life or 
 
            in other occupations.
 
            
 
                 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, 
 

 
            
 
            Page   6
 
            
 
            
 
            
 
            
 
            
 
            
 
            Inc., 257 Iowa 516, 133 N.W.2d 867 (1965).
 
            
 
                 Dr. Breedlove causally related claimant's bilateral 
 
            carpal tunnel syndrome to harmful conditions in the 
 
            employment arena.  The treating orthopedic surgeon 
 
            testified:
 
            
 
                 A.  Yes.  I think that she has a -- developed 
 
                 bilateral carpal tunnel syndrome as a result of 
 
                 overuse with her keying at her work place.  The 
 
                 left one occurred initially, and she was back to 
 
                 work.  She seemed to do reasonably well, and then 
 
                 it recurred, and she developed the reflex 
 
                 sympathetic dystrophy.  When she came back 
 
                 postoperatively from her left and started to 
 
                 develop her right, she had been back to work and 
 
                 then developed the carpal tunnel syndrome.
 
            
 
            (Exhibit 1(b), page 24, lines 14-23).
 
            
 
                 Dr. Breedlove also testified the harmful conditions in 
 
            the work place are more prevalent in the employment sector 
 
            than in everyday life or in other occupations.  In his 
 
            deposition, he opined:
 
            
 
                 Q.  Well, let me rephrase it in perhaps a 
 
                 different way.
 
            
 
                 Is there anything in her history, in her personal 
 
                 life or history to which you could attribute the 
 
                 development of her carpal tunnel syndrome aside 
 
                 from her work at the State of Iowa?
 
            
 
                 A.  She had one episode -- I think it was New 
 
                 Year's Day of '90 or '89 or something where she 
 
                 was cleaning chitlins and developed some numbness 
 
                 and tingling in her hand and increased pain.  That 
 
                 was a one-time episode that she related to me.
 
            
 
                 Other than that, she was doing some housework and 
 
                 cleaning at one point that she mentioned in the 
 
                 history, but I think these are activities -- daily 
 
                 activities of normal living, and they could cause 
 
                 a carpal tunnel syndrome, but I don't see many 
 
                 patients that perform those simple tasks that come 
 
                 in with carpal tunnel syndrome.
 
            
 
            (Exhibit 1(b), page 28, lines 4-24).
 
            
 
                 Dr. Breedlove also testified that:
 
            
 
                 Q.  Well, first of all, you indicated that you 
 
                 have done some workers' compensation work.  Do you 
 
                 have experience in treating repetitive motion 
 
                 disorders aside from this particular case?
 
            
 
                 A.  Yes.
 
            
 

 
            
 
            Page   7
 
            
 
            
 
            
 
            
 
            
 
            
 
                 Q.  In your experience, were the keying duties 
 
                 that were required of her by her employment more 
 
                 prevalent than in other occupations?
 
            
 
                 A.  I've seen a fair number of patients with 
 
                 carpal tunnel syndrome whose job is to key, key 
 
                 entry information.  It's common in typists and 
 
                 transcriptionists, computer operators, but keying 
 
                 seems to be an occupation that requires more rapid 
 
                 repetitive motion, but it's an occupation where I 
 
                 think that there's a fairly high incidence of 
 
                 carpal tunnel syndrome with keying.
 
            
 
            (Exhibit 1(b), page 29, lines 5-23).
 
            
 
                 Claimant has established the existence of the two 
 
            requirements detailed in McSpadden.  Claimant has proven 
 
            that her bilateral carpal tunnel syndrome is an occupational 
 
            disease.
 
            
 
                 The next issue to address is the issue dealing with 
 
            compensation.  Section 85A.14 restricts compensation when 
 
            compensation is recoverable on account of injury under the 
 
            workers' compensation law.  As in the Peters case, claimant 
 
            is not entitled to compensation benefits under chapter 85A.  
 
            Claimant is entitled to benefits pursuant to chapter 85.  
 
            Specifically, claimant is entitled to benefits pursuant to 
 
            section 85.34(l).  The section states:  "For the loss of a 
 
            hand, weekly compensation during one hundred ninety weeks."
 
            
 
                 In the case before this deputy, claimant has sustained 
 
            two injuries because of cumulative trauma.  A personal 
 
            injury contemplated by the workers' compensation law means 
 
            an injury, the impairment of health or a disease resulting 
 
            from an injury which comes about, not throo separate occupational diseases to scheduled members.  
 
            The benefits under section 85.34 contemplate compensation 
 
            for any effect on the claimant's earning capacity caused by 
 
            psychological problems stemming from an injury to a 
 
            scheduled member.  Pilcher v. Penick & Ford, File No. 618597 
 
            (App. Decn., October 21, 1987).  While psychological 
 
            problems affect a loss of earning capacity, the scheduled 
 
            loss system which has been created by the legislature is 
 
            presumed to include compensation for reduced capacity to 
 
            labor and to earn.  Schell v. Cent. Eng'g Co., 232 Iowa 421, 
 
            4 N.W.2d 399 (1942).  In other words, the psychological 
 
            aspect is built into the scheduled member loss system.
 
            
 
                 With respect to file number 916241, claimant is 
 
            entitled to a 20 percent permanent partial disability to the 
 
            left hand.  The commencement date for the benefits is 
 
            January 12, 1990, the date on which Dr. Breedlove determined 
 
            claimant had a permanent impairment to the left hand.  At 
 
            that point, claimant had reached maximum medical 
 
            improvement.
 
            
 
                 With respect to file number 954364, claimant is 
 
            entitled to a 20 percent permanent partial disability as of 
 
            June 18, 1991, when Dr. Breedlove opined there would be no 
 
            additional improvements to claimant's right hand.
 
            
 
                 As far as the issues of healing period benefits are 
 
            concerned, claimant is entitled to benefits pursuant to 
 
            section 85.34(1).  Section 85.34(1) provides that healing 
 
            period benefits are payable to an injured worker who has 
 
            suffered permanent partial disability until (1) the worker 
 
            has returned to work; (2) the worker is medically capable of 
 
            returning to substantially similar employment; or (3) the 
 
            worker has achieved maximum medical recovery.  The healing 
 
            period can be considered the period during which there is a 
 
            reasonable expectation of improvement of the disabling 
 
            condition.  See Armstrong Tire & Rubber Co. v. Kubli, 312 
 
            N.W.2d 60 (Iowa Ct. App. 1981).  Healing period benefits can 
 
            be interrupted or intermittent.  Teel v. McCord, 394 N.W.2d 
 
            405 (Iowa 1986).
 
            
 
                 For file number 916241, claimant is entitled to healing 
 
            period benefits for the following dates:
 
            
 
                 05-10-89 through 06-22-89             6.429 weeks
 
                 09-22-89                               .143 weeks
 
                 10-04-89 through 10-06-89              .429 weeks
 
                 10-19-89 through 10-20-89              .286 weeks
 
                 10-24-89 through 01-11-90            11.429 weeks
 
                 Total healing period                 18.714 weeks
 
            
 
     
 
            
 
            
 
            Page   9
 
            
 
            
 
            
 
            
 
            
 
            
 
            For file number 954364, claimant is entitled to healing 
 
            period benefits from:
 
            
 
                 02-01-90 through 06-18-91            71.857 weeks
 
            
 
                 For file number 916241, claimant is entitled to 11 
 
            weeks of temporary partial disability benefits in the sum of 
 
            $1,142.94.
 
            
 
                 The next issue to address is whether claimant is 
 
            entitled to medical benefits pursuant to section 85.27.  The 
 
            section provides that the employer shall furnish reasonable 
 
            surgical, medical, dental, osteopathic, chiropractic, 
 
            podiatric, physical rehabilitation, nursing, ambulance and 
 
            hospital services and supplies for all conditions 
 
            compensable under the workers' compensation law.  The 
 
            employer shall also allow reasonable and necessary 
 
            transportation expenses incurred for those services.  The 
 
            employer has the right to choose the provider of care, 
 
            except where the employer has denied liability for the 
 
            injury.  Section 85.27.; Holbert v. Townsend Engineering 
 
            Co., Thirty-second Biennial Report of the Industrial 
 
            Commissioner 78 (Review-reopen 1975).  Claimant has the 
 
            burden of proving that the fees charged for such services 
 
            are reasonable.  Anderson v. High Rise Constr. Specialists, 
 
            Inc., File No. 850096 (App. 1990).
 
            
 
                 Claimant is not entitled to reimbursement for medical 
 
            bills unless claimant shows they were paid from claimant's 
 
            funds.  See Caylor v. Employers Mut. Casualty Co., 337 
 
            N.W.2d 890 (Iowa Ct. App. 1983).
 
            
 
                 The authorized treating physician recommended a pain 
 
            management program for claimant.  [Exhibit 1(a), page 26].  
 
            Defendant refused to authorize the program, despite the 
 
            treating physician's recommendation.  Defendant is liable 
 
            for expenses incurred because of defendant's refusal to 
 
            follow the recommendations of the treating physician.  
 
            Defendant will reimburse the sick and accident insurance 
 
            carrier, as well as claimant, for any charges which were 
 
            paid.
 
            
 
                 The final issue to address is whether defendant is 
 
            entitled to a credit for benefits paid pursuant to section 
 
            85.38(2).  As indicated by exhibit 11(c), commencing March 
 
            9, 1990, claimant received $60.00 each month representing a 
 
            minimum income benefit.  The $955.41 figure is the 
 
            claimant's net receipt of this $60.00 monthly payment for a 
 
            period of 16 months.
 
            
 
                 This minimum amount took into consideration claimant's 
 
            receipt of $802.79 each month in workers' compensation 
 
            benefits ($185.26 x 4.33 weeks).  Thus, it is clear that 
 
            this benefit is paid regardless of the fact that claimant is 
 
            receiving workers' compensation benefits.
 
            
 
                 Section 85.38(2) provides that the credit provided for 
 
            by statute does not apply to payments made under any group 
 

 
            
 
            Page  10
 
            
 
            
 
            
 
            
 
            
 
            
 
            plan which would have been payable even though there was an 
 
            injury under this chapter or an occupational disease under 
 
            chapter 85A.  Therefore, the State is not entitled to a 
 
            credit as the benefits received by claimant are paid 
 
            regardless of whether the condition is work related.  See 
 
            Hebensperger v. Motorola Communications and Electronics, 
 
            Inc., II Iowa Industrial Commissioner Report 187, 189 (App. 
 
            Decn. 1981).
 
            
 
                                      order
 
            
 
                 THEREFORE, IT IS ORDERED:
 
            
 
                 With respect to file number 916241, defendant shall pay 
 
            unto claimant weekly benefits for thirty-eight (38) weeks of 
 
            permanent partial disability benefits commencing on January 
 
            12, 1990, at the stipulated rate of one hundred eighty-five 
 
            and 26/100 dollars ($185.26) per week.
 
            
 
                 With respect to file number 916241, defendant shall pay 
 
            unto claimant healing period benefits for eighteen point 
 
            seven one four (18.714) weeks at the stipulated rate of one 
 
            hundred eighty-five and 26/100 dollars ($185.26) per week 
 
            payable commencing May 10, 1989.
 
            
 
                 With respect to file number 916241, defendant shall pay 
 
            unto claimant temporary partial disability benefits in the 
 
            total sum of one thousand one hundred forty-two and 94/100 
 
            dollars ($1,142.94).
 
            
 
                 With respect to file number 954364, defendant shall pay 
 
            unto claimant weekly benefits for thirty-eight (38) weeks of 
 
            permanent partial disability benefits commencing on June 19, 
 
            1991, at the stipulated rate of one hundred eighty-five and 
 
            26/100 dollars ($185.26) per week.
 
            
 
                 With respect to file number 954364, defendant shall pay 
 
            unto claimant healing period benefits for seventy-one point 
 
            eight five seven (71.857) weeks at the stipulated rate of 
 
            one hundred eighty-five and 26/100 dollars ($185.26) per 
 
            week payable commencing February 1, 1990.
 
            
 
                 With respect to file number 954364, defendant is liable 
 
            for unpaid medical expenses which are causally related to 
 
            claimant's hands.
 
            
 
                 Defendant shall take credit for one hundred thirteen 
 
            point eight five seven (113.857) weeks of benefits 
 
            previously paid at the one hundred eighty-five and 26/100 
 
            dollars ($185.26) per week rate.
 
            
 
                 Defendant shall take credit for temporary partial 
 
            disability benefits in the sum of one thousand one hundred 
 
            forty-two and 94/100 dollars ($1,142.94).
 
            
 
                 Costs are taxed to defendant pursuant to rule 343 IAC 
 
            4.33.
 
            
 

 
            
 
            Page  11
 
            
 
            
 
            
 
            
 
            
 
            
 
                 Defendant shall file a claim activity report as 
 
            requested by this division pursuant to rule 343 IAC 3.1.
 
            
 
                 With respect to file number 954364, defendant is 
 
            ordered to file a first report of injury within thirty (30) 
 
            days of the filing of this decision.
 
            
 
                 Signed and filed this ______ day of ____________, 1991.
 
            
 
                 
 
            
 
                 
 
                 
 
                                          ______________________________
 
                                          MICHELLE A. McGOVERN
 
                                          DEPUTY INDUSTRIAL COMMISSIONER
 
            
 
            Copies To:
 
            
 
            Mr. Steven C. Jayne
 
            Attorney at Law
 
            5835 Grand Avenue
 
            Suite 201
 
            Des Moines, Iowa  50312
 
            
 
            Ms. Joanne Moeller
 
            Assistant Attorney General
 
            Tort Claims Division
 
            Hoover State Office Building
 
            Des Moines, Iowa  50319
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                               1108.40; 1803.1; 2203
 
                                               Filed December 19, 1991
 
                                               MICHELLE A. MCGOVERN
 
            before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            CAROL COLLINS,                :
 
            f/k/a CAROL WILLIS,           :
 
                                          :
 
                 Claimant,                :         File Nos. 916241
 
                                          :                   954364
 
            vs.                           :
 
                                          :      A R B I T R A T I O N
 
            DEPARTMENT OF HUMAN SERVICES, :
 
                                          :         D E C I S I O N
 
                 Employer,                :
 
                                          :
 
            and                           :
 
                                          :
 
            STATE OF IOWA,                :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ____________________________________________________________
 
            
 
            1108.40; 1803.1; 2203
 
            Claimant was able to prove by a preponderance of the 
 
            evidence that she sustained two separate occupational 
 
            diseases to her hands.  Claimant was compensated as two 
 
            scheduled members pursuant to section 85A.14 and section 
 
            85.34(1).
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                      BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
            BERNARD L. STROUP,    
 
                        
 
                 Claimant,                      File No. 954381
 
                        
 
            vs.                                   A P P E A L
 
                        
 
            ROY AND SANDRA RENO,                 D E C I S I O N
 
                        
 
                 Employer,   
 
                 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 November 15, 1991 is affirmed and is adopted as the 
 
            final agency action in this case.
 
            Claimant shall pay the costs of the appeal, including the 
 
            preparation of the hearing transcript.
 
            Signed and filed this ____ day of September, 1992.
 
            
 
            
 
            
 
            
 
                                     ________________________________
 
                                             BYRON K. ORTON
 
                                         INDUSTRIAL COMMISSIONER
 
            
 
            Copies To:
 
            
 
            Mr. Robert W. Pratt
 
            Mr. Max Schott
 
            Attorneys at Law
 
            6959 University Ave.
 
            Des Moines, Iowa 50311
 
            
 
            Mr. Charles E. Cutler
 
            Attorney at Law
 
            729 Insurance Exchange Bldg.
 
            Des Moines, Iowa 50309
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                             9998
 
                                             Filed September 30, 1992
 
                                             Byron K. Orton
 
            
 
                   BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
            BERNARD L. STROUP,    
 
                        
 
                 Claimant,                      File No. 954381
 
                        
 
            vs.                                  A P P E A L
 
                        
 
            ROY AND SANDRA RENO,                D E C I S I O N
 
                        
 
                 Employer,   
 
                 Defendant.       
 
            ____________________________________________________________
 
            
 
            9998
 
            
 
                 Summary affirmance of deputy's decision filed November 
 
            15, 1991.
 
            
 
 
            
 
            Page   1
 
            
 
            
 
            
 
            
 
            
 
            
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            BERNARD L. STROUP,            :
 
                                          :
 
                 Claimant,                :         File No. 954381
 
                                          :
 
            vs.                           :      A R B I T R A T I O N
 
                                          :
 
            ROY AND SANDRA RENO,          :         D E C I S I O N
 
                                          :
 
                 Employer,                :
 
                 Defendant.               :
 
            ____________________________________________________________
 
            
 
                              statement of the case
 
            
 
                 Claimant, Bernard L. Stroup, filed a petition in 
 
            arbitration against defendant uninsured employers, Roy Reno 
 
            and Sandra Reno, after he sustained a work injury to the 
 
            left leg on March 11, 1989.  He now seeks benefits under the 
 
            Iowa Workers' Compensation Act.
 
            
 
                 This cause came on for hearing in Des Moines, Iowa, on 
 
            October 31, 1991.  The record consists of joint exhibits 1 
 
            through 43 and the testimony of claimant and Roy Reno.
 
            
 
                 On November 7, 1991, claimant filed a "Petition" to 
 
            delay this decision.  That petition, treated herein as a 
 
            motion, was predicated upon the theory that this decision 
 
            would be favorable to claimant, thereby creating a potential 
 
            election of remedies problem with respect to concurrent 
 
            litigation now before the Iowa Supreme Court.  This decision 
 
            is not favorable to claimant, so that problem does not 
 
            exist.  The "Petition" to delay reaching a decision should 
 
            be and is hereby overruled.
 
            
 
                                      issues
 
            
 
                 The parties have stipulated that claimant sustained an 
 
            injury arising out of and in the course of his employment on 
 
            March 11, 1989, that the injury caused temporary disability 
 
            (from March 11 through June 7) and permanent disability to 
 
            the left arm, and that medical benefits are no longer in 
 
            dispute.
 
            
 
                 Issues presented for resolution include:
 
            
 
                 1.  The extent of permanent disability;
 
            
 
                 2.  The rate of compensation; and,
 
            
 
                 3.  Whether the action is barred by the equitable 
 
            doctrine of election of remedies or by statutory 
 
            construction of Iowa Code section 87.21.
 
            
 
                                 findings of fact
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            
 
            
 
            
 
                 The undersigned deputy industrial commissioner finds:
 
            
 
                 Bernard L. Stroup was employed as a farm worker by Roy 
 
            and Sandra Reno on March 11, 1989.  The Renos, in violation 
 
            of Iowa Code section 87.1, failed to carry workers' 
 
            compensation liability insurance.
 
            
 
                 Claimant was injured when he attempted to "hot wire" a 
 
            tractor without an ignition key.  As a result, he suffered 
 
            permanent disability to the left wrist.
 
            
 
                 Proceeding specifically under Iowa Code section 87.21, 
 
            claimant thereupon filed an action for tort damages in the 
 
            District Court for Wayne County and the cause proceeded to 
 
            trial before a jury.  A verdict was rendered on October 4, 
 
            1990, in favor of defendants.  Claimant has filed an appeal 
 
            to the Iowa Supreme Court where the matter is now pending.
 
            
 
                 On November 19, 1990, claimant filed a petition in 
 
            arbitration seeking workers' compensation benefits.
 
            
 
                                conclusions of law
 
            
 
                 Iowa Code section 87.21 provides, in pertinent part:
 
            
 
                 Any employer, except an employer with respect to 
 
                 an exempt employee under section 85.1, who has 
 
                 failed to insure the employer's liability in one 
 
                 of the ways provided in this chapter, unless 
 
                 relieved from carrying such insurance as provided 
 
                 in section 87.11, is liable to an employee for a 
 
                 personal injury in the course of and arising out 
 
                 of the employment, and the employee may enforce 
 
                 the liability by an action at law for damages, or 
 
                 may collect compensation as provided in chapters 
 
                 85, 85A, 85B, and 86. . . .
 
            
 
            (Emphasis supplied.)
 
            
 
                 At hearing, this deputy indicated that statutory 
 
            construction and election of remedies were essentially 
 
            identical issues.  He now believes otherwise.  Election of 
 
            remedies is an equitable doctrine; one that is to be applied 
 
            narrowly and is not favored by the courts.  Gourley v. 
 
            Nielson, 318 N.W.2d 160 (Iowa 1982); Bolinger v. Kiburz, 270 
 
            N.W.2d 603 (Iowa 1978).
 
            
 
                 It is unnecessary to determine whether the equitable 
 
            doctrine of election of remedies is applicable in this case.  
 
            The statute itself sets up an election.  The employee may 
 
            enforce liability by an action at law for damages or may 
 
            collect compensation under the Iowa Workers' Compensation 
 
            Act.  In construing the word "or," one must look to Iowa 
 
            Code section 4.1(2), which provides that, in the 
 
            construction of statutes, "words and phrases shall be 
 
            construed according to the context and approved usage of 
 
            language."
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            
 
            
 
            
 
                 Quoting from the earlier decision of Caster v. 
 
            McClellan, 132 Iowa 502, 109 N.W. 1020 (1906), the Iowa 
 
            court, while interpreting an insurance contract in Bates v. 
 
            United Sec. Ins. Co., 163 N.W.2d 390 (Iowa 1968) noted:
 
            [T]he word [or] shall be given its natural and ordinary 
 
            meaning as a disjunctive participle. * * *  The word `or' 
 
            marks an alternative and generally corresponds in meaning to 
 
            the word `either'.  It signifies that one of two things may 
 
            be done, but not both.
 
            
 
                 Giving the word "or" a normal construction according to 
 
            the context of the statute, no further construction is 
 
            necessary.  It is not the prerogative of the agency to enact 
 
            legislation.  The legislature has done so and has done so in 
 
            this case without ambiguity.  Given an uninsured employer, 
 
            claimant had two alternatives and could do either, but not 
 
            both, Bates, at 398.  Having elected to seek damages at 
 
            tort, he is foreclosed from seeking compensation under the 
 
            Workers' Compensation Act.
 
            
 
                                      order
 
            
 
                 THEREFORE, IT IS ORDERED:
 
            
 
                 Claimant shall take nothing from this proceeding.
 
            
 
                 The costs of this action are assessed to claimant 
 
            pursuant to rule 343 IAC 4.33.
 
            
 
                 Signed and filed this ______ day of ____________, 1991.
 
            
 
                 
 
            
 
                 
 
                 
 
                                          ______________________________
 
                                          DAVID RASEY
 
                                          DEPUTY INDUSTRIAL COMMISSIONER
 
            
 
            Copies To:
 
            
 
            Mr. Robert W. Pratt
 
            Mr. Max Schott
 
            Attorney at Law
 
            6959 University Avenue
 
            Des Moines, Iowa  50311
 
            
 
            Mr. Charles E. Cutler
 
            Attorney at Law
 
            729 Insurance Exchange Building
 
            Des Moines, Iowa  50309
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                           1600; 2100
 
                           Filed November 15, 1991
 
                           DAVID RASEY
 
            before the iowa industrial commissioner
 
            ____________________________________________________________
 
                      :
 
            BERNARD L. STROUP,  :
 
                      :
 
                 Claimant, :         File No. 954381
 
                      :
 
            vs.       :      A R B I T R A T I O N
 
                      :
 
            ROY AND SANDRA RENO,     :         D E C I S I O N
 
                      :
 
                 Employer, :
 
                 Defendant.     :
 
            ____________________________________________________________
 
            
 
            1600; 2100
 
            Claimant was injured while working for uninsured employer--a 
 
            scheduled member injury.  He sought tort damages in district 
 
            court under Iowa Code section 87.21, but a jury verdict was 
 
            rendered for defendant.  Claimant then filed his petition 
 
            before the agency.
 
            HELD:  Section 87.21 sets up a statutory election distinct 
 
            from the equitable defense of election of remedies.  
 
            Claimant may seek tort damages or collect compensation under 
 
            the Act, but not both.  Having elected to seek tort damages, 
 
            he is foreclosed from seeking relief before this agency.
 
            
 
 
            
 
            Page   1
 
            
 
            
 
            
 
            
 
            
 
            
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            RONALD CASTLE,                :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :         File No. 954406
 
            CARSTENSEN FREIGHT LINES,     :
 
                                          :      A R B I T R A T I O N
 
                 Employer,                :
 
                                          :         D E C I S I O N
 
            and                           :
 
                                          :
 
            CNA INSURANCE COMPANIES,      :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ____________________________________________________________
 
            
 
                              statement of the case
 
            
 
                 This is a proceeding in arbitration brought by Ronald 
 
            Castle against his former employer and its insurance carrier 
 
            based upon an alleged injury of August 10, 1989.  Castle 
 
            seeks compensation for temporary partial disability, healing 
 
            period and permanent partial disability.
 
            
 
                 The case was heard at Davenport, Iowa, on October 29, 
 
            1991.  The record in the case consists of jointly offered 
 
            exhibits 1 through 12, deputy exhibit A and testimony from 
 
            Ronald Castle, Richard Castle, Ronald Bloom and Larry Morey.
 
            
 
                                 findings of fact
 
            
 
                 Having considered all the evidence received, together 
 
            with the appearance and demeanor of the witnesses, the 
 
            following findings of fact are made.
 
            
 
                 Ronald Castle is a 33-year-old married man who lives at 
 
            Muscatine, Iowa.  He is a 1976 high school graduate.  He has 
 
            worked primarily in the trucking industry as a dock worker, 
 
            dock foreman, driver and terminal manager.  He has performed 
 
            sales and customer relations work in some of those 
 
            positions.  For approximately two and one-half years after 
 
            high school, he worked for Muscatine Produce.  He drove a 
 
            bulk livestock feed truck.  He sold feed and seed corn.  His 
 
            duties included billing customers and figuring their 
 
            accounts.
 
            
 
                 Ronald commenced work with Carstensen Freight Lines in 
 
            early 1988.  Initially, he drove a semi making local 
 
            deliveries.  The job included loading and unloading.  In 
 
            early 1989, he bid into an over-the-road driving position.  
 
            Ronald denied having any problems with his neck, back or 
 
            arms or any symptoms of numbness or tingling in his 
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            
 
            
 
            extremities prior to the time that he began driving over the 
 
            road for Carstensen.  In July or August of 1989, Ronald 
 
            began noticing numbness and tingling in his left hand.  He 
 
            sought treatment from Leo Kulick, M.D., who initially 
 
            believed the condition to be an overuse syndrome affecting 
 
            his wrist (exhibit 1, page 1; exhibit 2).  The condition was 
 
            later determined to be related to degenerative changes in 
 
            Ronald's cervical spine.  EMG/NCV tests failed to show any 
 
            significant abnormalities.
 
            
 
                 After reporting his problems to his employer, Ronald 
 
            ceased performing over-the-road driving and was placed in a 
 
            job where he performed dock work and some local driving.  
 
            Ronald worked the midnight shift.  At approximately the same 
 
            point in time, late 1989 through early 1990, he operated his 
 
            own trucking business.  Ronald continued working for 
 
            Carstensen until July 10, 1990, when he was reassigned from 
 
            the midnight shift to the third shift which started at 4:30 
 
            p.m.  At that time, he told Ronald Bloom, his supervisor, 
 
            that he was going on workers' compensation.  In early 1991, 
 
            Ronald applied for other positions with Carstensen, but none 
 
            were made available to him.
 
            
 
                 The extent of Ronald's work in his own trucking company 
 
            and in a trucking company operated by his father is not well 
 
            defined by the evidence in the case.  Testimony presented by 
 
            Ronald conflicts in some material ways with testimony on the 
 
            same subjects which was presented by his father.  There is 
 
            evidence from Larry Morey to the effect that Ronald 
 
            performed regular office duties and kept somewhat regular 
 
            office hours in the trucking business.  Morey also related 
 
            observing Ronald drive trucks for his father at times when 
 
            Ronald denied driving.
 
            
 
                 Ronald's medical treatment passed to James B. Worrell, 
 
            M.D., a neurologist.  Dr. Worrell has characterized 
 
            claimant's condition as a myofascial syndrome involving his 
 
            neck and left upper extremity.  Diagnostic tests have shown 
 
            degeneration in claimant's cervical spine but no disc 
 
            herniation.  Claimant has been diagnosed as having a 
 
            bilateral C7, C8 radiculopathy which is possibly related to 
 
            a chronic myofascial injury and lower brachioplexus stretch.  
 
            Dr. Worrell has recommended that claimant not resume his 
 
            usual employment of truck driving as it would aggravate his 
 
            condition (exhibit 11, pages 2 and 3).  Dr. Worrell assigned 
 
            a six percent permanent impairment rating and further stated 
 
            that, as of January 1, 1991, he believed that claimant would 
 
            not make further improvement in his condition (exhibit 11, 
 
            page 5).
 
            
 
                 On November 7, 1989, claimant was evaluated by William 
 
            Dougherty, M.D.  Dr. Dougherty felt that claimant had mild 
 
            cervical degenerative arthritis and possibly ulnar nerve 
 
            compression at the left elbow.  He recommended a myelogram 
 
            (exhibit 5).
 
            
 
                 There is no evidence in the record of this case which 
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            
 
            
 
            clearly relates the condition of this claimant's cervical 
 
            spine to his employment, other than indicating that work as 
 
            a truck driver would exacerbate the symptoms.  There is no 
 
            evidence that his work as an over-the-road truck driver 
 
            caused the cervical condition to develop or permanently 
 
            aggravated that condition.  To the contrary, it appears as 
 
            though the treatment Ronald received from Dr. Kulick 
 
            provided relief of the symptoms which were most troubling 
 
            and which led him to seek medical care (exhibit 1, page 5).  
 
            It was at that time that Dr. Kulick indicated claimant could 
 
            continue working full time but should minimize his truck 
 
            driving activities.  The office note is dated November 17, 
 
            1989.  Dr. Worrell then became involved in claimant's 
 
            treatment.  It is noted that Dr. Worrell's records seem to 
 
            indicate that he was of the understanding that claimant was 
 
            continuing to work as a truck driver rather than the dock 
 
            work which was actually his primary activity at that time 
 
            (exhibits 7 and 8).  It was on January 10, 1991, six months 
 
            after claimant had left his employment with Carstensen, that 
 
            Dr. Worrell issued a letter which he indicated should be 
 
            taken to claimant's employer.  In that letter, Dr. Worrell 
 
            stated that claimant should not operate trucks, heavy 
 
            machinery or perform heavy labor.  He did release claimant 
 
            to perform office work (exhibit 11, page 4).  It is noted 
 
            that it was not until September 6, 1990, two months after 
 
            claimant left the employment, that Dr. Worrell first 
 
            indicated that claimant should not pursue his usual 
 
            employment (exhibit 11, page 2).
 
            
 
                 It is found that Ronald Castle had a degenerative 
 
            condition in his cervical spine which preexisted his work as 
 
            an over-the-road driver for Carstensen Freight Lines.  The 
 
            work as an over-the-road driver aggravated that condition 
 
            causing Ronald to develop symptoms in his neck and left arm 
 
            as well as headaches.  Ronald then sought treatment from Dr. 
 
            Kulick and ceased performing work as an over-the-road 
 
            driver.  By November 17, 1989, claimant's symptoms had 
 
            improved considerably, though not completely.  Claimant 
 
            continued to work for Carstensen Freight Lines until July 
 
            10, 1990, when he chose to leave after being moved from the 
 
            shift which started at midnight to the shift which started 
 
            at 4:30 p.m.  During much of this same time, Ronald was also 
 
            involved in his own trucking operation.
 
            
 
                 The record of this case contains a considerable amount 
 
            of conflicting evidence between testimony presented by 
 
            Ronald Castle and testimony presented by Richard Castle, 
 
            Ronald's father.  There is likewise conflicting testimony 
 
            between the Castles and Larry Morey.  A great deal of this 
 
            case is dependent upon the weight given to the claimant's 
 
            subjective symptoms.  There is objective evidence of an 
 
            abnormality in claimant's cervical spine which can provide a 
 
            physiological basis for his symptoms.  There is no evidence, 
 
            however, which connects that objectively found abnormality 
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
            
 
            
 
            to this claimant's employment with Carstensen Freight Lines 
 
            other than as an aggravation of the condition.  A great deal 
 
            of the outcome in this case is dependent to a large degree 
 
            upon the weight given to Ronald's testimony.  His 
 
            credibility has been impaired by the conflicting evidence in 
 
            the case, particularly where his testimony conflicts with 
 
            that of his father in regard to their own trucking company 
 
            operations.
 
            
 
                 It is therefore found that claimant's work as a truck 
 
            driver aggravated a preexisting degenerative condition in 
 
            Ronald's cervical spine and produced the symptoms in his 
 
            left arm for which he sought medical treatment from Dr. 
 
            Kulick.  That aggravation is found to be only temporary and 
 
            to have resolved by November 17, 1989.  Claimant has a 
 
            condition which is susceptible to aggravation by driving and 
 
            heavy labor.  As long as he performs those activities, he 
 
            will likely have symptoms.  It is found that the aggravation 
 
            was not permanent.
 
            
 
                                conclusions of law
 
            
 
                 Claimant has the burden of proving by a preponderance 
 
            of the evidence that he received an injury on or about 
 
            August 10, 1989, which arose out of and in the course of his 
 
            employment. McDowell v. Town of Clarksville, 241 N.W.2d 904 
 
            (Iowa 1976); Musselman v. Cent. Tel. 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).
 
            
 
                 Aggravation of a preexisting condition is one form of 
 
            compensable injury.  While a claimant is not entitled to 
 
            compensation for the results of a preexisting injury or 
 
            disease, the mere existence at the time of a subsequent 
 
            injury is not a defense.  Rose v. John Deere Ottumwa Works, 
 
            247 Iowa 900, 908, 76 N.W.2d 756, 760-61 (1956).  If the 
 
            claimant had a preexisting condition or disability that is 
 
            aggravated, accelerated, worsened or lighted up so that it 
 
            results in disability, claimant is entitled to recover.  
 
            Nicks v. Davenport Produce Co., 254 Iowa 130, 115 N.W.2d 
 
            812, 815 (1962).
 
            
 
                 It is determined that Ronald Castle did sustain an 
 
            injury which arose out of and in the course of his 
 
            employment on or about August 10, 1989.
 
            
 
                 Since claimant resumed work and was not completely 
 
            disabled, he is entitled to recover temporary partial 
 
            disability compensation until such time as his recovery from 
 
            the injury was completed.  In paragraph 6 of the prehearing 
 
            report, there appears to be a stipulation that the rate of 
 
            compensatt ha 
 

 
            
 
            Page   6
 
            
 
            
 
            
 
            
 
            
 
            
 
            rule 343 IAC 3.1.
 
            
 
                 Signed and filed this ______ day of ____________, 1992.
 
            
 
                 
 
            
 
                 
 
                 
 
                                          ______________________________
 
                                          MICHAEL G. TRIER
 
                                          DEPUTY INDUSTRIAL COMMISSIONER
 
            
 
            Copies To:
 
            
 
            Mr. Michael J. Motto
 
            Attorney at Law
 
            1000 Firstar Center
 
            201 West Second Street
 
            Davenport, Iowa  52801
 
            
 
            Mr. Elliott R. McDonald, Jr.
 
            Attorney at Law
 
            P.O. Box 2746
 
            Davenport, Iowa  52809
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                               5-1402.40; 5-1801.1
 
                                               5-2206; 5-3002
 
                                               Filed January 2, 1992
 
                                               MICHAEL G. TRIER
 
            before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            RONALD CASTLE,                :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :         File No. 954406
 
            CARSTENSEN FREIGHT LINES,     :
 
                                          :      A R B I T R A T I O N
 
                 Employer,                :
 
                                          :         D E C I S I O N
 
            and                           :
 
                                          :
 
            CNA INSURANCE COMPANIES,      :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ____________________________________________________________
 
            
 
            5-1402.40; 5-1801.1; 5-2206; 5-3002
 
            Claimant failed to prove that his injury was anything other 
 
            than a temporary aggravation of a preexisting condition.  He 
 
            was awarded temporary partial disability.  Since his actual 
 
            earnings were not in evidence, the parties were ordered to 
 
            pay at the rate which was two-thirds of the difference 
 
            between the earnings indicated by the stipulated weekly rate 
 
            of compensation for temporary total disability and his 
 
            actual earnings.
 
            
 
 
            
 
            Page   1
 
            
 
            
 
            
 
            
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            HOWARD CLAYTON, JR.,          :
 
                                          :
 
                 Claimant,                :      File No. 954412
 
                                          :
 
            vs.                           :
 
                                          :     A R B I T R A T I O N
 
            RESTORE SPECIALTY,            :
 
                                          :       D E C I S I O N
 
                 Employer,                :
 
                 Defendant.               :
 
                                          :
 
            ___________________________________________________________
 
            
 
                              statement of the case
 
            
 
                 This is a case that came on for hearing on July 8, 
 
            1991, at Des Moines, Iowa.  This is a proceeding in 
 
            arbitration wherein claimant seeks compensation for 
 
            permanent partial disability benefits as a result of an 
 
            occupational hearing loss occurring in February 1, 1989.  
 
            The record in the case consists of the testimony of 
 
            claimant, and claimant's exhibits 1, 2 and 3.
 
            
 
                 The defendant did not appear at hearing.  Defendant had 
 
            not answered claimant's petition and after an order was 
 
            issued giving defendant a certain amount of time to file an 
 
            answer, defendant still failed to answer and sanctions were 
 
            issued.  This resulted in an order closing defendant to any 
 
            activity or evidence.  
 
            
 
                 Because of the nature of this case and the failure of 
 
            defendant to answer and appear, there are no disputed issues 
 
            in this case.  The issues were stipulated by default.  This 
 
            matter proceeded on default basis with claimant proceeding 
 
            with testimony to establish his entitlement to his claimed 
 
            weekly benefits as a result of his work-related injury.
 
            
 
                                 findings of fact
 
            
 
                 The undersigned deputy having heard the testimony and 
 
            considered all the evidence, finds that:
 
            
 
                 Claimant was an employee with Restore Specialty 
 
            beginning in December 1988 until he left his employment on 
 
            February 1, 1989.  This termination date from his employment 
 
            of February 1, 1989 is the date of claimant's work injury.   
 
            Claimant's job involved running a pneumatic jackhammer.  The 
 
            employer furnished Styrofoam earplugs which claimant used.
 
            
 
                 Claimant said his hearing was good and had no problems 
 
            prior to working for defendant.  Claimant testified that he 
 
            had his hearing tested by Neil Verhoef, an audiologist, as 
 
            represented by claimant's exhibits 1 and 3.  Claimant's 
 
            hearing loss was to his left ear.  Claimant said that his 
 
            hearing has not improved to the present.  He said he 
 
            particularly has problems hearing soft voices and a woman's 
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            voice.  He said he called defendant regarding his hearing 
 
            loss and the defendant indicated he would call him later but 
 
            defendant has never returned his calls.
 
            
 
                 Claimant testified his gross wages at the time of his 
 
            injury as $240 per week.  He testified he was married on 
 
            said date but had no dependent children as of February 1, 
 
            1989.  Claimant's Exhibit 1 shows the particular testing 
 
            done by the audiologist and Claimant's Exhibit 3 shows the 
 
            worksheet for calculation of the percent of occupational 
 
            hearing loss.  This exhibit shows claimant had a 2.1666 
 
            percent hearing loss, total, binaural.
 
            
 
                 The undersigned finds that claimant was an employee on 
 
            February 1, 1989, at which time he incurred an injury that 
 
            arose out of and in the course of his employment with 
 
            defendant and that this injury caused claimant to incur 
 
            2.1666 percent hearing loss, total, binaural.  In claimant's 
 
            prehearing report claimant contends he is owed 15 weeks of 
 
            permanent partial benefits for a 3 percent loss of hearing.  
 
            It appears that the claimant is using the 500 weeks times 3 
 
            percent to arrive at 15 weeks, but, in fact, as provided 
 
            under 85B.6, maximum compensation, the maximum compensation 
 
            for a total occupational hearing loss is 175 weeks.  
 
            Additionally, the undersigned cannot determine where 
 
            claimant got 3 percent unless he is rounding off the 2.1 
 
            percent hearing loss determined by the audiologist.
 
            
 
                 The undersigned finds that claimant incurred a work-
 
            related occupational hearing loss of 2.1666 percent, total, 
 
            binaural, which results in claimant being entitled to 3.79 
 
            weeks of compensation at the weekly rate of $159.21.
 
            
 
                                conclusions of law
 
            
 
                 Claimant has the burden of proving by a preponderance 
 
            of the evidence that he received an injury on February 1, 
 
            1989, which arose out of and in the course of his 
 
            employment. McDowell v. Town of Clarksville, 241 N.W.2d 904 
 
            (Iowa 1976); Musselman v. Central Telephone Co., 261 Iowa 
 
            352, 154 N.W.2d 128 (1967). 
 
            
 
                 If the available expert testimony is insufficient alone 
 
            to support a finding of causal connection, such testimony 
 
            may be coupled with nonexpert testimony to show causation 
 
            and be sufficient to sustain an award.  Giere v. Aase Haugen 
 
            Homes, Inc., 259 Iowa 1065, 146 N.W.2d 911, 915 (1966).  
 
            Such evidence does not, however, compel an award as a matter 
 
            of law.  Anderson v. Oscar Mayer & Co., 217 N.W.2d 531, 536 
 
            (Iowa 1974).  To establish compensability, the injury need 
 
            only be a significant factor, not be the only factor causing 
 
            the claimed disability.  Blacksmith v. All-Amnerican, Inc., 
 
            290 N.W.2d 348, 354 (Iowa 1980).
 
            
 
     
 
            
 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            Iowa Code section 85B.6 provides:
 
            
 
                    Compensation is payable for a maximum of one 
 
                 hundred seventy-five weeks for total occupational 
 
                 hearing loss.  For partial occupational hearing 
 
                 loss compensation is payable for a period 
 
                 proportionate to the relation which the calculated 
 
                 binaural, both ears, hearing loss bears to one 
 
                 hundred percent, or total loss of hearing.
 
            
 
                 It is further concluded:
 
            
 
                 Claimant's occupational hearing loss is causally 
 
            connected to a work-related injury on February 1, 1989.
 
            
 
                 Claimant incurred a 2.1666 percent hearing loss, total, 
 
            binaural, as a result of a February 1, 1989 work-related 
 
            injury.
 
            
 
                                      order
 
            
 
                 THEREFORE, it is ordered:
 
            
 
                 That claimant is entitled to three point seven nine 
 
            (3.7) weeks of permanent partial disability benefits at the 
 
            weekly rate of one hundred fifty-nine and 21/100 dollars 
 
            ($159.21), beginning February 1, 1989.
 
            
 
                 That defendants shall pay accrued weekly benefits in a 
 
            lump sum and shall receive credit against the award for 
 
            weekly benefits previously paid.  The record indicates 
 
            defendant has paid no previous benefits of any kind or 
 
            nature.
 
            
 
                 That defendants shall pay interest on benefits awarded 
 
            herein as set forth in Iowa Code section 85.30.
 
            
 
                 That defendants shall pay the costs of this action, 
 
            pursuant to rule 343 IAC 4.33.
 
            
 
                 That defendants shall file an activity report upon 
 
            payment of this award as required by this agency, pursuant 
 
            to rule 343 IAC 3.1.
 
            
 
                 Signed and filed this ____ day of July, 1991.
 
            
 
            
 
                                          ______________________________
 
                                          BERNARD J. O'MALLEY
 
                                          DEPUTY INDUSTRIAL COMMISSIONER
 
            
 
            Copies to:
 
            
 
            Mr A Zane Blessum
 
            Attorney at Law
 
            113 N John Wayne Dr
 
            Winterset IA 50273
 
            
 
            Restore Specialty
 
            Box 1745
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
            Minnetonka MN 55534
 
            CERTIFIED & REGULAR MAIL
 
            
 
            
 
                 
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                      5-2208
 
                      Filed July 23, 1991
 
                      Bernard J. O'Malley
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            HOWARD CLAYTON, JR.,          :
 
                                          :
 
                 Claimant,                :      File No. 954412
 
                                          :
 
            vs.                           :
 
                                          :     A R B I T R A T I O N
 
            RESTORE SPECIALTY,            :
 
                                          :       D E C I S I O N
 
                 Employer,                :
 
                 Defendant.               :
 
                                          :
 
            ___________________________________________________________
 
            
 
            5-2208
 
            Claimant awarded 3.7 weeks of permanent partial disability 
 
            benefits for an occupational hearing loss.
 
            Defendant did not show up at hearing.  His evidence and 
 
            activity was cut off by a prior order.