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.