BEFORE THE IOWA INDUSTRIAL COMMISSIONER ____________________________________________________________ : ROBERT E. VEST, : : Claimant, : : vs. : : File No. 813090 CITY OF CEDAR RAPIDS, : : A R B I T R A T I O N Employer, : : D E C I S I O N and : : IOWA MUNICIPALITIES WORKERS' : COMPENSATION ASSOCIATION, : : Insurance Carrier, : Defendants. : ___________________________________________________________ STATEMENT OF THE CASE This is a proceeding in arbitration upon the petition of claimant, Robert Vest, against his employer, City of Cedar Rapids, and its insurance carrier, Iowa Municipalities Workers' Compensation Association, defendants. The case was heard on April 7, 1992 in Cedar Rapids, Iowa at the Linn County courthouse. The record consists of the testimony of claimant. The record also consists of the testimony of Richard Sadecky, Treasurer of the Iowa Herd Dog Association; Vern Thorp, farmer and blacksmith; Lewis Vierling, vocational rehabilitation counselor; David Smith, Assistant Parks Director for the City of Cedar Rapids; Hurley Bassett, Jr., Employment Director for the City of Cedar Rapids; and Lora Summerwill, Director of Safety and Health for the City of Cedar Rapids. The record also consists of joint exhibits 1, 2, 3, 4 and 5; claimant's exhibits 1, 2, 3, 4, 5, 6, 7, 8, 9 (for impeachment only) and 10; and defendants' exhibits 18(1-3), 19, 20, 21, 22-44 and 45, 46, 47 (for impeachment only). It is noted that defendants' exhibit 21 is comprised of four Sony MC60 tapes. These tapes are not considered due to the fact that defendants' attorney has not suppled a machine which this deputy can use to listen to the tapes. The undersigned deputy has attempted to locate a recorder in the Division of Industrial Services, but the undersigned is unable to locate a properly working recorder which uses the same size tapes. Therefore, defendants' exhibit 21 is not considered in rendering this decision. It is also noted for the record that while the attorneys of record have attempted to eliminate the Page 2 duplication of exhibits, their efforts are less than perfect. This deputy has engaged in the unnecessary review of duplicate records. Because of the duplication, the undersigned has taken extra time to reach a decision in this case. The attorneys are advised to improve their efforts in eliminating duplication in the future. ISSUES The issues to be determined are: 1) Whether claimant has sustained an injury which arose out of and in the course of his employment; 2) whether there is a causal relationship between the alleged injury and any temporary or permanent disability; 3) whether claimant is entitled to any healing period or any permanent partial disability benefits; 4) whether claimant is entitled to any medical benefits pursuant to section 85.27; and 5) whether claimant is entitled to any penalty benefits pursuant to section 86.13. FINDINGS OF FACT The deputy, having heard the testimony and considered all the evidence, finds: Claimant is 54-years-old. For most of his life, he has resided in or near Vinton, Iowa. Claimant has a high school diploma but there is a question whether claimant is even functionally literate. Claimant has done very poorly on tests which measure his reading ability. There is evidence in the record which indicates that claimant is reading at the second grade level. However, despite certain test results, claimant has successfully completed a course in blacksmithing; he has taught a class at Kirkwood Community College; he has taught seminars on herd dogs; he has judged competitions involving herd dogs; and he has engaged in various banking activities which involve reading, writing and computing. Finally, claimant is able to navigate with the use of road maps. Throughout his career, claimant has worked in occupations which require physical labor. He has performed tuck-pointing. He has stirred seed corn. He has worked as a blacksmith and he has done incidental welding work. Claimant has raised horses. He has engaged in farming and shepherding and he has trained and sold dogs on a part-time basis. In September of 1982, claimant commenced his employment with defendant employer. On December 13 of that year, claimant became employed as a Maintenance Worker I at the Ambroz Center. His duties included: PRIMARY FUNCTION This individual reports to the Recreation Maintenance Supervisor. Responsible for providing labor and maintenance services in the maintenance and repair of City-operated buildings. Page 3 MAJOR DUTIES AND RESPONSIBILITIES 1. Sweeps, mops, seals, waxes and polishes floors. 2. Washes walls, woodwork and windows. 3. Dusts furniture. 4. Prepares rooms for meetings, cleans and rearranges furniture. 5. Assists in painting. 6. Polishes brass. 7. Cleans restrooms. 8. Replaces light bulbs and fuses 9. Performs some outdoor maintenance work such as picking up litter and cutting grass, removing snow, etc., as required. 10. Performs delivery and pick-up work. 11. Other duties as assigned. Claimant worked the evening shift. Often he met the public at the door, walked women to their cars during evening hours, carried disabled individuals up and down stairs and generally just engaged in good public relations between the city and the public. David Smith, claimant's supervisor, testified that claimant was an excellent worker. Claimant arrived early for work. There were days when claimant worked beyond his eight hour shift without pay so he could complete his assigned duties. Claimant testified that he felt as if he "belonged at the Center." One of claimant's primary duties involved using a commercial floor buffer. There was much testimony regarding the use of the buffer. Mr. Smith testified that 30 percent of claimant's work hours involved the use of the buffer. Claimant explained the buffer weighed 75 pounds and that it was constructed with a steel frame. It was a commercial variety which could be used for wet buffing, spraying wax, and general polishing. One of the buffers was brought into the courtroom for demonstration purposes. The undersigned had the opportunity to view and lift the buffer. It was a cumbersome piece of equipment which was not designed for the weak bodied. Operating the buffer was not an easy task for the undersigned deputy. Claimant was required to lift the buffer up and down the stairs because there were no elevators in the building. Claimant also described another assigned task. He set up tables and chairs and then removed them when meetings adjourned. The tables were collapsible and weighed from 40 pounds to 70 pounds. They were 3 feet by 8 feet in dimension. The process occurred several times throughout the course of an evening, and claimant was required to carry the tables and chairs up and down several flights of stairs since the building was without an elevator. In the fall of 1985, claimant began experiencing difficulties with his shoulders. All of the evidence suggests that claimant sustained torn rotator cuff injuries to both shoulders. Albert Coates, M.D., an orthopedist, treated claimant conservatively. However, eventually Dr. Page 4 Coates scheduled claimant for a right sided arthroscopic debridement. Prior to the surgery, claimant took annual leave so he could travel to Des Moines and Ames for personal matters. While he was visiting in Ames, claimant fell from a horse and injured his pelvis. Claimant sought medical treatment. He was hospitalized in Ames for a symphysis pubis separation. The original right shoulder injury was scheduled for September 12, 1986. Later a left sided arthroscopic debridement was scheduled. Claimant remained off work. During the period he was away from work, defendants paid claimant weekly benefits. Claimant engaged in rigorous physical therapy while he was recuperating. Before he was allowed to return to work, he was required to be able to lift 75 pounds. As a result of his restrictions, he designed a mode of therapy for himself where he would drag various weights up and down flights of stairs. Before he returned to work, claimant was capable of repetitively dragging the 75 pound weight 20 times. Eventually, Dr. Coates released claimant to return to work without restrictions. He returned to work for 8 days in April of 1987. Claimant reported he was unable to continue working in his position as a janitor because of his physical condition which included both of his shoulders and his pelvis. As of September 4, 1987 claimant "retired" from defendant's employ. Since September of 1987, claimant has engaged in only intermittent occasional employment. He has done some dog training and he has judged some dog shows. He has done house sitting for neighbors. Otherwise he has not been gainfully employed. Claimant has received disability benefits from the Social Security Administration. At the time of the hearing claimant was not actively seeking full or part-time employment. CONCLUSIONS OF LAW Claimant has sustained an injury which arose out of and in the course of his employment. 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 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 Page 5 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). While a claimant is not entitled to compensation for the results of a preexisting injury or disease, its mere existence at the time of a subsequent injury is not a defense. Rose v. John Deere Ottumwa Works, 247 Iowa 900, 76 N.W.2d 756 (1956). If the claimant had a preexisting condition or disability that is materially 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 (1962); Yeager v. Firestone Tire & Rubber Co., 253 Iowa 369, 112 N.W.2d 299 (1961). Even though this is a contested issue, there is really very little to dispute this portion of claimant's claim. Dr. Coates, the treating orthopedist, writes in his notes of November 16, 1985: He runs a buffer a lot at night where he works for the City and has to abduct and adduct the shoulder very frequently. I think this is an occupational hazard which has flared it up a bit. (Joint Exhibit 1, page 80) In his deposition, Dr. Coates has opined: Q. And I think you have indicated that this is what you would characterize as an occupational hazard, this type of injury that Mr. Vest has sustained; is that correct? A. That's my opinion. Q. Are you saying, then, based upon reasonable medical certainty, Dr. Coates, that it's your medical opinion that the injuries or injury that Mr. Vest sustained to his shoulders was or Page 6 were as a result of his work with the City of Cedar Rapids in his particular job? A. That is my opinion, yes, sir. (Jt. Ex. 2, p. 16, line 19 through p. 17, line 5) Likewise, with respect to his pelvic condition, Dr. Coates has attributed claimant's "buffing duties" as having aggravated claimant's preexisting hip condition. Dr. Coates has opined in his deposition: Q. You're aware of the fact, were you not, that he went back to his old job which was that of handling the heavy buffer for the City and doing what we commonly call as janitorial work? A. Yes, I was. Q. And you of course released him based upon the fact that you had knowledge of those chores or those duties that he was going to reestablish himself with, is that correct? A. Yes, sir. Q. Now, do you have an opinion with reasonable medical certainty, Dr. Coates, what effect if any the operation -- reoperation or the -- not reoperation, but the again resuming his job in using that buffer, what effect that had on the condition of -- or on his pelvis? A. Well, I believe as he described it to me in the office, that because his shoulders had been giving him trouble where he could not push and pull with the buffer, he started resting the handle of the buffer against his pelvis and pushing it, using that to hold the handle of the buffer, if you will. And that's the point in time in which he started having increased problems with his pelvis, and it was volunteered history when Bob came in the office. Q. Are you sayings [sic], then, Dr. Coates, based upon reasonable medical certainty that it's your opinion that the use of that buffer aggravated a pre-existing injury, that being the pelvis area? A. That is my opinion, yes, sir. (Jt. Ex. 2, p. 27, l. 4 through p. 28, l. 8) Additionally, there is the opinion of Robert Graham Gitchell, M.D., the orthopedic surgeon who had treated claimant after he fell from a horse. Dr. Gitchell agrees with Dr. Coates that claimant's "buffing duties" have aggravated claimant's preexisting condition. Dr. Gitchell Page 7 has testified: Basically Doctor Coates states that he does have an unstable pelvis from a previous accident which he had sustained in Ames, and I would agree with that. Has been aggravated by his constant working, I would not quibble with that, and he has a subluxal pelvis, and that's a term just meaning that the pelvis is still unstable. I don't see in this letter where he gives etiology for that subluxal pelvis other than to the previous accident in Ames, and that would be my interpretation of the sequence of events.... (Jt. Ex. 5, p. 20, l. 22 through p. 21, l. 7) The undersigned deputy is in agreement. Claimant's bilateral shoulder condition is caused by claimant's work duties. The hip condition is caused by a fall from a horse in an unrelated activity, but it is definitely aggravated by claimant's buffing activities. Two orthopedic surgeons have so testified.. (Jt. Ex. 2, p. 32, l. 3-12). The next issue to address is the nature and extent of claimant's condition and whether claimant has sustained an industrial disability. Functional impairment is an element to be considered in determining industrial disability which is the reduction of earning capacity, but consideration must also be given to the injured employee's age, education, qualifications, experience and inability to engage in employment for which the employee is fitted. Olson v. Goodyear Serv. Stores, 255 Iowa 1112, 125 N.W.2d 251 (1963); Barton v. Nevada Poultry, 253 Iowa 285, 110 N.W.2d 660 (1961). A finding of impairment to the body as a whole found by a medical evaluator does not equate to industrial disability. Impairment and disability are not synonymous. The degree of industrial disability can be much different than the degree of impairment because industrial disability references to loss of earning capacity and impairment references to anatomical or functional abnormality or loss. Although loss of function is to be considered and disability can rarely be found without it, it is not so that a degree of industrial disability is proportionally related to a degree of impairment of bodily function. Factors to be considered in determining industrial dis ability include the employee's medical condition prior to the injury, immediately after the injury, and presently; the situs of the injury, its severity and the length of the healing period; the work experience of the employee prior to the injury and after the injury and the potential for rehabilitation; the employee's qualifications intellectually, emotionally and physically; earnings prior and subsequent to the injury; age; education; motivation; functional impairment as a result of the injury; and inability because of the injury to engage in employment for which the employee is fitted. Loss of earnings caused by a job transfer for reasons related to the injury is also Page 8 relevant. Likewise, an employer's refusal to give any sort of work to an impaired employee may justify an award of disability. McSpadden v. Big Ben Coal Co., 288 N.W.2d 181 (Iowa 1980). These are matters which the finder of fact considers collectively in arriving at the determination of the degree of industrial disability. There are no weighting guidelines that indicate how each of the factors are to be considered. Neither does a rating of functional impairment directly correlate to a degree of industrial disability to the body as a whole. In other words, there are no formulae which can be applied and then added up to determine the degree of industrial disability. It therefore becomes necessary for the deputy or commissioner to draw upon prior experience as well as general and specialized knowledge to make the finding with regard to degree of industrial disability. See Christensen v. Hagen, Inc., Vol. 1 No. 3 State of Iowa Industrial Commis sioner Decisions 529 (App. March 26, 1985); Peterson v. Truck Haven Cafe, Inc., Vol. 1 No. 3 State of Iowa Industrial Commissioner Decisions 654 (App. February 28, 1985). 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. Claimant's treating orthopedist has provided a functional impairment rating for claimant's condition. In his report of September 14, 1987, Dr. Coates has opined: I feel that in regards to both shoulders with subacromial recalcitrant tendinitis and complete rotator cuff fears and an unstable pelvis from symbiosis pubis disruption, this man carriers an 18% permanent partial impairment to the body as a whole. (Jt. Ex. 5, p. 36) Defendants have retained Peter D. Wirtz, M.D., for an evaluation. Dr. Wirtz has authored a report dated March 9, 1992. In his report he writes: These shoulders present with passive restriction of motion which would relate to functional impairment. The right shoulder has lost 30 degrees of forward flexion which would be a 3% impairment of the upper extremity, the internal and external rotation on the right are not altered, the adduction loss of 10 degrees is a 1% impairment of the right upper extremity, culminating in a 4% impairment of the right upper extremity. The left upper extremity has lost 30 degrees of forward flexion which would be a 3% impairment of the upper extremity, the external rotation loss of Page 9 10 degrees is a 2% impairment of the left upper extremity, the loss of 10 degrees of internal rotation is a 2% impairment, which culminates in a 7% impairment of the left upper extremity. The abduction active [sic] is not consistent with a functional limitation. These shoulder impairments relate to the postoperative conditions of both shoulders. The pelvis examination reveals no loss of motion or condition that is consistently impairing in daily and work activities. Only stressful activities would indicate symptomatology on a temporary basis in the pelvis being muscular in nature. In that the pelvic condition is intermittently symptomatic, it does not qualify for a permanent functional impairment. (Jt. Ex. 1, section 19, p. 387) As of September 14, 1987, Dr. Coates has deemed claimant's janitorial position as too strenuous for claimant's condition including both shoulders and his pelvis. I am in receipt of your letter dated 9/3/87 requesting a permanency rating on Robert Vest. Unfortunately I did not receive the letter until 9/13/87. I feel that in regards to both shoulders with subacromial recalcitrant tendinitis and complete rotator cuff tears and an unstable pelvis from symphosis pubis disruption, this man carries an 18% permanent partial impairment to the body as a whole. (Jt. Ex. 1, sec. 1, p. 36) Dr. Coates has testified that even if claimant's pelvic condition is not taken into consideration, claimant's position at the Ambroz Center is too strenuous for him. There is so much physical activity involved in the position. Claimant's shoulders have prevented him from using the buffer. Claimant has requested a light duty janitorial position with the City in lieu of returning to full duties as a Maintenance Worker I. Defendant employer is unwilling or unable to accommodate claimant since it is already accommodating another maintenance worker at the Ambroz Center. This is unfortunate since claimant has convinced the undersigned that claimant has thoroughly enjoyed his work and that he is a dedicated and competent employee. The City has lost a valuable and loyal employee. Since accommodation at the Ambroz Center is not possible, a part-time position as a parking lot attendant at a City parking garage has been discussed with claimant. The Page 10 position involves sitting for 6 hours per day. Claimant has refused to accept the position or even to attempt it. Because of his refusal, on September 4, 1987 claimant did "retire" from his employment with the City. Since claimant is not interested in accepting a position as a parking lot attendant, his only option other than retirement is voluntary termination. Claimant has indicated to Lora Summerwill, Safety Supervisor, that he has other work avail able to him and that his herd dogs will keep him busy. No other accommodation has been made available to claimant. Nor has claimant sought additional employment elsewhere. Claimant maintains he is an odd-lot employee. In Guyton v. Irving Jensen Co., 373 N.W.2d 101 (Iowa 1985), the Iowa court formally adopted the "odd-lot doctrine." Under that doctrine a worker becomes an odd-lot employee when an injury makes the worker incapable of obtaining employment in any well-known branch of the labor market. An odd-lot worker is thus totally disabled if the only services the worker can perform are "so limited in quality, dependability, or quantity that a reasonably stable market for them does not exist." Guyton, 373 N.W.2d at 105. The burden of persuasion on the issue of industrial disability always remains with the worker. When a worker makes a prima facie case of total disability by producing substantial evidence that the worker is not employable in the competitive labor market, the burden to produce evidence of suitable employment shifts to the employer, however. If the employer fails to produce such evidence and if the trier of fact finds the worker does fall in the odd-lot category, the worker is entitled to a finding of total disability. Guyton, 373 N.W.2d at 106. Even under the odd-lot doctrine, the trier of fact is free to determine the weight and credibility of evidence in determining whether the worker's burden of persuasion has been carried, and only in an exceptional case would evidence be sufficiently strong as to compel a finding of total disability as a matter of law. Guyton, 373 N.W.2d at 106. The undersigned is not convinced that claimant is an odd-lot employee. There is a reasonably stable market for claimant. The undersigned notes that since claimant's "retirement", he has been less than motivated to find gainful employment on a regular basis. While claimant is restricted from heavy janitorial work, claimant is not precluded from all employment. Claimant is capable of handling the parking lot position which involves sitting for 6 hours per day. No physician has restricted claimant from performing such a position. However, the only employment which claimant has sought has been on an irregular basis which provides little income to claimant. Claimant argues that because of his poor reading skills, he is totally removed from the labor market. The undersigned acknowledges the poor test results which claimant has achieved when administered certain reading tests. However, the undersigned questions the reliability Page 11 of those tests results since claimant has a high school diploma; he has taken and taught classes in the community college setting; he has judged dog shows; and has used paper and pen to record his decisions. He has navigated road trips by using maps. Additionally, claimant has maintained and balanced his own checking account for a number of years, including periods when he has been married. He has handled the family finances. Additionally, there is evidence in the record which shows that claimant is capable of completing any paperwork which is incidental to his employment. This deputy is not convinced that claimant is functionally illiterate. His reading skills may be below average but they have been greatly exaggerated by claimant. However, based upon all of the foregoing, it is the determination of the undersigned that claimant is industrially disabled. He is entitled to a permanent partial disability of 70 percent. Claimant is entitled to 350 weeks at the stipulated rate of $186.86 per week. Claimant's permanent partial disability benefits commence from September 14, 1987, the date on which the treating physician, Dr. Coates, provides an impairment rating to defendants. Claimant is also entitled to healing period benefits from September 8, 1986 through September 13, 1987. This period is comprised of 53 weeks at the stipulated rate of $186.86 per week. The next issue is whether claimant is entitled to medical benefits pursuant to section 85.27 of the Iowa Code which provides that 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). In the instant case, claimant has neglected to provide a detailed itemization of the medical charges, the amounts paid by defendants, and the amounts claimant is claiming as due and owing. He has testified that $5,850.00 is the total showed for medical charges. In lieu of the itemization, claimant has provided 129 pages of medical bills, insurance forms, and an explanation of Medicare benefits paid. It is absolutely impossible to determine which medical bills claimant is alleging are benefits causally related to his work injury and authorized; which benefits have been paid by defendants; and which of the bills are still due and owing from defendants. Claimant has not completed "all of his homework." The parties are to work on this matter and defendants are liable for all medical benefits which are rea sonable and necessary, authorized and causally related to Page 12 claimant's work injury. The exact sum is undetermined since claimant has not prepared a detailed itemization as required by paragraph 11(3) of the hearing assignment order of October 31, 1991. The final issue to address is whether claimant is entitled to section 86.13 penalty benefits. 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). Claimant has not met the requisite burden of proof. Claimant had been paid weekly benefits from September of 1986 through September of 1988. Defendants have paid claimant 104.143 of weekly benefits. This equates with nearly a 10 percent permanent partial disability. Under the "fairly debatable" standard, it is reasonable for defendants to have terminated benefits given the circumstances surrounding the cause of claimant's original pelvis condiion. Therefore, penalty benefits are not appropriate. ORDER THEREFORE, IT IS ORDERED: Defendants are to pay unto claimant three hundred and fifty (350) weeks of permanent partial disability benefits at the stipulated rate of one hundred eighty-six and 86/l00 dollars ($186.86) per week and commencing from September 14, 1987. Defendants are to also pay unto claimant fifty-three (53) weeks of healing period benefits at the stipulated rate of one hundred eighty-six and 86/l00 per week for the period from September 8, 1986 to September 13, 1987. Defendants are to also pay 85.27 medical benefits which are authorized, reasonable and necessary, as well as causally related to the work injury. Accrued benefits are to be paid in a lump sum together with statutory interest at the rate of ten percent (10%) per year pursuant to section 85.30, Iowa Code, as amended. Defendants shall receive credit for all benefits previously paid. Costs are taxed to defendants pursuant to rule 343 IAC 4.33. Defendants shall file a claim activity report as requested by this division pursuant to rule 343 IAC 3.l. Page 13 Signed and filed this ____ day of September, 1992. ______________________________ MICHELLE A. McGOVERN DEPUTY INDUSTRIAL COMMISSIONER Copies To: Mr. Lew Eells Attorney at Law STE 465 Brenton Financial Center 150 1st Avenue NE Cedar Rapids, Iowa 52401 Mr. Stephen W. Spencer Mr. Fred L. Morris Attorneys at Law 218 6th Avenue STE 300 P O Box 9130 Des Moines, Iowa 50306 Mr. William Dennis Currell Attorney at Law 3401 Williams Blvd SW P O Box 998 Cedar Rapids, Iowa 52406 1400; 1803; 4100 Filed September 30, 1992 MICHELLE A. McGOVERN BEFORE THE IOWA INDUSTRIAL COMMISSIONER ____________________________________________________________ : ROBERT E. VEST, : : Claimant, : : vs. : : File No. 813090 CITY OF CEDAR RAPIDS, : : A R B I T R A T I O N Employer, : : D E C I S I O N and : : IOWA MUNICIPALITIES WORKERS' : COMPENSATION ASSOCIATION, : : Insurance Carrier, : Defendants. : ___________________________________________________________ 1400; 1803; 4100 Claimant argued he was an "odd-lot employee" under Guyton v. Irving Jensen Co., 373 N.W.2d 101, 105 (Iowa 1985). The "odd-lot doctrine" was not applicable. Claimant was restricted from returning to his position as a janitor. Dr. Coates, an orthopedic surgeon, deemed the janitorial position as too strenuous. Claimant requested a light duty janitorial position with defendant in lieu of returning to his full duties. Defendant-employer was unwilling or unable to accommodate claimant since it was already accommodating another janitor at the job site. Since accommodation on the job site was not possible, defendant-employer offered claimant a part-time position as a parking lot attendant at a parking garage. The position involved sitting for six hours per day. Claimant refused the position and even refused to attempt it. Because of his refusal, claimant "retired" from his employment with defendant. He informed various members of management that he had other work available to him. No other accommodation was made for claimant. After claimant's retirement, he was less than motivated to find gainful employment on a regular basis. Claimant was not restricted from all employment. However, claimant sought employment only on an irregular or casual basis. Claimant was determined to have a 70 percent permanent partial disability. Page 1 before the iowa industrial commissioner ____________________________________________________________ : RICHARD BAKER, : : Claimant, : : vs. : File No. 813246 : McGOUGH CONSTRUCTION, INC., : R E V I E W - : Employer, : R E O P E N I N G : and : D E C I S I O N : LIBERTY MUTUAL INSURANCE : COMPANY, : : Insurance Carrier, : Defendants. : ____________________________________________________________ statement of the case This is a proceeding in arbitration brought by the claimant, Richard Baker, against his employer, McGough Construction, Inc., and its insurance carrier, Liberty Mutual Insurance Company, to recover additional benefits under the Iowa Workers' Compensation Act as the result of an injury sustained on December 3, 1985. An agreement for settlement was approved in this matter on June 6, 1988, under which claimant received 200 weeks of permanent partial disability benefits based upon a permanent partial disability of 40 percent of the body as a whole. Those benefits have been paid. A first report of injury and claim activity reports have been filed. The record in this matter consists of the testimony of claimant and of claimant's spouse as well as of joint exhibits 1 through 69 as identified on the exhibit list. issues Pursuant to the hearing assignment order, the prehearing report, the oral stipulation of the parties hearing, and the matters established through the agreement for settlement, it is agreed that costs for medical charges were fair and reasonable for the condition treated and that the expenses were incurred for reasonable and necessary medical treatment; that claimant's rate of weekly compensation in the event of an award is $281.11; that claimant has been paid all temporary total disability or healing period disability to which claimant is entitled; Page 2 that claimant has been paid 200 weeks of permanent partial disability pursuant to the agreement for settlement previously approved; and, that claimant did receive an injury arising out of and in the course of his employment which injury was causally related to healing period and permanent partial disability. Issues remaining in dispute are: whether claimant has sustained a change of condition since the agreement for settlement of June 6, 1988, which change of condition is causally connected to the original injury such that claimant is entitled to additional permanent partial disability benefits, 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, apparently, costs for chiropractic care with the Troxel Clinic. Additionally, the parties dispute the appropriate commencement date for any additional permanent partial disability benefits. Claimant contends that any additional benefits should commence on February 21, 1990, the date immediately subsequent to the last date permanent partial disability benefits were paid claimant. Defendants contend that any award should commence on the date of the decision in this matter. findings of fact The deputy, having heard the testimony and considered the evidence, finds: Forty-year-old male claimant received an injury which arose out of and in the course of his employment on December 3, 1985, when he experienced sharp back pain while attempting to pick up an aluminum I-beam. Claimant also experienced radicular left leg pain. Claimant was subsequently diagnosed as having a herniated disc on the right at L3 and L4 as well as spinal stenosis at L3 and L4. Karl Detwiler, M.D., performed a bilateral L3-4 laminectomy, a bilateral L3-4 foraminotomy, and L3-4 right discectomy on March 21, 1986. The surgical intervention produced relief of claimant's left leg pain. His low back pain persisted. John S. Koch, M.D., an orthopaedic surgeon, examined claimant initially on July 22, 1987 with subsequent evaluations on November 21, 1988 and December 12, 1988. Dr. Koch's impression was that claimant had continuing problems of postural back ache with recurrent fibromyositis and strain difficulties. The doctor believed that claimant's postural back ache, fibromyositis, and strain difficulties are developmental conditions unrelated to his December 3, 1985 injury. The doctor's uncontroverted testimony in this regard is accepted. He opined claimant had had an acute exacerbation of difficulties in 1985 associated with his work injury, although he had had difficulty with his back Page 3 prior to that date and continued in 1987 to have difficulty with his back. The doctor anticipated claimant would continue to have back difficulties "forever." The doctor recommended that claimant have lumbosacral support for some exterior stabilization of his trunk. The doctor prescribed a Velcro back brace for claimant and suggested that claimant wear a wide leather belt with work clothes. Neither ongoing conservative medical care nor surgery was recommended. Dr. Koch opined claimant had a 20 percent "whole body disability." On December 12, 1988, Dr. Koch reported that "[w]ith the back belt the patient states he feels he can work all day now." At hearing, claimant stated that he stopped using the belt because he felt he had "become dependent" upon the belt. Dr. Koch later opined that claimant's actual permanent partial impairment was approximately seven percent of the whole person. Apparently, Dr. Koch had originally assessed claimant's preclusion from the labor he had been performing when injured in arriving at the 20 percent rating. Richard F. Neiman, M.D., a board-certified neurologist, examined claimant on May 25, 1989, for Disability Determination Services. He noted that, at that time, claimant appeared to be in no acute discomfort while moving about the room. Minor limitation in flexion, extension and lateral rotation of the back were noted. Straight leg tests were negative and there was no evidence of loss of strength, sensation or reflexes in the lower extremities. Claimant had marked atrophy of the left upper extremity involving the left thenar muscles. Total loss of sensation involving the median nerve distribution was also noted. X-rays revealed no instability of the lumbosacral spine and minor arthritic changes. Dr. Neiman then opined that claimant had a failed back syndrome, appeared to be quite well muscled and was able to move around quite nicely. He stated: At this state I think he certainly could easily qualify for a number of other type positions. He appears to be a quite well muscled individual and although not capable of heavy physical activity, capable of sedentary type activity. Despite the median nerve dysfunction on the left side he still has fairly good function as far as the hand. I believe there are a number of positions that he could be trained for. (Exhibit 46, page 2) At the request of claimant's counsel, Dr. Neiman re-examined claimant on May 30, 1990. Dr. Neiman then reported that claimant had considerable difficulty as far sitting in the chair for any length of time, although he had Page 4 relatively full flexion, extension and lateral rotation of the back. Straight leg tests were negative. No demonstrable muscle weakness, sensation or reflex changes were noted. The doctor opined that, under the Manual for Orthopedic Surgeons, neurogenic low back pain with disc injury and surgical excision of the disc and no fusion with moderate persistent pain and stiffness aggravated by heavy lifting and necessitating modification of activity, claimant's whole person impairment was 20 percent. The doctor restricted claimant to maximum repetitive lifting of 15-20 pounds and of lifting occasionally at 35 pounds. The doctor subsequently changed the repetitive lifting limit to no more than 15 pounds and lowered the occasional lifting limit to 25 pounds. The doctor advised that claimant avoid excessive flexion, extension and lateral rotation of the back, prolonged sitting or standing. The doctor again felt claimant was capable of sedentary work, if he could find employment. He added, however: ". . . because of the previous confrontation with the law and his history of multiple substance abuse in the past, I think he is extremely limited as far as his options." (Exhibit 62, page 3) At deposition, Dr. Neiman stated that, based upon the examination and comments Dr. Koch made in his examination report of July 22, 1987, Dr. Neiman would have imposed the restrictions Dr. Neiman imposed in May 1990. Dr. Neiman also stated that, based upon the report of July 22, 1987, he would have rendered an impairment rating of 20 percent or "[w]ithin a few points. Maybe as low as 15, 16, but it would have been within that ball park." Patricia R. Lawton, licensed physical therapist, performed a disability examination of claimant on January 4, 1990. She found that claimant had full range of motion and normal strength throughout, but very poor posture. The thoracic back was kyphotic and the lumbar back lordotic. Claimant informed her that he had been previously advised that he had scoliosis. Claimant had a right cervical-left thoracic curve with the right shoulder lower than the left. In forward bending, the right cervical area and the left thoracic area were raised. Lateral bending to the right was limited. Overall, thoracic flexibility was sufficient, but lumbar area was limited. Ms. Lawton opined that claimant would be a good candidate for thorough orthopedic examination and physical therapy program of exercise and work hardening. Prior to his injury, claimant worked in construction, carpentry and as a carpet layer. Claimant has a history of substance abuse, a diagnosis of anti-social personality disorder, a history of one attempted suicide, and is a convicted felon, having served a period of time in the men's Page 5 reformatory and the state penitentiary. Each of these factors existed at the time of claimant's injury and at the time of the approval of the prior agreement for settlement. Claimant's spouse reported that claimant has started drinking again; she feels his renewed drinking relates to his work injury. Medical evidence supporting that conclusion was not offered. The lay opinion of claimant's spouse, without more, is insufficient to support a finding of causal relationship between the work injury and any current substance abuse by claimant. Claimant did not seek employment prior to the agreement for settlement. Claimant had been assessed vocationally by Orville H. Townsend, of the Iowa Department of Vocational Rehabilitation. He also underwent assessment and skills and aptitude evaluations through Kirkwood Community College. Claimant was advised to consider retraining in the food service industry or as a painter. Claimant was expressly advised not to attempt retraining in auto mechanics as such was likely to aggravate his back condition. Claimant subsequently enrolled in an auto mechanics course. Claimant stated that he quit the course after a period of time as he was unable to tolerate the sitting required. H. Shelby Swain, MS, CIRS, rehabilitation consultant with Management Consulting & Rehabilitation Services, Inc., also assessed claimant's employability and attempted to assist claimant in vocational planning and job placement. Swain worked with claimant from August 1987 through February 1988. Swain's monthly progress reports demonstrate that claimant had, at best, minimal interests and effort as regards obtaining employment. Claimant sought no employment from his date of injury through June 6, 1988. Subsequent to June 6, 1988, claimant worked at a variety of jobs, but left each after at best a few days because of claimant's subjective belief that his back pain was too great to permit claimant to continue working. Claimant raised exotic birds for resale subsequent to his injury. At hearing, claimant reported that that had been "a hobby," and that he had barely made enough to pay for the feed. Subsequent to his injury, claimant enrolled in and completed a course in locksmithing. Claimant reported at hearing that he has never sought employment as a locksmith. Claimant stated that he had hoped to start his own business and had been unable to do so since he could not afford the tools. Claimant was referred to Goodwill Industries for a vocational evaluation. Claimant attended three of the ten days scheduled. He was absent on other days as the result of his subjective belief that his back pain was too great to attend. Cary M. Giles, certified vocational evaluator at Page 6 Goodwill, corroborated claimant's subjective belief, reporting that through facial grimacing, loss of color in the face and difficulty in moving from a sitting to standing position, claimant appeared to be having significant pain. Giles reported that services through Goodwill Industries would not benefit claimant due to claimant's reduced stamina, range of motion, and limitations. Giles reported that it did not appear that claimant would gain competitive gainful employment or increase his stamina such that he could participate in even part-time employment. Claimant sat at hearing throughout his testimony without observable discomfort. The greater weight of the evidence, that is, the testimony of Drs. Koch and Neiman, as well as the vocational rehabilitation reports of Mr. Swain, Mr. Townsend and Kirkwood Community College, support a finding that claimant does have some capacity to do sedentary work. The evidence further supports a finding that claimant has not been significantly motivated to seek work at any time subsequent to his date of injury nor to maintain employment at any time subsequent to his date of injury and that that lack of motivation as well as functional limitations have not changed significantly since the agreement for settlement in this matter was approved on June 6, 1988. The opinions of Mr. Giles are given lesser weight in that they are not consistent with the opinions expressed by the other vocational consultants or the physicians in this matter. Claimant sought chiropractic treatment with the Troxel Chiropractic Clinic, apparently with Mark L. McGowan, D.C., from November 21, 1989 through January 16, 1990. Claimant stated that the insurer authorized four such visits, but did not authorize other visits. Claimant presented no evidence demonstrating why chiropractic care which defendants had not authorized was warranted. conclusions of law Upon review-reopening, claimant has the burden to show a change in condition related to the original injury since the original award was made. The change may be either economic or physical. Blacksmith v. All-American, Inc., 290 N.W.2d 348, 354 (Iowa 1980); Henderson v. Iles, 250 Iowa 787, 96 N.W.2d 321 (1959). A mere difference of opinion of experts as to the percentage of disability arising from an original injury is not sufficient to justify a different determination on a petition for review-reopening. Rather, claimant's condition must have worsened or deteriorated in a manner not contemplated at the time of the initial award before an award on review-reopening is appropriate. Bousfield v. Sisters of Mercy, 249 Iowa 64, 86 N.W.2d 109 (1957). A failure of a condition to improve to the extent anticipated originally may also constitute a change of Page 7 condition. Meyers v. Holiday Inn of Cedar Falls, Iowa, 272 N.W.2d 24 (Iowa App. 1978). A change in earning capacity subsequent to the original settlement agreement or award which is proximately caused by the original injury also constitutes a change in condition. See McSpadden v. Big Ben Coal Co., 288 N.W.2d 181 (Iowa 1980); Blacksmith v. All-American, Inc., 290 N.W.2d 348 (Iowa 1980). 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). Claimant has not met his threshold burden of establishing a change of condition subsequent to his June 6, 1988 agreement for settlement, which change of condition warrants a reopening of this matter and the award of benefits greater than those agreed upon in that settlement. Claimant's medical condition has remained essentially as it was when Dr. Koch originally saw him in 1987. Indeed, Dr. Neiman indicated that his permanency rating would have been approximately 20 percent or at least in "that ball park," based upon Dr. Koch's findings in 1987. Likewise, Dr. Neiman indicated that his restrictions would have been substantially those given subsequent to the agreement for settlement had he assigned those restrictions when Dr. Koch saw claimant in 1987. Hence, even though Dr. Neiman gave a greater overall impairment rating in May 1990 than that which Dr. Koch gave in July 1987, that mere difference in opinion between these two qualified physicians does not demonstrate, per se, a change of condition; none can plausibly be said to be found on a physical basis. Likewise, claimant has not demonstrated a true change in economic condition since June 6, 1988. At that time, claimant had not sought gainful employment since his date of injury, but to raise birds and begin a locksmithing course. Since that date, claimant's attempts at work have been haphazard at best. Indeed, claimant's failure to pursue gainful employment on account of his physical condition runs counter to the opinions of Drs. Koch and Neiman as well as that of physical therapist Lawton. Claimant's failure to pursue gainful employment or retraining efforts is also counter to the opinions and advice of vocational consultants Page 8 Townsend, Swain and those at the Kirkwood Community College skills center. Much ado has been made of claimant's criminal record, his substance abuse disorder, and his anti-social personality disorder and apparently related suicide attempt. Dr. Neiman contends such make it unlikely that claimant is employable. However, those factors all existed at the time of claimant's injury. Claimant apparently had not had serious difficulties maintaining employment despite those factors prior to the injury. More significantly, those factors were all present at the time claimant entered the agreement for settlement. Hence, their existence cannot form the basis for a finding that claimant's condition has changed significantly since that agreement. Moreover, Dr. Koch has causally related claimant's present condition to a congenital defect or defects and not the claimant's work injury. Dr. Koch's uncontroverted testimony in that regard is accepted. For that reason also, claimant has not shown a change of condition causally related to his work injury which warrants reopening the prior agreement for settlement. As claimant has not established the requisite change of condition, he is not entitled to additional permanent partial disability benefits beyond those agreed to in the approved agreement for settlement of June 6, 1988. Claimant apparently seeks payment of bills for chiropractic care with Dr. McGowan. Claimant himself testified that defendants authorized four visits only. Claimant continued with subsequent visits knowing that defendants had not authorized such. Claimant has shown no basis for payment of the non-authorized visits. Payment of visits with Dr. McGowan subsequent to claimant's initial four visits then is claimant's liability and not his employer's. The record does not reflect whether the employer has paid for those initial four visits. If the employer has not so paid, the employer shall pay the costs of four such visits. order THEREFORE, IT IS ORDERED: Defendants pay claimant the costs of his initial four visits with Mark L. McGowan, D.C., as set forth in the above conclusions of law. Claimant take nothing further from this proceeding. Claimant pay costs of this action pursuant to rule 343 IAC 4.33. Signed and filed this ______ day of ____________, 1991. Page 9 ______________________________ HELENJEAN WALLESER DEPUTY INDUSTRIAL COMMISSIONER Page 10 Copies To: Mr. Bruce L. Walker Attorney at Law 321 Market P.O. Box 2150 Iowa City, Iowa 52244 Mr. Greg A. Egbers Attorney at Law 600 Union Arcade Building 111 East Third Street Davenport, Iowa 52801 5-2905 Filed September 19, 1991 HELENJEAN WALLESER before the iowa industrial commissioner ____________________________________________________________ : RICHARD BAKER, : : Claimant, : : vs. : File No. 813246 : McGOUGH CONSTRUCTION, INC., : R E V I E W - : Employer, : R E O P E N I N G : and : D E C I S I O N : LIBERTY MUTUAL INSURANCE : COMPANY, : : Insurance Carrier, : Defendants. : ____________________________________________________________ 5-2905 Claimant failed to establish change of condition entitling claimant to review-reopening when both physical and economic factors remained substantially unchanged from those existing at time of prior agreement for settlement. BEFORE THE IOWA INDUSTRIAL COMMISSIONER RICHARD C. BURNS, Claimant, File No. 813367 vs . PUROLATOR COURIER CORP., A R B I T R A T I O N Employer, D E C I S I O N and F I L E D LIBERTY MUTUAL INSURANCE CO., NOV 29 1988 Insurance Carrier, Defendants. IOWA INDUSTRIAL COMMISSIONER STATEMENT OF THE CASE This is a proceeding in arbitration brought by Richard C. Burns, claimant, against Purolator Courier Corporation, employer, and Liberty Mutual Insurance Company, insurance carrier, to recover benefits under the Iowa Workers' Compensation Act as a result of an injury sustained January 7, 1986. This matter came on for hearing before the undersigned deputy industrial commissioner January 19, 1988. The record was considered fully submitted upon the receipt of the deposition of Dr. Robb, defendant exhibit A. The record in this case consists of the testimony of claimant, Teresa Burns, his wife, Shelby Swain and Elaine Yock; joint exhibits 1 through 10, inclusive; claimant's exhibit A; and defendants' exhibits A, B and E. Defendants' exhibits C and D are excluded for defendants' failure to serve the documents in accordance with the hearing assignment order and have not been considered in making this decision. Further, for reasons evident in the record, the testimony of David Sterr is excluded and has not been considered in making this decision. ISSUES Pursuant to the prehearing report and order submitted and approved January 19, 1988, the following issues are presented for resolution: 1. The extent of claimant's entitlement to permanent partial disability benefits; 2. The applicability of the odd-lot doctrine; and, 3. Claimant's entitlement to Iowa Code section 85.70, vocational rehabilitation benefits. The parties also indicate that claimant's appropriate rate of compensation is in issue. Claimant's exhibit A is a request for admissions (second set) which was served on defendants December 11, 1987. Pursuant to Division of Industrial Services Rule 343-4.35 and Iowa Rule of Civil Procedure 127, each matter is admitted unless, within thirty days after the service of the request, the party to whom the request is directed serves upon the party requesting the admission a written answer or objection addressed to the matter. Without dispute, defendants failed to respond to such admissions within the time prescribed by Rule 127. Defendants argue that this failure to respond was due to oversight and/or inadvertence. The undersigned sees no such allowable exception within the rule. Therefore, pursuant to request for admission No. 22 to which defendants did not respond within the prescribed thirty days, claimant's rate of compensation is $286.66 per week and the issue of rate will not be considered any further. FACTS PRESENTED Claimant, whose job with defendant employer consisted primarily of driving a van and delivering packages, sustained an injury which arose out of and in the course of his employment on January 7, 1986 when, while lifting a package weighing 30 to 40 pounds, he felt pain like a "hot iron" in his low back. Claimant recalled he laid down for a few minutes and then crawled out of the van where a co-worker caught him as he was falling. Claimant testified he then began filling out accident reports and that at approximately 2:45 p.m. he went to see Percy Harris, the company doctor, who eventually referred claimant to Hugh P. MacMenamin, M.D., with whom claimant treated until he was told "nothing more" could be done for him. Claimant explained that Dr. MacMenamin has released him to return to work for defendant employer but, because it was not a full release, Dr. Harris would not allow him to return. Claimant stated he was in good health prior to this injury and denied sustaining any other injury to his low back since January 7, 1986. Claimant acknowledged he had had some back problems prior to this work injury most recently when he was hit by a drunk driver in a rear end collision and that he saw a chiropractor for upper back and neck problems. Claimant recalled an accident a short time prior to January 1986 when he slipped on some ice getting out of his van and asserted he did not miss any work and did not seek medical attention therefor. Claimant could not recall straining his back pushing a vehicle in January 1982, falling on ice in February 1984, or slipping on ice sometime after January 7, 1986. Claimant testified he worked with two vocational rehabilitation consultants the first of whom sent him for testing and then to Kirkwood Community College Skill Center for evaluation. Claimant acknowledged his attendance at the skill center was "bad" due to family problems and that he did not complete the program because he was told it would not "do any good." Claimant testified he does not read well and needed assistance to fill out his application for employment when he began working for defendant employer. Claimant testified that during his thirteen years of employment with Purolator Courier, he needed help from supervisors, co-workers and his wife in order to accurately complete all required paperwork. Claimant stated he cannot write or spell very well, that he cannot run a cash register or calculator and that he cannot work on the phone due to a bad habit of "dirty words" coming out. Claimant explained he has looked for work, principally on the phone, but he has not been able to secure any employment he feels is within his capabilities. Claimant stated he contacted a florist and felt he could do the job until he became aware that some flower arrangements weigh in excess of 50 pounds and that the job would require bending and standing. Claimant testified he contacted a security agency but felt the walking and standing required of the position was beyond his capabilities. Claimant described being "scared" to look for jobs and being "embarrassed" when he cannot read the application. Claimant testified that currently his low back pain is the same as it was in January 1986, that he cannot stand very long, that he has sharp pains while sitting in a soft chair, that he can sit for about an hour if he "has to," that he can lift 35 pounds per his physician's instructions and that he cannot sleep through the night. Claimant explained he currently uses a cane on the advice of Dr. MacMenamin to maintain his balance as his legs sometimes "let go" on him. Claimant stated he also used a back brace for a period of time. Teresa Burns testified that since claimant's injury he has become "owly" and "grouchy" without provocation and that claimant cannot now do many of the things he was previously capable of doing. Mrs. Burns explained claimant cannot read the paper, that she often helped him with his employment paperwork and that claimant has tried to use a calculator without any success and that claimant gets "real nervous" when he is on the phone. Elaine Yock, of Helping Hands, Inc., testified she worked with claimant when she was employed with defendant Purolator Courier and that claimant had a "terrible time" with his paperwork and as a result often became nervous and angry when dealing with this. Ms. Yock believed defendant employer hired an employee to assist claimant with his paperwork who also manifested claimant's boxes before claimant came to work each day. Ms. Yock described that claimant was usually the last to leave each day due to helping unload, being unorganized and due to the paperwork, including having trouble understanding his time sheet. Ms. Yock explained that Helping Hands, Inc. provides "assistance to professionals who do not have the time to get things done" and that, as an employer, she would not hire claimant now, even if exclusive of his back injury, as he does not have the presence of mind or appearance to deal with professionals. Shelby Swain, who described himself as a rehabilitation consultant with Management Consulting and Rehabilitation Services, Inc., of Ankeny, Iowa, testified he was employed by defendant insurance carrier to help claimant find work. Mr. Swain stated he was given claimant's medical records and the records from the State Vocational Rehabilitation Services and that he met with claimant and claimant's attorney on June 22, 1987. Mr. Swain opined claimant was vague on his work search because he was "confused" about what he should be doing and that claimant's main problems were anxiety and depression, lack of transferable skills, lack of reading ability and nervousness. Mr. Swain stated that "realistically" claimant was "looking at" employment paying minimum wage to $5 per hour although he expressed his belief claimant would have "jumped at" a job paying $10 per hour and that claimant had "disincentives" to accepting jobs paying any less since certain debt obligations were being met through disability insurance which would cease if claimant returned to work. Mr. Swain, who maintained he is familiar with the "odd-lot" doctrine as applied in the state of Iowa, opined claimant was not an odd-lot employee and that there are a "number of things" claimant could do. Mr. Swain admitted there were a number of "work barriers" confronting claimant including age, limited transferable skills, appearance, pain, a workers' compensation claim, length of time he has been off work, education (described as the "biggest barrier"), work restrictions and mood. William J. Robb, M.D., orthopedic surgeon, testified he saw claimant on one occasion, December 22, 1987, at defendants "instance" to evaluate claimant's condition. Dr. Robb relayed claimant's medical history consistent with that claimant gave at hearing and explained he also had at his disposal claimant's "complete medical file" to utilize in his ultimate conclusions. Dr. Robb described the physical examination he gave claimant that day and stated he felt claimant was "guarding himself," was apprehensive, overreactive and somewhat "hypersensitive" during the examination. Dr. Robb reported he found no evidence of atrophy or nerve damage to the motor supply to the muscles and that claimant's neurological examination was normal. Dr. Robb stated his diagnosis: "I feel that he has incurred initially an acute strain to the lumbosacral spine which has been followed by deconditioning of the spine and a contracture of the muscles of the low back and hamstrings." (Defendants' Exhibit A, Robb Deposition, page 11, lines 5-9) Dr. Robb's prognosis was stated as: I feel that he will have some -- Well, first of all, I don't feel this gentleman, considering the length of time -- he has chronic low back pain. Considering the length of time that he has been away from both exercising, weight reduction, rehabilitation, I can't foresee that he will be able to return to the occupation that he has pursued in the past. And his limitations would be with reference to use of the back, which translating it in terms of his job would be bending, stooping, lifting, loading, and I assume driving, too, some. (Def. Ex. A, Robb Dep., p. 11) Dr. Robb concluded claimant had a permanent partial impairment of 15 percent to the body as a whole as a result of the injury of January 7, 1986 and further opined that that impairment could be reduced if claimant entered into a program of weight reduction and physical fitness. However, Dr. Robb stated that even if claimant's impairment were reduced he would not recommend claimant return to his former employment as a truck driver with loading and unloading responsibilities. Medical records of Hugh P. MacMenamin, M.D., revealed claimant was first seen February 14, 1986 for evaluation of low back pain. Examination revealed a "robust" male who "moved with some stiffness but no great discomfort." X-rays showed narrowing of the "L5-Sl level" with some sclerosis of the L5-Sl facet joint and Dr. MacMenamin opined: "IMPRESSION: Degenerative disk disease; probably old. 2. Myofascial strain." Claimant was advised to continue with physical therapy and on February 21, 1986, when claimant was next seen, claimant was found to have continued stiffness and pain. Physical therapy was discontinued as Dr. MacMenamin reported "further therapy would not be of value." A CT scan was ordered on February 27, 1986 and on March 5, 1986 Dr. MacMenamin wrote: This is a CT report from Mercy Hospital done on 2/10/86. On the soft tissue cuts on the L5-Sl level, although the cuts are asymmetric, there appears to be disk material extending laterally both to the right and the left on different cuts. There is obliteration of the fat pad on the right side on the first cut of the second x-ray frame and on the left side on the fifth cut, i.e., 45-53 of the L5-Sl level. At the L4-5 disk, I do not see any distinct abnormalities or asymmetries. At the L3-4 level, again no distinct asymmetries are seen. On the body cuts, the lateral recesses appear to be well preserved. (Joint Exhibit 1a, p. 2) On May 27, 1986, Dr. MacMenamin stated claimant was still complaining of pain but it was recommended he return to work. On July 23, 1986, Dr. MacMenamin reported: This patient returns today stating he has still significant pain in his low back. We undertook a prolonged discussion regarding this. Richard told me that I had said that he would never return to Purolator to work. This is completely erroneous as I have never said such a thing. Richard understood that when he went to Mark Anderson at St. Luke's Hospital in Physical Therapy that he would be evaluated for disability. I tried to explain to Richard today that Mark Anderson is a physical therapist and as such has no interest or authority to perform disability ratings. Richard conveyed to me that the reason why his back was not improving was because he had "too many doctors". Also he alluded to the fact that his back couldn't stand up to any more treatment. He seemed to infer that the therapy we have prescribed is working against him rather than for him. I explained to Richard that the reason he is continuing to go to therapy, work hardening, is because of his continued pain. He has been through multiple treatments including bed rest, anti-inflammatories, ultrasound, traction, physical therapy here by Mike Twomey, and physical therapy at St. Luke's Hospital with work hardening. None of these have been efficatious [sic]. Because of his continued symptoms and because of suggestion on CT scan of a disk problem, we will go ahead and obtain a myelogram to elucidate any surgical pathological lesion. On exam today, he is markedly stiff when he goes from the sitting to the standing position. On asking him to flex forward, he flexes to the standing position. On asking him to flex forward, he flexes to approximately 40 very sluggishly and points to his upper lumbar area where he feels the pain. Lateral bending is 10 each side. Beyond this, there is discomfort. Straight leg raising signs are negative bilaterally. Ankle jerk and knee jerk are 2+ and symmetrical. Sensation is normal in the lower extremities, i.e., he has no positive neurological signs. I have tried to set the record straight with Richard regarding his pain and his inability to work. He seems to think that I am the one holding him off work. However, he insists for Purolator he must be 100% able. Since he complains of pain, obviously he is not at this stage yet. After we evaluate the myelogram, we will be in a better position to discuss future treatment. (Jt. Ex. 1a, p. 4) On September 11, 1986, Dr. MacMenamin reported he did not anticipate any further treatment for claimant and explained: Restrictions are in order, i.e., 35-pound weight lifting. He should avoid any weight lifting over this. Persistent bending and twisting are not desirable. Richard Burns does have a herniated disc. In my opinion surgery is not indicated at this time. In my opinion he has a 20% whole body permanent physical impairment and loss of physical function to the whole body. (Jt. Ex. 1k. p. 22) The office notes of Dr. Percy Harris show claimant was seen on January 7, 1986 after straining his low back at work and that Dr. Harris prescribed heat and bed rest. It was reported on January 10, 1986 that claimant was moving better, although he experienced pain with movement and that claimant was walking with crutches. By February 3, 1986, it was reported that claimant was feeling better and had a full range of motion although there was some discomfort. However, on February 8, 1986, Dr. Harris noted claimant had slipped on ice and landed on his back and that since the fall claimant was experiencing left lower back pain and abdominal pain. Subsequent visits did not reveal claimant made any improvement. Psychological testing done by the state of Iowa department of public instruction for the vocational rehabilitation office revealed claimant has a full-scale I.Q. of 84 placing him in the dull-normal category of intelligence. Quentin R. Sabotta, psychologist, concluded: This is a stockily-built and somewhat obese forty-one year old man who functions in the dull-normal range of intellectual ability. His test performance appears to reflect his limited educational background along with neurological deficiencies in his ability to deal with the verbal symbols. His personality profile portrays him as being very depressed and contributes to the impression that a life-long pattern of failures has contributed to deep feelings of personal inadequacy. Emotional tensions appear to be contributing to his physical problems and it would appear that he might profit from a good deal of counselling aimed at helping him to develop more effective avenues in his daily living. He should respond favorably to a vocational program commeasurate [sic] with his abilities and interests. (Jt. Ex. 4c, p. 60) Kirkwood Community Skill Center discharge summary dated March 18, 1987 states: During the first part of Richard's program he missed numerous days because of an illness in the family. He stated that his father-in-law was very ill and he was spending a great deal of time at the University Hospital in Iowa City. I talked with Richard about this after approximately 1 1/2 weeks; it was at this point that his attendance improved greatly. Physically, it appeared that Richard seemed to have difficulty getting around, however, in the Job Preparation area as stated above, it appears that he can do well for a time doing sedentary jobs where he works with his hands. I discussed this with Richard and he stated that he could only do this for a short period of time and that he was in a great deal of pain but did not say much to anyone. It was at this point that I told Richard that he was to try his best and let this counselor know, as well as the supervisors, when he was in pain. We started hearing about numerous physical ailments from his back hurting to having difficulty with his hands and knee. Also, at this point the people in the Job Preparation area noticed a decrease in his production rate. Based on the information gathered by Richard's enrollment at the skill Center, it appears that Richard is not competitively employable at this time and it may be to his advantage to apply for Social Security. (Jt. Ex. 4h, p. 72) Defendants' answers to claimant's interrogatories state: INTERROGATORY NO. 4: Please state whether you stand ready, willing, and able to have this claimant return to work, and if not, state the reasons. ANSWER: Purolator Courier Corporation would be willing to have the claimant return to work when he can perform the job duties with no restrictions and is DOT physically qualified. (Jt. Ex. 10) APPLICABLE LAW AND ANALYSIS An employee is entitled to compensation for any and all personal injuries which arise out of and in the course of the employment. Section 85.3(1). Iowa Code section 85.34(2)(u) provides: In all cases of permanent partial disability other than those hereinabove described or referred to in paragraphs "a" through "t" hereof, the compensation shall be paid during the number of weeks in relation to five hundred weeks as the disability bears to the body of the injured employee as a whole. If it is determined that an injury has produced a disability less than that specifically described in said schedule, compensation shall be paid during the lesser number of weeks of disability determined, as will not exceed a total amount equal to the same percentage proportion of said scheduled maximum compensation. Iowa Code section 85.70 provides: An employee who has sustained an injury resulting in permanent partial or permanent total disability, for which compensation is payable under this chapter, and who cannot return to gainful employment because of such disability, shall upon application to an approval by the industrial commissioner be entitled to a twenty-dollar weekly payment from the employer in addition to any other benefit payments, during each full week in which the employee is actively participating in a vocational rehabilitation program recognized by the state board for vocational education. The industrial commissioner's approval of such application for payment may be given only after a careful evaluation of available facts, and after consultation with the employer or the employer's representative. Judicial review of the decision of the industrial commissioner may be obtained in accordance with the terms of the Iowa administrative procedure Act and in section 86.26. Such additional benefit payment shall be paid for a period not to exceed thirteen consecutive weeks except that the industrial commissioner may extend the period of payment not to exceed an additional thirteen weeks if the circumstances indicate that a continuation of training will in fact accomplish rehabilitation. The parties do not dispute that claimant sustained an injury which arose out of and in the course of his employment or that the injury is the cause of both temporary and permanent disability. Although there is one reference in Dr. Harris' office notes to a fall claimant sustained in February 1986 which involved his back, it is accepted that the greater weight of evidence establishes all of claimant's disability is causally connected to the work injury of January 7, 1986. It is necessary, then, to consider only the issues of the extent of claimant's permanent disability which includes the related issue of whether or not claimant is an odd-lot employee as contemplated by Guyton v. Irving Jensen Co., 373 N.W.2d 101 (Iowa 1985). Functional disability is an element to be considered in determining industrial disability which is the reduction of earning capacity, but consideration must also be given to the injured employee's age, education, qualifications, experience and inability to engage in employment for which he is fitted. Olson v. Goodyear Service Stores, 255 Iowa 1112, 125 N.W.2d 251 (1963). Barton v. Nevada Poultry, 253 Iowa 285, 110 N.W.2d 660 (1961). A finding of impairment to the body as a whole found by a medical evaluator does not equate to industrial disability. This is so as impairment and disability are not synonymous. Degree of industrial disability can in fact be much different than the degree of impairment because in the first instance reference is to loss of earning capacity and in the later to anatomical or functional abnormality or loss. Although loss of function is to be considered and disability can rarely be found without it, it is not so that a degree of industrial disability is proportionally related to a degree of impairment of bodily function. Factors to be considered in determining industrial disability include the employee's medical condition prior to the injury, immediately after the injury, and presently; the situs of the injury, its severity and the length of healing period; the work experience of the employee prior to the injury, after the injury and potential for rehabilitation; the employee's qualifications intellectually, emotionally and physically; earnings prior and subsequent to the injury; age; education; motivation; functional impairment as a result of the injury; and inability because of the injury to engage in employment for which the employee is fitted. Loss of earnings caused by a job transfer for reasons related to the injury is also relevant. These are matters which the finder of fact considers collectively in arriving at the determination of the degree of industrial disability. There are no weighting guidelines that indicate how each of the factors are to be considered. There are no guidelines which give, for example, age a weighted value of ten percent of the total value, education a value of fifteen percent of total, motivation - five percent; work experience - thirty percent, etc. Neither does a rating of functional impairment directly correlate to a degree of industrial disability to the body as a whole. In other words, there are no formulae which can be applied and then added up to determine the degree of industrial disability. It therefore becomes necessary for the deputy to draw upon prior experience, general and specialized knowledge to make the finding with regard to degree of industrial disability. See Peterson v. Truck Haven Cafe, Inc., (Appeal Decision, February 28, 1985); Christensen v. Hagen, Inc., (Appeal Decision, March 26, 1985). Under the odd-lot doctrine, which was normally adopted by the Iowa Supreme Court in Guyton, supra, a worker becomes an odd-lot employee when an injury makes the worker incapable of obtaining employment in any well-known branch of the labor market. An odd-lot worker is thus totally disabled if the only services the worker can perform are so limited in quality, dependability, or quantity that a reasonably stable market for them does not exist. Id., citing Lee v. Minneapolis Street Railway Company, 230 Minn.3l5, 320, 41 N.W.2d 433, 436 (1950). The rule of odd-lot allocates the burden of production of evidence. If the evidence of degree of obvious physical impairment, coupled with other facts such as claimant's mental capacity, education, training or age, places claimant prima facie in the odd-lot category, the burden should be on the employer to show that some kind of suitable work is regularly and continuously available to the claimant. Certainly in such a case it should not be enough to show that claimant is physically capable of performing light work and then round out the case for non-compensable by adding a presumption that light work is available. Guyton, 373 N.W.2d at 105. When a worker makes a prima facie case of total disability by producing substantial evidence that the worker is not employable in the competitive labor market, the burden to produce evidence of suitable employment shifts to the employer. If the employer fails to produce such evidence and the trier of fact finds the worker falls in the odd-lot category, the worker is entitled to a finding of total disability. Even under the odd-lot doctrine, the trier of fact is free to determine the weight and credibility of the evidence in~determining whether the worker's burden of persuasion has been carried. Only in an exceptional case would evidence be sufficiently strong to compel a finding of total disability as a matter of law. Guyton, 373 N.W.2d at 106. The court went on to state: The commissioner did not in his analysis address any of the other factors to be considered in determining industrial disability. Industrial disability means reduced earning capacity. Bodily impairment is merely one factor in a gauging industrial disability. Other factors include the worker's age, intelligence, education, qualifications, experience, and the effect of the injury on the worker's ability to obtain suitable work. See Doerfer Division of CCA v. Nicol, 359 N.W.2d 428, 438 (Iowa 1984). When the combination of factors precludes the worker from obtaining regular employment to earn a living, the worker with only a partial functional disability has a total disability. See McSpadden v. Big Ben Coal Co., 288 N.W.2d 181, 192 (Iowa 1980). Of first concern is whether or not claimant has established he is a "odd-lot employee" under Guyton, meaning has claimant made a prima facie case of total disability by producing substantial evidence that he is not employable in the competitive labor market. The record establishes claimant has not been employed since his injury. Dr. MacMenamin, his treating physician, has released claimant to return to work albeit with some restrictions. No physician has precluded claimant from any type of gainful employment. Claimant has not returned to work with defendant Purolator Courier because defendants will not allow him to do so within the restrictions imposed. This does not mean, however, that claimant is not employable. The industrial commissioner has frequently held, most recently in Collins v. Friendship Village, Inc., (Appeal Decision filed October 31, 1988) that a claimant who has not sought employment since the time of injury is not an odd-lot employee. Claimant's purported work search has consisted primarily of making phone calls to prospective employers. This work search is questionable in light of claimant's admission that he does not perform well on the phone. Claimant has made no effort to call personally on any employer or to make any formal applications for employment. The record in Guyton, supra, contains substantial evidence of Guyton's efforts since his injury to secure employment. Claimant's efforts in this case fall far short of those of Guyton. Shelby Swain testified that claimant is employable and that, given the opportunity to work with claimant, he could find employment for claimant in the wage range of $3.35 to $5.00 per hour notwithstanding the "employment barriers" attested to. Claimant attempts to dismiss this testimony by arguing: "The vocational consultant was specifically asked whether or not he had established the availability of other jobs that the claimant could perform in the local market, and he indicated that he had not done so. A showing of employability does not give rise to a presumption of availability." However, claimant's argument is not convincing. It appears to the undersigned that this consultant was ready and willing to assist claimant in finding suitable employment but was rebuffed by claimant himself who opposed the idea of employment paying any less than what he was making with his previous employer. Claimant cannot benefit from his own deliberate inaction. Claimant has not established he is an odd-lot employee and the question thus turns to the extent of claimant's permanent partial disability. Claimant, age 42, testified he completed the ninth grade "but flunked" and that up to that point he struggled through school. The undersigned does not doubt this struggle and claimant clearly has limited abilities to read, write and comprehend having been categorized as "dull-normal" after testing. Claimant's education, or lack thereof, and his communications skill level certainly constitute roadblocks to securing competitive employment. Claimant has previous work experience as a gas station attendant, bus boy, in a bowling alley, checking corn and soybeans for moisture content, as a security guard, in the city of Cedar Rapids sanitation department and as a machine operator and welder at a rate of pay of $5 per hour. Claimant was employed with defendant Purolator Courier for 13 years and last earned approximately $11 per hour. Although the undersigned has concluded claimant is employable, claimant appears vehemently opposed to a job paying $5 per hour in which wage range he is most likely to find employment. While claimant does have outside considerations, this does not necessarily speak well for his motivation to return to work. Claimant described himself as having been in good health prior to his injury and the medical records would generally attest to this. Although claimant did have some prior back problems, they do not appear to have precluded him from any employment opportunities. While claimant has been released to return to work with some restrictions, the restrictions do not appear to be so onerous as to completely preclude claimant from employment for which he is fitted. It is recognized that defendant employer has made no attempt to return claimant to work. A defendant employer's refusal to give any sort of work to a claimant after he suffers his affliction may justify an award of disability. McSpadden v. Big Ben Coal Co., 288 N.W.2d 181 (Iowa 1980). Claimant has sustained a permanent partial impairment as a result of the work injury and had a healing period of some eight months. Considering then all the elements of industrial disability, it is found claimant has sustained a permanent partial disability of 55 percent for industrial purposes entitling claimant to 275 weeks of permanent partial disability benefits. The final issue for resolution is whether claimant is entitled to benefits provided by Iowa Code section 85.70 for the period of time he was enrolled at the Kirkwood Community College Skill Center. As indicated above, an employee who has sustained an injury resulting in permanent partial disability for which compensation is payable and who cannot return to gainful employment because of the disability may be entitled to a $20 weekly payment from the employer in addition to other benefits. The requirements listed in Iowa Code section 85.70 are, therefore, that a claimant must have permanent partial disability for which compensation is payable and the claimant cannot return to gainful employment because of the disability. While it is clear claimant has sustained a permanent partial disability as a result of the injury of January 7, 1986, the record does not establish that claimant could not return to gainful employment because of the disability. Therefore, no benefits under Iowa Code section 85.70 shall be awarded. FINDINGS OF FACT Wherefore, based on all of the evidence presented, the following findings of fact are made: 1. Claimant sustained an injury which arose out of and in the course of his employment on January 7, 1986 when he felt pain in his low back while lifting a package. 2. X-rays showed narrowing of the L5-Sl level with some sclerosis of the L5-Sl facet joint and Hugh P. MacMenamin, M.D., claimant's primary physician, opined claimant had degenerative disc disease, probably old, and myofascial strain. 3. Claimant followed a course of conservative therapy and was released to return to work with restrictions on or about May 27, 1986. 4. Claimant was prohibited from returning to work as a result of the restrictions. 5. Dr. MacMenamin opined claimant has a herniated disc and that surgery is not now necessary. 6. Claimant was in generally good health prior to this work injury although he did have some previous back problems. 7. Claimant has a permanent partial impairment as a result of the work injury as well as permanent work restrictions. 8. Claimant is employable and can return to gainful employment notwithstanding the disability. 9. Claimant, age 42, has a ninth grade education, an I.Q. in the range of dull-normal, and has difficulty reading, writing and comprehending. 10. Claimant's capacity to earn has been hampered as a result of the work injury. 11. Claimant has sustained a permanent partial disability of 55 percent for industrial purposes as a result of the injury of January 7, 1986. CONCLUSIONS OF LAW Therefore, based on the principles of law previously stated, the following conclusions of law are made: 1. Claimant failed to establish a prima facie case he is an odd-lot employee. 2. Claimant has established that as a result of the work injury of January 7, 1986, he sustained a permanent partial disability of 55 percent for industrial purposes entitling him to 275 weeks of permanent partial disability benefits. 3. Claimant has not established entitlement to Iowa Code section 85.70 benefits. ORDER THEREFORE, IT IS ORDERED: Defendants shall pay unto claimant two hundred seventy-five (275) weeks of permanent partial disability at a rate of two hundred eighty-six and 66/100 dollars ($286.66) per week commencing September 11, 1986. Defendants shall receive full credit for all permanent partial disability benefits previously paid. Payments that have accrued shall be paid in a lump sum together with statutory interest thereon pursuant to Iowa Code section 85.30. A claim activity report shall be filed upon payment of this award. Costs of this action are assessed against defendants pursuant to Division of Industrial Services Rule 343-4.33. Signed and filed this 29th day of November, 1988. DEBORAH A. DUBIK DEPUTY INDUSTRIAL COMMISSIONER Copies to: Mr. Thomas M. Wertz Attorney at Law 4089 21st Ave SW Suite 114 Cedar Rapids, IA 52404 Mr. Ralph W. Gearhart Attorney at Law 500 MNB Bldg P.O. Box 2107 Cedar Rapids, IA 52406 1803; 4100 Filed November 29, 1988 Deborah A. Dubik BEFORE THE IOWA INDUSTRIAL COMMISSIONER RICHARD C. BURNS, Claimant, File No. 813367 vs . PUROLATOR COURIER CORP., 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. 1803 Claimant, age 42, with a ninth grade education, a "dull-normal" I.Q. who has difficulty reading, writing and comprehending, injured his back at work. Claimant was released to return to work with restrictions and defendant would not allow claimant to return. Claimant awarded 55% industrial disability. 4100 Claimant, whose only attempts to secure work since his injury consisted of a few phone calls, failed to establish he was an odd-lot employee. BEFORE THE IOWA INDUSTRIAL COMMISSIONER DENNIS FITZPATRICK, Claimant, vs. File No . 813660 HUPP ELECTRIC MOTORS, INC., A P P E A L Employer, D E C I S I O N and TRAVELERS INSURANCE CO., Insurance Carrier, Defendants. STATEMENT OF THE CASE Defendants appeal from a death benefits decision awarding death benefits and burial expenses. The record on appeal consists of the transcript of the death benefits proceeding; joint exhibit 1; and defendants' exhibits A through G. Both parties filed briefs on appeal. ISSUES Defendants state the following issues on appeal: Did the injury and death of claimant's spouse, Terra Fitzpatrick occur in the course of her employment? Did the injury and death of Terra Fitzpatrick arise out of her employment? REVIEW OF THE EVIDENCE The death benefits decision adequately and accurately reflects the pertinent evidence and it will not be set forth herein. APPLICABLE LAW The citations of law in the death benefits decision are appropriate to the issues and the evidence. FITZPATRICK V. HUPP ELECTRIC MOTORS, INC Page 2 ANALYSIS The analysis of the evidence in conjunction with the law is adopted. FINDINGS OF FACT 1. Dennis Fitzpatrick is the surviving spouse of Terra Fitzpatrick (decedent). 2. Terra Fitzpatrick was an employee of Hupp Electric Motors, Inc., on January 10, 1986. 3. Terra Fitzpatrick was an outside salesperson for Hupp Electric Motors, Inc. 4. Terra Fitzpatrick was required to travel throughout eastern Iowa and within the city of Cedar Rapids in furthering her employer's business. 5. The employer provided Terra Fitzpatrick with a vehicle to use in her employment. 6. Terra Fitzpatrick drove the employer-provided vehicle to and from her employment and used the vehicle to further her employer's business throughout her employment day, as well as using the vehicle for some personal trips. 7. Terra Fitzpatrick did not have personal transportation other than the employer-provided vehicle available to her throughout her employment day and arrangement for other transportation would likely have been impractical. 8. It was reasonably contemplatable under all the circumstances that Terra Fitzpatrick would use the employer-provided vehicle to travel to lunch or to travel on personal errands during permitted breaks in her employment day. 9. Terra Fitzpatrick was injured in a car accident on January 10, 1986 while traveling from the employer's place of business to her home for lunch and to care for her dog. A causal connection exists between Terra Fitzpatrick's need to use employer-provided transportation to further her employer's business throughout her work day and her injury. 10. Terra Fitzpatrick's injury of January 10, 1986 resulted in her death on January 12, 1986. 11. Terra Fitzpatrick had been employed by Hupp Electric Motors, Inc. less than thirteen calendar weeks immediately preceding her injury. 12. Decedent would have earned $5,000.06 had she worked the full thirteen weeks. FITZPATRICK V. HUPP ELECTRIC MOTORS, INC. Page 3 CONCLUSIONS OF LAW Claimant has established that his decedent's January 10, 1986 injury arose out of and was in the course of decedent's employment and resulted in her death on January 12, 1986. Claimant has established he is entitled to benefits on account of his decedent's death as provided in section 85.31(1)(a) and to burial expenses not to exceed one thousand dollars as provided in section 85.28. Claimant has established that decedent's weekly rate of compensation is $240.40. WHEREFORE, the decision of the deputy is affirmed. ORDER THEREFORE, it is ordered: That defendants pay claimant benefits as provided in section 85.31(1)(a) at the rate of two hundred forty and 40/100 dollars ($240.40) per week. That defendants pay claimant burial expenses not to exceed one thousand dollars ($1,000) as provided in section 85.28. That defendants pay accrued amounts in a lump sum. That defendants pay interest pursuant to section 85.30. That defendants pay costs including the transcription of the hearing proceeding pursuant to Division of Industrial Services Rule 343-4.33. That defendants file claim activity reports as required by this agency. Signed and filed this 21st day of September, 1988. DAVID E. LINQUIST INDUSTRIAL COMMISSIONER BEFORE THE IOWA INDUSTRIAL COMMISSIONER DENNIS FITZPATRICK, Claimant, vs. File No. 813668 HUPP ELECTRIC MOTORS, INC., A P P E A L Employer, D E C I S I 0 N and TRAVELERS INSURANCE CO., Insurance Carrier, Defendants. STATEMENT OF THE CASE Defendants appeal from a death benefits decision awarding death benefits and burial expenses. The record on appeal consists of the transcript of the death benefits proceeding; joint exhibit 1; and defendants' exhibits A through G. Both parties filed briefs on appeal. ISSUES Defendants state the following issues on appeal: Did the injury and death of claimant's spouse, Terra Fitzpatrick occur in the course of her employment? Did the injury and death of Terra Fitzpatrick arise out of her employment? REVIEW OF THE EVIDENCE The death benefits decision adequately and accurately reflects the pertinent evidence and it will not be set forth herein. APPLICABLE LAW The citations of law in the death benefits decision are appropriate to the issues and the evidence. ANALYSIS The analysis of the evidence in conjunction with the law is adopted. FINDINGS OF FACT 1. Dennis Fitzpatrick is the surviving spouse of Terra FITZPATRICK V. HUPP ELECTRIC MOTORS, INC. PAGE 2 Fitzpatrick (decedent). 2. Terra Fitzpatrick was an employee of Hupp Electric Motors, Inc., on January 10, 1986. 3. Terra Fitzpatrick was an outside salesperson for Hupp Electric Motors, Inc. 4. Terra Fitzpatrick was required to travel throughout eastern Iowa and within the city of Cedar Rapids in furthering her employerOs business. 5. The employer provided Terra Fitzpatrick with a vehicle to use in her employment. 6. Terra Fitzpatrick drove the employer-provided vehicle to and from her employment and used the vehicle to further her employer's business throughout her employment day, as well as using the vehicle for some personal trips. 7. Terra Fitzpatrick did not have personal transportation other than the employer-provided vehicle available to her throughout her employment day and arrangement for other transportation would likely have been impractical. 8. It was reasonably contemplatable under all the circumstances that Terra Fitzpatrick would use the employer-provided vehicle to travel to lunch or to travel on personal errands during permitted breaks in her employment day. 9. Terra Fitzpatrick was injured in a car accident on January 10, 1986 while traveling from the employer's place of business to her home for lunch and to care for her dog. A causal connection exists between Terra Fitzpatrick's need to use employer-provided transportation to further her employer's business throughout her work day and her injury. 10. Terra Fitzpatrick's injury of January 10, 1986 resulted in her death on January 12, 1986. 11. Terra Fitzpatrick had been employed by Hupp Electric Motors, Inc. less than thirteen calendar weeks immediately preceding her injury. 12. Decedent would have carried $5,000.06 had she worked the full thirteen weeks. CONCLUSIONS OF LAW Claimant has established that his decedent's January 10, 1986 injury arose out of and was in the course of decedent's employment and resulted in her death on January 12, 1986. Claimant has established he is entitled to benefits on account of his decedent's death as provided in section 85.31(l)(a) and to burial expenses not to exceed one thousand dollars as provided in section 85.28. Claimant has established that decedent's weekly rate of compensation is $240.40. FITZPATRICK V. HUPP ELECTRIC MOTORS, INC. PAGE 3 WHEREFORE, the decision of the deputy is affirmed. ORDER THEREFORE, it is ordered: That defendants pay claimant benefits as provided in section 85.31(l)(a) at the rate of two hundred forty and 40/100 dollars ($240.40) per week. That defendants pay claimant burial expenses not to exceed one thousand dollars ($1,000) as provided in section 85.28. That defendants pay accrued amounts in a lump sum. That defendants pay interest pursuant to section 85.30. That defendants pay costs including the transcription of the hearing proceeding pursuant to Division of Industrial Services Rule 343-4.33. That defendants file claim activity reports as required by this agency. Signed and filed this 21st day of September, 1988. DAVID E. LINQUIST INDUSTRIAL COMMISSIONER Copies To: Mr. James R. Snyder Mr. Gregory M. Lederer Attorneys at Law 1200 MNB Building Cedar Rapids, Iowa 52401 Mr. Scott E. McLeod Attorney at Law 526 Second Ave. SE P.O. Box 2457 Cedar Rapids, Iowa 52406 1104 Filed September 21, 1988 David E. Linquist BEFORE THE IOWA INDUSTRIAL COMMISSIONER DENNIS FITZPATRICK, Claimant, vs. File No. 813668 HUPP ELECTRIC MOTORS, INC., A P P E A L Employer, D E C I S I 0 N and TRAVELERS INSURANCE CO., Insurance Carrier, Defendants. 1104 Affirmed deputy's determination that claimant's decedent's death arose out of and in the course of her employment. Decedent was on way home from office for lunch and to take care of her dog at the time she was killed. However, decedent was in an employer-provided car at the time. Exception to Going and Coming Rule for lunch trips in employer-provided transportation recognized and adopted. BEFORE THE IOWA INDUSTRIAL COMMISSIONER DENNIS FITZPATRICK, surviving spouse of TERRA FITZPATRICK, File No. 813668 Claimant, VS. D E C I S I 0 N HUPP ELECTRIC MOTORS, INC., 0 N Employer, D E A T H and B E N E F I T S TRAVELERS INSURANCE COMPANY, Insurance Carrier, Defendants. INTRODUCTION This is a proceeding for death benefits brought by Dennis Fitzpatrick, surviving spouse of Terra Fitzpatrick, claimant, against her employer, Hupp Electric Motors, Inc., and its insurance carrier, Travelers Insurance Company, to recover benefits under the Iowa Workers' Compensation Act as a result of an alleged injury of January 10, 1986 with death ensuing on January 12, 1986. This matter came on for hearing before the undersigned deputy industrial commissioner at the courthouse in Cedar Rapids, Iowa, on February 3, 1987. But for the briefs of the parties, the record was considered fully submitted at close of hearing. A first report of injury was filed January 15, 1986. The record in this case consists of the testimony of Dennis Fitzpatrick, Robert Hupp, Herbert Andersen, Jill Marlowe, Casey Hupp, Linda Kuz, Randy Hampton, Gary Edwards, Charles Engler, Jetta Lea Klendworth, Sharon Stokes Dudley, as well as of joint exhibit 1 and defendants' exhibits A through G. Joint exhibit 1 is decedent's 1985-1986 monthly reminder calendar. Defendants' exhibit A is payroll records for decedent. Defendants' exhibit B is decedent's handwritten agenda for the week of January 6, 1986. Defendants' exhibit C is the Iowa Department of Transportation accident report. Defendants' exhibit D is a McGrath Pontiac bill for January 3, 1986. DefendantsO exhibit E is a map of the City of Cedar Rapids, Iowa. Defendants' exhibit F is the deposition of John Dolan taken July 30, 1986. Defendants' exhibit G is the deposition of Herbert Andersen taken August 23, 1986. ISSUES The issues for resolution are: FITZPATRICK V. HUPP ELECTRIC MOTORS Page 2 1) Whether decedent received an injury which arose out of and in the course of her employment; 2) Whether decedent's surviving spouse is entitled to death benefits on account of his decedent's death; and 3) Decedent's rate of weekly compensation. REVIEW OF THE EVIDENCE Decedent, Terra Fitzpatrick, began work for Hupp Electric in October 1985 as an outside sales representative. As such, decedent called on shop foremen, plant owners and managers in major industrial plants in eastern Iowa in an attempt to sell them motors, generators or other major industrial parts. Decedent had taken over existing accounts in Clinton, Muscatine, Eddyville, and other points as well as three Cedar Rapids accounts, General Mills, ADM Corn Sweetners, and Quaker Oats, respectively. Decedent drove approximately 500 to 1000 miles per week as a sales representative. Client calls frequently involved a business lunch with the client as well. Hupp Electric supplied decedent with a Mazda automobile which Hupp leased from McGrath Pontiac. Decedent kept the car at her home and drove it to and from work. She had a Hupp Electric credit card and apparently used that for gas expenses related to business use of the car. Decedent paid for her own gas for personal use of the car, however. Personal use, with that restriction, was permitted. Hupp paid the insurance, license, and maintenance expenses for the car. On January 3, 1986, decedent had had her car serviced at McGrath Pontiac because it was out of alignment, pulling to the right. Decedent's daily sales call calendar for January 10, 1986 reports scheduled business calls on Terry Thompson, at General Mills, and Jerry Eckler at ADM at 8:00 a.m. and 9:00 a.m., respectively. Decedent apparently made those calls. A notation of "McGrath" at 10:30 a.m. is crossed out. The calendar also contains nontimed scheduled notations as to "Parks Dept" and "Water Dept." Decedent was involved in a fatal car accident on Interstate 380 and Wilson Avenue, in Cedar Rapids, Iowa, on January 10, 1986 at 1:18 p.m. Decedent died on January 12, 1986. The Hupp Electric building is located in Cedar Rapids at the junction of 33rd Avenue, SW, and Interstate 380. Decedent's home was on Pepperwood Drive, in northeast Cedar Rapids. First Avenue/Marion Boulevard was the main thoroughfare nearest the Pepperwood Drive address. Interstate 380 runs north and south through Cedar Rapids, Iowa. Decedent was traveling north when the accident occurred. Decedent and her husband were childless and owned a Irish Wheaton dog. Decedent was employed at an annual salary of $20,000 per year with bonuses possible. Those bonuses would have equaled ten percent of the increase in gross profits from decedentOs assigned FITZPATRICK V. HUPP ELECTRIC MOTORS Page 3 accounts in any given year. Decedent's first payroll check with Hupp Electric was issued on November 12, 1985 and equaled $384.62. She subsequently received by biweekly checks in the amount of $769.24 on November 24, 1985, December 8, 1985, December 23, 1985, and January 7, 1986, respectively. A final check in the amount of $769.24 was issued January 21, 1986. Dennis Fitzpatrick, surviving spouse of decedent, testified that the couple was married on May 4, 1975. Fitzpatrick testified that decedent had attempted to take a client to lunch every work day and that she had an active account list from which she made followup and luncheon calls. He reported that she also made cold calls to solicit business for Hupp Electric. He stated that decedent had a home office which she used daily for filling out sales call records, planning her schedule, and taping sales presentations. Mr. Fitzpatrick was employed as a salesman for the Cedar Rapids Gazette in January 1986. He was making sales calls from the Davenport area during the week of January 6, 1986. Fitzpatrick testified that he spoke to decedent on January 8, 1986 from Davenport and that she stated that she was returning her Mazda to McGrath for further alignment on January 10, 1986. Fitzpatrick testified that, during the week following the accident, he picked up decedent's personal items from the vehicle salvage area to which her car had been towed following the January 10, 1986 accident. He reported that the items included a briefcase containing a note pad and folder, business cards, flyers, sales materials, and work manuals. Fitzpatrick opined that decedent would not go home to care for the family dog during the day because the dog did not need care during the day. He stated, however, that claimant was Ogoing home for something." He also opined that decedent likely would not take Interstate 380 to and from work because that would have been the longer route. He agreed, however, that travel on Interstate 380 would be consistent with the family home's location. Fitzpatrick testified that decedent usually worked within Cedar Rapids on Friday's and that when decedent was working outside of Cedar Rapids, she checked in at Hupp Electric before leaving Cedar Rapids and on her return to Cedar Rapids. Robert Hupp, president of Hupp Electric, testified that company policy is that salespersons should eat lunch with customers when they are out of town in that salespersons have little actual time available with out-of-town customers since a great deal of their time is spent driving, therefore, it is useful that they lunch with clients. He reported that salespersons are encouraged to lunch with clients when in Cedar Rapids, but doing so is not as crucial. Hupp also reported that luncheon appointments in Cedar Rapids are never scheduled past 1:00 p.m. because the Cedar Rapids sales accounts are generally on fixed plant schedules with lunches at 11:00 or 11:30 a.m. Hupp stated that decedent was not assigned to either the water department or the parks department accounts in that inside salespersons were assigned to those accounts. He agreed that exhibit B, decedent's handwritten agenda to her sales manager, Chuck Engler, contains a written request of decedent for permission to call on the parks department. Hupp stated that on January 10, 1986, he lunched with John Dolan, Casey Hupp, and Chuck Engler. He reported that he dropped those individuals off FITZPATRICK V. HUPP ELECTRIC MOTORS Page 4 at Hupp Electric at approximately 1:10 p.m. and left for a downtown 1:30 p.m. meeting. Linda Kuz worked for Hupp Electric from May 1982 through May 1986. She apparently had left to marry and moved to California in November 1985. Decedent had then taken her outside sales position with the company. Kuz reported that following decedent's death, Robert Hupp asked her to return and work decedent's position during the transition period. Kuz reported that she returned to Hupp Electric on Monday, January 13, 1986, at approximately 2:30 p.m. and then observed decedent's desk. She stated that materials were scattered about the desk. They included a brown leather folder for business cards, a black briefcase with an enclosed microswitch briefcase. She reported that the microswitch briefcase contained quotes, notes, and a mailing list. She stated that a black leather folder with pictures, specifications, sheets, handouts, and letters regarding Hupp was also on the desk. Kuz testified that it would be mandatory for a salesperson, particularly a new salesperson, to have the materials and the black leather folder in their car making sales calls. She opined that a salesperson could not function effectively without the folder and stated that she did not believe decedent would have made calls without the folder. Kuz investigated decedent's activities on January 10, 1986. She confirmed that decedent had seen Thompson and Eckler but stated she had no knowledge whether decedent had called on the water or parks department on January 10, 1986. Kevin Hupp is assigned the water department. Kuz stated she never took Cedar Rapids clients to lunch after 1:00 p.m. in that those clients were "very emphatic" that they needed to be back by 1:00 p.m. She reported that when she was working as an outside salesperson and traveling outside of Cedar Rapids, she generally took clients to lunch three times per week; if she was in Cedar Rapids, she would "definitely take" clients to lunch. Kuz reported that she worked in Cedar Rapids approximately two days per month. Casey Hupp, wife of Robert Hupp, has a printing business in Hupp Electric's building. She testified that she lunched with her husband, Mr. Engler and Mr. Dolan on January 10, 1986 and returned to the Hupp building sometime past 1:00 p.m. Mrs. Hupp testified that decedent was dressed in a red coat with sunglasses and was preparing to leave for lunch. Mrs. Hupp observed no materials in decedent's hands. Herbert Andersen, a salesperson with O'Brien Steel reported that he knew decedent and Dennis Fitzpatrick socially in that Dennis Fitzpatrick was his wife's cousin. He testified that he was at Hupp Electric on January 10, 1986 to make a sales call on Jill Marlowe, then a buyer in Hupp's purchasing department. Andersen testified that he asked Ms. Marlowe and decedent to lunch. Both declined. He testified that decedent said that she had to go home and feed her dog since her husband was out of town. Andersen testified that he was not entirely sure whether he or decedent brought up the subject of decedent's dog since he had joked with decedent on occasion and was aware of her affection for her dog. He "tended to believe" that decedent had first mentioned the dog, however. Jill Marlowe confirmed Andersen's testimony as to the conversation concerning lunch and FITZPATRICK V. HUPP ELECTRIC MOTORS Page 5 decedent's statement that she had to go home and to feed her dog. Marlowe stated that she did not believe that Andersen had brought up the subject of her dog and that she felt that while decedent was "trying to lighten the conversation," decedent was not joking regarding the dog. Charles Engler, executive vice president of Hupp Electric and decedent's sales manager, testified that he chatted briefly with decedent on his lunch return on January 10, 1986. Decedent stated she was going home for lunch to care for her dog. Engler stated that decedent did not tell him she intended to make calls on January 10, 1986 and did not discuss calling on the parks or water departments prior to January 10, 1986. Engler stated that decedent had approximately seventy-five regular customers. As of January 6, 1986, she had not yet called on approximately a third of those. He opined that decedent would not make cold calls prior to completing calls on regular customers. John Dolan, former director of purchasing of Hupp Electric, who died December 13, 1986, testified by way of his deposition taken August 23, 1986. He reported he had discussed a sales problem with decedent before lunch time on January 10, 1986. He stated that he also owned an Irish Wheaton dog and decedent had then told him that she was going home to feed her dog at lunch. Randy Hampton, who works in accounting at Hupp Electric and apparently handles receptionist-type duties for the company's outside salespersons, testified that he has assisted decedent with an accounting problem at approximately 12:30 p.m. on January 10, 1986. He testified that decedent later told him she was going home to feed her dog and would be back within an hour. Gary Edwards, an inside salesperson for Hupp Electric, stated that right before lunch on January 10, 1986, decedent was at the sales counter and there told him she was going home to let her dog out [over lunchtime]. Sharon Stokes Dudley was employed as a secretary for Hupp's outside salespersons from January 6, 1986 through September 30, 1986. She was decedent's secretary. Ms. Dudley stated that decedent gave Dudley a letter to type just before decedent left for lunch on January 10, 1986. Decedent said she would review the letter and sign it upon her lunch return. Jetta Lea Klendworth, manager of shipping and receiving at Hupp Electric, testified that during the morning of January 10, 1986, decedent told her she was going home at lunch to care for her dog since her husband was out of town. The balance of the evidence was reviewed and considered in the disposition of this matter. APPLICABLE LAW AND ANALYSIS Our first concern is the arising out of and in the course of issues. Claimant has the burden of proving by a preponderance of the evidence that claimant's decedent received an injury on January FITZPATRICK V. HUPP ELECTRIC MOTORS Page 6 10, 1986 which arose out of and in the course of her employment. McDowell v. Town of Clarksville, 241 N.W.2d 904 (Iowa 1976); Musselman v. Central Telephone Co., 261 Iowa 352, 154 N.W.2d 128 (1967). An employee is entitled to compensation for any and all personal injuries which arise out of and in the course of the employment. Section 85.3(l). The injury must both arise out of and be in the course of the employment. Crowe v. DeSoto Consol. Sch. Dist., 246 Iowa 402, 68 N.W.2d 63 (1955) and cases cited at pp. 405-406 of the Iowa Report. See also Sister Mary Benedict v. St. Mary's Corp., 255 Iowa 847, 124 N.W.2d 548 (1963) and Hansen v. State of Iowa, 249 Iowa 1147, 91 N.W.2d 555 (1958). Section 85.61(6) provides: The words "personal injury arising out of and in the course of the employment" shall include injuries to employees whose services are being performed on, in, or about the premises which are occupied, used, or controlled by the employer, and also injuries to those who are engaged elsewhere in places where their employer's business requires their presence and subjects them to dangers incident to the business. We consider the in the course of question. In Otto v. Independent School District, 237 Iowa 991, 994, 23 N.W.2d 915 FITZPATRICK V. HUPP ELECTRIC MOTORS Page 7 (1946), the court stated: A case involving an injury from a "street accident" suffered while en route to or from work therefore requires a determination whether the employee was engaged in his employer's business at the time and whether there was casual relation between the injury and such employment. If the first condition be found not to exist it becomes unnecessary to consider the second. In Halstead v. Johnson's Texaco, 264 N.W.2d 757, 759 (Iowa 1978), the court stated the following as regards employees having regular places and times of work who sustain injuries over their lunch period: When a worker has a place and hours of work, ordinarily he is not considered to be acting within his employment while he is on his way to his place of employment or is returning to his home or going elsewhere after work. This is the going and coming rule. Bulman v. Sanitary Farm Dairies, 247 Iowa 488, 73 N.W.2d 27. The same rule ordinarily applies when the employee has a place and hours of work, his hours of work do not include his meal period, and he leaves his place of employment to go to and return from his meal elsewhere. The author states the principle thus in 1 Larson, Workmen's Compensation, p. 4-26: [W]hen the employee has a definite place and time of work, and the time of work does not include the lunch hour, the trip away and back to the premises for the purpose of getting lunch is indistinguishable in principle from the trip at the beginning and end of the work day, and should be governed by the same rules and exceptions .... The author continues at p. 4-76: The going and coming rule has so far been treated as substantially identical whether the trip involves the lunch period or the beginning and end of the work day. This can be justified because normally the duration of the lunch period when lunch is taken off the premises is so substantial and the employee's freedom of movement so complete that the obligations and controls of employment can justifiably be said to be in suspension during the interval. The Halstead court was concerned with a case where claimant on the day of injury simply went to and attempted to return from his own home at the lunch hour. At other times, the claimant, a mechanic, had taken his lunch hour at a different time or for less time or not at all or had picked up parts for the employer. The court, however, considered only the time and the facts of the injury itself and found that claimant's injury in a car-motorcycle accident while returning from lunch did not arise out of and in the course of his employment. Halstead at 760. The Halstead court noted the employee must show additional facts to bring the employee within an exception to the rule that off FITZPATRICK V. HUPP ELECTRIC MOTORS Page 8 premise meals on the employee's time are not compensable. Halstead at 760. An additional consideration in this case is that claimant was riding in an employer furnished conveyance when fatally injured. Larson states as a general proposition: "When the journey to or from work is made in the employer's conveyancer the journey is in the course of employment, the reason being that the risks of the employment continue throughout the journey.O. A. Larson, Workmen's Compensation, SS 17:00. In Bulman v. Sanitary Farm Dairies, 247 Iowa 488, 494, 73 N.W.2d 27, (1935). the court stated the going and coming rule is not dependent on the extent of the hazards of travel. Rather, it is based on contract, expressed or implied. "If the employer assumes the burden of the workman's [sic] coming and going expense, that is held to imply that the time of coming and going is part of the time of employment." Bulman at 494. In Scharf v. Hewitt Masonry, 32 Biennial Rep.) Iowa Indus. CommOr 96 (a review dec. 1975), the commissioner stated the following regarding the employer-furnished transportation exception the going and coming rule: An exception to the above general rule is when the journey to and from work is made in the employer's conveyance. The journey is in the course of employment. The risk of employment continues through the journey because the vehicle is under the control of the employer and the employees ride in the vehicle at the direction of the employer. The transportation duties are incidental to but outside the regular duties. The Iowa Court by implication, supported this proposition in Pribyl v. Standard Electric Co., 246 Iowa 333, 67 N.W.2d 438, when it compensated a union employee who was injured while riding to work. The employment contract between employer and employee specifically required the employer to provide transportation for employees when they were assigned jobs outside the employer's county. By,a separate agreement employer agreed to pay 8 cents a mile to the employee when he drove his own vehicle. It should be noted that the employee was not compensated for time spent in travel, but only for a predetermined mileage between home and the work site. The court said: "It must be conceded that there must be something more than mere payment of such transportation cost.O Pribyl, supra, p. 342. The "something more" was the fact that the employer had contracted to furnish transportation. Professor Larson states that the rule that traveling to and from work in an employer-furnished conveyance is in the course of the employment is equally applicable to trips to and from lunch. 1 Larson, Workmen's Compensation Law, SS 15.52. In the instant case, the facts are little disputed. Decedent was traveling from her employment in the direction of her personal residence at 1:18 p.m. when injured. She had told a number of individuals she was going home over lunch to care for FITZPATRICK V. HUPP ELECTRIC MOTORS Page 9 her dog. She was traveling in an automobile her employer provided for her business and personal use. The record is devoid of any inference that decedent was required to pay any car expenses related to using the car to travel to or from the employer's business place in Cedar Rapids. Apparently, the only automobile expenses decedent was required to pay were gas costs for personal use of the car for out-of-town travel. While this is apparently a case of first impression in Iowa, we believe that Professor Larson's position that the employer conveyance exception extends to lunch trips is the better rule as that rule promotes consistency in interpretation and application of our workers' compensation law. It is also consistent with the longstanding principle that the workers' compensation statute is to be construed liberally with a view of extending aid to every employee who can fairly be brought within its purview. When the above cited law is applied to the above recited facts, the reasonable conclusion is that decedent, when injured while driving her employer-provided vehicle from the employment site to her lunch site, was in the course of her employment. We are left to consider whether decedent's injury arose out of her employment. To arise out of the employment, the injury must be a natural incident of the work. It must be a natural consequence of a hazard connected with employment. Cedar Rapids Community Schools v. Cady, 278 N.W.2d 298, 299 (Iowa 1979). A causal connection must exist between the conditions which the employer puts about the employee and the resulting of injury. Crowe v. DeSoto Counsel. Sch. Dist., 248 Iowa 402, 408 (1955). All the circumstances in the whole employment situation are to be considered in determining whether the injury arose out of the employment. Burt v. John Deere Waterloo Tractor Works, 247 (Iowa 691, 700, 701 (1955). Decedent was required to travel in the course of her employment. She was required to use an employer-provided car. She traveled to and from work in the car. She used the car throughout her work day for the employer's business. It could be contemplated that decedent, like most working persons, would have occasion to use a vehicle for lunch or other personal travel during breaks within her work day. It would have been most impractical, if not impossible, for decedent to have secured nonemployer-provided transportation for lunch or personal errands while otherwise traveling throughout her work day in an employer provided vehicle. The record is devoid of evidence suggesting decedent could have used a personal vehicle and not an employer-provided vehicle to fulfill her duties as a Hupp Electric sales representative. Travel in an employer-provided vehicle throughout the work day was a hazard connected with decedent's employment. It follows, therefore, that a natural consequence of that hazard was decedent's travel in the company-provided vehicle on personal errands, such as going to her own home to care for her dog over her lunch hour. Hence, the requisite causal connection exists between the condition decedent's employer put on her, namely, that she traveled in an employer-provided vehicle, and her injury of January 10, 1986, such that decedent's injury can be said to have arisen out of her employment. As death resulted from decedent's injury, decedent's FITZPATRICK V. HUPP ELECTRIC MOTORS Page 10 surviving spouse is entitled to benefits pursuant to section 85.31(l)(a) as well as payment of burial expenses not to exceed $1,000 pursuant to section 85.28. We consider the rate issue. Decedent had been employed by Hupp Electric less than thirteen calendar weeks prior to her injury. Her rate is computed under section 85.36(7), therefore. Had decedent been in the employer's employ the full thirteen weeks she would have earned $5,000.06, or a gross weekly wage of $384-62. Decedent's rate then is $240.40. Claimant apparently argues that decedent's rate should be computed on an annual salary of $20,000 with several thousand additional dollars included because decedent could have received a sales bonus each year. We reject claimant's argument initially because section 85.36 requires us generally to look to the pay period basis and not annual earnings in determining the basis of computation. Further, decedent's employer testified any bonus amount decedent might otherwise have earned could have been eliminated had she lost only one sales account. Bonus amounts under these circumstances are too speculative to form a basis of computation of decedent's weekly rate in this case. FINDINGS OF FACT WHEREFORE, IT IS FOUND: Dennis Fitzpatrick is the surviving spouse of Terra Fitzpatrick. (decedent). Terra Fitzpatrick was an employee of Hupp Electric Motors, Inc., on January 10, 1986. Terra Fitzpatrick was an outside salesperson for Hupp Electric. Terra Fitzpatrick was required to travel throughout eastern Iowa and within the city of Cedar Rapids in furthering her employer's business. The employer provided Terra Fitzpatrick with a vehicle to use in her employment. Terra Fitzpatrick drove the employer-provided vehicle to and from her employment and used the vehicle to further her employer's business throughout her employment day. Terra Fitzpatrick did not have personal transportation other than the employer-provided vehicle available to her throughout her employment day and arrangement for other transportation would likely have been impractical. It was reasonably contemplatible under all the circumstances that Terra Fitzpatrick would use the employer-provided vehicle to travel to lunch or to travel on personal errands during permitted breaks in her employment day. Terra Fitzpatrick was injured in a car accident on January FITZPATRICK V. HUPP ELECTRIC MOTORS Page 11 10, 1986 while traveling from the employer's place of business to her home to care for her dog. A causal connection exists between Terra Fitzpatrick's need to use employer-provided transportation to further her employer's business throughout her work day and her injury. Terra Fitzpatrick's injury of January 10, 1986 resulted in her death on January 12, 1986. Terra Fitzpatrick had been employed by Hupp Electric less than thirteen calendar weeks immediately preceding her injury. Decedent would have earned $5000.06 had she worked the full thirteen weeks. CONCLUSIONS OF LAW THEREFORE, IT IS CONCLUDED: Claimant has established that his decedent's January 10, 1986 injury arose out of and in the course of decedent's employment and resulted in her death on January 12, 1986. Claimant has established he is entitled to benefits on account of his decedent's death as provided in section 85.31(l)(a) and to burial expenses not to exceed one thousand FITZPATRICK V. HUPP ELECTRIC MOTORS Page 12 dollars as provided in section 85.28. Claimant has established that decedent's weekly-rate of compensation is two hundred forty and 40/100 dollars ($240-40). ORDER THEREFORE, IT IS ORDERED: Defendants pay claimant benefits as provided in section 85.31(l)(a) at the rate of two hundred forty and 40/100 dollars ($240.40). Defendants pay claimant burial expenses not to exceed one thousand dollars ($1,000) as provided in section 85.28. Defendants pay accrued amounts in a lump sum. Defendants pay interest pursuant to section 85.30 Defendants pay costs pursuant to Division of Industrial Services Rule 343-4.33, formerly Industrial Commissioner Rule 500-4.33. Defendants file claim activity reports as required by the agency. Signed and filed this 5th day of March, 1987. HELEN JEAN WALLESER DEPUTY INDUSTRIAL COMMISSIONER Copies to: Mr. James R. Snyder Mr. Gregory M. Lederer Attorneys at Law 1200 MNB Bldg. Cedar Rapids, Iowa 52401 Mr. Scott McLeod Attorney at Law 526 2nd Avenue SE Cedar Rapids, Iowa 52401 1104; 1106; 1110 1805; 3001; 3002 Filed 3-5-87 Helen Jean Walleser BEFORE THE IOWA INDUSTRIAL SERVICES DENNIS FITZPATRICK, surviving spouse of TERRA FITZPATRICK, File No. 813668 Claimant, D E C I S I O N VS. O N HUPP ELECTRIC MOTORS, INC., D E A T H Employer, B E N E F I T S and TRAVELERS INSURANCE COMPANY, Insurance Carrier, Defendants. 1104; 1106; 1110; 1805; 3001; 3002 Claimant's decedent, a sales representative, was driving employer-provided car to her own home over lunch period. Larson's reasoning that going and coming rule exception where employee is using employer-provided conveyance also applies to use of such conveyance for off-premises lunches adopted. An injury in the course of employment found. Held that a natural consequence of use of employer-provided vehicle during work day was probable use of that vehicle for personal purposes during authorized breaks in business day. Therefore, causal connection existed between decedent's employment duties and her fatal car accident and injury arose out of employment. Sales bonus decedent might have earned held to be too speculative to be basis of rate computation where bonus could have been wiped out by one lost sales account. Basis of computation of decedent's biweekly wage under section 85.36(7).