BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         _________________________________________________________________
 
                     
 
         DELORES MATTHEWS,     
 
                     
 
              Claimant,   
 
                     
 
         vs.         
 
                                              File No. 959319
 
         THOMBERT, INC.,       
 
                                                A P P E A L
 
              Employer,   
 
                                              D E C I S I O N
 
         and         
 
                     
 
         EMPLOYERS MUTUAL COMPANIES,     
 
                     
 
              Insurance Carrier,    
 
              Defendants.      
 
         _________________________________________________________________
 
         The record, including the transcript of the hearing before the 
 
         deputy and all exhibits admitted into the record, has been 
 
         reviewed de novo on appeal.  The decision of the deputy filed 
 
         November 19, 1992 is affirmed and is adopted as the final agency 
 
         action in this case.
 
         Defendants shall pay the costs of the appeal, including the 
 
         preparation of the hearing transcript.
 
         Signed and filed this ____ day of November, 1993.
 
         
 
         
 
         
 
         
 
                                      ________________________________
 
                                              BYRON K. ORTON
 
                                         INDUSTRIAL COMMISSIONER
 
         
 
         Copies To:
 
         
 
         Ms. Iris J. Post
 
         Attorney at Law
 
         P.O. Box 10434
 
         Des Moines, Iowa 50306
 
         
 
         Mr. E. J. Giovannetti
 
         Ms. Anne L. Clark
 
         Attorneys at Law
 
         2700 Grand Ave., Ste 111
 
         Des Moines, Iowa 50312
 
         
 
 
            
 
            
 
            
 
            
 
                                          1106, 1108.30, 1108.40, 
 
                                          1108.50
 
                                          1401, 1402.20, 2201, 2203, 
 
                                          2205
 
                                          1402.30, 1402.40, 1803, 3001, 
 
                                          3002, 3003
 
                                          Filed November 17, 1993
 
                                          Byron K. Orton
 
            
 
                       BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
            
 
            DELORES MATTHEWS,     
 
                        
 
                 Claimant,   
 
                        
 
            vs.         
 
                                                  File No. 959319
 
            THOMBERT, INC.,       
 
                                                   A P P E A L
 
                 Employer,   
 
                                                  D E C I S I O N
 
            and         
 
                        
 
            EMPLOYERS MUTUAL COMPANIES,     
 
                        
 
                 Insurance Carrier,    
 
                 Defendants.      
 
            ____________________________________________________________
 
           
 
            1106, 1108.30, 1108.40, 1108.50, 1401, 1402.20, 2201, 2203, 
 
            2205
 
            The greater weight of the evidence, both medical and 
 
            nonmedical, supported and established the determination that 
 
            claimant had sustained the occupational disease of 
 
            occupational asthma compensable under Iowa Code chapter 85A 
 
            and that she had not sustained an injury compensable under 
 
            Iowa Code chapter 85.  Claimant's treating physicians were 
 
            preferred over defendants three one time evaluators even 
 
            although all three doctors were members of the same firm of 
 
            doctors and saw her at three different times.  The decision 
 
            contains several cites summarizing the distinction between 
 
            an injury and an occupational disease.  Claimant met all of 
 
            the qualifications for occupational disease contained in 
 
            Iowa Code sections 85A.8 and 85A.12.  
 
            The date of the occupational disease was the date of the 
 
            last injurious exposure.  Iowa Code section 85A.10.
 

 
            
 
            Page   2 
 
            
 
            
 
            1108.30, 1108.40, 1402.30, 1402.40
 
            Claimant was a certified public accountant who became (1) an 
 
            officer of the company as vice president in charge of 
 
            finance, (2) a member of the board of directors, (3) a 
 
            member of the management team involved in the decision 
 
            making process of the company and (4) one of 18 select 
 
            stockholders and owners of the company.  She sustained 
 
            occupational asthma from the use of isocyanates in the plant 
 
            and became sensitized to this chemical.  The company 
 
            physician, her treating physician and claimant determined 
 
            that she should remove herself from this environment.  The 
 
            treating physician said it was a matter of her life and 
 
            health.
 
            It was determined that claimant was "actually incapacitated 
 
            from performing the employee's work ... because of an 
 
            occupational disease ... in the last employment in which 
 
            such employee is injuriously to the hazards of such 
 
            disease."  Iowa Code section 85A.4.  Claimant was foreclosed 
 
            from performing her work for this employer.  Claimant was 
 
            also foreclosed from performing any industrial work or other 
 
            work in an environment where isocyanates were in use.
 
            In addition, it was determined that claimant was "actually 
 
            incapacitated from ... earning equal wages in other suitable 
 
            employment because of an occupational disease ... in the 
 
            last occupation in which such employee is injuriously 
 
            exposed to the hazards of such disease."  Iowa Code section 
 
            85A.8.  Claimant obtained new employment as a senior 
 
            accountant for another company primarily as a record keeper 
 
            and preparer of financial statements.  She alleged an 
 
            immediate loss of 29 percent of her former income and 
 
            alleged a 10 percent loss of income at the time of hearing.  
 
            These allegations could be supported by the record.  Simple 
 
            calculations demonstrated an approximate 15 percent loss of 
 
            actual earnings at the time of hearing which was three years 
 
            after her last injurious exposure.
 
            Thus, disablement was established not once but twice.
 
            
 
            1803
 
            It was determined that claimant had sustained a 15 percent 
 
            industrial disability to the body as a whole primarily based 
 
            on (1) claimants age of 43 and the peak earning period in 
 
            her working lifetime (2) the fact that claimant was 
 
            physically sensitized to isocyanates which is a fairly 
 
            common industrial chemical which is used in the manufacture 
 
            of all polyurethane products and (3) that claimant is 
 
            foreclosed from working in an occupation where isocyanates 
 
            are in use because it is a threat to her life and health.
 
            
 
            3001, 3002, 3003
 
            Claimant's base monthly salary, profit bonus, inventory 
 
            bonus, and automobile compensation were used in determining 
 
            the rate.  The life insurance compensation was not used only 
 
            because the record was silent as to whether the calculation 
 
            of wages in the record contained this element of her 
 
            compensation.
 

 
            
 
            Page   3 
 
            
 
            
 
            The profit bonus was conditioned only upon the company 
 
            making a profit.  Claimant always received it once she 
 
            became eligible for it.  It was determined to be a regular 
 
            bonus.
 
            
 
            The inventory bonus was paid practically every month.  It 
 
            was determined to be a regular bonus.
 
            
 
            Even though claimant was paid monthly, nevertheless, (1) her 
 
            compensation contained the profit bonus which was paid 
 
            annually as she called for it and (2) the inventory bonus 
 
            which varied from month to month and (3) the automobile 
 
            compensation which apparently was paid separately.  Thus, 
 
            claimant actually had an annual income even though she 
 
            received compensation monthly and the rate was computed 
 
            pursuant to Iowa Code section 85.36(5) as the closest 
 
            pertinent statute by adding up the annual income and 
 
            dividing by 52.
 
            
 
            
 
 
            
 
            
 
            
 
            
 
            
 
                      BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
            DELORES MATTHEWS,   
 
                                          
 
                 Claimant, 
 
                      
 
            vs.       
 
                                                File No. 959319
 
            THOMBERT, INC.,     
 
                                            A R B I T R A T I O N
 
                 Employer, 
 
                                                D E C I S I O N
 
            and       
 
                      
 
            EMPLOYERS MUTUAL COMPANIES,   
 
                      
 
                 Insurance Carrier,  
 
                 Defendants.    
 
            ___________________________________________________________
 
                                INTRODUCTION
 
            
 
                 This is a proceeding in arbitration filed by Delores 
 
            Matthews, claimant, against Thombert, Inc., employer, and 
 
            Employers Mutual Companies, insurance carrier, defendants, 
 
            for benefits, as a result of an injury or activity which 
 
            impaired claimant's health which allegedly occurred on or 
 
            about October 26, 1988.  A hearing was held in Des Moines, 
 
            Iowa on May 4, 1992, and the case was fully submitted at the 
 
            close of the hearing.  Claimant was represented by Iris J. 
 
            Post.  Defendants were represented by E. J. Giovannetti.  
 
            The record consists of the testimony of Delores Matthews, 
 
            claimant, Ron Matthews, claimant's husband, Robert Johns, 
 
            formerly Director of Human Resources, Walter Smith, Chairman 
 
            of the Board and formerly President of the company, Fred 
 
            Steensma, data processing manager, joint exhibits 1, 2 and 
 
            3, claimant's exhibits 4, 5 and 6, and defendant's exhibits 
 
            A, B, and C.  Both attorneys submitted excellent 
 
            descriptions of the disputed matters in this case at the 
 
            time of the hearing.  The deputy ordered a transcript of the 
 
            hearing.  Both attorneys submitted excellent post-hearing 
 
            briefs but the briefs did not address the two main issues in 
 
            this case, to wit:  occupational disease and disablement.
 
            
 
                                      ISSUES
 
            
 
                 The parties submitted the following issues for 
 
            determination at the time of the hearing.
 
            
 
                 Whether claimant sustained either (1) an injury on or 
 
            about October 26, 1988, pursuant to chapter 85 of the Code 
 
            of Iowa or (2) an occupational disease on that date pursuant 
 
            to chapter 85A of the Code of Iowa, which in either case 
 
            arose out of and in the course of employment with employer.
 
            
 
                 Whether the injury or disease was the cause of 
 
            permanent disability.
 
            
 
                 Whether claimant is entitled to permanent disability 
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            benefits and if so the extent of benefits to which claimant 
 
            is entitled based upon a finding of industrial disability or 
 
            loss of earnings capacity.
 
            
 
                 The parties requested a determination of the proper 
 
            rate of compensation.
 
            
 
                                 FINDINGS OF FACT
 
            
 
                           INJURY/OCCUPATIONAL DISEASE
 
            
 
                 It is determined that claimant sustained an 
 
            occupational disease pursuant to Iowa Code sections 85A.8 
 
            and 85A.12 of the Code of Iowa.
 
            
 
                 The concepts of injury and occupational disease cannot 
 
            be used interchangeable.  McSpadden vs. Big Ben Coal Co., 
 
            288 N.W.2d 181, 190 (Iowa 1980).
 
            
 
                 Moreover, chapter 85 states that the words "injury" or 
 
            "personal injury" "... shall not include an occupational 
 
            disease as defined in section 85A.8."  Iowa Code section 
 
            85.61 Definitions.  4.b.
 
            
 
                 Concomitantly, chapter 85A provides that no 
 
            compensation is payable as an occupational disease "... 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."  
 
            Iowa Code section 85A.14.
 
            
 
                 Iowa Code section 85.3(1) provides that employers shall 
 
            pay compensation for all personal injuries sustained by an 
 
            employee arising out of and in the course of employment with 
 
            employer.  However, the statute does not define personal 
 
            injury or injury.  Nevertheless, "The Supreme Court has 
 
            defined the term 'injury' very broadly." Lawyer and Higgs, 
 
            Iowa Workers' Compensation--Law and Practice (Second Ed.), 
 
            section 4-1, page 21.
 
            
 
                 The Supreme Court stated "a personal injury ... 
 
            obviously means an injury to the body, the impairment of 
 
            health, or disease not excluded by the act, which comes 
 
            about, not through the natural building up or tearing down 
 
            of the human body, but because of a traumatic or other hurt 
 
            or damage to the health or body of an employee."  Almquist 
 
            v. Shenandoah Nurseries, 218 Iowa 724, 254 N.W. 35 (1934).  
 
            
 
                 The liberal concept of injury is further illustrated by 
 
            the fact that chapter 85 states that the words injury or 
 
            personal injury shall include a disease if the disease 
 
            results from an injury. Iowa Code 85.61 4.b.
 
            
 
                 The liberal concept of injury is further illustrated by 
 
            Iowa Supreme Court decisions over the years.  In Iowa, an 
 
            accident is not required.  Olson v. Goodyear Service Stores, 
 
            255 Iowa 1112, 1121,  125 N.W.2d 251, 257 (1963); Adams v. 
 
            Douglas and Lomason, Volume 2, No. 2, State of Iowa 
 
            Industrial Commissioner Decisions 431 (1985).  Proof of a 
 
            special incident or unusual occurrence is not required.  
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            Ford v. Goode, 240 Iowa 1219, 38 N.W.2d 158 (1949).  A 
 
            personal injury may develop gradually over an extended 
 
            period of time Black v. Creston Auto Co., 255 Iowa 671, 281 
 
            N.W.189 (1938).  More recently, the Iowa Supreme Court has 
 
            adopted the cumulative injury rule which applies to 
 
            situations where a disability develops gradually over a 
 
            period of time from a series of micro traumas and ultimately 
 
            results in a compensable injury  McKeever Custom Cabinets v. 
 
            Smith, 379 N.W.2d 368, 374 (Iowa 1985).  Oscar Mayer Foods 
 
            Corp. v Tasler, 483 N.W.2d 824 (Iowa 1992)
 
            
 
                 Even though the Supreme Court found that a case of lead 
 
            poisoning caused by inhalation of fumes at work was an 
 
            injury, rather than an occupational disease, it did so in 
 
            1938 prior to the passage of the occupational disease law in 
 
            1947 based upon the rational that the employer had failed to 
 
            furnish the employee a safe place to work Black v. Creston 
 
            Auto Co.,, 225 Iowa 671, 675, 281 N.W.189 (1938); Anderson 
 
            v. Carroll George, Inc., file number 776587, filed August 
 
            18, 1986.  
 
            
 
                 By comparison, the concept of occupational disease has 
 
            been quite narrowly defined and limited by various sections 
 
            of chapter 85A.  In particular, Iowa Code section 85A.8 
 
            defines occupational disease (1) as only those diseases 
 
            which arise out of and in the course of the employees' 
 
            employment, (2) that such diseases shall have a direct 
 
            casual connection with the employment and must have followed 
 
            as a natural incident thereto from injurious exposure 
 
            occasioned by the nature of the employment, (3) that 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, (4) that even though the 
 
            disease need not have been foreseen or expected it must 
 
            nevertheless after its contraction 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 of it and (5) a disease which follows from a 
 
            hazard to which an employee has or would have been equally 
 
            exposed outside of his occupation is not compensable as an 
 
            occupational disease.  
 
            
 
                 Iowa Code section 85A.12 further specifies that an 
 
            employer shall not be liable for any compensation for an 
 
            occupational disease unless the disease shall be due to the 
 
            nature of an employment in which the hazards of the disease 
 
            actually exist and the hazards are characteristic of this 
 
            employment and peculiar to the trade, occupation, process or 
 
            employment and that the disease must actually arise out of 
 
            the employment.  This section further requires disability or 
 
            death to occur within three years in the case of 
 
            pneumoconiosis or within one year in the case of any other 
 
            occupational disease.  These latter statutory requirements 
 
            about the time of the development of disability or death 
 
            were strictly construed and upheld by the Iowa Supreme 
 
            Court.  Meyer v. Iowa State Penitentiary, 476 N.W.2d 58 
 
            (Iowa 1991).
 
            
 
                 Furthermore, Iowa Code section 85A.4 requires that the 
 
            employee become actually incapacitated from performing the 
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
            employee's work or from earning equal wages in other 
 
            suitable employment because of the occupational disease in 
 
            the last occupation in which the employee was injuriously 
 
            exposed to the hazards of the disease.
 
            
 
                 The Iowa Occupational Disease Law has been more simply 
 
            explained as special coverage for "... workers who contract 
 
            diseases peculiar to their employment."  Lawyer and Higgs, 
 
            Iowa Workers' Compensation -- Law and Practice (Second Ed.), 
 
            section 18-1 page 177.  The Supreme Court further attempted 
 
            to simplify the concept of occupational disease by stating: 
 
            
 
                 "...to prove causation of an occupational disease, 
 
                 the claimant need only meet the two basic 
 
                 requirements imposed by the statutory definition 
 
                 of occupational disease, given in section 85A.8.  
 
                 First, the disease must be causally related to the 
 
                 exposure to harmful conditions in the field of 
 
                 employment....  Secondly, those harmful conditions 
 
                 must be more prevalent in the employment concerned 
 
                 than in everyday life or in other occupations." 
 
            
 
                 McSpadden v. Big Ben Coal Co., 288 N.W.2d 181, 190 
 
            (Iowa 1980).  Frit Indus. v. Langenwalter, 443 N.W.2d 88, 90 
 
            (Iowa Court of Appeals 1989).
 
            
 
                 The industrial commissioner recently stressed the 
 
            distinction between injury and occupational disease by 
 
            making the distinction that injuries are normally related to 
 
            external traumatic forces whereas occupational diseases are 
 
            normally related to an invasion of the body by an outside 
 
            agent.  Noble v. Lamoni Products, file Nos. 857, 575 and 
 
            851309 (Appeal Decision May 7, 1992) (on appeal).  It will 
 
            be noted in the summary of the facts of this case that 
 
            claimant's body did not receive any external traumatic 
 
            forces but rather her body was invaded by or affected by an 
 
            outside foreign chemical agent used in the manufacturing 
 
            process where she was employed.  
 
            
 
                 The weight of the evidence in this case supports and 
 
            establishes the determination that claimant has sustained an 
 
            occupational disease pursuant to chapter 85A and that 
 
            claimant has not sustained an injury or personal injury 
 
            pursuant to chapter 85 of the Code of Iowa.  
 
            
 
                 Claimant testified that employer is primarily a 
 
            family-owned business which employes approximately 80 to 100 
 
            employees and engages in the manufacturing of polyurethane 
 
            products (Transcript pp., 21 & 24).  Isocyanates are a part 
 
            of the manufacture of all polyurethane products (Trans., pp 
 
            28 & 32).  Prior to 1988 the company manufactured bowling 
 
            balls for the Brunswick Company (Trans., p. 24).  In 1988 
 
            the company began to manufacture forklift truck tires and 
 
            wheels (Trans., p. 21) and this involved using a new 
 
            chemical called Vulkollan (Trans., p. 29).  Vulkollan used a 
 
            chemical component known as NDI whereas previously the 
 
            isocyanates employed used another chemical component 
 
            described as MDI (Trans., p. 30).  
 
            
 
                 Claimant testified that in September of 1988 that she 
 

 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
            developed what felt like a cold with congestion and 
 
            bronchial problems.  She encountered difficulties breathing 
 
            and her voice became very raspy (Trans., p. 26).  Claimant 
 
            described the breathing problems as follows:  "It just feels 
 
            harder to pull in air, and so you start to have a discomfort 
 
            in your lungs."  (Trans., p. 33).
 
            
 
                 Claimant became more concerned in October of 1988 when 
 
            three co-employees noticed her symptoms and called them to 
 
            her attention.  Claimant's husband had also noticed that her 
 
            voice had changed dramatically over the telephone (Trans., 
 
            p. 33).  Claimant discussed her condition with Walt Smith, 
 
            then president of the company and Bob Johns, then director 
 
            of Human Resources.  Claimant testified that Smith and Johns 
 
            were concerned that her problems were connected with 
 
            material being used in the plant and encouraged her to see a 
 
            doctor (Trans., p. 34).  
 
            
 
                 Claimant testified that she saw Michael J. Makowsky, 
 
            M.D., an occupational health doctor, at Iowa Methodist 
 
            Hospital on October 26, 1988.  Claimant testified that he 
 
            prescribed medications and recommended that she not return 
 
            to the processing area of the plant (Trans., p. 34).  
 
            
 
                 On October 26, 1988, the emergency room record at Iowa 
 
            Methodist Medical Center records that claimant reported that 
 
            she felt it was difficult to breath, like she could not take 
 
            a full breath in.  On October 26, 1988, Dr. Makowsky 
 
            recorded that claimant probably had respiratory irritation 
 
            from exposure to workplace chemicals.  He recommend that she 
 
            avoid further contact with the work area until environmental 
 
            controls were used to reduce exposure to NDI (Exhibit. 3, 
 
            page. 47).  On October 27, 1988, Dr. Makowsky recorded that 
 
            most likely the symptoms of Mrs. Matthews are related to the 
 
            irritant effect of isocyanates, but  that it was unlikely 
 
            that they had a sensitizing effect at that time.  Dr. 
 
            Makowsky offered to visit the plant to review health and 
 
            safety procedures.  He also contacted a toxicologist and one 
 
            Jim Chapman employed by Mobay regarding the health hazards 
 
            of NDI (Ex. 3, p. 48).  Chapman is the representative of 
 
            Mobay and Mobay is the supplier of the suspected chemicals 
 
            to employer.  
 
            
 
                 Dr. Makowsky reported again on November 23, 1988, that 
 
            it was his impression that claimant's symptoms were related 
 
            to isocyanate exposure (Ex. 3, p. 57).  On that date also, 
 
            Dr. Makowsky recorded "has had repeated episodes of 
 
            shortness of breath and chest tightness while working in her 
 
            office in Newton.  Symptoms are temporally related to 
 
            production use of isocyanates.  Other employees are having 
 
            similar problems.  Respiratory symptoms persist after 
 
            leaving plant aggravated by exposure to other non-work 
 
            related fumes." (Ex. 3, p. 58).  Dr. Makowsky concluded that 
 
            claimant's symptoms were related to isocyanates (NDI) 
 
            exposure and that she had probably acquired a sensitization 
 
            at that time.  He recommended that she avoid the work-site 
 
            exposure to isocyanates and prescribed medications (Ex. 3, 
 
            p. 58).  
 
            
 
                 Thus, the opinion of Dr. Makowsky, an occupational 
 

 
            
 
            Page   6
 
            
 
            
 
            
 
            
 
            medicine doctor, supports and establishes that claimant's 
 
            condition meets the requirements of an occupational disease.  
 
            It has a direct causal connection with the employment.  It 
 
            follows as a natural incident from injurious exposure 
 
            occasioned by the nature of the employment and the condition 
 
            is incidental to the character of the business, occupation 
 
            and process in which the employee was employed and was not 
 
            independent of the employment.  The condition had its origin 
 
            in a risk (isocyanates) connected with the employment and 
 
            resulted from that source as an independent and rational 
 
            consequence.  Dr. Makowsky did not suggest that anything 
 
            outside of claimant's occupation or employment contributed 
 
            to her condition.  Iowa Code section 85A.8.  Furthermore, 
 
            other employees were affected by the use of these chemicals 
 
            and therefore the nature of the employment is one in which 
 
            the hazards of the disease actually exist and are 
 
            characteristic of and peculiar to the trade, occupation and 
 
            process of the employment Iowa Code section 85A.12.  
 
            
 
                 At the same time claimant was seeing Dr. Makowsky 
 
            defendants sent claimant to the Internal Medicine Faculty 
 
            and Clinic where she first saw Randall Hanson, M.D., on 
 
            November 3, 1988.  Dr. Hanson reported on November 7, 1988, 
 
            "I saw Delores in the Pulmonary Clinic on November 3, 1988.  
 
            It is my impression that she currently is a healthy white 
 
            female with some vague asthmatic symptoms." (Ex. 3, p. 41).  
 
            Dr. Hanson's x-ray revealed no pulmonary infiltrates, 
 
            pleural reaction or cardiomegaly.  His pulmonary functional 
 
            test revealed normal spirometry, lung volumes and diffusion 
 
            capacity.  Dr. Hanson concluded "I reassured Mrs. Matthews 
 
            at this point I find no evidence of asthma or intersitital 
 
            [sic] lung disease because of the acuteness of the exposure 
 
            and I am not quite sure whether she could of become 
 
            sensitized to Isocyanates nor am I sure that her symptoms 
 
            are related to Isocyanates hypersensitivity." (Ex. 3, p. 
 
            42).  Dr. Hanson did mention that OSHA and the manufacturer 
 
            of the fabricating chemicals were going to survey the plant 
 
            the following week.  Thus, even though Dr. Hanson found no 
 
            evidence of asthma or sensitivity to isocyanates he 
 
            nevertheless thought it was important to note that OSHA and 
 
            the supplier were testing the plant due to chemicals used in 
 
            the manufacturing process.
 
            
 
                 Claimant's personal and family physician P. E. Ruggle, 
 
            M.D., sent claimant to the University of Iowa where she was 
 
            examined by Laurence J. Fuortes, M.D., on November 28, 1988 
 
            (Ex. 3, pp. 27 & 28).  Dr. Fuortes is board certified in 
 
            internal medicine (1983) and preventative medicine and 
 
            occupational medicine (1989) and is board eligible in 
 
            clinical toxicology (1990) (Ex. 1, p. 5; Deposition Exhibit 
 
            1, page 41).  His practice at the University is divided 
 
            between clinical practice and research practice.  He saw 
 
            claimant at the pulmonary clinic which is a division within 
 
            the occupation medicine clinic at the University (Ex. 1, pp. 
 
            6 & 7).  Dr. Fuortes stated, "She related to us that her 
 
            symptoms began soon after the introduction of napthalene 
 
            diisocyanate into the workplace at Thombert." (Ex. 1, p. 8).  
 
            He said his physical examination was entirely normal (Ex. 1, 
 
            p. 9).  An x-ray of the chest and a pulmonary function test 
 

 
            
 
            Page   7
 
            
 
            
 
            
 
            
 
            were normal.  A methacholine inhalation test was not 
 
            diagnostic of asthma per se, but it was consistent with 
 
            asthma.  Dr. Fuortes testified that he diagnosed 
 
            occupational asthma resultant from isocyanate exposure.
 
            
 
                 The doctor was asked and answered as follows:  
 
            
 
                 "Q.  The substance of isocyanate, is that found 
 
                 outside the workplace?  
 
            
 
                 A.  Probably not to any significant extent.  
 
                 Isocyanate is found in certain plastics and 
 
                 certain paint systems, but clinically significant 
 
                 exposures to isocyanates are almost entirely in 
 
                 industrial settings.  
 
            
 
                 Q.  Was it your understanding that Ms. Matthews 
 
                 was involved in an industrial setting?  
 
            
 
                 A.  She was working in a place that deals with 
 
                 isocyanates on a daily basis to create cast rubber 
 
                 wheels or plastic wheels."  (Jt. Ex. 1, p. 12).  
 
            
 
                 When Dr. Fuortes was asked if he had any other similar 
 
            patients he replied, "Yes, quite a few of the patients we 
 
            see in our clinic are occupational asthma patients, probably 
 
            about a third of them, and of those I can't tell you exactly 
 
            how many, but approximately one-half have isocyanate-related 
 
            asthma.  So isocyanate exposure is one of the major features 
 
            of our clientele."  (Jt. Ex. 1, p. 8).  
 
            
 
                 Dr. Fuortes wrote to Dr. Ruggle on December 1, 1988, 
 
            and stated that his diagnosis was occupational asthma 
 
            secondary to Napthalene Diisocyanate.  He further related 
 
            claimant's symptoms to her work for employer (Ex. 3, p. 33).  
 
            
 
                 Dr. Fuortes saw claimant again on January 23, 1989, and 
 
            again diagnosed occupational asthma induced by Napthalene 
 
            Diisocyanate.  The doctor added that she has a history of 
 
            occupational induced asthma.  A new component of the disease 
 
            was that she had occasional asthmatic attacks induced by 
 
            exercise and cold exposure (Ex. 3, p. 34).  In the 
 
            deposition Dr. Fuortes explained that in addition to 
 
            occupational asthma she had developed hyperractive airways 
 
            and therefore cold and exercise and tobacco smoke cause 
 
            symptoms of cough, wheezing and chest tightness in addition 
 
            to actual exposure to isocyanates (Ex. 1, p. 14).  
 
            
 
                 Dr. Fuortes recommended claimant leave her employment 
 
            with employer.  This colloquy transpired.  
 
            
 
                 "Q.  Did you suggest or some other physician 
 
                 suggest that she leave the workplace?  
 
            
 
                 A.  It was a consensus between the plant 
 
                 physician, myself and the patient.  
 
            
 
                 Q.  And that was because then she would not be 
 
                 exposed to the isocyanates, is that correct?  
 
            
 

 
            
 
            Page   8
 
            
 
            
 
            
 
            
 
                 A.  Yes." (Jt. Ex. 1, p. 15).  
 
            
 
                 Dr. Fuortes saw claimant again on April 26, 1990, and 
 
            again stated her diagnosis was occupational asthma secondary 
 
            to Napthalene Diisocyanate exposure while working for 
 
            employer.  She also continued to have persistent 
 
            hyperractive airway disease subsequent to the occupational 
 
            exposures with continued symptoms from tobacco, cold air and 
 
            exertion.  He concluded by stating that her symymptomatology 
 
            may persist for several years despite the fact she had no 
 
            further exposure to isocyanantes and stressed that further 
 
            exposure to isocyanates would cause severe asthmatic 
 
            reactions (Ex. 3, p. 36).
 
            
 
                 Claimant saw Dr. Fuortes again on April 5, 1991, and he 
 
            continued his diagnosis of occupational asthma, secondary to 
 
            Napthalene Diiscoyanate and added that she continues to be 
 
            at risk for development of bronchospastic disease in the 
 
            future because of the sensitization from Napthalene 
 
            Diisocyanate (Ex. 1, p. 15) (Jt. Ex. 3, p. 38) (Ex. 1, p. 
 
            17).     
 
            
 
                 In a letter to claimant's counsel on April 9, 1991, Dr. 
 
            Furotes stated:
 
            
 
                 "To summarize my feelings regarding Ms. Matthews, 
 
                 Ms. Matthews was one of several employees at the 
 
                 Thombert plant in Newton, Iowa, who developed 
 
                 occupational asthma in the latter part of 1988 as 
 
                 a result of exposure to naphthalene diisocyanate.  
 
                 ... As a result of those workplace exposures at 
 
                 Thombert, Ms. Matthews will never be able to be 
 
                 exposed to isocyanate fumes again without risking 
 
                 her health and/or her life.  Without isocyanate 
 
                 exposures, Ms. Matthews' respiratory health is 
 
                 quite good, her pulmonary functions being normal 
 
                 away from that workplace.  In addition to never 
 
                 being able to tolerate exposures to isocyanates in 
 
                 the future, Ms. Matthews is at increased risk for 
 
                 intermittent bronchospastic or asthmatic episodes 
 
                 resultant from non-specific respiratory 
 
                 irritants." (Ex. 3, p. 39).  
 
            
 
                 In his deposition the doctor said that claimant's 
 
            occupational asthma was caused by her exposure to napthalene 
 
            diisocyanate while working for employer (Ex. 1, p. 18).
 
            
 
                 The doctor acknowledged that claimant had improved 
 
            since changing employment but that she must avoid future 
 
            exposure to the chemical (Ex. 1, pp. 19 & 20).  The doctor 
 
            repeated that although there are minuscule concentrations of 
 
            isocyanates in paint which might be found in household or 
 
            environmental chemicals, nevertheless, isocyanates are 
 
            primarily found in the industrial setting (Ex. 1, p. 20).  
 
            When asked if isocyanate was found outside the workplace Dr. 
 
            Fuortes answered "Probably not to any significant extent.  
 
            Isocyanate is found in certain plastics and certain paint 
 
            systems, but clinically significant exposures to isocyanates 
 
            are almost entirely in industrial settings." (Ex. 1, p. 12).
 
            
 

 
            
 
            Page   9
 
            
 
            
 
            
 
            
 
                 Dr. Fuortes admitted that his diagnosis was based on 
 
            history given to him by the patient (and impliedly his 
 
            personal examination) and that all of his objective tests, 
 
            to wit, chest x-rays, pulmonary function tests and a 
 
            methacholine inhalation challenge test were all normal (Ex. 
 
            1, pp. 24 & 25).  Dr. Fuortes testified that it was his 
 
            opinion that claimant was sensitized to isocyanates but it 
 
            was also possible that her reaction might simply be a 
 
            prominent irritant effect (Ex. 1, pp. 30-34).  Dr.  Fuortes 
 
            clarified that there was no time when he told claimant not 
 
            to work but rather he told her to stay away from isocyanates 
 
            (Ex. 1, pp. 36 & 37).  Dr. Fuortes had no opinion as to 
 
            whether claimant had sustained a permanent functional 
 
            impairment.  He said he expected her to have some degree of 
 
            problem with recurrent asthma symptoms but hopefully she 
 
            would have less and less as time goes on.  He was unable to 
 
            assess a permanent impairment at the time of his deposition 
 
            (Ex. 1, pp. 18 & 19). 
 
            
 
                 Thus, Dr. Fuortes even more clearly and forcefully than 
 
            Dr. Makowsky, confirmed that claimant has sustained an 
 
            occupational disease rather than an injury.  Claimant's 
 
            occupational asthma was directly caused by her employment 
 
            and followed as a natural incident from her injurious 
 
            exposure to isocyanates being used by employer.  The disease 
 
            is incidental to the character of the business, occupation 
 
            and process in which the employee was employed.  The doctor 
 
            stated that a third of his patients are occupational asthma 
 
            patients and approximately one-half of those are isocyanate 
 
            related asthma (Ex. 1, p. 8).  The disease had its origin in 
 
            a risk connected with employment and was caused from that 
 
            source (isocyanates) as an incident and rational consequence 
 
            of it.  The doctor said claimant would not be equally 
 
            exposed outside of the industrial setting.  Iowa Code 
 
            section 85A.8.  Furthermore, Dr. Fuortes established that 
 
            claimant's occupational asthma was due to the nature of her 
 
            employment in which the hazards did in fact actually exist 
 
            and which hazards were characteristic and peculiar to the 
 
            trade, occupation or process which uses isocyanates.  Iowa 
 
            Code section 85A.12.
 
            
 
                 Claimant was seen again by a member of the Internal 
 
            Medicine Faculty and Clinics, John Glazier, M.D., a 
 
            pulmonary disease and critical care doctor, on June 25, 
 
            1990.  She had not been seen in this clinic since November 
 
            3, 1988.  Dr. Glazier noted that claimant's pulmonary 
 
            function studies and blood gases were within the normal 
 
            range in November of 1988.  A pulmonary function test which 
 
            he performed on June 25, 1990, as well as a chest x-ray, 
 
            were again normal.  Dr. Glaizer gave this impression: 
 
            "Pulmonary symptoms with no objective abnormalities.  ..... 
 
            It is not clear whether she is recovering from some acute 
 
            self-limited infectious problem or whether she is having 
 
            symptoms out of proportion to her objective measurements of 
 
            lung function." (Ex. 3, p. 44).  Dr. Glaizer had no specific 
 
            therapy to offer claimant since he saw no evidence of acute 
 
            infection or acute bronchial spasm (Ex. 3, p. 44).  Dr. 
 
            Glazier's report does not address the question of whether 
 
            claimant's complaints are related to or are not related to 
 
            exposure to industrial chemicals at work and it does not 
 

 
            
 
            Page  10
 
            
 
            
 
            
 
            
 
            follow-up on the entry of Dr. Hanson that the plant was 
 
            being surveyed for this possibility.
 
            
 
                 Claimant was seen again by a third doctor at the 
 
            Internal Medicine Faculty and Clinics, Gregory A. Hicklin, 
 
            M.D., a pulmonary disease and critical care specialist, on 
 
            April 25, 1991.  Dr. Hicklin gave a written report on April 
 
            25, 1991, (Ex. 3, pp. 45 & 46) and a deposition on October 
 
            3, 1991 (Ex. A).  Dr. Hicklin's curriculum vitae shows that 
 
            he was board certified in internal medicine in 1980, board 
 
            certified in pulmonary disease in 1982 and board certified 
 
            in critical care medicine in 1988.  
 
            
 
                 Dr. Hicklin acknowledged claimant's history briefly and 
 
            accurately.  He stated "I saw Delores Matthews in the 
 
            Pulmonary Clinic in follow up of her history of exposure to 
 
            Isocyanate fumes.  Mrs. Matthews worked at Thombert as a 
 
            Financial Administrator, and was exposed to Isocyanate 
 
            fumes.  While working there, she developed symptoms of chest 
 
            tightness, breathlessness, and cough.  ... She was away from 
 
            work for a couple of weeks, felt better; returned to work, 
 
            and the symptoms recurred." (Ex. 3, p. 45)  Nevertheless, 
 
            Dr. Hicklin concluded that he found no evidence of 
 
            occupational asthma for the reason that there was never any 
 
            evidence of asthma produced by any of the many chest x-rays, 
 
            pulmonary function tests or methacholine inhalation 
 
            challenge tests.  His physical examination on April 25, 
 
            1991, was normal, the pulmonary function tests were again 
 
            normal and the methacholine inhalational challenge test was 
 
            also normal (Ex. 3, pp. 45 & 46).
 
            
 
                 Dr. Hicklin did acknowledge, "Miss Matthews worked at a 
 
            company called Thombert that was involved in the production 
 
            of plastic and plastic products using a chemical isocyanate.  
 
            We had several people from the Thombert plant who had 
 
            respiratory difficulties due to the isocyanate." (Ex. A, p. 
 
            6)
 
            
 
                 Dr. Hicklin described asthma as reversible airway 
 
            obstruction associated with bronchial hyperreactivity and 
 
            increased sensitivity or reactivity of the lungs (Ex. A, p. 
 
            9).  Dr. Hicklin had reviewed the reports of Dr. Hanson and 
 
            Dr. Glazier, the other members of his firm (Ex. A, pp. 6-14) 
 
            as well as his own objective tests (Ex. A, p. 15) and 
 
            concluded that there was no evidence of asthma because there 
 
            was no evidence of it on any of the objective tests (Ex. A, 
 
            pp. 15 & 16).  Dr. Hicklin stated, "My opinion is that Mrs. 
 
            Matthews does not have occupational asthma.  ... Because 
 
            there has never been any objective evidence of reversible 
 
            airway obstruction and because she has had two separate 
 
            negative methacholine challenges." (Ex. A, p. 19).  Dr. 
 
            Hicklin stated that in his opinion (1) claimant had not 
 
            sustained any damage to her lung and (2) that there was no 
 
            evidence of bronchial hyperractivity and (3) that she is not 
 
            at an increased risk of developing lung problems in the 
 
            future and (4) that his opinion is based upon no evidence of 
 
            any asthma on pulmonary function tests and that she has had 
 
            two negative methacholine challenge tests which reflected 
 
            absence of bronchial hyperractivity (Ex. A, p. 20 & 21).  
 
            
 

 
            
 
            Page  11
 
            
 
            
 
            
 
            
 
                 Dr. Hicklin acknowledged again his firm had examined 
 
            several people employed by employer for similar symptoms at 
 
            approximately the same time that claimant was examined (Ex. 
 
            A, pp. 23 & 24).  He also granted that isocyanates have been 
 
            clearly associated with the development of occupational 
 
            asthma but that everyone exposed did not develop 
 
            occupational asthma (Ex. A, p. 26).  The doctor allowed that 
 
            the volkelan [sic] and isocyanate exposure that claimant was 
 
            exposed to was definitely in the industrial setting with 
 
            this employer (Ex. A, pp. 25-27).  He declined to place any 
 
            mandatory restrictions on claimant but added that common 
 
            sense would dictate that if something bothers her she should 
 
            avoid it.  He would not have advised her to terminate her 
 
            employment with employer (Ex. A, p. 27).  
 
            
 
                 This colloquy transpired between Dr. Hicklin and 
 
            claimant's counsel: 
 
            
 
                 "What about her history of having exposure and 
 
                 then having these problems of chest tightness, 
 
                 sensation of breathlessness, stuffiness of her 
 
                 head, et cetera?
 
            
 
                 A.  I cannot connect the two, the symptoms and the 
 
                 exposure to the isocyanantes, other than 
 
                 temporarily.  I don't think there's a 
 
                 cause-and-effect relationship.  
 
            
 
                 Q.  Do you have an opinion about what those 
 
                 problems were related to, if not the exposure to 
 
                 that chemical?
 
            
 
                 A.  Well, my opinion is that those were an 
 
                 overawareness of normal changes on Mrs. Matthews' 
 
                 part, that those were related to a concern on her 
 
                 part about her health, that those were 
 
                 appreciating normal changes in body function.  I 
 
                 do not think that they were pathologic."  (Ex. A, 
 
                 pp. 28 & 29).
 
            
 
                 The opinion of Dr. Makowsky and Dr. Fuortes, who were 
 
            treating physicians, is preferred over the testimony of Dr. 
 
            Hicklin.  Dr. Makowsky and Dr. Fuortes were responsible for 
 
            the ultimate outcome of their care and treatment of claimant 
 
            whereas Dr. Hicklin was simply a one time evaluator for the 
 
            purpose of providing testimony for this litigation.  
 
            Rockwell Graphics Systems, Inc. v. Prince, 366 N.W.2d 187, 
 
            192 (Iowa 1985).  Furthermore, the opinion of Dr. Fuortes is 
 
            more compatible with the other medical and nonmedical 
 
            evidence in this case and appears to be more responsible and 
 
            reliable.
 
            
 
                 Furthermore, the nonmedical evidence supports the 
 
            conclusion that claimant has sustained an occupational 
 
            disease.
 
                 
 
                 Claimant and her husband testified that they took a 
 
            ten-day trip to Europe near the end of September and the 
 
            beginning of October of 1988 and while she was away from the 
 
            plant her symptoms completely disappeared (Trans., p. 27).
 

 
            
 
            Page  12
 
            
 
            
 
            
 
            
 
            
 
                 Claimant testified that after Dr. Makowsky recommended 
 
            avoiding exposure to isocyanates that she obtained some 
 
            relief by working nights, week-ends and at times when 
 
            isocyanates were not being processed.  Smith built her new 
 
            office at one end of the plant quite a ways away from the 
 
            processing of the vulkollan area.  This helped some as long 
 
            as she stayed in her office but she found it necessary as a 
 
            vice president in charge of finance to be out in the factory 
 
            all of the time working with the people where she could see 
 
            what was going on and keep track of the inventory (Trans., 
 
            pp. 34-38).
 
            
 
                 Claimant testified that Jim Chapman (Mobay 
 
            representative) was responsible for safety issues and the 
 
            use of the chemicals from Mobay.  Claimant testified that 
 
            Chapman called her after Dr. Makowsky called Chapman to talk 
 
            about the symptoms claimant was experiencing at work.  
 
            Chapman was concerned because of a lawsuit brought by three 
 
            employees who claimed to be injured by exposure to 
 
            isocyanates while working for employer (Trans. pp. 38-45).  
 
            This law suit had been brought against employer, the 
 
            officers of employer (which included claimant as vice 
 
            president of finance) and Mobay.  Chapman was concerned 
 
            after talking to Dr. Makowsky and recommended to claimant 
 
            that she not return to the processing area and be exposed to 
 
            isocyanates again (Trans., p. 43).
 
            
 
                 Claimant further testified that based upon Dr. 
 
            Makowsky's concern other changes were made at the plant 
 
            which included a better ventilating system and also work 
 
            practices such as putting a lid on the bucket filled with 
 
            these chemicals (Trans., p. 44).  
 
            
 
                 Claimant testified that after her exposure to 
 
            isocyanates that she also reacted to other irritants such as 
 
            cold weather, solvents used in cleaning, fog and smog.  She 
 
            continued to have problems with congestion, breathing and 
 
            voice changes when the chemical was being used in the plant 
 
            (Trans., p. 46).  She denied and there is no evidence of 
 
            prior problems of this nature.  Since leaving employer and 
 
            obtaining new employment she has improved steadily (Trans., 
 
            pp. 46 & 47).
 
            
 
                 Claimant said that she chose to go to Dr. Fuortes after 
 
            Dr. Makowsky told her not to return to the workplace because 
 
            she loved what she was doing at Thomberts and did not want 
 
            to discontinue her employment there.  She learned that Dr. 
 
            Furotes had expertise in this area and she wanted his 
 
            opinion (Trans., p. 49).  Claimant testified that Dr. 
 
            Hanson, Dr. Glazier and Dr. Hicklin were defendants' choice 
 
            of physicians for her (Trans., pp. 50 & 51).  Claimant 
 
            testified that both Dr. Makowsky and Dr. Fuortes recommended 
 
            that she should not have any exposure to isocyanates 
 
            (Trans., p. 52).  
 
            
 
                 
 
                 Claimant testified that she tried to resign in November 
 
            of 1988 but Smith asked her to reconsider to see if things 
 
            couldn't be worked out so that she could continue working 
 

 
            
 
            Page  13
 
            
 
            
 
            
 
            
 
            there.  Claimant submitted her resignation on December 21, 
 
            1988, to be effective on March 1, 1989, in order to complete 
 
            the annual audit and give employer time to find a 
 
            replacement.  She started to work for the Maytag Company as 
 
            an accountant on March 13, 1989 (Trans., pp. 53 & 54).  
 
            
 
                 Claimant testified that she has stayed healthier by 
 
            following the recommendations of Dr. Fuortes and Dr. Ruggle 
 
            of following a daily exercise program.  Her problems have 
 
            continued but they are not as severe as they were.  It is 
 
            something that she can manage now (Trans., pp. 59 & 60).  
 
            Dr. Fuortes, claimant and her husband testified that 
 
            claimant had improved substantially since she was first 
 
            affected by this disease and all three of them expected 
 
            improvement for an indefinite period of time into the future 
 
            (Trans., p. 23).
 
            
 
                 Claimant testified that she never lost any time from 
 
            work because she worked a full schedule by working nights 
 
            and weekends when they were processing vulkollan (Trans., 
 
            p.123).
 
            
 
                 Claimant has not experienced health problems at Maytag 
 
            because isocyanates are not used at Newton and her office is 
 
            in a building one mile from the manufacturing area (Trans., 
 
            p. 125).  The Admiral plant at Galesburg, Illinois which 
 
            manufactures refrigerators and the Dixie-Narco plant at 
 
            Williston, South Caroline which manufactures vending 
 
            machines do use isocyanates and she had reactions when she 
 
            worked at these two areas briefly (Trans., pp. 59 & 60, 
 
            125-127).  
 
            
 
                 Robert Johns testified that he was the director of 
 
            Human Services for employer in October of 1988 and as such 
 
            handled workers' compensation matters.  Johns acknowledged 
 
            that he too was a defendant in the lawsuit filed by some 
 
            employees of Thombert regarding exposure to isocyanates in 
 
            the workplace (Trans., pp. 62-64).  He said claimant 
 
            reported her symptoms to him immediately when she started 
 
            having problems.  Johns said he contacted Dr. Hicklin and 
 
            advised him of what was going on and what the symptoms were 
 
            because the symptoms were pretty classical.  Johns then 
 
            testified, "He frankly was very unresponsive at the time."  
 
            Johns said claimant then contacted Dr. Makowsky of the 
 
            Occupational Medicine Clinic (Trans., p. 65).  
 
            
 
                 Johns testified that by classical symptoms he meant 
 
            that shortness of breath, tightness in the chest and 
 
            difficulty breathing were classical symptoms for when 
 
            somebody had been exposed to isocyanates.  He had previous 
 
            experience with other persons having those same symptoms 
 
            while working for employer.  Johns testified that he could 
 
            see that claimant wasn't feeling well and was having some 
 
            respiratory problems (Trans., p. 66).  
 
            
 
                 Johns testified that he came to believe that claimant's 
 
            symptoms were work-related because of their similarity to 
 
            the complaints of other people in the plant and because he 
 
            felt that claimant was a woman of great integrity he had no 
 
            reason to doubt her word (Trans., pp. 69-72).  
 

 
            
 
            Page  14
 
            
 
            
 
            
 
            
 
            
 
                 Walter Smith, testified that he is currently chairman 
 
            of the board of employer and in October of 1988 he was 
 
            president of the company.  He testified that the business of 
 
            Thombert, Inc. was to manufacture polyurethane elastomers, 
 
            which is synthetic rubber.  He hired claimant to be the 
 
            controller of the company.  She moved up fast and in 1988 
 
            she was vice president in charge of finance and a director 
 
            of the company (Trans., pp. 23, 62-76).  She reported her 
 
            symptoms to Smith.  He further testified "It was my opinion 
 
            that she might have a valid case for isocyanate 
 
            sensitization and that we needed a medical doctor's opinion, 
 
            so she should see a medical doctor to validate or confirm 
 
            the extent of the problems she was having." (Trans., pp. 
 
            76-81).
 
            
 
                 Smith testified there was a substantial change in the 
 
            manufacturing process after September and October of 1988.  
 
            In early 1987 the company began using vulkollan which is a 
 
            polyurethane elastomer which contains a chemical napthalene 
 
            diisocyanate, NDI, which is manufactured by the Bayer 
 
            Company in Germany and exported to the United States through 
 
            Mobay.  The change that occurred in the fall of 1988 was 
 
            that at the volume of activity using this material was 
 
            increased and the number of parts manufactured were 
 
            increasing during that time.  Also as the weather became 
 
            cooler ventilation efficiency decreased because the doors to 
 
            the plant were closed and the vents were blowing against the 
 
            negative air pressure within the plant (Trans., pp. 80 & 
 
            81).  He personally noticed that claimant's voice was raspy.  
 
            Even after he built her new office she had continuing 
 
            symptoms.  Smith believed that claimant's decision to resign 
 
            her job and seek other employment affirmed her belief that 
 
            she was sensitive to isocyanante (Trans., pp. 84-87).  
 
            Reluctantly he agreed to her decision (Trans., p. 91).  
 
            
 
                 Johns testified that employer has never been cited by 
 
            OSHA for excessive isocyanate levels.  He further 
 
            acknowledged that claimant had a monitor in her work area 
 
            which showed no detectable amounts of isocyanate.  More than 
 
            250 tests were run prior to October of 1988 and they were 
 
            all below the threshold limit prescribed by OSHA for 
 
            isocyanates (Trans., pp. 99 & 100).  However, Smith 
 
            clarified that OSHA is unable to measure napthalene 
 
            diisocyanate, so most of that testing for that chemical 
 
            component has been done by NIOSH or by the chemical 
 
            supplier, Mobay.  OSHA has measured MDI and they have never 
 
            been close to the threshold limit on MDI.  The NDI 
 
            measurements were performed about once every three months 
 
            from mid-1987 to the end of 1988 and these figures were 
 
            turned over to OSHA and that OSHA would have access to the 
 
            measurements that were done by Mobay (Trans., pp. 104-016).
 
            
 
                 Johns testified that the OSHA standards were safe but 
 
            that an employee who has become sensitized to isocyanates 
 
            can probably detect much more lower levels than the 
 
            measuring techniques are able to detect.  Over half the 
 
            tests showed nondetectable levels of isocyanates.  Very, 
 
            very few tests ever approached the threshold limit.  Johns 
 
            testified that he still felt that there was employee 
 

 
            
 
            Page  15
 
            
 
            
 
            
 
            
 
            sensitization and employee awareness of symptoms and felt 
 
            the necessity to take further action.  However at the time 
 
            Mobay tested for NDI none of the levels were found to be in 
 
            excess of the OSHA standards prior to November of 1988 
 
            (Trans., pp. 104-112).
 
            
 
                 Fred Steensma, data processing manager, testified that 
 
            claimant was his immediate supervisor.  He testified that he 
 
            detected that claimant was not feeling well from personal 
 
            observation and testified that he could observe that her 
 
            voice was raspy in October of 1988 (Trans., pp. 132-137).
 
            
 
                 Ronald Matthews, claimant's husband of twenty-eight 
 
            years, testified that in October of 1988 claimant developed 
 
            bronchial problems, cold like symptoms, difficulty 
 
            breathing, and fatigue.  She experienced fright from not 
 
            being able to get enough air.  At Christmas time in 1990, 
 
            she experienced an episode of distress after they were in a 
 
            grocery store where cleaning solvents were being used.   
 
            Weather and smog also effects her condition.  He testified 
 
            claimant's health improved considerably since leaving 
 
            employer and also due to her efforts to maintain a state of 
 
            good health.
 
                 
 
                 The OSHA log for the year 1988 shows a total of seven 
 
            claims by seven different individuals.  The journal entry 
 
            for Delores Matthews states that she experienced classic 
 
            symptoms while working in her office of shortness of breath, 
 
            coughing and increased sensitivity to cold air (Ex. 2, p. 34 
 
            & 35).  The office and the factory are all located in one 
 
            building (Trans., p. 22).
 
            
 
                 Another company record shows that 73 employees received 
 
            pulmonary function tests and that some of them were tested 
 
            on two, three or four occasions (Ex. 2, pp. 36-38).  Another 
 
            personnel record shows that claimant authorized employer to 
 
            release her medical records to NIOSH (National Institute on 
 
            Occupational Health) for their review and research on May 6, 
 
            1989. 
 
            
 
                 Therefore, looking at both the medical evidence and the 
 
            nonmedical evidence the greater weight of the evidence 
 
            establishes that claimant has sustained an occupational 
 
            disease.  Claimant's condition, whether it be occupational 
 
            asthma or simply a pathologic reaction to isocyanates, is 
 
            peculiar to the nature of the employment in which the 
 
            hazards of the disease actually existed and which hazards 
 
            were characteristic and peculiar to the trade occupation and 
 
            process of manufacturing of polyurethane products with 
 
            napthalene diisocyanate (NDI).  Iowa Code section 85A.12.  
 
            There is  a direct causal connection between the employment 
 
            and claimant's condition as a natural incident to injurious 
 
            exposure occasioned by the nature of the employment.  The 
 
            disease was incidental to the character of the business 
 
            occupation or process and not independent of the employment.  
 
            Iowa Code section 85A.8.
 
            
 
                 The OSHA claim log shows there were seven claims in 
 
            1988.  Seventy-three employees were given pulmonary function 
 
            tests, some of them three or four times from 1986 through 
 

 
            
 
            Page  16
 
            
 
            
 
            
 
            
 
            1988.  Dr. Furotes said that the exposure outside of 
 
            claimant's employment was practically nil.  Claimant is a 
 
            defendant along with other members of the management team in 
 
            the company and the supplier of the chemical brought by 
 
            three other employees because of their exposure to this 
 
            chemical in the course of their employment with this 
 
            employer.
 
            
 
                 Occupational asthma has been held to be an occupational 
 
            disease on several occasions Swan v. Industrial Engineering 
 
            Equipment Co., IV Iowa Industrial Report 353 (1984); 
 
            Anderson v. Carroll George, Inc., file number 776587, filed 
 
            Aug. 18, 1986; Clatt v. Sundstrand-Sour, file number 931119, 
 
            filed May 8, 1991; Senne v. Cedar Valley Farm Service, file 
 
            number 900344, filed May 9, 1991; Martin v. University of 
 
            Northern Iowa, file number 821570, filed March 13, 1991; 
 
            Loftsgard v. Walter Farms Inc., file numbers 976635 and 
 
            976636, filed April 20, 1992; (Appealed) Luehring v. Furnace 
 
            Electric Co., file number 981389, filed October 9, 1992.
 
            
 
                 Even if claimant's occupational disease was to be given 
 
            some other diagnostic title or no title at all it 
 
            nevertheless meets all of the requirements of Iowa Code 
 
            sections 85A.8 and 85A.12 as an occupational disease. 
 
            
 
                 Claimant's condition also meets the two basic 
 
            requirements of the McSpadden case, to wit; (1) the disease 
 
            is causally related to exposure to harmful conditions in the 
 
            field of employment and (2) those harmful conditions are 
 
            more prevalent in the employment than in every day life or 
 
            in other occupations  McSpadden, 288 N.W.2d 181, 190 (Iowa 
 
            1980).  
 
            
 
                 Wherefore, it is determined that claimant has sustained 
 
            an occupational disease of occupational asthma which arose 
 
            out of and in the course of her employment with employer 
 
            because of exposure to napthalene diisocyanate (NDI).  
 
            
 
                                causal connection
 
            
 
                 The same evidence summarized above also establishes 
 
            that this occupational disease was caused by claimant's 
 
            employment.  No other cause was suggested for her condition.  
 
            Claimant established she had not experienced this condition 
 
            prior to this exposure with employer.  Dr. Makowsky, Dr. 
 
            Fuortes, and even Dr. Hicklin, clearly associated her 
 
            condition with exposure to isocyanates while working for 
 
            employer as the only cause of her condition.  The testimony 
 
            of claimant, claimant's husband, Smith, Johns, and Steensma 
 
            as well as the employee personnel records showing the number 
 
            of claims and the number of pulmonary function tests 
 
            performed on various employees clearly supports the opinion 
 
            of Dr. Makowsky and Dr. Fuortes that claimant's condition 
 
            was caused by her employment.  Likewise, Chapman and Mobay 
 
            were concerned enough to perform several industrial tests at 
 
            claimant's place of employment.  Claimant alleged that 
 
            Chapman advised her not to work where she would be exposed 
 
            to isocyanates.  Mobay was sued by the other employees along 
 
            with the management team for whatever damages they were 
 
            seeking for exposure to this chemical.
 

 
            
 
            Page  17
 
            
 
            
 
            
 
            
 
            
 
                 WHEREFORE, it is determined that this occupational 
 
            disease of occupational asthma was caused by claimant's 
 
            employment with this employer.
 
            
 
                                   DISABLEMENT
 
            
 
                 Iowa Code section 85A.4 provides as follows:  
 
            "Disablement as that term is used in this chapter is the 
 
            event or condition where an employee becomes actually 
 
            incapacitated from performing the employee's work or from 
 
            earning equal wages in other suitable employment because of 
 
            an occupational disease as defined in this chapter in the 
 
            last occupation in which such employee is injuriously 
 
            exposed to the hazards of such disease.
 
            
 
                 It is determined that claimant has proven that she is 
 
            "actually incapacitated from performing the employee's 
 
            work."
 
            
 
                 At the time this industrial disease was incurred 
 
            claimant was fully capable of performing the work of an 
 
            industrial certified public accountant and vice president in 
 
            charge of finance for this employer.  Dr. Fuortes testified 
 
            and he and the company physician and claimant agreed that 
 
            she was foreclosed from continuing to perform these duties 
 
            for employer in the future.
 
            
 
                   At the time of this occupational disease claimant was 
 
            able to perform the work of a certified public accountant in 
 
            any industrial setting.  Now she is restricted from 
 
            performing the work of a certified public accountant in any 
 
            industry which employs the use of isocyanates.  This is a 
 
            significant portion of the labor market.  Dr. Fuortes said 
 
            that one-third of his patients have occupational asthma and 
 
            one-half of those were related to isocyanates.  Thus, 
 
            claimant is actually incapacitated from performing the 
 
            employee's work that she was performing for this employer at 
 
            the time she incurred this disease, but she is also actually 
 
            incapacitated from performing the employee's work in any 
 
            industrial setting which uses isocyanates.  
 
            
 
                 Dr. Fuortes, the treating physician, wrote in his 
 
            report and testified in his deposition that claimant won't 
 
            ever be able to be exposed to isocyanate fumes again without 
 
            risking her health and her life.  This is just about as 
 
            close as you can get to actual incapacity in the context of 
 
            Iowa Code section 85A.4 without going over the line and 
 
            becoming totally incapacitated to perform any kind of work 
 
            because of death or permanent total disability. 
 
            
 
                 Claimant has also proven that she is actually 
 
            incapacitated from earning equal wages in other suitable 
 
            employment.  Claimant has demonstrated that she is a 
 
            hard-working individual, who worked, educated herself, 
 
            became a CPA and eventually became the vice president in 
 
            charge of finance for employer as well as a member of the 
 
            management team, a member of the board of directors and a 
 
            stockholder in the company (Trans., p. 23 & 120).  Twelve 
 
            days after she terminated this employment due to this 
 

 
            
 
            Page  18
 
            
 
            
 
            
 
            
 
            occupational disease she went to work for a new employer 
 
            within her community with lesser responsibilities, lesser 
 
            authority, lesser prestige and lesser income.  Claimant is 
 
            an achiever, a demonstrated achiever.  Certified public 
 
            accountant jobs are not the most common jobs in the 
 
            competitive employment market.  Without evidence to the 
 
            contrary on the part of defendants it must be concluded that 
 
            claimant has sought out and obtained the highest paying and 
 
            best job that she could find in her community at the time it 
 
            became necessary to change jobs.  Thus claimant has made out 
 
            a prima facie case that she has not been able to earn equal 
 
            wages in other suitable employment.  Defendants introduced 
 
            no evidence to refute this conclusion or demonstrate the 
 
            fact that claimant was able to acquire any better employment 
 
            either from (1) persons in the local community, (2) the 
 
            manufacturing community, (3) the certified public accounting 
 
            community, or (4) through the use of vocational 
 
            rehabilitation experts.
 
            
 
                 Wherefore, it is determined that claimant has 
 
            established that she is actually incapacitated from 
 
            performing the work that she was performing in the 
 
            occupation she was performing for this employer when she was 
 
            injuriously exposed to the hazards of this disease at the 
 
            time she acquired this occupational disease.  It is further 
 
            determined that she is actually incapacitated from her work 
 
            in any industry which employs isocyanates.  She has further 
 
            established that she has not been able to earn equal wages 
 
            in other suitable employment.  Thus, claimant has proven 
 
            both the requirements of disablement found in Iowa Code 
 
            section 85A.4 (1) actual incapacity from performing the 
 
            employees work and (2) earning equal wages in other suitable 
 
            employment --- both because of an occupational disease in 
 
            the last occupation in which the employee was injuriously 
 
            exposed to the hazards of the disease.  
 
            
 
                 
 
            
 
                                   ENTITLEMENT
 
            
 
                 Both the Supreme Court of Iowa and the Court of Appeals 
 
            have determined that the industrial disability factors of 
 
            age, education, qualifications, experience and inability, 
 
            due to injury, to engage in the employment for which 
 
            claimant is fitted as described in the McSpadden case are 
 
            the same factors that should be used to determine a 
 
            claimant's disability for actual incapacity to perform her 
 
            work or to earn equal wages in other suitable employment, in 
 
            the application of Iowa Code section 85A.4.  Doerfer 
 
            Division of CCA v. Nicol, 359 N.W.2d 428, 438 (Iowa 1984); 
 
            Frit Industries v. Langenwalter, 443 N.W.2d 88, 91 (Iowa 
 
            Court of Appeals 1989).
 
            
 
                 Claimant was not awarded an impairment rating by Dr. 
 
            Fuortes or any of the other physicians.  Nevertheless, an 
 
            impairment rating is not essential to an award of industrial 
 
            disability for occupational disease.  McSpadden, 288 N.W.2d 
 
            181 (Iowa 1980);  Frit v. Langenwalter, 433 N.W.2d 88, 91 
 
            (Iowa Court of Appeals 1989); Anderson v. Carroll George 
 
            Inc., file number 776587 filed August 18, 1986). 
 

 
            
 
            Page  19
 
            
 
            
 
            
 
            
 
            
 
                 Claimant's industrial disability is increased because 
 
            this occupational disease occurred at age 43 when she was at 
 
            or near the peak of her earning capacity.  Becke v. 
 
            Turner-Busch, Inc., Thirty-fourth Biennial Report of the 
 
            Industrial Commissioner 34 (Appeal Decision  1979); Walton 
 
            v. B & H Tank Corp., II Iowa Industrial Commissioner Report 
 
            426 (1981); McCoy v. Donaldson Company, Inc., file numbers 
 
            782670 & 805200 (App. Dec. 1989).
 
            
 
                 After completing high school in 1963 claimant attended 
 
            Iowa Wesleyan College for two years from 1963 to 1965.  
 
            Later she attended Des Moines Area Community College in 
 
            Ankeny from 1972 to 1974 and received an associate of arts 
 
            degree in business.  Then she attended Drake University from 
 
            1974 to 1980 and obtained a bachelor of science in 
 
            accounting and subsequently passed a CPA examination in 
 
            November of 1980 (Trans., p. 20).  She was selected for 
 
            membership in Beta Alpha Psi, a national honor society for 
 
            accounting majors (Ex. 2, p. 56).  Claimant is well educated 
 
            and very adaptable to additional education or training 
 
            Conrad v. Marquette School, Inc., IV Iowa Industrial 
 
            Commissioner Report 74, 89 (1984).
 
            
 
                 Claimant is foreclosed from performing certified public 
 
            accounting work for employer or any kind of work for any 
 
            employer where isocyanates are used.  Dr. Fuortes testified 
 
            that he, the company physician and claimant determined that 
 
            she should terminate her employment with employer (Ex. 1, p. 
 
            15).  Industrial settings where isocyanates are used are a 
 
            significant portion of the industrial manufacturing labor 
 
            market where claimant has her training and experience.  Dr. 
 
            Fuortes testified that one-third of his patients have 
 
            occupational asthma and one-half of those cases are 
 
            industrial related to use of isocyanates (Ex. 1, p. 8).  
 
            Thus a significant portion of the industrial manufacturing 
 
            labor market for certified public accountants is foreclosed 
 
            to claimant Michael v. Harrison County, Thirty-fourth 
 
            Biennial Report of the Industrial Commissioner 218, 220 
 
            (App. Dec. January 30, 1979); Rohrberg v. Griffin Pipe 
 
            Products Co., I Iowa Industrial Commissioner Report 282 
 
            (1984).
 
            
 
                 Furthermore, Dr. Fuortes testified that claimant is 
 
            sensitized to isocyanates.  He explained that normally a 
 
            person exposed to a chemical will build-up a tolerance for 
 
            it but certain persons become sensitized which means they 
 
            have a reduced tolerance which can result in serious illness 
 
            or death.
 
            
 
                 Claimant's health has improved since the termination of 
 
            her employment for employer due to eliminating exposure to 
 
            isocyanates but also because she has followed a rigorous 
 
            personal health program of diet, weight control and exercise 
 
            to maintain good body health.  Claimant testified that when 
 
            she visited two plants while working for the new employer 
 
            where isocyanates were in use she immediately reacted to it 
 
            which confirms the sensitization diagnosis by Dr. Fuortes.  
 
            Thus even though claimant has no numerical functional 
 
            impairment rating she nevertheless has a physical disability 
 

 
            
 
            Page  20
 
            
 
            
 
            
 
            
 
            due to this physical sensitization to isocyanates.
 
            
 
                 Likewise, claimant has sustained a change in earning 
 
            capacity.  The primary indicator of a change in earning 
 
            capacity is actual earnings.  Claimant testified that when 
 
            she began work at Maytag her earnings were only 71 percent 
 
            of what they were for employer which amounts to a 29 percent 
 
            actual loss of earnings.  Claimant further testified that 
 
            after she received a raise on July 1, 1990, at Maytag her 
 
            earnings were still only 90 percent of what they were with 
 
            this employer in March of 1988, which amounts to a 10 
 
            percent actual loss of earnings.  Claimant did not 
 
            demonstrate how these numbers were calculated.
 
            
 
                 A simple calculation is to look at claimant's W-2 forms 
 
            for the year 1988, the last full year in which she worked 
 
            for employer, which total $59,905.35.  This income includes 
 
            base salary, profit bonus, inventory bonus, an automobile, 
 
            and life insurance.  Claimant testified at the time of the 
 
            hearing on May 4, 1992, that her monthly income was $4,200 
 
            per month.  This monthly income multiplied by 12 results in 
 
            an annual income of $50,400.  This is $9,505.35 less than 
 
            she was earning for employer and constitutes an approximate 
 
            16 percent loss of actual earnings three years after the 
 
            transition from Thombert to Maytag.
 
            
 
                 Perhaps a more precise indicator would be to use 
 
            claimant's pay for the last 12 months that she worked for 
 
            employer from March 1, 1988 to March 1, 1989.  These figures 
 
            total $53,521.16 paid to claimant for base salary, profit 
 
            bonus and inventory bonus (Ex. C).  The car allowance is 
 
            calculated by using the 1989 W-2 amount of $1,267.50 on the 
 
            automobile W-2 form for January and February of 1989 and 
 
            adding to it $3,851.22 which is 83.33 percent of the 1988 
 
            automobile W-2 amount for the last ten months of 1988 (10 î 
 
            12 = 83.33).  These figures total $58,639.88 ($53,521.16 
 
            plus $1,267.50 plus $3,851.22 equals $58,639.88).  Thus, if 
 
            claimant was earning $58,639.88 for the last full year that 
 
            she worked for employer and is currently earning $50,400 (12 
 
            x $4,200) a year this constitutes an $8,239.88 loss of 
 
            income which amounts to a 14 percent loss of actual income.  
 
            Thus, claimant's contentions concerning her actual loss of 
 
            income are not exaggerated or overstated.  
 
                      
 
                 Wherefore, taking into consideration claimant's (1) 
 
            age, (2) education, (3) the fact that she is foreclosed from 
 
            working for employer, (4) or in industrial settings where 
 
            isocyanates are used, (5) her actual loss of earnings of 14 
 
            percent three years after her last injurious exposure which 
 
            is much less than they were when she first changed 
 
            employments in 1989, (6) the fact that claimant is 
 
            sensitized to isocyanates and possibly other workplace 
 
            chemicals, (7) that further exposure to isocyanates pose a 
 
            risk to her health and life, then it is determined that 
 
            claimant has sustained a 15 percent industrial disability to 
 
            the body as a whole.  Claimant testified that she has 
 
            approximately the same fringe benefits with Maytag that she 
 

 
            
 
            Page  21
 
            
 
            
 
            
 
            
 
            had with Thombert except that she now has to pay $30 a month 
 
            for her medical insurance whereas previously she was not 
 
            required to make any contribution for medical insurance 
 
            (Trans., p.129)
 
            
 
                                       RATE
 
            
 
                 The rate should be determined based upon the date of 
 
            the occupational disease.  The date of the occupational 
 
            disease should be based upon the date of the last injurious 
 
            exposure. Iowa Code section 85A.10.  The date of the last 
 
            injurious exposure was March 1, 1989.  
 
            
 
                 Claimant contends that the profit bonus should be used 
 
            to calculate her rate because it was a regular bonus.  Iowa 
 
            Code section 85.61(3).  Defendants contended it was not a 
 
            regular bonus.  Claimant testified that she received the 
 
            profit bonus every year after she became an officer of the 
 
            company in 1985.  Smith testified that the only contingency 
 
            for receiving the profit bonus was that the company make a 
 
            profit.  The profit bonus was two percent of company's 
 
            pretax profit (Trans., pp. 94-98).  Defendant's exhibit C 
 
            shows that claimant received five distributions of profit 
 
            bonus which total $10,891.16 between October of 1987 and 
 
            March of 1989.  Unfortunately claimant did not receive the 
 
            1990 profit bonus in the amount of $10,000 because she was 
 
            no longer employed by employer at that time due to this 
 
            occupational disease (Trans., p. 103)
 
            
 
                 This colloquy transpired between claimant and counsel:
 
            
 
                 "Q.  Let me ask you, was that bonus a regular bonus?
 
            
 
                 A.  Yes.  Each year the bonus was computed, and 
 
                 employees could draw it at their discretion during 
 
                 the year it was earned or during the following 
 
                 year if they wanted to delay recognition of the 
 
                 income." (Trans., pp. 95 & 96).  
 
            
 
                 The profit bonus depended only on profit.  There have 
 
            been years when no bonus was paid.  However Smith conveyed 
 
            the idea that the employees were assured of a bonus with the 
 
            only contingency being that the company made a profit.  
 
            Smith testified "I've always told the management team at 
 
            Thombert that they'll earn their salary, and if they make 
 
            the company successful enough to pay big, big salaries, it 
 
            will pay big, big salaries."  Thus, the weight of the 
 
            evidence in this case is that the bonus that claimant 
 
            received was a regular bonus.  If a profit was made she 
 
            received a bonus.  She received the bonus in every year 
 
            after 1985 when she became an officer.  Thus claimant's 
 
            bonus was a regular bonus.  
 
            
 
                 The parties agreed that even though claimant received a 
 
            monthly base salary that the rate should probably be 
 
            computed upon her annual income.  Claimant contended that 
 
            the rate should be based upon the W-2 forms for the year 
 
            1988 (Trans., p. 7); whereas defendants asserted, "Our 
 
            position is that we need to arrive at a monthly rate for the 
 
            twelve months preceding the injury." (Trans., p. 9).  
 

 
            
 
            Page  22
 
            
 
            
 
            
 
            
 
            
 
                 Defendants are correct the rate should be based upon 
 
            the annual earnings for the year prior to March 1, 1989, the 
 
            date of the occupational disease, which is the date that 
 
            claimant was last injuriously exposed.  Defendants conceded 
 
            that the car and life insurance should be included (Trans., 
 
            p. 8).
 
            
 
                 Therefore using the figures on Defendants' exhibit C 
 
            for the monthly income that claimant received from March 1, 
 
            1988, until March 1, 1989, which includes both the profit 
 
            bonus and the inventory bonus totals $53,521.16.  To this 
 
            should be added the automobile allowance which is not 
 
            contained in the itemization in exhibit C.  Defendants 
 
            agreed that the automobile should be added to these figures 
 
            (Trans., p. 155).  The automobile is calculated as 
 
            previously set out at $1,267.50 for 1989 and $3,851.22 for 
 
            1988.  Thus claimant's gross earnings are $58,639.88 
 
            ($53,521.16 plus $1,267.50 plus $3,851.22 equals 
 
            $58,639.88).
 
            
 
                 Defendants did not dispute that the inventory bonus was 
 
            a regular bonus.  Moreover it appears to be a regular bonus 
 
            because it was paid every month in last year of employment 
 
            except two.
 
            
 
                 There is no evidence as to whether the life insurance 
 
            in the amount of $102 is to be added to these figures or not 
 
            in the calculation of the rate.  Without evidence it cannot 
 
            be added to the above total in the calculation of the rate, 
 
            even though it can be used to determine claimant's estimated 
 
            loss of actual earnings.  There is no evidence that life 
 
            insurance was or was not used in the monthly figures in 
 
            Exhibit C.  
 
            
 
                 Gross earnings of $58,639.88 divided by 52 weeks equal 
 
            gross weekly earnings of $1,127.69.  When this amount is 
 
            rounded up to $1,128, The Guide to Iowa Workers' 
 
            Compensation Claims Handling for the period beginning July 
 
            1, 1988 to June 30, 1989 shows that the proper weekly 
 
            compensation rate for a married person with four exemptions 
 
            is $629 per week.  There was no dispute about the martial 
 
            status or the number of exemptions.  
 
            
 
                                CONCLUSIONS OF LAW
 
            
 
                 Wherefore based on the foregoing and the following 
 
            principles of law these conclusions of law are made.
 
            
 
                 That claimant sustained an occupational disease of 
 
            occupational asthma from napthalene diisocyanate (NDI) which 
 
            arose out of and in the course of her employment with 
 
            employer on the date of her last injurious exposure to this 
 
            chemical on March 1, 1989.  Iowa Code section 85A.8, 85A.10 
 
            and 85A.12.
 
            
 
                 That claimant did not sustain an injury which arose out 
 
            of and in the course of her employment with employer.  Iowa 
 
            Code section 85.3(1).  
 
            
 

 
            
 
            Page  23
 
            
 
            
 
            
 
            
 
                 That claimant's occupational asthma was caused by the 
 
            use of isocyanates which were used at the place of her 
 
            employment and that the harmful conditions which caused her 
 
            occupational disease are more prevalent in her employment 
 
            for employer than in every day life or other occupations.  
 
            McSpadden v. Big Ben Coal Co., 288 N.W.2d 181, 190 (Iowa 
 
            1980). 
 
            
 
                 That the occupational asthma caused claimant to be 
 
            disabled and actually incapacitated from performing the 
 
            employee's work as a certified public accountant, for 
 
            employer, or any other work in an environment where 
 
            isocyanantes are in use, and also that claimant has 
 
            sustained the burden of proof by a preponderance of the 
 
            evidence that she is unable to earn equal wages in other 
 
            suitable employment as a certified public accountant because 
 
            of the occupational disease she acquired while working for 
 
            this employer.  Iowa Code section 85A.4.  Doerfer Division 
 
            of CCA v. Nicol, 359 N.W.2d 428 (Iowa 1984); Fritt 
 
            Industries v. Langelwalter, 443 N.W.2d 88 (Iowa Appeals 
 
            1989).  
 
            
 
                 That claimant has sustained a 15 percent industrial 
 
            disability to the body as a whole and is entitled to 75 
 
            weeks of permanent partial disability benefits.  Iowa Code 
 
            section 85A.17 and 85.34(2)(u).
 
            
 
                 That even though claimant was paid monthly, 
 
            nevertheless her monthly pay included amounts of regular 
 
            inventory bonus which was paid monthly and a regular profit 
 
            bonus which could be and was received anytime during the 
 
            year and therefore claimant's rate of compensation should be 
 
            annualized and divided by 52.  Iowa Code section 85.36(5).  
 
            
 
                 That claimant's gross annual earnings are $58,639.88 
 
            and that when this number is divided by 52 weeks produces a 
 
            gross weekly wage of $1,127.69 which results in a workers' 
 
            compensation rate of $629 for a married person with four 
 
            exemptions on the injury date of March 1, 1989.  Iowa Code 
 
            section 85A.10; Guide to Iowa Workers' Compensation Claim 
 
            Handling July 1, 1988 to June 30, 1989.  
 
            
 
                                      ORDER
 
            
 
                 THEREFORE, IT IS ORDERED:
 
            
 
                 That defendants pay to claimant seventy-five (75) weeks 
 
            of permanent disability benefits at the rate of six hundred 
 
            twenty-nine dollars ($629) per week in the total amount of 
 
            forty-seven thousand one hundred seventy-five dollars 
 
            ($47,175) commencing on March 1, 1989, as stipulated to by 
 
            the parties.
 
            
 
                 That interest will accrue pursuant to Iowa Code section 
 
            85.30.
 
            
 
                 That these benefits are to be paid in a lump sum.
 
            
 
                 That the costs of this action including the cost of the 
 
            attendance of the court reporter at hearing and the 
 

 
            
 
            Page  24
 
            
 
            
 
            
 
            
 
            transcript of hearing are charged to defendants pursuant to 
 
            Iowa Code sections  86.19(1) and 86.40 and rule 343 IAC 
 
            4.33.
 
            
 
                 That defendants file claim activity reports as 
 
            requested by this agency pursuant to rule 343 IAC 3.1
 
            
 
                 Signed and filed this ____ day of November, 1992.
 
            
 
            
 
            
 
            
 
                                          ______________________________
 
                                          WALTER R. McMANUS, JR.
 
                                          DEPUTY INDUSTRIAL COMMISSIONER
 
            
 
 
 
            
 
            
 
            Copies to:
 
            
 
            Mr. Iris J. Post
 
            Attorney at Law
 
            2222 Grand Ave.
 
            Des Moines, IA  50312
 
            
 
            Mr. E. J. Giovannetti
 
            Attorney at Law
 
            Suite 111
 
            2700 Grand Ave.
 
            Des Moines, Iowa 50312
 
            
 
 
            
 
            
 
            
 
            
 
                                          1106, 1108.30, 1108.40, 
 
                                          1108.50
 
                                          1401, 1402.20, 2201, 2203, 
 
                                          2205
 
                                          1402.30, 1402,40, 1803, 3001, 
 
                                          3002, 3003
 
                                          Filed November 19, 1992
 
                                          Walter R. McManus, Jr.
 
 
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
            DELORES MATTHEWS,   
 
                                          
 
                 Claimant, 
 
                      
 
            vs.       
 
                                                 File No. 959319
 
            THOMBERT, INC.,     
 
                                             A R B I T R A T I O N
 
                 Employer, 
 
                                                D E C I S I O N
 
            and       
 
                      
 
            EMPLOYERS MUTUAL COMPANIES,   
 
                      
 
                 Insurance Carrier,  
 
                 Defendants.    
 
            ___________________________________________________________
 
            
 
            1106, 1108.30, 1108.40, 1108.50, 1401, 1402.20, 2201, 2203, 
 
            2205
 
            The greater weight of the evidence, both medical and 
 
            nonmedical, supported and established the determination that 
 
            claimant had sustained the occupational disease of 
 
            occupational asthma compensable under Iowa Code section 85A 
 
            and that she had not sustained an injury compensable under 
 
            Iowa Code section 85.  Claimant's treating physicians were 
 
            preferred over defendants three one time evaluators even 
 
            although all three doctors were members of the same firm of 
 
            doctors and saw her at three different times.  The decision 
 
            contains several cites summarizing the distinction between 
 
            an injury and an occupational disease.  Claimant met all of 
 
            the qualifications for occupational disease contained in 
 
            Iowa Code sections 85A.8 and 85A.12.  
 
            The date of the occupational disease was the date of the 
 
            last injurious exposure.  Iowa Code section 85A.10.
 
            
 
            1108.30, 1108.40, 1402.30, 1402.40
 
            Claimant was a certified public accountant who became (1) an 
 
            officer of the company as vice president in charge of 
 
            finance, (2) a member of the board of directors, (3) a 
 
            member of the management team involved in the decision 
 

 
            
 
            Page   2 
 
            
 
            
 
            
 
            
 
            making process of the company and (4) one of 18 select 
 
            stockholders and owners of the company.  She sustained 
 
            occupational asthma from the use of isocyanates in the plant 
 
            and became sensitized to this chemical.  The company 
 
            physician, her treating physician and claimant determined 
 
            that she should remove herself from this environment.  The 
 
            treating physician said it was a matter of her life and 
 
            health.
 
            It was determined that claimant was "actually incapacitated 
 
            from performing the employee's work ... because of an 
 
            occupational disease ... in the last employment in which 
 
            such employee is injuriously to the hazards of such 
 
            disease."  Iowa Code section 85A.4.  Claimant was foreclosed 
 
            from performing her work for this employer.  Claimant was 
 
            also foreclosed from performing any industrial work or other 
 
            work in an environment where isocyanates were in use.
 
            In addition, it was determined that claimant was "actually 
 
            incapacitated from ... earning equal wages in other suitable 
 
            employment because of an occupational disease ... in the 
 
            last occupation in which such employee is injuriously 
 
            exposed to the hazards of such disease."  Iowa Code section 
 
            85A.8.  Claimant obtained new employment as a senior 
 
            accountant for another company primarily as a record keeper 
 
            and preparer of financial statements.  She alleged an 
 
            immediate loss of 29 percent of her former income and 
 
            alleged a 10 percent loss of income at the time of hearing.  
 
            These allegations could be supported by the record.  Simple 
 
            calculations demonstrated an approximate 15 percent loss of 
 
            actual earnings at the time of hearing which was three years 
 
            after her last injurious exposure.
 
            Thus, disablement was established not once but twice.
 
            
 
            1803
 
            It was determined that claimant had sustained a 15 percent 
 
            industrial disability to the body as a whole primarily based 
 
            on (1) claimants age of 43 and the peak earning period in 
 
            her working lifetime, (2) the fact that claimant was 
 
            physically sensitized to isocyanates which is a fairly 
 
            common industrial chemical which is used in the manufacture 
 
            of all polyurethane products and (3) that claimant is 
 
            foreclosed from working in an occupation where isocyanates 
 
            are in use because it is a threat to her life and health.
 
            
 
            3001, 3002, 3003
 
            Claimant's base monthly salary, profit bonus, inventory 
 
            bonus, and automobile compensation were used in determining 
 
            the rate.  The life insurance compensation was not used only 
 
            because the record was silent as to whether the calculation 
 
            of wages in the record contained this element of her 
 
            compensation.
 
            The profit bonus was conditioned only upon the company 
 
            making a profit.  Claimant always received it once she 
 
            became eligible for it.  It was determined to be a regular 
 
            bonus.
 

 
            
 
            Page   3 
 
            
 
            
 
            
 
            
 
            The inventory bonus was paid practically every month.  It 
 
            was determined to be a regular bonus.
 
            Even though claimant was paid monthly, nevertheless, (1) her 
 
            compensation contained the profit bonus which was paid 
 
            annually as she called for it and (2) the inventory bonus 
 
            which varied from month to month and (3) the automobile 
 
            compensation which apparently was paid separately.  Thus, 
 
            claimant actually had an annual income even though she 
 
            received compensation monthly and the rate was computed 
 
            pursuant to Iowa Code section 85.36(5) as the closest 
 
            pertinent statute by adding up the annual income and 
 
            dividing by 52.
 
            
 
 
            
 
            
 
            
 
            
 
            
 
            
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
                                          :
 
            RICKI GAYLE WYMORE,           :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :      File No. 959325
 
            KEIM TRANSPORTATION,          :
 
                                          :     A R B I T R A T I O N
 
                 Employer,                :
 
                                          :       D E C I S I O N
 
            and                           :
 
                                          :
 
            UNITED STATEDS FIDELITY       :
 
            AND GUARANTY COMPANY,         :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
                              STATEMENT OF THE CASE
 
            
 
                 This is a proceeding in arbitration brought by Ricki 
 
            Gayle Wymore against Keim Transportation and its insurance 
 
            carrier, United States Fidelity and Guaranty Company, based 
 
            upon an injury that occurred on April 30, 1990.  Claimant 
 
            seeks compensation for healing period and permanent partial 
 
            disability.  A primary issue in the case is whether the 
 
            injury occurred within the state of Iowa and whether the 
 
            state of Iowa has jurisdiction over this case.
 
            
 
                 The case was heard at Des Moines, Iowa, on February 24, 
 
            1992.  The record consists of testimony from Steven Koenig, 
 
            Jack Green and the claimant.  The record also contains 
 
            claimant's exhibits 1 through 14 and defendants' exhibits A 
 
            through D and F through L.
 
            
 
                                 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.
 
            
 
                 Ricki Gayle Wymore is a 42-year-old high school 
 
            graduate who commenced employment with Keim Transportation 
 
            as a truck driver in early 1990.  During the period of time 
 
            running from April 29, 1990 through May 1, 1990, his truck 
 
            driving duties took him from Kansas City, Missouri to 
 
            Sabetha, Kansas, then to Omaha, Nebraska, then to St. 
 
            Joseph, Missouri, then to Des Moines, Iowa, then to Osseo, 
 
            Minnesota, then to Minneapolis, Minnesota, then to Windsor 
 
            Heights, Iowa.  Apparently, claimant thereafter left Windsor 
 
            Heights, Iowa and returned to Sabetha, Kansas on May 2, 
 
            1990.
 
            
 
                 Claimant testified at hearing and contends that he was 
 
            injured on April 30, 1990, by falling at approximately 10:00 
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            a.m. at the Bar-B Truck Stop at Des Moines, Iowa.  He 
 
            related that he had slept there for a few hours, showered 
 
            and eaten breakfast.  Claimant related at hearing that he 
 
            was then securing his load of wire and fell from the trailer 
 
            falling back, and landing on his left shoulder and neck area 
 
            (Defendants' Exhibit B, page 29).  The injury was not 
 
            reported to the employer, however, until claimant had 
 
            arrived in Minnesota.  According to the driver's log, 
 
            claimant left Des Moines at approximately 3:00 p.m. on April 
 
            30, arrived at Osseo, Minnesota, and unloaded at 
 
            approximately 7:30 p.m. on April 30, 1990.  According to the 
 
            driver's log, claimant had been in Des Moines from 5:00 a.m. 
 
            until approximately 3:00 p.m. on April 30, 1990 (Def. Ex. F, 
 
            p. 45).  The freight bill confirms that the wire was 
 
            unloaded at Osseo, Minnesota, on June 30, 1990.
 
            
 
                 The record shows no witnesses to the claimant's fall.  
 
            Accordingly, the claimant's credibility with regard to the 
 
            place where he fell is an extremely important matter.  It is 
 
            noted that the records from his initial physician's visit 
 
            report that he fell on Monday evening (Def. L, p. 1).  Those 
 
            same notes also indicate that he landed on his right hand 
 
            and caught himself.
 
            
 
                 Claimant's credibility is most severely damaged by his 
 
            house painting activities during late October of 1990.  
 
            Claimant had been enrolled in a work conditioning program 
 
            but then discontinued the program reporting that it was too 
 
            painful for him (Cl. Ex. 11; Def. Ex. K, p. 22; Def. Ex. J - 
 
            Professional Nurse Consultants, pp. 7-9).  At that same 
 
            period of time, claimant was observed working painting 
 
            houses.  The undersigned, having observed the video tape of 
 
            the claimant performing painting activities, could detect no 
 
            obvious indication that the claimant was experiencing any 
 
            type of physical problems.  He made extensive vigorous use 
 
            of both of his hands and arms (Def. Ex. A).
 
            
 
                 There is no corroboration in the record of this case 
 
            for any of the claimant's testimony that the injury occurred 
 
            in Des Moines, Iowa, other than the driver's log which shows 
 
            that he was in Des Moines, Iowa, at approximately 10:00 
 
            a.m., the time when the claimant has stated that the injury 
 
            occurred.  All the other evidence in the record shows the 
 
            injury to have occurred in the evening, at which time the 
 
            claimant was in the state of Minnesota.  It is generally 
 
            reputed that Iowa provides a relatively high weekly rate of 
 
            compensation in comparison to some of the surrounding 
 
            states.  That would provide ample incentive for an 
 
            individual to seek to have an injury covered under the Iowa 
 
            law, rather than the law of Kansas, Nebraska or Minnesota.  
 
            In this case, the claimant's credibility has been severely 
 
            impaired by the reports of being in too much pain to attend 
 
            therapy yet engaging in the occupation of house painting.  
 
            His uncorroborated testimony of being injured in Des Moines, 
 
            Iowa, is contradicted by the initial medical records and is 
 
            deemed to be not sufficiently strong to enable the 
 
            undersigned to find that his testimony is probably correct.  
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            It is possible that claimant fell and injured himself on the 
 
            morning of April 30, 1990, at Des Moines, Iowa, as he 
 
            testified.  The evidence in this case fails to show that 
 
            possibility to be any more likely than the possibility that 
 
            he fell on the evening of April 30, 1990, in the state of 
 
            Minnesota.  No finding is made regarding where the alleged 
 
            incident occurred, only that the evidence presented at this 
 
            hearing does not show it to be probable that it occurred in 
 
            Iowa.
 
            
 
                                CONCLUSIONS OF LAW
 
            
 
                 Claimant has the burden of proving by a preponderance 
 
            of the evidence that he received an injury on April 30, 
 
            1990, which arose out of and in the course of his 
 
            employment. McDowell v. Town of Clarksville, 241 N.W.2d 904 
 
            (Iowa 1976); Musselman v. Central Telephone Co., 261 Iowa 
 
            352, 154 N.W.2d 128 (1967). 
 
            
 
                 An employee is entitled to compensation for any and all 
 
            personal injuries which arise out of and in the course of 
 
            the employment.  Section 85.3(1).
 
            
 
                 A preponderance of the evidence exists when the showing 
 
            is probable rather than merely possible.  Blacksmith v. All 
 
            American, Inc., 290 N.W.2d 348, 354 (Iowa 1980); Holmes v. 
 
            Bruce Motor Freight, Inc., 215 N.W.2d 296 (Iowa 1974).  It 
 
            is therefore concluded that Ricki Gayle Wymore has failed to 
 
            prove by a preponderance of the evidence that he sustained 
 
            any injury in the state of Iowa on or about April 30, 1990.
 
            
 
                 If an injury occurs within the state of Iowa, the Iowa 
 
            Industrial Commissioner has jurisdiction.  Schmidt v. 
 
            Pittsburgh Plate Glass Co., 243 Iowa 1307, 55 N.W. 227 
 
            (1952).  In order for this case to be within the 
 
            jurisdiction of the Iowa Industrial Commissioner and under 
 
            the Iowa workers' compensation laws, the injury must either 
 
            occur within the state of Iowa or otherwise fall within the 
 
            provisions of Iowa Code section 85.71.  Claimant has failed 
 
            to prove that the injury occurred in the state of Iowa.  No 
 
            determination is made regarding whether it happened in some 
 
            other state.  There is no evidence in the record of this 
 
            case to support jurisdiction for an injury which occurred 
 
            outside the state of Iowa since the employer's business has 
 
            not been shown to be principally localized within the state 
 
            of Iowa, the claimant does not regularly work within the 
 
            state of Iowa, the claimant's contract of hire was not made 
 
            within the state of Iowa.  There is therefore no basis for 
 
            finding jurisdiction under any of the options provided under 
 
            Iowa Code section 85.71.
 
            
 
                 Jurisdiction of the subject matter is the power to hear 
 
            and decide cases of the general class to which the 
 
            proceedings belong.  Green v. Sherman, 173 N.W.2d 843, 846 
 
            (Iowa 1970).  If it is absent, an order dismissing the 
 
            petition is the only appropriate disposition.  Lloyd v. 
 
            State, 251 N.W.2d 551, 558 (Iowa 1977).
 
            
 
                 It is therefore concluded that the state of Iowa and 
 
            Iowa Industrial Commissioner does not have jurisdiction of 
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
            the claimant's claim in this case.
 
            
 
                                      ORDER
 
            
 
                 IT IS THEREFORE ORDERED:
 
            
 
                 That this proceeding is dismissed for lack of subject 
 
            matter jurisdiction.
 
            
 
                 The costs of this action are assessed to the party that 
 
            incurred each item of cost and neither party is entitled to 
 
            reimbursement for costs from the other party.
 
            
 
                 Signed and filed this ______ day of July, 1992.
 
            
 
                 
 
            
 
                 
 
                 
 
                                          ______________________________
 
                                          MICHAEL G. TRIER
 
                                          DEPUTY INDUSTRIAL COMMISSIONER
 
            
 
            Copies To:
 
            
 
            Mr William F. McGinn
 
            Attorney at Law
 
            Third Flr Executive Ste
 
            Firstar Bank of Council Bluffs
 
            Council Bluffs IA 51503
 
            
 
            Ms Iris Post
 
            Attorney at Law
 
            222 Grand Ave
 
            Des Moines IA 50306
 
            
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                                   2301; 1402.30
 
                                                   Filed July 30, 1992
 
                                                   Michael G. Trier
 
 
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
            RICKI GAYLE WYMORE, 
 
                      
 
                 Claimant, 
 
                      
 
            vs.       
 
                                                 File No. 959325
 
            KEIM TRANSPORTATION,     
 
                                            A R B I T R A T I O N
 
                 Employer, 
 
                                                D E C I S I O N
 
            and       
 
                      
 
            UNITED STATES FIDELITY  
 
            AND GUARANTY COMPANY,    
 
                      
 
                 Insurance Carrier,  
 
                 Defendants.    
 
            ___________________________________________________________
 
            
 
            2301; 1402.30
 
            Held that claimant had the burden of proving that his injury 
 
            occurred within the state of Iowa in order to establish 
 
            subject matter jurisdiction.  Where the claimant's 
 
            credibility was successfully challenged, his uncorroborated 
 
            testimony was found to be insufficient to show it to be 
 
            probable that his injury occurred in this state.  It was 
 
            recognized that the relatively generous weekly benefits 
 
            allowed in the state of Iowa would give an individual a 
 
            motive to claim an injury occurred in the state of Iowa when 
 
            it in fact had occurred elsewhere.
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
            before the iowa industrial commissioner
 
            ____________________________________________________________
 
            _____
 
                        :
 
            RONALD R. MULVANIA,   :
 
                        :
 
                 Claimant,   :        File No. 959327
 
                        :
 
            vs.         :          A P P E A L
 
                        :
 
            ALUMINUM COMPANY OF AMERICA,    :        D E C I S I O N
 
                        :
 
                 Employer,   :
 
                 Self-Insured,    :
 
                 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 February 27, 1992 is affirmed and is adopted as the 
 
            final agency action in this case.
 
            Defendant shall pay the costs of the appeal, including the 
 
            preparation of the hearing transcript.
 
            Signed and filed this ____ day of February, 1993.
 
            
 
            
 
            
 
            
 
                      ________________________________
 
                               BYRON K. ORTON
 
                          INDUSTRIAL COMMISSIONER
 
            
 
            Copies To:
 
            
 
            Mr. Michael W. Liebbe
 
            Attorney at Law
 
            P.O. Box 339
 
            Davenport, Iowa 52805-0339
 
            
 
            Mr. Thomas N. Kamp
 
            Attorney at Law
 
            600 Davenport Bank Bldg.
 
            Davenport, Iowa 52801
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
            1803; 1803.1; 2800
 
            Filed February 26, 1993
 
            Byron K. Orton
 
            MAM
 
            before the iowa industrial commissioner
 
            ____________________________________________________________
 
            _____
 
                        :
 
            RONALD R. MULVANIA,   :
 
                        :
 
                 Claimant,   :        File No. 959327
 
                        :
 
            vs.         :          A P P E A L
 
                        :
 
            ALUMINUM COMPANY OF AMERICA,    :        D E C I S I O N
 
                        :
 
                 Employer,   :
 
                 Self-Insured,    :
 
                 Defendant.       :
 
            ____________________________________________________________
 
            _____
 
            
 
            2800
 
            Claimant sustained a cumulative injury to the left shoulder 
 
            after he engaged in repetitive type activities at work.  
 
            Claimant used his left shoulder and arm to brace wood when 
 
            sliding boards through a saw.  Claimant was credible.  
 
            Claimant's treating orthopedic surgeon established the 
 
            requisite causal connection.  Defendant had proper notice.
 
            
 
            
 
            1803; 1803.1
 
            It was determined that claimant had a permanent partial 
 
            disability to the body as a whole of eight percent.
 
            Claimant was also awarded healing period benefits.
 
            
 
 
            
 
            Page   1
 
            
 
            
 
            
 
            
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            RONALD R. MULVANIA,           :
 
                                          :        File No. 959327
 
                 Claimant,                :
 
                                          :     A R B I T R A T I O N
 
            vs.                           :
 
                                          :        D E C I S I O N
 
            ALUMINUM COMPANY OF AMERICA,  :
 
                                          :
 
                 Employer,                :
 
                 Self-Insured,            :
 
                 Defendant.               :
 
            ___________________________________________________________
 
            
 
            
 
                              STATEMENT OF THE CASE
 
            
 
                 This is a proceeding in arbitration upon the petition 
 
            of claimant, Ronald R. Mulvania, against his self-insured 
 
            employer, Aluminum Company of America, defendant.  The case 
 
            was heard on February 18, 1992, at the Davenport Division of 
 
            Job Service Building.  The record consists of the testimony 
 
            of claimant.  The record also consists of the testimony of 
 
            Jim Bates, unit supervisor, and Don Olsen, ergonomist with 
 
            defendant-employer.  Additionally, the record consists of 
 
            claimant's exhibits C-1 through C-8, and employer's exhibits 
 
            pages 1-48 including exhibit 10, a videotape.
 
            
 
                                      issues
 
            
 
                 The issues to be determined are:  1) whether claimant 
 
            received an injury which arose out of and in the course of 
 
            employment; 2) whether there is a causal relationship 
 
            between the alleged injury and the disability; 3) whether 
 
            claimant is entitled to temporary disability/healing period 
 
            benefits or permanent disability benefits; and, 4) whether 
 
            claimant tendered notice pursuant to section 85.23, Iowa 
 
            Code, as amended.
 
            
 
                                 findings of fact
 
            
 
                 The deputy, having heard the testimony and considered 
 
            all the evidence, finds:
 
            
 
                 Claimant is nearly 38 years old.  He is married with 
 
            three children.  Claimant is a 1973 high school graduate.  
 
            He commenced his employment with defendant at age 19.  
 
            Except for a period when he was laid off from defendant, 
 
            claimant has worked continuously in the box shop.  The box 
 
            shop has been renamed the "container fabrication 
 
            department."
 
            
 
                 Claimant's job classification is that of saw operator.  
 
            He is required to move boards through a saw and to cut those 
 
            boards into various lengths.  Claimant operates the saw by 
 
            pushing buttons with both hands.  Claimant testified he was 
 
            often required to wedge boards into the saw and that he used 
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            his left shoulder and left arm to brace the wood and to push 
 
            down on the boards.  Claimant also testified that he 
 
            performed his saw operating tasks approximately 100 to 150 
 
            times per hour.  During the winter and spring of 1990, 
 
            claimant was working overtime hours.  During most weeks that 
 
            year, claimant worked in excess of 40 hours per week.
 
            
 
                 Claimant eats and writes with his left hand.  He is an 
 
            avid sports person and he plays sports with his right hand.  
 
            Claimant plays volleyball and softball.  He coaches girls 
 
            softball as well.  When he was a high school junior, 
 
            claimant sustained a neck and left shoulder injury which was 
 
            asymptomatic from 1973 through 1989.
 
            
 
                 Claimant testified his left shoulder gradually began to 
 
            tire and to cause pain.  He stated the ache in his shoulder 
 
            worsened.  As a consequence, claimant sought treatment from 
 
            his family physician, E. Mehl, D.O.  The family physician 
 
            referred claimant to an orthopedic surgeon, Anthony 
 
            D'Angelo, D.O.
 
            
 
                 Dr. D'Angelo diagnosed claimant as having tendonitis of 
 
            the left shoulder.  Later Dr. D'Angelo modified his 
 
            diagnosis.  He performed a decompression of the left 
 
            shoulder, he removed a portion of the acromion as well as a 
 
            portion of the coracoacromial ligament and Dr. D'Angelo 
 
            repaired a small rotator cuff tear.
 
            Physical therapy was prescribed subsequent to the surgery.  
 
            As of October 26, 1990, Kevin D. Camden, LPT, opined:  "He 
 
            currently has full AROM in his left shoulder and also has 
 
            full strength in the left shoulder.  I feel he will be 
 
            capable of returning to work with no further problems."  
 
            (Exhibit 3, page 17)
 
            
 
                 In June of 1991, Dr. D'Angelo evaluated claimant for 
 
            purposes of rendering an impairment rating.  Dr. D'Angelo 
 
            opined that:
 
            
 
                 It is my opinion Ron Mulvania has reached maximum 
 
                 medical improvement to the left shoulder.  It is 
 
                 my opinion, there is a 5% impairment of the left 
 
                 upper extremity secondary to residual symptoms of 
 
                 an anterior impingement syndrome at the left 
 
                 shoulder, as well as a rotator cuff tear.  At your 
 
                 request, the memorandum from Zack Washington was 
 
                 reviewed and I did discuss this with Mr. & Mrs. 
 
                 Mulvania.  It is my opinion, a pre-exsisting [sic] 
 
                 condition of a minor degree was present involving 
 
                 this left shoulder.  It is my opinion activities 
 
                 at work, exacerbated this pre-exsisting [sic] 
 
                 condition.  I would rate on the basis of discus
 
                 sion with Mr. & Mrs. Mulvania, the preexsisting 
 
                 [sic] condition to be less than 25% of the total 
 
                 problem involving this shoulder.  It is my 
 
                 opinion, current impairment to the left shoulder 
 
                 is secondary to involvement at work and I would 
 
                 place involvement at work as 75% responsible for 
 
                 patient's current condition.
 
            
 
                 Impairment rating is based on Guides to Evaluation 
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
                 of Permanent Impairment, 3rd edition, published by 
 
                 the American Medical Association.
 
            
 
            (Ex. 2, p. 7)
 
            
 
                 On October 29, 1990, claimant returned to work as a saw 
 
            operator.  He was not given any physical restrictions.  
 
            Since that time, claimant has missed no work because of his 
 
            left shoulder condition.  Claimant has also worked all 
 
            overtime which has been offered to him since his return.  At 
 
            the time of the hearing, claimant was earning $12.94 per 
 
            hour.  Claimant has sustained no wage loss since his left 
 
            shoulder injury.
 
            
 
                                conclusions of law
 
            
 
                 The first issue to address is whether claimant has 
 
            sustained an injury which arose out of and in the course of 
 
            his employment.
 
            
 
                 The claimant has the burden of proving by a 
 
            preponderance of the evidence that the alleged injury 
 
            actually occurred and that it arose out of and in the course 
 
            of employment.  The words "arising out of" refer to the 
 
            cause or source of the injury.  The words "in the course of" 
 
            refer to the time, place and circumstances of the injury.  
 
            Sheerin v. Holin Co., 380 N.W.2d 415, 417 (Iowa 1986); 
 
            McClure v. Union, et al., Counties, 188 N.W.2d 283, 287 
 
            (Iowa 1971).
 
            
 
                 The claimant has the burden of proving by a 
 
            preponderance of the evidence that the injury is a proximate 
 
            cause of the disability on which the claim is based.  A 
 
            cause is proximate if it is a substantial factor in bringing 
 
            about the result; it need not be the only cause.  A 
 
            preponderance of the evidence exists when the causal 
 
            connection is probable rather than merely possible.  
 
            Blacksmith v. All-American, Inc., 290 N.W.2d 348, 354 (Iowa 
 
            1980); Holmes v. Bruce Motor Freight, Inc., 215 N.W.2d 296, 
 
            297 (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. Oscarshoulder condition occurred 
 
            gradually and over the course of several months.  Claimant's 
 
            description of his work procedures was credible.  Claimant 
 
            illustrated for the undersigned how he used his left 
 
            shoulder and arm and what type of pressure he exerted on his 
 
            left shoulder.  The videotape, which was viewed during the 
 
            hearing, corroborated, in part, claimant's rendition of his 
 
            work injury.  Claimant has proven that he has sustained an 
 
            injury which arose out of and in the course of his 
 
            employment on May 23, 1990.
 
            
 
                 Defendant, as an affirmative defense, maintains it did 
 
            not have adequate notice pursuant to section 85.23 of the 
 
            Iowa Code.
 
            
 
                  Section 85.23 of the Iowa Code provides:
 
            
 
                 Unless the employer or the employer's 
 
                 representative shall have actual knowledge of the 
 
                 occurrence of an injury received within ninety 
 
                 days from the date of the occurrence of the 
 
                 injury, or unless the employee or someone on the 
 
                 employee's behalf or a dependent or someone on the 
 
                 dependent's behalf shall give notice thereof to 
 
                 the employer within ninety days from the date of 
 
                 the occurrence of the injury, no compensation 
 
                 shall be allowed.
 
            
 
                 Failure to give notice is an affirmative defense which 
 
            the employer must prove by a preponderance of the evidence.  
 
            DeLong v. Highway Commission, 229 Iowa 700, 295 N.W. 91 
 
            (1940).  Mefferd v. Ed Miller & Sons, Inc., Thirty-Third 
 
            Biennial Report of the Industrial Commissioner 191 (Appeal 
 
            Decision 1977).
 
            
 
                 The time period contemplated in Iowa Code section 85.23 
 
            does not begin to run until the claimant has knowledge of 
 
            the nature of his disability.  Jacques v. Farmers Lbr. & 
 
            Sup. Co., 242 Iowa 548, 47 N.W.2d 236, 239 (1951).
 
            
 

 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
                 An employer's actual knowledge of occurrence of injury 
 
            must include some information that the injury is 
 
            work-connected in order to satisfy the alternative notice of 
 
            claim requirement.  Robinson v. Department of Transp., 296 
 
            N.W.2d 809, 812 (Iowa 1980).  The interpretation in Robinson 
 
            was confirmed in Doerfer Division of CCA v. Nicol, 359 
 
            N.W.2d 428, 435 (Iowa 1984).
 
            
 
                 A claimant's duty to give notice of injury arises when 
 
            the claimant should recognize the nature, seriousness and 
 
            probable compensable character of his injury or disease.  
 
            The reasonableness of claimant's conduct is to be judged in 
 
            light of his education and intelligence. Claimant must know 
 
            enough about the injury or disease to realize that it is 
 
            both serious and work-connected, but positive medical 
 
            information is unnecessary if he has information from any 
 
            source which puts him on notice of its probable 
 
            compensability.  Robinson, supra.
 
            
 
                 The purpose of the 90 day notice or actual knowledge 
 
            requirement is to give the employer an opportunity to timely 
 
            investigate the acts of the injury.  Id.:  Knipe v. Skelgas 
 
            Co., 229 Iowa 740, 748, 294 N.W. 880, 884 (1940); Hobbs v. 
 
            Sioux City, 231 Iowa 860, 2 N.W.2d 275 (1942); Dillinger v. 
 
            City of Sioux City, 368 N.W.2d 176 (Iowa 1985).  Koopmans v. 
 
            Iowa Electric Light and Power Company, (Appeal Decision 
 
            dated December 30, l981) on appeal to Iowa Supreme Court).
 
            
 
                 The word "compensable" in the workers' compensation 
 
            notice context is not used to connote legal knowledge that a 
 
            claim is within the workers' compensation act.  Rather, 
 
            "compensable" means that the disabling injury was work 
 
            connected.  Quaker Oats Co. v. Miller, 370 So.2d 1363, 1366 
 
            (Miss. 1979).
 
            
 
                 Unless a statute that imposes a period of limitations 
 
            expressly authorizes exceptions for extenuating 
 
            circumstances, it must be applied uniformly even though the 
 
            result may be harsh.  Burgess v. Great Plains Bag 
 
            Corporation, 409 N.W.2d 676, 679 (Iowa 1987).
 
            
 
                 A mistake of law is no more an excuse in connection 
 
            with a late compensation claim than anywhere else, unless 
 
            expressly made so by statute.  3 Larson, Workmen's 
 
            Compensation Law, Section 78.47 at 15-334.
 
            
 
                 The initial determination in the instant case, is 
 
            whether claimant has given notice of his claim to his 
 
            employer under section 85.23.  The statute allows for two 
 
            types of notice.
 
            
 
                 The first type of notice is actual knowledge of the 
 
            occurrence of an injury within 90 days.  The second type of 
 
            notice allowed by statute is notice given to the employer by 
 
            the injured employee within 90 days from the date of the 
 
            occurrence of the injury.  Claimant admits no formal written 
 
            notice was tendered to employer.
 
            
 
                 Claimant alleges an injury date of May 23, 1990.  He 
 
            testified at his hearing that he noticed left shoulder 
 

 
            
 
            Page   6
 
            
 
            
 
            
 
            
 
            problems in January of that year.  However, claimant did not 
 
            know the cause of his left shoulder and arm pain.  He first 
 
            sought medical treatment as of May 23, 1990.  His family 
 
            physician had no knowledge regarding the cause of the pain.  
 
            The family doctor referred claimant on to an orthopedic 
 
            surgeon.  It was not until July of 1990 that claimant was 
 
            told by a physical therapist that claimant's work duties may 
 
            have had a role in claimant's deteriorated physical 
 
            condition.  The defendant's injury/illness report indicates 
 
            knowledge of the alleged work injury per claimant's verbal 
 
            notification as of July 6, 1990.  The notification period is 
 
            well within the 90 day rule.
 
            
 
                 Defendant has not met its burden of proving its 
 
            affirmative defense.
 
            
 
                 Claimant has also established the requisite causal 
 
            connection.  Dr. D'Angelo opined that:
 
            
 
                 It is my opinion, a pre-exsisting [sic] condition 
 
                 of a minor degree was present involving this left 
 
                 shoulder.  It is my opinion activities at work, 
 
                 exacerbated this pre-exsisting [sic] condition.  I 
 
                 would rate on the basis of discussion with Mr. & 
 
                 Mrs. Mulvania, the preexsisting [sic] condition to 
 
                 be less than 25% of the total problem involving 
 
                 this shoulder....
 
            
 
            (Ex. 2, p. 7)
 
            
 
                 Dr. D'Angelo's opinion is accorded great weight.  He is 
 
            the treating physician.  He is a specialist in orthopedic 
 
            surgery.  Claimant has established that his condition is 
 
            related to his job activities.
 
            
 
                 The next issue to discuss is the issue of permanent 
 
            partial disability benefits.  Claimant alleges he is 
 
            industrially disabled.
 
            
 
                 Functional impairment is an element to be considered in 
 
            determining industrial disability which is the reduction of 
 
            earning capacity, but consideration must also be given to 
 
            the injured employee's age, education, qualifications, expe
 
            rience and inability to engage in employment for which the 
 
            employee is fitted.  Olson, 255 Iowa 1112, 125 N.W.2d 251 
 
            (1963).  Barton v. Nevada Poultry, 253 Iowa 285, 110 N.W.2d 
 
            660 (1961).
 
            
 
                 A finding of impairment to the body as a whole found by 
 
            a medical evaluator does not equate to industrial 
 
            disability.  Impairment and disability are not synonymous.  
 
            The degree of industrial disability can be much different 
 
            than the degree of impairment because industrial disability 
 
            references to loss of earning capacity and impairment 
 
            references to anatomical or functional abnormality or loss.  
 
            Although loss of function is to be considered and disability 
 
            can rarely be found without it, it is not so that a degree 
 
            of industrial disability is proportionally related to a 
 
            degree of impairment of bodily function.
 
            
 

 
            
 
            Page   7
 
            
 
            
 
            
 
            
 
                 Factors to be considered in determining industrial dis
 
            ability include the employee's medical condition prior to 
 
            the injury, immediately after the injury, and presently; the 
 
            situs of the injury, its severity and the length of the 
 
            healing period; the work experience of the employee prior to 
 
            the injury and after the injury and the potential for 
 
            rehabilitation; the employee's qualifications 
 
            intellectually, emotionally and physically; earnings prior 
 
            and subsequent to the injury; age; education; motivation; 
 
            functional impairment as a result of the injury; and 
 
            inability because of the injury to engage in employment for 
 
            which the employee is fitted.  Loss of earnings caused by a 
 
            job transfer for reasons related to the injury is also 
 
            relevant.  Likewise, an employer's refusal to give any sort 
 
            of work to an impaired employee may justify an award of 
 
            disability.  McSpadden v. Big Ben Coal Co., 288 N.W.2d 181 
 
            (Iowa 1980).  These are matters which the finder of fact 
 
            considers collectively in arriving at the determination of 
 
            the degree of industrial disability.
 
            
 
                 There are no weighting guidelines that indicate how 
 
            each of the factors are to be considered.  Neither does a 
 
            rating of functional impairment directly correlate to a 
 
            degree of industrial disability to the body as a whole.  In 
 
            other words, there are no formulae which can be applied and 
 
            then added up to determine the degree of industrial 
 
            disability.  It therefore becomes necessary for the deputy 
 
            or commissioner to draw upon prior experience as well as 
 
            general and specialized knowledge to make the finding with 
 
            regard to degree of industrial disability.  See Peterson v. 
 
            Truck Haven Cafe, Inc., (Appeal Decision, February 28, 
 
            1985); Christensen v. Hagen, Inc., (Appeal Decision, March 
 
            26, 1985).
 
            
 
                 Compensation for permanent partial disability shall 
 
            begin at the termination of the healing period.  
 
            Compensation shall be paid in relation to 500 weeks as the 
 
            disability bears to the body as a whole.  Section 85.34.
 
            
 
                 In the case before this deputy, claimant has sustained 
 
            a left torn rotator cuff injury.  When disability is found 
 
            in the shoulder, a body as a whole situation may exist.  Alm 
 
            v. Morris Barick Cattle Co., 240 Iowa 1174, 38 N.W.2d 161 
 
            (1949).  In Nazarenus v. Oscar Mayer & Co., II Iowa 
 
            Industrial Commissioner Report 281 (App. Decn. 1982), a torn 
 
            rotator cuff was found to cause disability to the body as a 
 
            whole.  Claimant's injury is to the body as a whole.  Dr. 
 
            D'Angelo has opined that claimant has a five percent 
 
            functional impairment.  Dr. D'Angelo has also opined that as 
 
            of October 26, 1990, claimant had full range of motion of 
 
            the left shoulder as well as full strength in that shoulder.  
 
            Claimant has returned to his former position without restric
 
            tions.  Claimant's rate of pay has not decreased because of 
 
            his left shoulder condition.  Claimant is able to perform 
 
            overtime hours at the rate specified in the collective 
 
            bargaining agreement, so long as claimant uses a modified 
 
            approach to his job.  Claimant can no longer use his left 
 
            arm and shoulder as the sole brace for placing boards into 
 
            the saw.  Claimant has had to modify his work tasks so that 
 
            he restricts the use of his left shoulder and arm.  He 
 

 
            
 
            Page   8
 
            
 
            
 
            
 
            
 
            cannot overuse his left shoulder or else he experiences 
 
            pain.  Likewise, claimant is unable to perform tasks when he 
 
            is lying on his back with his arms extended upwards.  
 
            Claimant's left shoulder and arm also bother him when he 
 
            engages in the hand nailing of wooden skids.
 
            
 
                 Currently, claimant's position is not in jeopardy 
 
            because of his left shoulder.  His job is stable.  
 
            Claimant's wages have not decreased.  However, claimant has 
 
            had to modify his work tasks when he operates a saw.  
 
            Therefore, it is the determination of the undersigned that 
 
            claimant is entitled to an eight percent permanent partial 
 
            disability commencing on October 29, 1990, at the stipulated 
 
            rate of $463.46 per week.
 
            
 
                 Claimant is also entitled to healing period benefits 
 
            from July 30, 1990 through October 28, 1990, at the 
 
            corrected stipulated rate of $463.46 per week.  This period 
 
            comprises 13 weeks.
 
            
 
                 Defendant is entitled to a credit for sick and accident 
 
            benefits previously paid to claimant pursuant to section 
 
            85.38(2).  The amount of credit allowed to an employer for 
 
            disability income payments made under a group plan is the 
 
            net amount which the employee realizes after any income 
 
            taxes attributable to the group disability income payments 
 
            are deducted from the total amount of payments actually 
 
            paid.  See Beller v. Iowa State Penitentiary, File No. 
 
            799401 (Appeal Decision July 10, 1991).
 
            
 
                                      order
 
            
 
                 THEREFORE, IT IS ORDERED:
 
            
 
                 Defendant is to pay unto claimant thirteen (13) weeks 
 
            of healing period benefits at the corrected stipulated rate 
 
            of four hundred sixty-three and 46/l00 dollars ($463.46) per 
 
            week.
 
            
 
                 Defendant is to also pay unto claimant forty (40) weeks 
 
            of permanent partial disability benefits at the corrected 
 
            stipulated rate of four hundred sixty-three and 46/l00 
 
            dollars ($463.46) per week and commencing on October 29, 
 
            1990.
 
            
 
                 Accrued benefits are to be paid in a lump sum together 
 
            with statutory interest at the rate of ten percent (10%) per 
 
            year pursuant to section 85.30, Iowa Code, as amended.
 
            
 
                 Defendant shall receive credit as aforementioned for 
 
            sick and accident benefits paid to claimant pursuant to 
 
            section 85.38(2) of the Iowa Code, as amended.
 
            
 
                 Defendant shall file a claim activity report as 
 
            requested by this division and pursuant to rule 343 IAC 3.l.
 
            
 
            
 
            
 
                 Signed and filed this ____ day of February, 1992.
 
            
 

 
            
 
            Page   9
 
            
 
            
 
            
 
            
 
            
 
            
 
            
 
            
 
                                          ______________________________               
 
            MICHELLE A. McGOVERN
 
                                          DEPUTY INDUSTRIAL COMMISSIONER
 

 
            
 
            Page  10
 
            
 
            
 
            
 
            
 
            
 
            
 
            
 
            Copies To:
 
            
 
            Mr. Thomas N. Kamp
 
            Attorney at Law
 
            600 Davenport Bank Bldg
 
            Davenport  IA  52801
 
            
 
            Mr. Michael W. Liebbe
 
            Attorney at Law
 
            116 E 6th St
 
            P O Box 339
 
            Davenport  IA  52805
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
            1803; 1803.1; 2800
 
            Filed February 27, 1992
 
            MICHELLE A. McGOVERN
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            RONALD R. MULVANIA,           :
 
                                          :        File No. 959327
 
                 Claimant,                :
 
                                          :     A R B I T R A T I O N
 
            vs.                           :
 
                                          :        D E C I S I O N
 
            ALUMINUM COMPANY OF AMERICA,  :
 
                                          :
 
                 Employer,                :
 
                 Self-Insured,            :
 
                 Defendant.               :
 
            ___________________________________________________________
 
            
 
            
 
            2800
 
            Claimant sustained a cumulative injury to the left shoulder 
 
            after he engaged in repetitive type activities at work.  
 
            Claimant used his left shoulder and arm to brace wood when 
 
            sliding boards through a saw.  Claimant was credible.  
 
            Claimant's treating orthopedic surgeon established the 
 
            requisite causal connection.  Defendant had proper notice.
 
            
 
            
 
            1803; 1803.1
 
            It was determined that claimant had a permanent partial 
 
            disability to the body as a whole of eight percent.
 
            Claimant was also awarded healing period benefits.
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
            1803
 
            Filed April 23, 1992
 
            MICHELLE A. McGOVERN
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            ELMER J. LATHROP,             :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :         File Nos. 959330
 
                                          :                   951789
 
            ABILD CONSTRUCTION,           :
 
                                          :      A R B I T R A T I O N
 
                 Employer,                :
 
                                          :         D E C I S I O N
 
            and                           :
 
                                          :
 
            AETNA,                        :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
            
 
            1803
 
            Claimant was a 52-year-old ironworker who injured his back 
 
            while working.  Claimant was determined to have a 60 percent 
 
            permanent partial disability.  Claimant was highly 
 
            motivated.  He obtained a GED in the recent past.  He had 
 
            looked into additional training.  He had participated in 
 
            vocational rehabilitation.  Claimant was precluded from 
 
            returning to the job of an ironworker.  He was preparing to 
 
            enter a course for dental lab work.
 
            
 
 
            
 
            
 
            
 
            
 
            
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
                                          :
 
            DOUGLAS BARKER,               :
 
                                          :
 
                 Claimant,                :      File Nos. 959334
 
                                          :                959335
 
            vs.                           :
 
                                          :
 
            INTERNATIONAL PAPER COMPANY,  :     A R B I T R A T I O N
 
                                          :
 
                 Employer,                :       D E C I S I O N
 
                 Self-Insured,            :
 
                 Defendant.               :
 
                                          :
 
            ___________________________________________________________
 
            
 
                              STATEMENT OF THE CASE
 
            
 
                 This decision concerns two procedures in arbitration 
 
            brought by Douglas Barker against his employer, 
 
            International Paper Company based upon alleged injuries of 
 
            July 1, 1989 and October 5, 1990.  At issue in both cases is 
 
            whether Barker sustained injuries on or about the days 
 
            alleged which arose out of and in the course of his 
 
            employment; whether the alleged injuries were a proximate 
 
            cause of any disability; and, determination of his 
 
            entitlement of weekly compensation for healing period, 
 
            temporary total disability or permanent partial disability.
 
            
 
                 The case was heard at Davenport, Iowa on May 19, 1993.  
 
            The evidence consists of testimony from Douglas Barker, 
 
            Susann Nixon and Teri Gertsen.  The record also contains 
 
            jointly offered exhibits 1 through 25, B, C, E and F.
 
            
 
                                 FINDINGS OF FACT
 
            
 
                 Douglas Barker has been employed at International Paper 
 
            Company for 19 1/2 years.  In 1977, he sustained a back 
 
            injury which caused him to miss several weeks of work.  He 
 
            felt that he recovered from that injury but also indicated 
 
            that he has had intermittent back problems since that injury 
 
            and that those problems have been gradually worsening.  The 
 
            record in this case shows a number of times when Barker 
 
            sought medical care for his back prior to July of 1989.  
 
            Those include October of 1982, July of 1985 and September of 
 
            1988 (Exhibit 2, pages 6 and 7).
 
            
 
                 Douglas asserts that he sustained traumatic injury in 
 
            early July 1989 and again on October 5, 1990.  The first 
 
            notice Douglas gave his employer of the alleged 1989 injury 
 
            was in early August when he was being subjected to 
 
            disciplinary proceedings for absenteeism.  There is nothing 
 
            in the record which indicates that Douglas sought medical 
 
            care for the 1989 injury prior to the time that the 
 
            disciplinary proceedings were held.  The medical histories 
 
            shown in the records of his treatment do not contain any 
 
            indication that Douglas had experienced an acute trauma.  To 
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            the contrary, the records seem to indicate the gradual onset 
 
            of worsening back pain.  While there is nothing about this 
 
            claimant's appearance and demeanor which led the undersigned 
 
            to believe that he was fabricating, the total lack of 
 
            corroboration for the alleged sequence of injury in July of 
 
            1989 detracts greatly from the weight to be given to the 
 
            claimant's testimony.  The fact that the employer was first 
 
            given notice of the injury allegation as a defense to a 
 
            disciplinary action further weakens the claim.  While the 
 
            fact of loss of lumbar lordosis or curve and marked 
 
            vertebral muscle spasm is evidenced by the medical records 
 
            (Ex. 4, pp. 15-16), the fact remains that there is a 
 
            scarcity of evidence showing those symptoms to have resulted 
 
            from anything that occurred at work on or about July 1, 
 
            1989.  When the evidence in this case is viewed as a whole, 
 
            it fails to show that it is probable that Douglas Barker 
 
            injured his back on or about July 1, 1989 in the manner he 
 
            asserts.
 
            
 
                 The second alleged incident, the one of October 5, 
 
            1990, was reported to the employer more than a week after 
 
            the alleged injury date.  Medical care was sought 
 
            approximately four days after the alleged injury (Ex. 4, p. 
 
            24).  As with the earlier allegation of injury, the medical 
 
            records do not contain a history of an acute trauma of the 
 
            type described at hearing.  It is found that the record in 
 
            this case, when viewed as a whole, fails to show it to be 
 
            probable that Douglas Barker sustained any injury to his 
 
            back that was associated with the duties of his employment 
 
            on or about October 5, 1990.
 
            
 
                 The diagnostic radiographic studies and other objective 
 
            tests have largely been interpreted as being within normal 
 
            limits.  There is no physiological objective evidence of 
 
            injury.  Douglas Barker's back apparently was weakened by 
 
            the 1977 injury.  He appears susceptible to flare-ups.  He 
 
            apparently experienced flare-ups in August of 1989 and again 
 
            in October of 1990.  The record fails to show it to be 
 
            probable, however, that his employment was a substantial 
 
            factor in producing either of those two flare-ups.
 
            
 
                                CONCLUSIONS OF LAW
 
            
 
                 The claimant has the burden of proving by a 
 
            preponderance of the evidence that the alleged injury 
 
            actually occurred and that it arose out of and in the course 
 
            of employment.  McDowell v. Town of Clarksville, 241 N.W.2d 
 
            904 (Iowa 1976); Musselman v. Cent. Tel. Co., 261 Iowa 352, 
 
            154 N.W.2d 128 (1967).  The words "arising out of" refer to 
 
            the cause or source of the injury.  The words "in the course 
 
            of" refer to the time, place and circumstances of the 
 
            injury.  Sheerin v. Holin Co., 380 N.W.2d 415 (Iowa 1986); 
 
            McClure v. Union County, 188 N.W.2d 283 (Iowa 1971).
 
            
 
                 A personal injury contemplated by the workers' 
 
            compensation law means an injury, the impairment of health 
 
            or a disease resulting from an injury which comes about, not 
 
            through the natural building up and tearing down of the 
 
            human body, but because of trauma.  The injury must be 
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            something which acts extraneously to the natural processes 
 
            of nature and thereby impairs the health, interrupts or 
 
            otherwise destroys or damages a part or all of the body.  
 
            Although many injuries have a traumatic onset, there is no 
 
            requirement for a special incident or an unusual occurrence.  
 
            Injuries which result from cumulative trauma are 
 
            compensable.  McKeever Custom Cabinets v. Smith, 379 N.W.2d 
 
            368 (Iowa 1985); Olson v. Goodyear Serv. Stores, 255 Iowa 
 
            1112, 125 N.W.2d 251 (1963); Ford v. Goode, 240 Iut of and in the course of his employment on or about 
 
            either of the two dates alleged in the petitions.  Further, 
 
            the evidence fails to contain any opinion from any physician 
 
            which indicates that any trauma which might have occurred on 
 
            either of the two dates alleged produced the disability upon 
 
            which this claim is based.  To the contrary, attending 
 
            physicians' statements found at pages 85-92 of the record 
 
            tends to indicate that either it is not a work-related 
 
            condition or that it is related to the 1977 injury.
 
            
 
                 It is therefore concluded that Douglas Barker has 
 
            failed to prove that he is entitled to any recovery in 
 
            either of these cases.
 
            
 
                                      ORDER
 
            
 
                 IT IS THEREFORE ORDERED that Douglas Barker take 
 
            nothing in file number 959334 and that he likewise take 
 
            nothing in file number 959335.  His claims against the 
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
            employer in those two files are dismissed, on the merits, 
 
            with prejudice.
 
            
 
                 IT IS FURTHER ORDERED that the costs in both 
 
            proceedings are assessed against the claimant pursuant to 
 
            rule 343 IAC 4.33.
 
            
 
                 Signed and filed this ____ day of August, 1993.
 
            
 
            
 
            
 
            
 
                                          
 
                                        ________________________________
 
                                          MICHAEL G. TRIER
 
                                          DEPUTY INDUSTRIAL COMMISSIONER
 
            
 
            Copies To:
 
            
 
            Mr James P Hoffman
 
            Attorney at Law
 
            Middle Rd
 
            P O Box 1087
 
            Keokuk IA 52632-1087
 
            
 
            Mr Greg A Egbers
 
            Mr Craig Levien
 
            Attorney at Law
 
            600 Union Arcade Bldg
 
            111 E 3rd St
 
            Davenport IA 52801
 
            
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                               5-1402.20; 5-1402.30
 
                                               Filed August 5, 1993
 
                                               Michael G. Trier
 
            
 
                        BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
                      
 
            DOUGLAS BARKER,     
 
                      
 
                 Claimant,                        File Nos. 959334
 
                                                            959335
 
            vs.       
 
                      
 
            INTERNATIONAL PAPER COMPANY,       A R B I T R A T I O N
 
                      
 
                 Employer,                        D E C I S I O N
 
                 Self-Insured,  
 
                 Defendant.     
 
                      
 
            ___________________________________________________________
 
            
 
            5-1402.20; 5-1402.30
 
            Claimant failed to prove injury arising out of and in the 
 
            course of employment.