BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         CRAIG S. BARKER,
 
         
 
              Claimant,
 
         
 
         VS.
 
                                                    FILE NO. 742287
 
         DWAIN JOHNSON TRUCKING,
 
                                                 A R B I T R A T I 0 N
 
              Employer,
 
                                                    D E C I S I 0 N
 
         and
 
         
 
         CIGNA,
 
         
 
              Insurance Carrier,
 
              Defendants. 
 
         
 
                                   INTRODUCTION
 
         
 
              This is a proceeding in arbitration brought by Craig S. 
 
         Barker, claimant, against Dwain Johnson Trucking, employer, and 
 
         CIGNA, insurance carrier, for benefits as a result of an alleged 
 
         injury on August 14, 1983.  A hearing was held on October 14, 
 
         1986 at Davenport, Iowa and the case was fully submitted at the 
 
         close of the hearing.  The record consists of joint exhibits A 
 
         through M, claimant's exhibits 1 and 2, and defendants' exhibit 
 
         N; the testimony of Craig S. Barker (claimant); Mary Ann Buck 
 
         (vocational rehabilitation counselor) and Marla Torgerson (senior 
 
         rehabilitation specialist).
 
         
 
                                   STIPULATIONS
 
         
 
              The parties stipulated to the following matters:
 
         
 
              That an employer/employee relationship existed between the 
 
         claimant and the employer at the time of the injury.
 
         
 
              That the claimant sustained an injury to his left leg on 
 
         August 14, 1983 which arose out of and in the course of his 
 
         employment with the employer.
 
         
 
              That the left leg injury was the cause of some temporary 
 
         disability.
 
         
 
              That the claimant is married and entitled to four 
 
         exemptions.
 
         
 
              That all requested medical benefits have been or will be 
 
         paid by the defendants.
 
         
 
              That the defendants have paid the claimant 167 1/7 weeks 
 
         of compensation at the rate of $246.79 per week prior to the 
 
         hearing commencing on August 15, 1983 and continuing through 
 

 
         
 
         
 
         
 
         BARKER V. DWAIN JOHNSON TRUCKING
 
         Page   2
 
         
 
         
 
         September 29, 1986.
 
         
 
              That the claimant is entitled to the costs in the amount 
 
         of $206.60 for reports from Jane Lamb Health Center in the 
 
         amount of $40.00 and a transcript from Reporting Services in 
 
         the amount of $166.60 in the event of an award.  This written 
 
         stipulation is included as part of the record.
 
         
 
                                  ISSUES
 
         
 
              The issues presented by the parties for determination at the 
 
         time of the hearing are as follows:
 
         
 
              Whether the claimant received an injury to his back on 
 
         August 14, 1986 which arose out of and in the course of his 
 
         employment with the employer.
 
         
 
              Whether the alleged injury to the back is the cause of any 
 
         temporary or permanent disability.
 
         
 
              Whether the injury to the left leg was the cause of any 
 
         permanent disability.
 
         
 
              Whether the claimant is entitled to either temporary or 
 
         permanent disability benefits for either the injury to the left 
 
         leg or the alleged injury to the back and, if so, the nature and 
 
         extent of benefits.
 
         
 
              Whether the claimant is an odd-lot employee.
 
         
 
              What is the proper rate of weekly compensation.
 
         
 
                             SUMMARY OF THE EVIDENCE
 
         
 
              Claimant is 32 years old and married but a dissolution is 
 
         pending.  He has two dependant children, one from the current 
 
         marriage and one from another marriage.  Claimant finished 
 
         seventh grade but obtained his GED two weeks prior to the 
 
         hearing.  Past employments include dispatcher for his father's 
 
         taxi business; scale operator and barge loader; grain truck 
 
         driver; over-the-road truck driver hauling beer, meat, produce, 
 
         gasoline and liquid fertilizer; and also pipe fitter for a short 
 
         period of time.  Claimant's non-employment talents also include 
 
         auto body repair, diesel maintenance and engine mechanics.  He 
 
         has not attended any trade schools.  He has been steadily 
 
         employed since he was 16 years of age up until the time of this 
 
         injury.
 
         
 
         
 
              Claimant began working for defendant on or about June 2, 
 
         1983 as an over-the-road truck driver.  The typical run was from 
 
         Chicago to California and back to Chicago.  Claimant was injured 
 
         in a motor vehicle accident with a pickup truck which was pulling 
 
         a boat and trailer about three miles west of Cheyenne, Wyoming on 
 
         August 14, 1983 while returning from California.  Claimant 
 
         testified that he was driving east on Interstate 80 in the right 
 
         hand lane.  A second vehicle was also proceeding east in the left 
 
         hand lane.  A third vehicle, a pickup truck, pulled out onto the 
 

 
         
 
         
 
         
 
         BARKER V. DWAIN JOHNSON TRUCKING
 
         Page   3
 
         
 
         
 
         highway from the right shoulder.  Claimant had no place to go.  
 
         The front of the claimant's vehicle hit the rear of the pickup.  
 
         The impact caused the bumper of his truck to press against the 
 
         wheel which locked the steering.  As a result his truck rolled 
 
         over a number of times and came to rest upside down.
 
         
 
              Claimant testified that after the accident he was hurt all 
 
         over.  When he first tried to stand up he fell down again.  More 
 
         specifically, he received a cut and bruise on his throat, his 
 
         back hurt, his left leg was injured, his right hand was swollen, 
 
         and he received an eight inch gash on his left shoulder.  He was 
 
         taken by ambulance to a hospital in Cheyenne, Wyoming where he 
 
         received emergency treatment.  They put a splint on his leg and 
 
         released him.  Claimant declined to see an orthopedic surgeon in 
 
         Cheyenne but opted instead to fly back home to Clinton, Iowa.  
 
         The ambulance record and the record of the emergency treatment at 
 
         Cheyenne were not introduced into evidence by either party.
 
         
 
              Back in Clinton claimant went to see his own personal 
 
         physician, Frank B. Rogers, M.D.  Claimant saw Dr. Rogers on 
 
         August 17, 1983, August 22, 1983 and August 29, 1983.  Dr. Rogers 
 
         aspirated a red, but clear liquid from claimant's left knee and 
 
         referred him to Jay P. Ginther, M.D., a board certified 
 
         orthopedic surgeon since 1979.  Claimant further testified that 
 
         he saw Dr. Rogers one more time later for his back on April 25, 
 
         1984 because Dr. Ginther would not look at his back.  Dr. Rogers 
 
         indicated that claimant's injuries were to his right hand, left 
 
         knee, left jaw, and right side of the neck.  The back is not 
 
         mentioned.  An x-ray of the left knee showed no fracture (Joint 
 
         Exhibit D).
 
         
 
              Claimant testified that he told Dr. Ginther about all of 
 
         these injuries, but Dr. Ginther said the leg had to be fixed 
 
         first.  Claimant stated that Dr. Ginther performed surgery on his 
 
         left knee at Jane Lamb Hospital in Clinton, Iowa and that Dr. 
 
         Ginther was his main treating physician in 1983, 1984, 1985 and 
 
         1986.
 
         
 
              Dr. Ginther's notes indicate that he first saw claimant on 
 
         August 31, 1983.  He performed an arthroscopy on the left knee on 
 
         September 6, 1983.  Dr. Ginther said that this surgical procedure 
 
         revealed, (1) a bucket handle tear of the medial meniscus, which 
 
         was repaired; (2) a partial tear of the anterior cruciate 
 
         ligament which did not lend itself to repair; and (3) a finding 
 
         of some scar tissue (fibrotic material) on the medial shelf which 
 
         was also repaired.  While under anesthesia the joint was stressed 
 
         and the only ligament damage that was documented at that time was 
 
         anterior cruciate ligament tear (Jt. Ex. B, page 13; Jt. Ex. I, 
 
         pages 4-6).
 
         
 
              Near Christmas in 1983, claimant's car got stuck in the snow 
 
         and he jogged on his knee due to the 80 degree below zero 
 
         windchill factor.  There was also evidence that he attempted to 
 
         push a stalled vehicle.  However, Dr. Ginther said that these 
 
         events may have caused a setback, but they did not significantly 
 
         effect the claimant's knee condition or change the ultimate 
 
         outcome (Jt. Ex. B, p. 1; Jt  Ex. I, p. 8).
 
         
 
              Dr. Ginther reported on April 11, 1984, that claimant's 
 

 
         
 
         
 
         
 
         BARKER V. DWAIN JOHNSON TRUCKING
 
         Page   4
 
         
 
         
 
         condition was unchanged.  He stated that claimant was not making 
 
         progress and it may be time to give him a rating (Jt. Ex. B, p. 
 
         11).  This office visit on April 11, 1984 is also the first time 
 
         that Dr. Ginther's notes revealed any evidence of back symptoms. 
 
          The note says that claimant mentioned pain down his right leg 
 
         starting in the low back.  Dr. Ginther said he would start some 
 
         lumbar conditioning exercises for that (Jt. Ex. B, p. 11).  
 
         Claimant had seen Dr. Ginther approximately 17 times over a seven 
 
         month period before the first back complaint was mentioned on 
 
         April 11, 1984.  Claimant also received physical therapy 
 
         treatments approximately 14 times beginning on October 20, 1983 
 
         (Jt. Ex. E, p. 49) before he first mentioned back pain in these 
 
         notes on April 10, 1984 (Jt. Ex. E, p. 55).
 
         
 
              Dr. Ginther's office notes show that the back was not 
 
         mentioned again until four office visits and four months later on 
 
         August 13, 1984.  At that time claimant reported radiation down 
 
         both legs.  The note says that claimant indicated he was having 
 
         some problem with his back from the time of the injury, but that 
 
         it was a relatively minor thing until just recently.  Claimant 
 
         requested Dr. Ginther to have him evaluated by another physician 
 
         (Jt. Ex. B, p. 10).  Dr. Ginther then sent claimant to Lynn D. 
 
         Kramer, M.D., a neurologist at Dubuque.  Dr. Ginther had no 
 
         recollection of treating the claimant's back prior to that time 
 
         (Jt. Ex. I, pp. 8 & 9 ).
 
         
 
              In a letter to the insurance company dated October 5, 1984, 
 
         Dr. Ginther stated: "He reported to me on 13 August that the back 
 
         had bothered him from the very beginning, although he had not 
 
         made a point of it in the previous year, and that now it was 
 
         becoming the major factor." (Jt. Ex. B, p. 2)
 
         
 
              Dr. Kramer saw claimant on August 23, 1984.  X-rays and EMG 
 
         studies disclosed a normal lumbar spine and gave no evidence of a 
 
         herniated nucleous pulposis or herniated disc.  Dr. Kramer's
 
         
 
         
 
         only objective physical finding was a reduced ankle jerk 
 
         bilaterally, more so on the left than on the right, that might be 
 
         suggestive of central herniation at L5-Sl.  Dr. Ginther ordered a 
 
         CT scan to rule this out.  The CT scan read normal also.  Then an 
 
         enhanced CT scan and a myelogram were ordered and they read as 
 
         normal also (Jt. Ex  B, p. 10; Jt. Ex. C; Jt  Ex. I, pp. 9 & 10; 
 
         Jt. Ex. E, p. 59; and Jt. Ex  E, pp. 26-28 & pp. 35 & 36).  Dr. 
 
         Ginther agreed that the only objective finding for the claimant's 
 
         back pain was absent left ankle reflex (Jt. Ex. I, pp. 22 & 26).
 
         
 
              Dr. Ginther than speculated and worked under a presumptive 
 
         diagnoses that the back and down the leg symptoms might be coming 
 
         from scarring in the epidural space (Jt  Ex. I, p. 23).  Claimant 
 
         was administered some epidural steroid injections by Hong Choi, 
 
         M.D., (Jt. Ex. E, pp. 6-11 & 15-18).  These injections provided 
 
         only minimal improvement and were discontinued (Jt. Ex. I, pp. 10 
 
         & 11).  A TENS unit was tried and did provide significant 
 
         improvement (Jt  Ex. B, p. 8; Jt. Ex. I, p. 11).
 
         
 
              Dr. Ginther's office notes reflect some improvement on March 
 
         7, 1985, March 20, 1985 and April 22, 1985 (Jt. Ex. B, p. 8; Jt.  
 
         Ex. I, pp. 12 & 13).  On May 22, 1985, Dr. Ginther said claimant 
 

 
         
 
         
 
         
 
         BARKER V. DWAIN JOHNSON TRUCKING
 
         Page   5
 
         
 
         
 
         had some persistent spasm in his back, but no other demonstrable 
 
         finding other than absent ankle jerk.  At that time he assessed 
 
         an impairment rating of five percent of the body as a whole on 
 
         the claimant's back (Jt. Ex  B, p. 6; Jt. Ex. I, p. 13).  On May 
 
         31, 1985, Dr. Ginther rated the left knee at 17 percent of the 
 
         left lower extremity.  He also recommended that claimant be 
 
         retrained for an occupation that did not require as much physical 
 
         activity as truck driving (Jt. Ex. B, p. 6; Jt. Ex  I, pp. 13 & 
 
         14).  Dr. Ginther did not think claimant could do the job of an 
 
         over-the-road trucker anymore (Jt. Ex. I, p. 17).
 
         
 
              Claimant saw Dr. Ginther two more times after that.  On 
 
         September 3, 1985, Dr. Ginther saw him for a three month checkup. 
 
          No improvement was reported.  On March 7, 1986, Dr. Ginther 
 
         indicated there was very little progress and little hope of 
 
         progress (Jt. Ex. B, p. 3).
 
         
 
              Dr. Ginther did refer claimant to the University of Iowa 
 
         Hospitals and Clinics for an evaluation by Dr. Albright (full 
 
         name unknown) of his left knee problems because the claimant's 
 
         knee continued to buckle causing the claimant to fall.  The knee 
 
         also continued to be very painful.  In the latter part of 1985, 
 
         the claimant fell and fractured his right ankle and was treated 
 
         by Charleton H. Barnes, M.D., an associate of Dr. Ginther (Jt. 
 
         Ex. B, p. 5).  Dr. Albright saw the claimant on February 3, 1986. 
 
          He could not determine the etiology of the left knee pain.  He 
 
         did feel that the anterolateral rotatory instability could 
 
         possibly be improved by some physical therapy exercises (Jt. Ex. 
 
         A).  However, Dr. Ginther did not think that Dr. Albright's 
 
         regimen of physical training exercises was likely to change 
 
         things much (Jt. Ex. I, p. 16).
 
         
 
              At his deposition Dr. Ginther was asked about the probable 
 
         cause of the claimant's knee and back problems and replied as 
 
         follows:
 
         
 
                 A.  The knee very clearly would be related to the 
 
              accident in August of 183.  And based upon the patient's 
 
              statement that the back condition started at that time, the 
 
              back would also be related. (Jt  Ex. I, p. 18)
 
         
 
              Defendants had claimant examined by John E. Sinning, Jr., 
 
         M.D., an orthopedic surgeon on August 28, 1986 and by Dr. 
 
         Sinning's associate, Charles T. Cassel, M.D., who is also an 
 
         orthopedic surgeon who specializes in knee ligaments (Jt. Ex. K).  
 
         Dr. Sinning made the following statement at the end of his 
 
         examination as to the back and the left knee:
 
         
 
              IMPRESSIONS:  No impairment of function of the back.  No 
 
              physical impairment, no consistent pattern of pain 
 
              suggesting impairment and no x-ray evidence of 
 
              abnormalities.
 
         
 
              Regarding the left knee, strong suggestion of posterior 
 
              cruciate injury with posterior and posterolateral rotary 
 
              instability.
 
              (Jt. Ex. K, p. 3)
 
         
 
              Dr. Cassel examined for the knee only on October 6, 1986 and 
 

 
         
 
         
 
         
 
         BARKER V. DWAIN JOHNSON TRUCKING
 
         Page   6
 
         
 
         
 
         gave the following diagnosis:
 
         
 
              DIAGNOSIS:  Left chronic posterior cruciate ligament tear 
 
              with secondary laxity of the posterior lateral corner. 2) 
 
              Patella femoral chondrosis, bilaterally, left greater than 
 
              right, left side is secondary to the chronic posterior 
 
              cruciate ligament laxity and the posterior sag of the tibia 
 
              on the femur. (Jt. Ex. K, p. 5)
 
         
 
              Dr. Cassel recommended surgery for the posterior ligament 
 
         tear provided claimant makes the necessary physical buildup 
 
         recommended prior to surgery and provided that surgery is still 
 
         indicated after a bone scan and a presurgical arthroscopy (Jt. 
 
         Ex. K, p. 5).
 
         
 
              Claimant had not decided whether or not to elect to have the 
 
         additional surgery at the time of the hearing.  Claimant 
 
         testified and Dr. Ginther's notes indicate that claimant is 
 
         suspicious of surgery and generally opposed to it.  Dr. Sinning 
 
         testified claimant was suspicious of surgery because at the 
 
         University of Iowa they discussed surgery but they would not give 
 
         him any
 
         
 
         guarantee of success (Jt. Ex. M, pp. 29, 34 & 35).  However, 
 
         claimant had taken the bone scan test prior to the hearing and 
 
         was planning on taking the physical therapy exercises to build up 
 
         his quadriceps.
 
         
 
              Dr. Sinning testified by deposition on October 9, 1986 (Jt. 
 
         Ex. M).  He stated that he has been a board certified orthopedic 
 
         surgeon for over 20 years since 1965.  He examined and evaluated 
 
         claimant on August 28, 1986 as well as all or most of the 
 
         available medical data at that time.  Dr. Sinning pointed out 
 
         that there was nothing in Dr. Rogers' notes (Jt. Ex. D) that 
 
         indicated that the claimant had any back pain (Jt. Ex. M, p. 6).  
 
         There is nothing in Dr. Ginther's notes from his initial visit on 
 
         August 31, 1983 that comment at all about the back (Jt. Ex. M, 
 
         pp. 6 & 7).  Dr. Sinning testified that claimant told him that 
 
         Dr. Ginther told claimant to first worry about his leg and then 
 
         take care of his back (Jt. Ex. K, p. 1; Jt. Ex. M, p. 8).  Dr. 
 
         Sinning related that he found significant discrepancies in 
 
         claimant's history and medical records that he examined in that 
 
         claimant did not complain about his back until April of 1984 (Jt. 
 
         Ex. M, p. 10).  The doctor examined his back somewhat extensively 
 
         including an x-ray of his back and found that his back was normal 
 
         (Jt. Ex. K, p. 3; Jt. Ex. M, pp. 11-13).  Dr. Sinning's opinion 
 
         on causal connection and impairment with respect to the 
 
         claimant's back is expressed in the following dialogue:
 
         
 
                 Q.  Okay. Now, doctor, based on the same 
 
              information, do you believe -- do you have an opinion 
 
              within a reasonable degree of medical certainty as to 
 
              whether or not Mr. Barker sustained an injury to his 
 
              back on August 14, 1983, as a result of the vehicular 
 
              accident that was described to you?
 
         
 
                 A.  Yes.
 
         
 
                 Q.  And what's that, sir?
 

 
         
 
         
 
         
 
         BARKER V. DWAIN JOHNSON TRUCKING
 
         Page   7
 
         
 
         
 
         
 
                 A.  It's my opinion that the record does not support 
 
              any thought that he injured his back in that accident.
 
         
 
                 Q.  And, doctor, could you give us your rationale 
 
              for that position?
 
         
 
                 A.  We have the record of two doctors, both of whom 
 
              described Mr. Barker's complaints in detail.  Neither 
 
              of those doctors mention any complaint about the back.  
 
              The first record that we have about any back complaint 
 
              is in April, 1984, so many months after the accident 
 
              that it's too far away to consider that the accident 
 
              had any affect on his back.
 
         
 
                 Q.  Doctor, regardless of cause, does Mr. Barker 
 
              have any impairment to his back?
 
         
 
                 A.  No.
 
         
 
              (Jt. Ex. M, pp. 13 & 14)
 
         
 
              Dr. Sinning would not place any physical restrictions on 
 
         claimant due to his back complaints (Jt. Ex. M, p. 26).  Dr. 
 
         Sinning did not find an absent ankle reflex as reported by Dr. 
 
         Kramer (Jt. Ex.  M, p. 29).
 
         
 
              Dr. Sinning speculated that since claimant had treated with 
 

 
         
 
         
 
         
 
         BARKER V. DWAIN JOHNSON TRUCKING
 
         Page   8
 
         
 
         
 
         Dr. Rogers for complaints of back pain, hip pain and pain down 
 
         the right leg on October 11, 1982 which was prior to the motor 
 
         vehicle accident, than it was just a matter of time until he had 
 
         a recurrence of this back pain.  With an absolute lack of 
 
         physical findings, no consistent pattern of pain that suggests 
 
         impairment, no x-ray evidence of abnormalities and the failure of 
 
         the problem to respond to any of the treatment for it, makes if 
 
         difficult to support the thought that his back was injured in the 
 
         accident (Jt. Ex. M, p. 15).  Furthermore, claimant was unable to 
 
         relate his back complaints with any particular events or 
 
         activities including the buckling of the knee (Cl. Ex. M, p. 40).  
 
         Dr. Sinning felt that his back had simply become the focal point 
 
         for the stress and misery he has suffered because of the knee 
 
         injury and his long and difficult recovery from the knee injury 
 
         (Jt. Ex. M, p. 15).
 
         
 
              As for the left knee, Dr. Sinning observed that the tibia 
 
         was posterior to its normal position in relation to the knee and 
 
         the femur in what he described as a sag position.  Dr. Sinning 
 
         could pull it forward to normal position, but it would slide back 
 
         when he would release it.  This is a characteristic finding for 
 
         an injury to the posterior cruciate ligament.  X-rays confirmed 
 
         the relative posterior displacement of the tibia in relation to 
 
         the femur.  Dr. Sinning's formal diagnoses was posterior cruciate 
 
         ligament injury of the left knee with secondary laxity of the 
 
         posterior lateral corner.  This injury is consistent with the 
 
         accident of August 14, 1983 and Dr. Sinning believed there was a 
 
         cause and effect relationship (Jt. Ex. M, pp. 16-19).  He felt 
 
         that the motor vehicle accident has to be considered the most 
 
         likely cause (Jt. Ex. M, p. 45).
 
         
 
              Dr. Sinning testified that Dr. Cassel agreed but prior to 
 
         any surgical reconstruction there were three requirements; (1) 
 
         claimant would have to build up his quadriceps; (2) a diagnostic 
 
         arthroscopy would be necessary to determine the condition of the 
 
         surfaces within the knee; and (3) a bone scan was required to 
 
         determined the extent of early arthritis in the knees.  Dr. 
 
         Cassel would be the knee surgeon.  There is about a 70 percent 
 
         success rate in restoring stability to the knee (Jt. Ex. M, pp. 
 
         22-25).  Dr. Sinning testified that the claimant's current left 
 
         knee 
 
         
 
         impairment rating based on the AMA Guides to the Evaluation of 
 
         Permanent Impairment is 25 percent of the left lower extremity 
 
         because of the instability due to a posterior cruciate loss. if 
 
         the knee is surgically repaired the impairment might be a little 
 
         less, because he would expect a stable knee but he would also 
 
         sacrifice some range of motion.  He estimated that a 20 to 25 
 
         percent permanent impairment rating would be a reasonable range 
 
         after the surgery (Jt. Ex. M, pp 25 & 26).
 
         
 
              On the issue of maximum medical improvement, Dr. Sinning 
 
         testified as follows:
 
         
 
              Q.  Doctor, again you've reviewed the records 
 
              concerning Mr. Barker's past medical care and treatment 
 
              and, of course, have visited with him and conducted an 
 
              examination.  Do you have an opinion within a 
 
              reasonable degree of medical certainty as to when Mr. 
 

 
         
 
         
 
         
 
         BARKER V. DWAIN JOHNSON TRUCKING
 
         Page   9
 
         
 
         
 
              Barker may have reached his maximum recuperation from 
 
              the injuries suffered August 14, 1983?
 
         
 
              A.  Yes, I do.
 
         
 
              Q.  And what's that, sir?
 
         
 
              A.  I think he reached his maximum recovery in the late 
 
              winter or early spring of 1984.
 
         
 
              Q.  And, doctor, what's your rationale for that 
 
              position?
 
         
 
              A.  It was during that time that his knee seemed to 
 
              have reached its maximum recovery in terms of his 
 
              ability to handle weights.  He suffered a temporary 
 
              setback when his car was stuck Christmas Eve 1983 and 
 
              he had to push the car out of a snowdrift; but he 
 
              seemed to have --he got over that setback.  He was 
 
              doing well on his weight lifting and from that point on 
 
              the knee never really changed.
 
         
 
              Q.  Now, doctor, would you at that time have 
 
              recommended that Mr. Barker return to driving truck?
 
         
 
              A.  Yes.
 
         
 
                  Q.  And would there have been some restrictions, 
 
              though, however?
 
         
 
              A.  Yes.
 
         
 
         
 
         
 
              Q.  And what would those have been, sir?
 
         
 
              A.  The restrictions would have been that he could 
 
              have been, but that he would not have been able to 
 
              handle loading and unloading beyond light weight 
 
              over level surfaces.
 
         
 
              (Jt. Ex. M, pp. 27-29)
 
         
 
              Dr. Sinning could not explain why Dr. Ginther,,Dr.  Kramer 
 
         and Dr. Albright failed to diagnose posterior cruciate ligament 
 
         injury unless it may not have been as fully apparent earlier in 
 
         his treatment (Jt. Ex. M, pp. 35 & 36).  Dr. Sinning felt that 
 
         the term epidural scarring was used here because Dr. Ginther 
 
         could not identify anything else.  Dr. Sinning found no evidence 
 
         of epidural scarring (Jt. Ex. M, p. 44).  He believed the steroid 
 
         injections of cortisone were used as a treatment for low back 
 
         pain in which no real cause can be found but disc degeneration or 
 
         herniated disc was suspected (Jt. Ex. M, p. 38).  He said the 
 
         knee did not cause a back injury but might cause some temporary 
 
         soreness (Jt. Ex. M, p. 40).
 
         
 
              The restrictions placed on claimant due to his left knee 
 
         are: (1) that he can stand or work but during an eight hour day 
 
         he needs to sit down or not walk periodically; (2) he can lift or 
 

 
         
 
         
 
         
 
         BARKER V. DWAIN JOHNSON TRUCKING
 
         Page  10
 
         
 
         
 
         carry up to 30 or 35 pounds frequently and 50 pounds 
 
         occasionally; and (3) he should not squat at all (Jt. Ex. J, p. 
 
         4).
 
         
 
              Marla Torgerson, senior rehabilitation specialist, ran a 
 
         computerized analysis that identified 70 job titles that claimant 
 
         could do within his restrictions but she did not know what was 
 
         available in the Clinton area (Defendants' Ex. N).  She said 
 
         claimant did well on the General Aptitude Battery Test (GABT) 
 
         that he took for them.
 
         
 
              Mary Ann Buck, a rehabilitation specialist, interviewed 
 
         claimant and took a history.  She evaluated the GABT test and 
 
         told him to get his GED which he did do.  She discussed options 
 
         for future employment.  He expressed an interest in dispatching, 
 
         broadcasting and announcing, being an automobile damage 
 
         estimator, or being an insurance property inspector.  The next 
 
         step was to look at specific jobs.  Her written report is joint 
 
         exhibit J, pages 5 through 8.
 
         
 
              Claimant testified that he took a job as a bartender for 
 
         approximately six months starting around Thanksgiving day in 
 
         1985.  He worked eight hours a day and three days a week.  He 
 
         quit this job because of knee problems.  Otherwise he has had no 
 
         post-accident employment.
 
         
 
         
 
              Claimant testified that his back hurts all of the time and 
 
         sends pain down his legs.  Sometimes he cannot stand up or bend. 
 
          He can only work in the garden for about two hours at a time.  
 
         He could not drive a truck because he could not stand the 
 
         bouncing.  He could not load or unload a truck.  He has tried to 
 
         get another tavern job and his name is in at Job Service but he 
 
         has not yet been called.
 
         
 
              Claimant testified that his agreement on compensation with 
 
         the employer was that he was to receive $800 for a trip from 
 
         Chicago to California and back to Chicago.  Typically he received 
 
         $300 for the trip out, $300 for the trip back and an additional 
 
         $200.  He submitted a list of itemized expenses and all of his 
 
         expenses were reimbursed except meals and clothing.  The extra 
 
         $200 was marked RD EXP.  It was usually broken down to $100 for 
 
         the trip out to California and $100 for the return trip to 
 
         Chicago.  The $300 for the trip out and the $300 for the trip 
 
         back was typically marked wages.  Claimant testified that he did 
 
         not know what RD EXP meant other than it had something to do with 
 
         taxes.  Both counsel and claimant referred to RD EXP as road 
 
         expense.  On the claimant's last trip when the accident occurred 
 
         the wages amount was relabeled "rent" and there were no entries 
 
         in the RD EXP columns.  Defendants did not introduce any evidence 
 
         to explain these entries.  Exhibit H, the accounting sheets, show 
 
         that claimant was paid a total of $3,685.39 marked either as 
 
         wages or as rent and a total of $1,225.00 marked as RD EXP.  
 
         These two figures added together total $4,910.39. The exhibit 
 
         also shows that claimant worked from June 2, 1983 to August 14, 
 
         1983, a total of 10 weeks and four days or 10.571 weeks.
 
         
 
              Claimant stated he was not reimbursed for his mileage 
 
         expense from Clinton, Iowa to the University of Iowa which was 95 
 

 
         
 
         
 
         
 
         BARKER V. DWAIN JOHNSON TRUCKING
 
         Page  11
 
         
 
         
 
         miles round trip to see Dr. Kramer on February 3, 1986.
 
         
 
                           APPLICABLE LAW AND ANALYSIS
 
         
 
              An employee is entitled to compensation for any and all 
 
         personal injuries which arise out of and in the course of the 
 
         employment.  Section 85.3(l).
 
         
 
              Claimant has the burden of proving by a preponderance of the 
 
         evidence that he received an injury on August 14, 1983 which 
 
         arose out of and in the course of his employment.  McDowell v. 
 
         Town of Clarksville, 241 N.W.2d 904 (Iowa 1976); Musselman v. 
 
         Central Telephone Co., 261 Iowa 352, 154 N.W.2d 128 (1967).
 
         
 
              The injury must both arise out of and be in the course of 
 
         the employment.  Crowe v. DeSoto Consol. Sch. Dist., 246  Iowa 
 
         402, 68 N.W.2d 63 (1955) and cases cited at pp. 405-406 of the 
 
         Iowa Report.  See also Sister Mary Benedict v. St. MaryOs Corp., 
 
         255 Iowa 847, 124 N.W.2d 548 (1963) and Hansen v. State of Iowa, 
 
         249 Iowa 1147, 91 N.W.2d 555 (1958).
 
         
 
              The words "out of" refer to the cause or source of the 
 
         injury.  Crowe, 246 Iowa 402, 68 N.W.2d 63 (1955).
 
         
 
              The words "in the course of" refer to the time and place and 
 
         circumstances of the injury.  McClure v. Union et al.  Counties, 
 
         188 N.W.2d 283 (Iowa 1971); Crowe, 246 Iowa 402, 68 N.W.2d 63 
 
         (1955).
 
         
 
              The claimant has the burden of proving by a preponderance of 
 
         the evidence that the injury of August 14, 1983 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. Boggs, 236 Iowa 296, 18 N.W.2d 607 (1945).  A 
 
         possibility is insufficient; 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, 261 Iowa 352, 154 
 
         N.W.2d 128 (1967).
 
         
 
              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
 

 
         
 
         
 
         
 
         BARKER V. DWAIN JOHNSON TRUCKING
 
         Page  12
 
         
 
         
 
         provided by the statute.  Soukup v. Shores Co., 222 Iowa 272, 268 
 
         N.W. 598 (1936).
 
         
 
              Permanent partial disabilities are classified as either 
 
         scheduled or unscheduled.  A specific scheduled disability is 
 
         evaluated by the functional method; the industrial method is used 
 
         to evaluate an unscheduled disability.  Martin v. Skelly Oil Co., 
 
         252 Iowa 128, 133, 106 N.W.2d 95, 98 (1960); Graves v. Eagle 
 
         Iron Works, 331 N.W.2d 116 (Iowa 1983); Simbro v DeLongOs 
 
         Sportswear, 332 N.W.2d 886, 887 (Iowa 1983).
 
         
 
              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).
 
         
 
              Claimant did not prove by a preponderance of the evidence 
 
         that he sustained an injury to his back which arose out of and in 
 
         the course of his employment due to the accident which occurred 
 
         on August 14, 1983.  The emergency treatment report from Cheyenne 
 
         was not admitted into evidence.  Therefore, it cannot be used to 
 
         support the claimant's contention.  Claimant averred that he 
 
         complained of his back to both Dr. Rogers and Dr. Ginther.  
 
         Although both doctors made detailed notes, no back injury from 
 
         the accident is reported by either doctor in close proximity to 
 
         the date of the accident.  It is possible that claimant reported 
 
         a back injury and that these two doctors both neglected to report 
 

 
         
 
         
 
         
 
         BARKER V. DWAIN JOHNSON TRUCKING
 
         Page  13
 
         
 
         
 
         it.  However, it is not very probable or likely that either 
 
         doctor would fail to record such pertinent and significant 
 
         information following a severe motor vehicle accident.  This was 
 
         Dr. Sinning's opinion also.
 
         
 
              Dr. Ginther said in a letter to the insurance company that 
 
         claimant reported to him on August 13, 1984 (one year later) that 
 
         his back bothered him from the very beginning, but claimant had 
 
         not made a point of it in the previous year (Jt. Ex. B, p. 2).
 
         
 
              Dr. Ginther testified in his deposition that he had no 
 
         recollection of treating the back prior to that time on August 
 
         13, 1984 (Jt. Ex. I, pp. 8 & 9).  However, Dr. Ginther did record 
 
         in his office notes on April 11, 1984, that the claimant 
 
         complained of back pain (Jt. Ex. B, p. 11).
 
         
 
              X-rays, a CT scan, an enhanced CT scan, and a myelogram all 
 
         demonstrated a normal back to Dr. Ginther and Dr. Kramer.  The 
 
         only organic, physical, medical, objective finding for claimant's 
 
         back complaint was reduced ankle reflex bilaterally and more so 
 
         on the left by Dr. Kramer.  Neither Dr. Ginther or Dr. Kramer 
 
         made a definite diagnoses.  Both doctors proceeded on a 
 
         presumptive diagnoses of epidural scarring, rather as a 
 
         possibility, than as a probability.
 
         
 
              Dr. Ginther could say that the knee injury was very clearly 
 
         caused by the accident in August of 1983; but he could not do so 
 
         with respect to the back.  Rather than give his own personal, 
 
         professional, medical and orthopedic opinion, he said that based 
 
         on the patient's statements that the back condition started at 
 
         that time, and implied that based on claimant's statements the 
 
         back would also be related (Jt. Ex. I, p. 18).  This is far short 
 
         of saying with a reasonable degree of medical certainty that he 
 
         could testify that the accident either caused or probably caused 
 
         the back injury.
 
         
 
              By contrast Dr. Sinning did state that it was his opinion 
 
         within a reasonable degree of medical certainty that his 
 
         examination, x-rays and the medical records do not support any 
 
         thought "that he injured his back in that accident."  Dr. Sinning 
 
         contradicts Dr. Kramer and said he found no absent ankle reflexes 
 
         and that characterizing the claimant's condition as epidural 
 
         scarring and giving steroid shots was an acknowledgment that Dr. 
 
         Ginther and Dr. Kramer did not know what it was for sure.  Dr. 
 
         Sinning very definitively found absolutely no impairment in the 
 
         back.  He also gives several medical reasons for his conclusions 
 
         which all appear to be very sound (Jt. Ex. M, pp. 15 & 40).
 
         
 
              The bulk of the evidence, the preponderance of the evidence, 
 
         the greater weight of the evidence establishes that the claimant 
 
         did not injure his back at the time of the incident on August 14, 
 
         1983.  Consequently, based upon the evidence in the record it 
 
         must be found that claimant did not sustain the burden of proof 
 
         by a preponderance of the evidence that he received an injury to 
 
         his back arising out of and in the course of his employment with 
 
         the employer from the accident that occurred on August 14, 1983.
 
         
 
              The parties stipulated that the left knee injury arose out 
 
         of and in the course of employment with the employer.  Both Dr. 
 

 
         
 
         
 
         
 
         BARKER V. DWAIN JOHNSON TRUCKING
 
         Page  14
 
         
 
         
 
         Ginther and Dr. Sinning found that the accident of August 14, 
 
         1983 was the cause of the left knee injury.  There is no dispute 
 
         about causal connection of the left knee injury.
 
         
 
              Iowa Code section 85.34(l), Healing Period, provides for the 
 
         payment of compensation as follows:
 
         
 
              [B]eginning on the date of injury, and until the 
 
              employee has returned to work or it is medically 
 
              indicated that significant improvement from the injury 
 
              is not anticipated or until the employee is medically 
 
              capable of returning to employment substantially 
 
              similar to the employment in which the employee was 
 
              engaged at the time of injury, whichever occurs first.
 
         
 
              Claimant did not return to his former employment.  Although 
 
         Dr. Sinning said that he could return to his former employment 
 
         with the restriction of not loading or unloading beyond light 
 
         weights on level surfaces, the healing period in this case will 
 
         be determined based upon when it was medically indicated that 
 
         significant improvement from the injury was not anticipated.
 
         
 
              Dr. Sinning said that occurred in the late winter or early 
 
         spring of 1984 (Jt. Ex. M, pp. 27-29).  Dr. Sinning's opinion 
 
         tends to be reinforced by Dr. Ginther's office note dated April 
 
         11, 1984 at which time Dr. Ginther said that claimant's condition 
 
         was unchanged, he was not making any progress, and it may be time 
 
         to give him a rating (Jt. Ex. B, p. 11).  However, a number of 
 
         Dr. Ginther's subsequent office notes -- more specifically March 
 
         7, 1985, March 2, 1985 and April 22, 1985 -- reflect some degree 
 
         of improvement even though it was characterized as "slow."  On 
 
         May 31, 1985, Dr. Ginther rated the left knee at 17 percent 
 
         impairment of the left lower extremity.  A year earlier the Cybex 
 
         machine readings would have yielded an impairment rating between 
 
         20 and 25 percent.   Thus, the knee had significantly improved 
 
         over this period of time (Jt. Ex. B, p. 6).
 
         
 
              "It is only at the point at which a disability can be 
 
         determined that the disability award can be made.  Until such 
 
         time, healing benefits are awarded to the worker.O  Thomas v. 
 
         William Knudson & Son, Inc., 349 N.W.2d 124, 126 (1984).  In 
 
         Thomas the court said that healing period benefits continue 
 
         until the disability can be determined.   Thomas at 126.  
 
         Therefore, it is determined here that claimant's healing period 
 
         ended when Dr. Ginther gave claimant a permanent partial 
 
         disability rating on May 31, 1985.
 
         
 
              Consequently, it is determined that claimant is entitled to 
 
         healing period benefits for the left knee injury beginning on the 
 
         date of the injury, August 14, 1983 through May 31, 1985, when 
 
         the disability rating was made.
 
         
 
              Claimant has argued that he is entitled to have his healing 
 
         period benefits continued because Dr. Sinning has uncovered the 
 
         need for additional surgery.  Also he argues that it would be 
 
         inappropriate to award permanent partial disability benefits at 
 
         this time until the outcome of the surgery is known.  However, 
 
         this decision will determine the rights and liability of the 
 
         parties at the time of the hearing based on the evidence 
 

 
         
 
         
 
         
 
         BARKER V. DWAIN JOHNSON TRUCKING
 
         Page  15
 
         
 
         
 
         presented at the hearing on the issues defined in the hearing 
 
         assignment order.  If either party can generate evidence that 
 
         warrants an end to, diminishment of or increase of compensation 
 
         subsequent to this award which cannot be resolved by the parties 
 
         themselves, then a review-reopening proceeding is available under 
 
         Iowa Code section 86.14(2).
 
         
 
              Dr. Ginther rated the left knee injury at 17 percent of the 
 
         left lower extremity using the AMA Guides (Jt. Ex. B, p. 6).  Dr. 
 
         Sinning, using the AMA Guides, assessed a 25 percent impairment 
 
         of the left lower extremity based on instability due to posterior 
 
         cruciate loss (Jt. Ex. M, pp. 25 & 26).  It is determined now 
 
         that claimant does currently have a 25 percent permanent 
 
         functional impairment of the left lower extremity and is entitled 
 
         to 55 weeks (.25 x 220) of permanent partial disability (Iowa 
 
         Code section 85.34(2), paragraph 0).
 
         
 
              It is not necessary to determine whether the claimant is an 
 
         odd-lot employee because he has not proven that he is entitled to 
 
         industrial disability.
 
         
 
              The final matter to be decided is the proper rate of 
 
         compensation.
 
         
 
              Iowa Code section 85.61, paragraph 12 provides:
 
         
 
              Gross earnings means recurring payments by employer to 
 
              the employee for employment, before any authorized or 
 
              lawfully required deduction or withholding of funds by 
 
              the employer, excluding irregular bonuses, retroactive 
 
              pay, overtime, penalty pay, reimbursement of expenses, 
 
              expense allowances, and the employer's contribution for 
 
              welfare benefits.
 
         
 
              Claimant has proven by his testimony and joint exhibit H 
 
         that he received recurring payments from the employer for 
 
         employment before any authorized or lawfully required deduction 
 
         or withholding of funds by the employer in the amount of 
 
         $3,685.39 marked either as wages or as rent and also $1,225.00 of 
 
         compensation identified only as RD EXP.  Added together his total 
 
         recurring payments amount to $4,910.39. Defendants contend that 
 
         the $1,225.00 of RD EXP constitutes reimbursement of expenses or 
 
         an expense allowance.  However, defendants introduce no evidence 
 
         in support of this contention.  Defendant could have quite 
 
         effectively cleared this matter up by testimony, a deposition, or 
 
         even an affidavit by a company representative who knows exactly 
 
         what RD EXP means.  However, defendants chose to leave it a 
 
         mystery and rely upon the arguments of counsel, but the arguments 
 
         of counsel cannot be construed as evidence.
 
         
 
              Furthermore, the argument of counsel that these amounts are 
 
         about $25 per day is not borne out by the evidence in exhibit H. 
 
         Secondly, the argument of counsel that there was no withholding 
 
         is not persuasive either.  On the contrary, if the employer 
 
         called these amounts RD EXP to avoid withholding social security 
 
         tax and having to match it, as well as to avoid unemployment 
 
         compensation taxes and workers' compensation premium, then this 
 
         latter argument would.be specious.  Therefore, it is found that 
 
         claimant has proven that he has received gross earnings of the 
 

 
         
 
         
 
         
 
         BARKER V. DWAIN JOHNSON TRUCKING
 
         Page  16
 
         
 
         
 
         entire amount and the defendants have failed to prove any portion 
 
         of it was a reimbursement for expenses or an expense allowance.
 
         
 
              Since the employee did not work for the employer for the 
 
         full 13 weeks, the gross earnings of $4,910.39 should be divided 
 
         by 10.571, the actual number of weeks which the claimant did in 
 
         fact work (Iowa Code section 85.36, paragraph 6 & 7).  This 
 
         computation yields a gross weekly earnings rate of  $465.00. The 
 
         workers' compensation benefit schedule for July 1, 1983 provides 
 
         a weekly compensation rate of $290.46 per week for a married 
 
         employee with four exemptions.  Consequently, the proper rate of 
 
         weekly compensation is determined to be $290.46 per week as 
 
         asserted by the claimant in this case.
 
         
 
         
 
                                 FINDINGS OF FACT
 
         
 
              WHEREFORE, based upon the evidence presented, the following 
 
         findings of fact are made:
 
         
 
              That claimant was employed by the employer at the time of 
 
         the motor vehicle accident on August 14, 1983.
 
         
 
              That as a result of the accident the claimant seriously 
 
         injured his left knee.
 
         
 
              That the claimant did not prove by a preponderance of the 
 
         evidence that he injured his back in this accident.
 
         
 
              That the employee was off work from the date of the accident 
 
         until he began working as a bartender around Thanksgiving in 
 
         1985.
 
         
 
              That Dr. Ginther ceased to note improvement of the knee and 
 
         gave the claimant an impairment rating on May 31, 1985.
 
         
 
              That Dr. Ginther assessed a 17 percent permanent impairment 
 
         rating on the left knee and Dr. Sinning assessed a 25 percent 
 
         permanent impairment rating on the left knee.
 
         
 
              That the amount marked RD EXP is part of the claimant's 
 
         gross earnings and that the proper rate of compensation is 
 
         $290.46 as previously calculated.
 
         
 
              That the claim of the claimant for 95 miles of round trip 
 
         mileage from Clinton, Iowa to the University of Iowa and return 
 
         to see Dr. Albright on February 3, 1986 was not disputed.
 
         
 
         
 
                                CONCLUSIONS OF LAW
 
         
 
              WHEREFORE, based upon the evidence presented and the 
 
         principles of law previously stated, the following conclusions of 
 
         law are made:
 
         
 
              That claimant did not sustain the burden of proof by a 
 
         preponderance of the evidence that he sustained an injury to his 
 
         back as a result of the accident on August 14, 1983.
 
         
 

 
         
 
         
 
         
 
         BARKER V. DWAIN JOHNSON TRUCKING
 
         Page  17
 
         
 
         
 
              That the left knee injury is the cause of both temporary and 
 
         permanent disability.
 
         
 
              That claimant is entitled to healing period benefits from 
 
         the date of the injury, August 14, 1983 through May 31, 1985 at 
 
         which time it was medically determined that significant 
 
         improvement for the injury was not anticipated and his treating 
 
         physician assessed an impairment rating.
 
         
 
              That claimant is entitled to permanent partial disability 
 
         benefits for 55 weeks based on a 25 percent permanent impairment 
 
         of the left lower extremity commencing on June 1, 1985.
 
         
 
              That the claimant's gross earnings of $4,910.39 should be 
 
         divided by the 10.571 weeks that he worked to arrive at a gross 
 
         weekly wage of $465.00 which in turn gives claimant a weekly 
 
         workers' compensation rate of $290.46 as a married person with 
 
         four exemptions.
 
         
 
              That claimant is entitled to medical mileage in the amount 
 
         of $22.80 for the 95 miles of round trip expense from Clinton, 
 
         Iowa to Iowa City and back to Clinton, Iowa to see Dr. Kramer on 
 
         February 3, 1986 at the rate of $.24 per mile.
 
         
 
              That the odd-lot doctrine has no application to scheduled 
 
         member injuries and therefore no application to the instant 
 
         case.
 
         
 

 
         
 
         
 
         
 
         BARKER V. DWAIN JOHNSON TRUCKING
 
         Page  18
 
         
 
         
 
                                      ORDER
 
         
 
              THEREFORE, IT IS ORDERED:
 
         
 
              That defendants pay to claimant ninety-three point 
 
         seven-one-four (93.714) weeks of healing period benefits at the 
 
         rate of two hundred ninety and 46/100 dollars ($290.46) per week 
 
         commencing on August 14, 1983 through May 31, 1985 in the total 
 
         amount of twenty-seven thousand two hundred twenty and 17/100 
 
         dollars ($27,220.17).
 
         
 
              That defendants pay to claimant fifty-five (55) weeks of 
 
         permanent partial disability benefits at the rate of two hundred 
 
         ninety and 46/100 dollars ($290.46) per week commencing on June 
 
         1, 1985 in the total amount of fifteen thousand nine hundred 
 
         seventy-five and 30/100 dollars ($15,975.30).
 
         
 
              That the defendants pay the accrued benefits in a lump sum.
 
         
 
              That interest will accrue under Iowa Code section 85.30.
 
         
 
              That the defendants are entitled to credit for benefits 
 
         previously paid as stipulated in the prehearing report.
 
         
 
              That the defendants pay to claimant twenty-two and 80/100 
 
         dollars ($22.80) for medical mileage as previously explained.
 
         
 
              That each party pay their own costs of this proceeding 
 
         except that the defendants are to pay claimant for the cost of 
 
         exhibit L, Jane Lamb Health Center records in the amount of forty 
 
         and no/100 
 
         
 
         dollars ($40.00) and exhibit M, Reporting Services in the amount 
 
         of one hundred sixty-six and 60/100 dollars ($166.60) which 
 
         amounts total two hundred six and 60/100 dollars ($206.60) as 
 
         stipulated to at the hearing.  Defendants are also to pay the 
 
         cost of reporting the hearing.
 
         
 
              Defendants are to file claim activity reports as requested 
 
         by this agency pursuant to Division of Industrial Services Rule 
 
         343-3.1, formerly Iowa Industrial Commissioner Rule 500-3.1.
 
         
 
         
 
              Signed and filed this 18th day of February, 1987.
 
         
 
         
 
         
 
         
 
         
 
         
 
         
 
         
 
         
 
                                           WALTER R. McMANUS, JR.
 
                                           DEPUTY INDUSTRIAL COMMISSIONER
 
         
 
         Copies To:
 
         
 
         Mr. Elliott R. McDonald, Jr.
 

 
         
 
         
 
         
 
         BARKER V. DWAIN JOHNSON TRUCKING
 
         Page  19
 
         
 
         
 
         Attorney at Law
 
         3432 Jersey Ridge Road
 
         Davenport, Iowa 52807
 
         
 
         Mr. E. J. Giovannetti
 
         Attorney at Law
 
         1040 Fifth Avenue
 
         Des Moines, Iowa 50314
 
         
 
         
 
         
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                                1108.50; 1110; 1402.20
 
                                                1402.30; 1402.40; 1802
 
                                                1803; 3000; 4100
 
                                                Filed February 18, 1987
 
                                                WALTER R. McMANUS, JR.
 
         
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         CRAIG S. BARKER,
 
         
 
              Claimant,
 
         
 
         VS.
 
                                                     FILE NO. 742287
 
         DWAIN JOHNSON TRUCKING,
 
                                                  A R B I T R A T I 0 N
 
              Employer,
 
                                                     D E C I S I 0 N
 
         and
 
         
 
         CIGNA,
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
         
 
         
 
         1108.50; 1110; 1402.20; 1402.30; 1402.40
 
         
 
              Claimant, an over-the-road truck driver, suffered multiple 
 
         injuries in a motor vehicle accident.  It was held that he did 
 
         not sustain an injury to his back because his treatment centered 
 
         on his left knee and he did not mention back complaints until 
 
         several months after the accident.  Also, x-rays, CT scan, 
 
         enhanced CT scan, and myelogram and his symptom pattern were all 
 
         negative for back injury.  Defendants' doctor said he had neither 
 
         back injury nor back impairment.
 
         
 
         1802; 1803
 
         
 
              Claimant awarded healing period for the left knee from date 
 
         of injury to point of maximum medical improvement.  Maximum 
 
         improvement determined from treating doctor's office notes and 
 
         the point when treating doctor rated him.
 
         
 
         3000
 
         
 
              Claimant was paid $300 per trip and $100 RD EXP per trip.  
 
         However, all expenses were paid except food and clothing.  
 
         Claimant only knew RD EXP had something to do with taxes.  
 
         Defendants introduced no evidence on the meaning of RD EXP but
 
         
 
         
 
         counsel argued it was an expense allowance.  RD EXP was held to 
 
                                                
 
                                                         
 
         be part of gross earnings.  Arguments of counsel cannot be 
 
         considered evidence.  It was conjectured RD EXP was a method for 
 
         the employer to avoid payroll taxes.
 
         
 
         4100
 
         
 
              Where the only compensable injury was to the knee claimant 
 
         could not be considered an odd-lot employee because he was only 
 
         entitled to scheduled member benefits and not industrial 
 
         disability.
 
 
 
         
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                   BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         RONALD D. RUDE,
 
         
 
              Claimant,                              File No. 742548
 
         
 
         vs.                                      A R B I T R A T I O N
 
         
 
         HILAND POTATO CHIP CO.,                     D E C I S I O N
 
         
 
              Employer,
 
                                                        F I L E D
 
         and
 
                                                       JUL 20 1989
 
         ARGONAUT INSURANCE COMPANY,
 
                                                   INDUSTRIAL SERVICES
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
                                   INTRODUCTION
 
         
 
              This is a proceeding in arbitration brought by Ronald D. 
 
         Rude, claimant, against Hiland Potato Chip Company, employer, and 
 
         Argonaut Insurance Company, insurance carrier, defendants, for 
 
         benefits as the result of an alleged injury which occurred on 
 
         August 5, 1983.  A hearing was held at Waterloo, Iowa, on May 2, 
 
         1988, and the case was fully submitted at the close of the 
 
         hearing. Claimant was represented by Dennis G. Larson.  Defendants 
 
         were represented by Harry W. Dahl.  The record consists of the 
 
         testimony of Ronald D. Rude, claimant, claimant's exhibits A, 
 
         pages 3 through 28, claimant's exhibit B, and defendants' exhibits 
 
         1 and 2.  Both attorneys submitted excellent briefs.  The deputy 
 
         ordered a transcript of the hearing.
 
         
 
                              PRELIMINARY MATTERS
 
         
 
              Defendants objected to claimant's exhibit A, pages 1 through 
 
         28.
 
         
 
              More specifically, defendants objected to claimant's exhibit 
 
         A, pages 17 through 28 for the reason that claimant did not serve 
 
         an exhibit list showing that these were proposed exhibits and 
 
         because these exhibits are irrelevant and immaterial.
 
         
 
              Paragraph six of the hearing assignment order provides:
 
         
 
              Witness and Exhibit Lists.  A list of all witnesses to be 
 
              called at the hearing and a list of all proposed exhibits to 
 
              be offered into the evidence at the hearing along with 
 
              copies of all written exhibits not previously served shall 
 
              be served upon opposing parties no later than fifteen (15) 
 
              days prior to the date of the hearing.  Only those witnesses 
 
              listed will be permitted to testify at the hearing unless 
 
                                                
 
                                                         
 
                   their testimony is clearly rebuttal or sur-rebuttal.  
 
              Medical records, practitioners reports and all other written 
 
              evidence shall not be admitted as exhibits at the hearing 
 
              unless they have been timely served upon an opposing party 
 
              as ordered herein.
 
         
 
              Claimant alleged that these items had been served on 
 
         defendants on February 12, 1987 (transcript page 7).  Defendants 
 
         acknowledged that claimant's exhibit A, pages 17 through 28 had 
 
         been served on them on February 13, 1987 (tr. pp. 7, 8, 12, 15 
 
         and 16).  Since claimant's exhibit A, pages 17 through 28 had 
 
         been served upon an opposing party pursuant to Division of 
 
         Industrial Services Rule 343-4.17 and no later than 15 days prior 
 
         to hearing, it was not prejudicial to defendants that claimant 
 
         did not serve an exhibit list showing these items as proposed 
 
         exhibits. Claimant's exhibit A, pages 17 through 28 are 
 
         claimant's unpaid medical bills.
 
         
 
              The principle issue in this case is whether claimant is 
 
         entitled to be paid for these medical expenses.  Therefore, 
 
         defendants could have reasonably anticipated that claimant would 
 
         offer these exhibits at the hearing.  Paragraph six of the 
 
         hearing assignment order does not specifically exclude proposed 
 
         exhibits based on a party's failure to serve an exhibit list.  
 
         Claimant's attorney was patently in error for not serving an 
 
         exhibit list as he was instructed to do by the hearing assignment 
 
         order. Nevertheless, the error was not prejudicial to defendants 
 
         in this instance for the reason that these bills had been served 
 
         on defendants pursuant to Rule 4.17 and defendants could have 
 
         reasonably anticipated that it was essential for claimant to 
 
         introduce these exhibits.  Wherefore, defendants' objection is 
 
         overruled.  Claimant's exhibit A, pages 17 through 28 are 
 
         admitted into evidence (tr. p. 22).
 
         
 
              Defendants objected to claimant's exhibit A, pages 3 through 
 
         16 because:  (1) they were not served on defendants by claimant 
 
         pursuant to Division of Industrial Services Rule 343-4.17; (2) 
 
         they were not served on defendants pursuant to paragraph six of 
 
         the hearing assignment order 15 days prior to hearing; and (3) 
 
         these exhibits did not appear on an exhibit list as proposed 
 
         exhibits 15 days prior to hearing (tr. pp. 14-16, 19, 21 & 23). 
 
         Claimant contended it was not necessary for him to serve these 
 
         exhibits on defendants pursuant to Rule 4.17 and paragraph six 
 
         because defendants served these exhibits on him.  Claimant 
 
         further maintained it was not necessary for him to put these 
 
         exhibits on a proposed exhibit list because defendants had 
 
         already put the same exhibits on their proposed exhibit list 
 
         which they had served on him showing that these exhibits would be 
 
         introduced as deposition exhibits to defendants' exhibit 1, the 
 
         deposition of R.C. Wooters, M.D. (tr. pp. 16-18 & 21).
 
         
 
              Division of Industrial Services Rule 343-4.17 does not 
 
         require the party seeking to use the exhibits at hearing to serve 
 
         them pursuant to that rule.  Division of Industrial Services Rule 
 
         343-4.17 begins as follows:
 
                                                
 
                                                         
 
         
 
              Each party to a contested case shall serve all medical 
 
              records and reports concerning the injured worker in the 
 
              possession of the party upon each opposing party not later 
 
              than twenty days following filing of an answer, or if not 
 
              then in possession of a party, within ten days of 
 
              receipt....
 
         
 
              This rule requires both parties to serve medical records and 
 
         reports on the other party shortly after they are received.
 
         
 
              Paragraph six of the hearing assignment order, quoted above, 
 
         does not specifically require that the party intending to 
 
         introduce exhibits in evidence to put the proposed exhibits on an 
 
         exhibit list; nor does it specifically exclude them from evidence 
 
         if they do not appear on an exhibit list.  Claimant did not show 
 
         that he served these exhibits on defendants and he did not show 
 
         that he served an exhibit list on defendants.  Claimant's 
 
         attorney took a great risk, at the expense of his client, that 
 
         defendants would introduce these exhibits.  As it happened 
 
         defendants did introduce these same exhibits as deposition 
 
         exhibits 3 through 17 to defendants' exhibit 1.  Therefore, 
 
         claimant's exhibit A, pages 3 through 16 are not prejudicial to 
 
         defendants.  Defendants' objection is overruled and claimant's 
 
         exhibit A, pages 3 through 16 are admitted into evidence (tr. p. 
 
         23).
 
         
 
              Furthermore, as to claimant's exhibit A, pages 3 through 16 
 
         and pages 17 through 28, Division of Industrial Services Rule 
 
         343-4.18 provides as follows:  "Any relevant medical record or 
 
         report served upon a party in compliance with these rules prior 
 
         to any deadline established by order for service of the records 
 
         and reports shall be admissible as evidence at hearing of the 
 
         contested case."
 
         
 
              As previously stated paragraph six of the hearing assignment 
 
         order does not specifically exclude proposed exhibits based on a 
 
         party's failure to serve a proposed exhibit list.  Consequently, 
 
         it would appear that the hearing deputy has some discretion in 
 
         ruling upon exhibits which are timely served pursuant to Division 
 
         of Industrial Services Rule 343-4.17 that do not appear on a 
 
         proposed exhibit list.  It should be noted that all of these 
 
         problems could have been averted if claimant's attorney would 
 
         have filed an exhibit list as he was instructed to do in 
 
         paragraph six of the hearing assignment order.
 
         
 
              Defendants objected to the admission of claimant's exhibit A, 
 
         pages 1 and 2 because they were not served:  (1) pursuant to 
 
         Division of Industrial Services Rule 343-4.17; (2) they were not 
 
         served not later than 15 days prior to hearing as required by 
 
         paragraph six of the hearing assignment order; and (3) they did 
 
         not appear on an exhibit list served 15 days prior to hearing. 
 
         Claimant's attorney could not demonstrate that these two pages had 
 
         been served on defendants or that they appeared on an exhibit list 
 
         as required by these rules.  In fact, claimant's attorney conceded 
 
                                                
 
                                                         
 
         that these two pages had never been served on defendants. 
 
         Defendants' attorney maintained that he first saw these two pages 
 
         at the time of hearing.  Wherefore, defendants' objection is 
 
         sustained.  Claimant's exhibit A, pages 1 and 2 were not admitted 
 
         into evidence, but were excluded from evidence, and will not be 
 
         taken into consideration in the determination of of this case.  
 
         The physical presence of these two pages will remain with the 
 
         record marked as an offer of proof for purposes of appeal only.  
 
         (tr. p. 45).
 
         
 
              Defendants' exhibits 1 and 2 were admitted into evidence 
 
         over claimant's objections (tr. pp. 45 & 45).
 
         
 
              Defendants' counsel moved that since claimant served no 
 
         witness list then no witnesses should be allowed to testify other 
 
         than claimant as the party in interest.  This motion was granted. 
 
         Claimant's attorney responded that claimant was the only witness 
 
         that he intended to call (tr. pp. 45 & 46).
 
         
 
              At the suggestion of the hearing deputy, claimant moved to 
 
         amend the original notice and petition to assert an arbitration 
 
         proceeding, rather than a review-reopening proceeding, for the 
 
         reason that there has been no prior award or settlement in this 
 
         case and since the date of injury is subsequent to July 1, 1982, 
 
         it is not a memorandum of agreement case.
 
 
 
 
 
                              
 
                                                         
 
         
 
              Defendants' attorney pointed out that claimant filed two 
 
         petitions in this case and defendants filed two answers.  
 
         However, it was agreed at the hearing that this decision will be 
 
         the only decision in this case (tr. p. 49).  Defendants requested 
 
         the deputy to take official notice of the first report of injury 
 
         and the Iowa state transportation map, copyright 1986, Iowa State 
 
         Department of Transportation.  Claimant had no objection and 
 
         official notice was taken of the first report of injury and the 
 
         map [Iowa Administrative Procedure Act 17A.14(4)].  The motion 
 
         was granted and the map becomes a part of the record in this case 
 
         (tr. p. 48).
 
         
 
                              STIPULATIONS
 
         
 
              The parties stipulated to the following matters:
 
         
 
              That an employer-employee relationship existed between 
 
         claimant and employer at the time of the alleged injury.
 
         
 
              That claimant received workers' compensation benefits for 
 
         his time off work during a period of recovery and that claimant's 
 
         entitlement to temporary disability benefits is not an issue in 
 
         this case at this time.
 
         
 
              That the type of permanent disability, if the injury is 
 
         found to be a cause of permanent disability, is industrial 
 
         disability to the body as a whole.
 
         
 
              That the commencement date for permanent partial disability 
 
         benefits, in the event such benefits are awarded, is August 30, 
 
         1983.  That the rate of compensation, in the event of an award, 
 
         is $203.86 per week.
 
         
 
              That the provider of medical services and supplies would 
 
         testify that the fees were reasonable and that defendants are not 
 
         offering contrary evidence.
 
         
 
              That defendants are entitled to a credit under Iowa Code 
 
         section 85.38(2) for the payment of $780 of sick pay benefits 
 
         under an employee nonoccupational group health plan which were 
 
         paid to claimant prior to hearing in the event of an award of 
 
         disability benefits.
 
         
 
              That defendants make no claim for workers' compensation 
 
         benefits paid prior to hearing.
 
         
 
              That there are no bifurcated claims.
 
         
 
                                      ISSUES
 
         
 
              The parties presented the following issues for determination 
 
         at the time of the hearing.
 
         
 
              Whether claimant sustained an injury on August 5, 1983, 
 
                                                
 
                                                         
 
         which arose out of and in the course of employment with 
 
         employer.
 
         
 
              Whether the injury was the cause of permanent disability
 
         
 
              Whether claimant is entitled to permanent disability 
 
         benefits.
 
         
 
              Whether claimant is entitled to certain medical expenses 
 
         pursuant to Iowa Code section 85.27.
 
         
 
              Whether claimant's recovery should be barred because of 
 
         intoxication pursuant to Iowa Code section 85.16(2) was asserted 
 
         by defendants as an affirmative defense.
 
         
 
                          SUMMARY OF THE EVIDENCE
 
         
 
              Of all of the evidence that was introduced, the following is 
 
         a summary of the evidence most pertinent to this decision.
 
         
 
              Claimant, age 35, started to work for employer in 1982 as a 
 
         route salesman and was promoted to a district manager 
 
         approximately six months later.  A district manager supervises 
 
         route salesmen and promotes new business.  Claimant supervised 
 
         six or seven route men.  Claimant testified that he was told by 
 
         the executive vice president that he was to wine them, dine them 
 
         and get them laid if that's what it takes to get the account (tr. 
 
         p. 116).  Claimant testified that he was shown where to put these 
 
         items on his expense account and that he was to attach receipts. 
 
         Claimant identified three different supervisors by name who 
 
         instructed him to follow this procedure.  Claimant added that 
 
         alcohol was one of the items that was frequently involved in the 
 
         entertainment of customers.  Claimant further testified that he 
 
         claimed reimbursement for alcohol on his expense account 25 to 50 
 
         percent of the time (tr. pp. 63-72).
 
         
 
              Claimant lived in Decorah, Iowa.  On the week of the injury 
 
         he was asked to deliver a route in LeMars, Iowa, for a route man 
 
         who was ill.  Since the company car was being repaired claimant 
 
         volunteered, and was authorized, to ride his own personal 
 
         motorcycle with two wheel trailer to LeMars.  Claimant worked 
 
         away from home in LeMars all week.  He testified that he left 
 
         LeMars to return to Decorah at approximately 4 p.m. on Friday, 
 
         August 5, 1983.
 
         
 
              Claimant testified that he had been asked to stop in Clear 
 
         Lake, Iowa, at the Holiday Lodge and smooth over a complaint that 
 
         the potato chips were coming in broken and that the route man was 
 
         frequently late.  Claimant testified that he purchased a beer for 
 
         the kitchen manager in the bar.  Claimant then encountered a 
 
         friend from home and the friend bought all three of them a beer. 
 
         Claimant said that he then bought a round for all three persons. 
 
         Claimant estimated that he would have consumed five beers at the 
 
         most--he consumed three of them with the kitchen manager and two 
 
         more of them with his friend.  Claimant denied any other alcohol 
 
                                                
 
                                                         
 
         consumption on the day of the accident.  Claimant testified that 
 
         he ate a sandwich with his friend and then continued his journey 
 
         to Decorah (tr. pp. 72-77).
 
         
 
              Claimant said that the last thing he remembers is leaving 
 
         Osage, Iowa, and the next thing he remembers is waking up in the 
 
         hospital at Osage (tr. pp. 78, 79 & 86).  Claimant testified that 
 
         he was hospitalized for three days, from Saturday until Monday, 
 
         at the Mitchell County Hospital in Osage.  Claimant testified 
 
         that the sheriff came to his hospital room and tore up a summons 
 
         because claimant's blood alcohol test was .07, which was less 
 
         than what was required for conviction.  Claimant testified that 
 
         the sheriff then wrote out and gave claimant a new ticket for 
 
         failure to have his vehicle under control (tr. p. 80).
 
         
 
              Claimant said he sustained several injuries:  (1) a broken 
 
         right clavicle; (2) a collapsed right lung; (3) head injuries; 
 
         (4) cuts and bruises all over his body; (5) inner ear damage 
 
         which caused him to loose his balance; and (6) a severe 
 
         concussion (tr. pp. 80-83).  Claimant related that the accident 
 
         occurred east of Osage, Iowa, on Highway 9 on the route between 
 
         Osage and Decorah (tr. p. 80).
 
         
 
              Claimant said that his sister took him home to Decorah from 
 
         the hospital in Osage.  On the way home they stopped at the 
 
         accident scene by the Harlan Noble residence.  Claimant said that 
 
         he could see skid marks on the shoulder where the trailer went 
 
         off of the road and flipped around on the shoulder.  Claimant 
 
         maintained that the skid marks were not on the curve, but on the 
 
         straight away.  The skid marks were approximately 100 feet long 
 
         and began 40 to 50 feet east of the Noble mailbox.  Claimant 
 
         speculated that it looked like the trailer jackknifed and shot 
 
         him into the ditch (tr. pp. 84-92).
 
         
 
              Claimant went to his family physician at the Decorah Medical 
 
         Clinic and he was put back in the Winneshiek County Hospital for 
 
         another two and one-half to three weeks because his right lung 
 
         was collapsed (tr. pp. 92, 93 & 100).  Claimant testified that 
 
         after he got out of the Winneshiek County Hospital that he went 
 
         to his parents home.  His mother handed him a piece of L shaped 
 
         black fiber glass about six or eight inches long.  Claimant 
 
         alleged that this piece was given to his mother by Mrs. Harlan 
 
         Noble who found it just past her mailbox.  However, the piece of 
 
         fiber glass was black and claimant's motorcycle was bright red 
 
         (tr. p. 119). Claimant testified that the fiber glass fit 
 
         perfectly with a cut across the face of the right trailer tire.
 
         
 
              Claimant speculated that the trailer tire hit the piece of 
 
         fiber glass in the road by the mailbox which caused the trailer 
 
         to whip around and caused claimant to loose control of the 
 
         motorcycle (tr. p. 96).  Claimant related that he took this 
 
         evidence, the tire and the piece of fiber glass, to his attorney.  
 
         His attorney contacted the Mitchell County Sheriff's office and 
 
         the sheriff then dropped the charge of failure to have his 
 
         vehicle under control (tr. pp. 84-94).
 
                                                
 
                                                         
 
         
 
              Claimant testified that after he returned to work he fell 
 
         over while hanging a chip rack in Spring Valley, Minnesota (tr. 
 
         p. 97).  Claimant said that he was having loss of balance 
 
         problems, blurred vision, loss of focus and double vision (tr. p. 
 
         99).  His Decorah physician then sent claimant to Mayo Clinic 
 
         (tr. p. 103).
 
         
 
              Claimant testified that all of the medical bills introduced 
 
         into evidence in claimant's exhibit A were incurred by him as a 
 
         result of this accident (tr. p. 102).
 
         
 
              Claimant testified that he stopped in Clear Lake for 
 
         approximately two or two and one-half hours.  He said that he 
 
         understood the accident occurred around 10:30 p.m.  He said that 
 
         the friend that he saw in Clear Lake was not related to 
 
         employer's business.  Claimant said that he did not know the name 
 
         of the lady that he saw at the Holiday Lodge and that he did not 
 
         have an appointment with her prior to seeing her (tr. pp. 
 
         108-110).
 
         
 
              Claimant conceded that he did not mention anything about 
 
         stopping to see the lady or any business at the Holiday Lodge at 
 
         the time he answered interrogatories.  He admitted that at the 
 
         time of the interrogatories he mentioned only seeing his friend 
 
         for dinner and that he also stated that he only drank two beers 
 
         (tr. P. 111).
 
         
 
              Claimant admitted that in his deposition he never said 
 
         anything about stopping to have any business dealings with a 
 
         women in Clear Lake until he testified to it at this hearing.  In 
 
         his deposition he admitted that he only mentioned having a meal 
 
         and a couple of beers with his friend (tr. pp. 112 & 113).  
 
 
 
                           
 
                                                         
 
         Claimant granted that in reply to interrogatory number seven he 
 
         said that he only had two beers.  Claimant also admitted that 
 
         employer never told him to get intoxicated in order to do his job 
 
         (tr. p. 116). Claimant said that he could not get his medical 
 
         bills paid by his motorcycle insurance policy because motorcycle 
 
         insurance does not cover the operator for medical expense 
 
         payments (tr. pp. 118 & 126).  Claimant said that he earned 
 
         approximately $17,000 for Hiland.  His present employer, Arkem 
 
         Manufacturing, Inc., pays him approximately $26,000 or $27,000 
 
         which is based 100 percent on commission (tr. pp. 120 & 121).
 
         
 
              Gary Torney, deputy sheriff for Mitchell County, Iowa, 
 
         testified by deposition that he has been a deputy sheriff for 12 
 
         years.  He was a town marshall for three and one-half years 
 
         before that.  He was trained at the Iowa Law Enforcement Academy 
 
         at Johnston, Iowa.  He has received continuing education since 
 
         then which included investigation of motor vehicle accidents and 
 
         driving under the influence of alcohol and other substances.  He 
 
         has investigated 100 or more motor vehicle accidents.  He was 
 
         investigating officer on this accident.  His accident report 
 
         includes the blood alcohol test done by Larry Frahm, a chemical 
 
         analyst.
 
         
 
              Torney testified that he did not know when the accident 
 
         occurred, but he was called at 10:37 p.m.  Torney said claimant 
 
         was conscious when he arrived at the scene.  Claimant was in pain, 
 
         but nevertheless refused medical attention at first.  Torney 
 
         testified that he thought claimant was impaired by the use of 
 
         alcohol because of the very strong odor of alcohol about his 
 
         person even in the open air (defendants' exhibit 2, p. 10).  
 
         Torney said that the blood test results were 7/10 of 1 percent 
 
         blood alcohol which was 3/10 of 1 percent short of being legally 
 
         intoxicated or being charged with driving while under the 
 
         influence (def. ex. 2, pp. 11 & 12).  The blood sample was drawn 
 
         at the hospital.  Claimant arrived at the hospital at 
 
         approximately 11:47 p.m.  Torney testified that claimant was 
 
         charged with failure to have his vehicle under control (def. ex. 
 
         2, p. 15).  Torney testified that he did not know if charges were 
 
         dropped or if claimant was convicted (def. ex. 2, pp. 38 & 39).  
 
         Torney did not recall testifying at a trial on these charges 
 
         however (def. ex. 2, p. 40).
 
         
 
              Torney determined that the accident was caused by the fact 
 
         that the driver was impaired by alcohol and lost control of his 
 
         vehicle while approaching a curve (dep. ex. 2, p. 18).  Torney 
 
         added that the accident was caused because the driver was 
 
         intoxicated which caused him to lose control.  He said there were 
 
         no other contributing factors on the highway (def. ex. 2, P. 19). 
 
         Claimant was not able to perform field sobriety tests because of 
 
         his injury (def. ex. 2, p. 25).
 
         
 
              Torney said that the fact claimant was combative about 
 
         getting medical attention and his manner of speech supported his 
 
         decision that claimant was under the influence of alcohol (def. 
 
         ex. 2, p. 26).  Torney admitted that he never did charge claimant 
 
                                                
 
                                                         
 
         with drunk driving because the blood alcohol specimen tested too 
 
         low and the case would have been dismissed.  He said his probable 
 
         cause for the blood alcohol test was claimant's speech and the 
 
         odor of alcohol.  The witness said that he still feels that 
 
         claimant was impaired (def. ex. 2, pp. 26-31).  Torney admitted 
 
         that the law does not prohibit the filing of a drunk driving 
 
         charge when the blood alcohol is less than .10 (def. ex. 2, p. 
 
         37).  Torney related that he has obtained several convictions 
 
         without a body specimen (def. ex. 2, p. 29).  Torney admitted 
 
         that he did not go back to the scene after his investigation that 
 
         night.  The deputy sheriff said that he did not know if a piece 
 
         of fiber glass had been found by the Nobles and whether it had 
 
         been matched to the trailer tire (def. ex. 2, pp. 41 & 42).  He 
 
         said that the skid marks he found were east of the mailbox on the 
 
         shoulder.  He admitted that he never interviewed claimant in his 
 
         investigation of the accident (tr. pp. 48-50).
 
         
 
              R.C. Wooters, M.D., testified that he is the chief medical 
 
         examiner for Polk County, Iowa.  He has done this work for 21 
 
         years.  A medical examiner investigates homicides, suicides, 
 
         accidental deaths and unexpected deaths where a physician is not 
 
         in attendance and makes an effort to determine the cause of death 
 
         and the manner of death in those cases.  As an ancillary activity 
 
         he has become involved in the investigation of the effects of 
 
         alcohol on human beings and has testified many hundreds of times, 
 
         usually for the prosecution, in OWI cases.  He has attended many 
 
         seminars and has performed experiments on the ability to drive 
 
         after specific quantities of alcohol after specific periods of 
 
         time.  He said that he has also tested himself under these 
 
         conditions.  In his own case, three drinks have produced a 
 
         reading of 65 or 70 milligrams percent and that he would not 
 
         think of driving at that blood alcohol level (def. ex. 1, pp. 
 
         3-7).
 
         
 
              Dr. Wooters said that he had seen the investigating officers 
 
         report and the medical exhibits.  The expert witness was given a 
 
         long hypothetical question after which he opined and estimated 
 
         that claimant's blood alcohol would have been 15 to 20 milligrams 
 
         percent higher one hour before the test.  He estimated that 
 
         claimant's blood alcohol level would have been 75 or 85 or 90 at 
 
         the time of the accident (def. ex. 1, pp. 10 & 11).
 
         
 
              Dr. Wooters related that in 1983 the American Medical 
 
         Association and the National Safety Council set up 100 milligrams 
 
         percent as a level above which all persons are deemed to be 
 
         intoxicated (def. ex. 1, p. 11).
 
         
 
              Dr. Wooters opined that claimant was intoxicated at the time 
 
         of this accident.  He added, however, that he could not say with 
 
         certainty, but most people would be intoxicated at that level.  
 
         He added that consideration was being given to lower the rule to 
 
         50 milligrams percent.  In his opinion, Dr. Wooters thought that 
 
         he and other persons would be intoxicated at that level (def. ex. 
 
         2, pp. 13 & 14).
 
         
 
                                                
 
                                                         
 
              Dr. Wooters added that it was his opinion that the level of 
 
         100 milligrams percent or .10 percent of alcohol in the blood is 
 
         the level above which all persons are intoxicated.  He believed 
 
         that claimant had 85 or 90 units at the time of the accident 
 
         (def. ex. 1, pp. 14 & 15).
 
         
 
              The investigating officer's report of Torney states as 
 
         follows:
 
         
 
              No. 1 eastbound on highway Ia. #9.  The road curves to the 
 
              left and No. 1 failed to make the curve, the motorcycle was 
 
              out of control for 300' on the sholder [sic] of the road 
 
              before crashing into road ditch, the trailer broke off and 
 
              also ended up in the road ditch.
 
         
 
         (def. ex. 1, dep. ex. 1 & 2)
 
         
 
              The report of Larry Frahm, analyst, attached to defendants' 
 
         exhibit 1, deposition exhibit 2, states that the test result was 
 
         70 mg. percent of ethyl alcohol.
 
         
 
              Claimant's exhibit A, page 3 is the emergency room record 
 
         for the Mitchell County Hospital which shows claimant was in a 
 
         motorcycle accident on August 5, 1983.  Claimant was found in the 
 
         ditch.  He was diagnosed as sustaining:  (1) a cerebral 
 
         concussion; (2) a fractured collar bone; (3) cervical strain; and 
 
         (4) bruises, abrasions and possible contusion of the lung (cl. 
 
         ex. A, pp. 3-9; def. ex. 1, dep. exs. 4-10).
 
         
 
              The Winneshiek County Hospital recorded that claimant was 
 
         hospitalized at Decorah from August 8, 1983 to August 19, 1983 
 
         for:  (1) pneumothorax; (2) fracture of the clavicle; and (3) 
 
         fractured ribs and multiple contusions and abrasions as the 
 
         result of a motorcycle accident.  J.A. Bullard, M.D., was his 
 
         treating physician (cl. ex. A, pp. 13-15; def. ex. 1, dep. exs. 
 
         15-17).
 
         
 
              On January 20, 1984, claimant was referred to Mayo Clinic to 
 
         "have an ENT consult re:  vertigo since his accident and head 
 
         injury 8-5-83." by Robert Dolan, M.D. (cl. ex. A, p. 10; def. ex. 
 
         1, dep. ex. 11).
 
         
 
              On March 28, 1984, David J. Bleu, M.D. and Nicholas B. 
 
         Naragos, M.D., of the Mayo Clinic reported to Dr. Dolan that they 
 
         examined claimant for imbalance which began after the motorcycle 
 
         accident in August of 1983.  After initial resolution he had 
 
         recent exacerbation and was having three or four episodes per 
 
         day. The diagnosis was posttraumatic benign vertigo.  They 
 
         recommended that claimant avoid the right lateral head position 
 
         that causes the episodic imbalance.  They said his prognosis was 
 
         good, but that it will take time for it to come about (cl. ex. A, 
 
         p. 11; def. ex. 1, dep. ex. 12).
 
         
 
              On February 14, 1986, Dr. Bullard reported that claimant was 
 
         still under his care with shoulder pain which may or may not be 
 
                                                
 
                                                         
 
         related to his original injury.  Dr. Bullard said claimant had 
 
         discomfort, but no limitation of activity in either his work or 
 
         extra curricular activities which required the use of both arms 
 
         (cl. ex. A, p. 16; def. ex. 1, dep. ex. 14).
 
         
 
              Claimant presented the following medical bills for payment:
 
         
 
              Mayo Clinic                     $2,118.60
 
              Oniota Radiology                    38.00
 
              Decorah Medical Assoc.             246.73
 
              Snellen Chiropractic Clinic        707.00
 
              Winneshiek Memorial Hospital       306.90
 
              A.B. Ludeking, D.C.                 65.00
 
              Parking and Meal                     7.32
 
               
 
                                       TOTAL  $3,489.55
 
         
 
         
 
              Claimant testified that all of these medical bills were 
 
         incurred as the result of this accident (tr. p. 102).
 
         
 
              Defendant did not oppose any of these medical expenses or 
 
         bills either by way of contradictory evidence or by way of 
 
         argument.
 
         
 
         APPLICABLE LAW AND ANALYSIS
 
         
 
              An employee is entitled to compensation for any and all 
 
         personal injuries which arise out of and in the course of the 
 
         employment.  Section 85.3(1).
 
         
 
              Claimant has the burden of proving by a preponderance of the 
 
         evidence that he received an injury on August 5, 1983, which 
 
                           
 
                                                         
 
         arose out of and in the course of his employment.  McDowell v. 
 
         Town of Clarksville, 241 N.W.2d 904 (Iowa 1976); Musselman v. 
 
         Central Telephone Co., 261 Iowa 352, 154 N.W.2d 128 (1967).
 
         
 
              The injury must both arise out of and be in the course of 
 
         the employment.  Crowe v. DeSoto Consol. Sch. Dist., 246 Iowa 
 
         402, 68 N.W.2d 63 (1955) and cases cited at pp. 405-406 of the 
 
         Iowa Report.  See also Sister Mary Benedict v. St. Mary's Corp., 
 
         255 Iowa 847, 124 N.W.2d 548 (1963) and Hansen v. State of Iowa, 
 
         249 Iowa 1147, 91 N.W.2d 555 (1958).
 
         
 
              Claimant did sustain the burden of proof by a preponderance 
 
         of the evidence that he sustained an injury arising out of and in 
 
         the course of his employment on August 5, 1983.  Claimant's 
 
         testimony and the medical evidence verify injury arising out of 
 
         and in the course of employment with employer.  No contradicting, 
 
         controverting or rebutting evidence was introduced on this issue 
 
         by defendants.
 
         
 
              Claimant was a traveling employee at the time of this 
 
         injury. An employee whose job necessitates traveling is within 
 
         the course of his employment while he pursues many of the 
 
         activities of daily life for the entire time he is on the road.  
 
         Crees v. Sheldahl Telephone Co., 258 Iowa 292, 139 N.W.2d 190 
 
         (1965); Lawyer and Higgs, Iowa Workers' Compensation--Law and 
 
         Practice, section 6-15, pp. 56 & 57).  Traveling employees are 
 
         within the scope of their employment while they pursue many of 
 
         the activities of daily living on the road such as resting and 
 
         eating.  Walker v. Speeder Machine Corp., 213 Iowa 1134, 240 N.W. 
 
         725 (1932).  Traveling employees are in the course of their 
 
         employment from the time they leave home until the time they 
 
         return home.  Heissler v. Strange Bros. Hide Co., 212 Iowa 848, 
 
         237 N.W. 343 (1931).  This is true irrespective of whether the 
 
         employer or the employee is paying the employee's expenses.  
 
         Being on the road in pursuit of the employer's business is enough 
 
         to satisfy the in the course of employment requirement.  Madison 
 
         v. Kapperman, Thirty-third Biennial Report, Iowa Industrial 
 
         Commissioner 155 (1977). Therefore, claimant's eating and 
 
         drinking alcohol with his meal were activities in the course of 
 
         his employment with employer. Furthermore, the fact that claimant 
 
         was riding a motorcycle at night was due to the fact that 
 
         claimant volunteered his own vehicle in order to perform his job 
 
         for employer when the company vehicle was broke down and was in 
 
         the garage for repairs.  In addition, employer permitted drinking 
 
         on the job and honored expense account items for the purchase of 
 
         alcohol.  Furthermore, it appears that claimant was required to 
 
         work long hours and cover a very wide geographic area.  
 
         Wherefore, it is determined that the motorcycle accident which 
 
         occurred on August 5, 1983 was the cause of an injury which arose 
 
         out of and in the course of employment with employer.
 
         
 
              The parties agreed that temporary disability was not an 
 
         issue in this case at this time.
 
         
 
              Claimant did not sustain the burden of proof by a 
 
                                                
 
                                                         
 
         preponderance of the evidence that the injury was the cause of 
 
         any permanent disability either by way of his own testimony or by 
 
         way of any medical reports.  On February 14, 1986, claimant was 
 
         seen by Dr. Bullard for shoulder pain, but this pain did not 
 
         limit his work or extracurricular activities (cl. ex. A, p. 16).  
 
         The Mayo Clinic doctor said that the imbalance problem was 
 
         prognosticated to improve with time (cl. ex. A, p. 11).  
 
         Wherefore, claimant did not sustain the burden of proof by a 
 
         preponderance of the evidence that the injury was the cause of 
 
         any permanent disability and claimant is not entitled to 
 
         permanent disability benefits.
 
         
 
              Claimant is entitled to $3,489.55 in medical expenses as 
 
         summarized above.  He presented these medical expenses as being 
 
         caused by this injury.  He testified that all of these medical 
 
         expenses were caused by this injury.  Defendants did not 
 
         controvert or oppose any of these medical bills by way of either 
 
         evidence or argument.  Wherefore, it is determined that claimant 
 
         is entitled to the payment of his medical expenses in the amount 
 
         of $3,489.55.
 
         
 
              Defendants asserted the affirmative defense of intoxication 
 
         under Iowa Code section 85.16(2).  This section of the code reads 
 
         as follows:
 
         
 
                   By the employee's intoxication, which did not arise out 
 
              of and in the course of employment but which was due to the 
 
              effects of alcohol or another narcotic, depressant, 
 
              stimulant, hallucinogenic, or hypnotic drug not prescribed 
 
              by an authorized medical practitioner, if the intoxication 
 
              was a substantial factor in causing the injury.
 
         
 
              Claimant's counsel asked at the hearing who has the burden 
 
         of proof on the elements of Iowa Code section 85.16(2).  Claimant 
 
         has the burden of proof by a preponderance of the evidence to 
 
         show an injury arising out of and in the course of employment 
 
         with employer.  Claimant met that burden in this case.  
 
         Defendants then have the burden to prove the affirmative defense 
 
         of intoxication and all elements of it as set for in Iowa Code 
 
         section 85.16(2). More specifically, defendants must prove:  (1) 
 
         intoxication; (2) that it was a substantial factor in causing the 
 
         injury; and (3) that it did not arise out of and in the course of 
 
         employment with employer.  Everts vs.  Jorgensen, 227 Iowa 818, 
 
         289 N.W. 11 (1939); Reddick v. Grand Union Tea Co., 230 Iowa 108, 
 
         115, 299 N.W. 800 (1941); Birch v. Malvern Cold Storage Co., 230 
 
         Iowa 357, 297 N.W. 818 (1941).
 
         
 
              The first element, intoxication, is not defined by the 
 
         workers' compensation statute or case law.  Lawyer and Higgs, 
 
         section 7-3, p. 63.  This treatise suggests that.evidence might 
 
         be presented by:  (1) blood alcohol levels; (2) the 
 
         interpretation of blood alcohol test results; (3) the number of 
 
         drinks claimant imbibed; and (4) claimant's conduct prior to the 
 
         injury. Claimant's blood alcohol level was .07.
 
         
 
                                                
 
                                                         
 
              Iowa law prohibits driving a motor vehicle while under the 
 
         influence of an alcoholic beverage.  Iowa Code section 
 
         321J.2(l)(a)(b) (1987).  Intoxication is presumed where the 
 
         driver has a blood alcohol concentration of .10 or above.  
 
         Intoxication can still be established where the blood alcohol 
 
         level is below .10 from other evidence (Iowa Code section 
 
         321J.2(l); State v. Bratthauer, 354 N.W.2d 774 (Iowa 1984).
 
         
 
              Claimant's blood alcohol level did not reach .10.  Dr. 
 
         Wooters estimated that it might have been as high as 75, 85 or 
 
         90. Dr. Wooters, a qualified expert, said that claimant was 
 
         intoxicated at the time of the accident, in his opinion, in 
 
         response to a lengthy hypothetical question.  Then Dr. Wooters 
 
         backed off and said that most people would be intoxicated at that 
 
         level and that he personally would be intoxicated at that level. 
 
         Dr. Wooters did not observe claimant before, during or after the 
 
         accident.
 
         
 
              Another expert through training and practical experience, 
 
         Deputy Sheriff Torney, testified that in his opinion the accident 
 
         was caused by the fact that claimant was impaired by alcohol.  He 
 
         believed claimant's.intoxication caused him to lose control on 
 
         the curve.  Torney did not see the accident happen.  Claimant did 
 
         not know at what time the accident happened.  Torney did not 
 
         charge claimant with driving while intoxicated because his blood 
 
         alcohol level was not high enough.  Torney boasted that he had 
 
         obtained convictions a number of times without a blood alcohol 
 
         test, yet he chose not to charge claimant with the OWI under the 
 
         information he had obtained from his investigation.
 
         
 
              Torney saw claimant at the scene of the accident.  He did 
 
         not question him or interview him later.  Claimant was conscious 
 
         at the scene.  Torney based his opinion of intoxication on the 
 
         basis of the odor of alcohol, slurred speech and the fact that 
 
         claimant resisted medical attention for his injuries.  Torney 
 
         admitted that claimant was injured at the time he observed him 
 
         and that the injuries prevented Torney from performing field 
 
         tests for intoxication at the accident scene.  With all due 
 
         respect to Torney, and his opinion is respected, his observations 
 
         are not conclusive that claimant was intoxicated or if claimant 
 
         had a degree of intoxication, whether that degree of intoxication 
 
         was a proximate cause, or a substantial factor, in causing this 
 
         motorcycle accident.
 
         
 
              As to the number of drinks, claimant admitted to five beers 
 
         over a period of two to two and one-half-hours.  He then rode his 
 
         motorcycle for approximately another hour before the accident. 
 
         Five beers over a two and one-half hour period is not conclusive 
 
         that claimant was intoxicated three and one-half hours later or 
 
         that if he had a degree of intoxication that it was a proximate 
 
         cause or a substantial factor in causing this accident.
 
         
 
              As to claimant's conduct, Torney is the only witness.  As 
 
         far as claimant's actual conduct or activities prior to the 
 
         accident, claimant was apparently fully capable of driving his 
 
                                                
 
                                                         
 
         motorcycle and trailer a distance of approximately 50 miles more 
 
         or less at the end of the day from Clear Lake to Osage.  There 
 
         was no straight line route between these two towns.  Therefore, 
 
         claimant negotiated other turns and operated the vehicle for a 
 
         substantial distance in possibly daylight, twilight and nighttime 
 
         hours without incident.
 
         
 
              The most compelling evidence of intoxication is the .07 
 
         blood alcohol level.  This blood alcohol level does not meet the 
 
         criteria of intoxication under the Iowa motor vehicle law.  Nor 
 
         does it appear to meet the criteria for workers' compensation 
 
         case law.  The weight and credit to be given evidence of results 
 
         of chemical tests for intoxication is for the trier of fact.  
 
         Rigby v. Eastman, 217 N.W.2d 604, 608 (1974).  The industrial 
 
         commissioner was not significantly impressed with a blood alcohol 
 
         level of 196 mgm. of alcohol per 100 cc. of blood or the 
 
         testimony of a medical expert who testified that that amount of 
 
         alcohol would indicate that the individual was intoxicated.  
 
         Instead the Iowa industrial commissioner determined that claimant 
 
         was not intoxicated.  The Iowa Supreme Court affirmed the 
 
         industrial commissioner's finding that evidence of road 
 
         conditions and the testimony of certain witnesses in the case 
 
         supported the industrial commissioner's decision.  Claimant had 
 
         spent the evening in a bar with friends prior to the accident.  
 
         Lamb v. Standard Oil Company, 250 Iowa 911, 917, 96 N.W.2d 730 
 
         (1959).
 
         
 
              In Birch, 230 Iowa 357, 297 N.W. 818 (1941), where there was 
 
         evidence that claimant had been drinking whiskey during the 
 
         course of an afternoon, but conflicting testimony of witnesses as 
 
         to whether claimant was intoxicated or not, the industrial 
 
         commissioner found that claimant was not intoxicated where there 
 
         was a vehicle defect and the right front wheel of the vehicle 
 
                           
 
                                                         
 
         became engaged in loose gravel at the side of the road.
 
         
 
              Likewise, in this case, there is other evidence, as in Lamb 
 
         and Birch, that must be considered in addition to the blood 
 
         alcohol level, the testimony of experts, and the amount of 
 
         alcohol consumed.  The conduct of claimant must be considered.  
 
         First of all, claimant might well have been very tired.  He had 
 
         worked all week away from home in LeMars, Iowa.  He had worked 
 
         all day the day of the accident.  He took off at approximately 4 
 
         p.m. on a motorcycle pulling a trailer from LeMars at the other 
 
         end of the state with respect of Decorah.  Claimant had traveled 
 
         four or five hours by motorcycle pulling the trailer.  The 
 
         accident probably happened after the hours of darkness.  It is 
 
         entirely possible that claimant was drowsy as the court found in 
 
         the case of a drinking claimant in Farmers Elevator Co., Kingsley 
 
         v. Manning, 286 N.W.2d 174, 178 (Iowa 1979).
 
         
 
              Even more compelling is the evidence that the motorcycle and 
 
         trailer began showing a skid mark 100 feet long, on the straight 
 
         of way, which began 50 feet east of the mailbox and before 
 
         claimant came to the curve.  Add this to the evidence that 
 
         claimant testified that Mrs. Harlan Noble searched and found 
 
         claimant's mother in order to deliver a piece of fiber glass, 
 
         which was found near the mailbox, which fit perfectly into the 
 
         cut on the face of the trailer tire.  Claimant did not produce 
 
         the fiber glass, the tire, the testimony of his mother or the 
 
         testimony of Mrs. Harlan Noble.  Nevertheless, his testimony 
 
         stands as his sworn testimony in this case.  This testimony is 
 
         supported by his additional testimony that the Mitchell County 
 
         Attorney dropped the charge of failure to have his vehicle under 
 
         control when he learned about the fiber glass from claimant's 
 
         attorney.
 
         
 
              Defendants assert surprise because claimant did not mention 
 
         these matters in his interrogatories or in his deposition prior 
 
         to hearing.  It is possible defendants did not ask the right 
 
         questions.  The interrogatories and deposition were not admitted 
 
         into evidence.  It is also possible that claimant suppressed this 
 
         information for the benefit of surprise.  It is also possible 
 
         that this information is not true.  Yet the state of the record 
 
         is that this is the sworn testimony of claimant and it must be 
 
         considered as evidence in this case.
 
         
 
              Assuming claimant did conceal the information about the 
 
         fiber glass in the interrogatories and in the deposition, 
 
         defendants could have investigated at the scene of the accident 
 
         and talked to Mr. and Mrs. Harlan Noble.  Possibly defendants 
 
         have done so. Defendants could have investigated with the 
 
         Mitchell County attorney to try to determine the outcome of the 
 
         OWI and the failure to have vehicle under control charges brought 
 
         against claimant if they plan to assert an intoxication defense.  
 
         Again it is possible that defendants have done so.  If not, 
 
         reasonable investigation of the accident required them to do so 
 
         before denying a claim on the basis of intoxication that is a 
 
         substantial factor in causing the injury.
 
                                                
 
                                                         
 
         
 
              Claimant testified that he stopped at Clear Lake to smooth 
 
         over a customer's complaint at the request of employer.  
 
         Defendants assert claimant did not bring out this information at 
 
         the time of his interrogatories or at the time of his deposition.  
 
         Again, did defendants ask the right questions, did claimant 
 
         suppress this information, is it possible that this testimony is 
 
         not true?  Again, the state of the record is that this is the 
 
         sworn testimony of claimant at hearing and it stands as evidence 
 
         in this case.  Even assuming claimant concealed this information, 
 
         defendants could have investigated their own clients, in 
 
         particular, claimant's immediate superiors, and obtained 
 
         statements from them about the circumstances surrounding this trip 
 
         home, including the stop in Clear Lake, and what expense items 
 
         claimant turned in for this trip for his stop in Clear Lake, Iowa.  
 
         Possibly defendants have done this.
 
         
 
              Claimant testified that he was told by three superiors to 
 
         wine them, dine them and get them laid, anything to get the 
 
         account.  Claimant testified that he was shown how to claim these 
 
         entertainment expenses on his expense account.  His expense 
 
         account contained items for entertainment like this 25 to 50 
 
         percent of the time.  This evidence was not controverted.  This 
 
         evidence tends to make this claim distinguishable from Walsh v. 
 
         Kay Dee Feed Company, Vol. 1-1 Iowa Industrial Commissioner 
 
         Decisions, 252 (1984), where a deputy industrial commissioner 
 
         found a distinction between company promoted drinking and 
 
         drunkenness and defendant was not estopped from asserting the 
 
         intoxication defense.  Both cases encouraged drinking with 
 
         customers on the job.  Employer in this case appears to be 
 
         willing to go a little farther if employer is willing to do 
 
         anything to get the account.  In both cases, defendants did not 
 
         cause the episode and should not be estopped from asserting the 
 
         intoxication defense.  1 Larson, The Law of Workers' 
 
         Compensation, section 34.36, page 6-111 (1982).  In this case, it 
 
         would appear that a certain amount of intoxication would be 
 
         permitted by employer if it would lead to getting or saving an 
 
         account.  Employers who permit, encourage and pay for alcohol 
 
         consumption by their employees, either alone or with customers, 
 
         should be required to prove the standard of drinking or 
 
         intoxication allowed and submit evidence that claimant violated 
 
         this standard.
 
         
 
              Wherefore, based on the foregoing evidence, it is determined 
 
         that defendant did not sustain the burden of proof by a 
 
         preponderance of the evidence:  (.1) that claimant was 
 
         intoxicated at the time of the injury; (2) that the alleged 
 
         intoxication was a proximate cause or a substantial factor in 
 
         causing the injury; or (3) that claimant's alleged intoxication 
 
         did not arise out of and in the course of his employment with 
 
         employer.
 
         
 
                              FINDINGS OF FACT
 
         
 
              Wherefore, based upon the evidence presented the following 
 
                                                
 
                                                         
 
         findings of fact are made.
 
         
 
              That claimant was an employee of employer on August 5, 
 
         1983.
 
         
 
              That claimant was injured in a motorcycle accident while 
 
         returning to Decorah, Iowa, after working all week in LeMars, 
 
         Iowa.
 
         
 
              That claimant was a traveling employee.
 
         
 
              That claimant's injuries arose out of and in the course of 
 
         his employment with employer.
 
         
 
              That temporary disability is not an issue in this case at 
 
         this time.
 
         
 
              That claimant did not prove by his own testimony or any 
 
         medical evidence that the injuries from the motorcycle accident 
 
         were the cause of any permanent disability.
 
         
 
              That claimant incurred $3,489.55 for the treatment of these 
 
         injuries which were caused by this accident.
 
         
 
              That claimant's blood alcohol, at the time of the accident, 
 
         was not over .10.
 
         
 
              That there was evidence that claimant struck a piece of 
 
         fiber glass in the road which caused his vehicle to go out of 
 
         control and go into the ditch where he was injured.
 
         
 
              That claimant successfully drove the motorcycle and trailer 
 
         a distance of approximately 50 miles, for approximately one hour 
 
         more or less, after drinking and eating in Clear Lake, Iowa, 
 
         before the accident occurred.
 
         
 
              That claimant had worked all day and had traveled all night 
 
         and it was probably dark at the time of the accident which was 
 
         discovered at approximately 10:30 p.m.
 
         
 
              That defendants' evidence did not prove that claimant's 
 
         drinking caused intoxication, that claimant's drinking was a 
 
         substantial factor in causing the accident or that claimant's 
 
         drinking did not arise out of and in the course of his employment 
 
         with employer.
 
         
 
                              CONCLUSIONS OF LAW
 
         
 
              WHEREFORE, based upon the evidence presented and the 
 
         foregoing principles of law, the following conclusions of law are 
 
         made.
 
         
 
              That claimant did sustain the burden of proof by a 
 
         preponderance of the evidence that he sustained injuries on 
 
         August 5, 1983, in a motorcycle accident which arose out of and 
 
                                                
 
                                                         
 
         in the course of employment with employer.
 
         
 
              That claimant did not sustain the burden of proof by a 
 
         preponderance of the evidence that these injuries were the cause 
 
         of any permanent disability.
 
         
 
              That claimant is not entitled to permanent disability 
 
         benefits.
 
         
 
              That claimant is entitled to medical benefits for his 
 
         medical expense in the amount of $3,489.55.
 
         
 
              That defendants did not sustain the burden of proof by a 
 
         preponderance of the evidence that claimant was intoxicated under 
 
         either the standards set by the motor vehicle law of Iowa or the 
 
         standards set by the workers' compensation law of Iowa.
 
         
 
              That defendants did not sustain the burden of proof by 
 
         preponderance of the evidence that claimant's drinking was a 
 
         substantial factor in causing his injuries.
 
         
 
              That defendants did not sustain the burden of proof by a 
 
         preponderance of the evidence that claimant's drinking did not 
 
         arise out of and in the course of his employment with employer.
 
         
 
                                    ORDER
 
         
 
              THEREFORE, IT IS ORDERED:
 
         
 
              That defendants pay to claimant or the provider of medical 
 
         services three thousand four hundred eighty-nine and 55/100 
 
         dollars ($3,489.55) as detailed in the summary of the evidence as 
 
         soon as possible after the date of this decision as well as any 
 
 
 
                                    
 
                                                         
 
         late charges for the late payment of these bills.
 
         
 
              That defendants pay the costs of this proceeding, including 
 
         the cost of the transcript pursuant to Division of Industrial 
 
         Services Rule 343-4.33.
 
         
 
              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 20th day of July, 1989.
 
         
 
         
 
         
 
         
 
         
 
         
 
         
 
         
 
                                            WALTER R. McMANUS, JR.
 
                                            DEPUTY INDUSTRIAL 
 
                                            COMMISSIONER
 
         
 
         Copies to:
 
         
 
         Mr. Dennis Larson
 
         Attorney at Law
 
         312 W. Main
 
         Decorah, IA  52101
 
         
 
         Mr. Harry Dahl
 
         Attorney at Law
 
         974 73rd St. STE 16
 
         Des Moines, IA  50312
 
         
 
         
 
         
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
                                                
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                            1107; 1110; 1401; 1402.20; 
 
                                            1402.30; 1402.40; 1402.60; 
 
                                            1403.10; 1403.30
 
                                            1601; 51803; 52501; 52505 
 
                                            Filed July 20, 1989
 
                                            Walter R. McManus, Jr.
 
         
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         RONALD D. RUDE,
 
         
 
              Claimant,
 
                                                        File No. 742548
 
         vs.
 
                                                     A R B I T R A T I O 
 
         N
 
         HILAND POTATO CHIP CO.,
 
                                                        D E C I S I O N
 
              Employer,
 
         
 
         and
 
         
 
         ARGONAUT INSURANCE COMPANY,
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
         1107; 1110; 1401; 1402.20; 1402.30; 1402.40; 1402.60; 1403.10; 
 
         1403.30
 
         
 
              Claimant, who was a traveling employee, who was in a 
 
         motorcycle accident after having some drinks, sustained an injury 
 
         arising out of and in the course of employment with employer.
 
         
 
         1601
 
         
 
              Defendants did not prove:  (1) intoxication; (2) substantial 
 
         factor; or (3) not arising out of and in the course of 
 
         employment.
 
         
 
         5103
 
         
 
              Claimant did not sustain permanent impairment or permanent 
 
         disability.
 
         
 
         52501; 52505
 
         
 
              Claimant was allowed medical expenses which had been 
 
              denied.
 
         
 
         
 
         
 
                                                
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                   BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         DORIS HOWELL
 
         
 
              Claimant,                           File No. 742690
 
         
 
         vs.                                          R U L I N G
 
         
 
         IOWA VETERANS HOME                               O N
 
         
 
              Employer,                                 N U N C
 
         
 
         and                                             P R O
 
         
 
         STATE OF IOWA,                                  T U N C
 
         
 
              Insurance Carrier,                       O R D E R
 
              Defendants.
 
         
 
         
 
         
 
         
 
              The decision filed 11-3-87 is amended.  As per the State's
 
         application.  Filed 11-12-87.
 
         
 
         
 
         
 
         
 
         
 
         
 
              Signed and filed this 16th day of Nov., 1987.
 
         
 
         
 
         
 
         
 
         
 
                                            LARRY P. WALSHIRE
 
                                            DEPUTY INDUSTRIAL COMMISSIONER
 
         
 
         Copies to:
 
         
 
         Robert Pratt
 
         Attorney at Law
 
         
 
         Shirley Stiffs
 
         Attorney at Law
 
 
 
         
 
 
 
 
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                            
 
                    BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         EDWARD F. BERTLSHOFER,
 
         
 
              Claimant,
 
         
 
         VS.
 
                                               File Nos. 742752/764496
 
         FRUEHAUF CORPORATION,
 
                                                A R B I T R A T I 0 N
 
              Employer,
 
                                                   D E C I S I 0 N
 
         CNA INSURANCE COMPANY,
 
         
 
              Insurance Carrier,
 
         
 
         and
 
         
 
         SECOND INJURY FUND OF IOWA,
 
         
 
              Defendants.
 
         
 
         
 
                                   INTRODUCTION
 
         
 
              These are consolidated proceedings in arbitration brought by 
 
         Edward F. Bertlshofer, claimant, against the Fruehauf 
 
         Corporation, employer, and CNA Insurance Company, insurance 
 
         carrier, and the Second Injury Fund of Iowa, defendants, for the 
 
         recovery of benefits as a result of an injury to his left arm on 
 
         August 19, 1983 and an alleged injury to his right arm on 
 
         September 26, 1984.  This case was heard before the undersigned 
 
         on August 21, 1986 at the courthouse in Burlington, Des Moines 
 
         County, Iowa.  It was considered fully submitted at the 
 
         conclusion of the hearing.
 
         
 
              The record consists of the testimony of claimant; joint 
 
         exhibits 1 through 50; employer/insurance carrier exhibits A and 
 
         B; and, Second Injury Fund of Iowa exhibit 1.
 
         
 
                             STIPULATIONS AND ISSUES
 
         
 
               Pursuant to the prehearing report filed and approved on the 
 
         date of hearing, the parties stipulated as follows:
 
         
 
              1.  On August 19, 1983 claimant received an injury arising 
 
         out of and in the course of employment to his left arm;
 
         
 
              2.  As a result of his injury, claimant was paid thirty-four 
 
         weeks of healing period benefits and weekly benefits for ten
 
         percent permanent partial disability to his left arm;
 
         
 
              3.  Claimant's rate of compensation is $229.34;
 
         
 

 
         
 
         
 
         
 
         BERTLSHOFER V. FRUEHAUF CORPORATION
 
         Page   2
 
         
 
         
 
              4.  Claimant's time off work as a result of his injury or 
 
         alleged injury is accurately set forth in joint exhibit 50;
 
         
 
              5.  All medical expenses requested by claimant have been 
 
         or will be paid by the employer; and,
 
         
 
              6.  Charges incurred for medical treatment are fair and 
 
         reasonable.
 
         
 
              The issues to be determined in this proceeding are:
 
         
 
              1.  Whether the claimant received an injury arising out of 
 
         and in the course of his employment on September 26, 1984;
 
         
 
              2.  The proper length of healing period benefits, if any, 
 
         as to each injury;
 
         
 
              3.  The proper extent of permanent partial disability, if 
 
         any, as to each injury; and,
 
         
 
              4.  Whether claimant is entitled to benefits from the 
 
         Second Injury Fund of Iowa.
 
         
 
                              EVIDENCE PRESENTED
 
         
 
              Claimant testified he is thirty-nine years old and was in 
 
         excellent health prior to his injury of August 19, 1983.  He said 
 
         he had been working for the employer for about three months as an 
 
         assembler before that date.. Claimant advised that on August 19, 
 
         1983 he cut his left forearm on a metal band.  He reported to the 
 
         nurse's office with his injury and was then sent to Fort Madison 
 
         Community Hospital.
 
         
 
              Claimant said that the first doctor who examined him at the 
 
         hospital referred him to Donald Mackenzie, M.D., who treated him 
 
         for the arm.  He said his arm was sewed up and he was sent home 
 
         where he remained for four or five weeks while the wound healed.  
 
         He then returned to work on light duty status as concerns his 
 
         left arm.
 
         
 
             Claimant recalled that he worked about two days before he 
 
         began having problems with the arm again.  He reported swelling, 
 
         discoloration, and numbness.  He returned again to Dr. Mackenzie. 
 

 
         
 
         
 
         
 
         BERTLSHOFER V. FRUEHAUF CORPORATION
 
         Page   3
 
         
 
         
 
          Claimant testified that Dr. Mackenzie told him he had returned 
 
         to work too soon and took him off work for a considerable period 
 
         of time.  During the time he was off work, the doctor operated on 
 
         his arm to release the ulnar nerve.
 
              Claimant returned to work again in late 1983 or early 1984. 
 
          After he had worked for about three months, he returned again to 
 
         Dr. Mackenzie because of continuing problems with his left arm.  
 
         He said he had continued to receive physical therapy during this 
 
         time.  Dr. Mackenzie referred claimant to E. Torge Shivapour, 
 
         M.D., for further testing.  He saw Dr. Mackenzie again after 
 
         seeing Dr. Shivapour and was told by Dr. Mackenzie that he was 
 
         uncertain about claimant's problem.  Claimant was referred to the 
 
         University of Iowa Hospitals and Clinics whore he was seen by 
 
         Barbara J. Campbell, M.D., and William F. Blair, M.D. As a result 
 
         of this referral, a second surgery on claimant's left arm was 
 
         performed in April 1984.  Claimant was off work again, this time 
 
         for about two months.
 
         
 
              Claimant recalled that he was released to return to work on 
 
         light duty on July 2, 1984.  Claimant said he worked until 
 
         October 1984 and was then laid off until July 1985.  He said that 
 
         when he returned in 1985 he continued to have a medical 
 
         restriction on his left arm.  He said he was, however, assigned 
 
         to do a panelling job which required considerable use of both 
 
         arms.  He described in detail his duties on this job which 
 
         included lifting, hammering, and drilling.  He said that because 
 
         of his left arm he tried to do most of this work with his right 
 
         arm.
 
         
 
              Claimant said he then began to have increasing problems with 
 
         his right arm.  He said he reported this on several occasions to 
 
         the company nurse who eventually referred him to Miles Archibald, 
 
         M.D., the company doctor.  Claimant revealed that he also went to 
 
         see his family doctor about this problem in September 1985.  
 
         Claimant advised that Dr. Archibald did not seem to want to treat 
 
         the problem.  His family doctor, K. S. Kaboli, M.D., treated the 
 
         condition with an injection.
 
         
 
              Claimant testified that his last day of employment with 
 
         defendant was September 29, 1985.  He said that on that day he 
 
         and his union president went to the company office to inquire 
 
         whether or not the company was going to follow the light duty 
 
         restrictions placed on claimant.  Claimant was advised that at 
 
         that time there was no light duty jobs available for him.  He 
 
         admitted, however, that the company later wrote to him to tell 
 
         him there was work available.  Claimant contended that he did not 
 
         return to work because he did not trust the company to keep him 
 
         in a job within his medical restrictions.
 
         
 
              Claimant testified that since quitting work he has sought, 
 
         unsuccessfully, both full and part-time work.  He said he does, 
 
         however, help his father by driving a garbage truck in the 
 
         mornings.  He said his estimated income for 1986 would be about 
 
         $5,000 or $6,000.
 
         
 
              Claimant said he suffers from a variety of problems and
 
         
 
         limitations as a result of his present condition.  Among those 
 
         restrictions and limitations are limited weight lifting, no 
 

 
         
 
         
 
         
 
         BERTLSHOFER V. FRUEHAUF CORPORATION
 
         Page   4
 
         
 
         
 
         sports activities, no repetitive use of his arms, and no 
 
         operation of manual transmissions or heavy equipment.  Claimant 
 
         advised that he has a high school diploma but has no specialized 
 
         training.  He said he is no longer able to work at the kind of 
 
         manual heavy labor he has done in the past.  The employment 
 
         history recited by claimant consisted entirely of manual labor 
 
         jobs.  Claimant has also done farm work in the past which he now 
 
         limits.
 
         
 
              On cross-examination claimant said that he began to have 
 
         problems with his arm as early as October 1984.  He added, 
 
         however, that the major problems began in July 1985 while doing 
 
         the panelling job.  He stated that his first complaint to the 
 
         company nurse was July 1985.  Claimant said he did report 
 
         problems with his right arm to the nurse prior to his left arm 
 
         injury but did not at that time believe it was work related.  He 
 
         first thought it was work related while on light duty in 1984.
 
         
 
              Barbara J. Campbell, M.D., testified by way of deposition 
 
         which was admitted into the record as exhibit 46.  Dr. Campbell 
 
         testified that she is a fellow in pediatric orthopedics at the 
 
         University of Iowa Hospitals and Clinics.  She said she first 
 
         examined claimant on March 7, 1984 when he presented with 
 
         complaints of dysesthesia over the skin and minor ulnar 
 
         neuropathy.  Claimant was also complaining of tennis elbow type 
 
         symptoms in his right arm.
 
         
 
              Dr. Campbell reviewed the clinical and x-ray findings 
 
         concerning claimant's left elbow.  She said that based upon this 
 
         information it was believed that claimant had developed a neuroma 
 
         in some of the cutaneous nerves in the area of the lacertaion and 
 
         that there was need for further release of the ulnar nerve 
 
         proximally and distally.  To rectify these problems claimant 
 
         underwent surgery on April 2, 1984.  Dr. Campbell said that 
 
         claimant's right elbow was treated symptomatically with a splint 
 
         and anti-inflammatory medications.  It was also believed that 
 
         claimant suffered mild carpal tunnel syndrome which was treated 
 
         conservatively.
 
         
 
              When claimant was seen in the clinic in July 1984, it was 
 
         believed that the carpal tunnel syndrome had responded to the 
 
         conservative therapy and no further treatment was recommended.  
 
         She reported that the problem had cleared by the time claimant 
 
         was examined on September 11, 1984.  She was concerned, however, 
 
         that claimant had torn some of the insertion of the muscle fibers 
 
         from where the muscle group was resutured.
 
         
 
              Dr. Campbell said that the problem with claimant's right arm 
 
         was chronic tendonitis.  She said that chronic tendonitis is a 
 
         common condition that is related to how a person uses an arm.  
 
         Dr. Campbell said that it was possible that claimant's right arm 
 
         problem was the result of overusing it while the left arm was 
 
         incapacitated.  She was in any event certain that the right arm 
 
         problem developed as a result of claimantOs work.
 
         
 
              Dr. Campbell testified that it was her opinion that claimant 
 
         had a permanent impairment to his left arm.  She stated, however, 
 
         that it was still too soon to apply an impairment rating to the 
 
         arm.  Dr. Campbell stated on cross-examination that she could not 
 

 
         
 
         
 
         
 
         BERTLSHOFER V. FRUEHAUF CORPORATION
 
         Page   5
 
         
 
         
 
         give an opinion as to whether claimant's right arm was 
 
         permanently impaired.  She said that she was not aware that 
 
         claimant had been previously treated for right elbow problems.
 
         
 
              Dr. Campbell said that claimant was released to return to 
 
         light duty work on May 2, 1984.
 
         
 
              K. S. Kaboli, M.D., testified by deposition which was 
 
         admitted as exhibit 47.  Dr. Kaboli was deposed on December 18, 
 
         1985.  Dr. Kaboli testified that he is a family practitioner in 
 
         Donnellson, Iowa.  He said that the claimant and his family had 
 
         been his patients for about twenty years.
 
         
 
              Dr. Kaboli said he did not see or treat claimant for the 
 
         left arm injury of August 19, 1983.  He had, however, treated 
 
         claimant for swelling in the right wrist in July 1983.  Dr. 
 
         Kaboli said he treated claimant on several occasions in 1984 for 
 
         sinus problems and in 1985 for high blood pressure.
 
         
 
              Dr. Kaboli said that he saw claimant on September 25, 1985 
 
         concerning complaints of pain in the right elbow.  After x-rays 
 
         were taken, the doctor diagnosed tennis elbow due to abuse and 
 
         overuse of the hand.  Dr. Kaboli said he treated this condition a 
 
         couple of times.  He added that with rest and medication the 
 
         problem usually goes away and does not come back.  Dr. Kaboli 
 
         said that if claimant does heavy labor he would have further 
 
         problems, but there would be no problems with normal everyday 
 
         use.
 
         
 
              On cross-examination Dr. Kaboli stated that claimant could 
 
         have recurrent bouts of tendonitis if he is involved in heavy 
 
         labor or if he overcompensates with the right arm because of his 
 
         problems with his left arm.  The doctor said he could not place a 
 
         percentage impairment on claimant's right arm.
 
         
 
              Dr. Kaboli said he took claimant off work in February 1984 
 
         because of an upper respiratory condition.
 
         
 
              The remaining exhibits are primarily medical records and 
 
         reports concerning claimant.  Although each has been reviewed, 
 
         only certain portions thereof are discussed below.  The clinical 
 
         notes of claimant's treatment at the university hospitals are 
 
         included in both exhibit 2 and 4.  These records reflect 
 
         claimant's history and progress as testified to by Dr. Campbell.  
 
         A June 14, 1984 note indicates claimant had had no further 
 
         problems with his right arm since his visit of May 2, 1984.  Pain 
 
         in the right arm was noted again in July, but the records reflect 
 
         that this is not a significant problem.
 
         
 
              Exhibit 5 is a surgeon's report stating claimant should be 
 
         off work from June 13, 1984 to July 2, 1984.  Exhibit 7 is a 
 
         similar report indicating claimant should be off work from March 
 
         7, 1984 to May 21, 1984.  Exhibit 10 is a report from Dr. 
 
         Mackenzie taking claimant off work from October 19, 1983 to 
 
         November 18, 1983.  Exhibit 11 is yet another report, stating 
 
         claimant can return to light duty on January 23, 1984.  Exhibit 
 
         16 is a similar report covering the period from August 19, 1983 
 
         to November 5, 1983.
 
         
 

 
         
 
         
 
         
 
         BERTLSHOFER V. FRUEHAUF CORPORATION
 
         Page   6
 
         
 
         
 
              Exhibit 21 is a letter dated August 14, 1985 from William F. 
 
         Blair, M.D., to defendants' attorney stating that claimant has a 
 
         ten percent permanent partial impairment to his left upper 
 
         extremity.  Exhibit 22 contains a letter from Dr. Blair to 
 
         claimant's counsel dated October 18, 1985 in which he states that 
 
         claimant's right elbow problem has not been a significant aspect 
 
         of his treatment; that there is no permanent impairment to the 
 
         right arm; and that the prognosis for this problem was generally 
 
         favorable.
 
         
 
              Exhibit 23 is Dr. Kaboli's certificate of disability 
 
         concerning claimant for the period from February 11, 1984 to 
 
         February 15, 1984.  Exhibit 24 is a similar type certificate from 
 
         Dr. Kaboli concerning July 26, 1983 concerning the right elbow.
 
         
 
              Defendants' exhibit A is a copy of a letter from defendants 
 
         to the claimant dated October 28, 1984.  This letter was sent to 
 
         claimant by registered, certified mail, return receipt requested 
 
         which indicates claimant refused delivery on or about October 29, 
 
         1985.  This letter advised claimant that the defendant had work 
 
         available to him within the restrictions established for him by 
 
         the university clinic.  Exhibit B is a letter from defendant to 
 
         claimant dated May 5, 1986 advising him to report to work in five 
 
         days or it would be considered a voluntary resignation of his 
 
         job.  This letter was received by claimant on May 6, 1986.
 
         
 
              Second injury Fund exhibit 1 contains medical records 
 
         concerning claimant.  Included in the exhibit at page 6 is a note 
 
         from Dr. Mackenzie to claimant dated August 4, 1983 excusing him 
 
         from work for one week because of oleocranon bursitis of the 
 
         elbow.  It appears most of the exhibit is a duplication of the 
 
         parties joint exhibits.
 
         
 
              Joint exhibit 50 outlines the claimant's work record from 
 
         August 19, 1983 to July 25, 1986.  It indicates the following:
 
              8/19/83 Accident
 
         
 
              Off work 8/20/83 through 9/25/83           5 weeks, 4 days
 
              Worked 9/26/83 and 9/27/83
 
              Off work 9/28/83 through 1/22/84          16 weeks, 5 days
 
              Worked 1/23/84 through 2/09/84
 
              Off work 2/10/84 through  2/14/84 (sick, not accident 
 
                 connected)
 
              Worked 2/15/84 through 4/01/84
 
              Off work 4/02/84 through 5/20/84           7 weeks
 
              Worked 5/21/84 through 6/12/84
 
              Off work 6/13/84 through 7/01/84           2 weeks, 5 days
 
              Worked 7/02/84 through 8/20/84
 
              Off work 8/21/84 through 9/09/84           2 weeks, 6 days
 
              Worked 9/10/84 through 10/12/84
 
              General layoff 10/13/84 through 7/01/85
 
              Worked 7/02/85 through 9/29/85
 
              Off work 10/01/85 through 7/25/86          9 months, 25 
 
              days
 
         
 
                           APPLICABLE LAW AND ANALYSIS
 
         
 
              The first matter which need be addressed is the healing 
 
         period and permanent partial disability suffered by the claimant 
 

 
         
 
         
 
         
 
         BERTLSHOFER V. FRUEHAUF CORPORATION
 
         Page   7
 
         
 
         
 
         as a result of his injury of August 19, 1983.  The evidence is 
 
         uncontroverted and the parties appear in agreement that the 
 
         injury caused a ten percent permanent partial disability to the 
 
         left arm equal to ten percent.  This entitles claimant to 
 
         twenty-five weeks of permanent partial disability compensation.  
 
         Section 85.34(2)(m), Code of Iowa.
 
         
 
              Section 85.34(l), The Code, provides that claimant is 
 
         entitled to healing period benefits when he suffers an injury 
 
         causing permanent disability.  Healing period benefits are 
 
         payable until the employee has returned to work, is medically 
 
         capable of returning to similar work, or has achieved maximum 
 
         medical recovery, whichever occurs first.  Claimant has been 
 
         previously paid a total of thirty-four weeks of healing period 
 
         benefits.  According to exhibit 50 claimant's total time off work 
 
         between August 19, 1983 and October 12, 1984 was thirty-four and 
 
         six-sevenths weeks.  October 12, 1984 was the date of a general 
 
         plant layoff.  Claimant's time off in February 1984 due to 
 
         respiratory ailments is not included in the thirty-four and 
 
         six-sevenths weeks.
 
         
 
              It would appear that during the period from August 19, 1983 
 
         through August 20, 1984 all of claimant's time off work was 
 
         pursuant to a doctor's orders.  There is apparently no release of 
 
         work for the period from August 21, 1984 through September 9, 
 
         1984.  There is,, however, a progress note from the university 
 
         clinics dated September 11, 1984 which notes that claimant had 
 
         been suffering from swelling of the left forearm.  Claimant was 
 

 
         
 
         
 
         
 
         BERTLSHOFER V. FRUEHAUF CORPORATION
 
         Page   8
 
         
 
         
 
         treated for this condition with ice and ultrasound.  Based on 
 
         this record, claimant is entitled to compensation for this period 
 
         of two weeks and six days.  Thus, claimant is entitled to 
 
         additional healing period of six-sevenths weeks for the period 
 
         from August 19, 1983 to September 10, 1984.
 
         
 
              The question remains as to whether claimant is entitled to 
 
         further healing period benefits beyond September 10, 1984.  The 
 
         record discloses that claimant did return to work for the period 
 
         from September 10, 1984 to October 13, 1984 when he was laid off 
 
         work as part of a general plant layoff.  The industrial 
 
         commissioner has recognized that healing period benefits can be 
 
         interrupted or intermittent.  Willis v. Lehigh Portland Cement 
 
         Company, Vol 2-1 State of Iowa Industrial Commissioner Decisions 
 
         485 (1984).  Continued medical care which is maintenance in 
 
         nature, however, does not extend the healing period.  Armstrong 
 
         Tire & Rubber Co. v. Kubli, Iowa App. 312 N.W.2d 60 (Iowa 
 
         1981).
 
         
 
              According to Dr. Blair claimant achieved maximum medical 
 
         recovery on July 30, 1985. (Exhibit 2)  On that day the doctor 
 
         assigned a permanent partial impairment to the left arm of ten 
 
         percent.  Prior progress notes do indicate some slight 
 
         improvement to that date.  A progress note of November 6, 1984 
 
         indicates that claimant was being encouraged to consider 
 
         alternative employment opportunities.  This note, together with 
 
         the record as a whole suggests that claimant has not and probably 
 
         will not be medically capable of employment similar to that which 
 
         he was engaged in at the time of the injury.
 
         
 
              Since claimant continued to improve medically after October 
 
         12, 1984, was not medically capable of similar employment, and 
 
         had not return to work (even for economic reasons), he is 
 
         entitled to additional healing period benefits.  Claimant's 
 
         healing period was terminated on his return to work in July 1985.  
 
         This was the earliest event of the three criteria set forth in 
 
         section 85.34(l) and yet consistent with the concept of 
 
         intermittent healing.  Accordingly, defendants will be ordered to 
 
         pay claimant an additional thirty-seven and three-sevenths weeks 
 
         of healing period benefits for the period from October 13, 1984 
 
         to July 2, 1985.  This, combined with the previous six-sevenths 
 
         weeks discussed above, entitles claimant to an additional 
 
         thirty-eight and two-sevenths weeks of healing period benefits 
 
         for the left arm.
 
         
 
              Claimant's permanent disability for the left arm thus became 
 
         payable commencing July 31, 1985.  If defendants did not timely 
 
         pay claimant his permanent disability, interest is owed to him.
 
         
 
              The next issue concerns the allegation that claimant 
 
         suffered an injury to the right arm.  This presents a number of 
 
         interesting issues.  First, the evidence is uncontroverted that 
 
         claimant had or has a problem with tendonitis in his right elbow.  
 
         It is his burden to prove that the problem arose out of and in 
 
         the course of his employment.  McDowell v. Town of Clarksville, 
 
         241 N.W.2d 904 (Iowa 1976).
 
         
 
              The supreme court of Iowa in Almquist v. Shenandoah 
 
         Nurseries, 218 Iowa 724, 731-32, 254 N.W. 35, 38 (1934), 
 

 
         
 
         
 
         
 
         BERTLSHOFER V. FRUEHAUF CORPORATION
 
         Page   9
 
         
 
         
 
         discussed the definition of personal injury in workers' 
 
         compensation cases as follows:
 
         
 
              While a personal injury does not include an occupational 
 
              disease under the Workmen's Compensation Act, yet an injury 
 
              to the health may be a personal injury. [Citations omitted.] 
 
              Likewise a personal injury includes a disease resulting from 
 
              an injury .... The result of changes in the human body 
 
              incident to the general processes of nature do not amount to 
 
              a personal injury.  This must follow, even though such 
 
              natural change may come about because the life has been 
 
              devoted to labor and hard work.  Such result of those 
 
              natural changes does not constitute a personal injury even 
 
              though the same brings about impairment of health or the 
 
              total or partial incapacity of the functions of the human 
 
              body.
 
         
 
                 ....
 
         
 
              A personal injury, contemplated by the Workmen's 
 
              Compensation Law, obviously means an injury to the body, the 
 
              impairment of health, or a disease, not excluded by the act, 
 
              which comes about, not through the natural building up and 
 
              tearing down of the human body, but because of a traumatic 
 
              or other hurt or damage to the health or body of an 
 
              employee. [Citations omitted.]  The injury to the human body 
 
              here contemplated must be something, whether an accident or 
 
              not, that acts extraneously to the natural processes of 
 
              nature, and thereby impairs the health, overcomes, injures, 
 
              interrupts, or destroys some function of the body, or 
 
              otherwise damages or injures a part or all of the body.
 
         
 
              The claimant has the burden of proving by a preponderance of 
 
         the evidence that the injury of September 16, 1984 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 insufficient; 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 
 
         Co., 261 Iowa 352, 154 N.W.2d 128 (1967).
 
         
 
              When a worker sustains an injury, later sustains another 
 
         injury, and subsequently seeks to reopen an award predicated on 
 
         the first injury, he or she must prove one of two things: (a) 
 

 
         
 
         
 
         
 
         BERTLSHOFER V. FRUEHAUF CORPORATION
 
         Page  10
 
         
 
         
 
         that the disability for which he or she seeks additional 
 
         compensation was proximately caused by the first injury, or (b) 
 
         that the second injury (and ensuing disability) was proximately 
 
         caused by the first injury.  DeShaw v. Energy Manufacturing 
 
         Company, 192 N.W.2d 777, 780 (Iowa 1971).
 
         
 
              In McKeever Custom Cabinets v. Smith, 379 N.W.2d 368 (Iowa 
 
         1985) the supreme court recognized the "cumulative injury rule" 
 
         and held, inter alia, that when cumulative trauma is the cause of 
 
         the injury, the date of injury is when because of pain or 
 
         physical inability, the person can no longer work.  The court 
 
         held in that case that both the two year limit (section 85.26) 
 
         and ninety day limit (section 85.23) commence on the date of the 
 
         occurrence of the injury.  In McKeever, however, the court held 
 
         that the employer had actual notice of the injury within the 
 
         meaning of section 85.23.
 
         
 
              Claimant's petition alleges an injury date on the right arm 
 
         of September 26, 1984.  This is curious since his petition was 
 
         filed in July 1984.  Claimant was having problems with his right 
 
         elbow as early as August 1983.  The defendant was given notice 
 
         that claimant had a problem with the elbow, but there is no 
 
         notice it was work related and claimant said he did not attribute 
 
         the problem to work.  A January 5, 1984 letter from Dr. Mackenzie 
 
         indicates that claimant's right elbow at that time was related to 
 
         a traumatic bursitis.  The cause of this is not disclosed.
 
         
 
              In any event, it does not appear that claimant suffered any 
 
         lost time from his right elbow and thus McKeever becomes 
 
         difficult to apply.  Also, claimant continued to work over much 
 
         of this time, thus subjecting the elbow to repeated trauma.  Even 
 
         if claimant failed to give notice prior to July 1984, he should 
 
         not be barred for repeated trauma that occurred after notice was 
 
         given or within ninety days prior thereto.  The defendant 
 
         received the petition on July 27, 1984 and is thus valid notice 
 
         for the alleged cumulative injury which occurred after April 30, 
 
         1984.  Although this may not be a particularly satisfying 
 
         intellectual solution to the problem, it does nevertheless 
 
         resolve the practical problem of how to apply section 85.23 in 
 
         this situation.
 
              
 
              The medical evidence establishes that claimant's right elbow 
 
         problem was work related.  The testimony of Dr. Campbell further 
 
         establishes that this is not a case where the doctrine 
 
         established in DeShaw should be applied.  Claimant has rather 
 
         established that the tendonitis in the right elbow was a separate 
 
         injury.  Claimant has also established the causal relationship 
 
         between the injury and his need for medical treatment.
 
         
 
              On August 30, 1985 an appeal decision was filed in Lundy v. 
 
         Radio Shack Corp.. In Lundy claimant started working for 
 
         Boise-Cascade in 1969.  He stopped working for this employer on 
 
         September 1, 1979.  In 1972 while working for Boise-Cascade 
 
         claimant "jerked the muscle" in his lower back.  He sustained a 
 
         similar injury while working for this employer.  In January 1979 
 
         while working for Boise-Cascade claimant slipped on some ice and 
 
         "sprained" the muscles in his lower back immediately above his 
 
         belt line.
 
         
 
              In August 1980 claimant became a manager for Radio Shack 
 

 
         
 
         
 
         
 
         BERTLSHOFER V. FRUEHAUF CORPORATION
 
         Page  11
 
         
 
         
 
         Corporation in Oskaloosa, Iowa.  He started working for this 
 
         employer on April 23, 1980 as a salesperson selling stereo 
 
         equipment.  Claimant alleged that in April 1981 he sustained an 
 
         injury while lifting a 120 watt receiver and trying to catch it 
 
         as it fell back.  He allegedly pulled the muscles in his lower 
 
         back.  This is the area that he had injured on numerous previous 
 
         occasions.  Claimant also asserted that on July 19, 1982 he 
 
         injured his back while working for Radio Shack Corporation.  
 
         While working for Radio Shack claimant weighed as much as 315 
 
         pounds.
 
         
 
              The EMG and nerve conduction tests suggested a mild S-1 
 
         irritation in Lundy.  A discharge summary by a doctor dated 
 
         August 6, 1982 stated that claimant's lumbosacral spine "showed 
 
         essentially no abnormality.O  The hearing deputy after reviewing 
 
         all the medical evidence of record concluded that claimant had a 
 
         five percent permanent partial impairment and invoked the 
 
         agency's expertise in dealing with medical evidence and 
 
         causation.  The record was silent as to the existence of extent 
 
         of any permanent partial impairment.  On appeal it was concluded 
 
         that the agency's experience in dealing with medical evidence and 
 
         causation should only be used in place of direct medical evidence 
 
         where the lay testimony and evidence is overwhelming and the 
 
         accompanying medical evidence is inconclusive or even 
 
         nonexistent.  The wealth of evidence was that claimant in Lundy 
 
         suffered only from a lumbosacral strain.  Claimant was awarded 
 
         temporary total disability from July 24, 1982 to June 17, 1983 
 
         and took nothing further from the proceeding.
 
         
 
              Lundy was cited in an appeal decision filed on November 13, 
 
         1985 entitled Franklin v. Hazel L. Veldhuizen.  In Franklin 
 
         claimant alleged that he sustained a permanent partial impairment 
 
         to his whole body as the result of an alleged permanent 
 
         aggravation of a preexisting back condition which was allegedly 
 
         caused by a right knee condition.  Claimant had sustained a 
 
         scheduled permanent partial disability to his right lower 
 
         extremity.  It was concluded in the appeal decision that there 
 
         was an absence or lacking of medical evidence indicating claimant 
 
         suffered a permanent material aggravation.  It was observed that 
 
         under appropriate circumstances agency expertise may be utilized 
 
         to determine causal connection when medical evidence,is lacking; 
 
         however, this expertise must be used with care and in this case 
 
         it was concluded that claimant's back condition was of a 
 
         temporary nature only.
 
         
 
              In the instant case there is no evidence claimant was 
 
         temporarily totally disabled because of his right arm.  Further, 
 
         there is no expert testimony or evidence that claimant suffers 
 
         permanent impairment to the right arm.  Agency expertise is not a 
 
         substitute for competent expert opinions on permanent disability.  
 
         All of the experts concluded claimant has no permanent impairment 
 
         to the right arm even though he may experience occasional 
 
         aggravation thereof if he overuses the arm.
 
         
 
              Due to the fact that claimant has not suffered loss or loss 
 
         of use of his right extremity, there is no liability on the part 
 
         of the second injury fund.  Anderson v. Second Injury Fund, 262 
 
         N.W.2d 789 (Iowa 1978).
 
         
 

 
         
 
         
 
         
 
         BERTLSHOFER V. FRUEHAUF CORPORATION
 
         Page  12
 
         
 
         
 
                                 FINDINGS OF FACT
 
         
 
              WHEREFORE, the following facts are found:
 
         
 
              1.  On August 19, 1983 claimant suffered an injury to his 
 
         left arm while at work.
 
         
 
              2.  As a result of his injury, claimant suffered a permanent 
 
         partial impairment to the left arm equal to ten percent.
 
         
 
              3   As a result of his injury, claimant underwent an 
 
         intermittent healing period over the following periods of time:
 
         
 
              a.  August 20 through September 25, 1983     5 weeks, 4 days
 
         
 
              b.  September 28 through January 22, 1984   16 weeks, 5 days
 
         
 
              c.  April 2 through May 20, 1984             7 weeks  
 
              d.  June 13 through July 1, 1984             2 weeks, 5 days
 
         
 
              e.  August 21 through September 9, 1984      2 weeks, 6 days
 
         
 
              f.  October 13, 1984 through July 1, 1985   37 weeks, 3 
 
 
 
         
 
         
 
         
 
         
 
         BERTLSHOFER V. FRUEHAUF CORPORATION
 
         Page  13
 
         
 
         
 
              days
 
                                                  TOTAL   72 weeks, 2 days
 
         
 
              4.  Claimant achieved maximum medical recovery from his left 
 
         arm injury on July 31, 1985; he returned to work on July 2, 
 
         1985.
 
         
 
              5.  In September 1983 claimant began to experience pain in 
 
         his right arm.
 
         
 
              6.  The pain in claimant's right arm was the result of 
 
         repetitive or cumulative trauma at work.
 
         
 
              7.  Claimant gave notice pursuant to section 85.23, The 
 
         Code, of his injury to his right arm on or about July 27, 1984.
 
         
 
              8.  Claimant has missed no time off work because of the 
 
         injury to his right arm.
 
         
 
              9.  All medical expenses concerning both of claimant's arms 
 
         have been paid.
 
         
 
             10.  Claimant has suffered no permanent impairment to his 
 
         right arm.
 
         
 
             11.  Claimant's rate of compensation is $229.34.
 
         
 
             12.  Claimant has been paid 34 weeks of healing period and 25 
 
         weeks of permanent partial disability benefits.
 
         
 
                                CONCLUSIONS OF LAW
 
         
 
              THEREFORE, IT IS CONCLUDED:
 
         
 
              Claimant has proven by a preponderance of the evidence that 
 
         on August 19, 1983 he received an injury to his left arm arising 
 
         out of and in the course of his employment.
 
         
 
              Claimant has proven by a preponderance of the evidence that 
 
         there is a causal relationship between his injury and the 
 
         disability upon which this claim is based.
 
         
 
              Claimant has proven by a preponderance of the evidence that 
 
         as a result of his injury he is entitled to seventy-two and 
 
         two-sevenths (72 2/7) weeks of healing period benefits and 
 
         twenty-five (25) weeks of permanent partial disability benefits.
 
         
 
              Claimant has proven by a preponderance of the evidence that 
 
         commencing about September 1983 he began to develop a cumulative 
 
         injury to his right arm which arose out of and in the course of 
 
         his employment.
 
         
 
              Defendants have proven by a preponderance of the evidence 
 
         that claimant failed to give notice of his injury to his right 
 
         arm until July 27, 1984 and thus claimant is barred from 
 
         recovering for injuries to his right arm prior to April 30, 
 
         1984.
 
         
 

 
         
 
         
 
         
 
         BERTLSHOFER V. FRUEHAUF CORPORATION
 
         Page  14
 
         
 
         
 
              Claimant has failed to prove by a preponderance of the 
 
         evidence that he suffered temporary total or permanent partial 
 
         disability to his right arm.
 
         
 
              Claimant has failed to prove by a preponderance of the 
 
         evidence that he is entitled to recover benefits against the 
 
         second injury fund of Iowa.
 
         
 
                                      ORDER
 
         
 
              IT IS THEREFORE ORDERED that as a result of the injury of 
 
         August 19, 1983, defendants shall pay unto claimant additional 
 
         healing period benefits equal to thirty-eighty and two-sevenths 
 
         (38 2/7) weeks at his rate of two hundred twenty-nine and 34/100 
 
         dollars ($229.34). All Accrued payments are to be made in a lump 
 
         sum together with statutory interest.
 
         
 
              IT IS FURTHER ORDERED that claimant take nothing as a result 
 
         of his injury to his right arm.
 
         
 
              IT IS FURTHER ORDERED that claimant take nothing from the 
 
         second injury fund of Iowa.
 
         
 
              The costs of this action are taxed to the employer.
 
         
 
              The employer shall file a claim activity report in thirty
 
         (30) days.
 
         
 
              Signed and filed this 16th day of October, 1986.
 
         
 
         
 
         
 
         
 
         
 
                                             STEVEN E. ORT
 
                                             DEPUTY INDUSTRIAL COMMISSIONER
 
         
 
         Copies To:
 
         
 
         Mr. James P. Hoffman
 
         Attorney at Law
 
         Middle Road
 
         Keokuk, Iowa 52632-1066
 
         
 
         Mr. Elliot R. McDonald, Jr.
 
         Attorney at Law
 
         3432 Jersey Ridge Road
 
         Davenport, Iowa 52807
 
         
 
         
 
         
 
         Ms. Shirley A. Steffe
 
         Assistant Attorney General
 
         Tort Claims Division
 
         Hoover State Office Bldg.
 
         Des Moines, Iowa 50319
 
 
 
         
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                                   1100; 1402.50; 1802
 
                                                   2207; 2209; 2401
 
                                                   Filed: October 16, 1986
 
                                                   STEVEN E. ORT
 
         
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         EDWARD F. BERTLSHOFER,
 
         
 
              Claimant,
 
         
 
         VS.
 
                                                  File Nos. 742752/764496
 
         FRUEHAUF CORPORATION,
 
                                                   A R B I T R A T I 0 N
 
              Employer,
 
                                                      D E C I S I 0 N
 
         CNA INSURANCE COMPANY,
 
         
 
              Insurance Carrier,
 
         
 
         and
 
         
 
         SECOND INJURY FUND OF IOWA,
 
         
 
              Defendants.
 
         
 
         
 
         1100; 1402.50; 1802; 2207; 2209; 2401
 
         
 
              Claimant injured his left arm in August 1983 which caused 
 
         ten percent impairment.  Claimant alleged subsequent injury to 
 
         right arm as a result of cumulative trauma and sought benefits 
 
         against the employer and second injury fund.  Second injury fund 
 
         found not liable because  there was no permanent impairment to 
 
         claimant's right arm.  Claimant was found to have work-related 
 
         injury to right arm entitling him to section 85.27 benefits, but 
 
         he had no lost time.  Defendants' notice defense to right arm 
 
         injury found valid up to ninety days before claimant gave notice, 
 
         but employer found liable for medical expenses thereafter. 
 
         McKeever cited.
 
         
 
              Claimant's healing period for left arm injury was extended 
 
         by thirty-eight weeks.  Period of thirty-eight weeks covered 
 
         general plant layoff when claimant was not working, could not 
 
         return to substantial employment, and had not achieved maximum 
 
         recovery.  Healing period cutoff on date of maximum recovery.
 
         
 
         
 
         
 
 
 
 
 
 
 
                                                
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         LLOYD L. HANSON and VALORA
 
         J. HANSON, Administrators of
 
         DENNIS L. HANSON, Deceased,
 
         
 
              Claimants,
 
         
 
         VS.                                        File No. 742863
 
         
 
                                                       A P P E A L
 
         SHERMAN REICHELT,
 
                                                     D E C I S I 0 N
 
              Employer,
 
         
 
         and
 
         
 
         FARM BUREAU MUTUAL INSURANCE COMPANY,
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         
 
                              STATEMENT OF THE CASE
 
         
 
              Claimants appeal from an arbitration decision denying all 
 
         compensation because they had not established that decedent 
 
         received an injury which arose out of and in the course of his 
 
         employment.
 
         
 
              The record on appeal consists of the transcript of the 
 
         arbitration hearing and joint exhibits 1 through 30.  Both 
 
         parties filed briefs on appeal.
 
         
 
                                      ISSUES
 
         
 
              The issues raised by claimants on appeal are whether the 
 
         injury received arose out of and in the course of decedent's 
 
         employment and whether his employment aggravated his injuries.
 
         
 
                              REVIEW OF THE EVIDENCE
 
         
 
              The arbitration decision adequately and accurately reflects 
 
         the pertinent evidence and it will not be reiterated herein.
 
         
 
                                APPLICABLE LAW
 
         
 
              The citations of law in the arbitration decision are 
 
         appropriate to the issues and the evidence.
 
         
 
         
 
         
 
         
 
                                     ANALYSIS
 
         
 
              The analysis of the evidence in conjunction with the law in 
 
         the arbitration decision is adopted.
 
         
 

 
         
 
         
 
         
 
         HANSON V. SHERMAN REICHELT
 
         Page   2
 
         
 
         
 
                                 FINDINGS OF FACT
 
         
 
              1.  Claimants' decedent, Dennis L. Hanson, was employed by 
 
         Sherman Reichelt to assist in haymaking on the afternoon of June 
 
         24, 1983.
 
         
 
              2.  Decedent had been employed by Reichelt as a farmhand on 
 
         the immediately preceding three days.
 
         
 
              3.  Decedent had received a check from Reichelt dated June 
 
         13, 1983 and contained the notation "haybaling."
 
         
 
              4.  The Reichelt farmstead lies approximately two miles east 
 
         of Kellogg, Iowa, approximately midway between the Newton and 
 
         Grinnell weather reporting stations.
 
         
 
              5.  Reported maximum temperatures at the Grinnell station on 
 
         June 21, 22, 23, and 24, 1983 were 86, 92, 91, and 95 degrees, 
 
         respectively.
 
         
 
              6.  Reported maximum temperatures at the Newton station on 
 
         June 21, 22, 23, and 24, 1983 were 88, 88, 91, and 90 degrees, 
 
         respectively.
 
         
 
              7.  A trace of rain was reported at the Grinnell station for 
 
         June 24, 1983; no precipitation was reported at the Newton 
 
         station for that date.
 
         
 
              8.  Southeast Iowa was hotter and dryer than normal in June 
 
         1983 with high humidities adding to the discomfort level.
 
         
 
              9.  Reichelt, decedent, and Dennis Van Maanen, a local 
 
         farmer who had contracted to buy hay from Reichelt, commenced 
 
         haymaking at approximately 2:30 p.m. on June 24, 1983.
 
         
 
             10.  Van Maanen purchased 316 bales of hay from Reichelt.  
 
         One hundred twenty-seven of these were baled that afternoon and 
 
         stacked on hayracks attached to the baler.  One hundred 
 
         eighty-nine bales were already baled and were loaded from the 
 
         ground onto hayracks.
 
         
 
             11.  Decedent handled approximately 35 of the baled and 
 
         stacked bales and approximately 153 of the already baled and then 
 
         loaded bales.
 
         
 
              12.  Each bale weighed approximately 60 pounds.
 
         
 
              13.  Decedent spent considerable time driving empty and full 
 
         hayracks to and from the field.  He waited in a pickup truck 
 
         while bales were stacked.
 
         
 
              14.  Decedent engaged in manual labor for approximately one 
 
         and one-half hours on June 24, 1983.  He worked no more than 25 
 
         minutes without a break from manual labor.
 
         
 
              15.  Decedent was not exposed to artificial heat on June 24, 
 
         1983.
 
         
 
              16.  A workman is an individual generally involved in manual 
 

 
         
 
         
 
         
 
         HANSON V. SHERMAN REICHELT
 
         Page   3
 
         
 
         
 
         labor.
 
          
 
              17.  The conditions of decedent's employment did not expose 
 
         him of a greater or more intense heat than that experienced by 
 
         any of the workmen in the community in general or the general 
 
         public.
 
         
 
              18.  Decedent suffered from a schizo-affective disorder 
 
         which oral ingestion of Lithium Carbonate and Benztropine 
 
         (Cogentin) and intramuscular ingestion of Prolixin Decanate were 
 
         prescribed.
 
         
 
              19.  Decedent had not always been in compliance with his 
 
         prescribed medical regimen.
 
         
 
              20.  Vials of Lithium Carbonate and Benztropine for 
 
         prescriptions for each medication filled on April 26, 1983 and 
 
         May 20, 1983 each contained several to many days dosages of the 
 
         prescribed medications.
 
         
 
              21. Decedent was not fully compliant with his Lithium and 
 
         Cogentin regimen in June 1983.
 
         
 
              22. Decedent was to receive an injection of Prolixin every 
 
         two weeks.
 
         
 
              23.  Decedent was generally compliant with the Prolixin 
 
         regimen from December 6, 1982 through February 14, 1983 and from 
 
         March 16, 1983 through May 20, 1983.
 
         
 
              24.  Decedent next received a Prolixin injection June 3, 
 
         1983 and did not receive another injection.
 
         
 
              25.  Cogentin may interfere with the body's sweating 
 
         mechanism.  Prolixin may have a like effect.
 
         
 
              26.  Lithium Carbonate may create the condition of 
 
         nephrogenic diabetes insipidus, which condition results in 
 
         increased thirst and polyuria.
 
         
 
         
 
         
 
              27.  Decedent had increased thirst and polyuria in February 
 
         and March 1983.  He had drunk water and iced tea in larger 
 
         amounts for several years prior to June 1983.
 
         
 
              28.  Nephrogenic diabetes insipidus may cause dehydration, 
 
         but does not do so if sufficient water is drunk.
 
         
 
              29.  Decedent took a water canteen to the Reichelt farmstead 
 
         on June 24, 1983.  He was observed drinking water in the field on 
 
         that date.
 
         
 
              30.  Prolixin may interfere with the body thermoregulatory 
 
         mechanism.  It is not established that an injection of Prolixin 
 
         21 days prior to a heat injury would have that result.
 
         
 
              31.  It is not shown that decedent ingested his prescribed 
 
         medications in amounts sufficient to have increased his 
 

 
         
 
         
 
         
 
         HANSON V. SHERMAN REICHELT
 
         Page   4
 
         
 
         
 
         susceptibility to heat injury.
 
         
 
              32.  Decedent remained in the field for approximately 30 
 
         minutes after he quit haymaking.
 
         
 
              33.  Opinions as to whether decedent was additionally 
 
         injured while in the field refer to additional exposure times 
 
         substantially greater than that time span.
 
         
 
                                CONCLUSION OF LAW
 
         
 
              Claimants have not established that their decedent received 
 
         an injury on June 24, 1983 which arose out of and in the course 
 
         of his employment.
 
         
 
              WHEREFORE, the decision of the deputy is affirmed.
 
         
 
                                      ORDER
 
         
 
              THEREFORE, it is ordered:
 
         
 
              That claimants take nothing further from these proceedings.
 
         
 
              That claimants pay the costs of this appeal including the 
 
         transcription of the hearing proceeding.
 
         
 
         
 
         
 
         
 
         
 
         
 
         
 
         
 
         
 
              Signed and filed this 31st day of December, 1987.
 
         
 
         
 
         
 
         
 
         
 
                                                 DAVID E. LINQUIST
 
                                                 INDUSTRIAL COMMISSIONER
 
         
 
         
 
         Copies To:
 
         
 
         Mr. Nathan B. Updegraff
 
         Attorney at Law
 
         101 First Avenue West
 
         P.O. Box 845
 
         Newton, Iowa 50208
 
         
 
         Mr. E. J. Giovannetti
 
         Attorney at Law
 
         Suite 111, Terrace Center
 
         2700 Grand Avenue
 
         Des Moines, Iowa 50312
 
 
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                                 1103 - 1402.30
 
                                                 Filed December 31, 1987
 
                                                 DAVID E. LINQUIST
 
         
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         LLOYD L. HANSON and VALORA
 
         J. HANSON, Administrators of
 
         DENNIS L. HANSON, Deceased,
 
         
 
              Claimants,
 
                                                      File No.  742863
 
         VS.
 
                                                         A P P E A L
 
         SHERMAN REICHELT,
 
                                                       D E C I S I 0 N
 
              Employer,
 
         
 
         and
 
         
 
         FARM BUREAU MUTUAL INSURANCE COMPANY,
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
         
 
         
 
         1103 - 1402.30
 
         
 
              Decedent's death was caused by heat exhaustion.  The work 
 
         conditions did not expose him to a greater heat than the general 
 
         public.  It was not proved that decedent ingested prescribed 
 
         medications that increased his susceptibility to heat injury.  It 
 
         was also not proved that decedent was additionally injured due to 
 
         additional exposure.  Decedent's injury did not arise out of and 
 
         in the course of his employment.
 
 
 
         
 
 
            
 
            Page   1
 
            
 
            
 
            
 
            
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            LLOYD L. HANSON and VALORA    :
 
            J. HANSON, Administrators of  :
 
            DENNIS L. HANSON, Deceased,   :
 
                                          :
 
                 Claimants,               :         File No. 742863
 
                                          :
 
            vs.                           :           R E M A N D
 
                                          :
 
            SHERMAN REICHELT,             :         D E C I S I O N
 
                                          :
 
                 Employer,                :
 
                                          :
 
            and                           :
 
                                          :
 
            FARM BUREAU MUTUAL            :
 
            INSURANCE COMPANY,            :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ____________________________________________________________
 
            
 
                                   introduction
 
            
 
                 This case is returned to the Industrial Commissioner on 
 
            remand from the Iowa Supreme Court for proceedings 
 
            consistent with the Court's decision in Hanson v. Reichelt, 
 
            452 N.W.2d 164 (Iowa 1990).
 
            
 
                 The record on remand consists of the transcript of the 
 
            arbitration hearing, of joint exhibits 1 through 30 and of 
 
            the filings and stipulations of the parties throughout this 
 
            proceeding.  Both parties filed briefs on remand.
 
            
 
                                      issues
 
            
 
                 As the Supreme Court has remanded for proceedings 
 
            consistent with its decision, all issues initially set for 
 
            resolution in the original arbitration proceeding are issues 
 
            on remand.  Issues are as follows:
 
            
 
                 1.  Whether claimants' decedent received an injury 
 
            which arose out of and in the course of his employment;
 
            
 
                 2.  Whether a causal relationship exists between that 
 
            injury and the disability and subsequent death;
 
            
 
                 3.  Whether claimants' decedent was entitled to 
 
            temporary total disability benefits; and,
 
            
 
                 4.  Whether claimants' decedent was entitled to payment 
 
            of medical costs related to the alleged injury.
 
            
 
                 We note that the hearing assignment order filed October 
 
            25, 1985 does not include the issue of entitlement to 
 
            medical benefits under section 85.27.  The parties agreed 
 
            such was an issue in the prehearing report filed January 7, 
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            1986, however.  Additionally, pretrial conference notes of 
 
            the deputy who conducted the pretrial conference on October 
 
            [apparently] 21, 1985 indicate that 85.27 medical benefits 
 
            is an issue.  We also note that, in claimants' brief on 
 
            remand at page 7, claimants state the following:  "Based on 
 
            this evidence, the administrators of Dennis L. Hanson's 
 
            estate are entitled to full and complete recovery of funeral 
 
            benefits, compensation benefits, and medical benefits for 
 
            his injuries under the Iowa Worker's [sic] Compensation 
 
            Act."  Such represents the undersigned's first notice that 
 
            funeral or other death benefits, or both, are claimed in 
 
            this matter.  The hearing assignment order filed on October 
 
            25, 1985 does not list death benefits as an issue.  The 
 
            pretrial conference notes of October [apparently] 21, 1985 
 
            contain under issues the following notation:  "X  death 
 
            case."  The issue of any entitlement to death benefits was 
 
            not raised in the prehearing report filed in this matter on 
 
            January 7, 1986, however.
 
            
 
                                review of evidence
 
            
 
                 On agreement of the parties, no further evidence was 
 
            taken after remand.  The arbitration decision filed April 
 
            30, 1986 and the ruling on motion for rehearing filed May 
 
            16, 1986 set forth the pertinent evidence.  It will not be 
 
            restated herein.
 
            
 
                           applicable law and analysis
 
            
 
                 In light of the Supreme Court's adoption of an actual 
 
            risk test in elemental exposure cases in Hanson v. Reichelt, 
 
            452 N.W.2d 164 (Iowa 1990), we reconsider whether claimants' 
 
            decedent received an injury which arose out of and in the 
 
            course of his employment, which injury resulted in his 
 
            disability and subsequent death.
 
            
 
                 The claimants have the burden of proving by a 
 
            preponderance of the evidence that the decedent received an 
 
            injury on June 24, 1983 which arose out of and in the course 
 
            of his employment. McDowell v. Town of Clarksville, 241 
 
            N.W.2d 904 (Iowa 1976); Musselman v. Cent. Tel. Co., 261 
 
            Iowa 352, 154 N.W.2d 128 (1967). 
 
            
 
                 An employee is entitled to compensation for any and all 
 
            personal injuries which arise out of and in the course of 
 
            the employment.  Section 85.3(1).
 
            
 
                 The injury must both arise out of and be in the course 
 
            of the employment.  Crowe v. DeSoto Consol. School Dist., 
 
            246 Iowa 402, 68 N.W.2d 63 (1955) and cases cited at pp. 
 
            405-406 of the Iowa Report.  See also Sister Mary Benedict 
 
            v. St. Mary's Corp., 255 Iowa 847, 124 N.W.2d 548 (l963) and 
 
            Hansen v. State of Iowa, 249 Iowa 1147, 91 N.W.2d 555 
 
            (1958).
 
            
 
                 The words "out of" refer to the cause or source of the 
 
            injury.  Crowe v. DeSoto Consol. School Dist., 246 Iowa 402, 
 
            68 N.W.2d 63 (1955). 
 
            
 
                 The words "in the course of" refer to the time and 
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            place and circumstances of the injury.  McClure v. Union, 
 
            et al., Counties, 188 N.W.2d 283 (Iowa 1971); Crowe v. 
 
            DeSoto Consol. School Dist., 246 Iowa 402, 68 N.W.2d 63 
 
            (1955).
 
            
 
                 "An injury occurs in the course of the employment when 
 
            it is within the period of employment at a place the 
 
            employee may reasonably be, and while he is doing his work 
 
            or something incidental to it."  Cedar Rapids Community 
 
            School Dist. v. Cady, 278 N.W.2d 298 (Iowa 1979), McClure v. 
 
            Union, et al., Counties, 188 N.W.2d 283 (Iowa 1971); 
 
            Musselman v. Cent. Tel. Co., 261 Iowa 352, 154 N.W.2d 128 
 
            (1967). 
 
            
 
                 The claimants have the burden of proving by a 
 
            preponderance of the evidence that the injury of June 24, 
 
            1983 is causally related to the disability on which they now 
 
            base their claim.  Bodish v. Fischer, Inc., 257 Iowa 516, 
 
            133 N.W.2d 867 (1965).  Lindahl v. L. O. Boggs, 236 Iowa 
 
            296, 18 N.W.2d 607 (1945).  A possibility is insufficient; 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 
 
            Hosp., 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. Cent. Tel. Co., 261 
 
            Iowa 352, 154 N.W.2d 128 (1967).
 
            
 
                 An employer takes an employee subject to any active or 
 
            dormant health impairments, and a work connected injury 
 
            which more than slightly aggravates the condition is 
 
            considered to be a personal injury.  Ziegler v. United 
 
            States Gypsum Co., 252 Iowa 613, 620, 106 N.W.2d 591 (1960), 
 
            and cases cited.
 
            
 
                 In our initial arbitration decision, we discussed the 
 
            law concerning heat injuries in Iowa as it then existed.  In 
 
            Hanson, our Supreme Court disavowed the general 
 
            public-increased risk rule and adopted the actual risk rule 
 
            in cases involving injuries from exposure to the elements 
 
            stating:
 
            
 
                 If the nature of the employment exposes the 
 
                 employee to the risk of such an injury, the 
 
                 employee suffers an accidental injury arising out 
 
                 of and during the course of the employment.  And 
 
                 it makes no difference that the risk was common to 
 
                 the general public on the day of the injury.
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
            
 
            Hanson, at 168.
 
            
 
                 The Hanson Court also stated the following by way of 
 
            dicta:
 
            
 
                 One noted authority criticizes the general 
 
                 public-increased risk rule because of the way 
 
                 courts define the general public:
 
            
 
                       The heart of the difficulty is almost 
 
                    entirely in defining the general public with 
 
                    which the comparison is made.  It is here 
 
                    that many of the negative cases have gone 
 
                    wide of the mark.  Clearly, since the object 
 
                    of the comparison between the exposure of 
 
                    the employee and the exposure of the public 
 
                    is to isolate and identify the distinctive 
 
                    characteristics of this employment, the 
 
                    comparison should be made with a broad cross 
 
                    section of the public having no 
 
                    characteristics specially selected because 
 
                    they resemble those of the employment.  
 
                    Because most of these cases arise during 
 
                    extreme hot, cold, rainy, or stormy weather, 
 
                    the most direct way to approach a working 
 
                    rule is to ask:  What does the average man, 
 
                    [sic] free of the obligation of any 
 
                    particular employment, do when it is twenty 
 
                    below, or a hundred in the shade, or 
 
                        as a farmhand assisting in all aspects of harvesting hay, by 
 
            the nature of his employment, was obligated to remain 
 
            exposed to the then-existing elements, that is, high 
 
            humidity and high heat.  Given the nature of his employment, 
 
            he, to paraphrase Larson, did not have the option of coming 
 
            into the air conditioning.  While we continue to be troubled 
 
            by the substantial discrepancies between decedent's actual 
 
            approximate exposure times and the exposure times listed in 
 
            claimants' hypotheticals, we do not find that discrepancy 
 
            controlling under the actual risk doctrine.  As we noted in 
 
            the arbitration decision, Jon D. Gibson, M.D., Craig A. 
 
            Shadur, M.D., and R. F. Frech, M.D., all apparently concur 
 
            that haying in high ambient temperatures by its nature 
 
            increases an individual's risk of heat injury.  That medical 
 
            conclusion is consistent with common sense as well.
 
            
 
                 Paul From, M.D., has opined that decedent's demise was 
 
            not aggravated, accelerated or hastened by his work 
 
            activities on the afternoon on which he became ill.  We do 
 
            not accept the doctor's opinion.  It is inconsistent with 
 
            the opinions of Drs. Gibson and Shadur who appear to have 
 
            approximately equal expertise in the area of heatstroke 
 
            injury and it is not supported by the record presented.  
 
            Nothing in the record but for Dr. From's opinion supports a 
 
            finding that decedent would have suffered a heatstroke on 
 
            the afternoon of June 24, 1983 even had he not had elemental 
 
            exposure to heat while engaging in some level of physical 
 
            exertion.
 
            
 
                 We again consider that decedent was taking psychotropic 
 
            medications which potentially could have made him arises out of and in the course of 
 
            the employment.  Medical treatment provided need not reduce 
 
            impairment or disability.  Zimmerman v. L. L. Pelling Co., 
 
            II Iowa Industrial Commissioner Report 462, 463 (App. Decn. 
 
            1982).  Webster's Ninth New Collegiate Dictionary defines 
 
            "reasonable" as "agreeable to reason; not extreme or 
 
            excessive; moderate; fair."
 
            
 
                 Section 85.27 expressly states only that the treatment 
 
            must be reasonable, not that it must be necessary.  It 
 
            cannot be inferred from the section or from the common 
 
            definition of "reasonable" that treatment must be absolutely 
 
            necessary before such is permissible as reasonable 
 
            treatment.  Askelson v. J & M Inc. of Badger, file number 
 
            771130 (Arb. Decn., March 29, 1989).
 
            
 
                 This case does not involve the issue of the employer's 
 
            right to select care.  Yet, we note that the employer's 
 
            right to select the provider of medical treatment when such 
 
            exists does not include the right to determine how an 
 
            injured worker should be diagnosed, evaluated, treated or 
 
            other matters of professional medical judgment.  Graves v. 
 
            Crouse Cartage Co., file number 723352 (Arb. Decn., July 27, 
 
            1987); Pote v. Mikow Corp., file number 694639 
 
            (Review-Reopening Decn., June 17, 1986).
 
            
 
                 In parenthetically addressing, albeit not deciding, 
 
            this issue in the arbitration decision, we noted the 
 
            following:
 
            
 
                 . . . [W]e have reviewed the evidence and law as 
 
                 it pertains to the issue of whether care rendered 
 
                 after decedent's June 26, 1983 cardiorespiratory 
 
                 arrest was reasonable and necessary.  We believe 
 
                 that defendants' position on that issue is not 
 
                 wholly untenable under either our law or under 
 
                 current AMA ethical standards regarding 
 
                 withholding or withdrawing life-prolonging medical 
 
                 treatment, especially after the seventh 
 
                 post-cardiac arrest day, that is, after the time 
 
                 at which Dr. Gibson opined a prognosis could be 
 
                 made.  Hence, a fair question remains as to the 
 
                 section 85.27 issue and it cannot be said that 
 
                 claimants' position would have wholly prevailed 
 
                 had that issue been reached.
 
            
 
                 We are faced with an issue of first impression in this 
 
            jurisdiction.  We have little judicial guidance on the 
 
            question before us, that is, at what point after significant 
 
            brain anoxia has occurred does it become unreasonable to 
 
            employ highly sophisticated medical technology to maintain 
 
            physiological human life such that the employer and its 
 
            insurance carrier are no longer liable for costs related to 
 
            the utilization of such technology and the maintenance of 
 
            such physiological life.  No direct and little indirect 
 
            guidance on this issue is available.
 
            
 

 
            
 
            Page   7
 
            
 
            
 
            
 
            
 
                 On June 25, 1990, the United States Supreme Court 
 
            decided Cruzan v. Director, Mo. Dep't of Health, 110 S. Ct. 
 
            2841 (1990), however.  Cruzan decided the narrow issue of 
 
            whether a state may constitutionally require that evidence 
 
            of an incompetent's wishes as to the withdrawal of 
 
            life-sustaining treatment must be proved by clear and 
 
            convincing evidence.  Hence, Cruzan is not directly on 
 
            point.  In discussing the constitutionality of the higher 
 
            burden of proof, the Cruzan Court stated the following as 
 
            regards the decision to maintain or withdraw life-sustaining 
 
            treatment:
 
            
 
                 The more stringent the burden of proof a party 
 
                 must bear, the more that party bears the risk of 
 
                 an erroneous decision.  We believe that Missouri 
 
                 may permissibly place an increased risk of an 
 
                 erroneous decision on those seeking to terminate 
 
                 an incompetent individual's life-sustaining 
 
                 treatment.  An erroneous decision not to terminate 
 
                 results in a maintenance of the status quo; the 
 
                 possibility of subsequent developments such as 
 
                 advancments [sic] in medical science, the 
 
                 discovery of new evidence regarding the patient's 
 
                 intent, changes in the law, or simply the 
 
                 unexpected death of the patient despite the 
 
                 administration of life-sustaining treatment, at 
 
                 least create the potential that a wrong decision 
 
                 will eventually be corrected or its impact 
 
                 mitigated.  An erroneous decision to withdraw 
 
                 life-sustaining treatment, however, is not 
 
                 susceptible of correction.
 
            
 
            Cruzan, at 2854.
 
            
 
                 We quote Cruzan not to adopt its standard of proof in 
 
            this matter, but only because we believe the issue of the 
 
            reasonableness of maintaining care can be viewed 
 
            appropriately only when one considers that "[a]n erroneous 
 
            decision to withdraw life-sustaining treatment, however, is 
 
            not susceptible of correction."  Given such, it cannot be 
 
            said that the decision of decedent's medical providers to 
 
            continue care, including use of a respirator and dialysis 
 
            from the June 26, 1983 cardiorespiratory arrest through 
 
            weaning from the respirator on or about July 14, 1983 until 
 
            decedent's subsequent expiration on July 18, 1983, was 
 
            unreasonable.  Dr. Gibson, decedent's primary treating 
 
            physician, opined that 4-7 days following the 
 
            cardiorespiratory arrest, decedent's best likely prognosis 
 
            was of a chronic vegetative state with perhaps some 
 
            spontaneous motor activity, but no personal hygiene, no 
 
            ability to think creatively or intelligently, and no ability 
 
            to have normal muscular function with normal locomotion or 
 
            activity.  Dr. Gibson also reported that the question of 
 
            decedent's clinical status had been under consideration on a 
 
            daily basis from the arrest until the respirator was 
 
            discontinued.  The doctors consulted with decedent's family 
 
            regarding discontinuing the respirator.  Given the grave 
 
            prognosis, all affected agreed to discontinuation, even 
 
            though by some criteria brain death still could not be 
 
            established at discontinuation.  Dr. Gibson characterized 
 

 
            
 
            Page   8
 
            
 
            
 
            
 
            
 
            discontinuation at that time as "reasonable and prudent 
 
            medical judgment."  The above facts suggest that decedent's 
 
            attending physicians took a conservative approach in 
 
            determining when and whether decedent was clinically brain 
 
            dead.  The physicians' approach cannot be considered 
 
            unreasonable, however.  While in hindsight, Dr. From and 
 
            Thomas E. Summers, M.D., opined that decedent was brain dead 
 
            after the cardiorespiratory arrest, and while Dr. Gibson, 
 
            also in hindsight, appears to at least partially concur, the 
 
            reasonableness of care is assessed by reviewing 
 
            circumstances surrounding the giving of the care, not by 
 
            reviewing the actual results of care.  As the Cruzan Court 
 
            stated, an erroneous decision to withdraw life-sustaining 
 
            treatment would not have been susceptible to correction.  As 
 
            Dr. Gibson stated, he and apparently Dr. Shadur as well were 
 
            not absolutely certain that all criteria for brain death 
 
            existed at the time claimants' decedent was weaned from the 
 
            respirator.
 
            
 
                 Additionally, decisions to terminate treatment in cases 
 
            such as this do not involve simply ending the physiologic 
 
            functioning of a biological mass.  They involve the 
 
            acceptance of the ending of a particular human life.  That 
 
            human life was lived within the context of relationships 
 
            with other particular humans.  Dr. From has expressed the 
 
            belief that, once a person is declared brain dead, the 
 
            person should not be kept alive beyond a reasonable time in 
 
            which the family survivors [adjust].  To be suddenly and 
 
            inexplicably faced with the loss of another to whom one has 
 
            deep attachments and for whom one has great expectations is 
 
            not a reality that the ordinary human can face and accept 
 
            with any immediacy.  Given such, it cannot be said that 
 
            decedent was on physiologically sustaining medical equipment 
 
            beyond a reasonable time during which his family could 
 
            adjust to the reality of his state and, in consultation with 
 
            his physicians, make appropriate decisions as to what 
 
            treatment, if any, should continue to be rendered.  We note 
 
            also that, after consulting with decedent's treating 
 
            physicians, the family accepted the physicians' opinions as 
 
            to decedent's prognosis and their advice regarding 
 
            termination of extraordinary treatment.  Hence, the family, 
 
            given the profundity of the decision with which it was 
 
            faced, also acted reasonably and without a desire to prolong 
 
            care beyond any reasonable or necessary period.
 
            
 
                 For the above reasons, we find that care rendered from 
 
            decedent's cardiorespiratory arrest on June 26, 1983 through 
 
            decedent's expiration on July 18, 1983 was reasonable and 
 
            necessary care under section 85.27 for which the employer is 
 
            liable.
 
            
 
                 We reach the question of whether claimants' decedent 
 
            was entitled to temporary total disability benefits.
 
            
 
                 Section 85.33(1) states that an employer shall pay an 
 
            employee for injury producing temporary total disability 
 
            weekly benefits until the employee has returned to work or 
 
            is medically capable of returning to employment 
 

 
            
 
            Page   9
 
            
 
            
 
            
 
            
 
            substantially similar to the employment in which the 
 
            employee was engaged at the time of injury, whichever occurs 
 
            first.  As decedent never returned to work or became 
 
            medically capable of returning to substantially similar 
 
            employment prior to his expiration, claimants are entitled 
 
            to temporary total disability benefits from June 24, 1983 
 
            through July 18, 1983 at the rate of $91.50 per week.
 
            
 
                 As noted above, in their remand brief, claimants' 
 
            counsel seeks funeral benefits and compensation benefits.  
 
            The hearing assignment order filed does not recite that 
 
            death benefits are an issue in this claim.  Since the 
 
            pretrial conference notes do reflect under issues that this 
 
            is a death case, the omission of the issue from the hearing 
 
            assignment order may be considered a mere scrivener's error 
 
            and the issue will be broached and decided from the evidence 
 
            in the record.
 
            
 
                 Decedent left no conclusively presumed dependents under 
 
            section 85.42.  Decedent also apparently left no one 
 
            actually dependent or mentally or physically incapacitated 
 
            from earning under section 85.44.  Hence, defendants' only 
 
            liability in this matter would arise under section 85.29.  
 
            That section provides that, when injury causes death where 
 
            an employee leaves no dependents, the employer pays the 
 
            reasonable expenses of the employee's sickness and the 
 
            expenses of burial as provided in section 85.28 as well as 
 
            weekly compensation from the date of injury until the date 
 
            of death which has become due and remained unpaid at the 
 
            time of death.  That weekly compensation is payable to the 
 
            estate of the deceased employee.  Section 85.28 provides 
 
            that, where death ensues from injury, the employer shall pay 
 
            reasonable expenses of burial not to exceed $1,000.  
 
            Defendants therefore are liable for funeral expenses for 
 
            decedent in an amount not to exceed $1,000.  Total charges 
 
            with Reese Funeral Home as evidenced in joint exhibit 30, 
 
            subsection 7, were $3,910.08.  The services rendered and the 
 
            charges assessed were reasonable.  Defendants therefore, 
 
            shall pay claimants $1,000 for funeral expenses.
 
            
 
                                 findings of fact
 
            
 
                 THEREFORE, IT IS FOUND:
 
            
 
                 The findings made in the arbitration decision are 
 
            adopted with the following additions:
 
            
 
                 Hanson's employment as a haymaker, whether doing manual 
 
            labor, driving farm equipment or waiting to drive equipment, 
 
            exposed him to high ambient temperature and high humidity 
 
            from which he could not take shelter without abandoning his 
 
            job duties.
 
            
 
                 The nature of Hanson's employment increased his actual 
 
            risk of heatstroke.
 
            
 
                 Hanson suffered some cerebral damage subsequent to his 
 
            heatstroke, but had shown improvement prior to his 
 
            cardiorespiratory arrest.
 
            
 

 
            
 
            Page  10
 
            
 
            
 
            
 
            
 
                 Hanson sustained a cardiorespiratory arrest on June 26, 
 
            1983, which arrest further increased his brain anoxia.
 
            
 
                 The prognosis with hypoxic cerebral damage is difficult 
 
            to establish immediately after such.  A period of some days 
 
            must pass before the prognosis becomes clearer.
 
            
 
                 From 4-7 days following Hanson's cardiorespiratory 
 
            arrest, the best likely prognosis was of a chronic 
 
            vegetative state possibly with some spontaneous motor 
 
            activity and possibly with an ability to maintain a certain 
 
            amount of activity.
 
            
 
                 Hanson was maintained on a ventilator from his 
 
            cardiorespiratory arrest until on or about July 14, 1983.
 
            
 
                 Hanson underwent kidney dialysis until his expiration 
 
            on July 18, 1983.
 
            
 
                 Hanson's physicians monitored his condition from his 
 
            cardiorespiratory arrest until his expiration in order to 
 
            better assess his prognosis.
 
            
 
                 On or about July 14 or 15, 1983, Hanson's physicians, 
 
            in consultation with Hanson's family, decided Hanson should 
 
            be weaned from the respirator and that extraordinary 
 
            measures would not be taken should he undergo a subsequent 
 
            cardiorespiratory arrest.
 
            
 
                 Hanson's family considered and accepted the advice of 
 
            Hanson's attending physicians relative to maintenance and 
 
            withdrawal of treatment for decedent.
 
            
 
                 It is reasonable to keep a brain-dead individual 
 
            functioning physiologically for a reasonable time in which 
 
            the individual's survivors are permitted to adjust to the 
 
            reality of the individual's medical state.
 
            
 
                 The time in which claimants' decedent was 
 
            physiologically maintained was not unreasonable, given the 
 
            totality of the circumstances.
 
            
 
                 Medical care rendered decedent from his 
 
            cardiorespiratory arrest on June 26, 1983 until his 
 
            expiration on July 18, 1983 was reasonable and necessary 
 
            care given the totality of the circumstances.
 
            
 
                                conclusions of law
 
            
 
                 THEREFORE, IT IS CONCLUDED:
 
            
 
                 Claimants have established that their decedent received 
 
            an injury on June 24, 1983 which arose out of and in the 
 
            course of his employment.
 
            
 
                 Claimants have established that their decedent's injury 
 
            of June 24, 1983 was causally related to his temporary total 
 
            disability and subsequent death.
 
            
 
                 Claimants have established that medical care rendered 
 

 
            
 
            Page  11
 
            
 
            
 
            
 
            
 
            to decedent from his cardiorespiratory arrest on June 26, 
 
            1983 until his expiration on July 18, 1983 was reasonable 
 
            and necessary care for which defendants are liable.
 
            
 
                 Claimants have established that decedent's estate is 
 
            entitled to payment of temporary total disability benefits 
 
            from June 24, 1983 through July 18, 1983.
 
            
 
                 Claimants have established their entitlement to funeral 
 
            expenses under section 85.28.
 
            
 
                 Claimants have not established their entitlement to 
 
            payment of any weekly compensation death benefits on account 
 
            of decedent's injury.
 
            
 
                                      order
 
            
 
                 THEREFORE, IT IS ORDERED:
 
            
 
                 Defendants pay decedent's estate temporary total 
 
            disability benefits for the period from June 24, 1983 
 
            through July 18, 1983 at the rate of ninety-one and 50/100 
 
            dollars ($91.50) per week.
 
            
 
                 Defendants pay claimants' medical expenses of decedent 
 
            in dispute, those being medical expenses sustained at Iowa 
 
            Methodist Medical Center from decedent's cardiorespiratory 
 
            arrest on June 26, 1983 through decedent's demise on July 
 
            18, 1983.
 
            
 
                 Defendants pay interest on temporary total disability 
 
            amounts pursuant to Iowa Code section 85.30.
 
            
 
                 Defendants pay the accrued temporary total disability 
 
            amounts in a lump sum.
 
            
 
                 Defendants pay costs of this action, including costs of 
 
            this remand, pursuant to rule 343 IAC 4.33.
 
            
 
                 Defendants file claim activity reports as required by 
 
            this agency pursuant to rule 343 IAC 3.1(2).
 
            
 
                 Signed and filed this ______ day of ____________, 1991.
 
            
 
                 
 
            
 
                 
 
                                          ______________________________
 
                                          HELENJEAN WALLESER
 
                                          DEPUTY INDUSTRIAL COMMISSIONER
 
            
 
            Copies To:
 
            
 
            Mr. Nathan B. Updegraff
 
            Mr. Steven J. Holwerda
 
            Attorneys at Law
 
            101 First Avenue West
 
            P.O. Box 845
 
            Newton, Iowa  50208
 
            
 

 
            
 
            Page  12
 
            
 
            
 
            
 
            
 
            Mr. E. J. Giovannetti
 
            Ms. Valerie A. Fandel
 
            Attorneys at Law
 
            Suite 111, Terrace Center
 
            2700 Grand Avenue
 
            Des Moines, Iowa  50312