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.