BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
        
 
        
 
        
 
        JOHN W. MAHLBERG,
 
        
 
            Claimant,                   File No. 745455
 
        
 
        vs                                 A P P E A L
 
        
 
        MEER DRYWALL COMPANY, INC.,     D E C I S I O N 
 
        
 
           Employer,
 
           Defendant.
 
        
 
        
 
        
 
                                 STATEMENT OF THE CASE
 
        
 
        Claimant appeals from an arbitration decision denying all 
 
        compensation because he failed to establish that he was an 
 
        employee of Meek Drywall Company, Inc., at the time he was 
 
        injured.
 
        
 
        The record on appeal consists of the transcript of the 
 
        arbitration hearing; claimant's exhibits 1 through 7; defendant's 
 
        exhibit A; and joint exhibit B. Both parties filed briefs on 
 
        appeal.
 
        
 
                                      ISSUE
 
        
 
        The issue on appeal is whether claimant was an employee of Meek 
 
        Drywall Company, Inc., at the time he was injured.
 
        
 
                                 REVIEW OF THE EVIDENCE
 
        
 
        The arbitration decision adequately and accurately reflects the 
 
        pertinent evidence and it will not be totally reiterated herein.
 
        
 
        Claimant sustained an injury to the left shoulder on September 
 
        12, 1983 resulting in a 12 percent permanent partial impairment 
 
        to his left arm. At the time of the injury claimant was 
 
        installing drywall in a house (referred to as the Heckerman house 
 
        by the parties) near Council Bluffs, Iowa.
 
        
 
        James Mings, owner of K & M Contracting, Inc. (K & M) testified 
 
        that K & M was the general contractor for the Heckerman house 
 
        where claimant was installing drywall. Mings also stated that he 
 
        subcontracted the drywall installation to Byron Meek.
 
        
 
        John Woolridge, owner of Council Bluffs Drywall Sales, Inc. 
 
        (Council Bluffs Drywall), testified that Council Bluffs Drywall
 
        
 
        MAHLBERG V. MEEK DRYWALL COMPANY, INC.
 
        Page 2
 
        
 
        
 
        supplied the drywall material for the Heckerman house. Woolridge 
 
        also indicated that claimant and some Council Bluffs Drywall 
 
        employees drove a company truck to the Heckerman house drywall 
 
        job on the day claimant was injured and that Byron Meek was 
 
        working on another house for Council Bluffs Drywall.
 
        
 

 
        
 
 
 
 
 
        Byron Meek, owner of Meek Drywall Company, Inc. (hereinafter Meek 
 
        Drywall) states that claimant was an employee of Council Bluffs 
 
        Drywall at the time he was injured. Meek asserts that he and 
 
        Woolridge had an agreement under which Council Bluffs Drywall 
 
        would supply labor and materials to Meek Drywall and would bill 
 
        Meek Drywall. Meek claims this agreement was used because Meek 
 
        Drywall did not have workers' compensation insurance and that 
 
        this agreement was, in effect, beginning with the job just prior 
 
        to the one on which claimant was injured (referred to as the 
 
        Traynor house by the parties).
 
        
 
                                 APPLICABLE LAW
 
        
 
        The citations of law in the arbitration decision are appropriate 
 
        to the issues and evidence.
 
        
 
                                      ANALYSIS
 
        
 
        Contrary to claimant's argument, the finding in the prior 
 
        arbitration decision that claimant was not an employee of Council 
 
        Bluffs Drywall when injured does not compel a finding in this 
 
        proceeding that claimant was an employee of Meek Drywall at the 
 
        time of the injury. In this proceeding claimant must establish 
 
        that there was an employer-employee relationship between himself 
 
        and Meek Drywall at the time he was injured. Claimant has not 
 
        established this relationship by a preponderance of the evidence 
 
        presented. The deputy poignantly explains claimant's situation:
 
        
 
        It is noted that the evidence presented in this proceeding 
 
        differs substantially from that found in the review of the 
 
        evidence in Mahlberg vs. Council Bluffs Drywall, Inc., filed 
 
        October 23, 1984. We are held to the evidence presented in this 
 
        record. On this record it cannot be found that claimant was an 
 
        employee of Meek Drywall when injured.
 
        
 
        (Arbitration Decision, November 18, 1985, page 9)
 
        
 
        The deputy then analyzes the evidence presented; that analysis is 
 
        correct and will not be expanded upon.
 
        
 
        It was incorrect, however, for the deputy to find that claimant 
 
        was an employee of Council Bluffs Drywall since Council Bluffs 
 
        Drywall was not a party in this proceeding. This is correctly 
 
        pointed out in claimant's appeal brief. (Note:
 
        
 
        MAHLBERG V. MEEK DRYWALL COMPANY, INC.
 
        Page 3
 
        
 
        
 
        Review of the industrial commissioner's file in this matter 
 
        reveals that the caption of the hearing assignment order and 
 
        post-hearing order as well as the first sentence of the 
 
        introduction of the arbitration decision filed November 18, 1985 
 
        indicate that Council Bluffs Drywall is the defendant in this 
 
        proceeding. This is merely a clerical error. The petition filed 
 
        October 29, 1984 which commenced this proceeding names Meek 
 
        Drywall as the only defendant. No amendment was made to this 
 
        petition. At the hearing claimant's attorney stated that this 
 
        action was against Meek Drywall (Transcript, p. 5). The conduct 
 
        and filings of the parties in this matter clearly indicate that 
 
        Council Bluffs Drywall was at no time a party to this 
 
        proceeding.) Even if Council Bluffs Drywall had been a party to 
 
        this proceeding, the deputy should not have made a finding that 
 
        claimant was an employee of Council Bluffs Drywall because the 
 
        1984 arbitration decision is binding on the issue of whether 
 
        claimant was an employee of Council Bluffs Drywall at the time of 
 

 
        
 
 
 
 
 
        the injury alleged herein.
 
        
 
        The combined results of this decision and the 1984 arbitration 
 
        decision may seem unfair. However, claimant chose his course of 
 
        action in this matter. Claimant could have appealed the 1984 
 
        arbitration decision. Claimant could also have named both Meek 
 
        Drywall and Council Bluffs Drywall as defendants on his first 
 
        petition. See Iowa R.Civ.P. 24 and Division of Industrial 
 
        Services Rule 343-4.35 (86).
 
        
 
                                 FINDINGS OF FACT
 
        
 
        1. Council Bluffs Drywall employees including claimant and Byron 
 
        Meek reported to Council Bluffs Drywall before beginning and 
 
        leaving work each day.
 
        
 
        2. Woolridge, for-Council Bluffs Drywall, selected the Council 
 
        Bluffs Drywall employees who worked on the Heckerman house 
 
        project and could at will terminate their work on that project.
 
        
 
        3. Claimant, as a Council Bluffs Drywall foreman, supervised 
 
        drywalling at the Heckerman house.
 
        
 
        4. Woolridge had appeared at the Heckerman house to supervise 
 
        stocking work.
 
        
 
        5. Claimant and a fellow Council Bluffs Drywall employee traveled 
 
        to and from the Heckerman house in a Council Bluffs Drywall 
 
        truck.
 
        
 
        6. Woolridge and Meek entered into an agreement under which 
 
        Council Bluffs Drywall would supply labor and materials and would 
 
        bill Meek Drywall. This agreement covered the Traynor house and 
 
        Heckerman house projects.
 
        
 
        MAHLBERG V . MEEK DRYWALL COMPANY, INC.
 
        Page 4
 
        
 
        
 
        7. Local drywallers believed claimant to be a Council Bluffs 
 
        Drywall employee.
 
        
 
        8. Council Bluffs Drywall was responsible for claimant's wages on 
 
        the Heckerman house project, controlled his work on the project 
 
        and was the authority identified as in charge of claimant's work.
 
        
 
                                 CONCLUSION OF LAW
 
        
 
        Claimant has failed to establish an employer-employee 
 
        relationship between himself and Meek Drywall on September 12, 
 
        1983.
 
        
 
        WHEREFORE, the decision of the deputy is affirmed and modified.
 
        
 
                                      ORDER
 
                                                
 
        THEREFORE, it is ordered:
 
        
 
        That claimant take nothing from these proceedings.
 
        
 
        That defendants pay the costs of the arbitration proceeding and 
 
        claimant pay the costs of the appeal including the transcription 
 
        of the hearing proceeding.
 
        
 
        
 
        Signed and filed this 9th day of September, 1987.
 

 
        
 
 
 
 
 
        
 
        
 
        
 
                                               DAVID E. LINQUIST
 
                                            INDUSTRIAL COMMISSIONER
 
         
 
        
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                    BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         _________________________________________________________________
 
         
 
         
 
         JOHN W. MAHLBERG,
 
         
 
              Claimant,
 
                                                 File No. 745455
 
         VS.
 
                                                   A P P E A L
 
         MEEK DRYWALL COMPANY, INC.,
 
                                                 D E C I S I 0 N 
 
              Employer,
 
              Defendant.
 
         _________________________________________________________________
 
         _
 
         
 
                              STATEMENT OF THE CASE
 
         
 
              Claimant appeals from an arbitration decision denying all 
 
         compensation because he failed to establish that he was an 
 
         employee of Meek Drywall Company, Inc., at the time he was 
 
         injured.
 
         
 
              The record on appeal consists of the transcript of the 
 
         arbitration hearing; claimant's exhibits 1 through 7; defendant's 
 
         exhibit A; and joint exhibit B.  Both parties filed briefs on 
 
         appeal.
 
         
 
                                   ISSUE
 
         
 
              The issue on appeal is whether claimant was an employee of 
 
         Meek Drywall Company, Inc., at the time he was injured.
 
         
 
                            REVIEW OF THE EVIDENCE
 
         
 
              The arbitration decision adequately and accurately reflects 
 
         the pertinent evidence and it will not be totally reiterated 
 
         herein.
 
         
 
              Claimant sustained an injury to the left shoulder on 
 
         September 12, 1983 resulting in a 12 percent permanent partial 
 
         impairment to his left arm.  At the time of the injury claimant 
 
         was installing drywall in a house (referred to as the Heckerman 
 
         house by the parties) near Council Bluffs, Iowa.
 
         
 
              James Mings, owner of K & M Contracting, Inc. (K & M) 
 
         testified that K & M was the general contractor for the Heckerman 
 
         house where claimant was installing drywall.  Mings also stated 
 
         that he subcontracted the drywall installation to Byron Meek.
 
         
 
              John Woolridge, owner of Council Bluffs Drywall Sales, Inc. 
 
         (Council Bluffs Drywall), testified that Council Bluffs Drywall 
 
         supplied the drywall material for the Heckerman house.  Woolridge 
 
         also indicated that claimant and some Council Bluffs Drywall 
 
         employees drove a company truck to the Heckerman house drywall 
 
         job on the day claimant was injured and that Byron Meek was 
 
         working on another house for Council Bluffs Drywall.
 
         
 
              Byron Meek, owner of Meek Drywall Company, Inc. (hereinafter 
 

 
         Meek Drywall) states that claimant was an employee of Council 
 
         Bluffs Drywall at the time he was injured.  Meek asserts that he 
 
         and Woolridge had an agreement under which Council Bluffs Drywall 
 
         would supply labor and materials to Meek Drywall and would bill 
 
         Meek Drywall.  Meek claims this agreement was used because Meek 
 
         Drywall did not have workers' compensation insurance and that 
 
         this agreement was, in effect, beginning with the job just prior 
 
         to the one on which claimant was injured (referred to as the 
 
         Traynor house by the parties).
 
         
 
                                APPLICABLE LAW
 
         
 
              The citations of law in the arbitration decision are 
 
         appropriate to the issues and evidence.
 
         
 
                                     ANALYSIS
 
         
 
              Contrary to claimant's argument, the finding in the prior 
 
         arbitration decision that claimant was not an employee of Council 
 
         Bluffs Drywall when injured does not compel a finding in this 
 
         proceeding that claimant was an employee of Meek Drywall at the 
 
         time of the injury.  In this proceeding claimant must establish 
 
         that there was an employer-employee relationship between himself 
 
         and Meek Drywall at the time he was injured.  Claimant has not 
 
         established this relationship by a preponderance of the evidence 
 
         presented.  The deputy poignantly explains claimant's situation:
 
         
 
              It is noted that the evidence presented in this proceeding 
 
         differs substantially from that found in the review of the 
 
         evidence in Mahlberg vs.  Council Bluffs Drywall, Inc., filed 
 
         October 23, 1984.  We are held to the evidence presented in this 
 
         record.  On this record it cannot be found that claimant was an 
 
         employee of Meek Drywall when injured.
 
         
 
         (Arbitration Decision, November 18, 1985, page 9)
 
         
 
              The deputy then analyzes the evidence presented; that 
 
         analysis is correct and will not be expanded upon.
 
         
 
              It was incorrect, however, for the deputy to find that 
 
         claimant was an employee of Council Bluffs Drywall since Council 
 
         Bluffs Drywall was not a party in this proceeding.  This is 
 
         correctly pointed out in claimant's appeal brief. (Note:  Review 
 
         of the industrial commissioner's file in this matter reveals that 
 
         the caption of the hearing assignment order and post-hearing 
 
         order as well as the first sentence of the introduction of the 
 
         arbitration decision filed November 18, 1985 indicate that 
 
         Council Bluffs Drywall is the defendant in this proceeding.  This 
 
         is merely a clerical error.  The petition filed October 29, 1984 
 
         which commenced this proceeding names Meek Drywall as the only 
 
         defendant.  No amendment was made to this petition.  At the 
 
         hearing claimant's attorney stated that this action was against 
 
         Meek Drywall (Transcript, p. 5).  The conduct and filings of the 
 
         parties in this matter clearly indicate that Council Bluffs 
 
         Drywall was at no time a party to this proceeding.) Even if 
 
         Council Bluffs Drywall had been a party to this proceeding, the 
 
         deputy should not have made a finding that claimant was an 
 
         employee of Council Bluffs Drywall because the 1984 arbitration 
 
         decision is binding on the issue of whether claimant was an 
 
         employee of Council Bluffs Drywall at the time of the injury 
 
         alleged herein.
 
         
 
              The combined results of this decision and the 1984 
 
         arbitration decision may seem unfair.  However, claimant chose 
 

 
         
 
         
 
         
 
         MAHLBERG V. MEEK DRYWALL COMPANY
 
         Page   3
 
         
 
         
 
         his course of action in this matter.  Claimant could have 
 
         appealed the 1984 arbitration decision.  Claimant could also have 
 
         named both Meek Drywall and Council Bluffs Drywall as defendants 
 
         on his first petition.  See Iowa R.Civ.P. 24 and Division of 
 
         Industrial Services Rule-343-4.35 (86).
 
         
 
                              FINDINGS OF FACT
 
         
 
              1.  Council Bluffs Drywall employees including claimant and 
 
         Byron Meek reported to Council Bluffs Drywall before beginning 
 
         and leaving work each day.
 
         
 
              2.  Woolridge, for Council Bluffs Drywall, selected the 
 
         Council Bluffs Drywall employees who worked on the Heckerman 
 
         house project and could at will terminate their work on that 
 
         project.
 
         
 
              3.  Claimant, as a Council Bluffs Drywall foreman, 
 
         supervised drywalling at the Heckerman house.
 
         
 
              4.  Woolridge had appeared at the Heckerman house to 
 
         supervise stocking work.
 
         
 
              5.  Claimant and a fellow Council Bluffs Drywall employee 
 
         traveled to and from the Heckerman house in a Council Bluffs 
 
         Drywall truck.
 
         
 
              6.  Woolridge and Meek entered into an agreement under which 
 
         Council Bluffs Drywall would supply labor and materials and would 
 
         bill Meek Drywall.  This agreement covered the Traynor house and 
 
         Heckerman house projects.
 
         
 
              7.  Local drywallers believed claimant to be a Council 
 
         Bluffs Drywall employee.
 
         
 
              8.  Council Bluffs Drywall was responsible for claimant's 
 
         wages on the Heckerman house project, controlled his work on the 
 
         project and was the authority identified as in charge of 
 
         claimant's work.
 
         
 
                                CONCLUSION OF LAW
 
         
 
              Claimant has failed to establish an employer-employee 
 
         relationship between himself and Meek Drywall on September 12, 
 
         1983.
 
         
 
              WHEREFORE, the decision of the deputy is affirmed and 
 
              modified.
 
         
 
                                      ORDER
 
         
 
              THEREFORE, it is ordered:
 
         
 
              That claimant take nothing from these proceedings.
 
         
 
              That defendants pay the costs of the arbitration proceeding 
 
         and claimant pay the costs of the appeal including the 
 
         transcription of the hearing proceeding.
 
         
 

 
         
 
         
 
         
 
         MAHLBERG V. MEEK DRYWALL COMPANY
 
         Page   4
 
         
 
         
 
         
 
              Signed and filed this 9th day of September, 1987.
 
         
 
         
 
         
 
         
 
         
 
                                                 DAVID E. LINQUIST
 
                                                 INDUSTRIAL COMMISSIONER
 
         
 
         Copies To:
 
         
 
         Mr. Thomas L. Root
 
         Attorney at Law
 
         P.O. Box 1502
 
         Council Bluffs, Iowa 51502
 
         
 
         Mr. David E. Richter
 
         Attorney at Law
 
         222 South 6th Street
 
         Council Bluffs, Iowa 51501
 
         
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                            1402.10 - 2000 - 2001
 
                                            Filed September 9, 1987
 
                                            DAVID E. LINQUIST
 
         
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         _________________________________________________________________
 
         
 
         
 
         JOHN W. MAHLBERG,
 
         
 
              Claimant,
 
                                                 File No. 745455
 
         VS.
 
                                                   A P P E A L
 
         MEEK DRYWALL COMPANY, INC.,
 
                                                 D E C I S I 0 N
 
              Employer,
 
              Defendant.
 
         _________________________________________________________________
 
         
 
         
 
         1402.10 - 2000 - 2001
 
         
 
              Claimant failed to establish an employer-employee 
 
         relationship between himself and Meek Drywall at the time of 
 
         injury.  Contrary to claimant's argument, the finding in a prior 
 
         arbitration decision that claimant was not an employee of Council 
 
         Bluffs Drywall when injured does not compel a finding that 
 
         claimant was an employee of Meek Drywall at the time of injury.
 
 
 
         
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         LEE A. SCHROMEN,
 
         
 
              Claimant,
 
         
 
         vs.                                       File No.  747055
 
         
 
         C. F. CARR CONSTRUCTION, INC.,         A R B I T R A T I 0 N
 
         
 
              Employer,                            D E C I S I 0 N
 
         
 
         and
 
         
 
         WEST BEND MUTUAL,
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
         
 
                                   INTRODUCTION
 
         
 
              This is a proceeding in arbitration brought by Lee A. 
 
         Schromen, claimant, against C. F. Carr Construction, Inc., 
 
         employer and West Bend Mutual, insurance carrier, defendants for 
 
         benefits as a result of an injury that occurred on October 10, 
 
         1983.  A hearing was held in Dubuque, Iowa on May 12, 1988 and 
 
         the case was fully submitted at the close of the hearing.  The 
 
         record consists of the testimony of Lee A. Schromen (claimant), 
 
         claimantOs exhibits 1 through 10 and defendants' exhibits A 
 
         through 1.  Both parties submitted excellent briefs.  There was 
 
         extensive unnecessary duplication of exhibits.  Many of the 
 
         documents appeared as many as three times.  The parties did not 
 
         coff,ply with paragraph 10(2) of the hearing assignment order 
 
         that directs that every reasonable effort should be made to avoid 
 
         duplication of exhibits.
 
         
 
                                STIPULATIONS
 
         
 
              The parties stipulated to the following matters:
 
         
 
              That an employer-employee relationship existed between 
 
         claimant and employer at the time of the injury;
 
         
 
              That claimant sustained an injury on October 10, 1983 to his 
 
         right knee which arose out of and in the course of employment 
 
         with employer;
 
         
 
              That the injury to the right knee was the cause of some 
 
         temporary and some permanent disability;
 
              That claimant is entitled to healing period benefits from 
 
         October 11, 1983 to March 10, 1984 for the injury to the right 
 
         knee and that claimant has already been paid healing period 
 
         benefits for this period of time;
 
         
 
              That the rate of compensation, in the event of an award, is 
 
         $161.09 per week;
 

 
         
 
         
 
         
 
         SCHROMEN V. C. F. CARR CONSTRUCTION, INC.
 
         Page   2
 
         
 
         
 
              That the fees charged for medical services and supplies are 
 
         fair and reasonable;
 
         
 
              That defendants claim no credit under Iowa Code section 
 
         85.38(2) for benefits paid prior to hearing under an employee 
 
         nonoccupational group health plan;
 
         
 
              That defendants are entitled to a credit for the actual 
 
         workers' compensation benefits paid prior to hearing.  Defendants 
 
         claim they paid 46 weeks of permanent partial disability 
 
         benefits. claimant contended that he only received 42 weeks of 
 
         permanent partial disability benefits; and
 
         
 
              That there are no bifurcated claims.
 
         
 
         
 
                                      ISSUES
 
         
 
              The parties submitted the following issues for determination 
 
         at the time of the hearing:
 
         
 
              Whether the injury of October 10, 1983 was the cause of a 
 
         second surgery to the right knee on September 13, 1984 and 
 
         whether the injury of October 10, 1983 was a cause of a back 
 
         injury in October of 1985;
 
         
 
              Whether either the second right knee surgery or the alleged 
 
         back injury was the cause of either temporary or permanent 
 
         disability;
 
         
 
              Whether claimant is entitled to temporary disability 
 
         benefits as a result of the second right knee surgery from 
 
         September 13, 1984 to January 14, 1985;
 
         
 
              Whether claimant is entitled to temporary disability 
 
         benefits as a result of the alleged back injury;
 
         
 
              Whether claimant is entitled to permanent disability 
 
         benefits as a result of the second knee surgery and the alleged 
 
         back injury; and
 
         
 
              Whether claimant is entitled to medical benefits as a result 
 
         or the second right knee surgery and the alleged back injury.
 
         
 
         
 
                             SUMMARY OF THE EVIDENCE
 
         
 
              All of the evidence was examined and considered.  The 
 
         following is a summary of the pertinent evidence:
 
         
 
              Claimant fell off a ladder and twisted his right knee on 
 
         October 10, 1983 (defendants' exhibit 1, pages 1-6).  Julian G. 
 
         Nemmers, M.D., performed surgery on October 12, 1983 (Ex. F, pp. 
 
         33-39; Ex. I, pp. 29-32 and p. 38).  Claimant was off work from 
 
         October 10, 1983 to March 10, 1984.  Claimant was paid healing 
 
         period benefits for this period of time.  Employer had no work 
 
         that claimant could do when the healing period ended.  Claimant, 
 
         therefore, drew unemployment compensation between approximately 
 
         March 10, 1984 and April 10, 1984.  Then from approximately April 
 

 
         
 
         
 
         
 
         SCHROMEN V. C. F. CARR CONSTRUCTION, INC.
 
         Page   3
 
         
 
         of 1984 to June of 1984, claimant worked in Oklahoma framing 
 
         houses and finishing cement for two different contractors.  In 
 
         June of 1984, claimant returned to Dubuque and worked for a 
 
         former employer by the name of Adams Company.  Claimant then had 
 
         a second surgery on his right knee performed by Dr. Nemmers on 
 
         September 13, 1984 (Ex. 1, pp. 11-13; Ex. 2, pp. 2 & 3; Ex. F, 
 
         pp. 40-42; Ex.  I, pp. 50-52).  Claimant was off work as a result 
 
         of the second right knee surgery from September 13, 1984 to 
 
         January 14, 1985.  Claimant testified that the workers' 
 
         compensation carrier paid for the surgery but did not pay him 
 
         healing period benefits for the period of recovery.  Claimant 
 
         testified that in May of 1985 his right knee would pop out when 
 
         he was framing houses and finishing concrete but he did not make 
 
         a workers' compensation claim against either one of those 
 
         employers.
 
         
 
              As to the second right knee surgery, Dr. Nemmers stated on 
 
         September 17, 1984:
 
         
 
                 Lee Schromen returned to my office on September 7, 
 
              1984, complaining of continuing pain in the right knee.  
 
              X-rays again showed the patellar malalignment, grade II 
 
              to III.  It is my opinion that he has an aggravation of 
 
              the patellar malalignment due to the injury of October 
 
              10, 1983. he has had patellar symptoms throughout the 
 
              course of his treatment and has elected at this time to 
 
              proceed with surgery.  This was carried out on 
 
              September 13, 1984, consisting of an arthroscopic 
 
              debridement of the right knee and lateral retinacular 
 
              release.  It is my opinion that he will be disabled for 
 
              a period of no less than 6-8 weeks following this 
 
              surgery.
 
         
 
         (Ex. 1, p. 14; Ex. E, p. 7)
 
         
 
              Dr. Nemmers further clarified the situation for the 
 
         insurance carrier on October 8, 1984 in the following words:
 
         
 
                 As I stated in my letter of September 17, 1984, Lee 
 
              Schromen has suffered from symptoms of chondromalacia 
 
              throughout his course of treatment for the injury to 
 
              his right knee sustained October 10, 1983.  I became 
 
              aware of his pain at his visit of November 18, 1983, 
 
              when he complained of patellar pain with doing his knee 
 
              exercises.  It was my opinion at that time that he had 
 
              traumatic chondromalacia of the patella due to his 
 
              injury of October 10, 1983.  Grade II to III patellar 
 
              malalignment was present also throughout the course of 
 
              his treatment and I felt that he had aggravated the 
 
              malalignment with the injury of October 10, 1983.
 
         
 
                 The arthroscopic debridement of the knee was 
 
              performed because of the traumatic chondromalacia of 
 
              the patella.  The lateral release was performed because 
 
              of the patellar malalignment.  I do not believe the 
 
              chondromalacia was present prior to his injury.  The 
 
              malalignment of the patella was a pre-existing 
 
              condition to the best of my estimation, but I do not 
 
              believe he was having problems with this until the 
 
              injury and resultant traumatization to that area.
 

 
         
 
         
 
         
 
         SCHROMEN V. C. F. CARR CONSTRUCTION, INC.
 
         Page   4
 
         
 
         
 
         (Ex. 1, p. 15; Ex. E, p. 8)
 
         
 
              Dr. Nemmers awarded a 20 percent permanent functional 
 
         impairment rating as a result of both right knee surgeries and 
 
         described claimantOs condition as follows on May 2, 1985:
 
         
 
                 Lee Schromen was evaluated by me for permanent 
 
              impairment on April 26, 1985.  X-rays on that date show 
 
              changes of traumatic arthritis developing on the medial 
 
              joint line of the right knee.  He has also started to 
 
              develop a spur off the medial edge of the medial 
 
              femoral condyle of the right knee.
 
         
 
                 It is my opinion that he has a permanent impairment 
 
              of 20% of the right lower extremity as a result of the 
 
              injury to his right knee and subsequent surgical 
 
              treatment.  I do not foresee further medical treatment 
 
              in the next few years.  However, I do believe that the 
 
              degree of traumatic arthritis will gradually get worse 
 
              and this man might need knee replacement surgery when 
 
              he is 50 years old.  If not knee replacement surgery, 
 
              he may need a change in occupations.  I believe he has 
 
              reached maximal rehabilitation at this time.
 
         
 
         (Ex. 1, p. 19; Ex. E, p. 12)
 
         
 
              Claimant then returned to Oklahoma to work again as a 
 
         carpenter from January of 1985 to May of 1985.  He returned to 
 
         Dubuque and worked for his brother from May of 1985 to October of 
 
         1966 driving a truck and as a heavy equipment operator.  Claimant 
 
         contended in his testimony that he began having back pains in 
 
         April of 1985.  He sought chiropractic adjustments in October of 
 
         1985 (Ex. 8).  Dr. Nemmers did not record any back complaints 
 
         until April 25, 1986 when he stated that claimant was 
 
         experiencing pain behind his right knee which goes up into his 
 
         hip (Ex. F, p. 1).  Claimant testified that he had a lumbar 
 
         laminectomy in October of 1986 at L5 but he stated that this 
 
         surgery was not an issue in this claim.  Claimant testified that 
 
         he made no workers' compensation claim for this surgery.  He 
 
         stated that it was paid for by his wifeOs health insurance.
 
         
 
              Claimant conceded to defendants' counsel that it was 
 
         approximately one and one-half years from the time of the right 
 
         knee injury, on October 10, 1983, until he first experienced back 
 
         pain in April of 1985.  He further acknowledged that it was 
 
         approximately two and one-half years from the time of the right 
 
         knee injury, on October 10, 1983, until Dr. Nemmers first made a 
 
         medical record on April 25, 1986 of a pain that began behind the 
 
         right knee and ran up to the hip.  Claimant further acknowledged 
 
         that he worked for several employers after the right knee injury 
 
         on October 10, 1983.  He had framed houses, finished concrete, 
 
         worked as a carpenter, driven a truck, operated heavy equipment 
 
         and had worked as a machinist for the Adams Company.  Claimant 
 
         conceded that no doctor had related his back pain to the knee 
 
         surgery on October 10, 1983.
 
         
 
              Claimant testified that he did not know if the knee injury 
 
         of October 10, 1983 was the cause of his back pain, but he 
 
         believed that the pain behind his knee, that ran up to his hip, 
 

 
         
 
         
 
         
 
         SCHROMEN V. C. F. CARR CONSTRUCTION, INC.
 
         Page   5
 
         
 
         developed into the back condition that Dr. Nemmers mentioned on 
 
         April 25, 1986 (Ex. 2, p. 4; Ex. F, p. 1) and for which he began 
 
         chiropractic treatments in October of 1985 (Ex. 8).
 
         
 
              On October 25, 1986, Dr. Nemmers sent claimant to see 
 
         Charles R. Clark, M.D., at the University of Iowa Hospitals and 
 
         Clinics, Department of Orthopedic Surgery, for the pain that ran 
 
         up to the hip from behind the right knee.  Dr. Clark saw claimant 
 
         on June 3, 1986.  He reported on August 17, 1986 (1) that 
 
         claimant complained of his back with some mild nerve root 
 
         impingement; (2) that he (Dr. Clark) declined to rate the back 
 
         because he was treated by Dr. Nemmers after the injury of October 
 
         10, 1983 and (3) that claimant made no mention of a back problem 
 
         in Dr. Nemmers notes until 1986.  Dr. Clark refused to rate the 
 
         back and deferred to Dr. Nemmers opinion since Dr. Nemmers had 
 
         treated the claimant from the time of the initial injury on 
 
         October 10, 1983.
 
         
 
              Dr. Nemmers had previously stated on February 17, 1986, that 
 
         there was no causal connection between the right knee injury of 
 
         October 10, 1983 and any back problem claimant might be having.
 
         
 
         This is what Dr. Nemmers said:
 
         
 
                 I have extensively reviewed my record and, in my 
 
              opinion, there is no causal relationship between the 
 
              injury of October 10, 1983, and any back problem of 
 
              which Mr. Schromen might be having at the present time.  
 
              In other words, all injuries experienced in the fall of 
 
              October 10, 1983, are restricted to and limited to the 
 
              right lower extremity.  I find no mention of back 
 
              problems in my prior records.
 
         
 
         (Ex. E., p. 16)
 
         
 
              There is no subsequent evidence that Dr. Nemmers ever 
 
         changed this definitive opinion.
 
         
 
              There was evidence that claimant injured his right knee in a 
 
         car accident on August 4, 1979.  This was a minor injury and 
 
         described as a contusion and abrasion.  X-rays were negative (Ex. 
 
         B; Ex. F, p. 7).  Claimant had forgotten about this incident when 
 
         he was interrogated by defendants' counsel.  There was no 
 
         evidence of any residual effect from this earlier injury.
 
         
 
              Claimant also strained his back by pulling a carload of 
 
         parts at the Adams Company on January 3, 1980.  This was treated 
 
         conservatively.  Claimant received nine physical therapy 
 
         treatments (Ex. C & D).  Claimant said that he had no residual 
 
         effect from this earlier back injury.
 
         
 
              Claimant's past medical records show two motor vehicle 
 
         accidents, two motorcycle accidents and a number of other 
 
         injuries.  The old records do show that claimant had some 
 
         preexisting chondromalacia in his right knee and soreness in both 
 
         knees prior to the injury of October 10, 1983.  The 
 
         chondromalacia is reported on January 5, 1981 in both knees (Ex. 
 
         F, p. 10).
 
         
 
                           APPLICABLE LAW AND ANALYSIS
 

 
         
 
         
 
         
 
         SCHROMEN V. C. F. CARR CONSTRUCTION, INC.
 
         Page   6
 
         
 
         
 
              The claimant has the burden of proving by a preponderance of 
 
         the evidence that the injury of October 10, 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 v. 
 
         John Deere Waterloo Tractor Works, 247 Iowa 691, 73 N.W.2d 732 
 
         (1955).  The question of causal connection is essentially within 
 
         the domain of expert testimony.  Bradshaw v. Iowa Methodist 
 
         Hospital, 251 Iowa 375, 101 N.W.2d 167 (1960).
 
         
 
              However, expert medical evidence must be considered with all 
 
         other evidence introduced bearing on the causal connection.  
 
         Burt, 247 Iowa 691, 73 N.W.2d 732.  The opinion of experts need 
 
         not be couched in definite, positive or unequivocal language.  
 
         Sondag v. Ferris Hardware, 220 N.W.2d 903 (Iowa 1974).  However, 
 
         the expert opinion may be accepted or rejected, in whole or in 
 
         part, by the trier of fact.  Id. at 907.  Further, the weight to 
 
         be given to such an opinion is for the finder of fact, and that 
 
         may be affected by the completeness of the premise given the 
 
         expert and other surrounding circumstances.  Bodish, 257 Iowa 
 
         516, 133 N.W.2d 867.  See also Musselman v. Central Telephone 
 
         Co., 261 Iowa 352, 154 N.W.2d 128 (1967).
 
         
 
              While a claimant is not entitled to compensation for the 
 
         results of a preexisting injury or disease, the mere existence at 
 
         the time of a subsequent injury is not a defense.  Rose v. John 
 
         Deere Ottumwa Works, 247 Iowa 900, 908, 76 N.W.2d 756, 760-761 
 
         (1956). If the claimant had a preexisting condition or disability 
 
         that is aggravated, accelerated, worsened or lighted up so that 
 
         it results in disability, claimant is entitled to recover.  Nicks 
 
         v. Davenport Produce Co., 254 Iowa 130, 115 N.W.2d 812, 815 
 
         (1962).
 
         
 
              The right of a worker to receive compensation for injuries 
 
         sustained which arose out of and in the course of employment is 
 
         statutory.  The statute conferring this right can also fix the 
 
         amount of compensation to be paid for different specific 
 
         injuries, and the employee is not entitled to compensation except 
 
         as provided by the statute.  Soukup v. Shores Co., 222 Iowa 272, 
 
         268 N.W. 598 (1936).
 
         
 
              Claimant did sustain the burden of proof by a preponderance 
 
         of the evidence that the injury of October 10, 1983 was the cause 
 
         of the second right knee surgery on September 13, 1984.  Dr. 
 
         Nemmers, his treating physician, and the only physician to 
 
         address this issue, made it clear on September 17, 1984 and 
 
         October 8, 1984, that even though the claimant had a patellar 
 
         malalignment prior to the injury of October 10, 1983, 
 
         nevertheless, the injury of October 10, 1983 aggravated the 
 
         malalignment and necessitated the second surgery to the right 
 
         knee (Ex. E, pp. 7 & 8).  The parties agreed in the prehearing 
 
         report that claimant was off work as the result of this surgery 
 
         from September 13, 1984 to January 14, 1985.  Dr. Nemmers 
 
         released claimant to return to work on January 14, 1985 (Ex. 1, 
 
         p. 18).  Therefore, claimant is entitled to the costs of the 
 
         second surgery on September 13, 1984, which the parties agrees 
 
         and the record indicates had already been paid (Ex. 10).  
 
         Claimant is also entitled to healing period benefits for this 
 

 
         
 
         
 
         
 
         SCHROMEN V. C. F. CARR CONSTRUCTION, INC.
 
         Page   7
 
         
 
         period of time from September 13, 1984 to January 14, 1985 which 
 
         the parties agreed had not been paid.
 
         
 
              The permanent functional impairment rating of 20 percent of 
 
         the right lower extremity, determined by Dr. Nemmers on May 2, 
 
         1985, included both surgeries to the right knee.  Claimant has 
 
         already been paid permanent partial disability for a 20 percent 
 
         impairment of the right lower extremity under Iowa Code section 
 
         85.34(2)(0).  The parties agreed that claimant had been paid 
 
         permanent partial disability for the permanent functional 
 
         impairment to the right lower extremity.  Claimant's entitlement 
 
         was 44 weeks of benefits.  Defendants maintain they over paid 
 
         claimant two weeks by paying him 46 weeks of permanent partial 
 
         disability.  Claimant contended that he had only received 42 
 
         weeks permanent partial disability benefits.
 
              Claimant did not sustain the burden of proof by a 
 
         preponderance of the evidence that the injury of October 10, 
 
         1983, was the cause of a back problem.  Dr. Clark deferred to Dr. 
 
         Nemmers.  Dr. Nemmers said there was no causal connection between 
 
         the right knee injury of October 10, 1983 and any back complaints 
 
         that claimant might be having (Ex. E, p. 16).  Claimant admitted 
 
         that no doctor told him that there was a causal connection 
 
         between his initial right knee injury and the back injury.  
 
         Claimant expressed the belief that the pain behind his right 
 
         knee, that went up to his hip, developed into the back condition 
 
         which subsequently required treatment by a chiropractor.  
 
         Claimant's opinion, however, is not sufficient to sustain the 
 
         burden of proof by a preponderance of the evidence.  It is not 
 
         the greater weight of the evidence.  This is an area where 
 
         medical evidence predominates.  Furthermore, as defense counsel 
 

 
         
 
         
 
         
 
         SCHROMEN V. C. F. CARR CONSTRUCTION, INC.
 
         Page   8
 
         
 
         pointed out, claimant had no back complaints according to his own 
 
         testimony until one and one-half years after the injury on 
 
         October 10, 1983.  Dr. Nemmers made no record of any back 
 
         complaints until two and one-half years after the injury of 
 
         October 10, 1983.  Then, he mentions only a pain that went from 
 
         behind the right knee up to the hip.  As defendants pointed out, 
 
         claimant had performed a number of strenuous jobs for a number of 
 
         employers during this interim period.  Consequently, it is 
 
         determined that claimant did not sustain the burden of proof by a 
 
         preponderance of the evidence that the right knee injury of 
 
         October 10, 1983 was the cause of any back problems.  Dr. Nemmers 
 
         said there was no causal connection.  Consequently, it is 
 
         determined that claimant is not entitled to any permanent partial 
 
         disability benefits or medical benefits for the alleged back 
 
         condition.  Accordingly, no award can be made for the medical 
 
         bills for the treatment of the back which appear in claimant's 
 
         exhibits 4 through 9.
 
         
 
                                 FINDINGS OF FACT
 
         
 
              Therefore, based upon the evidence presented the following 
 
         findings of fact are made:
 
         
 
              That Dr. Nemmers stated the right knee injury of October 10, 
 
         1983 aid aggravate the preexisting malalignment of claimant's 
 
         right knee and caused the second surgery that was performed on 
 
         the right knee on September 13, 1984;
 
         
 
              That claimant was off work from September 13, 1984 to 
 
         January 14, 1985 as a result of the surgery;
 
         
 
              That Dr. Nemmers stated that claimant sustained a 20 percent 
 
         permanent functional impairment of the right lower extremity as a 
 
         result of both right knee surgeries;
 
         
 
              That all of the medical bills for the second right knee 
 
         surgery by Dr. Nemmers are marked as paid by workers' 
 
         compensation on exhibit 10; and
 
              That Dr. Nemmers indicated that claimant's back problems 
 
         were not connected to the right knee injury of October 10, 1983.
 
         
 
                                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 right knee injury of October 10, 1983 did cause the 
 
         second right knee surgery on September 13, 1984;
 
         
 
              That claimant is entitled to healing period benefits from 
 
         September 13, 1984 to January 14, 1985.
 
         
 
              That claimant is entitled to medical expenses for the second 
 
         right knee surgery of September 13, 1984;
 
         
 
              That claimant is entitled to 44 weeks of permanent partial 
 
         disability benefits for the right knee injury; and
 
         
 
              That claimant did not sustain the burden of proof by a 
 

 
         
 
         
 
         
 
         SCHROMEN V. C. F. CARR CONSTRUCTION, INC.
 
         Page   9
 
         
 
         preponderance of the evidence that the injury of October 10, 
 
         1983, to his right knee was the cause of an injury to his back.
 
         
 
                                      ORDER
 
         
 
              THEREFORE, IT IS ORDERED:
 
         
 
              That defendants pay to claimant seventeen point seven one 
 
         four (17.714) weeks of healing period benefits for the period 
 
         from September 13, 1984 to January 14, 1985 at the rate of one 
 
         hundred sixty-one and 09/100 dollars ($161.09) per week in the 
 
         total amount of two thousand eight hundred fifty-three and 55/100 
 
         dollars ($2,853.55);
 
         
 
              That defendants pay to claimant forty-four (44) weeks of 
 
         permanent partial disability benefits at the rate of one hundred 
 
         sixty-one and 09/100 dollars ($161.09) per week in the total 
 
         amount of seven thousand eighty-seven and 96/100 dollars 
 
         ($7,087.96) commencing on January 14, 1985; that defendants are 
 
         entitled to a credit for all workers' compensation weekly 
 
         benefits paid prior to hearing;
 
         
 
              That defendants are liable for the expenses of the second 
 
         knee surgery, but the parties agreed and the evidence shows that 
 
         defendants have already paid these medical expenses;
 
         
 
              That these benefits are to be paid in a lump sum;
 
         
 
              That interest will accrue under Iowa Code section 85.30;
 
         
 
              That defendants pay the costs of this proceeding pursuant to 
 
         Division of Industrial Services Rule 343-4.33; and
 
         
 
              That defendants file claim activity reports as requested by 
 
         this agency pursuant to Division of Industrial Services Rule 
 
         343-3.1.
 
         
 
              Signed and filed this 28th day of June, 1988.
 
         
 
         
 
         
 
         
 
         
 
         
 
                                           WALTER R. McMANUS, JR.
 
                                           DEPUTY INDUSTRIAL COMMISSIONER
 
         
 
         Copies To:
 
         
 
         Mr. David A. Lemanski
 
         Attorney at Law
 
         200 Security Bldg
 
         Dubuque, Iowa 52001
 
         
 
         Mr. John M.  Bickel
 
         Mr. Kevin Collins
 
         Attorneys at Law
 
         P.O. Box 2107
 
         Cedar Rapids, Iowa 52406
 
 
 
         
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                                  1402.40; 2500; 1802;
 
                                                  1803; 1402.40
 
                                                  Filed June 28, 1988
 
                                                  WALTER R. McMANUS, JR.
 
         
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         LEE A. SCHROMEN,
 
         
 
              Claimant,
 
         
 
         vs
 
                                                    File  No. 747055
 
         
 
         C. F. CARR CONSTRUCTION, INC.,
 
                                                 A R B I T R A T I 0 N
 
              Employer,
 
                                                     D E C I S I 0 N
 
         and
 
         
 
         WEST BEND MUTUAL,
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
         
 
         1402.40
 
         
 
              The injury was the cause of a second right knee surgery 
 
         according to the operating physician who was the only medical 
 
         opinion on this point.
 
         
 
         2500
 
         
 
              Claimant allowed medical expenses for the second right knee 
 
         surgery.
 
         
 
         1802
 
         
 
              Claimant allowed additional healing period benefits for the 
 
         period of recovery from the second surgery.
 
         
 
         l803
 
         
 
              Claimant allowed 44 weeks of permanent partial disability 
 
         based on a 20 percent impairment rating of the operating 
 
         physician who gave the only rating in evidence.
 
         
 
         1402.40
 
         
 
              Claimant did not sustain the burden of proof by a 
 
         preponderance of the evidence that the injury of October 11, 1983 
 
         was the cause of his back problems and was not allowed medical 
 
         expenses or temporary or permanent disability for his back 
 
                                                
 
                                                         
 
         problems and also was not entitled to benefits based on the body 
 
         as a whole.
 
 
 
         
 
         
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                   BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         LARRY E. DAVIS,
 
         
 
              Claimant,
 
                                                 File No. 747153
 
         vs.
 
         
 
         J. M. STEEL ERECTORS, INC.,               A P P E A L
 
         
 
               Employer,                         D E C I S I 0 N
 
         
 
         and                           
 
         
 
         WAUSAU INSURANCE COMPANIES,
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
         
 
                              STATEMENT OF THE CASE
 
         
 
              Claimant appeals from an arbitration decision denying any 
 
         benefits.
 
         
 
              The record on appeal consists of the transcript of the 
 
         arbitration hearing and joint exhibits 1 through 31.  Both 
 
         parties filed briefs on appeal.
 
         
 
                                      ISSUE
 
         
 
              The issue on appeal is whether claimant received an injury 
 
         which arose out of and in the course of his employment.
 
         
 
                              REVIEW OF THE EVIDENCE
 
         
 
              The arbitration decision adequately and accurately reflects 
 
         the pertinent evidence and it will not be totally reiterated 
 
         herein.
 
         
 
              Claimant worked for defendant employer (herein employer) 
 
         helping to erect grain storage bins.  The job sites were in 
 
         various states.  A job in Oblong, Illinois was finished on 
 
         September 3, 1983 (a Saturday).  The following job site was at 
 
         Clemons, Iowa, which is near Marshalltown.  Claimant and other 
 
         workers were to be on the Clemons job site on Monday morning, 
 
         September 5, 1983, to go to work.  Some of the workers went 
 
         directly from Oblong to Clemons.  Claimant and a coworker (John 
 
         Rupp) were given an option of going to Shenandoah where they 
 
         shared an apartment prior to traveling to Clemons.
 
              On Monday, claimant went to a festival in Essex, Iowa.  It 
 
         was claimant's idea to go to the festival.  After attending the 
 
         festival, Rupp drove the employer's truck, with claimant in the 
 
         front seat and another coworker in the truck, from Essex towards 
 
         Shenandoah in order to pick up a fourth coworker.  Rupp had an 
 
         accident with the truck at approximately 6:00 p.m. prior to 
 
         arriving in Shenandoah.  Claimant was allegedly injured in the 
 
         accident.  Claimant performed no work duties while in Essex and 
 

 
         he did not load any equipment in the truck.
 
         
 
              Claimant testified that he expected to get paid for the 
 
         drive between Essex and Shenandoah.  He also testified that he 
 
         just got paid travel time for what it would take to travel from 
 
         one job site to the next.  Claimant stated that Rupp told him 
 
         he would pick him, up about 8:00 p.m. on Monday.
 
         
 
              Jerry A. Miller was president of J.M. Steel, the employer 
 
         on September 5, 1983.  This corporation is no longer in 
 
         existence.  Miller testified that he paid workers for travel 
 
         time from the last job they were on to the next job.  He also 
 
         testified that the workers were to get paid for travel from 
 
         Oblong, Illinois to Clemons, Iowa.  He stated that the workers 
 
         were not paid for travel time to return home and then go to the 
 
         next site.  He further stated that claimant and other workers 
 
         were supposed to be on the job Monday morning.
 
         
 
                                 APPLICABLE LAW
 
         
 
              The citations of law in the arbitration decision are 
 
         appropriate to the issue and evidence.
 
         
 
                                     ANALYSIS
 
         
 
              Claimant has failed to prove his injury arose out of and in 
 
         the course of his employment.  The greater weight of evidence 
 
         indicates that claimant was not to be paid for the time he 
 
         actually traveled from Shenandoah to Clemons.  The travel time he 
 
         would have been paid was for travel from Oblong, Illinois to 
 
         Clemons, Iowa.  Furthermore, claimant was not to be paid for 
 
         traveling from Shenandoah to Essex and then back to Shenandoah.
 
         
 
              Claimant was supposed to be at the Clemons job site on 
 
         Monday morning.  Instead of doing so, he attended a festival at 
 
         Essex on that day and made arrangements to have Rupp pick him up 
 
         there.  After claimant attended the festival, Rupp and claimant 
 
         were returning to Shenandoah to pick up a coworker to travel to 
 
         the Clemons job site.  Claimant had been given permission to 
 
         return to Shenandoah and then travel to the job site at Clemons.  
 
         He was not authorized by his employer to attend a festival 
 
         instead of reporting for work and then return home and then go to 
 
         the next job site.  ClaimantOs activities, which were undertaken 
 
         on his own volition and which were in direct conflict with his 
 
         employerOs instructions, placed him in a situation where he was 
 
         injured.  Claimant's employment did not place him in the 
 
         situation in which he was injured.  Claimant performed no work 
 
         for his employer in Essex.  He was not furthering the employer's 
 
         business by traveling from Essex to Shenandoah and there was no 
 
         benefit to the employer for claimant to do so.
 

 
         
 
         
 
         
 
         LARRY E. DAVIS V. J. M. STEEL ERECTORS, INC.
 
         PAGE   3
 
         
 
         
 
                                 FINDINGS OF FACT
 
         
 
              1.  On September 3, 1983, claimant was employed by J.M. 
 
         Steel.
 
         
 
              2.  On September 3, 1983, a J.M. Steel project in Oblong, 
 
         Illinois, was completed.
 
         
 
              3.  On September 4, 1983, a new i.M. Steel project was to be 
 
         started in Clemons, Iowa, near Marshalltown, Iowa.
 
         
 
              4.  Claimant was supposed to appear at the Clemons project 
 
         on the morning of September 5, 1983.
 
         
 
              5.  Claimant's home is in Shenandoah, Iowa.
 
         
 
              6.  on September 5, 1983, claimant and a coworker, John 
 
         Rupp, went to a festival in Essex, Iowa.  It was claimant's idea 
 
         to attend this festival.
 
         
 
              7.  Essex is located near Shenandoah and a trip from Essex 
 
         to Clemons is a shorter trip than a trip from Shenandoah to 
 
         Clemons.
 
         
 
              8.  J.M. Steel gave claimant and John Rupp the option of 
 
         returning home prior to going to the Clemons job site; in other 
 
         words, claimant and John Rupp were not required to go directly 
 
         from the Oblong job site to the Clemons job site.
 
         
 
              9.  J.M. Steel employees were paid on an hourly basis for 
 
         travel time to a job site.
 
         
 
             10.  On a new project the hourly rate was computed by 
 
         determining the amount of time it would take to get from Hamburg, 
 
         Iowa (the home of Jerry Miller, the president of J.M. Steel) to 
 
         the new job site.
 
         
 
             11.  John Rupp and claimant were in Essex on September 5, 
 
         1983 from about 9:00 a.m. to about 6:00 p.m.
 
         
 
             12.  John Rupp started to drive a company truck, with 
 
         claimant in the front seat, from Essex to Shenandoah commencing 
 
         at about 6:00 p.m.
 
         
 
              13.  Prior to arriving in Shenandoah, where John Rupp was 
 
         going to pick up another coworker, John Rupp had an accident with 
 
         the company vehicle.
 
         
 
              14.  The accident described above occurred at about 6:30 
 
         p.m. on September 5, 1983.
 
         
 
              15.  Claimant injured his back in the truck accident on 
 
         September 5, 1983.
 
         
 
              16.  There is a Clemons, Iowa located in Marshall County, 
 
         near the city of Marshalltown.
 
         
 
              17.  Clermont, Iowa is located in Fayette County near the 
 
         county seat of West Union, Iowa.
 

 
         
 
         
 
         
 
         LARRY E. DAVIS V. J. M. STEEL ERECTORS, INC.
 
         PAGE   4
 
         
 
         
 
              18.  J.M. Steel only paid a worker his hourly rate for 
 
         travel time if the worker arrived on the job site.
 
         
 
              19.  Claimant's injury on September 5, 1983 did not arise 
 
         out of his employment with J.M. Steel.
 
         
 
              20.  Claimant's injury on September 5, 1983 did not occur 
 
         during the course of his employment with J.M. Steel.
 
         
 
         
 
                                CONCLUSIONS OF LAW
 
         
 
              Claimant failed to establish by a preponderance of the 
 
         evidence that he sustained an injury that arose out of and in the 
 
         course of his employment on September 5, 1983.
 
         
 
              WHEREFORE, the decision of the deputy is affirmed.
 
         
 
         
 
                                      ORDER
 
         
 
              THEREFORE, it is ordered:
 
         
 
              That claimant take nothing from these proceedings.
 
         
 
              That claimant pay the costs of this action including the 
 
         costs of the appeal and transcription of the arbitration 
 
         hearing.
 
         
 
         
 
              Signed and filed this 31st day of May, 1988.
 
         
 
         
 
         
 
         
 
         
 
         
 
         
 
                                                 DAVID E.LINQUIST
 
                                                INDUSTRIAL COMMISSIONER
 
         
 
         
 
         Copies to:
 
         
 
         Mr. Jon H. Johnson
 
         Attorney at Law
 
         P.O. Box 659
 
         Sidney, Iowa 51652
 
         
 
         Mr. Philip Willson
 
         Attorney at Law
 
         370 Midlands Mall
 
         P.O. Box 249
 
         Council Bluffs, Iowa 51502
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                                   1100; 1402.30
 
                                                   Filed May 31, 1988
 
                                                   David E. Linquist
 
         
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         LARRY E. DAVIS,
 
         
 
              Claimant,
 
                                                 File No. 747153
 
         vs.
 
         
 
         J. M. STEEL ERECTORS, INC.,               A P P E A L
 
         
 
              Employer,                          D E C I S I 0 N
 
         
 
         and
 
         
 
         WAUSAU INSURANCE COMPANIES,
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
         
 
         1110; 1402.30
 
         
 
              Claimant was a passenger in a company vehicle which was 
 
         involved in an accident and claimant was injured.  Claimant and a 
 
         coworker were using the vehicle to go to a festival rather than 
 
         reporting to work on time.  The vehicle's route when the accident 
 
         occurred was not the closest route between the two points the 
 
         employees would have needed to travel to reach their next work 
 
         site.
 
 
 
         
 
 
            
 
 
 
 
 
                  
 
                  
 
         
 
                   BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         LARRY E. DAVIS,
 
         
 
              Claimant,
 
                                                      FILE No. 747153
 
         VS.
 
         
 
         J. M. STEEL ERECTORS, INC.,               A R B I T R A T I 0 N
 
          
 
              Employer,                               D E C I S I 0 N
 
         
 
         and
 
         
 
         WAUSAU INSURANCE COMPANIES,
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
                                        
 
                              STATEMENT OF THE CASE
 
         
 
              This is a proceeding in arbitration brought by Larry E. 
 
         Davis, claimant, against J. M. Steel Erectors, Inc., (J.  M. 
 
         Steel), employer, and Wausau Insurance Companies, insurance 
 
         carrier, for benefits as a result of an alleged injury on 
 
         September 5, 1983.  A hearing was held in Council Bluffs, Iowa, 
 
         on December 12, 1986 and the case was submitted on that date.
 
         
 
              The record consists of the testimony of claimant (live and 
 
         by deposition taken on February 12, 1986, which has been marked 
 
         as exhibit 16), John Rupp, Jerry Miller (live and by deposition 
 
         taken on May 14, 1985, which has been marked as exhibit 15), and 
 
         Anita Howell; and joint exhibits 1 through 31.  Both parties 
 
         filed a brief.
 
         
 
              The parties stipulated that claimant was an employee of J.M. 
 
         Steel on September 5, 1983; that claimant's alleged injury is a 
 
         whole body injury; that the medical bills at issue are fair and 
 
         reasonable in amount; and that defendants waived their 
 
         intoxication defense (it is noted that this defense was waived in 
 
         any event since it was not raised at time of prehearing and then 
 
         set out as an issue on the hearing assignment order filed on 
 
         December 2, 1986).
 
         
 
         
 
                                    ISSUES
 
         
 
              The contested issues are:
 
         
 

 
         
 
         
 
         
 
         DAVIS V. J.M. STEEL ERECTORS, INC.
 
         Page   2
 
         
 
         
 
              1)  Whether claimant received an injury which arose out of 
 
         and in the course of his employment; this issue presents several 
 
         subissues which are (a) whether the alleged injury arose out of 
 
         claimant's employment with J. M. Steel; (2) whether the alleged 
 
         injury occurred in the course of claimant's employment with J. M. 
 
         Steel; (3) whether the going and coming rule bars recovery in 
 
         this case; and (4) whether any exceptions to the coming and going 
 
         rule have application in this case;
 
         
 
              2)  Whether there is a causal relationship between 
 
         claimant's
 
         alleged injury and his asserted disability;
 
         
 
              3)  Nature and extent of disability; claimant asserts the 
 
         odd-lot doctrine in this regard;
 
         
 
              4)  Whether claimant is entitled to benefits under Iowa Code 
 
         section 85.27 and, if so, the extent of those benefits; and
 
         
 
              5)  The appropriate rate of weekly compensation.
 
         
 
                             SUMMARY OF THE EVIDENCE
 
         
 
              Claimant testified by way of deposition (exhibit 16) that he 
 
         lives in Shenandoah.  Id. at 9.  On September 5, 1983, claimant 
 
         was told in the morning by a coworker (John Rupp) to be ready to 
 
         travel to a job site that afternoon.  Id. at 10.  On September 5, 
 
         1983, claimant and John Rupp went to a festival in Essex, Iowa.  
 
         Id. at 10.  Claimant and John Rupp were in Essex from 9:00 a.m. 
 
         to around 6:00 p.m. Id. at 11.  It was claimant's idea to go to 
 
         the festival in Essex.  Id. at 11.  After attending the festival 
 
         in Essex, John Rupp drove a company truck, with claimant in the 
 
         front seat, from Essex in the direction of Shenandoah in order to 
 
         pick up a coworker by the name of Mike Haun.  Id. at 12.  John 
 
         Rupp had an accident with the company truck prior to arriving in 
 
         Shenandoah.  Id. at 10.  See also exhibit 22 for pictures of the 
 
         damaged vehicle.  This accident happened "right outside of 
 
         Shenandoah, Iowa.O  Id. at 12. (Emphasis added.) The claimant was 
 
         paid $4.50 an hour for travel time to a job site.  Id. at 21.  He 
 
         expected to get paid for the drive between Essex and Shenandoah. 
 
          Id. at 22.
 
         
 
              Claimant had been working at a job site in Oblong, Illinois, 
 
         immediately prior to returning to Iowa and attending the festival 
 
         in Essex.  The next job was in Clemons, Iowa.  The following 
 
         appears on pages 24-26 of his deposition.
 
         
 
              Q.  Well, ordinarily you were just paid travel time for what 
 
              it would take to travel from one job to the next, weren't 
 
              you?
 
         
 
              A.  Yes.
 
         
 
              Q.  You weren't paid travel time to go from your home to a 
 
              job, were you?
 
         
 
              A.  He gives us so many hours from one destination to the 
 
              next.
 
         
 

 
         
 
         
 
         
 
         DAVIS V. J.M. STEEL ERECTORS, INC.
 
         Page   3
 
         
 
         
 
              Q.  Well, he would figure out what it would take to travel 
 
              from Illinois to that Clermont [should read Clemons] job and 
 
              would pay you--
 
         
 
              A.  So many hours.
 
         
 
              Q.  --for that travel time; isn't that right?
 
         
 
              A.  Yes.
 
         
 
              Q.  So if you had reported to Clermont [sic] you would have 
 
              been paid for--
 
         
 
              A.  So many hours.
 
         
 
              Q.  --travel time from Illinois to Clermont [sic]; isn't--
 
         
 
              A.  No. I would have been paid travel time from Shenandoah 
 
              to Clermont [sic].
 
         
 
              Q.  The usual rule was you were paid travel time from one 
 
              job to the next job; is that right?
 
         
 
              A.  Yes, but we don't get paid travel time to go home.
 
         
 
              Q.  No. but you would get paid travel time to go from 
 
              Illinois to home?
 
         
 
              A.  No.
 
         
 
              Q.  You thought you were just going to get paid from 
 
              Shenandoah to Clermont [sic]?
 
         
 
              A.  Yes.
 
         
 
              Q.  So Jerry Miller would estimate how long it would take 
 
              you to drive from Shenandoah to Clermont [sic] and would pay 
 
              you four dollars and a half an hour for that time; is that 
 
              right?
 
         
 
              A.  Yes.
 
         
 
              Q.  And if you drove your own car would you get paid 
 
              anything for the use of the car or would you just get an 
 
              hourly rate?
 
         
 
              A.  We would just get the same thing, but he would pay for 
 
              fuel.
 
         
 
              Q.  If you drove your own car held pay for the fuel?
 
         
 
              A.  Yes.
 
         
 
              Q.  So if you drove your own car you'd get the fuel plus 
 
              four dollars and a half for travel time?
 
         
 
              A. Yes.
 
         
 
              Q.  And if you rode in the company pickup you would just get 
 

 
         
 
         
 
         
 
         DAVIS V. J.M. STEEL ERECTORS, INC.
 
         Page   4
 
         
 
         
 
              the four dollars and a half an hour?
 
         
 
              A.  Yes.
 
         
 
              Q.  And he would figure it from wherever you lived to the 
 
              job job site, would he?
 
         
 
              A.  He figured from home base Hamburg, his home base, is 
 
              where it was--how he would figure everything.
 
         
 
              Q.  You mean if you lived in Shenandoah he would pay you as 
 
              if you drove from Hamburg, you mean?
 
         
 
              A.  The reason is because everybody worked there--so many 
 
              different people lived in so many different towns,.probably 
 
              wouldn't have the time to estimate from each place to the 
 
              job, so he just would estimize it from Hamburg.
 
         
 
              Q.  Do you know how many hours he would have allowed for 
 
              that if you had arrived in Clermont [sic]?
 
         
 
              A.  No, I don't.
 
         
 
              Claimant stated on pages 40-41 of his deposition:
 
         
 
              Q.  Ordinarily if you would go from one job site to another 
 
              you'd get travel time between the two job sites; isn't that 
 
              right?
 
         
 
              A.  Yes.
 
         
 
              Q.  So if they had work for you, continuous work, you would 
 
              just go from one job site to another during the summer; is 
 
              that right?
 
         
 
              A.  Yes. We was allowed so much time at home after we'd been 
 
              out for so long.
 
         
 
              Q.  Well, was it your understanding when you left Illinois 
 
              that the next job site wasn't ready yet?
 
         
 
              A.  Yes.
 
         
 
              Q.  And who told you that?
 
         
 
              A.  The driver of the truck, John Rupp.
 
         
 
              Q.  John Rupp.  And so it was your understanding that you 
 
              had to go back home and wait until you were called; is that 
 
              right?
 
         
 
              A.  Yes.
 
         
 
              Q.  And that's what John Rupp told you?
 
         
 
              A.  Yes.
 
         
 
              Jerry A. Miller testified by way of deposition (exhibit 15) 
 
         that he was president of J. M. Steel on September 5, 1983.  Id. 
 

 
         
 
         
 
         
 
         DAVIS V. J.M. STEEL ERECTORS, INC.
 
         Page   5
 
         
 
         
 
         at 4.  This corporation is no longer in existence.
 
         
 
              The job in Oblong, Illinois was finished on the Saturday 
 
         before September 5, 1983 (a Monday).  Id. at 7.  The job at 
 
         Clemons, Iowa started on September 4, 1983 (a Sunday).  Id. at 7. 
 
         Miller returned to Iowa on September 3, 1983.  Id. at 8.  J. M. 
 
         Steel paid for travel time between job sites, but did not pay for 
 
         travel time to return home and then go to the next job site.  Id. 
 
         at 10.  Miller did not talk to claimant over the 1983 Labor Day 
 
         weekend.  Id. at pages 12-13.  Claimant and other workers "were 
 
         supposed to leave Sunday and be on the job there [Clemons, Iowa] 
 
         Monday morning.O  Id. at 13.  At page 13, Miller also stated: 
 
         "They had optional travel on Sunday, or if they wanted to, they 
 
         could go home Saturday night.  And then they were supposed to 
 
         have traveled Sunday and be up there Monday morning to go to 
 
         work."  On pages 16-17, Miller stated: "I pay them from the last 
 
         job we were on to the next job.  If they come back they still get 
 
         paid from the original job site the the next job site .... We 
 
         were working in Oblong, Illinois.  They would get paid from 
 
         Oblong, Illinois to Clermont [sic], Iowa."
 
         
 
              The following appears on page 17:
 
         
 
              Q.  Suppose you were not on a job and they were just in 
 
              southwest Iowa, where I assume most of them live, and you 
 
              obtained a job and you let them know that you had work for 
 
              them.  Would you pay them travel time to that job?
 
              A.  Yes. Anybody that was new, was just hired, would get 
 
              travel time from Hamburg to the job site.
 
         
 
              The following appears at pages 20-21:
 
         
 
              Q.  Have you discussed this matter with Larry Davis?
 
         
 
              A.  No.
 
         
 
              Q.  Had you discussed anything about where he had been or 
 
              where he was going or what happened that day with him?
 
         
 
              A.  No.
 
         
 
              Q.  Have you discussed the matter with Johnny Rupp as to 
 
              where they had been, where they were going and what 
 
              happened?
 
         
 
              A. Seems that we had talked about, you know, where they had 
 
              been.  They had been up to a bar in Essex.  Jimmy Davis was 
 
              there.  That's Larry Davis' brother.  And Jimmy said they 
 
              got in a fight and he broke the fight up and they got chased 
 
              out of town.
 
         
 
              Q.  When you say "they," who are you talking about?
 
         
 
              A.  Larry Davis and Johnny Rupp.
 
         
 
              Q.  And who is Jimmy Davis?
 
         
 
              A.  That's Larry Davis' brother.
 
         
 

 
         
 
         
 
         
 
         DAVIS V. J.M. STEEL ERECTORS, INC.
 
         Page   6
 
         
 
         
 
              Q.  Had you talked to anyone else concerning what happened, 
 
              where they were going and where they were before the 
 
              accident?
 
         
 
              A.  Not that I recall.
 
         
 
              The following appears at page 26:
 
         
 
              Q.  In other words, you expected some of them to leave 
 
              Illinois and come to their homes in southwest Iowa, and then 
 
              perhaps sometime on Monday, if they hadn't made it there on 
 
              Sunday, that they would then travel the additional six hours 
 
              to the job site close to Des Moines?
 
         
 
              A.  Yes.  The understanding was, they were supposed to go up 
 
              there Sunday night so they could be ready to go to work 
 
              Monday morning early.  As you can see by the time cards, 
 
              they kind of straggled in.  They didn't get an early start.
 
         
 
         
 
         
 
         
 
              The following appears on pages 29-30:
 
         
 
              Q.  What about when you left Illinois? Was Mr. Rupp given 
 
              possession of the vehicle in question?
 
         
 
              A.  Yes.
 

 
         
 
         
 
         
 
         DAVIS V. J.M. STEEL ERECTORS, INC.
 
         Page   7
 
         
 
         
 
         
 
              Q.  And what was he supposed to do with it?
 
         
 
              A.  Drive it.
 
         
 
              Q.  To the new job site?
 
         
 
              A.  Or come home.
 
         
 
              Q.  You knew that he may be coming home first?
 
         
 
              A.  Yes.
 
         
 
              Q.  And then you knew that at some point he would come to 
 
              the job site, either to get some hours in on Monday or at 
 
              least be there by Tuesday for a full day?
 
         
 
              A.  Yes.  They were supposed to be there Monday for a full 
 
              day.
 
         
 
              Q.  Which would require them to travel sometime Sunday?
 
         
 
              A.   Either Sunday or early Monday morning. 
 
         
 
              The following appears at page 31:
 
         
 
              Q.  So would it be fair to say that Mr. Rupp had your 
 
              permission when you left Illinois to drive the truck to his 
 
              home and then later drive the truck to the job site in Des 
 
              Moines?
 
         
 
              A   Yes.
 
         
 
              Q.  And if he were asked by some of the other crew members, 
 
              whoever they be, to pick them up and bring them to the job 
 
              site so they could be there Monday morning, would that also 
 
              be acceptable with you?
 
         
 
              A.  Yes.
 
         
 
              At page 39, Mr. Miller stated again that claimant was 
 
         supposed to travel on Sunday night or early Monday morning in 
 
         order to work at Clemons on Monday.  However, he stated at page 
 
         40 
 
         
 
         that claimant had been allowed to show up late for work without 
 
         being fired.  At page 42, Miller stated it is a six or seven hour 
 
         drive between Hamburg and the Clemons job site.  Essex is thirty 
 
         to forty-five minutes closer to Clemons.  Id. at 43.  The 
 
         following appears at page 54:
 
         
 
              Q.  And that that [sic] was all right with you and within 
 
              your company policy that they go to Shenandoah, but they 
 
              were to be back on the job site on Monday morning?
 
         
 
              A.  Yes, that's correct.  They had an option.  The schedule 
 
              wasn't that pressing and they had an option of whatever they 
 
              wanted to do.
 
         
 

 
         
 
         
 
         
 
         DAVIS V. J.M. STEEL ERECTORS, INC.
 
         Page   8
 
         
 
         
 
              A partial hearing transcript was filed in this case on 
 
         December 24, 1986.  The following appears at page 10:
 
         
 
                 THE DEPUTY COMMISSIONER: With reference to Marshalltown 
 
              and Clermont, we're talking about the same jobsite.  Is that 
 
              correct?
 
         
 
                 THE WITNESS: Yes.  We stayed in Marshalltown, and that's 
 
              how people relate to the jobsite.
 
         
 
                 THE DEPUTY COMMISSIONER: How many miles is Clermont, 
 
              Iowa, from Marshalltown, Iowa, if you know?
 
         
 
                 THE WITNESS:  About 10 or 15.
 
         
 
              The following appears on page 12:
 
         
 
                 THE DEPUTY COMMISSIONER: Was the claimant paid this -- 
 
              we're using this 50-mile-an-hour formula from Oblong, 
 
              Illinois, to Clermont, Iowa, even though he didn't go 
 
              directly from Oblong, Illinois, to Clermont, Iowa?
 
         
 
                 THE WITNESS: That's the basis of how it was done.  If 
 
              they went somewhere else, they still got the basis from 
 
              Oblong to Clermont.
 
         
 
                 THE DEPUTY COMMISSIONER: Let me ask my question again. my 
 
              question was: Was this claimant paid on this 50-mile-an-hour 
 
              basis even though he didn't go directly from Oblong, 
 
              Illinois, to Clermont, Iowa, he went to Essex, Iowa? Was he 
 
              paid as if he had gone from Oblong, Illinois, to Clermont, 
 
              Iowa?
 
         
 
                 THE WITNESS: He was paid as if he had gone from Oblong to 
 
              Clermont.
 
         
 
         
 
                           APPLICABLE LAW AND ANALYSIS
 
         
 
              Claimant has the burden of proving by a preponderance of the 
 
         evidence that he received an injury on September 5, 1983 which 
 
         arose out of and in the course of his employment.  McDowell v. 
 
         Town of Clarksville, 241 N.W.2d 904 (Iowa 1976); Musselman v. 
 
         Central Telephone Co., 261 Iowa 352, 154 N.W.2d 128 (1967).
 
         
 
              The injury must both arise out of and be in the course of 
 
         the employment.  Crowe v. DeSoto Consol. Sch. Dist., 246 Iowa 
 
         402, 68 N.W.2d 63 (1955) and cases cited at pp. 405-406 of the 
 
         Iowa Report.  See also Sister Mary Benedict v. St. Mary's Corp., 
 
         255 Iowa 847, 124 N.W.2d 548 (1963) and Hansen v. State of Iowa, 
 
         249 Iowa 1147, 91 N.W.2d 555 (1958).
 
         
 
              The words "out of" refer to the cause or source of the 
 
         injury.  Crowe, 246 Iowa 402, 68 N.W.2d 63.
 
         
 
              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.
 
         
 

 
         
 
         
 
         
 
         DAVIS V. J.M. STEEL ERECTORS, INC.
 
         Page   9
 
         
 
         
 
              "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. v. Cady, 278 
 
         N.W.2d 298, 299 (Iowa 1979).
 
         
 
              The Iowa Supreme Court stated in Halstead v. Johnson's 
 
         Texaco, 264 N.W.2d 757, 759 (Iowa 1978):
 
         
 
              When a worker has a place and hours of work, ordinarily he 
 
              is not considered to be acting within his employment while 
 
              he is on his way to his place of employment or is returning 
 
              to his home or going elsewhere after dark.  This is the 
 
              going and coming rule.  Bulman v. Sanitary Farm Dairies, 247 
 
              Iowa 488, 73 N.W.2d 27.
 
         
 
              Claimant argues as follows in his brief filed on January 20, 
 
         1987 at pages 4-5:
 
         
 
                 Jerry Miller, principal owner of J. M. Steel, knew that 
 
              the truck involved in the accident was going to the 
 
              Shenandoah area and would take employees with it, and that 
 
              Rupp was responsible for gathering the crew and returning 
 
              them to the job site. (Exhibit 15 pp. 26, 29, 34 and 35.)
 
         
 
                 When travel to work is made in the employer's pickup, the 
 
              journey is in the course of employment, the reason being 
 
              that the risks of the employment continue throughout the 
 
              journey.
 
         
 
              1 Larsen, Workmans [sic] Compensation Law, SS1700.  When the 
 
              employee is paid an identifiable amount of compensation for 
 
              the time spent in travel, the travel is within the course of 
 
              employment. 1 Larsen, Workmans [sic] Compensation Law, 
 
              SS1621.
 
         
 
                 Iowa law is in compliance with the above law.  The Iowa 
 
              Supreme Court found that where the employer provides, or in 
 
              some way pays for the transportation going to and coming 
 
              from work, the hazards encountered by the employee going to 
 
              and returning from work, the hazards encountered by the 
 
              employee going to and returning from work are incident to 
 
              his employment and therefore in the course of and arising 
 
              out of such employment.  Bulman v. Sanitary Farm Dairies, 73 
 
              N.W.2d 27 (Iowa).  Also see Dorman v. Carroll County, 316 
 
              N.W.2d 423 (Iowa App. 1981); Lawyer and Higgs, Iowa Workers 
 
              [sic] Compensation-Law and Practice, SS6-12.
 
         
 
                 In this case, where Davis was an employee of J. M. Steel, 
 
              and by agreement and custom the employer provided 
 
              transportation to the job sites, and where it was the duty 
 
              of the driver to obtain laborers and bring them to the job 
 
              site, and the accident happened while traveling to pick up 
 
              laborers and take them to the job site, the accident was in 
 
              the course of and arose out of the employment.
 
         
 
                 The employer's statements that the workers were to 
 
              proceed directly from the job site in Illinois to the job 
 
              site near Des Moines is contradicted by his own statements 
 

 
         
 
         
 
         
 
         DAVIS V. J.M. STEEL ERECTORS, INC.
 
         Page  10
 
         
 
         
 
              that he knew many of the laborers would return to the 
 
              Shenandoah area and the statement of the driver of the 
 
              pickup, John Rupp, that he had to return to the Shenandoah 
 
              area to pick up jacks for the next job.  Exhibit 15 pp. 26, 
 
              35 and 54.  Most of the laborers did return to the 
 
              Shenandoah area and did not return to the job site until 
 
              Tuesday, the day after the accident.  The employersO 
 
              deposition statement shows that the employer knew that Davis 
 
              was going home to Shenandoah and that this was allowable.  
 
              Other employees involved in the trip back with Rupp received 
 
              pay for travel time going back to work.  The travel was 
 
              within the employment by J. M. Steel.
 
         
 
              First of all, it is apparent that the Iowa job site involved 
 
         in this case was located in Clemons, Iowa, not Clermont, Iowa.
 
         
 
              After reviewing the evidence of record, it is my judgment 
 
         that claimant's injury did not arise out of his employment with 
 
         J. M. Steel nor did it occur in the course of his employment
 
         
 
         
 
         
 
         
 
         with J. M. Steel.  Also, it is my judgment that the going and 
 
         coming rule has no application in this case and, therefore, it is 
 
         not necessary to determine whether any exception to this rule 
 
         applies to the facts of this case.
 
         
 
              Claimant failed to establish liability in this case whether 
 
         the dispute is characterized as a factual one or a legal one.  
 
         The question presented to the agency in this case appears to be a 
 
         legal one ("question of law") as the essential facts are not in 
 
         dispute.  The definition of a question of law, as opposed to 
 
         fact, is found in such cases as Armstrong v. State of Iowa Bldg., 
 
         382 N.W.2d 161, 165 (Iowa 1986)  ("[W]e agree with the employer 
 
         that this is not a case in which the district court could 
 
         determine the facts as a matter of law and modify the 
 
         commissioner's award.  In this case the relevant evidence was 
 
         both contradicted and such that reasonable minds could draw 
 
         different inferences from the evidence."); Green v. Iowa Dept. of 
 
         Job Service, 299 N.W.2d 651, 655 (Iowa 1980) ("In this case the 
 
         facts, and inference fairly to be drawn therefrom, are 
 
         undisputed.  The issue then becomes one of law, and the district 
 
         court is not bound by the agency's legal conclusions.  See 
 
         Blacksmith v. All-American, Inc., 290 N.W.2d 348, 354 (Iowa 
 
         1980); Hawk v. Jim Hawk Chevrolet-Buick, Inc., 282 N.W.2d 84, 87 
 
         (Iowa 1979).").
 
         
 
              Mr. Rupp and claimant decided to return from Oblong, 
 
         Illinois, to their homes in Southwest Iowa.  It is clear from the 
 
         record that Jerry Miller gave them this option.  However, he 
 
         expected them to be at work on Monday morning (September 5, 
 
         1983).  They elected to go to a festival in Essex, Iowa, on 
 
         Monday morning rather than to report to work.  Mr. Rupp and 
 
         claimant then drove a company vehicle from Essex toward 
 
         Shenandoah.  They didn't quite make it to Shenandoah as the 
 
         vehicle was involved in an accident.  Claimant now argues that he 
 
         sustained a work-related injury because 1) he was riding in a 
 
         company vehicle at the time of the accident; 2) he was not 
 

 
         
 
         
 
         
 
         DAVIS V. J.M. STEEL ERECTORS, INC.
 
         Page  11
 
         
 
         
 
         required to go directly to the Clemons, Iowa, job site; 3) Rupp 
 
         was going to pick up another employee at the time of the 
 
         accident; 4) Rupp was required to pick up jacks for the Clemons, 
 
         Iowa, job; and 5) other reasons stated at time of hearing and in 
 
         his brief.  Claimant is in error.  Mr. Rupp and claimant took a 
 
         gamble that they could go to the Essex festival and then return 
 
         to Shenandoah without incident.  This gamble failed.  The fact 
 
         that their employer was lax enough to allow his employees to use 
 
         his vehicle for purposes other than work, or to come to work when 
 
         they pleased, does not converse claimant's injury into a 
 
         work-related injury.
 
         
 
              As stated in Cedar Rapids Community Sch. v. Cady, 278 N.W.2d 
 
         298, 299 (Iowa 1979), "An injury occurs in the course of 
 
         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." (Emphasis added.)  In short, 
 
         claimant had permission to return to Shenandoah and then travel 
 
         to the job site at Clemons, Iowa.  He was not   authorized by his 
 
         employer to use a company vehicle to attend a festival and then 
 
         return home and then go to the Clemons, Iowa, job site.  In any 
 
         event, he should have been back in Shenandoah prior to 6:30 p.m. 
 
         on September 5, 1983.  He ignored his employer's request that he 
 
         be at work on Monday morning.  Claimant's testimony that he was 
 
         told by Mr. Rupp that he could report later than Monday morning 
 
         is not believed.  It will be found that claimant knew he was 
 
         supposed to be at work on the morning of September 5, 1983, but 
 
         elected to start work on Tuesday morning instead.
 

 
         
 
         
 
         
 
         DAVIS V. J.M. STEEL ERECTORS, INC.
 
         Page  12
 
         
 
         
 
         
 
                                 FINDINGS OF FACT
 
         
 
              1.  On September 3, 1983, claimant was employed by J. M. 
 
         Steel.
 
         
 
              2.  On September 3, 1983, a J. M. Steel project in Oblong, 
 
         Illinois, was completed.
 
         
 
              3.  On September 4, 1983, a new J. M. Steel project was to 
 
         started in Clemons, Iowa, near Marshalltown, Iowa.
 
         
 
              4.  Claimant was supposed to appear at the Clemons project 
 
         on the morning of September 5, 1983.
 
         
 
              5.  Claimant's home is in Shenandoah, Iowa.
 
         
 
              6.  On September 5, 1983, claimant and a coworker, John 
 
         Rupp, went to a festival in Essex, Iowa; it was claimant's idea 
 
         to attend this festival.
 
         
 
              7.  Essex, Iowa is located near Shenandoah and a trip from 
 
         Essex, Iowa, to Clemons, Iowa, is a shorter trip than a trip from 
 
         Shenandoah, Iowa, to Clemons, Iowa.
 
         
 
              8.  J. M. Steel gave claimant and John Rupp the option of 
 
         returning home prior to going to the Clemons job site; in other 
 
         words, claimant and John Rupp were not required to go directly 
 
         from the Oblong, Illinois, job site to the Clemons, Iowa, job 
 
         site.
 
         
 
              9.  J. M. Steel employees were paid on an hourly basis for 
 
         travel time to a job site.
 
         
 
             10.  On a new project the hourly rate was computed by 
 
         determining the amount of time it would take to get from Hamburg, 
 
         Iowa (the home of Jerry Miller, the president of J. M. Steel) to 
 
         the new job site.
 
         
 
              11. John Rupp and claimant were in Essex, Iowa, on September 
 
         5, 1983 from about 9:00 a.m. to about 6:00 p.m.
 
         
 
              12.  John Rupp started to drive a company truck, with 
 
         claimant in the front seat, from Essex, Iowa, to Shenandoah, 
 
         Iowa, on September 5, 1983 commencing at about 6:00 p.m.
 
         
 
              13.  Prior to arriving in Shenandoah, where John Rupp was 
 
         going to pick up another coworker, John Rupp had an accident with 
 
         the company vehicle.
 
         
 
              14.  The accident described above occurred at about 6:30 
 
         p.m. on September 5, 1983.
 
         
 
              15.  Claimant injured his back in the truck accident on 
 
         September 5, 1983.
 
         
 
              16.  There is a Clemons, Iowa, located in Marshall County, 
 
         Iowa, near the city of Marshalltown, Iowa.
 
         
 

 
         
 
         
 
         
 
         DAVIS V. J.M. STEEL ERECTORS, INC.
 
         Page  13
 
         
 
         
 
              17.  Clermont, Iowa, is located in Fayette County, Iowa, 
 
         near the county seat of West Union, Iowa.
 
         
 
              18.  J. M. Steel only paid a worker his hourly rate for 
 
         travel time if the worker arrived on the job site.
 
         
 
              19.  One of the reasons that claimant was not paid for the 
 
         time it took to ride from Essex, Iowa, to near Shenandoah, Iowa, 
 
         on September 5, 1983 was because claimant did not arrive at the 
 
         Clemons job site due to the truck accident that occurred on 
 
         September 5, 1983 at about 6:30 p.m.
 
         
 
              20.  Claimant's injury on September 5, 1983 did not arise 
 
         out of his employment with J. M. Steel.
 
         
 
              21.  Claimant's injury on September 5, 1983 did not occur 
 
         during the course of his employment with J. M. Steel.
 
         
 
                                CONCLUSIONS OF LAW
 
         
 
              Claimant failed to establish by a preponderance of the 
 
         evidence that he sustained an injury that arose out of and in the 
 
         course of his employment on September 5, 1983.
 
         
 
                                      ORDER
 
         
 
              IT IS THEREFORE ORDERED:
 
         
 
              That claimant take nothing from these proceedings.
 
         
 
              That claimant pay the costs of this action pursuant to 
 
         
 
         Division of Industrial Services Rule 343-4.33, formerly 
 
         Industrial Commissioner Rule 500-4.33.
 
         
 
         
 
              Signed and filed this 9th day of February, 1987.
 
         
 
         
 
         
 
         
 
         
 
                                           T. J. McSWEENEY
 
                                           DEPUTY INDUSTRIAL COMMISSIONER
 
         
 
         Copies to:
 
         
 
         Mr. Jon H. Johnson
 
         Attorney at Law
 
         P.O. Box 659
 
         Sidney, Iowa 51652
 
         
 
         Mr. Philip Willson
 
         Mr. Curtis Hewett
 
         Attorneys at Law
 
         P.O. Box 249
 
         370 Midlands Mall
 
         Council Bluffs, Iowa 51502
 
 
 
 
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                                        1402.30
 
                                                        Filed 2-9-87
 
                                                        T. J. McSweeney
 
         
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         LARRY E. DAVIS,
 
         
 
              Claimant,
 
                                                       FILE No. 747153
 
         VS.
 
         
 
         J. M. STEEL ERECTORS, INC.,                A R B I T R A T I 0 N
 
          
 
              Employer,                                D E C I S I 0 N
 
         
 
         and
 
         
 
         WAUSAU INSURANCE COMPANIES,
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
         
 
         1402.30
 
         
 
              Held in arbitration that claimant's injury was not work 
 
         related as truck accident in question (claimant was a rider in a 
 
         company vehicle) occurred when claimant and a coworker were using 
 
         a company vehicle to go to a festival and did not report to work 
 
         on time.