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.