BEFORE THE IOWA INDUSTRIAL COMMISSIONER RODNEY COKER, Claimant File No. 745328 vs. A P P E A L OSCAR MAYER & COMPANY, D E C I S I O N Employer, F I L E D Self-Insured, Defendant. MAY 31 1988 IOWA INDUSTRIAL COMMISSIONER STATEMENT OF THE CASE Claimant appeals from an arbitration decision denying benefits. The record on appeal consists of the transcript of the arbitration proceeding; joint exhibits 1 through 12; and defendants' exhibit A. Both parties filed briefs on appeal. ISSUES Claimant states the following issues on appeal: A. Whether there is a causal connection between claimant's injury and the subsequent disability upon which the claim is based. B. The nature and extent of claimant's disability. REVIEW OF THE EVIDENCE The arbitration decision adequately and accurately reflects the pertinent evidence and it will not be set forth 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 is adopted. Dr. Wilson opined that claimant's disability was causally related to his injury of November 6, 1981. Dr. Bishop opined that claimant's disability was caused by degeneration of his preexisting cervical disc herniation and recited findings of cervical degenerative arthritic changes prior to claimant's fall on November 6, 1981. Dr. Wilson examined claimant only once. Dr. Wilson did not treat claimant. Dr. Bishop examined and treated claimant on several occasions over a period of time. Dr. Bishop also noted that claimant did not seek further medical attention for his neck pain for six months after his fall. The testimony of Dr. Bishop will be given the greater weight. Claimant has failed to meet his burden to show that his disability is causally related to his injury of November 6, 1981. FINDINGS OF FACT 1. On November 6, 1981, claimant injured his neck at work. 2. The injury at work may have slightly aggravated a preexisting osteoarthritic condition. 3. Claimant's subsequent disability and medical expenses were not caused by the injury of November 6, 1981. CONCLUSIONS OF LAW Claimant has failed to prove by a preponderance of the evidence that there is a causal relationship between his injury and the disability upon which this claim is based. WHEREFORE, the decision of the deputy is affirmed. ORDER THEREFORE, it is ordered: That claimant take nothing from this proceeding. That each party shall pay the costs they incurred in the original proceeding. Defendant shall pay the cost for the attendance of the court reporter. Claimant is to pay the costs of the appeal. Signed and filed this 31st day of May, 1988. DAVID E. LINQUIST INDUSTRIAL COMMISSIONER Copies To: Mr. Allan Hartsock Attorney at Law Fourth Flr Rock Island Bldg. P.O. Box 4298 Rock Island, Illinois 61204 Mr. Craig A. Levien Mr. Richard M. McMahon Attorneys at Law 600 Union Arcade Bldg. 111 E. Third Street Davenport, Iowa 52801 2602; 1108.50 Filed May 11, 1988 David E. Linquist BEFORE THE IOWA INDUSTRIAL COMMISSIONER RODNEY COKER, Claimant, File No. 745328 vs. A P P E A L OSCAR MAYER & COMPANY, D E C I S I 0 N Employer, Self-Insured, Defendant. 2602; 1108.50 Although medical testimony was conflicting, record showed that there was no causal connection between claimant's injury and his present disability. Claimant's injury at most only slightly aggravated a preexisting condition. Testimony of physician with greater contact with claimant was given the greater weight, showing no causal relationship. BEFORE THE IOWA INDUSTRIAL COMMISSIONER RODNEY COKER, File No. 745328 Claimant, A R B I T R A T I 0 N VS. D E C I S I 0 N OSCAR MAYER & COMPANY, Employer, Self-Insured, Defendant. INTRODUCTION This is a proceeding in arbitration brought by Rodney Coker, claimant, against Oscar Mayer Foods Corporation, a self-insured employer, for the recovery of benefits as the result of an alleged injury occurring on or about November 6, 1981. This matter was heard before the undersigned on October 20, 1986 at the Bicentennial Building in Davenport, Scott County, Iowa. it was considered fully submitted at the conclusion of the hearing. The record consists of the testimony of claimant, Monica Murphy, Eileen Coker, and Vernon Keller; joint exhibits 1 through 12; and, defendant's exhibit A. STIPULATIONS AND ISSUES Pursuant to the prehearing report and order approving the same, the parties stipulated at the time of hearing to the following: 1. There is an employer/employee relationship between the claimant and the employer at the time of the injury. 2. Claimant sustained an injury arising out of and in the course of his employment on November 6, 1981. 3. Claimant was off work following his injury for the period from May 24, 1982 through July 2, 1982, from July 8, 1982 through July 23, 1982, from July 11, 1983 through July 15, 1983, and from December 1, 1983 to the present. 4. That the injury sustained by claimant was an injury to the body as a whole. 5. That claimant's rate of compensation in the event of an award is $245.82. COKER V. OSCAR MAYER & COMPANY Page 2 6. That if the medical provider were called to testify, he would testify that the fees charged in connection with his services were fair and reasonable, further that such fees and expenses were reasonably necessary to treat the claimant's condition. 7. That defendant is entitled to a credit pursuant to section 85.38(2) in the event of an award for disability or sick pay income to the claimant in the total amount of $9,459.58. The issues to be determined in this proceeding are whether there is a causal relationship between the injury suffered by claimant and the disability upon which this claim is based; the extent and nature of such disability should a causal relationship be established; and, whether or not there is a causal relationship between the medical expenses incurred by the claimant and the injury. EVIDENCE PRESENTED Claimant testified he is fifty years old. He said he left high school in 1953 when he was a sophomore and later obtained a GED. Claimant had no prior work experience before entering the United States Marines in which he served from February 3, 1954 through February 4, 1957. He stated that his primary job in the marines was the operation of a motor transport vehicle. Upon discharge from the marines claimant went to work for Service Rubber Company where he served in the capacity of a serviceman and machine operator. He held this job for three years before going to work for a year and a half as an insurance salesman. Claimant said he spent the next one and a half to one and three-fourths years working in the general maintenance division of the Illinois Department of Transportation where he mowed grass and plowed snow on Illinois roadways. He then worked briefly for a company as an oiler of automatic cutters before working for Eagle Signal Company for a three month period as an automatic lathe operator. Claimant began his employment with defendant in June of 1968. Claimant's primary employment with defendant was in the ham boning department where his duty was to cut the ham off of the ham bones. He had held that job for approximately thirteen years. Claimant was in this position at the time of his injury on November 6, 1981. Claimant explained that part of his job is to figure COKER V. OSCAR MAYER & COMPANY Page 3 inventory tickets at the end of the day. He said that on the 6th of November 1981 he was doing this job while sitting at a desk chair in one of the offices. He said he stretched back in the chair and fell over backwards striking his neck and shoulders against the wall. He said he was helped up from the chair at which time he was experiencing pain in his head, neck, and shoulders. Claimant said he reported the accident to the company nurse on that day and told her what had happen and how he felt. He left work that day at his regularly scheduled time and went to a tavern to cash his check. Claimant said he began to feel dizzy and then went home to lay down for the evening. Claimant said that he first went to see the company doctor concerning this matter on November 23, 1981. Between the 23rd of November and his injury he had not received medical treatment and had continued to work although he felt pain in his left arm and dizziness. Claimant explained that John J. Bishop, M.D., examined him and sent him to mercy Hospital for further tests. He said he next saw his family physician concerning the matter who then referred him to a doctor in Moline. In June 1982 claimant underwent a fusion of the cervical vertebrae of the fifth and sixth levels. He stated he was off work for a week prior to the surgery commencing May 24, 1982 until he returned on July 8, 1982. Claimant reported that he had been treated for a prior problem concerning his left arm. This he described as a thoracic outlet syndrome which was surgically treated by removal of the first rib in his left side. This occurred in November of 1979 or 1980. Claimant reported that the problems with his left arm cleared up and he did not have any neck problems as a result of this incident. Claimant reported that he was able to recover full strength in his left arm and shoulder prior to the incident which occurred at work in November 1981. Claimant advised that after his return to work in July of 1982 he continued to suffer problems with his arm, shoulder, and neck. He also continued under the care of his doctor and was released from work for about a two week period before returning. Claimant continued to work while under the care of his family physician until July of 1983. Up until that time claimant was able to continue to perform his regular job. In July 1983 claimant was again off work for a period of time. He did, however, return and continued working until December 1, 1983. At that time the pain was sufficiently severe that claimant could not continue working and he has not yet returned to work. Claimant stated that since being off work he had been examined at the Mayo Clinic in Rochester, Minnesota, and attended a pain clinic in Iowa City, Iowa. He has been treated with various modalities including steroidal injections, the use of a TENS unit, and biofeedback training. Despite these continued treatments, claimant stated that he continues to suffer weakness in the grip of his left hand. He said he also experiences numbness in his forefinger on his left hand and the thumb. He reported having difficulty handling tools and writing with a pen. COKER V. OSCAR MAYER & COMPANY Page 4 Claimant reported experiencing muscle atrophy in his left arm due to his inability to use it properly. Claimant again contended, however, that he did not have problems with his left arm from November 1980 to November of 1981. Claimant also reported that he had restrictions on the movement of his neck and that its limited to about forty-five degrees. He said he often hears a popping sound in his neck and that there are restrictions on the flexion and extension of the neck. Claimant reports pain between the shoulder blades and that he has a pulling sensation in his neck which gets worse with activity. He stated that he had none of these problems prior to November 1981. Claimant advised that he continues to take medication in the form of aspirin or Tylenol II. He reports that overuse of his left arm results in muscle spasms in the left shoulder. He advised that he has eliminated a number of his recreational activities because of these continuing problems. Claimant felt that his condition had grown worse since he quit his employment in December of 1983. On cross examination claimant was questioned about prior complaints of neck pain. Claimant stated that he could not recall any of the specific incidents referred to. Claimant stated that he recovered from his thoracic outlet syndrome in September of 1980 and did not experience problems from that time on. Claimant agreed, however, that medical records of the defendant would be more accurate on this point than his memory. Claimant revealed that he did not miss work from November 23, 1981 to May 1982. He stated he could not recall if or how many times he complained to the company nurse concerning neck pain between those periods of time. Claimant said that after November 1981 he did request light duty work from the defendant which was provided to him. Claimant stated on cross-examination that he was examined by F. Dale Wilson, M.D., but that Dr. Wilson did not provide him with any medical treatment. Eileen Coker testified that she had been married to the claimant for eighteen years. She stated that she was married to the claimant at the time of an earlier accident in 1969 in which he injured his neck but stated he had made a full recovery from that incident. She too stated that she could not specifically recall subsequent incidents of neck pain or injury. Mrs. Coker stated that claimant's initial complaints following his thoracic outlet syndrome surgery were resolved. She stated that claimant was able to resume his normal routine around the house and activities including hunting, fishing, golf, and baseball. She stated that he had resumed full activity by the summer of 1981. Mrs. Coker stated that claimant came home in November 1981 not feeling well and laid around the house that whole weekend. She said between November 6 and May 1982 claimant continued to work but gradually decreased his activities. She reported that he had neck surgery in June 1982 but that his activity level did not resume to normal. She advised that claimant continues to use medication, a soft neck collar, a TENS unit, and other methods to relieve pain. She said he has been involved in a group pain therapy session since March 1986. She reported that claimant has not looked for work in the past several years. COKER V. OSCAR MAYER & COMPANY Page 5 On cross-examination Mrs. Coker stated that following the November 23, 1981 visit with the doctor claimant did not see another physician until May 1982. Monica Murphy testified that she is the supervising company nurse for defendant. She has been with defendant for a total of eight years and has served in the capacity of supervising nurse for five years. She stated her job duties include treating injuries and monitoring workers' compensation and sick leave claims. She stated that she knew the claimant and had reviewed his records. Ms. Murphy advised that she was aware of claimant's injury the following morning. Ms. Murphy testified that prior to November 6, 1981 claimant had a number of absences from work for left shoulder and neck pain. She reported that the medical records disclose that claimant suffered a back injury while hunting in October 1969 and was off work for a short period of time following that incident. She said the records reflected that claimant went home on March 27, 1975 complaining of left side and rib problems. Also, the records showed that on February 7, 1977 claimant fell at home and strained muscles in his neck and back. Claimant was apparently off work for three days in April 1977 due to neck and arm problems. He also reported neck problems in February 1979. She said the medical records reflected that he had had thoracic outlet surgery on February 12, 1980. Ms. Murphy stated that she worked the same shift as claimant and would have been on the job between November 1981 and May 1982. She reported that claimant made no complaints of neck or arm pain during that period of time. She stated that at the time of claimant's injury in November 1981 he was on work restrictions not to exceed forty hours per week and a thirty pound lifting limit. She reported that in May 1981 claimant's left arm turned back and blue with no apparent injury. She advised that claimant's complete medical records were contained in defendant's exhibit A. Vernon Keller testified that he is the safety and security manager for defendant and has served in that capacity for ten years. His duties include administration of workers' compensation benefits. He stated that since December 1, 1983 claimant has not returned to the defendant to request light duty work. He stated that light duty work is available and that some jobs require lifting only eight to sixteen ounces with little or no bending. He said these jobs can be done while sitting or standing. He stated that the claimant qualifies for these jobs based upon his seniority. He added that claimant would have been qualified for light duty work as of December 1, 1983. He stated that claimant remains an employee of defendant but is presently on extended leave without benefits. Joint exhibit 1A is the deposition testimony of John L. Hill, M.D., taken May 18, 1984. Dr. Hill testified that he is engaged in the practice of medicine in the state of Illinois and licensed there. HiS specializes in cardiovascular and thoracic surgery. He stated that his first occasion to treat the claimant was in November 1979 which was in connection with a thoracic COKER V. OSCAR MAYER & COMPANY Page 6 outlet syndrome problem. He said he also saw the claimant in 1982 following the injury in November 1981. This first visit occurred in April at which time claimant was complaining of left forearm pain, loss of motion, and continuing aching. The doctor stated that he had no record from that visit that claimant had fallen at work and injured himself. He said he examined the claimant again in July 1982 at which time claimant indicated he had fallen off a chair the day before. He conducted an examination at that time and found nothing of significance. Dr. Hill testified that he had nothing in his records indicating that claimant had fallen at work in November 1981. He did concede that the incident had been mentioned in other medical records. Dr. Hill was of the opinion that claimant could no longer continue to do the type of work he was doing prior to the problems with his cervical disc. Dr. Hill stated that he did not believe that the thoracic outlet syndrome problem that claimant had was related to the cervical disc problem. Dr. Hill noted that claimant had been examined at the Mayo Clinic at which time the etiology of his continued pain could not be determined. Dr. Hill did not express an opinion as to the cause of claimant's cervical disc problem. Joint exhibit IB is the deposition testimony of Rodney Coker. The deposition has been reviewed and it is noted that there are no significant variances between claimant's testimony and his deposition and that at the hearing in this matter. Joint exhibit 2, a through w, are clinical notes and hospital records concerning claimant's treatment at Franciscan Rehabilitation Center, Illini Hospital, Mayo Clinic, Mercy Hospital, Moline Public Hospital, and University of Iowa Hospitals and Clinics. X-ray reports taken at Illini Hospital on April 28, 1982 disclose that at that time claimant suffered from minimal degenerative arthritic changes of the cervical spine with a slightly narrowed C5-C6 intervertebral disc space. Posterolateral spurs were also noted bilaterally at C5-C6. Moline Public Hospital records show that in late May 1982 claimant was examined by myelogram which resulted in a diagnosis of 6th cervical nerve root radiculopathy secondary to a herniated disc and/or cervical spondylolysis. Claimant's admitting history which was taken by Stanton L. Goldstein, M.D., indicates that claimant's problem first arose following a fall in a chair at work on December 18, 1981. Claimant was readmitted to the Moline Public Hospital in June 1982 for surgical treatment of the C5-C6 problem. The specific procedure undertaken was an anterior cervical interbody fusion at C5-C6. Remaining hospital records detail claimant's continued difficulty with pain following this procedure. An April 1984 evaluation of claimant at the Mayo Clinic failed to reveal a specific neurological cause from claimant's continued pain. Records are also included from the Pain Clinic at the University of Iowa. A letter dated May 14, 1985 from Viney Kumar, M.D., to claimant's attorney states that the Pain Clinic does not make statements as to causation. One of the most detailed statements as to the cause of claimant's cervical problem is from John J. Bishop, M.D., in his COKER V. OSCAR MAYER & COMPANY Page 7 letters of February 11, 1985 and September 22, 1986. (Exhibit 3) Dr. Bishop sets forth an extensive review of claimant's health history. He notes that as early as January 1980 claimant was experiencing pain in his left arm and shoulder. An orthopedic surgeon examined claimant January 28, 1980 and concluded that claimant suffered from thoracic outlet syndrome or possibly cervical radiculitis secondary to osteoarthritis. Treatment at that time centered on the thoracic outlet syndrome. Dr. Bishop states that it was his definite belief that claimant's cervical problem started prior to January 1980. Further, that possibly the thoracic outlet syndrome was not the cause of claimant's problems at that time but rather cervical radiculopathy. The doctor also felt that it was significant that claimant went from November 1981 to May 1982 without medical treatment, a period of about six months. Dr. Bishop concluded that it was unlikely that claimant's symptoms and disability were related to the fall which occurred at work. Exhibit 10 is an evaluation of claimant conducted by Dr. Wilson on July 17, 1984. Dr. Wilson concludes that the fall in November 1981 was the causative factor in claimant's disability. He bases this opinion upon a finding that the thoracic outlet syndrome surgery resolved all of claimant's problems. It is not clear what records the doctor may have reviewed, if any, concerning claimant's problems the time of that surgery. There are numerous insurance claim forms in the medical COKER V. OSCAR MAYER & COMPANY Page 8 records. Some of these forms state claimant's condition was the result of a work injury, others indicate it was not. A review of defendant's exhibit A discloses complaints by claimant of neck and arm pain, or lack thereof, consistent with the testimony of Monica Murphy. APPLICABLE LAW AND ANALYSIS The supreme court of Iowa in Almquist v. Shenandoah Nurseries, 218 Iowa 724, 731-32, 254 N.W. 350, 38 (1934), 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 November 6, 1981 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 COKER V. OSCAR MAYER & COMPANY Page 9 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 an aggravation occurs in the performance of an employer's work and a causal connection is established, claimant may recover to the extent of the impairment. Ziegler v. United States Gypsum Co., 252 Iowa 613, 620, 106 N.W.2d 591, 595 (1960). The Iowa Supreme Court cites, apparently with approval, the C.J.S. statement that the aggravation should be material if it is to be compensable. Yeager v. Firestone Tire & Rubber Co., 253 Iowa 369, 112 N.W.2d 299 (1961); 100 C.J.S. Workmen's Compensation SS555(17)a. Other than various insurance claim forms filed by various doctors, some of which state claimant's injury was from work and others that state otherwise, there are but two expert opinions concerning causation in this record. Dr. Wilson causally relates the claimant's disability to the injury and Dr. Bishop does not. Of the two opinions, Dr. Bishop's must be adopted. First, Dr. Bishop was a treating physician of the claimant and clearly dealt with the causation question in greater detail. The concerns or factors outlined by Dr. Bishop to support his opinion appear well founded. These include the fact that claimant had similar, if not identical complaints before the fall in November 1981 as he did after. Also, claimant was able to work for about six months following the incident with few, if any complaints. Claimant concedes that the medical records of defendant are more reliable than his memory. The diagnosis of claimant's condition is one suggestive of a long term degenerative process and not one of traumatic origin. At most, the fall against the wall merely slightly aggravated a preexisting condition. Dr. Wilson's opinion appears to be little more than a conclusion without substantive foundation. Claimant cannot be said to have met his burden of proof on this record. FINDINGS OF FACT WHEREFORE, the following facts are found: 1. On November 6, 1981 claimant injured his neck at work. 2. The injury at work may have slightly aggravated a preexisting osteoarthritic condition. 3. Claimant's subsequent disability and medical expenses were not caused by the injury of November 6, 1981. COKER V. OSCAR MAYER & COMPANY Page 10 CONCLUSION OF LAW IT IS THEREFORE CONCLUDED that claimant has failed to prove by a preponderance of the evidence that there is a causal relationship between his injury and the disability upon which this claim is based. ORDER IT IS THEREFORE ORDERED that claimant take nothing from this proceeding. IT IS FURTHER ORDERED that each party shall pay the costs they have incurred in this proceeding. Defendant shall pay the cost for the attendance of the court reporter. Signed and filed this 27th day of February, 1987. STEVEN E. ORT DEPUTY INDUSTRIAL COMMISSIONER Copies To: Mr. Allan Hartsock Attorney at Law Fourth Flr. Rock Island Bldg. P. 0. Box 428 Rock Island, Illinois 61201 Mr. Craig A. Levien Mr. Richard M. McMahon Attorneys at Law 600 Union Arcade Bldg. 111 E. Third Street Davenport, Iowa 52801 1108; 1402.40; 2206 Filed: February 27, 1987 STEVEN E. ORT BEFORE THE IOWA INDUSTRIAL COMMISSIONER RODNEY COKER, Claimant, File No. 745328 VS. A R B I T R A T I 0 N OSCAR MAYER & COMPANY, D E C I S I 0 N Employer, Self-Insured, Defendant. 1108; 1402.40; 2206 Claimant contended his disability arose from falling back in a chair and striking his head against a wall. Evidence showed claimant had significant complaints of neck and arm pain prior to incident at work; had had thoracic outlet surgery two years before for same problem; had significant bone spurring; and, degenerative arthritis. Treating physicians either expressed no opinion on causation or found no causation. Claimant's position was supported by examining physician (Dr. John Walker) who saw claimant once and did not have complete history. Compensation denied. BEFORE THE IOWA INDUSTRIAL COMMISSIONER TERRY ALBERTSON, Claimant, VS. FILE NO. 745347 I-29 COUNTRY DIESEL, A R B I T R A T I 0 N Employer, D E C I S I O N and GREAT WEST CASUALTY, Insurance Carrier, Defendants. INTRODUCTION This is a proceeding in arbitration brought by Terry Albertson, claimant, against I-29 Country Diesel, employer, and Great West Casualty Company, insurance carrier, for benefits as the result of an alleged injury on May 12, 1983. A hearing was held at Council Bluffs, Iowa on May 27, 1986 and the case was fully submitted at the close of the hearing. The record consists of claimant's exhibits 1 through 12; defendants' exhibits A through H; the testimony of Terry Albertson (claimant), Bill Hill, Chuck Johnson and Juanita Grindle for the claimant; and the testimony of Gene White, Ron Brierly and Dick Horst for the defendants. STIPULATIONS The parties stipulated to the following matters: That the existence of an employer/employee relationship between the claimant and the employer at the time of the alleged injury was established by an interim order. That the alleged injury was the cause of both temporary disability during a period of recovery and the cause of permanent disability. That the extent of the claimant's entitlement to weekly compensation for temporary total disability or healing period disability, if the defendants are liable for the injury, is from May 12, 1983, the date of the injury, to the present time as a running award. That the weekly rate of compensation in the event of an award is $179.00 per week. That the parties will agree on the payment of medical ALBERTSON V. I-29 COUNTRY DIESEL Page 2 expenses if the injury is found to be compensable. That no credits are claimed for payments under an employee non-occupational group plan or for workers' compensation benefits previously paid. That there are no bifurcated issues. ISSUES The issues presented by the parties for determination at the time of the hearing were as follows: Whether the claimant sustained an injury on May 12, 1983 which arose out of and in the course of his employment with the employer. Whether the intoxication of the employee was the proximate cause of the injury. Whether the claimant is entitled to any temporary or permanent disability benefits. PRELIMINARY MATTERS Claimant objected to certain medical records of a hospital and a laboratory (Defendants' Exhibit A & Claimant's Exhibit 12); the deposition testimony of Carlos Carrion, M.D., (Def. Ex. E); the deposition testimony of Peter J. Stephens, M.D., (Def. Ex. F); and the Federal Motor Carrier Safety Regulations Pocketbook (Def. Ex. G). The claimant's objection is overruled and these exhibits are admitted into evidence as evidence normally within the purview of Iowa Administrative Procedure Act, section 17A.14 and Division of Industrial Services Rules 343-4.17 and 343-4.18, formerly Iowa Industrial Commissioner Rules 500-4.17 and 500-4.18. SUMMARY OF THE EVIDENCE The claimant is 35 years old, single (divorced) and has no children. He graduated from high school where he took general courses and automobile mechanics. He has no additional formal education in the way of trade school or college. Past employment include construction work, factory work, packinghouse work and logging. He was also in the Army for about one and one-half years where he served as a truck driver and a cook. Claimant has known Gene White, the owner and operator of I-29 Country Diesel for many years. When White drove for Schroeder Feeds and, claimant was 15 years old, claimant worked with White and rode with him to the Blackhills. White introduced claimant to truck driving at that time. White later hired claimant as an over-the-road driver for Werner Enterprises in April of 1983. I-29 Country Diesel hires drivers and leases drivers and tractors to Werner. Werner issued the claimant a driver's certification and medical examiner's certificate on April 12, 1983 (Cl. Ex. 3) and claimant began to work at that time. Claimant denied that he was given (1) any written course of instruction or a written test; (2) a driver's manual (Cl. Ex. 4); or (3) a Federal Motor ALBERTSON V. I-29 COUNTRY DIESEL Page 3 Carrier Safety Regulation Pocketbook (Def. Ex. G). Claimant did agree that he did sign a letter of abandonment on April 12, 1983 that acknowledges that he is responsible for the return of the tractor and trailer under dispatch to Werner Enterprises in Omaha, Nebraska if he should terminate his employment with them (Cl. Ex. 5). Claimant had no real prior over-the-road driving experience. He was apprenticed to Ron Brierly, an experienced driver, to learn to drive, to learn to keep the log book, to learn how to handle shipping documents, to learn when and where to eat and get fuel and other techniques of the trade. Claimant had made approximately four trips with Brierly before his injury on May 12, 1983. Brierly taught him what to do and how to do it. Claimant said that Brierly had driven for several years; that Brierly was the lead man; that Brierly handled the papers (Cl. Ex. 6); and that Brierly made the decisions. Claimant testified that he was learning the business from Brierly. Claimant testified that he knew that it was against the rules to drink in the cab of the truck. However, he did not know of any rule that you could not drink during a layover. He denied that Gene White or anyone told him you could not drink while you were under dispatch. There were a number of times he and Brierly could not load or unload and they would layover at a truck stop and do some drinking. In fact, they did it almost every time unless there was no bar where they were at. Brierly said that he knew drinking was discouraged but that he drank once in a while and that he drank with the claimant. Brierly testified that he has been driving for five years and that he has been drinking alcoholic beverages during that period of time during breaks and layovers. Drinking is customary among drivers. He has even drunk alcohol with White on a couple of occasions. White testified that his policy is that drivers are not to drink on the road until the destination is reached and the load is unloaded. Claimant was not supposed to be drinking because he was under dispatch. White testified that he specifically talked to claimant about drinking when he was hired. Furthermore, White has a huge sign in I-29 Country Diesel that says if a driver has alcoholic beverages in the vehicle or if a driver is reported drinking on the road he will be terminated. He further testified that he elaborated on this with claimant. He told claimant that if his truck was parked in front of a tavern he would be terminated on the spot. White stated that while he knew some would drink anyway, he hoped that none of the drivers would drink. Even though this injury involved a considerable amount of drinking, White had no explanation for why Brierly did not get fired as a result of it. Dick Horst, safety director for Werner, testified that claimant should have been given a test on the DOT rules about drinking. He also should have been given a copy of the Federal Motor Carrier Safety Regulations Pocketbook and also the Werner Enterprises Driving Manual which contain rules on drinking. However, Horst could not verify that this was actually done in the claimant's case. Claimant denied that he was given any ALBERTSON V. I-29 COUNTRY DIESEL Page 4 written test of any kind and he denied that he was given any books or booklets of any kind when he was given his license by Horst. The Werner Enterprises Driver's Manual (Cl. Ex. 4) prohibits alcohol consumption anytime you are in charge of a loaded trailer anywhere and while a driver is laid over. The manual says that a violation will result in dismissal. Horst also testified that the verbal order of Werner's is that there is to be no alcohol in or near or around the vehicles -- not one drop. Horst interpreted the Werner rule as strictly no drinking while under dispatch but had no explanation for why Brierly was not fired as a result of this incident. Horst acknowledged that Werner employed about 435 drivers in 1983. Defendants called attention to section 392.5 Intoxicating Beverage of the Federal Motor Carrier Safety Regulations Pocketbook which prohibits a person from using an alcoholic beverage within four hours before operating or having control of a motor vehicle generally (Def. Ex. G). One of the issues in this case is whether the passenger door of the cab was defective; the nature of the defect; and whether it contributed to the claimant's injury. Bill Hill, a former truck driver, and a friend of the claimant who is related to the claimant through marriage, testified that he talked to claimant before he left on this trip. Hill stated that this Kenworth, Unit #388, had a defective door. You had to slam it hard in order to close it and if you gave it a hard bump the door would open. Chuck Johnson, an owner-operator of his own truck and a friend of the claimant, looked at the passenger door of this unit at the request of claimant before he left on this trip. Johnson found that the door had a gap at the top. The door was sprung and was not sealing properly. This Kenworth model of tractor has had a lot of trouble with their doors. They require a lot of adjusting. Johnson said that slamming it hard will close it. He just looked at the door and did not try to fix it. The particular defect caused by these doors is an air leak, a wind noise that bugs you. Johnson agreed that this door has two latches. If the door comes off the first latch, then the second latch is supposed to hold the door closed. Johnson verified that the custom and practice in the trucking industry is that the driver is responsible during layovers and at all times for the equipment until the truck is brought back home again. Johnson further confirmed that alcohol and beer are customary at truck stops and that it is a common practice for truckers to drink while on the road during layovers and breaks. Rodney B. Blackburn testified by deposition that he formerly worked at the I-29 Country Diesel Truckstop as a mechanic for Gene White in 1980 and 1981. Unit #388, a Kenworth tractor, was purchased from Werner's after it had been previously wrecked. Blackburn testified that he installed a complete right side in the cab in order to repair it. After it was fixed he took it on a couple of trips and it worked fine. He did not know anything ALBERTSON V. I-29 COUNTRY DIESEL Page 5 about the condition of the cab at the time of the injury because he was not working at I-29 Country Diesel then and he had not talked to White, Brierly or claimant about this incident. Johnson testified that this model Kenworth was made too light and the doors regularly need to be adjusted once or twice a year. Otherwise they get wind leaks at the top. Also, you have to slam the Kenworth door hard at all times to get it to close. Once it is closed tightly it stays closed and does not pop open. He knows of no situation where the door would come open once it is closed completely. The chronic problem is that these doors leak air at the top and also that they will not close without slamming them very hard. The door does have a double lock. If it does not go all the way closed, the first lock will hold it closed. He testified that he never worked on this truck again due to a door problem after the initial replacement of the right side of the cab. (Cl. Ex. 10) Stephen L. White testified by deposition that he is the brother of Gene White and a former employee of I-29 Country Diesel as a general mechanic. White stated that he worked on engines, diesels and also performed body work. He currently owns and operates his own automobile repair shop in Tabor, Iowa. He knew of Unit #388, that it was once wrecked when owned by Werner's, and that it had a complete right side installed in it several years ago. He worked on this door on this unit for wind leaks. Wind leaks are customary for the Kenworth cab. The hinge is made of mild steel. It gets deformed or bent from the constant jarring from rough roads which causes a gap at the top of the door and allows wind to leak into the cab. He clarified that he was not aware of the Kenworth door ever failing to close. White said that he cannot recall for sure, but the claimant may have complained about a wind leak, but he did not say that he had to slam the door in order to shut it. He testified that neither Brierly nor claimant complained about the door not shutting properly. Yes, he has heard other people say that the Kenworth door did not shut properly, but he thought that they meant that this was because there was an air leak after it was shut. Stephen White also pointed out that this door hinged at the front edge. Therefore, it opened at the back edge of the door (Cl. Ex. 2). Claimant testified that the passenger door on Unit #388 did not work properly. It did not latch real tight. When closed, there was a gap in the top corner near the windshield. It had been fixed before this trip when he was injured, but it had come loose again as they drove along the road. You had to slam it a lot to get it to shut. He had complained about it and it was fixed about a week before his last trip by Stephen White and another mechanic. However, it had worked loose and would not shut properly again. Claimant testified that he and Brierly left Omaha on May 9, 1983 and went to Crete, Nebraska to get a load of Alpo dog food to take to Phoenix, Arizona. He said that at Crete he had to slam the door hard or it would pop open. He would test it with his shoulder until he got it to stick. He said Brierly would test it with his shoulder too. Claimant testified that Brierly said that they could not stop and get it fixed because it was hard to get little things fixed and it seemed like a minor ALBERTSON V. I-29 COUNTRY DIESEL Page 6 problem at the time. Juanita Grindle testified that she was the mother of claimant. At a New Year Eve's party she heard Brierly admit that the door on this truck was "messed up" and that it did not close properly. Brierly denied that he said that the door did not work properly at the New Year Eve's party. Brierly further testified that the door worked good after it was fixed just prior to the trip to Crete. He also denied that the door gave them any problem between Crete, Nebraska and Phoenix, Arizona. He denied that it would not shut properly and that you had to bump it with your shoulder to see if it would open. He denied that it made a wind noise on this trip. Brierly did testify that before it was fixed a week before this trip, it had to be slammed hard in order for it to latch. Gene White said that the only complaint about the passenger door was wind noise. He personally knows that it was fixed and the door was adjusted one trip before the trip to Phoenix. The truck needed no passenger door repairs after Ron Brierly returned it from Phoenix after the claimant was injured. This unit should not need another door adjustment within three to four weeks. At 500,000 miles this unit was not an old truck. Claimant testified that this truck had a sleeper and you were supposed to use it. He was told you were supposed to sleep in the truck and that motel bills were not authorized. When on the road he and Brierly always slept in the truck. Both White and Brierly told him that he was responsible for both the truck and the load. He signed a letter of abandonment when he was employed that said you cannot run off and leave the equipment. He was told that he was responsible for the equipment until he got it back home again. Gene White testified that drivers are responsible for the tractor and trailer when out on the road. He stated the employer will pay for a motel on some occasions, typically the second night of a layover. otherwise, he expects the drivers to sleep in the truck because he does not want the truck unattended. Horst testified that the drivers are responsible for the care and control of the trucks whether they are loaded or unloaded. The company policy is not to pay for a motel bill unless the truck is broken down over 24 hours. Otherwise, if a driver takes a motel he is supposed to pay the motel bill himself. Horst acknowledged that the truck is the driver's home on the road and also his place of employment. Horst further testified that the employee is under the control of the employer except for 60 minutes in which to eat in a 10 hour period; and even during the 60 minutes the driver is responsible for the care and control of the equipment. Claimant and Brierly arrived in Phoenix, Arizona at approximately 4:00 p.m. or 5:00 p.m. on May 11, 1983. Claimant was the driver on the last leg of the trip. The dispatcher at the destination said that they could not unload until the following morning. Claimant testified Ron knows the road and selected that they layover at a truckstop on the interstate which ALBERTSON V. I-29 COUNTRY DIESEL Page 7 was adjacent to the Roadrunner Restaurant and another building which housed the Bean Pot Bar. Claimant testified that he cleaned up, ate and went to the Bean Pot Bar and began drinking beer and shooting pool. Ron came in a short time later around 7:00 p.m. and also began drinking beer. This had been their customary practice on other trips unless there was no bar at that location. Claimant said that they drank and talked to people for about two or three hours. He admitted to buying some hashish in the bar, but he denied smoking it. He did admit to taking caffeine pills while driving sometimes in order to stay awake. He denied drinking any kind of alcohol other than beer on this night. Claimant said he did not know how many beers he or Brierly drank. Claimant testified that Ron left to go to sleep in the cab. Claimant stayed and continued to drink and talk to people in the bar. Claimant estimated that he left the bar at approximately 11:30 p.m. to 12:00 midnight, but he did not look at a clock in order to determine the time. Claimant said that he proceeded to the Roadrunner Restaurant to get something to eat. At the Roadrunner Restaurant the claimant encountered Gladys Deffenbaugh; however, at the hearing, he testified that he does not remember her or having any dealings with her. Deffenbaugh testified by deposition that she was the cashier at the restaurant. Claimant came in, and entered into a dining area that was closed. When she went in to get him he was standing there, weaving and staring at an empty booth. When he came into the main cafe he began talking to customers who, for the most part, ignored him. Then he got in a passageway through the ALBERTSON V. I-29 COUNTRY DIESEL Page 8 counter that the waitress uses and rocked back unsteadily on his heels. Then he poked a lady customer to get her attention and she told him, "I'll flatten you!" The witness had asked claimant to sit down or leave the restaurant several times. He never did sit down, but eventually left sometime between 11:00 to 12:30 p.m. as best she could recall. Sometime later a customer came in and told her that the guy who was in here fell out of his truck and broke his back (Def. Ex. B, p. 16). At another point in her testimony she said that she was told that the claimant was trying to get in his truck and fell out and broke his back (Def. Ex. B, p. 30 Deffenbaugh did not go to the scene of the accident. Charles J. Gregory, a policeman for 12 years, testified by deposition that as he patrolled the restaurant area around midnight a waitress came out and waived him down. She said a subject was inside trying to stir up fights and requested assistance. He found claimant to be unsteady on his feet, smelled of alcohol, his eyes were bloodshot and watery. He was kind of feisty and had a cocky attitude. Gregory testified that the claimant was intoxicated. When Gregory asked claimant if he had ever been arrested before the claimant replied, "Yeah, yeah for beating up cops." Gregory stated that he got the claimant's name and ran a warrant check which came out negative. Gregory believed claimant was too intoxicated to drive a vehicle and .gave him a chance of going to his truck or motel or going to jail. Claimant elected to go to his truck. Later that morning Gregory had heard that claimant had fallen from a truck and had hit his head against another truck (Def. Ex. C, p. 11). Gregory was at the scene and saw claimant laying on the ground. Albert T. Sindel, a policeman for 11 years, responded to a call to assist Officer Gregory. Sindel stood with the claimant. while Gregory ran a warrant check. Sindel believed that the claimant was intoxicated because of his facial features, blurry eyes, and loud, boisterous and antagonistic manner. Sindel stated that the claimant was not sober enough to drive a motor vehicle. Sindel felt that claimant was intoxicated enough to be arrested under the Arizona disorderly conduct statute which includes public intoxication, but since claimant could move under his own power they gave him a chance to go to bed. When Officer Gregory gave the claimant the option to go to bed or go to jail, Sindel last saw the claimant walking off toward his truck, but did not see him get in it. (Def. Ex. D) Claimant testified that he had no recollection of talking to Deffenbaugh, Gregory or Sindel. He testified that he did recall getting into the truck but he did not know what time it was then. Brierly was sleeping in the cab on the driver's side with his head against the driver's door and his feet over the doghouse. He said they were getting on each other's nerves when they arrived in Phoenix so claimant tried to be quiet in getting into the truck and only gave the door one slam. He thought about testing it with his shoulder, but he decided not to do so. Claimant testified that he took off his boots and socks and put them on the floor of the cab. He took off his outer shirt and put it across the back of the seat. He put his knees up on the dash and went to sleep. The next thing he knew he woke up on the ground laying on his back with his feet toward the front of the truck and he wondered what had happened. When he tried to get up ALBERTSON V. I-29 COUNTRY DIESEL Page 9 the pain was so bad that he blacked out. He could not turn his head. He could only move his eyes. Eventually he heard noises; people tried to move him; he felt a board sliding under him. He next recalls being in the hospital but does not know much about the first week there. From Phoenix he was transferred to Schoitz Hospital in Waterloo, Iowa and eventually to the VA Hospital in Milwaukee, Wisconsin where he still goes for periodic maintenance treatment. Claimant said that he did not know how he ended up on the ground. He said that he was only speculating when in his deposition he stated that the door popped open and that he fell out. Claimant conceded that it is possible that he got up to go to the bathroom, but he does not think so because he did not put his boots on. His best recollection is that he left the bar, went to the cafe, ate, went to the truck and went to sleep. He definitely remembers getting into the truck; he does not know what happened after he went to sleep. Brierly said that he did not know how many beers he drank. It might have been eight, nine or 10 like he said in his deposition, or it might be 10 or 12, he just did not know. He testified that he was intoxicated and that the claimant was intoxicated too. Claimant could walk but could not drive or ride a bicycle. Brierly stated he went back to the truck around 10:00 p.m. or 10:30 p.m. and went to sleep in the cab with his head against the driver's door and his feet up on the doghouse. He does not remember claimant returning to the truck. The next thing he recalls is that someone was up on the passenger seat tapping him on the foot and woke him up and told him claimant was on the ground. Brierly said he found claimant conscious, there was no blood on the ground, and claimant did not say what had happened. He found claimant's boots and socks and outer shirt on the passenger's side of the cab. Otherwise, his recollection was that claimant was fully clothed with T-shirt and pants. As far as he knows, no one saw claimant fall and claimant did not say how he fell. Claimant did say that he could not feel his legs. When Brierly talked to him on the ground claimant mumbled and said his legs would not move. Brierly said he may have told the police that claimant fell 10 feet out of the truck and that he was intoxicated but not overly so. Brierly stated that he saw the claimant in the bar about 10:30 p.m. and that claimant was intoxicated but not overly done. The next time he saw claimant he was on the ground beside the truck. Brierly was not too clear, but thought that the claimant may have consumed a white powder substance or smoked a marijuana cigarette. Claimant denied that he did either one of these things. Brierly said that when he reported the accident to Gene White the following morning White thought that claimant had fallen out of the truck. Claimant's exhibit 8, a Nebraska first report of injury, which was prepared on May 12, 1983, contains three pertinent entries. Item 24 says, "Sitting in tractor." Item 25 says, "Employee fell out of tractor (investigation indicates that employee had been drinking)." Item 29 states, "broken neck, paralyzed from neck down." The City of Phoenix Fire Department Emergency Report indicates that claimant fell out of a semi-truck either hitting ALBERTSON V. I-29 COUNTRY DIESEL Page 10 his back on the ground or another truck. It states that the fall was not witnessed. The patient could not move his legs. Patient is ETOH and has consumed unknown amounts of alcohol and possibly amphetamines. Patient gives inconsistent answers. This report is dated May 12, 1983 at 0324 hours (Cl. Ex. 11, Deposition Ex. B). Joseph M. Suarez, M.D., an intake doctor at St. Joseph's Hospital and Medical Center made a report marked 0423 hours on May 12, 1983. He speculated that claimant had fallen from the cab of the truck that he was found laying beside. He also concluded that claimant was intoxicated because he smelled strongly of alcohol; his blood alcohol was 177; and he could not recall the events of the evening before. He assessed a C6-7 fracture-dislocation with quadriplegia. Dr. Suarez states that Stephen Bloomfield, M.D., was called and attended to the patient (Def. Ex. A, p. 31). Dr. Bloomfield also speculated that claimant fell 10 feet from the cab of his truck and was found by a passerby lying on the ground by his,truck. Strangely the only visible physical sign of trauma was a minor abrasion to the left knee. Dr. Bloomfield said claimant had ETOH on his breath and he believed that he may well have been inebriated. Claimant had total paralysis of his arms and legs. Tongs were placed in claimant's head for traction for a closed reduction of the C-6, C-7 dislocation fracture in the neck (Def. Ex. A, pp. 1-3). A blood alcohol test at St. Joseph's Hospital on May 12, 1983 at 0440 hours showed an alcohol reading of 177 MG/DL. It also stated a drug screen was sent to Smith-Klein Laboratory (Def. A., p. 8). The Smith-Klein report showed a reading of 18GM/DL for ethinol. No other drugs were detected in the sample (Def. Ex. A, p. 9). On May 13, 1983, Russell Chick, M.D., a consulting doctor, speculated that claimant had tripped and fell from the cab of his truck landing on his head-and neck on a loading dock (Def. Ex. A, p. 12). Carlos Carrion, M.D., appears to be the physician in charge of the patient at all times on the hospital records. Dr. Carrion and Dr. Chick installed a number three halo on May 17, 1983 with four skull pins tightened to six pounds of torque on an alternating basis (Def. Ex. A, p. 14). Dr. Bloomfield discharged the claimant to an extended care facility in Iowa on June 7, 1983. He commented that claimant did well physically but he anticipated other problems because claimant did not accept the fact that his chances of walking again were almost nil (Def. Ex. A, pp. 4-7). Dr. Carrion also testified by deposition on May 16, 1985 (Def. Ex. E). He testified that he is a board certified neurosurgeon who has practiced in the Phoenix area for approximately 15 years. He treated claimant at St. Joseph's Hospital for a broken neck, more specifically a fracture dislocation of the cervical spine of C-6 on C-7. A blood alcohol test was made on claimant because every patient admitted through ALBERTSON V. I-29 COUNTRY DIESEL Page 11 the trauma service has a number of tests performed and one of these tests is a blood alcohol and drug test. Dr. Carrion testified that this has been the hospital procedure for approximately five years. This is important to a neurosurgeon in order to determine whether a neurological deficit is due to alcohol and drugs alone or whether it is in combination with an injury. Dr. Carrion finds the results of these tests provided by the lab as dependable. He examined the claimant's blood alcohol results taken at 4:40 a.m. on May 12, 1983 and stated that they became a part of the claimant's hospital records. The St. Joseph's tests recorded a blood alcohol of 177 and the Smith-Klein test showed 18 grams per liter. He stated that these two readings were comparable. He has not seen claimant since he was discharged on June 7, 1983. Dr. Carrion said that the history of a fall fit the claimant's injury. In layman's language claimant's spinal cord got pinched or squeezed by the bones in his neck and ceased to work. it need not be severed into two pieces. A solid squeeze is sufficient to produce permanent damage to the fibers in the spinal cord from the brain that control the body. The spinal cord will not regenerate itself. Dr. Carrion testified that this is permanent damage; it will not get better; but it may get worse for a number of reasons. Claimant was totally paralyzed basically from the shoulder level down. He can move the right hand well, but cannot move the left hand. He had some motion in the upper left extremity, but none below that, nothing, and he is never going to have anything. Dr. Carrion projected the claimant's future in the following dialogue with counsel: A. You want me to project what he's going to need? Q. Yeah. A. The patient right now have [sic] a significant neurological deficit. Providing he had the right attitude and providing he gets enough schooling, he may be able to care for himself and, indeed, find employment. Although he is rather limited. He can only use one hand, out of his entire body probably. So the--the avenues for employment are extremely limited. But medically, he will need a physician to follow him at least three or four times a year, for life. He will have recurring urinary infections, which will shorten his life. He will have several number of sores, regardless of how well he take [sic] care of himself. And so this also will require, from time to time, a visit to the doctor and treatment for the same. HeOll--and I'm sure in the past, when he was in Waterloo, Iowa, he received some psychiatric help; and he will require more. My short contact with the patient led me to the impression that he didn't accept the injury. And if, in fact, that he will not accept the injury, and will make a hell of his life. Q. By that, that's the statement in here that he ALBERTSON V. I-29 COUNTRY DIESEL Page 12 said that--you're not telling me--I will walk and I will be able to walk. It's just a matter of time. That kind of a macho attitude. This is not going to get me. I'm going to walk. But that's unrealistic. A. Unrealistic is a very common problem. But, as a rule, there is some degree of acceptance and some plans--realistic plans for the future. I'm afraid this man will not make plans for the future that are in any way realistic. Q. Without some psychiatric intervention or change of attitude? A. To help him; to live with whatever he gets. Q. What do we find happens to people who are immobile like him with the extremities of the legs, as far as do they atrophy or-- A. They get atrophy. And what is more important than that--atrophy is just for the looks. He's not using them anyhow. But he is going to have phlebitis, which could be dangerous to his life. Q. Circulatory problems-- A. Yeah. ALBERTSON V. I-29 COUNTRY DIESEL Page 13 Q. Urinary--is that because he's immobile? A. No. It's because the normal pathway of the urine have been bypassed. He's not voiding like a normal human being would. Q. I see. Because those muscles are not receiving signals from the brain? A. Yeah. The blood--it just lay there. And it always will have some amount of urine in the blood, which will be a source of infection. (Def. Ex. E, pp. 24, 25 & 26) Peter J. Stephens, M.D., of Davenport, Iowa, testified that he is a board certified anatomic clinical and forensic pathologist who specializes in human consumption of alcohol and testifies frequently in civil and criminal cases. He found the St. Joseph's blood alcohol report of 177 miligrams per deciliter in close concordance with the Smith-Klein laboratory report of 180 miligrams per deciliter. The tests done by different laboratories yielded virtually the same result (Def. Ex. F, p. 34). These readings might produce different effects in different individuals depending upon several variables, but you can say that persons with these readings would certainly be under the influence of alcohol at that level. It would be harder to see in the dark; climbing would be more difficult due to loss of coordination; and a person would not be able to drive safely (Def. Ex F, pp. 38-43). A significant amount of alcohol had been recently ingested (Def. Ex. F, p. 80). Dr. Stephens stated that the nature of the injury implies a fall from a height, and he speculated that claimant fell off the runs or from the cab itself (Def. Ex. F, p.,54). Dr. Stephens gave the following opinion as to the cause of the fall: Q. Now, doctor, do you have an opinion as to why he fell from that ladder or from the deck of the truck? THE WITNESS: It is my opinion that the fall in somebody who was presumably familiar with climbing into that cab and in the absence of any mechanical defect in the vehicle -- it's my opinion that the fall was due to incoordination on the basis of an elevated blood-alcohol level. (Def. Ex. F, pp. 54 & 55) Dr. Stephens admitted that he did not know several foundation elements of the claimant's blood alcohol tests but the information he examined is the kind of information upon which he usually relies. He did confirm that no other drugs were found in the claimant. Dr. Stephens agreed that he could equally conclude that claimant could have fallen from inside the truck. He also gave the following testimony: ALBERTSON V. I-29 COUNTRY DIESEL Page 14 A. If his boots are inside the truck, it implies that he was either in the truck cab or for some reason best known to himself he took his boots off. In regards to whether or not the door was defective or not defective, I have no way to express any kind of opinion on that. Even if the door were not defective, it's quite possible that he may have climbed in the cab, I suppose, and partially closed it or leaned against the handle. I don't know the configuration of that cab. Anything is possible. If the cab door was defective, I suppose it's possible that he popped out and he fell out of it, sure. (Def. Ex. F, pp. 106 & 107) Dr. Stephen speculated that claimant may have fallen getting in the truck but that it was equally possible that he fell out of the cab (Def. Ex. F, pp. 104-108). Richard E. Jensen, Ph.D., an analytical chemist who specializes in alcohol and drugs, testified by deposition for the claimant. He stated that he is the director of Forensic Toxicology at the Metropolitan Medical Center in Minneapolis, Minnesota and that he also has formed his own company entitled Forensic Associates, Inc. His curriculum vitae contains numerous highly respectable credentials (Cl. Ex. 11, Dep. Ex. A). Jensen examined the medical records and the testimony of Dr. Carrion and Dr. Stephens and other witnesses in this case and concluded that several deficiencies in the evidence make it impossible to form a reliable opinion on whether the claimant was intoxicated or not (Cl. Ex. 11). The most that Jensen could establish was that some alcohol had been consumed (Cl. Ex. 11, p. 36). In response to whether or not the consumption of alcohol under the facts of this case was the probable cause of the claimant's fall Jensen testified as follows: Now, based upon those salient facts that I have just asked you to assume, and based upon a reasonable degree of scientific certainty, do you have an opinion as to whether or not the consumption of alcohol by Terry Albertson had anything to do with or was the probable cause of his fall? And you may answer yes or no to that. Do you have an opinion? A. Yes, I have an opinion. Q. What is your opinion? A. My opinion is that I don't feel it has any effect at all on the fall, as you described the circumstances of your hypothetical. Q. Have you found any connection anywhere between any consumption of alcohol, regardless of the degree, and the fall? A. No, I have not. ALBERTSON V. I-29 COUNTRY DIESEL Page 15 Q. And do you then have any opinion as to whether or not there is sufficient probative or competent evidence in any of the records that we have today presented to you, heretofore or today, as to whether or not we could come to any conclusions with regard to Terry Albertson's alcohol content at the time of his fall? A. There is nothing that will provide us with that information. We can come to no conclusion about that. (Cl. Ex. 11, pp. 74 & 75) After lengthy examination and cross-examination Jensen confirmed that in his opinion none of the alcohol tests in this case have any probative value and that there has been no showing that alcohol had any effect on whether or not the claimant fell from the truck (Cl. Ex. 11, p. 138). 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 May 12, 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). The words "out of" refer to the cause or source of the injury. Crowe, 246 Iowa 402, 68 N.W.2d 63 (1955). The test of whether an injury arose out of employment is whether there is a causal connection between conditions under which the work was performed and the resulting injury, i.e., whether the injury followed as a natural incident of the work. The employment must be a proximate contributing cause. Musselman, 261 Iowa 352, 355, 360, 154 N.W.2d 128, 130, 132 (1967). A cause is proximate if it is a substantial factor in bringing about the result. It only needs to be one cause; it does not have to be the only cause. Blacksmith v. All American, Inc., 290 N.W.2d 348, 354 (1980). This may be best illustrated by the language used in Burt v. ALBERTSON V. I-29 COUNTRY DIESEL Page 16 John Deere Waterloo Tractor Works, 247 Iowa 691, 700, 701, 73 N.W.2d 732, 737 (1955) when the court cited from a Massachusetts case as follows: The court said in In re McNicol, 215 Mass. 497, 499, 102 N.E. 697, L. R. A. 1916A 306: "It Oarises out ofO the employment, when there is apparent to the rational mind, upon consideration of all the circumstances, a causal connection between the conditions under which the work is required to be performed and the resulting injury. Under this test, if the injury can be seen to have followed as a natural incident of the work and to have been contemplated by a reasonable person familiar with the whole situation as a result of the exposure occasioned by the nature of the employment, then it arises Oout ofO the employment.O(Emphasis supplied.) The Burt court then gave an illustration of these principles by citing an Iowa case that has some similarities to the instant case in these words: Also see Reddick v. Grand Union Tea Co., 230 Iowa 108, 116, 296 N.W. 800, 804, where we said: "We think the record also presents sufficient evidence that the injury arose out of the employment; that is, a causal connection fairly appears between the conditions under which the work was performed and the resulting injury-the injury followed as a natural incident of the work." In that case claimant recovered as a result of the death of the employee by carbon monoxide poisoning from a car exhaust in the place where he was required to work. The Iowa Supreme Court has recognized a concept of "continuous employment" for traveling employees when the employer furnishes lodging and other expenses and has found that a traveling employee out of town crossing a street to get a meal on a Sunday evening did receive an injury both arising out of and in the course of employment. Walker v. Speeder Mach. Corp., 213 Iowa 1134, 1146, 1149, 240 N.W. 725 (1932). Although not specifically relied upon in this decision, it is appropriate to point out that some commentators have questioned whether Iowa may or may not have adopted the positional risk doctrine in Cedar Rapids Community Sch. v. Cady, 278 N.W.2d 298 (Iowa 1979) where the court found that where one employee assaulted and killed another employee at work under an insane delusion, it was an injury that arose out of and in the course of employment. Lawyer & Higgs, Iowa Workers' Compensation --Law & Practice, section 5-1, pages 32 & 33. All of these cases bear out that the workers' compensation law is for the benefit of the working person and should be liberally construed to that end. Thomas v. William Knudson & Son, Inc., 349 N.W.2d 124 (Iowa 1984). The courts are practically unanimous in holding that the term "injury arising out of and in the course of employment" should be given a broad liberal interpretation. Pohler v. T. W. ALBERTSON V. I-29 COUNTRY DIESEL Page 17 Snow Constr. Co., 239 Iowa 1018, 1019, 33 N.W.2d 416 (1948). 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). "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.O Cedar Rapids Comm. Sch. Dist., 278 N.W.2d 298 (Iowa 1979), McClure, 188 N.W.2d 283 (Iowa 1971), Musselman, 261 Iowa 352, 154 N.W.2d 128 (1967). Iowa Code section 85.61(6) provides: The words "personal injury arising out of and in the course of the employment" shall include injuries to employees whose services are being performed on, in, or about the premises which are occupied, used, or controlled by the employer, and also injuries to those who are engaged elsewhere in places where their employer's business requires their presence and subjects them to dangers incident to the business. (Emphasis added.) The claimant has the burden of proving by a preponderance of ALBERTSON V. I-29 COUNTRY DIESEL Page 18 the evidence that the injury of May 12, 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. 0. Boggs, 236 Iowa 296, 18 N.W.2d 607 (1945). A possibility is insufficient; a probability is necessary. Burt, 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). Actual work activity at the time of the injury is unnecessary. Bushing v. Iowa R. & L. Co., 208 Iowa 1010, 1019, 226 N.W. 719, 723 (1929). Emphasis is placed upon whether the employee is furthering the employer's business, Linderman v. Cownie Furs, 234 Iowa 708, 710, 13 N.W.2d 677, 679 1944), Sister Mary Benedict, 255 Iowa 847, 124 N.W.2d 548 (1963); whether or not the task is common to the job, Bushing, 208 Iowa 1010, 1018, 226 N.W. 719, 723 (1929); or outside of the usual employment duties, Petersen v. Corno Mills Co., 216 Iowa 894, 899, 249 N.W. 408, 410 (1933). Traveling employees are within the scope of their employment. while they pursue many of the activities of daily living while on the road. Walker, 213 Iowa 1134, 240 N.W. 725 (1932). They 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). Claimant has proven by a preponderance of the evidence that the injury arose out of and in the course of his employment with the employer. Claimant testified that he understood that he was responsible for the tractor and trailer and the load at all times when he was on the road. This is corroborated by the testimony of Whiter Horst and Brierly and other witnesses as well as the letter of abandonment signed by the claimant (Cl. Ex. 4). Claimant understood it was his duty to sleep in the truck. He and Brierly always slept in the truck. Motels were only authorized in exceptional circumstances according to White and Horst. There is no question about the fact that claimant was a traveling employee. Horst testified that truckers are under the control of the employer the entire time that they are out on the road and that they are responsible for the equipment and the load at all times. Claimant testified that he returned to the truck around midnight, got inside, put his boots and socks on the floor, and his outer shirt over the seat, put his knees up on the dash and went to sleep. The next thing he knew he was lying on the ground and could not get up and could not move his legs. There is nothing in the evidence to contradict his testimony. On the contrary, Brierly said that after the injury occurred he found the claimant's articles of clothing in the truck as the claimant ALBERTSON V. I-29 COUNTRY DIESEL Page 19 had testified. At 3:24 a.m., claimant was found laying beside the truck with a broken neck by an unknown passerby. There are no witnesses to how the claimant was injured or how the accident occurred. Claimant does not recall how he was injured. Dr. Stephens believed that he must have fallen from a height and granted that he could have fallen from the truck or fallen while trying to get into it. Although no one knows how or why the claimant fell, all the persons who advanced a theory do speculate that he must have fallen from a height. The fact of a broken neck seems to bear out this assumption and this was also Dr. Carrion's opinion that a fall was consistent with the claimant's injury. The cab of the truck is several feet off of the ground. Some reports place it as high as 10 feet off the ground. If an employee is required to sleep several feet above the ground level in a truck, then it can be said that falling from a height and becoming injured is a natural incident, a proximate cause, one cause and a substantial factor in consideration of all the circumstances by a person familiar with the whole situation. As a traveling employee under the total control of the employer, the claimant was engaged in continuous employment. His work placed him in a position where such an injury could occur. But for his employment he would not have been at that time and in that place and in that situation that resulted in his injury. Thus, it is found that the injury did arise out of his employment and that his employment was the cause or source of the injury. The employee was at the place he was supposed to be, a place where his employer's business required his presence and subjected him to a danger incident to the business. Actual work activity is not necessary. Claimant was carrying out his instructions by his presence at the truck. His presence at the truck furthered his employer's interest and was common to the job of most truckers in the trucking industry and in particular this claimant's job with this employer. As a traveling employee, especially one that is under the constant control of his employer according to Horst, it is difficult to say claimant was not in continuous employment. Thus, it is found that the injury occurred in the course of his employment. It is not necessary to find whether the claimant deviated from his employment or not by drinking at the Bean Pot Bar, because at the time of the injury the claimant was at the truck where he was supposed to be. Dorman v. Carroll County, Iowa App. 316 N.W.2d 423 (1981); Pohler, 239 Iowa 1018, 33 N.W.2d 416 (1948). It is not necessary to determine whether claimant was in violation of Rule 392.5, Intoxicating Beverages of the Motor Carrier Safety Regulation Pocketbook because there was no evidence that either the claimant or Brierly or anyone intended to operate the truck or to do anything other than to sleep in it until the following morning which would be well over four hours after consuming any alcohol beverages. Furthermore, Horst could only testify that the claimant should have been given a copy of the pocketbook. He could not testify that the claimant was given a copy of the pocketbook. The claimant denied that he was given the pocketbook or the driver's manual at the time he received his ALBERTSON V. I-29 COUNTRY DIESEL Page 20 license. Claimant was intoxicated in some degree. Even Dr. Jensen said claimant had consumed some alcohol. The lay witnesses--Deffenbaugh, Gregory and Sindel--thought claimant was intoxicated. The doctors who treated the claimant at the hospital--Suarez, Bloomfield and Carrion--seemed to think that claimant was intoxicated. Dr. Stephens, the pathologist, thought claimant was intoxicated. Brierly, his companion, thought claimant was intoxicated, but not overly so. The claimant's intoxication, however, whatever the degree, did not prevent claimant from performing his duty at the time of the injury which was to get into the truck and go to sleep somewhere around midnight. The claimant was at the time and place where he was supposed to be and performing the duty that he was supposed to perform at that time. Therefore, his violation of the company rule against drinking while under dispatch, even if he was aware of such a rule, did not remove him from the course of his employment in this situation. Furthermore, it was not established that the claimant was informed that he could not drink in the evening during a layover. On the contrary, claimant's experience was that his trainer, Brierly, drank with him on practically all these occasions unless there was no bar in the vicinity. Horst could not say that the claimant was given a copy of the company rules or not. Claimant denied that he received a copy of the operator's manual. Brierly testified that it was common to drink during layovers and that it was commonly done and that he himself did it. Gene White said that he explained to the claimant that he was not to drink under dispatch. However, the claimant denied this and testified that no one instructed him that you could not drink on layover. Therefore, it has not been established by the evidence that the claimant did violate a company rule that had been clearly communicated to him. On the contrary the practice the claimant experienced with Brierly, his trainer, was that you could drink on layovers. Consequently, claimant has proven by a preponderance of the evidence that he did sustain an injury which arose out of and in the course of his employment. The defendants have asserted the claimant's intoxication as an affirmative defense. At the time this injury occurred Iowa Code section 85.16(2) (1981) was worded as follows: "No compensation under this chapter shall be allowed for an injury caused: ... 2. When intoxication of the employee was the proximate cause of the injury." The case of Reddick, 230 Iowa 108, 117, 296 N.W. 800,.804 (1941) held, O ... Intoxication, in order to be a defense, must have been the proximate cause of the injury.O This was generally interpreted to mean that the intoxication had to be the sole proximate cause of the injury rather than a proximate cause of the injury. Lawyer & Higgs, Iowa Workers' Compensation --Law and Practice, section 7-4, page 63. Applying this rule to the instant case it is not possible to find that the intoxication was the sole proximate cause of the injury. Nor is it possible to find that intoxication was a proximate cause of the injury or even a substantial factor in bringing about the injury because there is absolutely no ALBERTSON V. I-29 COUNTRY DIESEL Page 21 evidence, only speculation, as to how or why the claimant fell and broke his neck. How the injury occurred is unknown. There is no direct evidence. There are no eye witnesses. The circumstantial evidence provides very little illumination. The claimant does not know why or how he fell. Claimant did not know how or why he fell at the time of the accident and he did not know how or why he fell at the time of the hearing. In order to find that intoxication was the sole proximate cause of the injury, it is necessary to know how the injury occurred and that is not known from the evidence in this case. There are a number of cases that have dealt with workers' compensation and accidents where consumption of alcoholic beverages was involved. The case of Lamb v. Standard Oil Co., 250 Iowa 911, 96 N.W.2d 730 (1959), involved a person who was involved in a fatal accident after drinking at the Top Hat in Fort Dodge, Iowa. The case involved a blood alcohol level of 196 and medical expert testimony that Lamb was intoxicated at the time of the accident. Lamb's car crashed into a tree after going out of control on an icy road. other cases include Farmers Elevator Co., Kingsley v. Manning, 286 N.W.2d 174 (Iowa 1979) and Hawk v. Jim Hawk Chevrolet-Buick, Inc., 282 N.W.2d 84 (Iowa 1979). The common thread that runs through all of the cases where benefits were awarded is that some cause other than intoxication existed and could have been the sole proximate cause of the accident. Where an accident is one which could occur in the absence of intoxication, the defendants fail to meet their burden of proof of the affirmative defense by evidence which shows a mere possibility or equipoise. Volk v. International Harvester Co., 252 Iowa 298, 106 N.W.2d 649 (1960). Several persons have speculated on how the injury occurred. Dr. Stephens and Dr. Carrion indicate that claimant fell from a height. The fact that his shirt, boots and socks were in the truck cab indicate that claimant was in the cab when he took them off. A C6-7 fracture is more common when a person lands on their head than on their feet. It would be necessary to get the body inverted from a standing, upright position into one where the head were lower than the rest of the body. If claimant were seated, the door opened and he fell, it is likely that he would fall head first since his buttocks would remain on the truck seat until the falling upper body pulled him off the seat. If one were not already in the cab, it would be somewhat more difficult to fall in such a manner as to land on one's head. The most common and logical theory seems to be that the claimant fell from the truck and broke his neck. The possibility that the passenger door was defective and popped open has not been rebutted. There is substantial evidence that the door on this model truck has to be slammed hard and sometimes several times in order to shut completely and securely. Claimant testified that he only slammed it once so that he would not disturb Brierly. Thus, the passenger door may not have closed tightly when claimant entered the truck. It is certainly possible that some third party may have opened the door and allowed claimant to fall. If any person had done so it would be ALBERTSON V. I-29 COUNTRY DIESEL Page 22 unlikely that they would step forward and subject themself to liability for the accident. A truck which appeared unoccupied to a person standing on the ground would be a likely target for a thief. Some other driver could have simply opened the door of the wrong truck. Numerous other possibilities could be conjectured. This case, like the Reddick case at page 117, cannot make a finding that the injury was caused by intoxication when such a decision would have to be based "largely on speculation, conjecture and mere surmise." If it is not known how the injury occurred, then how can it be said that intoxication caused it? Consequently, defendants have failed to prove by a preponderance of the evidence that the intoxication of the claimant was a proximate cause of the injury. The parties stipulated that the injury was the cause of both temporary and permanent disability. Therefore, the only remaining issue is to determine the nature and extent of disability. If claimant has an impairment to the body as a whole, an industrial disability has been sustained. Industrial disability was defined in Diederich v. Tri-City Railway Co., 219 Iowa 587, 593, 258 N.W. 899, 902 (1935) as follows: "It is therefore plain that the legislature intended the term 'disability' to mean 'industrial disability' or loss of earning capacity and not a mere 'functional disability' to be computed in the terms of ALBERTSON V. I-29 COUNTRY DIESEL Page 23 percentages of the total physical and mental ability of a normal man." The opinion of the supreme court in Olson v. Goodyear Service Stores, 255 Iowa 1112, 1121, 125 N.W.2d 251, 257 (1963) cited with approval a decision of the industrial commissioner for the following proposition: Disability * * * as defined by the Compensation Act means industrial disability, although functional disability is an element to be considered . . . In determining industrial disability, consideration may be given to the injured employee's age, education, qualifications, experience and his inability, because of the injury, to engage in employment for which he is fitted. * * * * Based upon the medical testimony, and particularly the testimony of Dr. Carrion, the inescapable decision must be that claimant is and has been permanently and totally disabled since the date of the injury. Dr. Carrion testified that the claimant is totally paralyzed from the shoulder level down. It is permanent. It will never be any better. It will probably get worse. Claimant can move his right hand and there was a little. motion in his upper left extremity. Otherwise, below that there is nothing and there never is going to be anything. Claimant will need continued medical care for the rest of his life. Dr. Carrion predicted severe emotional problems unless the claimant received psychiatric care and becomes more realistic about his physical condition. Claimant is a high school graduate without any advanced training. His past employments were all manual labor type of employments. The only bright spot in his recovery to date is that he has been able to drive a van with special controls. Otherwise he remains a wheelchair quadripalegic. Therefore, it is found that the claimant is and has been permanently and totally disabled since the date of the injury. FINDINGS OF FACT WHEREFORE, based upon the evidence presented, the following findings of fact are made: That claimant was employed by the defendant on or about April 12, 1983 as an apprentice over-the-road truck driver. That the claimant was injured on May 12, 1983 by falling from a height which resulted in a broken neck. Claimant was found lying beside his truck at 3:24 a.m. unable to move his extremities. That claimant was intoxicated at the time of the injury. That the injury caused the claimant to be paralyzed from the shoulders down and that he is a wheelchair quadriplegic at the present time. That there are no witnesses to the accident and the claimant ALBERTSON V. I-29 COUNTRY DIESEL Page 24 is unable to recollect how or why he fell. How or why he fell is unknown and cannot be determined from the evidence. CONCLUSIONS OF LAW WHEREFORE, based upon the evidence presented and the principles of law previously stated, the following conclusions of law are made: That the claimant did prove by a preponderance of the evidence that he sustained an injury that arose out of and in the course of his employment with the employer as an over-the-road apprentice truck driver (Iowa Code section 85.3(l) (1981)). That the injury caused the claimant to be permanently and totally disabled from the date of the injury (Iowa Code section 85.34 (3) (1981)). That the defendants failed to prove by a preponderance of the evidence that the claimant's intoxication was the proximate cause of the injury (Iowa Code section 85.16(2) (1981)). ORDER THEREFORE, IT IS ORDERED: That the defendants pay permanent total disability benefits to the claimant commencing on May 12, 1983 at the rate of one hundred seventy-nine and no/100 dollars ($179.00) per week. That the defendants pay accrued benefits in a lump sum. That interest will accrue under Iowa Code section 85.30. That the defendants pay the costs of this action pursuant to Division of Industrial Services Rule 343-4.33, formerly Iowa Industrial Commissioner Rule 500-4.33. That the defendants file claim activity reports as required by this agency pursuant to Division of Industrial Services Rule 343-3.1, formerly Iowa Industrial Commissioner Rule 500-3.1. Signed and filed this30th day of January, 1987. WALTER R. McMANUS, JR. DEPUTY INDUSTRIAL COMMISSIONER Copies To: Mr. Michael J. Murphy Mr. Lyle A. Rodenburg Attorneys at Law ALBERTSON V. I-29 COUNTRY DIESEL Page 25 201 Park Building Council Bluffs, Iowa 51501 Mr. R. Ronald Pogge Mr. E. J. Kelly Attorneys at Law 1040 Fifth Avenue Des Moines, Iowa 50314 1107; 1110; 1402.30 1403.30; 1601; 1804 Filed January 30, 1987 WALTER R. McMANUS, JR. BEFORE THE IOWA INDUSTRIAL COMMISSIONER TERRY ALBERTSON, Claimant, VS. FILE NO. 745347 I-29 COUNTRY DIESEL, A R B I T R A T I 0 N Employer, D E C I S I 0 N and GREAT WEST CASUALTY, Insurance Carrier, Defendants. 1107; 1110 Claimant, an apprentice over-the-road truck driver, while sleeping in the cab, apparently fell from the truck and broke his neck leaving him a wheelchair quadriplegic. There was abundant evidence that claimant was intoxicated at the time of the injury. 1402.30 It was held that as a traveling employee, and an employee that was under the 24 hour a day control of the employer, and as a person responsible for the truck and the load at all times, that claimant was in continuous employment. Therefore, the injury arose out of and in the course of his employment with the employer. 1403.30; 1601 There were no eye witnesses and no direct evidence on how or why claimant happened to fall and claimant did not know how it happened either. Numerous possibilities could be conjectured independent of the intoxication as to how the injury occurred. But if it is absolutely unknown how or why the accident happened, then it was impossible to say whether alcohol was the proximate cause or not. Injury occurred under section 85.16 (1981) when the statute read "the proximate cause of the injury." 1804 Claimant has been paralyzed from the shoulders down since the night of the injury and was held to be permanently and totally disabled since then.