BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         _________________________________________________________________
 
                     
 
         ELIZABETH DEMARTELAERE,    
 
                     
 
              Claimant,   
 
                     
 
         vs.         
 
                                                  File No. 966344
 
         ALUMINUM COMPANY OF AMERICA,    
 
                                                    A P P E A L
 
              Employer,   
 
              Self-Insured,    
 
                                                  D E C I S I O N
 
         and         
 
                     
 
         SECOND INJURY FUND OF IOWA,     
 
                     
 
              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 
 
         December 7, 1992 is adopted as the final agency action in this 
 
         case with the following additional analysis:
 
         
 
         The credit for an employer under Iowa Code section 85.38(2) is 
 
         the net amount which the employee receives after payment of all 
 
         applicable taxes.  Beller v. Iowa State Penitentiary, Appeal 
 
         Decision, July 10, 1991.
 
         
 
         The Second Injury Fund's disqualification issue on appeal is 
 
         without merit.  The transcript of the hearing reveals no 
 
         indication of personal bias on the part of the deputy industrial 
 
         commissioner toward any party.  The arbitration decision itself 
 
         determined in favor of the Fund that the claimant was not 
 
         entitled to Fund benefits.  The ruling on the motion for 
 
         disqualification is reaffirmed.
 
         
 
         Claimant, defendant and Second Injury Fund shall share equally 
 
         the costs of the appeal, including the preparation of the hearing 
 
         transcript.
 
         
 
         Signed and filed this ____ day of October, 1993.
 
         
 
                    
 
         
 
                                    ________________________________
 
                                              BYRON K. ORTON
 
                                        INDUSTRIAL COMMISSIONER
 
         
 
         Copies To:
 
         
 
         Mr. Michael W. Liebbe
 
         Attorney at Law
 

 
         
 
 
 
         Page   2
 
         
 
              
 
         
 
         
 
         
 
         
 
         P.O. Box 339
 
         Davenport, Iowa 52805
 
         
 
         Mr. Thomas N. Kamp
 
         Attorney at Law
 
         600 Davenport Bank Bldg.
 
         Davenport, Iowa 52801
 
         
 
         Mr. Robert D. Wilson
 
         Assistant Attorney General
 
         Tort Claims Division
 
         Hoover State Office Bldg.
 
         Des Moines, Iowa 50319
 
         
 
 
            
 
 
 
 
 
                                           5-1803
 
                                           Filed October 28, 1993
 
                                           Byron K. Orton
 
            
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
            
 
            ELIZABETH DEMARTELAERE,    
 
                        
 
                 Claimant,   
 
                        
 
            vs.         
 
                                                   File No. 966344
 
            ALUMINUM COMPANY OF AMERICA,    
 
                                                    A P P E A L
 
                 Employer,   
 
                 Self-Insured,    
 
                                                   D E C I S I O N
 
            and         
 
                        
 
            SECOND INJURY FUND OF IOWA,     
 
                        
 
                 Defendants.      
 
            ____________________________________________________________
 
            
 
            5-1803
 
            Non-precedential, extent of disability case.
 
            
 
 
            
 
            Page   1
 
            
 
            
 
            
 
            
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            ELIZABETH DEMARTELAERE,       :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :       File No. 966344
 
            ALUMINUM COMPANY OF AMERICA,  :
 
                                          :    A R B I T R A T I O N
 
                 Employer,                :
 
                 Self-Insured,            :       D E C I S I O N
 
                                          :
 
            and                           :
 
                                          :
 
            SECOND INJURY FUND OF IOWA,   :
 
                                          :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
            
 
                          STATEMENT OF THE CASE
 
            
 
                 This is a proceeding in arbitration brought by 
 
            Elizabeth Demartelaere, claimant, against Aluminum Company 
 
            of America, employer, hereinafter referred to as Alcoa, and 
 
            the Second Injury Fund, defendants, for workers' compensa
 
            tion benefits as a result of an alleged injury on April 23, 
 
            1990.  On September 18, 1992, a hearing was held on 
 
            claimant's petition and the matter was considered fully sub
 
            mitted at the close of this hearing.
 
            
 
                 The parties have submitted a prehearing report of con
 
            tested issues and stipulations which was approved and 
 
            accepted as a part of the record of this case at the time of 
 
            hearing.  The oral testimony and written exhibits received 
 
            during the hearing are set forth in the hearing transcript.
 
            
 
                 According to the prehearing report, the parties have 
 
            stipulated to the following matters:
 
            
 
                 1.  An employee-employer relationship existed between 
 
            claimant and Alcoa at the time of the alleged injury.
 
            
 
                 2.  Claimant is seeking temporary total or healing 
 
            period benefits for four separate periods of time as set 
 
            forth in the prehearing report and defendants agree that she 
 
            was not working during these periods of time. 
 
            
 
                 3.  If permanent partial disability benefits are 
 
            awarded, they shall begin as of April 15, 1991.
 
            
 
                 4.  At the time of injury claimant's gross rate of 
 
            weekly compensation was $511.23; she was married; and she 
 
            was entitled to five exemptions.  Therefore, claimant's 
 
            weekly rate of compensation is $328.82 according to the 
 
            Industrial Commissioner's published rate booklet for this 
 
            alleged injury.
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            
 
                 5.  It was stipulated that the providers of the 
 
            requested medical expenses would testify as to the reason
 
            ableness of their fees and defendants are not offering con
 
            trary evidence.  It was also agreed that the medical bills 
 
            submitted by claimant at the hearing are causally connected 
 
            to the medical condition upon which the claim herein is 
 
            based but that the issue of their causal connection to any 
 
            work injury remains an issue to be decided herein.
 
            
 
                                      ISSUES
 
            
 
                 The parties submitted the following issues for determi
 
            nation in this proceeding:
 
            
 
                   I.  Whether claimant received an injury arising out 
 
            of and in the course of employment; 
 
            
 
                  II. The extent of claimant's entitlement to disability 
 
            benefits.
 
            
 
                 III. The extent of claimant's entitlement to medical 
 
            benefits.
 
            
 
                                 FINDINGS OF FACT
 
            
 
                 Having heard the testimony and considered all of the 
 
            evidence, the deputy industrial commissioner finds as 
 
            follows:
 
            
 
                 A credibility finding is necessary to this decision as 
 
            defendants placed claimant's credibility at issue during 
 
            cross-examination as to the nature and extent of the injury 
 
            and disability.  From her demeanor while testifying, 
 
            claimant is found credible.
 
            
 
                 Claimant has worked for Alcoa since February 1980 and 
 
            continues to do so at the present time.  Although all of her 
 
            jobs involved manual labor, claimant's specific job assign
 
            ments have varied over the years.  At the time of the onset 
 
            of alleged injury herein, claimant was assigned to mopping 
 
            ingots of aluminum. This required using a hand mop.  
 
            Claimant explained that it took a lot of pushing on her arms 
 
            and shoulders to clean the ingots and remove the solvent.  
 
            Claimant's job also involved picking up scrap and throwing 
 
            spacers that were located between ingots.  Occasionally she
 
            
 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            was asked to operate an overhead crane requiring repetitive 
 
            use of her thumb and fingers and to operate a fork lift 
 
            truck.
 
            
 
                 On or about April 26, 1990, claimant began to experi
 
            ence pain and swelling in her wrists while working in her 
 
            job at Alcoa.  This was initially diagnosed as a 
 
            sprain/strain.  Duane L. Manlove, D.O., treated claimant 
 
            over the next few months under a diagnosis of tendonitis.  
 
            She was later treated by an internist and specialist in 
 
            rheumatology, D. Bruce Faber, D.O.  His initial diagnosis 
 
            was tendonitis of the right wrist and polyarthritis of the 
 
            left.  Claimant was also treated by A. D'Angelo, D.O., an 
 
            orthopedist who performed two release surgeries in January 
 
            and March 1991 upon a diagnosis of carpal tunnel syndrome.  
 
            These surgeries improved numbness in the wrists but the 
 
            chronic swelling persisted.  Since the initial symptoms in 
 
            her wrists, claimant has now developed chronic pain and 
 
            swelling in both of her arms and shoulders.  Finally, Dr. 
 
            Faber changed his diagnosis to rheumatoid arthritis.  The 
 
            doctor states that this diagnosis could not be made before 
 
            that time.  The majority of the physicians in this case 
 
            believe that the carpal tunnel syndrome was a part of this 
 
            ongoing rheumatoid arthritic disease process.  
 
            
 
                 There was no consensus or preponderance of medical 
 
            opinion as to what, if anything, precipitated or caused 
 
            claimant's rheumatoid arthritis condition.  Dr. Faber 
 
            believes that although there is no known cause of rheumatoid 
 
            arthritis, claimant's repetitive work at Alcoa 
 
            "precipitated" the condition and this condition has spread 
 
            like cancer throughout claimant's body.  The work related
 
            ness of the condition is also the view of Dr. Manlove, a 
 
            family physician.  The work-relatedness or precipitating 
 
            cause theory of Dr. Fabar is not supported by M. Paul 
 
            Strottmann, M.D., a professor of rheumatology at the Univer
 
            sity of Iowa Hospitals and Clinics.  The lack of a known 
 
            cause for claimant's arthritis was the view of Alcoa's medi
 
            cal director, Forrest Smith, M.D.  Given such a divergence 
 
            in opinion, it could not be found that the rheumatoid 
 
            arthritis was caused or precipitated by claimant's work.  
 
            
 
                 However, the greater weight of the evidence shows that 
 
            claimant indeed did suffer symptoms at work.  Given this 
 
            evidence, the medical opinions in this record support a 
 
            finding that claimant's symptoms were at least injuries in 
 
            the form of temporary aggravations of the rheumatoid 
 
            arthritic condition, whether or not the underlying arthritic 
 
            condition was itself work-related.  These aggravation 
 
            injuries resulted in the need for treatment in the form of 
 
            absences from work and other treatment modalities.  Given 
 
            the four absences from work, under the cumulative trauma 
 
            theory, there are four separate injury dates, not the one 
 
            alleged, each representing a time when pain compelled the 
 
            absence from work, namely April 26, 1990, August 2, 1990, 
 
            November 5, 1990 and January 19, 1991.  It is found that 
 
            each injury was a cause of the temporary absence from work 
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
            as listed in the prehearing report and all of the treatment 
 
            claimant has received following the initial April 26, 1990 
 
            injury.
 
            
 
                 The evidence pertaining to claimant's volleyball hand 
 
            injuries and her auto accident did not appear to impact upon 
 
            the finding of temporary aggravation injuries.  The fact 
 
            that she was off work for other reasons does not controvert 
 
            being off for worked-related causes.
 
            
 
                 As the injuries found above were only temporary aggra
 
            vations of the rheumatoid arthritis, they did not cause per
 
            manent impairment.  Certainly, the rheumatoid arthritis is 
 
            permanent and results in serious disability but as explained 
 
            above, this condition could not be found work-related.
 
            
 
                 Claimant has work restrictions against working more 
 
            than 40 hours per week; against performing reeling work and 
 
            throwing spacers more than 20 hours a week.  These restric
 
            tions are the basis of the claim herein for loss of earning 
 
            capacity. These restrictions were imposed by Dr. Fabar due 
 
            to the arthritic condition which was not found work-related.  
 
            Consequently, the restrictions could not be found 
 
            work-related.  Consequently, claimant has not shown that any 
 
            of her work injuries are a cause of permanent disability.
 
            
 
                 It is found that the treatments set forth in the 
 
            requested medical expenses are work-related.  Certainly, 
 
            treatment rendered by a licensed physician, absent contrary 
 
            evidence, should be found reasonable.
 
            
 
                                CONCLUSIONS OF LAW
 
            
 
                   I.  Claimant has the burden of proving by a prepon
 
            derance of the evidence that claimant received an injury 
 
            arising out of and in the course of employment.  The words 
 
            "out of" refer to the cause or source of the injury.  The 
 
            words "in the course of" refer to the time and place and 
 
            circumstances of the injury. See generally, Cedar Rapids 
 
            Community Sch. v. Cady, 278 N.W.2d 298 (Iowa 1979); Crowe v. 
 
            DeSoto Consol. Sch. Dist., 246 Iowa 402, 68 N.W.2d 63 
 
            (1955).  An employer takes an employee subject to any 
 
            active or dormant health impairments. A work connected 
 
            injury which more than slightly aggravates the condition is 
 
            considered to be a personal injury.  Ziegler v. U.S. Gypsum, 
 
            252 Iowa 613, 620, 106 N.W.2d 591 (1961), and cases cited 
 
            therein.
 
            
 
                 It is not necessary that claimant prove his disability 
 
            results from a sudden unexpected traumatic event.  It is 
 
            sufficient to show that the disability developed gradually 
 
            or progressively from work activity over a period of time.  
 
            McKeever Custom Cabinets v. Smith, 379 N.W.2d 368 (Iowa 
 
            1985).  The McKeever Court also held that the date of injury 
 
            in gradual injury cases is the time when pain prevents the 
 
            employee from continuing to work.  In McKeever the injury 
 
            date coincided with the time claimant was finally compelled 
 
            to give up his job.  This date was then used by the Court to 
 
            determine rate and the timeliness of claimant's claim under 
 
            Iowa Code section 85.26 and notice under Iowa Code section 
 

 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
            85.23.  
 
            
 
                 In the case sub judice, three additional injury dates 
 
            were selected in addition to the one alleged in the petition 
 
            under the McKeever doctrine.  This deputy commissioner may 
 
            choose an injury date in cumulative trauma cases different 
 
            that the those alleged in the petition.  McCoy v. Donaldson 
 
            Company, Inc., Case No 752670, Appeal Decision Filed April 
 
            28, 1989.  Such a finding does not prejudice any of the 
 
            defendants as the underlying facts are unchanged and issues 
 
            such as rate or untimeliness of the claim are not at issue.  
 
            
 
                  II.  Although claimant failed to establish that any of 
 
            her injuries at Alcoa resulted in permanent disability, 
 
            claimant did suffer injuries resulting in temporary absences 
 
            from work to recover from her injuries and is entitled to 
 
            temporary total disability benefits under Iowa Code section 
 
            85.33(1) for those absences as delineated in the prehearing 
 
            report.  Such benefits will be awarded accordingly.
 
            
 
                 III.  Pursuant to Iowa Code section 85.27, claimant is 
 
            entitled to payment of reasonable medical expenses incurred 
 
            for treatment of a work injury.  Claimant is entitled to an 
 
            order of reimbursement if he/she has paid those expenses.  
 
            Otherwise, claimant is entitled only to an order directing 
 
            the responsible defendants to make such payments directly to 
 
            the provider.  See Krohn v. State, 420 N.W.2d 463 (Iowa 
 
            1988).
 
            
 
                 In the case at bar, all of the requested expenses were 
 
            found to be reasonable treatment and caused by a work 
 
            injury.  Therefore, they are compensable and will be 
 
            awarded.
 
            
 
                  IV.  To invoke Second Injury Fund liability, the 
 
            injuries relied upon must cause permanent disability.  No 
 
            injury in this case was found to cause permanent partial 
 
            disability.  Therefore, there is no Fund liability.
 
            
 
                                      ORDER
 
            
 
                 1.  Defendant Alcoa shall pay to claimant temporary 
 
            total disability benefits from April 27, 1990 through May 
 
            12, 1990; from August 3, 1990 through October 1, 1990; from 
 
            November 6, 1990 through November 17, 1990 and from January 
 
            20, 1991 through April 14, 1991, at the rate of three 
 
            hundred twenty-eight and 82/l00 dollars ($328.82) per week.
 
            
 
                 2.  Defendant Alcoa shall pay the medical expenses 
 
            listed in the prehearing report.  Claimant shall be reim
 
            bursed for any of these expenses paid by him.  Otherwise, 
 
            defendants shall pay the provider directly along with any 
 
            lawful late payment penalties imposed upon the account by 
 
            the provider.
 
            
 
                 3.  Defendant Alcoa shall pay accrued weekly benefits 
 
            in a lump sum and shall receive credit against this award 
 
            for all benefits previously paid.
 
            
 
                 4.  Defendant Alcoa shall receive credit for previous 
 

 
            
 
            Page   6
 
            
 
            
 
            
 
            
 
            payments of benefits under a non-occupational group insur
 
            ance plan, if applicable and appropriate under Iowa Code 
 
            section 85.38(2), less any tax deductions from those pay
 
            ments.  
 
            
 
                 5.  Defendant Alcoa shall pay interest on weekly bene
 
            fits awarded herein as set forth in Iowa Code section 85.30. 
 
            
 
                 6.  Defendant Alcoa shall pay the costs of this action 
 
            pursuant to Rule 343 IAC 4.33, including reimbursement to 
 
            claimant for any filing fee paid in this matter.
 
            
 
                 7.  Defendant Alcoa shall file activity reports on the 
 
            payment of this award as requested by this agency pursuant 
 
            to Rule 343 IAC 3.1.
 
            
 
                 8.  The claim against the defendant, Second Injury 
 
            Fund, is dismissed with prejudice.
 
            
 
            
 
            
 
                 Signed and filed this ____ day of December, 1992.
 
            
 
            
 
            
 
            
 
            
 
                                          ______________________________
 
                                          LARRY P. WALSHIRE
 
                                          DEPUTY INDUSTRIAL COMMISSIONER
 
            
 
            Copies To:
 
            
 
            Mr. Michael W. Liebbe
 
            Attorney at Law
 
            P O Box 339
 
            Davenport, Iowa  52805-0339
 

 
            
 
            Page   7
 
            
 
            
 
            
 
            
 
            
 
            Mr. Thomas N. Kamp
 
            Attorney at Law
 
            600 Davenport Bank Bldg.
 
            Davenport, Iowa  52801
 
            
 
            Mr. Robert D. Wilson
 
            Assistant Attorney General
 
            Tort Claims Division
 
            Hoover State Office Bldg.
 
            Des Moines, Iowa  50319
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                          5-1803
 
                                          Filed December 7, 1992
 
                                          LARRY P. WALSHIRE
 
            before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            ELIZABETH DEMARTELAERE,       :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :       File No. 966344
 
            ALUMINUM COMPANY OF AMERICA,  :
 
                                          :    A R B I T R A T I O N
 
                 Employer,                :
 
                 Self-Insured,            :       D E C I S I O N
 
                                          :
 
            and                           :
 
                                          :
 
            SECOND INJURY FUND OF IOWA,   :
 
                                          :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
            
 
            5-1803
 
            
 
                  Non-precedential, extent of disability case.
 
            
 
 
            
 
            Page   1
 
            
 
            
 
            
 
            
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            EUGENE I. STONEKING,          :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :      File No. 966348
 
            WESTSIDE ERECTORS,            :
 
                                          :    A R B I T R A T I O N
 
                 Employer,                :
 
                                          :       D E C I S I O N
 
            and                           :
 
                                          :
 
            THE TRAVELERS COMPANIES,      :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
            
 
                              STATEMENT OF THE CASE
 
            
 
                 This is a proceeding in arbitration brought by Eugene 
 
            Stoneking, claimant, against Westside Erectors, employer, 
 
            and the Travelers, insurance carrier, defendants, for 
 
            workers' compensation benefits as a result of an alleged 
 
            injury on December 28, 1988.  On January 28, 1992, a hearing 
 
            was held on claimant's petition and the matter was consid
 
            ered fully submitted at the close of this hearing.
 
            
 
                                      issues
 
            
 
                 According to the hearing assignment order, the follow
 
            ing issues were to be heard:
 
            
 
                   I.  Whether claimant received an injury arising out 
 
            of and in the course of employment;
 
            
 
                  II.  The extent of claimant's entitlement to disabil
 
            ity benefits; and,
 
            
 
                 III.  The extent of claimant's entitlement to medical 
 
            benefits.
 
            
 
                                 findings of fact
 
            
 
                  Upon opening the hearing, no one appeared and conse
 
            quently there was no evidence offered.  Therefore, no find
 
            ings of fact could be made.
 
            
 
                    
 
            
 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            conclusions of law
 
            
 
                 Claimant has the burden of proving by a preponderance 
 
            of the evidence that claimant received an injury which arose 
 
            out of and in the course of employment.  The words "out of" 
 
            refer to the cause or source of the injury.  The words "in 
 
            the course of" refer to the time and place and circumstances 
 
            of the injury.  See Cedar Rapids Community Sch. v. Cady, 278 
 
            N.W.2d 298 (Iowa 1979); Crowe v. DeSoto Consol. Sch. Dist., 
 
            246 Iowa 402, 68 N.W.2d 63 (1955).  An employer takes an 
 
            employee subject to any active or dormant health impair
 
            ments, and a work connected injury which more than slightly 
 
            aggravates the condition is considered to be a personal 
 
            injury.  Ziegler v. United States Gypsum Co., 252 Iowa 613, 
 
            620, 106 N.W.2d 591 (1960) and cases cited therein.
 
            
 
                 No findings could be made as claimant failed to appear 
 
            for hearing.  As claimant had the burden of proof, the claim 
 
            is dismissed with prejudice.
 
            
 
                                      order
 
            
 
                 1.  Claimant's petition is dismissed with prejudice.
 
            
 
                 2.  Claimant shall pay the costs of this action pur
 
            suant to rule 343 IAC 4.33, including reimbursement to 
 
            claimant for any filing fee paid in this matter.
 
            
 
            
 
            
 
                 Signed and filed this ____ day of February, 1992.
 
            
 
            
 
            
 
            
 
            
 
                                          ______________________________
 
                                          LARRY P. WALSHIRE
 
                                          DEPUTY INDUSTRIAL COMMISSIONER
 
            
 
            Copies To:
 
            
 
            Mr. Matthew Glasson
 
            Attorney at Law
 
            Suite 206 Higley Bldg
 
            118 Third Ave SE
 
            Cedar Rapids  IA  52401
 
            
 
            Mr. Raymond R. Stefani, II
 
            Mr. Thomas F. Ochs
 
            Attorneys at Law
 
            200 American Bldg
 
            101 2nd St SE
 
            Cedar Rapids  IA  52401
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                          5-1803
 
                                          Filed February 5, 1992
 
                                          LARRY P. WALSHIRE
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            EUGENE I. STONEKING,          :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :      File No. 966348
 
            WESTSIDE ERECTORS,            :
 
                                          :    A R B I T R A T I O N
 
                 Employer,                :
 
                                          :       D E C I S I O N
 
            and                           :
 
                                          :
 
            THE TRAVELERS COMPANIES,      :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
            
 
            
 
            5-1803
 
            
 
                 Non-precedential, extent of disability case.
 
            
 
 
            
 
            Page   1
 
            
 
            
 
            
 
            
 
            
 
            
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            MARY KAY HEIDERSCHEIT,        :
 
                                          :
 
                 Claimant,                :         File No. 966355
 
                                          :
 
            vs.                           :      A R B I T R A T I O N
 
                                          :
 
            FDL FOODS, INC.,              :         D E C I S I O N
 
                                          :
 
                 Employer,                :
 
                 Self-Insured,            :
 
                 Defendant.               :
 
            ____________________________________________________________
 
            
 
                                   introduction
 
            
 
                 This is a proceeding in arbitration brought by Mary Kay 
 
            Heiderscheit, claimant, against FDL Foods, Inc., employer 
 
            and self-insured defendant, for benefits as a result of an 
 
            alleged injury that occurred on August 28, 1990.  A hearing 
 
            was held on April 8, 1992, in Dubuque, Iowa, and the case 
 
            was fully submitted at the close of the hearing.  Claimant 
 
            was represented by James P. Hoffman.  Defendant was 
 
            represented by James M. Heckmann.  The record consists of 
 
            the testimony of Mary Kay Heiderscheit, claimant; claimant's 
 
            exhibits 1 through 29; and, employer's exhibits 1 through 
 
            12.  Defendant submitted a description of disputes with the 
 
            prehearing report.  Both attorneys submitted excellent 
 
            post-hearing briefs.
 
            
 
                                      issues
 
            
 
                 The parties submitted the following issues for 
 
            determination at the time of the hearing.
 
            
 
                 Whether claimant sustained an injury on August 28, 
 
            1990, which arose out of and in the course of her employment 
 
            with employer.
 
            
 
                 Whether the injury was the cause of either temporary or 
 
            permanent disability.
 
            
 
                 Whether claimant is entitled to permanent disability 
 
            benefits and, if so, the extent of benefits to which she is 
 
            entitled.
 
            
 
                 Whether claimant is entitled to medical benefits under 
 
            Iowa Code section 85.27.
 
            
 
                               preliminary matters
 
            
 
                 The issues of notice pursuant to Iowa Code section 
 
            85.23 and statute of limitations pursuant to Iowa Code 
 
            section 85.26, which are shown as hearing issues on the 
 
            hearing assignment order, were withdrawn by defendant at the 
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            
 
            
 
            time of the hearing.
 
            
 
                                 findings of fact
 
            
 
                                      injury
 
            
 
                 It is determined that claimant did not sustain an 
 
            injury on August 28, 1990, which arose out of and in the 
 
            course of her employment with employer.
 
            
 
                 Claimant is a six-year employee of employer.  She 
 
            started to work on October 1, 1984.  The last day she worked 
 
            was the date of the alleged injury, August 28, 1990.  
 
            Claimant described and demonstrated the repetitive nature of 
 
            her work, marking and trimming loins with an eight-inch 
 
            knife.  Claimant estimated that she handled between 8,000 
 
            and 10,000 pieces of meat each day making as many as 4-5 
 
            slices per piece of meat.  She indicated it was not unusual 
 
            for her to make 20,000 manual maneuvers per day.  Claimant 
 
            testified that the work was very physical and strenuous and 
 
            required that she use both hands to make the cuts on some 
 
            occasions.
 
            
 
                 On August 28, 1990, claimant began to feel shocks which 
 
            she described as zings in both forearms that shot from her 
 
            elbows to her fingers.  The pain became unbearable and she 
 
            told the medical department she needed help immediately.  
 
            Three nurses debated about the proper course of action and 
 
            it was finally determined that claimant should see the 
 
            company physician when he visited the plant two days later.  
 
            Claimant testified that the pain was too severe; she could 
 
            not wait.  She left work and went to the Emergency Care 
 
            Clinic.  Claimant's testimony is corroborated by the 
 
            company's medical records.
 
            
 
                 The records of acute care show that claimant saw Joseph 
 
            G. Garrity, M.D., on August 28, 1990.  Dr. Garrity recorded 
 
            that the patient was a 35-year-old right-handed female who 
 
            did lifting of 250 pounds when she popped her right elbow.  
 
            She presented to the clinic with pain in the right elbow and 
 
            a sense of numbness along the ulnar aspect of the fifth 
 
            finger.  Dr. Garrity diagnosed a muscle tear, took claimant 
 
            off work, prescribed medications, and referred claimant to 
 
            the Sports Medicine Clinic.  Although claimant went to the 
 
            clinic on August 28, 1990, a handwritten note in the margin 
 
            shows "DOA 8-24-90."  Defendant points out that claimant was 
 
            lifting weights on that date and for several days prior to 
 
            August 24, 1990.
 
            
 
                 Claimant denied that she had lifted a 250-pound weight 
 
            or that she had told Dr. Garrity that she had lifted a 
 
            250-pound weight.  In any event, Dr. Garrity did not 
 
            attribute the muscle tear to claimant's employment.
 
            
 
                 Claimant saw Terence A. Alexander, M.D., at the Sports 
 
            Medicine Clinic on August 31, 1990.  Dr. Alexander recorded 
 
            that the patient initially injured herself while lifting 
 
            weights one week ago.  He wrote down that she was attempting 
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            
 
            
 
            to lift 250 pounds when she felt a snap over the 
 
            posteromedial aspect of the right elbow.  X-rays were 
 
            negative.  He diagnosed ulnar neuritis of the right elbow.  
 
            Dr. Alexander continued claimant off work, continued 
 
            medications, and ordered physical therapy.  On September 5, 
 
            1990, he said she had probable ulnar neuritis in both 
 
            elbows.  On September 26, 1990, Dr. Alexander changed his 
 
            diagnosis to bilateral ulnar nerve entrapment at the elbow.  
 
            He ordered an EMG and nerve conduction studies.
 
            
 
                 Claimant denied again that she had lifted 250 pounds or 
 
            that she had told Dr. Alexander that she had done so.  In 
 
            any event, however, Dr. Alexander did not relate her pain to 
 
            her work or her employment.
 
            
 
                 Claimant next saw Scott P. Schemmel, M.D., on October 
 
            18, 1990, who reported that the electrodiagnostic studies 
 
            were unremarkable.  Dr. Schemmel questioned whether using a 
 
            knife at work was related to her complaints.  He said she 
 
            could return to work but that she could not use a knife on 
 
            her job.  Dr. Schemmel saw claimant again on November 29, 
 
            1990, at which time he referred her to Thomas J. Hughes, 
 
            M.D.
 
            
 
                 Dr. Schemmel also testified by deposition on April 24, 
 
            1991, that he saw claimant on October 18, 1990, and November 
 
            29, 1990, with complaints of elbow pain and that he felt she 
 
            had irritation of her ulnar nerve at the elbow.  He said 
 
            claimant reported that use of a knife at work exacerbated 
 
            her symptoms.  However, in between his two appointments on 
 
            October 18, 1990, and November 29, 1990, she did not work 
 
            and her symptoms were essentially unchanged and she 
 
            continued to make the same complaints.  He said claimant's 
 
            symptoms were not significant enough to warrant surgery but 
 
            rather should be treated by limiting or modifying her 
 
            activities.  Dr. Schemmel further testified that claimant 
 
            did not have any permanent impairment based either on 
 
            objective findings or her own subjective complaints of 
 
            numbness and tingling.  He felt her symptoms would resolve 
 
            and he expected her to recover fully without any permanent 
 
            impairment.  Dr. Schemmel testified that the treatment which 
 
            claimant received was appropriate for her complaints, but he 
 
            was unable to testify that the treatment was caused or 
 
            necessitated by her employment.
 
            
 
                 Dr. Schemmel did not testify in his deposition that 
 
            claimant's complaints were caused by her employment for 
 
            employer, even though at the time of treatment he questioned 
 
            whether they were work related.
 
            
 
                 Claimant saw Dr. Hughes on December 13, 1990.  He 
 
            suggested that claimant see the company physician if she was 
 
            claiming a work-related injury, but she returned on January 
 
            3, 1991, stating her workers' compensation claim had been 
 
            denied.  Claimant did testify at hearing that her hands and 
 
            forearms are cold and she showed that they have a red color.  
 
            Dr. Hughes noted that her arms from her elbows down to her 
 
            fingers were cold, purple, sore, and that her elbows tingled 
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
            
 
            
 
            constantly.  Dr. Hughes ordered an EMG and nerve conduction 
 
            studies a second time.
 
            
 
                 Patrick R. Sterrett, M.D., reported on January 24, 
 
            1991, that the nerve conduction and EMG studies were normal 
 
            and that there had been no significant change since the 
 
            earlier studies performed in October of 1990.  No evidence 
 
            of nerve entrapment was identified.  Dr. Hughes gave 
 
            claimant an injection of Cortisone which she did not 
 
            tolerate well, but rather caused her a great deal of 
 
            discomfort for which she had to seek additional medical 
 
            treatment.
 
            
 
                 On February 1, 1991, Dr. Hughes recommended against 
 
            surgery.  He did not know of any additional physical therapy 
 
            modalities that would be beneficial and he had no further 
 
            additional treatment to offer her.
 
            
 
                 In a letter dated June 11, 1991, Dr. Hughes stated that 
 
            he did not have a diagnosis for claimant, but her symptoms 
 
            would lead one to believe that she had a bilateral ulnar 
 
            neuritis.  He said that her examination at the University of 
 
            Iowa Hospitals and Clinics "found such inconsistencies in 
 
            her findings that they were disinclined to render a 
 
            diagnosis or even offer any therapy."
 
            
 
                 Thus, Dr. Hughes did not relate claimant's complaints 
 
            to her work or her employment.
 
            
 
                 The University of Iowa Department of Neurology, more 
 
            specifically, Robert L. Rodnitzky, M.D., examined claimant 
 
            and wrote to Dr. Hughes on February 21, 1991.  Dr. Rodnitzky 
 
            stated that claimant was seen on February 11, 1991, and that 
 
            he found no evidence of peripheral or central nervous system 
 
            disease.  He too noted that claimant's symptoms had not 
 
            improved since stopping work.  He concluded his letter by 
 
            stating there was no evidence of peripheral nerve disease.  
 
            Spinal cord pathology had been excluded by a normal cervical 
 
            spine MRI.
 
            
 
                 Therefore, Dr. Rodnitzky did not find that claimant's 
 
            complaints were related to her employment nor did he find 
 
            any permanent impairment.
 
            
 
                 Defendant brought out on cross-examination that 
 
            claimant was interested in physical fitness and works out 
 
            about three times a week at the Century Health Club.  The 
 
            records of the Century Health Club indicate that claimant 
 
            has followed a rigorous program.  She demonstrated some of 
 
            the lifts and exercises at the time of hearing, some of 
 
            which employ the use of her hands, wrists and forearms and 
 
            also her elbows and shoulders.  Claimant stated that she 
 
            could perform these exercises and lifts but explained that 
 
            they were different from the repetitive use of a knife 
 
            several thousand times per day.  Claimant testified that the 
 
            doctors told her that weight lifting was good physical 
 
            exercise for her complaints.
 
            
 

 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
            
 
            
 
                 Claimant pointed out that her arms were more muscled 
 
            than most women because of her physical fitness pursuits.  
 
            Claimant pointed out that, although she had been restricted 
 
            several times from working with knives, no doctor has ever 
 
            restricted her from lifting weights.  Claimant also 
 
            acknowledged that, in her current job as a blackjack dealer 
 
            on the Casino Belle, she is able to use her fingers to deal 
 
            cards, but she added that sometimes she is not able to do 
 
            that because of the pain.
 
            
 
                 Although many persons who have performed less 
 
            repetitive work than claimant for shorter periods of time 
 
            have been determined to have suffered cumulative, 
 
            repetitive, overuse types of injuries, nevertheless, in this 
 
            case, none of the many doctors stated that claimant's 
 
            complaints were caused by her employment.
 
            
 
                 Wherefore, based upon the foregoing evidence, it is 
 
            determined that claimant did not sustain an injury on August 
 
            28, 1990, which arose out of and in the course of her 
 
            employment with employer.  Claimant was examined by Dr. 
 
            Garrity, Dr. Alexander, Dr. Schemmel, Dr. Hughes, and Dr. 
 
            Rodnitzky.  None of these doctors testified that claimant's 
 
            work was a cause of her complaints.
 
            
 
                 Since claimant did not prove an injury arising out of 
 
            and in the course of her employment with employer, then all 
 
            other issues in this case are moot.
 
            
 
                                conclusions of law
 
            
 
                 Wherefore, based upon the foregoing and following 
 
            principles of law, these conclusions of law are made.
 
            
 
                 That claimant did not sustain the burden of proof by a 
 
            preponderance of the evidence that she sustained an injury 
 
            on August 28, 1990, which arose out of and in the course of 
 
            her employment due to the repetitive use of her hands and 
 
            arms.  Iowa Code section 85.3(1).  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).
 
            
 
                                      order
 
            
 
                 THEREFORE, IT IS ORDERED:
 
            
 
                 That no amounts are owed by defendant to claimant for 
 
            either weekly benefits or medical benefits.
 
            
 
                 That the costs of this action, including the cost of 
 
            the attendance of the court reporter at hearing, are charged 
 
            to claimant pursuant to Iowa Code section 86.40 and rule 343 
 
            IAC 4.33.
 
            
 
                 That defendant file any claim activity reports 
 
            requested by this agency pursuant to rule 343 IAC 3.1.
 
            
 
                 Signed and filed this ______ day of ____________, 1992.
 

 
            
 
            Page   6
 
            
 
            
 
            
 
            
 
            
 
            
 
            
 
                 
 
            
 
                 
 
                 
 
                                          ______________________________
 
                                          WALTER R. McMANUS, JR.
 
                                          DEPUTY INDUSTRIAL COMMISSIONER
 
            
 
            Copies To:
 
            
 
            Mr. James P. Hoffman
 
            Attorney at Law
 
            Middle Road
 
            P.O. Box 1087
 
            Keokuk, Iowa  52632
 
            
 
            Mr. James M. Heckmann
 
            Attorney at Law
 
            One CyCare Plaza
 
            Suite 216
 
            Dubuque, Iowa  52001
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                               5-1108.50
 
                                               Filed April 21, 1992
 
                                               WALTER R. McMANUS, JR.
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            MARY KAY HEIDERSCHEIT,        :
 
                                          :
 
                 Claimant,                :         File No. 966355
 
                                          :
 
            vs.                           :      A R B I T R A T I O N
 
                                          :
 
            FDL FOODS, INC.,              :         D E C I S I O N
 
                                          :
 
                 Employer,                :
 
                 Self-Insured,            :
 
                 Defendant.               :
 
            ____________________________________________________________
 
            
 
            5-1108.50
 
            Claimant failed to prove that the repetitive work with her 
 
            hands and arms with a knife was the cause of an injury 
 
            arising out of and in the course of employment.  She was 
 
            seen by five doctors and none of them said her complaints 
 
            were caused by her work or her employment.  X-rays were 
 
            normal.  Two EMGs were normal.  An MRI was normal.  None of 
 
            the doctors found any permanent impairment caused by her 
 
            employment.
 
            
 
 
         
 
 
 
 
 
         before the iowa industrial commissioner
 
         _________________________________________________________________
 
                                       :
 
         LORENZA AMAYA,                :
 
                                       :
 
              Claimant,                :
 
                                       :
 
         vs.                           :
 
                                       :      File No. 966359
 
         PAK FABRICATORS, LTD.,        :
 
                                       :        A P P E A L
 
              Employer,                :
 
                                       :      D E C I S I O N
 
         and                           :
 
                                       :
 
         LIBERTY MUTUAL INSURANCE      :
 
         COMPANY,                      :
 
                                       :
 
              Insurance Carrier,       :
 
                                       :
 
         and                           :
 
                                       :
 
         SECOND INJURY FUND OF IOWA,   :
 
                                       :
 
              Defendants.              :
 
         _________________________________________________________________
 
         The record has been reviewed de novo on appeal.  The ruling of 
 
         the deputy filed October 16, 1991 is affirmed and is adopted as 
 
         the final agency action in this case.
 
         Signed and filed this ____ day of February, 1992.
 
         
 
         
 
         
 
         
 
                   ________________________________
 
                            BYRON K. ORTON
 
                       INDUSTRIAL COMMISSIONER
 
         
 
         Copies To:
 
         
 
         Mr. Sheldon M. Gallner
 
         Attorney at Law
 
         P.O. Box 1588
 
         Council Bluffs, Iowa 51502
 
         
 
         Mr. James M. Cosgrove
 
         Attorney at Law
 
         P.O. Box 1828
 
         Sioux City, Iowa 51102
 
         
 
         Ms. Shirley Ann Steffe
 
         Assistant Attorney General
 
         Tort Claims Division
 
         Hoover State Office Bldg.
 
         Des Moines, Iowa 50319
 
         
 
 
            
 
 
 
 
 
 
 
 
 
 
 
            9998
 
            Filed February 24, 1992
 
            Byron K. Orton
 
            HJW
 
            before the iowa industrial commissioner
 
            ____________________________________________________________
 
            _____
 
                                          :
 
            LORENZA AMAYA,                :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :      File No. 966359
 
            PAK FABRICATORS, LTD.,        :
 
                                          :        A P P E A L
 
                 Employer,                :
 
                                          :      D E C I S I O N
 
            and                           :
 
                                          :
 
            LIBERTY MUTUAL INSURANCE      :
 
            COMPANY,                      :
 
                                          :
 
                 Insurance Carrier,       :
 
                                          :
 
            and                           :
 
                                          :
 
            SECOND INJURY FUND OF IOWA,   :
 
                                          :
 
                 Defendants.              :
 
            ____________________________________________________________
 
            _____
 
            
 
            9998
 
            
 
                 Summary affirmance of deputy's ruling filed October 16, 
 
            1991.
 
            
 
 
            
 
            Page   1
 
            
 
            
 
            
 
            
 
            before the iowa industrial commissioner
 
            ____________________________________________________________
 
            _____
 
                                            :
 
            JAMES W. DEMRO,                 :
 
                                            :
 
                 Claimant,                  :       File No. 966361
 
                                            :
 
            vs.                             :          A P P E A L
 
                                            :
 
            JOHN DEERE WATERLOO WORKS,      :        D E C I S I O N
 
                                            :
 
                 Employer,                  :
 
                 Self-Insurance,            :
 
                 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.
 
            issues
 
            The issue on appeal is:  Whether claimant has proved that he 
 
            sustained an occupational hearing loss arising out of and in 
 
            the course of his employment.
 
            findings of fact
 
            The findings of fact contained in the proposed agency 
 
            decision filed July 6, 1992 are adopted as set forth below.  
 
            Segments designated by brackets ([ ]) indicate language that 
 
            is in addition to the language of the proposed agency 
 
            decision.
 
            
 
                 James Demro, 52 years of age at hearing, took 
 
            employment with John Deere Waterloo Works ("Deere") in 1959 
 
            at age 19.  Prior to 1959, claimant had very little work 
 
            history and had not experienced hearing problems.
 
            
 
                 John Deere is a well-known manufacturer of heavy 
 
            equipment, including farm tractors and the like.
 
            
 
                 For the first ten months of this employment, claimant 
 
            worked in "Department 91" located in the foundry and mill 
 
            area.  This environment was so noisy that workers could 
 
            converse only by shouting into one another's ears.  Claimant 
 
            used wadded up toilet paper as hearing protective devices 
 
            (none were provided by Deere at this early date), but 
 
            developed tinnitus bilaterally after approximately two 
 
            months.  This condition and hearing loss in general has 
 
            progressed over the last 33 years.
 
            
 
                 Claimant also worked in Department 91 for approximately 
 
            ten months in 1961 and was subjected to similar noise.  All 
 
            departments of the Deere plant--this is, after all, a heavy 
 
            manufacturing facility--entail loud noise, but nothing so 
 
            extreme as Department 91.  [(Tr., p. 12)]
 
            
 
                 Defendant eventually provided hearing protectors, but 
 
            use thereof was not mandatory until some three months before 
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            Mr. Demro retired after 30 years of service on July 31, 
 
            1989.  [Claimant testified that when he worked in a noisy 
 
            department he wore the hearing protection devices that 
 
            defendant provided.  (Tr., p. 16, ll. 7-11)]  Claimant used 
 
            the protective devices whenever he was in an especially 
 
            noisy department, carrying them in his pocket or tool box.  
 
            [Claimant thought the mill room in which he last worked in 
 
            1961 was the biggest cause of his hearing loss.  (Tr., pp. 
 
            18-19)]  Nonetheless, his hearing progressively deteriorated 
 
            over the years.
 
            
 
                 Claimant has done a great deal of hunting over the 
 
            years with a bow, .22 caliber rifle and shotgun.  The bow 
 
            and rifle are relatively quiet.  On average, claimant shoots 
 
            perhaps 75-100 shotgun blasts per year.  He does not wear 
 
            hearing protective devices while doing so.  Mr. Demro 
 
            conceded that he has not discussed his hunting activities 
 
            with medical practitioners.
 
            
 
                 The record contains a number of audiograms.  The 
 
            earliest of these, in March 1972, shows the following 
 
            hearing thresholds:
 
            
 
                                Left Ear        Right Ear
 
            
 
                  500 Hz          15               15
 
                 1000 Hz          10               10
 
                 2000 Hz          35               10
 
                 3000 Hz          75               60
 
            
 
                 [Applying the statutory formula in Iowa Code section 
 
            85B.9 to this test results in a binaural hearing loss of 
 
            2.1875 percent.]
 
            
 
                 An audiogram on August 29, 1983, measured the following 
 
            thresholds:
 
            
 
                                Left Ear        Right Ear
 
            
 
                  500 Hz          15               10
 
                 1000 Hz          25               10
 
                 2000 Hz          65               60
 
                 3000 Hz          80               70
 
            
 
                 [Applying the statutory formula in Iowa Code section 
 
            85B.9 to this test results in a binaural hearing loss of 
 
            20.9375 percent.]
 
            
 
                 An audiogram on September 20, 1988, showed:
 
            
 
                                Left Ear        Right Ear
 
            
 
                  500 Hz          25               25
 
                 1000 Hz          40               45
 
                 2000 Hz          85               65
 
                 3000 Hz          90               85
 
            
 
                 [Applying the statutory formula in Iowa Code section 
 
            85B.9 to this test results in a binaural hearing loss of 
 
            46.25 percent.]
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            
 
                 As noted, claimant retired on July 31, 1989.  On August 
 
            25, 1989, he notified defendant by counsel that he believed 
 
            he had incurred occupational hearing loss and requested 
 
            information as to the dates, duration and intensities of 
 
            noise to which he had been subjected.
 
            
 
                 An audiogram on September 12, 1989, showed the 
 
            following thresholds:
 
            
 
                                Left Ear        Right Ear
 
            
 
                  500 Hz          30               25
 
                 1000 Hz          40               45
 
                 2000 Hz          80               70
 
                 3000 Hz          90               85
 
            
 
                 [Applying the statutory formula in Iowa Code section 
 
            85B.9 to this test results in a binaural hearing loss of 
 
            47.8125 percent.]
 
            
 
                 Claimant underwent another audiogram on November 1, 
 
            1990.  However, this audiogram did not measure response at 
 
            3000 Hz (although thresholds for left and right ear 
 
            respectively were 80 and 70 decibels at 2000 Hz, and in 
 
            excessive both of 100 and 90 decibels at 4000 Hz).
 
            
 
                 Jose C. Aguiar, M.D., has concluded that claimant 
 
            suffers a noise-induced sensorineural hearing loss and that 
 
            it is reasonable and probable that his exposure to excessive 
 
            industrial noise from 1976 to 1989 caused the same.
 
            [The record indicates that claimant was seen by R.V. Corton 
 
            on August 29, 1983 and C.D. Bendixen, M.D., on September 20, 
 
            1988; December 13, 1988 and May 15, 1989 (Ex. A, p. 9).  
 
            Corton expressed no opinion on the cause of claimant's 
 
            hearing loss.  Dr. Bendixen suspected that the continuing 
 
            loss was familial.]
 
            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).
 
            
 
                 The claimant has the burden of proving by a 
 
            preponderance of the evidence that the injury is a proximate 
 
            cause of the disability on which the claim is based.  A 
 
            cause is proximate if it is a substantial factor in bringing 
 
            about the result; it need not be the only cause.  A 
 
            preponderance of the evidence exists when the causal 
 
            connection is probable rather than merely possible.  
 
            Blacksmith v. All-American, Inc., 290 N.W.2d 348 (Iowa 
 
            1980); Holmes v. Bruce Motor Freight, Inc., 215 N.W.2d 296 
 
            (Iowa 1974).
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
            
 
                 The question of causal connection is essentially within 
 
            the domain of expert testimony.  The expert medical evidence 
 
            must be considered with all other evidence introduced 
 
            bearing on the causal connection between the injury and the 
 
            disability.  The weight to be given to any expert opinion is 
 
            determined by the finder of fact and may be affected by the 
 
            accuracy of the facts relied upon by the expert as well as 
 
            other surrounding circumstances.  The expert opinion may be 
 
            accepted or rejected, in whole or in part.  Sondag v. Ferris 
 
            Hardware, 220 N.W.2d 903 (Iowa 1974); Anderson v. Oscar 
 
            Mayer & Co., 217 N.W.2d 531 (Iowa 1974); Bodish v. Fischer, 
 
            Inc., 257 Iowa 516, 133 N.W.2d 867 (1965).
 
            
 
                 Occupational hearing loss is defined in Iowa Code 
 
            section 85B.4.  Under the section, an occupational hearing 
 
            loss is a permanent sensorineural loss of hearing in one or 
 
            both ears in excess of 25 decibels which arose out of and in 
 
            the course of the employment and was caused by prolonged 
 
            exposure to excessive noise levels.  An excessive noise 
 
            level is sound capable of producing occupational hearing 
 
            loss or sound exceeding the time and intensities listed in 
 
            the table in Iowa Code section 85B.5 or both.  See Muscatine 
 
            County v. Morrison, 409 N.W.2d 685 (Iowa 1987).
 
            
 
                 The table in Iowa Code section 85B.5 then, is not the 
 
            minimum standard defining an excessive noise level in 
 
            section 85B.4(2).  The table in section 85B.5 lists noise 
 
            level times and intensities which, if met, will be 
 
            presumptively excessive noise levels of which the employer 
 
            must inform the employee.  See Muscatine County v. Morrison, 
 
            409 N.W.2d 685 (Iowa 1987).
 
            
 
                 Claimant clearly has a hearing loss.  The parties 
 
            dispute whether this hearing loss arose out of and in the 
 
            course of claimant's employment with defendant.  It is 
 
            claimant's burden to establish entitlement to benefits.  
 
            Claimant's own testimony indicates that he thought his work 
 
            environment was the noisiest prior to leaving Department 91 
 
            in 1961.  A test of claimant's hearing loss in March 1972 
 
            showed a binaural hearing loss of 2.1875 percent.  Claimant 
 
            testified that other areas were he worked were not as noisy 
 
            as Department 91.  He also testified that he would wear 
 
            hearing protection devices when it was noisy in the other 
 
            work areas.  (It is not clear from the record when claimant 
 
            began wearing the hearing protection devices.)  Despite 
 
            working in less noisy areas and wearing hearing protection 
 
            devices claimant's binaural hearing loss increased to 
 
            20.9375 percent in 1983 and 46.25 percent in 1988.  It 
 
            further increased to 47.8125 percent in September 1989, six 
 
            weeks after claimant had retired.  Claimant's own testimony 
 
            does not support his assertion that the work caused his 
 
            hearing loss.
 
            
 
                 Dr. Aguiar concluded that claimant's employment caused 
 
            claimant's hearing loss.  However, that opinion was based 
 
            upon a history of excessive industrial noise from 1976 to 
 
            1989 which is inconsistent with claimant's testimony.  Also, 
 
            Dr. Aguiar was not aware of claimant's use of firearms.  
 
            Therefore, Dr. Aguiar's opinion is based upon an inaccurate 
 

 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
            history and can be given little, if any, weight.
 
            
 
                 Evidence in this case cannot be reconciled with 
 
            claimant's burden of proving entitlement to benefits.  It is 
 
            not the responsibility of the industrial commissioner to 
 
            rule out all possible causes of compensable injury other 
 
            than employment.  It is claimant's responsibility to prove 
 
            that his work was the probable cause of his alleged 
 
            disability.  Claimant has failed to meet his burden of proof 
 
            in this case.
 
            
 
                 The instant case can be distinguished from Furry v. 
 
            John Deere Dubuque Works of Deere & Co., File No. 760430 
 
            (Appeal Decision, November 12, 1986).  In Furry, the 
 
            audiograms showed a steady increase of binaural hearing loss 
 
            form 1976 to 1984 (when employees were required to wear 
 
            hearing protective devices).  None of Furry's audiograms 
 
            were conducted after 1984.  In the instant case it appears 
 
            that some of the audiograms may have been conducted after 
 
            claimant began wearing hearing protective devices.  The 
 
            instant case can also be distinguished from the facts of 
 
            John Deere Dubuque Works v. Meyers, 410 N.W.2d 255 (Iowa 
 
            1987).  In Meyers there was evidence of noise exposure as 
 
            high as 90-105 dba and later 78-89 dba.  Also, in Meyers the 
 
            court at 410 N.W.2d 255, 156 stated:  "At Deere's referral, 
 
            he was examined by an otolaryngologist on March 18, 1982, 
 
            who diagnosed high-frequency sensorineural hearing loss 
 
            related to noise exposure at work."  (Emphasis added)
 
            WHEREFORE, the decision of the deputy is reversed.
 
            order
 
            THEREFORE, it is ordered:
 
            That claimant shall take nothing from these proceedings.
 
            That defendant shall pay the costs of this matter including 
 
            the transcription of the hearing.  
 
            Signed and filed this ____ day of December, 1992.
 
            
 
            
 
            
 
            
 
                      ________________________________
 
                               BYRON K. ORTON
 
                          INDUSTRIAL COMMISSIONER
 
            
 
            Copies To:
 
            
 
            Mr. John S. Pieters
 
            Attorney at Law
 
            2315 Falls Ave., Ste 3
 
            Waterloo, Iowa 50701
 
            
 
            Mr. John W. Rathert
 
            Attorney at Law
 
            P.O. Box 178
 
            Waterloo, Iowa 50704
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                          1402.30; 2208
 
                                          Filed December 30, 1992
 
                                          BYRON K. ORTON
 
                                          DRR
 
            before the iowa industrial commissioner
 
            ____________________________________________________________
 
            _____
 
                                            :
 
            JAMES W. DEMRO,                 :
 
                                            :
 
                 Claimant,                  :       File No. 966361
 
                                            :
 
            vs.                             :          A P P E A L
 
                                            :
 
            JOHN DEERE WATERLOO WORKS,      :        D E C I S I O N
 
                                            :
 
                 Employer,                  :
 
                 Self-Insurance,            :
 
                 Defendant.                 :
 
            ____________________________________________________________
 
            _____
 
            
 
            
 
            1402.30; 2208
 
            Claimant failed to prove that his hearing loss was out of 
 
            and in the course of his employment.  The only medical 
 
            opinion on causation was based on an inaccurate history.  
 
            Claimant's testimony regarding noise level and alleged 
 
            hearing loss indicated that the hearing loss occurred after 
 
            claimant began working in a less noisy environment and 
 
            started wearing hearing protective devices.  Claimant's 
 
            audiograms reflected a continuing hearing loss after 
 
            claimant retired.
 
            
 
 
            
 
            
 
            
 
            
 
            
 
            
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
                                          :
 
            JAMES W. DEMRO,               :
 
                                          :
 
                 Claimant,                :         File No. 966361
 
                                          :
 
            vs.                           :      A R B I T R A T I O N
 
                                          :
 
            JOHN DEERE WATERLOO WORKS,    :         D E C I S I O N
 
                                          :
 
                 Employer,                :
 
                 Self-Insured,            :
 
                 Defendant.               :
 
            ____________________________________________________________
 
            
 
                              STATEMENT OF THE CASE
 
            
 
                 Claimant James W. Demro filed a petition in arbitration 
 
            against his former self-insured employer, John Deere 
 
            Waterloo Works, upon his allegation of an occupational 
 
            hearing loss sustained during the course of that employment.  
 
            He now seeks benefits under the Iowa Workers' Compensation 
 
            Act.
 
            
 
                 This cause came on for hearing in Waterloo, Iowa, on 
 
            June 19, 1992.  The record consists of joint exhibits A 
 
            through C and claimant's testimony.
 
            
 
                                      ISSUES
 
            
 
                 The parties have stipulated to the existence of an 
 
            employment relationship between claimant and employer at the 
 
            time of the alleged injury and to the rate of compensation.  
 
            Claimant does not seek medical benefits.
 
            
 
                 Issues presented for resolution include:
 
            
 
                 1.  Whether claimant sustained an occupational hearing 
 
            loss arising out of and in the course of his employment with 
 
            John Deere Waterloo Works on July 31, 1989; and, if so,
 
            
 
                 2.  The extent thereof.
 
            
 
                                 FINDINGS OF FACT
 
            
 
                 The undersigned deputy industrial commissioner finds:
 
            
 
                 James Demro, 52 years of age at hearing, took 
 
            employment with John Deere Waterloo Works ("Deere") in 1959 
 
            at age 19.  Prior to 1959, claimant had very little work 
 
            history and had not experienced hearing problems.
 
            
 
                 John Deere is a well-known manufacturer of heavy 
 
            equipment, including farm tractors and the like.
 
            
 
                 For the first ten months of this employment, claimant 
 
            worked in "Department 91" located in the foundry and mill 
 
            area.  This environment was so noisy that workers could 
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            converse only by shouting into one another's ears.  Claimant 
 
            used wadded up toilet paper as hearing protective devices 
 
            (none were provided by Deere at this early date), but 
 
            developed tinnitus bilaterally after approximately two 
 
            months.  This condition and hearing loss in general has 
 
            progressed over the last 33 years.
 
            
 
                 Claimant also worked in Department 91 for approximately 
 
            ten months in 1961 and was subjected to similar noise.  All 
 
            departments of the Deere plant--this is, after all, a heavy 
 
            manufacturing facility--entail loud noise, but nothing so 
 
            extreme as Department 91.
 
            
 
                 Defendant eventually provided hearing protectors, but 
 
            use thereof was not mandatory until some three months before 
 
            Mr. Demro retired after 30 years of service on July 31, 
 
            1989.  Claimant used the protective devices whenever he was 
 
            in an especially noisy department, carrying them in his 
 
            pocket or tool box.  Nonetheless, his hearing progressively 
 
            deteriorated over the years.
 
            
 
                 Claimant has done a great deal of hunting over the 
 
            years with a bow, .22 caliber rifle and shotgun.  The bow 
 
            and rifle are relatively quiet.  On average, claimant shoots 
 
            perhaps 75-100 shotgun blasts per year.  He does not wear 
 
            hearing protective devices while doing so.  Mr. Demro 
 
            conceded that he has not discussed his hunting activities 
 
            with medical practitioners.
 
            
 
                 The record contains a number of audiograms.  The 
 
            earliest of these, in March 1972, shows the following 
 
            hearing thresholds:
 
            
 
                                Left Ear        Right Ear
 
            
 
                  500 Hz          15               15
 
                 1000 Hz          10               10
 
                 2000 Hz          35               10
 
                 3000 Hz          75               60
 
            
 
                 An audiogram on August 29, 1983, measured the following 
 
            thresholds:
 
            
 
                                Left Ear        Right Ear
 
            
 
                  500 Hz          15               10
 
                 1000 Hz          25               15
 
                 2000 Hz          65               10
 
                 3000 Hz          80               60
 
            
 
                 An audiogram on September 20, 1988, showed:
 
            
 
                                Left Ear        Right Ear
 
            
 
                  500 Hz          25               25
 
                 1000 Hz          40               45
 
                 2000 Hz          85               65
 
                 3000 Hz          90               85
 
            
 
                 As noted, claimant retired on July 31, 1989.  On August 
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            25, 1989, he notified defendant by counsel that he believed 
 
            he had incurred occupational hearing loss and requested 
 
            information as to the dates, duration and intensities of 
 
            noise to which he had been subjected.
 
            
 
                 An audiogram on September 12, 1989, showed the 
 
            following thresholds:
 
            
 
                                Left Ear        Right Ear
 
            
 
                  500 Hz          30               25
 
                 1000 Hz          40               45
 
                 2000 Hz          80               70
 
                 3000 Hz          90               85
 
            
 
                 Claimant underwent another audiogram on November 1, 
 
            1990.  However, this audiogram did not measure response at 
 
            3000 Hz (although thresholds for left and right ear 
 
            respectively were 80 and 70 decibels at 2000 Hz, and in 
 
            excessive both of 100 and 90 decibels at 4000 Hz).
 
            
 
                 Jose C. Aguiar, M.D., has concluded that claimant 
 
            suffers a noise-induced sensorineural hearing loss and that 
 
            it is reasonable and probable that his exposure to excessive 
 
            industrial noise from 1976 to 1989 caused the same.
 
            
 
                                CONCLUSIONS OF LAW
 
            
 
                 Iowa Code section 85B.4 provides:
 
            
 
                 1.  "Occupational hearing loss" means a permanent 
 
                 sensorineural loss of hearing in one or both ears 
 
                 in excess of twenty-five decibels if measured from 
 
                 international standards organization or American 
 
                 national standards institute zero reference level, 
 
                 which arises out of and in the course of 
 
                 employment caused by prolonged exposure to 
 
                 excessive noise levels.
 
            
 
                 In the evaluation of occupational hearing loss, 
 
                 only the hearing levels at the frequencies of five 
 
                 hundred, one thousand, two thousand, and three 
 
                 thousand Hertz shall be considered.
 
            
 
                 2.  "Excessive noise level" means sound capable of 
 
                 producing occupational hearing loss.
 
            
 
                 Chapter 85B also sets forth a table of noise 
 
            intensities and times to be deemed "excessive."  However, 
 
            the legislature did not intend to rule out hearing losses 
 
            caused by excessive noise below these exposure levels, which 
 
            merely provide presumptive evidence of excessive noise as a 
 
            matter of simplifying prior problems of proof.  Muscatine 
 
            County v. Morrison, 409 N.W.2d 685 (Iowa 1987).
 
            
 
                 Claimant clearly has a hearing loss.  The parties 
 
            dispute whether it is occupational in nature; that is, did 
 
            it arise out of and in the course of employment.  It is 
 
            claimant's burden of proof to establish entitlement to 
 
            benefits.  This decision holds that he has met that burden.  
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
            Claimant's hearing problems began during his early exposure 
 
            to excessive noise in 1959 (and again in 1961).  An argument 
 
            can be made that the "date of the injury" occurred at that 
 
            remote time under 85B.8.  That section provides that the 
 
            date of the injury shall be the occurrence of one of the 
 
            following events:
 
            
 
                 1.  Transfer from excessive noise level employment 
 
                 by an employer.
 
            
 
                 2.  Retirement.
 
            
 
                 3.  Termination of the employer-employee 
 
                 relationship.
 
            
 
                 Departments in which claimant worked after 1961 were 
 
            less noisy than in the foundry area.  Nonetheless, claimant 
 
            has indicated that other areas of the plant were also noisy, 
 
            even if less so.  Defendant must agree that there is some 
 
            danger, since hearing protective devices were furnished and 
 
            eventually made mandatory, even though claimant no longer 
 
            worked in the foundry.  As claimant's hearing loss has 
 
            proven progressive in nature, it is held that his exposure 
 
            to excessive noise continued after 1961.  The date of injury 
 
            for purposes of this decision is based on claimant's 
 
            retirement on July 31, 1989.
 
            
 
                 There is a weakness of proof.  Dr. Aguiar, who is the 
 
            only practitioner to have opined as to causation, was not 
 
            aware of claimant's hunting activities.  Still, given the 
 
            dramatic onset of bilateral tinnitus in 1959 and continued 
 
            exposure to a noisy work environment, and considering that 
 
            claimant's exposure to noisy shotgun explosions is limited 
 
            to 75 or 100 events per year, it is held that excessive 
 
            noise levels at work contributed substantially to Mr. 
 
            Demro's hearing loss.
 
            
 
                 Under section 85B.9, a statutory formula is set forth 
 
            to measure hearing loss.  The statute requires that the 
 
            audiogram having the lowest threshold of loss following 
 
            notice of an occupational hearing loss claim shall be used 
 
            to calculate occupational hearing loss.  Notice of this 
 
            claim was made on August 25, 1989.  The September 12, 1989, 
 
            audiogram must be used, since other audiograms did not 
 
            measure hearing loss at 3000 Hz.  As will be recalled, 
 
            section 85B.4 requires that hearing losses "only" at the 
 
            four specified frequencies shall be considered.
 
            
 
                 Calculations of hearing loss for the September 12, 
 
            1989, audiogram appear in exhibit A, page 11.  The 
 
            calculations set forth in that exhibit are accurate and 
 
            reflect a total binaural hearing loss within the meaning of 
 
            section 85B.9 of 47.8125 percent.  Maximum compensation for 
 
            occupational hearing loss is 175 weeks for total loss.  
 
            Partial occupational hearing loss is payable in the same 
 
            ratio as the binaural loss bears to 100 percent.  One 
 
            hundred seventy-five weeks multiplied by 47.8125 percent 
 
            equals 83.67 weeks.  Claimant shall be awarded those 
 
            benefits at the stipulated rate.
 
            
 

 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
                                      ORDER
 
            
 
                 THEREFORE, IT IS ORDERED:
 
            
 
                 Defendant shall pay unto claimant eighty-three point 
 
            six seven (83.67) weeks of permanent partial disability 
 
            benefits at the stipulated rate of four hundred two and 
 
            58/100 dollars ($402.58) per week commencing July 31, 1989.
 
            
 
                 As all benefits have accrued, they shall be paid in a 
 
            lump sum together with statutory interest pursuant to Iowa 
 
            Code section 85.30.
 
            
 
                 Costs are assessed to defendant pursuant to rule 343 
 
            IAC 4.33.
 
            
 
                 Defendant shall file a claim activity report showing 
 
            compliance with this decision pursuant to rule 343 IAC 3.1.
 
            
 
                 Signed and filed this ______ day of ____________, 1992.
 
            
 
                 
 
            
 
                 
 
                 
 
                                          ______________________________
 
                                          DAVID RASEY
 
                                          DEPUTY INDUSTRIAL COMMISSIONER
 
            
 
            Copies To:
 
            
 
            Mr. John S. Pieters
 
            Attorney at Law
 
            2315 Falls Avenue, Suite 3
 
            Waterloo, Iowa  50701
 
            
 
            Mr. John W. Rathert
 
            Attorney at Law
 
            620 Lafayette Street
 
            P.O. Box 178
 
            Waterloo, Iowa  50704
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                                   5-2208
 
                                                   Filed July 6, 1992
 
                                                   DAVID RASEY
 
 
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
            JAMES W. DEMRO,     
 
                      
 
                 Claimant,                          File No. 966361
 
                      
 
            vs.                                  A R B I T R A T I O N
 
                      
 
            JOHN DEERE WATERLOO WORKS,              D E C I S I O N
 
                      
 
                 Employer, 
 
                 Self-Insured,  
 
                 Defendant.     
 
            ____________________________________________________________
 
            
 
            5-2208
 
            Occupational hearing loss benefits were awarded.
 
            
 
 
            
 
            Page   1
 
            
 
            
 
            
 
            
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            JOAN BOATWRIGHT,              :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :      File No. 966362
 
            THE DIAL CORPORATION,         :
 
                                          :     A R B I T R A T I O N
 
                 Employer,                :
 
                                          :       D E C I S I O N
 
            and                           :
 
                                          :
 
            Self-Insured,                 :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
                              statement of the case
 
            
 
                 This is a proceeding in arbitration upon the petition 
 
            of claimant, Joan Boatwright, against The Dial Corporation, 
 
            self-insured employer, defendant.  The case was heard on 
 
            April 30, 1992, at the Des Moines County Courthouse, in 
 
            Burlington, Iowa.  The record consists of the testimony of 
 
            claimant.  Additionally, the record consists of the 
 
            testimonies of Miley Boatwright, daughter; Rick Danaer, 
 
            industrial relations and resources manager; and, Marge 
 
            Harely, personnel clerk.  The record is also comprised of 
 
            joint exhibits 1-26.
 
            
 
                                      issue
 
            
 
                 The sole issue to be determined is whether claimant is 
 
            entitled to any permanent partial disability benefits, and 
 
            if so, the nature and extent of those benefits.
 
            
 
                                 findings of fact
 
            
 
                 The deputy, having heard the testimony and considered 
 
            all the evidence, finds:
 
            
 
                 Claimant is a 48-year-old married woman with three 
 
            children.  She dropped out of school in the eleventh grade 
 
            but at the time of the hearing, claimant had obtained her 
 
            GED.
 
            
 
                 Claimant has worked at Armour Dial for the past fifteen 
 
            years as a production worker.  Approximately five years ago, 
 
            claimant worked in the manufacturing department where she 
 
            packed Vienna sausages into a can.  Since 1989, claimant has 
 
            worked as a relief operator.  This is a job which requires 
 
            her to perform all types of functions, and to operate 
 
            various machines.  Claimant had injured herself on one of 
 
            the machines on January 12, 1990.  She was engaging in 
 
            repetitive motions where she felt compelled to push and pull 
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            pallets using her left shoulder.  Claimant had experienced 
 
            pain and discomfort.
 
            
 
                 Claimant sought treatment from a treating physician, 
 
            Neville Crenshaw, D.O.  He, in turn, referred claimant to 
 
            Robert L. Grubb, M.D., a neurologist with the Washington 
 
            University School of Medicine.
 
            
 
                 Dr. Grubb requested an MRI of the cervical spine.  The 
 
            test was performed on March 2, 1990.  It revealed:  
 
            "herniation of the C6-7 disc which is midline and to the 
 
            left." (Ex. 9, p. 25)
 
            
 
                 On March 16, 1990, Dr. Grubb performed "an anterior 
 
            cervical discectomy at C6-7 and fusion with a piece of bank 
 
            bone." (Ex. 11, p. 28-29)
 
            
 
                 Subsequent to the surgery, claimant participated in 
 
            physical therapy three times a week.  She progressed, 
 
            however, she was involved in a motor vehicle accident on Jun 
 
            7, 1990.  The accident was unrelated to any work injury.
 
            
 
                 On June 9, 1990, claimant saw Dr. Grubb again.  She 
 
            reported to the neurologist that:
 
            
 
                 Left arm pain had cleared, was still having some 
 
                 neck and left shoulder pain but this was improved 
 
                 also.  Since accident has had increase in neck and 
 
                 left shoulder pain and complains of aching pain in 
 
                 medial left upper arm which is different from her 
 
                 preoperative pain.  AP and lateral cervical spine 
 
                 film today shows satisfactorily alignment of 
 
                 cervical spine and further fusion of C6 and C7.  
 
                 No fracture seen.  Examination today shows that 
 
                 she has a good range motion of her neck except for 
 
                 some limitation of left turning of her neck.  No 
 
                 focal, motor or sensory deficit.
 
            
 
            (Ex. 25, p. 65)
 
            
 
                 Several months later claimant saw Dr. Grubb again.  A 
 
            second MRI was requested.  According to Dr. Grubb's office 
 
            notes of November 17, 1990, he opined:
 
            
 
                 MRI scan of cervical spine done in Keokuk on 
 
                 9/20/90 was reviewed.  There was no evidence of 
 
                 herniated disc and foramina were widely patent.  
 
                 C6-7 operative site showed postoperative changes, 
 
                 no evidence of recurrent disc at this level.  
 
                 Patient was told to try to use intermittent 
 
                 cervical halter traction at home with 7-10 lbs. of 
 
                 weight four to five times a day for 15-20 minutes 
 
                 at a time.  Given permission for the Physical 
 
                 Therapy Department to teach her how to use home 
 
                 halter traction and to continue physical therapy 
 
                 three times a week for two months.  Patient unable 
 
                 to work at this time.  She is to see Dr. Crenshaw 
 
                 in early January, 1991 for reevaluation in regards 
 
                 to return to work.  She was told that I did not 
 
                 need to see her again if her symptoms cleared and 
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
                 she was having no problems.  If her symptoms fail 
 
                 to clear she is to make a return appointment for 
 
                 followup examination.
 
            
 
            (Ex. 12, p. 30)
 
            
 
                 James Kanneberg, M.D., in conjunction with Dr. Grubb, 
 
            released claimant to return to work on January 21, 1991, 
 
            with a 30 pound lifting restriction.  Later, claimant was 
 
            allowed to return to work without restrictions (Ex. 3, p. 
 
            14).
 
            
 
                 On February 8, 1991, claimant returned to work.  Since 
 
            then she has refused some overtime.  Claimant has also 
 
            modified her work tasks.  She no longer needs to push 
 
            pallets with her left shoulder.  She can now slide the 
 
            pallets across rollers with a chain.
 
            
 
                 After her return to work, claimant had been "bumped 
 
            from the position of relief operator" to the more difficult 
 
            position of unscrambler.  She had problems performing the 
 
            job and she was disqualified from it for a period of time.
 
            
 
                 At the time of the hearing, claimant was still employed 
 
            with defendant as a relief operator.  However, the company 
 
            had been experiencing cutbacks.  It is unknown whether 
 
            claimant will be laid off from the plant.  All layoffs are 
 
            governed by seniority.
 
            
 
                                conclusions of law
 
            
 
                 The claimant has the burden of proving by a 
 
            preponderance of the evidence that the injury is a proximate 
 
            cause of the disability on which the claim is based.  A 
 
            cause is proximate if it is a substantial factor in bringing 
 
            about the result; it need not be the only cause.  A 
 
            preponderance of the evidence exists when the causal 
 
            connection is probable rather than merely possible.  
 
            Blacksmith v. All-American, Inc., 290 N.W.2d 348 (Iowa 
 
            1980); Holmes v. Bruce Motor Freight, Inc., 215 N.W.2d 296 
 
            (Iowa 1974).
 
            
 
                 The question of causal connection is essentially within 
 
            the domain of expert testimony.  The expert medical evidence 
 
            must be considered with all other evidence introduced 
 
            bearing on the causal connection between the injury and the 
 
            disability.  The weight to be given to any expert opinion is 
 
            determined by the finder of fact and may be affected by the 
 
            accuracy of the facts relied upon by the expert as well as 
 
            other surrounding circumstances.  The expert opinion may be 
 
            accepted or rejected, in whole or in part.  Sondag v. Ferris 
 
            Hardware, 220 N.W.2d 903 (Iowa 1974); Anderson v. Oscar 
 
            Mayer & Co., 217 N.W.2d 531 (Iowa 1974); Bodish v. Fischer, 
 
            Inc., 257 Iowa 516, 133 N.W.2d 867 (1965).
 
            
 
                 Claimant has established the requisite causal 
 
            connection between her work injury of January 12, 1990 and 
 
            claimant's permanent condition.  While defendant has argued 
 
            that claimant's condition is related to her subsequent motor 
 
            vehicle accident, the argument carries no weight.  The 
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
            diagnostic tests which were administered after the motor 
 
            vehicle accident show no objective signs of damage.  
 
            Additionally, the treating neurologist causally relates 
 
            claimant's cervical condition to her work injury.
 
            
 
                 The next issue for discussion is the nature and extent 
 
            of any permanency.
 
            
 
                 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 v. Goodyear Serv. Stores, 255 
 
            Iowa 1112, 125 N.W.2d 251 (1963); Barton v. Nevada Poultry, 
 
            253 Iowa 285, 110 N.W.2d 660 (1961).
 
            
 
                 A finding of impairment to the body as a whole found by 
 
            a medical evaluator does not equate to industrial 
 
            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.
 
            
 
                 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 Christensen 
 
            v. Hagen, Inc., Vol. 1 No. 3 State of Iowa Industrial 
 

 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
            Commissioner Decisions 529 (App. March 26, 1985); Peterson 
 
            v. Truck Haven Cafe, Inc., Vol. 1 No. 3 State of Iowa 
 
            Industrial Commissioner Decisions 654 (App. February 28, 
 
            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.
 
            
 
                 Dr. Grubb, the surgeon, had opined that claimant has a 
 
            10 percent functional impairment (Ex. 23, p. 52).  He had 
 
            released her to her former position which has been modified 
 
            by defendant.  Claimant is capable of performing the relief 
 
            operator position.  She has been unsuccessful in performing 
 
            the unscrambler operation.  Claimant has refused some 
 
            overtime opportunities.  She takes two to three pain pills 
 
            per week.
 
            
 
                 Claimant is a conscientious employee who has the 
 
            respect of her foreman.  She has the same job at the same 
 
            rate of pay, although she does not perform the job in the 
 
            same manner.  Her gross pay has been reduced because she has 
 
            refused some overtime.  Whether claimant is laid off will 
 
            depend on economic conditions rather than upon her cervical 
 
            condition.
 
            
 
                 After reviewing the record, observing the witnesses, 
 
            and after considering the evidence, it is the determination 
 
            of the undersigned that claimant has sustained a permanent 
 
            partial disability in the amount of 15 percent.  Claimant is 
 
            entitled to 75 weeks of benefits at the stipulated rate of 
 
            $278.06 per week and commencing on February 8, 1991.
 
            
 
                 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).
 
            
 
                           
 
            
 
            
 
            Page   6
 
            
 
            
 
            
 
            
 
            order
 
            
 
                 THEREFORE, it is ordered:
 
            
 
                 Defendant is to pay unto claimant seventy-five (75) 
 
            weeks of permanent partial disability benefits at the 
 
            stipulated rate of two hundred seventy-eight and 06/100 
 
            dollars ($278.06) per week and commencing on February 8, 
 
            1991.
 
            
 
                 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.
 
            
 
                 Accrued benefits are to be paid in a lump sum together 
 
            with statutory interest at the rate of ten percent (10%) per 
 
            year.
 
            
 
                 Costs are taxed to defendant pursuant to rule 343 IAC 
 
            4.33.
 
            
 
                 Defendant shall file a claim activity report as 
 
            requested by this division and pursuant to rule 343 IAC 3.1.
 
            
 
                 Signed and filed this ____ day of May, 1992.
 
            
 
            
 
            
 
            
 
                                          
 
            ________________________________
 
                                          MICHELLE A. McGOVERN
 
                                          DEPUTY INDUSTRIAL COMMISSIONER
 
            
 
            Copies To:
 
            
 
            Mr James P Hoffman
 
            Attorney at Law
 
            Middle Rd
 
            Box 1087
 
            Keokuk IA 52632
 
            
 
            Mr Larry L Shepler
 
            Attorney at Law
 
            Ste 102  Executive Sq
 
            400 Main St
 
            Davenport IA 52801
 
            
 
            Mr E J Giovannetti
 
            Attorney at Law
 
            Terrace Ctr  Ste 111
 
            2700 Grand Ave
 
            Des Moines IA 50312
 
            
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                          1803
 
                                          Filed May 18, 1992
 
                                          Michelle A. McGovern
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            JOAN BOATWRIGHT,              :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :      File No. 966362
 
            THE DIAL CORPORATION,         :
 
                                          :     A R B I T R A T I O N
 
                 Employer,                :
 
                                          :       D E C I S I O N
 
            and                           :
 
                                          :
 
            Self-Insured,                 :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
            1803
 
            Claimant has sustained a 15% permanent partial disability.  
 
            She sustained an injury to her cervical spine.  Claimant 
 
            returned to work with defendant at the same job but she did 
 
            not perform the job in the same manner.  Claimant was 
 
            disqualified from one job because her condition prevented 
 
            her from performing the tasks.  Claimant also refused some 
 
            overtime because of her work-related condition.
 
            
 
 
            
 
            Page   1
 
            
 
            
 
            
 
            
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            DONALD G. WELDER,             :
 
                                          :
 
                 Claimant,                :         File No. 966366
 
                                          :
 
            vs.                           :      A R B I T R A T I O N
 
                                          :
 
            OSCAR MAYER FOODS,            :         D E C I S I O N
 
                                          :
 
                 Employer,                :
 
                 Self-Insured,            :
 
                 Defendant.               :
 
            ____________________________________________________________
 
            
 
                              statement of the case
 
            
 
                 Claimant Donald G. Welder seeks benefits under the Iowa 
 
            Workers' Compensation Act upon his petition in arbitration 
 
            against defendant self-insured employer Oscar Mayer Foods.  
 
            He asserts cumulative injury to the back and inguinal hernia 
 
            attributable to that employment, which ceased on February 3, 
 
            1989, when Oscar Mayer Foods (a packinghouse) went out of 
 
            business at the location where claimant was employed.
 
            
 
                 This cause came on for hearing in Des Moines, Iowa, on 
 
            January 17, 1992.  The record consists of claimant's 
 
            testimony and joint exhibits A through F.
 
            
 
                 Claimant's wife was excluded from a portion of the 
 
            hearing because she attempted to influence or assist Mr. 
 
            Welder's testimony after being instructed to desist.
 
            
 
                                      issues
 
            
 
                 Theryloyed, nine hours per day, working mostly on construction 
 
            and repair projects relating to chicken houses.  This work 
 
            does not seem to bother his back or hernia, except on 
 
            unusually strenuous days.
 
            
 
                 Claimant was seen by Stephen Sundberg, M.D., on July 
 
            25, 1990.  Dr. Sundberg's chart notes reflect that claimant 
 
            reported diagnosis of a hernia during a general physical 
 
            some 7-8 months before, which was prior to working with the 
 
            demolition company.  Claimant reported numerous aches and 
 
            pains while employed at Oscar Mayer, but "at no time did he 
 
            have any discomfort in the inguinal area.  He continues 
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            today to have no discomfort."  Dr. Sundberg diagnosed an 
 
            inguinal hernia which he attributed to claimant's long 
 
            history of heavy physical work.  He recommended surgical 
 
            repair of the hernia.
 
            
 
                 Claimant was seen for evaluation by John L. Beattie, 
 
            M.D., on September 6, 1991.  Dr. Beattie also found a rather 
 
            large right indirect inguinal hernia which he believed 
 
            should be repaired as soon as possible.  As a part of his 
 
            examination, Dr. Beattie ordered x-rays studies which were 
 
            performed by Nabil Faltas, M.D., on September 10.  Dr. 
 
            Faltas reached an impression of slight osteoarthritis of the 
 
            upper and mid lumbar spine especially involving L2-3, but 
 
            with no evidence of disc space narrowing.  There were no 
 
            recent traumatic bony changes or bone destruction.
 
            
 
                 Dr. Beattie, of the Perry Medical Clinic, found 
 
            limitation of motion in the lumbar spine and described 
 
            claimant's inability to perform numerous tasks due to pain 
 
            (squatting, walking on heels, rolling over, etc.).  It was 
 
            obvious to Dr. Beattie that claimant had chronic pain and 
 
            disability in the lumbar area due to discomfort.  He 
 
            recommended that claimant live a sedentary life, should have 
 
            his right inguinal hernia repaired as soon as possible, and 
 
            "should not be doing any type of manual labor because of his 
 
            disabilities."  Estimating a 25-30 percent impairment of the 
 
            body as a whole, Dr. Beattie considered the problems related 
 
            to claimant's employment at the Oscar Mayer plant.
 
            
 
                 Dr. Beattie was not aware that claimant had been 
 
            working a relatively active construction job for over a year 
 
            before this examination.
 
            
 
                 Claimant was also seen for evaluation by Daniel J. 
 
            McGuire, M.D., of Des Moines Orthopaedic Surgeons, P.C.  Dr. 
 
            McGuire's letterhead identifies him as a spine surgeon.  
 
            Based on the radiographic interpretation of Dr. Faltas and 
 
            his own physical examination, Dr. McGuire rated claimant on 
 
            November 11, 1991, as having sustained a zero percent 
 
            impairment and would recommend no permanent restrictions.
 
            
 
                                conclusions of law
 
            
 
                 The parties dispute whether claimant sustained an 
 
            injury arising out of and in the course of his employment at 
 
            the time of the Oscar Mayer plant closing on February 3, 
 
            1989.  The words "arising out of" refer to the course or 
 
            source of the injury.  McClure v. Union County, 188 N.W.2d 
 
            283 (Iowa 1971).  This requirement is satisfied by showing a 
 
            causal relationship between the employment and the injury.  
 
            Sheerin v. Holin Co., 380 N.W.2d 415 (Iowa 1986).
 
            
 
                 Claimant's back complaints are presented essentially as 
 
            a cumulative injury.  Based on Dr. Sundberg's notes, it is 
 
            probable that claimant's hernia is also a cumulative 
 
            problem.  Typically, in cases of cumulative injury, an 
 
            injury is deemed to have occurred on the date when, due to 
 
            pain or physical inability, claimant finds himself no longer 
 
            able to work.  McKeever Custom Cabinets v. Smith, 379 N.W.2d 
 
            368 (Iowa 1985).  However, if McKeever is blindly followed 
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
            in all cases, bizarre and unfair results are possible.  The 
 
            agency has held that leaving work due to the pain or 
 
            discomfort of a cumulative injury is not necessarily a 
 
            prerequisite to finding a compensable cumulative injury.  
 
            Scheuermann v. Oscar Mayer Foods Corp., File No. 773553 
 
            (App. Decn., December 20, 1991).  If claimant has sustained 
 
            compensable injury, it is held that the date of plant 
 
            closure is the appropriate date of injury.
 
            
 
                 Has claimant sustained a compensable back injury?  
 
            Because an injury to the back affects the body as a whole, a 
 
            permanent injury must be compensated industrially, if at 
 
            all.  Industrial disability means the reduction of earning 
 
            capacity.  Second Injury Fund v. Hodgins, 461 N.W.2d 454 
 
            (Iowa 1990).
 
            
 
                 It must be concluded that claimant has failed to meet 
 
            his burden of proof in establishing a reduction in earning 
 
            capacity caused by his back condition, at least such a 
 
            reduction causally related to employment.  While Dr. Beattie 
 
            finds very substantial physical impairment and recommends a 
 
            sedentary life, Dr. McGuire finds zero impairment and 
 
            recommends no restrictions.  It is necessary to consider how 
 
            much weight to give the opinion of each physician.
 
            
 
                 Although Dr. Beattie's speciality does not appear of 
 
            record, his letterhead reflects that he works with the Perry 
 
            Medical Clinic.  He may very well be a general practitioner.  
 
            Dr. McGuire is an orthopaedic surgeon specializing in spine 
 
            surgery.  Dr. McGuire's opinion also seems more consistent 
 
            with the objective evidence as shown by the x-ray 
 
            interpretation of Dr. Faltas.  Dr. Beattie has not specified 
 
            to what degree claimant's estimated impairment and 
 
            recommended restrictions are attributable to the back 
 
            injury, as opposed to the hernia injury.  In agency 
 
            experience, many orthopaedic specialists would reserve such 
 
            a high impairment rating for cases of multiple failed back 
 
            surgery.  Even though claimant believed that Dr. Beattie's 
 
            examination was more thorough, this writer believes that Dr. 
 
            McGuire's opinion should be given greater weight because of 
 
            his status as a specialist and because his opinion is more 
 
            consistent with the x-ray interpretation of Dr. Faltas.  
 
            Accordingly, claimant has not met his burden of proof in 
 
            establishing permanent disability relating to his back 
 
            condition.
 
            
 
                 However, the opposite result obtains with respect to 
 
            claimant's hernia condition.  There is no question but that 
 
            a hernia exists and that the recommended treatment is prompt 
 
            surgical repair.  Dr. Sundberg and Dr. Beattie agree on this 
 
            point.  Dr. Sundberg's notes show that the hernia was first 
 
            diagnosed before claimant took work with the demolition 
 
            company.  Even though Dr. Sundberg understy a 
 
                 physician of the employee's own choice, and 
 
                 reasonably necessary transportation expenses 
 
                 incurred for the examination.  The physician 
 
                 chosen by the employee has the right to confer 
 
                 with and obtain from the employer-retained 
 
                 physician sufficient history of the injury to make 
 
                 a proper examination.
 
            Dr. Beattie's examination apparently preceded the 
 
            examination of Dr. McGuire.  Therefore, entitlement to 
 
            compensation under 85.39 is not triggered under the 
 
            statutory language.
 
 
 
                                      order
 
            
 
                 THEREFORE, IT IS ORDERED:
 
            
 
                 Defendant shall provide medical treatment to claimant 
 
            consisting of surgical hernia repair by the surgeon of 
 
            claimant's choice and shall pay the reasonable cost thereof.
 
            
 
                 In addition, defendant shall pay resulting temporary 
 
            total disability or healing period benefits.  No 
 
            determination as to permanent disability resulting from 
 
            claimant's hernia injury is possible at this time.
 
            
 
                 The costs of this action are assessed to defendant 
 
            pursuant to rule 343 IAC 4.33.
 
            
 
                 Defendant shall file claim activity reports as 
 
            requested by the agency pursuant to rule 343 IAC 3.1.
 
            
 
                 Signed and filed this ______ day of ____________, 1992.
 
            
 
                 
 
            
 
                 
 
                 
 
                                          ______________________________
 
                                          DAVID RASEY
 
                                          DEPUTY INDUSTRIAL COMMISSIONER
 
            
 
            Copies To:
 
            
 
            Mr. Robert E. McKinney
 
            Attorney at Law
 
            480 6th Street
 
            P.O. Box 209
 
            Waukee, Iowa  50263
 
            
 
            Mr. Harry W. Dahl
 
            Attorney at Law
 

 
            
 
            Page   7
 
            
 
            
 
            
 
            
 
            974 73rd Street
 
            Suite 16
 
            Des Moines, Iowa  50312
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                               1402.20; 2209; 2501; 2502
 
                                               2706; 2906
 
                                               Filed February 6, 1992
 
                                               DAVID RASEY
 
            before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            DONALD G. WELDER,             :
 
                                          :
 
                 Claimant,                :         File No. 966366
 
                                          :
 
            vs.                           :      A R B I T R A T I O N
 
                                          :
 
            OSCAR MAYER FOODS,            :         D E C I S I O N
 
                                          :
 
                 Employer,                :
 
                 Self-Insured,            :
 
                 Defendant.               :
 
            ____________________________________________________________
 
            
 
            1402.20; 2209; 2501; 2706
 
            Claimant proved cumulative hernia injury, but failed to 
 
            prove back injury as of date plant closed.
 
            Defendant was ordered to provide surgical repair of hernia.  
 
            It is impossible to determine extent of future temporary 
 
            disability or possible permanency at this time.  Claimant 
 
            may seek review-reopening if the parties dispute that 
 
            entitlement following surgery.
 
            
 
            2502
 
            Where 85.39 exam preceded employer physician exam, 
 
            entitlement was not triggered, as there was no prior "too 
 
            low" rating.
 
            
 
            2906
 
            Claimant's wife was excluded from part of hearing because 
 
            she attempted to assist or influence his testimony after 
 
            being instructed to desist.