BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         RONALD G. MOORE,
 
         
 
              Claimant,                                File No. 818213
 
         
 
         vs.                                             A P P E A L
 
         
 
         PEPSI COLA BOTTLING CO.,                      D E C I S I O N
 
         
 
              Employer,
 
                                                          F I L E D
 
         and
 
                                                         JUL 28 1989
 
         FIREMAN'S FUND INSURANCE CO.,
 
                                                     INDUSTRIAL SERVICES
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
                             STATEMENT OF THE CASE
 
         
 
              Claimant appeals from a ruling sustaining defendants' motion 
 
         for summary judgment and dismissing claimant's claim on the 
 
         merits with prejudice.
 
         
 
              The record on appeal includes defendants' motion for summary 
 
         judgment and claimant's resistance to motion for summary 
 
         judgment. Neither party filed a brief on appeal.
 
         
 
                                      ISSUE
 
         
 
              Claimant states no specific issue on appeal so this matter 
 
         will be considered generally without any specified error.
 
         
 
                          REVIEW OF THE EVIDENCE
 
         
 
              Claimant Ronald Moore received an injury arising out of and 
 
         in the course of his employment on May 6, 1983, while working in 
 
         the state of Iowa.  Claimant was paid benefits under the Nebraska 
 
         Workers' Compensation Act.
 
         
 
              There was no first report of injury or denial of liability 
 
         filed within the state of Iowa with regard to claimant's injury.
 
         
 
              The petition in this case was filed on May 6, 1986.
 
         
 
                                  APPLICABLE LAW
 
         
 
              Iowa Code section 85.26 (1989) provides in relevant part:
 
         
 
                   1.  An original proceeding for benefits under this 
 
              chapter or chapter 85A, 85B, or 86, shall not be maintained 
 
              in any contested case unless the proceeding is commenced 
 
                                                
 
                                                         
 
                   within two years from the date of the occurrence of the 
 
              injury for which benefits are claimed or, if weekly 
 
              compensation benefits are paid under section 86.13, within 
 
              three years from the date of the last payment of weekly 
 
              compensation benefits.
 
         
 
                   2.  An award for payments or an agreement for 
 
              settlement provided by section 86.13 for benefits under this 
 
              chapter or chapter 85A or 85B, where the amount has not been 
 
              commuted, may be reviewed upon commencement of reopening 
 
              proceedings by the employer or the employee within three 
 
              years from the date of the last payment of weekly benefits 
 
              made under the award or agreement.  If an award for payments 
 
              or agreement for settlement as provided by section 86.13 for 
 
              benefits under this chapter or chapter 85A or 85B has been 
 
              made and the amount has not been commuted, or if a denial of 
 
              liability is not filed with the industrial commissioner and 
 
              notice of the denial is not mailed to the employee, on forms 
 
              prescribed by the commissioner, within six months of the 
 
              commencement of weekly compensation benefits, the 
 
              commissioner may at any time upon proper application make a 
 
              determination and appropriate order concerning the 
 
              entitlement of an employee to benefits provided for in 
 
              section 85.27.  The failure to file a denial of liability 
 
              does not.constitute an admission of liability under this 
 
              chapter or chapter 85A, 85B, or 86.
 
         
 
              Iowa Code section 86.13 (1989) provides in relevant part: 
 
         "If an employer or insurance carrier fails to file the notice 
 
         required by this section, the failure stops the running of the 
 
         time periods in section 85.26 as of the date of the first 
 
         payment."
 
         
 
                                  ANALYSIS
 
         
 
              The issue is whether claimant's claim is barred by the 
 
         statute of limitations found in section 85.26, supra.  Defendants 
 
         argue that this action is barred by subsection 85.26(1).  They 
 
         also argue that stopping the running of the statute of 
 
         limitations as provided in section 86.13 contemplates payments of 
 
         Iowa workers' compensation.  Claimant argues in response that 
 
         defendants' failure to file a memorandum of agreement has the 
 
         effect of stopping the running of the statute of limitations. 
 
         However, memorandums of agreement were abolished July 1, 1982.  
 
         As claimant's injury occurred after that date, no memorandum of 
 
         agreement could have been filed.
 
         
 
              Claimant's injury was May 6, 1983, and the original petition 
 
         in this proceeding was filed on May 6, 1986.  Subsection 85.26(1) 
 
         clearly bars the filing of an original proceeding because it was 
 
         not brought within two years of the date of the injury.
 
         
 
              Defendants' argument is persuasive that the statute of 
 
         limitations found in subsection 85.26(2) contemplates an award 
 
         for Iowa workers' compensation benefits.  The benefits allegedly 
 
                                                
 
                                                         
 
         paid in Nebraska were not an award for Iowa benefits.  Such 
 
         payments were obviously not made pursuant to or in contemplation 
 
         of the Iowa statutes.  The payments were not payments 
 
         contemplated under subsection 85.26(2).  The provisions of 
 
         subsection 85.26(2) are not controlling and therefore the 
 
         provisions of section 86.13 cited above are not applicable..
 
         
 
              If claimant's argument were accepted it would result in an 
 
         unlimited period of time to commence an action in Iowa when a 
 
         claimant has been paid compensation in another state pursuant to 
 
         a decision or settlement.  That situation would be an absurd 
 
         result and contrary to orderly resolution of workers' 
 
         compensation claims.
 
         
 
              Claimant's action is barred by subsection 85.26(1) which is 
 
         applicable.  This conclusion is the same as the conclusion 
 
         reached in Sawyer v. National Transportation Co.,(Appeal Decision 
 
         March 11,.1988).
 
         
 
                              FINDINGS OF FACT
 
         
 
              1.  Claimant Ronald Moore received an injury arising out of 
 
         and in the course of his employment on May 6, 1983, while working 
 
         in the state of Iowa.
 
         
 
              2.  Claimant was paid benefits under the Nebraska Workers' 
 
         Compensation Act.
 
         
 
              3.  There was no first report of injury or denial of 
 
         liability filed within the state of Iowa with regard to the 
 
         injury of May 6, 1983.
 
         
 
              4.  The petition in this case was filed on May 6, 1986.
 
         
 
         CONCLUSIONS OF LAW
 
         
 
              This case is an original proceeding governed by Iowa Code 
 
         section 85.26(1).
 
         
 
              Claimant's claim is barred because the original petition was 
 
         filed more than two years after the date of injury.
 
         
 
              WHEREFORE, the decision of the deputy is affirmed.
 
         
 
                                      ORDER
 
         
 
              THEREFORE, it is ordered:
 
         
 
              That defendants' motion for summary judgment is sustained 
 
         and claimant's claim is dismissed on the merits with prejudice.  
 
         All costs of this proceeding are assessed against the claimant.
 
         
 
              Signed and filed this 28th day of July, 1989.
 
         
 
         
 
                                                
 
                                                         
 
         
 
         
 
         
 
         
 
                                                    DAVID E. LINQUIST
 
                                                 INDUSTRIAL COMMISSIONER
 
         
 
         Copies To:
 
         
 
         Mr. Thomas L. Root
 
         Attorney at Law
 
         P.O. Box 1502
 
         Council Bluffs, Iowa  51502
 
         
 
         Mr. James E. Thorn
 
         Attorney at Law
 
         P.O. Box 249
 
         Council Bluffs, Iowa  51502
 
         
 
         
 
         
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
                                                
 
 
            
 
 
 
 
 
 
 
                                            2402
 
                                            Filed July 28, 1989
 
                                            DAVID E. LINQUIST
 
         
 
                   BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         RONALD G. MOORE,
 
         
 
              Claimant,
 
                                                     File No. 818213
 
         vs.
 
         
 
         PEPSI COLA BOTTLING CO.,                       A P P E A L
 
         
 
              Employer,
 
                                                     D E C I S I 0 N
 
         and
 
         
 
         FIREMAN'S FUND INSURANCE CO.,
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
         2402
 
         
 
              Claimant injured in Iowa collected benefits under Nebraska 
 
         Workers' Compensation Act.  No first report of injury in Iowa was 
 
         filed.  Claimant later filed an Iowa claim for benefits exactly 3 
 
         years after the date of injury.  Held that 86.13 does not stop 
 
         the running of the statute of limitations unless Iowa benefits 
 
         are paid and the employer fails to file notice.  Also held that 
 
         85.26(2) contemplates a review-reopening within 3 years of an 
 
         Iowa award of benefits, not an award under another jurisdiction. 
 
         Claimant's Iowa action was untimely, and the deputy's granting of 
 
         defendants' motion for summary judgment upheld.
 
         
 
         
 
         
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
                                                
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                            
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         MARY E. GRANT,
 
         
 
              Claimant,                               File No. 818215
 
         
 
          VS.                                       A R B I T R A T I O N
 
         
 
          QUAKER OATS COMPANY,                         D E C I S I O N
 
          
 
              Employer,
 
              Self-Insured,
 
              Defendant.
 
         
 
         
 
                              STATEMENT OF THE CASE
 
         
 
              This is a proceeding in arbitration brought by Mary E. 
 
         Grant, claimant, against Quaker Oats Company, a self-insured 
 
         employer (hereinafter referred to as Quaker), for benefits as a 
 
         result of an alleged injury on September 16, 1984 and an 
 
         accumulative trauma of unspecified date. on April 7, 1987, a 
 
         hearing was held on claimant's petition and the matter was 
 
         considered fully submitted at the close of this hearing.
 
         
 
              The parties have submitted a prehearing report of contested 
 
         issues and stipulations which was approved and accepted as part 
 
         of the record of this case at the time of hearing.  Oral 
 
         testimony was received during the hearing from claimant and the 
 
         following witnesses: Kevin Crist and Greg Smith.  The exhibits 
 
         received into the evidence at hearing are listed in the 
 
         prehearing report.  All of the evidence received at the hearing 
 
         was considered in arriving at this decision.  The prehearing 
 
         report contains the following stipulations:
 
         
 
              1.  That there was an employer/employee relationship between 
 
         claimant and Quaker at the time of the alleged injury.
 
         
 
              2.  Claimant seeks temporary total disability or healing 
 
         period benefits for the following periods of time: 9-17-84; 
 
         10-8-84; 10-30-84 through 6-9-85; 1-6-86 through 11-3-86; 6 hours 
 
         on 11-4-86; and, 11-5-86 to the present time.  Defendant agreed 
 
         that claimant was off work for these periods of time except for 
 
         September 17, 1984 and October 8, 1984.  The parties agreed that 
 
         claimant was on economical off status from February 4, 1985 
 
         through June 9, 1985.
 
         
 
              3.  Claimant's rate of compensation in the event of an 
 
         award of weekly benefits from this proceeding shall be 
 
         $250.50.
 
              
 
              4.  The medical expenses for which claimant seeks 
 

 
         
 
         
 
         
 
         GRANT V. QUAKER OATS COMPANY
 
         Page   2
 
         
 
         
 
         reimbursement in this proceeding are fair and reasonable, 
 
         except for the treatment by and under the direction of John R. 
 
         Walker, M.D., but the issue of the causal connection of these 
 
         expenses to any work injury was an issue to be decided herein.
 
         
 
              The prehearing report submits the following issues for 
 
         determination in this decision:
 
         
 
              I.  Whether claimant received an injury arising out of and 
 
         in the course of employment;
 
         
 
              II.  Whether there is a causal relationship between the 
 
         work injury and the claimed disability;
 
         
 
              III.  The extent of claimant's entitlement to weekly 
 
         benefits for temporary total disability or healing period;
 
         
 
              IV.  The extent of claimant's entitlement to medical 
 
         benefits under Iowa Code section 85.27.
 
         
 
              Both parties have asked in their post-hearing briefs that 
 
         this agency take "judicial" notice of various matters.  First, 
 
         "official notice" rather than judicial notice is permitted by 
 
         Iowa Code section 17A.14(4).  Aside from the rather dubious 
 
         matters which were asked to be noticed, according to an agency 
 
         rule, no evidence can be taken after the hearing.  See 
 
         Industrial Services Rule 343-4.31. Therefore, neither request 
 
         for official notice was granted.
 
         
 
                             FINDINGS OF FACT
 
         
 
              1.  Claimant has been employed by Quaker since June, 1979 
 
         and last worked for Quaker on November 4, 1986 for a period of 
 
         two hours.
 
         
 
              The jobs claimant held at Quaker consisted of general labor 
 
         work in Quaker's cereal plant in Cedar Rapids, Iowa.  These jobs 
 
         consisted mostly of duties involving the cleaning, monitoring and 
 
         maintenance of machines and the handling of cereal products 
 

 
         
 
         
 
         
 
         GRANT V. QUAKER OATS COMPANY
 
         Page   3
 
         
 
         
 
         processed by these machines.  There was some dispute at hearing 
 
         between claimant and Kevin Crist, the safety and health manager 
 
         at Quaker, as to the extent of the physical requirements for 
 
         these various jobs.  From a review of the hearing testimony and 
 
         claimant's job descriptions contained in the employer's exhibits, 
 
         the preponderance of the evidence indicates that she only 
 
         occasionally was required to push, pull or lift in excess of 30 
 
         pounds, but on the other hand was regularly required to stoop, 
 
         bend, push, pull, climb and twist as well as sit, stand and walk 
 
         for prolonged periods of time.
 
         
 
              2.  The preponderance of the evidence did not establish
 
         that claimant suffered an injury which arose out of and in the 
 
         course of her employment.
 
         
 
              Claimant does not prevail in this case primarily due to a 
 
         lack of supportive medical opinions causally connecting her back 
 
         and leg problems to anything that may have happened on September 
 
         16, 1984, the alleged injury date, or at any other time while 
 
         working for Quaker.
 
         
 
              From her medical records it appears that the alleged injury 
 
         date in the petition is incorrect and that the correct alleged 
 
         date should be Monday, September 17, 1984.  On this date, 
 
         claimant had just returned from a medical leave following minor 
 
         surgery to correct a problem arising from another previous 
 
         surgery for a condition unrelated to her work.  Claimant had been 
 
         off almost three weeks.  According to her foreman, after 
 
         approximately two hours claimant began to experience difficulty 
 
         with her surgical incision while "pulling tanks."  According to a 
 
         measurement by Crist using a linear force indicator, although the 
 
         tanks are very heavy, its movement requires a linear force of 
 
         only 30 pounds or less.  Claimant then was placed on a light duty 
 
         job following her complaints to her foreman for the remainder of 
 
         the shift.  After a few hours claimant stated that she could 
 
         hardly walk due to the onset of low back pain.  She, however, did 
 
         not report any back pain to her foreman at that time.
 
         
 
              The next day, claimant telephoned William A. Audeh, M.D., 
 
         the doctor who performed the non-work related surgery.  He 
 
         reports that claimant complained to him of incisional pain and 
 
         nausea.   There is no indication in his records that claimant 
 
         complained of back pain at that time.  Claimant was advised to 
 
         remain off work and report to the office the next day.  There are 
 
         no office notes in the evidence for this next appointment.  The 
 
         record contains a return to work slip signed by Dr. Audeh on 
 
         September 18, 1984 returning claimant to work on September 19, 
 
         1984 with a restriction that she not perform physical work for 
 
         the remainder of the week.
 
         
 
              Claimant testified that her low back and left hip pain 
 
         persisted upon her return to regular duty and she sought 
 
         treatment from an orthopedic surgeon, Earl Bickel, M.D.  However, 
 
         claimant was not able to schedule an appointment until October 8, 
 
         1984.  According to Dr. Bickel in his deposition testimony, 
 
         claimant did not report a specific injury when she came to his 
 
         office except for a fall down a basement stairway in 1975.  
 
         Claimant did, however, state that she was lifting up to 70 pounds 
 
         at work and performed other strenuous bending and stooping.  Dr. 
 

 
         
 
         
 
         
 
         GRANT V. QUAKER OATS COMPANY
 
         Page   4
 
         
 
         
 
         Bickel diagnosed lumbosacral sprain and recommended that she wear 
 
         a back support and refrain from heavy lifting at work.  Claimant 
 
         was then placed by Quaker into a coupon inserting job for the 
 
         next three weeks.  Claimant's pain, however, persisted and Dr. 
 
         Bickel took claimant completely off work and hospitalized her for 
 
         tests, physical therapy and traction.  Following these tests 
 
         which failed to reveal any physical disorder, Dr. Bickel finally 
 
         diagnosed myofascial strain syndrome and treated claimant 
 
         conservatively over the next several months.  The only objective 
 
         finding was a neurological abnormality which Dr. Bickel stated 
 
         could be attributed to a peripheral polyneuropathy.  According to 
 
         Dr. BickelOs deposition testimony such a polyneuropathy is not 
 
         trauma induced.  During Dr. BickelOs treatment, claimant remained 
 
         off work.  In December, 1984, claimant asked for and received a 
 
         second opinion from a neurologist, James Worrell, M.D., in Iowa 
 
         City, Iowa.  Dr. Worrell likewise found nothing objectively wrong 
 
         with claimant other than muscle strain.  Finally, on May 31, 
 
         1985, Dr. Bickel felt that he could do nothing further for 
 
         claimant and told claimant that she would have to live with her 
 
         difficulties.  Dr. Bickel then returned claimant to light duty 
 
         work.
 
         
 
              Claimant did not immediately return to Quaker as she was on 
 
         layoff status when Dr. Bickel released her for work.  She 
 
         subsequently was recalled from layoff and returned to work on 
 
         June 10, 1985 with work restrictions against repetitive bending, 
 
         lifting and stooping and no lifting over 10 to 20 pounds.  
 
         Claimant testified that she returned to the coupon inserting job 
 
         and other light duty jobs at the plant but occasionally was 
 
         required to violate the restrictions in order to perform her 
 
         assigned tasks.  Claimant also testified that she continued to 
 
         work despite her persistent back and leg pain.  After being 
 
         released by Dr. Bickel, claimant sought treatment from her family 
 
         physician, Dr. Ahn, M.D., (first name unknown).  Dr. Ahn treated 
 
         claimant on three occasions with acupuncture.  This procedure 
 
         only provided temporary relief and she began to then receive 
 
         regular chiropractic treatments from Donald Pattison, D.C., for 
 
         low back pain between July, 1985 and February, 1986.  She 
 
         complained to Dr. Pattison of neck, shoulder, low back and left 
 
         hip pain.  In January, 1985, claimant was off work as a result of 
 
         a plant wide reduction in force and went to Quaker's company 
 
         physician, W. R. Basler, M.D.  Dr. Basler then referred claimant 
 
         to William J. Robb, M.D., an orthopedic surgeon and an associate 
 
         of Dr. Bickel.  Dr. Robb essentially agreed with Dr. BickelOs 
 
         diagnosis of muscle and ligament strain but stated that 
 
         claimant's problems are largely psychological.  Dr. Robb 
 
         recommended a fitness program and Quaker then sent claimant to a 
 
         fitness program at a local racquet club.  Claimant stated that 
 
         she experienced a great deal of pain from this physical fitness 
 
         program.  Upon the advice of her attorney, claimant sought out 
 
         another orthopedic surgeon, John R. Walker, M.D., from Waterloo, 
 
         Iowa.
 
         
 
              After his examination of claimant, Dr. Walker stated in his 
 
         reports that he found low back and left leg pain and an inflamed 
 
         coccyx (tailbone).  Dr. Walker recommended that claimant end the 
 
         exercise program and began treatment of her low back and leg
 
         
 
         
 

 
         
 
         
 
         
 
         GRANT V. QUAKER OATS COMPANY
 
         Page   5
 
         
 
         
 
         problem with injections into the lower spine and other therapy.  
 
         He also recommended a coccygectomy.  Dr. Walker did not believe 
 
         claimant was able to work at this time.  In May, 1986, claimant 
 
         was hospitalized by Dr. Walker for conservative back therapy and 
 
         the coccygectomy.  Claimant and Dr. Walker assert that claimant 
 
         significantly improved from this coccygectomy surgery.  Claimant 
 
         stated that she improved by 25 percent but the low back, hip and 
 
         leg pain persist at the present time.  Claimant was sent by 
 
         Quaker subsequent to this surgery to Warren Verdeck, M.D., 
 
         another orthopedic surgeon and an associate of Dr. Bickel.  Dr. 
 
         Verdeck's diagnosis was again the same as those of his 
 
         other,associates, that is chronic low back strain and pain down 
 
         the left leg of unexplained etiology.  He recommended either a 
 
         pain clinic treatment or a TENS unit (an electrical device to 
 
         relieve pain).
 
         
 
              In February, 1987, claimant was rejected for pain management 
 
         therapy by J. Dan Smeltzer, M.A., the coordinator of the program 
 
         at Iowa Methodist Medical Center in Des Moines, Iowa.  The 
 
         reasons for the rejection as stated by Smeltzer was that 
 
         claimant's pain complaints were out of proportion to the nature 
 
         of the tissual damage and a failure of claimant to assume 
 
         personal responsibility for her own rehabilitation.  According to 
 
         Smeltzer requiring a patient to assume responsibility for their 
 
         own rehabilitation is an essential element of pain management 
 
         therapy.  Also, according to this report from Smeltzer, an MMPI 
 
         (Minnesota Multiphasic Personality Inventory) which was given to 
 
         claimant in January, 1984, indicated that there was significant 
 
         psychological component to claimant's pain complaints.
 
         
 
              Following her recovery from the tailbone surgery, claimant 
 
         remains under the care of Dr. Walker which has remained 
 
         conservative to date for the low back, hip and leg pain.  
 
         Claimant remains off work at this time.  In November, 1986, 
 
         claimant was called back to work for a light duty job consistent 
 
         with restrictions imposed by Dr. Verdeck.  The job consisted of 
 
         sorting from a elevated sitting position to minimize bending.  
 
         Claimant objected to this job on the grounds that the chair was 
 
         not sufficiently elevated or padded and that she was not released 
 
         to go to work by Dr. Walker.  Dr. Walker opines that claimant 
 
         would not be able to return to work due to chronic back pain 
 
         until February, 1987.  Claimant left the job offered to her in 
 
         November, 1986, after only two hours and has not returned nor has 
 
         any other job been offered by Quaker.
 
         
 
              According to histories claimant has provided to treating 
 
         physicians in this case, including Dr. Walker, claimant had back 
 
         trouble for several years before the alleged work injury in this 
 
         case.  Claimant has had a scoliosis condition or curvature of the 
 
         spine most of her life.  What role, if any, this condition may 
 
         play in precipitating claimant's current complaints is unknown.  
 
         No physician who has treated claimant since 1984 mentions this 
 
         condition as a possible cause.  According to claimant's history 
 
         in the reports of Dr. Walker, claimant has had back problems 
 
         since an injury in 1971 which required hospitalization for 
 
         trigger point injections, traction and therapy.  Following this 
 
         hospitalization, claimant received periodic chiropractic 
 
         treatments over the next five years.  At the hearing claimant 
 
         stated that her past back problems were unspecific.  Claimant did 
 

 
         
 
         
 
         
 
         GRANT V. QUAKER OATS COMPANY
 
         Page   6
 
         
 
         
 
         not mention her past back problems in her application for 
 
         employment to Quaker in 1979.  Claimant also had an injury in 
 
         1975 from a fall down some steps.  Dr. Walker tends to mention 
 
         this fall mostly in conjunction with his discussion concerning 
 
         claimant's tailbone problems.  Reports from chiropractors in 1982 
 
         indicate that claimant was complaining at that time of severe 
 
         neck pain and headaches following the 1975 fall.
 
         
 
              Giving claimant's past history, this agency must rely 
 
         heavily upon the expert opinions of physicians in this case to 
 
         determine the question of causal connection.  Claimant has been 
 
         treated and examined by several physicians since 1984.  However, 
 
         only one orthopedic specialist, Dr. Walker, causally relates the 
 
         back and tailbone problems to her work.  Dr. Walker states in his 
 
         report of April 16, 1986 that claimant's work activities at 
 
         Quaker were the cause or at least an aggravating cause of any 
 
         preexisting condition.  Dr. Pattison, the chiropractor, also 
 
         supports claimant's causal connection theories.  On the other 
 
         side Dr. Bickel, Dr. Robb, Dr. Verdeck and Dr. Worrell all fail 
 
         to support claimant's causal connection theories in either their 
 
         reports or deposition testimony.  Most of these doctors opined 
 
         that the cause of claimant's difficulties is unknown.  This 
 
         adverse consensus cannot be so easily rejected (as contended by 
 
         claimant) by the fact that Bickel, Robb and Verdeck are all from 
 
         the same orthopedic clinic.  The evidence indicates that each of 
 
         these doctors performed individual examinations and reviewed 
 
         histories before rendering their opinions.  Claimant simply has 
 
         not shown that these doctors have ignored their own findings and 
 
         professional judgment in order to support the views of their 
 
         colleagues.
 
         
 
              Aside from the medical opinions, the factual evidence and 
 
         claimant's own testimony tends to show a sudden rather than 
 
         gradual onset of problems in September, 1984, after which 
 
         claimant's condition remained relatively unchanged and permanent 
 
         work restrictions against strenuous work had to be imposed by 
 
         physicians.  What evidence there was of a prior back problem 
 
         appears to have been precipitated by two non-work related 
 
         injuries in the 1970's rather than claimant's work.  There is no 
 
         evidence of a,continual pattern of low back pain complaints while 
 
         at work despite a long history of other complaints and other work 
 
         injuries unrelated to her back.  However, this sudden onset of 
 
         symptoms in September, 1984, occurred after a very brief 
 
         encounter with relatively light work upon returning from an 
 
         extended medical leave.  It is simply difficult to believe that 
 
         claimant's symptoms and her inability to work for several months 
 
         are attributable to such a minor incident, especially when there 
 
         is no complaint of back injury to her employer or doctor at that 
 
         time of the alleged injury and only a diagnoses of muscle strain.  
 
         Therefore, the preponderance of the evidence presented does not 
 
         show that either a single work event or a gradual or accumulative 
 
         series of events at Quaker was a significant cause of her low 
 
         back, hip and leg pain.  It appears from the record that non-work 
 
         related causes of claimant's symptoms such as peripheral 
 
         polyneuropathy, non-work related injuries or congenital defects 
 
         are just as likely as a work related cause.
 
         
 
              Due to the lack of a finding that claimant's low back, hip 
 
         and leg pains are causally connected to her work, findings 
 

 
         
 
         
 
         
 
         GRANT V. QUAKER OATS COMPANY
 
         Page   7
 
         
 
         
 
         pertaining to the issue of claimant's entitlement to medical 
 
         benefits as a result of these conditions are unnecessary.
 
         
 
                                CONCLUSIONS OF LAW
 
         
 
              The foregoing findings of fact were made under the following 
 
         principles of law:
 
         
 
              I.  Claimant has the burden of proving by a preponderance of 
 
         the evidence that claimant received an injury which arose out of 
 
         and in the course of employment.  The words "out of" refer to the 
 
         cause or source of the injury.  The words 'in the course of" 
 
         refer to the time-and place and circumstances of the injury.  
 
         See Cedar Rapids Community Sch. v. Cady, 278 N.W.2d 298 (Iowa 
 
         1979); Crowe v. DeSoto Consol. Sch. Dist., 246 Iowa 402, 68 
 
         N.W.2d 63 (1955).  An employer takes an employee subject to any 
 
         active of dormant health impairments, and a work connected injury 
 
         which more than slightly aggravates the condition is considered 
 
         to be a personal injury.  Ziegler v. United States Gypsum Co., 
 
         252 Iowa 613, 620, 106 N.W.2d 591 (1960) and cases cited 
 
         therein.
 
         
 
              The question of causal connection is essentially within the 
 
         domain of expert medical opinion.  Bradshaw v. Iowa Methodist 
 
         Hospital., 251 Iowa 375, 101 N.W.2d 167 (1960).  The opinion of 
 
         experts need not be couched in definite, positive or unequivocal 
 
         language and the expert opinion may be accepted or rejected, in 
 
         whole or in part, by the trier of fact.  Sondag v. Ferris 
 

 
         
 
         
 
         
 
         GRANT V. QUAKER OATS COMPANY
 
         Page   8
 
         
 
         
 
         Hardware, 220 N.W.2d 903 (Iowa 1974).  The weight to e given to 
 
         such an opinion is for the finder of fact, and that may be 
 
         affected by the completeness of the premise given the expert and 
 
         other surrounding circumstances.  Bodish v. Fischer, Inc., 257 
 
         Iowa 516, 133 N.W.2d 867 (1965).
 
         
 
              Furthermore, if the available expert testimony is 
 
         insufficient alone to support a finding of causal connection, 
 
         such testimony may be coupled with nonexpert testimony to show 
 
         causation and be sufficient to sustain an award.  Giere v. Aase 
 
         Haugen Homes, Inc., 259 Iowa 1065, 146 N.W.2d 911, 915 (1966).  
 
         Such evidence does not, however, compel an award as a matter of 
 
         law.  Anderson v. Oscar Mayer & Co., 217 N.W.2d 531, 536 (Iowa 
 
         1974).  To establish compensability, the injury need only be a 
 
         significant factor, not be the only factor causing the claimed 
 
         disability.  Blacksmith, 290 N.W.2d 348, 354.  In the case of a 
 
         preexisting condition, an employee is not entitled to recover for 
 
         the results of a preexisting injury or disease but can recover 
 
         for an aggravation thereof which resulted in the disability found 
 
         to exist.  Olson v. Goodyear Service Stores, 255 Iowa 1112, 125 
 
         N.W.2d 251 (1963).
 
         
 
              In the case sub judice, claimant attempted in the 
 
         alternative to establish a gradual or accumulative injury.  It is 
 
         no longer necessary in this state that claimant prove that her 
 
         disability results from a sudden unexpected traumatic event. it 
 
         is sufficient to show that the disability developed gradually or 
 
         progressively from work activity over a period of time.  McKeever 
 
         Custom Cabinets v. Smith, 379 N.W.2d 368 (Iowa 1985).  However, 
 
         claimant failed to demonstrate such a gradual injury process 
 
         either by medical opinion evidence or by lay testimony.
 
         
 
              Although claimant did not prevail in this proceeding, she 
 
         appeared sincere in her testimony presented at the hearing and 
 
         her claim was arguably supported by some of the medical evidence. 
 
          Therefore, claimant shall be awarded the costs of this action.
 
         
 
                                      ORDER
 
         
 
              Claimant shall take nothing from this proceeding except that 
 
         defendants shall pay the costs of this action pursuant to 
 
         Division of Industrial Services Rule 343-4.33.
 
         
 
              Signed and filed this 23rd day of June, 1987.
 
         
 
         
 
         
 
         
 
         
 
         
 
                                           LARRY P. WALSHIRE
 
                                           DEPUTY INDUSTRIAL COMMISSIONER
 
         
 
         Copies To:
 
         
 
         Mr. Robert R. Rush
 
         Attorney at Law
 
         526 Second Avenue S.E.
 
         P. 0. Box 2457
 

 
         
 
         
 
         
 
         GRANT V. QUAKER OATS COMPANY
 
         Page   9
 
         
 
         
 
         Cedar Rapids, Iowa 52406
 
         
 
         Mr. James E. Shipman
 
         Attorney at Law
 
         1200 Merchants National Bank Bldg.
 
         Cedar Rapids, Iowa 52401
 
         
 
         
 
         
 
 
            
 
 
 
 
 
 
 
 
 
                                                  1108; 1402.2; 1801 
 
                                                  Filed June 23, 1987 
 
                                                  LARRY P. WALSHIRE
 
         
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         MARY E. GRANT,
 
         
 
              Claimant,
 
                                                      FILE NO. 818215
 
         VS.
 
                                                  A R B I T R A T I 0 N
 
         QUAKER OATS COMPANY,
 
                                                     D E C I S I 0 N
 
         
 
              Employer,
 
              Self-Insured,
 
              Defendant.
 
         
 
         
 
         
 
         
 
         
 
         1108; 1402.2; 1801
 
         
 
             Claimant failed to demonstrate by a preponderance of the 
 
         evidence the work relativeness of her low back, hip and leg 
 
         pain.
 
 
 
         
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                    BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         EDWIN R. PENTICO,
 
         
 
              Claimant,
 
         
 
         VS.                                  File Nos. 818219/818220
 
                                                        818221
 
         HAKES FOODS, INC.,
 
         
 
              Employer,                             A P P E A L
 
         
 
         and                                        R U L I N G
 
         
 
         ZURICH INSURANCE, SAFECO
 
         INSURANCE, KEMPER INSURANCE,
 
         
 
              Insurance Carriers,
 
              Defendants.
 
         
 
         
 
         
 
         
 
              On November 24, 1987 an arbitration decision was filed in 
 
         the above entitled actions.  On December 1, 1987 claimant filed 
 
         an application for rehearing of the arbitration decision.  On 
 
         January 29, 1988 claimant filed a notice of appeal.
 
         
 
              Division of Industrial Services Rule 343-4.24 states:
 
         
 
                 Any party may file an application for rehearing of a 
 
              decision in any contested case by a deputy commissioner 
 
              within twenty days after the issuance of the decision.  
 
              A copy of such application shall be timely mailed by 
 
              the applicant to all parties of record not joining 
 
              therein.  Such an application for rehearing shall be 
 
              deemed denied unless the deputy commissioner rendering 
 
              the decision grants the application within twenty days 
 
              after its filing.
 
         
 
         Division of Industrial Services Rule 343-4.25 states:
 
         
 
            An appeal to or review on motion of the industrial 
 
         commissioner must be filed within twenty days after the 
 
         application for rehearing under 4.24(86) has been denied or 
 
         deemed denied.  If the application for rehearing is granted, 
 
         the appeal shall be filed within twenty days of the decision on 
 
         rehearing.  If no application for rehearing under 4.24(86) is 
 
         filed, appeal shall be as provided in 4.27(17A,86).
 
         
 

 
         
 
         
 
         
 
         PENTICO V. HAKES FOODS, INC.
 
         Page   2
 
         
 
              Claimant has failed to file his notice of appeal within the
 
         time granted by these rules.  Furthermore, claimant's notice of 
 
         appeal is not signed and neither is the certificate of service 
 
         signed or dated.
 
         
 
              Defendants have filed a motion to dismiss and no response 
 
         has been made to that motion.  Based upon the above 
 
         considerations, the motion to dismiss claimant's notice of appeal 
 
         is sustained.
 
         
 
              THEREFORE, claimant's notice of appeal is hereby dismissed.
 
         
 
         
 
              Signed and filed this 22nd day of February, 1988.
 
         
 
         
 
         
 
         
 
         
 
                                                   DAVID E. LINQUIST
 
                                                   INDUSTRIAL COMMISSIONER
 
         
 
         Copies To:
 
         
 
         Mr. Robert E. Lee
 
         Attorney at Law
 
         520 Sumner Avenue
 
         P.O. Box 672
 
         Humboldt, Iowa  50548
 
         
 
         Mr. Marvin  Duckworth
 
         Attorney at Law
 
         2700 Grand Ave., Suite 111
 
         Des Moines, Iowa 50312
 
         
 
         Mr. Barry  Moranville
 
         Attorney at Law
 
         974 73rd Street, Suite 16
 
         Des Moines, Iowa 50312
 
         
 
         Mr. Gene Blackburn
 
         Mr. Jerry Schnurr III
 
         Attorneys at Law
 
         142 North 9th  Street
 
         P.O. Box 817
 
         Fort Dodge, Iowa 50501
 
         
 
         
 
 
        
 
 
 
 
 
                       BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
        
 
        
 
        BRYAN HAINLINE,
 
        
 
            Claimant,                    File No. 818223
 
        
 
        vs.                                 A P P E A L
 
        
 
        GLENN REED, JR. d/b/a R & R       D E C I S I O N
 
        FARMS AND DISPOSAL,
 
        
 
            Employer,
 
            Defendant.
 
        
 
                                 STATEMENT OF THE CASE
 
                                                
 
        Defendant appeals from an arbitration decision awarding permanent 
 
        partial benefits, healing period benefits, medical expense, and 
 
        medical mileage.
 
        
 
        The record on appeal consists of the transcript of the 
 
        arbitration proceeding; claimant's exhibits 1 through 6; and 
 
        defendant's exhibits A through D. Both parties filed briefs on 
 
        appeal.
 
        
 
                                      ISSUES
 
        
 
        Defendant did not make a statement of the issues on appeal, 
 
        however it appears from a review of the brief that the issues are 
 
        as follows: 1. Whether claimant was an independent contractor 
 
        at the time of the alleged injury. 2. Is claimant entitled to a 
 
        different rate of compensation than awarded by the deputy?
 
        
 
                                 REVIEW OF THE EVIDENCE
 
        
 
        The arbitration decision adequately and accurately reflects the 
 
        pertinent evidence and it will not be set forth herein.
 
        
 
                                 APPLICABLE LAW
 
        
 
        The citations of law contained in the arbitration decision are 
 
        appropriate to the issues and evidence.
 
        
 
                                      ANALYSIS
 
        
 
        The analysis of the deputy in conjunction with the issues and 
 
        evidence presented is adopted.
 
        
 
        Claimant sustained the burden of proof by a preponderance of the 
 
        evidence that an employer-employee relationship existed
 
        
 
        HAINLINE V. GLENN REED, JR.
 
        Page 2
 
        
 
        
 
        at the time of the injury. The defendant however, did not sustain 
 
        the burden of proof by a preponderance of the evidence that 
 
        claimant was an independent contractor. The defendant also failed 
 
        to prove that a separate independent business existed in the name 
 
        of Bryan's Diesel Service. In fact, the checks introduced into 
 
        evidence as defendant's exhibits A and C show with a certainty 
 
        that indeed, an employer-employee relationship existed between 
 

 
        
 
 
 
 
 
        claimant and defendant, instead of an independent contractor 
 
        relationship which the defendant alleged. The pay checks were 
 
        clearly made out in the name of the claimant indicating such 
 
        employer-employee relationship.
 
        
 
                                 FINDINGS OF FACT
 
        
 
        1. Claimant was hired by defendant to service and repair trucks.
 
        
 
        2. Defendant paid claimant compensation for this work.
 
        
 
        3. Defendant could terminate the work arrangement at any time.
 
        
 
        4. Defendant told claimant when there was work he could do and 
 
        when he could come to work.
 
        
 
        5. Defendant designated what units (trucks) claimant was to work 
 
        on and whether they were to be serviced, repaired, rebuilt or 
 
        overhauled.
 
        
 
        6. Claimant was to work on Saturday and Sunday. Claimant was to 
 
        work in the evenings on an "as needed" basis.
 
        
 
        7. Within these guidelines claimant could work whatever hours he 
 
        chose.
 
        
 
        8. Defendants owned the trucks which were serviced, repaired, 
 
        rebuild, or overhauled
 
        
 
        9. Defendant owned and operated a grain hauling business in which 
 
        these 12-15 trucks were used to haul grain.
 
        
 
        10. On January 12, 1986 claimant lost portions of his right index 
 
        and middle finger between the first and second joints when his 
 
        hand was sucked into the air intake of a truck that went into 
 
        high r.p.m.s.
 
        
 
        11. Claimant was working on defendant's truck in defendant's 
 
        garage at the time of the injury.
 
        
 
        12. Claimant worked on defendant's trucks at defendant's place of 
 
        business.
 
        
 
        HAINLINE V. GLENN REED, JR.
 
        Page 3
 
        
 
        13. Claimant did not have a separate business address, a separate 
 
        place of business, a business telephone, a business checking 
 
        account, letterhead invoices or stationary, and did not prepare 
 
        or submit itemized bills for his services performed for 
 
        defendant.
 
        
 
        14. Claimant did not have an employer identification number.
 
        
 
        15. Defendant normally acquired or paid for the parts that were 
 
        used on the trucks.
 
        
 
        16. Both parties supplied tools to perform the work that was 
 
        performed on the trucks.
 
        
 
        17. Claimant had a full-time job as an employee at Sam's 
 
        Riverside Auto Parts and earned $22,217.64 in 1985.
 
        
 
        18. Claimant worked part time for R & R Farms and Disposal and 
 
        earned $5,245.00 from July to December 1985 as reported on the 
 
        1O99-MISC.
 

 
        
 
 
 
 
 
        
 
        19. Claimant was married and had two dependent children at the 
 
        time of the injury.
 
        
 
                                 CONCLUSIONS OF LAW
 
        
 
        Claimant sustained the burden of proof by a preponderance cf the 
 
        evidence and made out a prima facie case that an 
 
        employer-employee relationship existed at the time of the injury.
 
        
 
        Defendant did not sustain the burden of proof by a preponderance 
 
        of the evidence that claimant was an independent contractor or 
 
        even that he maintained a separate independent business as a 
 
        diesel mechanic.
 
        
 
        Claimant did sustain an injury on January 12, 1986 which arose 
 
        out of and in the course of his employment with employer
 
        
 
        The injury was the cause of both temporary disability during a 
 
        period of recovery and also the cause of permanent disability.
 
        
 
        Claimant is entitled to healing period benefits from January 12, 
 
        1986 to March 10, 1986.
 
        
 
        Claimant is entitled to 65 weeks of permanent partial disability 
 
        benefits commencing on March 10, 1986 as scheduled member 
 
        benefits.
 
        
 
        Claimant is entitled to $6,600.00 in medical expenses and $7.50 
 
        for reasonable and necessary medical mileage.
 
        
 
        HAINLINE V. GLENN REED, JR.
 
        Page 4
 
        
 
        
 
        The proper rate of weekly compensation is $333.90 per week.
 
        
 
        WHEREFORE, the decision of the deputy is affirmed.
 
        
 
                                      ORDER
 
        
 
        THEREFORE, it is ordered;
 
        
 
        That defendant pay claimant eight point two six six (8.266) weeks 
 
        of healing period benefits for the period January 12, 1986 to 
 
        March 10, 1986 at the rate of three hundred thirty-three and 
 
        90/100 dollars ($333.90) per week in the total amount of two 
 
        thousand seven hundred sixty and 02/100 dollars ($2,760.02).
 
        
 
        That defendant pay to claimant sixty-five (65) weeks of permanent 
 
        partial disability benefits at the rate of three hundred 
 
        thirty-three and 90/100 dollars ($333.90) per week in the total 
 
        amount of twenty-one thousand seven hundred three and 50/100 
 
        dollars ($21,703.50) commencing on March 10, 1986.
 
        
 
        That all accrued benefits be paid in one lump sum.
 
        
 
        That interest will accrue pursuant to Iowa Code section 85.30.
 
        
 
        That defendant pay claimant six thousand six hundred dollars 
 
        ($6,600.00) in medical expenses and an additional seven and 
 
        20/100 dollars ($7.20) in medical mileage.
 
        
 
        That the costs of this action are charged to defendant.
 
        
 
        That defendant file claim activity reports as requested by this 
 

 
        
 
 
 
 
 
        agency pursuant to Division of Industrial Services Rule 343-3.1.
 
        
 
        Signed and filed this 21st day of February, 1989.
 
        
 
        
 
        
 
                                         DAVID E. LINQUIST
 
                                      INDUSTRIAL COMMISSIONER
 
        
 
        
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                   BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         BRYAN HAINLINE,                              File No. 818223
 
         
 
              Claimant,                            A R B I T R A T I O N
 
         
 
         vs.                                          D E C I S I O N
 
         
 
         GLENN REED, JR., d/b/a                          F I L E D
 
         R & R FARMS AND DISPOSAL,
 
                                                        JAN 14 1988
 
              Employer,
 
              Defendant.                       IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
                                   INTRODUCTION
 
         
 
              This is a proceeding in arbitration brought by Bryan 
 
         Hainline, claimant, against R & R Farms and Disposal, employer 
 
         and uninsured defendant for benefits as a result of an alleged 
 
         injury which occurred on January 12, 1986.  A hearing was held in 
 
         Des Moines, Iowa on February 23, 1987 and the case was fully 
 
         submitted at the close of the hearing.  The record consists of 
 
         the testimony of Glenn Reed, Jr. (defendant) , Bryan Hainline 
 
         (claimant), Renee Hainline (claimant's wife), Mike Parcel 
 
         (witness for defendant), Jane Jackson (witness for defendant), 
 
         Richard Thompson (witness for defendant), claimant's exhibits 1 
 
         through 6, and defendant's exhibits A through D.  Both attorneys 
 
         submitted excellent briefs.
 
         
 
                                 STIPULATIONS
 
         
 
              The parties stipulated to the following matters at the time 
 
         of the hearing.
 
         
 
              That in the event it is found that an employer-employee 
 
         relationship existed at the time of the injury and it is also 
 
         found that claimant sustained an injury which arose out of and in 
 
         the course of employment with employer, then the parties 
 
         stipulated to the following matters (1) that the injury was the 
 
         cause of both temporary and permanent disability; (2) that 
 
         claimant's entitlement to healing period benefits is from January 
 
         12, 1986 to March 10, 1986; (3) that claimant's entitlement to 
 
         permanent partial disability benefits is 65 weeks for a 100% loss 
 
         of use of the right index finger and right middle finger as a 
 
         scheduled member loss; (4) that the commencement date for 
 
         permanent partial disability benefits is March 10, 1986; (5) that 
 
         claimant's medical expenses amount to $6,600.00.
 
         
 
              That claimant is married and has two dependent children.
 
         
 
              That defendant makes no claim for credit under Iowa Code 
 
         section 85.38(2) for benefits paid pursuant to an employee 
 
                                                
 
                                                         
 
         nonoccupational group plan prior to the hearing and defendant 
 
         makes no claim for workers' compensation benefits paid prior to 
 
         the hearing.
 
         
 
              That there are no bifurcated claims.
 
         
 
              That the costs of this action are to be charged against the 
 
         nonprevailing party.
 
         
 
                                  ISSUES
 
         
 
              The parties submitted the following issues for determination 
 
         at the time of the hearing.
 
         
 
              Whether an employer-employee relationship existed between 
 
         claimant and defendant at the time of the alleged injury.
 
         
 
              Whether claimant was an independent contractor at the time 
 
         of the alleged injury.
 
         
 
              Whether claimant sustained an injury on January 12, 1986 
 
         which arose out of and in the course of his employment with 
 
         employer.
 
         
 
              What is the proper rate of compensation in the event of an 
 
         award.
 
         
 
                           SUMMARY OF THE EVIDENCE
 
         
 
              All of the evidence was examined and considered.  The 
 
         following is a summary of the pertinent evidence.
 
         
 
              Claimant testified that he worked as a diesel mechanic full 
 
         time for Sam's Riverside Auto Parts (Sam's) and part time for R & 
 
         R Farms and Disposal (R & R).  Exhibit two is a W-2 form from his 
 
         full-time employer in the amount of $22,217.64 for the year 1985. 
 
         Exhibit three and exhibit B is a 1099-MISC from defendant R & R 
 
         in the amount of $5,245.00 for the year 1985.  Claimant testified 
 
         that he was married and that he was the father of two dependent 
 
         children at the time he was injured on January 12, 1986.
 
         
 
              Claimant related that the defendant came to claimant while 
 
         claimant was at work at Sam's and asked claimant to work for 
 
         defendant part time as a diesel mechanic.  Claimant asserted that 
 
         defendant told claimant that defendant had 15 trucks which needed 
 
         to be serviced.  Claimant alleged that defendant told him that he 
 
         could or would work every weekend.  Work during the week would be 
 
         on an "as needed" basis.  Claimant testified that defendant 
 
         agreed to pay claimant $10.00 per hour for service work.  
 
         Claimant testified that defendant set the rate of pay by whatever 
 
         he chose to pay for repair work, rebuild work and overhaul work.  
 
         Claimant said that the amount that defendant paid for this latter 
 
         kind of work changed from time to time.
 
         
 
              The evidence showed that claimant received checks as follows 
 
                                                
 
                                                         
 
         from defendant:
 
         
 
           DATE           PAYEE            AMOUNT         EXHIBIT
 
         
 
         10-21-85     Bryan Hainline       $675.00          C-1
 
         11-03-85     Bryan Hainline        500.00          C-2
 
         11-10-85     Bryan Hainline        730.00          C-3
 
         11-26-85     Bryan Hainline        750.00          C-4
 
         12-20-85     Bryan Hainline        500.00          C-5
 
          1-14-86     Bryan Hainline        720.00           A
 
         
 
              Claimant maintained that defendant saved approximately 20% - 
 
         30% on the cost of service work and approximately 20% - 35% on 
 
         the cost of repair work.
 
         
 
              Claimant stated that he did not complete a job application 
 
         for this work.  Claimant further testified that there was no 
 
         written contract of employment.  Claimant said that his agreement 
 
         with defendant was entirely verbal.  Claimant explained that he 
 
         was required to be at R & R when there was a truck that needed to 
 
         be worked on.  Claimant testified that defendant hired him as a 
 
         diesel mechanic and could fire him at anytime.
 
         
 
              Claimant testified that he started to work for defendant in 
 
         July of 1985.  The work was to be and was performed in a garage 
 
         at defendant's place of business at 5310 Broadway in Des Moines, 
 
         Iowa.  This garage was located behind a house which defendant 
 
         used as both his residence and as his office.
 
         
 
              Claimant asserted that defendant owned all of the trucks. 
 
         Claimant testified that after he had worked there for awhile that 
 
         he was given written project lists on what to do.  Claimant said 
 
         that there were no set hours of work but he usually worked from 
 
         8:00 a.m. to 6:00 p.m. on Saturdays and 8:00 a.m. to 3:00 p.m. on 
 
         Sundays.  Claimant estimated that he worked approximately 50 to 
 
         60 hours every two weeks and that he expected to get paid every 
 
         two weeks.  Claimant said that he could not explain the 
 
         irregularity of the dates and amounts on the checks other than 
 
         that sometimes defendant was not there to sign his checks.  
 
         Claimant admitted that he also received some cash amounts from 
 
         defendant and he admitted that he did not include these cash 
 
         amounts in his income tax returns.  Claimant stated that he did 
 
         not know how much he was paid in cash.  Claimant acknowledged 
 
         that he was paid fairly. Claimant testified that he did not know 
 
         if income taxes were withheld from his checks or not because all 
 
         he ever received was the check itself.
 
         
 
              Claimant testified that he would contact defendant or 
 
         defendant would contact him and let him know when there was work 
 
         to do.  Claimant added that when he reported to the garage 
 
         defendant specified what units to work on and what to do to them; 
 
         however, defendant did not try to show claimant how to perform 
 
         the mechanical aspects of his job as a diesel mechanic.  Claimant 
 
         said that sometimes defendant told him to wait before doing 
 
         certain work.  Claimant related that with 15 trucks there was 
 
                                                
 
                                                         
 
         usually always work to do.  Claimant testified that defendant was 
 
         frequently in the garage, but defendant did not work with the 
 
         engines.
 
         
 
              In 1986 when claimant asked for a W-2 form from defendant, 
 
         claimant testified he was given a 1099-MISC form made out to 
 
         Bryan's Diesel Service (Exhibits 3 and B).  Claimant's attorney 
 
         wrote a letter to defendant to have the form changed to 
 
         claimant's name alone (Ex. 5) but claimant testified that 
 
         defendant refused to change it.  Defendant wrote back to 
 
         claimant's attorney that the 1099-MISC was issued in the name of 
 
         Bryan's Diesel Service at the request of claimant (Ex. D).  
 
         Claimant denied that he has ever operated under the name of 
 
         Bryan's Diesel Service.
 
         
 
              Claimant said that tools were never discussed.
 
         
 
              Claimant testified that he supplied two wrenches and one 
 
         ratchet wrench from his own tools for the job.  All of the other 
 
         tools that he used were in the shop.  He presumed that they were 
 
         supplied by defendant, however, they may have belonged to the 
 
         drivers.  Claimant asserted that he knows one box of tools for 
 
         sure belonged to defendant.  Claimant also testified that if he 
 
         needed tools that were not in the shop, defendant would go out 
 
         and get them for him.
 
 
 
                           
 
                                                         
 
         
 
              Claimant testified that defendant also hired a man by the 
 
         name of Dave Tjernagle to do mechanical work for defendant. 
 
         Claimant said that Tjernagle was also a co-employee of his at 
 
         Sam's.  Claimant denied that Tjernagle was claimant's employee or 
 
         claimant's subcontractor.  Claimant did acknowledge that one time 
 
         when defendant only had one check to pay both men that the check 
 
         was made out to claimant and claimant then paid Tjernagle his 
 
         share from that check.  Claimant denied that he paid Tjernagle 
 
         other than on this one occasion.
 
         
 
              Claimant testified that he was required to keep time records 
 
         in the last couple of months that he worked for defendant. 
 
         Defendant required that both he and Tjernagle keep time records. 
 
         The time records were initially prepared by defendant or his 
 
         bookkeeper Rosetta Koger at the house and brought out to the 
 
         garage.  Claimant alleged that the time records were required 
 
         because the bookkeeper did not trust him.
 
         
 
              On January 2, 1986 claimant was injured while working on a 
 
         truck which was owned by defendant in the garage on defendant's 
 
         premises.  Claimant was getting ready to adjust the idle on a 
 
         truck when the truck went into high r.p.m.s and sucked his hand 
 
         into the air intake.  Claimant described that he lost a portion of 
 
         his right index finger and also a portion of his right middle 
 
         finger.  Both fingers were severed between the first and second 
 
         joint.  Claimant said that he was off work from January 12, 1986 
 
         to March 10, 1986 from both employments, Sam's and R & R.  
 
         Claimant claimed that he also traveled 30 miles in obtaining 
 
         medical treatment --- five trips to Ronald S. Bergman, D.O., and 
 
         one trip to Des Moines General Hospital.  Claimant stated that he 
 
         returned to work at Sam's after his recovery but that he never did 
 
         return to work at R & R.
 
         
 
              Exhibit six is a release of liability in the nature of the 
 
         release of all claims dated January 30, 1986.  It bears the 
 
         signature "Bryan Hainline".  Claimant denied that this is his 
 
         signature.  Claimant asserted that this signature and this 
 
         document was a forgery.  Claimant further asserted that on 
 
         January 30, 1986 his hand was wrapped with a bandage up to his 
 
         arm and that it was impossible for him to sign his name to this 
 
         release. The release is witnessed by Rosetta Koger who also lived 
 
         at 5310 Broadway.
 
         
 
              Renee B. Hainline testified that she is the wife of claimant. 
 
         They were married July 15, 1982.  They have two children:  
 
         Jessica, who was born November 24, 1983 and Blake, who was born 
 
         April 20, 1985.  She testified that her husband had never 
 
         conducted a separate business of any kind.  He has never used the 
 
         name Bryan's Diesel Service.  She said claimant is not 
 
         incorporated.  She testified that claimant has taken no steps to 
 
         open a separate business.  Claimant's wife said that she took 
 
         Bryan's time card from the garage to the office in the house on 
 
         one occasion so that claimant could get paid.  She testified that 
 
         Dave Tjernagle had a time sheet there also.  She described the 
 
                                                
 
                                                         
 
         time sheet as being a white piece of paper approximately 8 x 11 
 
         inches.  This time sheet showed claimant's name and the hours that 
 
         he had worked for a two week period.  She stated that her husband 
 
         had made out the entries on the time sheet.  She said that Rosetta 
 
         made out the checks and defendant signed them.  She confirmed that 
 
         claimant usually worked Saturday and Sunday and evenings on call; 
 
         however, he only worked when defendant said that there was work to 
 
         be done.  She said that she was in the garage several times.  She 
 
         testified that she never saw any of her husband's tools there.  
 
         She claimed that some of the tools in the garage were so large 
 
         that they were not portable.  She said that Rosetta tried to talk 
 
         her out of making out a 1099 form. Claimant's wife alleged that 
 
         Rosetta said, "We are not claiming a deduction, why don't you just 
 
         forget it."
 
         
 
              Defendant, Glenn Reed, Jr., testified that he was the owner 
 
         and operator of R & R Farms and Disposal.  He said he lives at 
 
         5310 Broadway and he also uses this residence as his office.  He 
 
         stated that he was not incorporated.  He described the garage as 
 
         being located behind the house.  The garage is approximately 80 
 
         feet long and 50 feet wide.  Defendant stated that he leased 
 
         these premises for his trucking business.  Reed testified that he 
 
         primarily hauls grain.  He usually has 10 to 12 units on the road 
 
         all of the time.  The trucks are titled to him.  All of his 
 
         drivers are limited partners.  He considers them to be 
 
         independent contractors.  He testified that he hired service work 
 
         and repair work to be done on his trucks by Bryan's Diesel 
 
         Service and other repairmen.
 
         
 
              Defendant testified that it was claimant who approached 
 
         defendant at Sam's and told me he could save me some money if I 
 
         let him do my work.  Claimant did not say that he had any other 
 
         employment on the side.  Defendant testified that he had no tools 
 
         except a wrench for tires, a cutting torch and a hand full of 
 
         small tools.  Defendant testified that all of his repairmen and 
 
         all of his limited partner drivers all supply their own tools. 
 
         Defendant said the drivers receive 50 percent of the income after 
 
         expenses.  Furthermore, the drivers owed 50 percent of whatever 
 
         claimant charged.  There was no driver using the truck that 
 
         claimant was repairing when he was injured.  Defendant said that 
 
         claimant did the work in defendant's garage because it was easier 
 
         to bring the repairman to an 80,000 pound rig than vice versa. 
 
         Claimant was not allowed to fix other vehicles in defendant's 
 
         garage.
 
         
 
              Defendant testified that he had no workers' compensation 
 
         insurance at the time of the injury or now.  Defendant testified 
 
         that he personally witnessed the claimant signing the release 
 
         (Ex. 6).  Defendant asked claimant to sign the release because 
 
         defendant had heard from the owner of Sam's that claimant had 
 
         said that he would own R & R because of this injury.  Defendant 
 
         indicated that Rosetta Koger had made out the release and filled 
 
         in the blank spaces, but that claimant had personally signed it. 
 
         Defendant testified that Rosetta Koger was a witness to the 
 
         release.  She worked as a bookkeeper seven days a week and also 
 
                                                
 
                                                         
 
         lived in the house at 5310 Broadway.
 
         
 
              Defendant testified that Dave Tjernagle worked for claimant; 
 
         however, that he, defendant, had also hired Dave Tjernagle to 
 
         work for him at other times.
 
         
 
              Defendant denied that claimant kept any time records, time 
 
         cards or time sheets of any kind.  Defendant denied that claimant 
 
         worked by the hour.  Defendant denied that claimant had a regular 
 
         pay period.  Defendant admitted that claimant did not bill him on 
 
         claimant's own letterhead invoice.  Defendant testified that he 
 
         paid claimant whatever claimant said that defendant owed. 
 
         Defendant testified that this was always verbal except one time. 
 
         Defendant testified that claimant did not submit monthly 
 
         statements.  Defendant acknowledged that there was no paper work 
 
         arrangement or documentation.  When claimant wanted paid he came 
 
         to defendant and told defendant how much defendant owed claimant 
 
         and defendant then paid it.  Claimant never requested defendant 
 
         to withhold social security or federal or state withholding taxes 
 
         from his checks.  Defendant testified that claimant requested 
 
         that his checks be made out in the name of Bryan Hainline and not 
 
         Bryan's Diesel Service because claimant did not have an account 
 
         in the name of Bryan's Diesel Service.
 
         
 
              Defendant testified that he also paid claimant approximately 
 
         $5,000 in cash in addition to the checks shown above.  Defendant 
 
         stated since he had no proof he did not put these amounts on the 
 
         1099 MISC.  Defendant testified that he had the cash on hand 
 
         because he had sold an end loader for cash and since he banked 
 
         away from Des Moines he simply held the cash to pay his bills.
 
         
 
              Defendant testified that claimant sometimes called defendant 
 
         or stopped by to see if there was work.  Other times defendant 
 
         would call claimant at Sam's because claimant did not have a 
 
         telephone.  Defendant testified that claimant worked at his own 
 
         whim.  Defendant said that he didn't know what hours claimant 
 
         worked.  Defendant granted that he could terminate the 
 
         relationship just by saying that he did not have anymore work. 
 
         Defendant asserted that claimant did not file an unemloyment 
 
         compensation claim when claimant was off work due to the injury.
 
         
 
              Defendant denied that he obtained tools for claimant, except 
 
         on one occasion.  Defendant asserted that claimant provided his 
 
         own tools or else he got them from the drivers who were 
 
         defendant's limited partners.  Defendant denied that he or anyone 
 
         else made a project list for claimant to follow.  Defendant 
 
         testified that the drivers told defendant what the trucks needed 
 
         and defendant then told claimant.  Sometimes the drivers might 
 
         tell claimant direct what the truck needed.
 
         
 
              Defendant admitted that the parts needed for repairs were 
 
         charged to R & R Farms and that claimant did not pay for the 
 
         parts.  Defendant testified that claimant was paid by the job. 
 
         Defendant testified that he did not attempt to supervise or 
 
         control the work because he knows nothing about diesel 
 
                                                
 
                                                         
 
         mechanics.
 
         
 
              Defendant granted that claimant did not pay any portion of 
 
         the lease payments on the garage and claimant did not pay for any 
 
         portion of the utilities on the garage.  Defendant denied that he 
 
         owned a box of tools in the garage.  Defendant admitted on 
 
         cross-examination that he was convicted of aiding and abetting in 
 
         the robbery of a bank in 1970.
 
         
 
              Mike Parcel, one of the limited partner drivers, testified 
 
         that claimant did represent himself as Bryan's Diesel Service.  
 
         He said claimant had no set hours.  He was called when he was 
 
         needed. He was "on call" only.  Claimant did not work some 
 
         weekends. Parcel testified that he met claimant at a tractor pull 
 
         in August of 1986.  Parcel testified that claimant offered him 
 
         $1,000 at that time if he would make up a fictitious time card.  
 
         Parcel said no time cards were ever made out at defendant's place 
 
         of business. Parcel did not know how claimant got paid.  Parcel 
 
         said claimant provided his own tools.  There were very few tools 
 
         in the shop that belonged to defendant.  Parcel said that he was 
 
         paid 50 percent after expenses.  Parcel testified that he never 
 
         knew defendant to pay anyone on an hourly basis.  Parcel 
 
         testified that defendant was not present in the garage when the 
 
         injury occurred but that defendant arrived a short time later.
 
         
 
              Jane Jackson testified that she was one of the limited 
 
         partner drivers for defendant from August 1985 to June of 1986. 
 
         Claimant changed oil and serviced trucks.  He had no set hours 
 
         that she knew of.  She said defendant did not tell claimant what 
 
         to do.  Claimant directed his own work.  Claimant told her he 
 
         operated as Bryan's Diesel Service and that he had a diesel 
 
         service.  She did not know where else he worked however.  She had 
 
         never seen a written project list.  She had never called claimant 
 
 
 
                           
 
                                                         
 
         to fix her truck.  Defendant was not there when the injury 
 
         occurred but arrived a short time later.
 
         
 
              Richard Thompson testified that he was a former limited 
 
         partner driver for defendant.  He was present on the day of the 
 
         injury.  Thompson testified that defendant was often gone and did 
 
         not direct claimant's work.  Thompson testified that he made a 
 
         project list for the garbage truck, but that defendant did not 
 
         make a project list for claimant.  Thompson said that he did not 
 
         know who provided the tools but he did not think defendant did.  
 
         He thought claimant provided his own wrenches, hammers, screw 
 
         drivers and gages.  Claimant had no set hours of work that 
 
         Thompson knew of.  Thompson did not know of anyone who worked for 
 
         defendant for an hourly or weekly wage.  Thompson did not know 
 
         what claimant's compensation arrangement was with defendant.  
 
         Claimant worked off hours and Saturday and Sunday.
 
         
 
                            APPLICABLE LAW AND ANALYSIS
 
         
 
              The burden of proof usually is on the claimant to show an 
 
         employer-employee relationship.  Everts v. Jorgensen, 227 Iowa 
 
         818, 822-826, 289 N.W. 11 (1939); Reddick v. Grand Union Tea Co., 
 
         230 Iowa 108, 114-116, 296 N.W. 800 (1941); Nelson v. Cities 
 
         Service Oil Co., 259 Iowa 1209, 1213, 146 N.W.2d 261, 265 
 
         (1966).
 
         
 
              Five factors are weighed in determining whether there is an 
 
         employer-employee relationship.  Hjerleid v. State, 229 Iowa 818, 
 
         826, 827, 295 N.W. 139, 143 (1940); Usgaard v. Silver Crest Golf 
 
         Club, 256 Iowa 453, 455, 456, 127 N.W.2d 636 (1964); Nelson, 259 
 
         Iowa 1209, 1216, 146 N.W.2d 261, 265; Henderson v. Jennie 
 
         Edmundson Hosp., 178 N.W.2d 429, 431 (Iowa 1970); Floyd L. 
 
         Hawkins v. The Messenger Newspaper, File No. 750428, filed 
 
         February 13, 1984 (affirmed by the district court October 31, 
 
         1984).
 
         
 
              These factors are:
 
         
 
                   1.  The right of selection, or to employ at will;
 
                   2.  Responsibility for the payment of wages by the 
 
                       employer;
 
                   3.  The right to discharge or terminate the 
 
                       relationship;
 
                   4.  The right to control the work; and
 
                   5.  Is the party sought to be held as the employer the 
 
                       responsible authority in charge of the work or for 
 
                       whose benefit the work is performed?
 
         
 
              None of the above factors is determinative.  The question of 
 
         whether there are sufficient factors to prove that the claimant 
 
         is an employee is one for the finder of fact.  Lawyer and Higgs, 
 
         Iowa Workers' Compensation -- Law and Practice, section 2-1, 
 
         pages 5 and 6; Daggett v. Nebraska-Eastern Exp., Inc., 252 Iowa 
 
         341, 348, 107 N.W.2d 102, 107 (1961).
 
         
 
                                                
 
                                                         
 
              As to the law, the Iowa Supreme Court has decreed that the 
 
         Workers' Compensation Act is to be liberally construed to extend 
 
         it's beneficent purpose to every employee who can fairly be 
 
         brought within it.  Usgaard, 256 Iowa 453, 459, 127 N.W.2d 636, 
 
         639; Daggett, 252 Iowa 341, 346, 107 N.W.2d 102.
 
         
 
              An employee is a person who has entered into the employment 
 
         of or works for an employer.  Iowa Code section 85.61(2); Lawyer 
 
         and Higgs, Iowa Workers' Compensation -- Law and Practice, 
 
         section 2-2, page 6.
 
         
 
              Once the worker has proven that at the time of the injury 
 
         the worker was rendering services for the employer, the burden 
 
         then shifts to the employer to prove the worker was an 
 
         independent contractor and not an employee.  Daggett, 252 Iowa 
 
         341, 344, 345, 346 107 N.W.2d 102, 105 and numerous cases cited 
 
         therein.
 
         
 
              An independent contractor by definition carries on an 
 
         independent business.  The Iowa Supreme Court has adopted an 
 
         eight factor test which is considered in determining whether a 
 
         worker is an independent contractor.  Mallinger v. Webster City 
 
         Oil Co., 211 Iowa 847, 851, 234 N.W. 254 I 257 (1929).  Again no 
 
         single factor is determinative.  Daggett, 252 Iowa 341, 107 
 
         N.W.2d 102.  As with the determination of employer-employee 
 
         relationship, the court will attempt to bring every employee 
 
         under the protection of the Workers' Compensation Act who can be 
 
         fairly brought within it's coverage.  Usgaard, 256 Iowa 453, 459, 
 
         127 N.W.2d 636, 639.
 
         
 
              The factors which the court weighed in the Mallinger case to 
 
         determine independent contractor status appear at page 851 and 
 
         are as follows:
 
         
 
                   An independent contractor, under the quite universal 
 
              rule, may be defined as one who carries on an independent 
 
              business, and contracts to do a piece of work according to 
 
              his own methods, subject to the employer's control only as 
 
              to results.  The commonly recognized tests of such a 
 
              relationship are, although not necessarily concurrent, or 
 
              each in itself controlling:  (1) the existence of a contract 
 
              for the performance by a person of a certain piece or kind 
 
              of work at a fixed price; (2) independent nature of his 
 
              business or of his distinct calling; (3) his employment of 
 
              assistants, with the right to supervise their activities; 
 
              (4) his obligation to furnish necessary tools, supplies, and 
 
              materials; (5) his right to control the progress of the 
 
              work, except as to final results; (6) the time for which the 
 
              workman is employed; (7) the method of payment, whether by 
 
              time or by job; (8) whether the work is part of the regular 
 
              business of the employer.
 
         
 
              Casual employees and independent contractors are not deemed 
 
         to be employees or workers under the act and are not entitled to 
 
         workers' compensation coverage.  Iowa Code section 85.61(3) 
 
                                                
 
                                                         
 
         provides as follows:  "The following persons shall not be deemed 
 
         "workers" or "employees":  a.  A person whose employment is 
 
         purely casual and not for the purpose of the employer's trade or 
 
         business except as otherwise provided in section 85.1.  b.  An 
 
         independent contractor.
 
         
 
              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).
 
         
 
              Claimant has the burden of proving by a preponderance of the 
 
         evidence that he received an injury on January 12, 1986 which 
 
         arose out of and in the course of his employment.  McDowell v. 
 
         Town of Clarksville, 241 N.W.2d 904 (Iowa 1976); Musselman v. 
 
         Central Telephone Co., 261 Iowa 352, 154 N.W.2d 128 (1967).
 
         
 
              The claimant has the burden of proving by a preponderance of 
 
         the evidence that the injury of January 12, 1986 is causally 
 
         related to the disability on which he now bases his claim.  
 
         Bodish v. Fischer, Inc., 257 Iowa 516, 133 N.W.2d 867 (1965).  
 
         Lindahl v. L. O. Boggs, 236 Iowa 296, 18 N.W.2d 607 (1945).  A 
 
         possibility is insufficient; a probability is necessary.  Burt v. 
 
         John Deere Waterloo Tractor Works, 247 Iowa 691, 73 N.W.2d 732 
 
         (1955).  The question of causal connection is essentially within 
 
         the domain of expert testimony.  Bradshaw v. Iowa Methodist 
 
         Hospital, 251 Iowa 375, 101 N.W.2d 167 (1960).
 
         
 
              However, expert medical evidence must be considered with all 
 
         other evidence introduced bearing on the causal connection.  
 
         Burt, 247 Iowa 691, 73 N.W.2d 732.  The opinion of experts need 
 
         not be couched in definite, positive or unequivocal language.  
 
         Sondag v. Ferris Hardware, 220 N.W.2d 903 (Iowa 1974).  However, 
 
         the expert opinion may be accepted or rejected, in whole or in 
 
         part, by the trier of fact.  Id. at 907.  Further,,the weight to 
 
         be given to such an opinion is for the finder of fact, and that 
 
         may be affected by the completeness of the premise given the 
 
         expert and other surrounding circumstances.  Bodish, 257 Iowa 
 
         516, 133 N.W.2d 867.  See also Musselman 261 Iowa 352, 154 N.W.2d 
 
         128,
 
         
 
              Permanent partial disabilities are classified as either 
 
         scheduled or unscheduled.  A specific scheduled disability is 
 
         evaluated by the functional method; the industrial method is used 
 
         to evaluate an unscheduled disability.  Martin v. Skelly Oil Co., 
 
         252 Iowa 128, 133, 106 N.W.2d 95, 98 (1960); Graves v. Eagle Iron 
 
         Works, 331 N.W.2d 116 (Iowa 1983); Simbro v. DeLong's Sportswear, 
 
         332 N.W.2d 886, 887 (Iowa 1983).
 
         
 
              Claimant has sustained the burden of proof by a 
 
         preponderance of the evidence that he was an employee of employer 
 
         at the time of the injury on January 12, 1986.  Claimant proved 
 
         that he entered into the employment of and was a worker for 
 
         employer at the time of the injury.  Iowa Code section 85.61(2).  
 
         He proved he was rendering services for employer at the time of 
 
         the injury. Daggett, 242 Iowa 341, 107 N.W.2d 102.  Claimant has 
 
                                                
 
                                                         
 
         submitted evidence that he meets all of the criteria on the five 
 
         factor test for employer-employee relationship.
 
         
 
              First, there is no dispute that defendant had the right of 
 
         selection and employed claimant at the will or discretion of the 
 
         defendant.  It is immaterial whether claimant approached defendant 
 
         or whether defendant approached claimant.  It is immaterial 
 
         whether Sam's condoned the arrangement or was opposed to it.  It 
 
         is clear defendant retained the services of claimant at those 
 
         times when defendant had trucks to be serviced or repaired.  
 
         Claimant did not submit bids or estimates for these jobs.  
 
         Claimant worked when employer had work to be done and told him 
 
         that he could work.
 
         
 
              Second, defendant was responsible to pay claimant for his 
 
         services.  It is immaterial to a prima facie case whether claimant 
 
         was paid by the hour or paid by the job, regularly or irregularly 
 
         and whether claimant determined the appropriate compensation or 
 
         defendant determined the appropriate compensation.  There is no 
 
         dispute that claimant was paid compensation for his services.  
 
         This is sufficient for the purpose of a prima facie case, which is 
 
         claimant's burden, and which is under consideration at this time. 
 
         Claimant testified and his wife testified that these were hourly 
 
         wages based on claimant's hours as reported on the time sheet. 
 
         Claimant also testified that he worked approximately 50 to 60 
 
         hours every two weeks and got paid every two weeks.
 
         
 
              Black's Law Dictionary, Fourth Edition, at page 1353 defines 
 
         prima facie as:
 
         
 
              PRIMA FACIE.  Lat.  At first sight; on the first appearance; 
 
              on the face of it; so far as can be judged from the first 
 
              disclosure; presumably; a fact presumed to be true unless 
 
     
 
                            
 
                                                         
 
              disproved by some evidence to the contrary.  State ex rel. 
 
              Herbert v. Whims, 68 Ohio App. 39, 38 N.E.2d 596, 599.
 
         
 
              Black's Law Dictionary, Fourth Edition, at page 1353 defines 
 
         prima facie case as:
 
         
 
              PRIMA FACIE CASE.  Such as will suffice until contradicted 
 
              and overcome by other evidence.  Pacific Telephone & 
 
              Telegraph Co. v. Wallace, 158 Or. 210, 75 P.2d 942, 947.  A 
 
              case which has proceeded upon sufficient proof to that stage 
 
              where it will support finding if evidence to contrary is 
 
              disregarded.  In re Hoagland's Estate, 126 Neb. 377, 253 
 
              N.W. 416.
 
         
 
                   A litigating party is said to have a prima facie case 
 
              when the evidence in his favor is sufficiently strong for 
 
              his opponent to be called on to answer it.  A prima facie 
 
              case, then, is one which is established by sufficient 
 
              evidence, and can be overthrown only by rebutting evidence 
 
              adduced on the other side.
 
         
 
              Black's Law Dictionary, Fourth Edition, at pages 1353 and 
 
         1354 defines prima facie evidence as follows:
 
         
 
              PRIMA FACIE EVIDENCE.  Evidence good and sufficient on its 
 
              face; such evidence as, in the judgment of the law, is 
 
              sufficient to establish a given fact, or the group or chain 
 
              of fact constituting the party's claim or defense, which if 
 
              not rebutted or contradicted, will remain sufficient.  State 
 
              v. Burlingame, 146 Mo. 207, 48 S.W. 72.
 
         
 
              Third, both parties, claimant and defendant, testified that 
 
         defendant could terminate the relationship at anytime.
 
         
 
              Fourth, although defendant did not endeavor to tell claimant 
 
         how to perform diesel mechanic work because he was not familiar 
 
         with the skills, defendant nevertheless told claimant when there 
 
         was work to be done and what work he was to do.  Claimant was not 
 
         free to simply service or repair trucks at his own discretion.  
 
         He was told when he could work, what unit or truck he was to work 
 
         on, and what work was to be done to it.  Moreover, claimant 
 
         testified that at some point in time he was given written project 
 
         lists. Therefore, claimant has introduced credible evidence that 
 
         defendant controlled the work.
 
         
 
              Fifth, the evidence is undisputed that defendant owned the 
 
         trucks that were serviced or repaired.  Defendant was the owner 
 
         and operator of R & R, a grain hauling enterprise using trucks 
 
         and it was these trucks which were being serviced or repaired by 
 
         claimant.  Claimant was not paid to just come in to service or 
 
         repair any truck as a matter of claimant's discretion or 
 
         determination.  Claimant was told what units to work on and what 
 
         work was to be done to them.  Defendant himself testified that 
 
         the drivers told him what the trucks needed and that he, 
 
         defendant, then told claimant what to do to the trucks.  
 
                                                
 
                                                         
 
         Therefore, claimant has introduced evidence that defendant was 
 
         the authority in charge of the work and the person for whose 
 
         benefit the work was performed.
 
         
 
              In summary then, claimant has made out a prima facie case on 
 
         all five indicators of an employer-employee relationship pursuant 
 
         to the Iowa case law cited above.  Claimant has introduced 
 
         credible evidence on all five points.  It is not necessary to 
 
         make a liberal interpretation of the law in order to say that 
 
         claimant has made out a prima facie case of employer-employee 
 
         relationship. There is direct evidence in support of each of the 
 
         five factors. Therefore, it is determined that claimant has 
 
         established a prima facie case that an employer-employee 
 
         relationship existed between claimant and employer at the time of 
 
         the alleged injury.
 
         
 
              The burden of proving an independent contractor relationship 
 
         by a preponderance of the evidence then shifts to the defendant. 
 
         Defendant has not sustained the burden of proof by a 
 
         preponderance of the evidence that claimant was an independent 
 
         contractor.  The eight factors for an independent contractor 
 
         relationship will be considered separately.
 
         
 
              First, defendant has testified that this was a piece work 
 
         contract; however, this was contradicted by claimant and his 
 
         wife. They said claimant was paid by the hour for service work 
 
         and whatever defendant chose to pay claimant for repair, rebuild 
 
         and overhaul work.
 
         
 
              Second, although diesel mechanic work can be performed by 
 
         independent contractors, defendant did not sustain the burden of 
 
         proof that claimant was engaged in business as an independent 
 
         contractor.  Claimant had no separate place of business to 
 
         operate a diesel mechanic business.  Claimant performed all of 
 
         his work at defendant's place of business.  Claimant did not have 
 
         a business address, a business telephone, business invoices, 
 
         business stationary, a business bank account or an IRS employer 
 
         identification number which is required for sole proprietorships 
 
         and other persons in business for themselves.  Claimant did not 
 
         have any other clients, customers or persons who used his 
 
         services as an independent contractor diesel mechanic.  Defendant 
 
         and defendant's witnesses said that claimant called himself 
 
         Bryan's Diesel Service; however, this was controverted by 
 
         claimant and his wife who denied that he had ever operated under 
 
         or used that title.
 
         
 
              Third, defendant testified that claimant hired and paid Dave 
 
         Tjernagle as an employee or assistant.  Claimant denied he ever 
 
         hired or subcontracted Dave Tjernagle as an assistant or as an 
 
         employee.  Defendant did grant that on some occasions he did hire 
 
         and pay Dave Tjernagle when claimant was not available.
 
         
 
              Fourth, defendant said claimant supplied his own tools and 
 
         used the drivers tools, but acknowledged that he did furnish some 
 
         of the tools and on other occasions obtained the tools claimant 
 
                                                
 
                                                         
 
         needed to perform a specific job.  Claimant said he used tools 
 
         found on the job but that he also used some of his own tools. 
 
         Therefore, the evidence is that claimant used some of defendant's 
 
         tools, claimant used some of his own tools, claimant used some of 
 
         the drivers tools and that occasionally defendant obtained tools 
 
         for claimant for a specific job.
 
         
 
              Fifth, as to the control of the work (1) defendant told 
 
         claimant when there was work to be done; (2) defendant specified 
 
         what trucks were to be worked on; (3) defendant specified what 
 
         was to be done to each truck.  Claimant, of course, controlled 
 
         the mechanical skills to be applied in doing the work designated 
 
         by defendant.
 
         
 
              Sixth, claimant was told by defendant when there was work to 
 
         be done and when there was no work to be done.  Within this 
 
         element of control, claimant could choose his own hours of work 
 
         on Saturday and Sunday, but it was necessary to confer with 
 
         defendant for work on weeknights because it was to be performed 
 
         on an as needed basis.
 
         
 
               Seventh, the method of payment is in dispute.  Defendant 
 
         said he paid by the job whatever claimant decided to bill him.  
 
         Claimant testified he was paid hourly for service work and 
 
         defendant determined what he was to be paid for repair, rebuild 
 
         and overhaul work.
 
         
 
              Eighth, the work of a diesel mechanic can be the work of an 
 
         employee or can be the work of an independent contractor.  In 
 
         this case, the evidence is in complete dispute.  Defendant's 
 
         testimony is that claimant operates as an independent contractor.  
 
         Claimant contends that he acted as an employee.
 
         
 
              The result is that the defendant's evidence on all eight 
 
         factors is controverted, contradicted, rebutted or refuted by 
 
         claimant's evidence.  Defendant's evidence at best rises to the 
 
         level of an equipoise.  Defendant's burden is to prove by a 
 
         preponderance of the evidence that the claimant was an 
 
         independent contractor.  Defendant has not met this burden 
 
         because all of his evidence is offset and disputed by claimant's 
 
         evidence.  It cannot be said after looking at all of the evidence 
 
         in this case that defendant has shown (1) by the bulk of the 
 
         evidence; (2) by the greater weight of the evidence; (3) by the 
 
         majority of the evidence; (4) by the superiority of the evidence; 
 
         (5) by the more powerful evidence; (6) by the more important 
 
         evidence; (7) by the more influential evidence; (8) in short by a 
 
         preponderance of the evidence, that claimant was an independent 
 
         contractor or carried on a separate and independent business of 
 
         diesel mechanics as an independent businessman.  Defendant failed 
 
         to sustain the burden of proof by a preponderance of the evidence 
 
         that claimant was an independent contractor.  The possibility 
 
         that claimant might have been an independent contractor was 
 
         raised by the evidence but that fact was not proven by a 
 
         preponderance of the evidence.
 
         
 
                                                
 
                                                         
 
              Defendant did not prove that claimant was a casual employee 
 
         as Iowa Code section 85.1(2) provides.
 
         
 
              Except as provided in subsection 6 of this section this 
 
              chapter does not apply to:
 
         
 
              Persons whose employment is purely casual and not for the 
 
              purpose of the employer's trade or business except that 
 
              after July 1, 1974, this chapter shall apply to such 
 
              employees who earn two hundred dollars or more from such 
 
              employer for whom employed at the time of the injury during 
 
              the thirteen consecutive weeks prior to the injury.
 
         
 
              In this case, claimant was definitely employed for the 
 
         purpose of the employer's business.  Furthermore, the checks 
 
         which claimant received in 1985 and 1986 summarized above clearly 
 
         show that claimant earned more than two hundred dollars from 
 
         employer during the thirteen weeks prior to the injury.
 
         
 
              Claimant did sustain the burden of proof by a preponderance 
 
         of the evidence that he sustained an injury on January 12, 1986 
 
         which arose out of and in the course of his employment with 
 
         employer.  Claimant testified and others testified that claimant 
 
         lost portions of his right index and middle finger when his hand 
 
         was sucked into the air intake while adjusting a truck engine on 
 
         defendant's truck in defendant's garage.  This evidence is not 
 
         disputed.  Therefore, it is found that claimant did sustain a 
 
         compensable injury which arose out of and in the course of his 
 
         employment with employment.
 
         
 
              The parties stipulated prior to hearing that if it was 
 
         determined that an employer-employee relationship existed at the 
 
         time of the injury and that if it was determined that claimant 
 
 
 
                            
 
                                                         
 
         sustained an injury arising out of and in the course of his 
 
         employment with employer, then (1) the injury was the cause of 
 
         both temporary disability during the period of recovery and the 
 
         cause of permanent disability; (2) that claimant is entitled to 
 
         healing period benefits from January 12, 1986 to March 10, 1986; 
 
         (3) that claimant is entitled to permanent partial disability 
 
         benefits for 65 weeks for a 100 percent loss of use of the right 
 
         index finger and the right middle finger as a scheduled member 
 
         loss; (4) that the commencement date for permanent partial 
 
         disability benefits is March 10, 1986; (5) claimant is entitled 
 
         to medical expenses in the amount of $6,600.00, all pursuant to 
 
         the stipulations at the time the hearing began.  It is further 
 
         found that claimant is entitled to medical mileage for 30 miles 
 
         at the rate of .24 per mile and the total amount is $7.20.  
 
         Claimant's testimony on this point was reasonable and was not 
 
         contested.
 
         
 
              The next issue is the proper rate of compensation.  Iowa 
 
         Code section 85.36(10) provides:
 
         
 
                   If an employee earns either no wages or less than the 
 
              usual weekly earnings of the regular full-time adult laborer 
 
              in the line of industry in which the employee is injured in 
 
              that locality, the weekly earnings shall be one-fiftieth of 
 
              the total earnings which the employee has earned from all 
 
              employment during the twelve calendar months immediately 
 
              preceding the injury.
 
         
 
              Defendant's attorney argues in his brief that it would be 
 
         manifestly unfair to couple claimant's wages earned at his 
 
         regular place of employment (Sam's) with his compensation earned 
 
         as a moonlighter while employed by defendant (R & R).  This 
 
         proposition was addressed earlier in the case of Zimmerman v. 
 
         Wilson Foods Corp., File Number 634963 dated May 28, 1981, 
 
         decided by Deputy Industrial Commissioner Judith Ann Higgs.
 
         
 
              This decision points out that on some occasions the employer 
 
         will be the full-time employer and on other occasions the 
 
         employer will be the part-time employer.  This decision stated 
 
         that although the employer will have an added burden when the 
 
         employee is injured on the part-time job, the employer will have 
 
         the consolation of no obligation when claimant is injured on the 
 
         full-time job.  The decision quotes what is now found at 2 
 
         Larson, section 60.31(c) at page 10-713.
 
         
 
                   For the injured workman, however, there is no such 
 
              consolation.  He, and he alone, bears the burden of being 
 
              reduced to $20 a week when his actual earnings may have been 
 
              five times that much.  That is real unfairness.  By 
 
              comparison, the "unfairness" to the employer, in the form 
 
              perhaps of a slight premium increase, eventually offset by 
 
              the times he will benefit by the same rule, is an artificial 
 
              construct with no genuine content.
 
         
 
              The Zimmerman decision was affirmed by the industrial 
 
                                                
 
                                                         
 
         commissioner, file number 634963, appeal decision September 23, 
 
         1981.
 
         
 
              Practically all jurisdictions favor the proposition that 
 
         claimant's weekly compensation rate should include his total 
 
         earnings from both employments.  2 Larson, section 60.31(a), page 
 
         10-688.
 
         
 
              Defendant's attorney argues in his brief that Iowa Code 
 
         section 85.36(10) only applies to those situations mentioned in 
 
         subparagraphs a, b, c and d.  This argument is without merit in 
 
         view of the Zimmerman decision cited above.
 
         
 
              The brief of the attorney for the claimant correctly and 
 
         accurately computed the rate of compensation in this case.  That 
 
         portion of the brief is therefore quoted and adopted as the 
 
         decision in this case on the determination of the proper rate of 
 
         weekly compensation.
 
         
 
                   Bryan Hainline was married at the time of the accident, 
 
              had two children, and was employed by Glenn Reed, Jr. and 
 
              Sam's Riverside Truck Parts at the time of his injury. 
 
              Accordingly, a weekly compensation rate of $333.90 applies 
 
              herein.  Iowa Code Section 85.36(10) provides that if a 
 
              claimant, such as Bryan Hainline, is injured while working 
 
              less than full time for someone, he can combine the total 
 
              earnings which he has earned from all employment during the 
 
              12 calendar months immediately preceding the injury and 
 
              determine a weekly earnings amount by dividing 50 into that 
 
              yearly amount.
 
         
 
                   The evidence at trial indicated that Bryan worked no 
 
              more than 30 hours in any one week for Glenn Reed and, 
 
              accordingly, he was employed less than full time by Mr. Reed 
 
              at the time of his accident.  His combined income for 1985 
 
              amounts to $27,463.00 ($5245.00 from Glenn Reed and 
 
              $22,218.00 from Sam's) which, divided by 50, results in a 
 
              weekly earning amount of $549.26.  Plugging that sum into 
 
              the appropriate compensation table, along with Bryan 
 
              Hainline's marital status and number of dependents, results 
 
              in a weekly compensation rate of $333.90.
 
         
 
              Wherefore, it is determined that the proper rate of weekly 
 
         compensation is $333.90 per week.
 
         
 
              Defendant testified that he also paid claimant an additional 
 
         $5,000 in cash for which he had no records.  Claimant admitted 
 
         that he received additional payments in cash but he did not know 
 
         how much cash he had received.  Although this additional cash 
 
         payment would normally increase claimant's rate of compensation, 
 
         that will not be done in this case because the evidence as to the 
 
         exact amount of cash was not sufficiently definitive.
 
         
 
              Even though it is not necessary to a proper disposition to 
 
         this case, perhaps some comment should be made with respect to 
 
                                                
 
                                                         
 
         the release of liability, (Ex. 6).  First, no determination can 
 
         be made as to whether Exhibit 6, release of liability, is a 
 
         forgery or not.  The evidence is in direct conflict on this 
 
         point. Secondly, even if it were determined the document and the 
 
         signature is not a forgery, the release is ineffective to release 
 
         defendant from liability under the workers' compensation law of 
 
         Iowa.  Iowa Code section 85.18 provides as follows, "No contract, 
 
         rule, or device whatsoever shall operate to relieve the employer, 
 
         in whole or in part, from any liability created by this chapter 
 
         except as herein provided."
 
         
 
              The Iowa workers' compensation law is the exclusive remedy 
 
         for work related injuries.  Neither the employer or the employee 
 
         can waive the provisions of the act (Iowa Code section 85.18).
 
         
 
                                FINDINGS OF FACT
 
         
 
              Therefore, based on the evidence presented the following 
 
         findings of fact are made.
 
         
 
              That claimant was hired by defendant to service and repair 
 
         trucks.
 
         
 
              That defendant paid claimant compensation for this work.
 
         
 
              That defendant could terminate the work arrangement at any 
 
         time.
 
         
 
              That defendant told claimant when there was work he could do 
 
         and when he could come to work.
 
         
 
              That defendant designated what units (trucks) claimant was 
 
         to work on and whether they were to be serviced, repaired, 
 
         rebuilt or overhauled.
 
         
 
              That claimant was to work on Saturday and Sunday.  That 
 
         claimant was to work in the evenings on an "as needed" basis.
 
         
 
              That within these guidelines claimant could work whatever 
 
         hours he chose.
 
         
 
              That defendant owned the trucks which were serviced, 
 
         repaired, rebuilt or overhauled.
 
         
 
              That defendant owned and operated a grain hauling business 
 
         in which these 12 - 15 trucks were used to haul grain.
 
         
 
              That on January 12, 1986 claimant lost portions of his right 
 
         index and middle finger between the first and second joints when 
 
         his hand was sucked into the air intake of a truck that went into 
 
         high r.p.m.s.
 
         
 
              That claimant was working on defendant's truck in 
 
         defendant's garage at the time of the injury.
 
         
 
                                                
 
                                                         
 
              That claimant worked on defendant's trucks at defendant's 
 
         place of business.
 
         
 
              That claimant did not have a separate business address, a 
 
         separate place of business, a business telephone, a business 
 
         checking account, letterhead invoices or stationary, and did not 
 
         prepare or submit itemized bills for his services performed for 
 
         defendant.
 
         
 
              That claimant did not have an employer identification 
 
              number.
 
         
 
              That defendant normally acquired or paid for the parts that 
 
         were used on the trucks.
 
         
 
              That both parties supplied tools to perform the work that 
 
         was performed on the trucks.
 
         
 
              That claimant had a full-time job as an employee at Sam's 
 
         Riverside Auto Parts and earned $22,217.64 in 1985.
 
         
 
              That claimant worked part time for R & R Farms and Disposal 
 
         and earned $5,245.00 from July to December 1985 as reported on 
 
         the 1099-MISC.
 
         
 
              That claimant was married and had two dependent children at 
 
         the time of the injury.
 
         
 
                             CONCLUSIONS OF LAW
 
         
 
              WHEREFORE, based upon the evidence presented and the 
 
         principles of law previously discussed the following conclusions 
 
         of law are made.
 
 
 
                             
 
                                                         
 
         
 
              That claimant sustained the burden of proof by a 
 
         preponderance of the evidence and made out a prima facie case 
 
         that an employer-employee relationship existed at the time of the 
 
         injury.
 
         
 
              That defendant did not sustain the burden of proof by a 
 
         preponderance of the evidence that claimant was an independent 
 
         contractor or even that he maintained a separate independent 
 
         business as a diesel mechanic.
 
         
 
              That claimant did sustain an injury on January,12, 1986 
 
         which arose out of and in the course of his employment with 
 
         employer.
 
         
 
              That the injury was the cause of both temporary disability 
 
         during a period of recovery and also the cause of permanent 
 
         disability.
 
         
 
              That claimant is entitled to healing period benefits from 
 
         January 12, 1986 to March 10, 1986.
 
         
 
              That claimant is entitled to 65 weeks of permanent partial 
 
         disability benefits commencing on March 10, 1986 as scheduled 
 
         member benefits.
 
         
 
              That claimant is entitled to $6,600.00 in medical expenses 
 
         and $7.20 for reasonable and necessary medical mileage.
 
         
 
              That the proper rate of weekly compensation is $333.90 per 
 
         week.
 
         
 
                                     ORDER
 
         
 
              THEREFORE, IT IS ORDERED:
 
         
 
              That defendant pay claimant eight point two six six weeks 
 
         (8.266) weeks of healing period benefits for the period January 
 
         12, 1986 to March 10, 1986 at the rate of three hundred 
 
         thirty-three and 90/100 dollars ($333.90) per week in the total 
 
         amount of two thousand seven hundred sixty and 02/100 dollars 
 
         ($2,760-02).
 
         
 
              That defendant pay to claimant 65 weeks of permanent partial 
 
         disability benefits at the rate of three hundred thirty-three and 
 
         90/100 dollars ($333.90) per week in the total amount of twenty 
 
         one thousand seven hundred three and 50/100 dollars ($21,703.50) 
 
         commencing on march 10, 1986.
 
         
 
              That all accrued benefits be paid in one lump sum.
 
         
 
              That interest will accrue pursuant to Iowa Code section 
 
         85.30.
 
         
 
              That defendant pay claimant $6,600.00 in medical expenses 
 
                                                
 
                                                         
 
         and an additional $7.20 in medical mileage.
 
         
 
              That the costs of this action are charged to defendant, the 
 
         nonprevailing party, as stipulated to by the parties.
 
         
 
              That defendant file claim activity reports as requested by 
 
         this agency pursuant to Division of Industrial Services Rule 
 
         343-3.1.
 
         
 
              Signed and filed this 14th day of January, 1988.
 
         
 
         
 
         
 
         
 
         
 
         
 
         
 
                                            WALTER R. McMANUS, JR.
 
                                            DEPUTY INDUSTRIAL COMMISSIONER
 
         
 
         Copies To:
 
         
 
         Mr. Fred Dorr
 
         Attorney at Law
 
         2100 Financial Center
 
         Des Moines, Iowa  50309
 
         
 
         Mr. Jeffrey G. Flagg
 
         Attorney at Law
 
         415 Midland Financial Building
 
         Des Moines, Iowa  50309
 
 
 
         
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                            1500; 1501; 1402.10;
 
                                            2001; 2002; 1403.30;
 
                                            1106; 1402.20; 1402.30; 
 
                                            1402.40; 1802; 1803; 3000; 
 
                                            3001; 3002; 1303;
 
                                            2301; 2902; 3300; 3700
 
                                            Filed January 14, 1988
 
                                            WALTER R. McMANUS, JR.
 
         
 
                  BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         BRYAN HAINLINE,
 
         
 
              Claimant,
 
                                                    File No. 818223
 
         vs.
 
                                                 A R B I T R A T I 0 N
 
         GLENN REED, JR., d/b/a
 
         R & R FARMS AND DISPOSAL,                  D E C I S I 0 N
 
         
 
              Employer,
 
              Defendant.
 
         
 
         
 
         1500; 1501; 1402.10
 
         
 
              Claimant was not a casual employee.
 
         
 
         2001
 
         
 
              Claimant made out a prima facie case of employer-employee 
 
         relationship.  Prima facie, prima facie case, prima facie 
 
         evidence defined from Black's Law Dictionary.
 
         
 
         2001; 1403.30
 
         
 
              Uninsured defendant failed to prove independent contractor 
 
         relationship.  Preponderance of the evidence described several 
 
         ways.
 
         
 
         1106; 1402.20; 1402.30; 1402.40; 1802; 1803
 
         
 
              Claimant sustained an injury arising out of and in the 
 
         course of when a truck engine went into high r.p.m.s, sucked his 
 
         hand into the air intake and severed portions of his right index 
 
         and middle finger.  HP, PPD, and medical benefits awarded as 
 
         stipulated.
 
         
 
         3000; 3001; 3002
 
         
 
              Claimant had a full-time job as a diesel mechanic and a 
 
         part-time job as a diesel mechanic.  Injury occurred on the 
 
         part-time job.  Held that gross earnings involved the combined 
 
         earnings of both jobs and rate computed accordingly.
 
                                                
 
                                                         
 
         
 
         1303; 2301; 2902; 3300; 3700
 
         
 
              A release of all claims which bears a signature of claimant, 
 
         which claimant said was a forgery, completed a few days after the 
 
         injury, was held ineffective to relieve defendant of liability 
 
         under the workers' compensation law.
 
 
 
         
 
         
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         BARBARA LORENZEN, surviving
 
         spouse of VERNON LEROY
 
         LORENZEN,
 
         
 
              Claimant,
 
                                                    File No. 818227
 
         vs.
 
                                                 A R B I T R A T I O N
 
         CECIL HANSEN,
 
                                                    D E C I S I O N
 
              Employer,
 
         
 
         and                                           F I L E D
 
         
 
         GREAT WEST CASUALTY COMPANY,                 MAY 9 1989
 
         
 
              Insurance Carrier,             IOWA INDUSTRIAL COMMISSIONER
 
              Defendants.
 
         
 
         
 
                                 INTRODUCTION
 
         
 
              This is a proceeding in arbitration originally brought by 
 
         the claimant, Vernon Leroy Lorenzen, now deceased, and through an 
 
         amendment, Barbara Lorenzen, was substituted for the deceased 
 
         claimant, against Cecil Hansen, employer, and Great West Casualty 
 
         Company, insurance carrier, to recover benefits as a result of an 
 
         injury occurring on April 10, 1986.  This matter came on for 
 
         hearing before the undersigned deputy industrial commissioner in 
 
         Des Moines, Iowa, on March 3, 1989.  The record consists of the 
 
         testimony of Barbara Lorenzen, surviving spouse of and 
 
         substituted claimant for deceased Vernon LeRoy Lorenzen, Cecil E. 
 
         Hansen, Royal Silver, Linda Thomas, Wanda Ambrose, and Carolyn 
 
         Slaughter; and joint exhibits 1 and 3 through 12.  Exhibit 6 is 
 
         the deposition of Richard Scott Rager.  Exhibit 12 is the 
 
         deposition of Jerome P. McAndrews.
 
         
 
                                  ISSUE
 
         
 
              Pursuant to the prehearing report, the only issue left for 
 
         resolution is whether there is insurance coverage.  Claimant 
 
         requested an attorney lien on all medical and burial benefits 
 
         that may be ordered herein.  There was no objection by 
 
         defendants.
 
         
 
                          REVIEW OF THE EVIDENCE
 
         
 
              Cecil Hansen testified that he became involved in the 
 
         trucking business in 1981 or 1982 as a side business to his 
 
         occupation as a farmer.  Hansen stated that the farm economy 
 
         diminished and he was looking for added income.  Hansen testified 
 
         that his trucking business was not his primary business.  Hansen 
 
                                                
 
                                                         
 
         indicated that he farmed 240 leased acres in 1982 and now farms 
 
         320 leased acres.  Hansen is not in.the trucking business today.
 
         
 
              Hansen testified that he first knew the deceased, Vernon 
 
         Lorenzen, in 1985 when Vernon Lorenzen began working for him.  
 
         The deceased worked until August 1985 and was fired.  Hansen 
 
         stated he hired the deceased to work for him again in March 1986.  
 
         Hansen stated that he has no records in his business and had no 
 
         formal way of record keeping.  Hansen indicated that he ran his 
 
         farming business out of his family checking account and that the 
 
         trucking income and expenses were usually, but not always, run 
 
         through a separate checking account.  Hansen testified that he 
 
         first hired drivers in 1982.  Before this time, he drove the 
 
         truck himself. Hansen stated that he contacted Hagan, Inc., a 
 
         trucking company out of Sioux City, who was interested in getting 
 
         drivers for its trucks.  Hansen indicated Hagan insisted that 
 
         Hansen get workers' compensation insurance, and that he had 
 
         contacted defendant insurance company to obtain workers' 
 
         compensation insurance effective January 5, 1982.  Hansen 
 
         indicated that he paid his workers' compensation insurance in 
 
         four installments, the first installment being paid January 5, 
 
         1982.  Hansen contended that he always paid on the installment 
 
         plan and never failed to ultimately pay an installment.  Hansen 
 
         said that his workers' compensation insurance policy, effective 
 
         March 8, 1985, was paid in $300 installments.  Hansen 
 
         acknowledged that before his March 8, 1985 policy date, he was 
 
         always notified when the policy premium was due.  Hansen stated 
 
         that the coverage premium for the period of March 8, 1985 to 
 
         March 8, 1986 was paid in full at the time of the April 10, 1986 
 
         accident.  Hansen testified that in his lease arrangement with 
 
         Hagan, Inc., he was to secure the workers' compensation coverage; 
 
         otherwise, Hagan would not continue in the arrangement with him. 
 
          Hansen indicated that he was to obtain the drivers and Hagan set 
 
         the loads and where they were to be delivered.  Hansen indicated 
 
         that he gets a percent of the load and Hagan gets a percent of 
 
         the load.  Hansen indicated that Hagan, Inc. would get a copy of 
 
         the policy so that it would know there was workers' compensation 
 
         coverage, as required by Hagan. Hansen emphasized that whenever 
 
         his policy came up for review for a renewal, he would always 
 
         receive a notice of the premium due. Hansen acknowledged that he 
 
         had not paid the July 1985 installment and defendant insurance 
 
         carrier took action to cancel the policy by a notice of 
 
         cancellation to Hansen.  Hansen indicated that he received the 
 
         insurance premium notice on June 21, 1985 and did not pay it 
 
         until July 29, 1985.  Hansen indicated the insurance carrier 
 
         reinstated the policy.  Hansen testified that he received a 
 
         notice in August 1985 of a premium due on September 8, 1985. 
 
         Hansen testified that he received another notice dated October 
 
         17, 1985, indicating that if the premium wasn't paid by October 
 
         17, 1985, a notice would be sent and the policy would be 
 
         cancelled. Hansen stated that he then received a notice from 
 
         defendant insurance carrier on October 29, 1985 that his 
 
         insurance was reinstated and he had coverage in full.  Hansen 
 
         emphasized that he never received another notice of cancellation 
 
         from defendant insurance carrier to his knowledge.  Hansen stated 
 
                                                
 
                                                         
 
         that in December 1985, he changed companies for whom he was 
 
         hauling freight with his trucks, from Hagan, Inc., Sioux City, to 
 
         another lessor, Hawkeye Refrigeration in Cedar Rapids.  Hansen 
 
         indicated that his conversation with Hawkeye Refrigeration was 
 
         with a Mr. Royal Silver, and Hawkeye Refrigeration also made it 
 
         mandatory for Hansen to have workers' compensation for his 
 
         drivers.
 
         
 
              Hansen indicated he first heard of the April 10, 1986 
 
         accident involving deceased Lorenzen when Mr. Silver, of Hawkeye 
 
         Refrigeration, called him on that date.  Hansen indicated that 
 
         Silver called him again and said the Great West Insurance policy 
 
         expired March 8, 1986.  Hansen indicated he did not realize it 
 
         expired and said he would call to see what the problem was.  
 
         Hansen testified that he thought there was coverage and indicated 
 
         he wasn't notified of a cancellation.  Hansen testified he then 
 
         called Wanda Ambrose on April 10 or 11, 1986, at Great West 
 
         Casualty Company, who said the insurance was not in existence as 
 
         it expired March 8, 1986, but that it can be reinstated.  Hansen 
 
         stated that Wanda Ambrose told him that owner-operator policies 
 
         were not being renewed.  Hansen testified he told Ambrose on April 
 
         10 or 11, 1986 that he did not get a notice and indicated that 
 
         Wanda Ambrose said she would bind coverage for sixty days until 
 
         May 8, 1986, as she agreed that she did not give Hansen a notice.  
 
         Hansen indicated that Wanda Ambrose told him the reason he did not 
 
         get the notice of the owner-operators being terminated as to their 
 
         insurance renewal was that Hansen's name was not in the computer.  
 
         Hansen testified that he then sent his $300 premium to the same 
 
         place he had sent it before, namely, Joe Morten & Son, Sioux City, 
 
         Iowa, insurance brokers.  Hansen acknowledged he did not wait for 
 
         Wanda Ambrose to call him back after his conversation with her as 
 
         to what the amount the premium would be.  Hansen indicated that 
 
         installments on his prior policy were $300 and that is why he sent 
 
         that amount.  Hansen testified that he has personal, farm and 
 
         truck insurance policies expiring at different times and that 
 
         unless he receives a notice of a premium due, he would not know 
 
         when to pay the premiums.  Hansen indicated he did not have a 
 
         bookkeeper or accountant and that he relied upon getting the 
 
         premium notices.  Hansen emphasized that Great West Casualty 
 
         always sent him a premium notice or notice of cancellation when 
 
         the policy was going to be cancelled from 1982 into 1985.  Hansen 
 
         indicated that during this period, he always maintained his 
 
         insurance when he received a premium or cancellation notice.
 
         
 
              Hansen testified that when he called Royal Silver, of 
 
         Hawkeye Refrigeration, he had indicated to Mr. Silver that he had 
 
         told Wanda Ambrose to call Mr. Silver.  Hansen said that he was 
 
         told by Wanda Ambrose that she would call Mr. Silver.  Hansen 
 
         stated that Mr. Silver indicated to him that Wanda Ambrose called 
 
         Silver's secretary with the required information.  Hansen 
 
         admitted that he did not tell Wanda Ambrose about the April 10, 
 
         1986 accident when he called her.  Hansen also indicated that he 
 
         did not know if Wanda knew about the accident.
 
         
 
              Royal Silver testified that he was vice president of safety 
 
                                                
 
                                                         
 
         and maintenance at Hawkeye Refrigeration and that he had an 
 
         independent owner-operator contract with Cecil Hansen.  Silver 
 
         indicated that the agreement provided that Hansen was required to 
 
         have workers' compensation coverage and required proof of 
 
         insurance coverage in their file.  Silver indicated that they 
 
         review their file every six months or rely on owner-operators to 
 
         keep their coverage and that coverage could expire without Silver 
 
         knowing about it.
 
         
 
              On April 10, 1986, Silver indicated that a dispatcher told 
 
         him that a Cecil Hansen truck had been involved in an accident in 
 
         California.  Silver indicated that he had called Kern Medical 
 
         Center and learned nothing the first time as to driver Lorenzen's 
 
         condition.  Silver then indicated he called Cecil Hansen and 
 
         notified him of the accident.  Silver indicated that Hansen did 
 
         not know of the accident prior to that time.  After this first 
 
         call, Silver indicated there was no conversation concerning 
 
         coverage or lack of coverage.  Silver testified that in the 
 
         evening he called Kern Medical on the condition of the driver and 
 
         indicated no coverage problem to his knowledge.  Silver then 
 
         testified that Kern Medical Center then called him inquiring as 
 
         to who was responsible for the medical care.  Silver indicated he 
 
         had no reason at that time to pull the file or think there was no 
 
         coverage.  Silver then indicated that he checked his file and 
 
         noticed his records indicated that the coverage expired.  He then 
 
 
 
                          
 
                                                         
 
         called Hansen as to the problem.  Silver indicated that Hansen 
 
         told him he was working on something.  Silver indicated that his 
 
         secretary, Linda Thomas, told him that she had a conversation 
 
         with Great West Casualty through a Wanda Ambrose on April 11, 
 
         1986, indicating there would be coverage because of a 
 
         technicality of not getting a notice letter out to Mr. Hansen, 
 
         that there would be coverage until May 8, 1986, and that they 
 
         would bind coverage. Silver indicated that after receiving this 
 
         message, he took no further action as he indicated his secretary, 
 
         Linda Thomas, is very competent and normally makes a record of 
 
         those type of conversations.
 
         
 
              Linda Thomas testified that she was the secretary for Royal 
 
         Silvers, at Hawkeye Refrigeration, for six years and has been in 
 
         the transportation business about twelve years.  Her duties are 
 
         answering the phone, reading applications, typing letters, and 
 
         general office duties.  She stated that when a dispatcher sends 
 
         calls to Mr. Silver, she keeps a special notebook of the 
 
         messages.
 
         
 
              Thomas testified that she received a call on April 11, 1986 
 
         from Wanda Ambrose, who was with.Great West Casualty Company, and 
 
         stated that Wanda told her she would bind coverage from March 8, 
 
         1986 to May 8, 1986.  Thomas indicated that Wanda told her that 
 
         Hansen did not get a notice sent to him so she agreed to bind 
 
         coverage.for the above dates.  Thomas testified Wanda also told 
 
         her that if Hansen found insurance before May 8, 1986, Great West 
 
         Casualty Company's policies would not be effective after his new 
 
         policy started, but that Great West would provide coverage until 
 
         May 8, 1986.  Thomas also referred to her pages in exhibit 9 in 
 
         which she indicated were the notes transcribed from her shorthand 
 
         made on the date of the call on April 11, 1986.  Thomas testified 
 
         on the date of this hearing she could not recall if Wanda Ambrose 
 
         knew of the accident but in her deposition taken closer to the 
 
         time of the events, namely, December 4, 1987, she testified as 
 
         follows:
 
         
 
              Q.  Okay.  Do you recall -- and I realize we're almost two 
 
              years down the road -- when you talked to Wanda Ambrose on 
 
              that occasion, no matter whether you placed the call or she 
 
              placed the call, did the two of you discuss the accident?
 
         
 
              A.  Yes.
 
         
 
              Q.  Okay.  She was aware of the accident when you talked?
 
         
 
              A.  I believe so.
 
         
 
         (Thomas Deposition, Joint Exhibit 9, pages 15-16)
 
         
 
              Wanda Ambrose testified that she has been employed by Great 
 
         West Casualty Company and Joe Morten & Son for 28 years.  She 
 
         indicated that Great West Casualty Company is the insurance 
 
         company and Joe Morten & Son is the agency that writes Great West 
 
         Casualty Company's policies.  Ambrose testified that she is now 
 
                                                
 
                                                         
 
         the manager of the underwriting support services and that she 
 
         accepts the business and risks for underwriting.  Ambrose 
 
         testified that she has authority to act for both the company and 
 
         the Morten agency and that she has authority to bind the 
 
         company's existing policies and new policies.
 
         
 
              Ambrose testified that she had never met Cecil Hansen but 
 
         that she was familiar with the account in January 1982 when the 
 
         policy was first written.  Ambrose testified as to the history of 
 
         Cecil Hansen's account and indicated problems throughout its 
 
         history, such as Hansen not being timely with his insurance 
 
         premium payments and notices of cancellation being sent out and 
 
         then the policy being reinstated on more than one occasion. 
 
         Ambrose also indicated that notices of premium due would be sent 
 
         out and that if, in fact, a policy was going to be cancelled a 
 
         notice of cancellation also would be sent out.  Ambrose explained 
 
         that the reason the policies did not renew on the January 5, 1982 
 
         date as the original policy was because Hansen would not renew the 
 
         policies yearly due to failure to pay the premium and that he then 
 
         would call to reinstate the policies and the policies then would 
 
         be effective on the date of the call.  Ambrose testified that the 
 
         executive committee decided in 1986 that they would not renew or 
 
         write any more owner-operator workers' compensation policies and 
 
         would let- the existing policies run out.  Ambrose indicated that 
 
         they had approximately 200 of these owner-operator workers' 
 
         compensation policies and all of these owner-operators received a 
 
         notice that their policies would not be renewed except for Cecil 
 
         Hansen.  Ambrose testified that the reason Cecil Hansen was the 
 
         only one who did not get a notice that his policy would not be 
 
         renewed was because sometime in October 1985 Hansen was sent a 
 
         notice of cancellation of his policy and this apparently had 
 
         triggered his name being removed from the computer.  Ambrose 
 
         acknowledged that the policy was, in fact, reinstated in October 
 
         1985 and that Hansen had coverage under the reinstated policy 
 
         until March 8, 1986.  Ambrose acknowledged the company's error in 
 
         its failure to send the nonrenewal notice to Mr. Hansen.  Ambrose 
 
         admitted that it was the insurance company's policy to send a 
 
         letter or notice of premium due, cancellations and nonrenewal of 
 
         policies.  Ambrose contended she did not tell Hansen she would 
 
         bind coverage or that she had authority to bind coverage or that 
 
         she may bind coverage.  Ambrose acknowledged that she talked to a 
 
         Mr. Richard Rager, who was vice president of claims and a lawyer 
 
         with her same employer, but she denied Mr. Rager's comment in his 
 
         deposition that she had bound coverage for Mr. Hansen.  Ambrose 
 
         also indicated that a Mr. Jerome P. McAndrews' memo of April 21, 
 
         1986 was not correct when it indicated, "Wanda did, without 
 
         knowing there was an accident or problems with coverage, indicate 
 
         that she may extend coverage if she did not send out this 
 
         notification."  Ambrose testified that Mr. Rager called Mr. 
 
         Hansen. She indicated that Mr. Rager did not tell Hansen that she 
 
         had bound coverage.  She emphasized that Mr. Rager must have 
 
         misunderstood her.  Ambrose also acknowledged that she heard Linda 
 
         Thomas' testimony at the hearing and indicated that Thomas was not 
 
         telling the truth as to the conversation she had with her.  
 
         Ambrose acknowledged, on page 5, sub part D, entitled 
 
                                                
 
                                                         
 
         Cancellation, that the policy indicates:  "We must mail or deliver 
 
         to you not less than ten days advance written notice stating when 
 
         the cancellation is to take effect.  Mailing that notice to you at 
 
         your mailing address shown in item 1 of the Information Page will 
 
         be sufficient to prove notice.  The policy period will end on the 
 
         day and hour stated in the cancellation notice."  Ambrose 
 
         contended that if Hansen had paid the September 1985 premium 
 
         installment on time, his name would have been retained in the 
 
         computer.  Since the payment was not timely, this balled up the 
 
         computer.  Ambrose indicated that when a bill is not paid it goes 
 
         to the underwriting department to collect the money, and in 
 
         Hansen's case a cancellation notice was sent out in October 1985.  
 
         Ambrose stated that in some cases, a second premium notice is sent 
 
         before the ultimate notice of cancellation, but in the case of 
 
         Hansen the cancellation notice was sent in October 1985 after the 
 
         first premium notice was not paid. Ambrose acknowledged that Cecil 
 
         Hansen's policy never had been cancelled but that it had lapsed 
 
         more than once.  Ambrose contended that the policy requires no 
 
         notice of expiration but only a notice of cancellation, but that 
 
         they do, as their practice, send a notice of premium due and 
 
         acknowledged that their insurance company usually sent a notice of 
 
         a policy expiring.  Ambrose acknowledged that any time in the past 
 
         when Hansen got a notice as to cancellation of his policy, he 
 
         responded by sending a check.
 
         
 
              Barbara Lorenzen testified that she is the surviving spouse 
 
         of the deceased, Vernon Lorenzen, and that at the time of the 
 
         accident there were three dependent children at home.  Mrs. 
 
         Lorenzen testified that truck driving was her husband's lifelong 
 
         occupation and that he would have been 51 on the day of the 
 
         hearing.  Lorenzen testified that her husband was transferred 
 
         from the California hospital to Mayo Clinic, in Rochester, and 
 
         was there from May 16 to July 1986, at which time he then was 
 
         placed in a skilled nursing home facility and died there on July 
 
         27, 1986.
 
         
 
              Carolyn Slaughter testified that she is an accountant in the 
 
         Joe Morten & Son, Inc. insurance firm and is familiar with the 
 
         check procedure with the Morten agency.  She acknowledged that a 
 
         check from Cecil Hansen was applied to the account and that when 
 
         a check is received they make no determination whether the policy 
 
         is cancelled or not.  Ms. Slaughter indicated that if the record 
 
         shows there is no balance owed they make a call, otherwise, if it 
 
         looks like there is a balance owed, they deposit the check in the 
 
         bank.  Slaughter contended that on the day this check was 
 
         received Wanda Ambrose was not available as she was out of the 
 
         office. Slaughter indicated that a company check was ultimately 
 
         sent to Hansen returning his $300 premium.  Slaughter contended 
 
         that they receive 70 to 100 checks per day at the Morten agency 
 
         and that they do not care as to the status of the insurance at 
 
         the time they receive the check.
 
         
 
              Richard Scott Rager testified in a deposition on February 3, 
 
         1988, that in March 1986 he was promoted to executive vice 
 
         president of claims for defendant insurance carrier and it was 
 
                                                
 
                                                         
 
         his duty to handle all the workers' compensation and to be 
 
         responsible for the total operation of the claims department, 
 
         both functionally and otherwise.  Rager testified that on or 
 
         around April 10th or 11th he received a call from Wanda Ambrose 
 
         asking that he visit with her about a problem misunderstanding.  
 
         He then went to Ambrose's office.  Rager indicated that Ambrose 
 
         told him that
 
         
 
              she had a conversation with an individual later identified 
 
              as, I believe, Mr. Hansen, who had called her up and 
 
              requested a renewal or extension of his work comp coverages 
 
              and that she had agreed in -- to extend those coverages for 
 
              roughly 60 days, as I recall, and that she felt there was a 
 
              misunderstanding....
 
         
 
         (Rager Dep., Jt. Ex. 6; p. 5)
 
         
 
              Rager later testified:  "Mrs. Ambrose indicated to me that 
 
         she had made a representation with respect to binding coverage as 
 
         to what period of time was in conflict."  (Rager Dep., Jt. Ex. 6, 
 
         p. 11)  Mr. Rager indicated that if Mr. Hansen wanted the 
 
         coverage from the date of his call from April 10th or 11th, or 60 
 
         days, he would have honored Mrs. Ambrose's extension.  Rager 
 
         indicated that he would not have okayed it if Mr. Hansen had 
 
         wanted it to date prior to his call back to March 8, 1986 and 60 
 
         days thereafter.
 
         
 
              Jerome P. McAndrews.testified through a deposition on March 
 
         1, 1989 that in April 1986, he was claims manager for liability 
 
         and workers' compensation claims for defendant insurance carrier 
 
         and had been with the company for approximately fifteen years 
 
         until May 1988, when he became vice president of claims for 
 
         Universal Underwriters Insurance Company.  McAndrews indicated 
 
 
 
 
 
                          
 
                                                         
 
         that his work differed from an underwriter's work.  He stated 
 
         that an underwriter basically is involved with determining or 
 
         applying rates, binding coverage, and becoming involved in 
 
         issuance of policies.  He indicated that claims pretty well 
 
         sticks to interpreting the policy and its language, verifying 
 
         coverage, investigating for liability determination, evaluating 
 
         damages and then even paying or denying claims.  McAndrews 
 
         testified that he first became involved in the claim involving 
 
         Vernon Lorenzen and Cecil Hansen when someone came to him 
 
         indicating that someone from a hospital in California was on the 
 
         telephone and needed some information immediately.  He thought 
 
         this took place on April 16, 1986.  McAndrews indicated that he 
 
         told the hospital that he had to check within the office and 
 
         would call the hospital back. McAndrews indicated that he 
 
         inquired at the hospital and understood that Scott Rager and 
 
         Wanda Ambrose had been working on this a few days earlier and had 
 
         some knowledge of the situation. McAndrews stated that he then 
 
         talked to Wanda Ambrose, who acknowledged her conversation with 
 
         Hansen, indicating that had they not sent cancellation out to 
 
         Hansen and under the policy would give Hansen 60 days to find 
 
         insurance elsewhere.  McAndrews indicated that if there was a 
 
         binding of a contract, it would bind from the date of the phone 
 
         contact and would not be retroactive back to March 8, 1986.
 
         
 
                              LAW AND ANALYSIS
 
         
 
              "If a party to a contract or transaction induces another to 
 
         act upon the reasonable belief that he will waive certain rights 
 
         or terms, he will be estopped to insist upon such rights to the 
 
         injury of him who is mislead thereby."  Blackman v. Carey, 192 
 
         Iowa 548, 552, 185 N.W. 87, 89 (1921)
 
         
 
                   "'An estoppel is based upon the idea that one who has 
 
              made a certain representation or taken a certain position, 
 
              should not thereafter be permitted to change his position to 
 
              the prejudice of one who has relied thereon."
 
         
 
                   ....
 
         
 
                   "'Equitable estoppel or estoppel by misrepresentation 
 
              is the effect of the voluntary conduct of a person whereby 
 
              he is precluded, both at law and in equity, from asserting 
 
              rights against another person relying on such conduct; and 
 
              it arises where a person, by his acts, representations, or 
 
              admissions, or even by his silence when it is his duty to 
 
              speak, intentionally or through culpable negligence induces 
 
              another to believe that certain facts exist, and the other 
 
              person rightfully relies and acts on such belief, and will 
 
              be prejudiced if the former is permitted to deny the 
 
              existence of such facts."'
 
         
 
         Laverty v. Hawkeye Security Ins. Co., 258 Iowa 717, 726, 140 
 
         N.W.2d 83 (1966); Sanborn v. Maryland Casualty Company, 255 Iowa 
 
         1319, 125 N.W.2d 758, 760 (1964).
 
         
 
                                                
 
                                                         
 
              These principles have been applied in cases involving 
 
         attempts to forfeit insurance policies for nonpayment of premiums 
 
         where a company had been accustomed of giving notice of due date 
 
         or of taking payment thereafter.
 
         
 
              Every law should be reasonable, and it is reasonable only 
 
              when it is adapted to human conduct.  Courts should not so 
 
              administer the law as to require of individuals a course of 
 
              conduct which, to a majority of reasonable and right-minded 
 
              men, is unusual and unnatural.  Indeed, it would be 
 
              impossible long to maintain,a law which is at variance with 
 
              the judgment and sense of justice of a majority of those 
 
              upon whom it operates.
 
         
 
                   Now it must strike every reasonable mind, that a 
 
              majority of ordinarily prudent persons, who had been 
 
              customarily notified of the time when premiums upon their 
 
              policies became due, and who had received no notice of an 
 
              intention to abandon the customary course, would, in a 
 
              particular case expect and await a like notice.  And if such 
 
              is the reasonable and natural result of the previous 
 
              dealings.of the company, it must govern its future conduct 
 
              so as to accord with the reasonable expectation thus 
 
              created.
 
         
 
                   That is, having furnished a policy holder reasonable 
 
              ground for expecting that he will be advised when his 
 
              premium becomes due, the company must continue to give such 
 
              notice until it furnishes the assured notice that he need no 
 
              longer expect it.  Any other construction would make the law 
 
              a trap to ensnare the unwary.
 
         
 
                   For a person thus accustomed to notice and, not 
 
              accustomed to charge his memory with the day when his 
 
              premium became due, would be very likely, in the absence of 
 
              notice to allow the day for making payment to pass by, in 
 
              utter forgetfulness of the premium....[Citations omitted.]
 
         
 
         Mayer v. The Mutual Life Ins. Co. of Chicago, 38 Iowa 304, 309-10 
 
         (1874) (emphasis added).
 
         
 
                   By the weight of authority and by what is the more 
 
              equitable view, the necessity for giving notice of the 
 
              amount and date on which a premium is due may be based upon 
 
              the practice or usage of the particular insurer.  
 
              Accordingly, when an insurer uniformly follows the practice 
 
              of giving notice of payments for such a length of time as 
 
              leads those insured to believe notice will be given, it 
 
              cannot declare a forfeiture without giving notice, or 
 
              without previously advising the persons who have relied upon 
 
              receiving notice that the custom will be or has been 
 
              discontinued, and consequently that a payment within a 
 
              reasonable time after the premium becomes due is sufficient, 
 
              where the custom has been to send notice, and none is 
 
              given.
 
                                                
 
                                                         
 
         
 
         Couch On Insurance 2d section 30.128 (Rev. ed. 1984) (footnotes 
 
         omitted) (emphasis added).
 
         
 
              The Law of Workmen's Compensation, emphasizes that workers' 
 
         compensation insurance -- by its very nature -- takes on a 
 
         semi-public nature which often distinguishes issues arising under 
 
         a workers' compensation policy from those arising under a 
 
         different form of insurance.
 
         
 
                   The distinctive feature of compensation insurance is 
 
              that, although it arises from a contract between the 
 
              employer and the carrier, it creates a sort of insured 
 
              status in the employee which comes to have virtually an 
 
              independent existence.  If compensation insurance did no 
 
              more than protect the employer from any liability incurred 
 
              by him under compensation law... all questions of the 
 
              insurer's relation to the liability would be a simple 
 
              application of the general law of insurance....Compensation 
 
              insurance, however, has come to be an integral part of the 
 
              compensation system; and the ultimate object of that system 
 
              is the assurance of appropriate benefits to employees.  The 
 
              insurance carrier therefore stands in two relations:  to the 
 
              employer, to protect him from the burden of his compensation 
 
              liability, and to the employee, to ensure that he gets the 
 
              benefits called for by the statute.
 
         
 
         3 Larson, Workmen's Compensation Law sec. 92.21 (footnotes 
 
         omitted) (emphasis added).
 
         
 
              The only issue in this case is whether there is insurance 
 
         coverage or not.  Vernon Lorenzen, the deceased, was a driver for 
 
         Cecil Hansen, an independent owner-operator of the truck which 
 
         was involved in an accident on April 10, 1986.  In this accident, 
 
         Vernon Lorenzen was seriously injured and ultimately died on July 
 
         29, 1986 and is referred to hereafter as,the deceased.  The 
 
         deceased's surviving spouse, Barbara Lorenzen, has been 
 
         substituted as the claimant herein.
 
         
 
              The testimony is undisputed that Cecil Hansen had insurance 
 
         coverage with Great West Casualty Company beginning the first 
 
         effective date of July 5, 1982.  Hansen had difficulties paying 
 
         the insurance premiums and had arranged to pay in installments.  
 
         As a result of his failure or lateness in paying during the course 
 
         of his insurance coverage, he received cancellation notices.  
 
         Hansen always reinstated his policies as he always ultimately paid 
 
         the premium before the effective cancellation date on the notice.  
 
         The insurance carrier always allowed this reinstatement by Hansen.  
 
         If an insured failed to timely pay the premium notice which was 
 
         sent prior to the policy expiration date, indicating the effective 
 
         date and amount of the next premium due, the insurance carrier 
 
         would send out usually a second notice of delinquent premium due 
 
         payment and then if not paid, a notice of cancellation was sent 
 
         out.  In some instances a third notice before the cancellation 
 
         notice, was sent.  This latter procedure was usually followed with 
 
                                                
 
                                                         
 
         regard to Cecil Hansen except apparently on the last premium due 
 
         in September 1985 that Hansen failed to timely pay, the insurance 
 
         carrier sent as its second notice, the notice that the policy 
 
         would be cancelled if not paid by October 17, 1985.  Hansen paid 
 
         and reinstated his policy in or around October 1985 and therefore 
 
         his policy that had the effective date of March 8, 1985 to March 
 
         8, 1986 was again in effect.
 
         
 
              Hansen testified that he had a farming business in addition 
 
         to his sideline business of trucking and that he or his wife kept 
 
         their records and did not rely on outside help.  Hansen indicated 
 
         that he relied upon the premium notices or cancellation notices 
 
         to notify him of when policy premiums were due and, likewise, if 
 
         there was going to be a cancellation of a policy.  He had relied 
 
         upon this as he had other policies for which he would receive 
 
         notices and this was his way of determining which policy was due. 
 
         It is undisputed that this was the procedure the insurance 
 
         companies also used to notify their customers of premiums due or 
 
         whether or not a policy would not be renewed or cancelled or was 
 
         expiring.
 
         
 
              Wanda Ambrose had been with Great West Casualty Company and 
 
         Joe Morten & Son, insurance broker, for approximately 28 years 
 
         and had worked herself up in the company whereby she was an 
 
         authorized representative able to bind a company to renewal 
 
         policies and new policies and, also, to determine as an 
 
         underwriter the risks to be assumed.  Ambrose testified that 
 
         sometime in 1986 the insurance company decided not to renew or 
 
         write any more owner-operator workers' compensation insurance 
 
         policies and, therefore, they were going to let the current 
 
         policies run out and not renew them. Ambrose indicated that 
 
         approximately 200 owner-operators were insured and that everyone 
 
         was sent a notice except Cecil Hansen. Ambrose's only explanation 
 
 
 
                              
 
                                                         
 
         of why Hansen had not received a notice was that in September or 
 
         October 1985, when a notice of cancellation of his policy was 
 
         sent to him, this took.his name completely out of the company's 
 
         computers and there was no record of him and no notice was sent 
 
         to him.  Ambrose acknowledged that this was an error on behalf of 
 
         the insurance carrier.  It is undisputed that Hansen did not, in 
 
         fact, get a notice that his insurance policy was not going to be 
 
         renewed.  This mistake on behalf of the insurance carrier gave 
 
         Hansen no opportunity to find other insurance so that he would, 
 
         in fact, have coverage when his policy would expire on the 
 
         expiration date of March 8, 1986.  It is obvious from the past 
 
         company procedure and Hansen's testimony that these notices were 
 
         sent and were always relied upon by Hansen.
 
         
 
              Notice of premiums due, notice of cancellation, or notice of 
 
         renewal or nonrenewal, or policy expiration are beneficial to 
 
         both the insured and the insurance carrier.  It is the standard 
 
         practice of an insurance industry, and is a means of the 
 
         insurance company continuing a policy, accepting money and 
 
         premiums to enhance its profit picture.  Likewise, notices of 
 
         cancellation or nonrenewals on behalf of the company also are 
 
         sent with a profit or loss motive in mind.  From the insured's 
 
         standpoint, it is important that the insured knows he has 
 
         coverage or that he won't have coverage so that he can obtain 
 
         insurance within a reasonable time after receiving the notice or 
 
         else change his business procedures if he is unable to get 
 
         insurance.  Likewise, receiving premium notices enables the 
 
         insured to know the amount of the premium and a reminder of the 
 
         effective date and any other changes that might have occurred 
 
         from the last renewal.  It is not unreasonable for an insured to 
 
         expect notices if there is a change in an insurance condition.  
 
         The insurance carrier contends that they have no obligation to do 
 
         so.  The fact is they notified the insured every time there was a 
 
         premium due or that they desired to cancel a policy but, in fact, 
 
         the one time that is of major importance in this matter due to a 
 
         company error, they failed to notify the insured, Hansen.  Based 
 
         on the history of the employer and insured in their insurance 
 
         dealings, had the insurance company not made their error, it is 
 
         reasonable to believe that Hansen would have had coverage with 
 
         someone, if not the defendant insurance company, on April 10, 
 
         1986.  There is no excusable excuse for Hansen being the only one 
 
         out of a maximum of 200 insureds that did not get a notice of 
 
         nonrenewal of his policy.
 
         
 
              Knowledge of an accident did not change the facts of no 
 
         notice.  It is obvious from the testimony of the insurance 
 
         carrier that this would have changed Wanda Ambrose's 
 
         interpretation of her understanding of what she would have done 
 
         had she had knowledge of the accident on April 10 and 11, 1986.  
 
         Wanda Ambrose contends that she did not bind coverage in her 
 
         conversation with Cecil Hansen on April 10 or 11, 1986 and denied 
 
         that she indicated to anyone else that she had bound coverage 
 
         until May 8, 1986 for Cecil Hansen.  This testimony was contrary 
 
         to not only the testimony of Mr. Hansen but also the testimony of 
 
         Royal Silver, Linda Thomas, and Wanda Ambrose's coworkers, 
 
                                                
 
                                                         
 
         Richard Rager and Jerome McAndrews.  Ambrose contends that they 
 
         misunderstood her or that they are incorrect.  Ambrose is not a 
 
         credible witness.
 
         
 
              Assuming Wanda Ambrose did not know of the accident at the 
 
         time she talked to Cecil Hansen, which assumption the undersigned 
 
         believes to be true even though Linda Thomas indicated in her 
 
         deposition testimony that Wanda Ambrose may have known about the 
 
         accident at the time she talked with her on April 11, 1986. 
 
         Ambrose's lack of knowledge of the accident does not change the 
 
         facts of no notice to Mr. Hansen.  It is obvious the insurance 
 
         company would have logically taken a different position of no 
 
         insurance coverage if they had known for sure of the accident.  I 
 
         believe Wanda Ambrose gave her judgment as to what was correct 
 
         based on the fact that neither she nor her company had given any 
 
         notice to Mr. Hansen, namely, that he was entitled to notice and 
 
         not having notice.  Hansen should be entitled to coverage and, 
 
         therefore, she was willing to bind coverage for sixty days from 
 
         March 8, 1986 to May 8, 1986.  The undersigned believes Mr. 
 
         Hansen did not, in fact, tell Wanda Ambrose about the accident.  
 
         In fact, he did not know the particulars.  It would be obvious 
 
         that had he mentioned the accident to Wanda Ambrose he would not 
 
         have gotten a forthright answer as to why he did not get notice 
 
         of cancellation to which he was entitled and to which Wanda 
 
         Ambrose obviously thought he was entitled until apparently she 
 
         later found out about an accident.  I believe this knowledge of 
 
         the action does not change the fact that Mr. Hansen could 
 
         reasonably rely upon a notice from the insurance company and 
 
         did.not, in fact, receive it and should have had coverage.  It is 
 
         a coincidence that this lack of coverage and lack of notice came 
 
         up at this particular time on April 10 or 11, 1986.  There is no 
 
         logical explanation why Mr. Hansen was singled out as one of all 
 
         of the insurance carrier's owner-operator insureds out of 
 
         approximately 200 people as to not getting a notice other than 
 
         that the company made an error.  This error should not be 
 
         attributed to Mr. Hansen and particularly not to claimant, who is 
 
         a third party beneficiary, relying upon the insurance coverage.  
 
         The defendant insurance carrier's past actions and their normal 
 
         recognized procedure of the insurance carrier causes them to be 
 
         estopped from now claiming no coverage.
 
         
 
              The Mayer case and its subsequent progeny of cases support 
 
         the conclusion that there was insurance in existence on April 10, 
 
         1986.  The undersigned believes these cases are the law based on 
 
         their applicability to facts herein.  If there is doubt on the 
 
         status of Iowa law, or what it should be, the undersigned deputy 
 
         believes Iowa should follow the majority weight of authority and 
 
         also incorporate Larson's applicability to this law where it 
 
         applies to workers' compensation insurance.  Also, the two 
 
         defendants argue facts and their applicability to the law.  It is 
 
         undisputed that the employee was in no way responsible for any 
 
         negligence, errors or omissions about which defendants argue.  
 
         The undersigned emphasizes that the reliance of the 
 
         representation for which I believe the employer and claimant can 
 
         rely is not only the representation as made on April 10 or 
 
                                                
 
                                                         
 
         11,.but the actions of the insurance carrier prior to that time 
 
         in its course of dealing with defendant employer.  Those comments 
 
         made on April 10 or 11, 1986 by a representative of defendant 
 
         insurance carrier only reaffirms and supports the course of 
 
         action previously taken.
 
         
 
              The greater weight of evidence and the applicable law shows 
 
         that there was, in fact, workers' compensation coverage in force 
 
         on April 10, 1986 and that the claimant is entitled to the 
 
         benefits that flow from the policy in question.
 
         
 
                                FINDINGS OF FACT
 
         
 
              WHEREFORE, it is found:
 
         
 
              1.  Vernon Lorenzen was an employee of Cecil Hansen and died 
 
         July 27, 1986 as a result of an accident on April 10, 1986 while 
 
         employed by Cecil Hansen.
 
         
 
              2.  Barbara Lorenzen is the surviving spouse of Vernon 
 
         Lorenzen and the deceased, Vernon Lorenzen, left three dependent 
 
         children who are entirely dependent on the earnings of the 
 
         deceased.
 
         
 
              3.  Barbara Lorenzen has not remarried.
 
         
 
              4.  Wanda Ambrose, an authorized employee of Great West 
 
         Casualty Company, had the authority to bind, and did bind, 
 
         insurance coverage on behalf of Great West Casualty for the 
 
         insured, Cecil Hansen, on April 10 or 11, 1986 for insurance 
 
         effective March 8, 1986 to May 8, 1986.
 
         
 
              5.  There was effective insurance coverage through defendant 
 
         insurer for Cecil Hansen on the day of the accident April 10, 
 
         1986.
 
         
 
              6.  Defendant insurance company established a pattern of 
 
         doing business with defendant employer as to sending notice of 
 
         premium due, notice of cancellation, or expiration of employer's 
 
         insurance policy upon which the employer had a right to rely.
 
         
 
              7.  Defendant insurance carrier did not send defendant 
 
         employer a notice of premium due, or cancellation of policy, or 
 
         notice of nonrenewal of the workers' compensation policy with the 
 
         effective date or nonrenewal date of March 8, 1986 to March 8, 
 
         1987, because of an error of defendant insurance carrier 
 
         resulting in the employer's name being eliminated from the 
 
         insurance company's computer.
 
         
 
              8.  Defendant insurance carrier notified approximately 199 
 
         out of 200 other owner-operators insured under a special workers' 
 
         compensation coverage program in October 1985 that their policies 
 
         would not be renewed as the program was being dropped and 
 
         defendant employer was the only one that was not similarly 
 
         notified due to defendant insurance carrier's error.
 
                                                
 
                                                         
 
         
 
              9.  Defendant employer Cecil Hansen had a right to rely upon 
 
         and to receive notice of nonrenewal of his workers' compensation 
 
         coverage prior to the March 8, 1986 policy expiration so as to 
 
         give him an opportunity to obtain other coverage.
 
         
 
              10.  As a matter of public policy and the intent of the 
 
         workers' compensation law, an employee has an interest as a third 
 
         party beneficiary in the employer and insurance carrier's 
 
         workers' compensation agreement and actions between them 
 
         effecting coverage.
 
         
 
              11.  Wanda Ambrose is not a credible witness.
 
         
 
              12.  That decedent's healing period began April 11, 1986 to 
 
         and including July 27, 1986, to which benefits claimant is 
 
         entitled.
 
         
 
                           CONCLUSIONS OF LAW
 
         
 
              THEREFORE, it is ordered:
 
         
 
              Cecil Hansen had insurance coverage on April 10, 1986.
 
         
 
              Vernon Lorenzen was injured on April 10, 1986 and died July 
 
         27, 1986, which death arose out of and in the course of his 
 
         employment with Cecil Hansen, and which work-related accident 
 
         caused the death of Vernon Lorenzen.
 
         
 
              Wanda Ambrose bound the Great West Casualty Company for 
 
         insurance coverage on Cecil Hansen on April 10 or 11, 1986 for 
 
         coverage effective March 8, 1986 to May 8, 1986.
 
         
 
                           
 
                                                         
 
              Barbara Lorenzen is the surviving spouse of Vernon Lorenzen, 
 
         deceased, and has not remarried.
 
         
 
              Vernon Lorenzen, the deceased, left three dependent children 
 
         who were entirely dependent upon Vernon Lorenzen's earnings
 
         
 
              Claimant is entitled to healing period benefits beginning 
 
         April 11, 1986 to and including July 27, 1986 at the rate of 
 
         $337.33 per week.
 
                                       ORDER
 
         
 
              THEREFORE, it is ordered:
 
         
 
              That claimant is entitled to fifteen and three-sevenths (15 
 
         3/7) weeks of healing period benefits at the rate of three 
 
         hundred thirty-seven and 33/100 dollars ($337.33) per week from 
 
         period of April 11, 1986 to and including July 27, 1986.
 
         
 
              That defendants shall pay to Barbara Lorenzen, the surviving 
 
         spouse, three hundred thirty-seven and 33/100 dollars ($337.33) 
 
         per week for her life or until she remarries provided that upon 
 
         her remarriage two years of benefits shall be paid to her in a 
 
         lump sum if there are no children entitled to benefits.
 
         
 
              That defendants shall pay to the dependent children of 
 
         Vernon Lorenzen if Barbara Lorenzen, the surviving spouse, 
 
         remarries, three hundred thirty-seven and 33/100 dollars 
 
         ($337.33) per week until the children reach the age of 18 
 
         provided that a child beyond 18 years of age shall receive 
 
         benefits to the age of 25 if actually dependent, and the fact 
 
         that a child under 25 years of age and enrolled as a full-time 
 
         school in any accredited educational institution shall be a prima 
 
         facie showing of actual dependency.  All is provided under 85.31 
 
         of the Iowa Code.
 
         
 
              That defendants shall pay accrued weekly benefits in a lump 
 
         sum and shall receive credit against any award for weekly 
 
         benefits previously paid.
 
         
 
              That defendants shall pay interest on benefits awarded 
 
         herein as set forth in Iowa Code section 85.30.
 
         
 
              That defendants shall pay four thousand dollars ($4,000.00) 
 
         to The Second Injury Fund of Iowa.
 
         
 
              That defendants shall pay the burial expenses in the amount 
 
         of one thousand dollars ($1,000.00) as provided in Iowa Code 
 
         section 85.25.
 
         
 
              That defendants shall pay the following medical and hospital 
 
         expenses and ambulance bills:
 
         
 
              West Side District Hospital      $    2,679.50
 
              Houchin Community Blood Bank            190.00
 
              Kern Faculty Medical Group           13,857.00
 
                                                
 
                                                         
 
              May Medical Laboratory                  690.00
 
              American Aerovac                     90,245.66
 
              Taft Ambulance
 
              Kern Medical Center
 
              Connors Clinic Pharmacy                 391.85
 
              Floyd County Memorial Hospital           91.51
 
              Chautauqua Guest Homes, Inc.            325.31
 
              Mayo Clinic                          55,991.00
 
              Floyd County Ambulance Service          462.00
 
              John R. Ebensberger, M.D.                50.00
 
              Saint Mary's Hospital                47,284.37
 
              Golden Empire Ambulance                 463.00
 
               
 
                   TOTAL                          $212,721.20
 
         
 
              That claimant's counsel shall have an attorney fee lien in 
 
         the amount of up to one-third or as per current attorney client 
 
         agreement in existence, whichever is less, against the medical 
 
         and burial expenses referred to herein, but this order is not to 
 
         be considered an approval of said fee under 86.39.
 
         
 
              That defendants shall file a first report of injury as soon 
 
         as possible.
 
         
 
              That defendants shall pay the costs of this action pursuant 
 
         to Division of Industrial Services Rule 343-4.33.
 
         
 
              That defendants shall file an activity report upon payment 
 
         of this award as required by this agency pursuant to Division of 
 
         Industrial Services Rule 343-3.1.
 
         
 
         
 
              Signed and filed this 9th day of May, 1989.
 
         
 
         
 
         
 
         
 
         
 
                                            BERNARD J. O'MALLEY
 
                                            DEPUTY INDUSTRIAL 
 
                                            COMMISSIONER
 
         
 
         Copies to:
 
         
 
         Mr. Robert W. Pratt
 
         Attorney at Law
 
         1913 Ingersoll Ave
 
         Des Moines, IA  50309
 
         
 
         Mr. Frank T. Harrison
 
         Attorney at Law
 
         Terrace Center, Ste 111
 
         2700 Grand Avenue
 
         Des Moines, IA  50312
 
         
 
                                                
 
                                                         
 
         Mr. Donald J. Bormann
 
         Attorney at Law
 
         P.O. Box 129
 
         Emmetsburg, IA  50536
 
         
 
         Mr. W. C. Hoffmann
 
         Mr. Joseph A. Happe
 
         Attorneys at Law
 
         500 Liberty Building
 
         Des Moines, IA  50309
 
         
 
         
 
         
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
                                                
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                            2102; 51805
 
                                            Filed May 9, 1989
 
                                            Bernard J. O'Malley
 
         
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         BARBARA LORENZEN, surviving
 
         spouse of VERNON LEROY
 
         LORENZEN,
 
         
 
              Claimant,
 
                                                   File No. 818227
 
         vs.
 
         
 
         CECIL HANSEN,                          A R B I T R A T I 0 N
 
         
 
              Employer,                            D E C I S I 0 N
 
         
 
         and
 
         
 
         GREAT WEST CASUALTY COMPANY,
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
         2102
 
         
 
              Although workers' compensation insurance policy had expired 
 
         one month before the accident, insurance coverage was held to be 
 
         in effect because the insurance carrier erroneously failed to 
 
         send the employer its usual and customary notice of premium due 
 
         or nature of nonrenewal of insurance policy.  Insurance carrier 
 
         was held to be estopped from denying coverage.
 
         
 
         51805
 
         
 
              This was a death case.
 
         
 
         
 
         
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
                                                
 
 
        
 
 
 
 
 
        
 
                    BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
        
 
        
 
        CALVIN CLOUSING,
 
        
 
            Claimant,
 
        
 
        vs.                                      File No. 818236
 
        
 
        ROSENBOOM MACHINE & TOOL,                   A P P E A L
 
        
 
            Employer,                            D E C I S I O N
 
        
 
        and
 
                                                     F I L E D
 
        ALLIED GROUP INSURANCE,
 
                                                    MAY 15 1989
 
            Insurance Carrier,
 
            Defendants.                   IOWA INDUSTRIAL COMMISSIONER
 
        
 
        
 
                             STATEMENT OF THE CASE
 
        
 
             Claimant appeals from an arbitration decision denying 
 
             permanent partial disability benefits as the result of an alleged 
 
             injury in August of 1985.
 
        
 
            The record on appeal consists of the transcript of the 
 
        arbitration hearing; and claimant's exhibits 1 through 18. Both 
 
        parties filed briefs on appeal.
 
        
 
                                      ISSUES
 
        
 
             Claimant states the following issues on appeal:
 
        
 
                  A. The Deputy Industrial Commissioner's Ruling at 
 
                      hearing limiting the testimony, exhibits and evidence that 
 
                      Claimant could present was error.
 
             
 
                 B. Claimant should not be denied relief due to 
 
             counsel's misinterpretation of provision included in Hearing 
 
             Assignment Order.
 
             
 
                 C. Employer and Insurance Carrier suffered no 
 
             prejudice or disadvantage due to Claimant counsel's failure 
 
             to serve witness and exhibit list.
 
             
 
                 D . Procedural Rules must be interpreted to accomplish 
 
             the spirit and intent of workers' compensation law, not to 
 
             work undue hardship upon Claimant.
 
        
 
                  E. The random enforcement of some procedural rules 
 
                       and not others constitutes error and denial of due process 
 
                       and equal protection.
 
             
 
                                 REVIEW OF THE EVIDENCE
 
        
 
             The arbitration decision adequately and accurately reflects 
 
             the pertinent evidence and it will not be set forth herein.
 
        
 
                                 APPLICABLE LAW
 
        
 

 
        
 
 
 
 
 
             Division of Industrial Services Rule 343-4.20 states in 
 
             part:
 
        
 
                  A deputy commissioner or the industrial commissioner may 
 
                      order parties in the case to either appear before the 
 
                      commissioner or a deputy commissioner for a conference, or 
 
                      communicate with the commissioner or a deputy commissioner 
 
                      and with each other in any manner as may be prescribed to 
 
                      consider, so far as applicable to the particular case:
 
             
 
               ....
 
        
 
                  4.20(7) Specifying all proposed exhibits and proof 
 
                      thereof;
 
             
 
               ....
 
             
 
               4.20(9) Specifying all witnesses expected to testify;
 
             
 
             Division of Industrial Services Rule 343-4.36 states:
 
             
 
                  If any party to a contested case or an attorney 
 
                      representing such party shall fail to comply with these 
 
                      rules or any order of a deputy commissioner or the 
 
                      industrial commissioner, the deputy commissioner or 
 
                      industrial commissioner may dismiss the action. Such 
 
                      dismissal shall be without prejudice. The deputy 
 
                      commissioner or industrial commissioner may enter an order 
 
                      closing the record to further activity or evidence by any 
 
                      party for failure to comply with these rules or an order of 
 
                      a deputy commissioner or the industrial commissioner.
 
             
 
             Testimony of witnesses will be excluded where the party 
 
             offering the witnesses failed to comply with a pretrial order 
 
             requiring the filing of a witness list prior to the hearing. The 
 
             burden is on the non-complying party to show a good reason why 
 
             the order was not complied with. Klass v. Commercial - Services, 
 
             Inc., IV Iowa Industrial Commissioner Report 205 (Appeal 
 
             Decision, June 29, 1984).
 
        
 
                                      ANALYSIS
 
        
 
             On May 16, 1988, a prehearing.was held which resulted in a 
 
             hearing assignment order being filed.on May 17, 1988. The 
 
             purpose of the prehearing was to narrow the issues set out in 
 
             Division of Industrial Services Rule 343-4.20. The hearing 
 
             assignment order included an instruction to exchange witness 
 
             lists and exhibit lists. See Division of Industrial Services 
 
             Rules 343-4.20(9) and 4.20(7). At hearing, the deputy determined 
 
             that claimant had failed to comply with the order and excluded 
 
             that portion of claimant's evidence pursuant to Rule 4.36.
 
        
 
            Counsel for claimant argues that it is his inexperience in 
 
        workers' compensation procedure which caused the noncompliance 
 
        with the order. Yet a review of the hearing assignment order 
 
        which counsel claims he read clearly requires the exchange of 
 
        witness lists and exhibit lists. Claimant's counsel could have 
 
        inquired of the agency as to this requirement if he was unsure of 
 
        it's meaning.
 
        
 
            The bounds of discovery are much broader than the matters 
 
        which might be deemed admissible at the time of the hearing. The 
 
        witness lists and the exhibit lists limit the areas of inquiry so 
 
        that both sides can prepare their cases without surprises. Such 
 
        rules and orders encourage settlement and make hearings simpler. 
 
        The exchange of exhibit lists and witness lists eliminates the 
 

 
        
 
 
 
 
 
        element of surprise by an opposing party. Such rules benefit 
 
        claimants as well as defendants.
 
        
 
            The deputy had discretion on what sanctions would be 
 
        imposed. The deputy could have dismissed the action but instead 
 
        imposed the sanction of closing the record to the evidence which 
 
        was not in compliance with the prior order. The hearing deputy 
 
        did not have authority to change the pre-hearing order of another 
 
        deputy industrial commissioner or, in this case, the industrial 
 
        commissioner. The question before the hearing deputy was whether 
 
        claimant had complied with the prehearing order.
 
        
 
            Claimant argues that the parties failed to comply with 
 
        another portion of the hearing assignment order, and that since 
 
        no sanctions were imposed, sanctions should not be imposed 
 
        against claimant regarding witness lists and exhibit lists. This 
 
        argument is untenable. What type of sanctions would have been 
 
        appropriate? What sanction would have affected both parties 
 
        equally? Should a sanction have been entered against defendant 
 
        and not claimant when it was both of them that failed to comply 
 
        with the order? If defendants had failed to exchange witness 
 
        lists or exhibit lists the same sanction would have been imposed 
 
        on them.
 
        
 
            No sanction was imposed because no sanction would have 
 
        affected the parties equally. If all evidence from both parties 
 
        had been excluded, claimant would lose because of his failure to 
 
        meet his burden of proof. If the case had been dismissed, 
 
        claimant would be unable to recover. When both sides fail to 
 
        comply with an order, an appropriate sanction is almost 
 
        impossible.
 
        
 
             It is not uncommon to find in the administration of workers' 
 
             compensation cases that the attorney for one or both of the 
 
             parties fails to read an order issued in the case and mailed to 
 
             the attorney, or reads only a portion of the order. This 
 
             practice shows complete disregard for the order and for the 
 
             authority of the deputy who issued it.
 
        
 
            The hearing deputy was correct in excluding witnesses and 
 
        exhibits which were not included in a list set out in the hearing 
 
        assignment order. The decision of the deputy based on the 
 
        evidence which was received is affirmed.
 
        
 
                                FINDINGS OF FACT
 
        
 
             1. Claimant failed to comply with the pre-hearing order 
 
             requiring the exchange of witness lists and exhibit lists.
 
        
 
            2. Claimant failed to show that he sustained a back injury 
 
        in August of 1985 which arose out of and in the course of his 
 
        employment.
 
        
 
                                 CONCLUSIONS OF LAW
 
        
 
             The deputy properly excluded witnesses and exhibits claimant 
 
             failed to list as required by the hearing assignment order.
 
        
 
            Claimant failed to show an injury arising out of and in the 
 
        course of his employment
 
        
 
            WHEREFORE, the decision of the deputy is affirmed.
 
        
 
                                      ORDER
 
        
 
             THEREFORE, it is ordered:
 

 
        
 
 
 
 
 
        
 
            That claimant take nothing from this proceeding.
 
        
 
            That costs of this action are assessed against claimant 
 
        pursuant to the Division of Industrial Services Rule 343-4.33.
 
        
 
            Signed and dated this 15th day of May, 1989.
 
        
 
        
 
        
 
        
 
        
 
                                                DAVID LINQUIST
 
                                              INDUSTRIAL COMMISSIONER
 
        
 
        Copies To:
 
        
 
        Mr. Randy L. Waagmeester
 
        Attorney at Law
 
        Professional Bldg.
 
        Rock Rapids, Iowa 51246
 
        
 
        Mr. Frank T. Harrison
 
        Attorney at Law
 
        Terrace Center, Ste. 111
 
        2700 Grand Avenue
 
        Des Moines, Iowa 50312
 
        
 
        
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                    BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         
 
         CALVIN CLOUSING,
 
         
 
              Claimant,
 
                                                  File No. 818236
 
         vs.
 
                                               A R B I T R A T I 0 N
 
         ROSENBOOM MACHINE & TOOL,
 
                                                  D E C I S I 0 N
 
              Employer,
 
         
 
         and
 
         
 
         ALLIED GROUP INSURANCE,
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
         
 
                                   INTRODUCTION
 
         
 
              This is a proceeding brought by Calvin Clousing, claimant, 
 
         against Rosenboom Machine & Tool, employer, and Allied Group 
 
         Insurance, insurance carrier, defendants, for benefits under the 
 
         Iowa Workers' Compensation Act.  The case was heard on August 17, 
 
         1988 in Storm Lake, Iowa by the undersigned.
 
         
 
              The record consists of the testimony of Calvin Clousing.  
 
         Claimant, during the hearing, attempted to introduce various 
 
         exhibits, including written medical opinions from expert 
 
         witnesses.  Defendants objected on the basis that claimant had 
 
         not complied with the hearing assignment order which was filed by 
 
         David E. Linquist, Industrial Commissioner on May 17, 1988.
 
         
 
              That order read in relevant portion:
 
         
 
              A list of all witnesses to be called at the hearing and 
 
              a list of all proposed exhibits to be offered into the 
 
              evidence at the hearing along with copies of all 
 
              written exhibits not previously served shall be served 
 
              upon opposing parties no later than fifteen (15) days 
 
              prior to the date of hearing.  Only those witnesses 
 
              listed will be permitted to testify at the hearing 
 
              unless their testimony is clearly rebuttal or 
 
              sur-rebuttal.  Medical records, practitioners reports 
 
              and all other written evidence shall not be admitted as 
 
              exhibits at the hearing unless they have been timely 
 
              served upon an opposing party as ordered herein.
 
              Claimant's attorney did not prepare and serve upon 
 
         defendants' attorney 15 days prior to the date of the hearing, 
 
         the requisite proposed witness and exhibit lists.  The 
 
         undersigned ruled that claimant had not complied with the above 
 
         order.  Claimant was precluded from introducing proposed exhibits 
 
         1-15 and proposed exhibits A-S.  Anna Clousing, mother of 
 
         claimant, was also precluded from testifying because of the same 
 
         order under the same rationale.
 

 
         
 
                                   ISSUES
 
         
 
              The issues presented by the parties are:
 
         
 
              1.  Whether claimant received an injury which arose out of 
 
         and in the course of his employment;
 
         
 
              2.  Whether there is a causal connection between the alleged 
 
         injury and the disability;
 
         
 
              3.  Whether claimant is entitled to temporary 
 
         disability/healing period benefits or permanent partial or total 
 
         disability benefits;
 
         
 
              4.  Whether defendants are liable for the payment of 
 
         reasonable and necessary medical expenses; and,
 
         
 
              5.  Whether proper notice of the alleged injury was provided 
 
         to employer.
 
         
 
                                EVIDENCE PRESENTED
 
         
 
              Claimant was 27 years old on the date of the hearing.  He 
 
         commenced his employment with defendant in June of 1983.  
 
         Claimant was hired to perform janitorial and maintenance duties 
 
         for defendant at the rate of $4.00 per hour.  Claimant worked 40 
 
         hours per week during the course of his employment.
 
         
 
               Claimant alleged he received an  injury  arising out of and 
 
         in the course of his employment in August of 1985.  According to 
 
         claimant, he was dropping 55 gallon drums of aluminum and metal 
 
         chips into a dumpster.  Then claimant would climb into the 
 
         dumpster and empty the drums by tipping them over.  Claimant 
 
         would then throw the barrels out of the dumpster.  Claimant 
 
         believed he was injured while he was emptying the barrels.
 
         
 
              Claimant stated at the time of the alleged injury,  "I had a 
 
         slight sore back but I didn't really think it was anything." 
 
         (Transcript pages 25-26, lines 25 to 1)
 
         
 
              Claimant testified his condition worsened and several weeks 
 
         later he sought medical care.  Claimant reported he discussed his 
 
         situation with Larry Rosenboom, owner of defendant and Larry 
 
         acquiesced to the selection of Dr. Meyer (first name unknown).  
 
         Upon cross-examination, claimant admitted that at the time of his 
 
         hospitalization, he did not tell Larry Rosenboom that the injury 
 
         may have been work related.  On or about October 4, 1985, 
 
         claimant was seen by Dr. Meyer.
 
         
 
              Dr. Meyer, according to claimant, prescribed medication for 
 
         the pain and claimant remained off work for one week.  Claimant 
 
         reported he returned to Dr. Meyer because he was not improving.  
 
         Claimant requested the opinion of a specialist but Dr. Meyer 
 
         allegedly replied that a specialist was not needed.
 
         
 
              Claimant testified that he then went to see David L. 
 
         Hoversten, M.D., in Sioux Falls, South Dakota.  According to 
 
         claimant, x-rays were taken and allegedly Dr. Hoversten 
 
         determined claimant had a herniated disk.  Allegedly, Dr. 
 
         Hoversten opined the injury was the result of lifting and 
 
         twisting activities and not the result of a fall from a bucking 
 
         horse.  Surgery was performed by Dr. Hoversten.
 
         
 
              As of February of 1986, claimant reported he was released 
 

 
         
 
         
 
         
 
         CLOUSING V. ROSENBOOM MACHINE & TOOL
 
         PAGE   3
 
         
 
         for light duty work for four and one half hours of work per day 
 
         and that he was restricted from lifting more than 40 pounds.  
 
         Claimant did not return to work at that time because defendant 
 
         refused to allow a light duty assignment.  Claimant did return to 
 
         work on or about April 14, 1986.  He worked for only two days.  
 
         Claimant terminated his employment because he believed he was not 
 
         earning enough money to travel back and forth from his mother's 
 
         home and he felt the work conditions were "uncomfortable."  
 
         Claimant was only working four hours per day at the time.  During 
 
         the hearing, claimant testified he still had to be cautious when 
 
         lifting.  He also stated he had problems even when he performed 
 
         an extreme amount of lifting over a short period of time.
 
         
 
              At the time of the hearing, claimant was earning $3.35 per 
 
         hour performing maintenance, construction and dishwashing duties 
 
         for a motel in Bozeman, Montana.  Claimant reported he worked 
 
         anywhere from 50 to 60 hours per week for his present employer.
 
         
 
                                  APPLICABLE LAW
 
         
 
              An employee is entitled to compensation for any and all 
 
         personal injuries which arise out of and in the course of the 
 
         employment.  Section 85.3(l).
 
         
 
              Claimant has the burden of proving by a preponderance of the 
 
         evidence that he received an injury in August of 1985 which arose 
 
         out of and in the course of his employment.  McDowell v. Town of 
 
         Clarksville, 241 N.W.2d 904 (Iowa 1976); Musselman v. Central 
 
         Telephone Co., 261 Iowa 352, 154 N.W.2d 128 (1967).
 
         
 
              The injury must both arise out of and be in the course of 
 
         the employment.  Crowe v. DeSoto Consol. Sch. Dist., 246 Iowa 
 
         402, 68 N.W.2d 63 (1955) and cases cited at pp. 405-406 of the 
 
         Iowa Report.  See also Sister Mary Benedict v. St. Mary's Corp., 
 
         255 Iowa 847, 124 N.W.2d 548 (1963) and Hansen v. State of Iowa, 
 
         249 Iowa 1147, 91 N.W.2d 555 (1958).
 
         
 
              The words "out of" refer to the cause or source of the 
 
         injury.  Crowe, 246 Iowa 402, 68 N.W.2d 63 (1955).
 
         
 
              The words "in the course of" refer to the time and place and 
 
         circumstances of the injury.  McClure v. Union et al.  Counties, 
 
         188 N.W.2d 283 (Iowa 1971); Crowe, 246 Iowa 402, 68 N.W.2d 
 
         63(1955).
 
         
 
              "An injury occurs in the course of the employment when it is 
 
         within the period of employment at a place the employee may 
 
         reasonably be, and while he is doing his work or something 
 
         incidental to it."  Cedar Rapids Comm. Sch. Dist. v. Cady, 278 
 
         N.W.2d 298 (Iowa 1979); McClure, 188 N.W.2d 283 (Iowa 1971); 
 
         Musselman, 261 Iowa 352, 154 N.W.2d 128 (1967).
 
         
 
              The claimant has the burden of proving by a preponderance of 
 
         the evidence that the injury in August of 1985 is causally 
 
         related to the disability on which he now bases his claim.  
 
         Bodish v. Fischer, Inc., 257 Iowa 516, 133 N.W.2d 867 (1965).  
 
         Lindahl v. L.O. Boggs, 236 Iowa 296,. 18 N.W.2d 607 (1945).  A 
 
         possibility is insufficient; a probability is necessary.  Burt v. 
 
         John Deere Waterloo Tractor Works, 247 Iowa 691, 73 N.W.2d 732 
 
         (1955).  The question of causal connection is essentially within 
 

 
         
 
         
 
         
 
         CLOUSING V. ROSENBOOM MACHINE & TOOL
 
         PAGE   4
 
         
 
         the domain of expert testimony.  Bradshaw v. Iowa Methodist 
 
         Hospital, 251 Iowa 375, 101 N.W.2d 167 (1960).
 
         
 
              However, expert medical evidence must be considered with all 
 
         other evidence introduced bearing on the causal connection.  
 
         Burt, 247 Iowa 691, 73 N.W.2d 732.  The opinion of experts need 
 
         not be couched in definite, positive or unequivocal language. 
 
         Sondag v. Ferris Hardware, 220 N.W.2d 903 (Iowa 1974).  However, 
 
         the expert opinion may be accepted or rejected, in whole or in 
 
         part, by the trier of fact.  Id. at 907.  Further, the weight to 
 
         be given to such an opinion is for the finder of fact, and that 
 
         may be affected by the completeness of the premise given the 
 
         expert and other surrounding circumstances.  Bodish, 257 Iowa 
 
         516, 133 N.W.2d 867.  See also Musselman, 261 Iowa 352, 154 
 
         N.W.2d 128 (1967).
 
         
 
                                     ANALYSIS
 
         
 
              Claimant has not established by a preponderance of the 
 
         evidence that he sustained an injury which arose out of and in 
 
         the course of his employment.  Claimant's own testimony reveals 
 
         he believed he received an injury to his back while he was 
 
         dumping barrels on behalf of his employer.  However, there is no 
 
         medical testimony which establishes causation or whether the 
 
         aforementioned incident resulted in any temporary or permanent 
 
         injury to claimant.
 
         
 
              Likewise, claimant has not established that any alleged 
 
         injury of August of 1985, is causally related to the alleged 
 
         disability on which he now bases the claim.  The record is devoid 
 
         of expert testimony which may have supported claimant's position. 
 
          Additionally, claimant has not established that defendants are 
 
         liable for any medical expenditures.  Claimant has not met his 
 
         burden of proof.
 
         
 
                                 FINDING OF FACT
 
         
 
              THEREFORE, based on the evidence presented, the following 
 
         finding of fact is found:
 
         
 
              1. Claimant did not sustain a back injury in August of 1985 
 
         which arose out of and in the course of his employment.
 
         
 
                                CONCLUSION OF LAW
 
         
 
              WHEREFORE, based on the principles of law previously stated, 
 
         the following conclusion of law is made:
 
         
 
              Claimant has failed to establish his back injury arose out 
 
         of and in the course of his employment.
 
         
 
                                      ORDER
 
         
 
              THEREFORE, IT IS ORDERED:
 
         
 
              Claimant takes nothing from this proceeding.
 
         
 
              Costs of this action are assessed against defendants 
 
         pursuant to the Division of Industrial Services Rule 343-4.33.
 
         
 

 
         
 
         
 
         
 
         CLOUSING V. ROSENBOOM MACHINE & TOOL
 
         PAGE   5
 
         
 
         
 
              Signed and dated this 10th day of November, 1988.
 
         
 
         
 
         
 
         
 
         
 
         
 
                                         MICHELLE A. McGOVERN
 
                                         DEPUTY INDUSTRIAL COMMISSIONER
 
         
 
         Copies To:
 
         
 
         Mr. Randy L. Waagmeester
 
         Attorney at Law
 
         Professional Bldg.
 
         Rock Rapids, Iowa 51246
 
         
 
         Mr. Frank T. Harrison
 
         Attorney at Law
 
         Terrace Center, Ste 111
 
         2700 Grand Ave.
 
         Des Moines, Iowa 50312
 
         
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                           1108.50; 1402.20; 
 
                                           1803;
 
                                           2900; 2901; 2902
 
                                           Filed November 10, 1988
 
                                           MICHELLE A. McGOVERN
 
         
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         CALVIN CLOUSING,
 
         
 
              Claimant,
 
                                                   File No. 818236
 
         vs.
 
                                                A R B I T R A T I 0 N
 
         ROSENBOOM MACHINE & TOOL,
 
                                                   D E C I S I 0 N
 
              Employer,
 
         
 
         and
 
         
 
         ALLIED GROUP INSURANCE,
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
         
 
         1108.50; 1402.20; 1803
 
         
 
              Claimant failed to establish that he sustained a work injury 
 
         causally related to claimed disability.
 
         
 
         2900; 2901; 2902
 
         
 
              Claimant failed to provide defendants with an exhibit list 
 
         or a witness list pursuant to the pre-trial order and, as a 
 
         result, the hearing deputy ruled claimant was not allowed to 
 
         introduce his exhibits at hearing. Likewise, for the same 
 
         reasons, claimant's mother was not allowed to testify.
 
 
 
         
 
 
 
 
        
 
 
 
 
 
        
 
                                          2903
 
                                          Filed May 15, 1989
 
                                          DAVID E. LINQUIST
 
        
 
                    BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
        
 
        
 
        CALVIN CLOUSING,
 
        
 
             Claimant,
 
             
 
        vs.                                                File No. 
 
        818236
 
        
 
        ROSENBOOM MACHINE & TOOL,
 
                                                           A P P E A L
 
            Employer,
 
        
 
        and                                                D E C I S I O 
 
        N
 
        
 
        ALLIED GROUP INSURANCE,
 
        
 
             Insurance Carrier,
 
             Defendants.
 
             
 
             
 
             
 
             
 
        2903
 
        
 
             Deputy properly excluded claimant's evidence where claimant 
 
             failed to comply with prehearing order requiring service of 
 
             exhibit and witness lists on opposing party. Claimant's 
 
             counsel's lack of familiarity with workers' compensation did not 
 
             justify the non-compliance with the unambiguous requirements of 
 
             the order.
 
             
 
        
 
 
        
 
 
 
 
 
                       BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
        
 
        
 
        LEO ANDERSON,
 
        
 
            Claimant,
 
                                          File No. 818237
 
        vs.
 
                                          APPEAL
 
        JOHN MORRELL & COMPANY,
 
                                         DECISION
 
            Employer,
 
            Self-Insured,
 
            Defendant.
 
        
 
        
 
                                 STATEMENT OF THE CASE
 
        
 
        Defendant appeals from an arbitration decision awarding permanent 
 
        partial disability benefits based on a binaural hearing loss of 
 
        13.2 percent and the cost of hearing aids.
 
        
 
        The record on appeal consists of the transcript of the 
 
        arbitration hearing; claimant's exhibits A through G; and 
 
        defendant's exhibit 1 through 3. Both parties filed briefs on 
 
        appeal.
 
        
 
                                      ISSUE
 
        
 
        The issue on appeal is whether claimant incurred an occupational 
 
        hearing loss that arose out of and in the course of employment. 
 
        More specifically stated, the issue is whether the deputy erred 
 
        in choosing one audiogram over another for calculating the 
 
        occupational hearing loss.
 
        
 
                                 REVIEW OF THE EVIDENCE
 
        
 
        Claimant began work for defendant in April 1963. He worked 
 
        various jobs for defendant until the plant closed in April 1985. 
 
        Claimant testified that he worked in the pork plant beginning in 
 
        August 1983 and he worked in the kill area for a year and a half. 
 
        He further testified that he was 10 feet from the dehairer and 
 
        that his normal work day was eight hours or more. Claimant's 
 
        exhibit B gives a decibel level of 98 to 99 for the stunner, 
 
        shackle, and dehairer, and claimant's exhibit C gives a decibel 
 
        level of 92 for the dehairer. Prior to the time the plant closed 
 
        claimant saw the plant nurse to have his hearing tested.
 
        
 
        R. David Nelson, M.A., audiologist, conducted an audiological 
 
        evaluation at Nelson's office on May 5, 1986. In a letter dated 
 
        May 7, 1986, Nelson described "essentially normal hearing in the 
 
        low frequencies and a mild to moderate hearing loss
 
        
 
        ANDERSON V. JOHN MORRELL & COMPANY 
 
        Page 2
 
        
 
        
 
        in the high frequencies." The test frequencies in Hz (Claimant's 
 
        Exhibit D) were:
 
        
 
                         500      lk       2k       3k
 
        
 
             R          10        5       40       50
 

 
        
 
 
 
 
 
             L          10       20       40       60
 
        
 
        Claimant was examined by C. P. Carignan, Jr., M.D., on October 
 
        10, l986. Dr. Carignan reviewed the audiogram performed by Nelson 
 
        and in a letter dated December 15, 1986 Dr. Carignan indicated 
 
        that the audiogram showed a 1.9 percent monaural hearing 
 
        impairment of the right ear and an 11.2 percent monaural hearing 
 
        impairment of the left ear, equivalent to a 3.4 percent binaural 
 
        hearing impairment. Dr. Carignan opened in that same letter that 
 
        claimant's hearing impairment was caused by and occurred as a 
 
        result of exposure to high noise levels at his work place with 
 
        defendant.
 
        
 
        Daniel Jorgensen, M.D, otolaryngologist, examined claimant on 
 
        January 7, 1987. As a part of that examination, Jean Rudkin, 
 
        M.S., audiologist, conducted an audiogram using a soundproof 
 
        booth and an audiometer. The pure tone threshold audiogram 
 
        frequencies in Hz and decibels ANSI 1969 were:
 
        
 
                        500    1000      2000      3000
 
        
 
             R         10      10        50        65
 
             L         10      25        35        60
 
        
 
        The file in this matter shows the following: The original notice 
 
        and petition was filed May 9, 1986 and the affidavit of mailing 
 
        notice states that the original notice and petition was served on 
 
        May 8, 1986.
 
        
 
                                 APPLICABLE LAW    
 
        
 
        Iowa Code chapter 85B provides benefits for occupational hearing 
 
        loss. Iowa Code section 85B.4 (1985) provides:
 
        
 
        1. "Occupational hearing loss" means a permanent sensorineural 
 
        loss of hearing in one or both ears in excess of twenty-five 
 
        decibels if measured from international standards organization or 
 
        American national standards institute zero reference level, which 
 
        arises out of and in the course of employment caused by prolonged 
 
        exposure to excessive noise levels.
 
        
 
        In the evaluation of occupational hearing loss, only the hearing 
 
        levels at the frequencies of five hundred, one thousand, two 
 
        thousand, and three thousand Hertz shall be considered.
 
        
 
        ANDERSON V. JOHN MORRELL & COMPANY 
 
        Page 3
 
        
 
        
 
        2. "Excessive noise level" means sound capable of producing 
 
        occupational hearing loss.
 
        
 
        Iowa Code section 85B.5 (1985) provides that an excessive noise 
 
        level is sound which exceeds duration and sound levels given in a 
 
        table in that section.
 
        
 
        Excessive noise levels are those which are capable of producing 
 
        occupational hearing loss. The table in section 85B.5 lists 
 
        levels and durations which, if met, will be presumptively 
 
        excessive noise levels requiring the employer to inform the 
 
        employee of the existence of such levels. It is not a minimum 
 
        exposure level necessary to establish excessive noise levels. 
 
        Noise levels less than those in the tables may produce an 
 
        occupational hearing loss. Muscatine County v. Morrison, 409 
 
        N.W.2d 685 (Iowa 1987).
 
        
 

 
        
 
 
 
 
 
        Iowa Code section 853.9 (1985) provides:
 
        
 
        Pure tone air conduction audiometric instruments, properly 
 
        calibrated according to accepted national standards used to 
 
        define occupational hearing loss shall be used for measuring 
 
        hearing levels, and the audiograms shall be taken and the tests 
 
        given in an environment as prescribed by accepted national 
 
        standards. If more than one audiogram is taken following notice 
 
        of an occupational hearing loss claim, the audiogram having the 
 
        lowest threshold shall be used to calculate occupational hearing 
 
        loss. If the measured levels of nearing average less than those 
 
        levels that constitute an occupational hearing loss, the losses 
 
        of hearing are not a compensable hearing disability 
 
        certified by the council of accreditation in occupational hearing 
 
        conservation or by persons trained by formal course work in air 
 
        conduction audiometry at an accredited educational institution or 
 
        licensed as audiologists under chapter 147, as physicians under 
 
        chapter 148, as osteopathic physicians under chapter 150, or as 
 
        osteopathic physicians and surgeons under chapter 150A if such 
 
        licensed persons are trained in air conduction audiometry. The 
 
        interpretation of the audiometric examination shall be by the 
 
        employer's regular or consulting physician who is trained and has 
 
        had experience with such interpretation, or by a licensed 
 
        audiologist. If the employee disputes the interpretation, the 
 
        employee may select a physician similarly trained and experienced 
 
        or a licensed audiologist to give an interpretation of the 
 
        audiometric examination. This section is applicable in the event 
 
        of partial permanent or total permanent occupational hearing loss 
 
        in one or both ears. (Emphasis added) 
 
        ANDERSON V. JOHN MORRELL & COMPANY 
 
        Page 4
 
        
 
        
 
                                      ANALYSIS
 
        
 
         If a claimant proves that he was exposed to a noise level for a 
 
        duration specified in section 85B.5, he has established the 
 
        presumption that his hearing loss is an occupational hearing 
 
        loss. The claimant has established that burden as he has shown he 
 
        worked a normal eight hour workday in an area where the noise 
 
        level was from 92 - 99 decibels. In addition, Dr. Carignan opined 
 
        that claimant's hearing loss was the result of exposure to high 
 
        noise levels at his work place with defendant. There is no 
 
        evidence in the record that would rebut the presumption that 
 
        claimant has established.
 
        
 
        Defendant argues on appeal that the lower threshold of the two 
 
        audiograms (the one taken by Nelson) which showed a 3.4 percent 
 
        binaural hearing loss should be the one used. Claimant responds 
 
        that the deputy correctly used the second audiogram (the one 
 
        taken by Jorgensen) which showed a higher binaural hearing loss. 
 
        Claimant argues that the deputy was correct because he had 
 
        discretion to accept or reject evidence he deems appropriate.
 
        
 
        Defendant's argument is not persuasive. The reason that the 
 
        Jorgensen audiogram should be used is that it is the only one 
 
        taken subsequent to the filing of notice of occupational hearing 
 
        loss claim and consequently it is the lowest one conducted after 
 
        the notice of the claim. The file in this case indicates that the 
 
        notice of an occupational hearing loss claim would be the 
 
        original notice and petition which was served on May 8, 1986 and 
 
        was filed on May 9, 1986. The audiogram taken by Nelson was on 
 
        May 5, 1986 and the audiogram taken by Jorgensen was on January 
 
        7, 1986. Only the lowest threshold audiogram taken subsequent to 
 
        the filing of notice of occupational hearing loss claim can be 
 
        used to determine the extent of claimant's hearing loss. Weyant 
 

 
        
 
 
 
 
 
        v. John Deere Dubuque Works of Deere and Company, (Appeal 
 
        Decision, February 22, 1988) and Furry v. John Deere Dubuque 
 
        Works of Deere and Company, (Appeal Decision, November 12, 1986).
 
        
 
        It should be noted that defendant has not demonstrated and does 
 
        not argue that the audiogram taken by Jorgensen does not comply 
 
        with the requirements of section 85B.9. Defendant merely argues 
 
        that there was no showing in the record to support the deputy's 
 
        conclusion that Nelson's test result was inaccurate. In light of 
 
        the above discussion it is not necessary to determine if Nelson's 
 
        test result was inaccurate.
 
        
 
        One other matter should be discussed. The deputy concluded that 
 
        the binaural hearing loss obtained from Dr. Jorgensen's office 
 
        was 13.2 percent. However, the proper calculation of the binaural 
 
        hearing loss based on the thresholds from the audiogram taken by 
 
        Dr. Jorgensen is 11.56 percent. That figure is the same figure 
 
        calculated by claimant and attached to his
 
        
 
        ANDERSON V. JOHN MORRELL & COMPANY 
 
        Page 5
 
        
 
        
 
        brief filed before the deputy on February 17, 1987. It is unclear 
 
        how the deputy arrived at the 13.2 percent figure other than a 
 
        possible erroneous use of the figure by both counsel at one time 
 
        or another. The 13.2 percent does not appear to be supported by 
 
        the evidence and the proper calculation of the hearing loss 
 
        pursuant to section 85B.9 is 11.56 percent.
 
        
 
                                 FINDINGS OF FACT
 
        
 
        1. Claimant started working for defendant in 1963.
 
        
 
        2. Beginning in about August 1983 claimant worked for a year and 
 
        a half in the kill area at defendant's pork plant.
 
        
 
        3. Claimant's normal work day was eight hours.
 
        
 
        4. The noise level in the kill area was 92 - 99 decibels.
 
        
 
        5. Claimant worked 10 feet from the dehairer where the noise 
 
        level was 92 decibels.
 
        
 
        6. Claimant's original notice and petition alleging an 
 
        occupational hearing loss was filed on May 9, 1986.
 
        
 
        7. The only audiogram after May 9, 1986 was taken by Dr. 
 
        Jorsensen on January 7, 1987.
 
        
 
        8. The audiogram taken by Dr. Jorgensen had a higher threshold 
 
        than the audiogram taken by R. David Nelson.
 
        
 
        9. Based on the calculation provided in section 85B.9, claimant 
 
        has a hearing loss in excess of 25 decibels.
 
        
 
        10. Claimant has a binaural hearing loss of 11.56 percent
 
        
 
        11. Claimant's stipulated weekly rate of compensation is $224.08.
 
        
 
                                 CONCLUSIONS OF LAW
 
        
 
        Claimant has established by a preponderance of the evidence that 
 
        he incurred an occupational hearing loss while working for 
 
        defendant.
 
        
 

 
        
 
 
 
 
 
        Claimant has established by a preponderance of the evidence 
 
        entitlement to 20.23 weeks (11.56 percent times 175 weeks) of 
 
        permanent partial disability benefits commencing on April 27, 
 
        1985 at a rate of $224.08.
 
        
 
        Claimant is entitled to the cost of the least expensive hearing 
 
        aid or aids.
 
        
 
        WHEREFORE, the decision of the deputy is affirmed and modified.
 
        
 
        ANDERSON V. JOHN MORRELL & COMPANY 
 
        Page 6
 
        
 
        
 
                                      ORDER
 
        
 
        THEREFORE, it is ordered:
 
        
 
        That defendant pay claimant twenty point twenty-three (20.23) 
 
        weeks of permanent partial disability benefits commencing on 
 
        April 27, 1985 at a rate of two hundred twenty-four and 08/100 
 
        dollars ($224.08) per week.
 
        
 
        That defendant pay the cost of the least expensive hearing aid or 
 
        aids.
 
        
 
        That defendant pay accrued benefits in a lump sum and pay 
 
        interest pursuant to section 85.30, The Code.
 
        
 
        That defendant pay the costs including the costs of transcription 
 
        of the arbitration hearing pursuant to Division of Industrial 
 
        Services Rule 343-4.33.
 
        
 
        That defendant shall file claim activity reports, pursuant to 
 
        Industrial Services Rule 343-3.1 as requested by the agency.
 
        
 
        
 
        Signed and filed this 25th day of August, 1988.
 
        
 
        
 
        
 
                                          DAVID E. LINQUIST
 
                                      INDUSTRIAL COMMISSIONER
 
        
 
        
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                    BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         LEO ANDERSON,
 
         
 
              Claimant,
 
                                               File No. 818237
 
         vs.
 
         
 
         JOHN MORRELL & COMPANY,                 A P P E A L
 
         
 
              Employer,                        D E C I S I O N
 
              Self-Insured,
 
              Defendant.
 
         
 
         
 
         
 
                              STATEMENT OF THE CASE
 
         
 
              Defendant appeals from an arbitration decision awarding 
 
         permanent partial disability benefits based on a binaural hearing 
 
         loss of 13.2 percent and the cost of hearing aids.
 
         
 
              The record on appeal consists of the transcript of the 
 
         arbitration hearing; claimant's exhibits A through G; and 
 
         defendant's exhibit 1 through 3.  Both parties filed briefs on 
 
         appeal.
 
         
 
                                      ISSUE
 
         
 
              The issue on appeal is whether claimant incurred an 
 
         occupational hearing loss that arose out of and in the course of 
 
         employment.  More specifically stated, the issue is whether the 
 
         deputy erred in choosing one audiogram over another for 
 
         calculating the occupational hearing loss.
 
         
 
                              REVIEW OF THE EVIDENCE
 
         
 
              Claimant began work for defendant in April 1963.  He worked 
 
         various jobs for defendant until the plant closed in April 1985. 
 
          Claimant testified that he worked in the pork plant beginning in 
 
         August 1983 and he worked in the kill area for a year and a half.  
 
         He further testified that he was 10 feet from the dehairer and 
 
         that his normal work day was eight hours or more.  Claimant's 
 
         exhibit B gives a decibel level of 98 to 99 for the stunner, 
 
         shackle, and dehairer, and claimant's exhibit C gives a decibel 
 
         level of 92 for the dehairer.  Prior to the time the plant closed 
 
         claimant saw the plant nurse to have his hearing tested.
 
         
 
              R. David Nelson, M.A., audiologist, conducted an 
 
         audiological evaluation at NelsonOs office on May 5, 1986.  In a 
 
         letter dated May 7, 1986, Nelson described "essentially normal 
 
         hearing in the low frequencies and a mild to moderate hearing 
 
         loss in the high frequencies."  The test frequencies in H z 
 
         (Claimant's Exhibit D) were:
 
         
 
                         500     lk     2k     3k
 
         
 
              R           10      5     40     50
 
              L           10     20     40     60
 

 
         
 
              Claimant   was examined by C. B. Carignan, Jr., M.D., on 
 
         October 10, 1986.  Dr. Carignan reviewed the audiogram 
 
         performed by Nelson and in a letter dated December 15, 1986 Dr. 
 
         Carignan indicated that the audiogram showed a 1.9 percent 
 
         monaural hearing impairment of the right ear and an 11.2 
 
         percent monaural hearing impairment of the left ear, equivalent 
 
         to a 3.4 percent binaural hearing impairment.  Dr. Carignan 
 
         opined in that same letter that claimant's hearing impairment 
 
         was caused by and occurred as a result of exposure to high 
 
         noise levels at his work place with defendant.
 
         
 
              Daniel Jorgensen, M.D, otolaryngologist, examined claimant 
 
         on January 7, 1987.  As a part of that examination, Jean 
 
         Rudkin, M.S., audiologist, conducted an audiogram using a 
 
         soundproof booth and an audiometer.  The pure tone threshold 
 
         audiogram frequencies in H z and decibels ANSI 1969 were:
 
         
 
                        500     1000     2000     3000
 
         
 
              R         10       10       50       65
 
              L         10       25       35       60
 
         
 
              The file in this matter shows the following:  The original 
 
         notice and petition was filed May 9, 1986 and the affidavit of 
 
         mailing notice states that the original notice and petition was 
 
         served on May 8, 1986.
 
         
 
                               APPLICABLE LAW
 
         
 
              Iowa Code chapter 85B provides benefits for occupational 
 
         hearing loss.  Iowa Code section 85B.4 (1985) provides:
 
         
 
              1.  "Occupational hearing loss" means a permanent 
 
              sensorineural loss of hearing in one or both ears in 
 
              excess of twenty-five decibels if measured from 
 
     
 
         
 
         
 
         
 
         
 
         ANDERSON V. JOHN MORRELL & COMPANY
 
         PAGE   3
 
         
 
         
 
              international standards organization or American 
 
              national standards institute zero reference level, 
 
              which arises out of and in the course of employment 
 
              caused by prolonged exposure to excessive noise 
 
              levels.
 
         
 
                 In the evaluation of occupational hearing loss, only 
 
              the hearing levels at the frequencies of five hundred, 
 
              one thousand, two thousand, and three thousand Hertz 
 
              shall be considered.
 
         
 
              2.  "Excessive noise level" means sound capable of 
 
              producing occupational hearing loss.
 
         
 
              Iowa Code section 85B.5 (1985) provides that an excessive 
 
         noise level is sound which exceeds duration and sound levels 
 
         given in a table in that section.
 
         
 
              Excessive noise levels are those which are capable of 
 
         producing occupational hearing loss.  The table in section 85B.5 
 
         lists levels and durations which, if met, will be presumptively 
 
         excessive noise levels requiring the employer to inform the 
 
         employee of the existence of such levels.  It is not a minimum 
 
         exposure level necessary to establish excessive noise levels.  
 
         Noise levels less than those in the tables may produce an 
 
         occupational hearing loss.  Muscatine County v. Morrison, 409 
 
         N.W.2d 685 (Iowa 1987).
 
         
 
              Iowa Code section 85B.9 (1985) provides:
 
         
 
                   Pure tone air conduction audiometric instruments, 
 
              properly calibrated according to accepted national 
 
              standards used to define occupational hearing loss 
 
              shall be used for measuring hearing levels, and the 
 
              audiograms shall be taken and the tests given in an 
 
              environment as prescribed by accepted national 
 
              standards.  If more than one audiogram is taken 
 
              following notice of an occupational hearing loss claim, 
 
              the audiogram having the lowest threshold shall be used 
 
              to calculate occupational hearing loss.  If the 
 
              measured levels of hearing average less than those 
 
              levels that constitute an occupational hearing loss, 
 
              the losses of hearing are not a compensable hearing 
 
              disability .... Audiometric examinations shall be made 
 
              by a person who is certified by the council of 
 
              accreditation in occupational hearing conservation or 
 
              by persons trained by formal course work in air 
 
              conduction audiometry at an accredited educational 
 
              institution or licensed as audiologists under chapter 
 
              1.47, as physicians under chapter 148, as osteopathic 
 
              physicians under chapter 150, or as osteopathic 
 
              physicians and surgeons under chapter 150A if such 
 
              licensed persons are trained in air conduction 
 
              audiometry.  The interpretation of the audiometric 
 
              examination shall be by the employer's regular or 
 
              consulting physician who is trained and has had 
 
              experience with such interpretation, or by a licensed 
 
              audiologist.  If the employee disputes the 
 
              interpretation, the employee may select a physician 
 

 
         
 
         
 
         
 
         ANDERSON V. JOHN MORRELL & COMPANY
 
         PAGE   4
 
         
 
         
 
              similarly trained and experienced or a licensed 
 
              audiologist to give an interpretation of the 
 
              audiometric examination.  This section is applicable in 
 
              the event of partial permanent or total permanent 
 
              occupational hearing loss in one or both ears. 
 
              (emphasis added)
 
         
 
                                  ANALYSIS
 
         
 
              If a claimant proves that he was exposed to a noise level 
 
         for a duration specified in section 85B.5, he has established the 
 
         presumption that his hearing loss is an occupational hearing 
 
         loss.  The claimant has established that burden as he has shown 
 
         he worked a normal eight hour workday in an area where the noise 
 
         level was from 92 - 99 decibels.  In addition, Dr. Carignan 
 
         opined that claimant's hearing loss was the result of exposure to 
 
         high noise levels at his work place with defendant.  There is no 
 
         evidence in the record that would rebut the presumption that 
 
         claimant has established.
 
         
 
              Defendant argues on appeal that the lower threshold of the 
 
         two audiograms (the one taken by Nelson) which showed a 3.4 
 
         percent binaural hearing loss should be the one used.  Claimant 
 
         responds that the deputy correctly used the second audiogram (the 
 
         one taken by Jorgensen) which showed a higher binaural hearing 
 
         loss.  Claimant argues that the deputy was correct.because he had 
 
         discretion to accept or reject evidence he deems appropriate.
 
         
 
              Defendant's argument is not persuasive.  The reason that the 
 
         Jorgensen audiogram should be used is that it is the only one 
 
         taken subsequent to the filing of notice of occupational hearing 
 
         loss claim and consequently it is the lowest one conducted after 
 
         the notice of the claim.  The file in this case indicates that 
 
         the notice of an occupational hearing loss claim would be the 
 
         original notice and petition which was served on May 8, 1986 and 
 
         was filed on May 9, 1986.  The audiogram taken by Nelson was on 
 
         May 5, 1986 and the audiogram taken by Jorgensen was on January 
 
         7, 1986.  Only the lowest threshold audiogram taken subsequent to 
 
         the filing of notice of occupational hearing loss claim can be 
 
         used to determine the extent of claimant's hearing loss.  Weyant 
 
         v. John Deere Dubuque Works of Deere and Company, (Appeal 
 
         Decision, February 22, 1988) and Furry v. John Deere Dubuque 
 
         Works of Deere and Company, (Appeal Decision, November 12, 
 
         1986).
 
         
 
              It should be noted that defendant has not demonstrated and 
 
         does not argue that the audiogram taken by Jorgensen does not 
 
         comply with the requirements of section 85B.9.  Defendant merely 
 
         argues that there was no showing in the record to support the 
 
         deputy's conclusion that Nelson's test result was inaccurate.  In 
 
         light of the above discussion it is not. necessary to determine 
 
         if Nelson's test result was inaccurate.
 
         
 
              One other matter should be discussed.  The deputy concluded 
 
         that the binaural hearing loss obtained from Dr. Jorgensen's 
 
         office was 13.2 percent.  However, the proper calculation of the 
 
         binaural hearing loss based on the thresholds from the audiogram 
 
         taken by Dr. Jorgensen is 11.56 percent.  That figure is the same 
 
         figure calculated by claimant and attached to his brief filed 
 

 
         
 
         
 
         
 
         ANDERSON V. JOHN MORRELL & COMPANY
 
         PAGE   5
 
         
 
         
 
         before the deputy on February 17, 1987.  It is unclear how the 
 
         deputy arrived at the 13.2 percent figure other than a possible 
 
         erroneous use of the figure by both counsel at one time or 
 
         another.  The 13.2 percent does not appear to be supported by the 
 
         evidence and the proper calculation of the hearing loss pursuant 
 
         to section 85B.9 is 11.56 percent.
 
         
 
                                 FINDINGS OF FACT
 
         
 
              1.  Claimant started working for defendant in 1963.
 
         
 
              2.  Beginning in about August 1983 claimant worked for year 
 
         and a half in the kill area at defendant's pork plant.
 
         
 
              3.  Claimant's normal work day was eight hours.
 
         
 
              4.  The noise level in the kill area was 92 - 99 decibels.
 
         
 
              5.  Claimant worked 10 feet from the dehairer where the 
 
         noise level was 92 decibels.
 
         
 
              6.  Claimant's original notice and petition alleging an 
 
         occupational hearing loss was filed on May 9, 1986.
 
         
 
              7.  The only audiogram after May 9, 1986 was taken by Dr. 
 
         Jorgensen on January 7, 1987.
 
         
 
              8.  The audiogram taken by Dr. Jorgensen had a higher 
 
         threshold than the audiogram taken by R. David Nelson.
 
         
 
              9.  Based on the calculation provided in section 85B.9, 
 
         claimant has a hearing loss in excess of 25 decibels.
 
         
 
             10. Claimant has a binaural hearing loss of 11.56 percent.
 
         
 
             11. Claimant's stipulated weekly rate of compensation is 
 
         $224.08.
 
         
 
                                CONCLUSIONS OF LAW
 
         
 
              Claimant has established by a preponderance of the evidence 
 
         that he incurred an occupational hearing loss while working for 
 
         defendant.
 
         
 
              Claimant has established by a preponderance of the evidence 
 
         entitlement to 20.23 weeks (11.56 percent times 175 weeks) of 
 
         permanent partial disability benefits commencing on April 27, 
 
         1985 at a rate of $224.08.
 
         
 
              Claimant is entitled to the cost of the least expensive 
 
         hearing aid or aids.
 
         
 
              WHEREFORE, the decision of the deputy is affirmed and 
 
         modified.
 
         
 
                                      ORDER
 
         
 
              THEREFORE, it is ordered:
 
         
 

 
         
 
         
 
         
 
         ANDERSON V. JOHN MORRELL & COMPANY
 
         PAGE   6
 
         
 
         
 
              That defendant pay claimant twenty point twenty-three 
 
         (20-23) weeks of permanent partial disability benefits commencing 
 
         on April 27, 1985 at a rate of two hundred twenty-four and 08/100 
 
         dollars ($224.08) per week.
 
         
 
              That defendant pay the cost of the least expensive hearing 
 
         aid or aids.
 
         
 
              That defendant pay accrued benefits in a lump sum and pay 
 
         interest pursuant to section 85.30, The Code.
 
         
 
              That defendant pay the costs including the costs of 
 
         transcription of the arbitration hearing pursuant to Division of 
 
         Industrial Services Rule 343-4.33.
 
         
 
              That defendant shall file claim activity reports, pursuant 
 
         to Industrial Services Rule 343-3.1 as requested by the agency.
 
         
 
              Signed and filed this 25th day of August, 1988.
 
         
 
         
 
         
 
         
 
         
 
                                               DAVID E. LINQUIST
 
                                               INDUSTRIAL COMMISSIONER
 
         
 
         Copies to:
 
         
 
         Mr. E. W. Wilcke
 
         Attorney at Law
 
         826 1/2 Lake St
 
         P.O. Box 455
 
         Spirit Lake, IA 51360
 
         
 
         Mr. Dick H. Montgomery
 
         Attorney at Law
 
         Professional Bldg.
 
         P.O. Box 7038
 
         Spencer, IA 51301
 
         
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                                  2208
 
                                                  Filed August 25, 1988
 
                                                  DAVID E. LINQUIST
 
         
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         LEO ANDERSON,
 
         
 
              Claimant,
 
                                                   File No. 818237
 
         vs.
 
         
 
         JOHN MORRELL & COMPANY,                     A P P E A L
 
         
 
              Employer,                            D E C I S I 0 N
 
              Self-Insured,
 
              Defendant.
 
         
 
         
 
         
 
         2208
 
         
 
              The only audiogram conducted after the notice of the 
 
         occupational hearing loss claim was relied upon to find that 
 
         claimant had an occupational hearing loss of 11.56%. In this case 
 
         the notice of the occupational hearing loss claim was the 
 
         original notice and petition.  The appeal decision followed the 
 
         holding in Dale J. Furry, Appeal Decision, November 12, 1986.
 
 
 
         
 
 
            
 
 
 
 
 
 
 
                
 
                                           
 
         
 
                 BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         LEO ANDERSON,
 
         
 
             Claimant,                                File No. 818237
 
         
 
         VS.
 
                                                   A R B I T R A T I 0 N
 
         JOHN MORRELL & COMPANY,
 
                                                      D E C I S I 0 N
 
              Employer,
 
              Self-Insured,
 
              Defendant.
 
         
 
         
 
                              STATEMENT OF THE CASE
 
         
 
              This is a proceeding brought by Leo Anderson, claimant, 
 
         against John Morrell & Company (Morrell), a self-insured 
 
         employer, for benefits under chapter 85B, Code of Iowa.  A 
 
         hearing was held in Storm Lake, Iowa, on February 4, 1987 and the 
 
         case was submitted on that date.
 
         
 
              The record consists of the testimony of claimant, Sharon 
 
         Ruth Anderson, Warren Evans, and Harold Selberg; claimant's 
 
         exhibits A through G; and defendant's exhibits 1 through 3.  Both 
 
         parties filed a brief.  The exhibit list given to the hearing 
 
         deputy at time of hearing reads as follows:
 
         
 
              RE:  Leo Anderson vs. John Morrell & Company - File
 
              #818237
 
         
 
              Plaintiff's Exhibits:
 
         
 
              A.  Physical exam given workman for employment with John 
 
              Morrell & Company - employed 4-29-63.
 
         
 
              B.  Noise level survey conducted at the John Morrell plant 
 
              in Estherville by OSHA.
 
         
 
         C.  Noise level survey conducted at the John Morrell plant in 
 
         Estherville by John Morrell & Company.
 
         
 
         D.  Letter from R. David Nelson, M.A., Audiologist of Nelson 
 
         Hearing Aid Service with attached hearing report.
 
         
 
         E.  Report from C. B. Carignan, M.D. dated 12-15-86.
 

 
         
 
         
 
         
 
         ANDERSON V. JOHN MORRELL & COMPANY
 
         Page   2
 
         
 
         
 
         
 
         F.  Nelson Hearing Aid Service estimate of hearing aid cost 
 
         dated 1-15-87.
 
         
 
         G.  Photograph of claimant.
 
         
 
              Defendant's Exhibits:
 
         
 
              Audiology report and hearing loss calculations of Daniel 
 
              Jorgensen, M.D. dated 1-7-86. (Deposition exhibits included 
 
              in defendant's Exhibit 1.)
 
         
 
              1.  Deposition of Daniel L. Jorgensen dated 1-29-87.
 
         
 
              2.  Dr. Hranac - office notes.
 
         
 
              The parties stipulated that claimant's weekly rate of 
 
         compensation is $224.08 and that any weekly benefits awarded 
 
         would commence on April 27, 1985.
 
         
 
                                      ISSUES
 
         
 
              The contested issues are:
 
         
 
              1)  Whether this action is barred by Iowa Code section 85.23 
 
         because the employer herein was not given notice of, nor did this 
 
         employer have actual knowledge of, claimant's alleged 
 
         occupational hearing loss;
 
         
 
              2)  Whether this action is barred by Iowa Code section 85.26 
 
         because it was not timely filed;
 
         
 
              3)  Whether claimant sustained an occupational hearing loss 
 
         under chapter 85B, Code of Iowa; that is, whether claimant is 
 
         entitled to occupational hearing loss benefits under chapter 85B, 
 
         Code of Iowa;
 
         
 
              4)  Nature and extent of disability; that is, the number of 
 
         weeks of permanent partial disability benefits owing; and
 
         
 
              5)  Whether defendant shall pay the cost of a hearing aid or 
 
         aids pursuant to Iowa Code section 85B.12.
 
         
 
                             SUMMARY OF THE EVIDENCE
 
         
 
              Claimant testified that he is 46 years of age and was raised 
 
         on a farm.  He was drafted into the U.S. Army and had a physical 
 
         examination when he entered which established that his hearing 
 
         was normal.  He drove a truck in the army and his hearing was 
 
         normal in 1962 when he was discharged.
 
         
 
              Claimant started working for Morrell in April 1963 and had a 
 
         physical examination when he started that established he had 
 
         normal hearing.  See exhibit A.  Claimant then described the jobs 
 
         he had while working for Morrell.  At some point at Morrell, he 
 
         worked around a dehairer which generated a "terrific noise 
 
         level." He worked at both the beef plant and the pork plant.  
 
         Prior to 1982, he did not wear hearing protection.  In 1982 and 
 
         1983, OSHA did noise level tests at the Morrell facility.  
 

 
         
 
         
 
         
 
         ANDERSON V. JOHN MORRELL & COMPANY
 
         Page   3
 
         
 
         
 
         Claimant separated from Morrell in April 1985 and prior to 
 
         leaving Morrell claimant talked with a plant nurse about his 
 
         hearing loss after a test was done and talked to a foreman about 
 
         his hearing loss.
 
         
 
              Claimant was shown exhibit B and then testified that near 
 
         the dehairer in the pork plant the decibel level was 98 to 99.  
 
         In the early 1970's, he noticed he had a hearing problem.
 
         
 
              Dr. Jorgensen has told him he needs a hearing aid.
 
         
 
              On cross-examination, claimant acknowledged that in July 
 
         1985 he had drainage problems with his ears.  He saw his personal 
 
         physician on two occasions as a result.  See exhibit 2.
 
         
 
              Claimant testified that in July 1983, a physical examination 
 
         was performed and no hearing problem was noted.  In August 1983, 
 
         claimant was transferred to the pork plant to drive hogs up to 
 
         the kill floor and the dehairer "was right above."  He had a 
 
         hearing test in 1983 or 1984 and then started to wear hearing 
 
         protection devices.  See exhibit 3 documenting a test on March 1, 
 
         1984.  He stated that his hearing has not changed since he left 
 
         the plant.  He has the wax cleaned from his ears periodically.  
 
         He characterized the noise levels in the pork plant and beef 
 
         plant as about the same.  He also stated that the first notice of 
 
         his hearing loss claim was when he filed his petition on May 9, 
 
         1986.
 
         
 
              On redirect, claimant testified that the wax in his ears 
 
         caused a drainage problem.  On recross-examination, claimant 
 
         stated that Mr. Nelson has not told him that he needs a hearing 
 
         aid.
 
         
 
              Sharon Ruth Anderson testified that when claimant started 
 
         working for Morrell in 1963 his hearing was normal.  In 1985, she 
 
         noticed that the TV and radio were too loud when claimant was 
 
         using them.  She stated her opinion that claimant's hearing loss 
 
         was not caused by anything other than Morrell.
 
         
 
              Warren Evans testified that he worked for Morrell from 1964 
 
         to 1985 and that he met claimant in 1964 at which time claimant 
 
         did not have a hearing problem.  They worked in the same area at 
 
         Morrell and Evans described the noise at those places.
 
         
 
              Harold Selberg testified that he worked with claimant at 
 
         Morrell in Estherville.  He stated that the noise level was
 
         
 
         
 
         about the same in both plants and that the work stations were 
 
         OopenO allowing the noise to "go throughout the room.O
 
         
 
              Exhibit E, pages 1-2 (dated December 15, 1986), is authored 
 
         by C.B. Carignan, Jr., M.D., and reads in part:
 
         
 
              Mr. Anderson worked at the John Morrell packing plant 
 
              for 1 day less than 22 year altogether.  During the 
 
              last 9 years of his employment [sic] there he worked in 
 
              an area of very high noise levels on the kill floor 
 
              near loud power saws, compressors, etcetera.  He wore 
 

 
         
 
         
 
         
 
         ANDERSON V. JOHN MORRELL & COMPANY
 
         Page   4
 
         
 
         
 
              ear plugs provided by his employer during the last year 
 
              he worked at the plant which were provided by his 
 
              employer in an attempt to protect the worker's 
 
              hearing.
 
         
 
                 ....
 
         
 
              An audiogram performed for Mr. Anderson by R. David 
 
              Nelson, a certified audiologist from Spencer, Iowa on 
 
              5-5-86 shows a 1.9% monaural hearing impairment of the 
 
              right ear and 11.2% nomaural hearing impairment of the 
 
              left ear, equivalent to a 3.4% Binaural hearing 
 
              impairment which is equivalent to a 1% functional 
 
              impairment of the whole person.
 
         
 
              In view of his history and physical findings and the 
 
              Audiogram I eamined [sic] I feel that with reasonable 
 
              medical certainty Mr. Anderson's hearing impairment was 
 
              caused by and occurred as a result of exposure to high 
 
              noise levels at his work place at the Morrell packing 
 
              plant in Estherville, Iowa during his long employment 
 
              there.
 
         
 
              Exhibit F, page 1, states R. David Nelson's estimate of the 
 
         cost of a hearing aid.
 
         
 
              Exhibit 1 is the deposition of Daniel Jorgensen, M.D., taken 
 
         on January 29, 1987.  Dr. Jorgensen is an otolaryngologist.  He 
 
         has a soundproof booth and an audiometer.  He has a person with a 
 
         master's degree in audiology do the audiograms.  Dr. Jorgensen 
 
         examined claimant on January 7, 1987 and took a history.  
 
         Deposition exhibit 1 is an audiogram performed on January 7, 
 
         1987.
 
         
 
              On page 7, Dr. Jorgensen stated that claimant noticed a 
 
         hearing problem in the last seven or eight years.  On page 8, Dr. 
 
         Jorgensen stated:
 
         
 
              He stated he worked for John Morrell for 22 years and for 
 
              six to eight of those years he stated he worked in an area 
 
              where
 
         
 
         
 
              the decibel level was greater than 90 decibels.  He wore ear 
 
              protection only for the last two and a half to three years 
 
              that he worked at the plant.
 
         
 
              On page 9, Dr. Jorgensen stated that claimant's binaural 
 
         hearing loss is 13.2 percent.  On page 15, he stated: "I think 
 
         it's safe to say that he's got a hearing loss due to a noise 
 
         exposure at the plant."  On pages 16-17, he stated his opinion 
 
         that claimant's hearing loss is not due exclusively to plant 
 
         noise, but that it was a "large contributor."  On page 21, he 
 
         stated that a hearing aid would help claimant.
 
         
 
         
 
                           APPLICABLE LAW AND ANALYSIS
 
         
 
              I.  Does Iowa Code section 85.23 apply to occupational 
 

 
         
 
         
 
         
 
         ANDERSON V. JOHN MORRELL & COMPANY
 
         Page   5
 
         
 
         
 
         hearing loss cases?  It is concluded that section 85.23 does 
 
         apply to this class of case as it is not inconsistent with 
 
         chapter 85B.  See Iowa Code section 85B.14.  The Iowa Supreme 
 
         Court stated in Dillinger v. City of Sioux City, 368 N.W.2d 176, 
 
         179 (Iowa 1985):
 
         
 
                 I.  Notice under section 85.23.  In pertinent part, 
 
              section 85.23 requires the employee to give the employer 
 
              notice within 90 days after the occurrence of the injury 
 
              "unless the employer or his representative shall have actual 
 
              knowledge of the occurrence of an injury."  Consequently, an 
 
              employee who fails to give a timely notice may still avoid 
 
              the sanction of section 85.23 if the employer had "actual 
 
              knowledge of the occurrence of the injury."  The discovery 
 
              rule delays the commencement of a limitation period, for 
 
              bringing a cause of action or for giving notice, until the 
 
              injured person has in fact discovered his injury or by 
 
              exercise of reasonable diligence should have discovered it.  
 
              Orr, 298 N.W.2d at 257.
 
         
 
              The defendant in this case had actual knowledge of 
 
         claimant's alleged hearing loss prior to the plant closure in 
 
         April 1985.  This claim is not barred by Iowa Code section 85.23.  
 
         Claimant was not required to satisfy section 85.23 prior to the 
 
         occurrence of an injury on April 27, 1985, but it was permissible 
 
         for him to satisfy section 85.23 prior to the occurrence of an 
 
         injury. Dillinger, at 180.  Also, claimant did not have to 
 
         satisfy section 85.23 until his cause of action accrued on either 
 
         April 27, 1985 or six months thereafter.  See section 85B.B.  The 
 
         occurrence of the injury date and the date when this cause of 
 
         action accrued may be the same in this case with that date being 
 
         April 27, 1985.
 
         
 
              II.  Is this claim time barred by Iowa Code section 85.26? 
 
         Section 85B.8 provides in part:
 
         
 
         
 
              A claim for occupational hearing loss due to excessive noise 
 
              levels may be filed six months after separation from the 
 
              employment in which the employee was exposed to excessive 
 
              noise levels.  The date of the injury shall be the date of 
 
              occurrence of any one of the following events:
 
         
 
                 1.  Transfer from excessive noise level employment by an 
 
         employer.
 
         
 
                 2.  Retirement.
 
         
 
                 3.  Termination of the employer-employee relationship.  
 
         (Emphasis supplied.)
 
         
 
              Claimant in this case separated from his Morrell employment 
 
         on April 27, 1985 and as stated above his cause of action accrued 
 
         at that time or six months thereafter.  His petition was filed on 
 
         May 9, 1986.  The Iowa Supreme Court held in Chrisohilles .v. 
 
         Griswold, 260 Iowa 453, 461 150 N.W.2d 94, 100 (1967) that a 
 
         statute of limitations "cannot commence to run until the cause of 
 
         action accrues."  Claimant filed his petition within two years of 
 
         April 27, 1985.  This claim is not time barred.  In accordance 
 

 
         
 
         
 
         
 
         ANDERSON V. JOHN MORRELL & COMPANY
 
         Page   6
 
         
 
         
 
         with Iowa Code section 85B.8 claimant waited until six months 
 
         after his separation from Morrell to file this action.
 
         
 
              III.  The question of whether claimant sustained an 
 
         occupational hearing loss, by definition, includes the question 
 
         of whether a causal relationship exists between claimant's 
 
         industrial noise exposure and his current hearing loss.  Section 
 
         85B.4(l) provides:
 
         
 
              Occupational hearing loss means a permanent sensorineural 
 
              loss of hearing in one or both ears in excess of twenty-five 
 
              decibels if measured from international standards 
 
              organization or American National standards institute zero 
 
              reference level, which arises out of and in the course of 
 
              employment caused by prolonged exposure to excessive noise 
 
              levels.
 
         
 
              In the evaluation of occupational hearing loss, only the 
 
              hearing levels at the frequencies of five hundred, one 
 
              thousand, two thousand, and three thousand Hertz shall be 
 
              considered.
 
         
 
              Section 85B.4(l) requires that a claimant's hearing loss 
 
         both be a permanent sensorineural loss in excess of 25 decibels 
 
         and that it arise out of and in the course of his employment 
 
         because of prolonged exposure to excessive noise levels.
 
         
 
              Claimant has the burden of proving by a preponderance of the
 
         evidence that he received an injury which arose out of and in the 
 
         course of his employment.  McDowell v. Town of Clarksville, 241 
 
         N.W.2d 904 (Iowa 1976); Musselman v. Central Telephone Co., 261 
 
         Iowa 352,.154 N.W.2d 128 (1967).
 
         
 
              Section 85B.6 provides maximum compensation of 175 weeks for 
 
         total occupational hearing loss with partial occupational hearing 
 
         loss compensation proportionate to total hearing loss.
 
         
 
              Claimant has established by the greater weight of the 
 
         evidence that he sustained hearing loss from his work at Morrell 
 
         and that all his hearing loss is attributable to his Morrell 
 
         employment.
 
         
 
              IV.  The 13.2 percent binaural hearing loss figure obtained 
 
         from Dr. Jorgensen's office will be utilized in this case.  I am 
 
         convinced that Mr. Nelson's test result is inaccurate.
 
         
 
              Claimant is entitled to 23.1 weeks (13.2% of 175 weeks) of 
 
         permanent partial disability benefits commencing on April 27, 
 
         1985 at a rate of $224.08.
 
         
 
              V.  Claimant is entitled to the least expensive hearing aid 
 
         provided by Dr. Jorgensen, Mr. Nelson, or another provider, at 
 
         the cost of the defendant.
 
         
 
                                 FINDINGS OF FACT
 
         
 

 
         
 
         
 
         
 
         ANDERSON V. JOHN MORRELL & COMPANY
 
         Page   7
 
         
 
         
 
              1.  Claimant is 46 years old.
 
         
 
              2.  Claimant started working for Morrell in Estherville, 
 
         Iowa. in April 1963.
 
         
 
              3.  Claimant has sustained hearing loss and all of his 
 
         hearing loss was sustained as a result of his Morrell 
 
         employment.
 
         
 
              4.  Morrell had actual knowledge of claimant's occupational 
 
         hearing loss prior to April 27, 1985.
 
         
 
              5.  Claimant's binaural hearing loss is 13.2%.
 
         
 
              6.  Claimant's stipulated weekly rate of compensation is 
 
         $224.08.
 
         
 
                                CONCLUSIONS OF LAW
 
         
 
              1.  Claimant has established entitlement to twenty-three 
 
         point one (23.1) weeks of permanent partial disability benefits 
 
         commencing on April 27, 1985 at a rate of two hundred twenty-four 
 
         
 
         
 
         
 
         and 08/100 dollars ($224.08).
 
         
 
              2.  Claimant is entitled to the cost of the least expensive 
 
         hearing aid or aids.
 
         
 

 
         
 
         
 
         
 
         ANDERSON V. JOHN MORRELL & COMPANY
 
         Page   8
 
         
 
         
 
                                      ORDER
 
         
 
              IT IS THEREFORE ORDERED:
 
         
 
              That defendant pay the benefits described above.
 
         
 
              That defendant pay accrued benefits in a lump sum and pay 
 
         interest pursuant to section 85.30, The Code.
 
         
 
              That defendant pay the costs of this action pursuant to 
 
         Division of Industrial Services Rule 343-4.33, formerly 
 
         Industrial Commissioner Rule 500-4.33.
 
         
 
              That defendant shall file claim activity reports, pursuant 
 
         to Industrial Services Rule 343-3.1(2), formerly Industrial 
 
         Commissioner Rule 500-3.1(2), as requested by the agency.
 
         
 
              Signed and filed this 18th day of March, 1987.
 
         
 
         
 
         
 
         
 
         
 
         
 
                                        T. J. McSWEENEY
 
                                        DEPUTY INDUSTRIAL COMMISSIONER
 
         
 
         Copies to:
 
         
 
         Mr. E. W. Wilcke
 
         Attorney at Law
 
         P.O. Box 455
 
         826 1/2 Lake Street
 
         Spirit Lake, Iowa 51360
 
         
 
         Mr. Dick H. Montgomery
 
         Attorney at Law
 
         P.O. Box 7038
 
         Spencer, Iowa 51301
 
 
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                                        2208
 
                                                        Filed 3-18-87
 
                                                        T. J. McSweeney
 
         
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         LEO ANDERSON,
 
         
 
             Claimant,                                File No. 818237
 
         
 
         VS.
 
                                                  A R B I T R A T I 0 N
 
         JOHN MORRELL & COMPANY,
 
                                                     D E C I S I 0 N
 
              Employer,
 
              Self-Insured,
 
              Defendant.
 
         
 
         
 
         2208
 
         
 
              Held in occupational hearing loss case as follows
 
         
 
              1)  That Iowa Code section 85.23 applied in occupational 
 
         hearing loss cases;
 
         
 
              2)  That claimant's action is not barred by Iowa Code 
 
         section 85.23 because defendant had actual knowledge of 
 
         claimant's alleged occupational hearing loss within ninety (90) 
 
         days of claimant discovering its compensable nature;
 
         
 
              3)  That claimant's action is not barred by Iowa Code 
 
         section 85.26 because this action was filed within two years of 
 
         the accrual of claimant's cause of action, which accrued when the 
 
         Morrell plant closed on April 27, 1985;
 
         
 
              4)  That claimant established by a preponderance of the 
 
         evidence that he sustained some hearing loss and that all of this 
 
         loss was attributable to his Morrell employment; and
 
         
 
              5)  That claimant is entitled to the cost of a hearing aid.