BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         RICHARD HOSCH,
 
         
 
              Claimant,                            File No. 804991
 
         
 
         vs.                                         A P P E A L
 
         
 
         BORK TRANSPORT, INC.,                     D E C I S I O N
 
         
 
              Employer,
 
                                                      F I L E D
 
         GREAT WEST CASUALTY
 
         COMPANY,                                    APR 28 1989
 
         
 
              Insurance Carrier,            IOWA INDUSTRIAL COMMISSIONER
 
              Defendants.
 
         
 
         
 
                              STATEMENT OF THE CASE
 
         
 
              Claimant appeals and defendants cross-appeal from an 
 
         arbitration decision denying any benefits from an alleged work 
 
         injury on September 15, 1985.
 
         
 
              The record on appeal consists of the transcript of the 
 
         arbitration hearing; claimant's exhibits 1 through 13; joint 
 
         exhibits 14 through 36; and defendants' exhibits A through L.  
 
         Both parties filed briefs on appeal.
 
         
 
                                      ISSUES
 
         
 
              Claimant states the issue on appeal is whether there is a 
 
         causal relationship between claimant's alleged work injury and 
 
         his claimed disability.
 
         
 
              Defendants state the issues on cross-appeal are:  whether 
 
         the claimant received an injury that arose out of and in the 
 
         course of his employment; whether claimant's claim is barred by 
 
         his intoxication pursuant to Iowa Code section 85.16(2); and 
 
         whether claimant's claim is barred as a result of his alleged 
 
         misrepresentations to defendant employer at the time claimant 
 
         obtained employment.
 
         
 
                              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.
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
                                     ANALYSIS
 
         
 
              The analysis of the evidence in conjunction with the law in 
 
         the arbitration decision is adopted.
 
         
 
                                 FINDINGS OF FACT
 
         
 
              1.  On the morning of September 15, 1985, the Bork Transport 
 
         (defendant employer) dispatcher instructed claimant to take a 
 
         semi load for Bork Transport from Maquoketa, Iowa to Wauwatosa, 
 
         Wisconsin for 8 a.m. September 16, 1985, delivery.
 
         
 
              2.  Claimant and his spouse bowled the first night of mixed 
 
         doubles league on the night of September 15, 1985.
 
         
 
              3.  Claimant and his spouse arrived at the bowling alley at 
 
         about 7:15 p.m.
 
              
 
              4.  Bowling commenced by approximately 7:45 p.m. and lasted 
 
         at least two hours, but not more than two and one-half hours.
 
              
 
              5.  Claimant bowled three games of ten frames consisting of 
 
         two balls each.
 
              
 
              6.  Claimant called Bob Gillespie from the bowling alley 
 
         early in the evening of September 15, 1985.
 
         
 
              7.  Claimant discussed a letter dated August 20, 1985, he 
 
         had received from Bork notifying him of a percentage wage cut.
 
         
 
              8.  Claimant stated he could not work for that percentage; 
 
         he did not expressly quit or refuse to take the assigned load.
 
         
 
              9.  Claimant's demeanor, as perceived over the telephone, 
 
         was more forceful than that to which Gillespie was accustomed at 
 
         times when claimant was not drinking.
 
         
 
              10.  Claimant has a reputation for excessive drinking, both 
 
         in his work and his nonwork community.
 
         
 
              11.  Other persons in the bowling alley on the evening of 
 
         September 15, 1985, variously reported claimant as either 
 
         drinking alcohol or not drinking alcohol on that evening.
 
         
 
              12.  No one perceived claimant as "roaring drunk" that 
 
         evening.
 
              
 
              13.  Claimant and his spouse left the bowling alley by at 
 
         least 10:00 p.m.
 
              
 
              14.  Claimant could have departed on the run as late as 2:00 
 
         a.m., but chose to leave directly after bowling.
 
         
 
              15.  Claimant had received numerous reprimands for tardiness 
 
         on startups and deliveries.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              16.  Claimant had received a written reprimand for tardiness 
 
         in August 1985 stating that any further tardiness would result in 
 
         his termination.
 
         
 
              17.  Claimant and his spouse returned home driving east 
 
         through Maquoketa, picked up claimant's suitcase and drove back 
 
         west through Maquoketa to the truck stop where claimant's semi 
 
         was parked.
 
         
 
              18.  Claimant's spouse was driving.  She observed the 20 
 
         mile-per-hour speed limit and observed any of three potential red 
 
         traffic lights.
 
         
 
              19.  After leaving the truck, after starting and inspecting 
 
         it, to say goodbye to his wife, claimant fell a distance of not 
 
         more than three feet while attempting to reenter the truck.
 
         
 
              20.  Claimant and his wife went to the hospital emergency 
 
         room.
 
         
 
              21.  Claimant reported a fall from his truck to emergency 
 
         room personnel.
 
         
 
              22.  Claimant's wife called Bob Gillespie and advised 
 
         Gillespie that claimant had fallen from his truck and would be 
 
         unable to take the dispatched load.
 
         
 
              23.  Bob Gillespie had advised a second driver to take the 
 
         load as claimant would not be taking the load since claimant was 
 
         in a tavern drinking.
 
         
 
              24.  Claimant advised his treating and examining physicians 
 
         of his fall from the truck.
 
         
 
              25.  Richard Kreiter, M.D., directed claimant to complete 
 
         bedrest on September 25, 1985.  Claimant bowled three games of 
 
         ten frames, two balls each on September 29, 1985.
 
         
 
              26.  Claimant had a herniated disc at L4-5 and L5-S1.  He 
 
         had chemonucleosis injection in October 1985 for the L5-S1 disc 
 
         and a laminectomy for the L4-5 disc in May 1986.
 
         
 
              27.  Claimant had had back pain with radiation into his 
 
         right leg in 1974 and 1975.  He sought chiropractic care for 
 
         such.
 
         
 
              28.  Claimant had intermittent back symptoms to 1985.
 
         
 
              29.  Claimant sought chiropractic back care in 1983 on two 
 
         occasions.
 
         
 
              30.  Claimant had no nonconservative care from 1975 until 
 
         after September 15, 1985.
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
              31.  Claimant had passed required DOT physicals from 1975 to 
 
         1985.
 
         
 
              32.  Bowling is more likely to aggravate a preexisting back 
 
         condition than a three-foot or less fall.
 
         
 
              33.  Bowling on September 29, 1985, would indicate that any 
 
         condition from September 15, 1985, was resolving quickly.
 
         
 
              34.  An activity can aggravate a back condition without 
 
         immediate onset of pain and stiffness or other symptoms.
 
         
 
              35.  Claimant's bowling of September 15, 1985, and his fall 
 
         from his truck were in very close chronological proximity.
 
         
 
              36.  Claimant's injury and claimed disability are not 
 
         directly traceable to his September 15, 1985 fall.
 
         
 
                                CONCLUSIONS OF LAW
 
         
 
              Claimant has established an employee-employer relationship 
 
         between claimant and defendant employer.
 
         
 
              Claimant has established an incident on September 15, 1985, 
 
         which incident arose out of and in the course of his employment.
 
         
 
              Claimant's claim is not barred on account of his 
 
         intoxication as provided for in Iowa Code section 85.16(2).
 
         
 
              Claimant's claim is not barred as a result of 
 
         misrepresentations to the employer on the job application and 
 
         elsewhere.
 
         
 
              Claimant has not established an injury which arose out of 
 
         and in the course of his employment on September 15, 1985, and 
 
         has not established a causal relationship between any 
 
         work-related injury and his claimed disability.
 
         
 
              WHEREFORE, the decision of the deputy is affirmed.
 
         
 
                                      ORDER
 
         
 
              THEREFORE, it is ordered:
 
         
 
              That claimant take nothing from these proceedings.
 
         
 
              That claimant and defendants share equally the costs of 
 
         these proceedings including the costs of transcription of the 
 
         arbitration hearing pursuant to Division of Industrial Services
 
         Rule 343-4.33.
 
         
 
              Signed and filed this 28th day of April, 1989.
 
         
 
         
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
         
 
         
 
                                               DAVID E. LINQUIST
 
                                            INDUSTRIAL COMMISSIONER
 
         
 
         Copies To:
 
         
 
         Mr. James M. Hood
 
         Attorney at Law
 
         302 Union Arcade Bldg.
 
         Davenport, Iowa  52801
 
         
 
         Mr. Stephen W. Spencer
 
         Attorney at Law
 
         300 Fleming Bldg.
 
         218 6th Avenue
 
         Des Moines, Iowa  50309
 
         
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
 
                                            
 
 
 
 
 
 
 
 
 
 
 
                                            1108 - 51601
 
                                            Filed April 28, 1989
 
                                            DAVID E. LINQUIST
 
         
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         RICHARD HOSCH,
 
         
 
              Claimant,
 
         
 
         vs.
 
         
 
         BORK TRANSPORT, INC.,                     File No. 804991
 
         
 
              Employer,                              A P P E A L
 
         
 
         and                                       D E C I S I 0 N
 
         
 
         GREAT WEST CASUALTY
 
         COMPANY,
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
         
 
         1108
 
         
 
              Claimant failed to show a causal connection between a work 
 
         incident in which he fell less than three feet and aggravation of 
 
         a preexisting back condition where claimant bowled immediately 
 
         before the work incident and against doctor's instructions 
 
         following the work incident.  Deputy affirmed on appeal.
 
         
 
         51601
 
         
 
              Defendants failed to show that claimant was intoxicated when 
 
         he fell or that, if intoxicated, the intoxication was a 
 
         substantial factor in his alleged work injury.  Deputy affirmed 
 
         on appeal.
 
         
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
 
            
 
 
 
                     
 
 
 
 
 
                    
 
                      BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         RICHARD HOSCH,
 
         
 
              Claimant,
 
                                                      File No. 804991
 
         vs.
 
                                                   A R B I T R A T I O N
 
         BORK TRANSPORT, INC.,
 
                                                      D E C I S I O N
 
              Employer,
 
         
 
         and                                             F I L E D
 
         
 
         GREAT WEST CASUALTY                            MAY 13 1988
 
         COMPANY,
 
                                               IOWA INDUSTRIAL COMMISSIONER
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
                                 INTRODUCTION
 
         
 
              This is a proceeding in arbitration brought by the claimant, 
 
         Richard Hosch, against his employer, Bork Transport, Inc., and 
 
         its insurance carrier, Great West Casualty Company, to recover 
 
         benefits under the Iowa Workers' Compensation Act as a result of 
 
         an injury allegedly sustained on September 15, 1985.  This matter 
 
         came on for hearing before the undersigned deputy industrial 
 
         commissioner at Davenport, Iowa on May 19, 1987.  A first report 
 
         of injury was filed on September 30, 1985.  The parties 
 
         stipulated that claimant has been paid 21 weeks of temporary 
 
         total or healing period benefits at the rate of $277.93.
 
         
 
              The record in this case consists of the testimony of 
 
         claimant, of Patrick Doherty, of Teresa Hosch, of Colleen R. 
 
         Torgerson, of Brenda Smith, of Robert Lynn Smith, of Dennis M. 
 
         Torgerson, of Robert D. Gillespie and of Ed Barnett as well as of 
 
         claimant's exhibits 1 through 13, joint exhibits 14 through 36, 
 
         and defendant's exhibits A through L.
 
         
 
                                    ISSUES
 
         
 
              Pursuant to the pre-hearing report, the parties stipulated 
 
         that claimant's rate of weekly compensation is $271.26 and that 
 
         medical costs were fair and reasonable for the conditions 
 
         treated. Issues remaining to be decided are:
 
         
 
              Whether an employee-employer relationship existed between 
 
         claimant and defendant;
 
         
 
              Whether claimant received an injury which arose out of and 
 
                                                       
 
                                                                
 
         in the course of his employment;
 
         
 
              Whether claimant's claim is barred on account of 
 
         intoxication as provided in Iowa Code section 85.16(2);
 
         
 
              Whether claimant's claim is barred as a result of 
 
         misrepresentations to the employer on the job application and 
 
         elsewhere;
 
         
 
              Whether a causal relationship exists between claimant's 
 
         alleged injury and the claimed disability;
 
         
 
              Whether claimant is entitled to benefits and the nature and 
 
         extent of any benefit entitlement, including the question of 
 
         whether claimant is an odd-lot worker under the Guyton doctrine; 
 
         and,
 
         
 
              Whether claimant is entitled to payment of certain medical 
 
         costs as causally related to the work injury.
 
         
 
                            REVIEW OF THE EVIDENCE
 
         
 
              Claimant testified that he was born on February 19, 1947 and 
 
         completed the ninth grade in school.  He left school in 1964 and 
 
         subsequently drove an egg truck for his mother's produce business 
 
         until 1972.  He then worked as an over-the-road semi driver for 
 
         Cupler Building Corporation.  Claimant earned $350 per week in 
 
         that job.  Claimant denied receiving reprimands for lateness while 
 
         driving for Cupler.  He reported that he was laid off from 
 
         trucking and then worked as a manual laborer in the Cupler factory 
 
         earning $3.50 per hour until he was fired for inability to handle 
 
         factory work.  Claimant then worked for CRST as a long-haul semi 
 
         driver and testified that he earned $450 per week.  That job 
 
         required him to unload boxed meat weighing from 70-120 pounds. 
 
         From 1977 until 1981, claimant worked at Dawley Transport and 
 
         reported earnings of approximately $30,000 per year.  Claimant was 
 
         terminated from that job for sleeping while enroute.  He agreed he 
 
         had received reprimands for lateness in that position.  Claimant 
 
         then worked for Rowley Interstate as a long-haul driver of meat 
 
         shipments.  He reported that he earned $450 per week, but was 
 
         terminated after seven months for refusal to take a load.  
 
         Claimant worked for Apple Lines from March through November, 1982.  
 
         He initially reported that he left that position, in which he was 
 
         earning $250 per week, on account of a conflict over hours.  He 
 
         subsequently denied that he had been terminated, but agreed he was 
 
         not called back after being off for two weeks.  Claimant agreed he 
 
         had been reprimanded for being tardy in the pick-up and delivery 
 
         of loads.  Claimant agreed that the work history he gave in his 
 
         deposition was inconsistent with his testimony at hearing.  He 
 
         reported that, but for the work history, the deposition was 
 
         accurate.
 
         
 
              Claimant testified that he began working at Bork Transport, 
 
         a company which specializes in hauling hazardous materials in 
 
         bulk, in January, 1983.  Claimant testified he worked for the 
 
                                                       
 
                                                                
 
         company until November 15, 1985 without quitting.  He agreed he 
 
         had been discharged for two weeks in August, 1985 after falling 
 
         asleep on the job.  He reported that Bob Gillespie had intervened 
 
         and had helped him to be rehired at that time.  Claimant stated 
 
         his employer believed he had been drinking during that episode.
 
         
 
              Claimant denied he had been treated for back problems prior 
 
         to September 15, 1985, but for a three- or four-month period in 
 
         1974 and 1975 when he treated with H. A. Gearhart, D.O., an 
 
         osteopathic physician, and D. W. Kaiser, D.C.  He reported he had 
 
         also seen C. S. Gonstead, D.C., in 1974 and 1975, but denied he 
 
         had lost six months of work for back problems in the mid-1970's. 
 
         Claimant denied he had told doctors he had intermittent trouble 
 
         with his back from the mid-1970's onward.  He agreed he might 
 
         have told his physicians that symptoms in the 1970's included 
 
         right leg pain.  Claimant stated he had not had back problems in 
 
         January, 1983 and denied he had misrepresented himself on his job 
 
         application when he reported he had no physical impairments. 
 
         Claimant asserted he had always passed his biennial DOT driver's 
 
         physical.
 
         
 
              Claimant reported that, on September 13, 1985, he loaded his 
 
         truck in Cedar Rapids, drove it to Maquoketa, Iowa, where he 
 
         resides, and parked it at a truck stop.  He reported that Bob 
 
         Gillespie, Bork dispatcher, had advised claimant it was 
 
         permissible to park the truck at the Maquoketa truck stop. 
 
         Claimant stated that Todd Bro, Bork owner, had dispatched him out 
 
         on a load into Chicago and then to Wisconsin with a Wisconsin 
 
         arrival time of 8:00 a.m.
 
         
 
              Claimant bowled on the evening of September 15, 1985.  He 
 
         called Bob Gillespie from the bowling alley to discuss a letter 
 
         he had received which indicated his wage percentage would be cut. 
 
         Claimant denied that, during the course of that conversation, he 
 
         quit, was fired or indicated that he would not take out the 
 
         scheduled load.  Claimant further denied that he was drunk when 
 
         he talked to Gillespie or that he had been drinking on September 
 
         15, 1985.  Claimant reported that he bowled three games 
 
         consisting of ten frames or twenty balls per game.  He indicated 
 
         that he left the bowling alley at approximately 9:30 p.m.  With 
 
         Mrs. Hosch driving, they drove back to the east edge of town 
 
         where his house is located and then drove to the truck stop on 
 
         the west edge of town.  There are three stop lights on the route.  
 
         Claimant indicated his wife drove within the 20 mile-per-hour 
 
         speed limit. Claimant stated that, at the truck stop, he got into 
 
         his truck and started the engine.  He stated he then got out, put 
 
         in his suitcase and said goodbye to his wife.  He reported that 
 
         he fell approximately four or five feet while getting back into 
 
         the truck. Claimant did not dispute that he had told the 
 
         insurance adjustor that he fell after the luggage was put into 
 
         the rack and that, in his deposition, he reported he fell before 
 
         the luggage was put into the rack.  Claimant stated that, in the 
 
         course of the fall, he twisted to the left with pain in his right 
 
         leg and low back as well as foot numbness.  Claimant testified 
 
         that his wife then shut off the truck and took him to the 
 
                                                       
 
                                                                
 
         hospital emergency room where a Dr. Beivy examined him.
 
         
 
              On cross-examination, claimant reported that he had arrived 
 
         at the truck at approximately 9:15 p.m. and arrived at the 
 
         emergency room at about 10:00 p.m.  Claimant could not recall 
 
         having told the emergency room personnel that he had been injured 
 
         approximately one half hour earlier.  Claimant denied that he had 
 
         not gone to the truck that evening.  Claimant agreed that the 
 
         Chicago to Wisconsin run would take approximately five to six 
 
         hours.  He reported he left five hours early in order to sleep 
 
         and plan for any contingencies.  Claimant stated he was not tired 
 
         as he had slept during the day of September 15, 1985.  He 
 
         asserted it would have been harder to sleep until midnight and 
 
         then leave, but stated he needed to leave by midnight if he were 
 
         to reach Chicago before rush hour traffic.  Claimant agreed he 
 
         had earlier received reprimands for late hauling.
 
         
 
              Claimant reported that he saw Clifford L. Rask, M.D., on 
 
         September 18, 1985 and that Dr. Rask advised rest.  Claimant 
 
         reported that he gave Dick Sayre that report.  Claimant testified 
 
         that, in October, 1985, Bork's bookkeeper asked him if he wished 
 
         to continue his Blue Cross/Blue Shield and that claimant advised 
 
         he would be unable to do so without an income.  Claimant stated 
 
         that he never received a termination or quit letter.. He reported 
 
         that he applied for unemployment following his work release by 
 
 
 
                            
 
                                                                
 
         Eugene Collins, M.D., in September, 1986 and received such from 
 
         Bork without contest.
 
         
 
              Claimant stated that, following the September, 1986 work 
 
         release, he talked to Mr. Gillespie regarding his willingness to 
 
         return to work within restrictions imposed.  He reported that 
 
         Gillespie never got back with him regarding such.
 
         
 
              Claimant agreed that he had bowled on September 29, 1985, 
 
         although Richard L. Kreiter, M.D., had advised him to remain at 
 
         bedrest.  Claimant denied that the bowling aggravated his 
 
         condition.  Claimant then bowled three games of ten frames each 
 
         with two balls to each frame.  Claimant reported that Dr. 
 
         Kreiter, to whom Dr. Rask had referred claimant, subsequently 
 
         hospitalized claimant for CT scan and myelographic studies.  Dr. 
 
         Kreiter then referred claimant to Dr. Collins who initially 
 
         injected claimant's back and then performed back surgery.
 
         
 
              Claimant reported that defendants asked him to be evaluated 
 
         at the University of Iowa, but then denied permission for a CT 
 
         scan and myelographic studies which the university requested. 
 
         Claimant identified exhibits 14 through 26 as unpaid medical 
 
         costs related to the September 15, 1985 incident.  He identified 
 
         exhibit 27 as unreimbursed mileage expenses related to the 
 
         incident.
 
         
 
              Claimant testified that he can sit for two or three hours 
 
         and can walk one to two miles.  He indicated he can drive for a 
 
         couple of hours and can lift approximately 15 pounds.  He is to 
 
         alternate standing and sitting.  Claimant reported that he had 
 
         worked for two weeks prior to hearing hauling fertilizer in a 
 
         pickup.  He reported the job was to last five days, but that he 
 
         quit after three days as he could not sit in a truck for ten 
 
         hours per day. Claimant stated that exhibit 13 lists jobs for 
 
         which he has applied.  Claimant testified that he had not been 
 
         considered for several open gas station jobs once the potential 
 
         employer became aware of his restrictions.  Claimant stated he 
 
         had difficulty completing job applications because his reading 
 
         skills are limited.  He was willing to undergo vocational 
 
         rehabilitation, if provided.  Claimant testified that Bork has 
 
         drivers who specialize in hauling liquid and, therefore, do 
 
         nothing heavier than pulling hoses in and out.
 
         
 
              Teresa Hosch, claimant's wife of 21 years, testified that 
 
         claimant's back was in excellent condition when he started work 
 
         with Bork.  She reported that he then had no trouble with 
 
         lifting, twisting or bending and that he water-skied, hunted and 
 
         fished. She reported that he can no longer water-ski or hunt and 
 
         that he no longer goes to church as he cannot kneel.  She 
 
         reported that claimant cannot mow the law or rearrange furniture 
 
         and has difficulty vacuuming.  Mrs. Hosch reported that the 
 
         couple arrived at the bowling alley at approximately 7:15 p.m. on 
 
         September 15, 1985.  She believed claimant was drinking Pepsi at 
 
         the alley.  She denied that claimant had any falls or other 
 
         untoward events at the alley and reported that claimant was fine 
 
                                                       
 
                                                                
 
         and not in pain when they left the alley.  She generally 
 
         corroborated claimant's testimony regarding his fall from the 
 
         truck.
 
         
 
              Mrs. Hosch called Bob Gillespie from the emergency room.  
 
         She testified that Gillespie initially hung up on her and she 
 
         subsequently called him and they conversed.  Mrs. Hosch reported 
 
         that she told Gillespie that claimant likely would be unable to 
 
         take the load out.  She reported Gillespie then said he would 
 
         have to dispatch someone else.  She denied that Gillespie said he 
 
         had already done so.  Mrs. Hosch characterized Gillespie's speech 
 
         as slurred and stated that he had ether been sleeping or 
 
         drinking. Mrs. Hosch reported that, after bowling on September 
 
         29, 1985, claimant's back was in the same condition as it had 
 
         been prior to his bowling that evening.  She stated she has 
 
         helped claimant fill out job applications subsequent to his work 
 
         injury.
 
         
 
              Robert D. Gillespie identified himself as the Des Moines 
 
         terminal manager for Bork Transport.  He reported that he had 
 
         known claimant for approximately four to four and one-half years 
 
         at the time of hearing.  Gillespie was claimant's dispatcher and 
 
         indicated he talked to claimant on the phone several times every 
 
         day. Gillespie reported that, at times, he had had beers with 
 
         claimant after work.  Gillespie reported receiving a phone call 
 
         from claimant on September 15, 1985 at between 8:00 and 9:00 p.m. 
 
         He reported that claimant was in an argumentative mood and wanted 
 
         to voice his feelings about the percentage decrease in his wage 
 
         which Dick Sayre had ordered.  Gillespie reported that claimant 
 
         was very forceful and direct in that conversation, but generally 
 
         is not so. Gillespie heard sounds of a bowling alley in the 
 
         background. Gillespie reported claimant as saying that claimant 
 
         had made up his mind he was calling it quits instead of patching 
 
         things up with Sayre.  Gillespie stated he assumed claimant had 
 
         been drinking as a result of his past experience with claimant and 
 
         claimant's forcefulness.  He characterized claimant as generally 
 
         more forceful after he had been drinking.  Gillespie stated he had 
 
         had other problems with getting claimant to work on Sunday night 
 
         and had had prior phone conversations with claimant or with his 
 
         wife about claimant going on the road on Sunday evening.  
 
         Gillespie stated that, once he was off the line with claimant, he 
 
         called a driver in Gary, Indiana and got an answering machine 
 
         response.  He reported that that driver took claimant's assigned 
 
         haul on the next day. Gillespie agreed that claimant had never 
 
         expressly said he quit, but had said he could not work for the 
 
         wage he would be earning. Gillespie agrees he could not recall 
 
         claimant expressly saying he would not take the load out.  
 
         Gillespie did not believe he had written in claimant's personnel 
 
         file that claimant had quit as the quitting procedure requires.  
 
         He was unaware of claimant receiving a follow-up letter as per 
 
         procedure is sent to an individual who quits employment with Bork.  
 
         Gillespie agreed that Dick Sayre makes final determinations 
 
         regarding job quits.  Gillespie believed he had reached the Gary, 
 
         Indiana driver at approximately 8:00 a.m. Gillespie reported that 
 
         the haul was to Wauwatosa, Wisconsin and that such was 
 
                                                       
 
                                                                
 
         approximately three hours from Gary, Indiana. Gillespie did not 
 
         recall that he himself had been drinking on September 15, 1985.  
 
         He did recall having received a phone call from claimant's wife at 
 
         approximately 10:00 p.m. during which she told him claimant had 
 
         slipped and fallen while getting into his truck.
 
         
 
              Gillespie stated that the run from Maquoketa, Iowa to 
 
         Wauwatosa, Wisconsin would be approximately six hours.  He 
 
         reported that, normally, a driver would leave at approximately 
 
         2:00 a.m. he opined that, from past experience with claimant, he 
 
         would have expected claimant to make a 12:00 noon [September 16, 
 
         1985] delivery to Wauwatosa after sleeping eight hours and 
 
         starting out on the trip at approximately 5:00 a.m.  Gillespie 
 
         agrees that claimant had been late a number of times while 
 
         employed at Bork and, in August, 1985, received a letter advising 
 
         claimant that, if claimant was late again, he would be fired. 
 
         Gillespie opined it was likely that, had claimant again been 
 
         late, he would have lost his Bork job.
 
         
 
              Gillespie testified that a Bork driver must make a pre-trip 
 
         inspection which takes approximately 15 minutes.  He must know 
 
         the federal code regarding transportation of hazardous materials, 
 
         log his duty hours, determine his route, determine whether he is 
 
         at a legal weight, determine if the storage facility has room for 
 
         gasoline, drive safely, fill out his log book and have customers 
 
         sign such and lift a hose.  He reported that determining whether 
 
         the facility has room involves doing a math conversion from 
 
         inches to gallons.  He reported that claimant was one of the few 
 
         Bork drivers qualified for handling corrosive materials.  
 
         Gillespie reported the hose weighs approximately 45-50 pounds, 
 
         but that an individual would never have to lift the entire hose 
 
         at one time. Gillespie could not recall having ever had 
 
         complaints regarding claimant's paper work during claimant's 
 
         employment at Bork.
 
         
 
              Gillespie testified that a back problem would be a 
 
         substantial factor in Bork's decision to hire or to not hire a 
 
         driver.  He reported that a Bork driver would be in and out of 
 
         his truck several times per day and would need to climb the 
 
         ladder several times per day, but could be in his truck for up to 
 
         four hours at a time.  Gillespie reported he had received a phone 
 
         call from claimant regarding claimant's medical release.  He 
 
         reported he told claimant that Gillespie would need a copy of the 
 
         release. Gillespie reported he has not tried to rehire claimant, 
 
         although the company has a desire to put individuals back to 
 
         work. Gillespie stated that he was unaware of how claimant had 
 
         been hired, but stated that the procedure which claimant 
 
         described was not Bork's standard hiring procedure.
 
         
 
              Gillespie did not know why Dick Sayre had requested medical 
 
         information regarding claimant per a letter of Dr. Rask of 
 
         September 20, 1985.  He agreed that would not be done if the 
 
         employee had quit.
 
         
 
              Ed Barnett, who resides in Gary, Indiana, reported that he 
 
                                                       
 
                                                                
 
         had worked for Bork Transport for two and one-half years and had 
 
         known claimant as a Bork driver.  He reported he was aware of the 
 
         September 15, 1985 load as Mr. Gillespie had called him at home 
 
         during daylight hours.  He was uncertain as to whether he had 
 
         talked to Gillespie directly or had responded to an answering 
 
         machine message from Gillespie, but stated that Gillespie had 
 
         told him claimant was in a tavern drinking and had quit his Bork 
 
         job. Barnett indicated Gillespie advised him he would have to 
 
         take the load.
 
         
 
              Colleen R. Torgerson testified that she is a co-owner of The 
 
         Bowling Center in Maquoketa.  She identified herself as a 
 
         secretary of the mixed doubles league in 1985-86.  She could not 
 
         recall whether claimant had been drinking on September 15, 1985, 
 
         but reported it was very possible claimant had been drinking.
 
         
 
              Dennis M. Torgerson identified himself as Colleen's husband 
 
         and co-owner of The Bowling Center.  He was a professional bowler 
 
         for approximately three years and demonstrated a bowling 
 
         technique, indicating that bowling can involve stooping and 
 
         twisting. Torgerson stated that the Sunday Mixed League's starting 
 
         time was 7:30 p.m., but, because of paperwork on the first evening 
 
         of the leagues, such as September 15, it might take a little 
 
         longer for leagues to start.  He reported they likely started 
 
         10-15 minutes late and finished that much later than usual.  Mixed 
 
         doubles were reported as usually taking from two to two and 
 
         one-half hours with the ending time being approximately 
 
         9:45-10:15.  Torgerson doubted that the league had finished after 
 
         10:00 p.m. as he and his wife had left the alley by 11:00 p.m.  He 
 
         reported they likely finished at right around 10:00 p.m.  
 
         Torgerson could not remember claimant drinking on September 15, 
 
         1985 or his serving claimant drinks that evening.  He reported it 
 
         was possible that his wife or someone else may have served 
 
 
 
                            
 
                                                                
 
         claimant drinks that evening.  He characterized claimant as not 
 
         "roaring drunk" that evening.
 
         
 
              Brenda Smith indicated she first met claimant and his wife 
 
         on September 15, 1985 at the bowling center when she and her 
 
         husband were paired with the Hosches for the mixed doubles 
 
         league.  Mrs. Smith recalled claimant having a beer on September 
 
         15, 1985.  She reported that her husband purchased beer for 
 
         claimant and that claimant purchased beer for her husband 
 
         throughout a two to two and one-half hour time frame.
 
         
 
              Robert Lynn Smith, Brenda's husband, reported that he had 
 
         initially met claimant on September 15, 1985 and that claimant 
 
         stated on that evening he had to leave for Chicago at 
 
         approximately midnight.  He reported he may have purchased beer 
 
         for claimant that evening and that they may have been drinking 
 
         that evening as it was a common practice to buy beers back and 
 
         forth.  Mr. Smith stated he had seen claimant drinking in taverns 
 
         in the Maquoketa area.  He reported that he could not positively 
 
         recall whether claimant did or did not drink on September 15, 
 
         1985.  Smith was uncertain as to whether claimant was severely 
 
         intoxicated when claimant left the alley that evening, but did 
 
         not believe claimant was intoxicated when claimant arrived at the 
 
         alley.  Mr. Smith testified that claimant had been intoxicated 
 
         one of the three times he had bowled with claimant in the 1985-86 
 
         league, but that he was uncertain that it was the evening of 
 
         September 15, 1985.
 
         
 
              Patrick Doherty identified himself as a vocational 
 
         rehabilitation counselor with the Work Fitness Center of the 
 
         Franciscan Medical Center.  Mr. Doherty received a Masters Degree 
 
         in 1978.  He assists in placing workers who have been disabled 
 
         with back injuries.  Doherty reported he saw claimant per 
 
         claimant's counsel's request and performed testing with claimant. 
 
         He reported claimant as having an I.Q. of 108 which places him in 
 
         the high average range.  He reported that claimant had good math 
 
         skills, but read only at the fifth grade level and spelled only 
 
         at the third grade level.  He indicated claimant is restricted to 
 
         lilting only from 15-20 pounds with no prolonged sitting, 
 
         standing or bending.
 
         
 
              Doherty opined that, prior to his injury, claimant had 
 
         access to 42% of jobs in the labor market and that, following his 
 
         injury, claimant had access to only 33% of jobs or had sustained 
 
         24% loss of job access.  Doherty reported that claimant is now 
 
         limited to light-duty, sedentary work for which he is not 
 
         academically suited.  He characterized as highly improbable that 
 
         claimant could find a job by himself.  He reported that 
 
         claimant's ability to conduct job interviews and fill out job 
 
         applications as well as his personal grooming and time off work 
 
         would interfere with his job placement.  Doherty did not believe 
 
         that claimant could now maintain a job.  He recommended that 
 
         claimant spend approximately a year doing coursework to obtain 
 
         his GED and that claimant then do a career assessment inventory 
 
         to determine his interests. Doherty opined that, with a year for 
 
                                                       
 
                                                                
 
         work on the GED and a year for retraining, claimant could earn 
 
         approximately $5.00 per hour in telephone repair or 
 
         $14,000-$15,000 per year in bill collecting.  He also suggested 
 
         claimant might work as a drivers' license examiner.  He reported 
 
         that claimant had earned from $27,000-$28,000 per year in the 
 
         trucking industry.  Doherty was unaware of claimant's prior job 
 
         terminations.  He stated that he was not stating claimant could 
 
         not do factory work, but that such should be preassessed as he 
 
         was concerned that claimant would have difficulty doing any 
 
         factory job involving forward flexion of the spine.  Doherty 
 
         agreed that he had had no indication claimant could not perform 
 
         the record keeping required of him in his trucking jobs.
 
         
 
              Eugene Collins, M.D., is a board-certified neurosurgeon who 
 
         testified by way of his September 5, 1986 deposition.  Dr. 
 
         Collins saw claimant at the request of Richard Kreiter, M.D., on 
 
         October 8, 1985.  Claimant gave a history of having had pain in 
 
         his low back ten years earlier which had gotten better after six 
 
         months of chiropractic care.  He reported that claimant had been 
 
         doing reasonably well with no definite complaints until three 
 
         weeks prior to consultation when, while getting into a truck, his 
 
         foot slipped and the patient landed on his right leg and soon 
 
         noted pain in the back of the right leg, accompanied by numbness, 
 
         as well as some pain in his right hip and low back.  Symptoms 
 
         were increased by bowel movement and coughing.  Dr. Collins 
 
         reported that a myelogram was performed during claimant's October 
 
         8, 1985 hospitalization which showed a herniated disc at L4-5 on 
 
         the left, L5-S1 on the right.  The left leg was asymptomatic.  
 
         There was pain in the right leg, back of the leg, consistent with 
 
         "this disease" at L5-S1.  Chemonucleolysis was performed.
 
         
 
              Dr. Collins stated he had no history of claimant bowling, but 
 
         that on the basis of the history given him, he felt that if 
 
         claimant had no problems while bowling and then got on the truck, 
 
         slipped and had symptoms, the symptoms were caused by the fall 
 
         from the truck and not from bowling.  Dr. Collins reported that if 
 
         claimant had bowled about three games on September 29, 1982, such 
 
         would not have caused the disc to rupture, if he had symptoms 
 
         prior to that bowling.  Dr. Collins indicated that claimant was 
 
         seen intermittently through April 14, 1986 when he called and 
 
         complained of left leg pain and numbness worse over the past two 
 
         weeks.  Claimant was then admitted to St Lukes Hospital and a 
 
         myelogram performed confirmed a herniated disc at L4-5 on the 
 
         left.  A laminectomy at L4-5 on the left was performed on May 1, 
 
         1986.  Dr. Collins opined that, if claimant's history was correct, 
 
         he believed claimant's fall from the truck on September 15, 1985 
 
         was the cause of claimant's May 1, 1986 laminectomy.  
 
         Subsequently, the following dialogue took place:
 
         
 
              Q.  Initially, I believe you indicated that he was 
 
              asymptomatic on the left side.  Why do you feel that the 
 
              laminectomy was caused by the fall on September 15, 1985, 
 
              when initially he was not having that many problems on the 
 
              left side?
 
         
 
                                                       
 
                                                                
 
              A.  There were two ruptured disks.  Usually one 
 
              predominates. The pain pathway predominates on one side.  It 
 
              was the right one that was the predominant one.  After the 
 
              pressure was taken off the right nerve root, the left one 
 
              started to act up.  This is not unusual, the way it 
 
              presented.  With more than one ruptured disk, usually the 
 
              initial one is the major culprit and bothers the patient.    
 
              When that one is taken care of, it's not unusual for the 
 
              other one to act up.  It's not unusual.
 
         
 
              Dr. Collins opined that claimant would have reached maximum 
 
         improvement about four months after the second surgery and 
 
         therefore, within the past couple weeks of the deposition or as 
 
         of the time of the deposition.  He opined that claimant was not 
 
         able to return to his previous work and reported that he had 
 
         informed claimant that any activities involving prolonged 
 
         bending, lifting, driving, pushing, pulling, or standing would 
 
         tend to cause him problems and that he should avoid such.  He 
 
         reported he had told claimant to seek sedentary type employment.  
 
         The doctor opined that a reasonable lifting limit for claimant 
 
         would be 15 or 20 pounds.  He reported that claimant should not 
 
         stand more than a couple hours a day and that he should not climb 
 
         stairs excessively.  Dr. Collins reported that claimant did not 
 
         indicate he had sought services of chiropractors from 1974 up to 
 
         within a year of his slip on the semi.  Dr. Collins indicated 
 
         that bowling three days after complete bedrest had been 
 
         prescribed was not consistent with conservative therapy and 
 
         bedrest therapy after a person presented with clinical signs of a 
 
         herniated disc.  The doctor did not think bowling helped 
 
         claimant's condition and stated it may or may not have worsened 
 
         his condition.  Dr. Collins stated that claimant had not reported 
 
         the September 29, 1985 bowling to him and that he had not written 
 
         down that claimant had bowled on September 15, 1985.  Dr. Collins 
 
         reported that vibrations and long rides involved in truck driving 
 
         were items claimant could not handle.  He reported that shortened 
 
         rides would still give claimant trouble with back stiffness.  He 
 
         also stated that the more claimant had to get up and down from 
 
         the truck, the more likely he was to have problems.
 
         
 
              Richard Kreiter, M.D., testified by way of his deposition 
 
         taken March 28, 1987.  Dr. Kreiter is a board-certified 
 
         orthopaedic surgeon.  The doctor reported a history from claimant 
 
         which was generally that which Dr. Collins reported, but for the 
 
         fact that Dr. Kreiter reported claimant stated he had some 
 
         intermittent trouble with his back following the episode ten 
 
         years prior to 1985.  Dr. Kreiter stated he had noted that 
 
         claimant had had sciatica previously and stated that such was 
 
         similar to the pain he was having when seen in September, 1985.  
 
         On physical examination, claimant had spasm and positive straight 
 
         leg raising. Knee reflexes were normal and right ankle jerk was 
 
         absent as compared to left ankle jerk.  Claimant had good 
 
         strength in his lower extremities.  X-rays taken were interpreted 
 
         as showing a narrowed disc between L5 and S1 and early narrowing 
 
         between the L4 and L5.  Dr. Kreiter reported he suggested 
 
         complete bedrest for claimant in order to give his back a chance 
 
                                                       
 
                                                                
 
         to heal.  Dr. Kreiter reported claimant had had a significant 
 
         problem in 1975 and that his back condition was progressive.  He 
 
         reported that, once injured, the back is more prone to reinjury.  
 
         Dr. Kreiter reported that he did not advise claimant to go 
 
         bowling and explained that bowling involves a forward flex 
 
         position likely to stress the L4/L5 and L5/S1 discs in the same 
 
         manner as do vacuuming and bedmaking, both of which he 
 
         characterized as creating significant complaints in persons with 
 
         back problems.  The doctor opined that an aggravation of a 
 
         preexisting back condition would be more likely from bowling over 
 
         a two and one-half hour period than from slipping three feet down 
 
         a ladder and catching oneself with the arm and landing on the 
 
         feet.  He stated, however, that either activity could cause back 
 
         problems.  Dr. Kreiter reported that the absent right knee jerk 
 
         could be an old finding related to claimant's problems from 1975 
 
         onward.  He reported that claimant might have had numbness prior 
 
         to September 15, 1985, but pursuant to the history given, 
 
         claimant did not have numbness to the degree that it was a bother 
 
         to him and that the same would be true as regards both his muscle 
 
         spasm and his positive straight leg raising.  Dr. Kreiter stated 
 
         that, when he saw claimant on September 26, 1985, claimant had a 
 
         disc which had had previous problems as evidenced by the 
 
         narrowing as seen on x-ray.  He further stated that claimant had 
 
         evidence of further irritation, at least to the sciatic nerve 
 
         giving the symptoms and findings discussed as found on that date.  
 
         The doctor stated that, if claimant's bowling had caused his 
 
         symptoms, he would have expected that claimant might have had an 
 
         aching back or a stiff back, while perhaps not an excruciating 
 
         problem (upon leaving the bowling alley).  He further opined, 
 
         however, that it is possible for a person to engage in an 
 
         activity and not appreciate that they are "having problems" until 
 
         several hour's later or the next day.  The doctor reported that 
 
         claimant's bowling the week after he saw claimant on September 
 
 
 
                            
 
                                                                
 
         26, 1985 would indicate claimant was getting over the situation 
 
         rather rapidly.
 
         
 
              James N. Weinstein, D.O., testified by way of his deposition 
 
         taken April 17, 1987.  Dr. Weinstein is assistant professor of 
 
         orthopedic surgery and director of the spinal center at 
 
         University Hospitals.  He is a board-certified orthopaedic 
 
         surgeon.  Dr. Weinstein saw claimant on February 26, 1987 after 
 
         reviewing various medical records concerning his low back 
 
         condition. Claimant apparently gave Dr. Weinstein a history 
 
         substantially as given to Dr. Collins.  The doctor opined that, 
 
         if claimant had had a low back history dating over a ten-year 
 
         period with an initial problem that responded to chiropractic 
 
         treatment, but which resulted in his being off work for six 
 
         months with low back pain radiating to the right leg, 
 
         intermittent problems and chiropractic treatment over the 
 
         subsequent ten years, that history certainly could have been a 
 
         substantial contributing factor to claimant's condition from 
 
         September 15, (1985) (onward).  The doctor reported that forces 
 
         generated in bowling for two-plus hours with a 14-15 pound ball 
 
         and the twisting involved would probably be more stressful than 
 
         falling two or three feet and landing on his feet as claimant 
 
         described.  The doctor later stated that the bowling "would be 
 
         contributory" reporting that he did not think it could be said 
 
         that the bowling or falling off the truck or the problem ten 
 
         years ago was the event, but that there was a continuum of events 
 
         and somewhere in there it "got bad."  Dr. Weinstein stated that 
 
         bowling after being ordered to bedrest could have 
 
         "hypothetically" substantially contributed to the need for 
 
         surgical intervention two or three weeks later.  Dr. Weinstein 
 
         stated it is possible to have a disc at a higher level that can 
 
         cause symptoms at a lower level, but is unlikely that a disc at a 
 
         lower level will cause symptoms at a higher level.  Dr. Weinstein 
 
         opined that the usual healing period for an individual following 
 
         a chymopapain injection for herniated disc is for leg symptoms to 
 
         immediately resolve and for back pain to continue for up to two 
 
         years or longer.  He reported that back pain is never resolved by 
 
         chymopapain injection.
 
         
 
              On cross-examination, Dr. Weinstein stated the following:
 
         
 
              A.  Based on the history Mr. Hosch gave me that all of this 
 
              started as of the date of this accident, one would think 
 
              that there was a cause-and-effect relationship, but based on 
 
              the patholphysiology of disk disease and the way in which a 
 
              disk herniation occurs, one would think that maybe other 
 
              things were involved in his past.  That a fall from five to 
 
              six feet landing on his feet could have been an insult that 
 
              could have caused the problem, but I would guess that there 
 
              had been some predisposing reason for it, some unusual, very 
 
              unusual, unreported cause of disk herniation.
 
         
 
              Dr. Weinstein stated that, when he had reported that 
 
         claimant's condition was "definitely work related" he had meant 
 
         that "the patient told me that this happened on the job."
 
                                                       
 
                                                                
 
         
 
              Dr. Weinstein stated that both the bowling and the fall of 
 
         the truck could have been a cause of claimant's back condition, 
 
         but it was difficult to determine whether they were substantial 
 
         or unsubstantial, "positive" or "negative."
 
         
 
              Dr. Weinstein apparently evaluated claimant on February 26, 
 
         1987 and noted an impression that it was difficult to determine 
 
         the cause of claimant's pain, although he did have instability 
 
         and symptoms consistent with an L4-S1 disc.  He stated "[h]is 
 
         injury is most definitely work related and should be covered by 
 
         workers' compensation."  Impairment rating was estimated to be 
 
         12-15%.
 
         
 
              L. E. Johnson, M.D., interpreted a myelogram of April 17, 
 
         1986 as showing abnormality of the L4-5 level with a small bone 
 
         spur of calcified disc material arising from the inferior aspect 
 
         of L4 and displacing the thecal sac along the left side.  He 
 
         interpreted the L5-S1 interspace as normal, except for slight 
 
         narrowing.
 
         
 
              A. E. Berkow, M.D., interpreted a lumbar spine CT scan of 
 
         October 7, 1985 as showing an extradural compression of the L4-5 
 
         level on the left side compatible with a herniated disc.  He 
 
         reported there was no evidence of central canal stenosis or 
 
         foraminal stenosis.  He later reported that a CT scan also showed 
 
         evidence of some compression of the right sided nerve root at 
 
         L5-S1 by osteophytes and some protrusion of the disc on the right 
 
         side at L5-S1.
 
         
 
              An October 7, (1985) nursing history reports the following 
 
         history:
 
         
 
              Works at Bork Transport on 9/15/85 I was getting out of my 
 
              truck.  The rails were wet and I slipped and twisted myself 
 
              and had a sudden pain back which went down my right leg...
 
         
 
              Eugene Collins, M.D., reported that CT scan and myelogram of 
 
         October, 1985, showed probable disc disease at L4-5 on the left 
 
         and L5-S1 on the right laterally with the L5-S1 obviously the 
 
         symptomatic level on the right side.  Chemonucleolysis injection 
 
         was done on October 10, 1985 at the L5-S1 level without 
 
         complications.  As of October 12, 1985, claimant was doing well 
 
         with pain down the right leg improved and minimal back spasm. 
 
         Strength was satisfactory in the dorsi and plantar flexors of the 
 
         feet.
 
         
 
              A report of Richard Kreiter, M.D., of October 3, 1985, 
 
         states that "Richard is about the same.  He has had symptoms now 
 
         for about 2 1/2 weeks.  He stayed down."  Straight leg raising is 
 
         noted to be painful on the right at 45 degrees.  Right ankle jerk 
 
         is decreased.
 
         
 
              Dr. Kreiter examined claimant on September 26, 1985 noting 
 
         an impression of lumbar disc disease with a right sciatica and 
 
                                                       
 
                                                                
 
         absent right ankle jerk.  He noted that claimant was tender in 
 
         the lumbosacral area and in the right sciatic notch; had mild 
 
         spasm and painful straight leg raising on the right at 60 
 
         degrees, negative on the left.  Knee jerks were intact; left 
 
         ankle jerk was intact; strength was good.
 
         
 
              On August 11, 1986, Dr. Collins opined that, in view of 
 
         claimant's disc disease at two levels, it would be difficult for 
 
         claimant to work at a job involving bending, twisting, lifting 
 
         over 20 pounds, standing, climbing or prolonged sitting and so 
 
         forth.  He reported it would be difficult for claimant to drive a 
 
         truck for long periods with commitant twisting and other 
 
         activities.  He opined that claimant may be able to return to a 
 
         sedentary job not involving the above activities.
 
         
 
              On February 24, 1986, Dr. Collins opined that claimant's 
 
         problem, which necessitated his being seen in the emergency room 
 
         (on September 15, 1985) as well as subsequent treatment, was not 
 
         caused by prior back problems, but was a new incident of injury 
 
         caused by claimant slipping from the truck.
 
         
 
              An accident report of J. Bybee, M.D., of October 2, 1985, 
 
         states that claimant fell from a semi, but did not fall to the 
 
         ground.  It reports he twisted his back and was hanging by the 
 
         hands.  A note of Dr. Bybee of January 24, 1986 states he had 
 
         examined claimant on September 15, 1985 for a back injury and 
 
         that claimant did not appear to be, and he found no evidence to 
 
         suggest that claimant was under the influence of alcohol.  A 
 
         January 30, 1986 Maquoketa Family Clinic note signed by Dr. Bybee 
 
         indicates that Dr. Bybee had given claimant a statement 
 
         indicating he had found no evidence of findings to suggest 
 
         alcohol use or intoxication.
 
         
 
              A December 10, 1986 note of the Leon Chiropractic Center of 
 
         Douglas G. Leon, D.C., reports that claimant was seen on 
 
         September 24, 1983 as well as on apparently a subsequent occasion 
 
         in September, 1983.
 
         
 
              A record of the Gonstead Clinic of Chiropractic of January 
 
         28, 1975 reports symptoms of apparently low back pain radiating 
 
         into the right leg to foot for three months.
 
         
 
              H. A. Gearhart, D.O., reported that he had seen claimant for 
 
         low back pain on November 15, November 23, and November 25, 1974. 
 
         Claimant was treated with physical therapy and was improved when 
 
         discharged and has not been seen since 1974.
 
         
 
              Exhibit 1 of exhibit B is a photograph which shows an 
 
         individual standing beside a semi tractor holding a yard stick. 
 
         The yard stick is approximately parallel to the base of the 
 
         tractor ledge and slightly above the second step of the ladder 
 
         into the tractor-trailer side door.  The second step is 
 
         approximately two inches lower than the base of the ledge. 
 
         Exhibit 2 is bowling cards indicating that Dick or Richard Hosch 
 
         bowled on September 15, 1985 and September 29, 1985.  Exhibit 3 
 
                                                       
 
                                                                
 
         is a January 3, 1987 Clinton Herald newspaper article indicating 
 
         that job service figures record a 5.4% unemployment rate for 
 
         December (1986) for Jackson County.  Exhibit B, exhibit 10 is 
 
         claimant's Bork Transport personnel file.  A January 11, 1984 
 
         letter of Michael Bedolli of Moreco Energy, Inc. to Tod Bro of 
 
         Bork Transport reports an incident involving a Bork driver upon 
 
         whom Moreco personnel could smell alcohol and who was reported 
 
         to have "acted peculiar during the entire time he was at our 
 
         plant." On April 18, 1983, claimant received a written warning 
 
         for being eight hours late to load at ADM in Peoria.  An August 
 
         13, 1985 letter reports that, per a discussion of the letter 
 
         writer, Dick Sayre, with claimant, claimant was advised that he 
 
         had been late for a delivery, that he did not call his 
 
         dispatcher with a mechanical problem and that he had taken his 
 
         truck home without authorization.  Claimant was informed that 
 
         "[b]ecause of these and other problems" the options of 
 
         termination or hauling gas out of Bettendorf were given to 
 
         claimant.  An August 20, 1985 letter advised claimant per Sayre 
 
         that he was on 90-days' probation and had a 1% drop in 
 
         commission.  It noted "This is the final warning, any infraction 
 
         of company policy and your position is terminated."
 
         
 
              On June 9, 1983, claimant received two warning notices, one 
 
         for failure to mail in paperwork daily and another for having 
 
         placaras on the trailer wrong and for failure to be within 25 
 
         feet of the unloading trailer at ADM, Cedar Rapids.  On May 4, 
 
         1985, Dick Sayre wrote claimant indicating that, on account of 
 
         problems with daily mailing of paperwork, with arriving at 
 
         destination on time, with communicating with dispatch and with 
 
         unloading, Bork would be evaluating claimant's employment 
 
         situation.  A hand-written note of May 7, 1985 reports that 
 
         claimant called and the letter was reviewed with claimant 
 
         agreeing to try mailing (paperwork) every three days and that 
 
 
 
                            
 
                                                                
 
         another Tulsa situation, apparently in reference to unloading 
 
         problems, would not occur.
 
         
 
              Exhibit B, 12 is a Rowley Interstate file for claimant.  The 
 
         file contains a number of notations regarding late delivery 
 
         relative to claimant.  A Job Service decision dated July 9, 1982 
 
         determined claimant had not voluntarily left his employment with 
 
         Rowley Interstate Transportation Company as claimant had refused 
 
         to take a dispatch due to personal business and important 
 
         personal problems.
 
         
 
              Exhibit B, 13 is claimant's personnel records from Lear 
 
         Siegler, Inc.  The exhibit demonstrates that claimant was 
 
         ultimately terminated by that company for failure to timely 
 
         report late work arrivals and work absences.
 
         
 
              Exhibit B, 14 are records relative to claimant's prior 
 
         workers' compensation claim resulting from an injury of September 
 
         17, 1969 wherein claimant twisted an ankle.
 
         
 
              Exhibit B, 15 is a report of Patrick D. Doherty, MSR/CRC.  
 
         Mr. Doherty reported that he had performed an LMA computer 
 
         analysis relative to the 1985 national male labor force.  He 
 
         indicated the analysis resulted in a 43% access of jobs that were 
 
         available to claimant prior to his injury with post-injury access 
 
         of 33%.  Such was reported as representing a personal loss of 
 
         access to the labor force of 24%.  Factors affecting employment 
 
         were listed as:  (1) Lack of transferrable educational skills, (2) 
 
         Lack of transferrable work skills, and (3) Poor job availability 
 
         in local labor market with unemployment reported as remaining 
 
         about 10-11% in "this area of Iowa."
 
         
 
              Exhibit B, 16 is personnel records from Apple Lines.  
 
         Records reflect that claimant was employed at the lines from 
 
         March 1, 1982 through November 18, 1982.  Claimant was ultimately 
 
         discharged for failure to leave on a road trip on a timely basis.  
 
         Reportedly, claimant went to a local tavern instead.
 
         
 
              Exhibit B, 17 is personnel files from Dahlen Lines.  The 
 
         records reveal that claimant received a number of written and 
 
         verbal warnings as well as work suspensions for infractions 
 
         generally involving tardiness or leaving work for unexcused 
 
         reasons.
 
         
 
              Claimant's exhibits 3 through 6 are correspondence from the 
 
         employer, the insurer and between the attorneys regarding 
 
         claimant's alleged work injury and denial of benefits for such.
 
         
 
              Claimant's exhibit 11 is a September 24, 1986 letter of 
 
         claimant to the employer advising that his doctor has released 
 
         him to return to work with certain restrictions and stating that 
 
         a copy of the deposition of Dr. Collins, which outlines such 
 
         restrictions, is enclosed.
 
         
 
              Claimant's exhibit 12 is an AT & T Communications detailed 
 
                                                       
 
                                                                
 
         listing of itemized calls.  The following calls were made at the 
 
         indicated times on September 15, [1985]:
 
         
 
             Date     No.   Time        Place          Area-Number     Min
 
         
 
             Sep 15    6.   723PM   TO Des Moines IA   515 274-5990
 
                                    FR Maquoketa IA    319 652-9009    1.0
 
             Sep 15    7.   727PM   TO Adel IA         515 993-3640
 
                                    FR Maquoketa IA    319 652-9009    2.0
 
             Sep 15    8.   73OPM   TO Des Moines IA   515 244-1734
 
                                    FR Maquoketa IA    319 652-9009    1.0
 
             Sep 15    9.  1042PM   TO Adel IA         515 993-3640
 
                                    FR Maquoketa IA    319 652-9061    1.0
 
             Sep 15   10.  1043PM   TO Adel IA         515 993-3640
 
                                    FR Maquoketa IA    319 652-9061    1.0
 
         
 
              Claimant's exhibit 13 is a hand-written account of jobs into 
 
         which claimant apparently inquired.  The account consists of 
 
         approximately three full wide-lined pages generally indicating 
 
         that the company listed is "not hiring" and occasionally 
 
         indicating that claimant is not qualified for a position with the 
 
         company.
 
         
 
              Exhibit L is the deposition of Colleen R. Torgerson taken 
 
         September 22, 1986.  Ms. Torgerson is co-owner with her husband 
 
         of the bowling center in Maquoketa.  She agreed that the Hosches 
 
         were on a mixed doubles bowling league which had its first night 
 
         on September 15, 1985 and that the league was scheduled to start 
 
         at 7:30.  She very much doubted that the league started at 
 
         exactly 7:30 on that night because there was always a fair amount 
 
         of paperwork on the first night and therefore it took longer to 
 
         get underway.  Ms. Torgerson felt it was possible claimant had 
 
         drunk on the night of September 15, 1985, but stated she did not 
 
         remember specifically that he had had anything to drink.
 
         
 
              Exhibit K is a written transcript of a recorded conversation 
 
         between Ms. Torgerson and Bob Wren taken November 26, 1985.  Ms. 
 
         Torgerson could not remember bowling against claimant that night, 
 
         reporting it "was a kind of a busy night for me, the first night 
 
         always is for the secretary."  Ms. Torgerson answered the 
 
         following as regards claimant's drinking on the evening of 
 
         September 15, 1985:
 
         
 
              A.  As I recall I think he was drinking that night more than 
 
              the other team members but I would hate to have to swear to 
 
              that because I can't, my memory is a little foggy about that 
 
              night.  I know that I've heard other people mention you know 
 
              that he drinks too much but that's not firsthand information 
 
              for me so.
 
         
 
              Joint exhibit D is a deposition of Robert Gillespie taken 
 
         September 29, 1986.  Mr. Gillespie was dispatcher for Bork 
 
         Transport Company on September 15, 1985.  Mr. Gillespie stated 
 
         that claimant called him at his home between 7:00 and 9:00 p.m. on 
 
         September 15, 1985.  Mr. Gillespie reported that, from the 
 
                                                       
 
                                                                
 
         background noise, he assumed claimant was in a bowling alley and 
 
         that he felt claimant had been drinking.  Gillespie reported that 
 
         claimant indicated he could not work for a load percentage which 
 
         he was to be paid.  Gillespie stated that claimant did not 
 
         expressly state he was quitting his employment, however.  
 
         Gillespie reported that he made arrangements for another driver to 
 
         haul the load for which claimant had been dispatched because 
 
         Gillespie was unsure as to whether claimant would deliver the 
 
         load.  Gillespie reported that he received a call from claimant's 
 
         wife at approximately 10:30 or 11:00 p.m. on the evening of 
 
         September 15, 1985 in which she reported claimant had slipped 
 
         getting into his truck and was in the hospital.  Gillespie 
 
         reported that, at approximately 9:30 or 10:00 p.m. on the night of 
 
         September 15, 1985, he had contacted Ed Barnett in Gary, Indiana 
 
         and arranged for him to pick up and take the load originally 
 
         assigned to claimant.
 
         
 
              Gillespie denied that he had received a letter from claimant 
 
         requesting that claimant return to work.  He reported that the 
 
         company's history is to find jobs for workers who have suffered 
 
         injuries when those workers are released to go back to work with 
 
         certain lifting restrictions, however.
 
         
 
              Gillespie stated he felt claimant had been drinking or was 
 
         intoxicated since he slurred his words and was somewhat 
 
         argumentative which he characterized as atypical for claimant.
 
         
 
              Gillespie stated that neither claimant's time of leaving nor 
 
         his being at the truck at the time of the injury would be 
 
         abnormal under ordinary circumstances.  He reported, however, 
 
         that normally a person would probably leave around 2:00 a.m. to 
 
         make a delivery in Milwaukee in the morning.  He reported that a 
 
         lot of drivers would leave early so that they could sleep for a 
 
         period at their load point and then deliver their load refreshed 
 
         and ready to take another load.
 
         
 
              Joint exhibit C is a deposition of Todd Bro taken September 
 
         29, 1986.  Bro was aware that claimant had requested to be 
 
         allowed to come back to work and reported that Howard Shives, the 
 
         safety director, would make decisions concerning that request.  
 
         Bro reported that, on the morning of September 15, 1985, he 
 
         talked with claimant and gave him dispatch instructions regarding 
 
         a Monday a.m. load.
 
         
 
              Exhibits A, 13 and 14 list the following medical costs:
 
         
 
                   St. Lukes Hospital            05/01/86     $   25.00
 
                   St. Lukes Hospital            04/17/86        281.00
 
                   St. Lukes Hospital            04/17/86        350.00
 
                   St. Lukes Hospital            05/01/86         25.00
 
                   Dr. Gonzales                  05/01/86        700.00
 
                   Dr. Milas                     05/01/86        550.00
 
                   Dr. Collins        through    05/29/86      4,565.00
 
                   Dr. Rosario                   10/10/85        424.00
 
                   Dubuque Radiological Assn.    03/19/86         24.00
 
                                                       
 
                                                                
 
                   Dr. Kreiter        through    03/19/86        176.00
 
                   Maquoketa Family Clinic       09/15/85         45.00
 
                   Gonstead Clinic               01/31/75         85.00
 
                   Maquoketa Family Clinic       09/18/85         20.00
 
                   Jackson County Hospital       09/27/85         99.00
 
                   Jackson County Hospital       10/07/85         56.00
 
                   St. Lukes Hospital            05/06/86         30.00
 
                   Mercy Hospital Davenport      10/17/85      3,776.35
 
                   St. Lukes Hospital            04/27/86          5.00
 
                   Jackson County Hospital       05/14/86         82.00
 
                   St. Lukes Hospital Pathology  04/23/86         17.50
 
                   St. Lukes Hospital Pathology  05/08/86        151.50
 
         
 
              Claimant's exhibits 14 through 26 relate to medical costs 
 
         claimed by claimant:
 
         
 
                   Jackson County Hospital       X-ray           $72.00
 
                   Jackson County Hospital       Emergency Rm     27.00
 
                   Jackson County Hospital       Phys Therapy     56.00
 
                   Dubuque Radiological Assoc                     24.00
 
                   Dr. Rosario                   Anesthesia      424.00
 
                   St. Lukes Hospital                              5.00
 
                   St. Lukes Hospital                             30.00
 
                   Dr. Gonzales                  Anesthesia      700.00
 
                   Radiology Group, Davenport    X-rays           25.00
 
                   Radiology Group, Davenport    Myelograms      350.00
 
                   Mercy Hospital, Davenport     Msc.          3,776.35
 
                   Jackson County Hospital                       141.00
 
                   St. Lukes Hospital Pathology  CFS Micro        17.50
 
                                                Total Protein
 
                   St. Lukes Hospital Pathology  Blood Testing   151.50
 
         
 
              Claimant's exhibit 27 is a written itemization of medical 
 
 
 
                            
 
                                                                
 
         mileage as follows:
 
         
 
                     Destination                 Date             Miles
 
                   Dr. Bybee & Rask            09/18/85             10
 
                   Dr. Kreiter                 09/26/85             70
 
                   Dr. Kreiter                 10/03/85             70
 
                   Dr. Collins                 11/01/85             70
 
                   Dr. Collins                 11/22/85             70
 
                   Dr. Collins                 01/07/86             70
 
                   Dr. Collins                 02/24/86             70
 
                   Dr. Collins                 04/14/86             70
 
                   Dr. Collins                 05/29/86             70
 
                   Jackson County Hospital     09/24/85             10
 
                   Jackson County Hospital     09/25/85             10
 
                   Mercy Hospital              10/07/85-10/12/85    70
 
                   St. Lukes Hospital          04/17/86-04/18/86    70
 
                   St. Lukes Hospital          04/30/86-05/06/86    70
 
                   University of Iowa          02/26/87             180
 
         
 
                   Total Miles                                      910
 
         
 
                        APPLICABLE LAW AND ANALYSIS
 
         
 
              Our first concern is whether an employee-employer 
 
         relationship existed between the claimant and defendant.
 
         
 
              Iowa Code sections 85.61(1) provides in part:
 
         
 
              2.  "Worker" or "employee" means a person who has entered 
 
              into employment of, or works under contract of service, 
 
              express or implied, or apprenticeship, for an employer....
 
         
 
              The Iowa Supreme Court stated in Nelson v. Cities Service 
 
         Oil Co., 259 Iowa 1209, 1213, 146 N.W.2d 261 (1967).
 
         
 
                   This court has consistently held it is a claimant's 
 
              duty to prove by a preponderance of the evidence he or his 
 
              decedent was a workman or employee within the meaning of the 
 
              law....
 
         
 
              And, if a compensation claimant establishes a prima facie 
 
              case the burden is then upon defendant to go forward with 
 
              the evidence and overcome or rebut the case made by 
 
              claimant.  He must also establish by a preponderance of the 
 
                                                       
 
                                                                
 
                   evidence any pleaded affirmative defense or bar to 
 
              compensation. (Citations omitted.)
 
         
 
              Given the above, the court set forth its latest standard for 
 
         determining an employer-employee relationship in Caterpillar 
 
         Tractor Co. v. Shook, 313 N.W.2d 503 (Iowa 1981).  The court 
 
         stated in part:
 
         
 
              1.  The employer-employee relationship.  As defined in 
 
              section 85.61(2), The Code, an "employee" is a "person who 
 
              has entered into the employment of, or works under contract 
 
              of service...for an employer."  Factors to be considered in 
 
              determining whether this relationship exists are:  (1) the 
 
              right of selection, or to employ at will, (2) responsibility 
 
              for payment of wages by the employer, (3) the right to 
 
              discharge or terminate the relationship, (4) the right to 
 
              control the work, and (5) identity of the employer as the 
 
              authority in charge of the work or for whose benefit it is 
 
              performed.  The overriding issue is the intention of the 
 
              parties.  McClure v. Union, et al., Counties, 188 N.W.2d 285 
 
              (Iowa 1971).  (Emphasis added).
 
         
 
              The above issue essentially involves a fact question as to 
 
         whether claimant had voluntarily terminated his employment 
 
         relationship with Bork Transport on the evening of September 15, 
 
         1985.  Both parties to the telephone conversation between Mr. 
 
         Gillespie and claimant testified.  Both parties agreed that, 
 
         while claimant made statements as to being unable to work for the 
 
         percentage to which his wage had been cut, claimant had not 
 
         stated expressly that he had quit his employment or that he would 
 
         not take out the load which had been dispatched to him on the 
 
         morning of September 15, 1985.  We note also that claimant's 
 
         letter notification of his percentage wage cut was apparently 
 
         dated August 20, 1985.  We suppose, given that date, that 
 
         claimant had actually received that notification substantially 
 
         earlier than September 15, 1985.  Given that circumstance, we 
 
         believe it would have been most unusual for claimant to have 
 
         waited until September 15, 1985, while bowling, to inform his 
 
         employer that he did not intend to continue working at that wage. 
 
          For that reason also, we find that the evidence does not 
 
         establish an intention on claimant's part to voluntarily 
 
         terminate his employment with Bork on September 15, 1985.  
 
         Claimant prevails on this issue.
 
         
 
              Our next concern is whether claimant received an injury 
 
         which arose out of and in the course of his employment.
 
         
 
              Claimant has the burden of proving by a preponderance of the 
 
         evidence that he received an injury on September 15, 1985 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 129 (1967).
 
         
 
              An employee is entitled to compensation for any and all 
 
         personal injuries which arise out of and in the course of the 
 
                                                       
 
                                                                
 
         employment.  Section 85.3(1).
 
         
 
              The injury must both arise out of and be in the course of 
 
         the employment.  Crowe v. DeSoto Consol. Sch. Dist., 246 Iowa 
 
         402, 68 N.W.2d 63 (1955) and cases cited at pp. 405-406 of the 
 
         Iowa Report.  See also Sister Mary Benedict v. St. Mary's Corp., 
 
         255 Iowa 847, 124 N.W.2d 548 (1963) and Hansen v. State of Iowa, 
 
         249 Iowa 1147, 91 N.W.2d 555 (1958).
 
         
 
              The words "out of" refer to the cause or source of the 
 
         injury.  Crowe v. DeSoto Consol. Sch. Dist., 246 Iowa 402, 68 
 
         N.W.2d 63 (1955).
 
         
 
              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).
 
         
 
              "An injury occurs in the course of the employment when it is 
 
         within the period of employment at a place the employee may 
 
         reasonably be, and while he is doing his work or something 
 
         incidental to it."  Cedar Rapids Comm. Sch. Dist. v. Cady, 278 
 
         N.W.2d 298 (Iowa 1979), McClure v. Union et al. Counties, 188 
 
         N.W.2d 283 (Iowa 1971), Musselman v. Central Telephone Co., 261 
 
         Iowa 352, 154 N.W.2d 128 (1967).
 
         
 
              Again, the question of whether claimant was involved in a 
 
         work incident on the evening of September 15, 1985 is largely a 
 
         fact issue.  Claimant and claimant's wife testified as to the 
 
         incident.  Claimant's wife reported the incident to Mr. Gillespie 
 
         substantially as testified to at hearing.  Mr. Gillespie 
 
         testified that he did receive a call from Teresa Hosch who 
 
         reported claimant had fallen from the truck on the evening of 
 
         September 15, 1985. Medical histories, including that of Dr. 
 
         Bybee, of October 2, 1985 are consistent with a fall from a semi, 
 
         without a fall to the ground.  Defendants' evidence disputing the 
 
         work incident largely concerns whether claimant had intended to 
 
         take out a load that evening and whether claimant could have 
 
         arrived at the truck and fallen, given that claimant had bowled 
 
         approximately two to two and one-half hours that evening.  
 
         Defendants also attempted to impeach claimant's credibility.  
 
         While we do not deny the evidence suggests that, on past 
 
         occasions, claimant has engaged in less than responsible conduct 
 
         and has been less than forthright with his employers, we believe 
 
         the greater weight of evidence indicates that claimant was 
 
         actually at his truck on the evening of September 15, 1985 in the 
 
         vicinity of 10:00 p.m. and that an actual incident in which he 
 
         fell from the truck occurred at that time.  Whether that work 
 
         incident and the aftereffects of the fall rise to the level of an 
 
         injury as defined in our workers' compensation act is largely a 
 
         matter of causal connection and will be discussed further below.
 
         
 
              Our next concern is whether claimant's claim is barred on 
 
         account of intoxication as provided in Iowa Code section 
 
         85.16(2). The section provides that no compensation is allowed 
 
                                                       
 
                                                                
 
         for an injury caused by an employee's intoxication, which did not 
 
         arise out of and in the course of the employment, but which was 
 
         due to the effects of alcohol not prescribed by an authorized 
 
         medical practitioner, if the intoxication was a substantial 
 
         factor in causing the injury.
 
         
 
              Much evidence was presented relative to the issue of whether 
 
         claimant was in fact intoxicated on the evening of September 15, 
 
         1985.  Despite the myriad lay evidence submitted, the evidence 
 
         does not show that claimant was, in the words of one witness who 
 
         actually observed claimant that evening, "roaring drunk." 
 
         Claimant's behavior that evening may have been unusual; he may 
 
         have had a reputation for drinking; and, he may have been more 
 
         forceful than normal in speaking to Mr. Gillespie.  Those items, 
 
         however, without more, do not establish that claimant was 
 
         intoxicated that evening.  Furthermore, one would suspect that, 
 
         if claimant had had observable signs of intoxication, they would 
 
         have been evident during his emergency room visit and Dr. Bybee 
 
         would have reported them.  Dr. Bybee did not note any such signs 
 
         in his report of October 2, 1985 and expressly denied evidence of 
 
         intoxication in two subsequent reports of January, 1986.  Hence, 
 
         we do not find factually that defendants have shown claimant to 
 
         be intoxicated on the evening of.September 15, 1985.  
 
         Furthermore, the legal standard under Iowa Code section 85.16 
 
         requires that the intoxication be a substantial factor in causing 
 
         the injury before the intoxication bars recovery.  A factor is 
 
         substantial when the injury can be directly traceable to it.  
 
         See Holmes v. Bruce Motor Freight, Inc., 215 N.W.2d 296, 297 
 
         (Iowa 1974).  Defendants presented no evidence suggesting that 
 
         claimant's work incident, that is, the fall from the truck, was 
 
         directly traceable to intoxication.  The slip and fall which 
 
         claimant described is not so beyond ordinary events of life that 
 
         one can per se state that an individual's intoxication would be a 
 
 
 
                        
 
                                                                
 
         substantial factor in its occurrence.  The event could well have 
 
         occurred in the absence of any intoxicated state.  Defendants 
 
         have not preponderated on this issue.
 
         
 
              Defendants also assert that claimant's claim is barred as a 
 
         result of misrepresentations to the employer on the job 
 
         application and elsewhere.  Iowa has not adopted the legal 
 
         principle that misrepresentation per se bars recovery.  Even if 
 
         that standard were generally applicable, it would not bar 
 
         recovery in this case, however.  1C Larson Workmen's Compensation 
 
         Law, section 47.53 states:
 
              The following factors must be present before a false 
 
              statement in an employment application will bar benefits:  
 
              (1) The employee must have knowingly and wilfully made a 
 
              false representation as to his physical condition.  (2) The 
 
              employer must have relied upon the false representation and 
 
              this reliance must have been a substantial factor in the 
 
              hiring. (3) There must have been a causal connection between 
 
              the false representation and the injury.
 
         
 
              The defendants have not shown that claimant knowingly and 
 
         willfully made a false representation as to his physical 
 
         condition.  Claimant testified that he had passed all of his DOT 
 
         physicals.  The evidence shows that claimant had had significant 
 
         back problems in 1974 and 1975.  Claimant had treated 
 
         chiropractically for those and testified that they had resolved. 
 
         The only evidence that claimant sought subsequent treatment for 
 
         his back were two notations of chiropractic care obtained in 
 
         1983. Claimant had not had surgery or other nonconservative 
 
         management for back problems.  Such would suggest that claimant 
 
         could well have believed that he had no significant back problems 
 
         at the time of his Bork application.  As a heavy manual laborer, 
 
         claimant could have expected occasional backaches and pains and 
 
         not have seen them as so significant a physical defect as would 
 
         need to be reported on an employment application.  Given those 
 
         facts, it cannot be said that claimant knowingly and willfully 
 
         made a false representation as to his physical condition.  
 
         Likewise, while Mr. Gillespie testified that a back problem would 
 
         be a substantial factor in Bork's decision to hire or to not hire 
 
         a driver, the evidence does not show that the degree of back 
 
         difficulties claimant was having at the time Bork hired him was 
 
         such that those problems, if any, would have been a substantial 
 
         factor in Bork's decision to hire or to not hire claimant.  As 
 
         defendants have failed to show claimant willingly and knowingly 
 
         made a false representation, whether a causal connection existed 
 
         between claimant's preexisting problems and his injury is moot as 
 
         to the issue of whether any false statement barred benefits.
 
         
 
              We consider the question of whether a causal relationship 
 
         exists between claimant's alleged injury and his claimed 
 
         disability.
 
         
 
              The supreme court of Iowa in Almquist v. Shenandoah 
 
         Nurseries, 218 Iowa 724, 731-32, 254 N.W. 35, 38 (1934), 
 
         discussed the definition of personal injury in workers' 
 
                                                       
 
                                                                
 
         compensation cases as follows:
 
         
 
              While a personal injury does not include an occupational 
 
              disease under the Workmen's Compensation Act, yet an injury 
 
              to the health may be a personal injury.  [Citations 
 
              omitted.] Likewise a personal injury includes a disease 
 
              resulting from an injury....The result of changes in the 
 
              human body incident to the general processes of nature do 
 
              not amount to a personal injury.  This must follow, even 
 
              though such natural change may come about because the life 
 
              has been devoted to labor and hard work.  Such result of 
 
              those natural changes does not constitute a personal injury 
 
              even though the same brings about impairment of health or 
 
              the total or partial incapacity of the functions of the 
 
              human body.
 
         
 
                   ....
 
         
 
              A personal injury, contemplated by the Workmen's 
 
              Compensation Law, obviously means an injury to the body, the 
 
              impairment of health, or a disease, not excluded by the act, 
 
              which comes about, not through the natural building up and 
 
              tearing down of the human body, but because of a traumatic 
 
              or other hurt or damage to the health or body of an 
 
              employee.  [Citations omitted.]  The injury to the human 
 
              body here contemplated must be something, whether an 
 
              accident or not, that acts extraneously to the natural 
 
              processes of nature, and thereby impairs the health, 
 
              overcomes, injures, interrupts, or destroys some function of 
 
              the body, or otherwise damages or injures a part or all of 
 
              the body.
 
         
 
              The claimant has the burden of proving by a preponderance of 
 
         the evidence that the injury of September 15, 1985 is causally 
 
         related to the disability on which he now bases his claim.  
 
         Bodish v. Fischer, Inc., 257 Iowa 516, 133 N.W.2d 867 (1965).  
 
         Lindahl v. L. O. Boggs, 236 Iowa 296, 18 N.W.2d 607 (1945).  A 
 
         possibility is insufficient; a probability is necessary.  Burt v. 
 
         John Deere Waterloo Tractor Works, 247 Iowa 691, 73 N.W.2d 732 
 
         (1955).  The question of causal connection is essentially within 
 
         the domain of expert testimony.  Bradshaw v. Iowa Methodist 
 
         Hospital, 251 Iowa 375, 101 N.W.2d 167 (1960).
 
         
 
              However, expert medical evidence must be considered with all 
 
         other evidence introduced bearing on the causal connection.  
 
         Burt, 247 Iowa 691, 73 N.W.2d 732.  The opinion of experts need 
 
         not be couched in definite, positive or unequivocal language.  
 
         Sondag v. Ferris Hardware, 220 N.W.2d 903 (Iowa 1974).  However, 
 
         the expert opinion may be accepted or rejected, in whole or in 
 
         part, by the trier of fact.  Id. at 907.  Further, the weight to 
 
         be given to such an opinion is for the finder of fact, and that 
 
         may be affected by the completeness of the premise given the 
 
         expert and other surrounding circumstances.  Bodish, 257 Iowa 
 
         516, 133 N.W.2d 867.  See also Musselman v. Central Telephone 
 
         Co., 261 Iowa 352, 154 N.W. 128 (1967).
 
                                                       
 
                                                                
 
         
 
              While a claimant is not entitled to compensation for the 
 
         results of a preexisting injury or disease, the mere existence at 
 
         the time of a subsequent injury is not a defense.  Rose v. John 
 
         Deere Ottumwa Works, 247 Iowa 900, 908, 76 N.W.2d 756, 760-761 
 
         (1956).  If the claimant had a preexisting condition or 
 
         disability that is aggravated, accelerated, worsened or lighted 
 
         up so that it results in disability, claimant is entitled to 
 
         recover.  Nicks v. Davenport Produce Co., 254 Iowa 130, 115 
 
         N.W.2d 812, 815 (1962).
 
         
 
              A cause is proximate if it is a substantial factor in 
 
         bringing about the result.  It need be only one cause of the 
 
         result; it need not be the only cause.  Blacksmith v. All 
 
         American, Inc., 290 N.W.2d 348, 354 (Iowa 1980).
 
         
 
              The work incident or activity need not be the sole proximate 
 
         cause of the injury if the injury is directly traceable to the 
 
         incident.  Holmes v. Bruce Motor Freight, Inc., 215 N.W.2d 296, 
 
         297 (Iowa 1974).
 
         
 
              A treating physician's testimony is not entitled to greater 
 
         weight as a matter of law than that of a physician who later 
 
         examines claimant in anticipation of litigation.  Weight to be 
 
         given testimony of physician is a fact issue to be decided by the 
 
         industrial commissioner in light of the record the parties 
 
         develop.  In this regard, both parties may develop facts as to 
 
         the physician's employment in connection with litigation, if so; 
 
         the physician's examination at a later date and not when the 
 
         injuries were fresh; the arrangement as to compensation; the 
 
         extent and nature of the physician's examination; the physician's 
 
         education, experience, training, and practice; and all other 
 
         factors which bear upon the weight and value of the physician's 
 
         testimony may be considered.  Both parties may bring all this 
 
         information to the attention of the factfinder as either 
 
         supporting or weakening the physician's testimony and opinion.  
 
         All factors go to the value of the physician's testimony as a 
 
         matter of fact not as a matter of law.  Rockwell Graphic Systems, 
 
         Inc. v. Prince, 366 N.W.2d 187, 192 (Iowa 1985).
 
         
 
              An expert's opinion based on an incomplete history is not 
 
         necessarily binding on the commissioner, but must be weighed with 
 
         other facts and circumstances.  Musselman v. Central Telephone 
 
         Co., 261 Iowa 352, 360, 154 N.W.2d 128, 133 (1967).
 
         
 
              Dr. Collins, a board-certified neurosurgeon and claimant's 
 
         primary treating physician as regards his chemonucleosis of 
 
         October, 1985 and his laminectomy of May 1, 1986, reported that 
 
         he received no history of claimant bowling prior to his fall.  
 
         Dr. Collins opined that, if claimant had no symptoms while 
 
         bowling, but had symptoms subsequent to the fall, it was the fall 
 
         and not the bowling which produced the symptoms.  He further 
 
         stated, however, that claimant's bowling on September 29, 1985 
 
         did not help claimant's condition and may or may not have 
 
         worsened that condition.  Dr. Kreiter, a board-certified 
 
                                                       
 
                                                                
 
         orthopaedic surgeon who treated claimant early on after September 
 
         15 and subsequently referred him to Dr. Collins, reported that 
 
         bowling results in a forward flexion likely to stress the L5-S1 
 
         and L4-L5 interspaces. He opined that bowling over a two and 
 
         one-half hour period was more likely than slipping three feet 
 
         from a ladder and landing on one's feet to aggravate a 
 
         preexisting back condition, although either could cause back 
 
         problems.  The doctor further stated that, if bowling had 
 
         produced claimant's condition, one would expect aching or a stiff 
 
         back on leaving the bowling alley.  He further testified that 
 
         symptoms may not appear until a time after one has engaged in the 
 
         aggravating activity, however.  Dr. Weinstein, a board-certified 
 
         orthopaedic surgeon who is also assistant professor of 
 
         orthopaedic surgery at the University of Iowa and director of the 
 
         University's spinal center, examined claimant, but did not treat 
 
         him.  Dr. Weinstein opined that a ten-year history of back 
 
         problems with radiation into the right leg and intermittent 
 
         symptoms and treatment could have been a substantial contributing 
 
         factor to claimant's condition after September 15, 1985.  He 
 
         reported that the forces generated by bowling for two or more 
 
         hours are probably more stressful [to the back] than falling two 
 
         to three feet and landing on one's feet, although both " could 
 
         have been" causes of back problems.  The doctor reported that 
 
         there is apparently a continuum of events over a ten-year period, 
 
         including the bowling and the fall, with claimant's back "getting 
 
         bad" somewhere.  He reported that bowling, after having been 
 
         ordered to complete bedrest, could hypothetically substantially 
 
         contribute to a subsequent need for back surgery within two or 
 
         three weeks.  The doctor characterized as "unlikely" that a disc 
 
         at the lower level would cause symptoms at a higher level, given 
 
         the anatonomical makeup of the spinal system.  In his deposition, 
 
         he explained that an earlier characterization, by way of a 
 
         report, of claimant's condition as definitely work-related meant 
 
 
 
                        
 
                                                                
 
         that claimant had told Dr. Weinstein that his incident had 
 
         happened on the job.
 
         
 
              The parties apparently concede that claimant had some sort 
 
         of back condition prior to September 15, 1985.  Even had the 
 
         condition consisted of radial symptoms down the right leg in 1974 
 
         and intermittently subsequent to 1975, those apparently had not 
 
         "acted up" on such a regular basis that claimant sought treatment 
 
         on a consistent basis from 1975 to 1983 and from 1983 until 
 
         September 15, 1985.  At any rate, medical records so indicating 
 
         were not presented at hearing.  Hence, the fighting issue between 
 
         the parties is whether claimant's preexisting back condition was 
 
         aggravated by his bowling on September 15, 1985 and September 29, 
 
         1985, by his fall from a truck on September 15, 1985 or by both 
 
         events.  As regards such, we note that claimant's fall and the 
 
         bowling occurred in extremely close proximity to each other.  For 
 
         that reason, Dr. Collins' statement that claimant should have had 
 
         symptoms while bowling and Dr. Kreiter's statement that claimant 
 
         should likely have had an aching or stiff back on leaving the 
 
         bowling alley are not of any great value in assessing the 
 
         evidence.  While claimant did not complain of back symptoms on 
 
         leaving the alley and his wife indicated that, on observation, he 
 
         did not appear to have back problems on leaving the alley, Dr. 
 
         Kreiter has also testified that one may not realize activity has 
 
         aggravated an underlying condition until time has passed.  Hence, 
 
         it is possible that claimant experienced symptoms which actually 
 
         related back to the bowling and not to the fall. it is also 
 
         possible, as Dr. Weinstein opined, that both the bowling and the 
 
         fall could have been causally related to back problems.  The 
 
         causation with which we are concerned is proximate causation. 
 
         Proximate causation need not be the sole causation, but must be 
 
         directly traceable causation.  We believe that claimant's claim 
 
         fails in that he has not shown by a preponderance of the evidence 
 
         that his back condition is directly traceable to the fall of two 
 
         or three feet on September 15, 1985.  Preponderance of the 
 
         evidence means greater weight of the evidence; that is, the 
 
         evidence of superior influence or efficacy.  Bauer v. Reavell, 
 
         219 Iowa 1212, 260 N.W. 39 (1935).  Claimant does not discharge 
 
         his burden of showing, by a preponderance of the evidence, the 
 
         causal relationship by creating an equipose.  Volk v. 
 
         International Harvester Co., 252 Iowa 298, 106 N.W.2d 649 (1960).  
 
         Both Drs. Kreiter and Weinstein opined that claimant's bowling 
 
         was more likely than his fall to have contributed to his back 
 
         condition. Only Dr. Collins discounted the possibility of 
 
         claimant's bowling having produced claimant's post-September 15, 
 
         1985 back condition. Dr. Collins' opinion was based on the 
 
         absence of reported symptoms while bowling.  As Dr. Kreiter 
 
         noted, it is possible that symptoms can relate to an activity, 
 
         but only be observable or noticed at a time subsequent to the 
 
         activity.  As noted above, the bowling and the fall were in such 
 
         close proximity that symptoms thought to have been produced by 
 
         the later activity could well have been produced by the earlier 
 
         activity.  We do not find that claimant's back problems can be 
 
         directly traceable to his fall, which the greater weight of 
 
         evidence indicates was of less than three feet. Further, Dr. 
 
                                                       
 
                                                                
 
         Kreiter testified that, had claimant bowled on September 29, 1985 
 
         without problems, it would suggest that any problems from 
 
         September 15, 1985 were resolving rapidly.  Both claimant and his 
 
         wife testified claimant bowled on September 29, 1985.  Hence, it 
 
         would appear any problems from the earlier incident were 
 
         resolving as of that date.  For that reason also, we cannot say 
 
         that any subsequent back condition and medical treatment for such 
 
         was directly traceable to claimant's September 15, 1985 fall.  
 
         For that reason also, claimant's claim fails.
 
         
 
              Because claimant has not shown the requisite causal 
 
         relationship between his work incident and his injury and any 
 
         ensuing disability, we need not reach the remaining questions of 
 
         benefit entitlement or entitlement to payment of medical costs.
 
         
 
                                FINDINGS OF FACT
 
         
 
              WHEREFORE, IT IS FOUND:
 
         
 
              On the morning of September 15, 1985, the Bork dispatcher 
 
         instructed claimant to take a semi load for Bork Transport from 
 
         Maquoketa, Iowa to Wauwatosa, Wisconsin for 8 a.m. September 16, 
 
         1985 delivery.
 
         
 
              Claimant and his spouse bowled the first night of mixed 
 
         doubles league on the night of September 15, 1985.
 
         
 
              Claimant and his spouse arrived at the bowling alley at 
 
         about 7:15 p.m.
 
         
 
              Bowling commenced by approximately 7:45 and lasted at least 
 
         two hours, but not more than two and one-half hours.
 
         
 
              Claimant bowled three games of ten frames consisting of two 
 
         balls each.
 
         
 
              Claimant called Bob Gillespie from the bowling alley early 
 
         in the evening of September 15, 1985.
 
         
 
              Claimant discussed a letter dated August 20, 1985 he had 
 
         received from Bork notifying him of a percentage wage cut.
 
         
 
              Claimant stated he could not work for that percentage; he 
 
         did not expressly quit or refuse to take the assigned load.
 
         
 
              Claimant's demeanor, as perceived over the telephone, was 
 
         more forceful than that to which Gillespie was accustomed at 
 
         times when claimant was not drinking.
 
         
 
              Claimant has a reputation for excessive drinking, both in 
 
         his work and his nonwork community.
 
         
 
              Other persons in the bowling alley on the evening of 
 
         September 15, 1985 variously reported claimant as either drinking 
 
         alcohol or not drinking alcohol on that evening.
 
                                                       
 
                                                                
 
         
 
              No one perceived claimant as "roaring drunk" that evening.
 
         
 
              Claimant and his spouse left the bowling alley by at least 
 
         10:00 p.m.
 
         
 
              Claimant could have departed on the run as late as 2:00 
 
         a.m., but chose to leave directly after bowling.
 
         
 
              Claimant had received numerous reprimands for tardiness on 
 
         startups and deliveries.
 
         
 
              Claimant had received a written reprimand for tardiness in 
 
         August, 1985, stating that any further tardiness would result in 
 
         his termination.
 
         
 
              Claimant and his spouse returned home driving east through 
 
         Maquoketa, picked up claimant's suitcase and drove back west 
 
         through Maquoketa to the truck stop where claimant's semi was 
 
         parked.
 
         
 
              Claimant's spouse was driving.  She observed the 20 
 
         mile-per-hour speed limit and observed any of three potential red 
 
         traffic lights.
 
         
 
              After leaving the truck, after starting and inspecting it, 
 
         to say goodbye to his wife, claimant fell a distance of not more 
 
         than three feet while attempting to reenter the truck.
 
         
 
              Claimant and his wife went to the hospital emergency room.
 
         
 
              Claimant reported a fall from his truck to emergency room 
 
         personnel.
 
         
 
              Claimant's wife called Bob Gillespie and advised Gillespie 
 
         that claimant had fallen from his truck and would be unable to 
 
         take the dispatched load.
 
         
 
              Bob Gillespie had advised a second driver to take the load 
 
         as claimant would not be taking the load since claimant was in a 
 
         tavern drinking.
 
         
 
              Claimant advised his treating and examining physicians of 
 
         his fall from the truck.
 
         
 
              Dr. Kreiter directed claimant to complete bedrest on 
 
         September 26, 1985.  Claimant bowled three games of ten frames, 
 
         two balls each on September 29, 1985.
 
         
 
              Claimant had herniated disc at L4-5 and L5-S1.  He had 
 
         chemonucleosis injection in October, 1985 for the L5-S1 disc and 
 
         a laminectomy for the L4-5 disc in May, 1986.
 
         
 
              Claimant had had back pain with radiation into his right leg 
 
         in 1974 and 1975.  He sought chiropractic care for such.
 
                                                       
 
                                                                
 
         
 
              Claimant had intermittent back symptoms to 1985.
 
         
 
              Claimant sought chiropractic back care in 1983 on two 
 
         occasions.
 
         
 
              Claimant had no nonconservative care from 1975 until after 
 
         September 15, 1985.
 
         
 
              Claimant had passed required DOT physicals from 1975 to 
 
              1985.
 
         
 
              Bowling is more likely to aggravate a preexisting back 
 
         condition than a three-foot or less fall.
 
         
 
              Bowling on September 29, 1985 would indicate that any 
 
         condition from September 15, 1985 was resolving quickly.
 
         
 
              An activity can aggravate a back condition without immediate 
 
         onset of pain and stiffness or other symptoms.
 
         
 
              Claimant's bowling of September 15, 1985 and his fall from 
 
         his truck were in very close chronological proximity.
 
         
 
              Claimant's injury and claimed disability are not directly 
 
         traceable to his September 15, 1985 fall.
 
         
 
                              CONCLUSIONS OF LAW
 
         
 
              THEREFORE, IT IS CONCLUDED:
 
         
 
              Claimant has established an employee-employer relationship 
 
         between claimant and defendant.
 
 
 
                              
 
                                                                
 
         
 
              Claimant has established an incident on September 15, 1985, 
 
         which incident arose out of and in the course of his employment.
 
         
 
              Claimant's claim is not barred on account of his 
 
         intoxication as provided for in Iowa Code section 85.16(2).
 
         
 
              Claimant's claim is not barred as a result of 
 
         misrepresentations to the employer on the job application and 
 
         elsewhere.
 
         
 
              Claimant has not established an injury which arose out of 
 
         and in the course of his employment on September 15, 1985 and has 
 
         not established a causal relationship between any work-related 
 
         injury and his claimed disability.
 
         
 
                                    ORDER
 
         
 
              THEREFORE, IT IS ORDERED:
 
         
 
              Claimant take nothing from these proceedings.
 
         
 
              Claimant and defendants share equally the costs of these 
 
         proceedings pursuant to Division of Industrial Services Rule 
 
         343-4.33.
 
         
 
              Signed and filed this 13th day of May, 1988.
 
         
 
         
 
         
 
         
 
         
 
         
 
                                            HELEN JEAN WALLESER
 
                                            DEPUTY INDUSTRIAL COMMISSIONER
 
         
 
         Copies To:
 
         
 
         Mr. James M. Hood
 
         Attorney at Law
 
         302 Union Arcade Building
 
         Davenport, Iowa  52801
 
         
 
         Mr. Stephen w. Spencer
 
         Attorney at Law
 
         300 Fleming Building
 
         218 6th Avenue
 
         Des Moines, Iowa  50309
 
         
 
         
 
         
 
 
 
 
 
                                                       
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                            1108, 1601
 
                                            Filed May 13, 1988
 
                                            HELEN JEAN WALLESER
 
         
 
                  BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         RICHARD HOSCH,
 
         
 
              Claimant,
 
         
 
         vs.
 
         
 
         BORK TRANSPORT, INC.,                         File No. 804991
 
         
 
              Employer,                             A R B I T R A T I 0 N
 
         
 
         and                                           D E C I S I 0 N
 
         
 
         GREAT WEST CASUALTY
 
         COMPANY,
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
         1108, 1601
 
         
 
              Claimant failed to show causal connection between a work 
 
         incident in which he fell less than three feet and aggravation of 
 
         a preexisting back condition where claimant bowled immediately 
 
         before the work incident and against doctor's instructions 
 
         following the work incident.
 
         
 
              Defendants failed to show that claimant was intoxicated when 
 
         he fell or that, if intoxicated, the intoxication was a 
 
         substantial factor in his work injury.
 
 
 
         
 
         
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         _________________________________________________________________
 
         
 
         KAYLENE R. KIEWIET,
 
         
 
              Claimant,
 
         
 
         VS.
 
                                                 File No. 805022
 
         THE HAIR CLINIC,
 
                                                     N U N C
 
              Employer,
 
                                                      P R 0
 
         and
 
                                                     T U N C
 
         THE TRAVELERS,
 
                                                    R U L I N G
 
              Insurance Carrier,
 
              Defendants.
 
         _________________________________________________________________
 
         
 
              On December 24, 1987 an appeal ruling dismissing claimant's 
 
         appeal.  On December 31, 1987 an application for order nunc pro 
 
         tunc was filed pointing out the error that it was not claimant's 
 
         appeal but in fact defendants' appeal.
 
         
 
              The appeal ruling should have read:
 
         
 
              On November 20, 1987 an arbitration decision was filed in 
 
         this contested case.  On December 11, 1987 defendants filed an 
 
         appeal.  On December 21, 1987 claimant filed a motion to dismiss 
 
         defendants' appeal.
 
         
 
              The essence of this matter is that defendants' appeal was 
 
         filed more than twenty days after the arbitration decision was 
 
         filed.
 
         
 
              Iowa Code section 86.24 states: "Any party aggrieved by a 
 
         decision, order, ruling, finding or other act of a deputy 
 
         commissioner in a contested case proceeding arising under this 
 
         chapter or chapter 85 or 85A may appeal to the industrial 
 
         commissioner in the time and manner provided by rule." Division 
 
         of Industrial Services Rule 343-4.27, in part, states:
 
         
 
                   Except as provided in 4.2 and 4.25, an appeal to 
 
              the commissioner from a decision, order, or ruling of a 
 
              deputy commissioner in contested case proceedings where 
 
              the proceeding was commenced after July 1, 1975, shall 
 
              be commenced within twenty days of the filing of the 
 
              decision, order or ruling by filing a notice of appeal 
 
              with the industrial commissioner.
 
         
 
              The notice shall be served on the opposing parties as 
 
              provided in 4.13. An appeal under this section shall be 
 
              heard in Polk county or in any location designated by the 
 
              industrial commissioner.
 
         
 
         (Emphasis supplied.)
 

 
         
 
         
 
         KIEWIET V. THE HAIR CLINIC
 
         Page   2
 
         
 
         
 
              This rule clearly states that the appealing party has twenty 
 
         days following the day in which the deputy commissioner's 
 
         decision, order, or ruling is filed in which to file a notice of 
 
         appeal with the commissioner.
 
         
 
              Iowa Code section 4.1(22) provides the method for computing 
 
         time in applying Rule 343-4.27. It states in part:
 
         
 
                   In computing time, the first day shall be excluded 
 
              and the last included, unless the last falls on Sunday, 
 
              in which case the time prescribed shall be extended so 
 
              as to include the whole of the following Monday, 
 
              provided that, whenever by the prOvisions of any 
 
              statute or rule prescribed under authority of a 
 
              statute, the last day for the commencement of any 
 
              action or proceedings, the filing of any pleading or 
 
              motion in a pending action or proceedings or the 
 
              perfecting or filing of any appeal from the decision or 
 
              award of any court, board, commission or official falls 
 
              on a Saturday, a Sunday, the first day of January, the 
 
              twelfth day of February, the third Monday in February, 
 
              the last Monday in May, the fourth day of July, the 
 
              first Monday in September, the eleventh day of 
 
              November, the fourth Thursday in November, the 
 
              twenty-fifth day of December, and the following Monday 
 
              whenever any of the foregoing named legal holidays may 
 
              fall on a Sunday, and any day appointed or recommended 
 
              by the governor of Iowa or the president of the United 
 
              States as a day of fasting or thanksgiving, the time 
 
              therefor shall be extended to include the next day 
 
              which is not a Saturday, Sunday or such day 
 
              hereinbefore enumerated.
 
         
 
         Therefore, under Rule 343-4.27, the last day on which an appeal 
 
         could be filed from the November 20, 1987 decision of the deputy 
 
         industrial commissioner was December 10, 1987.
 
         
 
              Service of the appeal does not constitute filing.  "A paper 
 
         is said to be filed when it is delivered to the proper officer 
 
         and by him received to be kept on file." Mills v. Board of Iowa 
 
         1141, 1143; 290 N.W. 50, 51 (1941); Bedford v. Supervisors, 162 
 
         Iowa 588, 591; 144 N.W. 301, 302
 
         
 
              See Miller v. Civil Constructors, 373 N.W.2d 115 (1985).
 
         
 
              The deputy's proposed decision was filed on November 20, 
 
         1987.  The twenty-day period prescribed in Division of Industrial 
 
         Services Rule 343-4.27 expired on December 10, 1987.  Thus, the 
 
         proposed decision became, by operation of law, the final decision 
 
         of the agency on December 10, 1987.  Based upon the above 
 
         considerations, the motion to dismiss defendants' notice of 
 
         appeal is sustained.
 
         
 
              THEREFORE, defendants' notice of appeal is hereby 
 
              dismissed.
 
         
 
         
 
               Signed and filed this 13th day of January, 1987.
 
         
 
         
 

 
         
 
         
 
         KIEWIET V. THE HAIR CLINIC
 
         Page   3
 
         
 
         
 
         
 
                                             DAVID E. LINQUIST
 
                                             INDUSTRIAL COMMISSIONER
 
         
 
         Copies To:
 
         
 
         Mr. Robert S. Kinsey III
 
         Attorney at Law
 
         214 North Adams
 
         P.O. Box 679
 
         Mason City, Iowa 50401
 
         
 
         Mr. Mark A. Wilson
 
         Attorney at Law
 
         30 Fourth Street, N.W.
 
         P.O. Box 1953
 
         Mason City, Iowa 50401
 
         
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         _________________________________________________________________
 
         
 
         KAYLENE R. KIEWIET,
 
         
 
              Claimant,
 
         
 
         VS.
 
                                                 File No. 805022
 
         THE HAIR CLINIC,
 
                                                  A P P E A L
 
              Employer,
 
                                                  R U L I N G
 
         and
 
         
 
         THE TRAVELERS,
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         _________________________________________________________________
 
         
 
              On November 20, 1987 an arbitration decision was filed in 
 
         this contested case.  On December 11, 1987 claimant filed an 
 
         appeal.  On December 21, 1987 defendants filed a motion to 
 
         dismiss claimant's appeal.
 
         
 
              The essence of this matter is that claimant's appeal was 
 
         filed more than twenty days after the arbitration decision was 
 
         filed.
 
         
 
              Iowa Code section 86.24 states: "Any party aggrieved by a 
 
         decision, order, ruling, finding or other act of a deputy 
 
         commissioner in a contested case proceeding arising under this 
 
         chapter or chapter 85 or 85A may appeal to the industrial 
 
         commissioner in the time and manner provided by rule." Division 
 
         of Industrial Services Rule 343-4.27, in part, states:
 
         
 
                   Except as provided in 4.2 and 4.25, an appeal to 
 
              the commissioner from a decision, order, or ruling of a 
 
              deputy commissioner in contested case proceedings where 
 
              the proceeding was commenced after July 1, 1975, shall 
 
              be commenced within twenty days of the filing of the 
 
              decision, order or ruling by filing a notice of appeal 
 
              with the industrial commissioner.  The notice shall be 
 
              served on the opposing parties as provided in 4.13. An 
 
              appeal under this section shall be heard in Polk county 
 
              or in any location designated by the industrial 
 
              commissioner.
 
         
 
         (Emphasis supplied.)
 
         
 
              This rule clearly states that the appealing party has twenty 
 
         days following the day in which the deputy commissioner's 
 
         decision, order, or ruling is filed in which to file a notice of 
 
         appeal with the commissioner.
 
         
 
              Iowa Code section 4.1(22) provides the method for computing 
 
         time in applying Rule 343-4.27. It states in part:
 

 
         
 
                   In computing time, the first day shall be excluded 
 
              and the last included, unless the last falls on Sunday, 
 
              in which case the time prescribed shall be extended so 
 
              as to include the whole of the following Monday, 
 
              provided that, whenever by the provisions of any 
 
              statute or rule prescribed under authority of a 
 
              statute, the last day for the commencement of any 
 
              action or proceedings, the filing of any pleading or 
 
              motion in a pending action or proceedings.or the 
 
              perfecting or filing of any appeal from the decision or 
 
              award of any court, board, commission or official falls 
 
              on a Saturday, a Sunday, the first day of January, the 
 
              twelfth day of February, the third Monday in February, 
 
              the last Monday in May, the fourth day of July, the 
 
              first Monday in September, the eleventh day of 
 
              November, the fourth Thursday in November, the 
 
              twenty-fifth day of December, and the following Monday 
 
              whenever any of the foregoing named legal holidays may 
 
              fall on a Sunday, and any day appointed or recommended 
 
              by the governor of Iowa or the president of the United 
 
              States as a day of fasting or thanksgiving, the 
 
              time.therefor shall be extended to include the next day 
 
              which is not a Saturday, Sunday or such day 
 
              hereinbefore enumerated.
 
         
 
         Therefore, under Rule 343-4.27, the last day on which an appeal 
 
         could be filed from the November 20, 1987 decision of the deputy 
 
         industrial commissioner was December 10, 1987.
 
         
 
              Service of the appeal does not constitute filing.  "A paper 
 
         is said to be filed when it is delivered to the proper officer 
 
         and by him received to be kept on file." Mills v. Board of 
 
         Supervisors, 227 Iowa 1141, 1143; 290 N.W. 50,, 51 (1940); 
 
         Bedford v. Supervisors, 162 Iowa 588, 591; 144 N.W. 301, 302 
 
         (1913).
 
         
 
         
 
              See Miller v. Civil Constructors, 373 N.W.2d 115 (1985).
 
         
 
              The deputy's proposed decision was filed on November 20, 
 
         1987.  The twenty-day period prescribed in Division of Industrial 
 
         Services Rule 343-4.27 expired on December 10, 1987.  Thus, the 
 
         proposed decision became, by operation of law, the final decision 
 
         of the agency on December 10, 1987.  Based upon the above 
 
         considerations, the motion to dismiss claimant's notice of appeal 
 
         is sustained.
 
         
 
              THEREFORE, claimant's notice of appeal is hereby dismissed.
 
              Signed and filed this 24th day of December, 1987.
 
         
 
         
 
         
 
         
 
         
 
                                           DAVID E. LINQUIST
 
                                           INDUSTRIAL COMMISSIONER
 
         
 
         
 
         Copies To:
 
         
 
         Mr. Robert S. Kinsey III
 
         214 N. Adams
 
         P.O. Box 679
 

 
         
 
         
 
         
 
         KIEWIET V. THE HAIR CLUB
 
         Page   3
 
         
 
         
 
         Mason City, Iowa 50401
 
         
 
         Mr. Mark A. Wilson
 
         Attorney at Law
 
         30 Fourth Street, N.W.
 
         P.O. Box 1953
 
         Mason City, Iowa 50401
 
         
 
 
         
 
         
 
         
 
         
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         _________________________________________________________________
 
                                         :
 
         LINDA R. ELLINGSON,             :
 
                                         :
 
              Claimant,                  :
 
                                         :
 
         vs.                             :
 
                                         :   File Nos. 805094/1015070
 
         FLEETGUARD, INC.,               :
 
                                         :          A P P E A L
 
              Employer,                  :
 
                                         :        D E C I S I O N
 
         and                             :
 
                                         :
 
         LIBERTY MUTUAL INSURANCE CO.,   :
 
                                         :
 
              Insurance Carrier,         :
 
              Defendants.                :
 
         _________________________________________________________________
 
         
 
              The record, including the transcript of the hearing before 
 
         the deputy and all exhibits admitted into the record, has been 
 
         reviewed de novo on appeal.
 
         
 
                                      ISSUES
 
         
 
              Claimant states the following issues on appeal:
 
         
 
              Did the deputy err by holding that cumulative 
 
              injury(ies) had not been proven?
 
         
 
              Did the deputy err in her award of t.d. compensation?
 
         
 
              Did the deputy err in her award of p.p.d. compensation?
 
         
 
              Did the deputy err in her rate calculation?
 
         
 
              Did the deputy err in her interest/credit findings?
 
         
 
              Did the deputy err by not awarding any section 86.13 
 
              sanctions?
 
         
 
              Did the deputy err by excluding evidence?
 
         
 
              Defendants state the following issues on cross-appeal:
 
         
 
              I.   Whether the Deputy correctly held that Claimant 
 
              sustained only one injury on January 4, 1985.
 
         
 
              II.  Whether the Deputy erred in using the date of Dr. 
 
              Transfeldt's deposition as the date maximum medical 
 
              improvement was reached.
 
         
 
              III. Whether the Deputy erred in her determination of 
 
              healing period and Permanent Partial Disability 
 
              Benefits.
 

 
         
 
         Page   2
 
         
 
         
 
                 A.  The Deputy erred in not finding specific healing 
 
                 period dates.
 
         
 
                 B.  The evidence does not support the 20% award made 
 
                 by the Deputy.
 
         
 
              IV.  Whether the Deputy calculated the rate correctly.
 
         
 
              V.   Whether the Deputy handled the issues of interest 
 
              and credit correctly.
 
         
 
              VI.  Whether the Deputy correctly held that no 
 
              entitlement to 86.13 penalties was demonstrated.
 
         
 
              VII. Whether the Deputy correctly excluded evidence 
 
              from consideration.
 
         
 
                                FINDINGS OF FACT
 
         
 
              The findings of fact contained in the proposed agency 
 
         decision filed February 14, 1994 are adopted as final agency 
 
         action.
 
         
 
                                CONCLUSIONS OF LAW
 
         
 
              The conclusions of law contained in the proposed agency 
 
         decision filed February 14, 1994 are adopted as set forth below.  
 
         Segments designated by asterisks (*****) indicate portions of the 
 
         language from the proposed agency decision that have been 
 
         intentionally deleted and do not form a part of this final agency 
 
         decision.  Segments designated by brackets ([ ]) indicate 
 
         language that is in addition to the language of the proposed 
 
         agency decision.
 
         
 
              We consider claimant's argument that claimant sustained an 
 
         additional injury on June 17, 1992.
 
         
 
              The claimant has the burden of proving by a preponderance of 
 
         the evidence that the alleged injury actually occurred and that 
 
         it arose out of and in the course of employment.  McDowell v. 
 
         Town of Clarksville, 241 N.W.2d 904 (Iowa 1976); Musselman v. 
 
         Cent. Tel. Co., 261 Iowa 352, 154 N.W.2d 128 (1967).  The words 
 
         "arising out of" refer to the cause or source of the injury.  The 
 
         words "in the course of" refer to the time, place and
 
         
 
         
 
         Page   3
 
         
 
         
 
         
 
         circumstances of the injury.  Sheerin v. Holin Co., 380 N.W.2d 
 
         415 (Iowa 1986); McClure v. Union County, 188 N.W.2d 283 (Iowa 
 
         1971).
 
         
 
              The claimant has the burden of proving by a preponderance of 
 
         the evidence that the injury is a proximate cause of the 
 
         disability on which the claim is based.  A cause is proximate if 
 
         it is a substantial factor in bringing about the result; it need 
 
         not be the only cause.  A preponderance of the evidence exists 
 
         when the causal connection is probable rather than merely 
 
         possible.  Blacksmith v. All-American, Inc., 290 N.W.2d 348 (Iowa 
 
         1980); Holmes v. Bruce Motor Freight, Inc., 215 N.W.2d 296 (Iowa 
 
         1974).
 
         
 
              The question of causal connection is essentially within the 
 
         domain of expert testimony.  The expert medical evidence must be 
 
         considered with all other evidence introduced bearing on the 
 
         causal connection between the injury and the disability.  The 
 
         weight to be given to any expert opinion is determined by the 
 
         finder of fact and may be affected by the accuracy of the facts 
 
         relied upon by the expert as well as other surrounding 
 
         circumstances.  The expert opinion may be accepted or rejected, 
 
         in whole or in part.  Sondag v. Ferris Hardware, 220 N.W.2d 903 
 
         (Iowa 1974); Anderson v. Oscar Mayer & Co., 217 N.W.2d 531 (Iowa 
 
         1974); Bodish v. Fischer, Inc., 257 Iowa 516, 133 N.W.2d 867 
 
         (1965).
 
         
 
              When a worker sustains an injury, later sustains another 
 
         injury, and subsequently seeks to reopen an award predicated on 
 
         the first injury, he or she must prove one of two things: (a) 
 
         that the disability for which he or she seeks additional 
 
         compensation was proximately caused by the first injury, or (b) 
 
         that the second injury (and ensuing disability) was proximately 
 
         caused by the first injury.  DeShaw v. Energy Manufacturing 
 
         Company, 192 N.W.2d 777, 780 (Iowa 1971). 
 
         
 
              While claimant seeks to assert a cumulative injury occurring 
 
         on or about June 17, 1992, the treating physician opines that 
 
         claimant's ongoing condition has its origins in her work incident 
 
         of January 4, 1985.  Claimant's continuing symptoms and her need 
 
         for additional surgery and other medical care causally relate 
 
         back to the January 4, 1985 work injury.  Hence, claimant has not 
 
         established a separate injury arising out of and in the course of 
 
         her employment on or about June 17, 1992.  Claimant, of course, 
 
         has established that the disability for which she seeks 
 
         compensation is approximately caused by the January 4, 1985 work 
 
         injury.  Claimant, therefore, is entitled to healing period or 
 
         temporary total disability benefits for those times she was 
 
         actually off work on account of her work condition or on account 
 
         of treatment for her work condition, including her surgery in 
 
         December 1992, and is entitled to an award of permanent partial 
 
         disability benefits for permanent partial disability related to 
 
         the January 4, 1985 work injury and its sequela.  That sequela is 
 
         expressly found to include the December 1992 surgery and 
 
         claimant's permanent restrictions imposed subsequent to that 
 
         surgery.
 
         
 
              Defendants have raised the affirmative defense of whether 
 

 
         
 
         Page   4
 
         
 
         
 
         
 
         
 
         section 85.26(1) acts as a bar as regards claimant's January 4, 
 
         1984 injury.
 
         
 
              An original proceeding for benefits must be commenced within 
 
         three years from the date of the last payment of weekly 
 
         compensation benefits if weekly compensation benefits have been 
 
         paid under section 86.13.  Section 85.26(1).  Failure to timely 
 
         commence an action under the limitation statute is an affirmative 
 
         defense which defendants must prove by preponderance of the 
 
         evidence.  DeLong v. Highway Commissioner, 229 Iowa 700, 295 N.W. 
 
         91 (1940).  
 
         
 
              Claimant filed her original notice and petition on June 18, 
 
         1992.  The form 2A in the file reflects that defendants have made 
 
         some weekly payments in this matter.  Hence, defendants can only 
 
         prevail if claimant received her last weekly workers' 
 
         compensation payment relative to the January 4, 1985 injury on or 
 
         before June 17, 1989.  The record suggests that claimant was off 
 
         work and received weekly benefits on account of the June 4, 1984 
 
         injury from June 4, 1984 onward.  Defendants have provided no 
 
         evidence supporting their statute of limitations defense.  
 
         Therefore, defendants have not established that claimant's claim, 
 
         as regards her January 4, 1985 injury, is barred on account of 
 
         the statute of limitations.
 
         
 
              We reach the question of whether claimant is entitled to 
 
         healing period benefits beyond those defendants have previously 
 
         paid.  
 
         
 
              Section 85.34(1) provides that healing period benefits are 
 
         payable to an injured worker who has suffered permanent partial 
 
         disability until (1) the worker has returned to work; (2) the 
 
         worker is medically capable of returning to substantially similar 
 
         employment; or (3) the worker has achieved maximum medical 
 
         recovery.  The healing period can be considered the period during 
 
         which there is a reasonable expectation of improvement of the 
 
         disabling condition.  See Armstrong Tire & Rubber Co. v. Kubli, 
 
         312 N.W.2d 60 (Iowa Ct. App. 1981).  Healing period benefits can 
 
         be interrupted or intermittent.  Teel v. McCord, 394 N.W.2d 405 
 
         (Iowa 1986).
 
         
 
              Section 85.39 permits an employee to be reimbursed for 
 
         subsequent examination by a physician of the employee's choice 
 
         where an employer-retained physician has previously evaluated 
 
         "permanent disability" and the employee believes that the initial 
 
         evaluation is too low.  The section also permits reimbursement 
 
         for reasonably necessary transportation expenses incurred and for 
 
         any wage loss occasioned by the employee's attending the 
 
         subsequent examination.
 
         
 
              Claimant is entitled healing period benefits for those times 
 
         she was actually off work on account of her January 4, 1985 
 
         injury and its sequela to the time that she reached maximum 
 
         medical improvement.*****[Claimant was released to return to work 
 
         on April 13, 1993 following her second fusion surgery.  Under 
 
         Iowa Code 85.34(1), this ends claimant's healing period.]  
 
         Claimant, therefore, is entitled to healing period benefits 
 
         through April 13, 1993 for those full days on which claimant was 
 

 
         
 
         Page   5
 
         
 
         
 
         
 
         actually off work on account of her work condition.  Claimant 
 
         also is entitled to temporary partial disability benefits for 
 
         those days on which, pursuant to medical restrictions, she worked 
 
         less than eight hours on account of her work-related condition.  
 
         Claimant is not entitled to payment of temporary partial 
 
         disability for those days after April 13, 1993 on which she has 
 
         worked less than a full eight-hour day, even if pursuant to a 
 
         medical restriction.  At the date on which claimant reached 
 
         maximum medical improvement, any inability to work full-time, 
 
         which inability was supported by medical evidence, would need to 
 
         be compensated on an industrial basis and not as related to 
 
         claimant's period of medical healing from her work-related 
 
         condition.  Neither section 85.27 nor section 85.34(1) 
 
         contemplates payment of benefits for such lost time.  While this 
 
         may well represent a legislative oversight within the workers' 
 
         compensation law, remedying that oversight is a task for the 
 
         legislature.*****
 
         
 
              [Similarly, there is no statutory authority for granting 
 
         either healing period or temporary total disability benefits for 
 
         time missed from work to attend doctor's appointments.  Thilges 
 
         v. Snap-On Tools Corp., Arbitration Decision, September 27, 
 
         1991.]
 
         
 
              We reach the question of claimant's entitlement to 
 
         industrial disability including the question of whether claimant 
 
         is permanently and totally disabled.  
 
         
 
              Since 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 Ry. Co., 219 Iowa 587, 258 
 
         N.W.2d 899 (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, 
 
         motivation, loss of earnings, severity and situs of the injury, 
 
         work restrictions, inability to engage in employment for which 
 
         the employee is fitted and the employer's offer of work or 
 
         failure to so offer.  Olson v. Goodyear Serv. Stores, 255 Iowa 
 
         1112, 125 N.W.2d 251 (1963); McSpadden v. Big Ben Coal Co., 288 
 
         N.W.2d 181 (Iowa 1980); Barton v. Nevada Poultry Co., 253 Iowa 
 
         285, 110 N.W.2d 660 (1961).
 
         
 
              Compensation for permanent partial disability shall begin at 
 
         the termination of the healing period.  Compensation shall be 
 
         paid in relation to 500 weeks as the disability bears to the body 
 
         as a whole.  Section 85.34.
 
         
 
              Total disability does not mean a state of absolute 
 
         helplessness.  Permanent total disability occurs where the injury 
 
         wholly disables the employee from performing work that the 
 

 
         
 
         Page   6
 
         
 
         
 
         
 
         
 
         employee's experience, training, education, intelligence and 
 
         physical capacities would otherwise permit the employee to 
 
         perform.  See McSpadden v. Big Ben Coal Co., 288 N.W.2d 181 (Iowa 
 
         1980); Diederich v. Tri-City Ry. Co., 219 Iowa 587, 258 N.W. 899 
 
         (1935).
 
         
 
              A finding that claimant could perform some work despite 
 
         claimant's physical and educational limitations does not 
 
         foreclose a finding of permanent total disability, however.  See 
 
         Chamberlin v. Ralston Purina, File No. 661698 (App. October 29, 
 
         1987); Eastman v. Westway Trading Corp., II Iowa Industrial 
 
         Commissioner Report 134 (App. 1982).
 
         
 
              Initially, claimant has not established that claimant is 
 
         permanently and totally disabled.  The employer has accommodated 
 
         claimant and claimant was working at time of hearing.  While 
 
         claimant's permanent restrictions do preclude claimant from doing 
 
         a number of jobs in the employer's plant, including a number of 
 
         production level jobs, both the lay and the medical evidence 
 
         suggests that in many ways claimant is self-limiting and that 
 
         this, and not her work injury, is the source of her disability.  
 
         The permanent restrictions Dr. Transfeldt has placed, 
 
         nevertheless, would preclude claimant from a variety of factory 
 
         type jobs which she otherwise could perform.  Claimant's 20-pound 
 
         lifting restriction per Dr. Johnson and Mr. Bower would also 
 
         preclude claimant from a variety of heavy industrial jobs.  This 
 
         limitation, it is noted, is largely a result of claimant's 
 
         self-limiting as to lifting and not as a result of objective 
 
         potential performance testing which Mr. Bower performed.  At time 
 
         of hearing, claimant remained working on only a four-hour per day 
 
         basis.  The record is unclear whether that represents a permanent 
 
         restriction.*****Claimant has not established a permanent medical 
 
         restriction to working four hours per day.  It would appear, 
 
         indeed, from Dr. Transfeldt's comments in his deposition, that 
 
         were claimant to continue to work only four hours per day in the 
 
         future at activities such as copying, keyboarding, and light 
 
         inspecting and inventory work such as the employer has provided 
 
         to claimant since her work injury, that would be a personal 
 
         choice of claimant's not related to claimant's physiological 
 
         ability to perform work throughout a regular eight-hour work day.  
 
         On June 22, 1992, Dr. Rodney Johnson assigned claimant a 10 
 
         percent permanent partial impairment to the body as a whole as a 
 
         result of her initial one level fusion.  Dr. Transfeldt has 
 
         declined to assign claimant a permanent partial impairment rating 
 
         subsequent to her December 31, 1992 second fusion.  Claimant's 
 
         complaints and restrictions remain substantially the same 
 
         subsequent to the second fusion as subsequent to the first fusion 
 
         and prior to the second fusion.  The American Medical Association 
 
         Guides generally attribute an additional two percent disability 
 
         following a second spinal surgical procedure.  Dr. Johnson's 
 
         initial impairment rating and the second surgery, hence, suggest 
 
         that claimant has a moderate permanent physical impairment on 
 
         account of her January 4, 1985 work injury.  As noted, defendants 
 
         have made admirable efforts to accommodate claimant.  Claimant, 
 
         unfortunately, does not appear well motivated to take personal 
 
         responsibility for her work life or to work within the level 
 
         which her treating physicians suggest she is capable.  Claimant 
 

 
         
 
         Page   7
 
         
 
         
 
         
 
         
 
         has established a permanent partial industrial disability of 20 
 
         percent of the body as a whole on account of her January 4, 1985 
 
         work injury.  Claimant's permanent partial disability benefits 
 
         commence on August 12, 1993.
 
         
 
              We reach the question of claimant's appropriate rate of 
 
         weekly compensation.
 
         
 
              Claimant's earning in the 15 weeks immediately prior to her 
 
         January 4, 1985 work injury were as follows:
 
         
 
               Dates          Hours    Earnings
 
         
 
              09/23/84        48.3      $335.69
 
              09/30/84        40         278.00
 
              10/07/84        43.3       300.94
 
              10/14/84        40         278.00
 
              10/21/84        40.8       283.57
 
              10/28/84        40         278.00
 
              11/04/84        40         278.00
 
              11/11/84        33.50      232.83
 
              11/18/84        40         278.00
 
              11/25/84        40         278.00
 
              12/02/84        40         278.00
 
              12/09/84        41         288.43
 
              12/16/94        41         288.43
 
              12/23/84        41.50      293.99
 
              12/30/84        40         278.00 
 
         
 
         
 
              Claimant contends that the week of November 11, 1984 is a 
 
         nonrepresentative work week and, therefore, should be excluded in 
 
         determining claimant's wage.*****Defendants apparently do not 
 
         dispute that claimant was paid on an hourly basis such that 
 
         section 85.36(6) is controlling.  The section provides: 
 
         
 
                 In the case of an employee who is paid on a daily, 
 
              or hourly basis, or by the output of the employee, the 
 
              weekly earnings shall be computed by dividing by 
 
              thirteen the earnings, not including overtime or 
 
              premium pay, of said employee earned in the employ of 
 
              the employer in the last completed period of thirteen 
 
              consecutive calendar weeks immediately preceding the 
 
              injury.
 
         
 
              *****
 
         
 
              Claimant urges that the week of November 11, 1984 should not 
 
         be utilized in her rate calculation as it was an unrepresentative 
 
         week.  Although claimant's evidence on why this week is 
 
         unrepresentative is minimal, a perusal of the other 14 weeks set 
 
         forth in the record shows that claimant always worked at least 40 
 
         hours per week.  The only exception is the week of November 11, 
 
         1984, which sets forth only 33.5 hours.  It appears that claimant 
 
         did miss a day of work that week, for whatever reason, and that 
 
         the week of November 11, 1984 is unrepresentative of her normal 
 
         earnings.  Thus, the week of November 11, 1984 will not be 
 
         utilized in the rate calculation.
 

 
         
 
         Page   8
 
         
 
         
 
         
 
         
 
              Claimant's 40 hour work weeks resulted in wages of $278 or 
 
         $6.95 per hour.  In the 13 representative weeks prior to 
 
         claimant's injury (excluding the week of November 11, 1984 and 
 
         including the week of September 30, 1984), claimant worked a 
 
         total of 527.6 hours.  Multiplying that number of hours times the 
 
         hourly wage of $6.95 yields $3,666.82.  Dividing that amount by 
 
         13, a gross weekly wage of $282.06.  Claimant is married and has 
 
         six exemptions.  Claimant's weekly compensation rate is $192.12.
 
         
 
              Claimant seeks payment of medical expenses set forth in her 
 
         "Itemized List of Disputed Medical Expenses" attached to the 
 
         parties' hearing report.  The amounts itemized appear to relate 
 
         to treatment received on or after December 15, 1992 relative to 
 
         claimant's condition for which she underwent surgery on December 
 
         31, 1992.  It is noted Dr. Transfeldt has related claimant's 
 
         medical condition for which she underwent surgery in December 
 
         1992 to her original work injury of January 4, 1985.  The 
 
         employer shall furnish reasonable surgical, medical, dental, 
 
         osteopathic, chiropractic, podiatric, physical rehabilitation, 
 
         nursing, ambulance and hospital services and supplies for all 
 
         conditions compensable under the workers' compensation law.  The 
 
         employer shall also allow reasonable and necessary transportation 
 
         expenses incurred for those services.  The employer has the right 
 
         to choose the provider of care, except where the employer has 
 
         denied liability for the injury.  Section 85.27.  Holbert v. 
 
         Townsend Engineering Co., Thirty-second Biennial Report of the 
 
         Industrial Commissioner 78 (Review-reopen 1975).
 
         
 
              The employer denied liability for claimant's 1992 condition.  
 
         In doing so, they abandoned claimant as far as her receiving 
 
         reasonable and necessary medical care causally related to an 
 
         underlying work-related condition.  Defendants, therefore, cannot 
 
         properly raise the defense of lack of authorization.  Claimant is 
 
         entitled to payment of the medical expenses claimant has set 
 
         forth on claimant's itemized list of disputed medical expenses.  
 
         It is noted that a substantial number of these expenses were paid 
 
         pursuant to the accident and health insurance coverage which the 
 
         employer provides claimant.  Pursuant to section 85.38(2), 
 
         defendants are entitled to a credit for such amounts insofar as 
 
         those amounts would not have been paid for a work-related 
 
         condition.
 
         
 
              Apparently, claimant has also received long-term disability 
 
         benefits pursuant to an employer provided disability plan.  
 
         Defendants, of course, would be entitled to a credit as regards 
 
         those benefits as well insofar as such benefits would not have 
 
         been paid where disability resulted on account of a work-related 
 
         condition.
 
         
 
              Claimant has raised an issue as regards the due date for 
 
         compensation in what claimant characterizes as payment credit 
 
         date.  We are uncertain as to what claimant's issue actually 
 
         relates.  We do offer claimant the following guidance, however.  
 
         Compensation is due when the compensation accrues.  As regards 
 
         permanent partial disability compensation, compensation is due on 
 
         a weekly basis from the commencement date.  As regards temporary 
 
         partial, temporary total, and healing period benefits, it cannot 
 

 
         
 
         Page   9
 
         
 
         
 
         
 
         be determined whether these benefits will be owed, that is, there 
 
         is no liquidated amount due, until the first day of the first 
 
         week subsequent to the week for which the benefits are paid.  
 
         This is so because claimant's actually being off work on a full 
 
         or part-time basis during the preceding week is a condition 
 
         precedent to defendants' liability for benefits.  
 
         
 
              Claimant also seeks a determination of "the amount of 
 
         credits for weekly benefits."*****Defendants certainly are 
 
         entitled to a credit for weekly benefits defendants have paid 
 
         claimant.  If, and where, defendants have paid claimant weekly 
 
         benefits while claimant was not actually off work on account of 
 
         her injury on the assumption that claimant had already reached 
 
         maximum medical improvement and, therefore, permanent partial 
 
         disability benefits were due claimant, defendants are entitled to 
 
         a credit for benefits paid as permanency benefits at such times 
 
         as against the award of permanency made in this decision.  
 
         Likewise, if defendants have paid claimant benefits characterized 
 
         as temporary partial benefits or as temporary total or healing 
 
         period benefits which benefits are in excess of the benefits to 
 
         which claimant has established an entitlement, defendants are 
 
         entitled to credit such benefits as against the permanency award 
 
         established in this decision.  See section 85.34(4).  
 
         
 
              Claimant seeks a determination of what, if any, interest is 
 
         due under section 85.30.  Defendants shall pay interest as they 
 
         are obligated under that section of the law.*****[This agency] is 
 
         not required to calculate interest to which claimant may be 
 
         entitled.  The parties are to work together to achieve that 
 
         calculation.  If they are not able to do so, claimant may bring 
 
         another action before the industrial commissioner to determine 
 
         that issue.  See Weishaar v. Snap-on Tools Corp., 506 N.W.2d 786 
 
         (Iowa Court of Appeals 1993).
 
         
 
              Claimant seeks additional benefits pursuant to section 
 
         86.13, unnumbered paragraph 4.  
 
         
 
              Section 86.13 permits an award of up to 50 percent of the 
 
         amount of benefits delayed or denied if a delay in commencement 
 
         or termination of benefits occurs without reasonable or probable 
 
         cause or excuse.  The standard for evaluating the reasonableness 
 
         of defendants' delay in commencement or termination is whether 
 
         the claim is fairly debatable.  Where a claim is shown to be 
 
         fairly debatable, defendants do not act unreasonably in denying 
 
         payment.  See Stanley v. Wilson Foods Corp., File No. 753405 
 
         (App. August 23, 1990); Seydel v. Univ. of Iowa Physical Plant, 
 
         File No. 818849 (App. November 1, 1989).  Additionally, 
 
         negligence in initiating or timely paying benefits may constitute 
 
         grounds for imposition of a penalty.  Boylan v. American 
 
         Motorists Ins. Co., Iowa, 489 N.W.2d 742 (IA 1992).  Also, 
 
         penalty cannot be based upon interest due on late compensation 
 
         payments.  Weishaar Supra. 
 
         
 
              Whether claimant's condition and her complaints after her 
 
         first fusion surgery related to her work injury of January 4, 
 
         1985 or related to a nonwork condition was fairly debatable.  
 
         Additionally, this record is devoid of any evidence suggesting 
 
         that defendants behaved negligently in determining or failing to 
 

 
         
 
         Page  10
 
         
 
         
 
         
 
         
 
         determine whether claimant had a work-related condition.  
 
         Claimant has not established an entitlement to additional 
 
         benefits pursuant to section 86.13, unnumbered 4.  
 
         
 
              WHEREFORE, the decision of the deputy is affirmed and 
 
         modified.
 
         
 
                                      ORDER
 
         
 
              THEREFORE, it is ordered:
 
         
 
              That defendants pay claimant permanent partial disability 
 
         benefits for twenty (20) weeks at a rate of one hundred 
 
         ninety-two and 12/100 dollars ($192.12) with those payments to 
 
         commence on August 12, 1993.
 
         
 
     
 
         
 
         
 
         Page  11
 
         
 
         
 
         
 
         
 
         That defendants pay claimant healing period benefits for those 
 
         full days on which claimant was actually off work as a result of 
 
         her work injury or as result of treatment related to her work 
 
         injury from January 4, 1985 through April 11, 1993.  
 
         
 
              That defendants receive credit for amounts previously paid.
 
         
 
              That defendants pay any accrued amounts in a lump sum.
 
         
 
              That defendants receive credit as appropriate for benefits 
 
         paid claimant under the employer provided sickness and health 
 
         policy and the employer provided long-term disability policy to 
 
         the extent that any such benefits would not have been paid 
 
         claimant on account of a work-related injury. 
 
         
 
              That defendants pay claimant medical expenses as set forth 
 
         in claimant's itemized list of disputed medical expenses.
 
         
 
              That defendants pay claimant temporary partial disability 
 
         for those days on which claimant worked less than eight hours 
 
         pursuant to a medical restriction with any such payments to 
 
         commence on or after claimant's January 4, 1985 date of injury 
 
         and continue through August 11, 1993.
 
         
 
              That defendants pay interest pursuant to section 85.30.
 
         
 
              That defendants pay costs pursuant to rule 343 IAC 4.33.
 
         
 
              That defendants file claim activity reports as the agency 
 
         orders.
 
         
 
              Signed and filed this ____ day of June, 1994.
 
         
 
         
 
                                       ________________________________
 
                                                BYRON K. ORTON
 
                                           INDUSTRIAL COMMISSIONER
 
         
 
         Copies To:
 
         
 
         Mr. Mark S. Soldat
 
         Attorney at Law
 
         714 E. State St.
 
         Algona, Iowa 50511
 
         
 
         Mr. Tito Trevino
 
         Attorney at Law
 
         P.O. Box 1680
 
         Fort Dodge, Iowa 50501
 
         
 
 
            
 
            
 
            
 
            
 
                                               1108.50; 2200; 1802; 
 
                                               1801.1; 1803
 
                                               Filed June 30, 1994
 
                                               Byron K. Orton
 
            
 
            
 
                      BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
                ----------------------------------------------------
 
                                            :
 
            LINDA R. ELLINGSON,             :
 
                                            :
 
                 Claimant,                  :
 
                                            :
 
            vs.                             :
 
                                            :   File Nos. 805094/1015070
 
            FLEETGUARD, INC.,               :
 
                                            :          A P P E A L
 
                 Employer,                  :
 
                                            :        D E C I S I O N
 
            and                             :
 
                                            :
 
            LIBERTY MUTUAL INSURANCE CO.,   :
 
                                            :
 
                 Insurance Carrier,         :
 
                 Defendants.                :
 
            ____________________________________________________________
 
            1108.50; 2200; 1802; 1801.1; 1803
 
            
 
                 Per treating physician's opinion testimony, claimant's 
 
            continuing complaints and need for additional surgery 
 
            related back to her original injury and did not constitute a 
 
            new injury by way of cumulative aggravation of a preexisting 
 
            condition resulting from the original injury.  
 
            
 
                 Claimant entitled to temporary partial disability 
 
            benefits during those periods of time in which claimant 
 
            worked less than an eight hour day pursuant to an express 
 
            medical restriction.  
 
            
 
                 Claimant entitled to healing period benefits for those 
 
            days when claimant was actually off work on account of the 
 
            work-related injury and its sequela or actually off work for 
 
            a full day on account of the need for treatment for the 
 
            work-related injury.  Prior to July 1, 1994 the workers' 
 
            compensation law does not provide for payment of time lost 
 
            for less than a full day for treatment under section 85.27.  
 
            
 
                 Held that claimant whose personal perception of her 
 
            limitations differed significantly from her treating 
 
            physician's opinion as to the level of discomfort she should 
 
            experience while engaging in various work-related activities 
 
            and activities of daily living and whose lifting restriction 
 
            of 20 pounds resulted from self-limitation which was 
 
            substantially less [approximately one-third] of that which 
 
            objective mechanized testing established claimant 
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            objectively should have been able to perform, awarded 20 
 
            percent permanent partial disability subsequent to second 
 
            cervical fusion.  Claimant remained at work albeit on a 
 
            part-time basis.  The employer had made substantial efforts 
 
            to accommodate claimant which efforts claimant often 
 
            thwarted given claimant's self perceptions as to those 
 
            activities in which she could engage.
 
            
 
            
 
 
            
 
            
 
            
 
            
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
                      
 
            LINDA R. ELLINGSON, 
 
                      
 
                 Claimant, 
 
                      
 
            vs.       
 
                                           File Nos. 805094 1015070
 
            FLEETGUARD, INC.,   
 
                                            A R B I T R A T I O N
 
                 Employer, 
 
                                               D E C I S I O N
 
            and       
 
                      
 
            LIBERTY MUTUAL INSURANCE CO., 
 
                      
 
                 Insurance Carrier,  
 
                 Defendants.    
 
            ___________________________________________________________
 
                              STATEMENT OF THE CASE
 
            
 
                 These are proceedings in arbitration brought by the 
 
            claimant, Linda R. Ellingson, against her employer, 
 
            Fleetguard, Inc., and its insurance carrier, Liberty Mutual, 
 
            to recover benefits under the Iowa Workers' Compensation Act 
 
            as a result of an injury sustained on January 4, 1985 and an 
 
            injury allegedly sustained on June 17, 1992.  This matter 
 
            came on for hearing before the undersigned deputy industrial 
 
            commissioner in Mason City, Iowa, on September 15, 1993.  A 
 
            first report of injury has been filed relative to the 
 
            January 4, 1985 injury date.  The record consists of the 
 
            testimony of claimant, of John L. Ellingson, of Karen 
 
            Henderson, of Diana K. Roper, of Don Westrom, and of 
 
            Virginia Cooper as well as of claimant's exhibits 1 through 
 
            D excepting medical notes of August 4, 1993, August 9, 1993, 
 
            and September 13, 1993, and defendants' exhibits 1 through 
 
            4.  As to the omitted portions of claimant's exhibit D, the 
 
            record contains no evidence that those office notes were 
 
            timely served.  A note only generated on September 13, 1993, 
 
            that is, two days prior to hearing clearly has the capacity 
 
            to constitute prejudicial surprise for defendants.  Notes 
 
            generated within five weeks of hearing and offered without 
 
            evidence that they were timely and properly served on 
 
            defendants at least 30 days prior to hearing also are 
 
            strongly likely to constitute prejudicial surprise.  
 
            Defendants' motion for sanctions is denied.  While we are 
 
            deeply disturbed at the district court's failure to honor 
 
            prior rulings of this agency regarding timeliness of case 
 
            preparation on claimant's part and do believe that the 
 
            district court's ruling in this matter essentially obviated 
 
            this administrative agency's ability to properly control its 
 
            own proceedings, we agree with claimant that the proper 
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            forum for discussing sanctions related to a subpoena duces 
 
            tecum is the district court and not this administrative 
 
            agency.  Defendants' exhibit 5 is expressly excluded from 
 
            evidence.  That exhibit, a statement of costs related to 
 
            defendants' compliance with the district court's ruling on 
 
            the motion to quash the subpoena duces tecum is not relevant 
 
            to this administrative proceeding given the denial of 
 
            defendants' motion for sanctions.
 
            
 
                                     ISSUES 
 
            
 
                 Pursuant to the hearing report and the oral 
 
            stipulations of the parties at hearing, the parties have 
 
            agreed to the following:
 
            
 
                 1.  An employer-employee relationship existed between 
 
            claimant and Fleetguard, Inc. on January 4, 1985 and June 
 
            17, 1992;
 
            
 
                 2.  A causal relationship exists between the January 4, 
 
            1985 work injury and a period of healing period disability; 
 
            
 
                 3.  A causal relationship exists between the January 4, 
 
            1985 work injury and a period of permanent partial 
 
            disability; 
 
            
 
                 4.  Claimant was married and entitled to six exemptions 
 
            on January 4, 1985; 
 
            
 
                 5.  Claimant was married and entitled to three 
 
            exemptions from 1990 through 1993; 
 
            
 
                 6.  Fees for medical services were fair and reasonable 
 
            and a causal relationship exists between the medical 
 
            services rendered and the condition treated.
 
            
 
                 Issues remaining to be decided are:
 
            
 
                 1.  Whether claimant received an injury arising out of 
 
            and in the course of her employment on June 17, 1992;
 
            
 
                 2.  Whether a causal relationship exists between that 
 
            claimed injury and claimed temporary total/healing period 
 
            and permanent partial disability;
 
            
 
                 3.  The nature and extent of claimant's benefit 
 
            entitlement regarding the January 4, 1985 injury and 
 
            regarding the alleged June 17, 1992 injury and including the 
 
            question of whether claimant is permanently and totally 
 
            disabled;
 
            
 
                 4.  Claimant's gross weekly earnings and rate of weekly 
 
            compensation;
 
            
 
                 5.  Whether claimant is entitled to payment of certain 
 
            medical costs as reasonable and necessary treatment causally 
 
            related to her work injury and as defendant authorized;
 
            
 
                 6.  Amount of credit to which defendants are entitled 
 
            for weekly benefits previously paid and amount of credits to 
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            which defendants are entitled, if any, pursuant to section 
 
            85.32(2);
 
            
 
                 7.  Whether claimant is entitled to penalty benefits 
 
            pursuant to section 86.13, unnumbered paragraph 4;
 
            
 
                 8.  Dates on which compensation was due claimant and 
 
            payment credit dates; and
 
            
 
                 9. Claimant's entitlement to 85.30 interest.
 
            
 
                                 FINDINGS OF FACT
 
            
 
                 The deputy, having heard the testimony and considered 
 
            the evidence, finds:
 
            
 
                 Claimant is a 44-year-old woman who was first employed 
 
            with Fleetguard in 1969 and has been employed steadily with 
 
            Fleetguard since June 1979.  Claimant has completed tenth 
 
            grade.  Claimant testified that prior to her injury she had 
 
            routinely worked at least a 40-hour week at Fleetguard.  At 
 
            time of hearing, claimant stated that pursuant to medical 
 
            restrictions, she was working only four hours per day.  
 
            
 
                 Office notes of D. E. Colby, D.O., claimant's family 
 
            physician, demonstrate that claimant has had long-term, 
 
            chronic complaints of neck pain and headaches beginning 
 
            substantially prior to January 4, 1985.  On January 4, 1985 
 
            a Friday, a box fell and hit claimant on the head.  Claimant 
 
            left work that day and did not return until Monday, January 
 
            7, 1985.  She was then placed on light duty writing tickets 
 
            in the warehouse.  Claimant reported increased pain and 
 
            "face tingling" in the months following January 4, 1985 for 
 
            which she treated with Dr. Colby.  On July 15, 1985, Dr. 
 
            Colby restricted claimant from working with her head in 
 
            flexion.  On October 28, 1985, Dr. Colby released claimant 
 
            from medical care without restrictions.  
 
            
 
                 Claimant reported she could work with tolerable pain 
 
            until June 1987 when while working with Chryles gaskets her 
 
            pain became more acute.  On June 30, 1987, Dr. Colby took 
 
            claimant off work indefinitely.  Claimant underwent work 
 
            hardening in the Summer 1987 and on August 14, 1987, Dr. 
 
            Colby returned claimant to work for four hours per day as of 
 
            August 17, 1985.  
 
            
 
                 On October 19, 1987, G. F. Reisdorp, M.D. examined 
 
            claimant.  She than had full range of motion of the cervical 
 
            spine but for having 70 degrees of flexion only.  Claimant 
 
            then denied headache or radiation of pain into the scapular 
 
            region.  Her pain was mainly localized in the trapizius 
 
            muscles.  
 
            
 
                 On December 1, 1987, Dr. Colby indicated claimant could 
 
            work six hours per night throughout a seven day work week.  
 
            On January 4, 1988, Dr. Colby returned claimant to full duty 
 
            work on an eight-hour per day basis without restrictions.
 
            
 
                 Claimant had continuing complaints.  In approximately 
 
            August 1988, Dr. Colby referred claimant to Ensor E. 
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
            Transfeldt, M.D., a board certified orthopedic surgeon who 
 
            is director of the Division of Spine Surgery at the 
 
            Department of Orthopedics at the University of Minnesota.  
 
            Dr. Transfeldt examined claimant on August 12, 1988.  
 
            Claimant then had complaints of neck pain Dr. Transfeldt 
 
            attributed to a soft tissue cervical spine injury.  She had 
 
            no evidence of nerve root irritation or impingement.  X-rays 
 
            taken on that date showed minimal loss of the normal 
 
            lordortic curvature of the lower cervical spine but were 
 
            otherwise negative.  Claimant reported that she returned to 
 
            work in 1988 with difficulties and that she had headaches 
 
            and right arm numbness.  
 
            
 
                 On February 17, 1989, Dr. Transfeldt reported that on 
 
            review claimant's x-rays showed some sort of "facet problem" 
 
            at apparently C7-T1.  He opined that this may represent a 
 
            facet fracture or locked facet which was causing significant 
 
            mechanical pain without neurological involvement.  
 
            
 
                 Dr. Colby apparently took claimant off work on May 3, 
 
            1989.  On November 6, 1989, Dr. Colby opined claimant could 
 
            do the press operator job provided she did not do more than 
 
            two hours of can packing in any eight-hour shift.  Claimant 
 
            remained off work until January 3, 1990, however.  Claimant 
 
            apparently returned to work as a press operator.  Claimant 
 
            was unable to perform this job to company standards.  
 
            
 
                 A cervical discogram was performed on February 8, 1990.  
 
            Dr. Transfeldt reported that injection of the C6-7 
 
            intervertebral disc reproduced claimant's characteristic 
 
            neck and right shoulder pain.  On February 16, 1990, he 
 
            further stated that the discogram revealed significant 
 
            degenerative disc [disease].  
 
            
 
                 On March 5, 1990, Dr. Transfeldt performed an anterior 
 
            C6-7 discectomy and fusion with bone craft.  Claimant was 
 
            then off work until September 16, 1990.  Claimant reported 
 
            that some assembly jobs bothered her and, therefore, she 
 
            requested that she be transferred to departments where she 
 
            could trade jobs more often.  She indicated Fleetguard 
 
            denied that request and that she  traded jobs on her own 
 
            when trading was possible.  Claimant reported that on one 
 
            job she was required to handle approximately 40 filters per 
 
            minute while looking down and packing then.  She 
 
            characterized this job as causing her excruciating pain.  
 
            
 
                 On January 25, 1991, Dr. Transfeldt characterized 
 
            claimant as "doing quite well" with mild intermittent neck 
 
            pain and quite mild paravertebral spasm on palpation.  
 
            Claimant had no radicular signs or symptoms.  Dr. Transfeldt 
 
            released claimant for re-examination in approximately one 
 
            year.  On March 6, 1991, claimant returned complaining of 
 
            severe neck pain with radicular symptoms on the right.  An 
 
            MRI performed that date showed mild thickening and slight 
 
            bulging of the posterior disc annulus at C5-6 without 
 
            evidence of a herniated disc or neurological impingement.  
 
            Other disc margins were interpreted as normal.
 
            
 
                 Claimant reported a sudden onset of pain on or about 
 
            October 8, 1991 for which she saw Drs. Colby and Transfeldt.  
 

 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
            On October 25, 1991 examination, Dr. Transfeldt reported 
 
            that claimant had some decrease in neck flexion and normal 
 
            extension and rotation and side bending.  She had no 
 
            neurological deficit and was "at risk for intermittent neck 
 
            pain episodes in the future."  On November 15, 1991, Dr. 
 
            Transfeldt restricted claimant from doing work requiring 
 
            repetitive neck movement and work requiring claimant to lift 
 
            objects with her hands and work requiring claimant to use 
 
            her hands extended out from her body.  Fleetguard attempted 
 
            to return claimant to work writing in company log books and 
 
            running the copy machine.  Claimant reported that both jobs 
 
            required her to look down which aggravated her pain.  
 
            
 
                 On November 15, 1991, claimant applied for the position 
 
            of security guard at Fleetguard.  On November 19, 1991, 
 
            claimant withdrew her application citing family reasons.  At 
 
            hearing, claimant stated that she also turned down the job 
 
            since she could not physically do the walking and snow 
 
            shoveling it would have entailed.  Claimant's 
 
            contemporaneous statements of reasons for withdrawing her 
 
            application on November 19, 1991 are given greater weight 
 
            than claimant's testimony at hearing as regards her reasons 
 
            for withdrawing her application.  The starting wage on the 
 
            security guard position was $8.02 per hour with an increase 
 
            to $8.18 per hour after six months.
 
            
 
                 In early Winter and Spring 1992, claimant worked both 
 
            as an inspector in the press room and as a copy machine 
 
            operator.  She reported that both positions required her to 
 
            look down and, therefore, produced pain.  Claimant reported 
 
            that she often either rested at the nurse's station or left 
 
            work in Spring 1992 on account of pain.  In early May 1992 
 
            claimant was offered a third shift cleaning job.  Claimant 
 
            declined the job offer on account of her belief that she 
 
            could not do that work.  On May 20, 1992, Dr. Colby reported 
 
            that claimant had "plateaued" as regards her medical 
 
            healing.  He characterized as "extremely guarded" the 
 
            likelihood of claimant working for Fleetguard on a long-term 
 
            basis.  
 
            
 
                 Claimant saw Rodney C. Johnson, M.D., for an 
 
            independent medical evaluation on June 22, 1992.  Thomas U. 
 
            Bower, P.T., performed a functional capacity evaluation at 
 
            that time.  Claimant testified that she had not told Mr. 
 
            Bower about the severe bronchitis from which she was 
 
            suffering when evaluated.  Mr. Bower reported that claimant 
 
            worked sub-minimally in terminating lifting on lift trak 
 
            evaluation.  Claimant apparently lifted 20 pounds only.  Mr. 
 
            Bowers stated that on lift trak analysis, claimant should 
 
            have been able to lift from 21 pounds to 63 pounds.  Mr. 
 
            Bower reported that claimant was limited to light and 
 
            sedentary work on account of her 20-pound maximum lifting 
 
            capacity.  He opined that an aggressive work hardening 
 
            program could improve claimant's functional capacity.  Dr. 
 
            Johnson opined that claimant was at maximum medical 
 
            improvement as of June 22, 1992.  He further opined that her 
 
            forearm complaints were not related to her neck condition.  
 
            Dr. Johnson and Mr. Bower assigned claimant a 10 percent 
 
            permanent partial impairment to the body as a whole as a 
 
            result of a one level fusion per the AMA Guides to the 
 

 
            
 
            Page   6
 
            
 
            
 
            
 
            
 
            Evaluation of Permanent Impairment, Third Edition, Revised.  
 
            
 
                 Claimant returned to work in Fall of 1992.  
 
            
 
                 Claimant returned to Dr. Transfeldt on November 23, 
 
            1992.  Dr. Transfeldt then stated that claimant's prognosis 
 
            was unpredictable.  He restricted her from work involving 
 
            frequent neck movements or holding of the neck in extreme 
 
            flexion or extension.  He also opined that claimant should 
 
            not do work requiring her to drive.  Dr. Transfeldt then 
 
            opined that the job activities that claimant performed after 
 
            her first surgery "may have" played a role in the subsequent 
 
            neck degeneration.  He indicated he could not state whether 
 
            those activities were a significant contributing factor to 
 
            the neck degeneration, however.
 
            
 
                 On December 31, 1992, Dr. Transfeldt performed an 
 
            anterior cervical discectomy and fusion at C5/C6.  On June 
 
            1, 1993, Dr. Transfeldt interpreted x-rays as showing a 
 
            solid fusion.  He indicated claimant should be off work for 
 
            six to eight weeks for "neck exercises" and then should 
 
            return to work on a part-time basis.  
 
            
 
                 On July 26, 1993, claimant returned to work and was 
 
            assigned the job of checking chemical inventory.  She 
 
            reported she did not mind doing this work.  Claimant opined 
 
            that she knew of no jobs in production at Fleetguard that 
 
            she could do on a full-time basis.  She agreed that she can 
 
            do the nonproduction jobs assigned her.  Claimant states 
 
            that she has shooting neck pain, back pain, right arm pain 
 
            and hand cramps.  Claimant reported that after working four 
 
            hours per day she feel as if she has used every ounce of 
 
            energy [she has].  Claimant now earns $8.30 per hour.  
 
            Claimant stated that she has not worked significant overtime 
 
            since her 1985 injury.  She agreed that she has not 
 
            volunteered for overtime which she likely could do, however.
 
            
 
                 Diana K. Roper, personnel manager for Fleetguard, 
 
            indicated that Fleetguard has "worked at great length" to 
 
            find employment within claimant's restriction.  She 
 
            indicated that prior to Dr. Transfeldt's deposition of 
 
            August 11, 1993, claimant only had temporary restriction.  
 
            And, therefore, seeking a permanent placement for claimant 
 
            had not been possible.  Ms. Roper agreed that with 
 
            claimant's restrictions placement options would be minimal.  
 
            She stated that additional on-the-job-training would be 
 
            possible and that claimant likely could work in copying, 
 
            inspecting equipment, and in word processing.  She agreed 
 
            that claimant had been taken off the inspection job offered 
 
            claimant because claimant felt claimant could not do the 
 
            job.  
 
            
 
                 Claimant's spouse, daughter, and two friends 
 
            corroborated claimant's preceptions of claimant's current 
 
            difficulties and limitations.  
 
            
 
                 In his deposition testimony, Dr. Transfeldt stated he 
 
            felt claimant's 1985 work injury may have indirectly 
 
            contributed to her need for her December 1992 surgery 
 
            because the 1985 injury had been a substantial injury which 
 

 
            
 
            Page   7
 
            
 
            
 
            
 
            
 
            resulted in a cervical fusion at C6/C7.  The doctor stated 
 
            that the fusion at that segment required other spinal 
 
            segments "to take on greater share of load" as regards 
 
            stresses and movement in the cervical spine.  Dr. Transfeldt 
 
            opined that claimant's 1985 injury had "initiated" 
 
            claimant's symptoms although her underlying degenerative 
 
            disc process was ongoing and it started "long before the 
 
            January 4, 1985 injury."  He further opined that the 1985 
 
            injury had contributed to acceleration of claimant's spinal 
 
            degeneration although it was not the sole factor in causing 
 
            that accelerated degeneration.  
 
            
 
                 Dr. Transfeldt opined that claimant's "accident of 1985 
 
            initiated a chain of events that ultimately resulted her 
 
            needing the two fusions that she had since that time."  
 
            
 
                 Dr. Transfeldt further opined that it is possible for 
 
            patients to perform most activities of daily living and 
 
            general office work without frequently bending their necks 
 
            to extreme degrees.  He stated that activities of copying 
 
            should not be a significant contributing factor [to 
 
            increased neck pain] because these activities are part of 
 
            the process of physiologic motion which humans do in normal 
 
            daily life.  
 
            
 
                 Dr. Transfeldt on August 11, 1993 declined to give an 
 
            opinion as to claimant's permanent partial impairment rating 
 
            as he "likes to wait approximately a year subsequent to 
 
            surgery to "get a better feel" for an individual's maximum 
 
            medical improvement.  
 
            
 
                 It is expressly found that claimant's January 4, 1985 
 
            injury set off the chain of events which has resulted in 
 
            claimant's subsequent medical treatment, including her two 
 
            fusions, and her current restrictions.  Hence, claimant's 
 
            December 1992 surgery and the resulting restrictions and 
 
            ensuing disability were proximately caused by her January 
 
            1985 injury.  Claimant, therefore, has had only one injury, 
 
            that is, a specific incident of January 4, 1985, which 
 
            injury date is controlling for purposes of determining 
 
            claimant's rate of weekly compensation which will be 
 
            discussed in the conclusions of law below.
 
            
 
                 It is also expressly found that while claimant 
 
            perceives herself as significantly disabled on account of 
 
            her neck condition and surgeries and as very limited in both 
 
            her employment activities and her activities of daily living 
 
            and that while others close to claimant share in that 
 
            preception, that preception is inconsistent with the medical 
 
            opinion testimony of claimant's treating physician and, 
 
            therefore, is not controlling in determining claimant's 
 
            actual permanent disability as relates to her 1985 work 
 
            injury and its sequela.
 
            
 
                                CONCLUSIONS OF LAW
 
            
 
                 We consider claimant's argument that claimant sustained 
 
            an additional injury on June 17, 1992.
 
            
 
                 The claimant has the burden of proving by a 
 

 
            
 
            Page   8
 
            
 
            
 
            
 
            
 
            preponderance of the evidence that the alleged injury 
 
            actually occurred and that it arose out of and in the course 
 
            of employment.  McDowell v. Town of Clarksville, 241 N.W.2d 
 
            904 (Iowa 1976); Musselman v. Cent. Tel. Co., 261 Iowa 352, 
 
            154 N.W.2d 128 (1967).  The words "arising out of" refer to 
 
            the cause or source of the injury.  The words "in the course 
 
            of" refer to the time, place and circumstances of the 
 
            injury.  Sheerin v. Holin Co., 380 N.W.2d 415 (Iowa 1986); 
 
            McClure v. Union County, 188 N.W.2d 283 (Iowa 1971).
 
            
 
                 The claimant has the burden of proving by a 
 
            preponderance of the evidence that the injury is a proximate 
 
            cause of the disability on which the claim is based.  A 
 
            cause is proximate if it is a substantial factor in bringing 
 
            about the result; it need not be the only cause.  A 
 
            preponderance of the evidence exists when the causal 
 
            connection is probable rather than merely possible.  
 
            Blacksmith v. All-American, Inc., 290 N.W.2d 348 (Iowa 
 
            1980); Holmes v. Bruce Motor Freight, Inc., 215 N.W.2d 296 
 
            (Iowa 1974).
 
            
 
                 The question of causal connection is essentially within 
 
            the domain of expert testimony.  The expert medical evidence 
 
            must be considered with all other evidence introduced 
 
            bearing on the causal connection between the injury and the 
 
            disability.  The weight to be given to any expert opinion is 
 
            determined by the finder of fact and may be affected by the 
 
            accuracy of the facts relied upon by the expert as well as 
 
            other surrounding circumstances.  The expert opinion may be 
 
            accepted or rejected, in whole or in part.  Sondag v. Ferris 
 
            Hardware, 220 N.W.2d 903 (Iowa 1974); Anderson v. Oscar 
 
            Mayer & Co., 217 N.W.2d 531 (Iowa 1974); Bodish v. Fischer, 
 
            Inc., 257 Iowa 516, 133 N.W.2d 867 (1965).
 
            
 
                 When a worker sustains an injury, later sustains 
 
            another injury, and subsequently seeks to reopen an award 
 
            predicated on the first injury, he or she must prove one of 
 
            two things: (a) that the disability for which he or she 
 
            seeks additional compensation was proximately caused by the 
 
            first injury, or (b) that the second injury (and ensuing 
 
            disability) was proximately caused by the first injury.  
 
            DeShaw v. Energy Manufacturing Company, 192 N.W.2d 777, 780 
 
            (Iowa 1971). 
 
            
 
                 While claimant seeks to assert a cumulative injury 
 
            occurring on or about June 17, 1992, the treating physician 
 
            opines that claimant's ongoing condition has its origins in 
 
            her work incident of January 4, 1985.  Claimant's continuing 
 
            symptoms and her need for additional surgery and other 
 
            medical care causally relate back to the January 4, 1985 
 
            work injury.  Hence, claimant has not established a separate 
 
            injury arising out of and in the course of her employment on 
 
            or about June 17, 1992.  Claimant, of course, has 
 
            established that the disability for which she seeks 
 
            compensation is approximately caused by the January 4, 1985 
 
            work injury.  Claimant, therefore, is entitled to healing 
 
            period or temporary total disability benefits for those time 
 
            she was actually off work on account of her work condition 
 
            or on account of treatment for her work condition, including 
 
            her surgery in December 1992, and is entitled to an award of 
 

 
            
 
            Page   9
 
            
 
            
 
            
 
            
 
            permanent partial disability benefits for permanent partial 
 
            disability related to the January 4, 1985 work injury and 
 
            its sequela.  That sequela is expressly found to include the 
 
            December 1992 surgery and claimant's permanent restrictions 
 
            imposed subsequent to that surgery.
 
            
 
                 Defendants have raised the affirmative defense of 
 
            whether section 85.26(1) acts as a bar as regards claimant's 
 
            January 4, 1984 injury.
 
            
 
                 An original proceeding for benefits must be commenced 
 
            within three years from the date of the last payment of 
 
            weekly compensation benefits if weekly compensation benefits 
 
            have been paid under section 86.13.  Section 85.26(1).  
 
            Failure to timely commence an action under the limitation 
 
            statute is an affirmative defense which defendants must 
 
            prove by preponderance of the evidence.  DeLong v. Highway 
 
            Commissioner, 229 Iowa 700, 295 N.W. 91 (1940).  
 
            
 
                 Claimant filed her original notice and petition on June 
 
            18, 1992.  The form 2A in the file reflects that defendants 
 
            have made some weekly payments in this matter.  Hence, 
 
            defendants can only prevail if claimant received her last 
 
            weekly workers' compensation payment relative to the January 
 
            4, 1985 injury on or before June 17, 1989.  The record 
 
            suggests that claimant was off work and received weekly 
 
            benefits on account of the June 4, 1984 injury from June 4, 
 
            1984 onward.  Defendants have provided no evidence 
 
            supporting their statute of limitations defense.  Therefore, 
 
            defendants have not established that claimant's claim as 
 
            regards her January 4, 1985 injury is barred on account of 
 
            the statute of limitations.
 
            
 
                 We reach the question of whether claimant is entitled 
 
            to healing period benefits beyond those defendants have 
 
            previously paid.  
 
            
 
                 Section 85.34(1) provides that healing period benefits 
 
            are payable to an injured worker who has suffered permanent 
 
            partial disability until (1) the worker has returned to 
 
            work; (2) the worker is medically capable of returning to 
 
            substantially similar employment; or (3) the worker has 
 
            achieved maximum medical recovery.  The healing period can 
 
            be considered the period during which there is a reasonable 
 
            expectation of improvement of the disabling condition.  See 
 
            Armstrong Tire & Rubber Co. v. Kubli, 312 N.W.2d 60 (Iowa 
 
            Ct. App. 1981).  Healing period benefits can be interrupted 
 
            or intermittent.  Teel v. McCord, 394 N.W.2d 405 (Iowa 
 
            1986).
 
            
 
                 Section 85.39 permits an employee to be reimbursed for 
 
            subsequent examination by a physician of the employee's 
 
            choice where an employer-retained physician has previously 
 
            evaluated "permanent disability" and the employee believes 
 
            that the initial evaluation is too low.  The section also 
 
            permits reimbursement for reasonably necessary 
 
            transportation expenses incurred and for any wage loss 
 
            occasioned by the employee's attending the subsequent 
 
            examination.
 
            
 

 
            
 
            Page  10
 
            
 
            
 
            
 
            
 
                 Claimant is entitled for healing period benefits for 
 
            those times she was actually off work on account of her 
 
            January 4, 1985 injury and its sequela to the time that she 
 
            reached maximum medical improvement.  While Dr. Transfeldt, 
 
            in his deposition of August 11, 1993, declined to assign a 
 
            permanent partial impairment rating, he did impose permanent 
 
            restrictions as of that time.  The imposition of permanent 
 
            restrictions suggest that practically claimant was at her 
 
            maximum medical improvement as of that date.  Claimant, 
 
            therefore, is entitled to healing period benefits through 
 
            August 11, 1993 for those full days on which claimant was 
 
            actually off work on account of her work condition.  
 
            Claimant also is entitled to temporary partial disability 
 
            benefits for those days on which, pursuant to medical 
 
            restrictions, she worked less than eight hours on account of 
 
            her work related condition through August 11, 1993.  
 
            Claimant is not entitled to payment of temporary partial 
 
            disability for those days after August 11, 1993 on which she 
 
            has worked less than a full eight-hour day, even if pursuant 
 
            to a medical restriction.  At the date on which claimant 
 
            reached maximum medical improvement, any inability to work 
 
            full-time, which inability was supported by medical 
 
            evidence, would need to be compensated on an industrial 
 
            basis and not as related to claimant's period of medical 
 
            healing from her work-related condition.  Neither section 
 
            85.27 nor section 85.34(1) contemplates payment of benefits 
 
            for such lost time.  While this may well represent a 
 
            legislative oversight within the workers' compensation law, 
 
            remedying that oversight is a task for the legislature.  It 
 
            is not within the province of this deputy to attempt 
 
            quasi-judicial legislation as regards this issue.
 
            
 
                 We reach the question of claimant's entitlement to 
 
            industrial disability including the question of whether 
 
            claimant is permanently and totally disabled.  
 
            
 
                 Since 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 
 
            Ry. Co., 219 Iowa 587, 258 N.W.2d 899 (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, motivation, loss of earnings, severity and situs 
 
            of the injury, work restrictions, inability to engage in 
 
            employment for which the employee is fitted and the 
 
            employer's offer of work or failure to so offer.  Olson v. 
 
            Goodyear Serv. Stores, 255 Iowa 1112, 125 N.W.2d 251 (1963); 
 
            McSpadden v. Big Ben Coal Co., 288 N.W.2d 181 (Iowa 1980); 
 
            Barton v. Nevada Poultry Co., 253 Iowa 285, 110 N.W.2d 660 
 
            (1961).
 
            
 
                 Compensation for permanent partial disability shall 
 

 
            
 
            Page  11
 
            
 
            
 
            
 
            
 
            begin at the termination of the healing period.  
 
            Compensation shall be paid in relation to 500 weeks as the 
 
            disability bears to the body as a whole.  Section 85.34.
 
            
 
                 Total disability does not mean a state of absolute 
 
            helplessness.  Permanent total disability occurs where the 
 
            injury wholly disables the employee from performing work 
 
            that the employee's experience, training, education, 
 
            intelligence and physical capacities would otherwise permit 
 
            the employee to perform.  See McSpadden v. Big Ben Coal Co., 
 
            288 N.W.2d 181 (Iowa 1980); Diederich v. Tri-City Ry. Co., 
 
            219 Iowa 587, 258 N.W. 899 (1935).
 
            
 
                 A finding that claimant could perform some work despite 
 
            claimant's physical and educational limitations does not 
 
            foreclose a finding of permanent total disability, however.  
 
            See Chamberlin v. Ralston Purina, File No. 661698 (App. 
 
            October 29, 1987); Eastman v. Westway Trading Corp., II Iowa 
 
            Industrial Commissioner Report 134 (App. 1982).
 
            
 
                 Initially, claimant has not established that claimant 
 
            is permanently and totally disabled.  The employer has 
 
            accommodated claimant and claimant was working at time of 
 
            hearing.  While claimant's permanent restrictions do 
 
            preclude claimant from doing a number of jobs in the 
 
            employer's plant, including a number of production level 
 
            jobs, both the lay and the medical evidence suggests that in 
 
            many ways claimant is self-limiting and that this, and not 
 
            her work injury, is the source of her disability.  The 
 
            permanent restrictions Dr. Transfeldt has placed, 
 
            nevertheless, would preclude claimant from a variety of 
 
            factory type jobs which she otherwise could perform.  
 
            Claimant's 20-pound lifting restriction per Dr. Johnson and 
 
            Mr. Bower would also preclude claimant from a variety of 
 
            heavy industrial jobs.  This limitation, it is noted, is 
 
            largely a result of claimant's self-limiting as to lifting 
 
            and not as a result of objective potential performance 
 
            testing which Mr. Bower performed.  At time of hearing, 
 
            claimant remained working on only a four-hour per day basis.  
 
            The record is unclear whether that represents a permanent 
 
            restriction.  In the undersigned's experience as a deputy 
 
            industrial commissioner, a limitation to four hours only per 
 
            day would be unusual for an individual in her mid-forties 
 
            who had sustained the type of injury which claimant has 
 
            sustained and undergone the type of medical treatment and 
 
            recovery that claimant has undergone.  Claimant has not 
 
            established a permanent medical restriction to working four 
 
            hours per day.  It would appear, indeed, from Dr. 
 
            Transfeldt's comments in his deposition, that were claimant 
 
            to continue to work only four hours per day in the future at 
 
            activities such as copying, keyboarding, and light 
 
            inspecting and inventory work such as the employer has 
 
            provided to claimant since her work injury, that would be a 
 
            personal choice of claimant's not related to claimant's 
 
            physiological ability to perform work throughout a regular 
 
            eight-hour work day.  On June 22, 1992, Dr. Rodney Johnson 
 
            assigned claimant a 10 percent permanent partial impairment 
 
            to the body as a whole as a result of her initial one level 
 
            fusion.  Dr. Transfeldt has declined to assign claimant a 
 
            permanent partial impairment rating subsequent to her 
 

 
            
 
            Page  12
 
            
 
            
 
            
 
            
 
            December 31, 1992 second fusion.  Claimant's complaints and 
 
            restrictions remains substantially the same subsequent to 
 
            the second fusion as subsequent to the first fusion and 
 
            prior to the second fusion.  The American Medical 
 
            Association Guides generally attribute an additional 2 
 
            percent disability following a second spinal surgical 
 
            procedure.  Dr. Johnson's initial impairment rating and the 
 
            second surgery, hence, suggest that claimant has a moderate 
 
            permanent physical impairment on account of her January 4, 
 
            1985 work injury.  As noted, defendants have made admirable 
 
            efforts to accommodate claimant.  Claimant, unfortunately, 
 
            does not appear well motivated to take personal 
 
            responsibility for her work life or to work within the level 
 
            which her treating physicians suggest she is capable.  
 
            Claimant has established a permanent partial industrial 
 
            disability of 20 percent of the body as a whole on account 
 
            of her January 4, 1985 work injury.  Claimant's permanent 
 
            partial disability benefits commence on August 12, 1993.
 
            
 
                 We reach the question of claimant's appropriate rate of 
 
            weekly compensation.
 
            
 
                 Claimant's earning in the 15 weeks immediately prior to 
 
            her January 4, 1985 work injury were as follows:
 
            
 
                  Dates          Hours    Earnings
 
            
 
                 09/23/84        48.3      $335.69
 
                 09/30/84        40         278.00
 
                 10/07/84        43.3       300.94
 
                 10/14/84        40         278.00
 
                 10/21/84        40.8       283.57
 
                 10/28/84        40         278.00
 
                 11/04/84        40         278.00
 
                 11/11/84        33.50      232.83
 
                 11/18/84        40         278.00
 
                 11/25/84        40         278.00
 
                 12/02/84        40         278.00
 
                 12/09/84        41         288.43
 
                 12/16/94        41         288.43
 
                 12/23/84        41.50      293.99
 
                 12/30/84        40         278.00 
 
            
 
            
 
                 Claimant contends that the week of November 11, 1984 is 
 
            a nonrepresentative work week and, therefore, should be 
 
            excluded in determining claimant's wage.  Claimant 
 
            apparently agrees, and defendants apparently do not dispute 
 
            that claimant was paid on an hourly basis such that section 
 
            85.36(6) is controlling.  The section provides: 
 
            
 
                    In the case of an employee who is paid on a 
 
                 daily, or hourly basis, or by the output of the 
 
                 employee, the weekly earnings shall be computed by 
 
                 dividing by thirteen the earnings, not including 
 
                 overtime or premium pay, of said employee earned 
 
                 in the employ of the employer in the last 
 
                 completed period of thirteen consecutive calendar 
 
                 weeks immediately preceding the injury.
 
            
 

 
            
 
            Page  13
 
            
 
            
 
            
 
            
 
                 Claimant has offered no evidence demonstrating why the 
 
            week of November 11, 1984 is nonrepresentative.  The party 
 
            who would suffer loss if an issue were not established has 
 
            the burden of proving that issue by a preponderance of the 
 
            evidence.  Iowa R. of App. P. 14(f).  Without such evidence, 
 
            the week is appropriately considered in establishing 
 
            claimant's gross earnings under section 85.36 and in 
 
            establishing claimant's rate of compensation under section 
 
            85.36(6).  Claimant worked a total of 521.1 hours in the 13 
 
            representative weeks immediately preceding her work injury.  
 
            Claimant received a weekly wage of $278 in those weeks in 
 
            which she worked 40 hours.  When $278 is divided by 40 hours 
 
            the resulting hourly rate is $6.95.  When 521.1 hours is 
 
            multiplied by $6.95 gross earnings in the 13 week period are 
 
            $3,621.65.  When that amount is divided by 13, a gross 
 
            weekly wage of $278.59 results.  The parties have stipulated 
 
            that claimant was married and entitled to six exemptions on 
 
            January 1, 1985.  Claimant's weekly compensation rate is 
 
            $190.29.
 
            
 
                 Claimant seeks payment of medical expenses set forth in 
 
            her "Itemized List of Disputed Medical Expenses" attached to 
 
            the parties' hearing report.  The amounts itemized appear to 
 
            relate to treatment received on or after December 15, 1992 
 
            relative to claimant's condition for which she underwent 
 
            surgery on December 31, 1992.  It is noted Dr. Transfeldt 
 
            has related claimant's medical condition for which she 
 
            underwent surgery in December 1992 to her original work 
 
            injury of January 4, 1985.  The employer shall furnish 
 
            reasonable surgical, medical, dental, osteopathic, 
 
            chiropractic, podiatric, physical rehabilitation, nursing, 
 
            ambulance and hospital services and supplies for all 
 
            conditions compensable under the workers' compensation law.  
 
            The employer shall also allow reasonable and necessary 
 
            transportation expenses incurred for those services.  The 
 
            employer has the right to choose the provider of care, 
 
            except where the employer has denied liability for the 
 
            injury.  Section 85.27.  Holbert v. Townsend Engineering 
 
            Co., Thirty-second Biennial Report of the Industrial 
 
            Commissioner 78 (Review-reopen 1975).
 
            
 
                 The employer denied liability for claimant's 1992 
 
            condition.  In doing so, they abandoned claimant as far as 
 
            her receiving reasonable and necessary medical care causally 
 
            related to an underlying work-related condition.  
 
            Defendants, therefore, cannot properly raise the defense of 
 
            lack of authorization.  Claimant is entitled to payment of 
 
            the medical expenses claimant has set forth on claimant's 
 
            itemized list of disputed medical expenses.  It is noted 
 
            that, a substantial number of these expenses were paid 
 
            pursuant to the accident and health insurance coverage which 
 
            the employer provides claimant.  Pursuant to section 
 
            85.38(2), defendants are entitled to a credit for such 
 
            amounts insofar as those amounts would not have been paid 
 
            for a work-related condition.
 
            
 
                 Apparently, claimant has also received long-term 
 
            disability benefits pursuant to an employer provided 
 
            disability plan.  Defendants, of course, would be entitled 
 
            to a credit as regards those benefits as well insofar as 
 

 
            
 
            Page  14
 
            
 
            
 
            
 
            
 
            such benefits would not have been paid where disability 
 
            resulted on account of a work-related condition.
 
            
 
                 Claimant has raised an issue as regards the due date 
 
            for compensation in what claimant characterizes as payment 
 
            credit date.  We are uncertain as to what claimant's issue 
 
            actually relates.  We do offer claimant the following 
 
            guidance, however.  Compensation is due when the 
 
            compensation accrues.  As regards permanent partial 
 
            disability compensation, compensation is due on a weekly 
 
            basis from the commencement date.  As regards temporary 
 
            partial, temporary total, and healing period benefits, it 
 
            cannot be determined whether these benefits will be owed, 
 
            that is, there is no liquidated amount due, until the first 
 
            day of the first week subsequent to the week for which the 
 
            benefits are paid.  This is so because claimant's actually 
 
            being off work on a full or part-time basis during the 
 
            preceding week is a condition precedent to defendants' 
 
            liability for benefits.  
 
            
 
                 Claimant also seeks a determination of "the amount of 
 
            credits for weekly benefits."  Again, the undersigned is at 
 
            something of a loss in determining that of which claimant 
 
            speaks.  Defendants certainly are entitled to a credit for 
 
            weekly benefits defendants have paid claimant.  If, and 
 
            where, defendants have paid claimant weekly benefits while 
 
            claimant was not actually off work on account of her injury 
 
            on the assumption that claimant had already reached maximum 
 
            medical improvement and, therefore, permanent partial 
 
            disability benefits were due claimant, defendants are 
 
            entitled to a credit for benefits paid as permanency 
 
            benefits at such times as against the award of permanency 
 
            made in this decision.  Likewise, if defendants have paid 
 
            claimant benefits characterized as temporary partial 
 
            benefits or as temporary total or healing period benefits 
 
            which benefits are in excess of the benefits to which 
 
            claimant has established an entitlement, defendants are 
 
            entitled to credit such benefits as against the permanency 
 
            award established in this decision.  See section 85.34(4).  
 
            
 
                 Claimant seeks a determination of what, if any, 
 
            interest is due under section 85.30.  Defendants shall pay 
 
            interest as they are obligated under that section of the 
 
            law.  It has become horn book law that the deputy 
 
            commissioner is not required to calculate interest to which 
 
            claimant may be entitled.  The parties are to work together 
 
            to achieve that calculation.  If they are not able to do so, 
 
            claimant may bring another action before the industrial 
 
            commissioner to determine that issue.  See Weishaar v. 
 
            Snap-on Tools Corp., 506 N.W.2d 786 (Iowa Court of Appeals 
 
            1993).
 
            
 
                 Claimant seeks additional benefits pursuant to section 
 
            86.13, unnumbered paragraph 4.  
 
            
 
                 Section 86.13 permits an award of up to 50 percent of 
 
            the amount of benefits delayed or denied if a delay in 
 
            commencement or termination of benefits occurs without 
 
            reasonable or probable cause or excuse.  The standard for 
 
            evaluating the reasonableness of defendants' delay in 
 

 
            
 
            Page  15
 
            
 
            
 
            
 
            
 
            commencement or termination is whether the claim is fairly 
 
            debatable.  Where a claim is shown to be fairly debatable, 
 
            defendants do not act unreasonably in denying payment.  See 
 
            Stanley v. Wilson Foods Corp., File No. 753405 (App. August 
 
            23, 1990); Seydel v. Univ. of Iowa Physical Plant, File No. 
 
            818849 (App. November 1, 1989).  Additionally, negligence in 
 
            initiating or timely paying benefits may constitute grounds 
 
            for imposition of a penalty.  Boylan v. American Motorists 
 
            Ins. Co., Iowa, 489 N.W.2d 742 (IA 1992).  Also, penalty 
 
            cannot be based upon interest due on late compensation 
 
            payments.  Weishaar Supra. 
 
            
 
                 Whether claimant's condition and her complaints after 
 
            her first fusion surgery related to her work, related to her 
 
            work injury of January 4, 1985 or related to a nonwork 
 
            condition was fairly debatable.  Additionally, this record 
 
            is devoid of any evidence suggesting that defendants behaved 
 
            negligently in determining or failing to determine whether 
 
            claimant had a work-related condition.  Claimant has not 
 
            established an entitlement to additional benefits pursuant 
 
            to section 86.13, unnumbered 4.  
 
            
 
                                     ORDER
 
            
 
                 THEREFORE, IT IS ORDERED:
 
            
 
                 Defendants pay claimant permanent partial disability 
 
            benefits for twenty (20) weeks at a rate of one hundred 
 
            ninety and 29/100 dollars ($190.29) with those payments to 
 
            commence on August 12, 1993.
 
            
 
                 Defendants pay claimant healing period benefits for 
 
            those full days on which claimant was actually off work as a 
 
            result of her work injury or as result of treatment related 
 
            to her work injury from January 4, 1985 through August 11, 
 
            1993.  
 
            
 
                 Defendants receive credit for amounts previously paid.
 
            
 
                 Defendants pay any accrued amounts in a lump sum.
 
            
 
                 Defendants receive credit as appropriate for benefits 
 
            paid claimant under the employer provided sickness and 
 
            health policy and the employer provided long-term disability 
 
            policy to the extent that any such benefits would not have 
 
            been paid claimant on account of a work-related injury. 
 
            
 
                 Defendants pay claimant medical expenses as set forth 
 
            in claimant's itemized list of disputed medical expenses.
 
            
 
                 Defendants pay claimant temporary partial disability 
 
            for those days on which claimant worked less than eight 
 
            hours pursuant to a medical restriction with any such 
 
            payments to commence on or after claimant's January 4, 1985 
 
            date of injury and continue through August 11, 1993.
 
            
 
                 Defendants pay interest pursuant to section 85.30.
 
            
 
                 Defendants pay costs pursuant to rule 343 IAC 4.33.
 
            
 

 
            
 
            Page  16
 
            
 
            
 
            
 
            
 
                 Defendants file claim activity reports as the agency 
 
            orders.
 
            
 
                 Signed and filed this ____ day of February, 1994.
 
            
 
            
 
            
 
            
 
                                          ______________________________
 
                                          HELENJEAN M. WALLESER
 
                                          DEPUTY INDUSTRIAL COMMISSIONER    
 
            
 
            Copies to:
 
            
 
            Mr. Mark Soldat
 
            Attorney at Law
 
            714 E. State Street
 
            Algona, IA  50511
 
            
 
            Mr. Tito Trevino
 
            Attorney at Law
 
            801 Carver Bldg.
 
            PO Box 1680
 
            Fort Dodge, IA  50501