Page   1
 
            
 
            
 
            
 
            
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            BETTY HAMMER,                 :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :    File Nos. 888785 & 821621
 
            CLARINDA TREATMENT CENTER,    :
 
                                          :      A R B I T R A T I O N
 
                 Employer,                :
 
                                          :         D E C I S I O N
 
            and                           :
 
                                          :
 
            STATE OF IOWA,                :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendant.               :
 
            ___________________________________________________________
 
            
 
            
 
                                   introduction
 
            
 
                 These are arbitration proceedings brought by Betty 
 
            Hammer, claimant, against the Clarinda Treatment Center, 
 
            employer, and the State of Iowa, self-insured, defendant.  
 
            The cases were heard by the undersigned on January 17, l990, 
 
            in Council Bluffs, Iowa.
 
            
 
                 During the hearing, claimant withdrew her claim under 
 
            file number 821621.  The matter is hereby considered 
 
            dismissed.
 
            
 
                 The record consists of joint exhibits 1 to 102.  
 
            Additionally, the record consists of the testimony of 
 
            claimant, as well as the testimonies of Dorothy Journey, 
 
            Greg Hammer, Becky Shilhanek and Laura Harms.
 
            
 
                                      issues
 
            
 
                 As a result of the prehearing report and order 
 
            submitted and approved on January 17, l990, the issues 
 
            presented by the parties are:
 
            
 
                 1.  Whether claimant is entitled to temporary 
 
            disability/ healing period benefits or permanent partial or 
 
            total disability benefits; and,
 
            
 
                 2.  Whether claimant is entitled to medical benefits 
 
            under section 85.27.
 
            
 
                                   stipulations
 
            
 
                 Prior to the hearing, the parties entered into a number 
 
            of stipulations.  The stipulations are as follows:
 
            
 
                 1.  The existence of an employer-employee relationship 
 
            between claimant and employer at the time of the alleged 
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            injury;
 
            
 
                 2.  That claimant sustained an injury on November 7, 
 
            1985, which arose out of and in the course of employment 
 
            with employer;
 
            
 
                 3.  That the alleged injury is a cause of temporary and 
 
            permanent disability;
 
            
 
                 4.  That the type of permanent disability, if the 
 
            injury is found to be a cause of permanent disability, is 
 
            stipulated to be an industrial disability to the body as a 
 
            whole;
 
            
 
                 5.  In the event of an award of weekly benefits, the 
 
            rate of weekly compensation is stipulated to be $182.49 per 
 
            week;
 
            
 
                 6.  Defendant paid and is entitled to a credit under 
 
            section 85.38(2) for previous payment of the following 
 
            benefits under a non-occupational group plan:  long-term 
 
            disability income in the amount of $8,115.58; and,
 
            
 
                 7.  Defendant paid claimant 141 6/7 weeks of 
 
            compensation at the rate of $182.49 per week prior to 
 
            hearing.
 
            
 
                                 facts presented
 
            
 
                 Claimant is 51 years old.  She has a GED and she has 
 
            taken college course work, but she holds no degree.
 
            
 
                 Claimant commenced her employment with defendant on 
 
            September 6, l976.  She was hired as a mental health 
 
            worker/resident treatment worker.  Claimant described her 
 
            duties as supervising residents, giving medication, 
 
            transporting residents and generally caring for residents.  
 
            According to her testimony, claimant was required to lift a 
 
            minimum of 150 pounds, turn residents, feed and bathe them 
 
            and minimize altercations with residents.
 
            
 
                 Claimant related the work injury on November 7, l985.  
 
            She reported there was an altercation between a resident and 
 
            her.  The resident was ambulatory and he buckled his knees 
 
            while claimant was transporting him.  Claimant stated she 
 
            supported the patient back to his room with another 
 
            employee.  Claimant reported she felt excruciating pain in 
 
            her low back and down her leg, but she continued to work.
 
            
 
                 Claimant testified she eventually had surgery on April 
 
            6, l986.  She indicated she returned to work on October 11, 
 
            l986 where she was assigned to the substance abuse unit, a 
 
            lighter duty position.  Claimant stated she worked on this 
 
            unit until October of 1988, when she reported to her 
 
            supervisor that her pain was intolerable and claimant was 
 
            unable to continue working.
 
            
 
                 Claimant related she had a second surgery on October 7, 
 
            1988 and that this surgery only relieved claimant's leg 
 
            pain.  Claimant testified she attempted therapy through Back 
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            Care, Inc., but she was unable to complete therapy on one of 
 
            the machines.  As a consequence, claimant reported she was 
 
            dropped from the program, but she was not told she could 
 
            return to work.
 
            
 
                 Claimant also testified she returned to the treatment 
 
            complex so she could be placed on a recall list.  She stated 
 
            she was terminated on March 6, l989 and that she was 
 
            notified by letter that her position was filled and she was 
 
            no longer on the payroll.
 
            
 
                 Claimant testified she had not sought employment in 
 
            either Clarinda or in Omaha because she was not a reliable 
 
            employee and she was unfit to look for work.  She reported 
 
            she had not sought employment since April of 1986.  She also 
 
            reported she was not able to engage in vocational 
 
            rehabilitation or to work in any capacity.
 
            
 
                 Dorothy Journey testified at the hearing.  She stated 
 
            she was a good friend of claimant.  She also testified that 
 
            on September 11, l986, at the Leisure Lounge, claimant 
 
            waltzed for approximately one minute but she voiced 
 
            complaints of pain and stopped.
 
            
 
                 Greg Hammer, son of claimant, testified.  He testified 
 
            that since October of 1988, claimant's activities had been 
 
            limited.  She, according to his testimony, could only walk 
 
            for a 30 minute duration.
 
            
 
                 Becky Shilhanek testified for defendant.  She stated 
 
            she had been the director of nursing at Clarinda for four to 
 
            five years and she was claimant's supervisor.  Ms. Shilhanek 
 
            indicated she was aware of both of claimant's surgeries.  
 
            The director of nursing testified claimant informed her she 
 
            was in constant pain and could not take the sitting and 
 
            standing on the alcohol and drug unit.
 
            
 
                 Ms. Shilhanek indicated a position on the alcohol and 
 
            drug unit did not require bending and lifting and an 
 
            employee was free to move about the unit.  The director of 
 
            nursing further indicated claimant was released to return to 
 
            work in April of 1989, but claimant did not do so.  Rather, 
 
            claimant obtained benefits through the long-term disability 
 
            policy and she was dropped from the payroll effective with 
 
            the date of the disability benefits.  According to Ms. 
 
            Shilhanek, claimant had recall rights whenever she was 
 
            released from her physician's care.
 
            
 
                 Finally, the witness testified that claimant could have 
 
            returned to work in the substance abuse unit.
 
            
 
                 Laura Harms testified she was claimant's supervisor 
 
            from April of 1988 to October of 1988 and claimant's duties 
 
            at this time were of the light duty nature.  Ms. Harms 
 
            testified claimant never appeared to be suffering from back 
 
            pain and that claimant was dancing the jitterbug on the day 
 
            before her first surgery.
 
            
 
                                  applicable law
 
            
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
                 An injury is the producing cause; the disability, 
 
            however, is the result, and it is the result which is 
 
            compensated.  Barton v. Nevada Poultry Co., 253 Iowa 285, 
 
            110 N.W.2d 660 (1961); Dailey v. Pooley Lumber Co., 233 Iowa 
 
            758, 10 N.W.2d 569 (1943).
 
            
 
                 Functional impairment is an element to be considered in 
 
            determining industrial disability which is the reduction of 
 
            earning capacity, but consideration must also be given to 
 
            the injured employee's age, education, qualifications, expe
 
            rience and inability to engage in employment for which he is 
 
            fitted.  Olson v. Goodyear Service Stores, 255 Iowa 1112, 
 
            125 N.W.2d 251 (1963).  Barton, 253 Iowa 285, 110 N.W.2d 660 
 
            (1961).
 
            
 
                 A finding of impairment to the body as a whole found by 
 
            a medical evaluator does not equate to industrial disabil
 
            ity.  This is so as impairment and disability are not syn
 
            onymous.  Degree of industrial disability can in fact be 
 
            much different than the degree of impairment because in the 
 
            first instance reference is to loss of earning capacity and 
 
            in the latter to anatomical or functional abnormality or 
 
            loss.  Although loss of function is to be considered and 
 
            disability can rarely be found without it, it is not so that 
 
            a degree of industrial disability is proportionally related 
 
            to a degree of impairment of bodily function.
 
            
 
                 Factors to be considered in determining industrial dis
 
            ability include the employee's medical condition prior to 
 
            the injury, immediately after the injury, and presently; the 
 
            situs of the injury, its severity and the length of healing 
 
            period; the work experience of the employee prior to the 
 
            injury, after the injury and potential for rehabilitation; 
 
            the employee's qualifications intellectually, emotionally 
 
            and physically; earnings prior and subsequent to the injury; 
 
            age; education; motivation; functional impairment as a 
 
            result of the injury; and inability because of the injury to 
 
            engage in employment for which the employee is fitted.  Loss 
 
            of earnings caused by a job transfer for reasons related to 
 
            the injury is also relevant.  These are matters which the 
 
            finder of fact considers collectively in arriving at the 
 
            determination of the degree of industrial disability.
 
            
 
                 There are no weighting guidelines that indicate how 
 
            each of the factors are to be considered.  There are no 
 
            guidelines which give, for example, age a weighted value of 
 
            ten percent of the total value, education a value of fifteen 
 
            percent of total, motivation - five percent; work experience 
 
            - thirty percent, etc.  Neither does a rating of functional 
 
            impairment directly correlate to a degree of industrial 
 
            disability to the body as a whole.  In other words, there 
 
            are no formulae which can be applied and then added up to 
 
            determine the degree of industrial disability.  It therefore 
 
            becomes necessary for the deputy or commissioner to draw 
 
            upon prior experience, general and specialized knowledge to 
 
            make the finding with regard to degree of industrial dis
 
            ability.  See Peterson v. Truck Haven Cafe, Inc., (Appeal 
 
            Decision, February 28, 1985);  Christensen v. Hagen, Inc., 
 
            (Appeal Decision, March 26, l985).
 
            
 

 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
                 For example, a defendant employer's refusal to give any 
 
            sort of work to a claimant after he suffers his affliction 
 
            may justify an award of disability.  McSpadden v. Big Ben 
 
            Coal Co., 288 N.W.2d 181 (Iowa 1980).
 
            
 
                 Similarly, a claimant's inability to find other 
 
            suitable work after making bona fide efforts to find such 
 
            work may indicate that relief would be granted.  McSpadden, 
 
            388 N.W.2d 181 (Iowa 1980).
 
            
 
                 Under the odd-lot doctrine, which was formally adopted 
 
            by the Iowa Supreme Court in Guyton v. Irving Jensen Co., 
 
            373 N.W.2d 101 (Iowa 1985), a worker becomes an odd-lot 
 
            employee when an injury makes the worker incapable of 
 
            obtaining employment in any well-known branch of the labor 
 
            market.  An odd-lot worker is thus totally disabled if the 
 
            only services the worker can perform are so limited in 
 
            quality, dependability, or quantity that a reasonably stable 
 
            market for them does not exist.  Id., citing Lee v. 
 
            Minneapolis Street Railway Company, 230 Minn. 315, 320, 41 
 
            N.W.2d 433, 436 (1950).  The rule of odd-lot allocates the 
 
            burden of production of evidence.  If the evidence of degree 
 
            of obvious physical impairment, coupled with other facts 
 
            such as claimant's mental capacity, education, training or 
 
            age, places claimant prima facie in the odd-lot category, 
 
            the burden should be on the employer to show that some kind 
 
            of suitable work is regularly and continuously available to 
 
            the claimant.  Certainly in such a case it should not be 
 
            enough to show that claimant is physically capable of 
 
            performing light work and then round out the case for 
 
            non-compensable by adding a presumption that light work is 
 
            available.  Guyton, 373 N.W.2d at 105.
 
            
 
                 When a worker makes a prima facie case of total 
 
            disability by producing substantial evidence that the worker 
 
            is not employable in the competitive labor market, the 
 
            burden to produce evidence of suitable employment shifts to 
 
            the employer.  If the employer fails to produce such 
 
            evidence and the trier of fact finds the worker falls in the 
 
            odd-lot category, the worker is entitled to a finding of 
 
            total disability.  Even under the odd-lot doctrine, the 
 
            trier of fact is free to determine the weight and 
 
            credibility of the evidence in determining whether the 
 
            worker's burden of persuasion has been carried.  Only in an 
 
            exceptional case would evidence be sufficiently strong to 
 
            compel a finding of total disability as a matter of law.  
 
            Guyton, 373 N.W.2d at 106.  The court went on to state:
 
            
 
                 The commissioner did not in his analysis address 
 
                 any of the other factors to be considered in 
 
                 determining industrial disability.  Industrial 
 
                 disability means reduced earning capacity.  Bodily 
 
                 impairment is merely one factor in a gauging 
 
                 industrial disability.  Other factors include the 
 
                 worker's age, intelligence, education, 
 
                 qualifications, experience, and the effect of the 
 
                 injury on the worker's ability to obtain suitable 
 
                 work.  See Doerfer Division of CCA v. Nicol, 359 
 
                 N.W.2d 428, 438 (Iowa 1984).  When the combination 
 
                 of factors precludes the worker from obtaining 
 

 
            
 
            Page   6
 
            
 
            
 
            
 
            
 
                 regular employment to earn a living, the worker 
 
                 with only a partial functional disability has a 
 
                 total disability.  See McSpadden v. Big Ben Coal 
 
                 Co., 288 N.W.2d 181, 192 (Iowa 1980).
 
            
 
                                     analysis
 
            
 
                 The first issue to address is the extent of permanent 
 
            partial disability benefits to which claimant is entitled.  
 
            R. Schuyler Gooding, M.D., a treating physician, assessed a 
 
            15 percent functional impairment to claimant's condition.  
 
            However, his rating was performed after the first surgery 
 
            and before the second one.  Frank P. LaMarte, M.D., 
 
            determined claimant had an 18 percent functional impairment.  
 
            Dr. LaMarte also determined claimant was employable with the 
 
            following instructions:
 
            
 
                 1.  No frequent or continuous bending, twisting or           
 
                 stooping.
 
            2.  No lifting greater than 15 pounds more than 
 
            six      times per hour.
 
            3.  Ability to alternate sitting and standing as             
 
            needed.
 
            4.  Work four hours per day, five days per week, 
 
            for      the first month and advance one hour 
 
            each day per         month, as tolerated, until 
 
            she has reached an eight       hour day.
 
            
 
                 Another treating physician, Leslie C. Hellbusch, M.D., 
 
            determined claimant had a 25 percent functional impairment.  
 
            He opined claimant was under the subsequent restrictions:
 
            
 
                 I have recommended that she have a permanent 
 
                 twenty pound lifting restriction and that she 
 
                 should have no repetitive bending of her lower 
 
                 back.  It would be best for her to be allowed to 
 
                 move from a sitting to a standing position and 
 
                 vice versa on the job as needed.  She has had some 
 
                 experience working on "substance abuse" and states 
 
                 that she can do this type of work and that it is 
 
                 within the restrictions placed on her.  I have 
 
                 encouraged her to gradually increase her walking 
 
                 activity and have encouraged her to try to get 
 
                 back to work in April of 1989.
 
            
 
                 Ernest M. Found, Jr., M.D., and assistant professor at 
 
            the Spine Diagnostic and Treatment Center at the University 
 
            of Iowa Hospitals and Clinics did not assess a functional 
 
            impairment.  He did recommend the following:
 
            
 
                 1)  During your functional capacity assessment you           
 
                 declined to do many of the activities in spite of            
 
                 having been told that your lack of participation        
 
                 would be documented.  Because you completed so few      
 
                 of the tasks that are required for such an              
 
                 evaluation, we have no information on which to 
 
                 base       recommendations regarding your current 
 
                 abilities or    limitations.
 
            
 
                 2)  During your cardiovascular evaluation, you 
 

 
            
 
            Page   7
 
            
 
            
 
            
 
            
 
                 were            tested on the treadmill, however, 
 
                 after three          minutes at a very minimal 
 
                 level, you stopped the         test because you 
 
                 stated that you were unable to           maintain 
 
                 the expected pace on the treadmill due to     your 
 
                 back discomfort.  Our therapist was not able            
 
                 to do an adequate test, however, based on your          
 
                 performance during this testing, you would be           
 
                 suitable for only light work tasks.
 
            
 
                 3)  You could improve your overall health by                 
 
                 discontinuing smoking.
 
            
 
                 4)  We are unable to do an impairment rating 
 
                 because of      your lack of compliance with the 
 
                 testing.  Should          you need such a rating, 
 
                 it would be more               appropriate to set 
 
                 up an appointment with the          surgeon who 
 
                 performed your prior surgeries.
 
            
 
                 5)  We have no recommendations for your future               
 
                 treatment.
 
            
 
                 John C. Goldner, M.D., did not provide a functional 
 
            impairment rating.  Nevertheless, he opined:  "Claimant was 
 
            capable of function[ing] in a job that would be consistent 
 
            with her education, training and experience.  I do not feel 
 
            that this should involve lifting or bending and I have 
 
            completed the medical questionnaire which you provided me in 
 
            this regard.  I feel her condition likely will remain stable 
 
            although it possibly could improve somewhat, perhaps with 
 
            the use of medications..."
 
            
 
                 After reviewing the medical opinions of the above, it 
 
            is the determination of the undersigned that claimant has a 
 
            functional impairment of 18 percent.
 
            
 
                 Claimant asserts she is permanently and totally 
 
            disabled under Guyton.  Such is not the case.  Claimant is 
 
            capable of obtaining employment in a well known branch of 
 
            the labor market. Claimant's long standing treating 
 
            physician released claimant to work in the substance abuse 
 
            unit at Clarinda on April 29, l989.  No physician stated 
 
            claimant was incapable of working.  Claimant did not return 
 
            to work.  This was a personal decision.  She did not even 
 
            complete the requisite forms so she could be placed on a 
 
            recall list at Clarinda.
 
            
 
                 Only James T. Rogers, a certified professional 
 
            counselor, opined claimant is unemployable.  He attributed 
 
            the unemployability to claimant's subjective complaints of 
 
            pain and not to objective findings.  Not much weight is 
 
            accorded to Mr. Rogers' opinion as he saw claimant on only 
 
            one occasion.
 
            
 
                 Claimant is definitely not motivated to return to her 
 
            former position.  Nor is she motivated to seek other 
 
            employment.  Claimant is not even motivated enough to 
 
            continue her physical therapy.  Claimant has two years of 
 
            college, yet she has made no attempt to return to school.
 

 
            
 
            Page   8
 
            
 
            
 
            
 
            
 
            
 
                 From the evidence presented, it appears claimant's 
 
            "anger, frustration and bitterness" (Exhibit 1) have 
 
            interfered with any progress she could obtain.  All of 
 
            claimant's records are filled with comments such as, "Betty 
 
            is very much focused on her pain..." (Ex. 3), and:
 
            
 
                 [I]t is my impression that the anger, frustration 
 
                 and bitterness that Betty Hammer feels at the Iowa 
 
                 Workers' Compensation system, the Clarinda Mental 
 
                 Health Institute, and the medical system is 
 
                 completely dominating her thoughts at this time 
 
                 and she simply could not today, break free from 
 
                 this bitterness and anger to discuss any sort of 
 
                 an approach which would help to make her more 
 
                 functional.
 
            
 
            (Ex. 1)
 
            
 
                 Therefore, in light of the foregoing, it is the 
 
            determination of the undersigned that claimant has a 
 
            permanent partial disability to the body as a whole in the 
 
            sum of 20 percent.  This finding is based upon:  1) the 
 
            aforementioned considerations; 2) based upon the personal 
 
            observation of claimant; 3) based upon claimant's testimony; 
 
            and 4) based upon agency expertise (Iowa Administrative 
 
            Procedures Act 17A.14(s).
 
            
 
                 The next issue to address is the extent of entitlement 
 
            to healing period benefits.  It appears undisputed.  
 
            Claimant was off work from April 4, l986 to October 11, 
 
            1986, (27 weeks) and from October 17, l988 to the present 
 
            but claimant was able to return to work on April 24, l988, 
 
            per Dr. Hellbusch.  It is the determination of the 
 
            undersigned that claimant is entitled to 55.429 weeks of 
 
            healing period benefits.
 
            
 
                 The final issue to address is the extent of medical 
 
            benefits under section 85.27 to which claimant is entitled.  
 
            Claimant is seeking payment for the following:
 
            
 
                 1.  Methodist Hospital
 
                8303 Dodge Street
 
                Omaha, NE  68114
 
                (8/11/88)                            $ 455.00
 
                (9/9/88 - 9/14/88)                     554.00
 
                (10/7/88 - 10/11/88)                 3,240.04
 
            
 
                 2.  Midwest Neurosurgery, P.C.
 
                8111 Dodge Street, Suite 339
 
                Omaha, NE  68114
 
                (8/11/88 - 10/7/88)                  2,742.00
 
            
 
                 3.  The Pathology Center
 
                8300 Dodge Street
 
                Omaha, NE  68114
 
                (10/7/88)                               42.70
 
            
 
                 4.  Center for Diagnostic Imaging
 
                8303 Dodge Street
 

 
            
 
            Page   9
 
            
 
            
 
            
 
            
 
                Omaha,  NE  68114
 
                (8/11/88)                              155.00
 
                (9/9/88)                               211.00
 
                (10/7/88)                               24.00
 
            
 
                 5.  The University of Iowa Hospitals
 
                     and Clinics
 
                     (11/30/89)                              67.75
 
            
 
                     TOTAL                               $7,491.49
 
            
 
                 The expenses appear necessary and reasonable.  It is 
 
            true claimant did not notify defendant until the "eleventh 
 
            hour" of her pending surgery by Dr. Hellbusch.  
 
            Nevertheless, defendant did not voice any complaints to 
 
            treatment by Dr. Hellbusch or any of the above.  It is the 
 
            decision of this deputy industrial commissioner that 
 
            defendant acquiesced to the medical treatment.  Therefore, 
 
            defendant is liable for the above expenses.
 
            
 
                     findings of fact and conclusions of law
 
            
 
                 WHEREFORE, based upon the stipulations, the evidence 
 
            presented and the principles of law previously stated, the 
 
            following findings of fact and conclusions of law are made:
 
            
 
                 Finding 1.  Claimant withdrew file number 821621 during 
 
            the hearing.
 
            
 
                 Conclusion A.  Claimant takes nothing from file number 
 
            821621.
 
            
 
                 Finding 2.  Claimant has proven by a preponderance of 
 
            the evidence that she has a functional impairment of 18 
 
            percent as a result of her work injury on November 7, l985.
 
            
 
                 Finding 3.  Claimant had surgeries in 1986 and in 1988.
 
            
 
                 Finding 4.  Claimant was released to return to work on 
 
            April 24, l989, by her treating physician, Dr. Hellbusch.
 
            
 
                 Finding 5.  Claimant did not return to work on April 
 
            24, l989, or on any date subsequent.
 
            
 
                 Finding 6.  Claimant is capable of maintaining 
 
            meaningful employment.
 
            
 
                 Conclusion B.  Claimant has met her burden of proving 
 
            she has a 20 percent permanent partial disability 
 
            attributable to her work injury on November 7, l985.
 
            
 
                 Conclusion C.  Claimant has met her burden of providing 
 
            she is entitled to healing period benefits for 55.429 weeks.
 
            
 
                 Finding 7.  Claimant has incurred medical expenses as 
 
            follows:
 
            
 
                 1.  Methodist Hospital
 
                8303 Dodge Street
 
                Omaha, NE  68114
 

 
            
 
            Page  10
 
            
 
            
 
            
 
            
 
                (8/11/88)                            $ 455.00
 
                (9/9/88 - 9/14/88)                     554.00
 
                (10/7/88 - 10/11/88)                 3,240.04
 
            
 
                 2.  Midwest Neurosurgery, P.C.
 
                8111 Dodge Street, Suite 339
 
                Omaha, NE  68114
 
                (8/11/88 - 10/7/88)                  2,742.00
 
            
 
                 3.  The Pathology Center
 
                8300 Dodge Street
 
                Omaha, NE  68114
 
                (10/7/88)                               42.70
 
            
 
                 4.  Center for Diagnostic Imaging
 
                8303 Dodge Street
 
                Omaha,  NE  68114
 
                (8/11/88)                              155.00
 
                (9/9/88)                               211.00
 
                (10/7/88)                               24.00
 
            
 
                 5.  The University of Iowa Hospitals
 
                     and Clinics
 
                     (11/30/89)                              67.75
 
            
 
                     TOTAL                               $7,491.49
 
            
 
                 Conclusion D.  Defendant is liable for the 
 
            aforementioned medical expenses.
 
            
 
                                      order
 
            
 
                 THEREFORE, with respect to file 821621, claimant will 
 
            take nothing from these proceedings.
 
            
 
                 THEREFORE, with respect to file 888785, defendant is to 
 
            pay unto claimant one hundred (100) weeks of permanent 
 

 
            
 
            Page  11
 
            
 
            
 
            
 
            
 
            partial disability benefits at the stipulated rate of one 
 
            hundred eighty-two and 49/l00 dollars (182.49) per week as a 
 
            result of the injury on November 7, l985.
 
            
 
                 Defendant is to also pay unto claimant fifty-five point 
 
            four-two-nine (55.429) weeks of healing period benefits at 
 
            the stipulated rate of one hundred eighty-two and 49/l00 
 
            dollars ($182.49) per week as a result of the injury on 
 
            November 7, 1985.
 
            
 
                 Defendant is responsible for medical benefits in the 
 
            sum of seven thousand four hundred ninety-
 
            one and 49/l00 dollars (7,491.49).
 
            
 
                 Payments that have accrued shall be paid in a lump sum 
 
            together with statutory interest thereon pursuant to Iowa 
 
            Code section 85.30.
 
            
 
                 Defendants are to be given credit for all benefits 
 
            previously paid claimant as stipulated by the parties.
 
            
 
                 Costs of file number 821621 are assessed to claimant.
 
            
 
                 Costs of file number 888785 are assessed to defendant.  
 
            The following costs are allowed:
 
            
 
                 1.  August 1988 to Midwest Neurosurgery for medical 
 
            report - 
 
                     $80.00;
 
            
 
                 2.  September 1988 to Midwest Neurosurgery for medical               
 
            report - $40.00;
 
            
 
                 3.  November 17, l988 to Iowa Industrial Commissioner 
 
            for                               filing fee - $65.00;
 
            
 
                 4.  March 9, 1989 to Blair and Associates for 
 
            deposition -                           $59.15;
 
            
 
                 5.  March 17, 1989 to Midwest Neurosurgery for medical               
 
            report - $30.00;
 
            
 
                 6.  October 18, l989 to Midwest Neurosurgery for 
 
            medical                                report - $20.00;
 
            
 
                 7.  October 20, 1989 to Midlands Rehabilitation for                  
 
            evaluation and report - $150.00;
 
            
 
                 8.  January 12, 1990 to Blair and Associates for 
 
            deposition                        $31.00;
 
            
 
                 9.  January 15, 1990 to Kwik Kopy for photocopies of                 
 
            Exhibits - $164.94
 
            
 
                     TOTAL - $640.09
 
            
 
                 Defendant shall file a claim activity report upon 
 
            payment of this award.
 
            
 
            
 

 
            
 
            Page  12
 
            
 
            
 
            
 
            
 
            
 
                 Signed and filed this ____ day of March, 1990.
 
            
 
            
 
            
 
            
 
            
 
                                          ______________________________               
 
            MICHELLE A. McGOVERN
 
                                          DEPUTY INDUSTRIAL COMMISSIONER
 
            
 

 
            
 
            Page  13
 
            
 
            
 
            
 
            
 
            
 
            
 
            
 
            Copies To:
 
            
 
            Mr. Sheldon M. Gallner
 
            Attorney at Law
 
            803 Third Ave
 
            P O Box 1588
 
            Council Bluffs  IA  51502
 
            
 
            Ms. Joanne Moeller
 
            Assistant Attorney General
 
            Hoover State Office Bldg
 
            Des Moines  IA  50319
 
            
 
 
            
 
 
 
 
 
 
 
             
 
                    
 
                 BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         HARLAN J. BRADY, Deceased,
 
         MARIE BRADY, Surviving Spouse,
 
                                                       File No. 821622
 
              Claimant,
 
                                                    A R B I T R A T I O N
 
         vs.
 
                                                       D E C I S I O N
 
         IOWA STATE PENITENTIARY,
 
         
 
              Employer,                                   F I L E D
 
         
 
         and                                             JAN 25 1990
 
         
 
         STATE OF IOWA,                              INDUSTRIAL SERVICES
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
                                   INTRODUCTION
 
         
 
              This is a proceeding in arbitration which was initially 
 
         commenced by Harlan J. Brady and has subsequently been continued 
 
         by his surviving spouse, Marie Brady, against the Iowa State 
 
         Penitentiary and state of Iowa.  The case was heard and fully 
 
         submitted at Burlington, Iowa on July 13, 1989.  The record in 
 
         the proceeding consists of testimony from Marie Brady, now known 
 
         as Marie Brady Holmes, John Henry and Stephen Korb.  The record 
 
         also contains claimant's exhibits 1 through 28 and defendants' 
 
         exhibits A and C through S.
 
         
 
                                      ISSUES
 
         
 
              Claimant alleges that Harlan J. Brady sustained an injury in 
 
         the form of a heart attack on March 31, 1986 which arose out of 
 
         and in the course of his employment and seeks compensation for 
 
         weekly disability from the date of that injury until September 
 
         14, 1986, the date of Harlan J. Brady's death.  Claimant seeks 
 
         death benefits under section 85.31.  The primary issue identified 
 
         by the parties for determination is whether Harlan J. Brady's 
 
         death is a result of an injury which arose out of and in the 
 
         course of his employment.  It was stipulated that in the event 
 
         defendants are held liable, claimant is entitled to recover 
 
         weekly compensation for healing period from March 31, 1986 until 
 
         September 14, 1986 and that the appropriate rate of compensation 
 
         is $317.53 per week.
 
         
 
                               SUMMARY OF EVIDENCE
 
         
 
              The following is a summary of evidence presented in this 
 
         case.  Only the evidence most pertinent to this decision is 
 
                                                
 
                                                         
 
         discussed, but all of the evidence received at the hearing was 
 
         considered in arriving at this decision.  Conclusions about what 
 
         the evidence showed are inevitable with any summarization.  The 
 
         conclusions in the following summary should be considered to be 
 
         preliminary findings of fact.
 
         
 
              Harlan John Brady died of cardiogenic shock and ischemic 
 
         cardiomyopathy on September 14, 1986 at the age of 53 (exhibit 3, 
 
         page 53).  He was survived by his spouse, Bonnie Marie Brady, who 
 
         is sometimes referred to in these proceedings as Marie Brady or 
 
         Marie Brady Holmes.  He is also survived by adult children.
 
         
 
              Harlan J. Brady had served in the United States Army for 21 
 
         years, 9 months.  He retired from the Army on July 31, 1976 
 
         holding the rank of Major (exhibit E, pages 171 and 236).  He was 
 
         awarded a 40 percent disability from the Veterans Administration 
 
         as a result of his service connected left kidney removal and 
 
         obstructive pulmonary disease (exhibit E, page 275).
 
         
 
              Following his retirement from the Army, Harlan Brady worked 
 
         briefly as a self-employed counselor.  On January 7, 1977 he 
 
         commenced employment at the Iowa State Penitentiary as a 
 
         correctional counselor I where he was involved in the case 
 
         management of inmates and conducted group and individual 
 
         counseling with them (exhibit E, pages 272 and 279).  Harlan was 
 
         eventually promoted to the position of correctional counselor II. 
 
         After being rejected on several occasions, he was promoted to the 
 
         position of psychologist I effective March 26, 1982 (exhibit E, 
 
         pages 161 and 163).  Harlan Brady was again promoted effective 
 
         September 10, 1982 to the position of treatment services 
 
         director, a position which is sometimes referred to in the record 
 
         of this case as "unit manager."  (Exhibit E, pages 159 and 160.)  
 
         The position of treatment services director is a supervisory 
 
         position with various duties as shown in the performance plans 
 
         which are found in exhibit E.  He was in charge of two cell 
 
         houses in the prison.
 
         
 
              Marie Brady Holmes, Harlan Brady's surviving spouse, was 
 
         also employed at the Iowa State Penitentiary.  She was initially 
 
         a substance abuse counselor, but was subsequently made an 
 
         administrative assistant to the warden.  Marie Brady became 
 
         involved in litigation with the warden.  Both she and Harlan 
 
         experienced stress from the litigation.
 
         
 
              Marie Brady testified that prior to the time of his death, 
 
         she and Harlan believed that a move was underway to create a 
 
         basis for firing Harlan.  Harlan had been disciplined for an 
 
         incorrect decision concerning the custodial treatment of an 
 
         inmate (exhibit E, page 48; exhibit 11, pages 90-92).  Marie 
 
         stated that it was the only time he had ever been disciplined.  
 
         Marie testified that Harlan had been sued by inmates on a number 
 
         of occasions shortly prior to his death (exhibit 11, pages 
 
         72-89).
 
         
 
              Marie testified that Warden Crispus Nix had told her that a 
 
                                                
 
                                                         
 
         contract had been taken out to have Harlan killed.  Marie stated 
 
         that she and Harlan both believed what the warden had told her 
 
         and that Harlan was upset by it.
 
         
 
              Marie stated that Harlan began to act more cautiously.  She 
 
         stated that there had been a hostage situation in the prison in 
 
         one of the cell houses and that Harlan had been told that his 
 
         cell house was going to be the next location for an uprising.  
 
         She stated that he had requested that the warden authorize a 
 
         shakedown of the cell house for which Harlan was responsible, but 
 
         that the warden refused the request.
 
         
 
              Marie Brady stated that while Harlan was hospitalized at the 
 
         University of Iowa Hospitals in Iowa City, he discussed things 
 
         with her and spoke of a meeting which involved John Henry, 
 
         Stephen Korb, Jerry Menadue and Jim Helling during the morning of 
 
         his last day of work.  Marie stated that Harlan was of the 
 
         opinion that Jerry Menadue had been involved in some type of gang 
 
         activity and was possibly the hit man for the contract which 
 
         Harlan believed was in existence.  Marie stated that Menadue was 
 
         the parole board liaison at the penitentiary and had been 
 
         incarcerated for violent crimes at the penitentiary in the past.  
 
         Marie stated that Harlan told her that he felt chest pains start 
 
         during that meeting.
 
         
 
              Marie stated that on March 31, 1986 Harlan feared for his 
 
         life.  She stated that he was under more stress than was normal 
 
         for his job.  She stated that the stress level was greater than 
 
         it had been approximately four months earlier.
 
         
 
              Marie Brady has a bachelor's degree in psychology and also 
 
         the equivalent of a master's degree in public administration.  
 
         She stated that she obtained the studies which appear in the 
 
         record as exhibits 6, 7, 8, 9, 10 and 11 as part of a research 
 
         project which the warden had directed in response to a request 
 
         from the employee union for a stress management program.
 
         
 
              Marie stated that during the weekend prior to March 31, 
 
         1986, Harlan had been spending his time trying to keep her stable 
 
         as a result of her reaction to the litigation in which she was 
 
         involved with the warden and also with her difficulties from the 
 
         Raynaud's phenomenon which afflicts her.
 
         
 
              Marie Brady remarried on December 31, 1988 and is now known 
 
         as Marie Brady Holmes.
 
         
 
              On March 31, 1986, Harlan Brady went to work at his normal 
 
         time of approximately 8:00 a.m.  Later that morning he left work 
 
         complaining of pain in his neck with possible complaints of pain 
 
         in his left arm and difficulty breathing.  Harlan sought 
 
         treatment from William H. Whitley, M.D.  Dr. Whitley prescribed 
 
         Motrin for Harlan's stiff neck.  Harlan went home, but 
 
         experienced upper dorsal and chest pain that evening and 
 
         subsequently returned to the hospital emergency room.  At that 
 
         time Harlan was admitted to the hospital with a diagnosis of an 
 
                                                
 
                                                         
 
         acute inferior myocardial infarction (exhibits 24 and K).  After 
 
         being seen by Artemio C. Santiago, M.D., a specialist in internal 
 
         medicine, it was decided that Harlan's treatment should be 
 
         transferred to the University of Iowa Hospitals.
 
         
 
              Claimant remained at the University of Iowa Hospitals until 
 
         discharged on May 19, 1986.  While there, he was tested 
 
         extensively.  The final diagnosis was acute inferolateral 
 
         myocardial infarction due to thrombolytic occlusion of the distal 
 
         right coronary artery; two vessel coronary artery disease; severe 
 
         left ventricle dysfunction; trivial mitral regurgitation; . . . 
 
         and cardiogenic shock (exhibits 2 and L).  While hospitalized, 
 
         numerous complications occurred including identification of a 
 
         colonic adenocarcinoma, acute respiratory distress syndrome, 
 
         fevers, jaundice and staph infections (exhibit 2, pages 28 and 
 
         29; exhibit M).
 
         
 
              Harlan was readmitted to the University of Iowa Hospitals on 
 
         June 19, 1986 and subsequently discharged on June 24, 1986.  The 
 
         diagnosis at that time included congestive heart failure with 
 
         left ventricular ejection fraction of 26 percent as well as those 
 
         which had previously been made (exhibit 2, pages 30-32; exhibit 
 
         P).
 
         
 
              Following his initial discharge from the hospital, Harlan's 
 
                               
 
                                                         
 
         condition deteriorated progressively.  He was considered to be 
 
         totally disabled.  Dr. Santiago reported that claimant had severe 
 
         congestive heart failure and ischemic cardiomyopathy (exhibit Q; 
 
         exhibit 2, pages 130 and 131).  Claimant was awarded long-term 
 
         disability benefits through the employer's group carrier (exhibit 
 
         F).  He came to require skilled nursing care (exhibit 16, pages 
 
         134-136; exhibit 17, page 163; exhibit N).  The treatment notes 
 
         of his physician showed his deteriorated condition (exhibit 17, 
 
         pages 144-147; exhibit O).  On August 12, 1986, Harlan reentered 
 
         the hospital where he remained until August 25, 1986 (exhibit H). 
 
         Harlan was again hospitalized from September 10, 1986 until 
 
         September 14, 1986, the date of his death (exhibit 17, page 161; 
 
         exhibit 3, page 53).
 
         
 
              Jerry Menadue, the parole liaison officer at the 
 
         penitentiary, stated that he was unaware of Harlan being under 
 
         any particular stress at work, being the subject of a contract or 
 
         death threat, requesting a shakedown of the unit, or being taken 
 
         hostage.  Menadue could not recall whether he had been at a 
 
         meeting with Harlan shortly prior to the time Harlan was noted to 
 
         have a heart attack (exhibit 28).
 
         
 
              Testimony of James G. Helling was presented by deposition. 
 
         Helling was unaware of Harlan ever being a hostage in 1986, of 
 
         any death threats being made against Harlan, of Harlan ever 
 
         requesting a unit shakedown or of any particular stress being 
 
         placed on Harlan at work.  Helling did not recall any meeting 
 
         with Harlan where Harlan complained of neck pains and did not 
 
         recall Harlan ever being disciplined (exhibit 28).
 
         
 
              John Henry, deputy warden for operations, was Harlan's 
 
         supervisor.  Henry confirmed that Harlan had been in charge of 
 
         two cell houses in the prison.  Henry was not aware of any death 
 
         threats being made against Harlan during the last few months 
 
         prior to March 31, 1986.  Henry could not recall Harlan 
 
         requesting to have a unit shakedown.
 
         
 
              Henry stated that he had last seen Harlan on about March 31 
 
         when Harlan reported being ill and requested to go home.  Henry 
 
         stated that there are common informal meetings and that one could 
 
         have occurred during that morning.  Henry could not recall Harlan 
 
         expressing any fear of being taken hostage.  Henry agreed that 
 
         inmates have on occasion attacked staff and that the possibility 
 
         of a hostage situation occurring is a reality.  Henry was unaware 
 
         of any death threats being made against Harlan or of Harlan ever 
 
         mentioning receiving death threats.
 
         
 
              Stephen Korb, another unit manager at the Iowa State 
 
         Penitentiary, testified at hearing and also by way of deposition. 
 
         Korb stated that he saw Harlan on the morning he became ill and 
 
         that Harlan seemed to be not feeling well.  Korb related that 
 
         Harlan had stated that his neck hurt.
 
         
 
              Korb was not aware of any unusual events which had occurred 
 
         on that day or in prior weeks which may have affected Harlan.  He 
 
                                                
 
                                                         
 
         stated that death threats are not uncommon in the penitentiary, 
 
         but that he did not recall any against Harlan in the weeks 
 
         preceding March 31, 1986.
 
         
 
              Roger Lawson, another unit manager, testified by way of 
 
         deposition, exhibit 28.  Lawson stated that he had seen Harlan 
 
         come in to Henry's office and state that he was not feeling well. 
 
         Lawson was not aware of any death threats being made against 
 
         Harlan.  He stated that he was unaware of any attempts to cause 
 
         Harlan to be fired or of any request from Harlan to have his unit 
 
         shaken down.
 
         
 
              Crispus C. Nix, Warden of the penitentiary, testified by way 
 
         of deposition.  Nix stated that he was not aware of Harlan being 
 
         under any unusual mental stress prior to the time of his heart 
 
         attack.  Nix stated that inmate suits occur on an almost daily 
 
         basis and that it is common for members of the staff to be named 
 
         in them (exhibit C, pages 5 and 6).  Nix further testified that 
 
         he was unaware of any death threats being made against Harlan and 
 
         had not told Harlan that there was a contract out on him (exhibit 
 
         C, pages 7 and 8).  Nix denied refusing any request from Harlan 
 
         to have the unit shaken down (exhibit C, page 9).  Nix agreed 
 
         that threats are made by inmates daily and that on occasion staff 
 
         have been injured by inmates.  Nix agreed that the penitentiary 
 
         can be a dangerous place since 40 percent of the inmates 
 
         incarcerated there have committed some type of murder (exhibit C, 
 
         pages 11-14).
 
         
 
              Exhibit 6 is a newsletter published by Iowa state government 
 
         dated May 21, 1986.  The newsletter points out the need for state 
 
         government managers to deal with employee stress.  It refers to 
 
         an American Heart Association estimate that stress-induced 
 
         cardiovascular disease costs $26.7 billion annually in the United 
 
         States.  Exhibits 7 and 10 are manuals used for providing stress 
 
         management training for correctional officers.  Exhibit 8 is a 
 
         study of corrections employees' own perceptions of stress in 
 
         their workplaces.  Exhibit 9 is an analysis of how the 
 
         corrections environment develops stress in its employees.  The 
 
         document notes that correctional officers have one of the highest 
 
         rates of heart attacks among occupational groups.
 
         
 
              Edward F. McKenney, D.O., indicated that Harlan was totally 
 
         disabled due to congestive heart failure which had resulted from 
 
         the myocardial infarction (exhibit 23, page 274).  Dr. McKenney, 
 
         one of claimant's treating physicians, declined to express an 
 
         opinion on the cause of Harlan's coronary artery disease or 
 
         myocardial infarction.  He stated that stress can cause heart 
 
         disease.  Dr. McKenney stated that Harlan did have coronary 
 
         artery disease and that as a result of that disease, had a 
 
         myocardial infarction, became disabled and died (exhibit 21, page 
 
         271; exhibit R).
 
         
 
              J. Michael Kioschos, M.D., the Assistant Director of the 
 
         Cardiovascular Clinic at the University of Iowa Hospitals, was 
 
         involved in Harlan's treatment.  Dr. Kioschos stated that stress 
 
                                                
 
                                                         
 
         does not cause coronary artery disease, but that stress can cause 
 
         vasoconstriction which can result in myocardial ischemia or 
 
         necrosis and lead to sudden death.  He stated that if Harlan's 
 
         myocardial infarction occurred when he was under stress, it is 
 
         possible that the heart attack was job related (exhibits 26 and 
 
         S).  Dr. Kioschos agreed that it was possible that extreme stress 
 
         over a period of a couple days could trigger a heart attack.
 
         
 
              Dr. Kioschos went on to state that the type of stress which 
 
         could cause such a reaction is acute stress, rather than 
 
         long-term stress.  He stated that it would be possible, but 
 
         unusual, for stress from Harlan's job to have caused the heart 
 
         attack (exhibit 27, pages 6 and 7).  He stated that the most 
 
         likely cause of Harlan's myocardial infarction was long-standing 
 
         severe coronary artery disease, a progressive condition which had 
 
         developed over a number of years.  Dr. Kioschos attributed 
 
         Harlan's coronary artery disease to a positive family history and 
 
         Harlan having been a heavy smoker (exhibit 27, pages 4 and 5).
 
         
 
              Dr. Kioschos stated that if Harlan's history immediately 
 
         preceding the heart attack included experiencing chest pain while 
 
         raking during the weekend and getting up with a stiff neck on 
 
         Monday morning, that such is an indication that the heart attack 
 
         had started on Saturday while Harlan was still at home (exhibit 
 
         27, pages 7 and 8).  The history of Harlan having experienced 
 
         chest pain on Saturday while raking the yard is found in exhibits 
 
         24 and K.
 
         
 
                         APPLICABLE LAW AND ANALYSIS
 
         
 
              Claimant has the burden of proving by a preponderance of the 
 
         evidence that Harlan Brady received an injury on March 31, 1986 
 
         which arose out of and in the course of 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 "arising out of" refer to the cause or source of 
 
         the injury.  McClure v. Union County, 188 N.W.2d 283, 281 (Iowa 
 
         1971); Crowe v. DeSoto Consol. Sch. Dist., 246 Iowa 402, 68 
 
         N.W.2d 63 (1955).  The "arising out of" requirement is satisfied 
 
         by showing a causal relationship between the employment and the 
 
         injury.  Sheerin v. Holin Co., 380 N.W.2d 415, 417 (Iowa 1986).
 
         
 
              Aggravation of a preexisting condition is one form of 
 
         compensable injury.  While a claimant is not entitled to 
 
         compensation for the results of a preexisting injury or disease, 
 
         the mere existence at the time of a subsequent injury is not a 
 
         defense.  Rose v. John Deere Ottumwa Works, 247 Iowa 900, 908, 76 
 
                                                
 
                                                         
 
         N.W.2d 756, 760-61 (1956).  If the claimant had a preexisting 
 
         condition or disability that is aggravated, accelerated, worsened 
 
         or lighted up so that it results in disability, claimant is 
 
         entitled to recover.  Nicks v. Davenport Produce Co., 254 Iowa 
 
         130, 115 N.W.2d 812, 815 (1962).
 
         
 
              In this case it is clear that Harlan Brady had a previously 
 
         diseased heart and that he suffered a heart attack on or about 
 
         March 31, 1986.  From the record there appears to be no basis for 
 
         any dispute regarding the fact of the occurrence of the heart 
 
         attack, its disabling result and the fact that it led to his 
 
         death.  The crucial issue in this case is whether Harlan,Brady's 
 
         employment, in particular the stress of the employment, was a 
 
         proximate cause for producing the heart attack which led to his 
 
         disability and death.  For a cause to be proximate, it must be a 
 
         substantial factor in producing the result.  It need not be the 
 
         only cause.  Blacksmith v. All-American, Inc., 290 N.W.2d 348, 
 
         354 (Iowa 1980).
 
         
 
              The legal standard for compensability of a heart attack 
 
         where the heart is previously weakened or diseased has been long 
 
         established.  It requires both causation in fact and legal 
 
         causation.  Sondag v. Ferris Hardware, 220 N.W.2d 903, 905 (Iowa 
 
         1974); Littell v. Lagomarcino Group Co., 235 Iowa 523, 17 N.W.2d 
 
         120 (1945); Guyon v. Swift & Co., 229 Iowa 625, 295 N.W. 185 
 
         (1940).  The first situation in which compensability is allowed 
 
         is when the evidence shows an instance of unusually strenuous 
 
         employment exertion.  The second is when the evidence shows the 
 
         employment to contribute exertion which is greater than the 
 
         exertions of normal nonemployment life.  The comparison is not 
 
         with the particular employee's usual exertion in his employment, 
 
         but with the exertions of normal nonemployment life of the 
 
         employee or any other person.
 
 
 
                               
 
                                                         
 
         
 
              The standard for comparison is not particularly definite.  
 
         The range of exertion of nonemployment life varies tremendously 
 
         among individuals.  There are those who run in marathons while 
 
         others are predominantly sedentary.  The undersigned is of the 
 
         opinion that normal nonemployment life brings with it moderate 
 
         levels of physical exertion such as mowing one's own yard, 
 
         carrying groceries, shoveling snow, playing golf and other 
 
         activities which provide a similar level of physical exertion.  An 
 
         important factor, however, is that in normal nonemployment life 
 
         the individual is able to perform the activities at a rate or pace 
 
         which the individual sets, rather than being forced or encouraged 
 
         to work at a competitively productive rate by an employer or 
 
         supervisor.  There is nothing in the record of this case to show 
 
         that Harlan Brady engaged in any substantial level of physical 
 
         exertion connected with his employment on or about March 31, 
 
         1986.
 
         
 
              From the evidence introduced it would appear that the Iowa 
 
         State Penitentiary would be a somewhat stressful place in which 
 
         to be employed.  The risk of physical harm from inmates is 
 
         certainly present.  The testimony from Marie, however, regarding 
 
         stresses peculiar to Harlan or stresses which had arisen shortly 
 
         prior to March 31, 1986 is not corroborated by other evidence in 
 
         the record.  There is simply no corroboration of her testimony 
 
         regarding a meeting during the morning of March 31, 1986.  There 
 
         is no corroboration of any knowledge of a contract or death 
 
         threats against Harlan.  There is no corroboration of any plan or 
 
         device to cause Harlan to lose his job.  There is no 
 
         corroboration of her testimony regarding a refusal to have 
 
         Harlan's unit shaken down.  In fact, the bulk of the evidence in 
 
         the case from Harlan's coworkers and Warden Nix is contrary to 
 
         Marie's testimony.  The record shows Harlan to have received good 
 
         employee evaluations. The one reprimand imposed against him was 
 
         done in August of 1985, approximately seven months before the 
 
         heart attack occurred.  The evidence fails to establish that 
 
         Harlan Brady's employment on March 31, 1986 or during the 
 
         preceding days provided any unusual stress or exertion in 
 
         comparison to the stresses and exertions which appear to be 
 
         relatively normal for the job.  There is no corroboration for 
 
         Marie's statements that the inmate lawsuits particularly bothered 
 
         Harlan.  There is no indication that the state had refused to 
 
         represent Harlan's interests in those lawsuits.
 
         
 
              As with physical exertion, emotional stress also provides a 
 
         wide range of nonemployment stress exposures.  Some individuals 
 
         get along well with their spouse, neighbors and children.  They 
 
         are financially secure.  Other individuals live in a state of 
 
         constant turmoil with ongoing altercations with the neighbors, 
 
         harassment from bill collectors and a great deal of domestic 
 
         discord.  The undersigned is of the opinion that normal 
 
         nonemployment life includes disagreements with neighbors and 
 
         family.  It includes dealing with disagreeable individuals at 
 
         inconvenient times.  It is important to note that the basis for 
 
         comparison of the level of stress is normal nonemployment life, 
 
                                                
 
                                                         
 
         rather than the stresses which are normally found in the 
 
         employment.  It is therefore determined that the stress level to 
 
         which Harlan Brady was subjected in his employment at the Iowa 
 
         State Penitentiary was greater than the stresses of normal 
 
         nonemployment life.  Normal nonemployment life does not carry 
 
         with it a recognized substantial risk of physical harm from 
 
         individuals who are known to be violent.  It does not carry with 
 
         it the level of stress associated with making decisions which, on 
 
         a day-to-day basis, can result in litigation being commenced 
 
         against the person.  The stresses of many supervisory positions 
 
         with many employers with a high level of responsibility and 
 
         accountability would often exceed the stresses of normal 
 
         nonemployment life.  The penitentiary is no exception.
 
         
 
              The theory for recovery in this case is actually one of 
 
         physical injury in the form of a heart attack resulting from 
 
         emotional or mental stress.  It is therefore appropriate to 
 
         consider this case as one where the theory of recovery is based 
 
         upon emotional trauma resulting from physical injury.  Under the 
 
         "Wisconsin Rule" a recovery requires that the injury result from 
 
         emotional trauma or stress which is of greater dimension than the 
 
         stresses which all employees experience on a day-to-day basis. 
 
         Desgranges v. Dep't of Human Servs., file number 760747 (App. 
 
         Decn. August 19, 1988); Swiss Colony v. Dept of Industry L. & H. 
 
         R., 240 N.W.2d 128 (Wis. 1976); School Dist. No. 1 v. Dep't of 
 
         Industry L. & H. R., 215 N.W.2d 373 (Wis. 1974); Meyer v. 
 
         Nottger, 241 N.W.2d 911 (Iowa 1976).  It would appear from the 
 
         record made that the stresses experienced by Harlan Brady in his 
 
         employment were of greater dimension than the stresses which all 
 
         employees experience on a day-to-day basis.  Again, such a 
 
         situation would be common among many supervisory employees who 
 
         have a high level of responsibility and accountability.  Work in 
 
         the prison setting would likewise often meet the standard.
 
         
 
              In order to recover, it is essential that causation in fact, 
 
         or medical causation be established.  The question of causal 
 
         connection is essentially within the domain of expert medical 
 
         testimony.  Bradshaw v. Iowa Methodist Hospital, 251 Iowa 375, 
 
         101 N.W.2d 167 (1960).
 
         
 
              However, expert medical evidence must be considered with all 
 
         other evidence introduced bearing on the causal connection.  
 
         Burt, 247 Iowa 691, 73 N.W.2d 732.  The opinion of experts need 
 
         not be couched in definite, positive or unequivocal language.  
 
         Sondag v. Ferris Hardware, 220 N.W.2d 903 (Iowa 1974).  However, 
 
         the expert opinion may be accepted or rejected, in whole or in 
 
         part, by the trier of fact.  Id. at 907.  Further, the weight to 
 
         be given to such an opinion is for the finder of fact, and that 
 
         may be affected by the completeness of the premise given the 
 
         expert and other surrounding circumstances.  Bodish, 257 Iowa 
 
         516, 133 N.W.2d 867.  See also Musselman v. Central Telephone 
 
         Co., 261 Iowa 352, 154 N.W.2d 128 (1967).
 
         
 
              This case brings with it the well-known controversy among 
 
         professionals regarding whether or not long-term stress causes 
 
                                                
 
                                                         
 
         coronary artery disease.  Dr. Kioschos says it does not, while 
 
         Dr. McKenney states that it can.  Apparently the American Heart 
 
         Association has adopted the position that stress is a cause of 
 
         cardiovascular disease as is reported in the "Personnel Wise" 
 
         newsletter.  The evidence in this case which supports the 
 
         proposition that stress causes coronary artery disease is not 
 
         well developed.  The fact that stress can cause coronary artery 
 
         disease or a heart attack does not mean, however, that stress 
 
         caused coronary artery disease in any particular individual.
 
         
 
              The record in this case demonstrates that Harlan Brady has 
 
         held a number of highly responsible positions during his career 
 
         in the Army.  As previously indicated in this decision, positions 
 
         with high levels of responsibility normally carry a relatively 
 
         high level of stress.  Individuals tend to adapt to whatever 
 
         level of physical or emotional stress or exertion is placed upon 
 
         them. Harlan Brady had worked at the penitentiary for 11 years.  
 
         This is evidence that he had adapted to working in the 
 
         penitentiary environment.  Dr. Kioschos attributes Harlan's heart 
 
         attack to his family history and history of smoking.  There is no 
 
         expert medical opinion in the record which disagrees with Dr. 
 
         Kioschos in that regard.  It is therefore determined that Marie 
 
         Brady Holmes has failed to introduce evidence showing it to be 
 
         probable that the heart attack which Harlan Brady suffered on or 
 
         about March 31, 1986 arose out of or was in any manner caused by 
 
         his employment at the Iowa State Penitentiary.  The burden of 
 
         proof for causation in fact is probability, not mere 
 
         possibility.
 
         
 
                               FINDINGS OF FACT
 
         
 
              1.  Harlan Brady was subjected to stresses in his employment 
 
         at the Iowa State Penitentiary which were greater than the 
 
         stresses of normal nonemployment life and which were greater than 
 
         the stresses which all employees must endure on a day-to-day 
 
         basis by virtue of merely being employed.
 
         
 
              2.  The evidence introduced in this case fails to show that 
 
         it is more likely than not that the stresses which Harlan Brady 
 
         experienced in his employment at the Iowa State Penitentiary were 
 
         a substantial factor in bringing about the heart attack which he 
 
         sustained on or about March 31, 1986.
 
         
 
              3.  The evidence fails to establish that it is probable, 
 
         rather than merely possible, that Harlan Brady's employment 
 
         stresses on March 31, 1986 or during the weeks preceding that 
 
         date were of greater magnitude than the stresses which were 
 
         normal for his job.
 
         
 
                                CONCLUSIONS OF LAW
 
         
 
              1.  This agency has jurisdiction of the subject matter of 
 
         this proceeding and its parties.
 
         
 
              2.  Marie Brady Holmes has failed to prove by a 
 
                                                
 
                                                         
 
         preponderance of the evidence that the heart attack which Harlan 
 
         Brady suffered on or about March 31, 1986 arose out of or was 
 
         proximately caused by his employment at the Iowa State 
 
         Penitentiary.
 
         
 
                                      ORDER
 
         
 
              IT IS THEREFORE ORDERED that claimant take nothing from this 
 
         proceeding.
 
         
 
              IT IS FURTHER ORDERED that the costs of this action are 
 
         assessed against claimant pursuant to Division of Industrial 
 
         Services Rule 343-4.33.
 
         
 
              Signed and filed this 25th day of January, 1990.
 
         
 
         
 
         
 
         
 
         
 
         
 
         
 
                                            MICHAEL G. TRIER
 
                                            DEPUTY INDUSTRIAL 
 
                                            COMMISSIONER
 
         
 
         Copies To:
 
         
 
         Mr. James P. Hoffman
 
         Attorney at Law
 
         Middle Road
 
         P.O. Box 1066
 
         Keokuk, Iowa  52632
 
 
 
                                
 
                                                         
 
         
 
         Ms. Joanne Moeller
 
         Assistant Attorney General
 
         Tort Claims Division
 
         Hoover State Office Building
 
         Des Moines, Iowa  50319
 
 
 
         
 
         
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                                 1108.10, 1108.20, 
 
                                                 1402.30
 
                                                 Filed January 25, 1990
 
                                                 MICHAEL G. TRIER
 
         
 
                  BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         HARLAN J. BRADY, Deceased,
 
         MARIE BRADY, Surviving Spouse,
 
         
 
              Claimant,
 
         
 
         vs.
 
                                                 File No. 821622
 
         IOWA STATE PENITENTIARY,
 
                                              A R B I T R A T I 0 N 
 
              Employer,
 
                                                 D E C I S I 0 N
 
         and
 
         
 
         STATE OF IOWA,
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
         1108.10, 1108.20, 1402.30
 
         
 
              Decedent, a cell block manager at the Iowa State 
 
         Penitentiary, suffered a heart attack and died.  It was held that 
 
         his employment carried levels of stress which were greater than 
 
         normal nonemployment life and also greater than the stresses 
 
         which all employees must endure on a daily basis in merely being 
 
         employed.  It was also found, however, that the claimant had 
 
         failed to prove that those stresses had precipitated decedent's 
 
         heart attack.  The expert medical evidence in the record would 
 
         not attribute the heart attack to decedent's employment 
 
         stresses.
 
         
 
         
 
         
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                 BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         
 
         KEITH E. MOLYNEUX,
 
         
 
              Claimant,                          File No. 821627
 
         
 
         vs                                   A R B I T R A T I O N
 
         
 
         LYNN TRANSPORTATION and/or              D E C I S I O N
 
         CORNIE BOENDER,
 
         
 
              Employer,
 
         
 
         and
 
         
 
         THE HARTFORD INSURANCE COMPANY,
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
                              STATEMENT OF THE CASE
 
         
 
              This is a proceeding in arbitration brought by Keith 
 
         Molyneux, claimant, against Lynn Transportation and/or Cornie 
 
         Boender, employer, and Hartford Insurance Company, insurance 
 
         carrier, to recover benefits under the Iowa Workers' Compensation 
 
         Act as a result of an injury sustained on March 3, 1986.  This 
 
         matter came on before the undersigned deputy industrial 
 
         commissioner June 13, 1988.  The record was considered fully 
 
         submitted at the close of the hearing.  The record in this case 
 
         consists of the testimony of claimant and Cornie Boender, under 
 
         subpoena; claimant's exhibits 1, 2, 4, 5 and 6; and defendants' 
 
         exhibits A through G, inclusive.
 
         
 
              On October 21, 1986, an order was entered directing 
 
         defendant, Cornie Boender, to show cause within 20 days of the 
 
         filing of the order as to why sanctions should not be imposed for 
 
         failure to file the analysis of status/certificate of readiness 
 
         within the specified time period.  Defendant Cornie Boender 
 
         failed to respond to the order to show cause and, therefore, on 
 
         November 24, 1986, Deputy Industrial Commissioner Larry P. 
 
         Walshire ordered that the record be closed to further activity or 
 
         evidence by Cornie Boender pursuant to Division of Industrial 
 
         Services Rule 343-4.36.
 
         
 
                                      ISSUES
 
         
 
              Pursuant to the prehearing report and order submitted and 
 
         approved June 13, 1988, the following issues are presented for 
 
         resolution:
 
         
 
              1.  Whether an employer-employee relationship existed 
 
         between claimant and Lynn Transportation and/or Cornie Boender;
 
         
 
              2.  Whether the work injury (if claimant is found to be an 
 
         employee) is the cause of any permanent disability;
 

 
         
 
         
 
         
 
         MOLYNEUX V. LYNN TRANSPORTATION and/or CORNIE BOENDER
 
         PAGE   2
 
         
 
         
 
         
 
              3.  Claimant's entitlement, if any, to weekly compensation 
 
         benefits;
 
         
 
              4.  The applicable rate of compensation; and,
 
         
 
              5.  Claimant's entitlement, if any, to benefits pursuant to 
 
         Iowa Code section 85.27.
 
         
 
                                 FACTS PRESENTED
 
         
 
              Claimant testified that after taking a six week course in 
 
         truck driving at Indian Hills Community College, he began working 
 
         for Lyle Molyneux & Sons Transportation Company where he hauled 
 
         grain for one season being paid per load per weight.  Claimant 
 
         explained that following this season, he was asked to work for 
 
         "Larry Hartwig driving for Lynn's."  Claimant testified Mr. 
 
         Hartwig had one truck which was leased exclusively to Lynn 
 
         Transportation Company and that after working there approximately 
 
         eight months he returned to work for Lyle Molyneux for one-half 
 
         season and then, because he preferred other employment, went to 
 
         Lynn to inquire "if they knew of anybody that was needing a 
 
         driver."  Claimant recalled that he was told Folkmann & Sons was 
 
         looking for a driver and that he thus went to Folkmann, filled 
 
         out a form and drove a Folkmann truck for about eight months 
 
         being paid on a percentage-per-load basis.  Claimant explained he 
 
         left this position because he was driving as a team, meaning he 
 
         was splitting not only the driving but also the pay with someone 
 
         else, and he wanted to go by himself.  Claimant testified he then 
 
         went back to Lynn and asked if they knew "anybody -- any of the 
 
         owner-operators that were wanting a new driver" at which time he 
 
         was given Cornie Boender's name.  Claimant recalled he contacted 
 
         Mr. Boender and when he was told there was going to be a truck 
 
         available in the near future agreed Mr. Boender would advise the 
 
         Lynn Transportation dispatcher, Roy, of the availability of a 
 
         truck and claimant would then contact Mr. Boender again.  With 
 
         Mr. Boender, claimant was paid per mile which he felt was a "sure 
 
         thing" because:
 
         
 
                 Lynn Transportation could accept,any load if you 
 
              were paid on a percentage, you would get a percentage 
 
              of whatever they thought that was worth.  I mean, they 
 
              could take a load that paid two dollars to go two 
 
              hundred miles or they could accept a load that paid two 
 
              hundred dollars to go two hundred miles.
 
         
 
              You would get your percentage from that.
 
         
 
         (Defendants' Exhibit F, page 21-22)
 
         
 
              Claimant explained that once he was advised by Mr. Boender 
 
         that the truck was available, Mr. Boender told him to contact 
 
         Lynn and tell them he had the truck and that he was available for 
 
         dispatch.  Claimant, who had filed an "application for 
 
         employment" with Lynn Transportation in August 1983 testified he 
 
         did not have to fill out any other applications before he was 
 
         dispatched by Lynn.  At the same time he filed the application 
 
         for employment, claimant had also taken a road test, a written 
 
         exam and passed a physical given by "the company doctor" for 
 
         Lynn.  Claimant testified that while time limits were set for 
 
         driving and delivery, he had no idea who set such time limits but 
 
         that he was to report to Lynn if his delivery would not be on 
 
         time.  Claimant explained that after each delivery he contacted 
 

 
         
 
         
 
         
 
         MOLYNEUX V. LYNN TRANSPORTATION and/or CORNIE BOENDER
 
         PAGE   3
 
         
 
         
 
         Lynn's dispatcher who would then give him further instructions 
 
         and that each day he was not out he would contact Lynn to get a 
 
         load.  Claimant testified he was free to reject loads and that 
 
         when he wanted time off he needed to contact Lynn to be put on 
 
         the "unavailable list" and that another driver would drive his 
 
         truck (with a different trailer) for the duration of his time 
 
         off.  Claimant stated that Cornie Boender never gave him any 
 
         instructions and never dispatched him to any destination.  
 
         Claimant testified that Lynn provided him with all of his log 
 
         books, that he returned the books and paperwork to Lynn at the 
 
         end of each load, that Lynn owned all of the permits for the 
 
         vehicle except for the tractor and that Lynn had the authority to 
 
         hire and fire him.  Claimant stated that there was never a time 
 
         when he was driving Cornie Boender's truck that he was asked to 
 
         or did drive another owner-operator's truck.  Claimant testified 
 
         he would determine if and when the truck needed repairs and that 
 
         it was Mr. Boender who paid for and authorized the repairs.  
 
         Claimant did some of the repairs himself.  Claimant was paid 
 
         checks issued by Cornie Boender with social security, state and 
 
         federal taxes withheld, and was given a W-2 form also issued by 
 
         Mr. Boender at the end of the year.  Claimant stated Cornie 
 
         Boender often asked him how he was getting along with Lynn, 
 
         particularly Roy, the dispatcher, that while the tractor (truck) 
 
         he drove was owned by Cornie Boender, and the trailer was owned 
 
         by Lynn, only Lynn's name appeared anywhere on either piece of 
 
         equipment.
 
         
 
              Claimant testified that on March 3, 1986, while driving in 
 
         Gainesville, Georgia, his truck was rear ended by another semi.  
 
         Claimant stated he felt pain and discomfort when he was climbing 
 
         out of the truck, but the pain at first was in his lower back and 
 
         that later, when the pain was much worse, it extended into his 
 
         head and neck.  Claimant stated he followed the accident 
 
         reporting procedure prescribed by Lynn, that is, he contacted 
 
         Lynn's dispatcher, filled out an accident report form supplied by 
 
         Lynn, and reported the damage to the trailer to Lynn.  Claimant 
 
         recalled the dispatcher told him to get the trailer repaired (the 
 
         doors would not shut) and that he returned to Des Moines on March 
 
         5, 1986 at which time he advised the dispatcher he was going home 
 
         to see his doctor.  Claimant denied having reported the accident 
 
         or having the obligation to report the accident at any time to 
 
         Cornie Boender.
 
         
 
              Claimant stated he was under the care of Drs. Nina Hare and 
 
         John Beattie who imposed lifting restrictions of 15 pounds and 
 
         later 40 pounds.  Claimant stated he attempted to return to work 
 
         on March 25, 1986 but the pain in his back and headaches caused 
 
         him to return to see his physician, with the knowledge of Lynn, 
 
         when he returned to Iowa three days later.  Claimant stated that 
 
         with a 15 pound lifting restriction Lynn would not allow him to 
 
         return to work and that he has not driven since, believing he 
 
         cannot withstand the constant bouncing up and down that driving a 
 
         tractor-trailer incurs.
 
         
 
              Claimant described his current symptoms as low back pain, 
 
         radiating down both (although mainly the right) legs causing 
 
         numbness and that he suffers from headaches approximately two 
 
         times a week for which he takes Tylenol.  Claimant stated walking 
 
         "too far," and standing or sitting for more than 90 minutes and 
 
         driving without frequent breaks aggravates his condition and that 
 
         he cannot jog, run, ride horses or do field work on tractors any 
 
         more.  Since his injury, claimant has worked as a guard at Louis 
 
         Rich, an automobile salesman, and attempted to start his own gas 
 

 
         
 
         
 
         
 
         MOLYNEUX V. LYNN TRANSPORTATION and/or CORNIE BOENDER
 
         PAGE   4
 
         
 
         
 
         station business which closed after six months due to economic 
 
         reasons.
 
         
 
              Claimant testified he was paid $.17 per mile plus $.Ol per 
 
         mile bonus when he drove Cornie Boender's truck and that he had 
 
         average earnings of $450 per week over the six months prior to 
 
         his injury.
 
         
 
              Cornie Boender testified that his main occupation is that of 
 
         a farmer, that at the time of claimant's injury he was leasing 
 
         six units to Lynn Transportation, and that his relationship with 
 
         Lynn Transportation was that of an owner-operator which meant he 
 
         owned and maintained the tractors but that he did not have to 
 
         operate (drive) them. Mr. Boender could not recall how he became 
 
         aware claimant was available to drive although he stated he did 
 
         not do any of the paperwork that qualified claimant to drive and 
 
         that Lynn made the final decision on whether or not claimant 
 
         would drive.  Concerning the relationship he had with claimant 
 
         and Lynn Transportation, Mr. Boender testified that the 
 
         day-to-day operations of the unit were controlled by Lynn 
 
         Transportation, that he had no separate office for his trucking 
 
         operation as opposed to his farming operation, that he exercised 
 
         no supervision of claimant as a driver, that he had no job 
 
         evaluation of claimant's job performance, that Lynn 
 
         Transportation had an accident reporting procedure and claimant 
 
         had no requirement to report the accident to anyone else but 
 
         Lynn, that Lynn Transportation provided advances to the claimant 
 
         and would charge them against the receipts he had due, that he 
 
         could not override a decision of Lynn Transportation in that 
 
         their decision was final, that Lynn Transportation could not 
 
         assign a driver to his truck without his permission, and that he 
 
         was not familiar with DOT regulations.  Mr. Boender expressed his 
 
         understanding that Lynn Transportation took care of insurance, 
 
         that the tractors were insured through a company by Lynn, and 
 
         that Lynn would charge "that portion for your tractor back 
 
         against you."  Mr. Boender denied ever carrying workers' 
 
         compensation insurance and maintained he was unaware (at least 
 
         through March 1986) of any requirement to do so.  Mr. Boender did 
 
         acknowledge he entered into a written contractual agreement with 
 
         Lynn Transportation which is found at deposition exhibit 1 of 
 
         defendants' exhibit D.
 
         
 
              On cross-examination, Mr. Boender acknowledged that 
 
         defendant Lynn Transportation could not assign a driver to his 
 
         truck without his permission, that he withheld from claimant's 
 
         paycheck withholding taxes to the government as well as social 
 
         security taxes, that he provided claimant with a W-2 form, and 
 
         that he authorized the limit of advance that Lynn could make to 
 
         claimant as a driver.  Mr. Boender stated that claimant was not 
 
         under forced dispatch and that he had at least three chances over 
 
         an unspecified period of time to reject loads offered him by Lynn 
 
         Transportation dispatch.  Mr. Boender testified to his 
 
         understanding that defendant Lynn Transportation could discharge 
 
         the claimant without going to him and that he, in turn, could 
 
         dispatch the claimant without the permission of Lynn 
 
         Transportation.
 
         
 
              Mary Ann Brice, who identified herself as safety director 
 
         for Lynn Transportation, testified she is responsible for making 
 
         sure all drivers are department of transportation qualified to 
 
         drive pursuant to federal department of transportation 
 
         regulations.  She explained this procedure:
 
         
 

 
         
 
         
 
         
 
         MOLYNEUX V. LYNN TRANSPORTATION and/or CORNIE BOENDER
 
         PAGE   5
 
         
 
         
 
                 Well, Mr. -- In this case Mr. Boender or whoever 
 
              owned the tractor, brought in a driver or called and 
 
              said, "I've talked to this driver who wants to drive my 
 
              truck, I'm sending him in."  At that time they would 
 
              come in and fill out a DOT qualification file.
 
         
 
                 Their medical record would be checked and their 
 
              medical would be checked.  Their license would be 
 
              checked to make sure that it was updated.  A copy of 
 
              their MVR, motor vehicle report, from whatever state 
 
              they held the license in was gotten.  And they were 
 
              signed all the appropriate papers and, you know, were 
 
              either cleared or, you know, told they were all right 
 
              to drive or they weren't.
 
         
 
         (Def. Ex. D, p. 16)
 
         
 
              Ms. Brice explained that even if the drivers are qualified 
 
         under DOT regulations, those drivers still cannot start driving 
 
         unless and until they are hired by an owner-operator since Lynn 
 
         Transportation makes the final decision only on qualifications 
 
         and not on whether they are employed.  Ms. Brice stated that 
 
         drivers are dispatched out of the Lynn Transportation terminal in 
 
         Oskaloosa, given a load, told where to pick up and deliver but 
 
         rarely told what route to take.  Ms. Brice explained that if the 
 
         Lynn Transportation dispatcher has not found a load for the 
 
         driver, the driver is free to call around and look for other 
 
         loads from other companies.  Ms. Brice stated that required 
 
         permits on the vehicle are originally paid for by Lynn 
 
         Transportation, but the costs of those permits are deducted from 
 
         the amount paid to the owner-operator until the full 
 
         reimbursement price is received.  Ms. Brice testified that the 
 
         owner-operator can veto any order of Lynn Transportation 
 
         dispatch, that if Lynn Transportation finds a driver unacceptable 
 
         the owner-operator will be advised that the driver can no long@r 
 
         haul loads for Lynn Transportation, and not that they can no 
 
         longer drive for the owner-operator, that pay arrangements are 
 
         made between the owner-operator and the driver, and that the 
 
         driver will provide delivery receipts to Lynn Transportation who 
 
         then provide amounts due to the owner-operator.
 
         
 
              Roy Harwood, who identified himself as dispatcher for 
 
         defendant Lynn Transportation and responsible for controlling the 
 
         day-to-day operations of a tractor-trailer unit, testified 
 
         drivers would report to him each morning for assignment of a load 
 
         and that, if one is available, he would give the driver the 
 
         location and loading and delivery times in accordance with the 
 
         shippers' instructions.  Mr. Harwood explained that he would not 
 
         suggest how a driver would get to the destination and that the 
 
         owner-operator of the tractor could intervene at any time and 
 
         veto any dispatch.  Mr. Harwood stated that if a truck broke 
 
         down, Lynn Transportation would work with the owner-operator to 
 
         get another truck to the area, that if a driver became 
 
         incapacitated it was up to the owner-operator to get another 
 
         driver, and that the driver was to contact dispatch if the 
 
         breakdown would affect the load.  Mr. Harwood testified that the 
 
         owner-operator decided if the driver drove and even if Lynn 
 
         Transportation would not dispatch, the driver could still drive 
 
         for the owner-operator hauling other loads.  Mr. Harwood stated 
 
         that advances were initially authorized by the owner-operator who 
 
         would set up in advance how much each driver would be allowed to 
 
         receive, that Lynn Transportation would pay the advance, and that 
 
         Lynn Transportation would deduct the amount of the advance from 
 

 
         
 
         
 
         
 
         MOLYNEUX V. LYNN TRANSPORTATION and/or CORNIE BOENDER
 
         PAGE   6
 
         
 
         
 
         the owner-operator share of the load.  On the issue of insurance, 
 
         Mr. Harwood testified:
 
         
 
              Q.  Roy, what kind of insurance did Lynn Transportation 
 
              carry on a unit -- I'm talking a tractor-trailer unit 
 
              together -- when it was on dispatch?  By that, assume 
 
              operational or carrying for Lynn Transport carrying 
 
              goods.
 
         
 
              A.  Well, that's a split.  We carry the liability.
 
         
 
              Q.  Let's talk first about public liability.  You carry 
 
              the public liability --
 
         
 
              A.  That's correct.
 
         
 
              Q.  -- for the unit?
 
         
 
              A.  Right.
 
         
 
              Q.  For example, if there's an accident on Interstate 
 
              80 in one of the Lynn Transportation units then Lynn 
 
              Transportation would have public liability insurance to 
 
              cover the whole unit, tractor and trailer?
 
         
 
              A.  Well, it would cover the other person.  The 
 
              collision was covered by a different company.
 
         
 

 
         
 
         
 
         
 
         MOLYNEUX V. LYNN TRANSPORTATION and/or CORNIE BOENDER
 
         PAGE   7
 
         
 
         
 
              Q.  I'm not talking collision; I'm talking public 
 
              liability regarding third parties.  Is that right?
 
         
 
              A.  That's right.
 
         
 
              Q.  And how about cargo insurance?
 
         
 
              A.  We also have that.
 
         
 
              Q.  Lynn Transport has that?
 
         
 
              A.  It's provided, yeah.
 
         
 
              Q.  Cornie Boender wouldn't have that?
 
         
 
              A.  No.  The only -- All held have to do, if there is a 
 
              cargo problem, he would have to cover the deductible.
 
         
 
              Q.  How about work comp insurance on the unit?
 
         
 
              A.  That was provided by the owner-operators.
 
         
 
              Q.  Let's talk about that for a minute.  Are there not 
 
              some states -- and I'm referring back to the time of 
 
              this accident also -- where Lynn Transport would have 
 
              to show proof of workers' compensation insurance in 
 
              order to operate in those states?
 
         
 
              A.  I don't know exact laws, no.
 
         
 
              Q.  You don't know one way or the other?
 
         
 
              A.  No.  The exact laws I couldn't tell you, no.
 
         
 
              Q.  Do you know whether or not Lynn Transportation had 
 
              any type of work comp insurance on their units as they 
 
              were being operated?
 
         
 
              A.  No.  We have no employees.
 
         
 
              Q.  I'm --
 
         
 
              A.  No driver employees anyway at this time.
 
         
 
         (Def. Ex  G, pp. 29-31)
 
         
 
              Nina M. Hare, D.O., testified claimant has been a patient of 
 
         hers since 1982 or 1983 and that claimant presented himself on 
 
         March 5, 1986 with complaints of pain in his neck and low back 
 
         with no radiation of the pain into his arms or legs.  On 
 
         examination, Dr. Hare found claimant's neurological to be normal, 
 
         that he had good strength in all extremities with limited range 
 
         of motion in both the cervical and lumbar area with straightening 
 
         of the lumbar spine consistent with muscle spasm and pain on 
 
         range of motion in the neck and lumbar region.  Dr. Hare rendered 
 
         a diagnosis of acute cervical and lumbar strain syndrome and 
 
         prescribed anti-inflammatories, muscle relaxants and a soft 
 
         cervical collar.  On March 14, 1986, Dr. Hare released claimant 
 
         to return to work to try a "short run" of 100 miles or so, but 
 
         when claimant was next seen on March 24 after driving 30 miles in 
 
         a truck the day before, claimant reported he had developed pain 
 
         in his neck and a headache.  Dr. Hare stated she wanted claimant 
 
         to continue to attempt to drive on short runs and when claimant 
 

 
         
 
         
 
         
 
         MOLYNEUX V. LYNN TRANSPORTATION and/or CORNIE BOENDER
 
         PAGE   8
 
         
 
         
 
         was next seen on April 9, 1986 after driving a total of 2600 
 
         miles, he related pain so severe that he could neither sleep nor 
 
         eat.  Dr. Hare next saw claimant, with respect to his work 
 
         injury, on September 3, 1986 when claimant reported pain in his 
 
         neck radiating to the top of his head with Dr. Hare concluding it 
 
         "very likely could have been" caused by the work injury.  Three 
 
         subsequent visits in 1987 did not change Dr. Hare's opinion of 
 
         cervical/lumbar strain and Dr. Hare declined to render any 
 
         opinion on whether claimant had sustained any permanent partial 
 
         impairment as a result of the work injury.
 
         
 
              John L. Beattie, M.D., rendered a report dated June 4, 1986 
 
         and stated:
 
         
 
                 A physical examination was performd ....  
 
              Neurological is pretty much physiologic and with the 
 
              ankle jerks and knee jerks to be active and equal 
 
              bilaterally.  There is no evidence of sensory loss in 
 
              the extremities ....
 
         
 
                 The cervical spine was again examined.  There was no 
 
              limitation of motion in flexion extension, lateral 
 
              rotation or lateral bending, therefore, I must conclude 
 
              that the patient experienced a rather severe cervical 
 
              strain but he has now recovered.  He has minimal 
 
              disabilities in the cervical spine and probably no 
 
              residuals from this injury.
 
         
 
                 I find no evidence of problems in his thoracic spine 
 
              .... The hips were checked for flexion, rotation, 
 
              abduction, and adduction.  No limitation of motion but 
 
              it does cause discomfort in the low back region 
 
              particularly when putting the hips through their range 
 
              of motion.
 
         
 
                 I then measured the limitation of motion of the 
 
              dorsal lumbar spine .... After the examination of the 
 
              lumbosacral spine these measurements indicated loss of 
 
              range of motion of the dorsal lumbar spine, therefore, 
 
              repeated the x-rays of his lumbosacral area and had 
 
              x-rays compared with those taken at the time of the 
 
              accident.  X-rays of the cervical spine were 
 
              essentially normal.  X-rays of his lumbosacral spine 
 
              show "slight borderline narrowing of the posterior 
 
              aspect of L-5/S-1 intervertebral disc space associated 
 
              with posterior hypertrophic boney [sic] changes and 
 
              osteophyte formation in this area due to underlying 
 
              local osteoarthritis here.  Associated disc pathology 
 
              at this level may also be considered and correlated 
 
              with the clinical findings".
 
         
 
                 ....
 
         
 
              After my examination of Mr. Keith Molyneux, it is 
 
              apparent that he has developed disability following his 
 
              truck accident of 3-5-86.  His acute cervical sprain 
 
              which was caused by the accident of 3-5-86, has 
 
              recovered without any demonstrable residuals.  He 
 
              continues to have considerable disability in his 
 
              lumbosacral area.  There is a narrowing of the L-5/S-1 
 
              disc space.  Patient has symptoms of a herniated 
 
              nucleus pulposus.  In my opinion, this problem was 
 
              caused as a result of the accident of 3-5-86.  This 
 

 
         
 
         
 
         
 
         MOLYNEUX V. LYNN TRANSPORTATION and/or CORNIE BOENDER
 
         PAGE   9
 
         
 
         
 
              accounts for his limitation of motion of the lumbar 
 
              spine and the referred pain particularly into the right 
 
              hp area, the other findings of problems with straight 
 
              leg raising and positive Lasegue's sign.  His 
 
              disability in the lumbosacral region will persist for 
 
              an undetermined length of time.  He may need 
 
              neurosurgical consultation.  It will be necessary for 
 
              him to limit his weight lifting to not more than 15 
 
              lbs. as previously recommended by Dr. Nina M. Hare of 
 
              Sigourney, IA.
 
         
 
                 It is my opinion that Mr. Keith Molyneux has 
 
              received a permanent partial impairment [sic] of the 
 
              body on a hole (sic] of 25-30%, as a result of his 
 
              accident on 3-5-86.
 
         
 
         (Def. Ex. A)
 
         
 
              A subsequent report rendered by Dr. Beattie on September 30, 
 
         1986 does not reveal any substantive changes in Dr. Beattie's 
 
         diagnosis or claimant's condition.
 
         
 
              On March 3, 1988, Peter D. Wirtz, M.D., who saw claimant for 
 
         the purposes of evaluation, rendered a report stating:
 
         
 
                 X-ray of the cervical spine including obliques are 
 
              normal.  The lumbosacral spine x-ray shows that there 
 
              is narrowing of the L5-Sl disc space anteriorly and 
 
              posteriorly.
 
         
 
              Diagnosis:
 
         
 
              1.  Muscular pains neck, tension with headaches.
 
              2.  Disc degeneration, L5-Sl with recurring muscular 
 
              strains.
 
         
 
                 Records made available reveal examination by Dr. 
 
              Beattie 6/4/86 reveals restriction of motion on 
 
              straight leg raising test in the lumbar area as well as 
 
              x-rays which show narrowing posterior L5--Sl with 
 
              osteophyte formation.  Such X-ray findings would 
 
              indicate this condition to pre-exist an injury on 
 
              3/3/86.  The present physical examination does not 
 
              reveal any neurological or restriction of motion such 
 
              as straight leg raising test, therefore the aggravated 
 
              condition has cleared.  His symptoms intermittently in 
 
              the back are due to lumbar disc degeneration L5-Sl.  
 
              Such degeneration will be intermittently symptomatic 
 
              with muscular back pain and require activities within 
 
              his physiologic dexterity and strength, which may 
 
              include some forms of restriction of lifting, bending, 
 
              and twisting of the back.
 
         
 
                 The neck condition on 6/4/86 Dr. Beatties 
 
              examination had no residuals of restriction of motion 
 
              which indicated the neck muscular strain had resolved.
 
         
 
                 Based on his records showing pre-existing lumbar 
 
              disc degeneration and present examination without 
 
              neurological this patient did not suffer a permanent 
 
              impairment to the lumbar spine or cervical spine on 
 
              3/3/86.
 
         
 

 
         
 
         
 
         
 
         MOLYNEUX V. LYNN TRANSPORTATION and/or CORNIE BOENDER
 
         PAGE  10
 
         
 
         
 
         (Def. Ex. B)
 
         
 
                           APPLICABLE LAW AND ANALYSIS
 
         
 
              An employee is entitled to compensation for any and all 
 
         personal injuries which arise out of and in the course of the 
 
         employment.  Section 85.3(l).
 
         
 
              The claimant must prove by a preponderance of the evidence 
 
         that his injury arose out of and in the course of his employment. 
 
         Musselman v. Central Telephone Co., 261 Iowa 352, 154 N.W.2d 128 
 
         (1967).
 
         
 
              In the course of employment means that the claimant must 
 
         prove his injury occurred at a place where he reasonably may be 
 
         performing his duties.  McClure v. Union, et al., Counties, 188 
 
         N.W.2d 283 (Iowa 1971).
 
         
 
              Arising out of suggests a causal relationship between the 
 
         employment and the injury.  Crowe v. DeSoto Consolidated School 
 
         District, 246 Iowa 402, 68 N.W.2d 63 (1955).
 
         
 
              There is no question based on the evidence presented that 
 
         claimant has established he sustained an injury which arose out 
 
         of and in the course of his employment.  Likewise, there is no 
 
         question that claimant was an employee and not an independent 
 
         contractor.  Taylor v. Horning, 240 Iowa 888; Mallinger v. 
 
         Webster City Oil Co., 211 Iowa 847, 234 N.W.2d 254; and 
 
         Hassebroch v. Weaver Construction Co., 246 Iowa 622, 67 N.W.2d 
 
         549.  Claimant's tractor-trailer unit was hit in the rear by 
 
         another tractor-trailer unit while claimant was performing the 
 
         normal responsibilities of his job.  The most important test of 
 
         an independent contractor is that he is free to determine for 
 
         himself the manner in which the specified result should be 
 
         accomplished.  The undersigned does not believe the record 
 
         establishes claimant had such freedom and, therefore, the 
 
         essential question for resolution is in whose employment was 
 
         claimant.
 
         
 
              The burden of proof is initially on the claimant to show an 
 
         employer-employee relationship.  Everts v. Jorgensen, 227 Iowa 
 
         818, 289 N.W. 11 (1939).  Five factors must be considered in 
 
         determining whether there is an employer-employee relationship: 
 
         (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.  See Hjerleid v. State, 
 
         229 Iowa 818, 295 N.W. 139 (1940); Funk v. Bekins Van Lines 
 
         Company, I Iowa Industrial Commissioner Report 82 (Appeal 
 
         Decision 1980).
 
         
 
              The status of an owner-operator has been  previously  
 
         discussed in Augustine v. Bullocks, Inc., I No. 3 Iowa Industrial 
 
         Commissioner's Decisions 502 (1985).  The decision notes the 
 
         previously mentioned factors and recognizes that the overriding 
 
         issue is the intention of the parties.  McClure v. Union, et al., 
 
         Counties, 188 N.W.2d 283 (Iowa 1971) and Caterpillar Tractor Co. 
 
         v. Shook, 313 N.W.2d 503 (Iowa 1981).
 
         
 
              Based on the foregoing principles, it is found that claimant 
 
         has failed to establish that he was employed by Lynn 
 

 
         
 
         
 
         
 
         MOLYNEUX V. LYNN TRANSPORTATION and/or CORNIE BOENDER
 
         PAGE  11
 
         
 
         
 
         Transportation on March 3, 1986, or at any other time.  Claimant 
 
         at no time entered into a contract of hire for employment with 
 
         that defendant.  However, claimant has established an employment 
 
         relationship with defendant Cornie Boender.
 
         
 
              The record in this case establishes that Cornie Boender was 
 
         responsible for the maintenance of the vehicle, that he bore at 
 
         least part of the burden of its operating costs since any amounts 
 
         disbursed by Lynn Transportation were recouped by them from 
 
         amounts due Cornie Boender, that his compensation was based on 
 
         factors related to the work performed, that he determined the 
 
         details and means of performing the services, and that he entered 
 
         into a contract which specified the relationship to be that of an 
 
         independent contractor.  Clearly, the contract which existed 
 
         between Cornie Boender and Lynn Transportation established an 
 
         intention to create an independent contractor relationship and 
 
         not an employer-employee relationship either between Cornie 
 
         Boender and Lynn Transportation or any of the individuals Cornie 
 
         Boender may have driving his vehicle and Lynn Transportation.  
 
         There is no showing that Lynn Transportation had the right to 
 
         control the manner in which the work was performed as opposed to 
 
         simply dispatching Cornie Boender or his employees.
 
         
 
              The record does establish that claimant filled out an 
 
         application for employment with Lynn Transportation as well as 
 
         taking a driving test, a written test and a DOT qualifications 
 
         test.  This does not establish, however, that an actual 
 
         employment agreement or employment relationship existed between 
 

 
         
 
         
 
         
 
         MOLYNEUX V. LYNN TRANSPORTATION and/or CORNIE BOENDER
 
         PAGE  12
 
         
 
         
 
         claimant and Lynn Transportation.  Merely because Lynn 
 
         Transportation sought to ensure that any drivers hauling their 
 
         loads would comply with department of transportation regulations 
 
         does not mean that any of those drivers were their employees.  
 
         The record establishes that Lynn Transportation does not have nor 
 
         seek to exercise the right to hire or fire employees of 
 
         owner-operators although it did retain the option of rejecting 
 
         unsatisfactory individuals as drivers.  This act of rejection 
 
         would not preclude the owner-operator from allowing the driver to 
 
         haul loads for other companies.  While claimant was dispatched 
 
         through Lynn Transportation, this is not inconsistent with an 
 
         employment relationship with Cornie Boender as opposed to Lynn 
 
         Transportation.  The fact that Lynn Transportation exercises 
 
         dispatching authority is not conclusively indicative of an 
 
         employment relationship.  It is equally consistent with the 
 
         theory of delegated authority on the part of the owner-operator 
 
         to the lessee for the purpose of promoting the expeditious flow 
 
         of business and resources.  As owner of the truck, Cornie Boender 
 
         might well have himself dispatched the driver or delegated that 
 
         authority to Lynn Transportation's dispatcher.  Claimant was paid 
 
         by Cornie Boender who deducted appropriate withholding from his 
 
         pay.  Claimant's pay arrangement was made with Cornie Boender and 
 
         Lynn Transportation had no influence therein.  Claimant was free 
 
         to reject loads dispatched by Lynn Transportation and claimant 
 
         was free to seek out loads from other companies.  Clearly, in the 
 
         event claimant secured a load from a different company, he would 
 
         not have had to give Lynn Transportation any money on the load.  
 
         None of these factors are indicative of an employment 
 
         relationship between claimant and Lynn Transportation.  While 
 
         claimant was carrying out the interests of Lynn Transportation by 
 
         hauling their loads, claimant was also carrying out the interests 
 
         of Cornie Boender who made money from his driving.  Claimant was 
 
         no more an employee of Lynn Transportation than he would be of 
 
         any other company whose only interest was seeing the load arrived 
 
         in accordance with the shippers' instructions.  Claimant's 
 
         employment history does not go without note.  The record 
 
         establishes claimant had driven for other owner-operators on 
 
         previous occasions and was dispatched by Lynn Transportation.  
 
         Claimant was aware he was driving for the owner-operator.  
 
         Claimant's pay changed as he went from one owner-operator to 
 
         another.  Claimant originally began driving for Cornie Boender 
 
         because he was dissatisfied with the pay arrangement with the 
 
         previous owner-operator.  If claimant were an employee of Lynn 
 
         Transportation, it is unlikely his pay would so easily change.
 
         
 
              It is concluded that the only influence Lynn Transportation 
 
         had on claimant was to ensure he complied with and met the 
 
         qualifications of the department of transportation regulations 
 
         and was to dispatch the claimant.  The greater weight of evidence 
 
         clearly establishes that an employment relationship existed, not 
 
         between claimant and Lynn Transportation, but clearly between 
 
         claimant and defendant Cornie Boender.
 
         
 
              Iowa Code section 85.36 provides, in pertinent part:  "The 
 
         basis of compensation shall be the weekly earnings of the injured 
 
         employee at the time of the injury."
 
         
 
              The only evidence presented on the issue of rate was 
 
         claimant's testimony that he estimated that over the last six 
 
         months  of his employment as a truck driver he earned an average 
 
         of  $450 per week.  No evidence to the contrary exists in the 
 
         record and, therefore, as a single individual with two exemptions 
 
         claimant's rate would be calculated at $263.96.
 

 
         
 
         
 
         
 
         MOLYNEUX V. LYNN TRANSPORTATION and/or CORNIE BOENDER
 
         PAGE  13
 
         
 
         
 
         
 
              Iowa code section 85.27 provides, in pertinent part:
 
         
 
                 The employer, for all injuries compensable under 
 
              this chapter or chapter 85A, shall furnish reasonable 
 
              surgical, medical, dental, osteopathic, chiropractic, 
 
              podiatric, physical rehabilitation, nursing, ambulance 
 
              and hospital services and supplies therefor and shall 
 
              allow reasonably necessary transportation expenses 
 
              incurred for such services.
 
         
 
              As it has been accepted claimant sustained an injury which 
 
         arose out of and in the course of his employment and claimant was 
 
         employed by defendant Cornie Boender, pursuant to Iowa code 
 
         section 85.27, Cornie Boender is responsible for claimant's 
 
         reasonable and necessary medical expenses.  The expenses shown on 
 
         claimant's exhibit 6 are found to be reasonable and necessary for 
 
         the treatment of claimant's injuries.  Therefore, defendant 
 
         Cornie Boender shall be liable for the payment of all the medical 
 
         expenses of Keith Molyneux reasonably necessary for the treatment  
 
         of his work-related injury which are shown by claimant's exhibit 
 
         6.
 
         
 
              The final issue for resolution is whether the work injury is 
 
         the cause of any permanent disability and concomitantly whether 
 
         claimant is entitled to any weekly disability benefits.
 
         
 
              The claimant has the burden of proving by a preponderance of 
 
         the evidence that the injury of March 3, 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).
 
         
 
              Expert medical evidence must be considered with all other 
 
         evidence introduced bearing on the causal connection.  Burt, .247 
 
         Iowa 691., 73 N.W.2d 732.  The opinion of experts need not be 
 
         couched in definite, positive or unequivocal language.  Sondag v. 
 
         Ferris Hardware, 220 N.W.2d 903 (Iowa 1974).  However, the expert 
 
         opinion may be accepted or rejected, in whole or in part, by the 
 
         trier of fact.  Id. at 907.  Further, the weight to be given to 
 
         such an opinion is for the finder of fact, and that may be 
 
         affected by the completeness of the premise given the expert and 
 
         other surrounding circumstances.  Bodish, 257 Iowa 516, 133 
 
         N.W.2d 867.  See also Musselman v. Central Telephone Co., 261 
 
         Iowa 352, 154 N.W.2d 128 (1967).
 
         
 
              A disability may either be temporary or permanent.  In the 
 
         case of temporary disability, the claimant must establish that 
 
         his work injury was the cause of absence from work and lost 
 
         earnings during a period of recovery from the injury.  Generally, 
 
         a claim of permanent disability invokes an initial determination 
 
         of whether the work injury is the cause of permanent physical 
 
         impairment or permanent limitation in work activity.
 
         
 
              The record establishes claimant has been evaluated and/or 
 
         treated by three physicians.  Dr. Nina Hare, who first saw 
 
         claimant after the injury, declined to render any opinion on 
 
         permanent partial "disability" and in April 1986, imposed work 
 

 
         
 
         
 
         
 
         MOLYNEUX V. LYNN TRANSPORTATION and/or CORNIE BOENDER
 
         PAGE  14
 
         
 
         
 
         restrictions on claimant but for only a period of four to six 
 
         weeks.  Dr. Hare does not appear to have imposed any permanent 
 
         restrictions on claimant's employability.  Dr. Peter Wirtz opined 
 
         that claimant did not suffer a permanent impairment to the lumbar 
 
         spine or cervical spine as a result of the injury of March 3, 
 
         1986.  Dr. Beattie rated claimant as having a 25 to 30 percent 
 
         whole body impairment as a result of the work injury.  In 
 
         addition, Dr. Beattie finds it necessary to restrict claimant's 
 
         lifting to not more than 15 pounds "as previously recommended by 
 
         Dr. Nina Hare."  There are two principle problems with Dr. 
 
         Beattie's position.  First is that Dr. Hare's weight restrictions 
 
         were for only a period of four to six weeks and do not appear to 
 
         have been permanent restrictions and, second, while Dr. Beattie 
 
         found claimant to have symptoms of a herniated nucleus pulposus, 
 
         a CT scan done on December 30, 1986 found no evidence for disc 
 
         herniation, no bony abnormalities and no evidence for herniated 
 
         nucleus pulposus.  Therefore, Dr. Beattie's opinions are given 
 
         less weight than the opinions of the other physicians in the case 
 
         and the greater weight of evidence establishes claimant has 
 
         neither a permanent impairment nor permanent restrictions in his 
 
         work activities.  This is not to say, however, that claimant does 
 
         not feel pain as the undersigned does not doubt claimant's pain.  
 
         Nevertheless, pain is not a substitute for impairment.  Waller v. 
 
         Chamberlain Manufacturing, II Iowa Industrial Commissioner Report 
 
         419, 425 (1981).  Therefore, it is concluded that claimant has 
 
         failed to establish that the injury of March 3, 1986 is the cause 
 
         of any permanent disability.
 
         
 
              Iowa Code section 85.33(l) provides:
 
         
 
                 Except as provided in subsection 2 of this section, 
 
              the employer shall pay to an employee for injury 
 
              producing temporary total disability weekly 
 
              compensation benefits, as provided in section 85.32, 
 
              until the employee has returned to work or is medically 
 
              capable of returning to employment substantially 
 
              similar to the employment in which the employee was 
 
              engaged at the time of injury, whichever occurs first.
 
         
 
              The record clearly establishes claimant was injured on March 
 
         3, 1986, left work as a result of the injury on March 5, 1986, 
 
         was released to return to work by Dr. Hare effective March 25, 
 
         1986, left work again April 8, 1986 as a result of the injury and 
 
         was restricted from working, per Dr. Hare's instructions, until 
 
         April 18, 1986.  Therefore, pursuant to Iowa Code section 
 
         85.33(l), claimant is entitled to 4.143 weeks of temporary total 
 
         disability benefits to cover the period from March 5 through 
 
         March 24 and April 9 through April 17, 1986, inclusive.  The 
 
         record does not establish that there has been any change in 
 
         claimant's condition since that time nor that he was unable to 
 
         return to substantially similar employment in which he was 
 
         engaged at the time of his injury.
 
         
 
                                 FINDINGS OF FACT
 
         
 
              Wherefore, based on all of the evidence presented, the 
 
         following findings of fact are made:
 
         
 
              1.  Cornie Boender entered into a contractual agreement with 
 
         Lynn Transportation as an owner-operator.
 
         
 
              2.  Pursuant to the agreement, Cornie-Boender provided 
 
         drivers for his tractors to be dispatched by Lynn 
 

 
         
 
         
 
         
 
         MOLYNEUX V. LYNN TRANSPORTATION and/or CORNIE BOENDER
 
         PAGE  15
 
         
 
         
 
         Transportation.
 
         
 
              3.  Lynn Transportation did not hire claimant.
 
         
 
             4.  Lynn Transportation ensured claimant, if hired by 
 
         owner-operator, would meet department of transportation 
 
         requirements.
 
         
 
              5.  Claimant was hired by Cornie Boender.
 
         
 
              6.  Cornie Boender was responsible for the payment of wages 
 
         to claimant.
 
         
 
              7.  Claimant was paid on a per mile basis, on checks issued 
 
         by Cornie Boender with deductions taken and was given a W-2 form 
 
         from Cornie Boender at the end of the year.
 
         
 
              8.  Lynn Transportation retained control only over whether 
 
         claimant would have Lynn Transportation loads and not over 
 
         whether claimant would drive for Cornie Boender.
 
         
 
              9.  Lynn Transportation had no authority to discharge 
 
         claimant.
 
         
 
             10.  Lynn Transportation dispatched claimant according to a 
 
         shipper's instructions and did not-control the work as 
 
         performed.
 
         
 
             11.  Cornie Boender could both hire and fire claimant.
 
         
 
             12.  No employment relationship existed between claimant
 
         and Lynn Transportation.
 
         
 
             13.  Claimant was an employee of Cornie Boender.
 
         
 
             14.  While in the course of his employment with Cornie 
 
         Boender, claimant sustained an injury in a collision.
 
         
 
             15.  As a result of his injury, claimant was unable to work 
 
         from March 5 through March 24 and April 9 through April 17, 1986, 
 
         inclusive.
 
         
 
             16.  Claimant has no permanent impairment nor permanent 
 
         restrictions on his employability.
 
         
 
             17.  Claimant sustained no permanent partial disability as a 
 
         result of the injury of March 3, 1986.
 
         
 
             18.  Claimant had average gross earnings of $450 per week 
 
         during the six months prior to his injury.
 
         
 
             19.  Claimant's appropriate rate of compensation is $263.96.
 
         
 
             20.  Claimant incurred reasonable and necessary medical 
 
         expenses for the treatment of his injury and such expenses are 
 
         found at claimant's exhibit 6.
 
         
 
                                CONCLUSIONS OF LAW
 
         
 
              Therefore, based on the principles of law previously stated, 
 
         the following conclusions of law are made:
 
         
 
              1.  Claimant was an employee of Cornie Boender.
 

 
         
 
         
 
         
 
         MOLYNEUX V. LYNN TRANSPORTATION and/or CORNIE BOENDER
 
         PAGE  16
 
         
 
         
 
         
 
              2.  Claimant was not an employee of Lynn Transportation.
 
         
 
              3.  Claimant sustained an injury which arose out of and in 
 
         the course of his employment on March 3, 1986.
 
         
 
              4.  Claimant failed to establish the work injury is the 
 
         cause of permanent disability.
 
         
 
              5.  Claimant established his entitlement to 4.143 weeks of 
 
         temporary total disability benefits for the period from March 5 
 
         through March 24 and April 9 through April 17, 1986, inclusive.
 
         
 
              6.  Claimant established his entitlement to all disputed 
 
         medical expenses.
 
         
 
              7.  Claimant's appropriate rate of compensation is $263.96.
 
         
 
                                      ORDER
 
         
 
              THEREFORE, IT IS ORDERED:
 
         
 
              Defendant Cornie Boender shall pay unto claimant four point 
 
         one four three (4.143) weeks of temporary total disability 
 
         benefits for the periods from March 5 through March 24 and April 
 
         9 through April 17, 1986, inclusive at a rate of two hundred 
 
         sixty-three and 96/100 dollars ($263.96) per week.
 
         
 

 
         
 
         
 
         
 
         MOLYNEUX V. LYNN TRANSPORTATION and/or CORNIE BOENDER
 
         PAGE  17
 
         
 
         
 
              Payments which have accrued shall be paid in a lump sum 
 
         together with statutory interest thereon pursuant to Iowa Code 
 
         section 85.30.
 
         
 
              Cornie Boender shall pay all disputed medical expenses as 
 
         found. in claimant's exhibit 6.
 
         
 
              Defendant Cornie Boender shall file a first report of injury 
 
         within twenty (20) days from the filing of this decision.
 
         
 
              A claim activity report shall be filed upon payment of this 
 
         award.
 
         
 
              Costs of this action are assessed against defendant Cornie 
 
         Boender pursuant to Division of Industrial Services Rule 
 
         343-4.33.
 
         
 
              Signed and filed this 30th day of November, 1988.
 
         
 
         
 
         
 
         
 
                                       DEBORAH A. DUBIK
 
                                       DEPUTY INDUSTRIAL COMMISSIONER
 
         
 
         
 
         
 
         Copies to:
 
         
 
         Mr. Daniel Spellman
 
         Attorney at Law
 
         1024 2nd St
 
         P.O. Box 550
 
         Perry, IA 50220
 
         
 
         Mr. Loren J. Veldhuizen
 
         Attorney at Law
 
         306 10th St
 
         Alton, IA 51003
 
         
 
         Mr. Harold B. Heslinga
 
         Attorney at Law
 
         118 N. Market St
 
         Oskaloosa, IA 52577
 
         
 
         Mr. Frank T. Harrison
 
         Attorney at Law
 
         Terrace Center, Ste 111
 
         2700 Grand Ave
 
         Des Moines, IA 50312
 
         
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                                1402; 1800; 3000
 
                                                Filed November 30, 1988
 
                                                Deborah A. Dubik
 
         
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         KEITH E. MOLYNEUX,
 
         
 
              Claimant,                             File No. 821627
 
         
 
         vs.                                     A R B I T R A T I O N
 
         
 
         LYNN TRANSPORTATION and/or                 D E C I S I O N
 
         CORNIE BOENDER,
 
         
 
              Employer,
 
         
 
         and
 
         
 
         THE HARTFORD INSURANCE COMPANY,
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         1402.10
 
         
 
              Claimant, who drove a truck owned by defendant Cornie 
 
         Boender which was leased to defendant Lynn Transportation, 
 
         established an employment relationship only with Cornie Boender 
 
         not with Lynn Transportation.
 
         
 
         1800
 
         
 
              Where the greater weight of evidence did not establish 
 
         claimant had any permanent impairment or permanent restrictions 
 
         on his employability, claimant failed to show he sustained any 
 
         permanent partial disability as a result of his injury.
 
         
 
         3000
 
         
 
              Claimants rate calculated on only evidence of wages in the 
 
         record.  Claimant estimated he had gross weekly wages of 
 
         $450.00.
 
         
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                    
 
                   BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         JOAN B. GONYIER,
 
         
 
               Claimant,
 
                                                       File Nos. 821629
 
          VS.                                                    821630
 
          
 
          HANSALOY HOWDEN CORPORATION,
 
          
 
               Employer,                           A R B I T R A T I 0 N
 
         
 
          and
 
          
 
          WAUSAU INSURANCE COMPANY,                   D E C I S I 0 N
 
          
 
               Insurance Carrier,
 
               Defendants.
 
         
 
         
 
                                   INTRODUCTION
 
         
 
              This is a proceeding in arbitration brought by the claimant, 
 
         Joan B. Gonyier, against her employer, Hansaloy Howden 
 
         Corporation, and its insurance carrier, Wausau Insurance Company, 
 
         to recover benefits under the Iowa Workers' Compensation Act as 
 
         the result of an injury which the:a parties stipulated was 
 
         sustained on April 5, 1984.  This matter came on for hearing 
 
         before the undersigned deputy industrial commissioner in 
 
         Davenport, Iowa, on July 20, 1987.  Neither first reports nor 
 
         other filings have been made in either file.  The parties 
 
         stipulated that claimant's rate of weekly compensation is $164.91 
 
         and that claimant has already received healing period benefits 
 
         from May 30, 1984 through June 5, 1984 and from December 13, 1984 
 
         through March 19, 1985 as well as having already received 15 
 
         weeks of permanent partial disability benefits.  The parties also 
 
         stipulated that commencement date for any permanent partial 
 
         disability additionally awarded would be July 15, 1986.
 
         
 
              The record in this case consists of the testimony of 
 
         claimant and of joint exhibits 1 through 17.
 
         
 
                                 ISSUES
 
         
 
              Pursuant to the pre-hearing report, the parties stipulated 
 
         that claimant did receive an injury which arose out of and in the 
 
         course of her employment and that there is a causal relationship 
 
         between that injury and claimed disability.  The issue remaining 
 
         for resolution is:
 
              The nature and extent of claimant's disability, the dispute 
 
         being characterized by parties as whether claimant is entitled to 
 
         payment under section 85.34(2)(s).
 

 
         
 
         
 
         
 
         GONYIER V. HANSALOY HOWDEN CORPORATION
 
         Page   2
 
         
 
         
 
         
 
                              REVIEW OF THE EVIDENCE
 
         
 
              Fifty-three-year-old claimant testified that she began work 
 
         at Hansaloy Howden Corporation in 1977 making emery board-sized 
 
         scalloped knife blades on a punch press.  Claimant reported that 
 
         she was required to pull steel off a coil with her left hand.  
 
         She reported grasping the steel between her thumb and forefinger 
 
         while apparently pushing a safety device and indicator with her 
 
         right hand in order to move the steel into the machine.  Claimant 
 
         reported that, after approximately a year to a year and one-half, 
 
         she started noticing problems.  She indicated that she broke 
 
         bones in her right wrist and that subsequently, the safety 
 
         buttons on the machine were removed and replaced with push and 
 
         pull buttons.  She stated that she then operated the machine for 
 
         approximately another eight months after which her left hand 
 
         began hurting badly.  She reported that her left wrist hurt and 
 
         burned and that her thumb ached and swelled.  She indicated she 
 
         could neither grip nor pull.  Claimant reported that she had 
 
         swelling in her right wrist as well with her thumb problem 
 
         extending one to two inches back into the wrist area.  Claimant 
 
         had surgical treatment of both her left and right hands.
 
         
 
              Claimant reported that she continues to experience pain and 
 
         swelling and that she has had difficulty with peeling potatoes, 
 
         sawing, vacuuming, crocheting, scrubbing, removing and replacing 
 
         jar lids and pulling the clutch and brake levers on her 
 
         motorcycle as well as twisting the throttle on her motorcycle.  
 
         She agreed that she wears a splint to vacuum and reported that, 
 
         while that assists in heavy chores, it does not really work very 
 
         well.  Claimant reported that she takes Clinoril two or three 
 
         times daily.
 
         
 
              Claimant agreed that she is not considering further surgery 
 
         which William R. Irey, M.D., proposed as she did not believe it 
 
         would improve the condition of her right wrist.
 
         
 
              Clinical notes of the Davenport Clinic of March 10, 1984 
 
         indicate that claimant reported pain in the left hand and under 
 
         the arm with swelling, tenderness and some crepitation of the MP 
 
         joint.  An x-ray of the left hand of that date demonstrated 
 
         degenerative arthritic changes of the carpal-first metacarpal 
 
         joint as well as a small bony fragment which was smooth in the 
 
         soft tissues lateral to the area, possibly related to old trauma. 
 
          No recent bony disease was seen.
 
         
 
              Richard L. Kreiter, M.D., saw claimant on April 16 and 17, 
 
         1984.  He reported that claimant had a six-to eight-month history 
 
         of increasing pain at the base of her thumbs, although there had 
 
         been no injury or trauma.  Claimant was tender with some swelling 
 
         overlying the first metacarpal carpal joint with some crepitation 
 
         actually more pronounced on the right than on the left.  Claimant 
 
         otherwise had a good range of motion.  The doctor's impression 
 
         was a probable degenerative osteoarthritis of the first 
 
         metacarpal carpal joint.  Dr. Kreiter referred claimant to Dr. 
 
         Irey.
 
         
 
              Dr. Irey performed a resection implant arthroplasty of 
 
         claimant's left thumb with a silastic prosthesis on May 31, 1984.  
 

 
         
 
         
 
         
 
         GONYIER V. HANSALOY HOWDEN CORPORATION
 
         Page   3
 
         
 
         
 
         In history taken that date, he reported that claimant had 
 
         bilateral carpal metacarpal arthritis of the thumbs and that, as 
 
         she had failed at medical management, she elected to proceed with 
 
         the left hand first.  On November 13, 1984, Dr. Irey reported 
 
         that claimant was having pain in both wrists and that she was 
 
         unable to perform her normal work duties.  On December 14, 1984, 
 
         Dr. Irey performed a resection implant arthroplasty of the right 
 
         thumb carpal metacarpal joint.  Flexor carpi radialis was used to 
 
         reenforce the capsule.  On January 25, 1985, Dr. Irey reported 
 
         that claimant was six weeks post the right resection implant and 
 
         continued to have problems on the right hand which he believed 
 
         related to subluxation of the implant.  The doctor opined that 
 
         the implant needed further stabilization and probably needed a 
 
         tenodesis of the MP joint of the thumb.
 
         
 
              While the exhibit list indicates medical reports of Dr. Irey 
 
         of June 18, 1985 and December 13, 1985, none were included in the 
 
         exhibits submitted.  On April 22, 1986, Dr. Irey evaluated 
 
         claimant's permanent physical impairment.  He reported that such 
 
         rating was based on an exam of April 9, 1986.  As of the latter 
 
         date, the doctor reported that, upon measuring with the 
 
         goniometer, no decrease in her first and second metacarpal 
 
         abduction could be detected although clinically the doctor 
 
         believed there was some slight decrease.  Claimant was having 
 
         pain at the carpal metacarpal joint and the doctor was concerned 
 
         that she may also have pain at the scaphotrapezoidal joint.  On 
 
         April 22, 1986, the doctor reported that claimant's abduction was 
 
         decreased to a mild extent and that she had continued pain, 
 
         especially on the right.  He felt that she had lost from 10-20 
 
         degrees of extension of the carpal metacarpal joint corresponding 
 
         to a 10% impairment of her thumb on the right.  He indicated 
 
         that, based on continued pain and probable instability of the 
 
         joint, that figure should be increased to 20% impairment of her 
 
         thumb corresponding to an eight percent impairment of her right 
 
         hand.  The doctor reported that claimant's left hand motion was 
 
         actually quite good and that she had lost only approximately 10 
 
         degrees extension of the thumb representing a five percent 
 
         impairment of her thumb corresponding to a two percent impairment 
 
         of her hand using values obtained from the AMA guides, page 4, 
 
         using tables 3 and 4.
 
         
 
              On August 26, 1986, Dr. Irey advised the employer that 
 
         claimant had reached a point where she was having too much pain 
 
         to continue her current job.  He reported that she might be 
 
         suited to much lighter duty work, if available.  On October 16, 
 
         1986, Dr. Irey opined that it would be reasonable to proceed with 
 
         the revision arthroplasty of claimant's thumbs if her symptoms 
 
         dictated, but that as long as claimant elected to not proceed 
 
         with such further surgery, more limited activity, including 
 
         quitting (her job), would be the most reasonable course for 
 
         claimant.  On December 16, 1986, Dr. Irey reported that claimant 
 
         stated pain about the base of her right thumb was minimal with 
 
         the main location of her pain being the dorsal ulnar aspect of 
 
         her hand and central dorsal aspect of her wrist.  Review of 
 
         previous x-rays revealed no abnormalities in those areas, but 
 
         only mild lateral subluxations of the trapezial prosthesis on the 
 
         scaphoid.  Dr. Irey then told claimant that he would not 
 
         recommend revision arthroplasty of her right thumb although such 
 
         would be beneficial on the left.  He reported that revision 
 

 
         
 
         
 
         
 
         GONYIER V. HANSALOY HOWDEN CORPORATION
 
         Page   4
 
         
 
         
 
         arthroplasty would be unpredictable in decreasing her right 
 
         ulnar-sided wrist pain and recommended continued splinting only.  
 
         On April 8, 1987, Dr. Irey reported that claimant was having some 
 
         mild wrist pain located on the central aspect of the right wrist 
 
         which he suspected in some way related to her thumb joint 
 
         problems.  He reported that it did not seem serious and that it 
 
         did not add to claimant's permanent partial impairment rating.
 
         
 
              On February 27, 1986, Dr. Irey saw claimant because of pain 
 
         in the central portion of the dorsum of her left hand overlying 
 
         the third ray.  On March 26, 1986, Dr. Irey reported that the 
 
         left hand symptoms were decreased.  On April 22, 1987, Dr. Irey 
 
         reported that the pain noted was obscure and that he did not 
 
         recommend surgery for such.
 
         
 
              On March 11, 1987, the employer advised claimant that the 
 
         employer could not find claimant work given her limited ability 
 
         to use her hands.
 
         
 
              The balance of the evidence was reviewed and considered in 
 
         the disposition of this matter.
 
         
 
                           APPLICABLE LAW AND ANALYSIS
 
         
 
              Our sole concern is whether claimant is entitled to payment 
 
         under section 85.34(2)(s).  That section provides that loss of 
 
         both hands in a single accident shall equal 500 weeks and shall 
 
         be compensated as such.  Claimant first complained to medical 
 
         personnel of left hand pain on March 10, 1984.  When Dr. Crider 
 
         saw her on April 16 and 17, 1984, claimant reported a six- to 
 
         eight-month history of increasing pain at the base of both her 
 
         thumbs.  She apparently then had swelling overlying the first 
 
         metacarpal joint with some crepitation, both on the left and on, 
 
         the right.  As of May 31, 1984, Dr. Trey reported that claimant 
 
         had bilateral carpal metacarpal arthritis of the thumbs and had 
 
         elected to proceed with resection implant arthroplasty of the 
 
         left thumb first.  The doctor's note of that date suggests that 
 
         claimant's condition was simultaneously present in both thumbs 
 
         even though it was appropriate to then only proceed with invasive 
 
         medical treatment as regards the left thumb.  That claimant only 
 
         had complaints of pain in the left thumb on March 10, 1984 is not 
 
         incompatible with this analysis.  For, claimant's history to Dr. 
 
         Crider of a six- to eight-month period of increasing pain at the 
 
         base of her thumbs April 16 and 17, 1984 is compatible with 
 
         simultaneous development of a bilateral arthritic condition.  
 
         Further, claimant's work duties were such that simultaneous 
 
         bilateral development of her condition would not be inconsistent 
 
         with the use of her hands which she described at hearing.
 
         
 
              Before claimant can recover under section 85.34(2)(s), 
 
         however, claimant must show that her loss of use extends beyond 
 
         each thumb and into each hand.
 
         
 
              Operative reports are not in evidence; therefore, it is 
 
         difficult to ascertain the exact nature and extent of claimant's 
 
         invasive surgical procedure.  Notes of Dr. Irey are of some help, 
 
         however.  Dr. Irey reported on December 14, 1984 that the right 
 
         resection implant arthroplasty was then performed and that the 
 
         flexor carpi radialis was used to reinforce the capsule.  On 
 

 
         
 
         
 
         
 
         GONYIER V. HANSALOY HOWDEN CORPORATION
 
         Page   5
 
         
 
         
 
         December 16, 1986, Dr. Irey indicated that claimant had pain 
 
         about the base of her right thumb, minimal, with main location of 
 
         such being the dorsal ulnar aspect of her hand and central dorsal 
 
         aspect of her wrist.  No abnormalities were revealed on x-ray but 
 
         for mild lateral subluxations of the trapezial prosthesis on the 
 
         scaphoid.  From the above, we conclude that claimant's invasive 
 
         procedure on the right extended beyond the thumb joint into the 
 
         area of the hand.  Since substantially the same procedure was 
 
         used on the left, we believe it appropriate to assume that the 
 
         invasive procedure on the left also extended into the area of the 
 
         hand.  Claimant has also had indications of or recorded 
 
         complaints of pain at the scaphotrapezoidal joint, at the dorsal 
 
         ulnar aspect of her right hand, at the central aspect of her 
 
         right wrist and in the central portion of the dorsum of her left 
 
         hand.  While Dr. Irey has reported that claimant's mild right 
 
         wrist pain was not serious and did not add to claimant's 
 
         permanent partial impairment and that her left dorsum pain was 
 
         obscure, the existence of such complaints further demonstrates 
 
         that claimant's disability extends beyond her thumb and into her 
 
         hand.  An injury is the producing cause; the disability, however, 
 
         is the result, and it is the result which is compensated.  Barton 
 
         v. Nevada.Poultry Co., 253 Iowa 285, 110 N.W.2d 660 (1961); 
 
         Dailey v. Pooley Lumber Co., 233 Iowa 758, 10 N.W.2d 569 
 
         (1943).
 
         
 
         
 
         
 
              Claimant has established that her injury is a loss of use of 
 
         both hands in a single accident for which she is entitled to 
 
         compensation under section 85.34(2)(s).  Dr. Irey has opined that 
 
         claimant has a 20% impairment of her right thumb representing an 
 
         eight percent impairment of her right hand and that she has a 
 
         five percent impairment of her left thumb representing a two 
 
         percent impairment of her left hand.  Eight percent of the hand 
 
         equals seven percent of the upper extremity; two percent of the 
 
         hand equals two percent of the upper extremity.  Seven percent of 
 
         the upper extremity equals four percent of the whole person; two 
 
         percent of the upper extremity equals one percent of the whole 
 
         person.  Under the combined values charts of the AMA guides, four 
 
         percent of the whole person and one percent of the whole person 
 
         equals a combined value of five percent of the whole person.  
 
         Five percent of 500 weeks equals 25 weeks.  Claimant is entitled 
 
         to total permanent partial disability compensation of 25 weeks.  
 
         Defendants are entitled to credit for 15 weeks of permanent 
 
         partial disability benefits already paid claimant.
 
         
 
                                 FINDINGS OF FACT
 
         
 
              THEREFORE, IT IS FOUND:
 
         
 
              Claimant began working for defendant employer in 1977 making 
 
         scalloped knife blades on a punch press.
 
         
 
              Claimant was required to pull steel off a coil with her left 
 
         hand, grasp steel between her thumb and forefinger, and push a 
 
         safety device and indicator with her right hand.
 
         
 
              On March 10, 1984, claimant complained at the Davenport 
 
         Clinic of pain in the left hand with swelling, tenderness and 
 

 
         
 
         
 
         
 
         GONYIER V. HANSALOY HOWDEN CORPORATION
 
         Page   6
 
         
 
         
 
         some crepitation of the MP joint.
 
         
 
              On April 16 and 17, 1984, claimant reported a six- to 
 
         eight-month history of increasing pain at the base of her 
 
         thumbs.
 
         
 
              Claimant then was tender with some swelling over the first 
 
         metacarpal joint with crepitation more pronounced on the right 
 
         than on the left.
 
         
 
              On May 31, 1984, Dr. Irey diagnosed claimant's condition as 
 
         bilateral carpal metacarpal arthritis of the thumbs.
 
         
 
              On May 31, 1984, Dr. Irey performed a resection implant 
 
         arthroplasty of claimant's left thumb.
 
         
 
              On December 14, 1984, Dr. Irey performed a resection implant 
 
         arthroplasty of the right thumb with the flexor carpi radialis 
 
         used to reinforce the capsule.
 
         
 
              As of December 16, 1986, claimant had mild lateral 
 
         subluxation of the trapezial prosthesis on the scaphoid on the 
 
         right.
 
         
 
              Claimant's surgical procedures were substantially similar on 
 
         the right and on the left.
 
         
 
              Claimant has had indications of pain at the 
 

 
         
 
         
 
         
 
         GONYIER V. HANSALOY HOWDEN CORPORATION
 
         Page   7
 
         
 
         
 
         scaphotrapezoidal joint on the right, the dorsal ulnar aspect of 
 
         her right hand and the central dorsal aspect of her right wrist, 
 
         and the central portion of the dorsum of her left hand.
 
         
 
              Claimant's disability extends beyond her thumbs and into her 
 
         hands.
 
         
 
              Claimant has had a loss of use of both hands in a single 
 
         accident.
 
         
 
              Claimant has an eight percent loss of use of the right hand 
 
         which equals a seven percent loss of use of the upper extremity 
 
         which equals a four percent loss of use of the body as a whole; 
 
         claimant has a two percent loss of use of the left hand which 
 
         equals a two percent loss of use of the upper extremity which 
 
         equals a one percent loss of use of the body as a whole.
 
         
 
              The combined value of a four percent body as a whole loss 
 
         and a one percent body as a whole loss is five percent of the 
 
         body as a whole.
 
                                CONCLUSIONS OF LAW
 
         
 
              THEREFORE, IT IS CONCLUDED:
 
         
 
              Claimant has established that her disability related to her 
 
         April 5, 1984 injury is most appropriately compensated under 
 
         section 85.34(2)(s).
 
         
 
              Claimant is entitled to permanent partial disability of five 
 
         percent of the body as a whole.  Defendants are entitled to 
 
         credit for permanent partial disability benefits of 15 weeks 
 
         already paid.
 
                                      ORDER
 
         
 
              THEREFORE, IT IS ORDERED:
 
         
 
              Defendants pay claimant an additional ten (10) weeks of 
 
         permanent partial disability benefits at the rate of one hundred 
 
         sixty-four and 91/100 dollars ($164.91) with such benefits to 
 
         commence July 15, 1986.
 
         
 
              Defendants pay accrued amounts in a lump sum.
 
         
 
              Defendants pay interest pursuant to section 85.30.
 
         
 
              Defendants pay costs pursuant to Division of Industrial
 
         Services Rule 343-4.33.
 
         
 
              Defendants file claim activity reports as required by the 
 
         agency.
 
             
 
              Signed and filed this 26th day of 1987.
 
         
 
         
 
                                             
 
                                             HELEN JEAN WALLESER
 
                                             DEPUTY INDUSTRIAL COMMISSIONER
 
 
 

 
         
 
         
 
         
 
         GONYIER V. HANSALOY HOWDEN CORPORATION
 
         Page   8
 
         
 
         
 
         
 
         
 
         Copies To:
 
         
 
         Mr. J. E. Tobey III
 
         Attorney at Law
 
         512 East Locust Street
 
         Davenport, Iowa 52803
 
         
 
         Mr. Larry L. Shepler
 
         Attorney at Law
 
         600 Union Arcade Building
 
         111 East Third Street
 
         Davenport, Iowa 52801
 
         
 
         
 
         
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                                 1803.1
 
                                                 Filed October 26, 1987
 
                                                 HELEN JEAN WALLESER
 
         
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         JOAN B. GONYIER,
 
          
 
               Claimant,
 
                                                     File Nos. 821629
 
          VS.                                                  821630
 
          
 
          HANSALOY HOWDEN CORPORATION,
 
          
 
               Employer,                            A R B I T R A T I 0 N
 
          
 
          and
 
          
 
          WAUSAU INSURANCE COMPANY,                   D E C I S I 0 N
 
          
 
               Insurance Carrier,
 
               Defendants.
 
         
 
         
 
         
 
         
 
         1803.1
 
         
 
              Female claimant left work on account of degenerative 
 
         condition diagnosed as bilateral carpal metacarpal arthritis of 
 
         the thumbs.  Resection implant arthroplasty was performed on the 
 
         left thumb on May 31, 1984 and on the right thumb on December 14, 
 
         1984.  Claimant developed mild lateral subluxation of the 
 
         trapezial prostheses on the scaphoid, apparently in both hands.  
 
         Claimant had chosen to delay her second resection implant 
 
         arthroplasty in order to avoid total incapacitation from surgery.  
 
         HELD: Claimant's injuries extended into her hands and not only 
 
         her thumbs; claimant's condition is a cumulative trauma resulting 
 
         from a single accident and subject to payment of benefits under 
 
         section 85.34(2)(s).
 
 
 
         
 
 
         
 
 
 
 
 
 
 
 
 
 
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         MERRI ZUBER,
 
         
 
              Claimant,                        File Nos.  821632
 
                                                         821633
 
         
 
         VS.
 
                                                A R B I T R A T I 0 N
 
         
 
         STONE CONTAINER CORPORATION,
 
                                               D E C I S I 0 N
 
              Employer,
 
              Self-Insured,
 
         
 
          and
 
          
 
          AMERICAN MOTORIST INSURANCE CO.,
 
          
 
              Insurance Carrier,
 
              Defendants.
 
          
 
          
 
                                   INTRODUCTION
 
         
 
              This is a proceeding in arbitration for benefits brought by 
 
         Merri Zuber, claimant, against Stone Container Corporation, 
 
         employer and self-insured defendant, for an alleged injury which 
 
         occurred on or about December 24, 1985, and against Stone 
 
         Container Corporation, employer, and American Motorist Insurance 
 
         Company, insurance carrier, for an alleged injury which occurred 
 
         on March 18, 1986.  A hearing was held in Des Moines, Iowa, on 
 
         May 2, 1989, and the case was fully submitted at the close of the 
 
         hearing.  The record consists of the testimony of Merri M. Zuber, 
 
         claimant; Thomas Riggs, human resources manager; claimant's 
 
         exhibits 2 through 6; defendants' exhibits I with subparts A, B, 
 
         C; defendants' exhibit II with subparts A through F; and 
 
         defendants' exhibits III through V.  The deputy ordered a 
 
         transcript of the hearing.  Claimant was represented by Robert W. 
 
         Brennan.  Employer and self-insured defendant was represented by 
 
         Harry W. Dahl.  Defendant employer and American Motorist' 
 
         Insurance Company were represented by William D. Scherle.  
 
         Attorney for employer and self-insured defendant, Harry Dahl, 
 
         submitted an excellent posthearing brief.
 
         
 
                               PRELIMINARY MATTERS
 
         
 
              Claimant's counsel stated in his opening description of 
 
         disputes that claimant was not seeking any permanent disability 
 
         benefits.
 
         
 
              Both defendants moved to strike and exclude claimant's 
 
         proposed exhibits 2 through 6 because claimant failed to serve 
 
         either a witness list or an exhibit list within 15 days prior
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
         
 
         
 
         ZUBER VS. STONE CONTAINER CORP.
 
         Page 2
 
         
 
         
 
         to the originally scheduled hearing as provided by paragraph six 
 
         of the hearing assignment order.  The original hearing was 
 
         scheduled for February 3, 1989.  Fifteen days prior to the 
 
         hearing was January 20, 1989.  Deputy Industrial Commissioner 
 
         Helenjean Walleser granted claimant a continuance until May 2, 
 
         1989, but specified in her order dated February 20, 1989, that 
 
         claimant was not permitted additional time to file a witness list 
 
         or exhibit list.  Claimant's attorney conceded he had not filed a 
 
         witness list or an exhibit list within 15 days prior to hearing 
 
         as required by paragraph six of the hearing assignment order, but 
 
         stated he had intended to rely on the exhibits defendants had 
 
         served on him.  Employer and self-insured defendant for the 
 
         alleged injury of December 24, 1985, served an exhibit list on 
 
         claimant January 18, 1989, which states "comes now the employer, 
 
         self-insured, and pursuant to the rules of the industrial 
 
         commissioner states the following will be introduced into 
 
         evidence at the time of hearing:" (defendant's exhibit IV).  
 
         Defendant employer and insurance carrier for the alleged injury 
 
         of May 18, 1986, served an exhibit list on claimant on January 
 
         20, 1989.  This notice states "COME NOW the Defendants and submit 
 
         to Claimant's attorney the following list of exhibits" (def. ex.  
 
         V, page 2).  Since claimant's proposed exhibits were included on 
 
         the list of exhibits of both defendants, and both defendants 
 
         served these exhibits on claimant, then claimant's exhibits were 
 
         admitted into evidence.
 
         
 
              Claimant was not allowed to call witnesses which were on 
 
         defendants' witness lists.  Claimant was allowed to make an offer 
 
         of proof of the direct testimony of Thomas Riggs as his own 
 
         witness in the presence of all parties and the court reporter, 
 
         but with the deputy absent (transcript page 128).
 
         
 
                                   STIPULATIONS
 
         
 
              The parties stipulated to the following matters:
 
         
 
              That an employer-employee relationship existed between 
 
         claimant and employer at the time of both alleged injuries.
 
         
 
              That the rate of compensation, in the event of an award, is 
 
         $173.31 per week for both injuries.
 
         
 
              That the medical expenses are fair and reasonable.
 
         
 
              That the medical expenses were incurred for reasonable and 
 
         necessary treatment.
 
         
 
              That the causal,connection of the expenses to treatment for 
 
         a condition upon which claimant is now basing his claim is 
 
         admitted, but the causal connection of this condition to a work 
 
         injury remains an issue to be decided in these proceedings.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              That defendants have paid to claimant $6,415.75 in medical
 
         
 
         
 
         
 
         ZUBER VS. STONE CONTAINER CORP.
 
         Page 3
 
         
 
         
 
         and hospital benefits under an employer nonoccupational group 
 
         health plan prior to hearing.
 
         
 
              That defendants have not paid claimant any workers' 
 
         compensation benefits prior to hearing.
 
         
 
              That there are no bifurcated claims.
 
         
 
                                      ISSUES
 
         
 
              The parties submitted the following issues for determination 
 
         at the time of the hearing.
 
         
 
              Whether claimant sustained an injury on December 24, 1985, 
 
         and on March 18, 1986, which arose out of and in the course of 
 
         employment with employer.
 
         
 
              Whether either of the alleged injuries was the cause of 
 
         temporary disability.
 
         
 
              Whether claimant is entitled to temporary total disability 
 
         benefits as the result of either alleged injury.
 
         
 
              Whether claimant is entitled to medical benefits.
 
         
 
              Whether claimant gave timely notice pursuant to Iowa Code 
 
         section 85.23 is asserted as an affirmative defense by employer 
 
         and self-insured defendant for the alleged injury of December 24, 
 
         1985.
 
         
 
              Whether defendant employer is entitled to a credit for 
 
         $6,415.75 for medical and hospital benefits paid to claimant 
 
         prior to hearing pursuant to an employee nonoccupational group 
 
         health plan.
 
         
 
              Whether claimant is entitled to an offset against the credit 
 
         for medical insurance premiums that she was required to pay after 
 
         she had been absent from work for 30 days.
 
         
 
                             SUMMARY OF THE EVIDENCE
 
         
 
              Of all the evidence that was introduced, the following is a 
 
         summary of the evidence most pertinent to this decision.
 
         
 
              Claimant testified that she was employed with employer from 
 
         1982 (February 5, 1982) until August of 1986 (August 11, 1986) in 
 
         the production of bags.  Her job of inspecting required her to 
 
         bend and lift 50 pounds of bags at one time.  In the later part 
 
         of December of 1985, close to Christmas, she experienced a 
 
         stomach ache and a back ache and requested to go home.  On 
 
         Christmas night she couldn't move, got scared and her husband 
 
         took her to the hospital where she was examined, x-rayed, 
 
         medicated and sent home three hours later with instructions to 
 
         see her
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
         
 
         
 
         ZUBER VS. STONE CONTAINER CORP.
 
         Page 4
 
         
 
         
 
         personal physician (tr. pp. 35-45).
 
         
 
              The records of the emergency department said that claimant 
 
         was seen at the hospital at 1:10 a.m. on December 26, 1985, for 
 
         pain in the lower back and legs which was diagnosed as acute low 
 
         back pain.  The nursing assessment states: "Denies injury to 
 
         back". (claimant's ex. 6, p. 37; def. ex. I, B).  The lumbosacral 
 
         x-ray taken on December 26, 1985, was normal (def. ex. I, B, p. 
 
         3).
 
         
 
              Michael J. Richards, M.D., claimant's personal physician, 
 
         released her to return to work two weeks later on January 6, 
 
         1986, without any restrictions (tr. pp. 56-58; cl. ex. 2, pp. 
 
         4-18; cl. ex. 4, p. 8).  Dr. Richards recorded a completely 
 
         resolved low back syndrome (cl. ex. 3, p. 4; cl. ex. 4, p. 10).
 
         
 
              In her deposition, prior to hearing, claimant contended that 
 
         she reported both a stomach ache and a back ache when she left 
 
         work just prior to Christmas (cl. ex. 2, pp. 38, 39 & 43).  
 
         Internal correspondence of employer indicates that claimant was 
 
         sick to her stomach and throwing up and called her husband to 
 
         come and pick her up on the evening of December 23, 1985.  This 
 
         internal correspondence does not mention a work injury to the 
 
         legs or back (def. ex. II, A; cl. ex. 6, p. 14).  Claimant's 
 
         exhibits included an unidentified hand printed note which states 
 
         "Not authorized treatment.  Not reported.  Said she had stomach 
 
         problem." (cl. ex. 4, p. 8).
 
         
 
              Claimant testified that her husband also worked for employer 
 
         and he took in a slip of paper from the hospital to show that she 
 
         would be off work (cl. ex. 2, p. 16; tr. pp. 60 & 61).  The first 
 
         report of injury for this alleged injury shows that employer 
 
         first learned of this injury on June 3, 1986 (def. ex. II, F; cl. 
 
         ex. 6. p. 1).  Other evidence shows that claimant may have become 
 
         ill at work on December 24, 1985, rather than December 23, 1985.  
 
         Claimant was not sure which date was the correct date (cl. ex. 2, 
 
         pp. 9 & 37).
 
         
 
              Claimant testified that on March 18, 1986, she was stacking.  
 
         She was taking stacks of bags off of the belt and putting them on 
 
         the skid to go to another department or in a box to be shipped 
 
         out.  This was a very strenuous evening because of difficulties 
 
         on the line.  She testified that she lifted more bags than usual 
 
         and stacked them higher than usual.  She did not have any trouble 
 
         that evening at work, but the following morning she woke up and 
 
         her back was sore and it hurt.  Her husband notified employer and 
 
         claimant went to see Dr. Richards.  He took her off work, ordered 
 
         a CT scan and when she did not get better he referred her to 
 
         Thomas A. Carlstrom, M.D., a neurosurgeon.  The CT scan confirmed 
 
         a herniated lumbar disc.  Dr. Carlstrom performed surgery for a 
 
         herniated disc on May 7, 1986.  Dr. Carlstrom released claimant 
 
         to return to work on August 11,
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
         
 
         
 
         ZUBER VS. STONE CONTAINER CORP.
 
         Page 5
 
         
 
         
 
         1986.  Claimant testified that on August 11, 1986, Thomas Riggs, 
 
         human resources manager, refused to allow her to return to work 
 
         until this injury was settled.  A few days later she received a 
 
         letter from Riggs, dated August 15, 1986, stating that she could 
 
         return to work on August 18, 1986 (tr. pp. 58-68; cl. ex. 2, pp. 
 
         18-28).
 
         
 
              On March 21, 1986, Dr. Richards noted leg pain and 
 
         associated low back pain for the last 48 hours which he suspected 
 
         was lumbar disc syndrome.  On April 18, 1986, Dr. Richards 
 
         recorded: "Herniated lumbar disc at L5-Sl level documented by CT" 
 
         and referred claimant to Dr. Carlstrom (cl. ex. 3, p. 4; cl. ex. 
 
         4, p. 10).
 
         
 
              The radiology report shows moderate disc bulge centered at 
 
         L5-Sl level (cl. ex. 3, P. 7).
 
         
 
              Dr. Richards took claimant off work on March 21, 1986 (cl. 
 
         ex. 4, p. 2) and continued to keep her off work prior to the 
 
         referral to Dr. Carlstrom (cl. ex. 4, p. 9).
 
         
 
              Dr. Carlstrom first saw claimant on April 25, 1986, for 
 
         pain, numbness and tingling in her left leg radiating to her foot 
 
         (cl. ex. 5, pp. 2-8).  Dr. Carlstrom performed a lumbar 
 
         laminectomy for an L5-Sl herniated disc on May 7, 1986 (cl. ex. 
 
         5, pp. 9-12).  Dr. Carlstrom released claimant to return to work 
 
         without restrictions on August 11, 1986 (cl. ex. 2, deposition 
 
         ex. 2; def. ex.  I, C).  However, Dr. Carlstrom's notes indicated 
 
         that he had contemplated a 25 pound work restriction for 6 weeks, 
 
         but on August 6, 1986, he noted that he received a telephone call 
 
         which requested a release without restrictions (cl. ex. 5, P. 7).  
 
         Claimant did not keep her final appointment with Dr. Carlstrom on 
 
         September 16, 1986 (cl. ex. 2, p. 33).
 
         
 
              Claimant applied for a leave of absence on March 19, 1986.  
 
         The type of leave is marked "personal." In the space for the 
 
         leave of absence appears the words (back injury--not work related 
 
         per Brian Zuber" (cl. ex. 6, p. 15; def. ex.  II, C).  This 
 
         application says it is for personal illness and was signed by 
 
         claimant on March 21, 1986 (cl. ex. 6, p. 17).  It was approved 
 
         as a personal leave of absence on March 25, 1986 (cl. ex. 6, p. 
 
         16).  Claimant testified that she paid her own health insurance 
 
         premiums because that is what the company required when someone 
 
         was absent from work for more than 30 days on a personal leave of 
 
         absence (tr. pp. 72 & 73).
 
         
 
              Claimant testified that she was asked by employer to 
 
         complete a piece of paper to protect the company if she had 
 
         another injury.  Claimant contended that she did not know what 
 
         she was signing (tr. pp. 69-72).  This document is a state of 
 
         Iowa industrial commissioner form 12 entitled Waiver on Account 
 
         of Physical Defect (cl. ex. 2, dep. ex. 5; cl. ex. 4, p. 7; def. 
 
         ex.  II, D).  She admitted that she filled in the top portion
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
         
 
         
 
         ZUBER VS. STONE CONTAINER CORP.
 
         Page 6
 
         
 
         
 
         of the form and signed it and that Dr. Richards completed the 
 
         physicians portion of the form.  Claimant testified that Dr. 
 
         Richards filled out this form and signed it in her presence and 
 
         he consulted her for the answers that he put on the form.  In 
 
         answer to item five, the form shows that the origin of her 
 
         herniated disc was from lifting with back pain around Christmas 
 
         1985.  Also at item number five the "no" block is checked 
 
         indicating that the injury is not job related.  The form further 
 
         indicates in the doctor's handwriting "No lifting; would need to 
 
         be able to stand, sit or walk prn.  No lifting." This form was 
 
         approved by Deputy Industrial Commissioner Michael G. Trier on 
 
         April 21, 1989 (tr. pp. 69-73, 86, 87, 99-103, 115 & 116; cl. ex. 
 
         2, pp. 45-53, dep. ex. 5).
 
         
 
              Claimant admitted that she told the emergency room on 
 
         December 25, 1985, that she had not had prior back problems, but 
 
         at the hearing she admitted that this information was not correct 
 
         (tr. pp. 82-85).
 
         
 
              Claimant injured her back moving an empty skid and saw a 
 
         doctor, Kaye Check, M.D., on October 6, 1982.  Dr. Check ordered 
 
         no lifting for one week (cl. ex. 2, pp. 27 & 30; dep. ex. 3; cl. 
 
         ex. 4, p. 6; cl. ex. 6, pp. 9-11).
 
         
 
              Claimant completed benefit request health forms for health 
 
         insurance for several dates immediately after both of these 
 
         .alleged injuries.  In each instance, none of the forms state 
 
         that benefits are claimed due to either: (1) an employment 
 
         related condition or (2) an accident.  On the contrary, most of 
 
         the forms are marked that they are not for a work-related 
 
         condition and not for an accident (cl. ex. 6, pp. 4, 6, 22, 29, 
 
         32, 36, & 43; def. ex.  II, E, pp. 7-15).  Claimant indicated 
 
         that these were made out to get her medical bills paid and might 
 
         have been for other things such as Pap smears (tr. pp.
 
         109-114).  Claimant testified that she returned to work on August 
 
         11, 1986, but Riggs told, her that she could not work until this 
 
         settlement was taken care of (cl. ex. 2, p. 23).  Claimant 
 
         testified that she stayed in town approximately three or four 
 
         days and then moved to Arizona to join her husband and child.  
 
         Claimant testified that Riggs sent her a letter on August 15, 
 
         1986, stating that she could return to work as an inspector on 
 
         August 18, 1986.  Claimant testified that she would have stayed 
 
         in Iowa and she would have worked for employer if employer had 
 
         taken her back to work on August 11, 1986.  She testified that 
 
         she would have stayed in Iowa and worked in Iowa even though her 
 
         husband had moved permanently to Arizona and that her 
 
         one-year-old child was with him in Arizona.  Claimant's sister 
 
         called her about the letter from Riggs.  Claimant discussed the 
 
         letter with her attorney.  Claimant decided to stay with her 
 
         husband and child in Arizona.  The return to work offer from 
 
         Riggs asked for a reply, but claimant admitted that she never 
 
         answered the note in person, by telephone or by letter.  She 
 
         admitted that this was somewhat in conflict with her earlier
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
         
 
         
 
         ZUBER VS. STONE CONTAINER CORP.
 
         Page 7
 
         
 
         
 
         deposition testimony that she would not return to Iowa for her 
 
         old job in August of 1986 (tr. pp. 66-69, 104-108; cl. ex. 2, pp. 
 
         23-30, 34 & 35).  When claimant did not return to work and did 
 
         not contact employer she was terminated (def. ex. II, B, pp. 1 & 
 
         2).
 
         
 
              Claimant testified that she now works in Arizona as a 
 
         lottery clerk selling lottery tickets at the service desk in a 
 
         supermarket (tr. pp. 81 & 82).
 
         
 
              Thomas Riggs testified that he is human resources manager 
 
         for employer and that he has held this position for nine years.  
 
         He related that if an employee is injured the procedure is to sit 
 
         down with the supervisor and make out an accident report before 
 
         leaving work that day (tr. pp. 138 & 139).  He said that claimant 
 
         only reported being sick on December 23, 1985 (tr. pp. 141 & 
 
         143).  Claimant said that she saw the audio-visual instructing 
 
         employees on the procedure for reporting a work injury (tr. p. 
 
         143).  Riggs said that he received the information that claimant 
 
         was asserting a work injury for both of these alleged injuries on 
 
         June 3, 1986.  He then made out a first report of injury for both 
 
         injuries on June 16, 1986 (tr. p. 145; cl. ex. 2, p. 43).  The 
 
         original notice and petition is dated May 30, 1986, and was 
 
         received in the industrial commissioner's office on June 2,, 
 
         1986.
 
         
 
              Riggs further testified that claimant's husband, Brian 
 
         Zuber, told him in his office in March of 1986 that claimant 
 
         injured her back from picking up their child and that is why he 
 
         (Riggs) wrote the words on the leave request "back injury--not 
 
         work related, per Brian Zuber" (tr. p. 151).  Claimant testified 
 
         at the time of her deposition on October 21, 1986, that it still 
 
         hurt her back if she held her daughter for 15 or 20 minutes (cl. 
 
         ex. 2, p. 32).  Riggs contended that these words were on the 
 
         leave request when claimant signed it (tr. pp. 151 & 151).  
 
         Claimant could not recall if they were on there or not.  She did 
 
         not know.  She said this was the first time she had seen them 
 
         (tr. pp. 109 & 110).
 
         
 
                           APPLICABLE LAW AND ANALYSIS
 
         
 
              An employee is entitled to compensation for any and all 
 
         personal injuries which arise out of and in the course of the 
 
         employment.  Section 85.3(l).
 
         
 
              Claimant has the burden of proving by a preponderance of the 
 
         evidence that she received an injuries on December 24, 1985 and 
 
         March 18, 1986, which arose out of and in the course of her 
 
         employment.  McDowell v. Town of Clarksville, 241 N.W.2d 904 
 
         (Iowa 1976); Musselman v. Central Telephone Co., 261 Iowa 352, 
 
         154 N.W.2d 128 (1967).
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              The injury must both arise out of and be in the course
 
         
 
         
 
         
 
         ZUBER VS. STONE CONTAINER CORP.
 
         Page 8
 
         
 
         
 
         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 claimant has the burden of proving by a preponderance of 
 
         the evidence that the injuries of December 24, 1985 and March 16, 
 
         1986, are causally related to the disability on which she now 
 
         bases her claim.  Bodish v. Fischer, Inc., 257 Iowa 516, 133 
 
         N.W.2d 867 (1965).  Lindahl v. L.O. Boggs, 236 Iowa 296, 18 
 
         N.W.2d 607 (1945).  A possibility is insufficient; a probability 
 
         is necessary.  Burt v. John Deere Waterloo Tractor Works, 247 
 
         Iowa 691, 73 N.W.2d 732 (1955).  The question of causal 
 
         connection is essentially within the domain of expert testimony.  
 
         Bradshaw v. Iowa Methodist Hospital, 251 Iowa 375, 101 N.W.2d 167 
 
         (1960).
 
         
 
              However, expert medical evidence must be considered with all 
 
         other evidence introduced bearing on the causal connection.  
 
         Burt, 247 Iowa 691, 73 N.W.2d 732.  The opinion of experts need 
 
         not be couched in definite, positive or unequivocal language.  
 
         Sondag v. Ferris Hardware, 220 N.W.2d 903 (Iowa 1974).  However, 
 
         the expert opinion may be accepted or rejected, in whole or in 
 
         part, by the trier of fact. Id. at 907.  Further, the weight to 
 
         be given to such an opinion is for the finder of fact, and that 
 
         may be affected by the completeness of the premise given the 
 
         expert and other surrounding circumstances.  Bodish, 257 Iowa 
 
         516, 133 N.W.2d 867.  See also Musselman v. Central Telephone Co.
 
         , 261 Iowa 352, 154 N.W.2d 128 (1967).
 
         
 
              Claimant did not sustain the burden of proof by a 
 
         preponderance of the evidence that she sustained an injury on 
 
         December 24, 1985.  Claimant testified that on the evening she 
 
         had to go home sick she had both a stomach ache and a back ache.  
 
         However, employer's written internal correspondence, drafted at 
 
         the time of the incident, recorded that she only reported a 
 
         stomach ache and vomiting.
 
         
 
              When claimant reported to the emergency room on Christmas 
 
         night, she reported leg pain and lower back pain.  She denied an 
 
         injury to her back at the emergency room.  She designated her 
 
         nonoccupational group health carrier as the applicable insurance.  
 
         She did not describe any work activities to the nurse who 
 
         interviewed her or to the doctor who examined her.
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
              Dr. Richards said claimant had low back syndrome, acute.  He 
 
         did not record a work history nor any work activities as the 
 
         possible cause.  He did not assert any cause for the complaints.
 
         
 
              Claimant testified that her husband took a hospital slip to 
 
         employer to show that she would be off work, but she did not 
 
         testify, or even imply, that her condition was due to a
 
         
 
         
 
         
 
         ZUBER VS. STONE CONTAINER CORP.
 
         Page 9
 
         
 
         
 
         work injury.  Claimant's husband did not testify in person at the 
 
         hearing or by deposition.
 
         
 
              Riggs testified his first knowledge that claimant contended 
 
         this was a work injury was not until June 3, 1986.  Claimant 
 
         flied a number of benefit request forms with the group carrier, 
 
         but all of them are marked that her condition was not related to 
 
         her employment and that it was not due to an accident.
 
         
 
              Claimant did not call or depose the supervisor to whom she 
 
         claims she reported a back injury on the evening of December 24, 
 
         1985.  Claimant had a history of back complaints in 1982, 1983 
 
         and 1984.
 
         
 
              Claimant did not report to Dr. Carlstrom that she had 
 
         suffered a previous back injury when she first saw him on April 
 
         25, 1986, or at any other time, according to the evidence 
 
         supplied by Dr. Carlstrom.
 
         
 
              Wherefore, claimant did not sustain the burden of proof by a 
 
         preponderance of the evidence that she sustained an injury to her 
 
         back on December 24, 1985, that arose out of and in the course of 
 
         her employment with employer.  The overwhelming weight of the 
 
         evidence is that claimant did not sustain an injury which arose 
 
         out of and in the course of her employment on December 24, 1985.
 
         
 
              Claimant did not sustain the burden of proof by a 
 
         preponderance of the evidence that she sustained an injury on 
 
         March 18, 1986, which arose out of and in the course of her 
 
         employment with employer.  Claimant's first symptoms of this 
 
         alleged injury arose in the morning at home when she woke up with 
 
         back pain.  She attributed these symptoms to strenuous work the 
 
         previous day at work, but did not have any symptoms at work on 
 
         the day that she alleged it occurred.  She did not describe any 
 
         traumatic onset for either one of these injuries.  There was no 
 
         accident or incident.  As to the alleged injury of March 18, 
 
         1986, she testified that she did not even experience any symptoms 
 
         at work.
 
         
 
              Claimant did not give a history of a work injury to Dr. 
 
         Richards or suggest her leg pain and associated low back pain 
 
         were associated in any manner with work activities.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              Dr. Richards did not state any cause, but described her 
 
         symptoms again as disc syndrome and low back syndrome.  Dr. 
 
         Richards did not state that this injury was caused by claimant's 
 
         work.
 
         
 
              Claimant did tell Dr. Carlstrom that she experienced pain at 
 
         work and he recorded that she lifted as much as 50 pounds; 
 
         however, Dr. Carlstrom did not relate any particular cause to her 
 
         condition.  Dr. Carlstrom did not state that claimant's
 
         
 
         
 
         
 
         ZUBER VS. STONE CONTAINER CORP.
 
         Page 10
 
         
 
         
 
         injury was caused by her work.
 
         
 
              Riggs testified that claimant's husband told him that her 
 
         March 18, 1986, symptoms were caused by lifting their daughter 
 
         when claimant's husband arranged for her personal leave of 
 
         absence on March 21, 1986; and that is why Riggs wrote on the 
 
         form "back injury-not work related per Brian Zuber." Their 
 
         daughter was born on September 20, 1985, and would have been six 
 
         months old at that time.  Claimant testified by deposition on 
 
         October 21, 1986, that it hurt her back if she held her daughter 
 
         for 15 or 20 minutes.  Claimant admitted that she willingly paid 
 
         her own health insurance premiums when she was on the personal 
 
         leave of absence.
 
         
 
              Claimant and Dr. Richards jointly completed the Waiver on 
 
         Account of Physical Defect.  Dr. Richards asked claimant for the 
 
         answers to the questions and completed the physician's portion of 
 
         the form in the presence of and in conjunction with claimant.  
 
         The form indicated that the onset for her condition was Christmas 
 
         1985 and that it was not job related.  This is further evidence 
 
         that the alleged injury of December 24, 1985, was not related to 
 
         her employment as well as the injury of March 18, 1986.  The 
 
         implication is that neither injury was job related.  Dr. Richards 
 
         returned the form to claimant and she turned it over to employer.  
 
         At no time, even at the hearing, did claimant assert that the 
 
         form was incorrect or contained false or mistaken information.  
 
         Dr. Richards was not called as a witness at the hearing nor was a 
 
         deposition taken from him and introduced into evidence.  Claimant 
 
         admitted that the information she gave to the emergency room on 
 
         December 26, 1985, to the effect that she had not had prior back 
 
         or leg pain, was not correct.  The record establishes that 
 
         claimant was treated in 1982, 1983 and 1984 for back problems.
 
         
 
              Claimant, either alone or with her husband, filed several 
 
         benefit request forms.  Claimant maintained that these forms were 
 
         for medical benefits and may have included such things as Pap 
 
         smears.  Since claimant was off work and receiving medical 
 
         treatment it is most probable that these benefit request forms 
 
         were related to this injury.  These forms, which were signed by 
 
         claimant, show that the claim was not for a condition related to 
 
         employment and that they were not for an accident.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              Riggs testified that he first learned that a claim was being 
 
         made for either work injury on June 3, 1986.  It is noted that 
 
         the original notice and petition was dated May 30, 1986, and was 
 
         filed with the industrial commissioner June 2, 1986.  Riggs 
 
         testified that claimant's husband told him in March of 1986, when 
 
         he filed the personal leave of absence form, that claimant's back 
 
         condition was due to lifting the baby.  No evidence was submitted 
 
         from claimant's husband in any form.  No depositions were taken 
 
         from either Dr. Richards or Dr. Carlstrom.  There are no medical 
 
         reports which state the back and leg pains
 
         
 
         
 
         
 
         ZUBER VS. STONE CONTAINER CORP.
 
         Page 11
 
         
 
         
 
         were caused by claimant's work or an injury at work on March 18, 
 
         1986.
 
         
 
              Wherefore, claimant did not sustain the burden of proof by a 
 
         preponderance of the evidence that she sustained an injury 
 
         arising out of and in the course of her employment with employer 
 
         on March 18, 1986.  The overwhelming evidence in the record is 
 
         that claimant did not sustain an injury arising out of and in the 
 
         course of her employment on March 18, 1986.
 
         
 
                                 FINDINGS OF FACT
 
         
 
              Wherefore, based upon the evidence presented the following 
 
         findings of fact are made.
 
         
 
              That claimant did not sustain an injury on either December 
 
         24, 1985, or March 18, 1986, which arose out of and in the course 
 
         of employment with employer.
 
         
 
              That claimant did not report either injury to employer until 
 
         June 3, 1986.
 
         
 
              That claimant did not give Dr. Richards a work history as a 
 
         cause of her leg and back pain for either alleged injury.
 
         
 
              That Dr. Richards did not state that the cause of either 
 
         injury was claimant's employment.
 
         
 
              That Dr. Richards attributed claimant's leg pain and back 
 
         pain to disc syndrome and low back syndrome.
 
         
 
              That Dr. Carlstrom did record that claimant felt back and 
 
         leg pain at work and she lifted up to 50 pounds, but that Dr. 
 
         Carlstrom did not state that either alleged injury was the cause 
 
         of claimant's back and leg pain.
 
         
 
              That claimant filed several benefit request forms 
 
         immediately following both injuries and did not assert that her 
 
         condition was related to her employment when she was given the 
 
         opportunity to do so, but on the contrary, indicated a number of 
 
         times after both alleged injuries that her condition was not 
 
         related to her employment.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              That the emergency room record on December 26, 1985, 
 
         indicates claimant denied an injury to her back and claimant did 
 
         not testify this information was wrong or incorrect.
 
         
 
              That the Wavier on Account of Physical Defect was completed 
 
         by Dr. Richards with information given to him by claimant, in the 
 
         presence of claimant, the form is signed by claimant, and the 
 
         form indicates that the condition originated at Christmas in 1985 
 
         and that it was not job related.
 
         
 
         
 
         
 
         ZUBER VS. STONE CONTAINER CORP.
 
         Page 12
 
         
 
         
 
              That claimant was off work from December 24, 1985, to June 
 
         6, 1986, but she did not prove that it was due to a work related 
 
         injury.
 
         
 
              That claimant was off work from March 18, 1986, to August 
 
         11, 1986, but she did not prove that it was due to a work-related 
 
         injury.
 
         
 
              That claimant did not prove that she gave notice of the 
 
         alleged injury of December 24, 1985, within 90 days or that 
 
         employer had actual notice of this injury to her back.
 
         
 
              That claimant's testimony that her husband took the 
 
         emergency room form to employer and delivered her request for 
 
         personal leave of absence to employer did not indicate to 
 
         employer that either condition was claimed to be due to a 
 
         work-related 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 did not sustain the burden of proof by a 
 
         preponderance of the evidence that she sustained an injury on 
 
         either December 24, 1985, or March 18, 1986, which arose out of 
 
         and in the course of her employment with employer.
 
         
 
              That claimant did not prove her times off work following 
 
         each of these alleged injuries was due to a work-related injury.
 
         
 
              That claimant is not entitled to temporary disability 
 
         benefits.
 
         
 
              That claimant is not entitled to medical benefits.
 
         
 
              That employer and self-insured defendant did sustain the 
 
         burden of proof by a preponderance that claimant did not give 
 
         timely notice as required by Iowa Code section 85.23 and that 
 
         employer did not have actual knowledge of an injury.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              That the issue of whether defendants are entitled to a 
 
         credit for the medical and hospitalization benefits paid and 
 
         whether claimant is entitled to an offset for the health 
 
         insurance premiums she paid is moot in view of the foregoing 
 
         findings of fact and conclusions of law.
 
         
 
                                      ORDER
 
         
 
              THEREFORE, IT IS ORDERED:
 
         
 
              That no amounts are due to claimant from defendants for 
 
         either alleged injury.
 
         
 
         
 
         
 
         ZUBER VS. STONE CONTAINER CORP.
 
         Page 13
 
         
 
         
 
              That the costs of this action, including the cost of the 
 
         transcript, are charged to claimant pursuant to Division of 
 
         Industrial Services Rule 343-4.33 and Iowa Code section 86.19(l).
 
         
 
              That defendants file claim activity reports as requested by 
 
         this agency pursuant to Division of Industrial Services Rule 
 
         343-3.1.
 
         
 
         
 
         Signed and filed this 22nd day of August, 1989.
 
         
 
         
 
         
 
         
 
         
 
         
 
                                         WALTER R. McMANUS, JR.
 
                                         DEPUTY INDUSTRIAL COMMISSIONER
 
         
 
         Copies to:
 
         
 
         Mr. Robert Brennan
 
         Attorney at Law
 
         600 United Central Bank Bldg
 
         Des Moines, Iowa 50309
 
         
 
         Mr. William Scherle 
 
         Attorney at Law 
 
         803 Fleming Bldg
 
         Des Moines, Iowa 50309
 
         
 
         Mr. Harry Dahl
 
         Attorney at Law
 
         974 - 73rd St. STE 16
 
         Des Moines, Iowa 50312
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
         
 
         
 
 
         
 
 
 
 
 
 
 
 
 
 
 
                                         51106; 51108.50; 51800; 52500;
 
                                         52501; 52802
 
                                         Filed August 22, 1989
 
                                         WALTER R. McMANUS, JR.
 
         
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         MERRI ZUBER,
 
         
 
              Claimant,                        File Nos.  821632
 
                                                         821633
 
         VS.
 
                                             A R B I T R A T I 0 N 
 
         STONE CONTAINER CORPORATION,
 
                                             D E C I S I 0 N
 
              Employer,
 
              Self-Insured,
 
         
 
         and
 
         
 
         AMERICAN MOTORIST INSURANCE CO.,:
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
         51106; 51108.50; 51800;  52500
 
         
 
              Claimant did not prove injury on either one of two dates.  
 
         Claimant did not prove her times off work were caused by a work 
 
         injury.  Claimant did not prove entitlement to disability or 
 
         medical benefits.
 
         
 
         52501; 52802
 
         
 
              Defendants proved that claimant failed to give timely notice 
 
         and that they did not have actual notice.