BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
                      
 
            JULIE GRASSFIELD,   
 
                      
 
                 Claimant, 
 
                      
 
            vs.       
 
                                                File No. 717296
 
            SUTHERLAND LUMBER COMPANY,    
 
                                            D E C I S I O N  O N
 
                 Employer, 
 
                                                  D E A T H
 
            and       
 
                                               B E N E F I T S
 
            LUMBERMAN'S UNDERWRITING      
 
             ALLIANCE,     
 
                      
 
                 Insurance Carrier,  
 
                 Defendants.    
 
            ___________________________________________________________
 
                             STATEMENT OF THE CASE
 
            
 
                 This is a proceeding for death benefits brought by the 
 
            claimant, Julie Grassfield, as surviving spouse of Charles 
 
            R. Grassfield to recover benefits under the Iowa Workers' 
 
            Compensation Law as a result of an injury to decedent of 
 
            October 7, 1982, which injury resulted in decedent's death 
 
            on March 11, 1983.  This matter came on for hearing before 
 
            the undersigned deputy industrial commissioner at Des 
 
            Moines, Iowa on September 30, 1992.  The first report of 
 
            injury has been filed.  The record consists of the testimony 
 
            of claimant as well as of the testimony of James Thomas, 
 
            Michael O'Connor, Maynard Van Antwerp and Carlton Vine.  The 
 
            record also consists of joint exhibits 1 through 24, 29 
 
            through 34 and 38 as well as of claimant's exhibits A 
 
            through HH and defendant's exhibits 25 through 28, 35, 36 
 
            and 37.  
 
            
 
                                      ISSUES
 
            
 
                 Pursuant to the hearing assignment order, the hearing 
 
            report and the oral stipulation of the parties, the parties 
 
            have stipulated to the following:  1) the October 7, 1982, 
 
            incident resulted in decedent's death and 2) the appropriate 
 
            rate of compensation is $203.46 and, (3) the defendants have 
 
            paid claimant benefits for approximately 426 weeks at that 
 
            rate as well as $10,000 from a third party settlement 
 
            related to decedent's accident.  The issues remaining to be 
 
            decided are:
 
            
 
                 1.  Whether decedent did receive an injury which arose 
 
            out of and in the course of decedent's employment, 
 
            specifically, whether any liability on defendants' part is 
 
            obviated on account of decedent's horseplay or on account of 
 
            decedent's violation of an employee rule at the time of 
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            decedent's accident; 
 
            
 
                 2.  Whether claimant is entitled to death benefits on 
 
            account of decedent's death; and
 
            
 
                 3.  Whether any entitlement to death benefits has ended 
 
            on account of claimant's remarriage or remarriages, 
 
            specifically, the question of whether claimant has on two 
 
            separate occasions entered common-law marriages.
 
            
 
                                 FINDINGS OF FACT
 
            
 
                 The deputy, having heard the testimony and considered 
 
            the evidence finds:
 
            
 
                 Claimant's decedent, Charles R. Grassfield, was injured 
 
            on October 7, 1982, when he sustained severe head injuries 
 
            after he struck his head on the asphalt pavement in the 
 
            Sutherland Lumber yard subsequent to jumping off a car Aaron 
 
            Achenbach was driving.  Carlton Vine was a passenger in the 
 
            car.  Achenbach and Vine were employees of Sutherlands.  
 
            Marion (Butch) Roeden was overall manager of Sutherlands on 
 
            October 7, 1982.  Charles Grassfield was yard foreman.  
 
            Achenbach and Vine were off duty on the afternoon of October 
 
            7, 1982.  They had stopped at the lumber yard for personal 
 
            reasons, however.  Charles Grassfield was on duty that 
 
            afternoon.  Roeden reported that Grassfield had been in the 
 
            Sutherland's office sweeping-up and had left that task to go 
 
            out and talk to Achenbach after seeing Achenbach's car.  
 
            Achenbach and Vine were unaware of Grassfield's activities 
 
            immediately prior to stopping to talk with them or of what 
 
            activities Grassfield intended after leaving them.  
 
            
 
                 Sutherland's company rules prohibited employees from 
 
            riding in or on customer's cars.  Employees were also not to 
 
            ride on forklifts.  Workers had been orally instructed as 
 
            regards those rules at company meetings.  Grassfield as yard 
 
            foreman had enforced those rules as regards employees under 
 
            his supervision.  
 
            
 
                 When Grassfield talked with Achenbach and Vine beside 
 
            Achenbach's stopped car on the afternoon of October 7, 1982, 
 
            Grassfield was elated.  Grassfield had a three-day weekend 
 
            beginning at the end his work shift.  Grassfield intended an 
 
            outing with his spouse with whom he had been having marital 
 
            difficulties and hoped the weekend would help resolve those 
 
            difficulties.  
 
            
 
                 Grassfield jumped on the hood of Achenbach's car as 
 
            Achenbach started to pull away.  Grassfield positioned 
 
            himself on the driver's side of the hood.  Grassfield was 
 
            smiling and laughing while facing the driver.  Grassfield 
 
            did not indicate he was going to jump off the car.  
 
            Achenbach increased the car's speed.  Grassfield jumped off 
 
            backwards before Achenbach's car passed the front of the 
 
            Sutherland's office.  Grassfield, as yard supervisor, would 
 
            likely have been reprimanded had office personnel seen 
 
            Grassfield on the hood of Achenbach's car.  Grassfield had 
 
            never asked Achenbach for a ride in the car.  Grassfield 
 
            never regained consciousness subsequent to the October 7, 
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            1982, injury.  Grassfield died as a result of the October 
 
            incident in March 1983.  
 
            
 
                 Charles Grassfield's wife, Julie, was already 
 
            physically involved with Gary Stromer on October 7, 1982.  
 
            In May 1983, Julie and Stromer moved together to North 
 
            Carolina where they lived and shared living expenses.  Julie 
 
            and Stromer also had joint checking accounts both in North 
 
            Carolina and in Iowa.  Stromer and Julie subsequently 
 
            returned to Iowa were they jointly purchased a trailer and a 
 
            tavern and bar business.  They continued to live together 
 
            and operated the business jointly until approximately early 
 
            summer 1985.  
 
            
 
                 Gary apparently purchased wedding rings and an 
 
            engagement ring with Julie's funds.  Julie apparently wore 
 
            the engagement ring immediately subsequent to the purchase 
 
            and advised her family that she and Gary were engaged.  
 
            Whether she wore the wedding band is disputed.  Julie 
 
            apparently also advised persons that marriage was not 
 
            possible in that she would lose her workers' compensation 
 
            benefits as Charles Grassfield's surviving spouse were she 
 
            to marry Gary Stromer.  Julie and Gary's business and 
 
            personal relationships both ended acrimoniously.  Julie 
 
            sought legal counsel as to division of business and personal 
 
            holdings between herself and Gary and to advise that a 
 
            restraining order would be sought should Gary attempt 
 
            contact with her.  Gary subsequently married another 
 
            individual on August 3, 1985.  No dissolution of marriage 
 
            degree was ever entered as regards the relationship between 
 
            Julie Grassfield and Gary Stromer.
 
            
 
                 Julie Grassfield met Michael O'Connor in Summer 1985.  
 
            O'Connor assisted claimant in the sale of the tavern and 
 
            bar.  Initially O'Connor was among a number of Julie's 
 
            friends who would "crash" at her trailer in Mt. Vernon, 
 
            Iowa.  O'Connor's stated residence was with his parents in 
 
            Lisbon, Iowa.  Mike and Julie became physically involved 
 
            approximately nine months after meeting.  In February 1986, 
 
            Mike and Julie attended counseling together.  In May 1986, 
 
            Mike and Julie traveled to California together.  There they 
 
            stayed with Julie's sister and brother-in-law.  Prior to May 
 
            1986, Mike was amorously involved with other women while 
 
            also involved with Julie.  Mike and Julie became 
 
            monogamously involved with their move to California.  On 
 
            August 20, 1987, Julie gave birth to a daughter, Tasha, who 
 
            Mike acknowledges as his child.  The birth announcement in 
 
            the Anamosa paper indicated that Julie's parents had heard 
 
            of the birth of the girl to their daughter Julie and Michael 
 
            O'Connor.  Insurance investigator reports in evidence 
 
            indicate that Julie's family believed the child had been 
 
            born out of wedlock and that this was a "sore point" with 
 
            them.
 
            
 
                 After Tashsa's birth, Mike, Julie and Tashsa moved into 
 
            their own apartment in California where they remained until 
 
            returning to Iowa in May 1988.  When they returned to Iowa, 
 
            Mike and Julie variously lived with her parents, his parents 
 
            or each with their own parents until October 1988, when 
 
            Mike, Julie and Tasha "got their own place."  Julie 
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            apparently moved to her parents for a period of time in 
 
            December 1988 after she and Mike argued violently.  
 
            
 
                 Julie, Mike and Tashsa returned to California in March 
 
            1988.  They initially stayed with a mutual friend and then 
 
            rented a trailer together.  The landlord apparently viewed 
 
            Mike and Julie as married.  A receipt of Alpine View Acres 
 
            Mobile Estates dated November 1, 1989, is made out to "Julie 
 
            and Michael O'Connor."  Gas and electrical service for their 
 
            trailer apparently was made liable to either Julie 
 
            Grassfield or Mike O'Connor, however.  Julie and Michael 
 
            continued to have a highly conflictual relationship.  Mike 
 
            beat Julie at Easter 1989.  In May 1989, Mike discovered 
 
            that Julie was physically involved with another individual.  
 
            Mike then left the trailer and stayed with a friend until 
 
            returning to Iowa for one month in August 1989.  Mike then 
 
            returned to California in September 1989 and lived with his 
 
            friends until returning to the trailer to live with Julie 
 
            and Tashsa on November 15, 1989.  Mike apparently would 
 
            leave intermittently and stay with his friends when he and 
 
            Julie would fight.  Mike testified that his mailing address 
 
            at this time was with his friends and that was where his 
 
            parents telephoned from Iowa to reach him.  
 
            
 
                 In January 1990, Mike formally moved back to the 
 
            trailer with Julie and Tashsa.  In March 1991, Mike beat 
 
            Julie and was charged with roommate abuse.  He was ordered 
 
            to stay away from Julie and placed on 18 months probation 
 
            after serving seven days in jail.  Mike testified that 
 
            California officials attempted to charge him with spousal 
 
            abuse but "couldn't make it stick."  At this time, Mike 
 
            lived with another friend for approximately three months.  
 
            He then again lived with Julie intermittently until October 
 
            1991, when Mike, Julie, and Tashsa returned to Iowa.  Mike, 
 
            Julie, and Tashsa have lived with Julie's parents in Iowa 
 
            since then.  
 
            
 
                 Mike and Julie have never gone through a formal 
 
            marriage ceremony.  Mike testified it is doubtful he would 
 
            be with Julie but for his belief that Tashsa should live 
 
            with both her parents.  Julie testified she allows Mike to 
 
            remain with her and Tashsa in that she "gets more money" 
 
            from Mike in this arrangement and has more control of Mike 
 
            in this arrangement than she would have if he were to leave 
 
            and she were to seek child support from him.  Mike and Julie 
 
            have told Tashsa, who is now five, that her parents are 
 
            boyfriend and girlfriend and not husband and wife. 
 
            
 
                  Julie uses the surname Grassfield.  Mike has always 
 
            designated himself as single on tax returns.  Julie had 
 
            designated herself as single on tax returns subsequent to 
 
            Charles Grassfield's death and prior to Tashsa's birth.  
 
            Subsequent to Tashsa's birth, Julie has designated herself 
 
            as single, head of household on her tax returns.  She lists 
 
            Tasha as her only dependent.  Julie and Michael had joint 
 
            bank accounts both in California and Iowa.  Julie at one 
 
            point had 18 charge accounts. Mike had a privilege or 
 
            interest in 12 of them.  In each bank or credit account, 
 

 
            
 
            Page   5
 
            
 
            
 
            
 
            Julie was designated as Julie Grassfield and Mike as Mike or 
 
            Michael O'Connor.  In November 1990, Julie and Mike were 
 
            required to make separate credit applications relative to a 
 
            motor vehicle purchase in that they were not considered 
 
            married.
 
            
 
                 In Fall 1987, Mike and Julie sought care for Tashsa 
 
            through California Children Services.  A release of taxpayer 
 
            information lists Mike as the responsible party with Julie 
 
            as his spouse.  Julie was designated as Julie Grassfield.  A 
 
            repayment worksheet designates Mike's tax status as married, 
 
            filing joint return.  Julie testified that the form was 
 
            completed by Human Services personnel and that she simply 
 
            signed it as she was too concerned over Tashsa's condition 
 
            at the time to fully review it.  Julie further testified 
 
            that the information was changed later that day and that 
 
            Julie, herself, was ultimately responsible for Tashsa's 
 
            medical costs.
 
            
 
                 Julie executed a will on September 30, 1987, in which 
 
            she stated that she gave one-half of her estate to "my 
 
            friend", Michael O'Connor", father of my child."  
 
            
 
                 Mike currently works at M-C Industries, Monticello, 
 
            Iowa.  His employer provides health insurance.  Mike has 
 
            health insurance coverage for himself only.  
 
            
 
                                CONCLUSIONS OF LAW
 
 
 
            We first consider the question of whether claimant's 
 
            decedent received an injury which arose out of and in the 
 
            course of his employment thereby creating an entitlement to 
 
            death benefits for a surviving spouse.
 
            [While claimant did not expressly raise the issue, the tenor 
 
            of evidence claimant presented suggests that claimant argues 
 
            that either latches or estoppel now prevent a finding that 
 
            claimant's claim is barred.  Claimant's argument, 
 
            apparently, is that defendant having paid benefits since the 
 
            incident cannot now defend against the claim.  We disagree.  
 
            Both latches and estoppel require that claimant be harmed in 
 
            some manner by defendant's failure to act on a more timely 
 
            basis.  Claimant under section 85.26(1), was able to bring 
 
            an action to establish any right to benefits within three 
 
            years of the time when defendant's chose to discontinue 
 
            benefit payments.  Given such,  claimant has not been harmed 
 
            through defendant's decision to contest benefits.]
 
            
 
                 Defendants have raised the affirmative defenses of 
 
            violation of employer rule and horseplay.  The parties agree 
 
            that the incident at work caused decedent's death.  
 
            
 
                 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).
 

 
            
 
            Page   6
 
            
 
            
 
            
 
            
 
                 An employee's violation of the employer's work rules 
 
            may be sufficient to remove the employee from the course of 
 
            employment.  Doing of work duties in a forbidden matter is 
 
            insufficient to remove an employee from the course of 
 
            employment.  The service or activity the employee is 
 
            performing must itself be prohibited to remove the employee 
 
            from the course of the employment.  Polar v. T. W. Snow 
 
            Construction Co., 33 N.W.2d 416 (1948).  See also Lawyer and 
 
            Higgs, Iowa Workers' Compensation-Law and Practice (2nd 
 
            edition), section 6-9.  
 
            
 
                 In Ford v. Barcus, 155 N.W.2d 507 (Iowa 1968), the Iowa 
 
            court ruled:
 
            
 
                 Horseplay which an employee voluntarily instigates 
 
                 and aggressively participates in does not arise 
 
                 out of and in the course of his [sic] employment 
 
                 and therefore is not compensable.  Citations 
 
                 omitted.
 
            
 
                 Under the rule of Ford v. Barcus, the Iowa court has 
 
            traditionally used a strict rule of law as regards 
 
            horseplay.  Professor Larson states the following as the 
 
            current, perhaps more liberal, tendency:  
 
            
 
                 "The current tendency is to treat the question, 
 
                 when an instigator is involved, as a primarily 
 
                 course of employment rather than 
 
                 "arising-out-of-employment" problem; thus, minor 
 
                 acts of horseplay do not automatically constitute     rule, technically, claimant's decedent did not violate the 
 
            company rule in jumping onto the Achenbach vehicle.  
 
            
 
                 The defense of horseplay does bar recovery, however.  
 
            As noted, Iowa has traditionally been strict in its 
 
            interpretation of the horseplay defense.  In this case, 
 
            claimant's decedent was the instigator or aggressor in the 
 
            horseplay.  Nothing in decedent's job duties required that 
 
            he jump onto the Achenbach vehicle and then jump off the 
 
            vehicle.  Indeed, Butch Roeden's statement establishes that 
 
            decedent had to actually leave job duties in the employer's 
 
            office area to go to speak with his off-duty co-workers on 
 
            the lumber yard grounds.  Likewise, decedent's activities of 
 
            laughing and smiling and looking at the driver through the 
 
            windshield were not activities that in any matter furthered 
 
            the employer's business.  Hence, under the Iowa rule, 
 
            recovery on account of decedent's injury is barred in that 
 
            decedent's horseplay produced the injury.
 
            
 
                 Furthermore, even when the more liberal rule Professor 
 
            Larson espouses is applied, recovery is barred.  Claimant's 
 
            decedent's horseplay must be considered a substantial 
 
            deviation from the course of employment.  Butch Roeden's 
 
            statement establishes that claimant's decedent actually left 
 
            his work duties to speak with Achenbach and Vine.  Such in 
 
            itself would not have been a substantial deviation, 
 
            especially if employees were allowed occasional informal 
 
            breaks to visit with co-workers or invitees on the 
 
            employer's premises.  The deviation became serious, however, 
 
            when claimant's decedent jumped upon the Achenbach vehicle.  
 
            While it is true that the employer rule did not expressly 
 
            prohibit riding in or on co-employees vehicles, no rational 
 
            distinction can be made as regards the seriousness of 
 
            potential consequences of riding on a vehicle on the basis 
 
            of whether the vehicle was that of a customer or co-worker.  
 
            In each case the danger to be avoided was identical.  
 
            Claimant's decedent as yard foreman had enforced the 
 
            existing rule.  Therefore, it cannot be said that he was 
 
            unaware of the seriousness of the deviation from employment 
 
            on jumping on the vehicle.  
 
            
 
                 Likewise, the deviation that jumping on the vehicle 
 
            created was a complete deviation from employment.  As 
 
            Roeden's recorded statement establishes, claimant actually 
 
            left his job duties to speak to Achenbach and Vine.  
 
            Arguably, claimant was attempting a return to job duties 
 
            when he jumped onto and then jumped off the vehicle.  An 
 
            attempt to return to duties may constitute a performance of 
 
            duties.  Unfortunately, the method of attempted return and 
 
            claimant's decedent's overall demeanor at the time suggests 
 
            that claimant's decedent was continuing to abandon his job 
 
            duties while jumping onto, being seated on and jumping off 
 
            the Achenbach vehicle.  
 
            
 
                 Similarly, it cannot be said that the practice of 
 
            horseplay claimant's decedent engaged in, namely, riding on 
 
            a vehicle, had become an accepted part of the employment.  
 
            Company rule expressly prohibited riding on customer 
 

 
            
 
            Page   8
 
            
 
            
 
            
 
            
 
            vehicles.  Claimant's decedent enforced that rule.  Nothing 
 
            in the record suggests that rational employees would not 
 
            believe that, by inference, riding on co-worker's vehicles 
 
            was also prohibited.  The record does also not establish 
 
            that the nature of the employment would be expected to 
 
            include horseplay of this kind.  The record does establish 
 
            that Sutherland's employees were generally younger workers.  
 
            Certainly, an employer of late adolescents and young adults 
 
            may reasonably expect that such employees will engage in 
 
            more levity and frivolity than would older workers.  That 
 
            expectation is not so great that it can be said that the 
 
            employer would expect its employees to engage in conduct 
 
            which, while technically not prohibited, the employer could 
 
            expect the employee to reasonably infer to be a substantial 
 
            breach of expected and acceptable employee conduct.  The 
 
            horseplay defense bars claimant's claim to workers' 
 
            compensation benefits even when we analyze the claim under 
 
            the Larson rule.  
 
            
 
                 In that the claim for benefits is barred, it is not 
 
            necessary that we consider whether claimant's remarriage or 
 
            remarriages bar further benefit recovery.  It does not 
 
            appear that a common-law marriage has been established 
 
            between claimant and Gary Stromer or between claimant and 
 
            Mike O'Connor, however.  
 
            
 
                 Initially, we note that any common-law marriage would 
 
            have needed to be established under Iowa law in that neither 
 
            California law nor apparently North Carolina law recognizes 
 
            common-law marriage.  See In re Marriage of Reed, 226 N.W.2d 
 
            795 (Iowa 1975).
 
            
 
                 Three elements are necessary to establish a common-law 
 
            marriage:  (1) present intent and agreement to be married; 
 
            (2) continuous cohabitation; and (3) public declaration that 
 
            the parties are husband and wife.  The burden of proof as to 
 
            the existence of a common-law marriage is on the party 
 
            asserting that marriage.  The courts regards any claim of 
 
            marriage in the common-law with suspicion as Iowa has no 
 
            public policy favoring common-law marriages.  Circumstantial 
 
            evidence may be sufficient to establish the martial 
 
            relationship.  In re Marriage of Winegard, 278 N.W.2nd 505 
 
            (Iowa 1979).  
 
            
 
                 When cohabitation was initially illicit, affirmative 
 
            proof of subsequent, present intention to be husband and 
 
            wife is essential to establish the marriage.  In re Marriage 
 
            of Grother, 242 N.W.2d 1 (Iowa 1976).  
 
            
 
                 Evidence showing a divided reputation in the community 
 
            on the question of whether a common-law marriage exists is 
 
            without probative effect.  In re Estate of Boying, 157 Iowa 
 
            467 (1912).
 
            
 
                 As regards claimant's relationship with Gary Stromer, 
 
            the evidence, at best, establishes that claimant at some 
 
            point considered herself engaged to Stromer.  Even that is 
 
            tenuous as claimant then apparently was telling persons that 
 
            she could not marry as she would lose her workers' 
 
            compensation benefits should she marry.  While such may be 
 

 
            
 
            Page   9
 
            
 
            
 
            
 
            
 
            considered an innoble reason for not marrying, a party's 
 
            intent to marry or not marry need not be based on noble 
 
            reasons.  Likewise, claimant continued to use the surname, 
 
            Grassfield, during her relationship and cohabitation with 
 
            Stromer.  While it is true that many women now retain their 
 
            own family surname upon marriage, it certainly would be less 
 
            common for the widow upon remarriage to retain her deceased 
 
            spouse's surname.  Hence, claimant's continued use of the 
 
            surname, Grassfield, during her relationship with Stromer is 
 
            further evidence of her lack of any then present intent to 
 
            be married.  The evidence does not establish any public 
 
            declaration that the parties were husband and wife.  They 
 
            did cohabit.  They did have joint bank accounts.  They did 
 
            conduct a business together.  Claimant apparently did wear 
 
            at least an engagement band.  It is true that these are 
 
            activities in which spouses likely are to engage; these also 
 
            are activities in which cohabitating couples who lack a 
 
            present intent to be married might well engage.  Hence, none 
 
            of these activities, of themselves, can be considered a 
 
            public declaration that the parties are husband and wife.
 
            
 
                 For similar reasons, a common-law marriage is not found 
 
            to exist as between claimant and Michael O'Connor.  Both 
 
            claimant and O'Connor deny any present intent and agreement 
 
            to marry.  While those denials may well be self-serving 
 
            statements, the denials are credible when considered within 
 
            the overall context of claimant's and Mike's relationship.  
 
            The relationship has been acrimonious and intermittent since 
 
            its initiation in 1985.  Neither party appears to have any 
 
            overriding affection for nor interest in the personal 
 
            well-being of the other.  While it is true that 
 
            ceremoniously married individuals also may well lack such 
 
            qualities towards one another, the absence of such 
 
            sentiments on the part of parties who have not entered into 
 
            a ceremonial marriage is sufficiently surprising to create 
 
            an inference of a lack of present intent and agreement to be 
 
            married.  Likewise, claimant and O'Connor's cohabitation 
 
            while continuous since their return to Iowa in 1991 was 
 
            intermittent prior to then.  Additionally, their periods of 
 
            non-cohabitation involved the breaking off of the 
 
            relationship in a manner more consistent with the ending or 
 
            interruption of a nonmarital liaison than consistent with 
 
            the ending or interruption of a marriage.  In each case, one 
 
            or the other party to the relationship simply moved out.  No 
 
            formal proceedings to legally dissolve the relationship were 
 
            ever initiated.  That fact suggests that the parties had no 
 
            present intent and agreement to be married despite their 
 
            cohabitation.  
 
            
 
                 Likewise, the parties have not publicly declared 
 
            themselves to be husband and wife.  Claimant and O'Connor 
 
            have engaged in activities similar to those of claimant and 
 
            Stromer as regards bank accounts, charge accounts, motor 
 
            vehicle ownership, property ownership and leasing, and 
 
            payment of utilities.  As noted above, these practices are 
 
            common both among unmarried, cohabiting couples and among 
 

 
            
 
            Page  10
 
            
 
            
 
            
 
            
 
            spouses.  The practices are insufficient to establish a 
 
            public declaration that the parties are husband and wife.  
 
            Similarly, while claimant and O'Connor apparently on 
 
            occasion acquiesce in others' perceptions that they were 
 
            husband and wife, the greater weight of evidence suggests 
 
            that they made no public declaration that they were husband 
 
            and wife and actively tried to dispel the perception that 
 
            they were husband and wife.  Claimant's will refers to 
 
            O'Connor as her friend.  Claimant's family believed 
 
            claimant's child to have been born out of wedlock.  Claimant 
 
            and O'Connor had advised their child that they are not 
 
            husband and wife.  Again, while it may be true that claimant 
 
            and O'Connor feel it advantageous for them to remain 
 
            cohabiters and not spouses, that fact, of itself, is 
 
            insufficient to override the absence of a public declaration 
 
            to be husband and wife in the absence of a present intent 
 
            and agreement to be married even where the parties have 
 
            continuously cohabited as claimant and O'Connor have since 
 
            their return to Iowa.  The law neither punishes nor rewards 
 
            cohabitating parties by conferring on them the status of 
 
            husband and wife where they do not presently wish that 
 
            status.  
 
            
 
                                      ORDER
 
            
 
                 THEREFORE, IT IS ORDERED:
 
            
 
                 Claimant take nothing further from these proceedings.
 
            
 
                 Claimant pay costs of these proceedings.
 
            
 
                 Signed and filed this ____ day of November, 1992.
 
            
 
            
 
            
 
            
 
                                          ______________________________
 
                                          HELENJEAN M. WALLESER
 
                                          DEPUTY INDUSTRIAL COMMISSIONER    
 
            
 
            
 
            Copies to:
 
            
 
            Mr. Andrew J. Petrzelka
 
            Attorney at Law
 
            Simmons, Perrine, Albright & Elwood
 
            Suite 1200
 
            115 Third St., SE
 
            Cedar Rapids, IA  52401
 
            
 
            Mr. Michael R. Hoffmann
 
            Breakwater Building
 
            Attorney at Law
 
            3708 75th St.
 
            Des Moines, IA  50322
 
            
 
 
            
 
            
 
            
 
            
 
            
 
                                           1105 1111 1901
 
                                           Filed November 25, 1992
 
                                           Helenjean M. Walleser
 
 
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
                      
 
            JULIE GRASSFIELD,   
 
                      
 
                 Claimant, 
 
                      
 
            vs.       
 
                                              File No. 717296
 
            SUTHERLAND LUMBER COMPANY,    
 
                                           D E C I S I O N  O N
 
                 Employer, 
 
                                               D E A T H
 
            and       
 
                                             B E N E F I T S
 
            LUMBERMAN'S UNDERWRITING      
 
             ALLIANCE,     
 
                      
 
                 Insurance Carrier,  
 
                 Defendants.    
 
            ___________________________________________________________
 
            
 
            1105; 1111
 
            Claimant's claim that her decedent received an injury 
 
            arising out of and in the course of his employment which 
 
            injury entitled claimant to death benefits barred on account 
 
            of claimant's decedent's horseplay.  Decedent's activities 
 
            was analyzed under both the Iowa strict horseplay rule and 
 
            the more liberal rule Professor Larson espouses.  Claim 
 
            barred under both analyses.
 
            
 
            1901
 
            Decision notes that defendants had not established that 
 
            claimant had entered a common-law marriage with either of 
 
            the individuals with whom claimant had cohabitated since 
 
            claimant's decedent's death.  
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         _________________________________________________________________
 
         
 
         
 
         HERMAN SKOW,
 
         
 
              Claimant,
 
         
 
         VS.
 
                                                 File No.  717469
 
         CITY OF FORT MADISON,
 
                                                    0 R D E R
 
             Employer,
 
         
 
         and
 
         
 
         IOWA INSURANCE GUARANTY
 
         ASSOCIATION and IOWA
 
         NATIONAL MUTUAL INSURANCE
 
         COMPANY,
 
         
 
             Insurance Carrier,
 
             Defendants.
 
         _________________________________________________________________
 
         
 
         
 
              Due to the imminent departure of the undersigned to 
 
         associate with a law firm representing a party in this matter, 
 
         authority to consider the settlement proposal in this matter 
 
         which is presently on appeal to the undersigned is delegated, 
 
         pursuant to section 86.3, Code of Iowa, to Deputy Michael G. 
 
         Trier.
 
         
 
         
 
              Signed and filed this 28th day of April, 1987.
 
         
 
         
 
         
 
         
 
         
 
                                               ROBERT C. LANDESS
 
                                               INDUSTRIAL COMMISSIONER
 
         
 
         Copies To:
 
         
 
         Mr. James P. Hoffman
 
         Attorney at Law
 
         Middle Road
 
         Keokuk, Iowa 52632-1066
 
         
 
         Mr. E. J. Kelly
 
         Attorney at Law
 
         1040 Fifth Avenue
 
         Des Moines, Iowa 50314
 
 
 
         
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         _________________________________________________________________
 
         
 
         
 
         WILLIAM D. LYNCH,
 
         
 
              Claimant,
 
         
 
         VS.
 
         
 
         ARMSTRONG RUBBER CO.,
 
                                                 File No. 718211
 
              Employer,
 
                                                   A P P E A L
 
         and
 
                                                 D E C I S I O N
 
         THE TRAVELERS INSURANCE
 
         COMPANY,
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         _________________________________________________________________
 
         
 
         
 
                              STATEMENT OF THE CASE
 
         
 
              Defendants appeal from an arbitration decision awarding 
 
         claimant 45 weeks of benefits for permanent partial disability 
 
         under Iowa Code section 85.34(2)(s), 10 3/7 weeks of healing 
 
         period benefits, $38.40 for mileage and section 85.27 medical 
 
         expenses related to his compensable injury, Defendants were given 
 
         credit for payments made under a group disability insurance 
 
         plan.
 
         
 
              The record on appeal consists of the transcript of the 
 
         arbitration hearing and joint exhibits 1, 2, 4 and 5. Official 
 
         notice was taken of the answers to interrogatories filed by 
 
         claimant on November 16, 1983 and of claimant's response to a 
 
         request for admissions filed May 2, 1984.  Both parties filed 
 
         briefs on appeal.
 
         
 
                                 ISSUES
 
         
 
              Defendants state the following issue on appeal:
 
         
 
                   1.  Whether the hearing officer erred as a matter 
 
              of law in holding that the time for giving notice under 
 
              Iowa Code section 85.23 did not commence on November 9, 
 
              1981.
 
         
 
                   2.  Whether the hearing officer erred as matters 
 
              of fact and law in holding that on February 8, 1982, 
 
              Armstrong had actual knowledge of the occurrence of an 
 
              injury as defined in Iowa Code section  85.23.
 
         
 
                   3.  Whether the hearing officer erred as a matter 
 
              of law in holding that a claim once barred by Iowa Code 
 
              section 85.23 is renewed by cumulative trauma.
 

 
         
 
         
 
         
 
         LYNCH V. ARMSTRONG RUBBER CO.
 
         Page   2
 
         
 
         
 
         
 
                   4.  Whether the hearing officer erred as matters 
 
              of fact and law in holding that Claimant's disabilities 
 
              should be compensated under Iowa Code subsection 
 
              85.34(2)(s) rather than subsection 85.34(2)(m).
 
         
 
                          REVIEW OF THE EVIDENCE
 
         
 
              The arbitration decision adequately and accurately reflects 
 
         the pertinent evidence and it will not be reiterated herein.
 
         
 
              Briefly stated, claimant was diagnosed as suffering from 
 
         bilateral carpal tunnel syndrome on December 2, 1982.  Claimant 
 
         subsequently underwent surgery for carpal tunnel release on the 
 
         left side on December 17, 1982 and on the right side on January 
 
         23, 1983.  Claimant returned to work on February 28, 1983.
 
         
 
              Claimant was originally diagnosed by Dr. Clemens as having 
 
         minimal carpal tunnel syndrome on the left side on November 9, 
 
         1981.  At that time claimant had gone to Dr. Clemens for problems 
 
         with his left shoulder.  Dr. Clemens did not recommend surgery or 
 
         treatment in 1981 for the carpal tunnel syndrome but he did tell 
 
         claimant that eventually something would have to be done.  
 
         Claimant did not notify defendant, Armstrong Rubber Company 
 
         (hereinafter Armstrong), that he had been diagnosed as having 
 
         minimal carpal tunnel syndrome in 1981.  However, the following 
 
         entry appears on page 23 of exhibit 1 which is the medical 
 
         records kept by Armstrong on claimant: "2/8/82 Drs Ins Gout, 
 
         Carpal Tunnel Syndrome Exam 12/12/81 -- R.P. O'Shana DO/NW".
 
         
 
              At his deposition before the hearing, claimant did not 
 
         recall having seen Dr. Clemens in 1981.  However, at the hearing 
 
         claimant explained that he considered that visit to be related to 
 
         his shoulder problems and that he has had a history of shoulder 
 
         problems.  He also explained that he considered a compensable 
 
         injury to be something which required him to be off work.  He 
 
         stated that he knew in 1981 carpal tunnel syndrome was a wrist 
 
         problem.
 
         
 
              Claimant continued to work for Armstrong; however, on 
 
         November 22, 1982 he decided that the hand problems which he 
 
         first began to experience in September or October of 1981 needed 
 
         attention.  So he went to see Dr. Clemens who ordered that 
 
         claimant undergo EMG tests.  After those tests Dr. Clemens 
 
         diagnosed claimant's condition as bilateral carpal tunnel 
 
         syndrome.
 
         
 
              Albert L. Clemens, M.D., states in a letter dated April 25, 
 
         1984 that claimant has "permanency of 15% of each arm, forearm 
 
         and hand as a combined extremity." Claimant was also examined by 
 
         Martin S. Rosenfeld, D.O., who states in a letter dated February 
 
         11, 1985 that claimant has "approximately a six (6) percent 
 
         impairment of the upper right extremity and an eight (8) percent 
 
         impairment to the upper left extremity."
 
         
 
                       APPLICABLE LAW AND ANALYSIS
 
         
 
              The first three issues raised by defendants concern the 
 
         notice requirement of Iowa Code section 85.23, and they will be 
 

 
         
 
         
 
         
 
         LYNCH V. ARMSTRONG RUBBER CO.
 
         Page   3
 
         
 
         
 
         considered collectively.  The arbitration decision in this case 
 
         was filed prior to the Iowa Supreme Court decision in McKeever 
 
         Custom Cabinets v. Smith, 379 N.W.2d 368 (Iowa 1985) which is 
 
         found to be controlling here.
 
         
 
              In McKeever the court upheld the commissioner's adoption of 
 
         the cumulative injury rule for application in factually 
 
         appropriate cases.  Id. at 374.  The court also found that under 
 
         the cumulative injury rule the time that the injury occurs is 
 
         when, because of pain or physical inability, the employee can no 
 
         longer work.  With regard to the time for giving notice under 
 
         section 85.23 the court stated: "The two-year period under 
 
         section 85.26(l) of the Code and the ninety-day period for notice 
 
         under section 85.23 both run from the 'the occurrence of the 
 
         injury.' See Orr v. Lewis Central School District, 298 N.W.2d 
 
         256, 259 (Iowa 1980)." Id. at 375.
 
         
 
              The record here shows that claimant suffered one compensable 
 
         injury.  However, it is not clear on what day claimant became, 
 
         because of pain or physical inability, unable to work.  At the 
 
         earliest that day may have been November 22, 1982 when claimant 
 
         went to see Dr. Clemens because claimant felt something should be 
 
         done about his wrist problems or at the latest that day would 
 
         certainly have been December 17, 1982 when claimant underwent his 
 
         first surgery.  Either one of these dates is within 90 days of 
 
         the date that both parties agree actual notice was given to 
 
         Armstrong - December 14, 1982.  Therefore, claimant's action is 
 
         not barred by the notice requirement of section 85.23.
 
         
 
              The final issue defendants raise concerns which subsection 
 
         of Iowa Code section 85.34 should be used to compensate claimant.  
 
         Defendants argue that 85.34(2)(m) should apply.  However, 
 
         85.34(2)(m) only applies to the loss of one arm.  Here it is held 
 
         that claimant has suffered the loss of the use of both arms 
 
         caused by a single accident, therefore, section 85.34(2)(s) 
 
         applies.  The deputy's combination of the physical impairment 
 
         ratings by Dr. Rosenfeld using the AMA Guides to the Evaluation 
 
         of Permanent Impairment to find that claimant's impairment to the 
 
         body as a whole is nine percent is correct.
 
         
 
              The decision of the deputy is affirmed, however, the 
 
         findings of fact and conclusions of law are modified in 
 
         accordance with this decision.
 
         
 
                              FINDINGS OF FACT
 
         
 
              1.  On November 9,.1981 claimant was diagnosed as having 
 
         carpal tunnel syndrome afflicting his left upper extremity.  On 
 
         that same date claimant believed the condition to be work related 
 
         and knew that it would require surgical treatment.
 
         
 
              2.  On February 8, 1982 the employer's medical department 
 
         obtained notice that claimant had been evaluated for carpal 
 
         tunnel syndrome.
 
         
 
              3.  Claimant's symptoms from the carpal tunnel syndrome were 
 
         relatively minor at the time when the ailment was initially 
 
         diagnosed in November 1981.  By November 1982 claimant had 
 
         developed bilateral carpal tunnel syndrome and the affliction in 
 

 
         
 
         
 
         
 
         LYNCH V. ARMSTRONG RUBBER CO.
 
         Page   4
 
         
 
         
 
         his left upper extremity had changed to include the ulnar nerve.  
 
         The bilateral carpal tunnel syndrome arose from a single incident 
 
         or accident.
 
         
 
              4.  When the ailment was initially diagnosed in 1981 
 
         claimant was able to work and did so until late in 1982 when the 
 
         ailment began to cause difficulty in performing his work.  The 
 
         ailment had not produced any ascertainable degree of disability 
 
         prior to the time it began to cause claimant difficulty in 
 
         performing his work in late 1982.
 
         
 
              5.  Claimant did not receive any medical care for the carpal 
 
         tunnel syndrome until December 1982 except for the tests made at 
 
         the time of the diagnosis in 1981.
 
         
 
              6.  As a result of the ailment claimant has an eight percent 
 
         permanent partial impairment of his upper left extremity and a 
 
         six percent permanent partial impairment of the upper right 
 
         extremity.  This is the equivalent of a nine percent permanent 
 
         partial impairment of the whole man.
 
         
 
              7.  Defendant, Armstrong, had actual notice of claimant's 
 
         bilateral carpal tunnel syndrome on December 14, 1982.
 
         
 
                                CONCLUSIONS OF LAW
 
         
 
              This agency has jurisdiction of the subject matter of this 
 
         proceeding and its parties.
 
         
 
              The onset of claimant's bilateral carpal tunnel syndrome is 
 
         a single incident or accident within Code section 85.34(2)(s).
 
         
 
              Claimant's action is not barred by the notice provision of 
 
         section 85.23.
 
         
 
              Claimant is entitled to 10 3/7 weeks of compensation for 
 
         healing period at the rate of $264.02 per week commencing 
 
         December 17, 1982.
 
         
 
              Claimant is entitled to 45 weeks of compensation for 
 
         permanent partial disability under section 85.34(2)(s) of the 
 
         Iowa Code at the rate of $264.02 per week commencing February 28, 
 
         1983.
 
         
 
              The employer is entitled to credit for the amounts paid 
 
         under its group medical plan and group disability income plan.
 
         
 
                                     ORDER
 
         
 
              THEREFORE, it is ordered:
 
         
 
              That defendants pay claimant ten and three-sevenths (10 3/7) 
 
         weeks of compensation for healing period at the rate of two 
 
         hundred sixty-four and 02/100 dollars ($264.02) per week 
 
         commencing December 17, 1982.
 
         
 
              That defendants pay claimant forty-five (45) weeks of 
 
         compensation for permanent partial disability at the rate of two 
 
         hundred sixty-four and 02/100 dollars ($264.02) per week 
 

 
         
 
         
 
         
 
         LYNCH V. ARMSTRONG RUBBER CO.
 
         Page   5
 
         
 
         
 
         commencing February 28, 1983.
 
         
 
              That defendants receive credit in the amount of one thousand 
 
         four hundred fifty-nine and 47/100 dollars ($1,459.47) for the 
 
         amount of disability income paid to claimant at the rate of one 
 
         hundred thirty-nine and 95/100 dollars ($139.95) per week 
 
         commencing December 17, 1982.
 
         
 
              That defendants pay claimant interest pursuant to section 
 
         85.30.
 
         
 
              That defendants pay claimant thirty-eight and 40/100 dollars 
 
         ($38.40) for travel expenses in accordance with section 85.27.
 
         
 
              That defendants pay the costs of this action pursuant to 
 
         industrial Services Rule 343-4.33, formerly Industrial 
 
         Commissioner Rule 500-4.33.
 
         
 
              That defendants are to file claim activity reports as 
 
         requested by this agency pursuant to Rule 343-3.1.
 
         
 
         
 
              Signed and filed this 11th day of March, 1987.
 
         
 
         
 
         
 
         
 
         
 
         
 
                                           ROBERT C. LANDESS
 
                                           DEPUTY INDUSTRIAL COMMISSIONER
 
         
 
         Copies To:
 
         
 
         Mr. James W. Carney
 
         Attorney at Law
 
         400 Homestead Bldg.
 
         303 Locust Avenue
 
         Des Moines, Iowa 50309
 
         
 
         Mr. Wade R.Hauser, III
 
         Attorney at Law
 
         300 Liberty Building
 
         Des Moines, Iowa 50309
 
         
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                                 1403.30-1402.50-1803.1
 
                                                 2209-2401
 
                                                 Filed March 11, 1987
 
                                                 ROBERT C. LANDESS
 
         
 
                   BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         _________________________________________________________________
 
         
 
         
 
         WILLIAM D. LYNCH,
 
         
 
              Claimant,
 
         
 
         VS.
 
         
 
         ARMSTRONG RUBBER CO.,
 
                                               File No. 718211
 
              Employer,
 
                                                A P P E A L
 
         and
 
                                               D E C I S I 0 N
 
         THE TRAVELERS INSURANCE
 
         COMPANY,
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         _________________________________________________________________
 
         
 
         
 
         1403.30 - 1402.50 - 1803.1 - 2209 - 2401
 
         
 
              Claimant first diagnosed as having minimal carpal tunnel 
 
         syndrome on the left side in November 1981; however, at that time 
 
         no treatment was necessary  and claimant continued to work 
 
         without difficulty.  Claimant began experiencing more serious 
 
         problems in September or October 1982 until finally on November 
 
         22, 1982 claimant felt something needed to be done, so he went to 
 
         his physician.  He was diagnosed on December 2, 1982 as having 
 
         bilateral carpal tunnel syndrome.  Claimant subsequently 
 
         underwent surgeries and returned to work on February 28, 1983.  
 
         McKeever Custom Cabinets v. Smith, 379 N.W.2d 368 (Iowa 1985), 
 
         found to be controlling.  Award of 45 weeks of permanent partial 
 
         disability under Iowa Code section 85.34(2)(s) affirmed.
 
 
 
         
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                      BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         _________________________________________________________________
 
         
 
         
 
         JOHN A. RILEY,
 
         
 
              Claimant,
 
                                                 FILE NO. 718611
 
         VS.
 
                                               A R B I T R A T I O N 
 
         MARTIN MARIETTA CEMENT,
 
                                                 D E C I S I O N 
 
              Employer,
 
         
 
         and
 
         
 
         HOME INSURANCE CO.,
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         _________________________________________________________________
 
         
 
         
 
                                   INTRODUCTION
 
         
 
              This is a proceeding in arbitration brought.by John A. 
 
         Riley, claimant, against Martin Marietta Cement, employer, and 
 
         Home Insurance Company, insurance carrier, defendants, for 
 
         benefits as the result of an alleged injury on November 3, 1982.  
 
         A hearing was held on January 7, 1987 in Davenport, Iowa and the 
 
         case was fully submitted at the close of the hearing.  The record 
 
         consists of the testimony of John A. Riley (claimant), Lillian 
 
         Charlotte Riley (claimant's wife), Cheryl Scott (personnel 
 
         director), Timothy J. Duszynski, D.A. (educational-vocational 
 
         consultant), claimant's exhibits 1 through 38 and defendants' 
 
         exhibits A through E. Both attorneys filed excellent briefs.
 
                
 
                             PARTIAL TRANSCRIPT
 
         
 
              Defendants ordered and supplied the agency with a partial 
 
         transcript which is primarily the testimony of Cheryl Scott and 
 
         Timothy J. Duszynski.  In this decision it is cited with the 
 
         initials PT.
 
         
 
                             PRELIMINARY MATTER
 
         
 
              The following information is helpful in understanding the 
 
         stipulations and issues in this case.  Claimant's left leg was 
 
         caught in an auger at work and was severely damaged resulting in 
 
         disability to the left leg.  A large amount of skin and muscle 
 
         were transplanted from the left arm to the left leg resulting in 
 
         disability to the left arm.  It is contended that the left leg 
 
         injury changed claimant's gait which in turn caused an 
 
         aggravation of arthritis in claimant's back.  Disability is 
 
         claimed for the left leg, left arm and back.
 
         
 
                                  STIPULATIONS
 
         
 
              The parties stipulated to the following matters at the time 
 
         of the hearing:
 

 
         
 
              That an employer/employee relationship existed between 
 
         claimant and employer at the time of all three of the alleged 
 
         injuries -- the left leg, left arm and back.
 
         
 
              That claimant sustained an injury on November 3, 1982 which 
 
         arose out of and in the course of employment with employer with, 
 
         respect to the left leg and left arm.
 
         
 
              That the injury to the left leg and left arm were the cause 
 
         of both temporary and permanent disability.
 
         
 
              That claimant's entitlement to weekly compensation for 
 
         temporary disability benefits for the left leg and left arm is 
 
         stipulated to be from November 3, 1982 to November 1, 1984.
 
         
 
              That the type of permanent disability is in dispute and 
 
         depends upon the ultimate findings of fact and conclusions of law 
 
         with respect to whether the alleged injury to claimant's back is 
 
         compensable or not.
 
         
 
              That if the back is not compensable then the extent of 
 
         entitlement to weekly compensation for permanent disability 
 
         benefits for the left leg is 110 weeks for a 50 percent loss of 
 
         use of the left leg and 20 weeks for an eight percent loss of use 
 
         of the left arm; that the rule of the Simbro case applies in that 
 
         the values should be converted to body as a whole, combined and 
 
         applied to 500 weeks under Iowa Code section 85.34(2)(s).
 
         
 
              That the commencement date for permanent partial disability 
 
         benefits, in the event such benefits are awarded, is stipulated 
 
         to be from November 1, 1984.
 
         
 
              That the weekly rate of compensation in the event of an 
 
         award of benefits is stipulated to be $368.16 per week.
 
         
 
              That claimant's entitlement to medical benefits is not in 
 
         dispute and that all requested benefits have been or will be 
 
         paid.
 
         
 
              That defendants seek a credit under Iowa Code section 
 
         85.38(2) for payments made from an employee group plan for 
 
         retirement disability benefits in an unknown amount.  Claimant 
 
         does not dispute that payments have been made, but disputes that 
 
         defendants are entitled to a credit for the amounts so paid.
 
         
 
         
 
         
 
                                   ISSUES
 
         
 
              The issues submitted by the parties for determination at the 
 
         time of the hearing are as follows:
 
         
 
              Whether claimant sustained an injury which arose out of and 
 
         in the course of employment with employer with respect to his 
 
         back.
 
         
 
              Whether the back injury was the cause of temporary or 
 
         permanent disability.
 
         
 
              Whether claimant is entitled to temporary or permanent 
 
         disability benefits with respect to his back and, if so, the 
 
         nature and extent of benefits to which he is entitled.
 
         
 

 
         
 
         
 
         
 
         RILEY V. MARTIN MARIETTA CEMENT
 
         Page   3
 
         
 
         
 
              Whether claimant is an odd-lot employee.
 
         
 
              Whether defendants are entitled to a credit under Iowa Code 
 
         section 85.38(2) for retirement disability benefits paid to 
 
         claimant as payments made under an employee non-occupational 
 
         group plan.
 
         
 
              Whether claimant is entitled to certain costs listed in 
 
         exhibit 38.
 
         
 
                         SUMMARY OF THE EVIDENCE
 
         
 
              All of the evidence was examined and considered.  The 
 
         following is a summary of the pertinent evidence:
 
         
 
              Claimant was 57 years old at the time of the injury and 
 
         married.  He completed nine and one-half years of school.  He 
 
         obtained a GED in 1979 at age 54 at the request of and to please 
 
         his daughter.  All of his early employments were strenuous 
 
         laboring types of work.  Claimant worked for employer for 
 
         approximately 33 years before he retired on November 1, 1983.  At 
 
         that time, he was number six in seniority out of 94 employees.
 
         
 
              Claimant started to work for employer on March 2, 1951 as a 
 
         laborer.  He became a kiln helper and then worked as a kiln 
 
         burner for 23 years.  After that he worked as a shift breaker 
 
         which required him to learn and to be able to perform four 
 
         different jobs.  At the time of the injury on November 3, 1982, 
 
         claimant was assistant foreman of the packhouse.  He had been 
 
         doing this job for about one and one-half years.  The packhouse 
 
         is where cement is packed and shipped on railroad cars (Exhibit 
 
         1). Ninety percent of this job is standing, moving, climbing and 
 
         10 percent is sitting.  It involves some bookwork and checking 
 
         feed tanks (Ex. 1 & Ex.  C).  Claimant testified that he also 
 
         manually assisted his employees in preparing sacks and bags of 
 
         cement for shipment and that it was also necessary to climb 
 
         silos.
 
         
 
              On November 3, 1982, at approximately 1:00 p.m., claimant 
 
         was told to explode a chunk in silo number 24.  A chunk is a 
 
         charge of gunpowder in a plastic casing with a fuse.  The mine 
 
         safety and health inspectors investigated and described the 
 
         accident as follows:
 
         
 
              At approximately 1325 hours, Riley and Dobbs left the 
 
              control area and proceeded toward the No. 24 silo.  
 
              Dobbs was in front of Riley.  As they approached the 
 
              crossover section of the cross screw conveyor, Dobbs 
 
              walked up the 2- by 12- by 8-foot board, and seeing the 
 
              opening of the screw conveyor was not covered, stepped 
 
              over the opening and proceeded forward.  Riley walked 
 
              up the ramp, and not noticing that the opening was not 
 
              covered, stepped directly into the screw with his left 
 
              foot.  His foot became entangled with the screw.  Dobbs 
 
              stated that he heard Riley yell and immediately turned 
 
              around.  Riley was hanging onto the handrails with his 
 
              left foot entangled in the screw.  Dobbs immediately 
 
              had Alfred McClain, the operator, shut off the screw 
 
              conveyor.  Riley's foot was freed from the screw and 
 

 
         
 
         
 
         
 
         RILEY V. MARTIN MARIETTA CEMENT
 
         Page   4
 
         
 
         
 
              first aid was administered.
 
         
 
              Riley was transported by the Buffalo City ambulance 
 
              service to Mercy Hospital in Davenport Iowa under the 
 
              care of the ambulance attendant.  His injuries were 
 
              confined to his lower left leg and foot.  He suffered 
 
              fractures of the foot and ankle, and damage to tendons, 
 
              muscles and tissue.
 
              (Ex. 31-3 & 31-4)
 
         
 
              Claimant was treated at the emergency room by Richard L. 
 
         Kreiter, M.D., who debrided and irrigated a severe avulsion 
 
         laceration and severe soft tissue destruction injury of the 
 
         posterior one-half of the left calf.  Dr. Kreiter described skin 
 
         loss, gross contamination and exposed tendons.  Claimant also 
 
         suffered a fracture of the medial malleolus (Ex. 2-3).  Dr. 
 
         Kreiter stated that the gastroc's soleus muscles and Achilles 
 
         tendon were destroyed (Ex. 2-8).
 
         
 
              John Syverud, M.D., did a debridement and split thick skin 
 
         graft of this massive soft tissue avulsion injury of the 
 
         posterior aspect of the left calf on November 5, 1982.  The 
 
         entire defect measured 25 cm by 15 cm (Ex. 2-10).  Dr. Syverud 
 
         was assisted by William Irey, M.D., an orthopedic surgeon.  The 
 
         bony areas were not covered at this time (Ex. 2-11).
 
         
 
              Dr. Irey, who became claimant's main treating physician in 
 
         Davenport, then referred claimant to Michael Wood, M.D., at the 
 
         Mayo Clinic (Ex. 3-2).  At the Mayo Clinic a sensory type of free 
 
         flap transfer to his left leg from his left arm was performed on 
 
         November 30, 1983.  Dr. Wood used a radial-type flap from his 
 
         left forearm and attempted to innervate it with an anastomosis 
 
         (grafting) of the lateral antebrachial cutaneous nerve of the 
 
         flap to the saphenous nerve of the leg (Ex. 4-1).  The flap 
 
         transfer was successful, but claimant did not receive the hoped 
 
         for sensory restoration (Ex. 11-1).  Claimant's heel pad was 
 
         necrotic and had to be resected by Dr. Wood also (Ex. 4-1).
 
         
 
              Approximately 11 months after the injury occurred Dr. Irey 
 
         wrote to the insurance company on October 12, 1983, that he 
 
         guessed that claimant was getting close to the time that he could 
 
         give an impairment rating.  He felt that it would not be long 
 
         until claimant could return to work in some supervisory capacity, 
 
         but that he would have difficulty doing any strenuous manual 
 
         labor (Ex. 10).  Claimant did not return to work, however, but 
 
         instead returned to Mayo Clinic and Dr. Wood performed a 
 
         tendo-Achilles reconstruction (reconstruction of the heel cord) 
 
         using irradiated tendon allografts on April 17, 1984 (Ex. 11-1, 
 
         13-1 & 15-1).  Even before the surgery on November 10, 1983, the 
 
         Mayo Clinic estimated that claimant would have restrictions 
 
         prohibiting prolonged standing (more than three hours in an eight 
 
         hour shift or more than 30 minutes at one time) as well as no 
 
         climbing, no excessive walking, no running and no stooping, but 
 
         that claimant could do a job in a sitting position without 
 
         restrictions (Ex. 12-1).  After the surgery, Dr. Wood, however, 
 
         personally completed an Estimated Functional Capacity Form on 
 
         July 20, 1984 which estimated that in an eight hour work day 
 
         claimant could: (1) sit eight hours continuously; (2) stand two 
 
         hours with rests; and, (3) walk one hour with rests.  He could 
 

 
         
 
         
 
         
 
         RILEY V. MARTIN MARIETTA CEMENT
 
         Page   5
 
         
 
         
 
         never lift or carry 51 to 100 pounds or squat or climb.  He could 
 
         not use his foot for repetitive movements for operating foot 
 
         controls.  He was totally restricted from unprotected heights.  
 
         Dr. Wood estimated that claimant could work full time on October 
 
         1, 1984 (Ex. 16).  Dr. Wood succinctly summarized claimant's 
 
         treatment at Mayo Clinic in a letter to claimant's counsel on 
 
         July 25, 1984 and stated that he did not anticipate any further 
 
         surgery (Ex. 17).  Claimant continued to complain of pain, 
 
         swelling and lack of sensation in his left foot and ankle but Dr. 
 
         Wood thought that these would gradually improve over time (Ex. 
 
         18).  Dr. Wood repeated on October 18, 1984, that claimant was 
 
         capable of employment provided it was basically sitting and 
 
         complied with his above restrictions (Ex. 19).
 
         
 
              Dr. Irey calculated his permanent physical impairment 
 
         ratings using the Second Edition of the Guides to Evaluation of 
 
         Permanent Impairment and mailed them to claimant on October 29, 
 
         1984.  Dr. Irey found as follows:
 
         
 
              ...The impairment of his upper extremity due to his 
 
              forearm surgery results in a 6% impairment in palmar 
 
              flexion, zero% impairment in dorsiflexion, about 1% 
 
              impairment of radial and ulnar deviation each for a 
 
              total of 8% impairment of the upper extremity.
 
         
 
              For his lower extremity, an amputation at the ankle 
 
              joint would be about a 70% impairment.  I feel that he 
 
              has certainly a better leg than that although he does 
 
              have significant limitations.  He has lost a 
 
              significant portion of his heel pad and posterior 
 
              musculature.  I think his effective foot motion is 
 
              extremely limited.  Although it is somewhat difficult 
 
              to calculate, my best estimation would be a 50% 
 
              impairment of his lower extremity due to his leg 
 
              injury.
 
              (Ex. 20-2)
 
         
 
              Dr. Irey did not treat or rate claimant's back.  Dr. 
 
         Wood did not treat claimant's back or rate any of claimant's 
 
         impairments (Ex. 21).
 
         
 
              Claimant testified that he first noticed pain in his back 
 
         and hips after the walking cast was installed in 1984.
 
         
 
              Larry L. Swank, D.C., saw claimant on April 19, 1985.  He 
 
         wrote a report and evaluation on July 11, 1985.  Claimant told 
 
         Dr. Swank that he stepped into a 16 inch screw conveyor at a 
 
         walkway over the screw conveyor.  In addition to pain in his 
 
         foot, claimant complained of low back pain on the right.  Lumbar 
 
         spine x-rays showed pelvic unlevelling and lateral lumbar tilt to 
 
         the right with advanced spondylosis throughout the lumbar spine.  
 
         He determined that claimant's low back pain was complicated by 
 
         abnormal gait movements due to the injury to the left lower leg.  
 
         The lower left leg injury prevents normal dorsiflexion and 
 
         plantar-flexion to propel the body forward.  Thus, claimant 
 
         shifts his weight to the right during gait movement.  He stated 
 
         that claimant would need a cane indefinitely.  Dr. Swank issued 
 
         impairment ratings for the left lower extremity, left upper 
 
         extremity and the spinal column, converted them to body as a 
 

 
         
 
         
 
         
 
         RILEY V. MARTIN MARIETTA CEMENT
 
         Page   6
 
         
 
         
 
         whole, combined them, and arrived at a final whole man impairment 
 
         of 50 percent which is permanent (Ex. 22 & 23).
 
         
 
              Claimant saw Jan Koehler, M.D., for examination, evaluation 
 
         and rating on August 21, 1985 (Ex. 24).  The doctor noticed that 
 
         claimant walked with a halting gait with decreased weight bearing 
 
         on the left foot and moderate instability requiring the use of a 
 
         cane (Ex. 24-3).  Dr. Koehler concluded as follows:
 
         
 
              IMPRESSION:
 
                   1)   Essential hypertension with evidence of 
 
                        arteriosclerotic cardiovascular disease.
 
                   2)   Chronic obstructive pulmonary disease.
 
                   3)   History of carcinoma of the colon.
 
                   4)   Diffuse spinal osteoarthritis of the cervical, 
 
                        thoracic and lumbosacral spine with chronic neck 
 
                        and low back pain.
 
                   5)   Extensive soft tissue injury of the left leg,ankle 
 
                        and foot, with post surgical soft tissue deficit 
 
                        of left forearm secondary to tissue graft.
 
         
 
              (Ex. 24-5)
 
         
 
              Dr. Koehler concluded that the sum total of the left leg, 
 
         left arm and back impairments resulted in a 40 percent permanent 
 
         partial impairment using the AMA Guides to Evaluation of 
 
         Permanent Impairment (Ex. 24-6).  Dr. Koehler wrote claimant's 
 
         counsel on May 13, 1986 with the following additional 
 
         information:
 
         
 
              With regard to the condition of his back, x-rays 
 
              revealed osteoarthritic changes throughout the spine.  
 
              In my report I clearly note that Mr. Riley complained 
 
              of back pain prior to the injury; his symptoms seemed 
 
              to increase following the accident on November 3, 1982.  
 
              On observing Mr. Riley's gait with the favoring of the 
 
              injured left leg, it is quite clear that the normal 
 
              biomechanics of his back are significantly altered it 
 
              is impossible to know how much of the degenerative 
 
              changes seen on his x-rays were present before his leg 
 
              injury.  However, any degenerative changes and 
 
              associated back pain would be significantly aggravated 
 
              by the abnormal gait now present.  I cannot say with 
 
              certainty whether he sustained any direct injury to his 
 
              back in November of 1982.
 
              (Ex. 26)
 
         
 
              Dr. Koehler also testified by deposition on August 4, 1986, 
 
         that his training is in internal medicine but his experience is 
 
         primarily in emergency medicine, family practice and general 
 
         medicine.  He stated that claimant had a history of blood 
 
         pressure problems, chronic lung disease, carcinoma of the colon, 
 
         spinal arthritis and two episodes when he collapsed on the job 
 
         which were presumed to be heat and dehydration.  He stated that 
 
         claimant's current leg, arm and back condition were caused by the 
 
         injury on November 3, 1982 (Ex. 37, pages 7 & 8).  More 
 
         specifically the back symptoms are clearly secondary to the 
 
         abnormal gait caused by his leg injury (Ex. 37, pp. 9, 10, 11, 
 
         20, 28 & 42).  Claimant is not capable of performing a job eight 
 

 
         
 
         
 
         
 
         RILEY V. MARTIN MARIETTA CEMENT
 
         Page   7
 
         
 
         
 
         hours a day that involves bending, walking distances, twisting 
 
         and some lifting (Ex. 37, p. 13).  Dr. Koehler commented that 
 
         there had been some speculation that claimant would have had less 
 
         pain and disability if the left leg and foot had been amputated 
 
         rather than salvaged (Ex. 37, p. 34).
 
         
 
              Dr. Irey testified by deposition on September 17, 1986 that 
 
         he is an orthopedic surgeon and treated claimant for this injury 
 
         in conjunction with Dr. Wood at the Mayo Clinic (Ex. D, pp. 
 
         1-12).  He described claimant's ankle brace as two supports 
 
         inside and outside of his ankle attached to his shoe and calf 
 
         that extend from his ankle to his knee to stabilize this area 
 
         (Ex.  D, pp. 12 & 13).  He testified that claimant did not 
 
         complain to him of any back pain in 1983 or 1984 that he recalled 
 
         or noted in his records.  Claimant first complained of back pain 
 
         on December 2, 1985 (Ex.  D, pp. 13-17).  Dr. Irey testified that 
 
         he discussed with claimant the fact that his abnormal gait was 
 
         probably aggravating the underlying arthritis in his back and 
 
         that it would be an expected sequela of his abnormal walking (Ex.  
 
         D, p. 18).  He stated that claimant's back hurts and bothers him 
 
         on a fairly regular basis.  It is not severe, but does bother him 
 
         on a day to day basis from the pain (Ex.  D, p. 22).  The 
 
         etiology of degenerative arthritis is unknown, but injury, 
 
         surgery, congenital deformities, unequal leg lengths, and major 
 
         problems with walking are possible causes (Ex.  D, p. 25).  He 
 
         confirmed that claimant did have degenerative arthritis in his 
 
         entire spine (Ex.  D, pp. 26 & 27).  The following dialogue 
 
         concerning causal connection transpired between defendants' 
 

 
         
 
         
 
         
 
         RILEY V. MARTIN MARIETTA CEMENT
 
         Page   8
 
         
 
         
 
         counsel and Dr. Irey, the treating physician.
 
         
 
                   Q.  Doctor, can you say how the ambulation problem 
 
              he has, the walking problem he has affects that spinal 
 
              column?
 
         
 
                   A.  It causes abnormal motion in usually the 
 
              lumbar area of the spine and if there were structural 
 
              abnormalities higher in the spine, this could 
 
              conceivably cause enough minor degrees of abnormal 
 
              motion or stress to cause pain in those areas as well.
 
              (Ex. D, p. 27)
 
         
 
              In answer to defense counsel's question, Dr. Irey said that 
 
         claimant's gait disturbance probably at least increased his 
 
         symptoms of degenerative arthritis in the lumbar spine and has 
 
         caused physical impairment of his spine (Ex.  D, pp. 29, 35 & 
 
         36).  It is not possible to pro rate how much of the pain is due 
 
         to the degenerative arthritis and how much is due to the gait 
 
         problem (Ex.  D, pp. 29, 30, 35 & 36).  The back condition is 
 
         permanent (Ex.  D, p. 36).  Dr. Irey felt that even without the 
 
         gait problem claimant probably would have had some lumbar back 
 
         pain from the arthritis anyway (Ex.  D, p. 39).
 
         
 
              Claimant testified that he tried to return to work in May or 
 
         June of 1983.  He only needed one more day of work in order to 
 
         qualify for additional paid vacation.  The company, however, told 
 
         him no.  Again in October of 1983 when the insurance company told 
 
         him that his healing period was ending, claimant testified that 
 
         he tried to return to work.  The company looked at Dr. Wood's 
 
         restrictions and told him that they did not have any job that he 
 
         could do.  After that he never applied for or looked for a job, 
 
         but rather took disability retirement on November 1, 1983 (Ex.  
 
         A, B & C).
 
         
 
              Claimant testified that he had eight surgeries in all.  His 
 
         left foot is shorter than the right foot.  He spends his day 
 
         watching television and trying to get comfortable.  He can drive 
 
         his van.  He has given up many of his former activities of golf, 
 
         horseshoes, baseball, darts and swimming.  About all he can do 
 
         now is fish.  He is a camping enthusiast and he still does some 
 
         camping since the injury.  He testified that he was not 
 
         physically capable of doing his old job at the cement plant.
 
         
 
              Roger Marquardt, an experienced vocational rehabilitation 
 
         consultant, saw claimant for one and one-half to two hours on 
 
         July 10, 1986 in Cedar Rapids, Iowa.  Marquardt wrote a report on 
 
         September 3, 1986 and gave a deposition on December 15, 1986.  In 
 
         his report Marquardt commented that claimant had a difficult time 
 
         walking.  He was aided by a cane, foot brace, wore a hearing aid 
 
         and glasses and appeared older than his stated age of 61.  
 
         Claimant was earning $13.25 per hour plus overtime monitoring 
 
         silos, keeping their inventory, transferring their flow, figuring 
 
         the sack crew's assignments and sometimes assisting them.  His 
 
         work ranged from semi-skilled to skilled, from light (20 pounds) 
 
         to heavy (100 pounds) all with required walking, standing, 
 
         reaching, handling and occasional climbing. marquardt concluded 
 
         that claimant could not perform his old job and that his job 
 
         skills were not transferable.  He also stated that claimant has 
 

 
         
 
         
 
         
 
         RILEY V. MARTIN MARIETTA CEMENT
 
         Page   9
 
         
 
         
 
         been released to return to work with restrictions and that 
 
         employment may exist within these restrictions.  However, 
 
         claimant told Marquardt that he would only return to work for his 
 
         former employer provided they would assign him a job within his 
 
         physical capacity.  If that is not possible then he would retire.  
 
         Claimant believed, and Marquardt concurred, that considering 
 
         claimant's age of 61, his restrictions, and possible salary, it 
 
         was not worth the effort to make a vocational adjustment into 
 
         another line of work (Ex. 27-2).  In his deposition Marquardt 
 
         repeated that claimant could not return to his old job and there 
 
         was no likelihood he could do any job in the cement industry.  
 
         Claimant had no skills to be self-employed.  Claimant was 
 
         extremely limited in doing any kind of work in competitive 
 
         employment (Ex. 35, pp. 41-44).  Claimant was not completely 
 
         unemployable (Ex. 35, p. 32).  Claimant could do sedentary, light 
 
         or medium work, with alternate standing or sitting (Ex. 35, pp- 
 
         17-19).  He could do a number of minimum wage type jobs such as 
 
         hotel clerk and parking lot clerk (Ex. 35, p. 43).  Claimant had 
 
         little or no motivation to work because he was receiving $622 a 
 
         month in retirement benefits and $1,473 every four weeks in 
 
         workers' compensation benefits for a total of $2,095 
 
         approximately each month (Ex. 35, pp. 36 & 37).  In addition, he 
 
         would be eligible for early social security in March of 1987 (Ex. 
 
         35, p. 46).
 
         
 
              Timothy J. Duszynski, D.A., an educational vocational 
 
         consultant, saw claimant for approximately two and one-fourth 
 
         hours on December 10, 1986 (Ex. 36, p. 6 & 7).  He prepared an 
 
         exceptionally detailed report on December 15, 1986 (Ex.  E).  He 
 
         gave a deposition on December 22, 1986 (Ex. 36) and he testified 
 
         at the hearing on January 17, 1987.  Claimant told Duszynski that 
 
         he had not worked since the injury, that he had not sought 
 
         employment since the injury and that he had not sought additional 
 
         education or training since the injury because he has been unable 
 
         to work since the injury (Ex.  E, pp. 6 & 7; PT, pp. 42 & 43).  
 
         Claimant stated that he tried several times to be re-employed by 
 
         employer, even begged to go back to work, but employer has no 
 
         work for which he is qualified in his present condition (Ex.  E, 
 
         p. 8). Claimant's wife is retired from Sears Roebuck & 
 
         Company(Ex.E,p.9).  Claimant did not believe he had any 
 
         obligation to seek employment with any other employer than Martin 
 
         Marietta at the exact same plant at the same compensation he 
 
         earned at the time of the injury and he did not have to settle 
 
         for anything less.  He felt that he was too old and was not 
 
         interested in a program of education or training to qualify him 
 
         for other employment (Ex.  E, p. 10; PT, pp. 45 & 46).  Claimant 
 
         refused to take four commonly used career and vocational 
 
         assessment tests at defendants' expense in order for Duszynski to 
 
         complete his evaluation (Ex.  E, pp. 12-14; PT, pp. 43-45).  
 
         Therefore, the witness could not determine what present or future 
 
         employment claimant could do or what education and training would 
 
         be necessary to prepare for employment (Ex.  E, p. 14).  
 
         Duszynski concluded that claimant has always lead a productive 
 
         life and had demonstrated his ability to advance himself, but 
 
         since the injury claimant had attempted no rehabilitation and 
 
         declined to be tested for any further employment possibilities.  
 
         Duszynski stated that claimant was able to engage in some kind of 
 
         employment, but just what could not be determined due to 
 
         claimant's refusal to cooperate with the assessment tests (Ex.  
 

 
         
 
         
 
         
 
         RILEY V. MARTIN MARIETTA CEMENT
 
         Page  10
 
         
 
         
 
         E, p. 15; PT, pp. 46 & 47).
 
         
 
              In his deposition Duszynski conceded that he was not engaged 
 
         in placement and had never placed anyone in a job and that this 
 
         was his first workers' compensation case (Ex. 36, pp. 9 & 10).  
 
         Claimant has been released to return to work (Ex. 36, pp. 12 & 
 
         13).  There are a number of things that claimant could do such as 
 
         telephone sales or service jobs that pay approximately $4.00 to 
 
         $5.00 per hour (Ex. 36, pp. 27 & 28).
 
         
 
              At the hearing Duszynski testified that his expertise was 
 
         not finding jobs, but rather evaluating people and preparing 
 
         training for changing occupations (PT, p. 33).
 
         
 
         
 
              Lillian Charlotte Riley, wife of claimant, testified that 
 
         she now mows the grass and operates the snow blower and does 
 
         other home maintenance jobs.  About all claimant can do is to 
 
         trim the hedge.  She carries the groceries.  They do more camping 
 
         now, but are more restricted in what claimant can do.  They do 
 
         less walking and do not walk as far.  Claimant cannot bicycle or 
 
         toboggan now.    At home claimant climbs the stairs one step at a 
 
         time using the handrail.
 
         
 
              Cheryl Scott testified that she is director of personnel for 
 
         employer and prepared the retirement documents marked exhibits B 
 
         and C. Claimant was eligible for early retirement after 30 years 
 
         of service or for disability retirement.  He chose disability 
 
         retirement because it paid more.  Disability retirement was 
 
         $709.50 per month whereas early retirement was $676.50 per month.  
 
         She testified that during shut down everybody has to do manual 
 
         labor work and that claimant would probably be unable to perform 
 
         those tasks at this time with his present limitations.
 
         
 
                                        
 
                           APPLICABLE LAW AND ANALYSIS
 
         
 
              The claimant has the burden of proving by a preponderance of 
 
         the evidence that the injury of November 3, 1982 is causally 
 
         related to the disability on which he now bases his claim.  
 
         Bodish v. Fischer, Inc., 257 Iowa 516, 133 N.W.2d 867 (1965).  
 
         Lindahl v. L. 0. Boggs, 236 Iowa 296, 18 N.W.2d 607 (1945).  A 
 
         possibility is i sufficient; a probability is necessary. Burt v. 
 
         John Deere Waterloo Tractor Works, 247 Iowa 691, 73 N.w.2d 732 
 
         (1955).  The question of causal connection is essentially within 
 
         the domain of expert testimony.  Bradshaw v. Iowa Methodist 
 
         Hospital, 251 Iowa 375, 101 N.W.2d 167 (1960).
 
         
 
              However, expert medical evidence must be considered 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 
 

 
         
 
         
 
         
 
         RILEY V. MARTIN MARIETTA CEMENT
 
         Page  11
 
         
 
         
 
         Co., 261 Iowa 352, 154 N.W.2d 178 (1967).
 
         
 
              An injury to a scheduled member which, because of 
 
         aftereffects (or compensatory change), creates impairment to the 
 
         body as a whole entitles claimant to industrial disability.  
 
         Barton v. Nevada Poultry Co., 253 Iowa 285, 110 N.W.2d 660 
 
         (1961). Dailey v. Pooley Lumber Co., 233 Iowa 758, 10 N.W.2d 569 
 
         (1943).
 
         
 
              If a claimant contends he has industrial disability he has 
 
         the burden of proving his injury results in an ailment extending 
 
         beyond the scheduled loss.  Kellogg v. Shute and Lewis Coal Co., 
 
         256 Iowa 1257, 130 N.W.2d 667 (1964).
 
         
 
              An injury is the producing cause; the disability, however, 
 
         is the result, and it is the result which is compensated. Barton, 
 
         253 Iowa 285, 110 N.W.2d 660 (1961); Dailey, 233 Iowa 758, 10 
 
         N.W.2d 569 (1943).
 
         
 
              An employee is not entitled to recover for the results of a 
 
         preexisting injury or disease but can recover for an aggravation 
 
         thereof which resulted in the disability found to exist.  Olson 
 
         v. Goodyear Service Stores, 255 Iowa 1112, 125 N.W.2d 251 1963), 
 
         Yeager v. Firestone Tire & Rubber, Co., 253 Iowa 369, 112 N.W.2d 
 
         299 (1961); Ziegler v. United States Gypsum Co., 252 Iowa 613, 
 
         106 N.W.2d 591 (1960).  See also Barz v. Oler, 257 Iowa 508, 133 
 
         N.W.2d 704 (1965); Almquist v. Shenandoah Nurseries, 218 Iowa 
 
         724, 254 N.W. 35 (1934).
 
         
 
              Apportionment of disability is limited to those situations 
 
         where the prior injury or illness, unrelated to employment, 
 
         independently produces some ascertainable portion of the ultimate 
 
         industrial disability found to exist following the employment 
 
         related aggravation.  Varied Industries, Inc. v. Sumner, 353 
 
         N.W.2d 407 (Iowa 1984).
 
         
 
              Claimant did sustain the burden of proof by a preponderance 
 
         of the evidence that he sustained an injury to his back that 
 
         arose out of and in the course of his employment with employer.  
 
         Dr. Swank reported that his x-rays demonstrated pelvic unleveling 
 
         and lateral lumbar tilt to the right superimposed on claimant's 
 
         advanced spondylosis throughout the lumbar spine.    He indicated 
 
         that this was caused by claimant's abnormal gait which was caused 
 
         by the injury to his lower left leg (Ex. 22).  Dr. Koehler 
 
         confirmed causal connection by his letter of May 13, 1986 by 
 
         stating that claimant's gait, favoring the left leg, 
 
         significantly altered the biomechanics of his back.  Any 
 
         degenerative changes and associated back pain would be 
 
         sufficiently aggravated by the abnormal gait now present (Ex. 
 
         26).  In his deposition he testified several times that the back 
 
         symptoms were clearly secondary to the abnormal gait which was 
 
         caused by his leg injury (Ex. 37, pp. 9, 10, 11, 20, 28 & 42).
 
         
 
              Dr. Irey, claimant's treating physician, confirmed several 
 
         times also that the altered gait increased claimant's 
 
         degenerative arthritis symptoms and caused impairment to his 
 
         spine (Ex.  D, pp. 18, 27, 29, 35 & 36).
 
         
 
              Dr. Swank (Ex. 22 & 23), Dr. Koehler (Ex. 24-6) and Dr. Irey 
 

 
         
 
         
 
         
 
         RILEY V. MARTIN MARIETTA CEMENT
 
         Page  12
 
         
 
         
 
         (Ex.  D, p. 36) all confirmed that the back injury is permanent.  
 
         Therefore, claimant is entitled to permanent disability benefits 
 
         for his left leg and left arm as stipulated by the parties and it 
 
         is now determined that he is entitled to permanent disability 
 
         benefits for his back also.  In fact, there is no medical 
 
         evidence that claimant did not sustain a back injury caused by 
 
         the altered gait caused by the leg injury.  Defense counsel 
 
         suggested that claimant's weight gain since the injury and his 
 
         protruding abdomen may be the cause of his back pain, but the 
 
         doctors felt that these conditions were not significant.  Even 
 
         though claimant may have had arthritis of his entire spine for 
 
         some time prior to this injury, no ascertainable portion was 
 
         proven by defendants.  In fact, there was no evidence that it 
 
         caused any disability at all prior to this injury.
 
         
 
              Claimant is not entitled to permanent total disability.  Dr. 
 
         Wood said that claimant could work with restrictions (Ex. 16 & 
 
         17).  Dr. Irey's ratings of eight percent for the left arm and 50 
 
         percent for the left leg imply only permanent partial disability 
 
         of these two scheduled members (Ex. 20-2).  Dr. Swank rated 
 
         claimant with a 50 percent impairment of the body as a whole (Ex. 
 
         23) and Dr. Koehler rated claimant with a 40 percent impairment 
 
         of the body as a whole (Ex. 24-6), but neither doctor suggested 
 
         that claimant was incapable of gainful employment (Ex. 22, 23, 
 
         24, 26, & 37).  Marquardt thought claimant was capable of some 
 
         employment (Ex. 27-2; Ex. 35, pp. 17-19, 32 & 34).  Duszynski 
 
         felt that claimant was capable of some employment (Ex.  E, p. 15; 
 
         PT, pp. 46 & 47).
 

 
         
 
         
 
         
 
         RILEY V. MARTIN MARIETTA CEMENT
 
         Page  13
 
         
 
         
 
         
 
              Considering claimant was capable of some kind of employment, 
 
         but has made no attempt to find any employment, then claimant 
 
         cannot be said to be an odd-lot employee.  The only employment 
 
         claimant would agree to was to work for his old employer at the 
 
         same plant at the same earnings doing some work within his 
 
         physical capabilities.  If he could not do this then it was his 
 
         choice to retire.  Claimant testified and Scott testified and it 
 
         appears in the reports of Marquardt and Duszynski that claimant 
 
         was unable to return to his old job or any work in the cement 
 
         industry.  To be entitled to the odd-lot doctrine normally a 
 
         claimant, who is capable of working, must demonstrate a bona fide 
 
         effort to find work in the area of residence.  The evidence is 
 
         uncontroverted that claimant made absolutely no effort to seek 
 
         out any employment or rehabilitation for employment within his 
 
         capabilities.  Guyton v. Irving Jensen Company, 373 N.W.2d 101 
 
         (Iowa 1985); Emshoff v. Petroleum Transportation and Great West 
 
         Casualty Company, File No. 753723 (Appeal Decision March 1, 
 
         1987).  Certainly claimant is not one of the hardcore unemployed.  
 
         Umphress v. Armstrong Rubber Company, File No. 723184 (Appeal 
 
         Decision August 27, 1987).  In his fifties claimant obtained a 
 
         GED and learned the jobs of shift breaker and assistant packhouse 
 
         foreman.
 
         
 
              If claimant has an impairment to the body as a whole, an 
 
         industrial disability has been sustained.  Industrial disability 
 
         was defined in Diederich v. Tri-City Railway Co., 219 Iowa 587, 
 
         593, 258 N.W. 899, 902 (1935) as follows: "It is therefore plain 
 
         that the legislature intended the term 'disability' to mean 
 
         'industrial disability' or loss of earning capacity and not a 
 
         mere 'functional disability' to be computed in the terms of 
 
         percentages of the total physical and mental ability of a normal 
 
         man."
 
         
 
              Functional impairment is an element to be considered in 
 
         determining industrial disability which is the reduction of 
 
         earning capacity, but consideration must also be given to the 
 
         injured employee's age, education, qualifications, experience and 
 
         inability to engage in employment for which he is fitted. Olson 
 
         v. Goodyear Service Stores, 255 Iowa 1112, 1121, 125 N.W.2d 251, 
 
         257 (1963).
 
         
 
              Claimant was 57 years old at the time of the injury.  He has 
 
         a ninth grade education but later acquired a GED in 1979.  He is 
 
         unable to return to his old job or to the cement industry in 
 
         general.  He has few, if any, significant transferable skills, 
 
         possibly a little book work experience and a little supervisory 
 
         experience peculiar to the cement plant industry.  His experience 
 
         is basically strenuous or manual labor work and he can no longer 
 
         do that type of work.  It is not too likely that he could just go 
 
         job hunting at age 57, severely crippled, and step into immediate 
 
         employment other than possibly some very menial task at minimum 
 
         wage or less.  It is true that he is adaptable and has proven his 
 
         potential to learn and adjust even in his later years.  He 
 
         completed the course of training and passed all the examinations 
 
         to obtain a GED at age 54 in 1979.  At some time in his mid 50's 
 
         he bid and learned how to do four new, different and diverse jobs 
 
         as a shift breaker.  Then at approximately age 56 he bid on and 
 
         was learning the job of assistant packhouse foreman and all 
 

 
         
 
         
 
         
 
         RILEY V. MARTIN MARIETTA CEMENT
 
         Page  14
 
         
 
         
 
         indications are that he was doing very well at it. Therefore, 
 
         claimant has demonstrated that he can learn and adapt to new and 
 
         different employment opportunities.  However, when he weighed the 
 
         effort against how much money he could make and the short time 
 
         left to use new employment skills, he decided instead to retire 
 
         on November 1, 1983 on disability approximately one year after 
 
         his injury.  To learn new skills with a crippled leg and daily 
 
         back pain no doubt influenced his decision to retire.  Also, his 
 
         other health conditions may have influenced his decision to 
 
         retire at age 58 on disability.  He suffered two drop attacks at 
 
         work -- one in 1979 and one in 1980.  He suffered from essential 
 
         hypertension and had evidence of arteriosclerotic cardiovascular 
 
         disease.  He had chronic obstructive pulmonary disease.  He had a 
 
         history of carcinoma of the colon with a resection in 1978.  He 
 
         suffered from diffuse spinal osteoarthritis of the cervical, 
 
         thoracic and lumbosacral spine with chronic neck and low back 
 
         pain (Ex. 24-5).
 
         
 
              Claimant's wife is retired.  Claimant could retire on 
 
         disability.  He was also entitled to and had begun to receive 
 
         substantial workers' compensation benefits.  In March of 1987, he 
 
         became eligible for early social security benefits.  The decision 
 
         to retire on disability may have been the wisest decision when 
 
         all of the foregoing factors are considered.  However, then it is 
 
         not possible to say that claimant is totally and permanently 
 
         disabled when it was possible to do some gainful work, but he 
 
         instead chose to use his retirement assets rather than his 
 
         employability for his future income needs.  Swan v. Industrial 
 
         Engineering Company, IV Iowa Industrial Commissioner Reports 88, 
 
         (1984); McDonough v. Dubuque Packing Company, I-1 Iowa Industrial 
 
         Commissioner Decisions 152 (1984)
 
         
 
              Nevertheless, claimant has sustained a terrible injury which 
 
         is severely debilitating.  The photographs (Ex. 32) and a 
 
         personal view of the leg and arm verify this fact.  Iowa 
 
         Administrative Procedure Act 17Al4(5).  Claimant is severely 
 
         disabled from most kinds of competitive employment.  He is 
 
         crippled for life.  Claimant walks with a cane.  He has to wear a 
 
         brace on his foot, and leg for the rest of his life.  Two of his 
 
         members are effected as well as his back.  All of the doctors' 
 
         permanent impairment ratings are quite high.  Claimant is 
 
         entitled to a substantial award.  It is determined that claimant 
 
         has sustained an industrial disability of 65 percent of the body 
 
         as a whole.
 
         
 
              Defendants claim a credit under Iowa Code section 85.38(2) 
 
         for the retirement disability payments that they have made.  
 
         Defendants assert that these are non-occupational employee group 
 
         benefits paid prior to the hearing.  However, there is absolutely 
 
         no evidence to support the defendants' claim to a credit.  Scott 
 
         testified that she handled the retirement of the claimant and she 
 
         asserted no entitlement to a credit on the part of employer.  
 
         Even if she had asserted a claim for a credit, the best evidence 
 
         of entitlement to a credit is the plan document itself.  Nothing 
 
         in exhibit A, the pension agreement, mentions a credit for 
 
         workers' compensation payments.  Furthermore, Iowa Code section 
 
         85.38(2) expressly states it does not apply to benefits which 
 
         would have been payable even though a compensable injury 
 
         occurred.  A reading of the pension agreement, since it contains 
 

 
         
 
         
 
         
 
         RILEY V. MARTIN MARIETTA CEMENT
 
         Page  15
 
         
 
         
 
         no offset or credit for workers' compensation benefits, appears 
 
         to indicate that claimant is entitled to the retirement benefits 
 
         of the plan irrespective of whether claimant receives workers' 
 
         compensation or not.  The plan does not indicate that benefits 
 
         should not have been paid if workers' compensation entitlement 
 
         also existed. Hebensperger v. Motorola Communications and 
 
         Electronics, Inc., II Iowa Industrial Commissioner Reports 187 
 
         (1981).  Therefore, defendants have not sustained the burden of 
 
         proof by a preponderance of the evidence that they are entitled 
 
         to a credit under Iowa Code section 85.38(2) for the disability 
 
         retirement benefits paid to claimant.
 
         
 
              Exhibit 38 is a statement of costs submitted by claimant.  
 
         Claimant is entitled to an examination under Iowa Code section 
 
         85.39 because Dr. Irey had previously rated claimant for 
 
         defendants.  Either Dr. Swank or Dr. Koehler could be considered 
 
         as an independent examination.  Since Dr. Koehler is a medical 
 
         doctor and appeared to give the most extensive examination, so 
 
         much of his.fee of $722 that is for his examination and report of 
 
         that examination is allowed now as the cost of an Iowa Code 
 
         section 85.39 examination.  Any other reports included in this 
 
         $722 amount are disallowed.  Likewise, the $150 witness fee for 
 
         Dr. Koehler for deposition is allowed as a witness fee pursuant 
 
         to Division of Industrial Services Rule 343-4.33(4). So much of 
 
         Roger Marquardt's fee of $689.30 that constitutes his testimony 
 
         in his deposition up to $150 is allowed as an expert witness fee 
 
         pursuant to Division of Industrial Services Rule 343-4.33(4). The 
 
         Mayo Clinic charge of $80 for two medical reports from Dr. Wood 
 
         at $40 each as explained at the hearing is allowed pursuant to 
 
         Division of Industrial Services Rule 343-4.33(6). (PT, p. 56).  
 
         Although Dr. Swank, Dr. Koehler and Roger Marquardt may have also 
 
         given reports, the costs of these individual reports cannot be 
 
         isolated out from their overall charge.  Therefore, it is not 
 
         possible to determine what the cost of a report was or to make an 
 
         allowance for it.  All of the deposition and court reporter fees 
 
         itemized out in the total amount of $577.23 are allowed pursuant 
 
         to Division of Industrial Services Rule 343-4.33(2) for the 
 
         reason that all of these depositions appear to have been 
 
         introduced into evidence at the hearing.  Woody v. Machin, 380 
 
         N.W.2d 727 (Iowa 1986).
 
         
 
                               FINDINGS OF FACT
 
         
 
              WHEREFORE, based upon the evidence presented the following 
 
         findings of fact are made:
 
         
 
              That the injury to claimant's leg changed his gait and this 
 
         in turn aggravated the arthritis in his back.
 
         
 
              That the injury to claimant's leg, left arm and back are all 
 
         permanent injuries.
 
         
 
              That Dr. Irey awarded claimant a permanent functional 
 
         impairment rating of eight percent on his left arm and 50 percent 
 
         on his left leg.
 
         
 
              That Dr. Swank found claimant sustained a 50 percent 
 
         permanent functional impairment to the body as a whole.
 
         
 

 
         
 
         
 
         
 
         RILEY V. MARTIN MARIETTA CEMENT
 
         Page  16
 
         
 
         
 
              That Dr. Koehler determined that claimant sustained a 40 
 
         percent permanent impairment to the body as a whole.
 
         
 
         
 
              That claimant was age 57 at the time of the injury; had nine 
 
         years of formal education and a GED; had few, if any, 
 
         transferable skills; his past employments have all been manual 
 
         labor work and he can no longer perform manual labor; and that 
 
         claimant cannot return to his old job or to the cement industry.
 
         
 
              That claimant has potential for some employment at minimum 
 
         wage or slightly higher and could be educated and trained for a 
 
         different career.
 
         
 
              That claimant chose instead to retire on disability one year 
 
         after his injury.
 
         
 
              That claimant has sustained an extremely disabling injury; 
 
         he is crippled for life; he walks with a cane and must wear a 
 
         foot and leg brace for the rest of his life.
 
         
 
              That he has sustained an industrial disability of 65 percent 
 
         of the body as a whole.
 
         
 
              That defendants introduced no evidence to demonstrate 
 
         entitlement to a credit for benefits paid under a 
 
         non-occupational group plan.
 
         
 
                             CONCLUSIONS OF LAW
 
         
 
              THEREFORE, based upon the evidence presented at the hearing 
 
         and the foregoing principles of law, the following conclusions of 
 
         law are made:
 
              That claimant sustained an injury to his back that arose out 
 
         of and in the course of his employment with employer.
 
         
 
              That the injury to claimant's leg, arm and back were the 
 
         cause of severe permanent disability.
 
         
 
              That claimant is entitled to a 65 percent industrial 
 
         disability as permanent partial disability to the body as a 
 
         whole.
 
         
 
              That claimant did not make out a prima facie case that he is 
 
         an odd-lot employee.
 
         
 
              That defendants did not sustain the burden of proof by a 
 
         preponderance of the evidence that they are entitled to a credit 
 
         under Iowa Code section 85.38(2).
 
         
 
              That claimant is entitled to the costs listed in exhibit 38 
 
         as previously determined in the body of this decision.
 
         
 
         
 
         
 
         
 
                                    ORDER
 
         
 
              WHEREFORE, IT IS ORDERED:
 

 
         
 
         
 
         
 
         RILEY V. MARTIN MARIETTA CEMENT
 
         Page  17
 
         
 
         
 
         
 
              That defendants pay to claimant three hundred twenty-five 
 
         (325) weeks of permanent partial disability benefits at the rate 
 
         of $368.16 per week in the total amount of one hundred nineteen 
 
         thousand six hundred fifty-two and no/100 dollars ($119,652.00) 
 
         commencing on November 1, 1984, the stipulated commencement 
 
         date.
 
         
 
              That defendants pay all accrued benefits in a lump sum.
 
         
 
              That interest will accrue under Iowa Code section 85.30.
 
         
 
              That defendants are to pay the costs of this action as 
 
         provided by Division of Industrial Services Rule 343-4.33 and 
 
         those itemized expenses in Exhibit 38 as specified in the body of 
 
         this decision.
 
         
 
              That defendants file claim activity reports as requested by 
 
         this agency pursuant to Division of Industrial Services Rule 
 
         343-3.1.
 
         
 
                                        
 
                Signed and filed this 30th day of September, 1987.
 
         
 
         
 
         
 
         
 
                                       WALTER R. McMANUS, JR.
 
                                       DEPUTY INDUSTRIAL COMMISSIONER
 
 
 

 
 
 
         
 
         
 
         
 
         RILEY V. MARTIN MARIETTA CEMENT
 
         Page  18
 
         
 
         
 
                                       
 
         
 
         
 
         
 
         Copies To:
 
         
 
         Mr. Ronald A. May
 
         Attorney at Law
 
         3538 Jersey Ridge Rd.
 
         Davenport, Iowa 52807
 
         
 
         Mr . Joseph M. Bauer
 
         Attorney at Law
 
         309 Coutt Ave., Suite 500
 
         Des Moines, Iowa 50309
 
         
 
         Mr. Michael W. Liebbe
 
         Attorney at Law
 
         116 East Sixth St.
 
         P. 0. Box 339
 
         Davenport, Iowa 52805-0339
 
         
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                            1106; 1401; 1402; 1402.20 
 
                                            1402.30; 1402.40; 1701 1703; 
 
                                            1803; 1803.1; 1804 1806; 2206; 
 
                                            2207; 2502 2907; 3102; 4100
 
                                            Filed September 30, 1987 
 
                                            WALTER R. McMANUS, JR.
 
         
 
                    BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         _________________________________________________________________
 
         
 
         
 
         JOHN A. RILEY,
 
         
 
              Claimant,
 
                                                   FILE NO. 718611
 
         VS.
 
                                                 A R B I T R A T I O N
 
         MARTIN MARIETTA  CEMENT,
 
                                                   D E C I S I 0 N 
 
         Employer,
 
         
 
         and
 
         
 
         HOME INSURANCE CO.,
 
         
 
              Insurance  Carrier,
 
              Defendants.
 
         _________________________________________________________________
 
         
 
         
 
         1106; 1401; 1402; 1402.20; 1402.30; 1402.30; 1402.40; 
 
         1803;1803.1;
 
         1804; 1806; 2206; 2207
 
         
 
              Claimant's leg was caught in a 16 inch moving auger.  He 
 
         suffered a very severe avulsion type of injury that destroyed the 
 
         posterior one-half of his lower left calf, broke his ankle and 
 
         shortened his foot at the heel.  Impairment to the left lower 
 
         extremity was 50 percent.  A skin, muscle and nerve graft from 
 
         his left arm resulted in an 8 percent impairment of his left 
 
         upper extremity.  He was forced to wear a leg brace and to walk 
 
         with a cane.  The foot injury changed his gait which aggravated 
 
         the preexisting arthritis in his back causing daily pain which 
 
         was permanent.  Held: Claimant sustained an injury to his back 
 
         which arose out of and in the course of his employment which 
 
         caused permanent partial disability and was entitled to 65 
 
         percent industrial disability to the body as a whole.
 
         
 
         3102; 4100
 
         
 
              Claimant was not odd-lot.  He chose to retire rather than 
 
         look for other employment or try vocational rehabilitation.  Both 
 
         vocational rehabilitation specialists said claimant was 
 
         employable in some minimum wage type of employment.  Claimant, 
 
         age 57, had many other preexisting chronic health problems such 
 
                                                
 
                                                         
 
         as heart disease, hypertension, emphysema, arthritis, and 
 
         carcinoma of the colon.
 
         
 
         1701; 1703
 
         
 
              Defendants were not entitled to a credit for retirement 
 
         disability payments because there was no provision for it in the 
 
         pension plan document.
 
         
 
         2502; 2907
 
         
 
              Claimant was allowed the cost of one examiner as an 85.39 
 
         examination and all costs that could be identified as falling 
 
         within the provisions of Division of Industrial Services Rule 
 
         343-4.33.
 
 
 
         
 
 
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         KENNETH J. PAYNE,
 
         
 
              Claimant,
 
         
 
         VS.
 
         
 
         FROMMELT INDUSTRIES, INC.,                  File No. 718975
 
         
 
              Employer,                           A R B I T R A T I 0 N
 
         
 
         and                                         D E C I S I 0 N
 
         
 
         ST. PAUL FIRE AND MARINE
 
         INSURANCE COMPANY,
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
         
 
                                   INTRODUCTION
 
         
 
              This is a proceeding in arbitration brought by Kenneth J. 
 
         Payne against Frommelt Industries, Inc., his former employer, and 
 
         St. Paul Fire and Marine Insurance Company, the employer's 
 
         insurance carrier.
 
         
 
              The case was heard and fully submitted at Dubuque, Iowa on 
 
         December 15, 1987.  The record in this proceeding consists of 
 
         testimony from Kenneth J. Payne and joint exhibits numbered 1 
 
         through 28.
 
         
 
                                      ISSUES
 
         
 
              Claimant seeks compensation for a 90% permanent partial 
 
         disability of his left hand based upon an injury that occurred on 
 
         August 31, 1982.  Claimant also seeks alternate medical care from 
 
         George G. Auer, M.D., and authorization for additional amputation 
 
         surgery.  Claimant also seeks additional healing period 
 
         compensation for times subsequent to February 20, 1985.  He 
 
         acknowledged payment of all healing period compensation due prior 
 
         to February 20, 1985.  The issues for determination are whether 
 
         claimant's permanent partial disability is limited to his left 
 
         index finger or extends into the hand.  The second issue for 
 
         determination is whether claimant is entitled to additional 
 
         compensation for healing period.  The third issue is whether 
 
         claimant is entitled to have alternate medical care and 
 
         authorization for additional surgery.
 
         
 
                             SUMMARY OF EVIDENCE
 
         
 
              The following is a summary of evidence presented in this 
 
         case.  Only the evidence most pertinent to this decision is 
 
         discussed, but all of the evidence received at the hearing was 
 

 
         
 
         
 
         
 
         PAYNE V. FROMMELT INDUSTRIES, INC.
 
         Page   2
 
         
 
         
 
         considered in arriving at this decision.  Conclusions about what 
 
         the evidence showed are inevitable with any summarization.  The 
 
         conclusions in the following summary should be considered to be 
 
         preliminary findings of fact.
 
         
 
              The facts of this case are not in substantial dispute with 
 
         regard to the events which have occurred.
 
         
 
              On August 31, 1982, Kenneth J. Payne's left index finger was 
 
         smashed while he was operating an automatic grommet machine at 
 
         the employer's place of business (exhibit 1).  A split thickness 
 
         skin graft of the tip of the finger was performed to repair the 
 
         damage.  Persistent pain, necrosis and osteomyelitis of the tip 
 
         of the bone developed and an amputation of approximately 1.8 
 
         centimeters was performed (exhibit 5).
 
         
 
              Claimant continued to be symptomatic and was referred to 
 
         Bruce L. Sprague, M.D., a hand surgeon at Iowa City, Iowa.  Dr. 
 
         Sprague examined claimant and, on December 1, 1983, performed 
 
         further surgery to revise the amputation through the PIP joint of 
 
         the finger (exhibits 9 and 10).  The pathology report shows that 
 
         claimant had a traumatic neuroma (exhibit 15).
 
         
 
              Over the following months, Payne continued to have problems 
 
         with the finger and returned to Dr. Sprague on several occasions. 
 
          Claimant complained to Dr. Sprague, as he did at hearing, that 
 
         he has constant pain in his hand at all times and that he is 
 
         unable to properly grip or hold anything with his left hand.  At 
 
         hearing, claimant stated that he has two extremely sensitive 
 
         spots.  One is on the palm side of the stump and is so sensitive 
 
         that he is unable to touch anything with it.  He described 
 
         experiencing pains which are like an electrical shock going up 
 
         his arm.  Claimant stated that activities, even such as driving 
 
         an automobile or a truck, an occupation in which he has recently 
 
         engaged, are problematic for him due to the condition of the 
 
         finger and hand.
 
         
 
              Claimant testified that he desires to have the remaining 
 
         stump of the finger amputated so that it would not be in a 
 
         position where it could be bumped and aggravated.  Claimant 
 
         stated that he has visited with Dr. Auer who has expressed 
 
         willingness to perform the amputation.  Claimant stated that Dr. 
 
         Sprague had originally indicated he was intending to amputate the 
 
         finger at the place where it joins the hand, but has since 
 
         declined to do so.
 
         
 
              Claimant testified that he has only one part of the index  
 
         finger remaining.  He stated that only the finger was caught in 
 
         the machine and that it did not injure the remaining portion of 
 
         the hand.  Claimant was unable to state whether the symptoms with 
 
         which he is afflicted have their origin in the finger or 
 
         elsewhere in the hand.
 
         
 
              When claimant returned to Dr. Sprague on June 20, 1984, the 
 
         report that was issued indicates Dr. Sprague spent a long time 
 
         discussing the problem with claimant.  The report indicates Dr. 
 
         Sprague felt that, since claimant has had two amputations without 
 
         a good result from either, a third amputation would not assure 
 
         relief of symptoms and that, if it was performed and a neuroma 
 

 
         
 
         
 
         
 
         PAYNE V. FROMMELT INDUSTRIES, INC.
 
         Page   3
 
         
 
         
 
         developed in the palm of the hand, claimant would be worse off 
 
         than he is at the present time.  Dr. Sprague stated he was 
 
         reluctant to consider further revision of the amputation (exhibit 
 
         21).
 
         
 
              Dr. Sprague last saw claimant on February 20, 1985, at which 
 
         time he assigned an 85% impairment rating of the left index 
 
         finger (exhibit 22).  In a subsequent report dated November 25, 
 
         1985, Dr. Sprague indicated that claimant's condition had not 
 
         changed since February of 1985 and that he does not expect it to 
 
         change (exhibit 23).
 
         
 
              Exhibit 28 is a typewritten note of May 14, 1986 from Dr. 
 
         Auer which states:
 
         
 
              Long history of pain in 2 revised amputations.  Stump 
 
              of L. index finger is hyper sensitive & causes problem 
 
              with working-appears well healed.  Etiology of this is 
 
              questionable - told patient would be willing to 
 
              amputate at M-P joint level, no guarantee it will 
 
              relieve all his pain.
 
         
 
              In response to a request from Donald Gordon, claims 
 
         supervisor with St. Paul Insurance Companies, Dr. Auer made a 
 
         handwritten response which appears to read:
 
         
 
              Wish I could help you on this problem, but I have no 
 
              other information on this man.
 
         
 
              This man had his injury treated elsewhere & was 
 
              operated on elsewhere a few times re his finger & the 
 
              subsequent problem.  I saw him on consultation for a 
 
              few minutes on May 14-86.
 
         
 
              I suggest you contact the people that did the treatment 
 
              & get their opinion as it would be of better judgement 
 
              than mine, since I saw him only briefly.
 
         
 
                        APPLICABLE LAW AND ANALYSIS
 
         
 
              The workers' compensation statutes are to be interpreted 
 
         broadly in favor of the injured worker, but its beneficient 
 
         purpose cannot be extended to the point that it contravenes the 
 
         clear provisions of the statute.  Halstead v. Johnson's Texaco, 
 
         264 N.W.2d 757, 759 (Iowa 1978).
 
         
 
              The right of a worker to receive compensation for injuries 
 
         sustained which arose out of and in the course of employment is 
 
         statutory.  The statute conferring this right can also fix the 
 
         amount of compensation to be paid for different specific 
 
         injuries, and the employee is not entitled to compensation except 
 
         as provided by the statute.  Soukup v. Shores Co., 222 Iowa 272, 
 
         268 N.W. 598 (1936).
 
         
 
              Where an injury is limited to a scheduled member, the loss 
 
         is measured functionally, not industrially.  Graves v. Eagle 
 
         Iron Works, 331 N.W.2d 116 (Iowa 1983).  Where an injury is 
 
         limited to a finger, it cannot be compensated for impairment to 
 
         the hand.  Morrison v. Wilson Foods, I Iowa Industrial 
 

 
         
 
         
 
         
 
         PAYNE V. FROMMELT INDUSTRIES, INC.
 
         Page   4
 
         
 
         
 
         Commissioner Report, 224 (1980); Herold v. Constructors, Inc., 
 
         271 N.W.2d 542 (Nebraska 1978).
 
         
 
              Claimant complained of loss of use of his hand, yet none of 
 
         the medical information in the case suggests that there is any 
 
         impairment, abnormality or physical derangement in claimant's 
 
         left hand, other than, of course, in the index finger.  The 
 
         highest rating given for the index finger is the 85% rating made 
 
         by Dr. Sprague on February 20, 1985 as shown in exhibit 22.  That 
 
         rating is accepted as correct and claimant is entitled to receive 
 
         compensation pursuant to the provisions of Iowa Code section 
 
         85.34(2)(b).  This computes to 29.75 weeks of compensation.
 
         
 
              Claimant seeks care from Dr. Auer and authorization for 
 
         further amputation surgery.  The handwritten report from Dr. 
 
         Auer, which is the most recent and therefore considered to be his 
 
         best assessment, clearly does not recommend further amputation 
 
         surgery.  When viewed in conjunction with the May 14, 1986 
 
         typewritten note, it appears that Dr. Auer is agreeable to 
 
         performing the amputation if claimant desires it, but when viewed 
 
         as a whole, it does not appear that Dr. Auer is recommending it 
 
         be performed.  Dr. Sprague's report of June 20, 1984 (exhibit 21) 
 
         sets forth his reluctance to perform additional amputation 
 
         surgery due to his concern that a neuroma may develop in the 
 
         hand.  In view of the results of the prior surgeries, his concern 
 
         is warranted.  The assessment made by Dr. Sprague is accepted as 
 
         being correct and the employer will not be required to provide 
 
         medical services or healing period for any further amputation.
 
         
 
              Section 85.27 of The Code gives the employer the right to 
 
         choose the medical care.  The record of this case presents no 
 
         basis for finding that the care which has been given was 
 
         inappropriate or that care from Dr. Auer would in any way be 
 
         preferable to the care arranged by defendants in the past or 
 
         which might be arranged by the defendants in the future, if 
 
         additional care becomes warranted.  Claimant's request for 
 
         alternate care is therefore denied.
 
         
 
              The last reference in the record to claimant being in a 
 
         recuperative status is found in the report dated January 18, 1984 
 
         when claimant was released to return to work effective January 
 
         23, 1984 (exhibit 19).  There is no basis in the record of this 
 
         case for awarding further healing period compensation.
 
         
 
              Inasmuch as defendants have, by stipulation, paid all 
 
         healing period compensation due up to February 20, 1985 and have 
 
         paid 35 weeks of compensation for permanent partial disability, 
 
         there has, in fact, been an overpayment of 5.25 weeks of 
 
         compensation for permanent partial disability and no further 
 
         weekly compensation is due or payable to claimant.  The workers' 
 
         compensation law does not provide for repayment of overpayments, 
 
         however.  Comingore v. Shenandoah Artificial Ice, Power, Heat and 
 
         Light Co., 208 Iowa 430, 226 N.W. 124 (Iowa 1929).
 
         
 
                                 FINDINGS OF FACT
 
         
 
              1.  Kenneth J. Payne sustained an 85% loss of use of his 
 
         left index finger as a result of the injuries he sustained on 
 
         August 31, 1982.
 

 
         
 
         
 
         
 
         PAYNE V. FROMMELT INDUSTRIES, INC.
 
         Page   5
 
         
 
         
 
         
 
              2.  The disability is limited to the left index finger and 
 
         does not extend into his hand.
 
         
 
              3.  The medical care that defendants have provided has been 
 
         reasonable care.
 
         
 
              4.  The record shows no basis for changing care to Dr. 
 
         Auer.
 
         
 
              5.  Further amputation of the remaining portion of the left 
 
         index finger is not shown by the evidence to be advisable in view 
 
         of the risk of developing a neuroma in the hand.
 
         
 
              6.  The record fails to show any time, subsequent to 
 
         February 20, 1985, when the claimant was medically incapable of 
 
         engaging in gainful employment due to the condition of his 
 
         finger.
 
         
 
         
 
                                CONCLUSIONS OF LAW
 
         
 
              1.  This agency has jurisdiction of the subject matter of 
 
         this proceeding and its parties.
 
         
 
         
 
              2.  Claimant is entitled to receive 29.75 weeks of 
 
         compensation for permanent partial disability under the 
 
         provisions of Iowa Code section 85.34(2)(b), an amount which is 
 
         less than the amount that has been previously paid voluntarily by 
 
         the defendants.
 
              3.  Claimant is not entitled to recover any additional 
 
         compensation for healing period under the provisions of Iowa Code 
 
         section 85.34(l).
 
         
 
              4.  Claimant has failed to show a basis for changing medical 
 
         care from that which had been arranged and provided by the 
 
         defendants.
 
         
 
              5.  Claimant has failed to show that it is likely that 
 
         further amputation would improve his condition.
 
         
 
         
 
                                      ORDER
 
         
 
              IT IS THEREFORE ORDERED that claimant take nothing further 
 
         from this proceeding as his entire entitlement has already been 
 
         paid in full.
 
         
 
              IT IS FURTHER ORDERED that the employer and insurance 
 
         carrier retain the right to select and control the providers of 
 
         medical care in accordance with Iowa Code section 85.27.
 
         
 
              IT IS FURTHER ORDERED that the costs of this proceeding are 
 
         assessed against the claimant pursuant to Division of Industrial 
 
         Services Rule 343-4.33.
 
         
 
         
 
              Signed and filed this 16th day of May, 1988.
 

 
         
 
         
 
         
 
         PAYNE V. FROMMELT INDUSTRIES, INC.
 
         Page   6
 
         
 
         
 
         
 
         
 
         
 
         
 
         
 
                                        MICHAEL G. TRIER
 
                                        DEPUTY INDUSTRIAL COMMISSIONER
 
         
 
         
 
         Copies To:
 
         
 
         Mr. Michael J. Schuster
 
         Attorney at Law
 
         318 South River Park Drive
 
         P.O. Box 488
 
         Guttenberg, Iowa 52052
 
         
 
         
 
         Mr. Greg Egbers
 
         Attorney at Law
 
         600 Union Arcade Building
 
         111 East Third Street
 
         Davenport, Iowa 52801-1550
 
         
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                                      1402.40, 1803, 2700
 
                                                      Filed May 16, 1988
 
                                                      MICHAEL G. TRIER
 
         
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         KENNETH J. PAYNE,
 
         
 
              Claimant,
 
         
 
         VS.
 
         
 
         FROMMELT INDUSTRIES, INC.,                File No. 718975
 
         
 
              Employer,                          A R B I T R A T I 0 N
 
         
 
         and                                        D E C I S I 0 N
 
         
 
         ST. PAUL FIRE AND MARINE
 
         INSURANCE COMPANY,
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
         1402.40, 1803, 2700
 
         
 
              In a case where the facts of injury and disability were 
 
         admitted and the trauma and disfigurement was limited to the left 
 
         index finger, the disability was compensated as a disability of 
 
         the left index finger, even though the claimant complained of 
 
         pain extending into the hand and arm.
 
         
 
              The claimant sought further surgery and a change of care to 
 
         a physician who would perform further surgery, but none of the 
 
         evidence indicates that further surgery is, in fact, recommended. 
 
          The evidence showed that surgery presented a significant risk of 
 
         worsening the claimant's condition.  Claimant's request for a 
 
         change of authorized physicians and/or for authorization for 
 
         additional surgery was denied.
 
 
 
         
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         _________________________________________________________________
 
         
 
         
 
         RALPH TRUMBO, 
 
         
 
             Claimant,
 
                                                 File No. 718988 
 
         VS.
 
                                                    A P P E A L
 
         OSCAR MAYER & COMPANY,
 
                                                 D E C I S I 0 N
 
             Employer,
 
             Self-Insured,
 
             Defendant.
 
         
 
         __________________________________________________________________
 
         
 
                           STATEMENT OF THE CASE
 
         
 
              Defendant appeals from a partial rehearing and rehearing 
 
         decision awarding claimant payment of hospital expenses.
 
         
 
              The record on appeal consists of the transcript of the 
 
         rehearing proceeding and claimant's exhibit 3. Defendant's 
 
         exhibits 1 and 2 were not received into evidence by the deputy 
 
         because claimant was not provided with an opportunity to 
 
         cross-examine the authors of these exhibits as provided by 
 
         Division of Industrial Services Rule 343-4.18. The deputy's 
 
         ruling is correct and adopted herein.  Both parties filed briefs 
 
         on appeal.
 
         
 
                                   ISSUES
 
         
 
              Defendant states the following issues on appeal:
 
         
 
                   1.  Should the rehearing have been granted under 
 
              the circumstances.
 
         
 
                   2.  Is Oscar Mayer & Company obligated to pay the 
 
              Veterans Administration bill under the provisions of 
 
              85.27 of the Code when the medical treatment at the 
 
              Veterans Administration Hospital was specifically not 
 
              authorized by Oscar Mayer & Company.
 
         
 
                   3.  Is Oscar Mayer & Company obligated under the 
 
              law to pay a medical bill when the claimant has not 
 
              paid the bill and is not legally obligated to do so.
 
         
 
                   4.  Did the claimant sustain his burden of proving 
 
              that the Veterans Administration bill was fair and 
 
              reasonable.
 
         
 
         
 
                         REVIEW OF THE EVIDENCE
 
         
 
              On the grounds of misunderstanding, claimant filed his 
 
         petition for rehearing requesting enlargement of the arbitration 
 
         decision filed September 27, 1985 to include the issue of whether 
 
         claimant was entitled to payment of medical expenses for 
 

 
         treatment he received at the Veterans Administration Hospital in 
 
         Des Moines, Iowa.  The hearing assignment order filed July 8, 
 
         1985 indicated that 85.27 was an issue to be heard.  However, at 
 
         the time of hearing the parties indicated that all requested 
 
         medical benefits. have been or will be paid by defendants.  See 
 
         Prehearing Report and Order Approving Same signed July 19, 1985. 
 
         The arbitration decision filed subsequently did not address the 
 
         issue of claimant's entitlement to payment of medical expenses.
 
         
 
              Exhibit 1 is a statement of charges for medical care by the 
 
         Veterans Administration covering the period from September 7, 
 
         1982 to October 31, 1983.  This statement indicates that claimant 
 
         was admitted to the VA hospital in Des Moines on September 6, 
 
         1983 and discharged on September 21, 1983.  The charges for this 
 
         hospitalization are as follows:
 
         
 
         Room, board and nursing   15 days at $203.00 per diem  =  
 
         $3,045.00
 
         Physician                 15 days at $ 80.00 per diem  =  
 
         $1,200.00
 
         Ancillary                 15 days at $ 32.00 per diem  =  $  
 
         480.00
 
         
 
              Claimant also incurred some out patient charges before and 
 
         after his hospital stay totalling $439.00. The total charge for 
 
         treatment at the VA hospital was $5,164.00.
 
         
 
              Lois Campbell testified that she has supervisory control of 
 
         the billing at the VA hospital in Des Moines.  She also 
 
         identified the signature on Exhibit 3 as her own.
 
         
 
              Defendant, at the rehearing proceeding, stipulated that the 
 
         rates charged by the VA were fair and reasonable, but disputed 
 
         that the length of hospitalization was necessary.
 
         
 
              Phil Schumacher, personnel manager at defendant's plant in 
 
         Perry, Iowa where claimant was employed at the time of injury, 
 
         states that he has handled approximately 30 workers' compensation 
 
         cases involving carpal tunnel syndrome.  Schumacher opines that 
 
         carpal tunnel release is usually performed on an outpatient basis 
 
         and under local anesthetic.  He states that claimant's carpal 
 
         tunnel surgery which was performed by Peter J. Wirtz, M.D., was 
 
         paid by defendant.  He also states that that surgery was done on 
 
         an outpatient basis.  Finally, Schumacher testified that he did 
 
         not indicate to claimant that claimant's injury was not work 
 
         related.  He states that he indicated to claimant that his injury 
 
         would be covered under workers' compensation.
 
                                        
 
         
 
         
 
                                  APPLICABLE LAW
 
         
 
              Division of Industrial Services Rule 343-4.24 states:
 
         
 
                   Any party may file an application for rehearing of 
 
              a decision in any contested case by a deputy 
 
              commissioner within twenty days after the issuance of 
 
              the decision.  A copy of such application shall be 
 
              timely mailed by the applicant to all parties of record 
 
              not joining therein.  Such an application for rehearing 
 
              shall be deemed denied unless the deputy commissioner 
 
              rendering the decision grants the application within 
 
              twenty days after its filing.
 
         
 

 
         
 
         
 
         
 
         TRUMBO V. OSCAR MAYER & COMPANY
 
         Page   3
 
         
 
         
 
              In Barnhart v. MAQ Incorporated, I Iowa Industrial 
 
         Commissioner Report . 16, 17 (Appeal Decision 1981) the following 
 
         appears:
 
                   As the second full issue on appeal, defendants 
 
              claim they should not have to pay Dr. Wilson's bill.  
 
              The evidence shows that defendants did not know 
 
              claimant went to see Dr. Wilson and that claimant was 
 
              sent to that doctor by his then-lawyer.  Often, such an 
 
              allegation would be valid; in the usual compensable 
 
              case, defendants have the right to choose the care, as 
 
              it is clearly stated by the code section.  However, 
 
              defendants in their answer denied that claimant's 
 
              injuries arose out or and [in] [sic] the course of the 
 
              employment; further, the issue of arising out of and in 
 
              the course of the employment was included in the 
 
              pre-hearing order as an issue to be tried.  It does not 
 
              seem logical that defendants can deny liability on the 
 
              one hand and guide the course of treatment on the 
 
              other. (Emphasis added.)
 
         
 
              In an appeal decision filed on March 27, 1985, entitled 
 
         Kindhart v. Fort Des Moines Hotel, the following appears:
 
         
 
                   The final issue is whether the defendants are liable 
 
              for section 85.27 benefits.  The defendants contend that the 
 
              treatments were not authorized by the defendants as required 
 
              by section 85.27, and that there was no emergency.
 
         
 
                   "The primary purpose of the workers' compensation 
 
              statute is to benefit the worker and his or her dependents, 
 
              insofar as statutory requirements permit." McSpadden v. Big 
 
              Ben Coal Co., 288 N.W.2d 181, 188 (Iowa 1980), accord, 
 
              Caterpillar Tractor Co. v. Shook, 313 N.W.2d 503, 506 (Iowa 
 
              1981), cited in Harned v. Farmland Foods, Inc., 331 N.W.2d 
 
              98 (Iowa 1983).
 
         
 
                   Exhibit A, a letter of February 16, 1983 from defense 
 
              counsel to claimant's counsel, states:
 
                   I do not consider this to be an emergency 
 
                   situation since we have never declined to 
 
                   provide the services of Dr. Dubansky and your 
 
                   client apparently has made no attempt to 
 
                   contact Dr. Dubansky's office regarding this 
 
                   newest claim of renewed pain ...It is our 
 
                   position that the expenses of Dr. Bashara and 
 
                   of Iowa Methodist Medical Center are 
 
                   unauthorized and are not in any event 
 
                   causally related to the injury at the Hotel 
 
                   Fort Des Moines.
 
         
 
                   The contradiction inherent in defense counsel's 
 
              letter was addressed in the case Barnhart v. MAQ Inc., 
 
              I Iowa Industrial Commissioner Report 16 (1981) wherein 
 
              the deputy stated: "It does not seem logical that 
 
              defendants can deny liability on the one hand and guide 
 
              the course of treatment on the other." Id. at 17.
 
         
 
                   Where the employer denies liability for a 
 
              work-related injury, the employer losses [sic] the 
 

 
         
 
         
 
         
 
         TRUMBO V. OSCAR MAYER & COMPANY
 
         Page   4
 
         
 
         
 
              right to select the care which the injured worker 
 
              receives.  Barnhart, I Iowa Industrial Commissioner 
 
              Report 16.
 
         
 
                                  ANALYSIS
 
         
 
              Defendant argues that the deputy should not have granted 
 
         claimant's application for rehearing.  Claimant's application was 
 
         filed and granted within the time allowed by Division of 
 
         Industrial Services Rule 343-4.2. Other than the time periods 
 
         specified by Rule 343-4.2, deputy's discretion controls whether a 
 
         rehearing is granted.  No compelling reason is presented by 
 
         defendant for overruling the deputy's decision to grant 
 
         claimant's application for rehearing.  Although defendant, in its 
 
         brief, states that claimant was aware of the VA bill at the time 
 
         of the hearing and knew that it had not been paid, defendant was 
 
         equally aware of the VA bill at the hearing and when it signed 
 
         the medical benefit stipulation stating that "all requested 
 
         benefits have been or will be paid by defendant."  (Emphasis 
 
         added.) If rehearing would not have been granted, defendant would 
 
         have been bound by its stipulation.
 
         
 
              Secondly, defendant argues that it should not have to pay 
 
         for the treatment claimant received at the VA hospital since it 
 
         did not authorize that treatment.  The deputy correctly analyzes 
 
         this argument in the rehearing decision:
 
         
 
                   Defendant must establish that it formally and in 
 
              an enforceable manner admitted liability for disability 
 
              and medical treatment caused by an
 
         
 
         
 
         
 
              injury on September 1, 1982 prior to the time claimant 
 
              incurred medical treatment on September 7, 1982 from 
 
              the Veterans Administration.  Defendant does not have 
 
              the right to deny the compensability of a work injury 
 
              and control the medical care at the same time.  See 
 
              cases cited in the partial decision of November 6, 
 
              1985.  Although defendant did admit to the work injury 
 
              herein in its answer to claimant's petition filed in 
 
              November 1983, there is no evidence that it did so 
 
              prior to the time claimant received treatment from the 
 
              Veterans Administration in September 1983.  The payment 
 
              of weekly or medical benefits alone is not an admission 
 
              of liability.  A failure to file a denial of liability 
 
              under Iowa Code section 85.26 is likewise not an 
 
              admission of liability.  Although a memorandum of 
 
              agreement to admit liability is not possible for 
 
              injuries after July 1, 1982, there is no limitation on 
 
              the type of mutual agreements the parties can enter 
 
              into under Iowa Code section 86.13, if defendant wishes 
 
              to control the medical prior to a full settlement or a 
 
              decision establishing liability in arbitration 
 
              proceedings before this agency.
 
         
 
         (Rehearing Decision, pages 3-4)
 
         
 
              Thirdly, defendant cites Caylor v. Employers Mutual Casualty 
 

 
         
 
         
 
         
 
         TRUMBO V. OSCAR MAYER & COMPANY
 
         Page   5
 
         
 
         
 
         Co., 337 N.W.2d 890 (Iowa App.1983), for the proposition that 
 
         claimant is not entitled to reimbursement of medical expense that 
 
         he has not paid.  Caylor is not applicable.  The medical expenses 
 
         for which claimant, Caylor, sought reimbursement had been paid by 
 
         the employer's group insurance carrier.  No such payment has been 
 
         made in this case.
 
         
 
              Finally, defendant argues that claimant has not sustained 
 
         his burden of proving that the treatment he received at the VA 
 
         hospital was reasonable and necessary.  The review of evidence in 
 
         the arbitration decision filed September 27, 1985 contains the 
 
         following information about claimant's treatment at the VA 
 
         hospital:
 
         
 
                   Claimant returned to Dr. Wirtz in May 1983.  After 
 
              an EMG study failed to indicate any abnormalities, Dr. 
 
              Wirtz opined that further surgery was not warranted.  
 
              Claimant testified that Oscar Mayer refused to pay for 
 
              any further surgery based upon the opinions of Dr. 
 
              Wirtz and he was not able to pay for the surgery on his 
 
              own.  Consequently, he returned to veterans 
 
              administration hospitals and Dr. Blair.  After another 
 
              EMG indicated continued entrapment of the median nerve, 
 
              exploratory surgery was performed in the incision area 
 
              by Dr. Blair on
 
         
 
              September 20, 1983.  Dr. Blair found during this 
 
              surgery extensive scarring around the median nerve and 
 
              performed an epineurolysis or a release of the nerve 
 
              from the scar tissue.
 
         
 
                   Claimant said that the surgery by Dr. Blair 
 
              relieved the burning pain in his hand and this marked 
 
              improvement in claimant's condition was noted in the 
 
              reports of Dr. Blair and the report of Dr. Misol, who 
 
              saw claimant in January 1984.  Dr. Blair released 
 
              claimant for work on October 310 1983.
 
         
 
         (Arbitration Dec., p.4)
 
         
 
              The treatment claimant received at the VA hospital was 
 
         necessary to treat the condition resulting from claimant's work 
 
         injury.  This treatment alleviated claimant's problems and 
 
         reduced his impairment to some extent.  It should be noted that 
 
         defendant benefitted by claimant's treatment because it reduced 
 
         his impairment.
 
         
 
              It is found that the treatment claimant received at the VA 
 
         hospital from September 6, 1983 to September 21 1983 was 
 
         reasonable and necessary to treat the condition resulting from 
 
         claimant's work injury.
 
         
 
              The findings of fact, conclusions of law and order of the 
 
         deputy are adopted herein.
 
         
 
                           FINDINGS OF FACT
 
         
 
              1.  From September 7, 1982 through October 31, 1983, 
 
         claimant received reasonable and necessary medical treatment of a 
 

 
         
 
         
 
         
 
         TRUMBO V. OSCAR MAYER & COMPANY
 
         Page   6
 
         
 
         
 
         condition caused by his work injury of September 1, 1982 from a 
 
         Veterans Administration Hospital located in Des Moines, Iowa.
 
         
 
              2.  The sum of $5,164.00, the amount charged by the Veterans 
 
         Administration for medical services and supplies provided to 
 
         claimant from September 7, 1982 through October 31, 1983 is a 
 
         reasonable and fair charge for the services and supplies 
 
         furnished.
 
         
 
              3.  Defendant did not admit that claimant received an injury 
 
         on September 1, 1982 which arose out of and in the course of his 
 
         employment with defendant prior to September 7, 1982.
 
         
 
              4.  Although defendant admitted in its answer to claimant's 
 
         petition for workers' compensation benefits filed in these 
 
         proceedings that claimant suffered an injury which arose out of 
 
         and in the course of his employment at Oscar Mayer, such answer 
 
         was modified at the time of the rehearing (I conference wherein 
 
         the issue of the work-relatedness of claimant's injury was 
 
         identified as contested.
 
         
 
                               CONCLUSION OF LAW
 
         
 
              Defendant is obligated under Iowa Code section 85.27 to pay 
 
         the United States Veterans Administration for medical services 
 
         and supplies furnished to claimant from September 7, 1982 through 
 
         October 31, 1983 as a result of a medical condition caused by his 
 
         work injury of September 1, 1982 in the total amount of 
 
         $5,164.00.
 
         
 
              WHEREFORE, the decision of the deputy is affirmed.
 
         
 
                                      ORDER
 
         
 
              THEREFORE, it is ordered:
 
         
 
              That defendant shall pay to the Veterans Administration of 
 
         the United States of America the sum of five thousand one hundred 
 
         sixty-four and 00/100 dollars ($5,164.00).
 
         
 
              That defendant shall pay interest on this award as set forth 
 
         under Iowa Code section 85.30.
 
         
 
              That defendant shall pay the costs of these proceedings as 
 
         set forth in Division of Industrial Services Rule 343-4.33.
 
         
 
         
 
              Signed and filed this 18th day of November, 1987.
 
         
 
         
 
         
 
         
 
                                                 DAVID E. LINQUIST
 
                                                 INDUSTRIAL COMMISSIONER
 
         
 
         Copies To:
 
         
 
         Mr. Larry D. Krpan
 
         Attorney at Law
 
         3100 Ingersoll Avenue
 

 
         
 
         
 
         
 
         TRUMBO V. OSCAR MAYER & COMPANY
 
         Page   7
 
         
 
         
 
         Des Moines, Iowa 50312
 
         
 
         Mr. G. Robert Sackett
 
         Attorney at Law
 
         1212 Second Street
 
         Box 310
 
         Perry, Iowa 50220
 
         
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                            1403.10-1403.20-2501-2700
 
                                            Filed November 18, 1987
 
                                            DAVID E. LINQUIST
 
         
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         _________________________________________________________________
 
         
 
         
 
         RALPH TRUMBO,
 
         
 
              Claimant,
 
                                                 File No. 718988
 
         VS.
 
                                                    A P P E A L
 
         OSCAR MAYER & COMPANY,
 
                                                 D E C I S I 0 N
 
              Employer,
 
              Self-Insured,
 
              Defendant.
 
         _________________________________________________________________
 
         
 
         
 
         
 
         1403.10   1403.20 - 2501 - 2700
 
         
 
              Defendant appealed a rehearing decision awarding claimant 
 
         payment of hospital expenses.  Defendant was bound to pay medical 
 
         benefits pursuant to their stipulation in the prehearing report.  
 
         Defendant's authorization arguments fail because they were 
 
         denying liability at the time claimant received the medical 
 
         treatment.  See Barnhart v. MAQ Incorporated, I Iowa Industrial 
 
         Commissioner Report 16 (1981).  See also Kindhart v. Fort Des 
 
         Moines Hotel, appeal decision (1985).
 
 
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         _________________________________________________________________
 
         
 
         
 
         RALPH TRUMBO,
 
                                                 File No. 718988
 
              Claimant,
 
                                                    0 R D E R
 
         VS.
 
                                                     N U N C
 
         OSCAR MAYER & COMPANY,
 
                                                      P R 0
 
            Employer,
 
            Self-Insured,
 
                                                     T U N C
 
            Defendant.
 
         _________________________________________________________________
 
         
 
          
 
              On December 17, 1987 defendant filed an application for a 
 
         Nunc Pro Tunc Order.
 
         
 
              The appeal decision of November 18, 1987 indicated that 
 
         defendant was to pay interest on the award as set forth under 
 
         Iowa Code section 85.30. In Klein v. Furnas Elec. Co., 384 N.W. 
 
         2d 370 (Iowa 1986) the court held that payments of interest do 
 
         not apply to medical benefits.
 
         
 
              THEREFORE, even though the decision made a reference to 
 
         interest none was awarded because the award was only for medical 
 
         benefits.
 
         
 
         
 
              Signed and filed this 23rd day of December, 1987.
 
         
 
         
 
         
 
                                           DAVID E. LINQUIST
 
                                           INDUSTRIAL COMMISSIONER
 
         
 
         
 
         Copies To:
 
         
 
         Mr. Larry D. Krpan
 
         Attorney at Law
 
         3100 Ingersoll Avenue
 
         Des Moines, Iowa 50312
 
         
 
         Mr. G. Robert Sackett
 
         Attorney at Law
 
         1212 Second Street
 
         Box 310
 
         Perry, Iowa 50220