5-1803; 1803; 2209; 3200
 
                           Filed October 7, 1991
 
                           MICHAEL G. TRIER
 
            before the iowa industrial commissioner
 
            ____________________________________________________________
 
		                      :
 
            LaVERN WAMPLER,           :
 
                      		      :
 
                 Claimant, 	      :
 
		                      :         File Nos. 763544
 
		            vs.       :                   823404
 
                		      :                   825100
 
            WILSON FOODS CORPORATION, :
 
		                      :      A R B I T R A T I O N
 
                 Employer,            :
 
                 Self-Insured,        :         D E C I S I O N
 
                      		      :
 
 		           and        :
 
                		      :
 
            SECOND INJURY FUND OF IOWA,:
 
                      		      :
 
                 Defendants.          :
 
            ____________________________________________________________
 
            
 
            5-1803
 
            Treating physician's impairment rating of left hand adopted 
 
            as correct over three conflicting opinions.  Impairment of 
 
            the right hand was determined by the deputy to be different 
 
            from the rating made by any physician based upon factors 
 
            explained in the decision, namely all ratings were suspect.  
 
            Claimant's complaints were a substantial factor in finding 
 
            the five percent impairment of the right hand.
 
            
 
            1803; 2209; 3200
 
            Ten percent permanent partial disability found to exist 
 
            where claimant left his employment without medical advice, 
 
            but after the onset of physical problems.  He justified it 
 
            on the basis of not wanting his condition to worsen any 
 
            further.  The date of leaving was determined to be the date 
 
            of injury and the date upon which permanent partial 
 
            disability entitlement commenced.  Claimant awarded ten 
 
            percent permanent partial disability, despite a much larger 
 
            reduction in actual earnings since he was able to return to 
 
            his former employments and earned comparable wages to what 
 
            he had earned prior to his employment by the defendant 
 
            employer.  He was restricted only from repetitive 
 
            activities.
 
            
 
 
         
 
 
 
 
 
 
 
 
 
 
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         RICHARD L. WALES,
 
         
 
              Claimant,                        File No. 763660
 
         
 
         VS.                                   A P P E A L
 
          
 
          CATERPILLAR TRACTOR COMPANY,        D E C I S I O N
 
          
 
               Employer,
 
               Self-Insured,
 
              Defendant.
 
         
 
                              STATEMENT OF THE CASE
 
                                        
 
              Claimant appeals from an arbitration decision denying any 
 
         benefits based upon permanent partial disability as a result of a 
 
         work injury on April 18, 1984.
 
         
 
              The record on appeal consists of the transcript of the 
 
         arbitration hearing and joint exhibits A through D. The claimant 
 
         filed a brief on appeal.  Defendant filed no brief on appeal.
 
         
 
                                      ISSUE
 
                                        
 
              Claimant states the issue on appeal is, "whether or not the 
 
         claimant is entitled to industrial disability as a result of his 
 
         April 18', 1984 injury?"
 
         
 
                              REVIEW OF THE EVIDENCE
 
                                        
 
              The arbitration decision adequately and accurately reflects 
 
         the pertinent evidence and it will not be totally reiterated 
 
         herein.  It should be noted that the arbitration decision's 
 
         references to payment of permanent partial disability benefits is 
 
         not adequately supported by the record.  For purposes of review 
 
         of this matter it is assumed that no permanent partial disability 
 
         benefits have been paid.
 
         
 
              The parties stipulated:
 
         
 
              That an employer-employee relationship existed between 
 
         claimant and employer at the time of the injury.
 
         
 
              That claimant sustained an injury on April 18, 1984 which 
 
         arose out of and in the course of employment with employer.
 
         
 
                                        
 
                                        
 
         WALES V. CATERPILLAR TRACTOR COMPANY
 
         Page 2
 
         
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
              That claimant was paid temporary disability benefits for two 
 
         weeks and one day from April 18, 1984 to May 2, 1984 and that 
 
         temporary disability benefits are no longer in dispute in this 
 
         case at this time.
 
         
 
              That the type of permanent disability, in the event of an 
 
         award of permanent disability benefits, is industrial disability 
 
         to the body as a whole.
 
         
 
              That in the event of an award of permanent partial 
 
         disability benefits, that the commencement date of benefits is to 
 
         be June 30, 1986 and the ending date of such benefits is March 
 
         16, 1987.
 
         
 
              That the rate of compensation, in the event of an award, is 
 
         $279.06 per week.
 
         
 
              That claimant's entitlement to medical benefits is no longer 
 
         in dispute.
 
         
 
              That defendant makes no claim for credit for benefits paid 
 
         prior to hearing either as employee nonoccupational group health 
 
         plan benefits or as workers' compensation benefits.
 
         
 
              That there are no bifurcated claims.
 
         
 
              On April 18, 1984, claimant was injured while pulling a load 
 
         as a power trucker.  He suffered a sensation of pain in his back 
 
         which radiated down to his feet.  He was off work for two weeks 
 
         and one day from April 18, 1984 to May 2, 1984.
 
         
 
              James C. Donahue, M.D., plant physician, released claimant 
 
         to return to work on May 3, 1984.  Dr. Donahue imposed 
 
         restrictions of no repetitive lifting, bending, pushing, pulling 
 
         and no lifting over 25 pounds.  Claimant worked until a general 
 
         plant layoff occurred on April 1, 1985 at which time he was laid 
 
         off.
 
         
 
              A recall list was issued for the week of June 23, 1986.  
 
         Claimant's name did not appear on that list.  An employee by the 
 
         name of G. A. Twigg was recalled to work on that list effective 
 
         June 30, 1986.  Claimant said that he inquired as to why Twigg 
 
         was recalled and he was not and he was told that it was due to 
 
         his weight restriction.
 
         
 
              It had happened that Dr. Donahue had completed a "Disability 
 
         Report" a few days before the recall on June 3, 1986 about 
 
         claimant who was on layoff which appears to state "limit lifting 
 
         to 45 lbs., no repetitive bending."  In a letter dated February 
 
         26, 1987 Dr. Donahue wrote that "any individual having chronic 
 
         back problems should be limited to 45 pounds lifting with no 
 
         repetitive bending to return to work."
 
         
 
         
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         WALES V. CATERPILLAR TRACTOR COMPANY
 
         Page 3
 
         
 
         
 
              Claimant was not recalled to work until March 16, 1987.  As 
 
         far as claimant knows the weight restriction of 45 pounds, issued 
 
         by Dr. Donahue on June 3, 1986, was still in effect on March 16, 
 
         1987 and was still in effect at the time of the hearing.
 
         
 
              Claimant conceded that he has had back problems dating back 
 
         to 1979; however, no doctor had ever imposed any lifting 
 
         restrictions prior to this injury which occurred on April 18, 
 
         1984.  Claimant did acknowledge that his own personal physician 
 
         stated back on May 2, 1981 that claimant was to do no lifting 
 
         until his back problem was evaluated, but that this restriction 
 
         was only temporary and related to a very brief period of time in 
 
         the past.
 
         
 
              William Knudsen testified that he is president and chairman 
 
         of Local 215.  Knudsen testified that he did not personally know 
 
         why Twigg was recalled and claimant was not.  He said that in his 
 
         opinion it was common knowledge that it was due to the weight 
 
         restriction and it was not a case of whether Twigg had greater 
 
         skill and ability.
 
         
 
              A physician report from Richard L. Kreiter, M.D., stated on 
 
         October 15, 1986 that CT scans, myelogram and a magnetic 
 
         resonance imaging scan were all normal.  In a letter dated 
 
         December 10, 1986 Dr. Kreiter stated that there is a possibility 
 
         that claimant could have reinjured his back bending into the tub 
 
         while at work.  Byron W. Rovine, M.D., said that a neurological 
 
         examination was normal on June 17, 1986.  It was Dr. Rovine's 
 
         belief that if claimant complied with recommendations he would 
 
         make a full recovery without residual disability.  A report of F. 
 
         Dale Wilson, M.D., attributes claimant's complaints to the 
 
         automobile accident of November 20, 1986.  Daniel B. Johnson, 
 
         M.D., a neurologist, saw claimant on November 5, 1984.  He 
 
         performed an EMG and nerve conduction tests which were completely 
 
         normal.  John F. Collins, M.D., treated claimant for the injury 
 
         of April 18, 1984.  He returned claimant to work on May 3, 1984 
 
         with the recommendation that he should avoid lifting anything 
 
         over 25 pounds and avoid bending, lifting, pushing, pulling and 
 
         climbing.  The report of Ralph H. Congdon, M.D., reports 
 
         mechanical low back pain in May and June of 1981.  The report of 
 
         Victor G. Strang, D.C., reports spinal subluxations in June and 
 
         July of 1980.
 
         
 
                                  APPLICABLE LAW
 
         
 
              The citations of law in the arbitration decision are 
 
         appropriate to the issues and evidence.
 
         
 
                                     ANALYSIS
 
         
 
              Claimant argues on appeal that claimant has lost and will 
 
         continue to lose earnings as a result of his injury of April
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
         
 
         
 
         WALES V. CATERPILLAR TRACTOR COMPANY 
 
         Page 4
 
         
 
         
 
         18, 1984 (hereinafter work injury) and is therefore entitled to 
 
         industrial disability.  Claimant argues in his appeal brief:
 
         
 
              The claimant does not maintain that her is entitled to 
 
              benefits simply because he was laid off as part of the 
 
              general work force.  However, it is clear that because of 
 
              the injury he was not called back to work when other workers 
 
              with same seniority were.  The weight lifting restriction is 
 
              a permanent restriction.
 
         
 
              Claimant has the burden of proving by a preponderance of 
 
         evidence that the work injury is causally related to the 
 
         disability on which he bases his claim.  The disability claimant 
 
         claims is an industrial disability that, per the stipulation, 
 
         commenced on June 30, 1986 and ended on March 16, 1987.  Claimant 
 
         argues in effect that because claimant was not called back to 
 
         work, the work injury was the cause of an industrial disability.  
 
         Industrial disability is a loss of earning capacity not merely a 
 
         loss of earnings.  Claimant asks for a quantum leap in logic.  
 
         Merely because claimant was not called back to work does not mean 
 
         that he had an industrial disability resulting from the work 
 
         injury.  Even assuming for the sake of argument that claimant was 
 
         not called back to work for the first recall because of his 
 
         restrictions at the time does not mean he had an industrial 
 
         disability as a result of the work injury.  Dr. Donahue placed 
 
         the restrictions of 45 pounds because claimant was an individual 
 
         with "chronic back problems." Claimant had a history of back 
 
         problems prior to the work injury.  Claimant's lifting 
 
         restrictions could relate this to his chronic back problems and 
 
         not the work injury.  There is no medical opinion that there was 
 
         a causal connection between the work injury and the restrictions 
 
         for claimant after the work injury.  Dr. Kreiter thought that 
 
         there was "a possibility that [claimant] could have reinjured his 
 
         back bending into the tub." It is also worth noting that claimant 
 
         testified that his restrictions on March 16, 1987 when he was 
 
         recalled were the same as on June 23, 1986 when he was not 
 
         recalled allegedly because of his restrictions.  Claimant's 
 
         evidence falls short of demonstrating that there was a causal 
 
         connection between his work injury and his alleged disability.  
 
         Claimant has not proved that the work injury of April 18, 1984 
 
         was the cause of a permanent disability and more specifically a 
 
         permanent disability from June 30, 1986 through March 16, 1987.
 
         
 
                                 FINDINGS OF FACT
 
         
 
              1. Claimant had a history of back problems prior to April 
 
         18, 1984.
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
              2. Claimant injured his back at work on April 18, 1984.
 
         
 
              3. Claimant returned to work on May 3, 1984 following the 
 
         April 18, 1984 work injury.
 
         
 
         
 
         
 
         WALES V. CATERPILLAR TRACTOR COMPANY
 
         Page  5
 
         
 
         
 
              4. There was a layoff from April 1985 until the week of June 
 
         23, 1986.
 
         
 
              5. Claimant had lifting restrictions of 45 pounds with no 
 
         repetitive bending as of June 1986.  Claimant had the same 
 
         restrictions on March 16, 1987.
 
         
 
              6. Claimant's lifting restrictions were not the result of a 
 
         work injury on April 18, 1984.
 
         
 
              7. Claimant's failure to be recalled to work on June 30, 
 
         1986 was not caused by his work injury of April 18, 1984.
 
         
 
              8. Claimant was recalled to work on March 16, 1987.
 
         
 
                                CONCLUSION OF LAW
 
         
 
              Claimant's work injury of April 18, 1984 is not causally 
 
         related to claimant's alleged industrial disability from June 30, 
 
         1986 through March 16, 1987.
 
         
 
              WHEREFORE, the decision of the deputy is affirmed.
 
         
 
                                      ORDER
 
         
 
              THEREFORE, it is ordered:
 
         
 
              That claimant take nothing from this proceeding.
 
         
 
              That the costs of this proceeding including the costs of 
 
         transcribing the arbitration hearing are to be paid by claimant 
 
         pursuant to Division of Industrial Services Rule 343-4.33.
 
         
 
         
 
              Signed and filed this 31st day of March, 1989.
 
         
 
         
 
         
 
                                         DAVID E.  LINQUIST
 
                                         INDUSTRIAL COMMISSIONER
 
         
 
         Copies To:
 
         
 
         Mr. Roger P. Owens
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         Attorney at Law
 
         840 Fifth Avenue
 
         Des Moines, Iowa 50309
 
         
 
         Mr. Larry L. Shepler
 
         Attorney at Law
 
         Suite 102, Executive Square
 
         400 Main Street
 
         Davenport, Iowa 52801
 
         
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
 
         
 
 
 
 
 
 
 
 
 
 
 
                                         1402.40 - 1803
 
                                         Filed March 31, 1989
 
                                         DAVID E. LINQUIST
 
         
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         RICHARD L. WALES,
 
         
 
              Claimant,                        File No. 763660
 
         
 
         VS.                                     A P P E A L
 
          
 
          CATERPILLAR TRACTOR COMPANY         D E C I S I 0 N
 
          
 
               Employer,
 
               Self-Insured,
 
               Defendant.
 
         
 
         
 
         
 
         1402.40 - 1803
 
         
 
              Claimant alleged an industrial disability between the time 
 
         he might have been recalled from a layoff and the time he was 
 
         actually recalled.  Claimant returned to the same job with the 
 
         same restrictions he had at the time of the prior recall.  
 
         Claimant had history of chronic back problems.  There was no 
 
         medical evidence to indicate that restrictions were the result of 
 
         work injury.  No permanent disability benefits awarded for period 
 
         alleged by claimant.
 
         
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                    BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         RICHARD L. WALES,
 
         
 
              Claimant,                            File No.  763660
 
         
 
         vs.                                    A R B I T R A T I 0 N
 
         
 
                                                   D E C I S I 0 N
 
         CATERPILLAR TRACTOR COMPANY,
 
         
 
              Employer,
 
              Self-Insured,
 
              Defendant.
 
         
 
         
 
         
 
                                   INTRODUCTION
 
         
 
              This is a proceeding in arbitration brought by Richard L. 
 
         Wales, claimant, against Caterpillar Tractor Company, employer 
 
         and self-insured defendant, for benefits as a result of an injury 
 
         that occurred on April 18, 1984.  A hearing was held in 
 
         Davenport, Iowa on February 18, 1988 and the case was fully 
 
         submitted at the close of the hearing.  The record consists of 
 
         the testimony of Richard L. Wales (claimant), William Knudsen 
 
         (union representative) and joint exhibits A, B, C and D.  Joint 
 
         exhibit A contains 13 indexed subparts.  The attorney for 
 
         claimant submitted a very good brief.  The attorney for defendant 
 
         was ordered to file a brief but failed to do so.
 
         
 
                                   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 April 18, 1984 which 
 
         arose out of and in the course of employment with employer.
 
         
 
              That claimant was paid temporary disability benefits for two 
 
         weeks and one day from April 18, 1984 to May 2, 1984 and that 
 
         temporary disability benefits are no longer in dispute in this 
 
         case at this time.
 
         
 
              That claimant was paid a certain amount of permanent partial 
 
         disability benefits for this injury and that those benefits are 
 
         not in dispute in this case at this time.
 
         
 
              That the type of permanent disability, in the event of an 
 
         award of permanent disability benefits, is industrial 
 
         disability to the body as a whole.
 
         
 

 
         
 
         
 
         
 
         WALES V. CATERPILLAR TRACTOR COMPANY
 
         Page   2
 
         
 
         
 
              That in the event of an award of additional permanent 
 
         partial disability benefits, that the commencement date of 
 
         benefits is to be June 30, 1986 and the ending date of such 
 
         benefits is March 16, 1987.
 
         
 
              That the rate of compensation, in the event of an award, 
 
         is $279.06 per week.
 
         
 
              That claimant's entitlement to medical benefits is no 
 
         longer in dispute.
 
         
 
              That defendant makes no claim for credit for benefits paid 
 
         prior to hearing either as employee nonoccupational group 
 
         health plan benefits or as workers' compensation benefits.
 
         
 
              That there are no bifurcated claims.
 
         
 
                                   ISSUE
 
         
 
              The parties submitted one issue for determination.
 
         
 
              Whether claimant is entitled to industrial disability 
 
         benefits during a period of layoff beginning June 30, 1986, when 
 
         a junior employee was called back to work ahead of claimant who 
 
         was senior, until March 16, 1987 when claimant was actually 
 
         called back to work.
 
         
 
                             SUMMARY OF THE EVIDENCE
 
         
 
              All of the evidence was examined and considered.  The 
 
         following is a summary of the pertinent evidence.
 
         
 
              Claimant is 33 years old.  He graduated from high school in 
 
         1973 and started to work for employer on August 20, 1973.  
 
         Claimant has performed the duties of parts washer, power truck 
 
         operator, paint laborer and tool crib attendant for employer.  On 
 
         April 18, 1984, claimant was injured while pulling a load as a 
 
         power trucker.  He suffered a sensation of pain in his back which 
 
         radiated down to his feet.  He was off work for two weeks and one 
 
         day from April 18, 1984 to May 2, 1984.
 
         
 
              James C. Donahue, M.D., plant physician, released claimant 
 
         to return to work on May 3, 1984.  Dr. Donahue imposed 
 
         restrictions of no repetitive lifting, bending, pushing, pulling 
 
         and no lifting over 25 pounds (Exhibit A, page 12c).  Claimant 
 
         worked until a general plant layoff occurred on April 1, 1985 at 
 
         which time he was laid off (Ex. B).
 
         
 
              A recall list was issued for the week of June 23, 1986. 
 

 
         
 
         
 
         
 
         WALES V. CATERPILLAR TRACTOR COMPANY
 
         Page   3
 
         
 
         
 
         Claimant's name did not appear on that list.  An employee by the 
 
         name of G. A. Twigg was recalled to work on that list effective 
 
         June 30, 1986 (Ex. C, p. 2).  Both claimant and Twigg have the 
 
         same seniority date of August 20, 1973 (Ex. C, pp. 1 & 2).  
 
         Article seven of the bargaining agreement provides as follows.  
 
         "(7.2) In applying the provisions of this Local Agreement, the 
 
         seniority of employees who have the same seniority date shall be 
 
         determined by the identification numbers assigned to such 
 
         employees, the employee with the lowest identification number 
 
         being deemed to have the greatest seniority.O (Ex. D).
 
         
 
              The identification number of Twigg is 31014 (Ex. C, p. 2).  
 
         The identification number of claimant is 31005 (Ex. C, p. 1).
 
         
 
              Claimant said that he inquired as to why Twigg was recalled 
 
         and he was not and he was told that it was due to his weight 
 
         restriction.
 
         
 
              It had happened that Dr. Donahue had completed a "Disability 
 
         Report" a few days before the recall on June 3, 1986 about 
 
         claimant who was on layoff which appears to state "limit lifting 
 
         to 45 lbs., no repetitive bending.O  There is an OxO in the block 
 
         labeled "Personal Injury".  The box marked plant injury is left 
 
         blank (Ex. 12b).
 
         
 
              Claimant testified that he did not know why Dr. Donahue 
 
         checked the block personal injury on this form.  Claimant further 
 
         testified that he did not know why this disability report was 
 
         made out by Dr. Donahue at this time.  Claimant testified that he 
 
         did not request it.  Furthermore, claimant said he had not seen 
 
         Dr. Donahue for an examination at that time.  Claimant concluded 
 
         that it may have been issued at employer's request in regard to 
 
         the recall that occurred on June 23, 1986, when Twigg was 
 
         recalled on June 30, 1986 and claimant was not even though he had 
 
         a lower identification number than Twigg.
 
         
 
              An earlier return to work pass, after a layoff that occurred 
 
         on September 22, 1983, stated that claimant could return to work 
 
         on December 21, 1983 for a sit down job (Ex. 12e).
 
         
 
              Claimant testified that he talked to Dr. Donahue and was 
 
         told he could not return to work because (1) a workers' 
 
         compensation case was pending and (2) because of the 45 pound 
 
         weight restriction that he had issued on June 3, 1986.
 
         
 
              Dr. Donahue wrote to claimant's counsel on February 26, 1987 
 
         that he felt that any individual having chronic back problems 
 
         should be limited to 45 pounds lifting with no repetitive bending 
 
         in order to return to work (Ex. A, p. 12a).  On February 16, 1987 
 
         employer wrote a letter that employer adhered to the 45 pound 
 
         weight restriction imposed by Dr. Donahue and felt that it was 
 
         appropriate in claimant's situation (Ex. A, p. 13a).
 
         
 
              Claimant was not recalled to work until March 16, 1987 (Ex. 
 
         C).  As far as claimant knows the weight restriction of 45 
 
         pounds, issued by Dr. Donahue on June 3, 1986, was still in 
 
         effect on March 16, 1987 and was still in effect at the time of 
 
         the hearing.
 
         
 

 
         
 
         
 
         
 
         WALES V. CATERPILLAR TRACTOR COMPANY
 
         Page   4
 
         
 
         
 
              Claimant's counsel stated that claimant is not expecting to 
 
         be paid workers' compensation benefits for the period of the 
 
         general layoff from April 1, 1985 to June 30, 1985 when Twigg, 
 
         who had less seniority than claimant, was called back to work and 
 
         claimant was not.  He stated that claimant does contend that 
 
         claimant is entitled to workers' compensation benefits from June 
 
         30, 1986 until claimant was actually called back to work on March 
 
         16, 1987.  He bases his claim on the fact that Dr. Donahue said 
 
         on June 3, 1986 that claimant should limit lifting to 45 pounds 
 
         and to do no repetitive lifting (Ex. 12b).
 
         
 
              Claimant conceded that he has had back problems dating back 
 
         to 1979; however, no doctor had ever imposed any lifting 
 
         restrictions prior to this injury which occurred on April 18, 
 
         1984.
 
         
 
              Defendant's counsel contended that Dr. Donahue's 
 
         restrictions of June 3, 1986 were based upon claimant's 
 
         documented back problems that date back to 1980 rather than the 
 
         injury of April 18, 1984.
 
         
 
              Claimant admitted that he was involved in an automobile 
 
         accident where he was rear ended; however, this occurred in 
 
         November of 1986 after Dr. Donahue's disability report dated June 
 
         3, 1986 and after the recall on June 30, 1986.
 
         
 
              Claimant did acknowledge that his own personal physician 
 
         stated back on May 2, 1981 that claimant was to do no lifting 
 
         until his back problem was evaluated, but that this restriction 
 
         was only temporary and related to a very brief period of time in 
 
         the past (Ex. A, p. 4d).
 
         
 
              William Knudsen testified that he is president and chairman 
 
         of Local 215.  He verified that there was an indefinite layoff of 
 
         claimant on April 1, 1985.  A copy of the layoff was given to the 
 
         union (Ex. B).  Knudsen further verified that Twigg was junior to 
 
         claimant in seniority because he had a higher clock number than 
 
         claimant (Exs. C & D).  Knudsen testified that he did not 
 
         personally know why Twigg was recalled and claimant was not.  He 
 
         said that in his opinion it was common knowledge that it was due 
 
         to the weight restriction and it was not a case of whether Twigg 
 
         had greater skill and ability.  Knudsen testified that he was not 
 
         knowledgeable on claimant's prior health conditions or problems.
 
         
 
              Although there is no other evidence of it in the industrial 
 
         commissioner's file or in the evidence introduced at hearing, 
 
         claimant's counsel stated that claimant and defendant had agreed 
 
         that claimant was entitled to 20 percent industrial disability 
 
         for this injury.  Nevertheless, the period from June 30, 1986 to 
 
         March 16, 1987, when Twigg was called back to work and claimant 
 
         was not, was the only disputed matter in this case at the time of 
 
         hearing.
 
         
 
              A physician report from Richard L. Kreiter, M.D., stated on 
 
         October 15, 1986 that CT scans, myelogram and a magnetic 
 
         resonance imaging scan were all normal.  He found claimant had 
 
         (1) chronic low back pain and (2) depression.  Dr. Kreiter stated 
 
         that he suggested and claimant was agreeable to seeing a 
 
         psychiatrist and working with the mental health center (Ex. A, p. 
 

 
         
 
         
 
         
 
         WALES V. CATERPILLAR TRACTOR COMPANY
 
         Page   5
 
         
 
         
 
         ld).
 
         
 
              Byron W. Rovine, M.D., said that a neurological examination 
 
         was normal on June 17, 1986 (Ex. A, p. 3a).
 
         
 
              A report of F. Dale Wilson, D.O., attributes claimant's 
 
         complaints to the automobile accident of November 20, 1986 (Ex. 
 
         A, p. 2a).
 
         
 
              The records of P. J. Crowley, M.D., all predate this injury 
 
         and do not appear to apply to the instant issue (Ex. A, p. 4).
 
         
 
              Darrell B. Johnson, M.D., a neurologist, saw claimant on 
 
         November 5, 1984.  He performed an EMG and nerve conduction tests 
 
         which were completely normal.  He recommended behavior 
 
         modification rather than medication (Ex. A, p. 5).
 
         
 
              John F. Collins, M.D., treated claimant for the injury of 
 
         April 18, 1984.  He returned claimant to work on May 3, 1984 with 
 
         the recommendation that he should avoid lifting anything over 25 
 
         pounds and avoid bending, lifting, pushing, pulling and climbing 
 
         (Ex. A, pp. 6 & 7).
 
         
 
              The report of Truce T. Ordona, M.D., records a major 
 
         depression episode, recurrent on September 26, 1981 (Ex. A, p. 
 
         8).  The report of Ralph H. Congdon, M.D., reports mechanical low 
 
         back pain in May and June of 1981 (Ex. A, p. 9).
 
         
 
              The report of Steven C. Chang, M.D., reports depressive 
 
         reaction on August 27, 1980 (Ex. A, p. 10).  The report of Victor 
 
         G. Strang, M.D., reports spinal subluxations in June and July of 
 
         1980 (Ex. A, p. 11).
 
         
 
                           APPLICABLE LAW AND ANALYSIS
 
         
 
              An employee is entitled to compensation for any and all 
 
         personal injuries which arise out of and in the course of the 
 
         employment.  Section 85.3(l).
 
              Claimant has the burden of proving by a preponderance of  
 
         the evidence that he received an injury on April 18, 1984 which 
 
         arose out of and in the course of 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 claimant has the burden of proving by a preponderance of 
 
         the evidence that the injury of April 18, 1984 is causally 
 
         related to the disability on which he now bases his claim.  
 
         Bodish v. Fischer, Inc., 257 Iowa 516, 133 N.W.2d 867 (1965). 
 
         Lindahl v. L. 0. Boggs, 236 Iowa 296, 18 N.w.2d 607 (1945).  A 
 
         possibility is insufficient; a probability is necessary.  Burt v. 
 
         John Deere Waterloo Tractor Works, 247 Iowa 691, 73 N.W.2d 732 
 
         (195 ). 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.  
 

 
         
 
         
 
         
 
         WALES V. CATERPILLAR TRACTOR COMPANY
 
         Page   6
 
         
 
         
 
         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).
 
         
 
              This employee suffered an injury on April 18, 1984.  He was 
 
         paid for a period of temporary disability and he was paid for a 
 
         permanent partial disability.  That much of this case is a normal 
 
         workers' compensation claim to which the workers' compensation 
 
         statute applies.  In addition, claimant asks us to make a 
 
         determination on the employer's right to evaluate an employee 
 
         before a call back from a layoff and then call back the employees 
 
         that the employer chooses to call back based on the physical 
 
         condition of the employee.  This is not a workers' compensation 
 
         issue.  This is an employer-employee issue, a labor-management 
 
         issue, to be determined by labor law and the labor-management 
 
         agreement.  The selection process of the employer in calling back 
 
         laid off employees is not a subject of the workers' compensation 
 
         law.
 
         
 
              As far as claimant's injury on April 18, 1984, claimant was 
 
         paid temporary disability benefits and permanent disability 
 
         benefits apparently based upon an industrial disability.  The 
 
         amount of industrial disability and the industrial factors were 
 
         not placed into evidence at this hearing and they are not a 
 
         matter of record in the industrial commissioner's file.  
 
         Industrial disability includes loss of earning capacity.  Loss of 
 
         earning capacity would include not being called back to work 
 
         after a layoff due to restrictions for the work injury from the 
 
         company doctor.   Claimant's entitlement, if any, for not being 
 
         recalled from the layoff for the period from June 30, 1986 to 
 
         March 16, 1987 due to his work restriction should be included as 
 
         a factor in the permanent partial disability settlement which he 
 
         has apparently made with employer and for which there is no 
 
         evidence in the record at this time.  In conclusion, it is held 
 
         that claimant is not entitled to a specific award of permanent 
 
         partial disability as industrial disability for the period for 
 
         which he was not called back to work from June 30, 1986 to March 
 
         16, 1987.
 
         
 
                                 FINDINGS OF FACT
 
         
 
              Based on the evidence presented the following findings of 
 
         fact are made.
 
         
 
              That claimant was not recalled after the layoff of April 1, 
 
         1985 on June 30, 1986 because of a 45 pound weight restriction 
 
         imposed by the company doctor on June 3, 1986 according to the 
 
         evidence presented at the hearing.
 
         
 
              That claimant had apparently previously settled and worked 
 
         out an agreement on both temporary and permanent disability prior 
 
         to the hearing.
 
         
 
                                CONCLUSIONS OF LAW
 

 
         
 
         
 
         
 
         WALES V. CATERPILLAR TRACTOR COMPANY
 
         Page   7
 
         
 
         
 
         
 
              Based upon the evidence presented and the principles of law 
 
         previously discussed the following conclusions of law are made.
 
         
 
              That claimant did not sustain the burden of proof by a 
 
         preponderance of the evidence that he is entitled any additional 
 
         industrial disability because employer did not recall him to work 
 
         on June 30, 1986.
 
         
 
                                      ORDER
 
         
 
              THEREFORE, IT IS ORDERED:
 
         
 
              That claimant take nothing from this proceeding.
 
         
 
              That the costs of this proceeding are to be paid by claimant 
 
         pursuant to Division of Industrial Services Rule 343-4.33.
 
         
 
              That defendants file claim activity reports as requested by 
 
         this agency pursuant to Division of Industrial Services Rule 
 
         343-3.1.
 
         
 
              That the agreement for settlement reached by the parties 
 
         should be submitted to the industrial commissioner for approval.
 
         
 
         
 
              Signed and filed this 7th day of April, 1988.
 
         
 

 
         
 
         
 
         
 
         WALES V. CATERPILLAR TRACTOR COMPANY
 
         Page   8
 
         
 
         
 
         
 
         
 
         
 
         
 
         
 
         
 
         
 
                                           WALTER R. McMANUS, JR.
 
                                           DEPUTY INDUSTRIAL COMMISSIONER
 
         
 
         
 
         Copies To:
 
         
 
         Mr. Roger Owens
 
         Attorney at Law
 
         840 Fifth Ave
 
         Des Moines, Iowa 50309-1398
 
         
 
         Mr. Larry Shepler
 
         Attorney at Law
 
         600 Union Arcade Bldg
 
         111 E. 3rd St.
 
         Davenport, Iowa 52801-1550
 
         
 
         
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                                    1402.40; 1803
 
                                                    Filed April 7, 1988
 
                                                    WALTER R. McMANUS, JR.
 
         
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         RICHARD L. WALES,
 
         
 
              Claimant,                            File No.  763660
 
         
 
         vs.                                    A R B I T R A T I 0 N
 
         
 
         CATERPILLAR TRACTOR COMPANY,              D E C I S I 0 N
 
         
 
              Employer,
 
              Self-Insured,
 
              Defendant.
 
         
 
         
 
         
 
         
 
         1402.40; 1803
 
         
 
              Claimant was paid healing period benefits and was either 
 
         paid or it was agreed that he would be paid certain permanent 
 
         partial disability benefits that were agreeable to both parties. 
 
          The terms of the permanent partial disability agreement were not 
 
         disclosed at the hearing and are not included in the industrial 
 
         commissioner's file.
 
         
 
              The agency was asked to determine the narrow issue of 
 
         whether claimant was entitled to additional permanent partial 
 
         disability benefits during a period of layoff when a junior 
 
         employee was called back to work and claimant, who was senior, 
 
         was not because the company physician had unilaterally placed 
 
         certain restrictions on claimant due to his back.  Claimant 
 
         asserted that the restrictions of the company physician were 
 
         imposed as part of the call back process and this was the reason 
 
         that the junior employee was called back and claimant, who was 
 
         senior, was forced into a longer period of layoff.
 
         
 
              It was held that this factor could and should have been 
 
         included in the industrial disability factors that the parties 
 
         considered in reaching their agreement of permanent partial 
 
         disability.  One element or one factor of industrial disability 
 
         cannot be determined in isolation from all of the other 
 
         elements or factors of industrial disability.
 
         
 

 
         
 
         
 
         
 
         WALES V. CATERPILLAR TRACTOR COMPANY
 
         Page   2
 
         
 
         
 
              The selection process used by employer in calling back to 
 
         work certain employees during a period of layoff was not a 
 
         proper subject of the workers' compensation law.  This was an 
 
         employer-employee issue, a labor-management issue to be 
 
         determined by labor law and the labor-management agreement.
 
         
 
              No benefits allowed.  Costs are assessed against claimant. 
 
          Parties ordered to file a copy of their settlement agreement 
 
         on the permanent partial disability.
 
 
 
         
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                                1704, 1802, 1803, 2501
 
                                                Filed December 23, 1988
 
                                                MICHAEL G. TRIER
 
         
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         RHONDA TADIN,
 
         
 
              Claimant,                            File No. 763806
 
         
 
         vs.                                   A R B I T R A T I O N
 
         
 
         GLENWOOD STATE HOSPITAL-SCHOOL,           D E C I S I O N
 
         
 
              Employer,
 
         
 
         and
 
         
 
         STATE OF IOWA,
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
         
 
         1704, 1802, 1803, 2501
 
         
 
              A one-day return to work was held to not terminate the 
 
         healing period, but the employer was granted credit for wages 
 
         paid toward its healing period obligation.
 
         
 
              Thirty-four-year-old married lady with a back injury that 
 
         produced a permanent impairment of not more than five percent was 
 
         awarded 30% permanent partial disability where the injury removed 
 
         her from her position and effectively restricted her access to 
 
         other parts of the labor market.
 
         
 
              Claimant was allowed to recover medical expenses which were 
 
         authorized by the employer where the services performed 
 
         ultimately provided a diagnosis which included two conditions 
 
         which were not work-related as well as the condition resulting 
 
         from the injury.
 
         
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                            
 
                    BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         ROBERT AUGUSTIN,
 
         
 
             Claimant,                                File No. 764369
 
         
 
         GEO. A. HORMEL & COMPANY,
 
                                                   A R B I T R A T I 0 N
 
              Employer,
 
                                                      D E C I S I 0 N
 
         and
 
         
 
         LIBERTY MUTUAL INSURANCE
 
         COMPANY,
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
         
 
         
 
                              STATEMENT OF THE CASE
 
         
 
              This is a proceeding in arbitration brought by Robert 
 
         Augustin, claimant, against George A. Hormel & Company (Hormel), 
 
         employer, and Liberty Mutual Insurance Company, insurance 
 
         carrier, for benefits as a result of an injury on March 15, 1984.  
 
         A hearing was held in Des Moines Iowa on February 27, 1987 and 
 
         the case was submitted on that date.
 
         
 
              The record consists of the testimony of claimant; claimant's 
 
         exhibit A; and defendants' exhibits 1 and 2.  Neither party filed 
 
         a brief.
 
         
 
              The parties stipulated that claimant's weekly rate of 
 
         compensation is $348.62; that claimant was off work from May 10, 
 
         1984 through July 22, 1984; that neither temporary total 
 
         disability benefits or healing period benefits are at issue in 
 
         this proceeding; that any permanent partial disability benefits 
 
         awarded would commence on July 23, 1984; that claimant sustained 
 
         an injury on March 15, 1984 that arose out of and in the course 
 
         of his Hormel employment; that claimant's injury is scheduled; 
 
         that there is a causal relationship between the injury of March 
 
         15, 1984 and claimant's asserted disability; that the parties 
 
         informally resolved the medical benefits (section 85.27) issue; 
 
         and that the parties informally resolved the credit (section 
 
         85.38(2)) issue.
 
         
 
         
 
                                    ISSUE
 
         
 
              The contested issue is the nature and extent of disability; 
 
         claimant asserts that his disability impairs both of his arms; 
 
         defendants assert that claimant's disability or impairment 
 

 
         
 
         
 
         
 
         AUGUSTIN V. GEO. A. HORMEL & COMPANY
 
         Page   2
 
         
 
         
 
         affects only his hands or, alternatively, that he has no 
 
         work-related disability or impairment.  In sum, defendants argue 
 
         that claimant should take nothing from these proceedings; 
 
         however, if there is an award it should only be because of 
 
         impairment to claimant's hands.
 
         
 
                             SUMMARY OF THE EVIDENCE
 
         
 
              Claimant testified that he is thirty years of age and is 
 
         currently employed.  He then testified as to the jobs he has held 
 
         through the years.  For instance, he worked making pizza for one 
 
         month and had no physical problems doing this job.  After the 
 
         pizza job, he worked at a gas station in Minnesota while he was 
 
         still in high school.  He was physically able to handle this job.  
 
         His next job was at a Piggly-Wiggly Store in Austin, Minnesota 
 
         and he was physically able to do this job.  His next job was as a 
 
         produce clerk at another supermarket while he was still in high 
 
         school.  He worked at this job on a part-time basis for three 
 
         years.  After high school, he worked at this grocery store for 
 
         four years on a full-time basis.  He separated from this grocery 
 
         store job in late 1981.
 
         
 
              Claimant testified he started working for Hormel in 
 
         Knoxville, Iowa on September 14, 1981 and had a physical 
 
         examination at the time he was hired.  Claimant then described 
 
         the physical problems he developed while working for Hormel.  
 
         Claimant had surgery on his right hand on May 10, 1984.  He had 
 
         surgery on his left hand on June 7, 1984.  Subsequent to these 
 
         surgeries he went back to work but experienced numbness in both 
 
         hands and arms.  Claimant testified regarding the various jobs or 
 
         functions he has performed while working for Hormel.
 
         
 
              Claimant testified as to the identity of the various doctors 
 
         he has seen because of his work-related injuries.  He saw a 
 
         licensed physical therapist in July 1985.  Claimant testified 
 
         regarding his present physical condition and stated that his arms 
 
         and hands lack strength.  He also testified that the grip in his 
 
         hands has been affected.  He has numbness in both his hands and 
 
         arms after working.  He feels better over the weekend.  He has 
 
         some problems when he drives.  He has aching in his hands when he 
 
         gardens.  He does exercising on his own to help remedy his 
 
         physical problems.
 
         
 
              Claimant testified on cross-examination that his deposition 
 
         testimony marked as defendants' exhibit 1 is true and correct in 
 
         all respects.
 
         
 
              Exhibit 1 is the deposition of claimant taken on July 18, 
 
         1986.  On page 11, claimant stated that his first job with Hormel 
 
         was hanging sausages.  He did this job until January 1986 and 
 
         then worked as a Multivac boxer and operator.  He now works on a 
 
         Cryovac machine.  On page 14, he stated that he returned to work 
 
         in July 1984 and worked continuously up to the time of his 
 
         deposition in July 1986.  On page 18, claimant testified, "well, 
 
         I believe it was in March [1984] when I really noticed the pain I 
 
         was having in my hands and the numbness at night with my--whole 
 
         arms and up through my shoulders (indicating)."  On page 18, he 
 
         stated that his physical problems at Hormel are not caused by any 
 
         specific incident.  He then admitted that he arbitrarily picked 
 

 
         
 
         
 
         
 
         AUGUSTIN V. GEO. A. HORMEL & COMPANY
 
         Page   3
 
         
 
         
 
         March 15, 1984 as the injury date.  On page 20, he stated that 
 
         his physical problems do not stop at his wrists and that they 
 
         extend through both his arms and shoulders.  On page 22, he 
 
         stated that he has carpal tunnel syndrome in both hands, but that 
 
         the left hand is worse according to Dr. Chuck Vander Linden.
 
         
 
              On page 25 of his deposition, claimant testified that he 
 
         worked in the manufacturing department until January 1986.  He 
 
         experienced pain from gripping at work.  On page 27, he stated he 
 
         has numbness in both hands, but that his whole arm goes numb as 
 
         well.  On page 32, claimant stated he has problems with his 
 
         elbows.
 
         
 
              On cross-examination, claimant testified that the elbow 
 
         problem lessened after he changed jobs in January 1986.  On page 
 
         37, he stated he has problems from his wrist up to his 
 
         shoulders.
 
         
 
              Exhibit 2 is the deposition of Scott B. Neff, D.O., taken on 
 
         January 6, 1987.  Dr. Neff is a board certified orthopedic 
 
         surgeon.  Dr. Neff examined claimant on October 27, 1986, but 
 
         conducted no tests at that time.  Deposition exhibit 1 is Dr. 
 
         Neff's report.  On pages 9 and 10, Dr. Neff stated, "surgery was 
 
         completely successful in eliminating the pressure on the nerve 
 
         which was part of the syndrome and caused the initial abnormality 
 
         of the EMG study.O  On Page 11, Dr. Neff defined what he thinks 
 
         the term "impairmentO means.  On page 12, he stated his opinion 
 
         that claimant has no impairment because he has normal nerve 
 
         function.  On page 12, Dr. Neff stated that claimant had an 
 
         excellent result from his surgeries.  On page 13, Dr. Neff stated 
 
         his disagreement with Dr. Bashara about how this case should be 
 
         handled.  On page 13, Dr. Neff also stated that he could see no 
 
         evidence of restriction of motion.  On page 15, Dr. Neff stated 
 
         that if there is a loss of motion that an impairment rating would 
 
         be appropriate.
 
         
 
              Exhibit A, section 1, page 7 (dated April 16, 1985), is 
 
         authored by Jerome Bashara, M.D., and reads in part: OI would 
 
         give this patient a 5% permanent partial physical impairment of 
 
         each upper extremity related to his operated carpal tunnel 
 
         syndrome, work related."
 
         
 
              Exhibit A, section 2, page 3 (dated April 16, 1985), is 
 
         authored by Dr. Bashara and reads in part: "He continues to have 
 
         some difficulties with mild restriction of motion of both of his 
 
         wrists, intermittent numbness and tingling of his fingers and 
 
         some mild weakness in his grip."
 
         
 
                           APPLICABLE LAW AND ANALYSIS
 
         
 
              I am convinced that claimant sustained some permanent 
 
         partial impairment as a result of his stipulated work-related 
 
         injuries; however, I am not convinced that this disability or 
 
         impairment extends beyond his hands.  A wrist is generally 
 
         treated as part of the hand under established agency precedent.  
 
         See Elam v. Midland Mfg., 2 Iowa Indus. CommOr Rep. 141 (Appeal 
 
         Decision 1981).  Also, Dr. BasharaOs comments of record are too 
 
         vague to establish by a preponderance of the evidence that 
 
         claimant's disability or impairment extends beyond his hands.  
 

 
         
 
         
 
         
 
         AUGUSTIN V. GEO. A. HORMEL & COMPANY
 
         Page   4
 
         
 
         
 
         Dr. Bashara gives claimant a five percent impairment rating for 
 
         each "upper extremity." However, he seems to be relying on loss 
 
         of motion in claimant's hands to justify his ratings.
 
         
 
              A finding of fact will be made that the injuries to 
 
         claimant's hands occurred simultaneously and, therefore, this 
 
         case is governed by Iowa Code section 85.34(2)(s) as construed in 
 
         Simbro v. DeLongOs Sportswear, 332 N.W.2d 886 (Iowa 1983).  Using 
 
         the impairment tables of the AMA Guides to the Evaluation of 
 
         Permanent Impairment the two five percent hand impairment 
 
         ratings are converted into whole body ratings and then the 
 
         combined value chart is utilized.  The result is a six percent 
 
         whole body rating.  Six percent of 500 weeks is 30 weeks at a 
 
         rate of $348.62.
 
         
 
                                 FINDINGS OF FACT
 
         
 
              1.  Claimant started working for Hormel on September 14, 
 
         1981.
 
         
 
              2.  While working for Hormel claimant sustained injuries 
 
         simultaneously to both hands only; the impairment to each hand is 
 
         five percent.
 
         
 
              3.  Claimant's resulting whole body impairment is six 
 
         percent.
 
         
 
              4.  Claimant's stipulated rate is $348.62.
 
         
 
                                CONCLUSIONS OF LAW
 
         
 
              1.  Claimant has established entitlement to thirty (30) 
 
         weeks of permanent partial disability benefits commencing on July 
 
         23, 1984 at a rate of three hundred forty-eight and 62/100 
 
         dollars ($348.62).
 
         
 
                                      ORDER
 
         
 
              IT IS THEREFORE ORDERED:
 
         
 
              That defendants pay the weekly benefits described above.
 
         
 
              That defendants pay accrued benefits in a lump sum and pay 
 
         interest pursuant to section 85.30, The Code.
 
         
 
              That each party shall bear his or its own costs of this 
 
         action.
 
         
 
              That defendants shall file claim activity reports, pursuant 
 
         to Division of Industrial Services Rule 343-3.1(2), formerly 
 
         Industrial Commissioner Rule 500-3.1(2), as requested by the 
 
         agency.
 
         
 
              Signed and filed this 15th day of April, 1987.
 
         
 
         
 
         
 
         
 
         
 

 
         
 
         
 
         
 
         AUGUSTIN V. GEO. A. HORMEL & COMPANY
 
         Page   5
 
         
 
         
 
         
 
                                         T. J. McSWEENEY
 
                                         DEPUTY INDUSTRIAL COMMISSIONER
 
         
 
         Copies to:
 
         
 
         Mr. Fredd J. Haas
 
         Attorney at Law
 
         5001 SW Ninth Street
 
         Des Moines, Iowa 50315
 
         
 
         Mr. Walter F. Johnson
 
         Attorney at Law
 
         P.O. Box 716
 
         111 W. Second Street
 
         Ottumwa, Iowa 52501
 
         
 
         
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                                          1402.40
 
                                                          Filed 4-15-87
 
                                                          T. J. McSweeney
 
         
 
         
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         ROBERT AUGUSTIN,
 
         
 
              Claimant,                              File No. 764369
 
         
 
         GEO. A. HORMEL & COMPANY,
 
                                                  A R B I T R A T I 0 N
 
              Employer,
 
                                                     D E C I S I 0 N
 
         and
 
         
 
         LIBERTY MUTUAL INSURANCE COMPANY,
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
         
 
         1402.40
 
         
 
              Claimant's impairment or disability was limited to his 
 
         hands.  Claimant asserted that his arms were affected.  
 
         Claimant's injuries were found to be simultaneous injuries and, 
 
         therefore, Simbro v. DeLong's Sportswear, 332 N.W.2d 886 (Iowa 
 
         1983) was applied.
 
 
 
         
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                    BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         ALLEN D. SLATER,
 
                                                   File No. 764404
 
              Claimant,
 
         
 
         vs.                                         A P P E A L
 
         
 
         JOHN MORRELL & COMPANY,                   D E C I S I 0 N
 
         
 
              Employer,
 
              Self-Insured,
 
              Defendant.
 
         
 
         
 
         
 
                              STATEMENT OF THE CASE
 
         
 
              Claimant appeals from an arbitration decision denying all 
 
         compensation.  The record on appeal consists of the transcript of 
 
         the arbitration hearing and joint exhibits 1 through 23.  Both 
 
         parties filed briefs on appeal.
 
         
 
                                      ISSUES
 
         
 
              Claimant states the following issues on appeal:
 
         
 
              1.  Whether there is a causal relationship between the work 
 
         injury and the claimed disability; and
 
         
 
              2.  Whether Morrell must pay additional healing period 
 
         benefits; and
 
         
 
              3.  The extent of weekly disability benefits to which the 
 
         Claimant is entitled; and
 
         
 
              4.  The extent of Claimant's entitlement to medical benefits 
 
         under Iowa Code Section 85.27; and
 
         
 
              5.  Claimant's entitlement to alternate care by Dr. Paul M. 
 
         Arnesen, M.D.
 
         
 
                              REVIEW OF THE EVIDENCE
 
         
 
              The arbitration decision adequately and accurately reflects 
 
         the pertinent evidence and it will not be totally reiterated 
 
         herein.
 
         
 
              Claimant testified that on November 10, 1983 he injured his 
 
         back when a 300 pound hog carcass fell on him.  Claimant stated 
 
         that shortly after the hog carcass fell on him, another carcass 
 
         struck him causing him to fall back against a stub wall.  
 
         Claimant stated that he reported these incidents to the company 
 
         nurse the next morning.
 
         
 
              Claimant related that he then received treatment from a 
 
         chiropractor.  Claimant opined that he repeatedly went to this 
 

 
         
 
         
 
         
 
         SLATER V. JOHN MORRELL & COMPANY
 
         Page   2
 
         
 
         chiropractor but obtained no relief from his back problems.  
 
         Claimant indicated that next he was sent to a local physician 
 
         and referred to the Mayo Clinic.
 
         
 
              Claimant testified that Bernard F. Morrey, M.D., was his 
 
         primary treating physician at the Mayo Clinic.  Dr. Morrey 
 
         testified the initial diagnosis of claimant's back injury was 
 
         "back strain, secondary to trauma.O (Morrey Deposition, page 8)  
 
         Dr. Morrey also testified as to the treatment claimant received 
 
         at the Mayo Clinic from November 1983 through May 1984:
 
         
 
              Q.  Was the patient then seen on a repetitive basis up 
 
              until May of 1984?
 
         
 
              A.  Yes, the patient had the neurologic evaluation, and 
 
              that was normal.  We injected the area where it was 
 
              most tender and he was dismissed from our care, but 
 
              still seen in the Physical Medicine area.  This was on 
 
              November 18, 1983.  Then we saw him again a couple 
 
              months later on January 6, 1984, and the injection was 
 
              not beneficial, and the physical medicine was not 
 
              beneficial.  He was seen in another week and then 
 
              periodically over the next several months for the same 
 
              condition.
 
         
 
         (Morrey Dep., pp. 8-9)
 
         
 
              Dr. Morrey stated his working diagnosis after this period 
 
         was "mechanical low back pain." (Morrey Dep., p. 9) Dr. Morrey 
 
         explained mechanical low back pain:
 
         
 
              Q.  What do you mean by mechanical low back pain?
 
         
 
              A.  It's low back pain that does not have a nerve or 
 
              neurologic etiology, one that is associated with 
 
              intensification with activity and characteristic 
 
              features of aggravation with use, but without 
 
              necessarily any objective findings to specifically 
 
              document what tissue might be involved or what the 
 
              specific pathology might be.
 
         
 
         (Morrey Dep., pp. 9-10)
 
         
 
             Dr. Morrey summarizes his treatment of claimant in a December 
 
         24, 1984 letter:
 
         
 
                 The enclosed is a response to your request for a 
 
              summary of Mr. Slater's evaluation, treatment and 
 
              recommendations as a result of his previous evaluations 
 
              at the Mayo Clinic.
 
         
 
                 You probably have in your files the letter of 
 
              February 22 from Dr. Nelson which summarizes Mr. 
 
              Slater's evaluations from late 1983 up to a period of 
 
              time when he was hospitalized [sic] in St. Marys 
 
     
 
         
 
         
 
         
 
         
 
         SLATER V. JOHN MORRELL & COMPANY
 
         Page   3
 
         
 
              Hospital from January 17, to 27, 1984.  It is noted at 
 
              this time that there were no objective features on 
 
              which to place a specific disability at that time.  He 
 
              does have a low grade spondylolisthesis, but this is 
 
              not felt to be accounting for the severe symptoms of 
 
              which he is complaining.
 
         
 
                 Subsequent correspondence to Dr. Clayton on May 15 
 
              updated his assessment based on a consultation of April 
 
              9.  It should be noted in the third paragraph that it 
 
              was recommended that the patient consider the Pain 
 
              Management Center.  The patient was seen again on May 
 
              3, 1984 by a neurosurgeon, Dr. Piepgras.  Although the 
 
              patient has had a negative neurology assessment, he did 
 
              feel as though, as did other physicians who had seen 
 
              him previously, that his symptoms were suggestive of a 
 
              nerve root irritation.  However, with the negative EMG 
 
              and the opinion that the spondylolysis with minimal 
 
              spondylolisthesis was not sufficient to account for his 
 
              degree of pain, it was concluded that he was not a 
 
              candidate for surgical intervention.  A CT scan was 
 
              obtained but showed no specific organic problem.  An 
 
              MMPI was obtained and did show a conversion reaction.  
 
              It was therefore recommended that the patient be 
 
              considered for the Pain Management Center.  However, 
 
              the assessment in St. Marys Hospital on July 18, 1984 
 
              by Dr. Maruta indicated that he was not a good 
 
              candidate for this program due to (1) lack of 
 
              motivation, (2) question of whether or not the Company 
 
              would cover the Pain Management Center expenses unless 
 
              a final statement concerning his ability to return to 
 
              work is obtained, and (3) finally because there was 
 
              still a Workmen's [sic] Compensation issue pending.
 
         
 
                 The patient was last seen on July 30, 1984.  We saw 
 
              no alternative at that time except to allow the patient 
 
              to return to work with restrictions which are 
 
              consistent with a patient with low back pain with low 
 
              grade spondylolisthesis.  This consists of no lifting 
 
              of over 50 pounds on a single event or repetitive 
 
              lifting of 30 pounds.  He should avoid bending at the 
 
              back, avoid repetitive lifting maneuvers from the floor 
 
              to the waist.  It should be emphasized that this does 
 
              not imply that the patient is not capable of any 
 
              gainful employment.  I do feel, however, as though 
 
              activities which stress the back in any way as just 
 
              stated should definitely be avoided.
 
         
 
         (Joint Exhibit 8)
 
         
 
              Dr. Morrey opines in a January 7, 1985 letter that claimant 
 
         has a "15 percent permanent partial disability of the spine based 
 
         on the radiographic findings of spondylolisthesis.O  (See Joint 
 
         Exhibit 9)
 
         
 
              Dr. Morrey also testified concerning treatment claimant 
 
         received for back pain at the Mayo Clinic in August 1979 and 
 
         December 1981:
 
         
 
              Q.  Mr. Slater, to my understanding, has been treating 
 

 
         
 
         
 
         
 
         SLATER V. JOHN MORRELL & COMPANY
 
         Page   4
 
         
 
              with the Mayo Clinic for some period of time, is that 
 
              correct?
 
         
 
              A.  Yes.
 
         
 
              A.  Would you relate to the Commissioner when, in 
 
              reviewing the history here at the Mayo Clinic, was the 
 
              first time he was seen at the Mayo Clinic for back pain 
 
              or problems with his back?
 
         
 
              Q.  He was first seen on August 1, 1973.
 
         
 
              Q.  What was the history that was related at that 
 
              particular time?
 
         
 
              A.  The patient indicated that he awoke from sleep 
 
              approximately three to four months earlier with pain in 
 
              the back, which had persisted over the last several 
 
              months, and it was located in the lower portion of his 
 
              spine, and varied in severity, but was not radiating, 
 
              meaning it stayed in the back.  It was worse when he 
 
              sat and was aggravated by activity.  He had seen a 
 
              local doctor, who was unsure of the cause of those 
 
              problems, so he referred him to Rochester.
 
         
 
              Q.  What, if anything, was done for the patient at that 
 
              time for the problem with his back?
 
         
 
              A.  The evaluation revealed nothing other than what was 
 
              described as a mechanical low back pain.  It appears he 
 
              was treated simply somatically, since no objective 
 
              findings were present.
 
         
 
              Q.  Doctor, what do you mean by no objective findings 
 
              were present.
 
         
 
              A.  That means that there was nothing that could be 
 
              demonstrated on the studies or physical examination 
 
              that suggested the person had anything other than a 
 
              strained back.
 
         
 
              Q.  Doctor, when was the next time that Mr. Slater was 
 
              seen at the Mayo Clinic for problems with pain in his 
 
              low back?
 
         
 
              A.  He was seen on December 12, 1981 -- I'm sorry, 
 
              December the 30th.
 
         
 
              Q.  And what history was obtained at that time in 
 
              regard to the low back pain problem that Mr. Slater was 
 
              having?
 
         
 
              A.  The history revealed that the patient was having or 
 
              had had multiple episodes of low back pain over the 
 
              last three or four years.  He dated the onset to a 
 
              parade in Iowa when he was riding a horse and turned to 
 
              look over his shoulder, and after this long ride, he 
 
              noted severe low back pain and was placed in traction 
 
              for a couple weeks.  This episode was resolved, and he 
 
              was seen in Sioux Falls as recently as nine months 
 

 
         
 
         
 
         
 
         SLATER V. JOHN MORRELL & COMPANY
 
         Page   5
 
         
 
              earlier.  He had been placed on lifting restrictions 
 
              and had been doing the William's exercises for low back 
 
              pain.  He complained of no numbness or tingling in his 
 
              extremities.  The examination failed to demonstrate any 
 
              objective findings at normal motion, normal testing for 
 
              sciatica or nerve root.  His x-rays were normal and his 
 
              reflexes were normal.  It was felt he had a mechanical 
 
              back pain.  We didn't see any evidence of instable or 
 
              active disk disease.  William's exercises and 
 
              intermittent use of a corset would be the most logical 
 
              treatment, as well as anti-inflammatory treatment.
 
         
 
         (Morrey Dep., pp..5-7)
 
         
 
              Claimant was also examined by Paul From, M.D.  Dr. From 
 
         opined that claimant suffers a five percent whole man impairment 
 
         as a result of claimant's back problems.  Dr. From testified 
 
         regarding the causal connection between claimant's back problems 
 
         and claimant's work injury:
 
         
 
              Q.  Doctor, would you relate all of the permanent 
 
              partial impairment that you just related to us to the 
 
              incident that was described to you when you took his 
 
              history which occurred when the carcass fell on Mr. 
 
              Slater in November of 1983?
 
         
 
              A.  Well, when I examined him and wrote the letter I 
 
              did because the only history I had was that was the 
 
              only time that he had injured his back and it was from 
 
              that time that he began to have back complaints.  So 
 
              relying upon that historical fact I did base it upon 
 
              that.  I came into documented evidence later that is 
 
              somewhat different from that story and would make me 
 
              want to change my opinion and say that it would not be 
 
              completely possible to say that was the entire cause of 
 
              his back pain.
 
         
 
              Q.  What information are you relying upon that would 
 
              change your opinion, Doctor?
 
         
 
              A.  Well, in the deposition of Doctor Morrey from the 
 
              Mayo Clinic I find that he was a patient there since 
 
              1972 because of his back.  In fact, Doctor Morrey said 
 
              that in going over his entire record his complaints 
 
              hadn't changed a great deal from O72 to '83 or O84 and 
 
              the complaints were the same.  So whether it's 
 
              something that goes back to O72 or O79 or O80 or O83, 
 
              it would be very difficult to say in view of that kind 
 
              of a medical history.
 
         
 
         (From Dep., pp. 13-14)
 
         
 
              Claimant also sought treatment from Paul M. Arnesen, M.D.  
 
         Dr. Arnesen examined claimant on November 12, 1984 and in his 
 
         examination report he states:
 
         
 
              HISTORY OF PRESENT ILLNESS:  This patient states he got 
 
              John Morrell Stripper spilled on his right thigh in 
 
              January, 1981, while working at John Morrell.  He had a 
 
              six inch area of this thigh that was burned from the 
 

 
         
 
         
 
         
 
         SLATER V. JOHN MORRELL & COMPANY
 
         Page   6
 
         
 
              chemical.  Debridement was done at St. Mary's in 
 
              Rochester and metal sutures were inserted.  He was off 
 
              work for [sic] two months with the injury.  He has 
 
              continued to have pain in certain areas of his thigh 
 
              and there are other areas where he has no feeling in 
 
              his thigh.  He states he can bump into something with 
 
              his leg and not know he bumped it.
 
         
 
                 The patient also states that prior to November, 
 
              1983, he had no back problems and had not seen a 
 
              chiropractor or other healer regarding it.  On the 
 
              above date the patient had hogs fall on him causing him 
 
              to fall from the stand he was on.  He got back up on 
 
              the stand and the same thing happened again within a 
 
              few minutes.  The second time he hit his back on a 
 
              steel corner.  This injury occurred while working for 
 
              John Morrell.  He was seen by the company chiropractor 
 
              and the company doctor.  He was referred on to 
 
              Rochester and was off work until July, 1984.  He was 
 
              reinjured one month ago when more hanging hogs knocked 
 
              him down.  He has been seeing the company doctor since 
 
              the last injury one month ago.  He has been taken off 
 
              heavy work since then.  He is to lift only 5 to 10 
 
              pounds at a time. (Emphasis added.)
 
                 ....
 
         
 
              DIAGNOSIS:  (1) Spondylolisthesis L-5 on S-1.
 
                          (ICD-9-CM# 756.11)
 
         
 
              WORK:   This patient's normal work is that of a laborer 
 
              for the John Morrell Company.  He is working at the 
 
              present time.  He is having significant difficulty in 
 
              accomplishing his work because of the pain that is 
 
              produced by the physical activities necessary in this 
 
              labor.
 
         
 
              COMMENTS:    This patient has the above findings.  He 
 
              has significant symptoms of discomfort and pain at the 
 
              lumbosacral level.  The x-rays demonstrate a 
 
              spondylolisthesis to be present.  I have recommended to 
 
              the patient that he be admitted to the hospital to be 
 
              treated with an intensive program of traction, muscle 
 
              relaxants, local heat and analgesics.  A determination 
 
              of the recommendations for future programs of therapy 
 
              will be made when an observation of the response to his 
 
              conservative treatment schedule in the hospital setting 
 
              has been observed.
 
         
 
                 Arrangements have been made for the patient to be 
 
              admitted to Immanuel-St. Joseph's Hospital on the 14th 
 
              of November, 1984.
 
         
 
         (Jt. Ex. 11)
 
         
 
         At Dr. Arnesen's direction, claimant underwent a CT scan on 
 
         November 30, 1984.  Dr. Arnesen's diagnosis did not change 
 
         following the CT scan:
 
         
 
              X-RAYS:   A CT scan performed at Immanuel-St. Joseph's 
 
              Hospital on the 30th of November, 1984 demonstrates 
 

 
         
 
         
 
         
 
         SLATER V. JOHN MORRELL & COMPANY
 
         Page   7
 
         
 
              once again the bilateral spondylolysis at the lowest 
 
              lumbar vertebra.  There is no definite [sic] evidence 
 
              of herniated nucleus pulposus and no definite evidence 
 
              of compression upon the nerve roots.
 
         
 
              DIAGNOSIS:  Spondylolysis L-5, S-1.
 
         
 
         (Jt. Ex. 12)
 
         
 
         Dr. Arnesen did recommend that claimant undergo surgery (Gill's 
 
         procedure) on his back.  Dr. Arnesen testified that at the 
 
         present time without the surgery claimant suffers,a 25 percent 
 
         impairment of the body as a whole, and that after the surgery 
 
         claimant's impairment would be in the range of 10 to 15 percent.  
 
         With regard to the causal connection between claimant's work 
 
         injury and present disability, Dr. Arnesen opined:
 
         
 
              Q.  Doctor, do you have an opinion, based upon a 
 
              reasonable degree of medical certainty, whether the 
 
              trauma of that injury on the job at the John Morrell 
 
              packing plant in November of 1983 caused those 
 
              conditions and problems that you've described here in 
 
              your deposition today?
 
         
 
              A.  I do have an opinion.
 
         
 
              Q.  And what is that opinion, please?
 
         
 
              A.  My opinion is that the spondylotic defect that is 
 
              present certainly antedated the injury that occurred in 
 
              November of 1983.  The production of symptoms and the 
 
              limitations in ability for this patient to perform 
 
              physical work were caused by an aggravation of that 
 
              particular defect by the injury in November of 1983.
 
         
 
              Q.  You mentioned in your history, it states "The 
 
              patient also states that prior to November, O83, he had 
 
              no back problems and had not seen a chiropractor."  
 
              Would you find it consistent with the condition that 
 
              Mr. Slater demonstrated to you when you examined him on 
 
              November 12th of 1984, that from time to time in the 
 
              past Mr. Slater would have experienced some back 
 
              problems, through the course of many years.
 
         
 
              A.  An individual with a spondylotic defect is very 
 
              prone to have repeated episodes of back discomfort.
 
         
 
              Q.  Would those back discomforts, would you expect, to 
 
              be of the nature that the individual would seem to have 
 
              a episodic situation where held have back problems and 
 
              they'd seem to go away, come back and go away?
 
         
 
              A.  That's not an unusual history.  The individual with 
 
              this particular defect in the spine may have any degree 
 
              of back impairment, solely as a result of the, of the 
 
              defect itself.
 
         
 
              Q.  Doctor, you had mentioned briefly that it was your 
 
              opinion, based upon a reasonable degree of medical 
 
              certainty, that the aggravation which took place on the 
 

 
         
 
         
 
         
 
         SLATER V. JOHN MORRELL & COMPANY
 
         Page   8
 
         
 
              job at John Morrell in November of 1983 was the 
 
              producing cause, factor of Mr. Slater's current 
 
              condition.  Is it your opinion that his impairment is 
 
              also caused by that same event?
 
         
 
              A.  That's correct.
 
         
 
         (Arnesen Dep., pp. 28-30)
 
         
 
              Claimant indicated that he continues to experience low back 
 
         pain and continues to have difficulty sleeping.  Claimant also 
 
         stated that he has numbness and tingling in his legs.  Claimant 
 
         opined that Dr. Arnesen would be better able to treat his back 
 
         problems.
 
         
 
              Claimant testified that he is 45 years old and a high school 
 
         graduate.  Claimant stated that before going to work for 
 
         defendant in 1965 he worked for a grocery store, then drove a 
 
         semi-truck and finally owned a grocery store.  Claimant opined 
 
         that before going to work for defendant his health was great.
 
         
 
                                  APPLICABLE LAW
 
         
 
              The citations of law contained in the arbitration decision 
 
         are appropriate to the issues and evidence.
 
         
 
                                     ANALYSIS
 
         
 
              Claimant argues that his present disability is causally 
 
         connected to his work injury of November 10, 1983.  The medical 
 

 
         
 
         
 
         
 
         SLATER V. JOHN MORRELL & COMPANY
 
         Page   9
 
         
 
         record reveals that claimant experienced low back pain problems 
 
         before the work injury on November 10, 1983.  Dr. Morrey has been 
 
         claimant's primary treating physician for claimant's back 
 
         problems and has reviewed claimant's prior back history.  Dr. 
 
         Morrey could not causally connect claimant's problems to 
 
         claimant's work injury.  Although Dr. Arnesen opined that 
 
         claimant's disability is related to claimant's back injury, 
 
         claimant told him that he had not experienced any back problems 
 
         prior to November 1983.  See Joint Exhibit 11.  Claimant also 
 
         failed to report his pre November 1983 history of back pain to 
 
         Dr. From.  Claimant has not been truthful with his treating or 
 
         examining physicians.  Claimant cannot be considered credible.
 
         
 
              Moreover, the opinions of Dr. Arnesen cannot be relied upon 
 
         as they are based upon an incomplete medical history.  Dr. Morrey 
 
         is a qualified orthopedic surgeon and his opinions are based on a 
 
         complete review of claimant's medical history.  Dr. Morrey could 
 
         not find a causal connection between claimant's work injury on 
 
         November 10, 1983 and claimant's present disability is adopted 
 
         herein.  The greater weight of evidence supports the deputy's 
 
         finding that claimant's current disability is not causally 
 
         connected to claimant's work injury on November 10, 1983.
 
         
 
              As claimant has not established a causal connection, 
 
         claimant's arguments concerning additional healing period 
 
         benefits, extent of entitlement to weekly disability benefits and 
 
         extent of entitlement to medical benefits under Iowa Code section 
 
         85.27 need not be considered.
 
         
 
              Claimant also seeks determination of his entitlement to 
 
         alternate care by Dr. Arnesen.  Claimant has not established a 
 
         causal connection between any disability experience or medical 
 
         treatment received after July 30, 1984 when he was released by 
 
         Dr. Morrey and claimant's work injury.  Therefore, claimant is 
 
         not entitled to alternate care from Dr. Arnesen.
 
         
 
                                 FINDINGS OF FACT
 
         
 
              1.  On November 10, 1983, while performing his work as a hog 
 
         splitter, claimant injured his low back in two incidents in which 
 
         a hog carcass either fell on or struck him.
 
         
 
              2.  Prior to November 1983 claimant had a long history of 
 
         recurrent back pain radiating into his buttocks with no objective 
 
         findings as to the cause of this pain.
 
         
 
              3. In September 1982 claimant complained to physicians of 
 
         right leg pain while walking.
 
         
 
              4.  Prior to November 1983 claimant received treatment of 
 
         his recurrent episodes of back pain which included 
 
         hospitalizations.
 
         
 
              5. Prior to November 1983 a treating orthopedic surgeon 
 
         recommended to claimant that he restrict his weight lifting to 25 
 
         to 30 pounds.
 
         
 
              6.  Claimant reported to Dr. Arnesen that he had not 
 
         experienced any back problems and that he had not seen any 
 
         chiropractors or other physician regarding his back prior to 
 

 
         
 
         
 
         
 
         SLATER V. JOHN MORRELL & COMPANY
 
         Page  10
 
         
 
         November 1983.
 
         
 
              7.  Claimant failed to inform Dr. From of his history of 
 
         back problems prior to November 1983.
 
         
 
              8.  Claimant is not credible.
 
         
 
              9.  Dr. Morrey is a qualified orthopedic surgeon and has 
 
         made a complete review of claimant's medical history of back 
 
         problems.
 
         
 
             10.  Dr. Morrey opined that he could not relate claimant's 
 
         present disability to claimant's injury on November 10, 1983.
 
         
 
             11.  Claimant has no permanent impairment or disability as a 
 
         result of his November 10, 1983 injury.
 
         
 
                                CONCLUSIONS OF LAW
 
         
 
              Claimant failed to meet his burden in proving that he has 
 
         any permanent partial disability as a result of his November 10, 
 
         1983 injury.
 
         
 
              Claimant failed to meet his burden in proving entitlement to 
 
         any temporary total disability benefits after July 30, 1987.
 
         
 
              Claimant failed to prove a causal connection between any 
 
         medical treatment after July 30, 1984 and his injury of November 
 
         10, 1983.
 
         
 
              WHEREFORE, the decision of the deputy is affirmed.
 
         
 
                                      ORDER
 
         
 
               THEREFORE, it is ordered:
 
         
 
               That claimant shall take nothing from this proceedings.
 
         
 
               That claimant shall pay the costs of this action pursuant 
 
         to Division of Industrial Services Rule 343-4.33.
 
         
 
         
 
               Signed and filed this 29th day of February, 1988.
 
         
 
         
 
         
 
         
 
         
 
         
 
                                               DAVID E. LINQUIST
 
                                               INDUSTRIAL COMMISSIONER
 
         
 
         Copies To:
 
         
 
         Mr. Joseph L. Fitzgibbons
 
         Attorney at Law
 
         P.O. Box 496
 
         108 North Seventh Street
 
         Estherville, Iowa 51334
 
         
 

 
         
 
         
 
         
 
         SLATER V. JOHN MORRELL & COMPANY
 
         Page  11
 
         
 
         Mr. Dick H. Montgomery
 
         Attorney at Law
 
         Professional Building
 
         Spencer, Iowa 51301
 
 
 
         
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                                 1108.5 - 1402.40 - 2700
 
                                                 Filed February 29, 1988
 
                                                 DAVID E. LINQUIST
 
         
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         ALLEN D. SLATER,
 
                                                  File No. 764404
 
              Claimant,
 
         
 
         vs.                                        A P P E A L
 
         
 
         JOHN  MORRELL & COMPANY,                 D E C I S I 0 N
 
         
 
              Employer,
 
              Self-Insured,
 
              Defendant.
 
         
 
         
 
         
 
         1108.5 - 1402.40
 
         
 
              Claimant failed to establish a causal connection between his 
 
         back injury and his disability.  Claimant had a prior history of 
 
         back problems which were similar to the back problems claimant 
 
         experienced after the back injury.  Claimant was found not 
 
         credible as he was not truthful with his treating or examining 
 
         physicians concerning his back problems.
 
         
 
         2700
 
         
 
              Claimant not entitled to alternate care as he failed to 
 
         establish a causal connection.
 
 
 
         
 
         
 
 
         
 
 
 
 
 
 
 
 
 
                                       1401; 1402.10; 1403.30; 2001; 2002 
 
                                       Filed January 10, 1991 Walter R. 
 
                                       McManus, Jr.
 
         
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         DARRELL BROWN,
 
         
 
              Claimant,
 
         
 
         vs.
 
                                 File No.  764455
 
         CAMPBELL BUILDING PRODUCTS,
 
                              A R B I T R A T I 0 N
 
              Employer,
 
                                 D E C I 5 I 0 N
 
         and
 
         
 
         ALLIED INSURANCE,
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
         1401; 1402.10; 1403.30; 2001; 2002
 
         
 
              It was determined that claimant initially established an 
 
         employeremployee relationship because he worked for employer and 
 
         was paid compensation.  However, defendants assumed the burden of 
 
         going forward with the evidence and proved that claimant was an 
 
         independent contractor.  Several of the 
 
         employer-employee/independent contractor cases as well as the 
 
         pertinent statutes are cited and applied to the facts of this 
 
         case. Claimant was a siding applicator who fell several feet from 
 
         a scaffolding and received extremely severe injuries.  All of the 
 
         evidence indicated that all siding applicators are essentially 
 
         carpenters who operate as independent contractors and supply all 
 
         of their own tools and equipment.  Although claimant as a matter 
 
         of practice worked continuously for the same siding companies or 
 
         siding salesmen for long periods of time the evidence disclosed 
 
         that he was not obligated to work exclusively for them.  The 
 
         factors of the (1) equipment; (2) nonexclusive work; and (3) using 
 
         his own methods and being only accountable for the final result 
 
         distinguished claimant from truckers who sign similar independent 
 
         contractor contracts and have been held to be employees.
 
         
 
         
 
 
 
 
 
 
 
 
 
                      BEFORE THE IOWA INDUSTRIAL COMMISSIONER --
 
         
 
         DARRELL BROWN,      ~ ~ L ~;:~
 
         
 
         
 
         vs.  Claimant,        JhNl~N:'
 
         CAMPBELL BUILDING Rd~~~1 ~fV\N5 ile No.  764455 ;-,-~
 
                                          A R B I T R A T I 0 N
 
              Employer,
 
                                 D E C I 5 I O N
 
         and
 
         
 
         ALLIED INSURANCE,
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
                                   INTRODUCTION
 
         
 
              This is a proceeding in arbitration brought by Darrell Brown, 
 
         claimant, against Campbell Building products, employer and Allied 
 
         Insurance, insurance carrier, defendants for benefits as the 
 
         result of an alleged injury which occurred on June 22, 1982. 
 
         Claimant was represented by James S. Blackburn; defendants were 
 
         represented by Cecil L. Goettsch.  Both attorneys submitted an 
 
         excellent statement of their parties' contentions at the time of 
 
         the hearing and both attorneys submitted excellent posthearing 
 
         briefs.
 
         
 
              The record consists of the testimony of Darrell Brown, 
 
         claimant; Daniel Oppenheim, a building supply owner and operator; 
 
         and Betty L. Fetch, employer's bookkeeper and joint exhibit A, B 
 
         and C.  Joint exhibit A contains 190 pages of written evidence.
 
         
 
                                PRELIMINARY MATTER
 
         
 
              Defendants objected to pages 97 to 107, 108 to 111, 116 to 
 
         129, and 13? to 136 of joint exhibit A.  These pages are 
 
         psychological evaluations of claimant.  Defendants' counsel 
 
         admitted that these papers had been hand delivered to him 
 
         approximately six months prior to the hearing (transcript pages 
 
         12-15). Claimant's counsel indicated that claimant was not 
 
         asserting that he sustained a psychological injury, but that his 
 
         client did request that evidence about the full extent of the 
 
         severity of his injury be allowed into evidence (tr. p. 6).  
 
         Defendants' objection is overruled and the foregoing pages of 
 
         joint exhibit A are admitted into evidence.
 
         
 
         
 
 
 
 
 
 
 
 
 
         BROWN V. CAMPBELL BLDG PRODUCTS
 
         Page 2
 
         
 
                                   STIPULATIONS
 
         
 
              The parties stipulated that if it is determined that an 
 
         employer-employee relationship existed between claimant and 
 
         employer and if it is determined that claimant sustained an injury 
 
         arising out of and in the course of his employment with employer, 
 
         then the parties agreed that the injury was the cause of temporary 
 
         disability and claimant is entitled to temporary disability 
 
         benefits from June 22, 1982 until January 24, 1983; that the 
 
         injury was the cause of permanent disability and that claimant is 
 
         entitled to 70 weeks of permanent partial disability benefits 
 
         based upon a 14 percent impairment for two scheduled members 
 
         arising out of the same accident under Iowa Code section 85.34(2) 
 
         (s) That the rate of compensation is $165 per week and that 
 
         claimant is entitled to $3,750 in medical expenses under Iowa Code 
 
         section 85.27.
 
         
 
              Defendants asserted no claim for credit for either employee 
 
         nonoccupational group health plan benefits or workers' 
 
         compensation benefits paid to claimant prior to hearing.
 
         
 
              There are no bifurcated claims.
 
         
 
                                      ISSUES
 
         
 
              The parties submitted the following issues for determination 
 
         at the time of the hearing.
 
         
 
              Whether an employer-employee relationship existed between 
 
         employer and claimant at the time of the alleged injury.
 
         
 
              Whether claimant was an independent contractor was asserted 
 
         as an affirmative defense by defendants.
 
         
 
              Whether claimant sustained an injury which arose out of and 
 
         in the course of employment with employer on June 22, 1982.
 
         
 
                                 FINDINGS OF FACT
 
         
 
           EMpLOYER-EMpLOYEE RELATIONSHIP-INDEPENDENT CONTRACTOR STATUS
 
         
 
              It is determined that claimant initially made out a prima 
 
         facie case of employer-employee, relationship between employer and 
 
         claimant.  It is further determined that defendants assumed the 
 
         burden of going forward with the evidence and proved as a matter 
 
         of fact that claimant was an independent contractor at the time of 
 
         this injury on June 22, 1982.
 
         
 
              The burden of proof initially is on claimant to show that an 
 
         employer-employee relationship existed at the time of the injury 
 
         between employer and claimant.  Everts v. Jorqensen, 227 Iowa 818, 
 
         822-826, 289 N.W. 11 (1939); Reddick v. Grand Union Tea Company, 
 

 
         
 
 
 
 
 
 
 
 
 
         230 Iowa 108, 114-116, 296 N.W. 800 (1941); Nelson v. BROWN V. 
 
         CAMPBELL BLDG PRODUCTS
 
         Page 3
 
         
 
         Cities Service Oil Company, 259 Iowa 1209, 1213, 146 N.W.2d 261, 
 
         265 (1966).
 
         
 
              Five factors are considered in the determination of 
 
         employer-employee relationship.  Hierleid v. State, 229 Iowa 818, 
 
         826, 827 295 N.W. 139, 143 (1940); Usqaard v. Silver Crest Golf 
 
         Club, 256 Iowa 453, 455, 456, 127 N.W.2d 636 (1964); Nelson, 259 
 
         Iowa 1209, 1213, 146 N.W.2d 261, 265 (1966).  Henderson v. Jennie 
 
         Edmundson Jjosp., 178 N.W.2d 429, 431 (1970); Caterpillar Tractor 
 
         Co. v. Shook, 313 N.W.2d 503 (1981); Hawkins v. The Messenqer 
 
         Newspaper, file number 750428, filed February 13, 1984 (affirmed 
 
         by District Court October 31, 1984); Bora v. Kinu of Clubs, Inc., 
 
         file number 881019 (Appeal Decision August 23, 1990).
 
         
 
              These factors are:
 
         
 
              1.  The right of selection, or to employ at will.
 
         
 
              2.  Responsibility for the payment of wages by the employer.
 
         
 
              3.  The right to discharge or terminate the relationship.
 
         
 
              4.  The right to control the work.
 
         
 
              5.  Is the party sought to be held as the employer, the 
 
         responsible authority in charge of the work or for whose benefit 
 
         the work is performed?
 
         
 
              No one or more of these five factors is determinative.  The 
 
         determination is for the finder of fact.  Daqqett v. 
 
         NebraskaEastern Exp., Inc., 252 Iowa 341, 248, 107 N.W.2d 102 
 
         (1961); Iowa Workers' CompensationLaw and Practice, section 2-1, 
 
         pages 5 & 6).
 
         
 
              As to the law, the Iowa Supreme Court has stated that in a 
 
         case of doubt, the workers' compensation act should be liberally 
 
         construed to extend its beneficent purpose to every employee who 
 
         can fairly be brought within it.  Usqaard, 256 Iowa 453, 459, 127 
 
         N.W.2d 636, 639 (1964); Daqqett, 252 Iowa 341, 248, 107 N.W.2d 102 
 
         (1961).  The supreme court has also stated that the workers' 
 
         compensation statute is intended to impose upon the industry in 
 
         which the worker is employed a share of the burden resulting from 
 
         industrial accidents.  Caterpillar, 313 N.W.2d 503 (1981).
 
         
 
              A formal statutory definition of employee is given at Iowa 
 
         Code section 85.61(2):
 
         
 
                  "Worker" or "employee" means a person who has entered 
 
              into the employment of, or works under contract of service, 
 
              express or implied, or apprenticeship, for an employer;...
 
         
 

 
         
 
 
 
 
 
 
 
 
 
              This statutory definition has been distilled down over the 
 
         years to the following working definition.  An employee is a
 
         BROWN V. CAMPBELL BLDG PRODUCTS
 
         Page 4
 
         
 
         person who has entered into the employment or works for an 
 
         employer.  Lawyer and Higgs, Iowa Workers' ~0~pensationLa~ and 
 
         practice, section 2-2, page 6.
 
         
 
              Employment means the employer's promise to hire and the 
 
         employee's promise to perform services.  McClure v. Union. Et Al.  
 
         Counties, 188 N.W.2d 283 (1971).
 
         
 
              Claimant established a prima facie case of ~mployerempl0~~~ 
 
         relationship by showing that employer had the right to employ the 
 
         employee at will.  The employer was responsible to pay compensa 
 
         tion to claimant.  Employer could discharge or terminate the 
 
         ~~lationship at any time by simply not giving claimant any jobs to 
 
         perform.  Therefore, the fact that employer could hire or 
 
         terminate tl'e claimant at will and the fact that employer paid 
 
         claimant compensation for his work are sufficient to establish a 
 
         prima facie case of employerempl0y~~ relationship.
 
         
 
              Once the worker has proven that he was rendering services for 
 
         the employer at the time of the injury, the burden then shifts to 
 
         the employer to prove the worker was an independent contractor and 
 
         not an employee.  Daqqett, 252 Iowa 341, 344, 345, 346, 107 N.W.2d 
 
         102, 105 (1961); and numerous cases cited therein.  Once claimant 
 
         makes out a prima facie case of employer employee ~elationship, 
 
         the burden of going forward shifts to defendants to prove an 
 
         independent contractor relationship. Nelson, 259 Iowa 1209, 146 
 
         N.W.2d 261 (1966).
 
         
 
              Iowa Code section 85.6l(3)(b) provides that an independent 
 
         contractor shall not be deemed an employee
 
         
 
              A definition of independent contractor and an eight factor 
 
         test to determine whether an independent contractor relationship 
 
         exists has been established by the Supreme Court of Iowa. 
 
         Mallinqer v. Webster City Oil Co., 211 Iowa 847, 851, 234 N.W. 
 
         254, 257 (1929).
 
         
 
              An independent contractor, under the quite universal rule, 
 
              may be defined as one who carries on an independent bu<iness, 
 
              and contracts to do a piece of work according to his own 
 
              methods, subject to the employer's control only as to 
 
              results.  The commonly recognized tests of such a 
 
              relationship are, although not necessarily concurrent, or 
 
              each in itself controlling: (1) the existence of a contract 
 
              for the performance by a person of a certain piece or kind of 
 
              work at a fixed price; (2) independent nature of his business 
 
              or his distinct calling; (3) his employment of assistants, 
 
              with the right to supervise their activities: (4) his 
 
              obligation to furnish necessary tools, supplies and 
 
              materials; (5) his right to control the progress of the work, 
 
     
 
         
 
         
 
 
 
 
 
 
 
 
 
              except as to final results; (6) the time for which the 
 
              workman is employed; (7) the method of BROWN V. CAMPBELL BLDG 
 
              PRODUCTS
 
         Page 5
 
         
 
              payment, whether by time or by job; and (8) whether the work 
 
              is part of the regular business of the employer.
 
         
 
              In this case defendants have gone forward with the evidence 
 
         and have proven by a preponderance of the evidence that claimant 
 
         was in fact an independent contractor at the time of this injury 
 
         on June 22, 1982.  The 1981, 1982 and 1983 listing for claimant in 
 
         the Des Moines city directory shows Brown, Darrell L. (Brown's 
 
         Contracting) h 2209 Morton Ave. (ex. A, pp. 180-182).  Claimant 
 
         testified that he applied siding and other home improvements 
 
         according to his own methods and that normally he was the only one 
 
         present at the job site when he performed this work.  He was 
 
         subject to the employer's control only as to results.  This is 
 
         evidenced by the fact that when he brought back the check or 
 
         completion certificate from the customer then he received his pay.
 
         
 
              First, claimant and employer did have a contract dated April 
 
         7, 1981 which is signed by Darrell L. Brown with the caption under 
 
         his signature, "Independent Contractor." There is no signature by 
 
         a employer representative, but at the hearing, it was not disputed 
 
         that this was the contract between claimant and defendants (ex. 1, 
 
         pp. 137 & 138).  The preamble and paragraph one describe claimant 
 
         as an independent contractor.  Paragraph two states that he will 
 
         provide his own tools, equipment and transportation. Paragraph 
 
         four states that he is to provide his own liability insurance and 
 
         workmens' compensation insurance for himself and all of his 
 
         employees.  Paragraph five provides, "Contractor agrees with 
 
         company to bid for any work that the company has available and to 
 
         agree with the company prior to the start of any work, as to the 
 
         contract pri.ce on any particular job; the same to be paid 
 
         promptly by the company upon the satisfactory completion and 
 
         acceptance of said improvements by the purchaser of the materials 
 
         and by the company." Paragraph 12 states, "[T]he company shall not 
 
         be responsible for workmen's compensation insurance covering the 
 
         contractor, his helpers or laborers.  Such matters are the sole 
 
         and exclusive responsibility of the contractors, and that nothing 
 
         in this contract shall be construed to authorize the contractor to 
 
         employer any helper or laborer for the company." Paragraph 22 
 
         provides, "That the parties intend to create by this contract the 
 
         relationship of company and independent contractor and not an 
 
         employer-employee relationship.  Neither the contractor nor its 
 
         employees are to be considered the employees of the company at any 
 
         time, under any circumstances or for any purpose."
 
         
 
              Although Iowa Code section 85.16 provides that no contract 
 
         shall operated to relieve an employer from workers' compensation 
 
         liability, and similar contracts have been ignored with respect to 
 
         truckers, there is evidence in this case that all siding 
 
         applicators are generally carpenters who basically operate as 
 
         independent contractors on siding applications.  The substance of 
 

 
         
 
 
 
 
 
 
 
 
 
         the contract as well as the form is taken into consideration. 
 
         Schlotter v. Leudt, 255 Iowa 640, 645, 123 N.W.2d 434, 438 BROWN 
 
         V. CAMPBELL BLDG PRODUCTS
 
         Page 6
 
         
 
         (1963); Arne v. Western Silo Co., 214 Iowa 511, 513, 242 N.W. 539, 
 
         542 (1932).  In this case both substance and form prove 
 
         independent contractor relationship
 
         
 
              Claimant agreed that the applicator'S price sheet, which 
 
         shows that applicatOrS receive a fixed price for certain kinds of 
 
         work, was his compensation agreement with defendants (ex. A, pp. 
 
         169 & 170).  The evidence shows claimant was always paid based on 
 
         the fixed price sheet.
 
         
 
              Second, the business of siding applicator appears, by all of 
 
         the evidence in this case, to be a separate and distinct business 
 
         in its own right.  Daniel Oppenheim, the owner and operator of a 
 
         home improvement businesS for 18 years, testified that the sales 
 
         persons who generate the home improvement contracts are 
 
         independent contractors (tr. p. 106), that approximately 30 to 40 
 
         companies and approximately 200 individuals that apply siding 
 
         operate as independent contractors, and that the businesseS that 
 
         sell the siding and home improvement materials operate as 
 
         independent contractors (tr. pp. 107-117).  The witness was not 
 
         aware of any companies in Des MoineS which hire siding applicatorS 
 
         as employees (tr. pp. 118-121).
 
         
 
              Third, although claimant testified that he normally worked 
 
         alone as a siding applicator, he was entitled to employ assistants 
 
         and occasionally did so.  LikewiSe, his contract with defendants 
 
         specified that could hire assistants and if he did so he was 
 
         responsible to them as their employer (ex. A, pp. 137 & 138)
 
         
 
              Fourth, claimant testified that he supplied the tools and 
 
         equipment in order to perform his job.  More specifically, he 
 
         supplied a truck, a trailer, scaffolding, ladders and the hand 
 
         tools required to perform the job.  Oppenheim confirmed that this 
 
         was standard practice for the industry (tr. p. 115).
 
         
 
              Fifth, claimant did have the privilege or right to control 
 
         the progress of the work, except as to the final result.  He 
 
         testified that he could select his own hours, days -of employment, 
 
         and methods.  He demonstrated the final result of the job being 
 
         completed and the customer being satisfied by producing either a 
 
         check from the customer or a completion certificate in the event 
 
         that the customer borrowed the money to pay for the improvements.
 
         
 
              Sixth, claimant was only employed during the period of each 
 
         separate job.  This is true even though he worked for long periods 
 
         of time for several material suppliers of siding or siding 
 
         salesmen.  Even though claimant'S work tended to be continuous for 
 
         the same companies and sales persons for long periods of time, 
 
         nevertheless, claimant was not obligated to work exclusively for 
 
         any particular siding supplier or salesman.
 

 
         
 
 
 
 
 
 
 
 
 
         
 
              Seventh, claimant was paid by the job.  Betty Fetch, 
 
         defendants' bookkeeper, verified that claimant was an independent
 
         BROWN V. CAMPBELL BLDG PRODUCTS
 
         Page 7
 
         
 
         contractor and that he was at all times paid pursuant to the fixed 
 
         price schedule even when he did repair work (tr. pp. 12~ & 126; 
 
         ex. A, pp. 169 & 170).
 
         
 
              Claimant received a form 1099 for income taxes and did not 
 
         receive a W-2.  No monies were ever withheld for social security 
 
         tax or federal or state income taxes (tr. p. 126).  Even though 
 
         claimant testified that for a period of time he received a salary 
 
         for doing repair work for defendants, Fetch testified from her 
 
         records that claimant did not receive a salary, but rather was 
 
         paid the fixed price for the repair jobs that he performed (tr. 
 
         pp. 141-149 & 154-156).  Furthermore, claimant admitted that he 
 
         was not doing repair work, but was working for a fixed price at 
 
         the time of this injury.
 
         
 
              Eighth, from the combined testimony of all of the parties, 
 
         including the claimant in his deposition, exhibit B, as well ahis 
 
         trial testimony, it is clear, that it was not the regular business 
 
         of the sales persons or the suppliers of siding and home 
 
         improvement materials to perform the work of applying the siding 
 
         or installing the home improvements.  All of the evidence agrees 
 
         that the work was performed by siding applicators who worked as 
 
         independent contractors under independent contractor contraCts and 
 
         that no one had ever heard of a siding applicator being employed 
 
         as an employee.
 
         
 
              Claimant contended that at the time of his injury, he was 
 
         training a new employee at the request of defendants by the name 
 
         of Bud Smith (tr. p. 47; ex. B, pp. 21, 22 & 80).  There is no 
 
         evidence, however, that claimant worked as an employee for 
 
         defendants while training this ~nd~v~dual.  Apparently, he acted 
 
         as a volunteer because there is no evidence that he received 
 
         special payment for training this man on any of the sheets that 
 
         calculated what was due to claimant from employer or on claimant's 
 
         income tax return for the year 1982 (ex. A, pp. 88-96).
 
         
 
              Claimant's income tax returns for the years 1979, 1980, 1981, 
 
         and 1982, showed no income from wages or salaries, but rather 
 
         reported the bulk of his income on schedule C, profit or loss from 
 
         business or profession, as a self-employed siding applicator (ex. 
 
         A, pp. 73-96).
 
         
 
              If the intention of the parties and also the community 
 
         practice are to be taken 'into consideration in the determination 
 
         of the kind of relationship that existed, then the only evidence 
 
         introduced at this hearing is that siding applicators are 
 
         selfemployed persons who operate at independent contractors.  
 
         Nelson, 259 Iowa 1209, 1213, 146 N.W.2d 261, 265 (1966).
 
         
 

 
         
 
 
 
 
 
 
 
 
 
              In conclusion, claimant presented a prima facie case of 
 
         employer-employee relationship because he performed work and got 
 
         paid for it.  However, defendants went forward with the evidence 
 
         and established without question, that the practice of the 
 
         industry and that the terms of claimant's employment agreement and 
 
         BROWN V. CAMPBELL BLDG PRODUCTS
 
         Page 8
 
         
 
         practice with the defendant placed him in fact in the position of 
 
         a self-employed independent contractor.
 
         
 
                                CONCLUSIONS OF LAW
 
         
 
              Wherefore, based on the evidence presented and the foregoing 
 
         and following principles of law, these conclusions of law are 
 
         made:
 
         
 
              That claimant was not an employee of defendants at the time 
 
         of the injury.
 
         
 
              That claimant was a self-employed independent contractor at 
 
         the time of this injury.
 
         
 
              Based on these findings of fact and these conclusions of law, 
 
         it is not necessary to determine whether claimant sustained an 
 
         injury arising out of and in the course of his employment with 
 
         employer or any other issues in this case.
 
         
 
                                      ORDER
 
         
 
              THEREFORE, IT IS ORDERED:
 
         
 
              That no amounts are owed from defendants to claimant.
 
         
 
              That each party is to pay their own respective costs of this 
 
         action and that defendants are to pay for the cost of the 
 
         attendance of the court reporter at hearing and the cost of the 
 
         transcript of the hearing pursuant to Rule 343 IAC 4.33.
 
         
 
              Signed and filed t~isj~day of January, 1991.
 
         
 
         
 
         
 
         
 
         
 
                                       WALTER R. McMANUS, JR. DEPUTY 
 
                                       INDUSTRIAL COMMISSIONER
 
         
 
         Copies to:
 
         
 
         Mr. James S. Blackburn
 
         Attorney at Law
 
         400 Homestead Bldg.
 
         303 Locust St.
 
         Des Moines, Iowa 50309
 

 
         
 
 
 
 
 
 
 
 
 
         
 
         Mr. Cecil Goettsch
 
         Attorney at Law
 
         1100 Des Moines Bldg
 
         Des Moines, Iowa 50309-2464