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 
 

 
            
 
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            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.
 
            
 

 
            
 
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                      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).