Page 1 before the iowa industrial commissioner ____________________________________________________________ : CHARLES BARLOON, : : Claimant, : : File No. 777364 vs. : : WINNEBAGO INDUSTRIES, : A R B I T R A T I O N : Employer, : D E C I S I O N : and : : SENTRY INSURANCE, : : Insurance Carrier, : Defendants. : ___________________________________________________________ INTRODUCTION This is a proceeding in arbitration brought by Charles Barloon, claimant, against Winnebago Industries, employer, and Sentry Insurance, insurance carrier, for benefits as a result of an injury which occurred on October 8, 1984. A hearing was held in Mason City, Iowa, on August 17, 1990, and the case was fully submitted at the close of the hearing. Claimant was represented by Charles H. Levad and defendants were represented by Harry W. Dahl. The record consists of the testimony of Charles Barloon, claimant, Hazel Barloon, claimant's wife, Rosemary Helwig, claimant's witness, William D. Price, maintenance superintendent, Darrell J. Bonner, manager of health, safety and workers' compensation; claimant's exhibits 1 through 57; and defendants' exhibits 1 through 5. Defendants and claimant ordered a copy of the transcript. Defendants agreed to supply a copy for the industrial commissioner's file. Defendants' attorney submitted a statement of disputes at the beginning of the hearing. Defendants' attorney submitted an excellent posthearing brief. Claimant's attorney did not file a brief. stipulations The parties stipulated to the following matters: That an employer-employee relationship existed between claimant and employer at the time of the injury. That claimant sustained an injury on October 8, 1984, which arose out of and in the course of employment with employer. That the injury was the cause of both temporary and permanent disability. That claimant is entitled to and was paid temporary disability benefits for 33.714 weeks of healing period benefits for various periods of time between October 9, 1984 Page 2 and November 27, 1985, and that temporary disability benefits are no longer a disputed matter in this case at this time. That the rate of compensation in the event of an award of benefits is $192.72 per week. That defendants seek no credit for employee nonoccupational group health plan benefits paid to claimant prior to hearing. That defendants paid to claimant 59.4 weeks of permanent partial disability benefits prior to hearing at the rate of $192.72 per week, for a total amount of $11,447.56 based upon a 27 percent permanent functional impairment rating to the left lower extremity. That there are no bifurcated claims. That the issue of credit under Iowa Code section 85.38(2), as shown on the hearing assignment order, was withdrawn by defendants at the time of the hearing. That defendants have paid medical benefits believed by them to be caused by a scheduled member injury to the left leg but that certain other medical benefits remain disputed in this case. issues The parties submitted the following issues for determination at the time of the hearing: 1. Whether claimant is entitled to permanent disability benefits and, if so, the nature and extent of benefits to which he is entitled, more specifically, the issue is whether claimant received a scheduled member injury to the left lower extremity or whether claimant received an industrial disability to the body as a whole; and, 2. Whether claimant is entitled to certain medical expenses presented in claimant's exhibits 31, 33, 34 and 37. findings of fact causal connection - nature - entitlement - permanent disability It is determined that claimant sustained a scheduled member disability and did not sustain an industrial disability to the body as a whole. Claimant received an extremely severe crush injury to his left lower extremity when his waist and left knee and lower leg were caught between a fork lift and a flatbed trailer on October 8, 1984 (Transcript, pp. 38-41) He sustained a nondisplaced fracture of the fibula bone below his left knee (Tr., p. 88). Subsequently, claimant suffered pulmonary emboli (blood clots) which were believed to be caused by the left lower leg injury. Claimant testified by his prehearing deposition that one of them occurred in December of 1984 to his lower left rear lung and the other one occurred in January of 1985 to the middle rear lobe of his right lung (Defendants' Exhibit 3, page 20; Tr., pp. 44-48). The medical evidence shows that claimant was hospitalized at Forest City Community Hospital from January 14, 1985 to January 24, 1985, for pulmonary embolism, right chest (Claimant's Page 3 Exhibit 41, pp. 1-27). W. David Clark, M.D., stated on February 11, 1985 that in his clinical judgment it is more likely that the injury of October 8 did have a contributory role in the pulmonary embolus than a judgment that it did not play a contributory role. He said one of the things that is clinically investigated is to identify an injury or abnormality to the lower extremities. He concluded, "I have to believe that this injury to his leg in October increased the likelihood of him experiencing a pulmonary embulus later on." (Cl. Ex. 42) Later, Samuel E. Stubbs, M.D., wrote to claimant on May 8, 1985 that he found changes in the right lower lobe consistent with pulmonary embolus. Dr. Stubbs told claimant, "Regarding your pulmonary emboli, you will recall, we did not make any additional evaluation of that problem leaving it to the physicians there who are treating you." (Cl. Ex. 19 and 44) Robert C. Haakenson, M.D., claimant's family physician, testified by deposition on September 22, 1989, "There's no impairment on account of the embolus, because the lung corrects that, and he is breathing fine. The impairment is the persistent disability or damage left from the old injury in his leg." (Def. Ex. 2, pp. 4-5) Claimant was treated by A. J. Wolbrink, M.D., an orthopedic surgeon, on several occasions for his left leg (Cl. Ex. 9, 28 and 39). Claimant eventually saw Donald C. Campbell II, M.D., at the Mayo Clinic in consultation, beginning on April 19, 1985. Dr. Campbell submitted several reports, most of which appear in evidence several times in claimant's exhibits. A nerve conduction study of the left lower extremity showed no evidence of neurologic abnormality (Cl. Ex. 5, p. 2). His x-rays reveal a healed or healing fracture of the left fibula. His examination disclosed impaired gait, loss of range of motion of the ankle, and atrophy of the entire foot and leg. He described his diagnosis as residuals of a crush injury to the left leg. He suspected that claimant sustained damage to the contents of the posterior and deep posterior compartments, primarily muscle damage, with resulting fibrosis and scarring. Dr. Campbell concluded on May 1, 1985, "He has sustained a very serious injury, and his situation is complicated by the fact that the appearance of the leg does not reflect how very serious this injury actually was." (Cl. Ex. 5, p. 2) He further stated that claimant's duties at work should be restricted to desk work with minimal walking. He should elevate his foot often, at least ten minutes out of every hour (Cl. Ex. 5, p. 3). After claimant was taken off of blood thinners, a needle EMG examination on November 26, 1985 did not suggest any peripheral neuropathy or other neurologic abnormality (Cl. Ex. 5, p. 4). On December 9, 1985, Dr. Campbell said that claimant's injuries are permanent. He assessed a 14 percent permanent functional impairment to the body as a whole (Cl. Ex. 5, p. 5; Def. Ex. Page 4 5, p. 2). On January 9, 1986, Dr. Campbell translated that his 14 percent whole body rating would translate to a 27 percent permanent functional impairment rating of the left leg (Def. Ex. 5, p. 1). Claimant has voiced numerous other complaints which are recorded by numerous other doctors. Dr. Campbell thought some of them might be the result of compensation or abnormal use of other parts of the body because of problems with the left lower extremity (Cl. Ex. 5, p. 8). Among other things, claimant complained of pain from his left leg to his left armpit and his left shoulder and the whole left side of his body. Claimant has complained of and has been examined for pain to the right leg and ankle. His family physician, Dr. Haakenson, testified, "The portions of his anatomy that are impaired are limited to that left leg, primarily below the knee. I'm not aware of anything measurable or that you can document in other parts of his body." (Def. Ex. 2, p. 5) Dr. Haakenson further testified: In reading recently in one of the major textbooks on neurology and pain disorders, I believe that this patient fit the current description of something called chronic benign intractable pain syndrome. And this is just a description of this kind of situation. Where there has been an injury with or without complications and persistent pain that does not quit. (Def. Ex. 2, p. 6) This description, chronic benign intractable pain syndrome, gives claimant's complaints a diagnostic description in medical terminology, but neither Dr. Haakenson nor any other doctors who mentioned chronic pain syndrome stated that this condition was the cause of any functional impairment, either temporary or permanent. After the period of temporary disability, claimant returned to work and worked for employer for a period of approximately three or three and one-half years within the restrictions imposed by Dr. Campbell. It was claimant who voluntarily terminated his employment on November 18, 1988, after his workers' compensation benefits terminated, in order to pursue social security benefits (Def. Ex. 4). Claimant acknowledged in his testimony that he did, in fact, quit his employment in order to apply for social security disability benefits (Tr., p. 71). Initially, social security benefits were denied, but on appeal they were granted (Tr., p. 61). Several of claimant's physicians, to mention only Dr. Wolbrink, Dr. Campbell and Dr. Haakenson, have clearly stated that claimant's chronic pain syndrome would be alleviated if the workers' compensation lawsuit were settled (Def. Ex. 2, p. 7). Richard E. Finlayson, M.D., a psychiatrist at the Mayo Clinic, stated on February 29, 1988 that the psychological or emotional component of this complaint was possibly effected by excessive medication use, more specifically, Darvocet. He recommended a milder medication, Elavil (Cl. Page 5 Ex. 47). Claimant stated at the hearing that he was now taking Dolavid, which was a non-narcotic medication because he had to get away from the narcotic medications which he had taken for a long period of time. Claimant was also examined by Sant M. S. Hayreh, M.D., a neurologist, on December 22, 1986. He commented that claimant smokes one pack of cigarettes a week, drinks two or three cans of beer a day, and also drinks about one and one-half pots of coffee a day. He concluded, (1) that claimant had persistent leg pain, and (2) the episode of tunnel vision on December 18, 1986 was most likely functional in nature associated with an anxiety attack. He recommended that claimant quit smoking, quit drinking coffee, eat meals on a regular basis, begin a low fat diet, and restrict his medications to aspirin (Cl. Ex. 49). Dr. Haakenson further testified as follows: "He describes a wide variety of body aches and pains and weakness and different sensations from time to time. They do not follow any consistent pattern. And I have encouraged him to see other specialists, trying to track these down. There has been no firm answer or documentation that there are physical problems in other parts of the body." (Def. Ex. 2, p. 8) Claimant saw John R. Walker, M.D., an orthopedic surgeon, for an evaluation and Dr. Walker reported on April 8, 1988, in a very detailed medical report which concluded that claimant sustained a permanent impairment of 20 percent of the whole man. Dr. Walker had no further recommendation for claimant (Cl. Ex. 29). Dr. Walker sent his findings to the social security disability division on July 22, 1988 (Cl. Ex. 6). Dr. Walker further testified by deposition on September 28, 1989. Dr. Walker said he did find some atrophy of the left forearm but he did not see how you could connect a crush injury to the left leg to the left hand or forearm (Def. Ex. 1, p. 8). He said that he could not connect the complaints of dorsal back pain to the left leg (Cl. Ex. 1, p. 8). He said claimant told him that the physical therapist said it was due to bad posture (Def. Ex. 1, p. 7). Dr. Walker was not able to connect up his right ankle complaints with this injury (Def. Ex. 1, p. 7). He did find that claimant sustained a serious injury to his left lower extremity and on this occasion he evaluated claimant with having a permanent partial impairment of 40 percent to the left lower extremity based upon his own personal judgment and based to some extent on the Guides to Evaluation of Permanent Impairment, American Medical Association (Def. Ex. 1, pp. 9-10). He reiterated he could not connect the left arm injury to the left leg (Def. Ex. 1, p. 10). He said other doctors had attributed the left shoulder injury to muscle strain (Def. Ex. 1, p. 11). In summary, claimant has established an injury to his left lower extremity. There is no convincing evidence from any doctor that the injury extends to the body as a whole. There is no permanent injury to his lungs. There was no Page 6 evidence that the chronic benign intractable pain syndrome suggested by Dr. Haakenson is the cause of any permanent impairment. Wherefore, it is determined that claimant has sustained a permanent impairment to the lower left extremity of 27 percent which entitled claimant to 59.4 weeks of permanent partial disability benefits under Iowa Code section 85.34(2)(o). The commencement date of permanent partial disability benefits begins on November 27, 1985 at the conclusion of healing period. Iowa Code section 85.34(2). medical expenses Claimant presented a bill in the amount of $280.92 in order to have a fabricated ramp made to load his electric car, called a pace saver, into and out of his vehicle (Tr., pp. 79 & 80). Defendants have refused to pay this bill. It is determined that claimant is entitled to recover this expense. Dr. Campbell clearly recommended that claimant use the pace saver, itself (Cl. Ex. 2, p. 9). Dr. Wolbrink recommended a pace saver as "medically necessary." (Cl. Ex. 39, p. 2) The purpose of the pace saver was to enable claimant to get to the plant from a distant parking lot when his close-in parking privileges had been revoked by employer for overall security reasons at the plant. It is determined that the pace saver electric car would be of little value to claimant of he were not able to transport it to and from work. Wherefore, it is determined that claimant is entitled to payment for the fabricated ramp in the amount of $280.92, which enabled claimant to take it to and from work (Cl. Ex. 31). Claimant has submitted expenses for radiology and treatment to his right ankle and knee (Cl. Ex. 33). Claimant did not establish that his right leg complaints were caused by the injury of October 8, 1984. Therefore, these expenses cannot be awarded to claimant (Tr., pp. 81-84). Claimant has submitted several drug expenses totaling $382.26 from Snyder Drugs (Cl. Ex. 34). Claimant testified generally that these expenses were due to this injury but there is no evidence from the prescriptions themselves or otherwise that they were caused by the injury to the left lower extremity which occurred on October 8, 1984 (Tr. Ex. 80 & 81). These expenses are denied. Claimant presented bills from Mayo Clinic for October 16, 1987, March 11, 1988, and August 12, 1988 (Cl. Ex. 37). None of these are itemized bills. They are all balance due bills. Even though claimant made the general statement that they were associated with this injury, there was no specific evidence what these charges are for or that they were caused by the injury to the left lower extremity on October 8, 1984 (Tr., p. 85). Wherefore, the only allowance for medical expenses is for the fabricated ramp to load and unload the pace saver in the amount of $280.92. conclusions of law Wherefore, based upon the evidence presented, and the Page 7 foregoing and following principles of law, these conclusions of law are made: That the injury of October 8, 1984 was the cause of permanent disability to claimant's left lower extremity. Bodish v. Fischer, Inc., 257 Iowa 516, 133 N.W.2d 867 (1965); Lindahl v. L. O. Boggs, 236 Iowa 296, 18 N.W.2d 607 (1945). That claimant proved that the injury was to a scheduled member. Iowa Code section 85.34(2)(o). That claimant did not sustain the burden of proof by a preponderance of the evidence that the injury to his left lower extremity extended to the body as a whole. Dailey v. Pooley Lumber Co., 233 Iowa 758, 10 N.W.2d 569 (1943); Soukup v. Shores Co., 222 Iowa 272, 268 N.W. 598 (1936). That claimant is entitled to 59.4 weeks of permanent partial disability benefits based upon a 27 percent permanent partial impairment to the left leg. Iowa Code section 85.34(2)(o). That claimant has sustained the burden of proof that he is entitled to $280.92 in medical expenses for the fabricated ramp to load and unload the pace saver. That claimant did not sustain the burden of proof by a preponderance of the evidence that he is entitled to recover the expenses to the right leg (Cl. Ex. 33) or the pharmacy expenses (Cl. Ex. 34) or the Mayo Clinic bills (Cl. Ex. 37). Page 8 order THEREFORE, it is ordered: That no further amounts are due to claimant from defendants for workers' compensation weekly benefits because the parties have stipulated that defendants paid claimant his entitlement to temporary disability benefits prior to hearing and permanent partial disability benefits of fifty-nine point four (59.4) weeks of permanent disability benefits have also already been paid to claimant prior to hearing. That defendants pay to claimant or the provider of services two hundred eighty and 92/100 dollars ($280.92) for the fabricated ramp for the pace saver. That the costs of this action are charged to defendants, pursuant to Division of Industrial Services Rule 343-4.33. That defendants file any claim reports requested by this agency, pursuant to Division of Industrial Services Rule 343-3.1. Signed and filed this ______ day of November, 1990. ______________________________ WALTER R. McMANUS, JR. DEPUTY INDUSTRIAL COMMISSIONER Copies to: Mr Charles H Levad Attorney at Law 15 1st St NE Ste 302 Mason City IA 50401 Mr Harry W Dahl Sr Attorney at Law 974 73rd St Ste 16 Des Moines IA 50312 51401; 51402.40; 51402.60 51703; 51803.1; 52501 Filed November 2, 1990 Walter R. McManus, Jr. before the iowa industrial commissioner ____________________________________________________________ : CHARLES BARLOON, : : Claimant, : : File No. 777364 vs. : : WINNEBAGO INDUSTRIES, : A R B I T R A T I O N : Employer, : D E C I S I O N : and : : SENTRY INSURANCE, : : Insurance Carrier, : Defendants. : ___________________________________________________________ 51401; 51402.40; 51402.60; 51703; 51803.1 It was determined that claimant sustained an injury to his left lower leg and that none of his other many symptoms and complaints were proven to be caused by this injury. Claimant was awarded 27% of the left leg based on treating physician's evaluation. Evaluating physician's 40% evaluation was ignored because the evaluation report was not well reasoned, explained, reliable or realistic with respect to the 40% rating. Defendants had already paid claimant the amount of the award prior to hearing and were entitled to an offset for this amount. Therefore, claimant took nothing as weekly benefits. 52501 Claimant did prove he was entitled to the cost of installing a ramp onto his vehicle so he could take his pace saver to and from work. Two doctors confirmed the need for a pace saver. It was of little value if claimant could not take it to and from work. Bills for other parts of the body were rejected. Pharmacy bills that could not be connected to this injury by medical evidence were rejected. Claimant's very general statement that they were for this injury was not sufficient to warrant payment of the bills. Balance due bills from the Mayo Clinic which did not show what they were for were rejected because there was no way to connect them to the injury in this case. BEFORE THE IOWA INDUSTRIAL COMMISSIONER HARRIET DEN HARTOG, Executor of the Estate of LARRY DEN HARTOG, Deceased, File No. 777409 Claimant, A R B I T R A T I O N vs. D E C I S I O N FARMERS COOP OIL ASSOC., Employer, F I L E D and MAR 04 1988 FARMLAND MUTUAL, IOWA INDUSTRIAL COMMISSIONER Insurance Carrier, Defendants. INTRODUCTION This is a hearing in arbitration brought by Harriet Den Hartog, executor of the estate of Larry Den Hartog, claimant, against Farmers Coop Oil Company, employer, and Farmland Mutual Insurance Company, insurance carrier, defendants, for benefits as a result of an alleged injury that occurred on May 16, 1984. A hearing was held on May 20, 1987 at Des Moines, Iowa and the case was fully submitted at the close of the hearing. The record consists of the testimony of Harriet Den Hartog (claimant), William J. Muilenburg (coop manager), claimant's exhibits A through Z, AA through ZZ, AAA through ZZZ, AAAA, BBBB, and CCCC and defendants' exhibits 1 through 13. Both counsel submitted outstanding briefs. STIPULATIONS The parties stipulated to the following matters. That an employer-employee relationship existed between claimant and employer at the time of the alleged injury. That if it is determined that claimant sustained an injury arising out of and in the course of his employment with employer, then it is stipulated that the injury was the cause of temporary disability and that claimant is entitled to temporary disability benefits from May 16, 1984 through October 31, 1984. That the type of permanent disability, if the injury is found to be a cause of permanent disability, is industrial disability to the body as a whole. That the commencement date for permanent partial disability benefits, in the event such benefits are awarded, is November 1, 1984. That the rate of compensation, in the event of an award, is $172.35 per week. That the providers of medical services would testify that the fees charged were reasonable and defendants are not offering contrary evidence. That the providers of medical services would testify that the treatment was reasonable and necessary for the alleged injury and defendants are not offering contrary evidence. That the medical expenses are causally related to the injury but the causal connection to a work injury remains an issue to be decided in this case. That no credits are claimed by defendants under Iowa Code Section 85.38(2) for the previous payment of benefits under an employee nonoccupational group plan or for workers' compensation benefits paid prior to the hearing. That the claim for Iowa Code Section 86.13 penalty benefits has been bifurcated from these proceedings. ISSUES The parties presented the following issues for determination at the time of the hearing. Whether claimant sustained an injury on May 16, 1984 which arose out of and in the course of employment with employer. Whether the alleged injury is the cause of permanent disability. Whether claimant is entitled to weekly compensation for permanent disability benefits, and if so, the nature and extent of benefits. Whether claimant is entitled to medical benefits under Iowa Code Section 85.27. Whether claimant's injury was caused by his own willful intent to injure himself. Whether claimant's injury was caused by his intoxication which did not arise out of and in the course of his employment, but was due to the effects of alcohol or another narcotic, depressant, stimulant, hallucinogenic, or hypnotic drug not prescribed by an authorized medical practitioner which was a substantial factor in causing the injury. That in the event it is determined that claimant sustained an injury arising out of and in the course of employment, and in the event it is determined that the claim is not barred by willful intent to injure or his intoxication, then whether the claim of Harriet Den Hartog, as executor of the estate of Larry Den Hartog, is barred by Iowa Code Section 85.31(4) because Larry Den Hartog died on September 8, 1985 from unrelated causes while this claim was yet unliquidated. The issue of penalty benefits under Iowa Code Section 86.13 is bifurcated. SUMMARY OF THE EVIDENCE All of the evidence was examined and considered. The following is a summary of the pertinent evidence. Counsel for the defendants made a very comprehensive, yet succinct summary of much of the pertinent evidence in this case in his post-hearing brief. Therefore, a large portion of his summary will be used as an overview of the facts of this case. His summary will then be supplemented by additional evidence and other evidence which is also pertinent to the determination of this case. Larry Den Hartog began working for Farmers Coop Oil Association on January 4, 1984. Mr. Den Hartog had a history of alcohol abuse and during the previous six months had twice been a patient at alcohol treatment centers. When Mr. Den Hartog was hired, William J. Muilenburg, the manager of Farmers Coop Oil Association, informed Mr. Den Hartog that any evidence of drinking on the job would be grounds for immediate termination. In late April or early May, Mr. Muilenburg was informed by a citizen that Larry Den Hartog had been seen purchasing alcohol at a local establishment. When confronted by Mr. Muilenburg with this allegation, Larry Den Hartog denied that he had returned to drinking. In March or April, Farmland Industries announced a seminar in Kansas City dealing with LP gas safety. After a discussion with Mr. Muilenburg, Larry Den Hartog agreed to go to the school in Kansas City. Larry Den Hartog understood the schedule was for three days of classes beginning Tuesday morning May 15 and continuing through Thursday afternoon, May 17. Mr. Den Hartog agreed to drive his own vehicle from Orange City to Kansas City on Monday, May 14 and return from Kansas City either late Thursday, May 17 or early Friday, May 18. In Kansas City, Farmland Industries has a self-contained schooling facility with dormitory rooms, dining facilities and auditoriums and meeting rooms where seminars are conducted. Larry Den Hartog's food and lodging had been prepaid with the registration for the seminar. Farmers Coop Oil Association's business practice is to reimburse an employee's actual out-of-pocket expenses for gas and meals en route to and from work seminars. At approximately 6:00 a.m. on May 14, Larry Den Hartog went to the offices of Farmers Coop Oil Association and told Bill Muilenburg's secretary that Mr. Muilenburg had authorized an advance of $100.00 for travel expenses to Kansas City. The secretary complied with the request. Mr. Den Hartog then promptly left for Kansas City. When Mr. Muilenburg learned of the request, he was angry because, 1) employees normally got no advance monies and simply received reimbursement for amounts actually sent; 2) Larry Den Hartog lied when he said the advance had been authorized by Mr. Muilenburg; and 3) $100.00 was more than twice the amount which was generally needed for gas and food on the road during the round trip to and from Kansas City. Larry Den Hartog arrived in Kansas City late in the afternoon of Monday, May 14. Mr. Den Hartog was assigned to a double room which he shared with another seminar participant. The following morning Larry Den Hartog's roommate left for breakfast and attendance of the seminar meetings before Larry Den Hartog was out of bed. Larry Den Hartog did not attend any of the seminar sessions which began early Tuesday morning May 15. When a representative of the school went looking for Larry Den Hartog on Tuesday morning May 15, Mr. Den Hartog was not in the room and he had taken his belongings with him. Larry Den Hartog never attended any of the seminar sessions on May 15, 16 or 17. There is no evidence of the whereabouts of Larry Den Hartog from 7:00 a.m. May 15 through 9:00 a.m. May 16. There is no evidence in this record that Mr. Den Hartog was engaged in any activity in furtherance of his employer's business from 7:00 a.m. Tuesday, May 15 through 9:00 a.m. Wednesday, May 16. When Larry Den Hartog was specifically asked if he had been doing anything within the scope of his employment, he failed to answer (Def.'s Ex. 2, p. 23, Interrogatory No. 29). At approximately 8:50 a.m. on Wednesday, May 16 Larry Den Hartog was involved in a single-vehicle accident at a location approximately 100 miles north of Kansas City when Mr. Den Hartog's vehicle abruptly left the road and ran into a concrete bridge pillar. At the time of the accident, his employer and his wife both expected that Mr. Den Hartog would have been attending classes in Kansas City. Mr. Muilenburg testified that if Larry Den Hartog had appeared at the offices of Farmers Coop Oil Association on Wednesday, May 16 with no explanation of where he had been or why he was not attending the seminar, Mr. Den Hartog would have been terminated from his employment. Farmers Coop Oil Association never paid Larry Den Hartog any wages for May 15 and 16, 1984 since there was no evidence Mr. Den Hartog was acting on behalf of his employer on those dates. As a result of injuries sustained in the motor vehicle accident, Larry Den Hartog was hospitalized for extensive treatment in Omaha, Sioux City, and Orange City. Following his release from the hospital and his release to return to work, Mr. Den Hartog never contacted Bill Muilenburg seeking re-employment at Farmers Coop Oil Association. Rather, Larry Den Hartog took a job with the Sioux County Sheriff's Department for wages which exceeded the wages he had previously been paid at Farmers Oil Association. Larry Den Hartog began work November 1, 1984 and worked until June 23, 1985, when he was terminated for drinking on the job. In July or August 1984 Mr. Den Hartog was treated for alcoholism at the Calvary Rehabilitation Center in Phoenix, Arizona. On or about September 7 or September 8, 1985, Mr. Den Hartog died in Phoenix, Arizona from causes not related to the injury on May 6, 1984. This excellent summary is now supplemented by the following additional and other evidence. Harriet Den Hartog, testified that the decedent, Larry Den Hartog, hung himself while on work release from the rehabilitation center in Phoenix, Arizona at 6:00 a.m. on Sunday, September 8, 1985. She stated that she had talked to him a week before, and that claimant saw her brother in Mesa, Arizona the week before his death, and claimant sounded good, he liked his job and seemed to be doing well (Exhibit 1, pages 5-8). Claimant, while he was living, summarized his own institutional treatment for alcoholism at interrogatory number 12. a. Alcoholism b. Unknown c. State Hospital d. 30 days - May, 1966 Cherokee, IA Keystone Treament [sic] Center 30 days - Oct. 1972 Canton, SD State Hospital 10 days - Jan. 1973 Cherokee Keystone Treament [sic] Center 30 days - July - 1983 Canton, SD Calvary Rehab. Center 42 days - Oct. 1983 Phoenix, Ariz. Calvary Rehab. Center June 18, 1985 - Phoenix, Ariz. (Ex. 2, p. 8) An examination of claimant's treatment records do not indicate he was suicidal. On the contrary, the only time suicide was specifically mentioned, Dr. Robert A. Komer, D.O., at Cherokee stated on January 5, 1973 "There is no evident suicidal rumination." (Ex. 6, p. 14). On another occasion when claimant was admitted on August 4, 1966, his wife indicated on the Commitment Notes that claimant was not suicidal (Ex. 5, p. 11). Other than these two recorded references which indicate that claimant was not suicidal, there is no evidence in the record on the subject of suicide until claimant did in fact hang himself on September 8, 1985. The hospital treatment records do record a fainting episode (Ex. 5, pp. 5 & 15). This had never happened before and claimant was real confused afterwards (Ex. 5, p. 23). This happened while claimant was hospitalized at Cherokee on August 4, 1966. When claimant was hospitalized at Keystone on July 21, 1983, he indicated on a Medical History that he had had blackouts years ago (Ex. 7, p. 5). Claimant suffered another episode of loss of consciousness at this institution which was described briefly as follows. On his fifth day of treatment, the patient again admitted to drinking beer which, he stated, "another patient bought for me". When confronted and threatened with dismissal, the patient suffered a Gran Mall seizure in the counselor's office. A staff doctor was in attendance at the time. The patient suffered some temporary loss of memory, but appeared improved within 72 hours. He was allowed to remain at Keystone. The patient frequently spoke of "leaving treatment early". (Ex. 7, p. 14) Claimant stated a number of times at the treatment facilities that his drinking began to be a serious problem after his first daughter, Kelly, was born a paraplegic on December 13, 1962 (Ex. 5, p. 3; Ex. 7. p. 12). Claimant's wife testified that he did not have any money to take to school at Kansas City and she had none to give him, so he got $100.00 from his employer before he left. When she met him at the hospital in Omaha after the accident he still had $86.00 and some odd change left, which in her opinion was just about what he needed for gas for his car (Ex. 1, pp. 11-16; Ex. 13, p. 37). She testified that Muilenburg told her to keep the $86.00 (Ex. 1, p. 38). Claimant's wife testified that she tried to talk to her husband and find out how the accident happened. He did not remember anything after the accident. He did not remember whether he attended classes or when he left his room (Ex. 1, pp. 17-21). She testified that claimant took a lie detector test to prove that he was telling the truth when he said he did not remember what happened (Ex. 1, p. 23). In response to interrogatory number 29, claimant gave this account of his memory while he was still living. Left Orange City and drove to Kansas City and checked in at Seminar site and was given a room. b. In route from Orange City to Kansas City and at the seminar site. c. Left Orange City early in the morning of May 14th and drove throughout the day and reached the seminar site late in the afternoon. Went to bed about Suppertime. Woke up during the night sometime on the night of May 14th and the morning of May 15th and went to the bathroom. Sometime early in the morning of May 14th, a roommate invited me to go to breakfast but I felt too sick to get up at that time. Was involved in a one car accident on the 16th of May but have no recollection of same. (Ex. 2, p. 23) Claimant's wife testified that their daughter told her that claimant had a bad headache the morning he left town on Monday, May 14, 1984. She further testified that claimant was sick and did not feel good on Sunday night before he left town (Ex. 1, pp. 18 & 19). Claimant's wife denied that her husband had returned to drinking before leaving for Kansas City (Ex. 1, pp. 50 & 51). She said that she had no idea where her husband was during the approximate 24 hour period prior to the accident (Ex. 1, p. 23). She further testified that she visited that accident scene approximately one and one-half weeks later. It appeared to her that his car had left the road gradually (Ex. 1, pp. 21 & 22). Claimant's wife was asked if her husband had been drinking at the time of the accident and she responded as follows. Q. And what did you learn from the highway patrolman? A. He said that -- The first thing I asked, I said, "Was there drinking involved?" He said, "I've been a patrolman for 25 years." And he said, "I had to get right down next to Larry's mouth in order to even understand what he was saying." And he said, "No, there was no alcohol involved." He said, "There's nothing been found in the car, there's been no smell on his breath." And he says, "I know what they smell like," he says, "no matter what they've had." And he told that to me, and he also told it to one of my friends that had taken us down there. (Ex. 1, pp. 25-28) The patrol report did not show any drinking, arrest or improper conduct by the driver. The patrolman did say that the car left the road abruptly on the right side and struck two concrete bridge pillars. Otherwise, the patrolman gave no indication how or why the accident happened (Ex. 4; Ex. AAAA). Claimant was transferred from the accident scene to Fairfax, Missouri Community Hospital and then to Clarkson Hospital in Omaha. Later he was transferred to Marion Health Center in Sioux City and eventually Orange City Municipal Hospital. Claimant suffered multiple serious injuries. Probably the most complete but yet succinct listing of his injury situation is found at the final impressions made by the Marion Health Center on June 2, 1984. FINAL IMPRESSION: 1. Status post thoracic trauma with multiple fractured ribs bilaterally, history of flail chest, prolonged mechanical ventilation from 5-16 to 5-30, bilateral pneumothorax, and status post chest tube placement. 2. Status post pulmonary contusion. 3. Status post lacerated liver, exploratory laparotomy times two. 4. Status post multiple lacerations with disconnected ear that has been re-attached. 5. Fracture of lumbar vertebra. 6. Right displaced femur fracture. 7. Elevated white count with history of Enterobacter cloacae and 12 days of Gentamycin. 8. Urinary tract infection with resistant pseudomonas, now resolved. 9. Status post hypoxemia, now non-hypoxemic. 10. Confusion, resolved. 11. History of alcohol abuse in the past. 12. Tobacco abuse. (Ex. VV) The emergency room physician in Missouri, E. L. Niedermeyer, M.D., stated that he did not take a blood alcohol test but he added that he did not have any indication or reason for drawing an alcohol blood level, and he did not necessarily suspect alcohol was involved in this situation at that time (Ex. F). None of the hospital records at Clarkson Hospital in Omaha, mention or give any indication or suspicion that alcohol was involved in this accident or that claimant was intoxicated at the time of the injury (Exs., Y, Z, AA-RR). Claimant answered interrogatory number 22 as follows while he was living. Interrogatory No. 22: State with specificity the basis for your contention that the injury arose out of and in the course of your employment with this employer. Answer: As part of my job, I was sent to Kansas City at Employer expense to attend a seminar. I was told to provide my own transportation, for which I would be reimbursed and I was paid my full salary for the trip to Kansas City attending at the seminar and return. I was returning to my home from Kansas City at the time of the automobile accident. (Ex. 2, p. 16) Claimant's wife testified that he did not return to work at the Coop because after the accident he could not handle the physical aspects of the job like handling the large tanks (Ex. 1, p. 36). William J. Muilenburg, employer's manager, testified that he hired claimant as a driver salesman delivering LP gas on a bulk truck which was a job that required exertion and physical effort (Ex. 13, pp. 5-15). He testified that claimant agreed to go to school in Kansas City. Claimant was to be paid on the basis of the average hours he would have worked if he had not gone to school. His tuition, lodging and food for the school were all paid by employer. The employee was to drive his own vehicle and be reimbursed his automobile expenses when he returned (Ex. 13, pp. 15-24). Muilenburg said that claimant was not physically able to perform this job after the accident (Ex. 13, pp. 35 & 36). Muilenburg testified that claimant was paid for May 14, 1984 but he was not paid for May 15 and May 16, 1984. Claimant was allowed to keep the $100.00 that he got as expense money from the bookkeeper (Ex. 13, p. 36). Muilenburg verified that the original agreement was that claimant was to be paid while attending this school, all of his expenses for attending the school were to be paid, and claimant was to be reimbursed for his transportation expenses to and from the school (Ex. 13, p. 39). The following colloquy transpired between claimant's counsel and Muilenburg. Q. In other words, you didn't expect him to go down to Kansas City and be stranded down there? A. No. Q. And he would be just as much on the trip coming home as he would going down, would he not? A. Pardon me? I don't understand. Q. It's as much an essential part of the trip that he come home as that he go down? A. Yes. Q. And you would certainly expect that the trip down would be followed up by a trip home? A. Yes. Q. The place where this accident happened, was it on a highway for travel that is customarily used to travel between Kansas City and Orange City? A. Yes. Q. Do you know whether or not this accident happened on the portion of the highway for travel that was headed toward Orange City or away from Orange City? A. Well, not having been at the scene of the accident, I would -- my answer would be on the way towards Orange City. Q. In other words, it would be northbound, northbound portion? A. Yes. (Ex. 13, pp. 39 & 40) Muilenburg testified that he did not know of any facts that would support a claim that the accident was a willful attempt by claimant to injure himself. Likewise, he testified that he had no knowledge of any facts that alcohol or any other drug substance was a substantial factor in decedent's automobile accident (Ex. 13, pp. 40-48). In a response to a request for admissions, Muilenburg answered questions five and six as follows. 5. Admit that the accident occurred on the most acceptable and appropriate automobile route between Orange City, Iowa and Kansas City. Admit. 6. Admit that the claimant's vehicle was travelling said route in a direction away from Kansas City and toward Orange City, Iowa. Admit. (Ex. CCCC) Alan Pechacek, M.D., an orthopedic surgeon, who treated claimant for his fractured hip and spinal injury, stated that claimant suffered multiple injuries and was fortunate to have survived the accident. He began to treat claimant in Sioux City on June 2, 1984. He declared that claimant was temporarily totally disabled from the date of the accident May 16, 1984 to November 1, 1984 when he was able to perform the light sedentary office job for the sheriff as a dispatcher. He stated that claimant could not perform moderate or heavy physical labor again, as he had done in the past. Dr. Pechacek described claimant's limitations as follows. At the time that he did return to work in November, 1984, his recovery was such that he was really only suited to a sedentary or light job activity. He was certainly not fit for work activities that would include lifting, carrying, bending, turning, or twisting, and prolonged standing and/or walking, climbing up and/or down stairs, ladders, or on equipment on a continuous or repetitive basis throughout a work day. I feel that he could have performed job activities involving a mixture of standing, walking, and sitting. He could probably handle light materials (less than 15 lbs.) so far as lifting or carrying are concerned, but only on an occasional or intermittent basis. He was probably not suited for prolonged periods of riding or driving vehicles or heavy equipment. (Ex. ZZZ) Dr. Pechacek applied the Guides to the Evaluation of Permanent Impairment, second edition, published by the American Medical Association and awarded a five percent permanent impairment of the body as a whole for decedent's spinal injury. He awarded a seven percent permanent impairment of the right hip and converted this to three percent of the body as a whole. He combined these two ratings to eight percent of the body as a whole. He added that he felt that claimant's disability would be greater than ten percent because of functional limitations that reduced his ability to perform work (Ex. ZZZ). APPLICABLE LAW AND ANALYSIS An employee is entitled to compensation for any and all personal injuries which arise out of and in the course of the employment. Section 85.3(1). Claimant has the burden of proving by a preponderance of the evidence that he received an injury on May 16, 1984 which arose out of and in the course of his employment. McDowell v. Town of Clarksville, 241 N.W.2d 904 (Iowa 1976); Musselman v. Central Telephone Co., 261 Iowa 352, 154 N.W.2d 128 (1967). The injury must both arise out of and be in the course of the employment. Crowe v. DeSoto Consol. Sch. Dist., 246 Iowa 402, 68 N.W.2d 63 (1955) and cases cited at pp. 405-406 of the Iowa Report. See also Sister Mary Benedict v. St. Mary's Corp., 255 Iowa 847, 124 N.W.2d 548 (1963) and Hansen v. State of Iowa, 249 Iowa 1147, 91 N.W.2d 555 (1958). The words "out of" refer to the cause or source of the injury. Crowe, 246 Iowa 402, 68 N.W.2d 63. The words "in the course of" refer to the time and place and circumstances of the injury. McClure v. Union et al. Counties, 188 N.W.2d 283 (Iowa 1971); Crowe, 246 Iowa 402, 68 N.W.2d 63. "An injury occurs in the course of the employment when it is within the period of employment at a place the employee may reasonably be, and while he is doing his work or something incidental to it." Cedar Rapids Comm. Sch. Dist. v. Cady, 278 N.W.2d 298 (Iowa 1979). McClure, 188 N.W.2d 283, Musselman, 261 Iowa 352, 154 N.W.2d (1967). The claimant has the burden of proving by a preponderance of the evidence that the injury of May 16, 1984 is causally related to the disability on which he now bases his claim. Bodish v. Fischer, Inc., 257 Iowa 516, 133 N.W.2d 867 (1965). Lindahl v. L. O. Boggs, 236 Iowa 296, 18 N.W.2d 607 (1945). A possibility is insufficient; a probability is necessary. Burt v. John Deere Waterloo Tractor Works, 247 Iowa 691, 73 N.W.2d 732 (1955). The question of causal connection is essentially within the domain of expert testimony. Bradshaw v. Iowa Methodist Hospital, 251 Iowa 375, 101 N.W.2d 167 (1960). However, expert medical evidence must be considered with all other evidence introduced bearing on the causal connection. Burt, 247 Iowa 691, 73 N.W.2d 732. The opinion of experts need not be couched in definite, positive or unequivocal language. Sondag v. Ferris Hardware, 220 N.W.2d 903 (Iowa 1974). However, the expert opinion may be accepted or rejected, in whole or in part, by the trier of fact. Id. at 907. Further, the weight to be given to such an opinion is for the finder of fact, and that may be affected by the completeness of the premise given the expert and other surrounding circumstances. Bodish, 257 Iowa 516, 133 N.W.2d 867. See also Musselman, 261 Iowa 352, 154 N.W.2d 128 (1967). If claimant has an impairment to the body as a whole, an industrial disability has been sustained. Industrial disability was defined in Diederich v. Tri-City Railway Co., 219 Iowa 587, 593, 258 N.W. 899, 902 (1935) as follows: "It is therefore plain that the legislature intended the term 'disability' to mean 'industrial disability' or loss of earning capacity and not a mere 'functional disability' to be computed in the terms of percentages of the total physical and mental ability of a normal man." Functional impairment is an element to be considered in determining industrial disability which is the reduction of earning capacity, but consideration must also be given to the injured employee's age, education, qualifications, experience and inability to engage in employment for which he is fitted. Olson v. Goodyear Service Stores, 255 Iowa 1112, 1121, 125 N.W.2d 251, 257 (1963). Claimant did sustain the burden of proof by a preponderance of the evidence that he sustained an injury which arose out of and in the course of employment with employer. The testimony of Muilenburg established that there was an agreement that claimant was to be paid for attending the school and that all of his expenses were to be paid by employer as well as his transportation expenses to and from the school for the use of his personal vehicle. Muilenburg's decision to only pay claimant through May 14, 1984 was an after the fact unilateral decision that was not part of the original agreement. In effect, Muilenburg granted that he had paid claimant for May 15 and May 16 by permitting the Den Hartogs to keep the $86.00 in expense money that was not used during decedents absence. Iowa Code Section 85.61(6) provides: The words "personal injury arising out of and in the course of the employment" shall include injuries to employees whose services are being performed on, in, or about the premises which are occupied, used, or controlled by the employer, and also injuries to those who are engaged elsewhere in places where their employer's business requires their presence and subjects them to dangers incident to the business. Employer, in this case, agreed to pay the employee his average hourly wages during the period that he traveled to the school and also during the period that he traveled from the school to home again. Employer agreed to pay the employee his travel and transportation expenses to the school and to return home again. Claimant testified by interrogatory number 22 "I was returning home from Kansas City at the time of the automobile accident." (Ex. 2, p. 16). Claimant was 100 miles north of Kansas City on the most direct and immediate route to return home at the time of the accident. He was driving in the direction of home. His suitcase was in the car. Therefore, it is determined that the accident occurred while claimant was returning home from the school. Defendants argue that claimant deviated from his employment from the morning of May 15, 1984 until the time of the accident on May 16, 1984 because claimant was supposed to be in the classrooms at the school. Actually, defendants are correct when they state in their brief "There is no evidence of the where-abouts of Larry Den Hartog from 7:00 a.m. May 15 through 9:00 a.m. May 16." If there is absolutely no evidence of where claimant was or what he did during this period, it is difficult to state with certainty whether he did in fact or did not in fact deviate. It would appear likely that a deviation occurred because claimant was expected to be in the classroom but did not attend any of the classes. Assuming that the claimant did deviate, he had terminated the deviation when he started home. In Farmers Elevator Co., Kingsley, v. Manning, 286 N.W.2d 174 (Iowa 1979), the employee was held to be in the course of employment when returning home from a company sponsored dinner when he fell asleep at the wheel and was involved in an accident. Bulman v. Sanitary Farm Dairies, 247 Iowa 488, 494, 73 N.W.2nd 27, 30 (1955) held as follows. If the employer assumes the burden of the workman's coming and going expense, that is held to imply that the time of coming and going is a part of the time of employment. Or when the employer sends him on a special mission apart from his usual employment, the coming and going time of such mission is implied to be within the course of employment. Likewise, the claimant in Crees v. Sheldahl Telephone Co., 258 Iowa 292, 139 N.W.2d 190 (1965) was also found to be in the course of employment when involved in an automobile accident while returning to his place of employment after an evening meal out of town and the employer was in the practice of paying for claimant's travel and transportation expenses. In addition, the court held in the Crees case "If, after deviating from the employment or a temporary abandonment, the employee returns to the employment, in this case starts the return trip home, and is injured, the injury is compensable." In Pohler v. T. W. Snow Constr. Co., 239 Iowa 1018, 33 N.W.2d 416 (1948) an employee returning to his bunk car from a special errand for his employer was held to be in the course of employment. The court said in Pohler that even if it is assumed that the employee deviated from his employment, nevertheless, when he reached the place where he had turned aside from his employment, then the deviation had ended and he had resumed his employment. The return trip is as much a part of the employment as the outbound trip. Heisler v. Strange Bros. Hide Co., 212 Iowa 848, 850, 237 N.W.343 (1931). In Lamb v. Standard Oil Co., 250 Iowa 911, 916 96 N.W.2d 730 (1959), the return trip was held to be in the course of employment. It was also held that claimant's temporary abandonment (deviation) ended when he started the return trip home. See also 1 Larson, Workmen's Compensation Law, 19.29. Defendants' argument that these cases can be distinguished by the fact that the employee completed the business that he was sent to do and that Den Hartog did not because he did not attend the classes is without merit. Claimant's employment had not been terminated at the time of the accident, even though grounds for termination probably existed. Therefore, it is determined that under the facts of this case, that even if it is assumed that a deviation occurred, that once claimant started home, the deviation ended and he resumed his employment. In conclusion, it is determined that claimant did receive an injury which arose out of and in the course of employment with employer when he was involved in an automobile accident on his return trip from Kansas City to home on May 16, 1984. The parties have agreed by stipulation that the injury was the cause of temporary disability and that claimant is entitled to temporary disability benefits from March 16, 1984 to November 1, 1984. It is now determined that the injury was the cause of permanent disability. Dr. Pechacek established that there is permanent impairment and that it was caused by this injury. There is no evidence to suggest otherwise. Dr. Pechacek awarded an eight percent permanent functional impairment of the body as a whole. Worse however, are claimant's working limitations as described by Dr. Pechacek. Moderate to heavy physical labor which claimant had done in the past was foreclosed in the future. Claimant was limited to light, sedentary office type of work in which he could stand, walk and sit alternately. He cannot lift or carry over 15 pounds. Claimant should not lift, carry, bend, turn or twist or do any prolonged standing, walking, or climbing. Claimant is entitled to a 40 percent industrial disability to the body as a whole. However, due to his death, he is only entitled to receive benefits from November 1, 1984 to the date of his death on Sunday, September 8, 1985. Iowa Code Section 85.31(4). Claimant is entitled to medical expenses in the amount of $79,485.02 as shown in claimant's exhibits CCC through XXX. The report fee of Dr. Pechacek in the amount of $75.00 for a medical report is not a medical expense but rather a trial preparation expense, however, it may be treated as a cost of this action under Division of Industrial Services Rule 343-4.33. None of these medical expenses were disputed by defendants. On the contrary, it was stipulated that they were fair and reasonable charges, that the services were reasonable and necessary and were causally connected to this injury. Iowa Code section 85.16 provides as follows. No compensation under this chapter shall be allowed for an injury caused: 1. By the employee's willful intent to injure himself or to willfully injure another. 2. By the employee's intoxication, which did not arise out of and in the course of employment but which was due to the effects of alcohol or another narcotic, depressant, stimulant, hallucinogenic, or hypnotic drug not prescribed by an authorized medical practitioner, if the intoxication was a substantial factor in causing the injury. 3. By the willful act of a third party directed against the employee for reasons personal to such employee. Defendants have the burden of proving the affirmative defense of willful intent to injure himself. Reddick v. Grand Union Tea Co., 230 Iowa 108, 296 N.W. 800 (1941). There is absolutely no evidence to indicate that claimant willfully intended to injure himself at the time of the automobile accident and injury on March 16, 1984 or at any other time. On the contrary, there only two times that suicide is specifically mentioned in the record and the evidence supports the proposition that claimant was not suicidal. When claimant's wife committed him to Cherokee, on August 4, 1966, she made a recorded statement that he was not suicidal (Ex. 5, p. 11). Dr. Komer, on January 5, 1973, stated that there was no evidence of suicidal rumination (Ex. 6, p. 14). The only evidence in the record that claimant was suicidal is the incident when claimant actually took his own life on Sunday, September 8, 1985, which was more than a year after the automobile accident on May 16, 1984. Defendants have the burden of proving the affirmative defense that alcohol or some other drug substance was a substantial factor in causing the injury. Reddick, 230 Iowa 108, 296 N.W. 800. There is absolutely no evidence of any substance other than alcohol in the entire record. It is true, that claimant was severely afflicted with the disease of alcoholism and received a great deal of treatment for it. Ironically, however, there is absolutely no evidence that claimant had been drinking alcohol at or immediately before the time of this accident or during his absence from the school. On the contrary, the patrol report shows no evidence of alcohol. No arrests were made and no charges were filed against claimant as a result of the accident for any reason. Claimant's wife testified that the patrolman told her that he had been a patrolman for 25 years and that he put his face next to claimant's mouth and did not detect any alcohol substance (Ex. 1, pp. 25-28). The emergency room doctor in Fairfax, Missouri, Dr. Niedermeyer, reported in writing that he did not have any reason to take a blood alcohol test and that he did not suspect that alcohol was involved in this situation (Ex. F). Furthermore, if claimant left home with $100.00 in cash and still had $86.00 after the accident, there is some inference, at least, that claimant did not spend a lot of money on alcohol or anything else, especially considering that claimant probably would have purchased some food and some gasoline sometime during the period after he left home on Monday, May 14, 1984 at 6:00 a.m. until the time of the accident on Wednesday, May 16 at 9:00 a.m. Even though there is no evidence of alcohol at or before the time of the automobile accident, there is evidence that claimant was sick. Claimant's wife testified that he was sick the night before he left home. She also testified that her daughter reported that claimant had a headache on the morning that he left home (Ex. 1, pp. 18 & 19). Claimant himself testified at interrogatory number 29 that he felt too sick to get up and eat breakfast on the morning of May 15, 1984 (Ex. 2, p. 23). It should also be noted that claimant had a history of blacking out, fainting episodes and at least one gran mal seizure. He fainted at Cherokee in 1966 and was real confused after that (Ex. 5, pp. 5, 15 & 23). When he entered Keystone in 1983 he reported that he had had blackouts some years ago (Ex. 7, p. 5). He suffered a gran mal seizure at Keystone in 1983 with a temporary loss of memory, but appeared improved within 72 hours (Ex. 7, p. 14). From the foregoing evidence it is determined that defendant did not sustain the burden of proof by a preponderance of the evidence that claimant's injury was due in any respect to a willful intent to injure himself, or that alcohol or any other drug was a substantial factor in causing the injury. On the contrary, there is evidence of fainting spells, blackouts and a gran mal seizure. These were typically followed by confusion or lack of ability to function for up to 72 hours. Hence, there is evidence that claimant was sick immediately prior to his period of absence. This sickness combined with previous periods of lack of consciousness, raises an inference that illness or blackouts may be the explanation for his absence from the school and the accident itself. Due to this evidence, it is difficult to say with absolute certainty that claimant did in fact deviate from his employment, if in fact he became sick, blacked out or encountered a period on confusion. Defendants contend that Harriet Den Hartog, executor of the estate of Larry Den Hartog, cannot recover because all potential liability of the employer and insurance carrier was extinguished pursuant to Iowa Code section 85.31(4) when Larry Den Hartog died from unrelated causes while his claim was yet unliquidated. Defendants cite Vanni v. Ringland-Johnson-Crowley Co., Vol. 1 Iowa Industrial Commissioner Report 353 (Appeal Decision 1980). Iowa Code section 85.31(4) provides "Where an employee is entitled to compensation under this chapter for an injury received, and death ensues from any cause not resulting from the injury for which he was entitled to the compensation, payments of the unpaid balance for such injury shall cease and all liability therefor shall terminate." Compensation for permanent partial disability becomes due at the end of the healing period. Iowa Code section 85.34(2). Teel v. McCord, 394 N.W.2d 405 (Iowa 1986). The deputy, writing an appeal decision on behalf of the commissioner, decided as follows. Claimant's argument, in essence, is that Mrs. Vanni should be able to collect disability benefits for the period of time between the last payment of said disability to claimant and the time of his death. Obviously, such benefits are accrued. However, claimant fails to point out that said benefits are unliquidated. That is, where the injured worker dies for reasons not associated with the injury, the workman's compensation law has no provision in it for the surviving spouse or estate to bring an action for an unliquidated number of weeks or weekly benefits payments. The Vanni decision is incorrect for several reasons. First, nothing in Iowa Code section 85.31(4) requires the benefits to be liquidated. Second, the deputy does not explain why he did not follow the decision of the industrial commissioner himself made just a few months prior to the Vanni decision. Vanni is dated October 27, 1980. The commissioner, himself, decided on June 4, 1980 in the case of Lundeen v. Quad City Construction, Thirty-fourth Biennial Report of the Industrial Commissioner 193 (Appeal decision 1980) that the proper construction of Iowa Code section 85.31(4) was as follows. In light of the purpose and principles served by the Iowa Workers' Compensation Act, it cannot be said that an employer is released from all liability incurred and owing prior to a claimant's untimely death. A fair interpretation of Iowa Code section 85.31(4) indicates that any portion of an award which has not accrued as of the date of a claimant's non-related death will abate along with any further liability on the part of the employer. However, any award which was due prior to a claimant's demise that is still owing upon the date of claimant's death does not abate. A surviving spouse was awarded benefits on the basis of Lundeen in the case of Valerie Handel, surviving spouse of Ted Handel, claimant v. Determann Industries, Inc., Vol III Iowa Industrial Commissioner Report 120 (September 15, 1982). The deputy was reversed by the commissioner on appeal for the reason that the surviving spouse in her own right was not a party to bring the action. However, the commissioner cited Lundeen again as good law and a proper interpretation of Iowa Code section 85.31(4). It was apparent from the decision that the estate would have been a proper party in interest. Valerie Handel, surviving spouse of Ted Handel, v. Dettermann Industries Inc., file number 670157, decided January 28, 1983. In this case the action is not brought by the surviving spouse, but rather by the decedent's estate. The commissioner indicated in Handel that the injured employee's legal representative would be a proper party in interest under Iowa Code section 85.26(4). In this case, Harriett Den Hartog is the executor of the estate of Larry Den Hartog and is a proper party to bring this action. The issue of whether Iowa Code section 85.31(4) extinguishes the right of the estate to bring an action was the subject of a ruling on a motion to dismiss in the case of Lou Ann Risinger, executrix of the estate of Harry W. Risinger, deceased v. Allied Structural Steel, file number 745320 filed July 6, 1984. The deputy in that ruling agreed with the deputy in Handel that Professor Larson shows a wide variance of how the various states handle the situation when an employee dies from unrelated causes. 2 Larson Workmen's Compensation Law section 58.44 (1981). The instant case is specifically a situation where claimant brought the action himself before he died but died before liability was established. The Iowa Supreme Court has not addressed this specific situation. In a case where liability had been established prior to death by a memorandum of agreement, the Supreme Court held as follows, quoting from the Risinger ruling. In the case Tibbs v. Denmark Light and Telephone Corp., 230 Iowa 1173, 300 N.W. 328 (1941), the court ruled that unpaid installments of weekly compensation which had not become payable become barred at the time of death but that any unpaid installments which had become due were an asset of the estate, the same as any other debt. In Tibbs there was a memorandum of agreement for payment of 400 weeks of compensation which had been entered into before the worker's unrelated death. This ruling was recently followed in Lundeen v. Quad City Construction Co., 23 Biennial Report, Iowa Industrial Commissioner 193 (Appeal Decision 1980). The balance of the Risinger ruling is pertinent to this case and is quoted below. This action was commenced by the worker during his lifetime and is now being prosecuted by the executor of his estate, the proper party to pursue such an action. Handel v. Determann Industries, Inc., Appeal Decision, File No. 670156, (January 28, 1983). The purpose of workers' compensation is to replace lost earnings. Prompt payment of justly due benefits is to be encouraged. Wilson Food Corporation v. Cherry, 315 N.W.2d 756 (Iowa 1982). As shown previously, no recovery can be had for any amounts which become payable subsequent to the death of Harry W. Risinger. If some amount were justly due to Harry W. Risinger and had been timely paid he would have received those payments prior to his death. His estate would presumably be larger as a result of the timely payment of compensation. The first alternative is to sustain the motion which would reward defendants for a failure to make timely payments of justly due compensation and deny decedent's heirs what they would have received if timely payment of justly due benefits had been made. The second alternative is to overrule the motion which should result in defendants paying the same amount they would have paid if timely payment had been commenced and which would give decedent's heirs the same amount they would have received if timely payment had been paid. Permitting the estate to maintain this action is clearly consistent with Iowa Code section 611.20 which provides as follows "All causes of action shall survive and may be brought notwithstanding the death of the person entitled or liable to the same". It is also consistent with Iowa Code section 611.22. Any action contemplated in sections 611.20 and 611.21 may be brought, or the court, on motion, may allow the action to be continued, by or against the legal representatives or successors in interest of the deceased. Such action shall be deemed a continuing one, and to have accrued to such representative or successor at the time it would have accrued to the deceased if the deceased had survived. If such is continued against the legal representative of the defendant, a notice shall be served on the legal representative as in case of original notices. The Supreme Court has not ruled on this exact situation, because in Tibbs liability had already been established by a memorandum of agreement, nevertheless, this decision is consistent with a steady stream of Supreme Court decisions over the years that have held that the workers' compensation laws are for the benefit of the injured worker and are to be construed liberally to that end. Rish v. Iowa Portland Cement Co., 186 Iowa 443, 451, 170 N.W. 532, 535 (1919); Barton v. Nevada Poultry Co., 253 Iowa 285, 289, 110 N.W.2d 660, 662 (1961); Irish v. McCreary Saw Mill, 175 N.W.2d 364, 368 (Iowa 1970); John Deere Dubuque Works v. Meyers, 410 N.W.2d 255, 157 (Iowa 1987). FINDINGS OF FACT WHEREFORE, based upon the evidence presented the following findings of fact are made. That employer had sent claimant to the school in Kansas City and had agreed to pay claimant his average hourly wage while attending the school, pay the expenses of the school, and pay claimant's transportation and travel expenses to and from the school. That claimant was returning home from the school at the time of his accident on May 16, 1984. That claimant sustained an injury on May 16, 1984 which arose out of and in the course of his employment at the time of the automobile accident while returning home from the school. That claimant was unable to work due to the injury from May 16, 1984 to November 1, 1984. That Dr. Pechacek determined that claimant sustained a permanent functional impairment of eight percent to the body as a whole. That claimant was no longer able to perform employment which requires moderate to heavy physical labor as he had done in the past and that claimant was limited to light, sedentary office type of work with a lot of freedom of movement after the injury. That claimant sustained an industrial disability in the amount of 40 percent of the body as a whole. That claimant died from causes unrelated to this injury on September 8, 1985. That claimant incurred $79,485.02 in medical expenses. That claimant commenced this action in person while still living. That the estate was substituted as the party claimant after his death. That employer's liability had not been established by settlement, award or otherwise at the time of claimant's death on September 8, 1985. That defendants had paid no benefits to claimant or to his estate up to the time of his death. That claimant's death was not due to this injury but was a result of causes unrelated to this injury. That there was no evidence to indicate that claimant's injury was a result of his own willful intent to injure himself. That there is no evidence that alcohol or any other drug substance was a substantial factor in causing the injury. That there was evidence that in the past claimant had suffered blackouts, fainting episodes and at least one gran mal seizure. That claimant did not feel well the night before he left home, that claimant's daughter reported that he had a headache the morning that he left home, and that claimant testified that he was sick on the morning of May 16, 1984 and did not go to breakfast at that time. CONCLUSIONS OF LAW WHEREFORE, based upon the evidence presented and the principles of law previously discussed the following conclusions of law are made. That claimant did sustain an injury on May 16, 1984 which arose out of and in the course of employment with employer. That the injury was the cause of temporary disability from May 16, 1984 to November 1, 1984. That claimant in entitled to healing period benefits for the period of temporary disability shown above. That the injury was the cause of permanent disability. That claimant is entitled to permanent partial disability benefits from November 1, 1984 until the date of his death on September 8, 1985. That claimant is entitled to medical expenses for this injury. That claimant did not willfully intend to injure himself. That alcohol or other drug substances were not a substantial factor in causing claimant's injury. That the estate was a proper party to this action after claimant's death and is entitled to recover both medical expenses and workers' compensation benefits from the date of injury until the date of death. That Iowa Code section 85.31(4) did not extinguish claimant's rights to recovery but that this cause of action survived pursuant to Iowa Code section 611.20 and 611.22. ORDER WHEREFORE, IT IS ORDERED: That defendants pay to claimant twenty-four point two eight six (24.286) weeks of healing period benefits at the rate of one hundred seventy-two and 35/100 dollars ($172.35) per week for the period from May 16, 1984 to November 1, 1984 in the total amount of four thousand one hundred eighty-five and 69/100 dollars ($4,185.69). That defendants pay to claimant forty-four point five seven one (44.571) weeks of permanent partial disability at the rate of one hundred seventy-two 35/100 dollars ($172.35) per week for the period from November 1, 1984 to September 8, 1985 in the total amount of seven thousand six hundred eighty-one and 81/100 dollars ($7,681.81). That these benefits are to be paid in a lump sum. That interest will accrue pursuant to Iowa Code section 85.30. That defendants pay to claimant seventy-nine thousand four hundred eighty-five and 02/100 dollars ($79,485.02) in medical expenses. That defendants pay the costs of this action 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 this case is to be returned to the prehearing calendar for assignment on the issue of penalty benefits pursuant to Iowa Code section 86.13. Signed and filed this 4th day of March, 1988. WALTER R. McMANUS, JR. DEPUTY INDUSTRIAL COMMISSIONER Copies To: Mr. Joe Cosgrove Attorney at Law 400 Frances Bldg Sioux City, Iowa 51101 Mr. Cecil Goettsch Attorney at Law 1100 Des Moines Bldg Des Moines, Iowa 50307 1107; 1110; 1402.20; 1402.30; 1402.60; 1403.30; 1601; 1602; 1802; 1803; 2501 Filed March 4, 1988 WALTER R. McMANUS, JR. BEFORE THE IOWA INDUSTRIAL COMMISSIONER HARRIET DEN HARTOG, Executor of the Estate of LARRY DEN HARTOG, Deceased, Claimant, File No. 777409 vs. A R B I T R A T I 0 N FARMERS COOP OIL ASSOC., D E C I S I 0 N Employer, and FARMLAND MUTUAL, Insurance Carrier, Defendants. 1107; 1110; 1402.20; 1402.30; 1402.40; 1402.60; 1403.30 Employee, a chronic alcoholic, checked in at training school. Then he disappeared and his whereabouts were unknown for 24 hours until he was involved in a terrible one car automobile accident when his car left the interstate and hit the bridge pillars. Accident occurred on the route toward home and his car was headed toward home and he was 100 miles away from training site. Employer agreed to pay his average hourly wages while at school, all expenses of school, and travel and transportation expense to and from the school. Employee was found to be returning home and did sustain an injury arising out of and in the course of employment. 1601 There was absolutely no evidence of the use of alcohol or other drug substance based on patrol and emergency room evidence. There was a history of fainting, blackouts and one gran mal seizure in the past followed by periods of confusion for up to 72 hours. There was evidence from claimant, his wife and daughter that he was ill the day before and the day of the disappearance. 1602 There was no evidence of suicidal inclinations until claimant actually hung himself over a year after the accident. The only evidence on suicide was that he was not suicidal. 1802; 1803; 2501 Claimant was allowed healing period and permanent partial disability until the date of his nonrelated death and $79,405.02 in medical expenses. Proper party in interest and section 85.31(4) Claimant brought the action but died before liability was determined. Held his estate was the proper party to continue the action. It was held that damages did not have to be liquidated prior to death in order to be recoverable by his estate in construing section 85.31(4). 1110,1402.30,1403.30,1601, 1602,1802,1803,1901 Filed August 25, 1989 DAVID E. LINQUIST BEFORE THE IOWA INDUSTRIAL COMMISSIONER HARRIET DEN HARTOG, Executor of the Estate of LARRY DEN HARTOG, Deceased, File No. 777409 Claimant, vs. A P P E A L FARMERS COOP OIL ASSOC., D E C I S I O N Employer, and FARMLAND MUTUAL, Insurance Carrier, Defendants. 1110 - 1402.30 Employee, a chronic alcoholic, checked in at training school. Then he disappeared and his whereabouts were unknown for 24 hours until he was involved in a one car automobile accident. Accident occurred on the route toward home and his car was headed toward home and he was 100 miles away from training site. Employer agreed to pay his average hourly wages while at school, all expenses of school, and travel and transportation expense to and from the school. Employee was found to be returning home and did sustain an injury arising out of and in the course of employment. 1403.30 - 1601 There was absolutely no evidence of the use of alcohol or other drug substance based on patrol and emergency room evidence. There was a history of fainting, blackouts and one gran mal seizure in the past followed by periods of confusion for up to 72 hours. There was evidence from claimant, his wife and daughter that he was ill the day before and the day of the disappearance. 1602 There was no evidence of suicidal inclinations until claimant actually hung himself over a year after the accident. The only evidence on suicide was that he was not suicidal. 1802 - 1803 Claimant was allowed healing period and permanent partial disability until the date of his nonrelated death and $79,405.02 in medical expenses. 1901 Proper party in interest and section 85.31(4) Claimant brought the action but died before liability was determined. Held his estate was the proper party to continue the action. It was held that damages did not have to be liquidated prior to death in order to be recoverable by his estate in construing section 85.31(4).