BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         
 
         JESUS J. GARCIA,
 
         
 
              Claimant,                               File No. 779854
 
          
 
          VS.
 
                                                   A R B I T R A T I 0 N
 
          ARMSTRONG RUBBER COMPANY,
 
                                                      D E C I S I 0 N
 
              Employer,
 
          and
 
          
 
          TRAVELERS INSURANCE COMPANY,
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
         
 
                                   INTRODUCTION
 
         
 
              This is a proceeding in arbitration brought by the claimant, 
 
         Jesus J. Garcia, against his employer, Armstrong Rubber Company, 
 
         and its insurance carrier, Travelers Insurance Company, to 
 
         recover benefits under the Iowa Workers' Compensation Act, as a 
 
         result of an injury allegedly sustained November 2, 1984.  This 
 
         matter was submitted on a stipulated record on March 3, 1987.  
 
         The record was considered fully submitted as of that date.  A 
 
         first report of injury was filed March 18, 1986.
 
         
 
              The record in this matter consists of the stipulations to be 
 
         outlined in the review of the evidence as well as of joint 
 
         exhibits 1 through 36.  Joint exhibit 1 is an audiological 
 
         evaluation of June 18, 1976.  Joint exhibit 2 is medical notes of 
 
         Thomas Ericson, M.D., from June 18, 1976 through December 17, 
 
         1979.  Joint exhibit 3 is a report of Dennis Kelly, Jr., M.D., of 
 
         January 22, 1987.  Joint exhibit 4 is an eye examination report 
 
         of June 18, 1976.  Joint exhibit 5 is an audiological evaluation 
 
         of July 1, 1976.  Joint exhibit 6 is an audiological evaluation 
 
         of August 18, 1976.  Joint exhibit 7 is an admission registration 
 
         of October 24, 1976.  Joint exhibit 8 is a consultation report of 
 
         October 25, 1976.  Joint exhibit 9 is an October 29, 1976 letter 
 
         of Dr. Ericson.  Joint exhibit 10 is the December 20, 1976 
 
         discharge summary.  Joint exhibit 11 is progress notes of June 
 
         10, 1978.  Joint exhibit 12 is a September 13, 1981 consultation 
 
         report.  Joint exhibit 13 is progress notes from April 10, 1981 
 
         through April 12, 1982.  Joint exhibit 14 is a June 14, 1983 
 
         general consultation.  Joint exhibit 15 is
 
         
 
         
 
         page 2 of such general consultation.  Joint exhibit 16 and 17 
 
         are pages 1 and 2 of a general consultation of May 28, 1984.  
 
         Joint exhibit 18 is hearing test results of June 6, 1984.  
 
         Joint exhibit 19 is a general consultation of November 2, 1984.  
 
         Joint exhibit 20 is a letter report of Mary Lowder, M.A., and 
 
         Tim Mickel, M.D., of November 29, 1984.  Joint exhibit 21 is a 
 
         clinical resume.  Joint exhibits 22, 23, and 24 are undated 
 

 
         
 
         
 
         
 
         GARCIA V. ARMSTRONG RUBBER COMPANY
 
         Page   2
 
         
 
         
 
         hearing test results.   Joint exhibit 25 and 26 are pages 1 and 
 
         2 of a medical report of Harold Adams, Jr., M.D., of February 
 
         1, 1983.  Joint exhibit 27 is an application for disability 
 
         pension with Armstrong.  Joint exhibit 28 is page 2 of 
 
         said,application.  Joint exhibit 29 is Armstrong hearing 
 
         conservation audiograms of April 1, 1982, February 25, 1982, 
 
         February 22, 1980, March 9, 1979, February 15, 1977, November 
 
         12, 1976, May 26, 1976, and July 8, 1975, respectively.  Joint 
 
         exhibit 30 is a February 20, 1985 report of Environmental 
 
         Technology Corporation.  Joint 31 is June 14, 1985 office notes 
 
         of Robert T. Brown, M.D. Joint exhibit 32 is an August 2, 1985 
 
         report of Mary Lowder.  Joint exhibits 33 and 34 are reports of 
 
         Dr. Brown of April 21, 1986 and January 12, 1987, respectively.  
 
         Joint exhibit 35 is a February 10, 1987 report of Dr. Ericson.  
 
         Joint exhibit 36 is a March 12, 1987 report of Dr. Brown.
 
         
 
                                   ISSUES
 
         
 
              Pursuant to the prehearing report and the submission of the 
 
         parties, the issues to be determined are:
 
         
 
              1)  Whether claimant has sustained an occupational hearing 
 
         loss within the meaning of chapter 85B; and
 
         
 
             2)  If so, the extent of the hearing loss as measured by 
 
         section 85B.9.
 
         
 
                              REVIEW OF THE EVIDENCE
 
         
 
              Per the stipulated record, the parties agreed that had 
 
         claimant testified he would have stated he began work for 
 
         Armstrong Rubber Company on May 26, 1970 and took a disability 
 
         retirement on June 30, 1983 due to Parkinson's Disease unrelated 
 
         to his employment.  Claimant was a factory worker holding jobs 
 
         listed in the table of jobs and noise exposures.  He usually 
 
         worked a forty-hour week and considered the work place a noisy 
 
         environment.
 
         
 
              The parties further stipulated that if Robert K. Winslow, 
 
         assistant industrial relations manager, safety engineer for 
 
         Armstrong Rubber Company, had been called to testify, he would 
 
         have testified that he was familiar with the plant's working 
 
         environment and that claimant during his employment with 
 
         Armstrong worked at jobs shown in the table of jobs and noise 
 
         exposures.  Occupational safety and health consultation groups 
 
         regularly
 
         
 
         performed testing for Armstrong to determine noise levels in the 
 
         plant.  The table of jobs and noise exposures shows employee 
 
         noise exposures for jobs claimant held as determined by employee 
 
         dosimeter results as of January 10, 1987.  The parties stipulated 
 
         that Mr. Winslow would state that noise levels in the plant had 
 
         not changed appreciably since Mr. Garcia was an employee and, if 
 
         anything, the noise levels have increased slightly because 
 
         additional machines have been added in various areas of the plant 
 
         since Mr. Garcia left employment with Armstrong.
 
         
 
              The table of jobs and noise exposures is as follows:
 
         
 

 
         
 
         
 
         
 
         GARCIA V. ARMSTRONG RUBBER COMPANY
 
         Page   3
 
         
 
         
 
                         TABLE OF JOBS AND NOISE EXPOSURE
 
         
 
         Dates                          Job         Range        dba
 
         Worked     Jobs Title     Class        dBA       Average
 
          
 
          5/09/83  -Finish Tire    28-89      83.3-84.6     84.17
 
          6/30/83    Inspector
 
          
 
          3/03/81  -Finish Tire    86-71      Warehouse - Quiet area, no
 
          5/09/83    Inspector                noise levels taken
 
          
 
          3/02/81  -Tractor Spray  26-01-01   85.2-87.6     86.40
 
          3/03/81
 
          
 
          8/18/80  -Finish Tire    86-71      Warehouse - quiet area, no
 
          3/02/81    Inspector                noise levels taken
 
          
 
          7/22/80  -Spray, sort &  16-02-02   84.8-87.6     86.20
 
          8/18/80    stores
 
          
 
          5/09/80  -LAY OFF
 
          7/22/80
 
          
 
          12/31/79  -Finish Tire    86-71     Warehouse - quiet area, no
 
          5/09/80     Inspector               noise levels taken
 
         
 
          5/23/79   -Spray, sort &  16-02-01  85.2-87.6     86.40
 
          12/31/79    store
 
          
 
          5/23/79   -Tire unloader  27-05     68.3-83.6     76.40
 
          
 
          8/18/85   -Trick          16-02-01  85.2-87.6     86.40
 
          5/23/79     soapstone pool
 
          
 
          7/21/75   -Palletizer     28-05     83.7-90.9     87.30
 
          8/18/75
 
          
 
          3/07/75  - LAY OFF
 
          
 
          6/22/70   -Truck           26-02-01  85.2-87.6     86.40
 
         
 
          3/07/75   -soapstone pool
 
          
 
          5/26/70   -Press service   26-72     86.4-87.3     86.85
 
          6/22/70
 
          
 
          5/26/70   -NEW HIRE
 
         
 
              We believe the date 8/18/85 contained on the table is a 
 
         typographical error and that the correct date should be 8/18/75.
 
         
 
              Claimant had a series of audiological evaluations in,1976 
 
         apparently under the direction of either Dennis Kelly, Jr., M.D., 
 
         or Thomas A. Ericson, M.D. Hearing levels in DB at referenced 
 
         Hertz are interpreted as follows for the listed testing dates:
 
         
 
         
 
         Hertz   250   500   1000  2000    4000    6000   8000
 
         
 

 
         
 
         
 
         
 
         GARCIA V. ARMSTRONG RUBBER COMPANY
 
         Page   4
 
         
 
         
 
         Right    20    20     10    -5      25             40  6/18/76
 
          Left    40    40  20/25    -5      20             30
 
          
 
          Right   15    15      0     0      25             30  7/l/76
 
          Left    35    35     20    12      35             30
 
          
 
          Right   20    15      5     0       0             30  8/18/76
 
          Left    55    45     40    30      30       40    30
 
         
 
              Armstrong also conducted audiological evaluations on 
 
         claimant from July 18, 1975 onward.  Those evaluations were 
 
         conducted at the plant during work days.  Hearing levels in dB at 
 
         referenced Hertz are interpreted as follows for the listed 
 
         testing dates:
 
         
 
         Hertz   500  1000   2000  3000    4000    6000   8000
 
          
 
          Right   25    15      5    15      25      25     30  7/18/76
 
          Left    10    10      5    10      25      25     35
 
          
 
          Right   20     5     -5    -5      20      20     35  5/26/76
 
          Left    25    10      0    15      20      15     30
 
          
 
          Right   10    10      0    15      25      25     15  11/12/76
 
          Left    25    10      0    15      30      30     45
 
          
 
          Right   20  5/10   0/-5   0/5      20   15/20   30/40  2/15/77
 
          Left    30    20   10/5    25   35/40   45/50   45/50
 
          
 
          Right   20    10      5     5      25      20          3/9/79
 
          Left    25    15      5     5      45      50
 
          
 
          Right   20  5/10   0/-5     5      20   15/25      35  2/22/79
 
          Left    30    20     10    25      40      50      50
 
         
 
         
 
          Right   20    15      0    10      25      25          2/25/81
 
          Left    60    60     55    60      75      75
 
          
 
          Right   25    15      5     5      40      45          4/1/82
 
          Left    55    45     45    55      85      85
 
         
 
              Claimant also received audiological evaluations through the 
 
         University of Iowa Hospitals and Clinics.  Hearing Levels in dB 
 
         at referenced Hertz are interpreted as follows for the listed 
 
         testing dates:
 
         
 
         Hertz   250  500  750  1000   2000    4000    6000  8000
 
          
 
          Right   70   60         40  10/20      40    55/60   65  6/6/84
 
          Left    70   75   50    60     50      65            60
 
          
 
          Right   65   60         40     15      40       55   65  Ex 22
 
          Left    70   65         60     50      65        0   60
 
          
 
          Right   65   60         40     15      40       55   65  Ex 23
 
          Left    70   65         60     50      65            60
 
         
 
              Like exhibit 18, both exhibit 22 and 23 are on standard 
 

 
         
 
         
 
         
 
         GARCIA V. ARMSTRONG RUBBER COMPANY
 
         Page   5
 
         
 
         
 
         forms carrying the designation "10/83."  Both exhibits 22 and 23 
 
         also reference to Mary Lowder.
 
         
 
              Claimant also received an audiologic evaluation at Iowa Head 
 
         & Neck Associates with which Robert T. Brown, M.D., is associated 
 
         on June 14, 1985.  Hearing levels in dB at referenced Hertz are 
 
         interpreted as follows:
 
         
 
         Hertz   250  500     1000   2000   4000    8000
 
          
 
          Right   70   60       55     40     50      60
 
          Left    55   45       40     35     40      50
 
         
 
              We are unable to interpret exhibit 24 designated as an 
 
         additional  audiological evaluation.
 
         
 
              Claimant was having attacks of true vertigo from June 18, 
 
         1976 through November 10, 1976 for which Thomas A. Ericson, M.D., 
 
         an ear, nose and throat specialist, treated him.  Dr. Ericson 
 
         diagnosed claimant's condition as Meniere's syndrome.  He noted 
 
         that claimant had both low and high frequency sensorineural 
 
         hearing loss with the low frequency loss greatly supporting the 
 
         Meniere's syndrome diagnosis.  Claimant also had intermittent 
 
         spells of diminished hearing with tinnitus of the ears during 
 
         1976.  In 1976, Dr. Ericson apparently admitted claimant to Iowa 
 
         Methodist Medical Center where Dennis H. Kelly, Jr., M.D., an 
 
         internal medicine specialist, saw him in consultation.  Claimant 
 
         was found to have an abnormal glucose tolerance test with a high 
 
         delayed curb and a positive VDRL test apparently indicative of
 
         
 
         syphilis.  Dr. Socarras had apparently seen claimant for 
 
         treatment of his syphilis.  There was then no evidence of central 
 
         nervous system involvement with the syphilis.
 
         
 
              On June 20, 1978, claimant sought treatment with an 
 
         unidentified osteopathic physician with complaints of apparently 
 
         left ear pain and tinnitus, among other symptoms.  On December 6, 
 
         1979, claimant again saw Dr. Ericson complaining of increased 
 
         vertigo.  The doctor then reported that claimant had a positive 
 
         VDRL test and received treatment from Dennis Kelly, M.D. 
 
         Claimant's hearing level had not changed.
 
         
 
              Claimant was treated in April 1981 for vertigo and noise 
 
         "like motors" in his ears.  The complaints were related to the 
 
         conditions of otitis media, hypertension, and hyperglycemia.  
 
         Treatment continued throughout 1981 with claimant occasionally 
 
         continuing to report tinnitus.  Claimant on occasion also had 
 
         slight ear infections in both canals.  Claimant continued to 
 
         complain of tinnitus through February 1, 1982.  Both ears 
 
         continued to be slightly infected.
 
         
 
              Claimant was evaluated for hearing loss and tinnitus at the 
 
         University of Iowa Hospitals and Clinics on May 28, 1985.  In a 
 
         medical history of that date, Scott D. Blanke, M.D., stated that 
 
         claimant reported that he began to notice a bilateral hearing 
 
         loss, the right greater than the left approximately three years 
 
         earlier.  He reported that claimant stated that with the hearing 
 
         loss, his tinnitus increased in severity.  Claimant then denied 
 
         any otalgia, otorrhea, or vertigo.  He denied head trauma or 
 

 
         
 
         
 
         
 
         GARCIA V. ARMSTRONG RUBBER COMPANY
 
         Page   6
 
         
 
         
 
         balance problems.  Dr. Blanke reported that claimant's audiogram 
 
         revealed a severe, low frequency loss rising to mild and then 
 
         sloping again to a moderate sensorineural hearing loss.  His 
 
         impression was of a sensorineural hearing loss of unknown 
 
         etiology, possibly metabolic due to its symmetry.  He reported 
 
         that rheumatoid factors and syphilis should be ruled out with 
 
         appropriate blood test.
 
         
 
              On February 1, 1983, Harold P. Adams, Jr., M.D., Department 
 
         of Neurology, University of Iowa Hospitals and Clinics, reported 
 
         that claimant had Parkinson's syndrome and also had a weakly 
 
         reactive VDRL and strongly reactive FTA.  Dr. Adams recommended 
 
         that if claimant had not received therapy for primary infection 
 
         in the past, that such therapy should be implemented.
 
         
 
              On November 29, 1984, Mary W. Lowder, M.A., Clinical 
 
         Audiologist II, at the University of Iowa Hospitals and Clinics, 
 
         reported that claimant had a moderate sensorineural hearing loss 
 
         in both ears, worse left than right.  She indicated that the 
 
         etiology of the hearing loss was not clear, but it was possible 
 
         the loss was caused, in part, by chronic noise exposure on the 
 
         job.  In a letter of August 2, 1985, Ms. Lowder indicated that 
 
         while a very strong correlation exists between occupational
 
         
 
         noise exposure and hearing loss, claimant's loss was not at all 
 
         typical of noise induced hearing loss.  She reported that such a 
 
         loss would typically affect only frequencies above 1000 Hertz 
 
         with the greatest hearing loss being at 4000 or 6000 Hertz.  She 
 
         noted that claimant shows a marked hearing loss across all 
 

 
         
 
         
 
         
 
         GARCIA V. ARMSTRONG RUBBER COMPANY
 
         Page   7
 
         
 
         
 
         frequencies with an improvement at the 2000 Hertz range.  She 
 
         noted that claimant's loss was "certainly not at all typical" of 
 
         what was seen with 95 percent of patients with excessive 
 
         occupational noise exposure and that it was highly unlikely that 
 
         his hearing loss was entirely due to noise.  She reported it was 
 
         more likely claimant's hearing loss had some metabolic or 
 
         inherited cause, but that it was very possible that loss present 
 
         above 2000 Hertz might have been noise induced.
 
         
 
              On February 20, 1985, Burt L. Scott, president of 
 
         Environmental Technology Corporation, reported to Nancy Ray, 
 
         Armstrong Rubber Company, that the Environmental Technology 
 
         Corporation had reviewed claimant's medical history and did not 
 
         find his hearing [loss] was caused by exposure to high noise 
 
         consistent with the records.  Scott indicated that claimant's 
 
         1976 diagnosis of Meniere's Disease and characterized the disease 
 
         as a chronic, progressive condition exhibiting symptoms of (a) 
 
         vertigo, (b) roaring tinnitus, and (c) hearing loss.  Scott 
 
         reported that while the etiology or causation of Meniere's 
 
         Disease is unknown, the syndrome is thought to be related to 
 
         viral infection, allergy, syphilis, abnormal glucose tolerance 
 
         and other causes.  Scott reported that claimant's medical history 
 
         and findings and the plant clinic reports and audiometric 
 
         findings were all consistent with the diagnosis of Meniere's 
 
         Disease, and that audiologically, a unilateral, flat 
 
         sensorineural hearing loss was quite typical [for the disease].  
 
         Scott characterized audiograms in 1975, prior to diagnosis of the 
 
         disease, as showing symmetrical hearing thresholds in both ears 
 
         with a slight high frequency loss.  He reported that following 
 
         the diagnosis, the hearing loss in the left ear progressed as an 
 
         expected result of the progression of the disease.
 
         
 
              On April 21, 1986, Robert T. Brown, M.D., of Iowa Head and 
 
         Neck Associates, reported that claimant had a hearing loss in 
 
         both ears, slightly worse on the right, with a 50 dB hearing loss 
 
         on the right, 40 dB on the left.  Dr. Brown then opined that 
 
         claimant's hearing loss appeared to have both a congenital basis 
 
         and likely was aggravated by noise exposure.  He reported, 
 
         however, that in the absence of preemployment hearing test, it 
 
         would be very difficult to establish a causal relationship with 
 
         claimant's Armstrong employment.  In a report of January 12, 
 
         1985, Dr. Brown reported that claimant did have a hearing loss in 
 
         both ears that had changed from his initial audiogram of 1975 
 
         through the most recent evaluation and the loss was a binaural 
 
         Onerve type" loss likely noise related according to claimant's 
 
         history.  He opined the loss may likely be related to claimant's 
 
         work activities and noise exposure.  On March 2, 1987, Dr. Brown
 
         
 
         reported that he had been unaware of claimant's previous 
 
         diagnosis "of history" in both 1976 and again in 1983.  Dr. Brown 
 
         stated that syphilis could cause a fluctuating sensorineural 
 
         hearing loss, and that Meniere's syndrome could also cause a 
 
         fluctuating sensorineural loss.  Dr. Brown concluded that given 
 
         claimant's complicated history, many factors, in addition to 
 
         noise exposure, could have contributed to his hearing loss.
 
         
 
              On February 10, 1987, Dr. Ericson opined that multiple 
 
         potential causes of claimant's hearing problems exist.  He was 
 
         unable to express an opinion to a reasonable degree of certainly 
 

 
         
 
         
 
         
 
         GARCIA V. ARMSTRONG RUBBER COMPANY
 
         Page   8
 
         
 
         
 
         that acoustic or noise trauma was a specific cause of claimant's 
 
         hearing deficit.
 
         
 
              The balance of the evidence was reviewed and considered in 
 
         the disposition of this matter.
 
         
 
                           APPLICABLE LAW AND ANALYSIS
 
         
 
              We consider whether claimant has sustained an occupational 
 
         hearing loss as defined in section 85B.4.
 
         
 
              The definition of occupational hearing loss in section 85B.4 
 
         inextricably entwines the issues of arising out of and in the 
 
         course of employment and causally related disability.  Under the 
 
         section an occupational hearing loss is a permanent sensorineural 
 
         loss of hearing in one or both ears in excess of 25 decibels 
 
         which arose out of and in the course of employment caused by 
 
         prolonged exposure to excessive noise levels.  An excessive noise 
 
         level is sound capable of producing occupational hearing loss or 
 
         sound exceeding the time and intensities listed in the table in 
 
         section 85B.5 or both.
 
         
 
              Claimant has the burden of proving by a preponderance of the 
 
         evidence that he received an injury on November 2, 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 352,1154 N.W.2d 128 (1967).
 
         
 
              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).
 
         
 
         
 
              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 128.
 
         
 
              The claimant has the burden of proving by a preponderance of 
 
         the evidence that the injury of November 2, 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 
 

 
         
 
         
 
         
 
         GARCIA V. ARMSTRONG RUBBER COMPANY
 
         Page   9
 
         
 
         
 
         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.
 
         
 
              A cause is proximate if it is a substantial factor in 
 
         brining about the result.  It need be only one cause of the 
 
         result; it need not be the only cause.  Blacksmith v. All 
 
         American, Inc., 290 N.W.2d 348, 354 (Iowa 1980).
 
         
 
              Claimant has not carried his burden.  While claimant, at 
 
         times, was exposed to noise levels at work which possibly were 
 
         sufficient to produce noise induced hearing loss, claimant also 
 
         at times, especially in the last years of his employment, worked 
 
         in quiet areas.  Furthermore, claimant has other diagnosed 
 
         conditions, specifically Meniere's syndrome, syphilis and 
 
         abnormal glucose tolerance (diabetes mellitus).  Apparently, the 
 
         Meniere's syndrome may result from the syphilis or from abnormal 
 
         glucose tolerance.  No evidence exists that claimant's syphilis 
 
         has ever been adequately treated or controlled.  He had positive 
 
         VDRL in both 1976 and 1983.  In 1976, Dr. Ericson opined that 
 
         claimant's pattern of hearing loss greatly supported the 
 
         Meniere's syndrome diagnosis.  Dr. Brown has stated that both 
 
         syphilis and
 
         
 
         Meniere's can produce a fluctuating sensorineural hearing loss.  
 
         Mr. Scott, while not properly qualified as an expert witness, 
 
         characterized Meniere's related hearing loss as a flat, 
 
         unilateral loss.  We note that at different testing time and 
 
         different Hertz frequencies, sharp distinctions appear between 
 
         claimant's left and right ear hearing levels.
 
         
 
              Dr. Brown opined that given claimant's complicated history 
 
         many factors other than noise exposure could have contributed to 
 
         his hearing loss.  Dr. Ericson would not express any opinion that 
 
         noise trauma was a specific cause of claimant's ' hearing loss 
 
         given the multiple potential causes of claimant's hearing 
 
         problems.  Mary W. Lowder, M.A., a clinical audiologist, opined 
 
         that claimant's hearing loss was "certainly not at all typical" 
 
         of that seen in 95% (emphasis added) of patients with excessive 
 
         occupational noise exposure.  We note that at times claimant's 
 
         hearing loss apparently progressed while claimant was working in 
 
         a quiet environment.  That finding also appears inconsistent with 
 
         a true occupational hearing loss which is generally expected to 
 
         stabilize or decrease in periods of non-noise exposure.  See 
 

 
         
 
         
 
         
 
         GARCIA V. ARMSTRONG RUBBER COMPANY
 
         Page  10
 
         
 
         
 
         17A.14(5). Given the multiple evidentiary factors and expert 
 
         opinions mitigating against the conclusion that occupational 
 
         noise was a substantial factor in claimant's hearing loss, we are 
 
         unable to conclude claimant has sustained an occupational hearing 
 
         loss as defined in section 85B.4. (We note that all opinions that 
 
         consider noise as a factor in claimant's hearing loss are couched 
 
         in terms of possibilities not probabilities.  Without supporting 
 
         nonexpert evidence, such opinion cannot carry claimant's 
 
         burden.)
 
         
 
                                FINDINGS OF FACT:
 
         
 
              THEREFORE, IT IS FOUND:
 
         
 
              Claimant was diagnosed as having Meniere's syndrome in 
 
         1976.
 
         
 
              Claimant was diagnosed as having both syphilis and abnormal 
 
         glucose tolerance.
 
         
 
              Meniere's syndrome can produce a fluctuating sensorineural 
 
         hearing loss.
 
         
 
         
 
         
 
              Syphilis can produce a fluctuating, sensorineural hearing 
 
         loss.
 
         
 
              Meniere's syndrome produces a flat, unilateral loss.
 
         
 
              At different times and different Hertz frequencies, sharp 
 
         distinctions have appeared between claimant's left and right ear 
 
         hearing levels.
 
         
 
              Claimant's pattern of hearing loss is not at all typical of
 
         
 
         
 
         that found in 95 percent of people with excessive occupational 
 
         noise exposure.
 
         
 
              Claimant's hearing loss apparently continued to progress at 
 
         times when claimant was Working in quiet areas in the plant.
 
         
 
              Occupational noise was not a substantial factor in 
 
         claimant's hearing loss.
 
         
 
                                CONCLUSIONS OF LAW
 
         
 
              THEREFORE, IT IS CONCLUDED:
 
         
 
              Claimant has not established an occupational hearing loss as 
 
         defined in section 85B.4.
 
         
 
                                      ORDER
 
         
 
              THEREFORE, IT IS ORDERED:
 
         
 
              Claimant take nothing from this proceeding.
 
         
 

 
         
 
         
 
         
 
         GARCIA V. ARMSTRONG RUBBER COMPANY
 
         Page  11
 
         
 
         
 
              Claimant pay costs of this proceeding pursuant to Division 
 
         of Industrial Services Rule 343-4.33, formerly Industrial 
 
         Commissioner Rule 500-4.33.
 
         
 
              Signed and filed this 23rd day of March, 1987.
 
         
 
         
 
         
 
                                           
 
                                        HELEN JEAN WALLESER
 
                                        DEPUTY INDUSTRIAL COMMISSIONER
 
         
 
                
 
         Copies to:
 
         
 
         Mr. Robert W. Pratt
 
         Attorney at Law
 
         1913 Ingersoll
 
         Des Moines, Iowa 50309-3320
 
         
 
         Mr. Terry L Monson
 
         Attorney at Law
 
         300 Liberty Building
 
         Des Moines, Iowa 50309
 
 
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                                   2208; 1100; 1108
 
                                                   Filed 3-23-87
 
                                                   Helen Jean Walleser
 
         
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         JESUS J. GARCIA,
 
         
 
              Claimant,
 
                                                  File No. 779854
 
         VS.
 
         
 
         ARMSTRONG RUBBER COMPANY,            A R B I T R A T I 0 N
 
         
 
              Employer,
 
                                                 D E C I S I 0 N
 
         and
 
         
 
         TRAVELERS INSURANCE COMPANY,
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
         
 
         
 
         2208; 1100; 1108
 
         
 
              Claimant failed to establish occupational noise exposure was 
 
         a source of his hearing loss where claimant had Meniere's 
 
         syndrome, syphilis, and abnormal glucose tolerance, all of which 
 
         could produce hearing loss, and where claimant's hearing loss 
 
         pattern was not at all typical of that found with noise induced 
 
         hearing loss, and where claimant's hearing loss progressed at 
 
         times when claimant was not subject to occupational noise.
 
 
 
         
 
         
 
 
            
 
            Page   1
 
            
 
            
 
            
 
            
 
            before the iowa industrial commissioner
 
            ____________________________________________________________
 
                      :
 
            WILLIAM HOWARD,     :
 
                      :
 
                 Claimant, :
 
                      :
 
            vs.       :
 
                      :      File No. 779866
 
            WHITEHALL TRANSPORTATION,     :
 
                      :        A P P E A L
 
                 Employer, :
 
                      :      D E C I S I O N
 
            and       :
 
                      :
 
            HOME INDEMNITY COMPANY,  :
 
                      :
 
                 Insurance Carrier,  :
 
                 Defendants.    :
 
            ___________________________________________________________
 
            statement of the case
 
            Defendants appeal from an arbitration decision awarding 
 
            claimant temporary total disability benefits.  
 
            The record on appeal consists of the transcript of the 
 
            arbitration hearing and defendants' exhibits A-1 through A-6 
 
            and also A-8.  Claimant was pro se at the arbitration 
 
            hearing.  Defendants filed a brief on appeal.  
 
            issues
 
            The issues on appeal are:
 
            1.  Whether the deputy erred in finding that claimant was an 
 
            employee of defendant Whitehall Transportation (hereinafter 
 
            Whitehall).
 
            2.  Whether the deputy erred in finding that claimant was 
 
            not an independent contractor.
 
            3.  Whether the deputy erred in finding that claimant proved 
 
            by a preponderance of the evidence that he received an 
 
            injury on November 28, 1983 which arose out of and in the 
 
            course of his employment.
 
            4.  Whether the deputy erred in finding that claimant proved 
 
            by a preponderance of the evidence that the injury of 
 
            November 28, 1983 was causally related to the disability on 
 
            which he based his claim.
 
            5.  Whether the deputy erred in finding that claimant was 
 
            entitled to temporary total disability benefits from 
 
            November 28, 1983 through April 6, 1986.
 
            review of the evidence
 
            The arbitration decision filed July 26, 1989 adequately and 
 
            accurately reflects the pertinent evidence and it will not 
 
            be reiterated herein.
 
            applicable law
 
            The citations of law in the arbitration decision are 
 
            appropriate to the issues and evidence.
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            analysis
 
            The deputy's analysis of the evidence in conjunction with 
 
            the law in the arbitration is adopted on the issues of 
 
            whether claimant proved that he sustained an injury arising 
 
            out of and in the course of his employment on November 28, 
 
            1983 and whether there was a causal connection between 
 
            claimant's injury and his alleged disability.  Additional 
 
            analysis is necessary on the remaining issues.
 
            The first issue to address is the employment status between 
 
            claimant and Whitehall.  The greater weight of the evidence 
 
            indicates an employee-employer relationship.  The deputy's 
 
            analysis on this issue is adopted.  "The right to control 
 
            work, rather than the actual exercise of the right to 
 
            control, is decisive."  Borg v. King of Clubs, Inc., Appeal 
 
            Decision (August 23, 1990).  Pursuant to the agreement 
 
            claimant and Whitehall entered into, Whitehall had exclusive 
 
            possession, control and use of claimant's equipment.  In 
 
            addition, claimant was given a one percent bonus if he made 
 
            an on-time delivery.  Claimant was free to choose which 
 
            routes he took to his destination but Whitehall ultimately 
 
            controlled how claimant operated the tractor by the 
 
            incentive program for on-time delivery.  For these reasons, 
 
            and those in the deputy's proposed decision, it is 
 
            determined that claimant proved an employer-employee 
 
            relationship.
 
            Defendants assert that claimant is an independent 
 
            contractor.  Defendants have the burden of proving that 
 
            claimant is an independent contractor.  There is a written 
 
            agreement between the parties dated September 27, 1983.  A 
 
            written contract, however, will be disregarded if it is 
 
            designed to relieve an employer of liability pursuant to 
 
            Iowa Code section 85.18.  The written agreement between the 
 
            parties is long term in nature.  The agreement specified 
 
            that it would be effective for one year and continue to be 
 
            renewed automatically unless either party notified the other 
 
            within thirty days.
 
            Whitehall engaged in the interstate trucking business and 
 
            under the agreement claimant was responsible for hauling 
 
            loads for Whitehall.  Claimant was engaged in the employment 
 
            for the purpose of furthering Whitehall's business.  The 
 
            delivery of goods by drivers is an integral part of 
 
            Whitehall's business.  The claimant furnished a tractor and 
 
            also drove the equipment.  Whitehall assumed all 
 
            responsibility to the public, shipper, and all State and 
 
            Federal regulatory bodies for the operation of the equipment 
 
            during the lease period.
 
            Whitehall paid claimant pursuant to the agreement in 
 
            defendants' exhibit A-8.  Claimant was not paid by the hour.  
 
            No taxes were withheld from claimant's payments.  Claimant 
 
            filed tax returns as if he were self-employed.  Whitehall 
 
            was authorized to deduct from claimant's payment for cash 
 
            advances, advances for maintenance and repairs, fines, and 
 
            other expenses which claimant would be obligated to pay.  In 
 
            addition, money was taken out of claimant's payments to 
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            establish an escrow account.  Whitehall maintained the 
 
            escrow account and paid interest on a quarterly basis.  The 
 
            escrow account was used to pay cash advances, advances made 
 
            for maintenance, fines, mileage, fuel or road taxes, cost of 
 
            permits and other expenses from operations.
 
            Claimant's equipment was subject to inspection and approval  
 
            by Whitehall.  Claimant agreed to maintain the equipment 
 
            supplied.  Claimant was free to hire his own employees and 
 
            would be liable for their pay.  Defendants' witness 
 
            testified that claimant was responsible to pay for the 
 
            operation of the truck.
 
            Claimant testified that he was an independent contractor 
 
            employed by Whitehall.  During his testimony, claimant 
 
            designated when he was employed as an employee and when he 
 
            was an independent contractor.
 
            Claimant determined the details of how he would perform his 
 
            job, and determine what route he would take.  Claimant was 
 
            free to take a load or refuse a load.  In addition, claimant 
 
            was free to contract with other carriers.  Claimant was 
 
            employed in Whitehall, Wisconsin and lived in Lamont, Iowa.  
 
            Lamont is approximately one hundred and fifty miles from 
 
            Whitehall, Wisconsin.  Pursuant to the agreement, claimant 
 
            was encouraged to identify the equipment as his own.  The 
 
            contract specified that if either party violated the 
 
            agreement either party had the right to terminate the 
 
            contract.
 
            There are facts which indicate that claimant was an 
 
            independent contractor.  Claimant was free to chose the 
 
            route he took, own his own tractor, and hire his own 
 
            employees.  Claimant filed taxes as an independent 
 
            contractor, and even called himself an independent 
 
            contractor at the hearing.  There are, however, facts which 
 
            indicate that Whitehall controlled the method which claimant 
 
            operated.  Whitehall retained a portion of claimant's 
 
            payment to place in an escrow account.  Whitehall paid 
 
            claimant a bonus for on-time delivery of goods, which 
 
            indicates that they had some control over the time of 
 
            delivery.  In addition, Whitehall had exclusive control over 
 
            claimant's tractor and assumed responsibility to the public 
 
            for operation of the equipment.  In light of the persuasive 
 
            evidence on both sides, it is determined that Whitehall 
 
            failed to prove by the greater weight of the evidence that 
 
            claimant was an independent contractor.
 
            The final issue is whether the deputy erred in finding that 
 
            claimant was entitled to temporary total disability benefits 
 
            from November 28, 1983 through April 6, 1986.  Claimant 
 
            allegedly sustained an work-related injury on November 28, 
 
            1983 when he slipped and fell while attempting to get into 
 
            his truck.  On November 29, 1983 claimant sought treatment 
 
            from William Drier, M.D.  Claimant complained of chest pain 
 
            radiating to his arm and leg, numbness in his arm, and 
 
            drooping of the left side of his face following the injury.  
 
            Dr. Drier recommended that claimant remain off work for a 
 
            week and if symptoms persist, claimant should seek a 
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
            neurological evaluation.  Defendants' Exhibit A-1, page 7. 
 
            Next, claimant was treated by Harold C. Hallberg, M.D., 
 
            beginning on December 9, 1983.  In a Surgeon's Report dated 
 
            January 11, 1984, Dr. Hallberg indicated that claimant would 
 
            need further treatment.  Dr. Hallberg indicated that he did 
 
            not know when claimant would be able to resume work.  
 
            Claimant was being treated for "sprain/strain of back, left 
 
            shoulder and right hip" injury.  Dr. Hallberg opined that 
 
            claimant's injury would not result in a permanent defect.  
 
            Defendants' Ex. A-2, p. 1.  
 
            Claimant was seen by David F. Poe, M.D., on January 11, 
 
            1984.  Claimant reported some headaches related to the 
 
            cervical spine.  Dr. Poe noted that claimant was making 
 
            progress in physical therapy and opined that claimant may be 
 
            able to return to light duty and then full duty.  Dr. Poe 
 
            thought claimant would be off work for at least another 
 
            month before even returning to light duty.  Defendants' Ex. 
 
            A-3 p. 1.  
 
            Claimant then underwent further treatment with the 
 
            University of Iowa Hospitals and Clinics.  Claimant received 
 
            physical therapy and a cervical collar.  On March 22, 1984 
 
            claimant was seen in the Neurology Clinic.  A Thomas collar 
 
            was provided in the hope that claimant would attain 
 
            sufficient help.  In a letter dated August 1, 1984, Richard 
 
            W. Fincham, M.D., stated that he assumed that claimant 
 
            continued to work with physical therapy.  Defendants' Ex. 
 
            A-4, p. 12.  Claimant testified that he improved in some 
 
            areas with the exercises.  Transcript, p. 57.
 
            In a letter dated September 14, 1984, Dr. Fincham opined 
 
            that claimant's head and left upper limb dysfunction were 
 
            related to the fall.  Dr. Fincham did not recommend 
 
            treatment besides the continued use of a Thomas collar.  
 
            Claimant was seen on January 23, 1985 by Dr. Fincham.  Dr. 
 
            Fincham opined that claimant's initial concern about left 
 
            cervical radiculopathy was no longer present.  Defendants' 
 
            Ex. A-4, pp. 19-20.  Dr. Fincham opined that claimant's 
 
            major concerns centered around his post-traumatic head pain.  
 
            On February 6, 1985, claimant was seen in the Otolaryngology 
 
            Clinic.  At this time, claimant reported to the physician 
 
            that he hit his head on the sidewalk when he fell from his 
 
            truck.  This is the first indication in the medical records 
 
            that claimant may have suffered a head trauma during the 
 
            fall.  Claimant did not receive treatment for his headaches 
 
            during this visit.
 
            In a letter dated April 19, 1985, Dr. Fincham diagnosed 
 
            post-traumatic headaches and hoped that claimant would 
 
            "improve with time, even to the point of being able to 
 
            return to work."  Defendants' Ex. A-4, p. 29.
 
            Claimant bears the burden of proof as to entitlement to 
 
            temporary total disability benefits.
 
            "Temporary total disability does not necessarily contemplate 
 
            that all residuals from an injury must be completely healed 
 
            and returned to normal.  It is only when the evidence shows 
 
            that because of the effects of the injury gainful employment 
 

 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
            cannot be pursued."  McDonald v. Wilson Foods Corp., 34 
 
            Biennial Rep., Iowa Indus. Comm'r 197, 199 (Appeal Decision 
 
            1979).
 
            In such circumstances, the end of the temporary total 
 
            disability period cannot be determined by either a return to 
 
            work or at a time when claimant should be medically able to 
 
            return to work because claimant may never be able to return 
 
            to the lid sorting job.  Therefore, the most appropriate end 
 
            to the temporary total disability period should coincide 
 
            with the termination of active treatment of the work injury.
 
            
 
            Montez v. Heinz USA, II-2 Iowa Indus Comm'r Dec. 661, 664 
 
            (1985).
 
            "'Active treatment' is a vigorous form of medical or 
 
            surgical treatment aiming at an immediate cure."  Schmidt's 
 
            Attorney Dictionary of Medicine.
 
            It is determined that claimant proved entitlement to 
 
            temporary total disability benefits from November 23, 1983 
 
            through September 14, 1984.  While none of the physicians 
 
            released claimant to return to work, none of the physicians 
 
            recommended that claimant should continue in an active 
 
            treatment program.  In a letter dated September 14, 1984, 
 
            Dr. Fincham did not recommend treatment besides the 
 
            continued use of a Thomas collar.  There is no evidence that 
 
            claimant continued physical therapy after this date.  
 
            Continued visits to physicians without recommendations for 
 
            active medical treatment will not extend temporary total 
 
            disability benefits.  
 
            findings of fact
 
            1.  Claimant entered into a written agreement with Whitehall 
 
            where by claimant would transport goods for Whitehall using 
 
            his tractor.  The duration of the written agreement was one 
 
            year, and it was automatically renewable.
 
            2.  Whitehall engaged in the interstate transportation of 
 
            goods.
 
            3.  Whitehall paid claimant pursuant to the written 
 
            agreement.
 
            4.  Claimant received a one percent bonus for on-time 
 
            delivery.  Whitehall retained a portion of claimant's 
 
            payment and placed the money in an escrow account to be used 
 
            to pay advances.
 
            5.  Claimant was responsible for the maintenance and repair 
 
            of his tractor, although Whitehall retained exclusive 
 
            control over the tractor.
 
            6.  Whitehall maintained the authority to inspect and 
 
            approve claimant's tractor.
 
            7.  Claimant was free to chose the route to drive.  Claimant 
 
            was free to accept or reject a load.  Claimant was free to 
 
            hire employees and would be liable for their payment.
 
            8.  Whitehall maintained the right to control the method by 
 
            which claimant operated his tractor.
 
            9.  Claimant was an employee of Whitehall on November 28, 
 
            1983.
 
            10.  Claimant was not an independent contractor. 
 

 
            
 
            Page   6
 
            
 
            
 
            
 
            
 
            11.  Claimant fell from his truck and sustained a 
 
            work-related injury to his neck, arm, hip and back on 
 
            November 28, 1983.
 
            12.  Claimant experienced post-traumatic headaches which 
 
            were caused by the November 28, 1983 work-related injury.
 
            13.  Claimant failed to prove that he sustained a permanent 
 
            disability as a result of claimant's work-related injury.
 
            14.  None of claimant's physician's released claimant to 
 
            return to work.
 
            15.  Temporary total disability benefits ended on September 
 
            14, 1984 when active medical treatment was no longer 
 
            recommended.
 
            16.  Claimant returned to work on April 6, 1986 with a 
 
            different employer.
 
            conclusions of law
 
            Claimant sustained the burden of proof that he was an 
 
            employee of the Whitehall.
 
            Defendants failed to prove by the greater weight of the 
 
            evidence that claimant was an independent contractor.
 
            The greater weight of the evidence proves that claimant 
 
            sustained an injury on November 28, 1983 which arose out of 
 
            and in the course of his employment with Whitehall.
 
            The greater weight of the evidence proves that the injury 
 
            was the cause of temporary total disability.
 
            The greater weight of the evidence proves that temporary 
 
            total disability ended on September 14, 1984 when active 
 
            medical treatment was no longer recommended.
 
            WHEREFORE, the decision of the deputy is affirmed and 
 
            modified.
 
            order
 
            THEREFORE, it is ordered:
 
            That defendants pay unto claimant temporary total disability 
 
            benefits from November 29, 1983 through September 14, 1984 
 
            at the stipulated rate of two hundred ninety-four and 00/00 
 
            dollars ($294.00) per week.
 
            That defendants are entitled to a credit for thirty-seven 
 
            point five seven one (37.571) weeks of workers' compensation 
 
            benefits paid prior to hearing at a rate of two hundred 
 
            ninety-four and 00/00 dollars ($294.00) per week.
 
            That the remaining benefits be paid in lump sum.
 
            That interest will accrue pursuant to Iowa Code section 
 
            85.30. 
 
            That the cost of this action including the cost of 
 
            transcribing the hearing are charged to defendants pursuant 
 
            to rule 343 IAC 4.33.
 
            That defendants are to file claim activity reports as 
 
            requested by this agency pursuant rule 343 IAC 3.1.
 
            Signed and filed this ____ day of May, 1991.
 
            
 
            
 
            
 
                      ________________________________
 
                               CLAIR R. CRAMER
 
                       ACTING INDUSTRIAL COMMISSIONER
 

 
            
 
            Page   7
 
            
 
            
 
            
 
            
 
            
 
            Copies To:
 
            
 
            William Howard
 
            P.O. Box 255
 
            Lamont, Iowa 50650
 
            CERTIFIED AND REGULAR MAIL
 
            
 
            Ms. Dorothy L. Kelley
 
            Attorney at Law
 
            500 Liberty Bldg.
 
            Des Moines, Iowa 50309
 
            
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
            2001 - 2002 - 1801
 
            WRM
 
            Filed May 14, 1991
 
            Clair R. Cramer
 
            before the iowa industrial commissioner
 
            ____________________________________________________________
 
                      :
 
            WILLIAM HOWARD,     :
 
                      :
 
                 Claimant, :
 
                      :
 
            vs.       :
 
                      :      File No. 779866
 
            WHITEHALL TRANSPORTATION,     :
 
                      :        A P P E A L
 
                 Employer, :
 
                      :      D E C I S I O N
 
            and       :
 
                      :
 
            HOME INDEMNITY COMPANY,  :
 
                      :
 
                 Insurance Carrier,  :
 
                 Defendants.    :
 
            ___________________________________________________________
 
            
 
            2001, 2002
 
            Affirmed on appeal deputy's determination that claimant 
 
            truck owner/operator was an employee and not an independent 
 
            contractor.  Although factors indicating both independent 
 
            contractor status and employee status were in the record, it 
 
            was held that the defendants failed to carry their burden to 
 
            show independent contractor status.  
 
            
 
            1801
 
            Deputy's award of temporary total disability benefits 
 
            modified on appeal.  Claimant sought medical treatment for a 
 
            period of time, then underwent a substantial period of time 
 
            without medical treatment.  Claimant eventually returned to 
 
            work.  Claimant's period of temporary total disability ended 
 
            when he ceased seeking medical treatment, and not when he 
 
            returned to work.  
 
            
 
 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         WILLIAM HOWARD,
 
         
 
              Claimant,                            File No. 779866
 
         
 
         vs.                                    A R B I T R A T I O N
 
         
 
         WHITEHALL TRANSPORTATION,                 D E C I S I O N
 
         
 
              Employer,                               F I L E D
 
         
 
         and                                         JUL 26 1989
 
         
 
         HOME INDEMNITY COMPANY,                 INDUSTRIAL SERVICES
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
                                   INTRODUCTION
 
         
 
              This is a proceeding in arbitration brought by William 
 
         Howard, claimant, against Whitehall Transportation, employer, and 
 
         Home Indemnity Company, insurance carrier, defendants for 
 
         benefits as the result of an alleged injury that occurred on 
 
         November 28, 1983.  The petition alleges an injury date of 
 
         November 25, 1983, but the injury date was amended to be November 
 
         28, 1983 by the agreement of the parties at the hearing.  A 
 
         hearing was held on May 2, 1988 at Waterloo, Iowa, and the case 
 
         was fully submitted at the close of the hearing.  The record 
 
         consists of the testimony of William Howard, claimant, Katharina 
 
         Howard, claimant's wife, Jerry Bowman, dispatcher, and 
 
         defendants' exhibits A-1 through A-6 and also A-8.  Claimant did 
 
         not introduce any exhibits.  Claimant, William Howard, was 
 
         represented by himself (pro se).  Defendants were represented by 
 
         Dorothy L. Kelley.  Defendants' attorney submitted a post-hearing 
 
         brief.  The deputy ordered a transcript of the hearing.  The 
 
         initial cost of the transcript was ordered to be paid by 
 
         defendants and that the ultimate cost of the transcript would be 
 
         assessed at the time of this decision pursuant to Iowa Code 
 
         section 86.19.
 
         
 
                               PRELIMINARY MATTERS
 
         
 
              Defendants' counsel contended that the hearing assignment 
 
         order should have designated that employer-employee relationship 
 
         and independent contractor should have been included as hearing 
 
         issues in this case.  Claimant acknowledged that these issues 
 
         were discussed at the time of the prehearing conference.  
 
         Defendants' counsel then telephoned prehearing deputy Thomas J. 
 
         McSweeney in the presence of claimant.  The parties returned to 
 
         the courtroom and agreed that Deputy McSweeney had stated that 
 
         employer-employee relationship and independent contractor should 
 
         be added to    the hearing assignment order.  Claimant agreed to 
 
         the addition to these two issues on the record.  Therefore, 
 
         employer-employee relationship and independent contractor are 
 
         added to the hearing assignment order and the issues in this 
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         case.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
                                   STIPULATIONS
 
         
 
              The parties stipulated to the following matters.
 
         
 
              That claimant's entitlement to temporary disability 
 
         benefits, if defendants are liable for the injury, is stipulated 
 
         to be from November 29, 1983 to August 18, 1984 and that claimant 
 
         was paid workers' compensation benefits for this period of time 
 
         at the rate of $294.00 per week.  Claimant agrees to the 
 
         stipulation, but also adds that he is entitled to additional 
 
         workers' compensation benefits for temporary disability until 
 
         April 6, 1986.  (Claimant agreed to a starting date of November 
 
         29, 1983 even though he was injured on November 28, 1983.)
 
         
 
              That the rate of compensation in the event of an award of 
 
         benefits is $294.00 per week.  (This rate of $294.00 cannot be 
 
         reconciled with any evidence of record or with any information in 
 
         the industrial commissioner's file.  The stipulated rate of 
 
         $294.00 will be considered as the negotiated result of a 
 
         controverted matter and used as the rate of compensation in this 
 
         case on that basis.)
 
         
 
              That the provider of medical services and supplies would 
 
         testify that the fees charged were reasonable and defendants are 
 
         not offering contrary evidence.
 
         
 
              That the provider of medical services and supplies would 
 
         testify that the treatment was for reasonable and necessary 
 
         medical treatment of the alleged work injury and that defendants 
 
         are not offering contrary evidence.
 
         
 
              That defendants make no claim for credit for benefits paid 
 
         prior to hearing pursuant to an employee nonoccupational group 
 
         health plan.
 
         
 
              That defendants did pay claimant 37 4/7 weeks of workers' 
 
         compensation benefits prior to hearing at the rate of $294.00 per 
 
         week.
 
         
 
              That 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 
 
         claimant and employer at the time of the alleged injury.
 
         
 
              Whether claimant was an independent contractor has been 
 
         asserted by defendants as an affirmative defense.
 
         
 
              Whether claimant sustained an injury on November 28, 1983 
 
         which arose out of and in the course of employment with employer.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              Whether the injury was the cause of either temporary or 
 
         permanent disability.
 
         
 
              Whether claimant is entitled to temporary disability 
 
         benefits and, if so, the extent of benefits to which he is 
 
         entitled.
 
         
 
              Whether claimant is entitled to permanent disability 
 
         benefits and, if so, the extent of the benefits to which he is 
 
         entitled.
 
         
 
              Whether claimant is entitled to medical benefits pursuant to 
 
         Iowa Code section 85.27.
 
         
 
                            CONTENTIONS OF THE PARTIES
 
         
 
              Claimant contended that he had headaches from November 29, 
 
         1983 until he returned to work on April 6, 1986 and that he was 
 
         entitled to more benefits than he was paid by the insurance 
 
         company due to the headaches.
 
         
 
              Defendants contended that claimant was an independent 
 
         contractor and that the payments which he received were 
 
         erroneously made.  Defendants further contended that if claimant 
 
         was entitled to temporary disability benefits, the period of 
 
         disability was from November 29, 1983 until August 18, 1984 and 
 
         no longer.  Defendants further contend that there is no evidence 
 
         of permanent disability.
 
         
 
              The original notice and petition alleged neck, back, arm, 
 
         sexual organs and body as a whole injuries.  In the course of 
 
         medical treatment, hearing loss was discovered and claimant 
 
         contended that he did not have any hearing loss prior to this 
 
         injury.   Claimant also contended in the course of his medical 
 
         treatment that he suffered a loss of sexual function from this 
 
         injury and was entitled to a penile implant.
 
         
 
                             SUMMARY OF THE EVIDENCE
 
         
 
              Of all of the evidence that was introduced, the following is 
 
         a summary of the evidence most pertinent to this decision.
 
         
 
              Claimant testified that, on November 28, 1983, he climbed up 
 
         on his truck to open the door, fell backwards to the ground and 
 
         was knocked unconscious.  The next thing he remembers is his wife 
 
         raising him up off the ground and rubbing snow in his face 
 
         (transcript, page 19).
 
         
 
              Katharina Howard, claimant's wife, confirmed that she found 
 
         him on the ground.  She also testified that she and her husband 
 
         had sexual relations all of the time until he was injured five 
 
         years ago in this fall.  Since the injury, they have had to use 
 
         food stamps, heat assistance and welfare which they had never 
 
         done before (transcript, pages 21 and 22).
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              Claimant testified that he was an independent contractor 
 
         while working for employer and that he filed a schedule C for 
 
         income tax purposes for the years 1980, 1981, 1982 and 1983 
 
         (transcript, pages 28-30).  Income tax records were not 
 
         introduced into evidence by either party.
 
         
 
              Claimant said that he could not perform his job of driving a 
 
         truck while he had headaches (transcript, page 14).  Claimant 
 
         testified that he actually returned to work on April 6, 1986. 
 
         Claimant said that he is currently working as a driver for 
 
         another employer.  He is working in the capacity of an employee 
 
         at this time.  He began this job in August of 1986 and it pays 
 
         him $1,200-$1,300 per week.  He was performing this job at the 
 
         time of the hearing (transcript, pages 33 and 34).
 
         
 
              Claimant confirmed that he signed the Independent Contractor 
 
         Standard Agreement on May 27, 1983 with William Marti, president 
 
         of Whitehall Transport, Inc. (exhibit A-8).  Claimant said 
 
         Whitehall was a common carrier and he owned the tractor described 
 
         in the agreement.  Claimant said that it was his intention to be 
 
         an owner-operator and an independent contractor (transcript, 
 
         pages 36-38).
 
         
 
              Paragraph 1 of the agreement provides that the carrier will 
 
         have the exclusive possession, control and use of the equipment. 
 
         Paragraph 3 of the agreement indicates that, if Whitehall 
 
         pays.certain operating expenses of the contractor, then they can 
 
         be deducted from the contractor's compensation.  Paragraph 6 of 
 
         the agreement says that the "CONTRACTOR and/or drivers will be 
 
         covered with Workman Compensation at CARRIER'S EXPENSE."  
 
         Paragraph 16 of the agreement says that the parties intend to 
 
         create the relationship of carrier and independent contractor and 
 
         not an employer-employee relationship (exhibit A-8).
 
         
 
              Claimant admitted that he took bankruptcy on January 9, 
 
         1984, that just prior to the bankruptcy he sold his truck to pay 
 
         some bills and that he did not own a truck after that date that 
 
         would enable him to continue to haul for Whitehall.
 
         
 
              Claimant admitted and the medical records disclose three 
 
         prior injuries (transcript, pages 39-47).
 
         
 
              Claimant was injured on February 14, 1973 when he blew a 
 
         tire, smashed his truck and received head and neck injuries and 
 
         frequent headaches (exhibit A-1, pages 1 and 2; exhibit A-5, 
 
         pages 1 and 2).
 
         
 
              On September 5, 1973, claimant slipped and fell getting out 
 
         of his truck injuring his left shoulder and low right back.  At 
 
         this time it was discovered that his urine was 4+ for sugar 
 
         (exhibit A-1, page 3).
 
         
 
              On May 31, 1974, claimant fell out of the truck and injured 
 
         his right hip and knee (exhibit A-5, pages 3-6).  The medical 
 
         records at that time further revealed diabetes and claimant's 
 
         treatment with medication for it on September 10, 1973, May 23, 
 
         1974, June 8, 1979, July of 1979, and June 13, 1980 (exhibit A-1, 
 
         page 6).
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              Claimant also admitted that he had a condition called 
 
         phimosis which affected the foreskin of his penis and which ,he 
 
         explained made it difficult to have sex.  Claimant was advised to 
 
         have a circumcision, but testified that he did not have it done 
 
         (transcript, pages 48 and 49; exhibit A-1, page 6).
 
         
 
              After the injury on November 28, 1983, claimant saw William 
 
         Drier, M.D., on November 29, 1983.  Dr. Drier noted the fall from 
 
         the truck, but said that claimant was worried about his heart 
 
         because of chest pain.  A cardiogram was normal.  The office note 
 
         records pain in his left chest radiating into his left arm and 
 
         leg with weakness of the left arm.  Dr. Drier took claimant off 
 
         work. The physician added that, if claimant's symptoms should 
 
         persist, he should have a neurological examination.  There is no 
 
         mention of head injury, headaches, neck, back or sexual 
 
         dysfunction in this office note.  Claimant cancelled his 
 
         follow-up appointment with Dr. Drier on December 9, 1983.  
 
         Claimant also had an appointment with Dr. Drier on December 14, 
 
         1983, but.he did not show up and did not call or cancel (exhibit 
 
         A-1, page 7).
 
         
 
              Claimant testified that.instead of seeing Dr. Drier, he 
 
         chose to see another doctor, Harold C. Hallberg, M.D., on 
 
         December 9, 1983.  Dr. Hallberg described the injury as 
 
         sprain/strain of the back, left shoulder and right hip.  Dr. 
 
         Hallberg ordered an x-ray and prescribed physical therapy 
 
         (exhibit A-6, pages 1 and 2 and pages 4-9).  Dr. Hallberg also 
 
         sent claimant to see David F. Poe, M.D., an orthopaedic 
 
         specialist (exhibit A-2, page 1).
 
         
 
              Dr. Poe recorded that claimant fell ten feet and was found 
 
         unconscious with his left upper extremity trapped behind him. 
 
         Claimant reported a stiff neck and headaches related to his 
 
         cervical spine.  X-rays were negative except for degenerative 
 
         changes.  Dr. Poe anticipated that claimant could return to work 
 
         in about a month.  He returned claimant to the care of Dr. 
 
         Hallberg.  Dr. Poe's diagnosis was soft tissue injury, cervical, 
 
         thoracic and lumbar spine and left upper extremity (exhibit A-3, 
 
         page 1).
 
         
 
              Dr. Hallberg then referred claimant to the University of 
 
         Iowa Hospitals and Clinics (exhibit A-4, page 1).  Claimant was 
 
         seen by a number of physicians in different departments, but his 
 
         primary care was managed by Richard A. Fincham, M.D.  On March 
 
         28, 1984, Dr. Fincham diagnosed cervical radiculopathy of C7-8, 
 
         probably traumatic.  He said that the patient complained of 
 
         headache, neck stiffness, left arm weakness, low back pain, right 
 
         leg pain and that he had not had an erection since the accident.  
 
         Dr. Fincham said that claimant sustained a traumatic injury while 
 
         falling from his truck and was left with left upper extremity 
 
         weakness, low back pain, headaches and right leg stiffness 
 
         (exhibit A-4, pages 2 and 3).  Claimant was examined in the 
 
         urology department (exhibit A-4, pages 4, 8, 11, and 18).  He was 
 
         also examined in neurosurgery (exhibit A-4, page 5).
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              On July 12, 1984, a cervical CT scan was normal (exhibit 
 
         A-4, page 17).  EMG's were normal, but nerve conduction tests 
 
         revealed bilateral neuropathies at the elbow (exhibit A-4, page 
 
         10).
 
         
 
              On August 1, 1984, Dr. Fincham reported that a cervical 
 
         collar had helped claimant's neck and that medication had helped 
 
         his sleep.  Dr. Fincham said that he did not find sufficient 
 
         clinical signs to relate his sexual impotence to his recent 
 
         spinal cord dysfunction, but suspected it was related to his 
 
         12-year history of glucose intolerance.  Dr. Fincham also stated 
 
         that the ulnar nerve dysfunction was not related to this injury.  
 
         The doctor said that claimant's difficulties had narrowed to 
 
         impotence, neck and arm pain (exhibit A-4, page 13).
 
         
 
              On September 14, 1984, Dr. Fincham said that he felt the 
 
         impotence was related to the diabetes, but that his head and left 
 
         upper extremity dysfunction were related to the fall in November 
 
         of 1983.  The doctor said that he hoped claimant would be able to 
 
         return to his usual active work schedule at the subsidence of his 
 
         cervical radiculopathy (exhibit A-4, page 14).
 
         
 
              On February 7, 1985, Dr. Fincham reported that the left arm 
 
         pain was gone and that claimant had regained the full strength of 
 
         the left upper extremity.  The headache and neck pain persisted, 
 
         however.  A buzzing in claimant's ear was determined to be 
 
         noise-induced rather than related to this injury (exhibit A-4, 
 
         pages 22-25).  Dr. Fincham stated that claimant's impotence was 
 
         related to his elevated blood sugar because there was no spinal 
 
         cord damage to relate it to the injury of falling from the truck.  
 
         There was no evidence of a neurologic abnormality, but the chief 
 
         problem was headaches (exhibit A-4, pages 19 and 20).
 
         
 
              A penile implant that was scheduled for February 6, 1985 was 
 
         cancelled because claimant's attorney at that time told the 
 
         University of Iowa that claimant had no money and no insurance to 
 
         cover it (exhibit A-4, pages 21 and 26).
 
         
 
              On April 12, 1985, Dr. Fincham said that he believed 
 
         claimant's persisting headaches were post-traumatic headaches 
 
         from the terms that claimant used to describe them (exhibit A-4, 
 
         page 27).
 
         
 
              Dr. Fincham's final report is dated April 19, 1985 and reads 
 
         as follows:
 
         
 
              My diagnosis is that of post-traumatic headaches.  The pains 
 
              were still persistent when I last saw the patient in 
 
              January, although there were no identifiable neurologic 
 
              deficits.  I am hopeful that he will improve with time, even 
 
              to the point of being able to return to work.  I am unable 
 
              to predict this with certainty.
 
         
 
              Because of the subjective nature of the patient's disability 
 
              and the possibility of recovery, I am unable to provide any 
 
              percentage of disability.
 

 
              
 
 
 
 
 
 
 
 
 
 
 
         
 
              Claimant testified that he actively returned to work on 
 
         April 6, 1986 (transcript, pages 8, 9 and 13).
 
         
 
              Claimant testified that he did not have any surgery for this 
 
         injury and that he has not seen anyone at the University of Iowa 
 
         Hospitals and Clinics since April of 1985 (transcript, page 60). 
 
         Claimant further testified that defendants did not introduce into 
 
         evidence a final report from Dr. Hallberg which kept him off work 
 
         on account of this injury after Dr. Fincham no longer saw him at 
 
         the University (transcript, page 61).
 
         
 
              Jerry Bowman testified that he was the dispatcher for 
 
         Whitehall in November of 1983.  He testified that he has had 
 
         prior experience as an over-the-road trucker in the capacity of 
 
         an owner-operator and independent contractor.  He said that he 
 
         knew claimant in November of 1983 as a leased owner-operator.  
 
         Bowman said that exhibit A-8, the Independent Contractors 
 
         Standard Agreement dated August 27, 1983 was in effect at the 
 
         time of the injury on November 28, 1983 (transcript, pages 
 
         62-65).
 
         
 
              Bowman said that claimant was responsible for his own 
 
         operating costs--fuel, repairs, supplies and personal expenses.  
 
         He said that claimant was never paid for his time by the hour 
 
         while on the road (transcript, page 66).  Bowman said that 
 
         claimant determined his own route and how he would do his job 
 
         (transcript, page 67).
 
         
 
              Bowman testified that, on November 28, 1983, he called 
 
         claimant for a dispatch which claimant agreed to take.  A short 
 
         time later, claimant called back and said that he had fallen from 
 
         his truck and had been injured (transcript, pages 67 and 68). 
 
         Bowman said that Dr. Drier was claimant's own physician.  The 
 
         company did not have a company physician (transcript, page 69).
 
         
 
              Bowman said that claimant could contract with other 
 
         carriers. He also confirmed that claimant received Wisconsin 
 
         workers' compensation payments.  He said that claimant never 
 
         contacted him for another load after November 28, 1983.  Bowman 
 
         said that if claimant sold his truck, then Whitehall would not 
 
         have any position for him (transcript, pages 70 and 71).
 
         
 
              Claimant testified that he believed workers' compensation 
 
         insurance was deducted from his settlements.  Claimant averred 
 
         that he asked Mr. Bowman when he was hired, "Do you take 
 
         compensation insurance out of our settlements?"  Bowman 
 
         responded, "Yes."  (transcript, page 73).
 
         
 
              Defendants' attorney contended that the insurance company 
 
         had erroneously paid claimant workers' compensation benefits 
 
         because he was an independent contractor.  She also added that 
 
         she thought these benefits were paid as a result of a contract 
 
         for benefits that claimant paid for (transcript, page 74).
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
                           APPLICABLE LAW AND ANALYSIS
 
         
 
              The burden of proof is initially on claimant to show that an 
 
         employer-employee relationship existed at the time of the injury. 
 
         Everts v. Jorgensen, 225 Iowa 818, 822-826, 289 N.W. 11, 13 
 
         (1939).
 
         
 
              Five factors are considered in making a determination of 
 
         whether an employer-employee relationship existed.  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?
 
         
 
         Nelson v. Cities Service Oil Co., 259 Iowa 1209, 1216, 146 N.W.2d 
 
         261, 265 (1966).
 
         
 
              No one or more of these five factors is determinative.  The 
 
         determination is one for the finder of fact.  Daggett v. Nebraska 
 
         Eastern Express, Inc., 252 Iowa 241, 248, 107 N.W.2d 102, 107 
 
         (1961).
 
         
 
              As to the law, the Iowa Supreme Court has stated that in 
 
         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.  Usgaard v. Silver Crest Gold 
 
         Club, 256 Iowa 453, 459, 127 N.W.2d 636, 639 (1964).  The supreme 
 
         court has also stated that the workers' compensation statute is 
 
         intended to cast upon the industry in which the worker is 
 
         employed a share of the burden resulting from industrial 
 
         accidents. Caterpillar Tractor v. Shook, 313 N.W.2d 503 (Iowa 
 
         1981).
 
         
 
              The Iowa Supreme Court has further stated that "the law 
 
         looks to the substance and not to the form of the contract to 
 
         determine the relationship" of the parties.  Stanford v. 
 
         Goodridge, 234 Iowa 1036, 1042, 13 N.W.2d 40, 43 (1944).
 
         
 
              A contract must be construed from its four corners and not 
 
         from an isolated paragraph and irrespective of the nomenclature 
 
         used by the parties.  Schlotter v. Leudt, 255 Iowa 640, 645, 123 
 
         N.W.2d 434, 438 (1963); Arne v. Western Silo Co., 214 Iowa 511, 
 
         513, 242 N.W. 539, 542 (1932).
 
         
 
              Furthermore, an imperative which applies to and controls all 
 
         employer-employee contracts is Iowa Code section 85.18:  "No 
 
         contract, rule, or device whatsoever shall operate to relieve the 
 
         employer, in whole or in part, from any liability created by this 
 
         chapter except as herein provided."
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              Even if both parties agree that their intent is to create an 
 
         independent contractor relationship, the stated intent of the 
 
         parties is ignored if the purpose is to avoid or to circumvent 
 
         the workers' compensation laws.  Funk v. Bekins Van Lines Co., I 
 
         Iowa Industrial Commissioner 82, 84 (App. Decn. 1980).
 
         
 
              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 
 
         person who has entered into the employment of or works for an 
 
         employer.  Lawyer and Higgs, Iowa Workers' Compensation, Law 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 (Iowa 1971).
 
         
 
              Once the worker has proven that at the time of the injury 
 
         the worker was rendering services for the employer, the burden 
 
         then shifts to the employer to prove the worker was an 
 
         independent contractor and not an employee.  Daggett v. Nebraska 
 
         Eastern Express, Inc., 252 Iowa 341, 344, 345, 346, 107 N.W.2d 
 
         102, 105 and numerous cases cited therein.  Once claimant makes 
 
         out a prima facie case of employer-employee relationship, 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 85.61(3)(b) provides that an independent 
 
         contractor shall not be deemed an employee.
 
         
 
              An independent contractor by definition carries on an 
 
         independent business.  The Iowa Supreme Court has adopted an 
 
         eight factor test which is considered in determining whether a 
 
         worker is an independent contractor.  Mallinger v. Webster City 
 
         Oil Co., 211 Iowa 847, 851, 234 N.W. 254, 257 (1929).  Again, no 
 
         single factor is determinative.  Daggett v. Nebraska Eastern 
 
         Express, Inc., 252 Iowa 341, 107 N.W.2d 102.  As with the 
 
         determination of employer-employee relationship, the court will 
 
         attempt to bring every employee under the protection of the 
 
         Workers' Compensation Act who can fairly be brought within its 
 
         coverage.  Usgaard, 256 Iowa 453, 459, 127 N.W.2d 636, 639.
 
         
 
              The factors which the court weighed in the Mallinger case to 
 
         determine independent contractor status appear at page 851 and 
 
         are as follows:
 
         
 
              An independent contractor, under the quite universal rule, 
 
              may be defined as one who carries on an independent 
 
              business, 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 payment, whether by 
 
              time or by job; and (8) whether the work is part of the 
 
              regular business of the employer.
 

 
              
 
 
 
 
 
 
 
 
 
 
 
         
 
              Even if a written contract between the parties states that 
 
         the worker is an independent contractor, that agreement or 
 
         statement is not controlling.  Daggett v. Nebraska Eastern 
 
         Express, Inc., 252 Iowa 341, 344, 107 N.W.2d 102, 105 (1981).  In 
 
         an attempt to avoid the cost of providing workers' compensation 
 
         to workers, employers have historically tried to establish an 
 
         independent contractor relationship for their workers.  Lawyer 
 
         and Higgs, Iowa Workers' Compensation, Law and Practice, section 
 
         3-1, page 15.  Typical workers who have been held to be employees 
 
         and not independent contractors are truck drivers who own their 
 
         own rig and lease it to a trucking firm, a motor carrier or 
 
         common carrier.  Daggett v. Nebraska Eastern Express, Inc., 252 
 
         Iowa 341, 107 N.W.2d 102 (1961); Elliott v. Wilkinson, 248 Iowa 
 
         667, 81 N.W.2d 925 (1957); Barrus v. Vitalis Truck Line, I Iowa 
 
         Industrial Commissioner Report 17 (1980); Funk v. Bekins Van 
 
         Lines Co., I Iowa Industrial Commissioner Report 82, 84 (App. 
 
         Decn. 1980).
 
         
 
              Claimant did sustain the burden of proof by a preponderance 
 
         of the evidence that an employer-employee relationship existed 
 
         between himself and defendant at the time of this injury.  With a 
 
         30-day notice of termination agreement, the written contract was 
 
         the same as an employment at the will of the parties.  Defendants 
 
         could hire and did hire at will.  The balance of the provisions 
 
         of the agreement appear to be for the purpose of avoiding the 
 
         workers' compensation law in violation of Iowa Code section 
 
         85.18. Defendant paid claimant compensation for his services.  
 
         The employee quit after his injury simply by not calling in for 
 
         any more loads.  Apparently, the employer also chose not to call 
 
         the employee for any more loads.  Therefore, it is determined 
 
         that the employer could hire at will, paid claimant compensation 
 
         for his services, and felt free to discontinue the relationship 
 
         simply by not calling claimant for additional trips.  Defendant 
 
         could terminate claimant as quickly as he was hired.  Nelson, 259 
 
         Iowa 1209, 146 N.W.2d 261 (1966).
 
         
 
              With respect to Iowa Code section 85.61(2), claimant entered 
 
         into a contract of employment and worked under a contract of 
 
         service.  Claimant entered into the employment of and worked for 
 
         an employer.  Employer promised to hire and claimant promised to 
 
         perform services.  McClure v. Union et al. Counties, 188 N.W.2d 
 
         283 (Iowa 1981).
 
         
 
              Defendants did not sustain the burden of proof by a 
 
         preponderance of the evidence that claimant was an independent 
 
         contractor.  Even though Bowman testified that claimant could 
 
         haul for others, the contract provided that defendants would have 
 
         exclusive possession, control and use of claimant's equipment at 
 
         paragraph 1.  This contract is the same type of contract that has 
 
         been struck down as a contract to circumvent the workers' 
 
         compensation law in Daggett, Elliott, Barrus, and Funk in 
 
         violation of Iowa Code section 85.18.  The statement of the 
 
         parties and their intention in writing is ignored in these 
 
         situations.  Therefore, it is determined that defendants did not 
 
         sustain the burden of proof by a preponderance of the evidence 
 
         that claimant was an independent contractor at the time of this 
 
         injury on November 28, 1983.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              Defendants' counsel has contended that claimant was an 
 
         independent contractor pursuant to the present Iowa Code section 
 
         85.61(3)(b) and (c).  This six factor test was not the law on 
 
         November 28, 1983.  This provision was not added to the law until 
 
         1986 or 1987.
 
         
 
              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 November 28, 1983 which 
 
         arose out of and in the course of his employment.  McDowell v. 
 
         Town of Clarksville, 241 N.W.2d 904 (Iowa 1976); Musselman v. 
 
         Central Telephone Co., 261 Iowa 352, 154 N.W.2d 128 (1.967).
 
         
 
              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 claimant has the burden of proving by a preponderance of 
 
         the evidence that the injury of November 28, 1983 is causally 
 
         related to the disability on which he now bases his claim.  
 
         Bodish v. Fischer, Inc., 257 Iowa 516, 133 N.W.2d 867 (1965).  
 
         Lindahl v. L.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 v. Central Telephone 
 
         Co., 261 Iowa 352, 154 N.W.2d 128 (1967).
 
         
 
              Claimant did sustain the burden of proof by a preponderance 
 
         of the evidence that he sustained an injury on November 28, 1983. 
 
         Even though claimant was more concerned about his heart when he 
 
         saw Dr. Drier on November 29, 1983, nevertheless, claimant did 
 
         report this fall to Bowman just a few minutes after it happened. 
 
         Dr. Drier did note the fall and said that he planned to make 
 
         neurological studies after the initial heart symptoms cleared if 
 
         claimant was still having difficulties.  Before he could do so, 
 
         however, claimant sought the care of Dr. Hallberg on December 9, 
 
         1983.  Dr. Hallberg took x-rays and ordered physical therapy.  
 
         Dr. Hallberg also sent claimant to see an orthopaedic specialist, 
 
         Dr. Poe.  Dr. Hallberg later sent claimant to the University of 
 
         Iowa Hospitals and Clinics.  Dr. Hallberg described the injury 
 
         that he treated as stemming from the slipping and falling from 
 
         the truck on November 28, 1983 (exhibit A-2, page 1).  Dr. Poe 
 
         described the fall from the truck as a history for the injury he 
 
         treated (exhibit A-3, page 1).  Dr. Fincham, at the University of 
 
         Iowa, treated claimant for injuries resulting from a fall 
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         from,his truck (exhibit A-4, pages 2 and 3).  Thus, claimant did 
 
         sustain the burden of proof by a preponderance of the evidence 
 
         that he sustained an injury on November 28, 1983 which arose out 
 
         of and in the course of his employment with employer.  Even 
 
         though claimant had suffered three prior injuries several years 
 
         ago in 1973 and 1974, none of the current doctors connected this 
 
         injury with any of the prior injuries.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              Claimant did sustain the burden of proof by a preponderance 
 
         of the evidence that he was off work as stipulated from November 
 
         29, 1983 until April 6, 1986.  Dr. Drier took claimant off work 
 
         on November 29, 1983.  Dr. Hallberg, Dr. Poe and Dr. Fincham 
 
         continued to keep claimant off work.  None of them ever (1) 
 
         returned claimant to work, (2) stated that he had attained 
 
         maximum medical improvement, or (3) said that he could return to 
 
         substantially similar employment (Iowa Code section 85.34(l).  
 
         The only evidence of when claimant was able to return to work was 
 
         his own testimony that he was able to return to work on April 6, 
 
         1986. This testimony was not contradicted, controverted, 
 
         rebutted, refuted or disputed.  Defendants introduced no evidence 
 
         or even gave any argument to explain or establish why they 
 
         terminated temporary disability benefits on August 18, 1984.  
 
         Apparently, it was simply an arbitrary decision on their part.
 
         
 
              The allegation of defendants in their brief to the effect 
 
         that Dr. Fincham ordered claimant to return to work in exhibit 
 
         A-4, pages 12, 13, 14 and 29 is not correct.  In exhibit A-4, 
 
         pages 12 and 13, Dr. Fincham said that he hoped claimant 
 
         "continues to work" with the recommendations of,the physical 
 
         therapist.  He did not say that he hoped claimant would continue 
 
         to work at a job in the workplace.  In the last paragraph of this 
 
         letter, Dr. Fincham indicated that he would need a follow-up 
 
         examination in order to determine if claimant was still disabled 
 
         (exhibit A-4, page 13). In exhibit A-4, page 14, Dr. Fincham 
 
         indicated that claimant cannot return to work.  In this report on 
 
         September 14, 1984, Dr. Fincham said, "I still maintain the hope 
 
         that he will be able to return to his usual active work schedule 
 
         with the subsidence of his cervical radiculopathy."  (exhibit 
 
         A-4, page 14).  Therefore, Dr. Fincham still considered claimant 
 
         to be temporarily disabled on September 14, 1984.
 
         
 
              At exhibit A-4, page 29, which is quoted above in this 
 
         decision, Dr. Fincham said on April 19, 1985 that his diagnosis 
 
         was post-traumatic headaches.  Then he said, "I am hopeful that 
 
         he will improve with time, even to the point of being able to 
 
         return to work.  I am unable to predict this with certainty."  
 
         The next evidence as to when claimant could return to work is his 
 
         own testimony to the effect that he was unable to return to work 
 
         until April 6, 1986 due to his headaches.  There is no 
 
         contradictory evidence that claimant could have gone to work 
 
         before April 6, 1986.  Claimant's testimony stands 
 
         uncontroverted, uncontradicted, unrebutted, unrefuted and 
 
         undisputed by any other evidence.  It is also supported by Dr. 
 
         Fincham's reports.
 
         
 
              Therefore it is determined that claimant did sustain the 
 
         burden of proof by a preponderance of the evidence that he is 
 
         entitled to temporary disability benefits from November 29, 1983, 
 
         the day after the injury when he was taken off work by Dr. Drier, 
 
         until April 6, 1986, which is the date he testified was the date 
 
         he could return to work.
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
              Claimant did not prove that the denervation in his elbows 
 
         bilaterally was caused by this injury.  Dr. Fincham said the 
 
         ulnar neuropathy suggested on the nerve conduction tests was not 
 
         matched by any clinical or EMG abnormalities.  He said that, "I 
 
         do not feel that the patient now has clinical ulnar neuropathy." 
 
         (exhibit A-4, page 20).  Dr. Fincham stated several times that 
 
         claimant's impotence and lack of sexual function was not caused 
 
         by this injury, but rather was caused by his diabetes (exhibit 
 
         A-4, pages 13, 14, 19 and 20).
 
         
 
              Claimant's loss of hearing was proven to be noise-induced 
 
         and not accident-induced (exhibit A-4, pages 22-25).
 
         
 
              Claimant did not prove that the injury of November 28, 1983 
 
         was the cause of any permanent disability.  Dr. Fincham said that 
 
         because of the subjective nature of the patient's disability 
 
         and.the possibility of recovery, he was unable to provide 
 
         any.percentage of disability (exhibit A-4, page 29).
 
         
 
              Claimant would be entitled to his medical expenses for the 
 
         treatment previously discussed, however, no specific award can be 
 
         made because to medical expenses were introduced into evidence by 
 
         either party.
 
         
 
              Claimant was paid some workers' compensation benefits, but 
 
         the evidence is not clear whether the policy was purchased by 
 
         claimant or by employer and whether the policy was owned by 
 
         claimant or owned by employer.  This is not important, however, 
 
         because every employer shall provide, secure and pay compensation 
 
         for all personal injuries sustained by an employee arising out of 
 
         and in the course of employment pursuant to Iowa Code section 
 
         85.3 and the workers' compensation law is the exclusive remedy 
 
         for work-related injuries pursuant to Iowa Code section 85.20.  
 
         The workers', compensation law provides that employers shall 
 
         insure the employer's liability (Iowa Code section 87.1) and 
 
         provides certain consequences for failing to insure that 
 
         liability (Iowa Code section 87.21).  Therefore, employer is 
 
         liable for this injury irrespective of whether employer does or 
 
         not have insurance to cover it.
 
         
 
                                 FINDINGS OF FACT
 
         
 
              WHEREFORE, based upon the evidence presented, the following 
 
         findings of fact are made:
 
         
 
              That claimant was an employee of Whitehall on November 28, 
 
         1983.
 
         
 
              That claimant was not an independent contractor with 
 
         Whitehall on November 28, 1983.
 
         
 
              That claimant fell from his truck and sustained an injury to 
 
         his head, neck, arm, hip, and back on November 28, 1983.
 
         
 
              That most of these injured areas cleared by April 19, 1985, 
 
         but that Dr. Fincham said claimant continued to be disabled with 
 
         post-traumatic headaches on that date.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              That claimant testified the first time he was able to return 
 
         to work due to his post-traumatic headaches was on April 6, 1986.
 
         
 
              That claimant was off work from November 29, 1983 to April 
 
         6, 1986 due to post-traumatic headaches caused by this injury.
 
         
 
              That there was no evidence to support a finding that this 
 
         injury was the cause of any permanent impairment or permanent 
 
         disability or that claimant sustained any permanent impairment or 
 
         permanent disability.
 
         
 
              That the.injury of November 28, 1983 was not the cause of 
 
         hearing loss or loss of sexual function.  The hearing loss was 
 
         noise-induced and the loss of sexual function was due to 
 
         diabetes.
 
         
 
              That no medical bills or medical expenses were introduced 
 
         into evidence.
 
         
 
                                CONCLUSIONS OF LAW
 
         
 
              WHEREFORE, based upon the evidence presented and the 
 
         foregoing principles of law, the following conclusions of law are 
 
         made:
 
         
 
              That claimant sustained the burden of proof by a 
 
         preponderance of the evidence that he was an employee of 
 
         Whitehall at the time of this injury on November 28, 1983.
 
         
 
              That defendants did not establish the burden of proof by a 
 
         preponderance of the evidence that claimant was an independent 
 
         contractor in relation to Whitehall at the time of this injury on 
 
         November 28, 1983.
 
              That claimant sustained the burden of proof by a 
 
         preponderance of the evidence that he sustained an injury on 
 
         November 28, 1983 which arose out of and in the course of 
 
         employment with employer when he fell from his truck on that 
 
         date.
 
         
 
              That claimant sustained the burden of proof by a 
 
         preponderance of the evidence that the injury was the cause of 
 
         temporary total disability.
 
         
 
              That claimant sustained the burden of proof by a 
 
         preponderance of the evidence that he was off work from and is 
 
         entitled to temporary total disability benefits for the period 
 
         from November 29, 1983 until April 6, 1986.
 
         
 
              That claimant did not sustain the burden of proof by a 
 
         preponderance of the evidence that the injury was the cause of 
 
         any permanent disability.
 
         
 
              That claimant did not sustain the burden of proof by a 
 
         preponderance of the evidence that he is entitled to permanent 
 
         disability benefits.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              That claimant is entitled to medical benefits for the 
 
         medical treatment in evidence in this case, but since no medical 
 
         bills were introduced into evidence, no specific award can be 
 
         made.
 
         
 
                                      ORDER
 
         
 
              THEREFORE, IT IS ORDERED:
 
         
 
              That defendants pay to claimant one hundred twenty-two point 
 
         seven one four (122.714) weeks of temporary total disability 
 
         benefits from November 29, 1983 to April 6, 1986 at the 
 
         stipulated rate of two hundred ninety-four and 00/100 ($294.00) 
 
         per week in the total amount of thirty-six thousand seventy-seven 
 
         and 92/100 dollars ($36,077.92) commencing on November 29, 1983.
 
         
 
              That defendants are entitled to a credit for thirty-seven 
 
         point five seven one (37.571) weeks of workers' compensation 
 
         benefits paid prior to hearing at the rate of two hundred 
 
         ninety-four and 00/100 dollars ($294.00) per week in the total 
 
         amount of eleven thousand forty-five and 87/100 dollars 
 
         ($11,045.87).
 
         
 
              That the remaining benefits are to be paid to claimant in a 
 
         lump sum.
 
         
 
              That interest will accrue pursuant to Iowa Code section 
 
         85.30.
 
         
 
              That the costs of this action, including the cost of the 
 
         transcript, are charged to defendants pursuant to Division of 
 
         Industrial Services Rule 343-4.33.
 
              
 
              That defendants are to file claim activity reports as 
 
         requested by this agency pursuant to Division of Industrial 
 
         Services Rule 343-3.1.
 
         
 
              Signed and filed this 26th day of July, 1989.
 
         
 
         
 
         
 
         
 
         
 
         
 
                                            WALTER R. McMANUS, JR.
 
                                            DEPUTY INDUSTRIAL COMMISSIONER
 
         
 
         Copies To:
 
         
 
         Mr. William Howard
 
         P.O. Box 255
 
         Lamont, Iowa  50650
 
         REGULAR AND CERTIFIED MAIL
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         Ms. Dorothy L. Kelley
 
         Attorney at Law
 
         500 Liberty Building
 
         Des Moines, Iowa  50309
 
         
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
 
                                            
 
 
 
 
 
 
 
 
 
 
 
                                            51107, 51108.50, 51401
 
                                            51402.10, 51402.20, 51402.30 
 
                                            51402.40, 51402.60, 51801 
 
                                            51803, 52001, 52002, 52208 
 
                                            52501, 52504, 52700
 
                                            Filed July 26, 1989
 
                                            WALTER R. McMANUS, JR.
 
         
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         WILLIAM HOWARD,
 
         
 
              Claimant,
 
         
 
         vs.                                      File No. 779866
 
         
 
         WHITEHALL TRANSPORTATION,             A R B I T R A T I 0 N
 
         
 
              Employer,                           D E C I S I 0 N
 
         
 
         and
 
         
 
         HOME INDEMNITY COMPANY,
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
         52001
 
         
 
              Claimant proved he was an employee.
 
         
 
         52002
 
         
 
              Defendants did not prove claimant was an independent 
 
         contractor.
 
         
 
         51107, 51108.50, 51401, 51402.10, 51402.20, 51402.30
 
         
 
              Claimant did prove injury when he fell backwards from his 
 
         truck on his back and bumped his head and hurt his arm and hip.
 
         
 
         51402.40, 51801
 
         
 
              Claimant awarded temporary total disability for his time off 
 
         work for headaches from November 29, 1983 to April 6, 1986 based 
 
         on his own testimony which was partially supported by his 
 
         doctor's reports.
 
         
 
         51402.60, 52700
 
         
 
              Pro se claimant did not introduce his medical bills. 
 
         Therefore, no specific award could be made for the payment of his 
 
         unpaid medical expenses.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
         51803
 
         
 
              Claimant did not prove permanent impairment or disability.
 
         
 
         52208
 
         
 
              Hearing loss was denied because it was noise induced.
 
         
 
         51107, 51108.50, 52501, 52504, 52700
 
         
 
              Claimant did not prove that his sexual impotence was caused 
 
         by this injury and therefore he was not entitled to a penile 
 
         implant.