BEFORE THE IOWA INDUSTRIAL COMMISSIONER JIM ROLLING, File No. 821808 Claimant, vs. A R B I T R A T I O N IOWA POWER & LIGHT COMPANY, Employer, D E C I S I O N Self-Insured, Defendant. STATEMENT OF THE CASE This is a proceeding in arbitration brought by Jim Rolling, claimant, against self-insured employer Iowa Power & Light to recover benefits as a result of a personal injury sustained on April 21, 1986 which arose out of and in the course of his employment. This matter came on for hearing before the undersigned deputy industrial commissioner September 14, 1988. The record was considered fully submitted at the close of the hearing. The record in this matter consists of the testimony of claimant; and joint exhibits 1 through 6, inclusive, with the exception of exhibit 2A which was excluded for reasons evident in the record. ISSUES Pursuant to the prehearing report and order submitted and approved September 14, 1988, the following issues are presented for resolution: 1. The extent of claimant's entitlement to permanent partial disability benefits; and, 2. Claimant's appropriate rate of compensation. FACTS PRESENTED Claimant sustained an injury on April 21, 1986 which arose out of and in the course of his employment when, while climbing down from the cab of a stacker/reclaimer, he tripped over a shovel and landed on his right knee and "kind of on" his right hip. Claimant explained he knew he had cut his knee but did not believe he had injured himself to any extent until the following day when he was stiff and sore. Claimant stated he went to see his family doctor and could not find any reflex on the left side and prescribed medicine and rest. Claimant testified he was told he could return to work if he felt like it and claimant did return on April 23, 1986 only to experience an increase in his symptoms. Claimant therefore left work and reported the following day to the company doctor (Edwards) who also prescribed medication and rest. However, claimant stated he could hardly get out of bed that evening and was told to report to the emergency room where Behrouz Rassekh, M.D., neurological surgeon, was called in for consultation. Claimant underwent a lumbar myelogram on April 25, 1986 which demonstrated a "large herniated disc at L5, L6 on the left." The following day claimant underwent a hemilaminectomy of L5, L6 and removal of an extruded disc. Claimant stated he "healed" from the operation and ROLLING V. IOWA POWER & LIGHT COMPANY PAGE 2 returned to work on July 9, 1986 first on restricted duty and then for full duty on July, 1986. Claimant testified he began working for defendant November 5, 1985 as a coal handler. Claimant's starting wage was $7.029 per hour and he was on probation for the first six months of work which was a period he described as an apprenticeship. Defendant's policy is such that an employee receives training in all facets of the job for the first six months of employment during which time both the company and the employee evaluate each other. During the following six months, provided the employee passes the probationary period, a coal handler earns one-half the difference between a starting coal handler on probation and a full coal handier which, in claimant's case, would have amounted to $10.349 per hour. After the first full year of employment, an employee is entitled to the full salary of a coal handler which amounted to $13.668 per hour in November 1986. Although claimant was injured during his first six months of employment, he returned to work at the three-quarter wage in July 1986 and received the full wage in November 1986 after one year of service. Claimant is still employed with defendant but now does the job of a working foreman coal handler which allows him to direct the other coal handlers in following the schedule and concomitantly allows him to arrange the schedule "to fit within" his disability. Claimant currently earns $15.29 per hour. Claimant stated he is able to perform all facets of his job although he "watches very carefully" to avoid reinjury and acknowledges he can do any shoveling necessary as long as he paces himself. Claimant stated that if he sits for more than a "couple hours" he becomes uncomfortable but admitted his job allows him to regularly move around. Claimant described some leg cramping in the form of a "charley horse" which he experiences at night on occasion but which is relieved with walking. Claimant has worked most of the overtime hours offered him since his return to work in July 1986 and has not lost any more time at work due to any complications from his injury. Claimant stated he was very satisfied with his job, that he has no intentions of leaving it, that he is aware of no dissatisfaction defendant may have with his employment and that defendant would have to have a "pretty good" reason to discharge him from the job. The medical records of Behrouz Rassekh, M.D., reflect claimant was seen by him in consultation on April 25, 1986 and that it was Dr. Rassekh who performed the hemilaminectomy of L5, L6 and removal of the extruded disc. Dr. Rassekh noted claimant did quite well postoperatively and was discharged from the hospital on May 1, 1986 to be followed by Dr. Edwards. On June 9, 1986, Dr. Rassekh noted claimant was gradually improving and anticipated claimant may be released to return to work at the end of the month. Claimant was released to return to work on July 9, 1986 with the restriction of no scooping and, after follow-up of claimant on July 31, 1986, claimant was released to return to his normal occupation with no restrictions. On October 8, 1986, Dr. Rassekh opined "I do believe this patient would have a partial permanent disability rating of 10% as a whole body." (Joint Exhibit 6) APPLICABLE LAW An employee is entitled to compensation for any and all personal injuries which arise out of and in the course of the employment. Section 85.3(l). Iowa Code subsection 85.34(2)(u) provides: In all cases of permanent partial disability other than those hereinabove described or referred to in ROLLING V. IOWA POWER & LIGHT COMPANY PAGE 3 paragraphs "a" through "t" hereof, the compensation shall be paid during the number of weeks in relation to five hundred weeks as the disability bears to the body of the injured employee as a whole. If it is determined that an injury has produced a disability less than that specifically described in said schedule, compensation shall be paid during the lesser number of weeks of disability determined, as will not exceed a total amount equal to the same percentage proportion of said scheduled maximum compensation. As a claimant has an impairment to the body as a whole, an industrial disability has been sustained. Industrial disability was defined in Diederich v. Tri-City Railway Co., 219 Iowa 587, 593, 258 N.W. 899, 902 (1935) as follows: "It is therefore plain that the legislature intended the term 'disability' to mean 'industrial disability' or loss of earning capacity and not a mere 'functional disability' to be computed in the terms of percentages of the total physical and mental ability of a normal man." Iowa Code section 85.36 provides in part: The basis of compensation shall be the weekly earnings of the injured employee at the time of the injury .... 6. In the case of an employee who is paid on a daily, or hourly basis, or by the output of the employee, the weekly earnings shall be computed by dividing by thirteen the earnings, not including overtime or premium pay, of said employee earned in the employ of the employer in the last completed period of thirteen consecutive calendar weeks immediately preceding the injury. .... 10. If an employee earns either no wages or less than the usual weekly earnings of the regular full-time adult laborer in the line of industry in which the employee is injured in that locality, the weekly earnings shall be one-fiftieth of the total earnings which the employee has earned from all employment during the twelve calendar months immediately preceding the injury. .... b. If the employee was an apprentice or trainee when injured, and it is established under normal conditions the employee's earnings should be expected to increase during the period of disability, that fact may be considered in computing the employee's weekly earnings. ANALYSIS There is no dispute that claimant sustained an injury which arose out of and in the course of his employment or that the injury is the cause of a temporary and permanent disability. Dr. ROLLING V. IOWA POWER & LIGHT COMPANY PAGE 4 Rassekh is the only physician in the case to have rendered an opinion that claimant has sustained a permanent partial "disability." While it is within the domain of the expert witness to determine "impairment" rather than disability, the fact that Dr. Rassekh did not indicate impairment will not be given great weight in light of the parties' stipulation. Functional disability is an element to be considered in determining industrial disability which is the reduction of earning capacity, but consideration must also be given to the injured employee's age, education, qualifications, experience and inability to engage in employment for which he is fitted. Olson v. Goodyear Service Stores, 255 Iowa 1112, 125 N.W.2d 251 (1963). Barton v. Nevada Poultry, 253 Iowa 285, 110 N.W.2d 660 (1961). A finding of impairment to the body as a whole found by a medical evaluator does not equate to industrial disability. This is so as impairment and disability are not synonymous. Degree of industrial disability can in fact be much different than the degree of impairment because in the first instance reference.is to loss of earning capacity and in the later to anatomical or functional abnormality or loss. Although loss of function is to be considered and disability can rarely be found without it, it is not so that a degree of industrial disability is proportionally related to a degree of impairment of bodily function. Factors to be considered in determining industrial disability include the employee's medical condition prior to the injury, immediately after the injury, and presently; the situs of the injury, its severity and the length of healing period; the work experience of the employee prior to the injury, after the injury and potential for rehabilitation; the employee's qualifications intellectually, emotionally and physically; earnings prior and subsequent to the injury; age; education; motivation; functional impairment as a result of the injury; and inability because of the injury to engage in employment for which the employee is fitted. Loss of earnings caused by a job transfer for reasons related to the injury is also relevant. These are matters which the finder of fact considers collectively in arriving at the determination of the degree of industrial disability. There are no weighting guidelines that indicate how each of the factors are to be considered. There are no guidelines which give, for example, age a weighted value of ten percent of the total value, education a value of fifteen percent of total, motivation - five percent; work experience - thirty percent, etc. Neither does a rating of functional impairment directly correlate to a degree of industrial disability to the body as a whole. In other words, there are no formulae which can be applied and then added up to determine the degree of industrial disability. It therefore becomes necessary for the deputy to draw upon prior experience, general and specialized knowledge to make the finding with regard to degree of industrial disability. See Peterson v. Truck Haven Cafe, Inc., (Appeal Decision, February 28, 1985); Christensen v. Hagen, Inc., (Appeal Decision, March 26, 1985). Claimant is currently 35 years old and has a high school education. He has previous work experience in farm labor, at a gate factory, at a seed corn company, and at a meat packing company, all jobs he acknowledged he is still able to do, at ROLLING V. IOWA POWER & LIGHT COMPANY PAGE 5 least to some, if not all, extent. Claimant is currently employed as a coal handler foreman at a rate of pay greater than that which he was earning at the time of his injury. Claimant has no work restrictions and no apparent difficulty with any aspect of his work. Defendant employer has worked with claimant to accommodate any problems he might have. As the industrial commissioner recently stated in Gallardo v. Firestone Tire Company (Appeal Decision filed October 21, 1987) an employer's repeated efforts to retain claimant as an employee after his injury and to accommodate any medical restrictions resulting therefrom reduces the amount of claimant's industrial disability. In addition, claimant, as foreman, candidly acknowledges he can adjust the work schedule to accommodate his "disability." Claimant attempts to stress the fact that his employment with defendant appears to be at will and that he is subject to discharge and has no job security. It is, however, claimant's present status that must be evaluated. See Umphress v. Armstrong Rubber Company (Appeal Decision filed August 27, 1987). (It appears ... that the deputy based his decision in part on what may occur to claimant in the future as opposed to his present condition. This is mere speculation.") At present, claimant is clearly satisfied with his employment and intends to remain in this employment throughout the rest of his working life. Claimant acknowledges that defendant has expressed no dissatisfaction with his job performance and has conveyed no intention to terminate the employment relationship. In essence, claimant has failed to present any credible evidence that his employment is currently in any jeopardy. However, the fact that claimant may not ever have to seek employment from other employers does not negate the effect of the injury on claimant's earning capacity. Harrison v. Bussing Automotive, Inc. (Appeal Decision filed August 27, 1987). Although claimant has not demonstrated any actual loss of earnings as a result of his injury, it is not an individual's earnings which are necessarily of major importance in the evaluation of industrial disability. Rather, the loss or reduction of an individual's earning capacity must be reviewed. industrial disability can be the same as, less than or greater than functional impairment. Birmingham v. Firestone Tire & Rubber Company, II Iowa Industrial Commissioner Report 39 (Appeal Decision 1981). Considering then all the elements of industrial disability, it is found that claimant has sustained a permanent partial disability of 10 percent for industrial purposes entitling him to 50 weeks of permanent partial disability benefits. The final issue to be address is that of rate. Claimant asserts his rate for temporary total disability benefits should be $274.51 per week and that his rate for permanent partial disability benefits should be $347.63 per week. Defendant argues that claimant is entitled to a rate of $195.42 per week although claimant has been paid at a rate of $186.96 per week. As indicated above, the basis for computation in the case of an employee who is paid on an hourly basis is found at Iowa Code section 85.36(6). In the 13 weeks immediately preceding his injury, claimant worked a total of 548 hours or an average of 42.15 per week. At the straight time rate of $7.029 per hour, claimant would have an average gross weekly wage of $296.27 producing a weekly workers' compensation rate of $195.42 for a married individual with four exemptions. Claimant argues, however, that he was an "apprentice" or "trainee" when insured ROLLING V. IOWA POWER & LIGHT COMPANY PAGE 6 and that his earning were expected to increase during the period of his disability. He requests, therefore, that pursuant to Iowa Code section 85.36(10)(b) the deputy consider that fact in computing the weekly earnings. The undersigned cannot find that Iowa Code section 85.36(10)(b) to be applicable. Since claimant was paid on an hourly basis, his rate can be computed pursuant to Iowa Code section 85.36(6) and it is not necessary to look any further in the statute. For section 85.36(10)(b) to be applicable 85.36(10) must be applicable and the undersigned concludes that it is not. However, even if it were, claimant still would not be entitled to the benefit of Iowa Code section 85.36(10)(b). There is no question that claimant, who was employed on November 5, 1985 was to earn one wage for six months, another wage for the next months until at one year he would be compensated as a full coal handler. Joint exhibit 1 reflects a starting wage of $7.029 per hour, a six month wage of $10.349 per hour and a one year wage of $13.668 per hour. Claimant was earning $7.029 per hour at the time he was injured and when he returned to work he was paid the six month wage. In November 1986, after being employed for one year although not working for one year because of the almost 11 weeks he was gone as a result of his injury, claimant received $13.668 per hour. Consequently, since claimant was off work from April 24 through July 8, 1986 his wage was clearly expected to increase during this period of time. Notwithstanding the above, the statute does not compel the deputy to include the fact of increased wages during disability in the calculation of rate as the statute specifically states that that fact "may" be considered. However, even before this issue was reached, the question of whether or not claimant was an apprentice or trainee must first be answered. The workers' compensation laws in Iowa do not define the terms apprentice or trainee and therefore no direction is given therein. However, the Iowa Supreme Court addressed the issue of apprenticeship in Henderson v. Jennie Edmondson Hospital, 178 N.W.2d 429 (1970) and stated at 433: Black's Law Dictionary, Revised Fourth Edition, defines apprentice as: "A person, usually a minor, bound in due form of law to a master, to learn from him his art, trade, or business, and to serve him during the time of his apprenticeship." For like definitions see 3A Words and Phrases p. 441 and 6 C.J.S. apprentices SS 1. Webster's Third New International Dictionary defines apprentice as: "la: one who is bound by indentures or by legal agreement to serve another person for a certain time with a view to learning an art or trade in consideration of instruction therein and formerly usu. of maintenance by the master b: one who is learning by practical experience under skilled workers a trade, art or calling usu. for a prescribed period time and at a prescribed rate of pay [bricklayer] [actor's] [teacher]" The first definition reflects the medieval concept. The second expresses the modern meaning of the word. In Gianotti, People on Information of v. Bloom, 7 Misc.2d 1077, 167 N.Y.S.2d 179, 182 (1957), after ROLLING V. IOWA POWER & LIGHT COMPANY PAGE 7 quoting the older definition of apprentice, the court says: "In ancient times, an apprentice received no remuneration or very little outside of his board and lodging. He usually lived with the master and was part of his household. "In modern times, the apprentice works for the master for wages, usually less than that received by the journeyman who has finished his training as an apprentice. The apprentice is no less dependent upon his wages than is the journeyman." Using this direction, the undersigned concludes claimant was not an apprentice as contemplated by the statute. Claimant's first six months of employment was no different from any other worker's first period of employment. Rare is the case that a person comes on a job without some period of learning. Rare is the case that a worker does not receive some sort of salary increase after the period of probation. Claimant's first six months was a probationary period where employer and employee could evaluate each other. Merely because it was during this period time that claimant learned his job does not make him a trainee or apprentice. Further, if in fact claimant was an apprentice, when he returned to work in July 1986 why did he not have to complete all of the training that was afforded other employees during the first six months. The undersigned believes that if claimant were a true apprentice or trainee as contemplated by the statute that claimant would have had to ROLLING V. IOWA POWER & LIGHT COMPANY PAGE 8 complete all facets of the program before he could have received his salary increase. Yet, when claimant returned to work on July 9, notwithstanding he had left before the expiration of his six month period, the employer treated him as though he had never been gone. Claimant was not working toward any licensure nor toward acquiring a skill marketable to the general public as would an electrician, a plumber or a carpenter. Claimant characterizes his first six months as an apprenticeship period. Defendant characterizes the same period as a probationary period. Defendant will prevail on this point. Therefore, claimant is not entitled to utilize Iowa Code section 85.36(10)(b) and his rate is appropriately calculated under section 85.36(6) to be $195.42 per week. FINDINGS OF FACT Wherefore, based on all of the evidence presented, the following findings of fact are made: 1. Claimant sustained an injury which arose out of and in the course of his employment on April 21, 1986. 2. As a result of his injury claimant underwent a hemilaminectomy of L5, L6 and removal of an extruded disc on April 26, 1986. 3. Claimant did well postoperatively and was released to return to work with restrictions on July 9, 1986. 4. Claimant returned to work on that date and defendant accommodated his working restrictions. 5. Claimant was released to return to work without restrictions July 31, 1986. 6. Claimant has been working since July 31, 1986 without restrictions and has been able to perform all facets of his job. 7. Claimant is currently employed as a working coal handler foreman which allows him to direct the other coal handlers in following the schedule and also allows him to arrange the schedule giving consideration to his back. 8. Claimant is satisfied with his job, has no intention of leaving it and defendant has expressed no dissatisfaction with claimant's job performance. 9. As of the time of the hearing claimant had secure employment. 10. At the time of his injury, claimant was earning $7.029 per hour and working an average of 42.15 hours per week for a gross weekly wage of $296.27. 11. At the time of his injury, claimant was married with four exemptions. 12. Claimant was not a trainee or apprentice. 13. Claimant's appropriate weekly workers' compensation rate is $195.12. 14. Claimant is currently earning $15.29 per hour. ROLLING V. IOWA POWER & LIGHT COMPANY PAGE 9 15. Claimant is 35 years old with a high school education who has earned his living as a laborer. 16. Claimant has no permanent work restrictions and although he is careful he is also capable of performing his current and past occupations. 17. Claimant's injury has resulted in a permanent impairment and has hampered his capacity to earn. 18. Claimant has sustained a permanent partial disability of 10 percent for industrial purposes. CONCLUSIONS OF LAW Wherefore, based on the principles of law previously stated, the following conclusions of law are made: 1. Claimant has established that as a result of the injury of April 21, 1986 which arose out of and in the course of his employment he has a 10 percent permanent disability for industrial purposes. 2. The appropriate weekly workers' compensation rate is $195.42. ORDER THEREFORE, IT IS ORDERED: Defendant shall pay unto claimant ten point eight five seven (10.857) weeks of healing period benefits at the appropriate rate of one hundred ninety-five and 42/100 dollars ($195.42) for the period from April 24, 1986 to July 8, 1986, inclusive. Defendant shall pay unto claimant fifty (50) weeks of permanent partial disability benefits at the appropriate rate of one hundred ninety-five and 42/100 dollars ($195.42) per week commencing July 9, 1986. Defendant shall receive full credit for all disability benefits previously paid. Payments that have accrued shall be paid in a lump sum together with statutory interest thereon pursuant to Iowa Code section 85.30. Defendant shall file a claim activity report upon payment of this award. Costs of this action are assessed against defendant pursuant to Division of Industrial Services Rule 343-4.33. Signed and filed this 28th day of September, 1988. DEBORAH A. DUBIK DEPUTY INDUSTRIAL COMMISSIONER ROLLING V. IOWA POWER & LIGHT COMPANY PAGE 10 Copies to: Mr. Jon H. Johnson Attorney at law P O. Box 659 Sidney, IA 51652 Mr. Ceca L. Goettsch Attorney at Law 1100 Des Moines Bldg Des Moines, IA 50309 1803; 3000 Filed September 28, 1988 Deborah A. Dubik BEFORE THE IOWA INDUSTRIAL COMMISSIONER JIM ROLLING, Claimant, File No. 821808 vs. A R B I T R A T I O N IOWA POWER & LIGHT COMPANY, Employer, D E C I S I O N Self-Insured, Defendant. 1803 Claimant, who sustained an injury to his back, underwent a hemilaminectomy. Claimant eventually returned to work without any restrictions and has been able to perform all facets of his job. Claimant sustained no loss of actual earnings as a result of his injury but did sustain a loss of earning capacity. Claimant found to have a 10% permanent partial disability for industrial purposes. 3000 Claimant, who was injured during his first six months of employment was not found to be an apprentice or trainee as contemplated by Iowa Code section 85.36(10)(b). Therefore, the fact that claimant may have had an increase in earnings during his period of disability was not considered in calculating claimant's appropriate rate. BEFORE THE IOWA INDUSTRIAL COMMISSIONER PAUL ELLINWOOD, Claimant File No. 822326 vs. A P P E A L MID SEVEN TRANSPORTATION, D E C I S I O N Employer, F I L E D and DEC 29 1989 LIBERTY MUTUAL INSURANCE CO., IOWA INDUSTRIAL COMMISSIONER Insurance Carrier, Defendants. STATEMENT OF THE CASE Claimant appeals and defendants cross-appeal from an arbitration decision determining claimant was an employee and claimant's rate of compensation. The record on appeal consists of a stipulated record consisting of joint exhibits 1 through 10 and stipulations as part of the prehearing report. Both parties filed briefs on appeal. ISSUES The issues on appeal are whether claimant was an employee of Mid Seven Transportation on April 30, 1986 and the rate of compensation for benefits. REVIEW OF THE EVIDENCE The arbitration decision filed June 27, 1989 adequately and accurately reflects the pertinent evidence and it will not be reiterated herein. APPLICABLE LAW The citations of law in the arbitration decision are appropriate to the issues and evidence. ANALYSIS The first issue to be resolved is whether claimant was an employee for purposes of workers' compensation. David Haning, operation's manager for the Mid Seven Transportation testified to the following. Owner-operators were given $100 a month over and above the percentage payment of the revenue as long as they stayed employed. The company purchased general liability insurance on "the rigs" for the company. The company purchased workers' compensation coverage for claimant. Claimant operated his own "rig". Claimant filed an application for employment with Mid Seven Transportation and applied for a position of owner-operator. Mid Seven Transportation Company (which was designated the carrier) and claimant entered into a "lease agreement." Under the terms of the "lease agreement" the carrier had the exclusive possession, control and use of the leased equipment. The lease agreement appears to form document which is used in the trucking industry. In Iowa, owner-operators who enter into the standard "lease agreement" have generally been considered to be employees. There is no indication that claimant's situation is materially different from the situation of the owner-operators who have been considered employees. It should be noted that claimant's accident occurred on April 30, 1986 and the applicable law is Iowa Code section 85.61 (1985). The law which amended the definition of "employee" to exclude certain owner-operators [1986 Iowa Acts, chapter 1074, now Iowa Code subsection 85.61(3)(c)] did not become effective until July 1, 1986. When all relevant factors are considered, it is found that claimant was an employee of Mid Seven Transportation. The second issue to be resolved is the rate of compensation. The parties disagree whether expenses of operating claimant's truck are to be deducted from claimant's gross revenues received by the owner-operator as his share for hauling commodities. In this regard the case of Tuttle v. The Mickow Corp. (Remand Decision December 20, 1988) correctly discusses the method of determining the rate of compensation for owner-operators. That method includes deducting the expenses of operating claimant's truck. The expenses of operating the truck are deducted in determining the rate of compensation. The parties have stipulated that the rate of compensation is $272.31 if these expenses are deducted. FINDINGS OF FACT 1. Mid Seven Transportation exercised substantial control over the timing and manner in which claimant provided services to it. 2. Claimant, by the provisions of the lease agreement, was required to perform services exclusively for Mid Seven Transportation, to the exclusion of performing work for other carriers. 3. The expenses of operating claimant's truck are deducted from claimant's gross compensation to determine claimant's rate of compensation. CONCLUSIONS OF LAW Claimant has proved that he was an employee of Mid Seven Transportation for purposes of workers' compensation on April 30, 1986. Claimant has proved that his rate of compensation for weekly workers' compensation benefits is $272.31. WHEREFORE, the decision of the deputy is affirmed. ORDER THEREFORE, it is ordered: That defendants pay claimant weekly compensation at the rate of two hundred seventy-two and 31/100 dollars ($272.31) per week for the stipulated healing period and permanent partial disability entitlements. That the costs of the appeal including transcription of the arbitration hearing are to be shared equally by claimant and defendants. That all other costs of this action are assessed against defendants pursuant to Division of Industrial Services Rule 343-4.33. 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 29th day of December, 1989. DAVID E. LINQUIST INDUSTRIAL COMMISSIONER Copies to: Mr. James R. Lawyer Attorney at Law West Towers Office Complex 1200 35th Street, Suite 500 West Des Moines, IA 50265 Mr. W. C. Hoffmann Attorney at Law 500 Liberty Building Des Moines, IA 50309 52001; 52002; 53003 Filed December 29, 1989 DAVID E. LINQUIST BEFORE THE IOWA INDUSTRIAL COMMISSIONER PAUL ELLINWOOD, Claimant, vs. File No. 822326 MID SEVEN TRANSPORTATION, A P P E A L Employer, D E C I S I 0 N and LIBERTY MUTUAL INSURANCE CO., Insurance Carrier, Defendants. 52001 - 52002 It was held that an owner-operator trucker was an employee despite a lease agreement that characterized him as an independent contractor. 53003 The owner-operator's expenses of operating his truck are deducted from his gross revenue in determining the rate of compensation. BEFORE THE IOWA INDUSTRIAL COMMISSIONER PAUL ELLINWOOD, Claimant, File No. 822326 vs. A R B I T R A T I O N MID SEVEN TRANSPORTATION, D E C I S I O N Employer, F I L E D and JUN 27 1989 LIBERTY MUTUAL INSURANCE CO., INDUSTRIAL SERVICES Insurance Carrier, Defendants. INTRODUCTION This is a proceeding in arbitration brought by Paul Ellinwood against Mid Seven Transportation, the alleged employer, and Liberty Mutual Insurance Company, its insurance carrier. The case was submitted on November 8, 1988 upon a stipulated record consisting of exhibits and stipulations made as part of the prehearing report. ISSUES The first issue presented by the parties for determination is whether an employer-employee relationship existed between Paul Ellinwood and Mid Seven Transportation at the time claimant was injured on April 30, 1986 while performing services for Mid Seven Transportation. The.second issue is determination of claimant's rate of compensation. The parties stipulated and agreed that, if claimant is not an employee, and is in fact an independent contractor, as asserted by the employer, claimant is nevertheless entitled to benefits under the insurance contract which was issued at the rate of $272.31 per week. The parties further stipulated that, in the event that claimant is determined to be an employee, his rate of compensation is $272.31 per week if claimant's expenses of operating his truck are deducted and considered in determining the rate of compensation. If claimant's expenses are not to be considered, it was stipulated that the rate is $598.00 per week for temporary total disability or healing period and $550.00 per week for permanent partial disability compensation. SUMMARY OF EVIDENCE The following is a summary of evidence presented in this case. Of all the evidence received at the hearing, only that considered most pertinent to this decision is discussed. 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. Many of the pertinent facts are contained in the written stipulation entered into and filed by the parties as part of the prehearing report. Those facts are incorporated herein by this reference. Claimant was designated as an independent contractor in a written lease agreement between himself and Mid Seven (exhibit 1). The written agreement made claimant responsible for providing a truck and driver for Mid Seven and provided that the claimant was the employer of any subordinates which claimant employed to assist him. The agreement further provided that the employees and equipment which claimant provided to Mid Seven must meet applicable federal regulations and safety standards imposed by Mid Seven. The contract provided a method of computing compensation to be paid by Mid Seven to Ellinwood based upon whether Ellinwood furnished only a tractor, a tractor with trailer, or with other variables. In general, it was based upon the revenues generated by the freight Ellinwood hauled. The agreement provided that Mid Seven would advance payment of items such as licenses, collision insurance and health insurance, should Ellinwood so desire. In exhibit 2, David Haning, the operations manager for Mid Seven, testified that company drivers who drive a vehicle owned by Mid Seven are paid 23 or 24 percent of the revenue generated by the load that they haul (exhibit 2, page 5). Eugene L. Wulf, a claims manager with Liberty Mutual Insurance Company, testified by way of deposition, that Paul Ellinwood was covered as an owner-operator under a workers' compensation insurance policy issued to Mid Seven Transportation. Wulf testified that, under the contract and under the policy followed by Liberty Mutual Insurance Company, one-third of the gross receipts payable to an owner-operator was considered to be salary (exhibit 3, pages 13-15). Paul Ellinwood consistently filed his income tax returns using schedule C which indicates that he operated a sole proprietorship trucking business (exhibits 7, 8 and 9). APPLICABLE LAW AND ANALYSIS It is determined that claimant's rate of compensation is $272.31 per week. On December 20, 1988, the industrial commissioner in the case Cora M. Tuttle v. The Mickow Corp., file number 672377 (App. Decn. December 20, 1988), determined that the rate of compensation for an owner-operator trucker was to be based upon one-third of the revenue which the truck produced. The case McCarty v. Freymiller Trucking, Inc., file numbers 729340 and 729341 (App. Decn. February 25, 1986) and also the case Sperry v. D & C Express, Inc., file number 785108 (App. Decn. December 10, 1987) are effectively overruled by Tuttle. It is clear that the expenses of operating a truck are to be deducted from gross revenues received by the owner-operator when the rate of compensation is to be determined. While there may be bona fide dispute or argument as to precisely which expenses should be deducted (i.e., depreciation, interest, etc.), that issue is not present in this case in view of the stipulation entered into by the parties. The remaining issue of employer-employee status may be moot, but will nevertheless be addressed since it may control issues concerning future medical care, review-reopening or other issues which require a determination of the employer-employee relationship. Independent contractors are specifically excluded from worker's compensation coverage, but no contract or other device may relieve an employer from the liability created by Chapter 85 of The Code. Code section 85.18. The issue involves consideration of several factors. Caterpillar Tractor Co. v. Shook, 313 N.W.2d 503, 505 (Iowa 1982); McClure v. Union, et al. Counties, 188 N.W.2d 283 (Iowa 1971); Nelson v. City Service Oil Co., 259 Iowa 1209, 146 N.W.2d 261 (1966); Mallinger v. Webster City Oil Co., 211 Iowa 847, 234 N.W. 254 (1925). The intent of the parties is an important factor. Henderson v. Jennie Edmondson Hospital, 178 N.W.2d 429 (Iowa 1970). The duty to provide services exclusively for one party is an important factor. Crane v. Meier, 332 N.W.2d 344 (Iowa App. 1982). Ellinwood was not free to haul for others (exhibit 1, page 3). In Iowa, owner-operators have generally been considered to be employees. Daggett v. Nebraska-Eastern Express, Inc., 252 Iowa 341, 344, 107 N.W.2d 102, 105 (1961); Yergey v. Montgomery Ward & Co., 30 N.W.2d 153 (Iowa 1947); Towers v. Watson Brothers Co., 229 Iowa 387, 294 N.W. 594 (1940). When all the appropriate factors are weighed, it is determined that Paul Ellinwood was an employee of Mid Seven Transportation, despite the contractual arrangement which termed him as an independent contractor. FINDINGS OF FACT 1. Mid Seven Transportation exercised substantial control over the timing and manner in which Paul Ellinwood provided services to it. 2. Paul Ellinwood, by the provisions of the lease agreement, was required to perform services exclusively for Mid Seven Transportation, to the exclusion of performing work for other carriers. CONCLUSIONS OF LAW 1. This agency has jurisdiction of the subject matter of this proceeding and its parties. 2. Paul Ellinwood was an employee of Mid Seven Transportation for purposes.of workers' compensation. 3. The expenses incurred by an owner-operator are considered when determining the rate of compensation to be paid to an owner-operator trucker. ORDER IT IS THEREFORE ORDERED that defendants pay claimant weekly compensation at the rate of two hundred seventy-two and 31/100 dollars ($272.31) per week for the stipulated healing period and permanent partial disability entitlements. IT IS FURTHER ORDERED that the costs of this action are assessed against defendants pursuant to Division of Industrial Services Rule 343-4.33. IT IS FURTHER ORDERED 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 27th day of June, 1989. MICHAEL G. TRIER DEPUTY INDUSTRIAL COMMISSIONER Copies To: Mr. James R. Lawyer Attorney at Law West Towers Office Complex 1200 35th Street, Suite 500 W. Des Moines, Iowa 50265 Mr. W. C. Hoffmann Attorney at Law 500 Liberty Building Des Moines, Iowa 50309 51504, 52001, 52002, 53003 Filed June 27, 1989 MICHAEL G. TRIER BEFORE THE IOWA INDUSTRIAL COMMISSIONER PAUL ELLINWOOD, Claimant, vs. File No. 822326 MID SEVEN TRANSPORTATION, A R B I T R A T I O N Employer, D E C I S I O N and LIBERTY MUTUAL INSURANCE CO., Insurance Carrier, Defendants. 51504, 52001, 52002 Owner-operator trucker determined to be employee despite lease agreement which provided that he was an independent contractor. 53003 The owner-operator's expenses of operating the truck are to be considered when determining the rate of compensation. BEFORE THE IOWA INDUSTRIAL COMMISSIONER ____________________________________________________________ : VICKIE L. PARKER, : : Claimant, : : vs. : : File No. 822386 LENNOX INDUSTRIES, : : A R B I T R A T I O N Employer, : : D E C I S I O N and : : (EXPEDITED PROCEEDING) EMPLOYERS MUTUAL, : : Insurance Carrier, : Defendants. : ___________________________________________________________ STATEMENT OF THE CASE Vickie Parker seeks to establish the employer's liability for unpaid medical expenses which total $1,853.27 and for expenses in the amount of $2723 which have been paid by the employer's group plan carrier. It was stipulated that in the event that the employer is liable that section 85.38(2) of the Code gives the employer credit for the charges paid by its group carrier. FINDING OF FACTS Vickie Parker developed an injury in the nature of bilateral carpal tunnel syndrome in 1986. She underwent surgery which was performed by the employer-selected physician, Carl O. Lester, M.D. She had continued problems and a second surgery was performed on the right hand in 1987. Thereafter Vickie continued to have problems and had additional tests and consultations. A note from Dr. Lester's records dated November 23, 1988, indicates that Dr. Lester quite strongly recommended that Vickie not return to assembly line work. Dr. Lester's records show that Vickie continued to see him in March, April, May, and July of 1989. In late 1988 or early 1989 Vickie consulted Arnis Grundberg, M.D., a Des Moines, Iowa, orthopedic surgeon with a subspecialty in surgery of the hands and arms about her continued complaints. His records and reports are not in evidence but it appears as though he recommended some sort of surgical procedure. Vickie apparently discussed that recommendation with Dr. Lester as is noted by the May 1, 1989 office note. Vickie's complaints did not resolve with care from Dr. Lester. An office note of July 5, 1989, indicates that tests showed mild carpal tunnel syndrome on her right hand and a positive Tinel's (nerve compression at the elbow Page 2 indicating cubital tunnel syndrome) on the right but that he felt surgery was not advisable. A subsequent note dated June 4, 1990, indicates that Dr. Lester was not inclined to provide further testing. A report bearing the date of June 5, 1990, indicates that he felt no surgery was warranted. In late 1990 or early 1991 Vickie returned to Dr. Grundberg. EMG tests were conducted which were interpreted as being within normal limits but which also gave findings which would indicate mild carpal tunnel syndrome and mild cubital tunnel syndrome on the right side. Dr. Grundberg requested authorization to perform surgery on Vickie's right elbow but the request was denied. Claimant was directed to return to Dr. Lester. Vickie also contacted the employer's safety director and plant manager regarding obtaining surgery but her request for care other than that recommended by Dr. Lester was denied. After the 1991 recommendation by Dr. Grundberg for surgery was denied, claimant consulted her family physician and was referred to Scott Neff, D.O., a Des Moines orthopedic surgeon. Dr. Neff also felt that claimant should have surgery on her right elbow and hand. He performed the surgery. The operative report dated July 18, 1991, shows that the median nerve at the palm of claimant's right hand was imbedded in scar tissue and decompression of that nerve was performed. The ulnar nerve was then decompressed at the location of the right elbow. In a report dated June 24, 1991, Dr. Neff attributes the problems to claimant's work. Vickie recovered from the surgical procedure and has now been able to resume regular duty. She no longer functions under the restrictions with which she functioned while under the care of Dr. Lester. It is found that her condition has been improved as a result of the treatment provided by and under the direction of Dr. Neff. Since this proceeding is brought under rule 343 IAC 4.44 and no contrary evidence has been presented, the inference therefore prevails and the treatment is found to have been reasonable and the charges are likewise found to be reasonable. CONCLUSIONS OF LAW The only real issue involved in this case is the authorization defense. The employer shall furnish reasonable surgical, medical, dental, osteopathic, chiropractic, podiatric, physical rehabilitation, nursing, ambulance and hospital services and supplies for all conditions compensable under the workers' compensation law. The employer shall also allow reasonable and necessary transportation expenses incurred for those services. The employer has the right to choose the provider of care, except where the employer has denied liability for the injury. Section 85.27. Holbert v. Townsend Engineering Co., Thirty-second Biennial Report of the Industrial Commissioner 78 (Review-reopen 1975). Page 3 Larson states in 2 Workmen's Compensation Law, 61.12(a) and 61.12(e): [I]t is generally held that the employee should ordinarily not incur medical expense without first giving the employer a reasonable opportunity to furnish such services, and if he does so, the employee will be liable for that expense himself... ...If the employer has sufficient knowledge of the injury to be aware that medical treatment is necessary, he has the affirmative and continuing duty to supply medical treatment that is prompt, in compliance with the statutory prescription on choice of doctors, and adequate; if the employer fails to do so, the claimant may make suitable independent arrangements at the employer's expense. It is usually held that, when the employee has furnished the employer with the facts of his injury, it is up to the employer to instruct the employee on what to do to obtain medical attention, and to inform him regarding the medical and surgical aid to be furnished... The employer need not actually have refused medical services; it is enough that the has neglected to provide them... [T]he furnishing of medical services by the employer must be prompt; if there is undue delay, the employer may become liable for services engaged by the employee in the meantime.... Moreover, if the employee has once justifiably engaged a doctor on his own initiative, a belated attempt by the employer to offer a doctor chosen by the employer will not cut off the right of the employee to continue with the employee's doctor.... Finally, the services offered by the employer must be adequate. In this connection, difficult questions can arise when there is a difference of opinion on diagnosis or appropriate treatment, as when the employer's doctor recommends conservative measures while the claimant thinks he should have surgery. One way to settle this kind of controversy is to let the result turn on whose diagnosis proved to be right. The agency has adopted the reasoning which lets the result of the treatment control the outcome of the controversy. Richards v. Department of General Services, Building and Grounds Division, Vol. 1 No. 3 State of Iowa Industrial Commissioner Decisions, 684 (App. Dec. 1985). Page 4 This is one of those cases where there has been a difference of opinion on diagnosis and treatment. Vickie clearly gave the employer and Dr. Lester ample opportunity to furnish additional surgery but they declined to do so. At that point Vickie was justified in engaging a physician on her own initiative as she did when she was referred by her family physician to Dr. Neff. She had no further duty to again renew her request for surgery to the employer or the employer's physician since her previous requests for what was apparently the same surgery had been denied. When Vickie sought care from Dr. Neff she did so at her own peril. In this case the surgery was successful. It has allowed Vickie to resume regular activity and has resolved her complaints. It is the diagnosis and care from Doctors Neff and Grundberg which has proven to be correct rather than that from Dr. Lester. In fact, Dr. Lester in a report dated October 9, 1991, seems to now concur with the treatment which was provided by Dr. Neff. His decision to concur, after the fact, is of no benefit to the employer's defense. It seriously detracts from the employer's defense in this case. It is therefore concluded that the lack of authorization defense fails. Claimant has proven that the treatment in which the expenses she seeks to recover were incurred is treatment provided for the results of a work-related injury. The treatment which was provided was reasonable and the charges made are found to be reasonable. Claimant is therefore entitled to recover. Claimant could have but did not bring an action for alternate medical care before this agency. That was clearly an option available to her but she also was entitled to proceed as she did in this case, bearing in mind that she acted at her own peril. If the care by Dr. Neff had not proven to be successful, the result of this case would be different. ORDERED IT IS THEREFORE ORDERED that the defendant employer and its insurance carrier pay the following medical expenses: Iowa Methodist Medical Center $ 60.00 Rehabilitation Medicine Assoc. $ 326.00 Mercy Hospital Medical Center $1,467.27 It is further ordered that while defendants are liable for the charges incurred with Dr. Neff in the amount of two thousand seven hundred twenty-three dollars ($2723) that the employer is entitled to credit pursuant to section 85.38(2) for the payment made by its group plan carrier and that the employer and its insurance carrier shall keep the claimant harmless from any and all claims or liabilities that may be made against her by reason of such payments having been made by the group plan carrier. It is further ordered that the costs of this action are Page 5 assessed against defendants pursuant to rule 343 IAC 4.33. Signed and filed this ____ day of July, 1993. ______________________________ MICHAEL G. TRIER DEPUTY INDUSTRIAL COMMISSIONER Copies to: Mr. Theodore R. Hoglan Attorney at Law 34 S 1st Ave PO Box 306 Marshalltown, Iowa 50158 Mr. D. Brian Scieszinski Attorney at Law 801 Grand Ave. STE 3700 Des Moines, Iowa 50309-2727 2501 2503 2701 2909 Filed July 26, 1993 Michael G. Trier BEFORE THE IOWA INDUSTRIAL COMMISSIONER ____________________________________________________________ VICKIE L. PARKER, Claimant, vs. File No. 822386 LENNOX INDUSTRIES, A R B I T R A T I O N Employer, D E C I S I O N and (EXPEDITED PROCEEDING) EMPLOYERS MUTUAL, Insurance Carrier, Defendants. ___________________________________________________________ 2501 2503 The employer's physician recommended continued conservative care and the employer and insurance carrier denied claimant's request for additional surgery based upon the recommendations of a specialist. Claimant then, through her family doctor, arranged referral to another specialist who felt that surgery was warranted and performed the surgery. As a result of the surgery, the claimant's activity restrictions were able to be removed and the claimant resumed full duty work. She had been on restricted duty with residual complaints for approximately three years preceding the surgery while under the care of the authorized physician. It was held that the authorization defense failed since the care the claimant requested ultimately proved to be correct. Citing Larson and agency precedent. 2701 2909 It was not necessary for claimant to bring an alternate care proceeding in order to recover the expense of treatment which she had arranged on her own that was contrary to that authorized by the employer. Page 1 before the iowa industrial commissioner ____________________________________________________________ : LILY ANN ADAMS, : : File No. 822391 Claimant, : : A R B I T R A T I O N vs. : : D E C I S I O N SECOND INJURY FUND, : : Defendant. : ___________________________________________________________ statement of the case This is a proceeding in arbitration upon the petition of claimant, Lily Ann Adams, filed on August 4, 1987, against the Second Injury Fund, defendant. The hearing was held in Mason City, Iowa on November 7, 1989. Claimant testified at her hearing. The following individuals also testified at the hearing: Audrey Adams, mother of claimant; Toni Baltierra, manager of Wendy's Hamburgers, Mason City; and, Wendie Coyier, an employee of Schneider Metal Manufacturing Company. The record also consists of claimant's exhibits 1-21 and the Second Injury Fund's exhibits A and B. issues The sole issues to be determined are: 1) whether claimant is entitled to benefits from the second injury fund; 2) and, if so, the amount of those benefits. findings of fact The deputy, having heard the testimony and considered all the evidence, finds: Claimant sustained an injury to her left lower leg on March 24, 1976, while she was playing hopscotch. A. J. Wolbrink, M.D., diagnosed and treated claimant for a fracture of the left distal tibia. Approximately four years later, claimant stepped into a hole with her left leg. W. Janda, M.D., performed a surgical manipulation of the left ankle. Dr. Janda found: The Xrays showed the symptomatic left ankle to be quite stable; the right ankle (asymptomatic) to be unstable at about 20 degrees of tilt. It was noted there was no swelling, discoloration about the left ankle and it was decided that no open surgical treatment was warranted at this time.... Claimant was in high school at the time of Dr. Janda's manipulation. She completed her education at the alternative school. During her tenure as a student, claimant worked in food service at the IOOF Home and at Page 2 Wendy's Hamburgers. After graduation, claimant attended and completed a vocational course in welding at North Iowa Area Community College. The course was a nine month course. Claimant was then hired as a hielarc welder by Schneider Metal Manufacturing Company on September 9, 1985. She was laid off on October 31, 1986, when there was a reduction in force and claimant refused a lower paid position. During her employment, claimant sustained an injury to her right upper extremity. Surgery was performed on May 2, 1986, by T. C. Mead. Dr. Mead performed a right carpal tunnel release. Subsequent to the surgery, Dr. Mead provided a final evaluation. He rated claimant as having a three percent functional impairment to the right upper extremity. One month subsequent to claimant's layoff, she obtained employment in the fast food industry. She remained employed in that field. As of the date of the hearing, claimant was earning $4.50 per hour. In anticipation of this litigation, claimant sought an examination and evaluation from John R. Walker, M.D. With respect to the left lower extremity, Dr. Walker opined: In regard to the left, lower extremity, the patient states that she does have some swelling and discomfort from time to time if she stands too long. This is the only complaint that she has. Examination today reveals that the leg lengths are almost exactly equal. She has no atrophy of either thigh, however, she has only 1/8 of an inch atrophy of the left calf and there is no swelling today. Ankle motion is normal in flexion, extension. Subtalar motion is also normal in this area too. Clinically she looks to have an excellent result, however, her x-rays do show a slight deformity with bowing of the tibia, slightly posteriorly on the lateral, just a few degrees. There is a well-healed, thickened area that is certainly not normal at the fracture line which is approximately four inches above the ankle joint. On the AP we note that she has a minimal varus or so called bowlegged deformity amounting to approximately 7 degrees and posteriorly the bowing amounts to 7 degrees as well. This patient certainly does have an excellent clinical result obviously. By x-ray it is not quite as good as one would expect in viewing the leg externally. It is my opinion that she does have a permanent impairment of 4% of the left, lower extremity which converts to 2% of the whole man. Adding the upper and lower extremities together we then come up with a permanent, partial impairment of 7% of the whole man or the body as a whole. Page 3 No treating physician provided an impairment rating for the left lower extremity. Claimant testified during the hearing that she had not had medical care for her left leg for approximately eight years. conclusions of law Claimant has the burden of proving by a preponderance of the evidence that she received injuries which arose out of and in the course of her employment. McDowell v. Town of Clarksville, 241 N.W.2d 904 (Iowa 1976); Musselman v. Central Telephone Co., 261 Iowa 352, 154 N.W.2d 128 (1967). An employee is entitled to compensation for any and all personal injuries which arise out of and in the course of the employment. Section 85.3(1). In the instant case, the focus is whether the second injury fund is liable for benefits. Iowa Code section 85.64 provides, in part: If an employee who has previously lost, or lost the use of, one hand, one arm, one foot, one leg, or one eye, becomes permanently disabled by a compensable injury which has resulted in the loss of or loss of use of another such member or organ, the employer shall be liable only for the degree of disability which would have resulted from the latter injury if there had been no pre-existing disability. In addition to such compensation, and after the expiration of the full period provided by law for the payments thereof by the employer, the employee shall be paid out of the "Second Injury Fund" created by this division the remainder of such compensation as would be payable for the degree of permanent disability involved after first deducting from such remainder the compensable value of the previously lost member or organ. Under Iowa Code section 85.63 through 85.69, three requirements must be met in order to establish fund liability: First, claimant must have previously lost or lost the use of a hand, an arm, a foot, a leg or an eye; second, through another compensable injury, claimant must sustain another loss or loss of use of another member; and third, permanent disability must exist as to both injuries. If the second injury is limited to a scheduled member, then the employer's liability is limited to the schedule and the fund is responsible for the excess industrial disability over the combined scheduled losses of the first and second injuries. Simbro v. DeLong's Sportswear, 332 N.W.2d 886 (Iowa 1983), and Fulton v. Jimmy Dean Meat Company, file number 755039, Nos. 87-1567/87-1518 (Affirmed by the Iowa Supreme Court on February 22, 1989.) The Iowa Supreme Court recently addressed the liability of the Second Injury Fund in the case of Neelans v. John Deere Component Works, 436 N.W.2d 355 (Iowa 1989). In the Neelans case, Justice Larson described the purpose to the Page 4 fund. He wrote at page 358. The language of the second injury act supports this conclusion by providing that "[t]he employer shall be liable only for the degree of disability which would have resulted from the latter injury if there had been no pre-existing disability." To hold otherwise would in effect penalize the employer who hired a person with a prior injury. The purpose of Second Injury Fund statutes was to provide a more favorable climate for the employment of persons injured through service in World War II. Jackwig, The Second Injury Fund of Iowa: How Complex Can a Simple Concept Become?, 28 Drake L. Rev. 889, 890-91 (1979). Similar considerations still weigh heavily in our interpretation of the second injury act. See e.q., Anderson v. Second Injury Fund, 262 N.W.2d 789, 791-92 (Iowa 1978) (purpose to encourage employers to hire handicapped workers). In the present case, there seems to be no argument about the extent of the second injury standing alone: it is a scheduled injury which does not extend to the body as a whole, even though the cumulative effect of this injury and the prior injuries was to cause such disability. In this case, if it had not been for the prior injuries sustained by Neelans, the employer would be liable only to the extent provided by the schedule for a leg injury. To hold that the present employer would be liable for payment of a greater amount as a result of the preexisting injuries would be inconsistent with the purpose and language of the statute. The industrial commissioner correctly ruled that the Second Injury Fund should be responsible for the industrial disability, less the total of the scheduled injuries, or a total of 262 weeks. Accordingly, we reverse and remand for reinstatement of the order by the commissioner. Claimant has failed to establish that the Second Injury Fund is liable for benefits to her. Claimant has not met the test requirements set out in sections 85.63 through 85.69. Specifically, claimant has failed to prove that her injury to the left leg was permanent in nature. Neither Dr. Wolbrink nor Dr. Janda, the treating physicians, have provided permanent impairment ratings. Claimant was not restricted in any fashion with respect to her left lower leg. She was able to go to school and work part-time. Claimant did not list a left leg injury on her job application for employment with Schneider Metals Manufacturing Company. Claimant did not have medical treatment for her left leg in nearly eight years. While Dr. Walker assessed a four percent permanent impairment to the Page 5 left leg, it is unclear what Dr. Walker used as a basis for that rating. Claimant had normal range of motion and her only complaint was occasional swelling and discomfort if she stood too long. Therefore, not much weight is given to Dr. Walker's impairment rating. Claimant has not established that she has sustained a permanent injury to her left lower extremity. She has failed to prove she has a permanent disability for both injuries. Thus the tests set out in sections 85.63 through 85.69 have not been met. As a consequence, claimant has not established any entitlement to benefits from the Second Injury Fund. order THEREFORE, IT IS ORDERED: Claimant takes nothing from these proceedings. Costs of this action are assessed against claimant pursuant to Division of Industrial Services Rule 343-4.33. Signed and filed this ____ day of June, 1990. ______________________________ MICHELLE A. McGOVERN DEPUTY INDUSTRIAL COMMISSIONER Copies To: Mr. Robert S. Kinsey, III Attorney at Law 214 N Adams P O Box 679 Mason City IA 50401 Mr. Craig Kelinson Special Assistant Attorney General Hoover State Office Bldg Des Moines IA 50319 5-3200 Filed June 21, 1990 MICHELLE A. McGOVERN before the iowa industrial commissioner ____________________________________________________________ : LILY ANN ADAMS, : : File No. 822391 Claimant, : : A R B I T R A T I O N vs. : : D E C I S I O N SECOND INJURY FUND, : : Defendant. : ___________________________________________________________ 5-3200 Claimant failed to establish any entitlement to benefits from the Second Injury Fund. Claimant was unable to prove any permanency because of the alleged first injury. She could not meet the requirements mandated by the statute.