BEFORE THE IOWA INDUSTRIAL COMMISSIONER ALBERT A. MADDOX, JR., Claimant, File Nos. 825118 825119 vs. A R B I T R A T I O N J.I. CASE COMPANY, D E C I S I O N Employer, Self-Insured, Defendant. INTRODUCTION This is a proceeding in arbitration brought by Albert A. Maddox, Jr., claimant, against J.I. Case Company, employer and self-insured defendant, for benefits as the result (1) an alleged injury to his back which occurred on July 28, 1984 and (2) an aggravation of a tumor which occurred sometime prior to October 5, 1984. A hearing was held on October 15, 1987, at Burlington, Iowa, and the case was fully submitted at the close of the hearing. The record consists of the testimony of David L. Edwards, friend of claimant, Vicki L. Maddox, claimant's wife, Albert A. Maddox, Jr., claimant, L.J. "Bud" Chapman, industrial relations manager, and Joint Exhibits 1 through 10 consisting of pages 1 through 77. Both attorneys submitted excellent briefs. Defendant supplied a partial transcript of the record of the testimony of L.J. "Bud" Chapman at the direction of the deputy industrial commissioner. STIPULATIONS The parties stipulated to the following matters at the time of the hearing. That the rate of compensation, in the event of an award, is $343.13 per week. That the type of permanent disability with respect to the alleged back injury, if the injury is found to be a cause of permanent disability, is industrial disability to the body as a whole. That defendant makes no claim for credit for nonoccupational group health plan benefits or workers' compensation benefits paid prior to the hearing. That there are no bifurcated claims. ISSUES The parties submitted the following issues for determination at the time of the hearing. Whether an employer-employee relationship existed between claimant and employer at the time of the alleged injuries. Whether claimant sustained an injury to his back on or about July 28, 1984 and/or an aggravation of a tumor some time previous MADDOX V. J. I. CASE CO., PAGE 2 to October 5, 1984, which arose out of and in the course of employment with employer. Whether either alleged injury was the cause of any temporary or permanent disability. Whether claimant is entitled to any temporary or permanent disability benefits for either alleged injury. Whether claimant is entitled to medical benefits for either alleged injury. Whether claimant gave proper notice of these alleged injuries pursuant to Iowa Code section 85.23, was asserted as an affirmative defense by defendant. Whether claimant commenced these actions in a timely manner as required by Iowa Code section 85.26, was asserted by defendant as an affirmative defense. SUMMARY OF THE EVIDENCE All of the evidence was examined and considered. The following is a summary of the evidence most pertinent to this decision. Claimant testified that he is age 48, attended 11 years of high school and got his G.E.D. in the Navy, where he served for 13 years as a machinist. Claimant worked for employer for several years until he was terminated on September 5, 1984. Claimant performed automotive maintenance for employer which claimant considered to be heavy work. He changed tires and motors in battery operated trucks. Claimant stated that he injured his back in the summer of 1984 but that he did not know the date of the injury. Initially, the petition alleged the injury occurred in July of 1984. The petition was amended to state that the injury occurred on July 28, 1984. Claimant stated that he was putting a light bulb in a truck, jumped up to grab a roll bar, his hand missed, and he fell back on his butt. Claimant estimated that he fell approximately six feet, because the tire is three feet high and his leg is about three feet long. Claimant said it was a hard fall and it dazed him. Claimant testified that Jim Johnson put him in a wheelchair and he was taken to his foreman Jack Kraft, who called claimant's wife to come and get him. Claimant testified that his wife took him to the Burlington Medical Center where he saw an unknown emergency room doctor. This doctor told him to see Koert Smith, M.D., on the following day. Claimant did so and Dr. Smith prescribed codeine and told him to stay flat on his back for one week. Claimant testified that he was off work for a period of time and then returned to work. He stated that this injury left him weak, he cannot bend over and he has to get his back straight in a certain position in order to function at all. David L. Edwards testified that he is a friend of claimant. The witness's wife is a cousin of claimant. He testified that he saw claimant's wife bring him home from the plant one time in a wheelchair four or five years ago. He was at claimant's house when his wife brought him home. Vicki L. Maddox, claimant's wife of 28 years, testified that claimant fell off the forklift at work in the late summer of 1984. Mr. Kraft called her and she picked claimant up at work and took him to the hospital. She said claimant was hospitalized MADDOX V. J. I. CASE CO., PAGE 3 on August 31, 1984. She also testified that this was the last day that claimant worked for employer because he was fired five days later while he was still in the hospital on September 5, 1984. Claimant's wife testified that he was treated by Dr. Koert Smith for this fall. Claimant's wife testified that since this injury he can no longer paint, mow the grass or tend the yard. He is a good housekeeper and cook, but he is unable to lift, do hard work or cut brush. She conceded that Dr. Smith's notes show that the only time that he saw claimant was on July 6, 1984, when he fell from a truck at home and/or possible injured himself on some concrete blocks at home. Claimant said that he was hospitalized on August 31, 1984, for nerves, depression and psychiatric treatment. During this hospitalization a tumor was found. Claimant testified that he was released from the hospital and returned to the hospital later for surgery on the tumor. Claimant related that he has not had any gainful employment since he was fired on September 5, 1984. No one hires a cripple. He can't bend over, he gets dizzy and his right arm gets weak. He does not know of any work he can do because he cannot sit or walk very long and because his back hurts. He stated that he can lift ten pounds but not repetitively. Claimant testified that he could no longer perform his old job for employer. The records of Dr. Koert Smith show that he only saw claimant on one occasion in 1964 prior to his termination of employment on September 5, 1984. This one occasion occurred on June 6, 1984. At that time Dr. Smith noted that claimant reported that he was unloading some trash and fell backwards off of his truck landing on his back. Claimant was shown this entry. Claimant was asked if this was the incident that caused this injury and claimant responded, "I don't know". Claimant was asked why he amended his petition from July of 1984 to July 28, 1984. Claimant responded that he did not know why he selected that date. Claimant conceded that he made a claim for accident and sickness benefits.beginning on June 5, 1984. At that time, he stated that he fell and hurt his back and arm when his truck hit a rut. The door popped open, and he fell out. The attending physician's statement attached to this claim says that the patient stated he lifted cement blocks on June 4th which caused the onset of localized lumbar pain (Exhibit 8, pages 71 & 72). Claimant agreed that he signed a claim form for major medical benefits for an.occurrence of June 5, 1984, wherein, he stated he was unloading his truck and hurt his back and arm. On this form he stated that he was not at work when it happened (Ex. 9, p. 73). Claimant acknowledged that he had filed a number of other accident and sickness claim forms in earlier years for benefits for injuries to his back which were not work related. L.J. "Bud" Chapman, manager of industrial relations, testified that he is responsible for the keeping and maintenance of records of accidents and injuries. He searched several of employer's records concerning both of these alleged injuries. He looked at the employment application file, nurse's notes at the first aid station, the form 200 OSHA reports of accident, accident and incident forms, the employee's individual medical record and the accident and sickness insurance claim forms. Chapman found no evidence of the accident that claimant described that occurred in July of 1984, the summer of 1984 or July 28, 1984. Normally, incidents of this nature are initially entered on the nurse's notes when the incident occurs and then this information is transferred to the employee's industrial medical record that night. He did not find an incident such as claimant MADDOX V. J. I. CASE CO., PAGE 4 described that occurred in the summer of 1984. Chapman added that had such an injury occurred, which involved time lost from work, then the company was required to send a form V to the state, but he could not find a form V on file for such an injury. Chapman did recall an incident which occurred about June 4, 1984. At that time, claimant was at work under the influence of something. His arm was all scraped up and had a bunch of old scabs on it. Claimant told Chapman that he scraped his arm on some cement blocks and had knocked off some of the scabs at work. Chapman testified that claimant also reported to him that he had been having problems for the last few days with his back which occurred at home and that he would like to see Dr. Koert Smith. Chapman said claimant was taken to first aid, Dr. Smith was called and told claimant to come in the following day. Claimant was then taken on an electric cart to the south gate and picked up by his wife. Chapman testified that July 28, 1984, was a Saturday and claimant was not at work that day. Chapman also testified that he found no record of a bump, blow or bruise that occurred prior to October 5, 1984, which aggravated a preexisting medical condition or tumor in the records for either 1983 or 1984. Chapman further testified that the union contract with the United Auto Workers requires that all injuries are to be reported to the supervisor immediately. When injuries are reported they are entered into the nurse's notes immediately and recorded on the individual's medical file in the evening. The tumor, which claimant said was discovered when he was hospitalized on August 31, 1984, was later treated by A.G. Lipede, M.D., on October 10, 1984. Dr. Lipede said that a lump developed in claimant's right breast about two months earlier that was extremely painful and also caused axillary tenderness. Dr. Lipede diagnosed this as a unilateral right gynecomastia. A right simple mastectomy was performed on the same day (October 10, 1984) because it was unilateral and of recent onset. Dr. Lipede did not state or give an opinion relative to the cause of the gynecomastia (Ex. 2, pp. 38-41). There was also evidence that claimant saw William E. Anderson, M.D., a doctor of internal medicine, on October 20, 1983, because he had a blackout at work on October 19, 1983. Dr. Anderson diagnosed that claimant suffered from transient ischemic attacks which were caused by carotid artery stenosis which in turn was caused by a buildup of cholesterol plaque in the wall of the carotid artery. This could be caused by genetic factors, smoking, drinking, heart disease, arteriosclerosis or because the lumen of the artery became narrowed. The carotid artery stenosis was the cause of the transient ischemic attacks. Claimant was hospitalized from October 20, 1983 to November 14, 1983. A.G. Lipede, M.D., performed a carotid endarterectomy on October 22, 1983. The only other condition that Dr. Anderson treated claimant for was ethanol dependence. Dr. Anderson stated he was unable to state whether the fall of October 19, 1983, that accompanied the blackout at work, was the cause of the ischemic attack on that date. Dr. Anderson stated that he had no knowledge of claimant's tumor (Ex. 4, pp. 13-17). APPLICABLE LAW AND ANALYSIS The burden of proof is on an employee to show an employer-employee relationship. Everts v. Jorgensen, 227 Iowa 818, 822-826, 289 N.W. 11, 13 (1939). Claimant's testimony, various medical records and insurance claim forms established that claimant was an employee of employer in 1983 and in 1984 until he was terminated on September 5, 1984. Therefore, claimant has sustained the burden of proof by a preponderance of the evidence that he was an employee of employer in July of 1984, MADDOX V. J. I. CASE CO., PAGE 5 the summer of 1984 and on July 28, 1984 (file no. 825118). Claimant was not an employee of employer on October 5, 1984, for the reason that both parties agree that he was terminated on September 5, 1984. However, the petition alleges that the tumor was a preexisting tumor which was aggravated by a blow at work at an earlier unspecified date. The tumor was present and discovered on August 31, 1984, at the time claimant was hospitalized for depression. Claimant alleged a fall off of the tire of the forklift in July of 1984. Therefore, claimant has established an employee-employer relationship existed on the date of the alleged tumor aggravation injury (file no. 825119). Nelson v. Cities Service Oil Co., 259 Iowa 1209, 1216 146 N.W.2d 261, 265 (1966). Claimant did not sustain the burden of proof by a preponderance of the evidence that he sustained an injury in July of 1984, on July 28, 1984, or in the summer of 1984 that arose out of and in the course of his employment with employer. Claimant and his wife testified that he fell from a forklift tire and injured his back and that his wife took him to the emergency room doctor and that he was seen by Dr. Koert Smith on the following day. Neither claimant or his wife knew the date of this alleged injury. They thought is was in July of 1984 or the late summer of 1984. Claimant testified that he lost several days from work due to this injury. Claimant's amended petition stated that the injury occurred on July 28, 1984. The records of employer have absolutely no record of any such injury. Chapman checked the nurse's notes at the first aid station, the employee's individual medical record, the OSHA reports for time lost injuries and accident and incident reports of the company. Dr. Smith has no record of such an injury. No emergency room record of this injury was introduced into evidence. Chapman had no personal recollection of such an injury. No claim for disability benefits under the accident and sickness plan were made for such an injury. No claims were made for workers' compensation for such an accident at the time of the injury. There was absolutely no record of any kind in any of the normal places a record would normally have been made of such a significant injury. The only time that Dr. Smith saw claimant in 1984 prior to his termination was for an injury that occurred at home on June 6, 1984. At different times claimant gave different descriptions of how this injury occurred (1) fell out of a moving truck; (2) fell while unloading a truck and (3) scraped himself while handling cement blocks. When all of the evidence is viewed as a whole, the weight of the evidence does not support claimant. Claimant did not sustain the burden of proof by a preponderance of the evidence that he sustained an injury in July of 1984, on July 28, 1984 or in the summer of 1984 which arose out of and in the course of his employment with employer. Claimant did not sustain the burden of proof by a preponderance of the evidence that he received a blow to a preexisting tumor that caused or aggravated the gynecomastia condition that resulted in his right unilateral mastectomy. Prior to the hearing claimant was ordered to amend his petition to state an approximate period of time when the aggravation occurred, but claimant did not supply such a period of time or give any other information about the occurrence of this injury (file no. 825119). Official notice is taken of the pleadings in the industrial commissioner's file, Iowa Administrative Procedures Act 17A.14(4). Neither claimant, claimant's wife or Edwards specifically testified to a blow that aggravated a preexisting tumor prior to September 5, 1984, when claimant was terminated. Chapman had no knowledge of company records of a blow which aggravated a tumor. There was no medical record from Dr. Koert Smith or any other doctor which records a blow to a preexisting tumor. Claimant did not give this history to Dr. Lipede who treated the tumor. Claimant may have intended to say that his fall in July of 1984 was the incident that aggravated MADDOX V. J. I. CASE CO., PAGE 6 the tumor, however, he did not say this in his testimony. Dr. Lipede did not give any cause for the etiology of the gynecomastia condition which resulted in claimant's right unilateral mastectomy. Therefore, the weight of the evidence does not support claimant. Claimant did not sustain the burden of proof by a preponderance of the evidence that he aggravated a preexisting tumor which caused the gynecomastia which resulted in the surgery. Claimant's petition did not allege that the transient ischemia, which was caused by the carotid artery stenosis, was an injury arising out of or in the course of employment with employer. Likewise, there was no evidence introduced that would indicate that this condition was caused by claimant's employment. Since claimant has failed to prove an injury arising out of and in the course of employment with regard to either alleged injury, it is not necessary to discuss the other disputed issues in this case including whether claimant gave proper notice pursuant to Iowa Code section 85.23 or whether claimant brought a timely action pursuant to the provisions of Iowa Code section 85.26. FINDINGS OF FACT Wherefore, based upon the evidence presented the following findings of fact are made. That claimant testified that he fell off of a forklift tire in July of 1984, on July 28, 1984 or in the summer of 1984; that he was taken to the emergency room; that he was seen the following day by Dr. Koert Smith and that he lost several days from work due to this injury. That claimant's wife corroborated claimant's testimony. There is no record of such an injury in the nurse's notes at the first aid station, in the employee's individual medical record, in the OSHA reports of time lost injuries, in the claim for accident and sickness benefits, in the workers' compensation records, or in any accident or incident report of employer. That Chapman, whose responsibility is to maintain these records, had no personal knowledge of such an injury. That no emergency room record was introduced into evidence to establish such an injury. That Dr. Koert Smith has no record of such an injury. That the evidence did not establish that claimant fell off a forklift tire and injured his back as alleged. That claimant's petition alleged a blow that aggravated a preexisting tumor that caused a gynecomastia condition which resulted in a right unilateral mastectomy. That there was no evidence of such a blow in claimant's testimony, claimant's wife's testimony, any of the company records mentioned above, or any of the medical reports of any of the doctors. That the evidence does not establish that claimant received a blow to a preexisting tumor as alleged. That Dr. Lipede gave no cause for the occurrence of the gynecomastia condition. That claimant did not give Dr. Lipede a history of MADDOX V. J. I. CASE CO., PAGE 7 aggravating a tumor by a blow at work. That claimant's transient ischemia and left carotid artery stenosis were not alleged to be work related and that there was no evidence introduced to indicate that they were work related. Claimant's testimony, claimant's wife's testimony, Chapman's testimony, the medical records and various insurance claim forms all establish that claimant was an employee of employer in 1983 and in 1984 up until he was terminated on September 5, 1985. 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 sustain the burden of proof by a preponderance of the evidence that he was an employee of employer in 1983 and in 1984 until he was terminated on September 5, 1984. That claimant did not sustain the burden of proof by a preponderance of the evidence that he sustained an injury in July of 1984, on July 28, 1984 or in the summer of 1984, which arose out of and in the course of his employment when he fell from a forklift tire and injured his back. That claimant did not sustain the burden of proof by a preponderance of evidence that he received a blow which aggravated a preexisting tumor which caused a gynecomastia condition. ORDER THEREFORE, IT IS ORDERED: That no money is owed by defendant to claimant for either alleged injury. That the costs of this proceeding, including the cost of the partial transcript which contains the testimony of Chapman, are charged to claimant pursuant to Division of Industrial Services Rule 343-4.33. That defendant file claim activity reports as requested by this agency pursuant to Division of Industrial Services rule 343-3.1. Signed and filed this 25th day of October, 1988. WALTER R. McMANUS, JR. DEPUTY INDUSTRIAL COMMISSIONER Copies to: Mr. James P. Hoffman Attorney-at-Law Middle Road Keokuk, IA 52632-1066 Mr. William J. Cahill Attorney-at-Law 200 Jefferson St. P.O. Box 1105 Burlington, IA 52601 1402.10; 1106; 1401; 1402.20; 1402.30; 1402.40 Filed October 25, 1988 WALTER R. McMANUS, JR. BEFORE THE IOWA INDUSTRIAL COMMISSIONER ALBERT A. MADDOX, JR., Claimant, File Nos. 825118 825119 vs. A R B I T R A T I O N J.I. CASE COMPANY, D E C I S I O N Employer, Self-Insured, Defendant. 1402.10 Claimant did prove employer-employee relationship. 1106; 1401; 1402.20; 1402.30; 1402.40 Claimant did not prove either one of two alleged injuries. BEFORE THE IOWA INDUSTRIAL COMMISSIONER MARVIN KNUDSEN, Claimant, File No. 825121 VS. A R B I T R A T I 0 N MADDEN TRUCKING, D E C I S I 0 N Employer, Defendant. INTRODUCTION This is a proceeding in arbitration brought by Marvin Knudsen against Madden Trucking, his uninsured employer. The case was heard and fully submitted on March 30, 1988. The record in this proceeding consists of testimony from Marvin Knudsen, claimant's exhibits 1 through 4 and defendant's exhibit A. ISSUES The issues presented by the parties at the time of hearing are whether claimant sustained an injury which arose out of and in the course of his employment; whether the alleged injury is a cause of a period of temporary total disability; and, whether the alleged injury is a cause of the medical treatment expenses incurred by the claimant. It was stipulated that an employer-employee relationship existed at the time of injury, that the period for which the claimant was off work ran from September 10, 1985 through October 29, 1985 and that the rate of compensation, in the event of an award, is $152.94 per week. The employer did not dispute that claimant was injured in the vehicle-pedestrian accident upon which the claim is based, but the employer contends that the injury did not arise out of and in the course of employment. The employer also contends that there is no causal connection between the alleged injury and some of the medical treatment for which claimant seeks payment. 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. Marvin Knudsen testified that, on the Saturday before the accident, he had picked up a load of angle iron in Detroit and had then driven with it to Minneapolis, Minnesota, where he KNUDSEN V.MADDEN TRUCKING Page 2 arrived at approximately 4:30 p.m. on Sunday afternoon. Claimant testified that he slept in the truck behind the White Castle Restaurant that evening, got up the following morning, had breakfast at the restaurant and then drove the distance of approximately three or four blocks to the customer's location where he was to unload. Claimant testified that the customer had a large unloading area and that claimant wanted to know the specific dock at which he was to unload before pulling into the customer's lot. Claimant testified that he parked the truck next to the curb on the street, leaving the motor running, walked across the street, inquired about where he was to unload and then started walking back toward the truck. Claimant testified that, while crossing the street back to the truck, he was struck by a car, knocked unconscious and taken to Methodist Hospital. Claimant testified that, while at the hospital, he was x-rayed, had stitches and was then released with instructions to return to his own physician at home in a few days to have the stitches removed. Claimant testified that he took a cab back to the scene of the accident where another individual drove the truck to the dock, got it unloaded and then drove the truck for him back to the interstate. Claimant testified that his leg had been hurting ever since he left the hospital and that he then drove back to Boone, Iowa on the interstate highway without stopping while enroute. Claimant testified that he arrived at the terminal in Boone at approximately 5:00 and that Mr. Madden, his employer, KNUDSEN V.MADDEN TRUCKING Page 3 drove him to his home. Claimant testified that, the next morning, he got out some crutches to use that were in his home from a time when his son was sick. He testified that, on Friday of that week, he went to his family physician, John M. Wall, M.D., to have the stitches removed. While there, claimant complained of his leg and was sent for x-rays which showed a cracked fibula. Claimant confirmed that exhibit 2 contains the bills that were incurred in obtaining treatment for the accident. Claimant testified that he had not started the daily log at the time when the accident occurred and that he did not think to put in the log that he was on duty, but not driving, at the time of the accident. Claimant testified that, following the accident, his chest hurt for a week or two and that it then went away. He stated that the pain in his leg persisted longer than the chest pain. It was indicated by claimant and his counsel that a settlement has been made in the state of Minnesota against the driver of the vehicle which struck claimant. Claimant testified that he has not received any proceeds from the settlement. Claimant stated that he did not know the amount of the settlement and that it was being handled by his Minnesota attorney. Claimant's exhibit 3 contains an ambulance report which indicates that claimant had a large laceration on his forehead and seemed confused. No other injuries were noted. The emergency department record, part of exhibit 3, indicates that KNUDSEN V.MADDEN TRUCKING Page 4 claimant had not lost consciousness, but seemed confused. The report further indicates that claimant had a laceration on his forehead and nasal bridge, but that he denied pain in other parts of his body. The follow-up instructions from the emergency department indicated that claimant should see his own doctor in five days for suture removal and that he should also contact a doctor if any problems developed or if any changes in his condition occurred. The only x-ray reports in the record are of claimant's chest and skull. There is no indication that his legs were x-rayed. Exhibit 4 is a report from John M. Wall, M.D., dated April 17, 1986. The report begins "This is to certify that I saw and attended Marvin Knudsen starting Sept. 13, 1985 for an injury sustained in a car pedestrian accident..." Dr. Wall then goes on to describe injuries in the form of lacerations on the face and nose, stitches, swelling in claimant's left foot and tenderness in the mid portion of claimant's left leg. The report indicates that an x-ray showed a fine, hairline transverse fracture of the left fibula. The report shows that a return appointment was scheduled for October 1, 1985, at which time tenderness was still present in the left leg and ankle. The report indicates that claimant was told to remain at modified rest and to return for a recheck in one month. The recheck appointment occurred on October 29, 1985, at which time the doctor indicated that claimant's face, nose and leg were all essentially well healed. The second page of exhibit 4 indicates that Dr. Wall stated claimant was released for work as of October 29, 1985. Claimant's exhibit 2 is a collection of medical bills which total $797.00 as itemized in the pre-hearing report. KNUDSEN V.MADDEN TRUCKING Page 5 APPLICABLE LAW AND ANALYSIS Claimant has the burden of proving by a preponderance of the evidence that he received an injury on September 9, 1985 which arose out of and in the course of his employment. McDowell v. Town of Clarksville, 241 N.W.2d 904 (Iowa 1976); Musselman v. Central Telephone Co., 261 Iowa 352, 154 N.W.2d 128 (1967). The injury must both arise out of and be in the course of the employment. Crowe v. DeSoto Consol. Sch. Dist., 246 Iowa 402, 68 N.W.2d 63 (1955) and cases cited at pp. 405-406 of the Iowa Report. See also Sister Mary Benedict v. St. Mary's Corp., 255 Iowa 847, 124 N.W.2d 548 (1963) and Hansen v. State of Iowa, 249 Iowa 1147, 91 N.W.2d 555 (1958). The words "out of" refer to the cause or source of the injury. Crowe v. DeSoto Consol. Sch. Dist., 246 Iowa 402, 68 N.W.2d 63 (1955). The words "in the course of" refer to the time and place and circumstances of the injury. McClure v. Union et al. Counties, 188 N.W.2d 283 (Iowa 1971); Crowe v. DeSoto Consol. Sch. Dist., 246 Iowa 402, 68 N.W.2d 63 (1955). A traveling employee is within the course of his employment while he pursues many of the activities of daily life for the entire time he is on the road. Crees v. Sheldahl Telephone Co., 258 Iowa 292, 139 N.W.2d 190 (1965); Volk v. International Harvester Co., 252 Iowa 298, 106 N.W.2d 649 (1960). Such employees are in the course of their employment from the time they leave home until the time they return home. Heissler v. Strange Bros. Hide Co., 212 Iowa 848, 237 N.W. 343 (1931). According to claimant s testimony, which is controverted only by his log book entry for the date in question, he was in the process of arranging to make a delivery at a customer's place of business for his employer. Knudsen's explanation of the manner in which he completed the log book for that date is accepted as correct. Knudsen was clearly acting in the course of his employment when he was struck while crossing the street. For an injury to arise out of the employment, the injury must be a natural incident of the work. It must be a rational consequence of a hazard connected with the employment. Cedar Rapids Community Sch. v. Cady, 278 N.W.2d 298 (Iowa 1979). Knudsen's injuries when struck by the vehicle while crossing the street clearly arose out of his employment. The claimant has the burden of proving by a preponderance of the evidence that the injury of September 9, 1985 is causally related to the disability on which he now bases his claim. Bodish v. Fischer, Inc., 257 Iowa 516, 133 N.W.2d 867 (1965). Lindahl v. L. 0. 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. KNUDSEN V.MADDEN TRUCKING Page 6 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). 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). The agency's experience, technical competence and specialized knowledge may be utilized in evaluating evidence. Iowa Code section 17A.14(5). Claimant placed the onset of pain in his leg at the time he left the hospital. He complained of it to Dr. Wall and an x-ray revealed a hairline fracture. A reading of Dr. Wall's report indicates that he apparently considered the leg injury to have occurred when claimant was struck by the vehicle. There is nothing about the accident which would make the chance of a leg injury in any way remote. If claimant was, in fact, walking south, as is indicated in claimant's exhibit 1, his left side would be the first part that would be struck by a westbound vehicle. It is not difficult to believe that claimant's left leg could have been injured in such an incident. It is therefore found that the injuries claimant sustained when struck by the vehicle on September 9, 1985 included lacerations and contusions to his face and head and a hairline fracture of the fibula in his left leg. Claimant's testimony and a review of exhibits 3 and 4 clearly show that the medical expenses contained in exhibit 2 were incurred in obtaining treatment for the injuries claimant sustained on September 9, 1985 and are therefore the responsibility of the employer. Since it was stipulated that claimant sustained no permanent disability in the injury, he is entitled to receive temporary total disability from the time of the injury until he either returns to work or is medically capable of returning to employment substantially similar to that in which he was engaged at the time of the injury, whichever occurs first. Iowa Code section 85.33(l). From the records both at the Methodist Hospital Emergency Room and from Dr. Wall, it is clear that claimant was directed to rest from the date of injury up until Dr. Wall released him to return to work on October 29, 1985. According to the dates stipulated by the parties, this is a span of seven and one-seventh weeks for which claimant is entitled to receive temporary total disability compensation. Iowa Code section 85.22 gives the employer a right of subrogation and provides a method for the employer to obtain a lien upon any recovery that the claimant may obtain from a third party. The fact that claimant may obtain such a recovery, or that a settlement has been made with the proceeds being held by claimant's attorney in the state of Minnesota, does not justify the failure to pay benefits due under Chapter 85 of The Iowa Code in a timely manner. In fact, the first unnumbered paragraph of section 85.22 envisions a system where workers' compensation benefits are paid and the employer then looks to the third party KNUDSEN V.MADDEN TRUCKING Page 7 for reimbursement. If the employer in this case pays benefits to the claimant in accordance with this decision, it would then have a lawful right of subrogation against any recovery from any third party which claimant may obtain due to the accident which is the subject of this litigation. FINDINGS OF FACT 1. On September 9, 1985, Marvin Knudsen was a resident of the state of Iowa, employed by Madden Trucking, an employer who maintained a place of business at Boone, Iowa. 2. Knudsen was injured on September 9, 1985 when struck by a vehicle while crossing a street in the process of preparing to make a delivery of freight which he was hauling as part of the duties of his employment with Madden Trucking. 3. Following the injury, claimant was medically incapable of performing work in employment substantially similar to that he performed at the time of injury from September 10, 1985 until October 29, 1985 when claimant became medically capable of returning to employment substantially similar to that in which he was engaged at the time of injury. 4. Claimant's appearance and demeanor were observed as he testified and he is found to be a fully credible witness. 5. Medical expenses incurred by claimant in the total amount of $797.00 as itemized in the pre-hearing report were reasonable expenses that were incurred in obtaining reasonable treatment for the injuries he sustained on September 9, 1985. CONCLUSIONS OF LAW 1. This agency has jurisdiction of the subject matter of this proceeding and its parties. 2. Claimant sustained injury to his head and left leg on September 9, 1985 which arose out of and in the course of his employment with Madden Trucking. 3. Claimant is entitled to receive seven and one-seventh weeks of compensation for temporary total disability under the provisions of Iowa Code section 85.33. 4. Claimant is entitled to recover $797.00 in medical expenses under the provisions of Iowa Code section 85.27. 5. The fact that a third party settlement may be recovered does not constitute any lawful justification or excuse for the failure to pay benefits which are owed to an employee under the provisions of Chapter 85 of The Code of Iowa. ORDER IT IS THEREFORE ORDERED that defendant pay claimant seven and one-seventh (7 1/7) weeks of compensation for temporary total disability at the stipulated rate of one hundred fifty-two and 94/100 dollars ($152.94) per week payable commencing September KNUDSEN V.MADDEN TRUCKING Page 8 10, 1985. IT IS FURTHER ORDERED that defendant pay the entire amount in a lump sum together with interest from the date each payment came due until the date of payment at the rate of ten percent (10%) per annum pursuant to Iowa Code section 85.30. IT IS FURTHER ORDERED that defendant pay claimant seven hundred ninety-seven and 00/100 dollars ($797.00) as and for reimbursement for medical expenses he incurred. IT IS FURTHER ORDERED that defendant pay the costs of this action pursuant to Division of Industrial Services Rule 343-4.33. IT IS FURTHER ORDERED that defendant file Claim Activity Reports as requested by this agency pursuant to Division of Industrial Services Rule 343-3.1. Signed and filed this 1st day of April, 1988. MICHAEL G. TRIER DEPUTY INDUSTRIAL COMMISSIONER Copies To: Mr. Leonard R. Holland Attorney at Law P.O. Box 138 307 First Street NW Dayton, Iowa 50530 Ms. Dorothy L. Dakin Attorney at Law 712 Arden Street Boone, Iowa 50036 Mr. Kirke C. Quinn Mr. Benjamin T. Doran Attorneys at Law 809 8th Street P.O. Box 248 Boone, Iowa 50036 1110, 1402.30, 3400 Filed April 1, 1988 MICHAEL G. TRIER BEFORE THE IOWA INDUSTRIAL COMMISSIONER MARVIN KNUDSEN, Claimant, File No. 825121 VS. A R B I T R A T I 0 N MADDEN TRUCKING, D E C I S I 0 N Employer, Defendant. 1110, 1402.30, 3400 Claimant, a truck driver, was struck by a vehicle while making preparations to unload a load. It was found that his injuries arose out of and in the course of employment, even though his log book did not show him to be on duty at the time. Claimant's injuries were found to include a fractured fibula, which was not diagnosed until approximately five days after the incident, where claimant's legs were not x-rayed at his initial emergency room visit and he testified that the pain in his leg had been present ever since he was released from the hospital emergency room immediately following the accident. The employer's subrogation rights with regard to a third party claim in the state of Minnesota were held to not be a sufficient reason or excuse for non-payment of benefits. It was held that the potential or fact of a third party settlement does not absolve an employer from paying benefits which are justly due under Chapter 85. Section 85.22 provides a right of subrogation, not an excuse for non-payment. BEFORE THE IOWA INDUSTRIAL COMMISSIONER VETERANS ADMINISTRATION, Medical Provider, VS. ESTATE AND DEPENDENTS OF DEAN BOWMAN, Claimants, File No. 825122 FRANTZ CONSTRUCTION CO., INC., A P P E A L Employer, R U L I N G and BITUMINOUS CASUALTY CORP., Insurance Carrier, Defendants. STATEMENT OF THE CASE The Veterans Administration (hereinafter VA) appeals from a ruling and order on reconsideration of prior ruling dismissing the VA's claim for medical services provided to Dean C. Bowman (deceased). The deputy ruled that under Iowa Code section 85. 26(4) the VA lacked standing to maintain a claim for medical services. The VA filed a brief on appeal. ISSUE The VA states the following issue on appeal: "Did the Deputy Industrial Commissioner err in holding that SS85.26(4) precludes a direct action by the VA to recover for the value of medical services provided?" REVIEW OF THE EVIDENCE The VA has submitted copies of three bills for medical treatment provided to Dean C. Bowman from August 24, 1984 through January 15, 1986. The total amount of these bills is $203,229.00. APPLICABLE LAW "No claim or proceedings for benefits shall be maintained by any person other than the injured employee, his or her dependent or his or her legal representative if entitled to benefits." Iowa Code section 85.26(4), 1983. VETERANS ADMINISTRATION V. FRANTZ CONSTRUCTION CO., INC. Page 2 The industrial commissioner has interpreted section 85.26(4) in Poindexter v. Grant's Carpet Service and Milbank Insurance Co., Appeal Ruling, filed August 10, 1984. Appellant is a professional corporation seeking payment of medical costs incurred by Brian Poindexter, the injured worker. Appellant contends that Mr. Poindexter has executed a valid assignment of his workers' compensation medical benefits to the corporation, and it thus has an economic interest that renders it an indispensable party to the claim. The dispute arises from a petition and accompanying application for determination filed by the employer and insurance carrier which questioned the reasonableness of medical fees which were submitted in conjunction with a work injury. A previously filed memorandum of agreement has established an employment relationship between Poindexter and Grant's Carpet Service, and that the injury arose out of and in the course of employment. The employer's final report indicates that healing period and permanent partial disability benefits have been paid. It is established law that the claimant has the burden of proving his claim for benefits. By the filing of a memorandum of agreement, the injured worker is relieved of a showing that the injury was work related, but his burden of proving medical costs remains. If the injured employee seeks payment of medical benefits and the costs are in dispute, it is his responsibility, by statute, to initiate a proceeding which gives him the opportunity to prove his claim against the employer. He must show that the medical costs are causally related to the work injury and that they are reasonable and necessary. No party can make this showing for him, and the employer is under no obligation to render payment until the worker has sustained his burden. In the instant case, no claim for medical payment has been filed by Brian Poindexter. Review of the applicable statutory provisions reveals no statutory authority which gives P.S.I. standing to proceed under compensation law directly against the employer. The Iowa Supreme Court in Brauer v. J. C. White Concrete Co., 253 Iowa 1304, 115 N.W.2d 702 (1962) ruled that a party who rendered medical or hospital services could assert a claim therefor before the industrial commissioner. The legislature acted with utmost celerity to overturn the holding of the Iowa Supreme Court in the Brauer decision in the session of the general assembly immediately after the filing of the decision. They enacted: "No claim or proceedings for benefits shall be maintained by any person other than the injured employee his dependent or his legal representative, if entitled to benefits." Acts of the Regular Session 60 GA (1963), Chapter 87, SS3. This provision remains in the law today in the same form (although with gender reference corrected) as Code of Iowa section 85.26(4). VETERANS ADMINISTRATION V. FRANTZ CONSTRUCTION CO., INC. Page 3 Although appellant, like any creditor, has a financial interest in expediting a determination of payment due, such interest does not confer standing to participate in an action that has not properly been initiated or to attempt to relieve a potential claimant of his rightful burden of proof by initiating a discovery proceeding against the employer and the insurer. The deputy was correct in finding that P.S.I. is not a party to this action and has no standing to sue in claimant's name. See also Veteran's Administration v. Chase Manufacturing, Appeal Decision filed September 9, 1987. ANALYSIS As indicated, the Poindexter rationale continues to be this agency's interpretation of section 85.26(4). The deputy was correct in ruling that the VA lacks standing to maintain their claim before this agency. This agency has no jurisdiction to interpret whether federal law preempts 85.26(4). WHEREFORE, the decision of the deputy is affirmed. THEREFORE, it is ordered that the Veterans Administration's petition for hospital lien is dismissed. Signed and filed this 29th day of October, 1987. DAVID E. LINQUIST INDUSTRIAL COMMISSIONER Copies To: Mr. William L. Meardon Ms. Margaret T. Lainson Attorneys at Law 122 South Linn St. Iowa City, Iowa 52240 Mr. C. Peter Hayek Attorney at Law Bremer Bldg. 120 1/2 East Washington St. Iowa City, Iowa 52240 Mr. William J. O'Keefe Mr. Ronald A. Bowerman Attorneys at Law Veterans Administration VETERANS ADMINISTRATION V. FRANTZ CONSTRUCTION CO., INC. Page 4 210 Walnut Street Des Moines, Iowa 50309 1402.60 - 2700 Filed October 29, 1987 DAVID E. LINQUIST BEFORE THE IOWA INDUSTRIAL COMMISSIONER VETERANS ADMINISTRATION, Medical Provider, VS. ESTATE AND DEPENDENTS OF DEAN BOWMAN, Claimants, File No. 825122 FRANTZ CONSTRUCTION CO., INC., A P P E A L Employer, R U L I N G and BITUMINOUS CASUALTY CORP., Insurance Carrier, Defendants. 1402.60 - 2700 Veterans Administration brought this proceeding to recover payment for medical services provided to Dean Bowman. Section 85.26(4) limits claims for benefits to injured employees. See Poindexter v. Grant's Carpet Service and Milbank Insurance Co., Appeal Ruling, filed August 10, 1984. See also Veterans Administration v. Chase Manufacturing Co., Appeal Ruling 1987. This agency does not have jurisdiction to determine whether federal law preempts 85.26(4). BEFORE THE IOWA INDUSTRIAL COMMISSIONER BETTY LOU HURLEY, Surviving Spouse of DARRELL WAYNE HURLEY, Deceased, File No. 825126 Claimant, vs. A P P E A L LINT VAN LINES, D E C I S I O N Employer, and TRANSPROTECTION SERVICE COMPANY, Insurance Carrier, Defendants. STATEMENT OF THE CASE Claimant appeals from a death benefits decision denying death benefits as the result of an alleged injury of May 1, 1986. The record on appeal consists of the transcript of the death benefits proceeding and joint exhibits 1 through 9. Both parties filed briefs on appeal. ISSUES Claimant states the following issues on appeal: 1. Was Darrell Hurley an employee of Lint Van Lines? 2. If Mr. Hurley was an employee of Lint, what is the proper rate of weekly compensation? REVIEW OF THE EVIDENCE The review of the evidence in the death benefits decision is adequate and will not be set forth herein. APPLICABLE LAW The citations of law in the death benefits decision are appropriate to the issues and the evidence. ANALYSIS The analysis of the evidence in conjunction with the law is adopted. HURLEY V. LINT VAN LINES PAGE 2 FINDINGS OF FACT 1. Claimant's decedent, Darrell Hurley, was killed in a vehicular accident in the state of Missouri on May 1, 1986. 2. Decedent was at the time of the accident accompanying Gerald Mastin to help unload freight being transported from a warehouse in Des Moines, Iowa, to St. Louis, Missouri. 3. Gerald Mastin was an employee of Lint Van Lines. 4. Lint Van Lines was a franchisee of United Van Lines. 5. Decedent had previously worked for Gerald Mastin unloading freight on a trip to Sioux Falls, South Dakota, and had been paid $50 in cash for his labor without any withholding taxes. 6. When paid for his labor on the South Dakota trip, decedent signed an independent contractor form and used a false name and address. 7. Gerald Mastin did not have authority to hire employees for Lint Van Lines. 8. Lint Van Lines was unaware that decedent had been hired by Gerald Mastin, and decedent did not ever appear on the payroll records of Lint Van Lines. 9. Gerald Mastin followed a practice of hiring "lumpers" or spot labor to help with unloading and paid for such labor with cash out of his payment received from Lint Van Lines. 10. Gerald Mastin had the discretion to hire or fire decedent, to set his wages, and to control his work. 11. The tools used by decedent were provided by Lint Van Lines. 12. Decedent did not receive a regular salary but was only paid for the time he actually worked. 13. Gerald Mastin, and not Lint Van Lines, exercised the authority to determine whether or not spot laborers would be hired and whether those laborers would be brought along from Des Moines or hired at the destination. 14. Decedent was hired on an intermittent basis, and could have refused to work on a given trip or load. 15. Lint Van Lines did not have authority to assign decedent to work for other drivers. 16. Lint Van Lines did not at any time intend to establish an employer-employee relationship with decedent. 17. Decedent's actions in signing the independent contractor form and utilizing a false name indicate that decedent HURLEY V. LINT VAN LINES PAGE 3 did not intend to establish an employer-employee relationship. 18. The hiring of spot laborers for unloading freight on an independent contractor basis is a common practice in the moving van industry. 19. Decedent was not an employee of Lint Van Lines. CONCLUSIONS OF LAW Claimant has not established that the decedent was an employee of the named employer at the time of his May 1, 1986 injury and ensuing death. WHEREFORE, the decision of the deputy is affirmed. ORDER THEREFORE, it is ordered: That claimant take nothing from this proceeding. That claimant pay the costs of this action including the costs of the transcription of the hearing proceeding. Signed and filed this 13th day of October, 1988. DAVID E. LINQUIST INDUSTRIAL COMMISSIONER Copies to: Mr. Verne Lawyer Attorney at Law 427 Fleming Bldg. Des Moines, IA 50309 Mr. Barry Moranville Attorney at Law 974 73rd St, Ste 16 Des Moines, Iowa 50312 Mr. Frank T. Harrison Attorney at Law Terrace Center, Ste 111 2700 Grand Ave Des Moines, IA 50312 2001, 2002 Filed October 13, 1988 David E. Linquist BEFORE THE IOWA INDUSTRIAL COMMISSIONER BETTY LOU HURLEY, Surviving Spouse of DARRELL, WAYNE HURLEY, Deceased, Claimant, File No. 825126 vs. A P P E A L LINT VAN LINES, D E C I S I O N Employer, and TRANSPROTECTION SERVICE COMPANY, Insurance Carrier, Defendants. 2001; 2002 Affirmed deputy's determination that claimant's decedent was not an employee of the named defendant. Decedent was a "lumper" or spot laborer hired by defendant's employee, a driver, and not by defendant moving van company, to help unload furniture from a moving van. The moving van company was named as defendant, but the moving van company's employee, the driver, was not named as a party. Decedent was hired intermittently by the driver and was paid out of the driverOs share of the proceeds of the moving fee. The driver had the discretion to hire lumpers or not, and to decide whether to take them along on the trip or hire them at the destination. Named defendant, the moving van company, did not hire decedent, did not know he was hired by their employee, did not have him on the payroll, and did not have power to assign him to work for another driver. This was shown to be a common practice in the industry. Decedent was paid in cash, without withholding. On an earlier trip, decedent had signed an independent contractor agreement with the same driver, and had used a false name and social security number. It was found that the named parties did not intend to establish an employer-employee relationship. BEFORE THE IOWA INDUSTRIAL COMMISSIONER BETTY LOU HURLEY, Surviving spouse of DARRELL WAYNE HURLEY, Deceased, File No. 825126 Claimant, D E C I S I O N VS. O N LINT VAN LINES, D E A T H and B E N E F I T S TRANSPROTECTION SERVICE CO., Insurance Carrier, Defendants. INTRODUCTION This is a proceeding for death benefits brought by Betty Lou Hurley, administrator of the estate of Darrell Wayne Hurley, deceased, against his alleged employer, Lint Van Lines, and its insurance carrier, Transprotection Service Company, to recover benefits under the Iowa Workers' Compensation Act as a result of an alleged injury of May 1, 1986 with death ensuing in the alleged injury. This matter came on for hearing before the undersigned deputy industrial commissioner in Des Moines, Iowa, on May 7, 1987. But for the briefs of the parties, the record was considered fully submitted at close of hearing. A first report of injury was filed August 26, 1986. The record in this case consists of the testimony of Betty Lou Hurley and of Donald Lint, as well as of exhibits 1 through 9. Exhibit 1 is a a certificate of marriage; exhibit 2 is birth certificates; exhibit 3 is an obituary and death certificate for decedent; exhibit 4 is a statement of funeral costs for decedent; exhibit 5 is a deposition of Betty Lou Hurley; exhibit 6 is a deposition of Gerald Mastin; exhibit 7 is the deposition of Donald Lint; exhibit 8 is the income tax filings for Darrell and Betty Lou Hurley for the years 1984 and 1985; and exhibit 9 is an employer's record of trips of Gerald Mastin in April 1986. ISSUES Among other stipulations submitted with the prehearing report, the parties stipulated that the cost of decedent's funeral was fair and reasonable and exceeded the statutory amount of $1,000 allowed under section 85.28. The issues remaining for resolution are: 1) Whether decedent was an employee of the named employer HURLEY V. LINT VAN LINES Page 2 at the time of the fatal incident; 2) Whether decedent received an injury which arose out of and in the course of his employment; 3) Whether decedent's surviving spouse is entitled to death benefits on account of decedent's death; and, 4) Decedent's rate of weekly compensation. REVIEW OF THE EVIDENCE On May 1, 1986, claimant was the spouse of decedent, Darrell Hurley. Decedent had three dependent children at the time of his death, the children having been born January 17, 1972, March 11, 1975, and June 29, 1979, respectively. Decedent was killed on May 1, 1986 in a motor vehicle accident on U.S. Highway 63 in Randolph County, Missouri. The motor vehicle accident involved a tractor-trailer which Gerald Mastin was driving to a St. Louis furniture warehouse for unloading. Decedent and Michael Mastin, Gerald Mastin's son, were accompanying Gerald Mastin in the tractor. Gerald Mastin was an employee of Lint Van Lines, which is the Des Moines franchisee for United Van Lines. Trucks in the Lint Van Lines fleet had United Van Lines identification on them with further identification as operated by Lint (Van Lines) in small print as well. Trailers on permanent lease to United Van Lines did not have any Lint identification on them. Gerald Mastin wore a shirt bearing the United logo. Mike Mastin had been a payroll employee of Lint Van Lines prior to May 1, 1986, but was not a payroll employee of Lint as of May 1, 1986. Both Mike Mastin and decedent had accompanied Gerald Mastin in a Lint Van Lines tractor-trailer to Sioux Falls, South Dakota, on April 6 an 7, 1986. Each apparently then assisted with unloading furniture and each apparently received payment under an independent contractor agreement which reads as follows: INDEPENDENT CONTRACTOR AGREEMENT This agreement made this ____ day of __________ 19__ between _________party of the first part and, __________party of the second part. The party of the second part, an independent contractor, agrees to load-unload a certain trailer at his discretion, but commencing with the execution of this agreement, and continuing without interruption until completion for the sum of $______, receipt of which sum is hereby acknowledged, it being understood that the relationship existing between the parties is that of an independent contractor and specifically not employer-employee. The party of the second part also understands that under this contract agreement he also agrees to pay his own FICA, Withholding and Social Security, and any other State and Federal taxes required by law and does not hold party of the first part responsible for such. _______________________ ________________________ HURLEY V. LINT VAN LINES Page 3 Party of the First Part Party of the Second Part _______________________ ________________________ Address Address _______________________ ________________________ Social Security Number Social Security Number Mike Mastin and decedent used the names Ted Ducan and Tom Gone on submitted independent contractor agreements following the April 6 and 7 haul. They used false social security numbers as well on those agreements. Gerald Mastin received forty percent of the load as his payment from Lint Van Lines. Of that amount, Gerald Mastin was required to pay his expenses including labor, fuel, and weight tickets. Gerald Mastin had authority to hire helpers. Donald Lint denied that Mastin's authority extended to hiring Lint Van Lines employees. Decedent received payment of $50 for the Sioux Falls trip and Gerald Mastin testified decedent was to receive $50 plus his meals for the St. Louis trip when it was completed. No payment for the St. Louis trip was ever made. Gerald Mastin testified that decedent would not have been paid for postponements in trips or at other times when not actually working. Gerald Mastin also reported that claimant could have worked as a furniture unloader for him one or two times per week. Don Lint stated that furniture movers generally are paid $4.50 per hour. Decedent's death certificate identified him as a laborer whose profession was furniture mover. Decedent's obituary identified him as a furniture mover for Lint Van Lines. Claimant supplied the obituary data. Claimant, Betty Lou Hurley, testified that she had met decedent in 1972 when decedent was then working for Des Moines Steel as a laborer. Decedent subsequently worked for Orkin Exterminator and Midwest Distribution Center. He was laid off at Midwest in November 1981 and then worked briefly for Vitalis Truck Lines. Claimant testified that on all identified jobs, decedent had received his wages by check with taxes and social security withholdings made. He received a W-2 wage statement from each named employer. Following his Vitalis employment, decedent worked on vehicles at home. He was paid in cash for such work with no withholdings made. Claimant agreed that those payments were only reported for income tax purposes in 1986 and had not been so reported in prior years. She agreed that the 1986 tax return submitted reported income of $200 for vehicle work and $50 for the Sioux Falls trip. Ms. Hurley works for the state of Iowa. Claimant testified that she observed Gerald Mastin pay decedent $50 in cash from Mr. Mastin's wallet following the Sioux Falls trip. Claimant testified that decedent told her that Gerald had advised him that it was preferred that he wear dark pants and shirt [when working]. She reported that Mike Mastin had told her decedent was wearing a Lint Van Lines shirt at the time of the fatal incident. She agreed that decedent had never HURLEY V. LINT VAN LINES Page 4 otherwise brought home a Lint Van Lines shirt and that she had never seen decedent wear a Lint Van Lines shirt. She agreed that she had not seen decedent leave on May 1, 1986 and was unaware of what items he had taken with him. She assumed claimant at least would have taken a shirt, however. Claimant testified that decedent had told her he would be going out with Gerald and Mike Mastin from May 1, 1986 onward. She reported that he told her another worker did not wish to continue to go on the road. She did not personally know if decedent had ever applied for work with Lint Van Lines. Claimant understood that Lint was to pay decedent for work performed. She testified that she felt Gerald Mastin had authority to hire decedent although Mastin did not say he had authority to hire decedent. Claimant testified she assumed that Mike Mastin was a Lint employee although she was not told that. Claimant testified that she did not know the names Tom Gone and Ted Ducan but for information obtained in Gerald Mastin's deposition. She was not aware of decedent having used social security numbers other than the stated social security number. She did not recognize the handwriting on exhibit 9, page 7. Gerald Mastin testified in his deposition of February 24, 1987 that he did not own the tractor-trailer that he was driving on May 1, 1986. He testified he owned his personal tools, but not the other equipment on the trailer. Mastin stated that he personally loaded and unloaded the truck and denied having any physical impairment that kept him from working. Claimant had earlier testified that decedent was to help Mike Mastin because Gerald Mastin had had heart surgery. Gerald Mastin testified that the only Lint employees who help with loading and unloading were employees whom Don Lint had hired. Mastin characterized such employees as "steady employees of Mr. Lint.O Gerald Mastin stated that when decedent worked for Gerald Mastin, Gerald Mastin was the "bossO and supervised decedent's activities as well as told decedent when to report to work and when work was completed. Mastin agreed that no payroll taxes were withheld when the independent contractor form was used. Mastin indicated that Lint Van Lines personnel did not know that decedent was accompanying Mastin on May 1, 1986. He stated that the only reason for decedent and Mike Mastin to accompany him on May 1, 1986 was that St. Louis warehouse personnel preferred that furniture haulers "hire a man" for loads of greater than 3000 pounds. Gerald Mastin estimated the weight of the load he was hauling on May 1, 1986 as between 8,000 and 9,000 pounds. He reported that by taking Mike "or anybody" along he could get by cheaper because labor rates were so high at the warehouse. Don Lint, owner of Lint Van Lines as well as a number of other trucking companies through the past twenty-nine years, testified that Lint Van Lines currently has fifty employees with over one hundred employees in its peak season. He indicated he is familiar with Lint employees and carries workers' compensation insurance on those employees. Income tax and social security withholdings are made on payroll employees and those employees are given W-2 forms at year's end. Mr. Lint denied that decedent was on the Lint Van Lines payroll and stated that he did not know decedent. He reported that he had not hired decedent and that, to his knowledge, no other Lint Van Lines personnel had hired HURLEY V. LINT VAN LINES Page 5 decedent. He denied knowing that decedent had accompanied Gerald Mastin on May 1, 1986 or on the earlier Sioux Falls trip. Lint agreed that Gerald Mastin had authority to hire helpers, but in his deposition stated that such authority did not include authority to hire Lint employees. Lint stated that if Lint drivers hire spot laborers, the driver pays the cost of the laborer from the OdriverOs pocket". Lint stated that spot laborers, whom he characterized as "lumpers," are available throughout the country and that it would be cheaper for a driver to hire a "lumper" in St. Louis than to take decedent along on a load. In his deposition, Mr. Lint stated the following regarding the practice of hiring "lumpers": Q. Mr. Lint, one question. You told Mr. Moranville that Gerald had authority to hire helpers. Did he have authority to hire employees for Lint Van Lines? A. No, sir. MR. HARRISON: That is all I have. REDIRECT EXAMINATION Q. I guess I do not understand the distinction between the authority to hire helpers and the authority to hire employees. Could you tell me what the difference is? A. Well, in our line of business a driver is assigned a movement that could go from Des Moines to Chicago to New York to California. The man is an employee of mine. I don't deny that fact. He is paid a percentage to hire labor, et cetera. He hires an independent contractor which are throughout the United States. We have drivers that have names and phone numbers of guys at any place in the country. He calls them. He hires them. He pays them. He gets the receipt. We don't know them. We never see them. We have nothing to do with them. No contact whatsoever. It's strictly a contract between the driver who we employ and his outside helper. Lint agreed that Lint Van Lines records "lumper" costs of its drivers on independent contractor forms which Lint supplies. Mr. Lint agreed that furniture pads and refrigeration carts on Lint trucks are Lint Van Lines supplies. He agreed that the "lumper" supplies no tools and works under the driver's direction. He stated, however, that the "lumper" can decide when to work and when to leave work although the driver can then decide whether he wishes to pay the "lumper.O Lint agreed that the names and social security numbers on the forms which Mastin submitted after the April 6 and 7, 1987 run were such that he could not have identified decedent as having been on that haul. Lint stated he had had no intention of forming an employer-employee relationship with decedent. Decedent's funeral cost was $4,750.60. APPLICABLE LAW AND ANALYSIS Of initial concern is with whether claimant's decedent was HURLEY V. LINT VAN LINES Page 6 an employee of the named employer at the time of his injury and resulting death. Iowa Code sections 85.61(l) provides in part: 2. "Worker" or "employee" means a person who has entered into employment of, or works under contract of service, express or implied, or apprenticeship, for an employer.... The Iowa Supreme Court stated in Nelson v. Cities Service Oil Co., 259 Iowa 1209, 1213, 146 N.W.2d 261 (1967): This court has consistently held it is a claimant's duty to prove by a preponderance of the evidence he or his decedent was a workman or employee within the meaning of the law .... And, if a compensation claimant establishes a prima facie case the burden is then upon defendant to go forward with the evidence and overcome or rebut the case made by claimant. He must also establish by a preponderance of the evidence any pleaded affirmative defense or bar to compensation. (Citations omitted.) Given the above, the court set forth its latest standard for determining an employer-employee relationship in Caterpillar HURLEY V. LINT VAN LINES Page 7 Tractor Co. v. Shook, 313 N.W.2d 503 (Iowa 1981) . The court stated in part: I. The employer-employee relationship. As defined in section 85.61(2), The Code, an "employee" is a "person who has entered into the employment of, or works under contract of service ... for an employer." Factors to be considered in determining whether this relationship exists are: (1) the right of selection, or to employ at will, (2) responsibility for payment of wages by the employer, (3) the right to discharge or terminate the relationship, (4) the right to control the work, and (5) identity of the employer as the authority in charge of the work or for whose benefit it is performed. The overriding issue is the intention of the parties. McClure v. Union, et al., Counties, 188 N.W.2d 285 (Iowa 1971). (Emphasis added). The test of control is not the actual exercise of the power of control over the details and methods to be followed in the performance of the work, but the right to exercise such control. Lembke v. Fritz, 223 Iowa 261, 266, 272 N.W. 300, 303 (1937). The general belief or custom of the community that a particular kind of work is performed by employees can be considered in determining whether an employer-employee relationship exists. Nelson v. Cities Serv. Oil Co., 250 Iowa 1209, 1216, 146 N.W.2d 261, 265 (1966). Where both parties by agreement state they intend to form an independent contractor relationship, that stated intent is ignored if the purpose is to avoid the workers' compensation laws. Funk v. Bekins Van Lines Company, I Iowa Industrial Commissioner Report, 82, 84 (appeal dec. 1980). In cases of doubt, the workers' compensation statute is to be liberally construed to extend its beneficent purpose to every employee who can fairly be brought within it. Usgaard v. Silver Crest Golf Club, 256 Iowa 453, 459, 129 N.W.2d 636, 639 (1964). Additionally, we considered the following: We are cognizant of the fact that the compensation law is for the benefit of workers and is to be liberally administered to that end. But it must be administered by the application of logical and consistent rules or formulas notwithstanding its benevolent purpose. It cannot be made to depend on the whim or sympathetic sentiment of the current administrator or presiding judge. we apprehend every member of this court is sympathetic to claimant in the instant case. But the compensation statute is not a charity. It is a humanitarian law to be administered, not by sympathy, but by logical rules, evolved from the determination of many cases under literally countless factual variations. Compensation is to be paid by the employer (or his insurer) as a matter of contract, not as a gratuity. It is payable only when the facts show the injury is within the contract--that it 'arose out of and in the course of the contracted employment.' Bulman v. Sanitary Farm Dairies, 247 Iowa 488, 494, 495 73 N.W.2d 27 (1955). HURLEY V. LINT VAN LINES Page 8 We do not find that claimant has established that decedent was an employee of the named employer at the time of his injury and ensuing death. Initially, the named employer had no right of selection or responsibility for payment of wages to decedent. Both Mr. Lint and Mr. Mastin testified that that right rested with Mr. Mastin. Mastin had the freedom to elect or to not elect to hire furniture unloaders (known by industry-wide colloquialism as "lumpers"). Mastin testified that he paid any unloaders he hired from his own wages and that election to hire such "lumpers" reduced his own overall monetary return from any given haul. Likewise, the right to discharge or terminate the relationship also rested with Mastin and not with the named employer. Mr. Lint testified that a "lumper" could choose to begin or end work at his liking, but that the driver could then choose whether he wished to pay the "lumper." Similarly, the right to control the work appears to have rested with Mastin and not with the named employer. Telling in this regard is the fact that Mastin was apparently free, not only to elect to not hire "lumpers," but also to either hire his helpers at the delivery site or to take any helper with him from Des Moines. Additionally, the intermittent nature of the work which decedent performed as an unloader also suggests that decedent himself had some control over the nature of his relationship with both Mastin and the named employer. While Ms. Hurley testified that claimant understood that he would be going out with Gerald Mastin on a regular basis after the May 1, 1986 trip, to that point, decedent had worked as an unloader with Mastin on only one other occasion. Mastin's own deposition testimony indicates that Mastin agreed to take decedent along on the May 1 trip as an act of compassion for decedent who had not had a regular income for a prolonged period. Mastin stated he would be "going in the hole" in accepting decedent's services. Mastin denied he had physical problems that kept him from unloading furniture. Mastin's testimony generally is not consistent with Ms. Hurley's understanding that decedent would be regularly unloading for Gerald Mastin in the future. Overall, it appears that decedent could choose to not work any given load with Mastin. Likewise, there is nothing in the record to suggest that Lint Van Lines could have directed claimant to work with any of its drivers other than Mastin. Such freedom to determine the nature and type of one's work with an employer is generally inconsistent with a contractual employer-employee relationship. Likewise, the method of payment of decedent for work performed was not consistent with the existence of an employer-employee relationship between claimant and the named employer and was not such as to identify the named employer as the authority in charge of the work or as the entity for whose benefit the work was performed. Ms. Hurley testified that she observed Mr. Mastin pay claimant $50 in cash following the April 6 and 7 trip. She agreed that traditional withholdings of FICA and income tax were not made from that amount which she understood as payment for the load. She agreed that in all of decedent's regular employment during the course of their relationship, he had been paid a regular wage, generally by check, with appropriate income tax and FICA withholdings. She also testified that W-2 wage statements were received by decedent on each such regular job. Ms. Hurley is herself employed. Nothing in the record indicates that, in her own employment, she is not subject to statutory provisions regarding taxation HURLEY V. LINT VAN LINES Page 9 withholdings and receipt of W-2 wage statements. Given all the above, one could not reasonably identify the named employer as the authority in charge of the work decedent was to perform or as the entity for whose benefit that work as to be performed given the informal method by which decedent received payment from Mastin. We believe that the overall circumstances of the method of payment and Ms. Hurley's awareness of that method of payment make short shift of claimant's argument that, under the principles of agency, the named employer should be held as decedent's employer in that Mastin was an employee of that named employer who could be held to have had apparent authority to hire another employee. It appears inconsistent with Ms. HurleyOs own familiarity with common employment and wage practices for Ms. Hurley to have believed that Mastin had apparent authority to hire employees for Lint and not as assistants for Mastin himself. Additionally, the independent contractor contract in evidence suggests the decedent himself did not intend to become an employee of Lint. The evidence establishes that decedent falsely reported his name and his social security number on the independent contractor contract submitted to Lint after the April 6 and 7 haul. While we may well understand why a person in limited circumstances might engage in such conduct, the conduct itself is inconsistent with the intent to establish, either expressly or implicitly, a formal employer-employee relationship with the party from whom one is concealing one's actual identity. Finally, the general belief or custom of the community must be considered. Both Mr. Mastin and Mr. Lint testified that it is the driver who hires the "lumper" at the driver's own choice and it is the driver who pays the "lumper.O Mr. Lint outlined the industry-wide practice in this regard. The nature of the business and the nature of the hiring practices themselves suggest that it would be extremely difficult for the named trucking company or any trucking company to either identify which "lumpers" had been hired by any given driver or to exercise any true authority over such Olumpers." For that reason, the current industry custom of identifying such spot laborers as independent contractors appears reasonable and in keeping with the practicalities of the overall industry. We find no compelling reason in this case for disturbing that practice. Claimant has not established that the decedent was an employee of the named employer at the time of his May 1, 1986 injury and ensuing death. As claimant has not prevailed on the threshold jurisdictional issue of whether or not decedent was an employee of the named employer, we need not decide the other issues raised by her petition. FINDINGS OF FACT WHEREFORE, IT IS FOUND: Gerald Mastin selected decedent to ride with him to Sioux Falls, South Dakota on April 6 and 7 to unload furniture which Mastin was hauling for Lint Van Lines as the Des Moines area franchisee of United Van Lines. Gerald Mastin was an employee of Lint Van Lines as a long-haul furniture driver. HURLEY V. LINT VAN LINES Page 10 Gerald Mastin wore clothing identifying him as a United Van Lines worker and drove a Lint Van Lines truck identified with both Lint Van Lines and United Van Lines by logos and other insignia contained on the truck. Under industry-wide practice, drivers hauling furniture hire spot laborers, colloquially known as "lumpers," to load or to unload furniture at a given location. The driver pays any unloader hired from the driver's own compensation for the haul. The driver can elect to hire or to not hire an unloader to assist the driver. Gerald Mastin had authority to hire "lumpers," but was not compelled to hire "lumpers.O Gerald Mastin would have paid any "lumper" he hired from proceeds which he otherwise would have received for the haul. Gerald Mastin hired decedent to assist him on the Sioux Falls haul and paid decedent $50 in cash for his assistance on that haul. No FICA or income tax withholdings were made from the $50 cash payment. Decedent did not receive a W-2 statement from Lint Van Lines for any work performed in 1986. While decedent had been essentially unemployed for several years prior to May 1, 1986, decedent had held a number of regular full-time employments. In his regular full-time employments, decedent had been paid by check and had had FICA and income tax withholdings made. In his regular full-time employments, decedent had received W-2 wage statements for tax purposes. Claimant was aware that decedent had had appropriate withholdings made in his regular full-time employments, that decedent had been paid by check, and that decedent had received W-2 wage statements. Claimant herself is employed. Decedent used a false name and a false social security number on the independent contractor contract completed and submitted to Lint Van Lines as regards the April 6 and 7 haul. The right of selection of decedent did not rest with the named employer. Responsibility for payment of wages to decedent did not rest with the named employer. HURLEY V. LINT VAN LINES Page 11 A "lumper" could perform his work as he wished, subject to withholding of pay or termination of relationship by the driver. The right to discharge or terminate decedent's work relationship did not rest with the named employer. The right to control work decedent performed did not rest with the named employer. The named employer could not reasonably be identified as the authority in charge of the work decedent performed or as the entity for whose benefit such work was performed. CONCLUSIONS OF LAW THEREFORE, IT IS CONCLUDED: Claimant has not established that the decedent was an employee of the named employer at the time of his May 1, 1986 injury and ensuing death. ORDER THEREFORE, IT IS ORDERED: Claimant take nothing from this proceeding. HURLEY V. LINT VAN LINES Page 12 Defendants shall pay costs of this proceeding. Signed and filed this 21st day of September, 1987. HELEN JEAN WALLESER DEPUTY INDUSTRIAL COMMISSIONER Copies To: Mr. D. Barry Moranville Attorney at Law 974 73rd Street, Suite 16 Des Moines, Iowa 50312 Mr. Frank T. Harrison Attorney at Law Suite 111, Terrace Center 2700 Grand Avenue Des Moines, Iowa 50312 Mr. Verne Lawyer Attorney at Law 427 Fleming Building Des Moines, Iowa 50309 2001 Filed September 21, 1987 HELEN JEAN WALLESER BEFORE THE IOWA INDUSTRIAL COMMISSIONER BETTY LOU HURLEY, Surviving spouse of DARRELL WAYNE HURLEY, Deceased, File No. 825126 Claimant, D E C I S I O N VS. O N LINT VAN LINES, D E A T H and B E N E F I T S TRANSPROTECTION SERVICE CO., Insurance Carrier, Defendants. 2001 Claimant did not establish that the decedent, who was employed as a "lumper" to load or unload furniture, was an employee of the named employer at the time of this injury and ensuing death. The decedent was hired by the driver, an employee of the trucking line. The driver paid decedent in a lump sum without traditional withholdings and payment made decedent was from wages the driver received from the trucking company. BEFORE THE IOWA INDUSTRIAL COMMISSIONER PHYLLIS J. LOVELL, Claimant, File No. 825128 vs. A R B I T R A T I O N AMERICAN INTERNATIONAL ADJUSTMENT COMPANY, INC., D E C I S I O N Employer, F I L E D and JAN 20 1989 NATIONAL UNION FIRE INSURANCE INDUSTRIAL SERVICES COMPANY, Insurance Carrier, Defendants. STATEMENT OF THE CASE This is a proceeding in arbitration brought by claimant Phyllis J. Lovell against defendant employer American International Adjustment Company, Inc., and defendant insurance carrier National Union Fire Insurance Company to recover benefits under the Iowa Workers' Compensation Act for an alleged injury of July 20, 1984. This matter was scheduled to come on for hearing at 1:00 p.m. on January 19, 1989, at the conference room of the Iowa Division of Industrial Services in Des Moines, Iowa. The undersigned was present. Neither claimant nor defendants appeared. Claimant failed to present any evidence in support of the allegations found in her original notice and petition. At the time of the hearing, neither an agreement for settlement nor a request for continuance was on file. Claimant has the burden of proving by a preponderance of the evidence that she sustained an injury which arose out of and in the course of her employment. McDowell v. Town of Clarksville, 241 N.W.2d 904 (Iowa 1976). WHEREFORE, it is found: 1. Neither claimant nor defendants appeared at the scheduled time and place of hearing. 2. The undersigned deputy industrial commissioner was present and prepared to proceed to hearing. 3. At the time of the hearing, neither an agreement for settlement nor a request for continuance was on file with the industrial commissioner. 4. Claimant failed to present any evidence to support allegations of a compensable work injury. THEREFORE, it is ordered: Claimant has failed to met her burden of proof that she sustained an injury which arose out of and in the course of her employment. Claimant take nothing from this hearing. Costs are taxed to the claimant pursuant to Division of Industrial Services Rule 343-4.33. Signed and filed this 20th day of January, 1989. DAVID RASEY DEPUTY INDUSTRIAL COMMISSIONER Copies To: Mr. Mark A. Humphrey Attorney at Law 5001 SW Ninth Street Des Moines, Iowa 50315 Mr. Roger L. Ferris Attorney at Law 1900 Hub Tower 699 Walnut Des Moines, Iowa 50309 1400, 1402 Filed January 20, 1989 DAVID RASEY BEFORE THE IOWA INDUSTRIAL COMMISSIONER PHYLLIS J. LOVELL, Claimant, vs. File No. 825128 AMERICAN INTERNATIONAL ADJUSTMENT COMPANY, INC., A R B I T R A T I 0 N Employer, D E C I S I 0 N and NATIONAL UNION FIRE INSURANCE COMPANY, Insurance Carrier, Defendants. 1400, 1402 Neither claimant nor counsel appeared at the hearing. No evidence in support of allegations of a compensable work injury was presented and claimant therefore failed to meet his burden of proof.