BEFORE THE IOWA INDUSTRIAL COMMISSIONER _________________________________________________________________ LORI VEACH, Claimant, VS. FILE NO. 796675 INTERNATIONAL PIZZA, A R B I T R A T I 0 N Employer, D E C I S I O N and NATIONAL UNION FIRE INS. CO., Insurance Carrier, Defendants. _________________________________________________________________ INTRODUCTION This is a proceeding in arbitration brought by Lori A. Veach against International Pizza, her former employer, and National Union Fire Insurance Company, insurance carrier. Claimant alleges that she sustained a compensable injury to her left knee and back on May 12, 1985 and seeks compensation for healing period, permanent partial disability and section 85.27 benefits. The rate of compensation is also in issue. The case was heard at Council Bluffs, Iowa on December 16, 1986 and was fully submitted upon conclusion of the hearing. The record in this proceeding consists of testimony from Lori A. Veach, John Veach and Cindy Hargin. The record also includes claimant's exhibits 1 through 20A and defendants' exhibits 21 through 34. Exhibit 1 is a deposition of 0. Max Jardon, M.D., taken October 6, 1986. Exhibit 17 is the deposition of Ronald K. Miller, M.D., taken October 8, 1986. Exhibit 21 is claimant's deposition taken June 11, 1986. Exhibit 29 contains the medical expenses which claimant seeks to recover. Exhibit 34 is the employer's statement of claimant's earnings. ISSUES The issues identified by the parties for determination are whether claimant sustained an injury on May 12, 1985 that arose out of and in the course of her employment; whether a causal connection exists between the alleged injury and any disability which she has experienced; determination of the nature and extent of disability, if any, related to the alleged injury and the amount of claimant's entitlement with regard thereto; determination of claimant's entitlement to section 85.27 benefits; and establishment of the correct rate of compensation. It was stipulated that 72 weeks of compensation have been paid at VEACH V. INTERNATIONAL PIZZA Page 2 the rate of $74.67 per week. SUMMARY OF THE EVIDENCE Lori A. Veach is a 32 year old married lady with a nine year old daughter. Lori holds an associate degree in law enforcement and has completed approximately three-fourths of the requirements toward a degree in sociology through Northwest Missouri State College. She is a high school graduate and stated that while in high school she received above average grades. Following high school Lori made a brief attempt at training to become a licensed practical nurse and worked approximately one year as a nurse's aid at the Clarinda Municipal Hospital. She then spent a considerable amount of time traveling throughout the United States. While doing so she performed work as a waitress, cook and switchboard operator. On return from her travels she obtained employment at the Clarinda Mental Health Institute as a food service worker where she worked from approximately 1977 through 1982 (excluding periods of absence). She has worked as a cook at a truckstop. She obtained her job with International Pizza, also known as Pizza Hut, in February, 1985, where she worked until May 12, 1985 when she fell and injured her left knee. Claimant has not returned to substantial continuous gainful employment since May of 1985. Claimant has a rather extensive medical history. It is adequately summarized in exhibit 18. Some of the more significant events include the following: 12-29-78 Auto accident, reported that both knees struck the dashboard, made complaints of pain in her neck and arms. (Ex. 27-I, p. 1) 07-22-79 Slipped on jello at work and twisted knee. Minimal swelling observed. (Ex. 27-I, p. 51) 08-07-79 Lateral and medial meniscectomies performed on claimant's left knee. (Ex. 26-C, p. 12) 08-31-79 In response to continued complaints of severe pain in the knee an additional surgery was performed to investigate a suspected infection. (Ex. 26-C, pp. 23 & 27) 10-03-79 Manipulation of the left knee performed under general anesthetic in response to the knee becoming stiffened in a flexed position. (Ex. 26-C, p. 30) 10-22-79 An exploratory laparotomy and appendectomy were performed due to claimant's continued complaints and a diagnosis of possible appendicitis. (Ex. 26-C, pp. 40 & 41) 01-8-80 Claimant complained of reinjuring left knee by slipping in water. (Ex. 27-I, p.52) 01-27-80 Auto accident, complaints of pain in neck, left shoulder and elbow. (Ex. 27-I, p.16) 04-24-81 Complained of falling six days earlier injuring left knee. Treated with a long leg cast for one week. (Ex. 27-K, p.6) 08-31-81 Hughston surgical repair of patellar misalignment performed by Ronald K. Miller, M.D. (Ex. 27-B, p.4) 10-16-81 Claimant hospitalized for complaints of backache, VEACH V. INTERNATIONAL PIZZA Page 3 tingling and paralysis in left leg and 16 ft foot drop. The attending physician was Maurice P. Margules, M.D., a psychiatrist evaluated claimant and diagnosed a conversion hysteria reaction manifested by paralysis. (Ex. 27-E, p.1) 12-09-81 Auto accident with complaints of chest and elbow pain. (Ex. 26-B, p.1) 02-02-82 Seen by Dr. Miller with complaint of continuing pain and four episodes of the knee giving out. (Ex. 27-B, p.10) 03-02-82 Fitted with Palumbo knee brace. (Ex. 27-B, p. 10) 04-26-82 Dr. Miller rates 15 percent impairment of left leg. (Ex. 27-B, p.11) 06-11-82 Dr. Miller recommends that claimant change occupations to work in a seated position. (Ex. 27-B, p.11) 01-03-83 Admitted to Clarinda Municipal Hospital with complaints of severe low back pain radiating into right leg. Mild improvement with therapy but discharged with continuing complaints. (Ex. 27-I, pp. 46 & 47) 06-22-83 Hysterectomy performed to relieve reproductive system problems and also to relieve back pain. (Ex. 26-A, p. 10) 10-05-84 Last in a series of emergency room visits for headache and abdominal pain spanning nearly one year. (Ex. 26-A, pp. 25-78) 11-20-84 Seen by Dr. Miller with an infectious eruption on the incision of the left knee. (Ex. 27-B, p. 12) 05-12-85 The alleged fall at Pizza Hut which is the basis for this proceeding. 05-20-85 Claimant referred to 0. Max Jardon, M.D., for evaluation. (Ex. 27-B, p. 13) 06-26-85 Elmslie-Trillot patellar tendon realignment performed by 0. Max Jardon, M.D., after conservative treatment and a cast had not been successful at resolving claimant's complaints (Ex. 27-A, p. 3) 11-04-85 L5-Sl diskectomy performed by Dr. Jardon for bulging L5-Sl disc. (Ex. 27-A, pp. 11-14) 07-01-86 Dr. Jardon rates claimant as having a 10 percent disability of the body as a whole due to the disc and 14 percent of the body as a whole due to the knee. (Ex. 27-A, p. 18) The impairment of the leg was rated at 35 percent. (Ex. 27-A, p. 18) Since the last surgery she briefly held a job as a cashier for three weeks earning $3.35 per hour. She stated that she was unable to tolerate the work. Claimant currently complains of continuing pain, discomfort and limitation regarding her back and left leg. She states that the knee continues to swell with excessive use. APPLICABLE LAW AND ANALYSIS Claimant has the burden of proving by a preponderance of the evidence that she received an injury on May 12, 1985 which arose out of and in the course of her employment. McDowell v. Town of Clarksville, 241 N.W.2d 904 (Iowa 1976); Musselman v. Central VEACH V. INTERNATIONAL PIZZA Page 4 Telephone Co., 261 Iowa 352, 154 N.W.2d 128 (1967). Claimant testified to an incident of falling. The incident was apparently witnessed by co-employees. No evidence was introduced to dispute claimant's testimony of falling. Her testimony is therefore accepted as correct. It is found that Lori A. Veach did fall from shelves at the Pizza Hut where she was employed on May 12, 1985. Our supreme court has stated many times that a claimant may recover for a work connected aggravation of a preexisting condition. Almguist v. Shenandoah Nurseries, 218 Iowa 724, 254 N.W. 35 (1934). See also Auxier v. Woodward State Hosp. Sch., 266 N.W.2d 139 (Iowa 1978); Gosek v. Garmer and Stiles Co., 158 N.W.2d 731 (Iowa 1968); Barz v. Oler, 257 Iowa 508, 133 N.W.2d 704 (1965); Olson v. Goodyear Service Stores, 255 Iowa 1112, 125 N.W.2d 251 (1963); Yeager v. Firestone Tire & Rubber Co., 253 Iowa 369, 112 N.W.2d 299 (1961); Ziegler v. United States Gypsum Co., 252 Iowa 613, 106 N.W.2d 591 (1960). In view of the preexisting weakness in claimant's knee it would not be unexpected for her to have injured the knee by either twisting it or in some other fashion in such a fall. Her testimony with regard to experiencing immediate pain and complaints upon falling is also accepted as correct. Claimant's testimony to the effect that she experienced discomfort in her back immediately after falling is also accepted as correct. It is found that the degree of discomfort to claimant's back immediately following the fall was relatively minor. It is therefore found and concluded that claimant did sustain injury in a fall that occurred on May 12, 1985 which arose out of and in the course of her employment with International Pizza. The claimant has the burden of proving by a preponderance of the evidence that the injury of May 12, 1985 is causally related to the disability on which she now bases her claim. Bodish v. Fischer, Inc., 257 Iowa 516, 133 N.W.2d 867 (1965). Lindahl v. L. 0. Boggs, 236 Iowa 296, 18 N.W.2d 607 (1945). A possibility is insufficient; a probability is necessary. Burt v. John Deere Waterloo Tractor Works, 247 Iowa 691 73 N.W.2d 732 The question causal connection is essentially within the domain of expert testimony. Bradshaw v. Iowa Methodist Hospital, 251 Iowa 375, 101 N.W.2d 167 (1960). The contentions of the parties are such that the extent of injury to the knee is one of the disputes. Defendants contend that the injury to the knee on May 12, 1985 created only temporary disability with no additional permanency. Claimant seeks healing period and permanent partial disability compensation for the knee. The record contains little in the way of, direct expert medical opinion concerning causation for the treatment performed on claimant's knee, but what does appear seems consistent with an injury having occurred on May 12, 1985. When questioned Dr. Jardon rated claimant's left leg as having a 35 percent impairment. He declined, however, to express an opinion regarding how much of that permanent disability preexisted the current injury. Dr. Miller indicated that on April 26, 1982 he rated claimant as having a 15 percent permanent partial impairment of the leg (Ex. 17, p. 14) but that he VEACH V. INTERNATIONAL PIZZA Page 5 currently rates her as having a 34 percent permanent partial impairment of the leg (Ex. 17, P. 8). Dr. Miller went on to explain that the difference in his ratings is due to a change in rating methods between the first and second editions of the AMA Guides and that the impairment following the injury of May, 1985 would have been approximately the same as had existed previously in 1981 (Ex. 17, pp. 28-30). Claimant went about her business between 1982 and May of 1985 without receiving a substantial amount of medical care for the knee. During recent times she has again gone for substantial periods without seeking a great deal of care for the knee. Exhibit 20, the surveillance video tape, showed claimant to ambulate reasonably well with the knee, albeit with a noticeable change in her gait. The video tape confirmed claimant's testimony that she is unable to squat and must bend from the waist when she attempts to reach the ground. When all of the evidence in the record is considered, it is found that claimant has failed to prove by a preponderance of the evidence that there has been any substantial change in the degree of permanent partial disability in her left leg as a result of the May 12, 1985 injury. Claimant seeks to recover permanent partial disability as a result of an injury to her back. The issue of the employer's liability for the condition of claimant's back is seriously disputed by the employer. Claimant's hospitalizations in 1981 and 1983 for back complaints provide ample evidence of preexisting difficulties. Dr. Miller did not dispute the existence of a causal connection between the need for surgery (and resulting disability) in claimant's back and the May 12, 1985 fall but he did indicate that it was a subject of good faith dispute (Ex. 30). In his report dated January 8, 1986, Michael T. O'Neil, M.D., states: "According to Mrs. Veach's history, the back injury is related to the May 12, 1985, accident at the Pizza Hut." He seems to make no argument with that statement (Ex. 4). Dr. Jardon does feel that a causal connection exists between the fall of May 12, 1985, claimant's herniated disc, the laminectomy and resulting disability. He makes the causal connection primarily upon the change in claimant's gait due to the cast and the knee surgery rather than the impact of falling (Ex. 1, pp. 23-33, 42-44 & 51) . An injury to a scheduled member which, because of after-effects (or compensatory change), creates impairment to the body as a whole entitles claimant to industrial disability. Barton v. Nevada Poultry Co., 253 Iowa 285, 110 N.W.2d 660 (1961). Dailey v. Pooley Lumber Co., 233 Iowa 758, 10 N.W.2d 569 (1943). An injury is the producing cause; the disability, however, is the result, and it is the result which is compensated. Barton, 253 Iowa 285, 110 N.W.2d 660 (1961); Dailey, 233 Iowa 0 N.W.2d 569 (1943). For an injury resulting from trauma to a scheduled member to be compensated industrially the claimant must prove that physical injury, derangement, change or impairment exists within the body at a place other than the scheduled member and that the condition VEACH V. INTERNATIONAL PIZZA Page 6 that extends beyond the scheduled member was caused by the injury to the scheduled member. Lauhoff Grain v. McIntosh, 395 N.W.2d 834 (Iowa 1986); Kellogg v. Shute and Lewis Coal Co., 256 Iowa 1257, 130 N.W.2d 667 (1964). There is no expert medical testimony in the record which conflicts with or disputes the opinions expressed by Dr. Jardon. Accordingly, Dr. Jardon's opinions are accepted as correct. It is therefore found that the change in claimant's gait resulting from the treatment performed upon her knee, in particular the wearing of a cast for extended periods and use of crutches, was a substantial factor in producing a herniated lumbar disc. It is concluded that the herniated lumbar disc, and resulting disability, was proximately caused by the injury of May 12, 1985. In making the finding of a causal connection it is recognized that Dr. Jardon had initially indicated that the back condition was not related to the fall of May 12, 1985 but his more recent expression, as summarized in exhibit 5, is believed to be a more accurate indication of Dr. Jardon's actual opinion since it is consistent with the opinions expressed in the depositions taken October 6, 1986. Claimant's entitlement to compensation for healing period is in dispute. At the present time claimant remains under medical care, albeit minimal, under the direction of Dr. Jardon. The purpose of the continuing care is to strengthen claimant's left leg through physical therapy. Dr. Jardon has indicated that some improvement in claimant's left leg may still be forthcoming (Ex. 1, pp. 6-8), that six to nine months is a normal amount of time for maximum medical improvement to occur but that claimant's VEACH V. INTERNATIONAL PIZZA Page 7 has been slower than normal (Ex. 1, pp. 20 & 21) but that if the knee does improve with further therapy the disability will probably stay about the same (Ex. 1, p. 19). Dr. Jardon felt that the healing period had not ended on November 18, 1985 (Ex. 6 and Ex. 27-A-16). On January 8, 1986, Dr. O'Neil indicated that claimant was still recovering from back surgery and would require extensive rehabilitation (Ex. 4). On March 17, 1986, Dr. Jardon indicated that claimant still had a good deal to gain through physical therapy but that she was not cooperating (Ex. 27-A, p. 17A). Claimant had not been released from his care and he indicated that if she refused to attend the pain clinic and do physical therapy, it would be counter productive to her gaining maximal improvement (Ex. 3). The other physicians have given no indication of when the healing period ended. The record reflects that claimant's current problem is a lack of strength in her quadriceps. The same condition was noted on several occasions prior to the 1985 injury. The statements from Dr. Jardon seem to indicate that while further improvement in the knee is possible the amount of change expected will probably not be great. It appears that the amount of change will be dependant upon claimant's own motivation. Where no improvement is anticipated, no healing period benefits are payable. Armstrong Tire & Rubber Co. v. Kubli, Iowa App., 312 N.W.2d 60 (Iowa 1981). It has been held that it is at the point at which disability can be determined that the disability award can be made and that until such time healing period benefits are indicated. Thomas v. William Knudson & Son, Inc., 349 N.W.2d 124 (Iowa App. 1984). Dr. Jardon rated claimant's disability on July 1, 1986 (Ex. 2 & 27-A-18). There is no indication in the record that claimant has made any change in the extent of the disability of her left leg since July, 1986 and Dr. Jardon does not expect it to be reduced. It is therefore found that claimant's recovery reached the point that it was medically indicated that further significant improvement from the injury was not anticipated on July 1, 1986. Claimant's entitlement to compensation for healing period under the provisions of section 85.34(l) commences May 12, 1985 and runs through July 1, 1986. If claimant has an impairment to the body as a whole, an industrial disability has been sustained. Industrial disability was defined in Diederich v. Tri-City Railway Co., 219 Iowa 587, 593, 258 N.W. 899, 902 (1935) as follows: "It is therefore plain that the legislature intended the term 'disability' to mean 'industrial disability' or loss of earning capacity and not a mere 'functional disability' to be computed in the terms of percentages of the total physical and mental ability of a normal man.' Functional impairment is an element to be considered in determining industrial disability which is the reduction of earning capacity, but consideration must also be given to the injured employee's age, education, qualifications, experience and inability to engage in employment for which he is fitted. Olson, 255 Iowa 1112, 1121, 125 N.w.2d 251, 257 (1963). Dr. Jardon rated claimant as having a 10 percent permanent impairment of her body as a whole due to the laminectomy and a 24 percent impairment of the body as a whole when considering both the back and leg (Ex. 2, Ex. 27-A-18, Ex. 1, p. 33). Dr. Miller VEACH V. INTERNATIONAL PIZZA Page 8 agreed with the 24 percent body as a whole rating (Ex. 30). Dr. O'Neil gave no impairment ratings. He did state, however, that claimant would not be capable of work which required any significant amount of standing, stooping, lifting, bending or stair climbing (Ex. 4). With regard to physical restrictions, Dr. Jardon indicated that claimant should avoid climbing stairs, kneeling, crouching and similar activities. He stated that ideally she should have a job which would permit her to sit for a period of time but that would also permit standing and walking for short periods. He indicated that she could perform light work that was semi-sendentary in nature. He indicated that the limitations were essentially the same as what claimant should have practiced prior to May 12, 1985 but that adherence to the limitations was even more critical now (Ex. 1, pp. 35-37). In 1982, Dr. Miller had indicated that claimant should be retrained to perform sitting-type work where walking on her feet would be kept to a minimum. He recommended against carrying heavy objects (Ex. 17, pp. 13 & 14). He indicated that he would make the same recommendations currently (Ex. 17, p. 42). The recommendations from the three physicians are not inconsistent and are accepted as correct. The 24 percent physical impairment rating of the body as a whole indicated by Drs. Jardon and Miller is accepted as correct. Of that rating, however, only the 10 percent attributable to the back injury is found to have been proximately caused by the May 12, 1985 injury. The video tape, exhibit 20, seems to indicate that the claimant's knee represents the greater portion of her physical impairment. The video tape shows her performing activities of bending at the waist to the ground and lifting objects from the ground with her legs in a straight position. This is not inconsistent with claimant's testimony as she did indicate the ability to perform such activities. She also indicated, however, that a day when she performs such activities was usually followed by one or more days of extreme discomfort and lack of activity. The surveillance reported in the video tape and exhibit 20A indicates that the bending and lifting activities were performed on July 1, 1986. The next day surveillance was performed appears to have been July 14, 1986. Claimant is a high school graduate and has completed approximately three years of college level education. Her return to, gainful employment will most likely need to be in a job that is primarily sitting and requires little in the way of stair climbing, lifting, carrying or physical agility. From her testimony it appears that she can be a good student when she so desires. It is found that she does have the ability to perform adequately in obtaining further education. Claimant's entire work history, however, except for the switchboard operator job, appears to have involved a great deal of standing or walking. She has lost the ability to perform that type of work but, for all practical matters, she had lost that ability prior to May 12, 1985. The Pizza Hut job was clearly contrary to her abilities and an injury of the type which occurred on May 12, 1985 was likely if she engaged in the type of work she performed at Pizza Hut. The limitations regarding claimant's back have arisen since May 12, 1985 but they are not substantially different from the limitations that are applicable to her knee and preexisted May 12, 1985. Claimant's wage and earnings history has been in jobs VEACH V. INTERNATIONAL PIZZA Page 9 that paid at or only slightly above the minimum wage level. Claimant appears to have the ability to enter the secretarial field which should provide her employment at an earning level not substantially different from that she has previously experienced. If she should choose to complete her college education she can probably expect an earning level well above what she has previously experienced. Claimant has, nevertheless, lost access to a number of positions in the job market. When all applicable factors are considered, it is found that she has sustained a 20 percent loss of earning capacity as a result of the injury of May 12, 1985. It is concluded that claimant's disability that resulted from the May 12, 1985 injury, when evaluated industrially, is a 20 percent permanent partial disability under the provisions of section 85.34(2)(u). Claimant's rate of compensation is in issue. The statement, exhibit 34, submitted by the employer shows her to have earned $1,237.63 during the weeks ending February 27, 1985 through May 22, 1985. Reference to a calendar shows the pay periods to have ended on Wednesdays. Since claimant was paid by the hour her compensation rate should be based on section 85.36(6) or (7) or (10). Since the workers' compensation act is to be interpreted liberally to the benefit of the employee, the method which provides the highest rate of compensation should be utilized. Under section 85.36(6), the 13 weeks used to determine the rate are the "13 consecutive calendar weeks" immediate proceeding the injury. This would exclude from use the weeks ending May 15 and May 22, 1985. The record is unclear with regard to the time when claimant actually commenced employment. The record shows it to have been in February but no specific date is given. The pay in the amount of $20.50 for the two weeks ending May 27, 1985 is not consistent with the two week earnings for the other completed pay periods. It indicates that claimant was not employed and working during the full two weeks. It indicates that she was probably not employed and working during even one full week of those two weeks. It is found that the earnings of $20.50 indicate that claimant had just started and had not worked a full week prior to February 27, 1985. Accordingly, those weeks are excluded from determining her rate of compensation. Claimant's rate should be computed under section 85.36(7). There is no record of what other employees earned. The only reasonable assumption is to assume that claimant's earnings during the 10 full weeks that she was employed, when averaged, will provide an indication of the amount she would have earned had she been so employed by the employer for the full 13 weeks immediately proceeding the injury and had worked when work was available. The gross earnings during the 10 week period are $1,131.45 for an average of $113.14. At the stipulated status of married with three exemptions the rate of compensation is therefore $82.37 per week. Claimant testified that she received tips that were not reported to the employer and that were not reported for purposes of income taxes. There is no concise evidence in the record of what those tips might have been. Accordingly, the nature of the tips is too speculative to be used as a basis for determining the rate of compensation. The employer's statement regarding claimant's earnings is consistent with the W-2 Form shown in exhibit 33, claimant's 1985 income tax return. The tax return shows no income from tips other than reported on the W-2 Form. VEACH V. INTERNATIONAL PIZZA Page 10 Claimant's tax return was prepared and presumably signed by her under penalty of perjury, the same as applies to her testimony at hearing. Income tax returns carry a further potential penalty for tax fraud if the person fails to report income. These additional factors make it inappropriate to use any alleged tip income in determining the rate of compensation. Claimant seeks benefits under section 85.27. In the prehearing report she listed eight expenses which she was seeking to recover. In the deposition of Dr. Jardon additional expenses for his fees in the amount of $2,504.00 appear to be unpaid. Prior findings in this decision have found both the knee and and back condition to have been injuries which were proximately caused by the fall of May 12, 1985. Accordingly, all the treatment for claimant's knee and back that has been accomplished is found to have been proximately caused by the injury. The treatment that has been employed was provided by an orthopedic specialist and the fact that it was performed is an indication that the specialist felt that the treatment was reasonable and necessary. Dr. Jardon opined that his own fees in the amount of $2,504.00 for the knee and laminectomy were fair and reasonable (Ex. 1, p. 53). Dr. Jardon had recommended that claimant obtain the use of a TENS unit (Ex. 1, p. 25). He recommended that she have assistance for her housework commencing on May 30, 1985 (Ex. 9). The bill from Dr. Jardon in the amount of $2,504.00 is found to be an expense of treatment that was reasonable, necessary and proximately caused by the injury of May 12, 1985. The amount of the bill is found to be fair and reasonable. Since claimant did not list it as one of the itemized expenses for which she is seeking payment, it is assumed that the bill has previously been paid by the employer. It is, under the terms of this ruling, the responsibility of the employer. With regard to all the claimed medical expenses it was stipulated that the record should reflect that the provider of the services would testify that the fees charged were reasonable and that the services provided were reasonable and necessary treatment of the alleged work injury and that defendants would not be offering any evidence to the contrary. Exhibit 29(A) is a bill from Jennie Edmundson Hospital incurred September 2, 1986 in the total amount of $43.00. It appears to have been incurred for a Cybex evaluation and physical therapy. Dr. Miller directed claimant to Jennie Edmundson Hospital on that occasion (Ex. 30). Accordingly, recovery is granted. Exhibit 29(B) is charges from Surgical Suppliers of Omaha, Inc., in the amount of $652.33. Exhibits, and all sub-exhibits, show the charges to have been incurred for rental of a TENS unit and adhesive patches. Such was recommended by Dr. Jardon in exhibit 1 at page 25 and is the responsibility of the employer. Exhibit 29(C) is charges from the University of Nebraska Hospital in the amount of $6,846.36. From the bill it appears that Blue Cross/ Blue Shield paid $6,349.06, that a discount in VEACH V. INTERNATIONAL PIZZA Page 11 the amount of $60.50 was allowed to Blue Cross, and that the remaining balance of $436.80 was due from claimant. It is not explained why claimant seeks to recover only $436.80 as set forth in the prehearing report rather than the entire amount of the bill. Such is perceived to be a mathematical error. After allowing the Blue Cross discount the total is $6,785.86. The record shows that claimant received authorized treatment at the University Hospital under the direction of Dr. Jardon. Accordingly, defendants are responsible for payment of the entire amount of the bill in the amount of $6,785.86. Exhibit 29(D) is a statement from Dr. Jardon through Associated Orthopedic Surgeons, P.C., in the amount of $3,800.00. The itemization shows the services to be those which were performed in treatment of the knee and back injuries. Based upon the previous findings and stipulations, defendants are responsible for payment. Exhibit 29(E) is a statement from Clarinda Municipal Hospital in the amount of $112.00. The record shows that claimant was undergoing physical therapy at the hospital as recommended by Dr. Jardon with the apparent knowledge of defendants as shown in exhibit 24. Defendants are therefore responsible for payment. Dr. Jardon recommended household assistance for claimant effective commencing May 30, 1985. Exhibits 29(f) and (g) appear as the cost of that assistance. In view of the stipulations made VEACH V. INTERNATIONAL PIZZA Page 12 regarding reasonableness of charges, defendants are found responsible for payment of $2,713.50 for the services of Cindy Hargin-Fahey and $558.00 for the services of Richard Linfor. The record does not disclose when Dr. Jardon recommended termination of the household assistance. In exhibit 27-H claimant seeks mileage for 1,985 at $.24 per mile. The dates and distances shown appear reasonable and consistent with the medical records. Defendants are therefore found responsible for payment. FINDINGS OF FACT 1. On May 12, 1985, Lori A. Veach was a resident of the State of Iowa, employed by International Pizza at the Pizza Hut in Clarinda as a waitress. 2. Claimant was injured on May 12, 1985 when she fell from shelves while attempting to obtain materials with which to perform her work at the Pizza Hut. 3. Following the injury claimant was medically incapable of performing work in employment substantially similar to that she performed at the time of injury from May 12, 1985 until July 1, 1986 when it was medically indicated that further significant improvement from the injury was not anticipated. 4. The injury directly affected claimant's left knee and affected her back somewhat due to the impact of the fall but more significantly due to the use of a cast and crutches associated with treatment for the injury to the knee. 5. Claimant's testimony is generally accepted as reasonably credible but it is somewhat impaired by her denial of receiving any treatment for her back or back problems subsequent to 1981 when the record showed hospitalization for the same in January, 1983. It is also somewhat impaired by the irreconcilable inconsistency between her testimony of receiving tips and the lack of reporting any income from tips on her income tax return. 6. Claimant is a 32 year old married lady with one dependant child who resides in Clarinda, Iowa with her husband. 7. Claimant is a high school graduate and has completed approximately three years of college work. 8. Claimant's work experience is primarily in the area of waitress and food service work. She has little in the way of clerical skills or skills which currently qualify her for most semi-sedentary or light occupations. 9. In the 10 weeks preceding the week in which she was injured claimant earned $1,131.45, with an average weekly earning of $113.14, an amount found to be fairly representative of what she would have earned during each of the 13 calendar weeks preceding the week of the injury if she had worked whenever work was available. 10. Claimant is of at least average intelligence, VEACH V. INTERNATIONAL PIZZA Page 13 emotionally stable and reasonably motivated to be gainfully employed. 11. Claimant did not return to work with Pizza Hut as it was not medically indicated that she do so. She attempted work in a clerical position which was found to involve an excessive amount of standing. 12. Claimant currently has a functional impairment of approximately 24 percent of the body as a whole of which 10 percent is attributable to the condition of her back and 14 percent attributable to the condition of her left leg. The impairment of the back is a result of the current injury but the impairment of the leg preexisted the current injury. She has a 20 percent loss of earning capacity due to the 1985 injury. 13. The injury which claimant sustained to both her back and leg were in the nature of an aggravation of a preexisting condition. 14. In obtaining treatment for the injuries claimant incurred expenses which were authorized by the employer or an authorized physician in the total amount of $15,132.84, including mileage in the amount of $468.00 based upon 1,985 miles at the rate of $. 24 per mile. CONCLUSIONS OF LAW 1. This agency has jurisdiction of the subject matter of this proceeding and its parties. 2. Claimant sustained injury to her left knee and back on May 12, 1985 which injury arose out of and in the course of her employment with International Pizza doing business as Pizza Hut. 3. Claimant is entitled to recover healing period in accordance with section 85.34(l) in the amount of 59 3/7 weeks running from May 12, 1985 through July 1, 1986. 4. When evaluated industrially claimant's disability is 20 percent permanent partial disability which provides an entitlement under section 85.34(2)(u) of 100 weeks of compensation for permanent partial disability payable commencing July 2, 1986. 5. Claimant's rate of compensation, computed under section 85.36(7) is $82.37 per week. 6. The fall that claimant experienced on May 12, 1985 is a proximate cause of injury to her left knee and to her spine and is a proximate cause of temporary total disability only with regard to the knee but of permanent disability with regard to the spine. ORDER IT IS THEREFORE ORDERED that defendants pay claimant VEACH V. INTERNATIONAL PIZZA Page 14 fifty-nine and three-sevenths (59 3/7) weeks of compensation for healing period at the rate of eighty-two and 37/100 dollars ($82.37) per week commencing May 12, 1985. IT IS FURTHER ORDERED that defendants pay claimant one hundred (100) weeks of compensation for permanent partial disability at the rate of eighty-two and 37/100 dollars ($82.37) per week commencing July 2, 1986. IT IS FURTHER ORDERED that defendants pay all past due amounts in a lump sum together with interest pursuant to section 85.30 at the rate of ten percent (10%) per annum. IT IS FURTHER ORDERED that defendants receive credit against the award for prior payments made in the stipulated amount of seventy-two (72) weeks of benefits being paid at the rate of seventy-four and 67/100 dollars ($74.67) for a total of five thousand three hundred seventy-six and 24/100 dollars ($5,376.24). IT IS FURTHER ORDERED that defendants pay claimant section 85.27 benefits in the total amount of fifteen thousand one hundred thirty-two and 84/100 dollars ($15,132.84). IT IS FURTHER ORDERED that defendants file claim activity reports as requested by this agency pursuant to Division of Industrial Commissioner Rule 343-3.1. Signed and filed this 27th day of April, 1987. MICHAEL G. TRIER DEPUTY INDUSTRIAL COMMISSIONER Copies To: Mr. Sheldon M. Gallner Attorney at Law 803 3rd Ave. P.0. Box 1588 Council Bluffs, Iowa 51502 Mr. Gregory G. Barntsen Attorney at Law 370 Midlands Mall P.O. Box 249 Council Bluffs, Iowa 51502 1402.20; 1402.30 1402.40; 1802; 1803 1803.1; 1806; 2206 Filed April 27, 1987 MICHAEL G. TRIER BEFORE THE IOWA INDUSTRIAL COMMISSIONER _________________________________________________________________ LORI VEACH, Claimant, VS. FILE NO. 796675 INTERNATIONAL PIZZA, A R B I T R A T I 0 N Employer, D E C I S I 0 N and NATIONAL UNION FIRE INS. CO., Insurance Carrier, Defendants. _________________________________________________________________ 1402.20; 1402.30; 1402.40; 1802; 1803; 1803.1; 1806; 2206 Claimant, who had approximately five prior knee surgeries and had been advised to seek employment that was primarily sitting fell while climbing shelves in her job as a waitress. She had an extended period of treatment which involved surgery on the knee, having the knee placed in a cast, and walking with crutches. She developed severe back complaints which were ultimately diagnosed as a herniated disc and surgery was performed. The treating physician, an orthopedic surgeon, related the herniated disc to both the original fall and, more importantly, stress from wearing a cast and using crutches. It was found that the back condition, as well as a knee injury, arose out of and in the course of employment. The knee injury, however, was not found to have produced additional disability over the amount that had preexisted. Even though claimant had some back difficulties prior to the fall, she was found to have a 10 percent impairment to the back due to the fall. Claimant, a high school graduate with three years of college was awarded 20 percent PPD. 5-1803; 3202 Filed November 28, 1990 LARRY P. WALSHIRE before the iowa industrial commissioner ____________________________________________________________ : ROBERT M. SCHOON, : : Claimant, : : vs. : : File Nos. 883508, STYLECRAFT, INC., : 809961 & 796895 : Employer, : A R B I T R A T I O N : and : D E C I S I O N : TRAVELERS INSURANCE COMPANY : and STANDARD FIRE INSURANCE : COMPANY, : : Insurance Carriers, : : and : : SECOND INJURY FUND OF IOWA, : : Defendants. : ___________________________________________________________ 5-1803 Extent of permanent partial disability benefits. 3202 It was held that there is no condition precedent that both of the injuries invoking Fund liability under 85.64 be injuries solely compensable as scheduled under 85.34(2)(a thru t). The Second Injury Fund is not relieved of liability simply because one of the injuries may also extend into the body as a whole. However, the claim against the Fund was denied because claimant failed to show that the combined effect of both industrial disabilities from the first and second injuries was greater than the sum of the industrial disabilities from each injury. In other words, the Fund's liability was apportioned out under the recent supreme court decision in Second Injury Fund v. Braden, Filed July 18, 1990. BEFORE THE IOWA INDUSTRIAL COMMISSIONER JERRY CURRENT, Claimant, vs. File No. 797000 MIDWEST MOVING & STORAGE, A P P E A L Employer, D E C I 5 I O N and COMMERCIAL UNION INSURANCE COMPANY, Insurance Carrier, Defendants. STATEMENT OF THE CASE Defendants appeal and claimant cross-appeals from an arbitration decision awarding 71 3/7 weeks of healing period benefits and permanent partial disability benefits based upon 25 percent industrial disability as a result of a work injury on June 22, 1983. The record on appeal consists of the transcript of the arbitration hearing; claimant's exhibits 1 through 13; and defendants' exhibits A through C. Both parties filed briefs on appeal. ISSUES The issues on appeal are: Whether there is a causal connection between claimant's work injury and a permanent disability; the nature and extent of claimant's disability including length of healing period; and the rate of compensation. REVIEW OF THE EVIDENCE The arbitration decision 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. CURRENT V. MIDWEST MOVING & STORAGE Page 2 ANALYSIS The first issue to be resolved is whether there is a causal connection between claimant's work injury on June 22, 1983 and his alleged permanent disability. John Sinning, M.D., who was claimant's treating physician beginning in 1985, opined that it was probable that claimant's herniated disc at L5-Sl was caused by the claimant's work injury. Dr. Sinning also opined that the condition was permanent and that claimant had an impairment of seven percent of the body as a whole. An office note by Dr. Sinning dated May 9, 1985 indicated that there was no doubt that claimant's condition was related to his accident. Defendants, in arguing that there is no causal connection, rely upon a physical examination of driver form completed by Dr. Beckman. That form was dated April 3, 1984 and indicated a history of no head or spinal injuries. There is no explanation in the record why Dr. Beckman completed the form in the manner he did. Claimant provided the medical opinion by Dr. Sinning that there is a causal connection between his work injury and his permanent impairment. That opinion is uncontroverted by any other opinion in the record. Claimant has proved that the work injury on June 22, 1983 resulted in a permanent disability. The second general issue to be resolved is the nature and extent of claimant's disability. As noted above claimant has a permanent disability as a result of the work injury. Claimant is entitled to healing period benefits during the time when he was not medically capable of returning to substantially similar employment. The parties disagree on both when the healing period started and when it ended. When claimant felt he could no longer continue performing his work he stopped working and sought medical treatment. He first saw Dr. Sinning on April 12, 1985. An office note of Dr. Sinning dated June 19, 1985 indicates that he submitted a disability report to Aetna. Defendants argue that the healing period should not begin until claimant had surgery in December 1985. However, there is no evidence to contradict claimant's testimony that he could no longer stand to work because of the pain from his back condition and the indication by Dr. Sinning that as of June 19, 1985 claimant was unable to work. From that date on claimant was off work and sought treatment from Dr. Sinning which eventually improved his condition. The healing period ends when an employee returns to work, or it is medically indicated that significant improvement is not anticipated, or until the employee is medically capable of returning to substantially similar employment. Claimant has not returned to work as a moving van driver and it appears he is not capable of returning to this type of employment. Previous appeal decisions by this agency have held: CURRENT V. MIDWEST MOVING & STORAGE Page 3 That a person continues to receive medical care does not indicate that the healing period continues. Medical treatment which is maintenance in nature often continues beyond that point when maximum medical recuperation has been accomplished. Medical treatment that anticipates improvement does not necessarily extend healing period particularly when the treatment does not in fact improve the condition. Stevens v. Ideal Ready MiX Co., Inc., Volume I, No. 4, Iowa Industrial Commissioner Decisions 1082, 1087 (1985) and Derochie v. City of Sioux CitY, II Iowa Industrial Commissioner Report 112, 114 (1982). The Iowa Court of Appeals has stated: "It is only at the point at which a disability can be determined that the disability award can be made. Until such time, healing benefits are awarded the injured worker." Thomas v. William Knudson & Son, Inc., 349 N.W.2d 124, 126 (Iowa App. 1984). The healing period in this case ends at the point at which claimant's disability can be determined. Claimant's disability could be determined when Dr. Sinning, the treating physician, gave claimant an impairment rating and placed restrictions upon claimant. Dr. Sinning's report dated October 31, 1986 indicated the impairment rating and the restrictions. The healing period ended on October 31, 1986. It is also necessary to determine claimant's industrial disability. On appeal defendants argue that the deputy's determination of 25 percent industrial disability is too high. Claimant counters on cross-appeal by arguing that it is too low. In discussing this issue the deputy wrote: Claimant has not been able to return to his prior occupation of truck driver! He has seven percent impairment rating and significant lifting restrictions. When the foregoing are considered in light of claimants limited education and limited academic skills, it of disability. The record provides little guidance as to claimant's occupational activities since he ceased driving the truck. The absence of any showing with regard to attempts to obtain employment or what employment has been obtained makes assessment of the degree of disability more difficult. Nevertheless, the record clearly shows a loss of access to 21% of the jobs which claimant was formerly capable of performing. It shows lifting and activity restrictions which limit him to work with exertion requirements which are classified as no more than medium. Claimant is no longer qualified for many truck driver positions which, according to exhibits B and C, pay wages which average in the range of $12.50 per hour. When all the applicable factors of industrial disability are CURRENT V. MIDWEST MOVING & STORAGE Page 4 considered, it is found and concluded that Jerry Current has a 25% permanent partial disability in industrial terms as a result of the June 22, 1983 injury. When all factors are considered, including claimant's age of 31 at the time of the hearing, the deputy correctly concluded that claimant has an industrial disability of 25 percent as a result of the June 22, 1983 injury. The final issue to be resolved is the rate of compensation. A previous appeal decision by this agency stated: The issue of appropriate rate of compensation for owner/operator truck drivers is an issue that has perplexed decision makers in this agency as well as courts from other jurisdictions. A recent appeal decision by this agency offers guidance in resolving the issue. In Dale A. Christensen v. Hagen, Inc., File No. 643433, March 26, 1985, it was determined that the method of determining the appropriate weekly earnings of independent truck operators was to divide by three the net revenue of their truck. It was also determined that the fuel surcharge was not included in the net revenue of the truck and the average weekly salary of the husband and wife as co-drivers was equal. The general method used in Christensen will also be used in the instant case. Because of the facts of the instant case certain modifications in making the calculation of the weekly earnings is appropriate to arrive at the revenue generated from the operation of the truck and to arrive at the decedent's weekly earnings. The revenue generated from the operation of the truck will be referred to as the revenue of the truck and will be the basis for calculating the rate in this case. Tuttle v. The Mickow Corporation, Appeal Decision, December 20, 1988. The Tuttle decision also discussed that a method of determining rate based upon what might be described as net income or profit of operation such as the deputy attempted to use in the instant case should not be used because it could result in absurd or impractical results. The determination of claimant's rate of compensation should, in this case, like Tuttle, use the revenue of the truck in the thirteen weeks preceding claimant's injury. One-third of the revenue of the truck is claimant's gross weekly earnings. Claimant was paid by this output and pursuant to Iowa Code section 85.36(6) the thirteen week period prior to the injury should be used in determining the basis of compensation. In the time period April 26, 1983 through June 23, 1983 claimant's revenue from the truck was $16,353.39. See Claimant's Exhibit 13. (There is no evidence in the record to indicate that the adjustments CURRENT V. MIDWEST MOVING & STORAGE Page 5 made in Tuttle need be made in this case to arrive at revenue of the truck.) One-third of the revenue of the truck represents claimant's gross weekly earnings for the thirteen weeks preceding his injury. Claimant's gross weekly earnings is $419.32 (1/3 of [($6,551.64 + $2,455.23 + $3,288.39 + $4,058.13) divided by 13]. Claimant is married and entitled to two exemptions for purposes of determining rate of compensation. FINDINGS OF FACT 1. Claimant was born on December 16, 1955 and was married and was 31 years old at the time of the arbitration hearing. 2. Claimant was injured on June 22, 1983 while unloading cement blocks in his job as a moving van driver. 3. Following the injury, claimant continued to work but experienced pain and discomfort. 4. On June 19, 1985 claimant became medically incapable of performing his job as a moving van driver. 5. Claimant's herniated disc at L5-Sl was caused by the work injury on June 22, 1983. 6. Claimant's back condition caused by the work injury is permanent and claimant has an impairment of seven percent of the body as a whole. Claimant has lifting restrictions of lifting up to 25 pounds and occasionally lifting 75 pounds. 7. Claimant has not returned to work as a moving van driver. 8. Claimant's disability could be determined on October 31, 1986. 9. Claimant has limited education and limited academic skills. 10. It is unclear what claimant's occupational activities have been since he ceased driving his truck. 11. Claimant has had a loss of access to 21 percent of the jobs which claimant was capable Of performing prior to the work injury of June 22, 1983. 12. Claimant has an industrial disability of 25 percent as a result of the injury on June 22, 1983. 13. Claimant's gross weekly earnings was $419.32 and his corresponding rate of compensation is $255.23. CURRENT V. MIDWEST MOVING & STORAGE Page 6 CONCLUSIONS OF LAW Claimant has proved by the greater weight of evidence that there is a causal connection between his work injury of June 22, 1983 and his permanent disability. Claimant has proved by the greater weight of evidence that he is 25 percent permanently partially disabled as a result of his work injury on June 22, 1983. Claimant has proved by the greater weight of evidence that his healing period began on June 19, 1985 and ended October 31, 1986. Claimant has proved by the greater weight of evidence that his rate of compensation is $255.23. WHEREFORE, the decision of the deputy is affirmed and modified. ORDER THEREFORE, it is ordered: That defendants pay claimant seventy-one and three-sevenths (71 3/7) weeks of compensation for healing period at the rate of two hundred fifty-five and 23/100 dollars ($255.23) per week payable commencing June 19, 1985. That defendants pay claimant one hundred twenty-five (125) weeks of compensation for permanent partial disability at the rate of two hundred fifty-five and 23/100 dollars ($255.23) per week payable commencing November 1, 1986. That defendants pay all past due amounts in a lump sum together with interest pursuant to section 85.30 from the date each payment came due. That defendants pay claimant the sum of seven thousand five hundred seventy-six and 49/100 dollars ($7,576.49) under the provisions of section 85.27 of the Code. That the costs of the arbitration proceeding is assessed against defendants and the costs of the appeal including the costs of the transcription of the hearing proceeding is to be divided equally. That defendants file claim activity reports as requested by this agency pursuant to Division of Industrial Services Rule 343-3.1. CURRENT V. MIDWEST MOVING & STORAGE Page 7 Signed and filed this 31th day of January, 1989. DAVID E. LINQUIST INDUSTRIAL COMMISSIONER BEFORE THE IOWA INDUSTRIAL COMMISSIONER MICHAEL LINDSAY, Claimant, VS. File No. 797014 CYCLE COUNTRY, A R B I T R A T I 0 N Employer, D E C I S I 0 N and UNITED FIRE & CASUALTY COMPANY, Insurance Carrier, Defendants. INTRODUCTION This is a proceeding in arbitration brought by Michael Lindsay, claimant, against Cycle Country, employer, and United Fire & Casualty Company, insurance carrier, for benefits as a result of an alleged injury when claimant picked up a Yamaha motor fork head on or about November 1, 1984. The case was heard before the undersigned deputy industrial commissioner at Storm Lake, Iowa, on June 24, 1987, and was fully submitted at the close of the hearing. The record in the proceeding consists of testimony from Michael Lindsay, Jerry Lindsay, Charles B. Carignan, Jr., M.D., Janice Danbom, Pat Feuerhelm, Michael James Fritz and Dick Gibson; depositions from Michael Lindsay, John J. Dougherty, M.D., Harry W. Hargett, D.C., Daniel G. MacRandall, M.D., and Darwin W. Hoover, D.C.; claimant's exhibits 1 through 68; and, defendants' exhibits A through N. ISSUES AND STIPULATIONS The parties stipulated to the following matters: That an employer-employee relationship existed between claimant and the employer at the time of the above alleged injuries; That the type of permanent disability, in the event of a finding of permanent disability for the alleged picking up of a piece of equipment on or about November 1, 1984, is partial disability to the body as a whole; and, That claimant's rate of compensation, in the event of an award, is $104.00. LINDSAY V. CYCLE COUNTRY Page 2 The issues presented for determination at the time of the hearing were as follows: Whether claimant sustained an injury on or about November 1, 1984 Whether the alleged injury of November 1, 1984 is the cause of any temporary or permanent disability; Whether claimant is entitled to temporary disability benefits during a period of recovery for the alleged injury of November 1, 1984; Whether claimant is entitled to any permanent disability benefits for the alleged injury of November 1, 1984; and, Whether claimant is entitled to payment for medical charges and bills as set forth in Iowa Code section 85.27. SUMMARY OF EVIDENCE The following is only a brief summary of pertinent evidence. All evidence received at the hearing was considered when deciding the case even though it may not necessarily be referred to in this decision. The summarization of evidence submitted by defendants is substantially correct and is incorporated herein with a few modifications. Michael Lindsay is 28 years of age and currently resides in Worthington, Minnesota. He was raised in Spirit Lake and went to school in Arnolds Park. His first job was as an employee for the City of Arnolds Park in the street department where he did heavy labor. Claimant has worked for his brother, Jerry E. Lindsay, as a dock builder. He went to work for Morton Buildings in 1968 and worked for Morton Buildings for about three years. While there, he was hit in the head by a steel beam and suffered serious, permanent injury. Claimant went to work for Cycle Country in January of 1984. He worked a short period of time, was laid off and then was recalled. On November 1, 1984, while lifting a box, claimant reported he twisted and his back went out. At that time, he went to Harry W. Hargett, D.C., a chiropractor. Eventually claimant LINDSAY V. CYCLE COUNTRY Page 3 was referred to the Orthopedic Clinic in Sioux Falls, South Dakota, where he saw Daniel G. MacRandall, M.D. He did not miss any work at Cycle Country because of the incident of November 1, 1984. He worked up until the time he was laid off, because of the seasonal business of Cycle Country, on February 1, 1985. He was operated on in September of 1985 when a disc and some scar tissue were removed. As a result of the operation, claimant's lifting was restricted to 45 pounds. Since then, although doctors say he can work, claimant has been unable to hold down any type of employment. He currently is receiving rehabilitation and general assistance from the state of Minnesota. Claimant has completed his GED. He has seen Paul D. Anderson, D.O., a psychiatrist, in Spencer. Claimant filed his petition in July of 1985. He admitted at the hearing that he had problems with his back prior to his work at Cycle Country. In his deposition and to Dr. MacRandall, he had denied prior back problems. On cross examination, claimant did admit that he had seen Darwin W. Hoover, D.C., for a long time. He had in fact seen him over 50 times for a series of problems and had numerous visits within four months of the time the alleged incident took place as evidenced by Dr. Hoover's records, exhibit A. Claimant further admitted he was hurt while working for Lindsay Dock Service and did file workers' compensation claims against his brother. Claimant admitted he told Dr. MacRandall he had no previous problems with his back, which was not true. Charles B. Carignan, Jr., M.D., testified that he is a certified family practitioner. The first time he saw claimant in regard to this injury was in July of 1985, at Attorney Wilcke's request. As a result of the examination on July 20, 1985, Dr. Carignan wrote a report (claimant's exhibit F). At the time of this examination, Dr. Carignan stated on the last page: In addition, the small areas of numbness to pinwheel prick and light touch sensation found on the posterior right thigh does not correspond to Mr. Lindsay's complaints which he described in a rather vague and ill-described way. As a result I feel that most, if not all, of Mr. Lindsay's problems are of a psychosomatic nature which, while they cause impairment, are difficult to evaluate and to treat. At this time Dr. Carignan gave claimant a rating of 10% permanent impairment to the body as a whole which was the same functional impairment which he had received as a result of his settlement with Morton Buildings (defendants' exhibit H). Dr. Carignan said he does a significant amount of workers' compensation work for Mr. Wilcke. He further admitted he is not an orthopaedic surgeon. As a result of the operation, Dr. Carignan increased his disability rating to 20% of the whole man. Dr. Carignan did admit that a portion of this disability rating is the result of his previous injury sustained at Morton Buildings. Dr. Carignan said claimant was able to work after the November 1, 1984 incident up until the time he was laid off in LINDSAY V. CYCLE COUNTRY Page 4 February of 1985. He further admitted there was a CT scan and an EMG performed by Dr. MacRandall almost seven months after the incident, both of which were normal. Dr. Carignan testified that claimant did work as a dishwasher in the summer of 1985 and mowed yards. He did admit that something could have happened that summer which could have caused him to have this operation. Dr. Carignan stated that claimant's current weight restriction would be 45 pounds. Jerry Lindsay, who is claimant's brother, testified that claimant had worked for him intermittently. Jerry Lindsay stated that claimant had filed several workers' compensation claims against him and that he had been injured while working for him. He stated that his brother had a serious head injury while working for Morton Buildings which left claimant with headaches, memory and psychological problems. He stated that he hired him when he was unemployed and that claimant performed heavy labor. Jan Danbom testified that she was the personnel manager for Cycle Country. She stated that claimant was not a particularly good worker and that he missed a number of hours of work. He did not, however, miss any more hours after the accident than he did before. He never brought any statement from a doctor indicating he should have light-duty work. He was let go in February because of a general layoff by the company due to the cyclical nature of the products they make, which had nothing to do with the November, 1984 incident. The only times claimant worked for Cycle Country were January 6, 1984 through January 27, 1984 and August 17, 1984 through February 1, 1985. The box which he was lifting at the time was not 70 pounds, as he testified, but rather weighed 39 pounds. Ms. Danbom stated claimant did not appear unusual at the time of the alleged injury or afterwards. Pat Feuerhelm, Vice President of Cycle Country, testified that the box that was being lifted at the time was only 39 pounds, not 70 pounds. Mr. Feuerhelm stated that nothing appeared to be different about the work habits of claimant after as opposed to before the incident. The witness stated claimant went back to regular work and never did light-duty work. Mr. Feuerhelm testified that claimant was not the best employee. Dr. MacRandall testified by deposition, exhibit N. He is an orthopaedic surgeon in Sioux Falls, South Dakota. He first saw claimant on February 1, 1985. His physical exam was fairly normal at that time. Claimant had a good range of motion in his back, good strength in his legs and good sensation. It was felt that claimant had a lumbosacral strain (deposition, page 5, lines 8-12). Claimant gave the doctor a history on February 1, 1985, that he had never had any difficulty with his back prior to his present ailment (deposition page 6, lines 14-25). The doctor diagnosed the problem as lumbosacral strain based upon the history given to him by the patient of no prior problems and the fact that his physical exam did not show anything to suggest any main problem (deposition page 8, lines 7-12). The patient was seen February 15, 1985 and was feeling better at that time (deposition page 8, lines 20-23). He was next seen on March 22, 1985 and was continuing to feel better. At that time claimant was discharged by Dr. MacRandall and was free to go back to work (deposition pages 10 and 11). LINDSAY V. CYCLE COUNTRY Page 5 Claimant returned on April 11, 1985. He stated he had been shoveling snow when he felt a stabbing sensation in his leg and came in because of the sticking type pain in his left anterior groin. That type of pain means either a new injury or an aggravation of an old injury (deposition page 11, lines 15-25). The diagnosis as a result of the snow scooping incident again was musculoskeletal strain (deposition pages 12 and 13). Claimant returned May 9, 1985, reported that he was feeling better and was discharged at that time (deposition pages 13 and 14). He was seen a month later on June 7, 1985. He exhibited, for the first time, numbness over the outer area of his left leg and other signs of a L5/Sl radiculopathy (deposition pages 14 and 15). Because of his continual complaints a CT scan and EMG were performed. Both were interpreted as normal (deposition page 15, lines 1-11). Claimant exhibited no evidence of a herniated disc and was released on June 20, 1985 to go back to work (deposition pages 17 and 18). Claimant returned on July 12, 1985 and stated he had been working with his mower when he noted a pull in his back (deposition page 19, lines 2-18). He exhibited sciatic notch tenderness for the first time. Claimant then was informed that he could go back to work with a lifting restriction of no more than 20 to 30 pounds (deposition page 21, lines 4-8). Claimant returned August 23, 1985 and again on September 16, 1985 with increased complaints. He was hospitalized and the myelogram and CT scan performed at that time showed a large central disc, both to the right and to the left (deposition page 25, lines 1-5). It was decided to operate (deposition page 26, lines 18-22). Claimant had an L5/Sl hemilaminectomy and a disc excision of his Sl nerve root (deposition page 27). Claimant had a normal recovery until November 21, 1985 when he came to the hospital with abdominal pain. He was hospitalized and consulted a psychiatrist for his anxiety. Dr. Hoverstein was concerned about kidney stones (deposition page 33, lines 7-21). Dr. MacRandall gave claimant a permanent partial disability rating of 10% (deposition page 35, lines 12-25). The doctor gave claimant a lifting restriction of no more than 40 pounds (deposition page 38, lines 1-8). Dr. MacRandall felt, based upon the history he had obtained from claimant of no previous injuries to the back, that the incident in November of 1984 was probably the instigating incident. The doctor went on to say that, if there had been prior incidents of minor back problems and treatments by chiropractors or other medical facilities, this would probably change his opinion. Dr. MacRandall clearly qualified that his opinion was based on the history he obtained from claimant on February 1, 1985, that he had no prior history of back problems (deposition page 44, lines 22-25; page 45, lines 1-2). Dr. MacRandall stated that claimant had had a lot of injuries and it would be difficult to say exactly which one caused the disc to finally rupture (deposition page 28, lines 17-25). Dr. MacRandall, based upon claimant's current condition, LINDSAY V. CYCLE COUNTRY Page 6 gave him a 40-pound weight restriction (deposition page 48, lines 9-10). Dr. MacRandall testified that claimant reached maximum physical recovery on April 4, 1986 (deposition page 53, lines 20-21). Dr. MacRandall stated that the abdominal pain claimant had was the result of constipation or bowel obstruction (deposition page 55, lines 11-16). Dr. MacRandall concluded his deposition by again reiterating that his opinion was based upon the history obtained that there were no prior back problems or history associated with claimant. The doctor stated that, if he had a history of prior problems, he would have doubt as to when the precipitating incident occurred (deposition page 59, lines 16-19). Harry W. Hargett, D.C., testified by deposition, exhibit L. When claimant came to him, he contended that he had had no prior back problems. Dr. Hargett treated him for muscle spasms. Dr. Hargett is a chiropractor who treated the individual with manipulations. It is interesting to note on the questionnaire of Dr. Hargett filled out by claimant that he indicated he had never had low back problems, pain between the shoulders, neck problems or arm problems. As shown on exhibit A, claimant had been treating with Dr. Hoover since 1975. Since that date, he had seen him on over 50 occasions. The most recent occasion began June 15, 1984, approximately four months before the alleged incident in November of 1984 at Cycle Country. At that time, Dr. Hoover stated in his notes that claimant had stepped into a hole which severely injured his lower back. It was diagnosed as a severe sprain of the lumbosacral area and resulted in claimant having 12 chiropractic treatments. Darwin W. Hoover, D.C., testified via deposition, exhibit M. Claimant was first seen in May, 1975, when he had an accident while installing dock planks when he slipped and fell (deposition page 4, lines 6-12). Claimant was next seen in January of 1977 for minor problems. He was seen on May 17, 1978 for mid-thoracic strain (deposition page 7, lines 18-20). Claimant was seen May 7-18, 1979 for a lumbar strain and sprain and misaligned vertebrae from an injury sustained while working for Morton Buildings. Claimant was seen again in September of 1979 when he was injured while wheeling a cart onto a trailer bed which was slick with dew. The cart slipped and injured claimant between the shoulder blades. He was treated 10 times in September and once in October for that injury (deposition page 11, lines 1-6). Claimant was seen on March 3, 6 and 11 in 1980 for an injury sustained when he was lifting gutter onto a trailer, twisted and injured the sacral area (deposition page 12, lines 1-9). Claimant was next seen on October 23 and 27 of 1980 for a catch in the middle of the back which occurred while working for Morton Buildings (deposition page 12, lines 23-25; page 13, lines 1-4). He was seen again December 15, 1980 for a misaligned 5th thoracic vertebrae. This again was a workers' compensation matter (deposition page 13, lines 18-21). It was the result of a rafter table injury. After this injury, Dr. Hoover discussed proper ways to lift straight forward and so forth with claimant (deposition page 15, LINDSAY V. CYCLE COUNTRY Page 7 lines 3-8). Claimant was next seen in April of 1981 when it was reported there was a lumbar involvement or stiffness in the back (deposition page 16, lines 16-25). Workers' compensation paid for the treatment, which was a lower back problem. Dr. Hoover saw claimant on June 15, 1984. Claimant was carrying a long plank when he turned. The plank hit a tree which threw him off balance and he stepped into a hole which severely injured his lower back. Claimant had a severe sprain of the lumbosacral area (deposition page 1, lines 1-12). This was paid for by the workers' compensation carrier. Dr. Hoover stated he saw claimant more frequently than other patients. Dr. Hoover's notes indicated that, in 1975, there was right leg pain for one week which radiated down the back to the knees. Dr. Hoover was not consulted and did not treat claimant in regard to the time he was struck by a steel beam in 1980. John J. Dougherty, M.D., testified via deposition, exhibit K. Dr. Dougherty is an orthopaedic surgeon in Sioux City, Iowa. He first examined claimant on October 17, 1985. He did not come to any conclusion from that examination as it was only three weeks post hemilaminectomy and claimant could not be doing any work. Dr. Dougherty subsequently reexamined claimant on September 19, 1986. The doctor had the benefit of reviewing Dr. MacRandall's records as well as Dr. Hoover's records showing a multiple history of treatments from 1975 through June of 1984. LINDSAY V. CYCLE COUNTRY Page 8 Dr. Dougherty felt that claimant had a permanent functional impairment as existed at the time of his last examination. The doctor felt he would be limited to lifting 30 to 40 pounds and would give him a functional disability rating of 10% of the body as a whole (deposition page 17, lines 11-15). Dr. Dougherty did not think you could relate one single incident on one single day in November of 1984 to the problem. Dr. Dougherty felt claimant had had multiple problems with his back and, after the incident in November of 1984, he was able to return to work and was able to continue to work (deposition page 18, lines 1-8). Claimant terminated his employment and did not do so because of his back problems. Claimant was getting along fine and apparently had a little flare up in June. Dr. MacRandall did a CT scan and EMG, both of which were interpreted as normal (deposition page 18, lines 18-24). The record shows that he worked as a dishwasher and also mowed yards and had some problems with a mower. Dr. Dougherty felt it was impossible to single out one incident as the cause of claimant's problems (deposition page 19, lines 17-18). Dr. Dougherty felt number one, the patient did not have much trauma at the time of the incident and, "Number two, he said his back went out. That's a standard statement of the lay population, my back went out. I don't know what that means." (Deposition page 44, lines 16-22). Dr. Dougherty felt that the snow shoveling incident in April of 1985 could be significant (deposition page 50, lines 8-14). The doctor felt that it was significant that claimant allegedly was injured November 1, 1984 and continued to work for the company until February of 1985 without missing any work because of the alleged injury. If, in fact, he had an injury or back problem, he would have been unable to work (deposition page 50, lines 20-25; page 51, lines 1-5). It was further significant that the CT scan and EMG in June of 1985 were normal, but that, in September, they were positive. Something in the interval -- July, August, September -- must have caused further damage to this individual's back (deposition page 52 and 53). APPLICABLE LAW AND ANALYSIS An employee is entitled to compensation for any and all personal injuries which arise out of and in the course of the employment [Iowa Code section 85.3(l)]. Claimant has the burden of proving, by a preponderance of the evidence, that he received an injury on November 1, 1984 which arose out of and in the course of his employment. McDowell v. Town of Clarksville, 241 N.W.2d 904 (Iowa 1976); Musselman v. Central Telephone Co., 261 Iowa 352, 154 N.W.2d 128 (1967). Claimant has the burden of proving, by a preponderance of the evidence, that the injuries of November 1, 1984 are causally related to the disability on which he now bases his claim. Bodish v. Fischer, Inc., 257 Iowa 516, 133 N.W.2d 867 (1965); Lindahl v. L. 0. Boggs, 236 Iowa 296, 18 N.W.2d 607 (1945). A possibility is insufficient; a probability is necessary. Burt v. John Deere Waterloo Tractor Works, 247 Iowa 691, 73 N.w.2d 732 (1955). The question of causal connection is essentially within LINDSAY V. CYCLE COUNTRY Page 9 the domain of expert testimony. Bradshaw v. Iowa Methodist Hospital, 251 Iowa 275, 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's injury record shows numerous injuries to his back. The history of the treating physician, Dr. MacRandall, was always premised on the fact that the patient did not have a back problem as was reported to Dr. MacRandall during the entire history of his consultations with claimant. The actual history obviously is much different. Claimant's deposition was taken December 3, 1985. He did not tell the truth concerning his medical history when his deposition was taken. When his deposition was taken he claimed the only thing he could do was walk (deposition page 20, lines 15-18). When asked if he had any prior back problems, he stated at page 25, lines 18-22, "I think maybe once before when I worked out at Morton's I had to go, was up here in the top in between my shoulders. I think I did something once. I went to the doctor once and that was about it." And again at page 26, lines 1-6, "But that was years ago. I couldn't tell you it's been so long. I can't remember the doctor's name. As far as back problems before, no I haven't had back problems.O On page 27, lines 1-6, when asked whether he had gone to Dr. Hoover before, claimant stated, "I think I might have when I worked for Morton Building that time then. Q: You don't remember any other times? A: No, just that. That was years ago." That was from an individual who as recently as the summer of 1984 had seen Dr. Hoover 12 times for what Dr. Hoover stated was a serious back injury. Although he filed claims against his brother and had a back injury in the summer of 1984 while working for his brother, when asked during his deposition, "Did you ever have back pains when you worked for your brother?", his answer was, "To my recollection, no.O (Deposition page 27, lines 7-10). Claimant further denied that he told Dr. MacRandall he was out shoveling snow when he felt a stabbing pain against his left leg (deposition page 24, lines 1-8). This is an individual who has had numerous insults to his back over a long period of time. This is an individual who has had psychosomatic problems and may have suffered brain damage in the Morton Building accident with the steel beam. LINDSAY V. CYCLE COUNTRY Page 10 The record is clear that claimant had a long-established problem and, therefore, there is no evidence to show within the realm of reasonable medical certainty that the incident of November 1, 1984 was the precipitating cause of his back problems. The next question which needs to be decided is whether the incident on November 1. 1984 aggravated a preexisting condition. Clearly the evidence shows that claimant did not miss any work as a result of the incident on November 1, 1984. He was able to complete all of his work and was terminated by Cycle Country only because of the seasonal nature of the business and because they no longer needed claimant as an employee. As Dr. Dougherty testified, it is significant that the alleged incident in itself was minor in that claimant was allegedly picking up a piece of equipment which weighed 39 pounds, that he missed no work and that he continued to work for a four-month period without missing any work. It is also significant that Dr. MacRandall discharged him on March 22, 1985 as being OK. He reappeared at Dr. MacRandall's office because of a snow shoveling incident on April 11, 1985. He again was dismissed on May 9, 1985, but reappeared on June 7, 1985 complaining of some additional pain. At that point, a CT scan and EMG were done, both of which were normal. Claimant reappeared on July 12, 1985 as a result of a mower incident. He then was seen several times until September when a myelogram and CT scan were done which showed a bulging disc. Clearly, the evidence indicates that claimant was able to continue to work without apparent difficulty. If he, in fact, did have an aggravation which was caused by the incident while working for Cycle Country, it was minor. Subsequent problems, which either resulted from scooping snow, mowing yards, working as a dishwasher, or some other incident claimant will not disclose, most likely caused claimant's unstable back to go out. Claimant has not met his burden, medical or otherwise, to show that an injury, or aggravation of a prior injury, arose out of and in the course of his employment. What we have in this case is an individual whose testimony is unreliable. Perhaps claimant's shortcomings as an historian are due to the head injury at Morton, perhaps they are not. Whatever the reason, the inconsistencies are of such a magnitude as to render claimant's testimony too unreliable. The evidence clearly shows that the incident at Cycle Country was insignificant when compared to the numerous other problems claimant has had, so insignificant that he continued to work and perform his job for four months, which he was unable to do after all the other previous incidents noted on his record. The only doctor with all of the evidence, Dr. Dougherty, stated that one cannot assess or determine that the minor incident at Cycle Country was the cause of claimant's problem. Dr. MacRandall's opinions cannot be considered due to the fact he continually prefaced all of his opinions based upon the fact that claimant had not had prior back problems which, in fact, was a LINDSAY V. CYCLE COUNTRY Page 11 complete falsehood. The change between the CT scans and other diagnostic tests of June and September, 1985, is strong evidence that some incident occurred which caused the further bulging of the disc which was long after claimant had left his employment at Cycle Country. Clearly, claimant has not met his burden to show that there was any injury or aggravation of a preexisting condition which resulted in a temporary or permanent disability nor is there any permanent condition which resulted from the incident of November 1, 1984. Dr. Dougherty's assessment of this case is accepted as correct. FINDINGS OF FACT 1. Claimant had a significant low back problem which began as early as 1975. 2. Claimant saw Dr. Hoover over 50 times for back problems prior to the incident in question. 3. Claimant worked from November 1, 1984 through February of 1985 without missing any time at work as a result of the alleged injury on November 1, 1984. If he sustained any injury on November 1, 1984, it was a temporary aggravation of a preexisting condition that was so minor as to not produce any disability whatsoever. 4. Claimant was relieved of his job, not because of his injury or the fact he was unable to complete his work, but because of a general layoff due to lack of business of the employer. 5. Claimant was discharged from treatment by Dr. MacRandall on March 22, 1985. 6. Claimant had a snow shoveling incident on April 11, 1985 which resulted in further problems to his back. 7. Claimant was discharged from treatment by Dr. MacRandall on May 9, 1985. 8. A CT scan was performed on June 7, 1985 as well as an EMG, both of which were interpreted as normal. 9. Claimant had a mower incident on July 12, 1985, which resulted in further treatment. 10. A CT scan and myelogram performed in September, 1985 showed a herniated disc and surgery was then performed. 11. There were many and numerous insults to claimant's back over the period of his life. It is impossible to pick out any one specific incident to state that it was a substantial factor in producing the bulging disc and subsequent operation which was performed in September of 1985. 12. Claimant did not substantially aggravate a preexisting condition so as to result in temporary or permanent disability while working for Cycle Country as he at all times was able to perform his job. LINDSAY V. CYCLE COUNTRY Page 12 13. Claimant lost no time from work due to the alleged injury to his back on November 1, 1984. 14. Claimant was not taken off work by a physician as a result of the alleged injury to his back on November 1, 1984. 15. Claimant's testimony is unreliable. He has psychological problems, however, and it cannot be determined whether the unreliability is due to honest mistake as opposed to intentional deceit. CONCLUSIONS OF LAW 1. Claimant did not sustain the burden of proof, by a preponderance of the evidence, that he sustained an injury or aggravation to his back on November 1, 1984. 2. Claimant did not prove, by a preponderance of the evidence, that any injury or aggravation which occurred on November 1, 1984 was a proximate cause of any pain, disability or medical treatment regarding his back, subsequent to February 1, 1985. 3. Claimant did not prove any entitlement to temporary or permanent disability benefits for his alleged back injury. ORDER LINDSAY V. CYCLE COUNTRY Page 13 IT IS THEREFORE ORDERED that claimant take nothing from these proceedings. IT IS FURTHER ORDERED that costs are assessed against claimant pursuant to Division of Industrial Services Rule 343-4.33. Signed and filed this 25th day of January, 1988. MICHAEL G. TRIER DEPUTY INDUSTRIAL COMMISSIONER Copies To: Mr. Ernest W. Wilcke Attorney at Law 826 1/2 Lake Street P.O. Box 455 Spirit Lake, Iowa 51360 Mr. Dick H. Montgomery Attorney at Law Professional Building P.O. Box 7038 Spencer, Iowa 51301 1108, 1402.20, 2206 Filed January 25, 1988 MICHAEL G. TRIER BEFORE THE IOWA INDUSTRIAL COMMISSIONER MICHAEL LINDSAY, Claimant, File No. 797014 VS. A R B I T R A T I 0 N CYCLE COUNTRY, D E C I S I 0 N Employer, and UNITED FIRE & CASUALTY COMPANY, Insurance Carrier, Defendants. 1108, 1402.20, 2206 The evidence clearly showed claimant to have a preexisting condition. He lost no time from work due to the alleged injury. There was strong evidence of subsequent, intervening trauma. Claimant was found to be unreliable. Held for defense due to claimant's failure to prove injury arising out of and in the course of employment. BEFORE THE IOWA INDUSTRIAL COMMISSIONER MATILDA G. FISHER, Claimant, File No. 797015 vs. A R B I T R A T I 0 N AMERICAN FREIGHT SYSTEM, INC., D E C I S I 0 N Employer, Self-Insured Defendant. INTRODUCTION This is a proceeding in arbitration brought by Matilda G. Fisher claimant, surviving spouse of Harold E. Fisher, against American Freight System, Inc., employer and self-insured defendant for benefits for the alleged injury (death) of her husband which occurred on June 20, 1983. A hearing was held on September 22, 1987, at Sioux City, Iowa, and the case was fully submitted at the close of the hearing. The record consists of the testimony of Matilda G. Fisher (claimant), Oscar E. Nilson (co-employee and team driver of claimant's decedent), Kimberley B. Wubben (daughter of claimant), Scott Mier (truck mechanic), Don Fueston (road driver), Howard Jamison (employer's office manager), Henry Arends (former driver and brother-in-law of claimant's decedent), Judith Spilde (employer's workers' compensation manager), Joint Exhibits 1-5.and Claimant's Exhibits A and B. Defendant provided a transcript of the proceedings for the industrial commissioner's file. Both parties submitted excellent briefs. PRELIMINARY MATTERS It was pointed out to defendant's counsel that the date of injury on the petition was alleged to be June 20, 1983, and that the petition was filed on June 5, 1985. Therefore, it was patent from the face of the document itself that the original notice and petition was timely filed. Whereupon, defendant withdrew the issue of whether the action was timely filed under Iowa Code section 85.26. The preliminary report asserted an affirmative defense of Iowa Code section 85.16. It was pointed out to defendant's counsel that this issue did not appear as one of the designated hearing issues on the hearing assignment order. Defendant's counsel then withdrew this issue from consideration in this decision. Defendant's description of disputes, which was presented at the time of the hearing, asserted the defense that there was FISHER V. AMERICAN FREIGHT SYSTEM, INC. PAGE 2 no jurisdiction in Iowa. Claimant's prehearing brief asserted that this issue was not brought up at the prehearing conference and that defendant first raised this issue only four days prior to hearing, and therefore, this issue should be barred as untimely. The issue of jurisdiction was not designated as a hearing issue on the hearing assignment order. Issues not raised at the prehearing conference and designated as hearing issues on the hearing assignment order are waived. Deputies are authorized to determine only those issues designated as hearing issues on the hearing assignment order. Therefore, it is determined that the issue of jurisdiction is waived and it will not be decided as an issue in this case at this time. Presswood v. Iowa Beef Processors, Inc., file no. 735442 (appeal decision November 14, 1986); Rahn v. Siouxland Autobody, file no. 797004, filed October 20, 1987; Pulju v. Iowa Beef Processors, Inc., file nos. 864656 & 814502, filed February 9, 1988. STIPULATIONS The parties stipulated to the following matters at the time of the hearing. That an employer-employee relationship existed between claimant and employer at the time of the alleged injury (death). That the rate of compensation, in the event of an award, is $288.15 per week. That no claim for credit is made for nonoccupational group health plan benefits or workers' compensation benefits paid prior to hearing. That there are no bifurcated claims. ISSUES The parties submitted the following issues for determination at the time of the hearing. Whether claimant's decedent sustained an injury (death) on June 20, 1983, which arose out of and in the course of employment with employer. Whether claimant is entitled to death benefits. Whether claimant is entitled to burial benefits. FISHER V. AMERICAN FREIGHT SYSTEM, INC. PAGE 3 Whether claimant gave timely notice as required by Iowa Code section 85.23. SUMMARY OF THE EVIDENCE All of the evidence was examined and considered. The following is a summary of the evidence most pertinent to this decision. Claimant testified that her deceased husband, Harold E. Fisher, age 55, was employed by employer as an over-the-road truck driver in the perishable division for ten years prior to his death on June 20, 1983. Claimant's decedent lived in Ashton, Iowa. Employer was located in Sioux Falls, South Dakota. Arlan Wiese owned and housed the tractor, which claimant's decedent drove, in his shop in Sioux Falls, South Dakota. Claimant's decedent worked irregular hours. He did have a fixed place of employment in that he normally reported to the shop of Arlan Wiese to pick up the tractor to go to work. After returning from a road trip, he normally reported back to the shop, turned in the tractor and then departed for home from the shop (Transcript pages 21-24, & 40-41). Claimant's decedent was actually employed by employer, American Freight, and was paid by employer, American Freight (Tr. p. 42). Fisher was subject to being on call at all times. A supplement to the union contract with the perishable division reads as follows: Call to work at home base. a. It is the driver's responsibility to keep his owner and dispatchers informed of his whereabouts (home or alternate number) and availability to work. b. If dispatch call is for as soon as possible departure, each driver is required to report for and be ready to work in two hours. (Exhibit 2) There were some times when Fisher received a telephone call at home for a two hour dispatch (Tr. pp. 25 & 39). However, normally he would be notified of his next trip out when he returned to the shop from the previous trip (Tr. pp. 22 & 23). If drivers were called by telephone Arlan Wiese would make the telephone call. When Fisher was to report for work, he would take a change of clothes for a week, personal items, his log book, road maps, rule books and possibly a dispatch slip (Tr. pp. 26 & 32). As lead driver, Fisher did the paper work for the trip. Sometimes he did it at home, but most of the time he did it at the shop (Tr. p. 26). Fisher was a very dutiful employee and never missed any work due to the weather. He scheduled his medical appointments around his work activities (Tr. p. 27). FISHER V. AMERICAN FREIGHT SYSTEM, INC. PAGE 4 On Monday morning, June 20, 1983, Fisher was supposed to report to the Wiese shop at 6 a.m. to take a load of potatoes to Fargo, North Dakota (Tr. p. 28). Fisher found these orders posted on the bulletin board at the shop when he returned from the previous trip on Sunday afternoon, June 19, 1983 (Tr. pp. 28, 48, 61, 67 & 104). Fisher left home at Ashton, Iowa, for Sioux Falls, South Dakota, at,4:30 a.m. on Monday June 20, 1983 (Tr. p. 28). Claimant received a telephone call at her home from Scott Mier, a mechanic at the shop, at 5:30 a.m. Mier asked if Fisher had left for work. Claimant told Mier that Fisher had left at 4:30 a.m. and should be there shortly (Tr. p. 29). At 6:30 a.m., Mier called again and said that Fisher had not reported in yet. Claimant became uncomfortable because it was raining very hard with a lot of thunder and lightening. She got in her car and drove along the route her husband took to go to Sioux Falls. She found his car on the edge of the road but he was.not in it. Two other gentlemen and a farmer who lived nearby told her that there had been a severe thunderstorm and that a lot of water went through that road where the pickup was standing. The Civil Defense came from George, Iowa, and her son took her home (Tr. pp. 29-31). At approximately 8:30 a.m., the sheriff notified her that her husband's body had been found about a mile from the site where his pickup was located. Then her children came home. American Freight and Arlan Wiese were notified of Fisher's death. Claimant believed that both, Arlan Wiese and Howard Jamison, employer's office manager, came to her home that day as did many of the drivers (Tr. p. 32). Claimant's decedent normally reported to Jamison as his immediate supervisor (Tr. p. 34). The investigating officer's report of the incident reads as follows: Due to heavy rains and flooding over roadway, it appears as though vehicle was westbound on A34 and entered an area of roadway that was flooded. Vehicle entered north ditch and stopped at opening of culvert that runs under roadway. It appears as though victim went through windshield and was swept through culvert southbound with fast moving water. Victim was recovered approximately 3/4 mile down stream of accident scene. He died as a result of the accident. (Ex. 3) The certificate of death shows that the immediate cause of death was drowning as a consequence of a motor vehicle accident (Ex. 4). The cost of the funeral was $3,697.24 (Ex. A). The cost of the monument was $1,307.08 (Ex. B). Claimant believed that the log book was lost in the accident. Fisher customarily drove his own pickup truck between his home in Ashton, Iowa, and the Wiese shop in Sioux Falls, South Dakota (Tr. p. 37). This pickup truck is the vehicle that he was FISHER V. AMERICAN FREIGHT SYSTEM, INC. PAGE 5 using when he died (Tr. p. 38). Fisher was not required by employer to take any particular route between Ashton and Sioux Falls. Employer exercised no control over the route from home to work (Tr. p. 45). The accident occurred on a county blacktop road which was the shortest route between Ashton and Sioux Falls. The accident occurred approximately 15 miles west of Ashton and 45 miles east of Sioux Falls (Tr. p. 46). Claimant testified that Fisher was not paid any compensation and he was not reimbursed for any travel expenses for the trip from his home to the shop (Tr. pp. 38, 39 & 42). Claimant testified that Fisher did work on his log book when he was home but there was no requirement that he do it at any particular place (Tr. p. 38). Claimant said her husband's pay began when he started driving the truck either at the shop of Arlan Wiese or at the location of American Freight in Sioux Falls (Tr. pp. 42 & 43). Claimant admitted that she never told Jamison that she intended to make a workers' compensation claim but rather saw.her attorney instead (Tr. p. 41). Oscar E. Nilson testified that he had been employed by employer for approximately five years. He had driven with Fisher for approximately one and one-half years. Fisher had been designated the senior driver or first driver, while witness had been designated as the second driver. The first driver makes out the paper work, takes care of the expenses and obtains the dispatch. Nilson confirmed that they worked irregular hours. He clarified that home base in the union contract meant the home of the tractor which was the Arlan Wiese shop in Sioux Falls, Dakota. American Freight would give the dispatch to the owner of the tractor and the owner of the tractor would dispatch the driver and equipment. Usually the drivers were paid by the mile and the mileage began immediately upon leaving the shop. If a driver is called to work, and no work was available, the driver was paid by the hour, but not until 12 hours had elapsed. Arlan Wiese notified the witness of Fisher's death around noon on June 20, 1983 (Tr. pp. 49 -63). Nilson testified that employer never exercised any control over the route he took to or from work and did not pay him during this period of time and did not reimburse him his travel expenses for this trip. He testified that he and Fisher logged the travel time from home to the shop as off duty time (Tr. pp. 63 & 64). The expense money for the road trips are not intended to cover the drivers' expenses between home and the shop (Tr. p. 69). The expenses for a road trip were usually turned in-after a trip was completed. Sometimes Fisher did the paper work at home. He did not know for sure, but he thought that Fisher took the expenses from the last trip home with him to fill out the form (Tr. p. 71) and Fisher would have turned them in the next morning (Tr. pp. 71 & 72). Kimberley Ann Wubben, claimant's daughter, testified that she was 17 years old at the time of Fisher's death. After that she finished her senior year of high school, worked a year, then attended college for six months and got married on August 16, 1986 (Tr. pp. 76-79). Scott Mier testified that he is a truck mechanic for Arlan Wiese. Wiese has 12 trucks that he leases to American Freight. FISHER V. AMERICAN FREIGHT SYSTEM, INC. PAGE 6 Mier notified Fisher when he returned on June 19, 1983, that he had a new dispatch the following day on June 20, 1983. When Fisher did not show up by 5:30 a.m., he called Mrs. Fisher. He then told Nilson to cover this dispatch (Tr. pp. 80-85). Donald Fueston testified that he has been a truck driver with employer for ten years. Earlier he had worked on the same truck with Fisher. He said that drivers log nondriving time, sleeping time and stop time as off duty time. Witness learned of Fisher's death at the shop about noon on June 20, 1983, from Arlan Wiese. The witness testified that he has never been paid for driving from home to the shop. The witness stated that pay begins when you start driving a truck (Tr. pp. 85-91). Howard Jamison testified that he is the office manager for employer. He is the direct supervisor of the drivers. He has been doing this job for 15 years. He is directly involved with late deliveries, problems on the road and accidents. Jamison said he was notified of the death of Fisher in the afternoon on June 20, 1983, by Arlan Wiese (Tr. pp. 91-97). Jamison said that he knew that Fisher had left home and was coming to work and was supposed to be there at 6 a.m. (Tr. pp. 97-99). If a driver was to work and no load was available, then the driver would be paid an hourly wage after the tenth hour of waiting pursuant to the agreement in effect at that time (Tr. pp. 98 & 99). A driver's duty for employer begins when he gets in the tractor and the driver is paid on a mileage basis. When the wheels start turning, that's when a driver's pay starts (Tr. p. 101). Pay ends when the driver returns to home base which is the domicile of the tractor at the Wiese shop (Tr. p. 102). Employer does not attempt to control how a driver gets to and from the shop and his home (Tr. pp. 102 & 103). Drivers are not paid for driving between home and work (Tr. p. 107). The witness did not know of any business Fisher would have been doing for the employer at the time of the accident (Tr. p. 103). Henry Arends testified that he formerly worked for employer for 31 years as a road driver. He is also Fisher's brother-in-law and knows his work habits. He described the duties of a first driver generally. He said he might have carried employer's credit cards also. (Tr. pp. 108-114). Judith Spilde testified that she has been the workers' compensation claim manager for employer for 15 years. She testified that a driver begins his employment when he gets into the truck. She testified that employer exercises no control over where drivers live or how they get to work. Drivers are not paid travel expense from home to work and employer exercises no control over the route they take to work (Tr. pp. 114-118). APPLICABLE LAW AND ANALYSIS An employee is entitled to compensation for any and all personal injuries which arise out of and in the course of the employment. Section 85.3(l). Claimant has the burden of proving by a preponderance of the evidence that he received an injury on June 20, 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 FISHER V. AMERICAN FREIGHT SYSTEM, INC. PAGE 7 Telephone Co., 261 Iowa 352, 154 N.W.2d 128 (1967). The injury must both arise out of and be in the course of the employment. Crowe v. DeSoto Consol. Sch. Dist., 246 Iowa 402, 68 N.W.2d 63 (1955) and cases cited at pp. 405-406 of the Iowa Report. See also Sister Mary Benedict v. St. Mary's Corp., 255 Iowa 847, 124 N.W.2d 548 (1963) and Hansen v. State of Iowa, 249 Iowa 1147, 91 N.W.2d 555 (1958). The words "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 v. DeSoto Consol. Sch. Dist., 246 Iowa 402, 68 N.W.2d 63 (1955). Iowa Code section 85.61(6) defines personal injury arising out of and in the course of employment as follows: The words "personal injury arising out of and in the course of the employment" shall include injuries to employees whose services are being performed on, in, or about the premises which are occupied, used, or controlled by the employer, and also injuries to those who are engaged elsewhere in places where their employer's business requires their presence and subjects them to dangers incident to the business. The question in this case is whether Fisher was engaged elsewhere in a place where his employer's business required him to be present and subjected him to dangers incident to the business. Claimant correctly contends that the workers' compensation law is to be interpreted broadly and liberally in favor of the injured worker and his dependants in furtherance of its humanitarian objectives. Barton v. Nevada Poultry Co., 253 Iowa 285, 289, 110 N.W.2d 660, 662 (1961); Lauhoff Grain v. McIntosh, 395 N.W.2d 834, 839 (Iowa 1986); Bertrand v. Sioux City Grain Exchange, 419 N.W.2d 402 (Iowa 1988). Nevertheless, the Supreme Court is bound by the requirements of statute and enforces those requirements in accordance with facts. Halstead v. Johnson's Texaco, 264 N.W.2d 757, 759, 760 (1978). It is the law which receives a liberal construction and not the facts in a given case. Lawyer and Higgs, Iowa Workers' Compensation--Law and Practice, section 1-3, p. 3. The general rule is that employment commences when the employee reaches the premises where actual work begins and it ceases when he leaves. Otto v. Independent Sch. Dist., 237 Iowa 991, 994, 23 N.W.2d 915, 916 (1946). The courts have adopted the "going and coming rule" which provides that hazards encountered by an employee in going to and returning from work are not ordinarily considered to be arising "in the course of employment." Bulman v. Sanitary Farm Dairies, 247 Iowa 488, 73 N.W.2d 27 (1955). Therefore, while going to and coming from work the employee is not where his employer's business requires him to be within the context of Iowa Code section 85.61(6). Otto, 237 Iowa 991, 993, 23 N.W. 2nd 915, 916. Larson expresses the rule in his own formal terminology as follows: FISHER V. AMERICAN FREIGHT SYSTEM, INC. PAGE 8 As to employees having fixed hours and place of work, injuries occurring on the premises while they are going to and from work before or after working hours or at lunchtime are compensable, but if the injury occurs off the premises, it is not compensable, subject to several exceptions. Underlying some of these exceptions is the principle that course of employment should extend to any injury which occurred at a point where the employee was within range of dangers associated with the employment. (Larson, Workmen's Compensation Law, section 15.00, p. 4-3) Both Larson and Iowa acknowledge exceptions to the going and coming rule. These exceptions are (1) employees sent on special errands; (2) employees who are on call; (3) employees who are paid compensation or expenses while traveling to and from work and (4) employees who are performing a dual-purpose in traveling to and from work. Larson, section 16.04, page 4-123. Lawyer and Higgs, Iowa WorkerOs Compensation---Law and Practice, sections 6-12, 6-13 and pp. 53-56. In this case claimant has failed to sustain the burden of proof by a preponderance of the evidence that Fisher sustained an injury in the course of his employment for the reason that the evidence established that Fisher was going to work at the time of his death off premises and the facts of the case do not bring forth any evidence which placed him within any of the exceptions to the going and coming rule. FISHER V. AMERICAN FREIGHT SYSTEM, INC. PAGE 9 Claimant testified that her husband left home at 4 a.m. or 4:30 a.m. (variously) on June 20, 1983, to report to work at 6 a.m. She testified that he received a normal dispatch on the bulletin board when he returned from his previous trip on the afternoon of June 19, 1983. Nilson, the second driver, confirmed that Fisher was notified of this trip at the shop when he returned from the previous trip. Even though Fisher was on call at all times, this was a normal dispatch posted on the bulletin board and Fisher did not receive a special call by telephone to report for work within two hours. Fisher apparently encountered a flooded road approximately 15 miles after leaving home and approximately 45 miles before arriving at Sioux Falls, South Dakota. His body was found approximately one mile down stream from his pickup truck. The cause of death was shown as drowning as a consequence of a motor vehicle accident. Clearly, Fisher was going to work but had not yet arrived at work. Claimant testified that her husband's pay began when he started driving the truck for employer. Nilson said that pay began immediately upon leaving the shop. Fueston said pay begins when you start driving the truck. Jamison said a driver's pay begins when he gets in the tractor. He is paid on a mileage basis. When the wheels start turning, that's when a driver's pay begins. Pay ends when the driver returns the truck to the home base of the tractor. Spilde said employment begins when the driver gets in the truck. Nilson, Jamison and Spilde all testified that employer does not control or attempt to control how drivers get to and from work. These same three witnesses verified that employer paid no compensation or travel expenses while commuting to and from work. Nilson said that drivers log the trip from home to work as off duty time. From the foregoing evidence, it is determined that Fisher was not in the course of his employment at the time of his death because the weight of the evidence discloses that Fisher was simply going to work at the time of his accidental death. Claimant did not sustain the burden of proof by a preponderance of the evidence that Fisher qualifies for any of the exceptions to the going and coming rule. There was absolutely no evidence that Fisher was performing any special errand, special duty, special mission, special request, special agreement or special instruction from employer. Pribyl v. Standard Electric Co., 246 Iowa 333, 339, 340, 67 N.W.2d 438, 442, 443 (1954). Larson further adds the following distinction between inside and outside employees: Occasionally the line between employees having fixed employment time and premises and those not having them is itself a matter of controversy. Some outside and traveling workers have an identifiable point in time and space where their employment actually commences. If they are required to check in at a certain place in the morning, the journey to that place in the morning is not within the course of employment ... FISHER V. AMERICAN FREIGHT SYSTEM, INC. PAGE 10 (Larson, section 16.02, pp. 4-118, 4-119 and 4-121) Since Fisher was required to report into the shop of Arlan Wiese before each trip, the journey to his shop then is not within the course of employment. More particularly, Larson described a situation where an employee has a fixed place of employment but does not have fixed hours of work. If the employee has a fixed place of work but not fixed hours of work, the special errand rule discussed in this section would ordinarily not apply merely because the work is being done at night, as in the case of a sales manager preparing a customer list and driving home after midnight. Since the only special service that might be held forth here was one of an unusual time of work, and since in this job there was no usual time of work there was nothing for the principle in this section to take hold of. (Larson, section 16-04, p. 4-123). Claimant and Nilson verified that Fisher worked irregular hours, but that he did report into and out of the Arlan Wiese shop for all of his trips. Therefore, since there was no usual time of work is is not possible to say the special errand exception can apply to this case. Pursuant to the labor agreement, Fisher was on call at all times. However, normally he was notified of his next dispatch when he returned to the shop from the previous dispatch. Claimant and Mier confirmed that this was not an "on call" dispatch within two hours, but rather it was a normal dispatch posted on the bulletin board. Larson describes the effect of being subject to call as follows: The circumstance that the employee is "subject to call" should not be given any independent importance in the narrow field of going to and from work; the important questions are whether the employee was in fact on an errand pursuant to call, and what kind of an errand it was. (Larson, section 16.16, p. 4-163) In this case claimant's decedent was subject to being on call but had not received a special call and therefore, his journey to work on this occasion was not in the course of employment. The testimony of claimant, Nilson, Feuston, Jamison and Spilde all verify that claimant's decedent was not paid any compensation or any travel expenses for the journey to and from work. Therefore, claimant cannot qualify her decedent's trip under the employer furnished transportation exception to the coming and going rule. Pribyl, 246 Iowa 333, 67 N.W.2d 438; Davis v. Bjorenson, 229 Iowa 7 293 N.W. 829 (1940); Scharf v. Hewitt Masonry, Thirty-second Biennial Report of the Industrial Commissioner 96 (App. dec. 1975); Anderson v. Henkel Construction Co., II Iowa Industrial Commissioner Report 9 (app. dec. 1982). FISHER V. AMERICAN FREIGHT SYSTEM, INC. PAGE 11 The evidence raises two inferences that a dual-purpose might exist. An examination of this evidence is as follows: Claimant testified that Fisher was carrying his log book, maps, rule books and personal belongings at the time of his death. Nilson said Fisher may have taken home the expense sheets from the previous trip to fill out and complete at home. Arends suggested that Fisher may have been carrying company credit cards. Larson addresses this evidence as follows: The mere fact that claimant is, while going to work, also carrying with him some of the paraphernalia of his employment does not, in itself, convert the trip into a part of the employment. (Larson, Section 18.24, p. 4-287) Therefore, it cannot be said that simply carrying these few items would place claimant's decedent in the course of his employment. Furthermore, Nilson's testimony about the expense sheets and Arends' testimony about the credit cards was only speculative. Nilson said that most of the paperwork was done at the shop. There was no evidence it was required to be performed at home. Claimant did say that Fisher worked on his log books at home sometimes. However, this was established to be a personal responsibility of the driver rather than an obligation of the employer. if in fact that claimant did fill out and complete the expense sheets at home, it would appear to be a matter of his own choice rather than an obligation imposed by employer. Larson comments as follows about work done at home for employees convenience. If work is done at home for the employee's convenience, the going and coming trip is not a business trip within the dual-purpose rule, since serving the employee's own convenience in selecting an off-premises place in which to do the work is a personal and not a business purpose. (Larson, section 18.33, P. 4-316) Fisher was not required to use his personal pickup truck in the business of employer. Therefore, it cannot be said that the journey to work was in itself in the course of employment for the reason that he was required to bring his vehicle to the job. Davis, 229, Iowa 7 293 N.W. 829 (1940); Larson, section 17.50, p. 4-239; First National Bank v. Medical Assoc. Clinic, file no. 756244 (app. dec. September 29, 1987). In conclusion then, claimant introduced no evidence to support the dual-purpose exception to the going and coming rule. Golay v. Keister Lumber Company, 175 N.W.2d 385 (1970); Pohler v. T.W. Snow Constr. Co., 239 Iowa 1018, 1023, 33 N.W.2d 416, 419 (1948); Larson, section 18.00, p. 4-251. In summary, claimant did not sustain the burden of proof by a preponderance of the evidence that her decedent comes within FISHER V. AMERICAN FREIGHT SYSTEM, INC. PAGE 12 any of the exceptions to the going and coming rule. Since claimant did not prove an injury arising out of and in the course of employment, it is not necessary to discuss whether claimant gave proper notice pursuant to Iowa Code section 85-23. Lack of notice is an affirmative defense. DeLong v. Highway Commission, 229 Iowa 700 295 N.W. 9 (1940). Unless and until, claimant establishes an injury arising out of and in the course of employment, it is not necessary for defendant to go forward with the evidence and prove an affirmative defense. Reddick v. Grand Union Tea Co., 230 Iowa 108, 296 N.W. 800 (1941). FINDINGS OF FACT Based upon the evidence presented the following findings of fact are made. That claimant's decedent lived in Ashton, Iowa. That claimant's decedent was employed for employer who was located in Sioux Falls, South Dakota. That claimant's decedent actually began work by reporting to the shop of the owner of the tractor in Sioux Falls, South Dakota. That claimant's decedent died as a result of an accident which occurred 15 miles after leaving home for work and 45 miles before arriving at work in Sioux Falls, South Dakota. That claimant's decedent was going to work at the time of his death by drowning as a consequence of an automobile accident. That claimantOs decedent had irregular hours but did have a fixed place of employment. That claimant's decedent was not (1) performing a special errand; (2) responding to a "call" to come to work within two hours; (3) not paid compensation or expenses for the trip to work and (4) was not performing any dual service for the benefit of the employer at the time of his death. CONCLUSIONS OF LAW THEREFORE, based upon the evidence presented and the principles of law previously discussed the following conclusions of law are made. That claimant did not sustain the burden of proof by a preponderance of the evidence that her deceased husband sustained an injury arising out of and in the course of his employment with employer. That claimant did not sustain the burden of proof by a preponderance of the evidence that her deceased husband qualifies for any of the exceptions of the going and coming rule. That claimant is not entitled to burial expenses or workers' compensation weekly benefits. FISHER V. AMERICAN FREIGHT SYSTEM, INC. PAGE 13 ORDER THEREFORE, IT IS ORDERED: That no amounts are due from defendants to claimant. That the costs of this action are taxed against claimant who is the nonprevailing party in this action pursuant to Division of Industrial Services Rule 343-4.33. That defendants file claim activity reports as requested by this agency pursuant to Division of Industrial Services Rule 343-3.1. Signed and filed this 26th day of September, 1988. WALTER R. McMANUS, JR. DEPUTY INDUSTRIAL COMMISSIONER Copies to: Mr. Richard Zito Mr. Harold Dawson Attorneys-at-Law 315 9th St. Sibley, IA 52349 Mr. W.C. Hoffmann Attorney-at-Law 1000 Des Moines Bldg Des Moines, Iowa 50309 1101, 1102, 1104, 1107, 1108.50 1402.3, 1403.3, 2401, 2801, 2802, 2803 Filed September 26, 1988 WALTER R. McMANUS, JR. BEFORE THE IOWA INDUSTRIAL COMMISSIONER MATILDA G. FISHER, Claimant, File No. 797015 vs. A R B I T R A T I 0 N AMERICAN FREIGHT SYSTEM, INC., D E C I S I 0 N Employer, Self-Insured Defendant. 1101, 1102, 1104, 1107, 1108.50, 1402.30, 1403.30 Claimant's decedent encountered flood waters on his way to work in his own pickup truck and died from drowning as the result of a motor vehicle accident. It was held that claimant did not sustain the burden of proof by a preponderance of the evidence that the injury arose out of and in the course employment. Claimant was excluded from the benefits of the Act by the going and coming rule. Several exceptions to the going and coming rule were considered and discussed but claimant failed to sustain the burden of proof by a preponderance of the evidence that she qualified for any of the exceptions to the rule. 2401, 2801, 2802, 2803 Since claimant did not prove injury arising out of and in the course of employment it was not necessary to determine whether claimant gave proper notice pursuant to Iowa code section 85.23. BEFORE THE IOWA INDUSTRIAL COMMISSIONER CLIFFORD F. MUILENBURG, Claimant, File No. 797018 VS. A P P E A L JOHN MORRELL & COMPANY, D E C I S I 0 N Employer, Self-insured, Defendant. STATEMENT OF THE CASE Claimant appeals from an arbitration decision awarding claimant permanent partial disability benefits of 18.375 weeks for occupational hearing loss and entitling claimant to one-third the cost of a hearing aid. The record on appeal consists of the transcript of the arbitration hearing; claimant's exhibits 1 through 9; and defendantOs exhibits A and B. Both parties filed briefs on appeal. ISSUE The issue on appeal is whether the deputy correctly attributes one-third of claimantOs hearing loss to work for defendant. REVIEW OF THE EVIDENCE The arbitration decision adequately and accurately reflects the pertinent evidence and it will not be totally reiterated herein. On December 4, 1956, claimant entered the U.S. Army. While in the army, he was in an artillery unit and he was around 105 Howitzers and 4.2 mortars when they were fired. He was honorably discharged with no hearing impairment disability on December 3, 1958. He farmed from 1958 to 1967 during which time he operated farm equipment. Claimant started working for defendant on September 11, 1967. Prior to his employment with defendant, claimant was given a pre-employment physical. The results of that physical, which apparently used a whisper test, are unclear. Claimant testified that his hearing was normal at that time. His wife and a coworker also testified that his hearing was normal at that time. Claimant testified that he held various jobs at defendant. He first worked about six weeks on the kill floor. He then MUILENBURG V. JOHN MORRELL & COMPANY Page 2 worked as a tender in the beef plant for three years which was the only time he did not work in the pork plant. He began working on the loading dock in 1970 where he worked for 12 years. While working on the loading dock, he worked in the freezer, making boxes and loading trucks. The time he spent inside the truck while loading the truck varied from ten minutes to two and one-half hours at a time. Claimant and two of his coworkers described the work on the loading dock as noisy and they indicated that conversation in the area was not possible because of the noise. Claimant stated that the noise level of the different aspects of the loading dock job varied from quite noisy to little noise. A coworker of claimant stated that the cooling units on the trucks were not operated during cooler weather from November to March and that he was not sure but that about 50 percent of the time was spent inside the trucks on the loading dock job. The claimant stated that the plant was shut down for 15 months in 1983-1984. He next worked on the cut floor trimming loins for four to five months. After that he worked night cleanup for seven months. He last worked at the plant on April 27, 1985. In the 1970's, claimant realized he had a hearing loss and obtained a hearing aid in 1978. Dennis L. Howrey, the personnel/labor relations manager of John MorrellOs Sioux City, Iowa plant, testified that he formerly worked in the same capacity at the Estherville plant where claimant worked. He conducted a noise level survey in February 1982 at the pork plant. A noise survey was done at the pork plant by the Chicago office of defendant in 1984. Howrey testified the following: Q. Now, Denny, you were here to hear the testimony of Mr. Muilenburg. And I'd ask you to look at Exhibits 4, and that's Claimant's Exhibit No. 4, and Exhibit Number A, those two exhibits. And just go through and I guess MUILENBURG V. JOHN MORRELL & COMPANY Page 3 as best you're able to sort of tell me if possible by looking at those what the noise levels were at the various places that he worked. I believe the first place that he worked was he worked six weeks on the kill floor on day clean up. Would there be any figures on there that would correspond to areas where he might be working? A. If it was what they call the janitor's job on the kill, you go from one end of the kill to the other. So could be in any of those areas. Q. So that would be beginning at the time he began working for, Morrell which would have been in about 1967, I believe. After that he said he worked three years in the cooler. Where he worked as a tenderer. Would there be anything in there that would be corresponding to that? A. No. I believe that was in the beef plant. Q. That's. Then he worked ten years on the loading dock. And because of the insignificant noise levels you never did any studies on the loading dock; is that right? A. No. I never did. And also the noise survey that was done by Mr. Howe excludes the loading dock also. Q. Now you indicate the last year and a half he worked about half of that time, I believe, trimming loins and the other half as night clean up? A. Yes. Okay. The loin trimming area would be --let's see. On DefendantOs Exhibit A under pork cut upper level where it states saddle conveyor, loin trimming, the decibel reading there was 84 decibels. When I did my survey in 1982 I got a range of -- at that time of a low of 86 decibels to a high of 89 decibels. Q. Now, were any studies to the best of your knowledge done in regard to night clean up? A. No. Q. Why haven't any studies been done in regard to night clean up? A. The reason that I did not do anything on night clean up was, as I said before, in 1982 when you go into the area you can pretty well tell by the sound and the noise that's going on if it's even close to an 85 decibel. And also in the OSHA inspection that was done by the State Department and night clean up -- I might add in the plant that I'm at right now we have basically the same type of equipment you have the ham ax saw, the shoulder ax saw, the Jones saws, the Wizzard knives, the scribe saws and everything. The MUILENBURG V. JOHN MORRELL & COMPANY Page 4 equipment is basically the same. And Ray Weidemeier (sp), who spearheaded this OSHA team that came in, did do some noise levels on the clean up in the plant that we have in Sioux City. And he didn't do anything further than the initial sound level readings to see if it was approaching the 85 decibel area. Q. Was it? A. No. ... Q. So you have no personal knowledge of the noise problem existing in that plant from 1967 to 1978; is that correct? A. No. I have no knowledge of that. Q. So you do not know in that period of time what the noise level would have been on the loading dock or in the refers or on the kill floor or on the second floor or whatever? A. No. I wouldn't have any idea. (Transcript, pages 79-81, 84) Claimant was examined by R. David Nelson, Audiologist, in 1978, 1980, and 1983. The initial exam showed hearing loss. There was a mild decrease in hearing sensitivity from the initial examination to the last test date. C. B. Carignan, M.D., took a history and examined claimant in September 1985. Dr. Carignan opined that claimant's hearing loss was due to exposure to loud noise during the time he worked for defendant. The doctor was unaware of claimantOs military experience when he gave that opinion but he was aware that claimant had farmed for ten years. The doctor stated that claimant's binaural hearing impairment is 35.3 percent. The doctor testified that there was no change in claimantOs hearing from March 7, 1983 to August 26, 1985. Daniel L. Jorgensen, M.D., whose specialty is otolaryngology, examined claimant in 1985. The doctor was aware of claimant's military, farming, and work experience. He reviewed the audiogram. He opined that claimant's hearing loss was not a direct result of work for defendant but that the work can contribute to the loss. He further opined that the military experience would probably, be more significant. He observed that claimant had a significant history of noise exposure from the military, from the farm, and perhaps also from work at defendant. The doctor stated that claimant's binaural hearing loss is 31.5 percent. APPLICABLE LAW Iowa Code chapter 85B provides benefits for occupational hearing loss. Iowa Code section 85B.4 (1985) provides: MUILENBURG V. JOHN MORRELL & COMPANY Page 5 1. "Occupational hearing loss" means a permanent sensorineural loss of hearing in one or both ears in excess of twenty-five decibels it measures from international standards organization or American national standards institute zero reference level, which arises out of and in the course of employment caused by prolonged exposure to excessive noise, levels. In the evaluation of occupational hearing loss, only the hearing levels at the frequencies of five hundred, one thousand, two thousand, and three thousand Hertz shall be considered. 2. "Excessive noise level" means sound capable of producing occupational hearing loss. Iowa Code section 85B.5 (1985) provides that an excessive noise level is sound which exceeds duration and sound levels given in a table in that section. Excessive noise levels are those which are capable of producing occupational hearing loss. The table in section 85B.5 lists levels and durations which, if met, will be presumptively excessive noise levels requiring the employer to inform the employee of the existence of such levels. It is not a minimum exposure level necessary to establish excessive noise levels. Noise levels less than those in the tables may produce an occupational hearing loss. Muscatine County v. Morrison, 409 N.W.2d 685 (Iowa 1987). ANALYSIS If a claimant proves that he was exposed to a noise level for a duration specified in section 85B.5, he has established the presumption that his hearing loss is an occupational hearing loss. Claimant clearly has not established this presumption. Neither of the noise level studies were done in a work area when he was working in that area. He worked on the kill floor in 1967 for six weeks but the noise studies were not done until 1982 and 1964. He worked on the loading dock for 12 years and apparently worked there until the plant was closed for 15 months in 1983 and 1984. It can be concluded from claimant's testimony that claimant worked on the loading dock approximately from October 1970 to December 1982, on the cut floor approximately from, April 1984 to September 1984, and on the cleanup approximately from October 1984 to April 1985 when he was last employed by defendant. Dr. Carignan testified that there was no change in claimant's hearing between tests given on March 7, 1983 and August 26, 1985. Also, claimant testified that he noticed a loss of hearing in the 1970's. The job that claimant performed that coincided with the identification of the hearing loss was the work on the loading dock. As Dennis Howrey testified, the noise level studies do not include the loading dock area. In addition, the duration of claimantOs exposure to noise levels cannot be determined because, for example, he testified that he would be inside trucks for periods of time ranging from ten minutes to two and one-half hours. It is impossible to tell whether the longer or shorter durations may have occurred in the summer when the MUILENBURG V. JOHN MORRELL & COMPANY Page 6 refrigeration units on the trucks were operating or in the winter when they were not. Claimant could prevail if he proved a hearing loss which was the resuit of exposure to excessive noise at a level less than specified in the tables. There is no objective evidence to determine the noise level on the loading dock or to determine the duration of claimant's exposure to the noise. It was claimantOs opinion and his coworkers' opinion that the area in which claimant worked was noisy. However, it was Howrey's opinion and apparently Howe's opinion that the noise level on the loading dock was not high enough to include that area in either of their noise level surveys. Dr. Carignan opined that claimantOs hearing loss was due to loud noise during the time he worked for defendant but he was unaware of claimant's military experience when he gave that opinion. Dr. Jorgensen opined that claimantOs military experience would probably be more significant. Claimant has not proved by the, greater weight of evidence that his hearing loss is the resuit of exposure to excessive noise while working. There is no noise level study indicating the noise level and duration of exposure and claimant has a history of exposure to noise. The deputy erred in concluding that one-third or claimantOs hearing loss was attributable to his work with defendant. FINDINGS OF FACT 1. Claimant is 48 years of age. 2. Claimant worked on a ranch after finishing the twelfth grade. 3. Claimant joined the U.S. Army on December 4, 1956 and was honorably discharged on December 3, 1958. 4. In the U.S. Army claimant was trained to use artillery, specifically, 105 Howitzers and 4.2 mortars. 5. Due to the loud noise encountered by claimant in the army, he used cotton in his ears in an unsuccessful attempt to protect them from excessively loud noise. 6. After discharge from the army, claimant farmed from 1958 through 1967 and was exposed to excessively loud noise. 7. Claimant started work for defendant in 1967 at the Estherville, Iowa plant and worked at a number of jobs in Estherville until the operation was shut down in April 1985. 8. Claimant had a physical examination when he started work for defendant, which may or may not have included a whisper test and/or audiogram, to test claimantOs hearing; the examining doctor may have relied on claimant's oral representation that his hearing was "normal." 9. Claimant did not sustain hearing loss while working for defendant. MUILENBURG V. JOHN MORRELL & COMPANY Page 7 10. Claimant's binaural hearing loss in 1985 was 31.5. CONCLUSION OF LAW Claimant has not established by a preponderance of the evidence that he sustained occupational hearing loss while working for defendant. WHEREFORE, the decision of the deputy is reversed. ORDER THEREFORE, it is ordered: That claimant take nothing from these proceedings. That defendant pay the costs of the arbitration proceeding pursuant to Division of Industrial Services Rule 343-4.33. That claimant pay the costs of the appeal including the transcription of the arbitration hearing. Signed and filed this 21st day of June, 1988. DAVID E. LINQUIST INDUSTRIAL COMMISSIONER Copies To: Mr. E. W. Wilcke Attorney at Law P.O. Box 455 Spirit Lake, Iowa 51360 Mr. E. J. Kelly Attorney at Law Terrace Center, Suite 111 2760 Grand Avenue Des Moines, Iowa 50312 Mr. Dick H. Montgomery Attorney at Law P.O. Box 7038 Professional Building Spencer, Iowa 51301 1402.30; 1402.40 2208 Filed June 21, 1988 David E. Linquist BEFORE THE IOWA INDUSTRIAL COMMISSIONER CLIFFORD F. MUILENBURG, Claimant, File No. 797018 VS. A P P E A L JOHN MORRELL & COMPANY, D E C I S I 0 N Employer, Self-Insured, Defendant. 1402.30; 1402.40; 2208 Claimant was not entitled to occupational hearing loss benefits. Claimant did not prove that he was exposed to a noise level from a duration specified in Iowa Code section 85B.5 and thus did not establish the presumption that his hearing loss was an occupational hearing loss. Also, claimant did not prove his hearing loss was the result of exposure to excessive noise at a level less than specified in the tables. There was no objective evidence to determine the noise level in claimant's work area. It was claimant's and his coworkers' opinion that the area was noisy. However, two other individuals were of the opinion that the noise level was not high enough to include the area in either of their noise level surveys. It was impossible to tell the duration of claimant's exposure to the noise level he opined was noisy. There was also medical opinion that claimant's military experience in an artillery unit would be more significant in causing claimant's hearing loss.