BEFORE THE IOWA INDUSTRIAL COMMISSIONER 
 
       _________________________________________________________________
 
               
 
       ROBERT GLAWE,    
 
                                          File No. 966393
 
          Claimant, 
 
                                       A R B I T R A T I O N
 
       vs.          
 
                                          D E C I S I O N
 
       IBP, INC.,  
 
               
 
          Employer, 
 
          Self-Insured,  
 
          Defendant.     
 
       _________________________________________________________________
 
       
 
       
 
                          STATEMENT OF THE CASE
 
            
 
            This is a proceeding in arbitration upon the petition of 
 
       claimant, Robert Glawe, against his former self-insured employer, 
 
       IBP, Inc., defendant.  Claimant filed his petition on January 24, 
 
       1991.  In his petition he requested workers' compensation 
 
       benefits for a work-related injury allegedly occurring on July 
 
       21, 1990.
 
            
 
            In the prehearing conference report, which was jointly filed 
 
       by the parties, the attorneys for the litigants indicated they 
 
       would be ready for a hearing on the matter after April 1, 1993.  
 
       Originally the hearing was set for August 19, 1993.  However, on 
 
       April 16, 1993, claimant requested a continuance of the hearing 
 
       date.  The ruling on the continuance was denied by a deputy 
 
       industrial commissioner.  A joint request for a continuance was 
 
       subsequently filed by the parties on June 3, 1993.  The ruling 
 
       was then granted by the same deputy industrial commissioner.  The 
 
       case was reassigned for December 20, 1994. 
 
            
 
            The hearing was held at the Pine Crest Building in Waterloo, 
 
       Iowa on the aforementioned date.  The record consists of the 
 
       testimony of claimant.  The record also consists of the testimony 
 
       of claimant's spouse, Kathleen Glawe.  Finally, the record is 
 
       comprised of the following exhibits:  claimant's exhibits 1-10 
 
       and defendant's exhibits A-K.
 
            
 
            At the time of the writing of this decision, there is no 
 
       first report of injury in the administrative file.  The defendant 
 
       is ordered to file a first report of injury within 20 days of the 
 
       filing of this decision.  Failure to do so may result in the 
 
       imposition of sanctions. 
 

 
 
 
 
 
 
 
 
 
       
 
                                ISSUES
 
            
 
            The parties stipulated claimant sustained a work-related 
 
       injury which occurred on July 21, 1990.  The parties also 
 
       stipulated that prior to the hearing on this matter defendant 
 
       paid claimant 146.857 weeks of benefits at the stipulated weekly 
 
       benefit rate of $211.67 per week.
 
            
 
            The issues to be determined are:  1) whether claimant's work 
 
       injury is a cause of temporary or permanent disability; 
 
       2) whether claimant is entitled to any healing period or 
 
       permanent disability benefits; 3) whether claimant is entitled to 
 
       any medical benefits pursuant to section 85.27 of the Iowa Code; 
 
       and 4) whether claimant tendered notice pursuant to section 85.23 
 
       of the Iowa Code with respect to any allegations of neck or back 
 
       injuries.
 
       
 
                    FINDINGS OF FACT AND CONCLUSIONS OF LAW
 
            
 
            The deputy, having heard the testimony and considered all of 
 
       the evidence, makes the following findings of fact and 
 
       conclusions of law:
 
            
 
            The burden of proof is on the party asserting the 
 
       affirmative of an issue in an administrative proceeding; "on the 
 
       party who would suffer loss if the issue were not established."  
 
       Wonder Life Co. v. Liddy, 207 N.W.2d 27 (Iowa 1973); Norland v. 
 
       Ides, 412 N.W.2d 904 (Iowa 1987).
 
            
 
            Claimant is 56-years-old.  At the time of his work injury 
 
       claimant was 52.  He is the married father of three adult 
 
       children.  He is a 1957 Manchester High School graduate.  He has 
 
       no education beyond the high school level but he did serve in the 
 
       United States Marine Corps.  He was honorably discharged.
 
            
 
            Claimant has a long history of stable work.  For many years 
 
       he worked as an assistant manager and later the general manager 
 
       of a restaurant chain which was known for its buffet menu.  His 
 
       duties varied since he assisted his employees whenever they 
 
       needed help or supervision.  Claimant left that employment in 
 
       1985.
 
            
 
            After 1985, claimant held several jobs which required 
 
       special skills, such as printing.  For two years he was self-
 
       employed as a salesperson.  He sold fishing gear at various trade 
 
       shows.  He left after two years, as his business was not 
 
       profitable.
 
            
 
            In May of 1990, claimant commenced employment with the 
 
       present defendant.  He was hired to work in the maintenance 
 
       department as a maintenance worker for the upper kill floor.  His 
 
       duties included maintaining equipment such as the large split 
 
       chain saw.  It weighed 125 pounds and was designed to split a hog 
 
       into two parts.  Throughout a work shift, claimant was constantly 
 
       lifting the saw.
 
            
 
            On the date of the work injury, claimant lifted the split 
 
       saw and he experienced severe pain near both shoulders, across 
 
       his back and on both sides.  He completed the shift but he did 
 
       not discuss his condition with any supervisor at the plant.  
 
       Eventually claimant went to the nurse's station, per the 
 
       direction of the safety manager.
 
            
 
            After conservative measures, claimant, on his own, sought 
 
       chiropractic manipulation from D. A. Widen, D.C. (Exhibit 2).  
 

 
 
 
 
 
 
 
 
 
 
 
 
 
       Still claimant did not improve.
 
            
 
            Eventually, claimant was sent to Jitu D. Kothari, M.D., a 
 
       local orthopedic surgeon.  Dr. Kothari became the authorized 
 
       treating physician.  Claimant complained of difficulties of both 
 
       shoulders, neck and back (Ex. B-2).  The surgeon ordered pain 
 
       medication and physical therapy.  His diagnosis was "impingement 
 
       syndrome of the left shoulder" (Ex. 9-14).
 
            
 
            Dr. Kothari causally related claimant's condition to the 
 
       work injury (Ex. 9-23).  The surgeon testified there was nothing 
 
       in claimant's medical history which would indicate his shoulder 
 
       problems were anything but work related (Ex. 9-23).
 
            
 
            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).
 
            
 
            Despite Dr. Kothari's conservative treatment, claimant did 
 
       not improve to the satisfaction of his surgeon.  Approximately 
 
       one year after his initial appointment, Dr. Kothari performed an 
 
       arthroscopic evaluation of the left shoulder and then an 
 
       arthroscopic decompression of the subacromial space (Ex. 9-15).  
 
       Following the surgery, claimant engaged in physical therapy.
 
            
 
            On December 22, 1992, Dr. Kothari evaluated and examined 
 
       claimant for a permanent impairment.  The surgeon opined:
 
            
 
            He underwent arthroscopic decompression of the 
 
            subacromial space with partial acromioplasty on 3-19-
 
            92.  He also had a small flap tear of the labrum which 
 
            was also excised.  Following his surgery, he has 
 
            improved.  He had intensive and extended physical 
 
            therapy.  However, more recently, while in physical 
 
            therapy, he had increased discomfort in his left 
 
            shoulder, and he almost passed out, so the physical 
 
            therapy at this time was discontinued.
 
            
 
               At present, he has the following job restriction.  
 
            No overhead work and no overhead reaching with the left 
 
            shoulder.  He should also avoid doing any heavy manual 
 
            work, such as lifting more than 10-15 pounds with his 
 
            left arm.  Pushing and pulling with the left arm is not 
 
            recommended.
 
            
 
               His disability rating evaluation is as follows, 
 
            based on range of motion of the left shoulder, 
 

 
 
 
 
 
 
 
 
 
 
 
 
 
            according to the Guide to the Evaluation of Permanent 
 
            Impairment by the American Medical Association.
 
            
 
                    Motion                   Degree         %
 
            
 
                    Forward elevation         135           3
 
                    Abduction                 110           3
 
                    External rotation          35           2
 
                    Internal rotation        normal         0
 
                    Extension                  30           1
 
            
 
               So, this patient has a total of 9% permanent 
 
            impairment and loss of physical function of the left 
 
            upper extremity on account of restricted range of 
 
            motion of the left shoulder.
 
            
 
               He also continues to have night pain.  He also has 
 
            pain at the end of the day.  He requires pain pills or 
 
            over the counter analgesics for pain control.  He has 
 
            difficulty sleeping at night.  In my opinion, he has 6% 
 
            additional permanent impairment and loss of physical 
 
            function of the left upper extremity on account of the 
 
            residual pain in the left shoulder.
 
            
 
               So, he has a total of 15% permanent impairment and 
 
            loss of physical function of the left upper extremity 
 
            on account of his work related injury to the left 
 
            shoulder.
 
       
 
       (Ex. B-10)
 
            
 
            Claimant continued to verbalize complaints he had with his 
 
       left shoulder.  Dr. Kothari referred claimant to James E. Crouse, 
 
       M.D., another orthopedic surgeon.  Dr. Crouse examined claimant 
 
       on March 22, 1993.  The diagnosis was "persistent left shoulder 
 
       pain" (Ex. 8-14).  Dr. Crouse causally related claimant's 
 
       condition to the work injury (Ex. 3).
 
            
 
            On June 3, 1993, Dr. Crouse performed an acromioplasty on 
 
       claimant's left shoulder as well as an excision of the distal 
 
       clavicle.  The post diagnosis was "Impingement syndrome, left 
 
       shoulder with AC joint arthritis of left shoulder" (Ex. 2-1).
 
            
 
            Subsequent to the surgery, claimant encountered problems 
 
       with his urinary tract.  He developed urinary retention.  Michael 
 
       O. Welton, M.D., a urologist treated claimant for acute urinary 
 
       retention (Ex. 6-1).  Dr. Welton performed a transurethral 
 
       resection of the prostate (Ex. 6-1).  According to Dr. Welton's 
 
       opinion, claimant's surgical procedure was precipitated by the 
 
       second surgical procedure on his left shoulder (Ex. 6-1).
 
            
 
            Dr. Crouse performed another arthroscopic surgical procedure 
 
       involving claimant's left shoulder.  On February 8, 1994, 
 
       claimant underwent a partial synovectomy of the left shoulder and 
 
       debridement of the scarring subacromial space (Ex. 3).
 
            
 
            The deposition testimony of Dr. Crouse included the 
 
       surgeon's opinions regarding permanency and restrictions.  Dr. 
 
       Crouse opined:
 
            
 
               Q.  Doctor, did you -- or strike that.  Doctor, have 
 
            you reached an opinion regarding his functional 
 
            impairment under the AMA Guidelines?
 
            
 
               A.  Yes.
 
            
 

 
 
 
 
 
 
 
 
 
 
 
 
 
               Q.  And would you tell us what those opinions are?
 
            
 
               A.  I believe that Mr. Glawe has a 16% impairment of 
 
            his right upper extremity, which would be a 10% 
 
            impairment of the body as a whole.  And based on 
 
            history, his persistent complaints and his x-rays 
 
            changes through the thoracic spine, a 5% impairment of 
 
            the upper back.
 
            
 
               Q.  The 10% body as a whole disability is related to 
 
            his shoulder, is that correct?
 
            
 
               A.  Yes.
 
            
 
               Q.  And the 5% body as a whole disability is related 
 
            to the upper back symptoms he describes, is that 
 
            correct?
 
            
 
               A.  Yes.
 
            
 
               Q.  And together you have arrived at a 15% body as a 
 
            whole disability, is that correct?
 
            
 
               A.  Combining those two, yes.
 
            
 
               Q.  In your opinion is this disability a permanent 
 
            disability?
 
            
 
               A.  Yes.
 
            
 
               Q.  Have you reached any opinions regarding what, if 
 
            any, work restrictions Mr. Glawe has?
 
            
 
               A.  Mr. Glawe is going to be restricted to light 
 
            work.  He cannot do heavy lifting, or bending stooping 
 
            and lifting.  He cannot do repetitive pushing and 
 
            pulling.  He is not going to be able to work with his 
 
            arms at shoulder level or above.  I would recommend a 
 
            10 to 15 pound restriction for his lifting.  Again, 
 
            noting that he is not going to be able to work at 
 
            shoulder level and above with his arms.
 
            
 
               Q.  The 10 to 15 pound lifting restriction would be 
 
            lifting that would be below shoulder level, is that 
 
            correct?
 
            
 
               A.  Yes.
 
            
 
               Q.  You're recommending that he not do any lifting 
 
            or work at shoulder level or above, is that correct?
 
            
 
               A.  That's correct.
 
            
 
               Q.  Okay.  And that is based on the problems that 
 
            he's had with the shoulder joint and back, is that 
 
            correct?
 
            
 
               A.  That's correct.
 
       
 
       (Ex. 8-38 to 40)
 
            
 
            Claimant has proven to the satisfaction of this deputy 
 
       industrial commissioner that he has a permanent condition to his 
 
       left shoulder and as well as to the upper back and neck.  
 
       Defendant maintains it had no notice of the back and neck 
 
       complaints.  However, the argument has little merit.  From the 
 

 
 
 
 
 
 
 
 
 
 
 
 
 
       onset, claimant has voiced complaints not only with both 
 
       shoulders but also with his neck and back.  Defendant has had 
 
       notice of all complaints which claimant has alleged are related 
 
       to the current work injury.
 
            
 
            Claimant's condition is a permanent injury to the body as a 
 
       whole.  Claimant maintains he is entitled to an industrial 
 
       disability as a result of his work injury.
 
            
 
            An industrial disability affects more than a functional 
 
       impairment.  Functional impairment is an element to be considered 
 
       in determining industrial disability which is the reduction of 
 
       earning capacity, but consideration must also be given to the 
 
       injured employee's age, education, qualifications, experience 
 
       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 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.
 
            
 
            In the case before the undersigned, claimant has a 
 
       functional impairment rating in the area of 15 percent of the 
 
       body as a whole.  Medical evidence supports the impairment 
 
       ratings which were provided by the treating surgeons.
 
            
 
            The same treating surgeons also imposed severe restrictions 
 
       on claimant with respect to the duties he can perform in the work 
 
       place.  Claimant is precluded from overhead work.  His lifting 
 
       restrictions prohibit claimant from applying for numerous jobs in 
 
       the packing industry.  Defendant has no position to offer 
 
       claimant.  Claimant is an older worker and he will have 
 
       difficulties obtaining suitable employment at the wage rate he 
 
       received prior to the work injury.  Because of claimant's age, 
 
       retraining is unlikely.  He has not been offered rehabilitation.  
 
       He has been off work for many years.  Re-entry into the labor 
 
       market will be difficult, if not impossible.  Perhaps he can find 
 
       some employment in the restaurant business.  However, positions 
 
       in the restaurant industry are at the low end of the wage scale.
 
            
 
            Therefore, in light of the foregoing, it is the 
 
       determination of the undersigned that claimant is entitled to a 
 
       75 percent permanent partial disability.  He is entitled to 375 
 
       weeks of permanent partial disability benefits at the corrected 
 
       rate of $216.29 per week and commencing from June 9, 1994.
 
            
 
            The next issue to address is the issue of healing period 
 
       benefits.  Section 85.34(1) provides that healing period benefits 
 
       are payable to an injured worker who has suffered permanent 
 
       partial disability until (1) the worker has returned to work; (2) 
 
       the worker is medically capable of returning to substantially 
 
       similar employment; or (3) the worker has achieved maximum 
 
       medical recovery.  The healing period can be considered the 
 
       period during which there is a reasonable expectation of 
 
       improvement of the disabling condition.  See Armstrong Tire & 
 
       Rubber Co. v. Kubli, 312 N.W.2d 60 (Iowa Ct. App. 1981).  Healing 
 
       period benefits can be interrupted or intermittent.  Teel v. 
 
       McCord, 394 N.W.2d 405 (Iowa 1986).
 
            
 
            Claimant has been in the healing period from the date of the 
 
       work injury, July 21, 1990 through June 8, 1994.  The June 8, 
 
       1994 date is the designated date when claimant obtained maximum 
 
       medical improvement (Ex. 8-40).  This is a period of 202.714 
 
       weeks.  Claimant is to be paid at the stipulated rate of $216.29 
 

 
 
 
 
 
 
 
 
 
 
 
 
 
       per week.
 
            
 
            The final issue to address is the issue of medical benefits.  
 
       Section 85.27 of the Iowa Code governs the payment of medical 
 
       bills.
 
            
 
            Claimant is requesting the payment of $1690.88 in medical 
 
       bills.  All of the requested medical bills are related to 
 
       claimant's work injury.  However, the chiropractic bill of Dr. 
 
       Wilden is unauthorized treatment.  It is disallowed.  Defendant 
 
       is not required to pay for the treatments provided by Dr. Widen.  
 
       Defendant is liable for the remaining $420.72 in medical bills.
 
       
 
                                 ORDER
 
            
 
            THEREFORE, IT IS ORDERED:
 
            
 
            Defendant shall pay unto claimant three hundred seventy-five 
 
       (375) weeks of permanent partial disability benefits at the 
 
       corrected rate of two hundred sixteen and 29/l00 dollars 
 
       ($216.29) per week.
 
            
 
            Defendant shall also pay unto claimant two hundred two point 
 
       seven one four (202.714) weeks of healing period benefits at the 
 
       corrected rate of two hundred sixteen and 29/l00 dollars 
 
       ($216.29) per week.
 
            
 
            Accrued benefits are to be paid in a lump sum together with 
 
       statutory interest at the rate of ten percent (10%) per year 
 
       pursuant to section 85.30, Iowa Code, as amended.
 
            
 
            Defendant is liable for medical expenses in the sum of four 
 
       hundred twenty and 72/l00 dollars ($420.72).
 
            
 
            Defendant is ordered to file a first report of injury within 
 
       twenty (20) days of the filing of this decision.  Failure to do 
 
       so may result in the imposition of sanctions.
 
            
 
            Costs are taxed to defendant pursuant to rule 343 IAC 4.33.
 
       
 
       
 
       
 
          Signed and filed this ____ day of June, 1995.
 
       
 
       
 
                               ______________________________          
 
                                MICHELLE A. McGOVERN
 
                                DEPUTY INDUSTRIAL COMMISSIONER
 
       
 
       Copies To:
 
       
 
       Mr. David W. Stamp
 
       Mr. H. Daniel Holm, Jr.
 
       Attorneys at Law
 
       3324 Kimball Ave
 
       PO Box 2696
 
       Waterloo  IA  50704-2696
 
       
 
       Mr. Paul T. Kirchner
 
       Attorney at Law
 
       PO Box 515  Dept. #41
 
       Dakota City  NE  68731
 
 
 
 
 
 
 
 
 
 
 
 
 
 
                                         5-1800; 5-1803
 
                                         Filed June 16, 1995
 
                                         MICHELLE A. McGOVERN
 
         
 
                  BEFORE THE IOWA INDUSTRIAL COMMISSIONER 
 
         ____________________________________________________________
 
         ROBERT GLAWE,  
 
                                              File No. 966393
 
              Claimant, 
 
                                          A R B I T R A T I O N
 
         vs.        
 
                                              D E C I S I O N
 
         IBP, INC.,     
 
               
 
              Employer, 
 
              Self-Insured,  
 
              Defendant.     
 
         ____________________________________________________________
 
         
 
         5-1800; 5-1803
 
         Claimant is entitled to 375 weeks of permanent partial 
 
         disability benefits.
 
 
            
 
            Page   1
 
            
 
            
 
            
 
            
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            MICHAEL E. DOWELL,            :
 
                                          :
 
                 Claimant,                :         File No. 966524
 
                                          :
 
            vs.                           :      A R B I T R A T I O N
 
                                          :
 
            J. I. CASE COMPANY,           :         D E C I S I O N
 
                                          :
 
                 Employer,                :
 
                 Self-Insured,            :
 
                 Defendant.               :
 
            ____________________________________________________________
 
            
 
                              statement of the case
 
            
 
                 This is a proceeding in arbitration brought by Michael 
 
            E. Dowell, claimant, against J. I. Case Company, 
 
            self-insured employer, to recover benefits under the Iowa 
 
            Workers' Compensation Act as a result of an injury sustained 
 
            on August 6, 1990.  This matter came on for hearing before 
 
            the undersigned deputy industrial commissioner on March 16, 
 
            1992, in Burlington, Iowa.  The record was considered fully 
 
            submitted at the close of the hearing.  The claimant was 
 
            present and testified.  Also present and testifying was 
 
            Daniel Snyder.  The documentary evidence identified in the 
 
            record consists of joint exhibits 1 through 9.
 
            
 
                                      issues
 
            
 
                 Pursuant to the prehearing report and order dated March 
 
            16, 1992, the parties have presented the following issues 
 
            for resolution:
 
            
 
                 .  Whether claimant sustained an injury on August 6, 
 
            1990, which arose out of and in the course of employment 
 
            with employer;
 
            
 
                 .  Whether the alleged injury is a cause of temporary 
 
            and permanent disability; and,
 
            
 
                 .  Whether claimant is entitled to medical bills 
 
            pursuant to Iowa Code section 85.27.
 
            
 
                                 findings of fact
 
            
 
                 The undersigned has carefully considered all the 
 
            testimony given at the hearing, arguments made, evidence 
 
            contained in the exhibits herein, and makes the following 
 
            findings:
 
            
 
                 Claimant is 36 years old and went to work for employer 
 
            in 1974 as a machine operator.  He was laid off for about 
 
            two and one-half years until February 1990, when he returned 
 
            as a press form operator.  In this capacity, he did piece 
 
            work in which he handled between 400 and 1000 parts of steel 
 
            a night.  This work required heavy lifting, pushing, 
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            pulling, and repetitive bilateral upper extremity use.
 
            
 
                 In 1985, claimant experienced numbness and tingling in 
 
            his hands, however, this resolved during his two and 
 
            one-half-year layoff.  Upon return to work in February 1990, 
 
            he noticed a progressive enlargement of the tissues in his 
 
            wrist and arm.  He also experienced pain and tingling in his 
 
            hands.  In August 1990, he reported these problems to the 
 
            company doctor, J. J. Kivlahan, M.D.  Dr. Kivlahan advised 
 
            him to see a specialist (exhibit 3).
 
            
 
                 Claimant saw Michael W. Hendricks, M.D., an orthopedic 
 
            surgeon, on August 6, 1990, for evaluation of bilateral hand 
 
            pain and a mass in the distal right forearm.  Nerve 
 
            conduction studies were obtained on August 20, 1990, and 
 
            these showed an increase in the findings of carpal tunnel 
 
            syndrome.  On October 18, 1990, claimant underwent a carpal 
 
            tunnel release on the right with excision of an accessory 
 
            palmaris longus tendon.  Claimant was last treated by Dr. 
 
            Hendricks on December 14, 1990.  He was released to return 
 
            to work on December 16, 1990, without limitations (exs. 1-2 
 
            & 9).
 
            
 
                 On November 11, 1991, Dr. Hendricks reported that 
 
            claimant obtained full and complete recovery from his right 
 
            carpal tunnel surgery and had no residual symptoms.  
 
            Claimant testified that he did not return for left carpal 
 
            tunnel syndrome surgery because his symptoms had resolved.  
 
            Claimant returned to work and performed his usual job from 
 
            December 14, 1990, until three weeks prior to the hearing 
 
            when he exercised his contract by-out right with defendant.  
 
            No accommodations were made at work and claimant was able to 
 
            perform his job without limitations or restrictions.  
 
            Nevertheless, on November 11, 1991, without reexamining 
 
            claimant, Dr. Hendricks gave him a permanent partial 
 
            impairment rating as a result of his unoperated left carpal 
 
            tunnel syndrome.  However, he imposed no physical 
 
            restrictions or limitations.  Presumably, this rating was 
 
            based on the result of nerve conduction studies obtained on 
 
            August 20, 1990.  Claimant testified that his left arm 
 
            problems had resolved.
 
            
 
                                conclusions of law
 
            
 
                 Claimant has the burden of proving by a preponderance 
 
            of the evidence that he received an injury on August 6, 
 
            1990, which arose out of and in the course of his 
 
            employment.  McDowell v. Town of Clarksville, 241 N.W.2d 
 
            904, 908 (Iowa 1976); Musselman v. Central Telephone Co., 
 
            154 N.W.2d 128, 130 (Iowa 1967).  The words "arising out of" 
 
            have been interpreted to refer to the cause and origin of 
 
            the injury.  McClure v. Union County, 188 N.W.2d 283, 287 
 
            (Iowa 1971); Crowe v. DeSoto Consolidated School District, 
 
            68 N.W.2d 63, 65 (Iowa 1955).  The words "in the course of" 
 
            refer to the time, place and circumstances of the injury.  
 
            McClure, 188 N.W.2d at 287; Crowe, 68 N.W.2d at 65.  An 
 
            injury occurs in the course of the employment when it is 
 
            within the period of employment at a place the employee may 
 
            reasonably be, and while the employee is doing work assigned 
 
            by the employer or something incidental to it.  Cedar Rapids 
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            Community School District v. Cady, 278 N.W.2d 298, 299 (Iowa 
 
            1979), McClure, 188 N.W.2d at 287; Musselman, 154 N.W.2d at 
 
            130. 
 
            
 
                 The Supreme Court has defined a personal injury for the 
 
            purposes of workers' compensation cases.  Almquist v. 
 
            Shenandoah Nurseries, 254 N.W. 35, 38 (Iowa 1934).  In this 
 
            case the Court found that a personal injury, is an injury to 
 
            the body, the impairment of health, or a disease, not 
 
            excluded by the Workers' Compensation Act, which comes 
 
            about, not through the natural building up and tearing down 
 
            of the human body, but because of a traumatic or other hurt 
 
            or damage to the health or body of an employee.  The injury 
 
            to the human body must be something, whether an accident or 
 
            not, that acts extraneously to the natural processes of 
 
            nature, and thereby impairs the health, overcomes, injures, 
 
            interrupts, or destroys some function of the body, or 
 
            otherwise damages or injures a part or all of the body.  
 
            
 
                 The Almquist Court further observed that while a 
 
            personal injury does not include an occupational disease 
 
            under the Workers' Compensation Act, yet an injury to the 
 
            health may be a personal injury.  A personal injury includes 
 
            a disease resulting from an injury.  However, the result of 
 
            changes in the human body incident to the general processes 
 
            of nature do not amount to a personal injury.  This is true, 
 
            even though natural change may come about because the life 
 
            has been devoted to labor and hard work.  Results of those 
 
            natural changes do not constitute a personal injury even 
 
            though the same brings about impairment of health or the 
 
            total or partial incapacity of the functions of the human 
 
            body. 
 
            
 
                 The Supreme Court has also recognized that a cumulative 
 
            injury may occur over a period of time.  The injury in such 
 
            cases occurs when, because of pain or physical disability, 
 
            the claimant is compelled to leave work.  McKeever Custom 
 
            Cabinets v. Smith, 379 N.W.2d 368, 374 (Iowa 1985).  
 
            Moreover, claimant's last employer becomes liable for the 
 
            cumulative injury, even if the incidents that lead to the 
 
            ultimate injury do not occur while a claimant is employed 
 
            with the last employer.  McKeever, 379 N.W.2d at 376; See 
 
            also Doerfer Division of CCA v. Nicol, 359 N.W.2d 428, 
 
            434-35 (Iowa 1984).
 
            
 
                 The evidence indicates that claimant was initially 
 
            evaluated for numbness and tingling in his hand in 1985.  
 
            However, the problem was not terribly bothersome at that 
 
            time, despite the positive electrical findings on nerve 
 
            conduction velocity tests of early carpal tunnel syndrome.  
 
            No surgical procedure was performed.  This problem persisted 
 
            until he was laid off from employer's work for a number of 
 
            years.  After returning to work in the early part of 1990, 
 
            he began to notice a return of the numbness and tingling and 
 
            a progressive enlargement of the tissues at the volar aspect 
 
            of the wrist.  Repeat nerve conduction studies on August 20, 
 
            1990, showed an increase in the findings of carpal tunnel 
 
            syndrome.  Dr. Hendricks indicated that there was a definite 
 
            relationship between claimant's symptoms and his work 
 
            activity (exhibit 2).
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
            
 
                 On October 18, 1990, claimant underwent surgery.  
 
            According to claimant, he returned to work on December 14, 
 
            1990, with no residual symptoms.
 
            
 
                 Defendant has presented no evidence disputing Dr. 
 
            Hendricks' assessment regarding the etiology of claimant's 
 
            impairment.  Claimant was off work from November 2, 1990, 
 
            through December 13, 1990, for treatment of his work-related 
 
            injury.  Pursuant to Iowa Code section 85.34, claimant is 
 
            entitled to healing period benefits from November 2, 1990, 
 
            through December 13, 1990.
 
            
 
                 Since claimant has suffered an injury, the next 
 
            question to be resolved is whether the injury has caused a 
 
            permanent disability.  Claimant has the burden of proof.
 
            
 
                 Dr. Hendricks reported on November 11, 1991, that, to 
 
            the best of his knowledge, claimant's recovery from surgery 
 
            has been full and complete without residual symptoms.  
 
            Claimant did not return to Dr. Hendricks after surgery on 
 
            October 18, 1990, and no reevaluation was performed 
 
            regarding his left carpal tunnel syndrome.  Therefore, Dr.
 
            
 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
            Hendricks' permanent partial impairment rating as to the 
 
            left upper extremity is without merit.  Claimant did not 
 
            seek any additional medical treatment subsequent to surgery.  
 
            He admitted at the hearing that his left arm problems had 
 
            resolved and he was fully recovered from his right carpal 
 
            tunnel syndrome.  Therefore, claimant has not shown by a 
 
            preponderance of the evidence that he has sustained a 
 
            permanent impairment as a result of his bilateral carpal 
 
            tunnel syndrome.
 
            
 
                 The next issue to be determined is whether claimant is 
 
            entitled to medical expenses under Iowa Code section 85.27.
 
            
 
                 The employer shall furnish reasonable surgical, 
 
            medical, dental, osteopathic, chiropractic, podiatric, 
 
            physical rehabilitation, nursing, ambulance and hospital 
 
            services and supplies for all conditions compensable under 
 
            the workers' compensation law.  The employer shall also 
 
            allow reasonable and necessary transportation expenses 
 
            incurred for those services.  The employer has the right to 
 
            choose the provider of care, except where the employer has 
 
            denied liability for the injury.  Section 85.27.; Holbert v. 
 
            Townsend Engineering Co., Thirty-second Biennial Report of 
 
            the Industrial Commissioner 78 (Review-reopen 1975).  
 
            Claimant has the burden of proving that the fees charged for 
 
            such services are reasonable.  Anderson v. High Rise Constr. 
 
            Specialists, Inc., File No. 850096 (App. 1990).
 
            
 
                 Claimant is not entitled to reimbursement for medical 
 
            bills unless claimant shows they were paid from claimant's 
 
            funds.  See Caylor v. Employers Mut. Casualty Co., 337 
 
            N.W.2d 890 (Iowa Ct. App. 1983).
 
            
 
                 When a designated physician refers a patient to another 
 
            physician, that physician acts as the defendant employer's 
 
            agent.  Permission for the referral from defendants is not 
 
            necessary.  Kittrell v. Allen Memorial Hospital, 
 
            Thirty-fourth Biennial Report of the Industrial Commissioner 
 
            164 (Arb. Decn. 1979) (aff'd by indus. comm'r).
 
            
 
                 An employer's right to select the provider of medical 
 
            treatment to an injured worker does not include the right to 
 
            determine how an injured worker should be diagnosed, 
 
            evaluated, treated or other matters of professional medical 
 
            judgment.  Assmann v. Blue Star Foods, Inc., File No. 866389 
 
            (Declaratory Ruling, May 18, 1988).
 
            
 
                 Defendant cannot deny that an injury arose out of and 
 
            in the course of employment on one hand and seek to guide
 
            
 
            
 
            Page   6
 
            
 
            
 
            
 
            
 
            medical treatment on the other.  Barnhart v. MAQ, Inc., I 
 
            Iowa Industrial Commissioner Report 16 (Appeal Decision 
 
            1981).
 
            
 
                 Therefore, claimant is entitled to be reimbursed 
 
            $161.20 for a medical deductible he paid out-of-pocket.
 
            
 
                                      order
 
            
 
                 THEREFORE, IT IS ORDERED:
 
            
 
                 That defendant pay to claimant six (6) weeks of healing 
 
            period benefits at the rate of four hundred sixty-four and 
 
            50/100 dollars ($464.50) commencing November 2, 1990, 
 
            through December 13, 1990.
 
            
 
                 That defendant pay to claimant one hundred sixty-one 
 
            and 20/100 dollars ($161.20) in out-of-pocket medical 
 
            deductible expenses.
 
            
 
                 That defendant receive credit under Iowa Code section 
 
            85.38(2) for previous payments made under a nonoccupational 
 
            group plan.
 
            
 
                 That defendant receive credit for any benefits 
 
            previously paid.
 
            
 
                 That defendant pay accrued amounts in lump sum.
 
            
 
                 That defendant pay all costs pursuant to rule 343 IAC 
 
            4.33.
 
            
 
                 That defendant pay interest pursuant to Iowa Code 
 
            section 85.30.
 
            
 
                 That defendant file claim activity reports as required 
 
            by the agency.
 
            
 
                 Signed and filed this ____ day of March, 1992.
 
            
 
            
 
            
 
            
 
                                          ______________________________
 
                                          JEAN M. INGRASSIA
 
                                          DEPUTY INDUSTRIAL COMMISSIONER    
 

 
            
 
            Page   7
 
            
 
            
 
            
 
            
 
            
 
            Copies to:
 
            
 
            Mr. James Hoffman
 
            Attorney at Law
 
            Middle Road
 
            PO BOX 1087
 
            Keokuk, Iowa  52632-1087
 
            
 
            Mr. William J. Cahill
 
            Attorney at Law
 
            200 Jefferson St.
 
            Burlington, Iowa  52601
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                               5-1802; 5-1803; 5-2501
 
                                               Filed March 31, 1992
 
                                               JEAN M. INGRASSIA
 
            before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            MICHAEL E. DOWELL,            :
 
                                          :
 
                 Claimant,                :         File No. 966524
 
                                          :
 
            vs.                           :      A R B I T R A T I O N
 
                                          :
 
            J. I. CASE COMPANY,           :         D E C I S I O N
 
                                          :
 
                 Employer,                :
 
                 Self-Insured,            :
 
                 Defendant.               :
 
            __________________________________________________________
 
            
 
            5-1802
 
            Claimant proved by a preponderance of the evidence that he 
 
            received a work-related injury arising out of and in the 
 
            course of employment with employer.  Claimant was diagnosed 
 
            with bilateral carpal tunnel syndrome and underwent surgery 
 
            on the right wrist only.  Claimant's treating surgeon 
 
            related claimant's injury to his work as a laborer and 
 
            machine operator with employer.  Claimant was awarded 
 
            healing period benefits from November 2, 1990 through 
 
            December 13, 1990.
 
            
 
            5-1803
 
            Claimant's surgeon opined that claimant had no residual 
 
            symptoms from his right carpal tunnel release but that he 
 
            sustained 5 percent permanent partial disability due to left 
 
            carpal tunnel syndrome although surgery was not performed on 
 
            this extremity.  Nevertheless, claimant was given no 
 
            restrictions or limitations and claimant testified he was 
 
            asymptomatic.  Therefore, no permanency established.
 
            
 
            5-2501
 
            Claimant was awarded previously paid out-of-pocket medical 
 
            deductible in the amount of $161.20 because his injury was 
 
            determined to be causally connected to his work.
 
            
 
 
         
 
         
 
         
 
         
 
         
 
         
 
         
 
         
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         ____________________________________________________________
 
                                       :
 
         ARTHUR OWEN,                  :
 
                                       :
 
              Claimant,                :        File No. 966529
 
                                       :
 
         vs.                           :          A P P E A L
 
                                       :
 
         DEERE AND COMPANY,            :        D E C I S I O N
 
                                       :
 
              Employer,                :
 
              Self-Insured,            :
 
              Defendant.               :
 
                                       :
 
         ___________________________________________________________
 
         
 
         
 
              The record, including the transcript of the hearing before 
 
         the deputy and all exhibits admitted into the record, has been 
 
         reviewed de novo on appeal.
 
         
 
                                      ISSUES
 
         
 
              Those portions of the proposed agency decision pertaining to 
 
         issues not raised on appeal are adopted as a part of this appeal 
 
         decision.  The issues raised on appeal are:
 
         
 
                 1.  Whether the deputy industrial commissioner erred 
 
              by holding that the employer is not required to 
 
              specially plead the defenses of sec. 85B.8 of the Code.
 
         
 
                 2.  Whether the deputy industrial commissioner erred 
 
              in not finding the date of claimant's hearing loss 
 
              injury was October 8, 1989.
 
         
 
                 3.  Whether the deputy industrial commissioner erred 
 
              in holding that a person placed on long term disability 
 
              status pursuant to the Deere & Company collective 
 
              bargaining agreement did not constitute layoff status 
 
              pursuant to sec. 85B.8 of the Code.
 
         
 
                                 FINDINGS OF FACT
 
         
 
              The findings of fact contained in the proposed agency 
 
         decision filed April 20, 1992 are adopted as final agency action.
 
         
 
                                CONCLUSIONS OF LAW
 
         
 
              The conclusions of law contained in the proposed agency 
 
         decision filed April 20, 1992 are adopted as set forth below.  
 
         Segments designated by asterisks (*****) indicate portions of the 
 
         language from the proposed agency decision that have been 
 
         intentionally deleted and do not form a part of this final agency 
 
         decision.  Segments designated by brackets ([ ]) indicate 
 
         language that is in addition to the language of the proposed 
 
         agency decision.
 

 
         
 
         Page  2
 
         
 
         
 
             
 
         
 
              *****
 
         
 
              [Defendants were not required to plead Iowa Code section 
 
         85B.8 as an affirmative defense.  That section defines an element 
 
         of claimant's cause of action, and claimant bears the burden of 
 
         proof to show that he is entitled to benefits.
 
         
 
              Iowa Code section 85B.8 states as follows:]
 
         
 
                 A claim for occupational hearing loss due to 
 
              excessive noise levels may be filed six months after 
 
              separation from the employment in which the employee 
 
              was exposed to excessive noise levels.  The date of the 
 
              injury shall be the date of occurrence of any one of 
 
              the following events:
 
         
 
                 1.  Transfer from excessive noise level employment 
 
              by an employer.
 
         
 
                 2.  Retirement.
 
         
 
                 3.  Termination of the employer-employee 
 
              relationship.
 
         
 
                 The date of injury for a layoff which continues for 
 
              a period longer than one year shall be six months after 
 
              the date of the layoff.  However, the date of the 
 
              injury for any loss of hearing incurred prior to 
 
              January 1, 1981 shall not be earlier than the 
 
              occurrence of any one of the above events.
 
         
 
              *****
 
         
 
              [Claimant's present status under the employer's long-term 
 
         disability plan is clearly not a layoff.  Similarly, claimant has 
 
         not been transferred from the noise level employment by the 
 
         employer.  Claimant has not retired.  Claimant, under the 
 
         long-term disability plan, is still technically an employee of 
 
         the employer, even though the evidence shows that claimant's 
 
         disability is such that he is not likely to ever be recalled to 
 
         active work.
 
         
 
              Thus, claimant does not meet any of the enumerated criteria 
 
         for an "occurrence" under Iowa Code 85B.8, and in addition 
 
         claimant has not been laid off.  The deputy industrial 
 
         commissioner thus concluded that claimant's action was not ripe 
 
         and the case was dismissed.
 
         
 
              However, this narrow reading of 85B.8 leads to the 
 
         conclusion that claimant, as long as he is on long-term 
 
         disability, cannot bring an action for his alleged hearing loss.  
 
         The record shows that claimant's long-term disability eligibility 
 
         could last until the year 2007.  To hold that 85B.8 requires 
 
         claimant to wait 17 years after his last exposure to the noise 
 
         levels before bringing an action for hearing loss benefits is an 
 
         unreasonable interpretation of the statute and would not reflect 
 
         the intention of the legislature.  This is especially egregious 
 

 
         
 
         Page  3
 
         
 
         
 
              
 
               
 
         when it is considered that claimant's long-term disability status 
 
         was due to unrelated back injuries and not his hearing loss.
 
         
 
              The Iowa Workers' Compensation Law has been held to be "for 
 
         the benefit of the working man and should be, within reason, 
 
         liberally construed."  Barton v. Nevada Poultry Co., 253 Iowa 
 
         285, 289, 110 N.W.2d 660, 662 (1961).  Also see Irish v. McCreary 
 
         Saw Mill, 175 N.W.2d 374 (Iowa 1970).  The Iowa Supreme Court has 
 
         recently reaffirmed this by saying "We construe the Act liberally 
 
         in favor of the employee; we resolve all doubts in favor of the 
 
         employee."  Hanson v. Reichelt, Iowa Supreme Court, February 21, 
 
         1990 [citing Teel v. McCord, 394 N.W.2d 405, 406-407 (Iowa 
 
         1986)].  Also see Bearce v. FMC Corporation, 465 N.W.2d 531 (Iowa 
 
         1991).  The primary purpose of the workers' compensation statute 
 
         is to benefit workers and workers' dependents insofar as the 
 
         statute permits and than the statute is to be interpreted 
 
         liberally with a view toward that objective.  Caterpillar Tractor 
 
         Co. v. Shook, 313 N.W.2d 503 (1981)
 
         
 
              These rules of statutory construction have been applied to 
 
         interpreting Iowa Code section 85B.8  John Deere Dubuque Works v. 
 
         Weyant, 442 N.W.2d 101 (Iowa 1989).  There, the Iowa Supreme 
 
         Court stated:
 
         
 
              When interpreting a statute, our ultimate goal is to 
 
              ascertain and give effect to the intention of the 
 
              legislature.  See Kohrt v. Yetter, 344 N.W.2d 245, 246 
 
              (Iowa 1984).  We seek a reasonable interpretation that 
 
              will best effect the purpose of the statute and avoid 
 
              an absurd result.  Harden v. State, 434 N.W.2d 881, 884 
 
              (Iowa 1989) We consider all portions of the statute 
 
              together, without attributing undue importance to any 
 
              single or isolated portion.  Id.  When two 
 
              interpretations of a limitations statute are possible, 
 
              the one giving the longer period to a litigant seeking 
 
              relief is to be preferred and applied.  Meyers, 410 
 
              N.W.2d at 257.
 
         
 
              Although the deputy duly applied 85B.8 according to its 
 
         terms, it appears that the intent of the section is contained in 
 
         the first paragraph of the section, which allows an employee to 
 
         bring an action for hearing loss "six months after separation 
 
         from the employment in which the employee was exposed to 
 
         excessive noise levels."  The section then sets forth four 
 
         alternatives that may constitute a separation from excessive 
 
         noise level employment.  Although going on long-term disability 
 
         status is not enumerated in the section, such status under the 
 
         facts of this case nevertheless represents a separation from 
 
         excessive noise level employment.  Claimant may still technically 
 
         be an employee of John Deere, but the practical reality is that 
 
         he has been separated from the employment that exposed him to 
 
         excessive noise.
 
         
 
              Alternatively, claimant's placement on long-term disability 
 
         with little possibility of recall, as the record indicates here, 
 
         essentially constitutes a termination of the employer-employee 
 
         relationship as set forth in Iowa Code 85B.8(3).  Although 
 
         claimant still enjoys some of the benefits of the 
 

 
         
 
         Page  4
 
         
 
         
 
              
 
              
 
         employer-employee relationship for other purposes, such as 
 
         accumulating seniority, again the practical result is that, for 
 
         purposes of his hearing loss exposure, the relationship ended 
 
         when he left work to go on long-term disability.
 
         
 
              Under either analysis, claimant is held to have separated 
 
         from the employment in which he was exposed to excessive noise 
 
         levels on the date when claimant left his excessive noise level 
 
         work and went on long-term disability.  This holding is limited 
 
         to the facts of this case.]
 
         
 
              WHEREFORE, the decision of the deputy is reversed.
 
         
 
                                      ORDER
 
         
 
              THEREFORE, it is ordered:
 
         
 
              As the deputy industrial commissioner who heard the evidence 
 
         in the case did not reach the other issues because of the ruling 
 
         on the 85B.8 issue, it is appropriate to remand this case for 
 
         further proceedings by the deputy on any other issues presented.
 
         
 
              That defendant shall pay the costs of the appeal including 
 
         the transcription of the hearing.  Claimant shall pay all other 
 
         costs.
 
         
 
              Signed and filed this ____ day of May, 1993.
 
         
 
         
 
         
 
         
 
                                       ________________________________
 
                                                BYRON K. ORTON
 
                                           INDUSTRIAL COMMISSIONER
 
         
 
         Copies To:
 
         
 
         Mr. Robert D. Fulton
 
         Attorney at Law
 
         Sixth Floor
 
         First National Building
 
         P O Box 2634
 
         Waterloo, Iowa  50704
 
         
 
         Mr. John W. Rathert
 
         Attorney at Law
 
         620 Lafayette Street
 
         P O Box 178
 
         Waterloo, Iowa  50704
 
         
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                                  2208
 
                                                  Filed May 26, 1993
 
                                                  BYRON K. ORTON
 
                      
 
            
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
                                          :
 
            ARTHUR OWEN,                  :
 
                                          :
 
                 Claimant,                :        File No. 966529
 
                                          :
 
            vs.                           :          A P P E A L
 
                                          :
 
            DEERE AND COMPANY,            :        D E C I S I O N
 
                                          :
 
                 Employer,                :
 
                 Self-Insured,            :
 
                 Defendant.               :
 
                                          :
 
            ___________________________________________________________
 
            
 
            
 
            2208
 
            Hearing loss -  Claimant was on long-term disability status 
 
            from John Deere with little possibility of recall.  Under 
 
            the union contract, claimant, while on long-term disability, 
 
            was still technically an employee.  Claimant had apparently 
 
            chosen long-term disability rather than a total disability 
 
            pension because of a slightly higher monthly income and 
 
            continuing accumulation of seniority.  Claimant would remain 
 
            eligible for long-term disability until the year 2007.
 
            On appeal, reversed holding that claimant's action for 
 
            hearing loss was not ripe because he did not fit any of the 
 
            enumerated events in 85B.8 (transfer from excessive noise 
 
            level, retirement, termination of employer-employee 
 
            relationship, or layoff).  Instead, it was held that the 
 
            statute was to be liberally construed, and requiring 
 
            claimant to wait perhaps 17 years to bring his action for 
 
            hearing loss was not legislative intent.  Preliminary 
 
            language of 85B.8 speaks of bringing an action six months 
 
            "after separation from the employment in which the employee 
 
            was exposed to excessive noise levels."  Held that 
 
            claimant's going on long-term disability constituted either 
 
            a termination of the employer-employee relationship under 
 
            85B.8 or, alternatively, met the over-arching requirement of 
 
            85B.8 of separation from employment, and claimant's action 
 
            for hearing loss benefits was ripe.  Holding limited to 
 
            facts of this case.
 
            
 
 
            
 
            Page  1
 
            
 
            
 
            
 
            
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            ARTHUR OWEN,                  :
 
                                          :
 
                 Claimant,                :        File No. 966529
 
                                          :
 
            vs.                           :
 
                                          :      A R B I T R A T I O N
 
            DEERE AND COMPANY,            :
 
                                          :        D E C I S I O N
 
                 Employer,                :
 
                 Self-Insured,            :
 
                 Defendant.               :
 
                                          :
 
            ___________________________________________________________
 
            
 
                              statement of the case
 
            
 
                 This case came on for hearing on April 9, 1992, at 
 
            Waterloo, Iowa.  The record in the proceedings consist of 
 
            the testimony of the claimant; claimant's wife, Patricia 
 
            Owen; Wilbur Frahm; and, Jim Stewart; and, joint exhibits 1 
 
            through 12.
 
            
 
                                      ISSUES
 
            
 
                 The issues for resolution are:
 
            
 
                 1.  Whether claimant incurred an occupational hearing 
 
            loss injury which arose out of and in the course of his 
 
            employment on April 8, 1989;
 
            
 
                 2.  The extent of permanent disability and claimant's 
 
            entitlement to disability benefits, if any, and the 
 
            beginning dates of any benefits;
 
            
 
                 3.  Whether claimant's alleged occupational hearing 
 
            loss is causally connected to claimant's alleged injury on 
 
            April 8, 1989;
 
            
 
                 4.  Whether claimant is entitled to a hearing aid and 
 
            the cost under 85B.12
 
            
 
                                 findings of fact
 
            
 
                 The undersigned deputy, having heard the testimony and 
 
            considered all the evidence, finds that:
 
            
 
                 Claimant is a 53-year-old who left school after the 
 
            seventh grade.  Claimant related his work history prior to 
 
            beginning work with defendant employer on March 27, 1972, 
 
            which is claimant's seniority date for purposes of any 
 
            layoff.  He last worked for defendant employer April 7, 
 
            1989.
 
            
 
                 Claimant went into detail as to his various job duties, 
 
            location of the departments, the machines and the extent and 
 
            period and nature of the noise at work (Joint Exhibit 5).
 

 
            
 
            Page  2
 
            
 
            
 
            
 
            
 
            
 
                 Claimant testified he has had basically no exposure to 
 
            excessive noise outside of his employment with John Deere.
 
            
 
                 Claimant said he is currently on long-term disability 
 
            because of three back operations and foot surgery.  His last 
 
            foot surgery was six weeks ago.  Claimant went off work 
 
            originally because of his back problem.  These medical 
 
            problems are not an issue.  Claimant is before this agency 
 
            on an alleged hearing loss.
 
            
 
                 Claimant's current long-term disability was triggered 
 
            under the union contract after claimant was off work and on 
 
            weekly indemnity (WI) for one year.
 
            
 
                 Claimant is also receiving social security benefits.  
 
            He said his doctor put him under weight restrictions.  
 
            Claimant said he received a letter six months ago indicating 
 
            social security is reviewing his case.  He has heard nothing 
 
            from them since.
 
            
 
                 Claimant related a discussion nine months ago with 
 
            Arnold E. Delbridge, M.D., as to going back to work.  
 
            Claimant doesn't believe he can.  Claimant said C.R. Buck, 
 
            M.D., the company's in-house doctor, said he had something 
 
            to say about that.  Claimant said no John Deere doctor said 
 
            he can return to work and claimant sees no way he can return 
 
            due to his legs, feet and back.
 
            
 
                 Claimant indicated he just found out yesterday that 
 
            there are other benefits to which he may be entitled other 
 
            than long-term disability.  Claimant is currently receiving 
 
            $684 per month long-term disability.  Claimant indicated 
 
            that John Deere recommended claimant file for long-term 
 
            disability.  He contends he never filed for a total 
 
            permanent disability pension because he didn't know about it 
 
            until yesterday.  Claimant was later recalled and indicated 
 
            he didn't know about these other benefits until the day of 
 
            the hearing.
 
            
 
                 Claimant indicated on cross-examination that he blames 
 
            Department 67 for his hearing loss, but when transferred to 
 
            Department 57 on August 28, 1983, he had realized his 
 
            hearing loss was permanent.  Claimant said this was 
 
            confirmed by a specialist in August of 1984 (Jt. Ex. 3).
 
            
 
                 Claimant indicated he wore protectors on his ears if he 
 
            needed it but never wore it in Department 67 until it was 
 
            too late and damage was already done.  Claimant said if he 
 
            then wore the ear protectors, he would have the ringing in 
 
            his head so he would place the protectors on the edge of his 
 
            ears so it would appear he was wearing them.
 
            
 
                 Claimant feels he has lost some hearing since April 7, 
 
            1989.  His last test at work was February 1989.  Claimant 
 
            agreed if he has lost hearing since that day, it would be 
 
            after he left work.  Claimant acknowledged he knew of his 
 
            hearing loss and that he felt the work caused it.
 
            
 
                 Wilbur Frahm, a retiree from John Deere in September 
 

 
            
 
            Page  3
 
            
 
            
 
            
 
            
 
            1987, worked with claimant in Department 67 and then later 
 
            in Department 57.  He corroborated claimant's testimony as 
 
            to the noisy conditions in the department and that 
 
            claimant's fellow employees would play jokes on the claimant 
 
            by banging tools on his welding booth.  He related claimant 
 
            would storm out of his booth and give people heck for 
 
            hitting his work booth.
 
            
 
                 Patricia Owen, claimant's wife, testified she first met 
 
            claimant in February 1982 and married him on August 7, 1982.  
 
            She said claimant complained of noise at work and that his 
 
            head hurt and his ears were ringing.  She said she didn't 
 
            notice claimant's hearing problem when she first dated 
 
            claimant but that his hearing gradually became worse through 
 
            the fall of 1982 and then leveled off.
 
            
 
                 Jim Stewart, president of Local 838 John Deere Union 
 
            since 1989, has worked for John Deere 28 years and he is 
 
            familiar with the union contract.  One of the books covers 
 
            layoffs, job security and wages and the second book covers 
 
            pension, health benefits, etc.
 
            
 
                 Mr. Stewart explained that if an employee is disabled, 
 
            he or she receives weekly indemnity (WI) and if disabled for 
 
            over one year, then an employee receives long-term 
 
            disability (LTD) after the first year.  It is necessary for 
 
            one to be totally disabled to get LTD, but he said 
 
            disability is determined by the outside doctor.  He stated 
 
            seniority minus one year determines the weekly indemnity.  
 
            He said claimant's seniority date is 1972 and at the time of 
 
            the alleged hearing loss injury, claimant had 16 years (17 
 
            years minus one).  Therefore, claimant could remain on LTD 
 
            until the year 2007.
 
            
 
                 Mr. Stewart indicated the defendant has the right to 
 
            have claimant come in for an examination if there is a 
 
            question as to claimant's disability entitlement.  He said 
 
            the company doctor will contact the outside doctor who had 
 
            determined claimant's disability.  If both doctors agree 
 
            that claimant can't do any work, the employee can be put on 
 
            a total and permanent disability pension.  If there is a 
 
            disagreement as to claimant's disability, there are 
 
            provisions for a third party doctor to make a final binding 
 
            determination.
 
            
 
                 Mr. Stewart said it is more beneficial to be on LTD 
 
            than on disability pension ($684 per month versus $600 per 
 
            month).  Mr. Stewart related that if claimant was laid off, 
 
            he would have 17 years recall right; in other words, to the 
 
            year 2007.  But, unlike when claimant is on LTD, claimant 
 
            would not be adding any seniority rights.
 
            
 
                 Claimant now has 20 years seniority because he has 
 
            accumulated three years while on LTD.  Claimant would not 
 
            have accumulated these added three years if he were on a 
 
            total permanent disability pension, retired or on layoff.  
 
            Mr. Stewart emphasized the total permanent disability 
 
            pension is a retirement mode as to benefits effect.  Once 
 
            claimant retires, he loses his seniority for recall 
 
            purposes.
 

 
            
 
            Page  4
 
            
 
            
 
            
 
            
 
            
 
                 Mr. Stewart emphasized that the determination of 
 
            disability is based on medical evidence.  It is obvious the 
 
            whims of the defendant are not controlling in this area.  
 
            The claimant seems to infer that when Dr. Buck allegedly 
 
            made a statement that he has a say as to disability, it 
 
            would indicate the company is intentionally trying to keep 
 
            claimant on LTD rather than allowing a layoff.  As we will 
 
            see later, claimant is taking the position in this case that 
 
            he was, in fact, laid off so he could come under the 
 
            provisions of 85B.8.
 
            
 
                 Mr. Stewart said LTD contemplates a possibility of 
 
            return to work which would be mandated if claimant's medical 
 
            condition warranted it.  He emphasized a layoff is not the 
 
            same as retirement, and LTD and a layoff are in two 
 
            different sections of the agreement.  Only as to keeping or 
 
            maintaining seniority (not accumulating) are they identical.
 
            
 
                 Mr. Stewart was asked whether any job would be 
 
            available to the claimant considering claimant's restriction 
 
            and being off work for three years.  He said no as defendant 
 
            no longer has available clerk or sit down jobs or light 
 
            duty.  He also emphasized one now needs seventeen years of 
 
            John Deere seniority for a chance to be recalled and even 
 
            with claimant's three year cushion (20 years minus 17), 
 
            claimant's chances are slim to none.  He did indicate again 
 
            claimant is not in a layoff but in a disability program and 
 
            could be eligible to come back to work and his seniority 
 
            continues to accumulate while on LTD but not under a layoff.  
 
            In both instances, claimant maintains his seniority of 17 
 
            years as of 1989.
 
            
 
                 Mr. Stewart did not believe claimant would be called 
 
            back to work in his present condition.
 
            
 
                 The undersigned is not going to set out, review or make 
 
            a finding as to claimant's medical evidence or whether 
 
            claimant, in fact, has a hearing loss or whether there is a 
 
            causal connection because there is a question as to whether 
 
            an injury arose out of and in the course of claimant's 
 
            employment and connected with this issue, whether an 
 
            occurrence under 85B.8 has taken place.
 
            
 
                 Iowa Code section 85B.8 sets out the requirements 
 
            necessary to determine the date of an occupational hearing 
 
            loss injury which is determined upon determining the 
 
            occurrence of one of three events.  Claimant does not 
 
            contend that he was transferred from an excessive noise 
 
            level by the employer.  If that were the condition, there 
 
            would appear to be a possible statute of limitation problem.  
 
            The evidence is clear there was not a termination of the 
 
            employer-employee relationship.  The evidence is clear 
 
            claimant did not retire even though claimant contends he 
 
            just found out at the date of hearing or possibly the day 
 
            before that he could apply for benefits other than what he 
 
            actually applied for.  Claimant seems to indicate he was 
 
            told by the company only about applying for LTD.  The 
 
            undersigned doesn't believe the company has the obligation 
 
            to hold the hand of this employee and read the contract 
 

 
            
 
            Page  5
 
            
 
            
 
            
 
            
 
            section by section to him.  Claimant could have asked the 
 
            president of the union, who he had as a witness, as to his 
 
            understanding of the contract if he had a question and as to 
 
            his options, if applicable.  Whether claimant likes 
 
            receiving $684 per month versus $600, if he retired, plus 
 
            being able to accumulate seniority years by staying on LTD 
 
            was not elaborated on by the claimant, but the undersigned 
 
            finds his "excuse" to be not credible.  There was 
 
            considerable discussion and argument, most off the record, 
 
            as to whether this action was brought too early, etc., and 
 
            this may have generated claimant's current posturing.
 
            
 
                 Claimant has April 8, 1989, as the injury date and on 
 
            the prehearing report claimant tried to insert additionally 
 
            the date of October 8, 1989.  This was obviously done to 
 
            help in the posturing of claimant's attempt to possibly fit 
 
            the statute.  Claimant contends he comes under the 
 
            provisions of 85B.8 which provides that the date of injury 
 
            for a layoff that continues for a period longer than one 
 
            year shall be six months after the layoff.  Assuming for 
 
            argument purposes that there was a layoff (claimant's last 
 
            day of work was April 7, 1989) claimant no longer worked 
 
            beginning April 8, 1990.  Therefore, six months is October 
 
            8, 1989.  Defendant vigorously resisted this new date of 
 
            October 8, 1989 being put in the prehearing report 
 
            contending it is an amendment and prejudicial at this late 
 
            date.  The undersigned agreed with defendant and the 
 
            undersigned believes it would be highly prejudicial since 
 
            this is obviously the only way claimant could possibly save 
 
            (assuming there is a layoff) his current cause of action.  
 
            The undersigned proceeded on an April 8, 1989 injury date.
 
            
 
                 As to whether there was a layoff, the undersigned 
 
            believes if there was any doubt, which from the evidence the 
 
            undersigned had no doubt, the union president laid that 
 
            question to rest.  The undersigned finds that claimant was 
 
            not laid off and had been participating in the benefits of 
 
            LTD which gave claimant $684 per month and the right to 
 
            accumulate additional seniority years and recall rights to 
 
            the year 2007.  It is immaterial whether claimant knew what 
 
            his contract provided or whether he read the contract.  
 
            Claimant's attorney contends that if there is not a layoff, 
 
            then the employer can keep claimant on LTD until the year 
 
            2007 and never be laid off or called back or get pension 
 
            benefits.  This is an unacceptable argument.  There is 
 
            nothing preventing claimant from reading the contract and 
 
            exercising his rights if he thinks he can get a better deal, 
 
            one of which is taking $600 per month in lieu of $684 if he 
 
            would be considered as a total disability pensioner.  The 
 
            undersigned finds claimant was not laid off.  The 
 
            undersigned finds that claimant has not shown that he 
 
            incurred a hearing loss that arose out of and in the course 
 
            of his employment on April 8, 1989.  The undersigned further 
 
            finds that claimant's petition was brought too early and 
 
            that the provisions of 85B.8, date of occurrence, were not 
 
            complied with and, in fact, there has not been an injury or 
 
            hearing loss injury that occurred on April 8, 1989 or 
 
            October 8, 1989.
 
            
 
                 The undersigned finds that there is no need to discuss 
 

 
            
 
            Page  6
 
            
 
            
 
            
 
            
 
            the other issues as they are moot in light of this decision.
 
            
 
                         analysis and conclusions of law
 
            
 
                 Claimant has the burden of proving by a preponderance 
 
            of the evidence that he received a hearing loss on April 8, 
 
            1989, which arose out of and in the course of his 
 
            employment. McDowell v. Town of Clarksville, 241 N.W.2d 904 
 
            (Iowa 1976); Musselman v. Central Telephone Co., 261 Iowa 
 
            352, 154 N.W.2d 128 (1967). 
 
            
 
                 Iowa Code section 85B.8 provides:
 
            
 
                    A claim for occupational hearing loss due to 
 
                 excessive noise levels may be filed six months 
 
                 after separation from the employment in which the 
 
                 employee was exposed to excessive noise levels.  
 
                 The date of the injury shall be the date of 
 
                 occurrence of any one of the following events:
 
            
 
                    1.  Transfer from excessive noise level 
 
                 employment by an employer.
 
            
 
                    2.  Retirement.
 
            
 
                    3.  Termination of the employer-employee 
 
                 relationship.
 
            
 
                    The date of injury for a layoff which continues 
 
                 for a period longer than one year shall be six 
 
                 months after the date of the layoff.  However, the 
 
                 date of the injury for any loss of hearing 
 
                 incurred prior to January 1, 1981 shall not be 
 
                 earlier than the occurrence of any one of the 
 
                 above events.
 
            
 
     
 
            
 
            
 
            Page  7
 
            
 
            
 
            
 
            
 
            It is further concluded that:
 
            
 
                 Claimant did not incur an occupational hearing loss 
 
            injury that arose out of and in the course of his employment 
 
            on April 8, 1989.
 
            
 
                 Claimant was not laid off from his employment on April 
 
            8, 1989, nor was claimant on a layoff which continued for a 
 
            period longer than one year.
 
            
 
                 Claimant was not transferred from an excessive noise 
 
            level employment by the employer, nor was claimant retired, 
 
            nor was claimant terminated by the employer, thereby 
 
            terminating the employer-employee relationship.
 
            
 
                                      order
 
            
 
                 THEREFORE, it is ordered:
 
            
 
                 That claimant takes nothing from these proceedings.
 
            
 
                 That claimant shall pay the costs of this action, 
 
            pursuant to rule 343 IAC 4.33.
 
            
 
                 Signed and filed this ____ day of April, 1992.
 
            
 
            
 
            
 
                                          ______________________________
 
                                          BERNARD J. O'MALLEY
 
                                          DEPUTY INDUSTRIAL COMMISSIONER
 
            
 
            Copies to:
 
            
 
            Mr Robert D Fulton
 
            Attorney at Law
 
            6th Flr 1st Natl Bldg
 
            P O Box 2634
 
            Waterloo IA 50704
 
            
 
            Mr John W Rathert
 
            Attorney at Law
 
            620 Lafayette St
 
            P O Box 178
 
            Waterloo IA 50704
 
            
 
            
 
                 
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                          1100; 2208; 2200
 
                                          Filed April 20, 1992
 
                                          Bernard J. O'Malley
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            ARTHUR OWEN,                  :
 
                                          :
 
                 Claimant,                :        File No. 966529
 
                                          :
 
            vs.                           :
 
                                          :      A R B I T R A T I O N
 
            DEERE AND COMPANY,            :
 
                                          :        D E C I S I O N
 
                 Employer,                :
 
                 Self-Insured,            :
 
                 Defendant.               :
 
                                          :
 
            ___________________________________________________________
 
            
 
            1100
 
            Found claimant did not incur an occupational hearing loss 
 
            that arose out of and in the course of his employment on 
 
            April 8, 1989.
 
            
 
            2208
 
            Found claimant was not laid off from his employment on April 
 
            8, 1989, nor was claimant on a layoff which continued for a 
 
            period longer than one year, nor was claimant retired, nor 
 
            transferred from an excessive noise level.
 
            
 
            2208
 
            Since claimant's filing did not come within 85B.8, date of 
 
            occurrence, claimant took nothing and other issues were 
 
            considered moot.
 
            
 
            2200
 
            Did not allow claimant's attorney to insert in prehearing 
 
            report an additional injury of October 8, 1989, in order to 
 
            posture his case for hopeful recovery based on "layoff" 
 
            under 85B.8.  Deputy found claimant was not on a layoff 
 
            anyway but was on long-term disability receiving $684 per 
 
            month and accumulating seniority versus $600 per month and 
 
            accumulating no seniority.
 
            
 
 
            
 
            Page   1
 
            
 
            
 
            
 
            
 
            
 
            
 
            
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            MARK A. WOODMAN,              :
 
                                          :
 
                 Claimant,                :         File No. 966531
 
                                          :
 
            vs.                           :      A R B I T R A T I O N
 
                                          :
 
            A-OK YELLOW CAB CO., INC.,    :         D E C I S I O N
 
                                          :
 
                 Employer,                :
 
                 Uninsured,               :
 
                 Defendant.               :
 
            ____________________________________________________________
 
            
 
                              statement of the case
 
            
 
                 This is a proceeding in arbitration brought by Mark A. 
 
            Woodman against his former employer, A-OK Yellow Cab 
 
            Company, Inc., based upon an alleged injury of December 21, 
 
            1988.  The primary issue to be determined is whether the 
 
            claimant sustained an injury which arose out of and in the 
 
            course of employment.  Claimant seeks weekly compensation 
 
            for the period commencing December 21, 1988, and running 
 
            through January 16, 1989.  Claimant also seeks payment of 
 
            medical expenses totalling $1,532.70.
 
            
 
                 The case was heard at Dubuque, Iowa, on November 19, 
 
            1991.  The record consists of testimony from Mark A. 
 
            Woodman, Debra Woodman, Ron Conrad, Olga Oltmanns and Merlin 
 
            Morett.  The record also contains exhibits 1 through 7.
 
            
 
                                 findings of fact
 
            
 
                 Having considered all the evidence received, together 
 
            with the appearance and demeanor of the witnesses, the 
 
            following findings of fact are made.
 
            
 
                 Mark A. Woodman is a 40-year-old married man who lives 
 
            at Dubuque, Iowa.  On December 21, 1988, he was employed as 
 
            a cab driver for A-OK Yellow Cab Company, Inc., a business 
 
            owned by Ron Conrad and Conrad's wife.
 
            
 
                 According to Woodman, he felt pain in his back at 
 
            approximately 9:00 p.m. when he picked up a passenger by the 
 
            name of Jason in the 3000 block of Pennsylvania Avenue.  He 
 
            then dropped the passenger off at a location referred to as 
 
            Gomer's Tap.  The passenger was an overweight young man who 
 
            is disabled by cerebral palsy and is restricted to a 
 
            wheelchair.  According to Woodman, he felt pain in his back 
 
            while transferring the passenger from the wheelchair into 
 
            the cab, again while putting the wheelchair in the back of 
 
            the cab in preparation to transport the passenger to Gomer's 
 
            Tap and then continued to experience pain throughout the 
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            
 
            
 
            
 
            rest of his work shift.  According to Woodman, he reported 
 
            his pain to the dispatcher but was asked to continue his 
 
            shift long enough to transport patrons home from the local 
 
            taverns when they closed.  Woodman did so.  Upon completing 
 
            his work, he reported to the Finley Hospital emergency room 
 
            (exhibit 1).  The emergency services record indicates that 
 
            he had marked straightening of the lumbar lordotic curve but 
 
            full flexion, extension and rotation of the lumbar spine, 
 
            normal reflexes and a normal straight leg raising test 
 
            (exhibit 1, page 2).  X-rays were interpreted as being 
 
            suggestive of possible muscle spasm (exhibit 1, page 3).
 
            
 
                 Woodman sought treatment from orthopaedic surgeon R. 
 
            Scott Cairns, M.D.  At the initial examination, Dr. Cairns 
 
            noted claimant as having moderate paraspinal tightness and 
 
            slightly diminished sensation in the left leg.  The straight 
 
            leg raising test was again normal (exhibit 3, page 1).  A 
 
            multitude of diagnostic tests were conducted but did not 
 
            show any notable abnormality.  Woodman was placed in 
 
            physical therapy.  At the initial evaluation, the physical 
 
            therapist noted that Woodman's range of motion of his back 
 
            was limited in all directions and straight leg raising tests 
 
            were shown as abnormal bilaterally (exhibit 4, page 2).  
 
            After completing physical therapy, Woodman was released by 
 
            Dr. Cairns to resume work effective January 19, 1989, with a 
 
            restriction against lifting more than 30 pounds.  At the 
 
            time of a follow-up visit on January 30, Woodman appeared 
 
            markedly improved.  Woodman has not received any further 
 
            treatment for his back since January 30, 1989 (exhibit 3, 
 
            page 1).
 
            
 
                 Woodman's testimony at hearing was also to the effect 
 
            that he had never had any prior problem with his low back.  
 
            He stated that, while he was off work, he was unable to 
 
            engage in any type of strenuous activity and specifically 
 
            did not engage in shoveling snow.
 
            
 
                 According to Olga Oltmanns, a dispatcher and 18-year 
 
            employee of this employer, Woodman reported early for work 
 
            on December 21, 1988, and made a statement which indicated 
 
            that he had a backache.  According to Oltmanns, Woodman did 
 
            not tell her what had caused the backache.  She did not 
 
            notice anything unusual about his appearance or activities.  
 
            Oltmanns also related that, on a prior occasion, Woodman had 
 
            requested being allowed to take off work during the 
 
            Christmas holiday season.  Oltmanns testified that she 
 
            referred him on to the business owner, Ron Conrad.
 
            
 
                 Ron Conrad, co-owner of A-OK Yellow Cab Company, Inc., 
 
            testified that approximately two days prior to December 21, 
 
            1988, Woodman had asked to get off work over the holidays 
 
            but that the request was denied.  According to business 
 
            records for December 21, 1988, Conrad stated that Woodman 
 
            had checked in for work at 3:02 p.m. and checked out at 2:35 
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            
 
            
 
            
 
            a.m.  Conrad also related that Woodman had not picked up any 
 
            passenger on Pennsylvania Avenue on December 21.  He 
 
            acknowledged that on that date, Woodman had picked up a 
 
            passenger at 2138 Central and transported that passenger to 
 
            Gomer's Tap and then later picked up a passenger at Gomer's 
 
            Tap and returned the passenger to 3276 Pennsylvania.  That 
 
            trip was the last one Woodman made during that work shift.
 
            
 
                 Rebuttal witness Merlin Morett testified that on 
 
            approximately January 2 or 3, 1989, he observed Woodman 
 
            shoveling snow at Woodman's home.  Morett stated that 
 
            Woodman had a shovel and that no one else was present.  
 
            Woodman specifically denied performing any shoveling but 
 
            stated that he did supervise shoveling when the teenaged 
 
            children in his home performed it.  According to Woodman and 
 
            his wife, Debra, the teenaged children were responsible for 
 
            all snow shoveling without regard to any injury.
 
            
 
                 Debra Woodman testified that Mark had not had any lower 
 
            back problems prior to December 21, 1988, when he phoned 
 
            her, reported that he had been injured and stated he was 
 
            seeking medical treatment.  According to Debra, his voice 
 
            sounded as if he were in pain.  She also related that, when 
 
            he returned from seeking treatment, he was unable to sleep.  
 
            According to Debra, he got no relief from his pain until he 
 
            entered the physical therapy program.
 
            
 
                 This case presents conflicting and controverted 
 
            evidence.  Page 3 of joint exhibit 1 indicates that on 
 
            December 31, 1988, the employer had notified Dr. Cairns that 
 
            claimant had previously complained of back problems and was 
 
            simply seeking additional time off work.  The only evidence 
 
            in the case of any previous low back problems comes from 
 
            Oltmanns.  There is no corroboration in this record for her 
 
            statement that Woodman reported having a backache on 
 
            December 21, 1988, at the time when he reported for work.  
 
            The evidence in the record shows no indication of any prior 
 
            low back problems.  There is no corroboration for Morett's 
 
            testimony that claimant was shoveling snow in early January.  
 
            The employer's evidence that Woodman had sought time off 
 
            work is provided by both Conrad and Oltmanns, while Woodman 
 
            stated that he did not seek time off work and had no reason 
 
            to seek time off work over the holidays since he was not 
 
            scheduled to work on the holidays.  Woodman's testimony that 
 
            he picked up the disabled passenger and delivered that 
 
            passenger to Gomer's Tap and then returned the passenger to 
 
            an address on Pennsylvania is corroborated by the employer's 
 
            records.  While there is a discrepancy regarding where the 
 
            pick up originally was made, it appears highly probable that 
 
            Woodman did in fact pick up such a passenger as he related 
 
            at hearing.  The testimony of his back pain is corroborated 
 
            by the examinations performed at the emergency room, by Dr. 
 
            Cairns and by the x-ray report which showed straightening of 
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
            
 
            
 
            
 
            the lordotic curve suggestive of muscle spasm.
 
            
 
                 Any claimant would be expected to know the place and 
 
            circumstances of his injury.  It would also be expected, 
 
            however, that if he were fabricating, he would have known 
 
            that the employer had a record of his trips and would have 
 
            designed a scenario which was consistent with the employer's 
 
            records.
 
            
 
                 It is noted throughout the medical records that the 
 
            history of injury given is consistent.  The only known 
 
            inaccuracy is the reference to the patient being elderly 
 
            which appears only in the emergency room records.  The 
 
            greater weight of the evidence supports the claimant's 
 
            claim.  It is found that he did injure his back on December 
 
            21, 1988, while transferring the disabled patient from the 
 
            wheelchair into the cab in the manner which he described at 
 
            hearing.  It is a quite plausible scenario for producing an 
 
            injury of the type which is claimed in this case, namely a 
 
            temporary back strain or sprain.  The findings in the 
 
            medical reports are consistent with that type of injury.  
 
            The course of treatment and recovery is likewise consistent 
 
            with such an injury.  There is no evidence in the record to 
 
            support the employer's position of a preexisting condition 
 
            beyond the testimony from Oltmanns.  The only dispute 
 
            regarding the medical expenses the claimant seeks to recover 
 
            is the underlying issue of the employer's liability for the 
 
            alleged work injury.
 
            
 
                                conclusions of law
 
            
 
                 Claimant has the burden of proving by a preponderance 
 
            of the evidence that he received an injury on December 21, 
 
            1988, which arose out of and in the course of his 
 
            employment. McDowell v. Town of Clarksville, 241 N.W.2d 904 
 
            (Iowa 1976); Musselman v. Cent. Tel. Co., 261 Iowa 352, 154 
 
            N.W.2d 128 (1967). 
 
            
 
                 The injury must both arise out of and be in the course 
 
            of the employment.  Crowe v. DeSoto Consol. School Dist., 
 
            246 Iowa 402, 68 N.W.2d 63 (1955) and cases cited at pp. 
 
            405-406 of the Iowa Report.  See also Sister Mary Benedict 
 
            v. St. Mary's Corp., 255 Iowa 847, 124 N.W.2d 548 (1963) and 
 
            Hansen v. State of Iowa, 249 Iowa 1147, 91 N.W.2d 555 
 
            (1958).
 
            
 
                 The words "out of" refer to the cause or source of the 
 
            injury.  Crowe v. DeSoto Consol. School Dist., 246 Iowa 402, 
 
            68 N.W.2d 63 (1955). 
 
            
 
                 "An injury occurs in the course of the employment when 
 
            it is within the period of employment at a place the 
 
            employee may reasonably be, and while he is doing his work 
 
            or something incidental to it."  Cedar Rapids Community 
 
            School Dist. v. Cady, 278 N.W.2d 298 (Iowa 1979), McClure v. 
 
            Union, et al., Counties, 188 N.W.2d 283 (Iowa 1971); 
 
            Musselman v. Cent. Tel. Co., 261 Iowa 352, 154 N.W.2d 128 
 

 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
            
 
            
 
            
 
            (1967). 
 
            
 
                 In this case, though there is conflicting evidence, the 
 
            record clearly documents that the claimant was diagnosed as 
 
            suffering from a back problem when he sought medical 
 
            treatment shortly after leaving his work shift.  The history 
 
            given, the nature of the injury and course of recovery are 
 
            all consistent with the scenario of injury which the 
 
            claimant described.  It is therefore determined that Mark A. 
 
            Woodman has proven, by a preponderance of the evidence, that 
 
            he injured his low back in an incident which arose out of 
 
            and in the course of his employment on December 21, 1988.
 
            
 
                 The injury was not claimed to have produced any 
 
            permanent disability and none appears apparent from the 
 
            record.  The claimant's entitlement to weekly compensation 
 
            is therefore limited to temporary total disability under 
 
            Code section 85.33.  Since he completed his work shift on 
 
            December 21, 1988, the first day of disability is December 
 
            22, 1988.  The disability was terminated by his return to 
 
            work on January 17, 1989.  The duration of the period of 
 
            disability is therefore 3 5/7 weeks.  Woodman is therefore 
 
            entitled to recover weekly compensation from the employer in 
 
            the stipulated amount of $103.18 payable commencing December 
 
            22, 1988.  Where the disability does not commence on the 
 
            date that the injury occurred, it is not proper to pay 
 
            temporary total disability compensation for the date when 
 
            full wages were paid.
 
            
 
                 The only dispute surrounding the medical expenses is 
 
            the dispute regarding liability.  All the expenses claimed 
 
            are supported by documents in the record.  It is therefore 
 
            concluded that Woodman is entitled to recover the expenses 
 
            of treatment and mileage as itemized in exhibit 5 in the 
 
            total amount of $1,532.70.
 
            
 
                                      order
 
            
 
                 IT IS THEREFORE ORDERED that A-OK Yellow Cab Company, 
 
            Inc., pay Mark A. Woodman three and five-sevenths (3 5/7) 
 
            weeks of compensation for temporary total disability at the 
 
            stipulated rate of one hundred three and 18/100 dollars 
 
            ($103.18) per week payable commencing December 22, 1988.  
 
            The entire amount thereof is past due and shall be paid to 
 
            claimant in a lump sum together with interest computed from 
 
            the date each weekly payment came due until the date of 
 
            actual payment at the rate of ten percent (10%) per annum 
 
            pursuant to Code section 85.30.
 
            
 
                 IT IS FURTHER ORDERED that A-OK Yellow Cab Company, 
 
            Inc., pay Mark A. Woodman the sum of one thousand five 
 
            hundred thirty-two and 70/100 dollars ($1,532.70) as 
 
            reimbursement for his medical expenses with Finley Hospital, 
 
            R. Scott Cairns, M.D., Dubuque Radiological Associates, 
 
            Cathedral Square Physical Therapy and mileage, all pursuant 
 
            to Code section 85.27.
 

 
            
 
            Page   6
 
            
 
            
 
            
 
            
 
            
 
            
 
            
 
            
 
                 IT IS FURTHER ORDERED that A-OK Yellow Cab Company, 
 
            Inc., pay the costs of this proceeding pursuant to rule 343 
 
            IAC 4.33.
 
            
 
                 IT IS FURTHER ORDERED that A-OK Yellow Cab Company, 
 
            Inc., file a first report of injury within ten (10) days 
 
            from the date of this decision in accordance with Iowa Code 
 
            sections 86.11 and 86.12.
 
            
 
                 IT IS FURTHER ORDERED that A-OK Yellow Cab Company, 
 
            Inc., file claim activity reports as requested by this 
 
            agency pursuant to rule 343 IAC 3.1.
 
            
 
                 Signed and filed this ______ day of ____________, 1991.
 
            
 
                 
 
            
 
                 
 
                 
 
                                          ______________________________
 
                                          MICHAEL G. TRIER
 
                                          DEPUTY INDUSTRIAL COMMISSIONER
 

 
            
 
            Page   7
 
            
 
            
 
            
 
            
 
            
 
            
 
            
 
            
 
            Copies To:
 
            
 
            Mr. Francis J. Lange
 
            Attorney at Law
 
            1114 Main Street
 
            P.O. Box 1811
 
            Dubuque, Iowa  52004-1811
 
            
 
            Mr. James H. Reynolds
 
            Attorney at Law
 
            1045 Main Street
 
            Dubuque, Iowa  52001
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                           5-1402.30; 5-1402.40
 
                           Filed November 27, 1991
 
                           MICHAEL G. TRIER
 
            before the iowa industrial commissioner
 
            ____________________________________________________________
 
		                      :
 
            MARK A. WOODMAN,  	      :
 
                      		      :
 
                 Claimant,            :         File No. 966531
 
                      		      :
 
            vs.                       :      A R B I T R A T I O N
 
                      		      :
 
            A-OK YELLOW CAB CO., INC.,:         D E C I S I O N
 
                      		      :
 
                 Employer, 	      :
 
                 Uninsured,    	      :
 
                 Defendant.           :
 
            ____________________________________________________________
 
            
 
            5-1402.30; 5-1402.40 
 
            Claimant prevailed over conflicting evidence regarding 
 
            whether he sustained injury arising out of and in the course 
 
            of employment.
 
            Employer ordered to file first report of injury.
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                          5-1803; 5-1100; 5-1108
 
                                          Filed December 6, 1991
 
                                          Bernard J. O'Malley
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            DENNIS R. WITTE,              :
 
                                          :
 
                 Claimant,                :      File Nos. 966533
 
                                          :                966534
 
            vs.                           :                952950
 
                                          :
 
            LENNOX INDUSTRIES, INC.,      :
 
                                          :     A R B I T R A T I O N
 
                 Employer,                :
 
                                          :       D E C I S I O N
 
            and                           :
 
                                          :
 
            EMPLOYERS MUTUAL COMPANIES,   :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
            5-1803
 
            Claimant recovered nothing further on his September 17, 1989 
 
            work injury (no permanency found).
 
            
 
            5-1803
 
            Claimant recovered nothing further on his July 27, 1989 work 
 
            injury (no permanency found).
 
            
 
            5-1100; 5-1108
 
            Claimant's April 9, 1990 alleged injury did not arise out of 
 
            and in the course of his employment and no causal connection 
 
            found.
 
            
 
 
            
 
            
 
            
 
            
 
            
 
                      BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
                                          :
 
            GLENDA MAGREEVY,              :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :      File No. 966538
 
            SERVICEMASTER OF LEE COUNTY,  :
 
                                          :    A R B I T R A T I O N
 
                 Employer,                :
 
                                          :      D E C I S I O N
 
            and                           :
 
                                          :
 
            MILWAUKEE INSURANCE COMPANY,  :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
                              STATEMENT OF THE CASE
 
            
 
                 Claimant, Glenda Magreevy, seeks benefits under the 
 
            Iowa Workers' Compensation Act upon her petition in 
 
            arbitration against defendant employer, Servicemaster of Lee 
 
            County, and its insurance carrier, Milwaukee Insurance 
 
            Company.
 
            
 
                 This cause was scheduled for hearing in Burlington, 
 
            Iowa on September 30, 1992.  At 3:03 p.m., on September 29, 
 
            the undersigned received a dismissal by facsimile 
 
            transmission at his motel in Burlington.  Thereafter, the 
 
            undersigned engaged in two telephone conversations with 
 
            claimant's attorney, Michael J. McCarthy.  Under Iowa Rule 
 
            of Civil Procedure 215, any voluntary dismissal within ten 
 
            days of the date of trial requires consent of the agency.  
 
            Mr. McCarthy was advised that such consent would not be 
 
            granted ex parte.  Mr. McCarthy thereupon advised that 
 
            claimant did not intend to appear at the scheduled hearing, 
 
            intended to present no evidence whatsoever, and would accept 
 
            an adjudication on the merits.  Accordingly, no hearing was 
 
            actually held.  This decision is based upon the pleadings, 
 
            motions and intermediate rulings contained in the file under 
 
            Iowa Code section 17A.12(6).
 
            
 
                                      ISSUES
 
            
 
                 Issues presented for resolution include:
 
            
 
                 1.  Whether claimant sustained an injury arising out of 
 
            and in the course of employment on September 22, 1989;
 
            
 
                 2.  Whether the injury caused temporary or permanent 
 
            disability;
 
            
 
                 3.  The extent of each, if any; 
 
            
 
                 4.  Whether defendants are entitled to credit under 
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            Iowa Code section 85.38(2);
 
            
 
                 5.  Whether the claim is barred by failure to give 
 
            notice under Iowa Code section 85.23.
 
            
 
                                 FINDINGS OF FACT
 
            
 
                 The undersigned deputy industrial commissioner finds:
 
            
 
                 Claimant's petition asserts that she sustained an 
 
            injury to the right ear causing tinnitus by reason of a 
 
            "blast of hot air" from a fork truck exhaust.  Defendants 
 
            deny that claimant sustained an injury arising out of and in 
 
            the course of employment.  As previously indicated, no 
 
            evidence in this record supports the claim.
 
            
 
                                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).
 
            
 
                 No evidence exists in this record supporting claimant's 
 
            burden of proof.  Accordingly, she has failed to prove an 
 
            injury arising out of and in the course of employment.  
 
            Other issues are thereby rendered moot.
 
            
 
                                      ORDER
 
            
 
                 THEREFORE, IT IS ORDERED:
 
            
 
                 Claimant shall take nothing.
 
            
 
                 Costs are assessed to claimant pursuant to rule 343 IAC 
 
            4.33.
 
            
 
                 Signed and filed this ____ day of October, 1992.
 
            
 
            
 
            
 
            
 
                                          
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
                                         ________________________________
 
                                          DAVID R. RASEY
 
                                          DEPUTY INDUSTRIAL COMMISSIONER
 
            
 
            Copies To:
 
            
 
            Mr Michael J McCarthy
 
            Attorney at Law
 
            701 Kahl Building
 
            Davenport Iowa 52801
 
            
 
            Mr William J Cahill
 
            Attorney at Law
 
            200 Jefferson Street
 
            PO Box 1105
 
            Burlington Iowa 52601
 
            
 
 
            
 
 
 
 
 
 
 
                                              1402.30; 2901
 
                                              Filed October 2, 1992
 
                                              DAVID R. RASEY
 
 
 
                      BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
                      
 
            GLENDA MAGREEVY,    
 
                      
 
                 Claimant, 
 
                      
 
            vs.       
 
                                                 File No. 966538
 
            SERVICEMASTER OF LEE COUNTY,  
 
                                             A R B I T R A T I O N
 
                 Employer, 
 
                                                D E C I S I O N
 
            and       
 
                      
 
            MILWAUKEE INSURANCE COMPANY,  
 
                      
 
                 Insurance Carrier,  
 
                 Defendants.    
 
            ___________________________________________________________
 
            
 
            1402.30; 2901
 
            Claimant attempted to dismiss her action the day before 
 
            hearing.  The hearing deputy advised her attorney that the 
 
            dismissal would not be approved ex parte.  Claimant's 
 
            attorney advised that claimant would not appear for hearing, 
 
            would present no evidence, and would accept an adjudication 
 
            on the merits.
 
            As claimant failed to meet her burden of proof on the record 
 
            made (all pleadings, motions and intermediate rulings under 
 
            Iowa Code section 17A.12(6)) defendants prevailed.
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                          1801
 
                                          Filed April 13, 1992
 
                                          Patricia J. Lantz
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            CHARLES R. MEEKS,             :
 
                                          :
 
                 Claimant,                :    File Nos. 876894, 944018
 
                                          :              930535, 966544
 
            vs.                           :              966545, 966546
 
                                          :              966547
 
            FIRESTONE TIRE & RUBBER CO.,  :
 
                                          :
 
                 Employer,                :      A R B I T R A T I O N
 
                                          :
 
            and                           :         D E C I S I O N
 
                                          :
 
            CIGNA,                        :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
            1801
 
            Claimant filed seven petitions alleging repeated injuries to 
 
            his right shoulder and left hip resulting from heavy labor 
 
            as a tire builder at Firestone.
 
            He was 58 years old at the time of the hearing, and although 
 
            he suffered from arthritis, he had not sought treatment for 
 
            the same, and his condition had never interfered with his 
 
            work activities.
 
            Claimant awarded a total of 68% industrial disability based 
 
            on loss of earning capacity and all other factors.
 
            
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                          1801
 
                                          Filed April 13, 1992
 
                                          Patricia J. Lantz
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            CHARLES R. MEEKS,             :
 
                                          :
 
                 Claimant,                :    File Nos. 876894, 944018
 
                                          :              930535, 966544
 
            vs.                           :              966545, 966546
 
                                          :              966547
 
            FIRESTONE TIRE & RUBBER CO.,  :
 
                                          :
 
                 Employer,                :      A R B I T R A T I O N
 
                                          :
 
            and                           :         D E C I S I O N
 
                                          :
 
            CIGNA,                        :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
            1801
 
            Claimant filed seven petitions alleging repeated injuries to 
 
            his right shoulder and left hip resulting from heavy labor 
 
            as a tire builder at Firestone.
 
            He was 58 years old at the time of the hearing, and although 
 
            he suffered from arthritis, he had not sought treatment for 
 
            the same, and his condition had never interfered with his 
 
            work activities.
 
            Claimant awarded a total of 68% industrial disability based 
 
            on loss of earning capacity and all other factors.
 
            
 
            
 
 
            
 
            
 
            
 
            
 
            
 
            
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
                                          :
 
            JOYCE HEISER,                 :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :      File No. 966572
 
            HON INDUSTRIES,               :
 
                                          :     A R B I T R A T I O N
 
                 Employer,                :
 
                                          :       D E C I S I O N
 
            and                           :
 
                                          :
 
            THE TRAVELERS INSURANCE       :
 
            COMPANY,                      :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
                              STATEMENT OF THE CASE
 
            
 
                 This is a proceeding in arbitration brought by Joyce 
 
            Heiser against her employer, Hon Industries, and The 
 
            Travelers Insurance Company, based upon an injury that 
 
            occurred on August 11, 1987.  Claimant seeks additional 
 
            compensation for permanent partial disability.  Both parties 
 
            seek to recover costs.  The primary issue to be determined 
 
            is the extent of permanent partial disability which was 
 
            proximately caused by the August 11, 1987 injury.
 
            
 
                 The case was heard at Davenport, Iowa, on March 23, 
 
            1992.  The evidence consists of testimony from Joyce Heiser, 
 
            Dorsey Lane and Amy Newbanks Fuller.  The record also 
 
            contains joint exhibits 1 through 14.  It was noted at 
 
            hearing that the correct rate of compensation is $247.40 but 
 
            that benefits had been paid at the rate $238.62 and 
 
            defendants agreed to immediately pay the difference without 
 
            further order.  Defendants had paid 35 weeks of compensation 
 
            for permanent partial disability prior to hearing.
 
            
 
                                 FINDINGS OF FACT
 
            
 
                 Having considered all the evidence received, together 
 
            with the appearance and demeanor of the witnesses, the 
 
            following findings of fact are made.
 
            
 
                 Joyce Heiser is a 48-year-old woman who dropped out of 
 
            high school but subsequently obtained a GED.  Prior to 
 
            commencing her current employment, she worked in the office 
 
            of a grain elevator which was managed by her husband.  She 
 
            weighed and tested grain.  She issued checks in payment for 
 
            grain which was delivered to the elevator.  She worked as a 
 
            supervisor at a Hardee's restaurant for approximately nine 
 
            months.
 
            
 
                 Joyce commenced her employment with Hon Industries in 
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            1981.  Most of the time she has worked assembling and 
 
            packing drawers.  The most weight she would typically handle 
 
            would be approximately 20 pounds.  The weight she most 
 
            frequently handled was approximately five pounds.  Her work 
 
            is performed standing and permits her to move about somewhat 
 
            (Jt. Ex. 14A-E).  Joyce earned approximately $6 per hour 
 
            when she started, approximately $9 per hour when she was 
 
            injured and at time of hearing was earning slightly over $12 
 
            per hour.  Pay increases were normal plant increases and 
 
            were not attributable to any promotion or change in job 
 
            duties.
 
            
 
                 Joyce injured her back on August 11, 1987, when she 
 
            tried to pull a pallet which was on the floor but it stuck.  
 
            She underwent an extended period of conservative treatment 
 
            which included steroid injections, prescription medications 
 
            and physical therapy.  She eventually entered into and 
 
            successfully completed a low back pain rehabilitation 
 
            program through the University of Iowa Hospitals and Clinics 
 
            (Jt. Ex. 8).  She resumed full-time work.  Her only work 
 
            restriction is that she avoid heavy lifting.  Her current 
 
            job does not involve heavy lifting.  She has one of the 
 
            lighter jobs in the plant.  It would be difficult for her to 
 
            transfer to some other job which would not be heavier than 
 
            her current job.
 
            
 
                 Joyce has essentially constant pain regardless of 
 
            whether she works or does not work.  It worsens at times, 
 
            sometimes without any identifiable cause.  She takes aspirin 
 
            for pain but avoids prescription medications.  She has been 
 
            able to perform her job despite her pain.  She works 
 
            overtime on occasion.  She normally exceeds the established 
 
            rate for her job and receives incentive pay.  Her 
 
            performance evaluations have been favorable.  Occasionally, 
 
            Joyce will miss a few days of work when her pain is most 
 
            severe.  She has changed her off-work activities due to her 
 
            symptoms.
 
            
 
                 Claimant was rated as having a 7 percent permanent 
 
            impairment of the whole body by her orthopedic surgeon.  Her 
 
            pain rehabilitation program at the University of Iowa was 
 
            considered successful (Jt. Ex. G-S).  She has been evaluated 
 
            by Neurosurgeon Robert W. Milas, M.D., who diagnosed her as 
 
            having degenerative disc disease at the L4-S1 levels of her 
 
            spine.  He rated her as having a 19 percent permanent 
 
            impairment.
 
            
 
                 Hon Industries is a nonunion employer.  Claimant has no 
 
            guarantee of continued employment.  According to Amy 
 
            Newbanks Fuller, of the personnel department, there are no 
 
            plans to change the current status regarding the company's 
 
            continued operation and claimant's continued employment.  
 
            Hon Industries is generally regarded as a successful Iowa 
 
            business.  There is no known basis for expecting that 
 
            claimant will not have continued employment with Hon 
 
            Industries.  On the other hand, the only thing that is 
 
            certain about employers and businesses is that the future is 
 
            uncertain.  Most individuals change employers during their 
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            employment life.  Corporations are taken over and their 
 
            assets sold piecemeal.  Plants relocate to areas which offer 
 
            freedom from work place safety restrictions, freedom from 
 
            pollution controls, lower hourly labor costs and lower 
 
            taxes.  Hon Industries is well regarded as a responsible 
 
            corporate citizen and it is unlikely that it will close its 
 
            plants or otherwise take action to force Joyce Heiser back 
 
            into the competitive labor market where her physical 
 
            limitations and activities would limit her access to jobs 
 
            and have an actual adverse impact upon her level of 
 
            earnings.
 
            
 
                                CONCLUSIONS OF LAW
 
            
 
                 The primary issue in this case is the extent of 
 
            permanent partial disability.
 
            
 
                 However, expert medical evidence must be considered 
 
            with all other evidence introduced bearing on the causal 
 
            connection.  Burt, 247 Iowa 691, 73 N.W.2d 732.  The opinion 
 
            of experts need not be couched in definite, positive or 
 
            unequivocal language.  Sondag v. Ferris Hardware, 220 N.W.2d 
 
            903 (Iowa 1974).  However, the expert opinion may be 
 
            accepted or rejected, in whole or in part, by the trier of 
 
            fact.  Id. at 907.  Further, the weight to be given to such 
 
            an opinion is for the finder of fact, and that may be 
 
            affected by the completeness of the premise given the expert 
 
            and other surrounding circumstances.  Bodish, 257 Iowa 516, 
 
            133 N.W.2d 867.  See also Musselman v. Central Telephone 
 
            Co., 261 Iowa 352, 154 N.W.2d 128 (1967).
 
            
 
                 Industrial disability or loss of earning capacity is a 
 
            concept that is quite similar to impairment of earning 
 
            capacity, an element of damage in a tort case.  Impairment 
 
            of physical capacity creates an inference of lessened 
 
            earning capacity.  The basic element to be determined, 
 
            however, is the reduction in value of the general earning 
 
            capacity of the person, rather than the loss of wages or 
 
            earnings in a specific occupation.  Post-injury earnings 
 
            create a presumption of earning capacity.  The earnings are 
 
            not synonymous with earning capacity and the presumption may 
 
            be rebutted by evidence showing the earnings to be an 
 
            unreliable indicator.  Bearce v. FMC Corp., 465 N.W.2d 531 
 
            (Iowa 1991); DeWall v. Prentice, 224 N.W.2d 428, 435 (Iowa 
 
            1974); Carradus v. Lange, 203 N.W.2d 565 (Iowa 1973); 
 
            Holmquist v. Volkswagon of America, Inc., 261 N.W.2d 516 
 
            (Iowa App. 1977) A.L.R.3d 143; Michael v. Harrison County, 
 
            Thirty-fourth Biennial Report of the Industrial Commissioner 
 
            218 (1979); 2 Larson Workmen's Compensation Law, sections 
 
            57.21 and 57.31.
 
            
 
                 This is a case in which the claimant has sustained a 
 
            significant injury which has resulted in permanent 
 
            impairment and a reduction in her physical capabilities.  
 
            Normally, those factors indicate a reduction in earning 
 
            capacity.  On the other hand, she has experienced no 
 
            reduction of actual earnings and this normally would 
 
            strongly indicate that there has been no reduction of 
 
            earning capacity.  In this case, the claimant's age, formal 
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
            education and work experiences are such that if she were 
 
            forced to find other employment it would be expected that 
 
            she would experience a marked reduction in her actual 
 
            earnings.  Hon Industries has insulated her from that harsh 
 
            reality.  While she may no longer be capable of performing 
 
            as many different jobs with Hon Industries as she was 
 
            capable of performing prior to her injury, the record also 
 
            reflects that she had not attempted to enter into those 
 
            other jobs prior to her injury.  Industrial disability 
 
            cannot be precisely measured in the manner that impairment 
 
            ratings are measured.  Despite the precise methodology that 
 
            is used in determining impairment ratings, there is often a 
 
            wide yet reasonable disparity between ratings from different 
 
            physicians, as exists in this case.  Nevertheless, an 
 
            assessment of industrial disability must be made.  When all 
 
            material factors of industrial disability are considered, it 
 
            is determined that Joyce Heiser experienced a 10 percent 
 
            permanent partial disability as a result of the August 11, 
 
            1987 injury.  Under the provisions of Iowa Code section 
 
            85.34(2)(u), she is entitled to recover 50 weeks of 
 
            benefits.  Since the employer has previously paid 35 weeks 
 
            based upon a 7 percent impairment rating, an amount which in 
 
            this case provides a close approximation, there are 15 weeks 
 
            which remain unpaid.
 
            
 
                 Since claimant has prevailed in this claim, she is 
 
            entitled to recover costs.   The costs which she seeks are 
 
            not well described other than for the filing fee charged by 
 
            this agency in the amount of $65 and the report and 
 
            evaluation from Dr. Milas in the amount of $150.  The four 
 
            other charges which total $60.80 are deemed by the 
 
            undersigned to be copy fees, an item which is not 
 
            recoverable as a cost.  It is therefore concluded that 
 
            pursuant to rule 343 IAC 4.33 and Iowa Code section 622.72, 
 
            the total amount of costs assessed against the employer to 
 
            be paid to claimant is $215.
 
            
 
                                      ORDER
 
            
 
                 IT IS THEREFORE ORDERED that defendants pay Joyce 
 
            Heiser fifty (50) weeks of compensation for permanent 
 
            partial disability at the stipulated rate of $247.40 per 
 
            week payable commencing on the stipulated date of October 4, 
 
            1988.  Defendants are entitled to credit for the thirty-five 
 
            (35) weeks of permanent partial disability compensation 
 
            benefits previously paid and shall pay the remaining fifteen 
 
            (15) weeks in a lump sum together with interest, pursuant to 
 
            Iowa Code section 85.30, computed from the date each weekly 
 
            payment became due until the date of actual payment.
 
            
 
                 IT IS FURTHER ORDERED that defendants pay the costs of 
 
            this action, including reimbursement to claimant in the 
 
            amount of two hundred fifteen dollars ($215.00).
 
            
 
                 IT IS FURTHER ORDERED that defendants file a claim 
 
            activity reports as requested by this agency pursuant to 
 
            rule 343 IAC 3.1.
 
            Signed and filed this ______ day of August, 1992.
 
            
 

 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
                 
 
                                          ______________________________
 
                                          MICHAEL G. TRIER
 
                                          DEPUTY INDUSTRIAL COMMISSIONER
 
            
 
            Copies To:
 
            
 
            Mr John H Westensee
 
            Attorney at Law
 
            1705 2nd Ave
 
            Rock Island IL 61201
 
            
 
            Ms Vicki L Seeck
 
            Attorney at Law
 
            600 Union Arcade Bldg
 
            Davenport IA 52801
 
            
 
            
 
 
            
 
 
 
 
 
 
 
                                                5-1803
 
                                                Filed August 7, 1992
 
                                                Michael G. Trier
 
            
 
                    BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
                                          :
 
            JOYCE HEISER,                 :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :      File No. 966572
 
            HON INDUSTRIES,               :
 
                                          :     A R B I T R A T I O N
 
                 Employer,                :
 
                                          :       D E C I S I O N
 
            and                           :
 
                                          :
 
            THE TRAVELERS INSURANCE       :
 
            COMPANY,                      :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
            5-1803
 
            Forty-eight-year-old employee with degenerative disc disease 
 
            who had been able to return to same job and work to the 
 
            employer's satisfaction awarded 10% permanent partial 
 
            disability.