BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         _________________________________________________________________
 
                     
 
         ALBERT STEPHENSON ANDRE,   
 
                     
 
              Claimant,   
 
                     
 
         vs.         
 
                                                  File No. 828701
 
         WRIGHT TREE SERVICE, INC.,      
 
                                                    A P P E A L
 
              Employer,   
 
                                                 D E C I S I O N
 
         and         
 
                     
 
         UNITED STATES FIDELITY AND      
 
         GUARANTY COMPANY,     
 
                     
 
              Insurance Carrier,    
 
              Defendants.      
 
         _________________________________________________________________
 
         The record, including the transcript of the hearing before the 
 
         deputy and all exhibits admitted into the record, has been 
 
         reviewed de novo on appeal.  The decision of the deputy filed 
 
         February 7, 1991 is affirmed and is adopted as the final agency 
 
         action in this case.
 
         Defendants shall pay the costs of the appeal, including the 
 
         preparation of the hearing transcript.
 
         Signed and filed this ____ day of November, 1992.
 
         
 
         
 
         
 
         
 
                                   ________________________________
 
                                           BYRON K. ORTON
 
                                       INDUSTRIAL COMMISSIONER
 
         
 
         Copies To:
 
         
 
         Mr. David S. Wiggins
 
         Attorney at Law
 
         700 West Towers
 
         1200 35th St.
 
         West Des Moines, Iowa 50265
 
         
 
         Mr. Ross H. Sidney
 
         Mr. Stephen D. Hardy
 
         Ms. Iris J. Post
 
         Attorneys at Law
 
         P.O. Box 10434
 
         Des Moines, Iowa 50306
 
         
 
 
            
 
 
 
 
 
 
 
 
 
                                            9998
 
                                            Filed November 10, 1992
 
                                            Byron K. Orton
 
            
 
                       BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
            ALBERT STEPHENSON ANDRE,   
 
                        
 
                 Claimant,   
 
                        
 
            vs.         
 
                                                    File No. 828701
 
            WRIGHT TREE SERVICE, INC.,      
 
                                                     A P P E A L
 
                 Employer,   
 
                                                   D E C I S I O N
 
            and         
 
                        
 
            UNITED STATES FIDELITY AND      
 
            GUARANTY COMPANY,     
 
                        
 
                 Insurance Carrier,    
 
                 Defendants.      
 
            ____________________________________________________________
 
            
 
            9998
 
            
 
                 Summary affirmance of deputy's decision filed February 
 
            7, 1991.
 
            
 
 
            
 
            Page   1
 
            
 
            
 
            
 
            
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            ALBERT STEPHENSON ANDRE,      :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :      File No. 828701
 
            WRIGHT TREE SERVICE, INC.,    :
 
                                          :    A R B I T R A T I O N
 
                 Employer,                :
 
                                          :      D E C I S I O N
 
            and                           :
 
                                          :
 
            UNITED STATES FIDELITY AND    :
 
            GUARANTY COMPANY,             :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
                                   introduction
 
            
 
                 This is a proceeding in arbitration brought by Albert 
 
            S. Andre, claimant, against Wright Tree Service, Inc., 
 
            employer, and United States Fidelity and Guaranty Insurance 
 
            Company, insurance carrier, defendants, for benefits as a 
 
            result of an alleged injury which occurred on July 7, 1986.  
 
            A hearing was held in Des Moines, Iowa on February 1, 1989 
 
            and the case was fully submitted at the close of the 
 
            hearing.  Claimant was represented by David S. Wiggins.  The 
 
            defendants were represented by Stephen D. Hardy and Iris J. 
 
            Post.  The record consists of the testimony of Gerald D. 
 
            Duke, director of personnel services, Albert S. Andre, 
 
            claimant, Wendell L. Kelley, claimant's brother-in-law, Gina 
 
            A. Andre, claimant's wife, John West, defendant's witness, 
 
            claimant's exhibits 1 through 10 and defendants' exhibits 1 
 
            through 19.  A transcript of the hearing was ordered by the 
 
            deputy and both parties to the action.  The attorneys for 
 
            both parties submitted post-hearing briefs.
 
            
 
                                   stipulations
 
            
 
                 The parties stipulated to employer/employee 
 
            relationship; that the extent to entitlement to weekly 
 
            compensation for temporary disability benefits is from July 
 
            8, 1986 to January 19, 1987; that the type of permanent 
 
            disability, if any, is industrial disability; that the 
 
            commencement date of permanent disability benefits, if any, 
 
            is January 20, 1987; that the proper rate of compensation is 
 
            $191.39 per week; that claimant's entitlement to medical 
 
            benefits is not in dispute; that employer makes no claim for 
 
            credit for group health plan benefits; that defendants paid 
 
            claimant 29 weeks of workers' compensation benefits at the 
 
            rate of $191.39 per week prior to hearing; that there are no 
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            bifurcated claims.
 
            
 
                                      issues
 
            
 
                 The parties submitted the following issues for 
 
            determination at the time of the hearing:
 
            
 
                 Whether claimant sustained an injury on July 7, 1986 
 
            that arose out of and in the course of employment with 
 
            employer.
 
            
 
                 Whether the injury was the cause of either temporary or 
 
            permanent disability.
 
            
 
                 Whether claimant is entitled to permanent disability 
 
            benefits, and if so the extent of benefits to which he is 
 
            entitled.
 
            
 
                                 findings of fact
 
            
 
                                      injury
 
            
 
                 It is determined that claimant did sustain an injury to 
 
            his lower back and tailbone on July 7, 1986 which arose out 
 
            of and in the course of his employment with employer.
 
            
 
                 Claimant testified that he was pulling the branches of 
 
            some apple trees to the curb when he slipped and fell on his 
 
            tailbone and lower back (Transcript, Pages 51 & 52).  His 
 
            co-employee did not witness the fall but after the injury 
 
            did drive claimant back to employer's office.  Claimant 
 
            reported the accident to his foreman and the director of 
 
            technical services for employer (Tr. P. 53).  Gerald D. 
 
            Swim, the director of technical services, drove claimant to 
 
            the office of the company physician.  (Defendants' Exhibit 
 
            17, P. 7).  Swim was present when James E. Dolan, M.D., 
 
            examined claimant's back.  Claimant complained of pain in 
 
            his tailbone enroute to the doctor.  (Def. Ex. 17, P. 17).  
 
            Ross Huney, claimant's foreman, completed a very detailed 
 
            accident investigation report on July 10, 1986.  (Ex. 15, 
 
            PP. 19-22).  Claimant gave a statement to defendants' 
 
            insurance claim representative by telephone on July 22, 1986 
 
            in which he described dragging brush when he slipped on some 
 
            apples and fell on his tailbone.  (Def. Ex. 19, PP. 1 & 2).  
 
            Defendants contend that claimant fabricated or feigned the 
 
            injury because just shortly before it occurred he had been 
 
            told that he was being demoted and would receive a lesser 
 
            rate of pay.  Defendants' allegation, however, is not 
 
            supported by any evidence and remains only a contention or 
 
            innuendo.  Furthermore, Cecilia O'Brien, a vocational 
 
            rehabilitation specialist, testified that when she contacted 
 
            Gerald D. Duke, the director of personnel services for 
 
            employer, he did not indicate that the employer disputed the 
 
            injury in the manner which claimant described.  (Def. Ex. 
 
            18, PP. 18 & 19).
 
            
 
                 James Dolan, M.D., saw claimant on July 7, 1986.  
 
            Claimant related this fall to Dr. Dolan and he proceeded to 
 
            treat claimant on this history.  He noted acute spasm in the 
 
            low back muscles.  He stated that claimant remained standing 
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            leaning over the examination table and alleged that he could 
 
            not sit or lie down.  Dr. Dolan took x-rays which were 
 
            negative for fractures or dislocations.  He diagnosed acute 
 
            low back strain with severe muscle spasms and pain.  He 
 
            recommended rest, heat, medications, and proper back care.  
 
            (Cl. Ex. 1, P. 1).  On July 11, 1986, Dr. Dolan recorded 
 
            that claimant's back remained tender, limited range of 
 
            motion, and guarding over the low back on both sides.  On 
 
            July 25, 1986, a bone scan and x-rays were negative, but due 
 
            to continued muscle spasms, discomfort and right and left 
 
            leg complaints Dr. Dolan referred claimant to Marshall 
 
            Flapan, M.D., for an orthopedic consultation.  (Cl. Ex. 1, 
 
            P. 2: Cl. Ex. 2) 
 
            
 
                  The registered physical therapist proceeded on a 
 
            diagnosis of acute lumbar strain which occurred when 
 
            claimant slipped on some apples and fell landing on his 
 
            coccyx.  (Cl. Ex. 3)
 
            Dr. Flapan treated claimant based on the history of this 
 
            slip and fall.  (Cl. Ex. 5, P. 5).
 
            
 
                 Claimant was treated on a number of occasions between 
 
            August 18, 1986 and January 29, 1987.  (Cl. Ex. 5; Def. Ex. 
 
            1).  Claimant demonstrated subjective evidence of decreased 
 
            sensation to pinprick in the right leg and some pain on the 
 
            straight leg raising tests.  X-rays of the lumbosacral spine 
 
            were normal.  Dr. Flapan continued claimant off work and 
 
            treated him with rest and medications, (Ex. 5, PP. 6 & 7), 
 
            based on a diagnosis of simply low back pain.  (Ex. 5, PP. 8 
 
            & 9).  Some of claimant's responses were inappropriate and 
 
            Dr. Flapan was suspicious that claimant was either 
 
            consciously or unconsciously exaggerating his symptoms.  
 
            (Cl. Ex. 5, P. 10).
 
            
 
                 X-rays and a CAT scan with metrizmate contrast were 
 
            both normal.  (Cl. Ex. 5, PP. 11 & 12).  Blood tests, 
 
            arthritis tests, additional x-rays and a bone scan ruled out 
 
            systemic inflammatory diseases.  (Cl. Ex. 5, PP. 14 & 15).  
 
            On November 11, 1986, Dr. Flapan told claimant that he had 
 
            no ideas for further treatment or investigation; that he 
 
            felt that he had gone as far as he could go with him; and 
 
            that he suggested that claimant seek consultation elsewhere.  
 
            (Cl. Ex. 5, P. 16),  His final diagnosis was chronic low 
 
            back pain caused by the injury on July 7, 1986.  (Cl. Ex. 5, 
 
            PP. 17 & 18).  When Dr. Flapan last saw claimant on January 
 
            29, 1987, he assessed a five percent impairment rating to 
 
            the body as a whole.  He advised claimant to restrict his 
 
            activities to minimal bending, lifting, straining, pushing 
 
            or pulling or lifting heavy weight.  ( Cl. Ex. 5, P. 18).  
 
            He said this rating was based upon subjective complaints and 
 
            restricted activity.  (Cl. Ex. 5, P. 22).
 
            
 
                 Dr. Flapan referred claimant to William R. Boulden, 
 
            M.D., another orthopedic surgeon, for consultation.  Dr. 
 
            Boulden saw claimant on November 25, 1986.  Dr. Boulden 
 
            proceeded on the slip and fall history of July 7, 1986.  He 
 
            noted that the back pain had subsided but the tailbone pain 
 
            had continued.  An x-ray of the coccyx showed some 
 
            angulation and possibly some earlier degeneration of the 
 
            sacral-coccygeal junction.  He diagnosed coccydynia.  Dr. 
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
            Boulden also noted that the patient seemed to be slightly 
 
            inappropriate in his reactions and that his pain seemed to 
 
            be out of proportion to the injury.  Dr. Boulden recommended 
 
            an injection to see if he could alleviate the pain under a 
 
            local block in order to determine whether a coccyx resection 
 
            might be helpful.  Scott B. Neff, D.O., who practices with 
 
            Dr. Boulden, concurred.  (Cl. Ex. 5; Dep. Ex. 1, PP. 6 & 7).  
 
            The trigger point injection was scheduled.  Claimant came to 
 
            the hospital but declined to have the injection.  Dr. 
 
            Boulden concurred with Dr. Flapan that the only objective 
 
            evidence was palpable tenderness and subjective complaints 
 
            of pain.  (Def. Ex. 1, P. 1).
 
            
 
                 Claimant demanded and received an independent medical 
 
            examination from Robert C. Jones, M.D., a neurosurgeon, who 
 
            also treated claimant on the history that on July 7, 1986 he 
 
            slipped on an apple and landed on his tailbone.  (Cl. Ex. 4, 
 
            P. 6).  He diagnosed that claimant had a tailbone injury and 
 
            situational depression from the injury.  He felt claimant 
 
            had bruised his tailbone.  (Cl. Ex. 4, P. 7).  He said the 
 
            injury was the cause of claimant's depression.  (Cl. Ex. 4, 
 
            P. 8).  Dr. Jones saw claimant again on July 16, 1987, for 
 
            pain in his tailbone and low back pain.  He found the 
 
            tailbone very tender and forward bending was mildly 
 
            restricted.  (Cl. Ex. 4, P. 9).  Dr. Jones estimated his 
 
            physical impairment to be in the range of five percent and 
 
            that it was caused by this injury.  (Cl. Ex. 4, PP. 10 & 
 
            11).  He agreed that the only objective finding was 
 
            tenderness.  (Cl. Ex. 4, P. 12).  On July 22, Dr. Jones 
 
            recommended that claimant seek other employment and/or 
 
            training for employment that does not require excessive use 
 
            of the low back.  He said that sitting exacerbates his back 
 
            and tailbone pain.  (Cl. Ex. 4, Dep. Ex. 1, P. 2).  He 
 
            recommended that claimant should return to work on a light 
 
            duty basis of desk work where he could alternately sit and 
 
            stand and avoid lifting over 20 pounds.  ( Cl. Ex. 4, Dep. 
 
            Ex. 1, P. 7).  
 
            
 
                 Claimant returned to employer on January 19, 1987. 
 
            
 
                 Duke had drawn up a light duty job in conjunction with 
 
            O'Brien's recommendation.  (Tr. PP. 25 & 152).  Claimant 
 
            refused to take this job, (Tr. PP. 27, 63) and claimant was 
 
            terminated and not recommended for rehire.  (Cl. Ex. 7, Dep. 
 
            6,)  Claimant declined this specially tailored light duty 
 
            because no one from employer had visited him when he was in 
 
            the hospital and he felt like he was just a statistic.  
 
            (Def. Ex. 7, PP. 60-64).  Duke testified to that claimant 
 
            was offered the same rate of pay (Tr. P. 29), but claimant 
 
            contended that Huney had told him he would be working for 
 
            two or three dollars less per hour.  (Tr. P. 63; Cl. Ex. 10, 
 
            P. 2).
 
            
 
                 Claimant was examined by Alfredo D. Socarras, M.D., a 
 
            neurologist, on December 5, 1988.  He too proceeded on the 
 
            fall history of July 7, 1986.  He said he could not explain 
 
            the claimant's symptoms on a neurological basis.  From his 
 
            standpoint he found no functional impairment.  (Def. Ex. 6, 
 
            PP. 7-9).
 
            
 

 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
                 From the foregoing evidence it is determined that 
 
            claimant did sustain an injury on July 7, 1986 to his 
 
            tailbone and low back which arose out of and in the course 
 
            of his employment with employer when he slipped and fell at 
 
            work.  Claimant denied and there was no evidence that 
 
            claimant had ever sustained any back injuries or complaints 
 
            prior to this incident.  (Def. Ex. 7, P. 30).  The 
 
            overwelming evidence establishes that claimant did in fact 
 
            sustain a work-related injury as he described.  There was no 
 
            evidence of any kind that his tailbone and low back 
 
            complaints have originated from any other source.
 
            
 
                causal connection/entitlement/temporary disability
 
            
 
                 Both Dr. Flapan and Dr. Jones unequivocally stated that 
 
            claimant's disability was caused by this injury.
 
            
 
                 The parties stipulated that claimant's time off work 
 
            was from July 8, 1986 to January 19, 1987.
 
            
 
                 Therefore, it is determined that claimant is entitled 
 
            to healing period benefits for this period of time.
 
            
 
                causal connection/entitlement/permanent disability
 
            
 
                 Dr. Flapan and Dr. Jones unequivocally stated that this 
 
            injury was the cause of claimant's disability.  Dr. Neff, 
 
            Dr. Boulden, and Dr. Socarras proceeded on the same history; 
 
            did not dispute that this injury was the cause of claimant's 
 
            disability; and did not suggest any other reason for the 
 
            tailbone and low back complaints.  Both Dr. Flapan and Dr. 
 
            Jones determined that claimant has sustained a five percent 
 
            permanent functional impairment.  Dr. Socarras found no 
 
            impairment, but his opinion was limited to a neurological 
 
            point of view.  There is no indication that either Dr. 
 
            Boulden or Dr. Neff were asked for an impairment rating.
 
            
 
                 Claimant, born March 10, 1953, was 33 years old at the 
 
            time of the injury and 35 years old at the time of the 
 
            hearing.  Claimant probably had not yet arrived at the peak 
 
            of his earnings capacity because he had never held a job for 
 
            more than just a few months and because of his relatively 
 
            young working age at the time of the injury.  Becke v. 
 
            Turner-Busch, Inc., Thirty-fourth Biennial Report of the 
 
            Industrial Commissioner, 34 (Appeal Decision 1979).  Walton 
 
            v. B & H Tank Corp, II Iowa Industrial Commissioner Report 
 
            426 (1981)  McCoy v. Donaldson Company, Inc., File Numbers 
 
            782670 & 805200 (Appeal Decision April 28, 1989).  
 
            
 
                 Claimant is young enough to be retrained for a number 
 
            of employments.  Conrad v. Marquette School, Inc. IV Iowa 
 
            Industrial Commissioner Report 74, 89 (1984).
 
            
 
                 Claimant has performed a variety past employments.  
 
            (Def. Ex. 11, P. 11).  He is probably precluded from a 
 
            number of these jobs because of the restrictions imposed by 
 
            Dr. Flapan and Dr. Jones. Michael v. Harrison County, 
 
            Thirty-fourth Biennial Report of Industrial Commissioner 
 
            218, 220 (Appeal Decision January 30, 1979), Rohrberg v. 
 
            Griffin Pipe Products Co., I Iowa Industrial Commissioner 
 

 
            
 
            Page   6
 
            
 
            
 
            
 
            
 
            Report, 282 (1984).  But these restrictions are mild, and 
 
            claimant's employments subsequent to this injury have 
 
            demonstrated that he can perform strenuous physically active 
 
            work.
 
            
 
                 Claimant did interrupt his high school education to 
 
            serve in the United States Marines, but completed high 
 
            school when he returned from the Marines, and while he 
 
            served in the Marine Reserves.  (Tr. PP. 39 & 40).  He 
 
            received diesel mechanic training in the Marines but did not 
 
            use these skills.  (Tr. P. 40).  He attended the Des Moines 
 
            Area Community College for a short time but quit school in 
 
            order to take this job with employer.  (Tr. P. 41).
 
            
 
                 Claimant did encounter some employment discrimination 
 
            because of this injury with the city of Des Moines.  In 
 
            1987, he did not disclose this injury and was employed.  
 
            When he reapplied in 1988 he was hired, but when his boss 
 
            was subpoenaed for a deposition about this injury, claimant 
 
            was not rehired.
 
            
 
                 Lynn Leslie, assistant employee relations director for 
 
            the city of Des Moines, testified that claimant was not 
 
            rehired because he did not disclose the previous employment 
 
            and claim of back injury on his 1987 application.  (Def. Ex. 
 
            9, P. 8).  She pointed out that claimant did not put it on 
 
            the application for either 1987 or 1988 and the forms says 
 
            at the bottom, "I'm aware that any falsification or 
 
            misrepresentation of answers in this record can be cause for 
 
            rejection or if I'm hired can be the cause of immediate 
 
            discharge."  (Def. Ex. 9, P. 13).  Claimant was not rehired 
 
            because of his application discrepancies.  (Def. Ex. 9, P. 
 
            14).
 
            
 
                 At the same time, Edwin O'Neill, parks' supervisor for 
 
            the city of Des Moines, testified that if he knew that 
 
            claimant had a back injury he would not have put him to 
 
            work.  He testified that it was the policy of the city not 
 
            to employ people with back injuries, (Def. Ex. 10, P. 11), 
 
            and that is why he was not rehired.  (Def. Ex. 10, P. 14).  
 
            Thus, there is evidence that having had a back injury makes 
 
            it more difficult to be hired which in turn increases 
 
            claimant's industrial disability or loss of earnings 
 
            capacity.
 
            
 
                 O'Brien, the vocational rehabilitation specialist, 
 
            believed that claimant's complaints of injury were 
 
            exaggerated and that he was not motivated to work.  She 
 
            interviewed claimant at his home and accompanied him to 
 
            several of his doctor appointments, with the exception of 
 
            Dr. Neff.  (Def. Ex. 18, P. 9).  She stated that based on 
 
            Mr. Andre's availability and willingness to attend 
 
            appointments, I did not feel that he was extremely motivated 
 
            to return to work.  The physical therapist told her that 
 
            claimant was not cooperative with his physical therapy.  He 
 
            rejected the offer of an injection for his coccyx area 
 
            proposed by Dr. Boulden.  Many of his various complaints 
 
            when investigated could not be documented.  (Def. Ex. 18, 
 
            PP. 11 & 12).  When claimant was to return to work light 
 
            duty he asked her several questions such as, whether or not 
 

 
            
 
            Page   7
 
            
 
            
 
            
 
            
 
            his back was permanently insured; if he went back to work 
 
            and was terminated could he go back on compensation; and 
 
            when does he get his rating and how much is it.  (Def. Ex. 
 
            18, P. 14; Def. Ex. 2, P. 12).  He cancelled appointments 
 
            for a CT scan twice, even though she had stressed the 
 
            importance of these tests, because he said he had a cold.  
 
            (Def. Ex. 18, Dep. Ex. 4).
 
            
 
                 In summary then, claimant has a five percent permanent 
 
            impairment rating from a board certified neurosurgeon and a 
 
            five percent permanent impairment rating from a board 
 
            certified orthopedic surgeon and some mild restrictions 
 
            relative to bending, lifting, stooping and straining.  It 
 
            was recommended that he change employments from manual labor 
 
            types of work.  Claimant maintains that he can no longer 
 
            swim, bowl, play softball, hunt, pick up his wife or 
 
            children.  (Tr. P. 81).  At the same time, claimant did dig 
 
            postholes for a rail fence in front of their mobile home and 
 
            carried five gallon buckets of sealant up a ladder to reseal 
 
            a roof on his mobile home. ( Tr. PP. 105-106).  
 
            
 
                 Wherefore, based upon the evidence presented, and all 
 
            the factors used to determine industrial disability, 
 
            Peterson v. Truck Haven Cafe, Inc., vol. 1, no. 3 State of 
 
            Iowa Industrial Commissioner Decisions 654, 658 (Appeal 
 
            Decision February 28, 1985); Christensen v. Hagen, Inc., 
 
            vol. 1, no. 3, State of Iowa Industrial Commissioner 
 
            Decisions 529 (Appeal Decision, March 26, 1985); and 
 
            applying agency expertise rule 343 IAC 17A.14(5) is 
 
            determined that claimant has sustained a 15 percent 
 
            industrial disability to the body as a whole and that 
 
            claimant is entitled to 75 weeks of permanent partial 
 
            disability benefits.
 
            
 
                                conclusions of law
 
            
 
                 Wherefore, based upon the foregoing and following 
 
            principles of law these conclusions of law are made.
 
            
 
                 That claimant sustained an injury on July 7, 1986 to 
 
            his lower back and coccyx which arose out of and in the 
 
            course of his employment with employer.  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).
 
            
 
                 That the injury was the cause of temporary and 
 
            permanent disability.  Bodish v. Fischer Inc., 257 Iowa 516, 
 
            133 N.W.2d 867 (1965); Lindahl v. L. O. Boggs, 236 Iowa 296, 
 
            18 N.W.2d 607 (1945).
 
            
 
                 That claimant is entitled to 27.857 weeks of healing 
 
            period benefits for the period from July 8, 1986 to January 
 
            19, 1987 as stipulated to by the parties.  Iowa Code section 
 
            85.34(1).
 
            
 
                 That claimant has sustained a 15 percent industrial 
 
            disability to the body as a whole and is entitled to 75 
 
            weeks permanent partial disability benefits.  Iowa Code 
 
            section 85.34(2)(u).
 
            
 

 
            
 
            Page   8
 
            
 
            
 
            
 
            
 
                 That defendants are entitled to a credit of 29 weeks of 
 
            workers' compensation benefits paid to claimant prior to 
 
            hearing at the rate of $191.39 per week as stipulated to by 
 
            the parties.  Iowa Code section 85.34(4).
 
            
 
                                      order
 
            
 
                 THEREFORE, IT IS ORDERED:
 
            
 
                 That defendants pay to claimant twenty-seven point 
 
            eight five seven (27.857) weeks of healing period benefits 
 
            at the rate of one hundred ninety one and 39/100 dollars 
 
            ($191.39) per week in the total amount of five thousand 
 
            three hundred thirty-one and 55/100 dollars ($5,331.55) 
 
            commencing on January 20th as stipulated to by the parties.
 
            
 
                 That defendants pay to claimant seventy-five (75) weeks 
 
            of permanent partial disability benefits at the rate of one 
 
            hundred ninety-one and 39/100 dollars ($191.39) per week in 
 
            the total amount of fourteen thousand three hundred 
 
            fifty-four and 25/100 dollars ($14,354.25) commencing at the 
 
            completion of the payment of the healing period benefits.
 
            
 
                 That defendants are entitled to a credit in the amount 
 
            of twenty-nine (29) weeks of workers' compensation benefits 
 
            paid to claimant in the weekly amount of one hundred 
 
            ninety-one and 39/100 dollars ($191.39) and in the total 
 
            amount of five thousand five hundred fifty and 31/100 
 
            dollars ($5,550.31), prior to hearing.
 
            
 
                 That these benefits are to be paid in a lump sum.
 
            
 
                 That interest will accrue pursuant to Iowa Code section 
 
            85.30.
 
            
 
                 That the costs of this action are charged to defendants 
 
            pursuant to rule 343 IAC 4.33 including the costs of the 
 
            attendance of the court reporter at hearing and the costs of 
 
            transcript supplied to the deputy industrial commissioner.
 
            
 
                 That claimant is specifically entitled to the following 
 
            costs attached to the prehearing report:
 
            
 
                 Expert Witness Fee for Dr. Flapan          $150.00
 
            
 
                 Expert Witness Fee for Dr. Jones            150.00
 
            
 
                 Deposition Expenses for Dr. Jones            80.80
 
            
 
                 Deposition Expenses for Dr. Flapan          106.20
 
            
 
            upon a proper presentation to defendants of these itemized 
 
            bills and proof of payment of these bills.
 
            
 
                 That defendants file claim activity reports as 
 
            requested by this agency pursuant to rule 343 IAC 3.1.
 
            
 
                 That defendants file form 2A showing their payments to 
 
            claimant prior to hearing which do not appear in the 
 
            Industrial Commissioner file at this time.
 

 
            
 
            Page   9
 
            
 
            
 
            
 
            
 
            
 
                 Signed and filed this ____ day of February, 1991.
 
            
 
            
 
            
 
            
 
                                          
 
            ________________________________
 
                                          WALTER R. MCMANUS, JR.
 
                                          DEPUTY INDUSTRIAL COMMISSIONER
 
            
 
            Copies To:
 
            
 
            Mr David S Wiggins
 
            Attorney at Law
 
            700 West Towers
 
            1200 35th Street
 
            West Des Moines IA 50265
 

 
            
 
            Page  10
 
            
 
            
 
            
 
            
 
            
 
            Mr Ross H Sidney
 
            Mr Stephen D Hardy
 
            Ms Iris J Post
 
            Attorneys at Law
 
            2222 Grand Avenue
 
            PO Box 10434
 
            Des Moines IA 50306
 
            
 
                 
 
            
 
 
            
 
            Page   1
 
            
 
            
 
            
 
            
 
                      5-1401;5-1402.21;5-1402.30
 
                      5-1802;5-1402.40;5-1803
 
                      Filed February 7, 1991
 
                      WALTER R. MCMANUS, JR.
 
            before the iowa industrial commissioner
 
            ____________________________________________________________
 
                      :
 
            ALBERT STEPHENSON ANDRE, :
 
                      :
 
                 Claimant, :
 
                      :
 
            vs.       :
 
                      :      File No. 828701
 
            WRIGHT TREE SERVICE, INC.,    :
 
                      :    A R B I T R A T I O N
 
                 Employer, :
 
                      :      D E C I S I O N
 
            and       :
 
                      :
 
            UNITED STATES FIDELITY AND    :
 
            GUARANTY COMPANY,   :
 
                      :
 
                 Insurance Carrier,  :
 
                 Defendants.    :
 
            ___________________________________________________________
 
            
 
            5-1401, 5-1402.21, 5-1402.30
 
            Claimant proved injury arising out of and in the course of 
 
            employment when he slipped and fell on some apples while 
 
            pulling tree limbs and injured his low back and tailbone.
 
            
 
            5-1802, 5-1402.40
 
            Claimant proved that the injury was the cause of temporary 
 
            disability and he was entitled to 27.857 weeks of healing 
 
            period benefits as stipulated to by the parties.
 
            
 
            5-1803, 5-1402.40
 
            Claimant, age 33, high school education, proved that the 
 
            injury was the cause of permanent disability and awarded 15 
 
            percent industrial disability to the body as a whole which 
 
            entitled him to 75 weeks of permanent partial disability 
 
            benefits.  Dr. Jones, an evaluating physician for claimant, 
 
            and Dr. Flapan, a treating physician for claimant, both 
 
            assessed a 5 percent permanent impairment based on lumbar 
 
            strain, tenderness, mildly limited range of motion and 
 
            claimant's subjective complaints of pain.  Claimant had mild 
 
            restrictions against bending, lifting, stooping or straining 
 
            but subsequently performed strenuous work.  Two physicians 
 
            commented that claimant's responses were inappropriate and 
 
            that his complaints were exaggerated.  Claimant was not 
 
            highly motivated to work at all times.  Employment 
 
            discrimination by the City of Des Moines was proven which 
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            was evidence of increased industrial disability because of 
 
            claimant's back injury.
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                    BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         EUGENE CLARENCE NAMANNY,
 
         
 
              Claimant,                              File No. 828860
 
         
 
         vs.                                           A P P E A L
 
         
 
         STELLCO,                                    D E C I S I O N
 
         
 
              Employer,
 
                                                        F I L E D
 
         and
 
                                                       OCT 17 1989
 
         LIBERTY MUTUAL INS. CO.,
 
                                               IOWA INDUSTRIAL 
 
                                               COMMISSIONER
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
                           STATEMENT OF THE CASE
 
         
 
              Claimant appeals from an arbitration decision denying 
 
         permanent partial disability benefits as the result of an alleged 
 
         injury on June 25, 1986.  The record on appeal consists of the 
 
         transcript of the arbitration proceeding; claimant's exhibits 1 
 
         through 10; and defendants' exhibits A and B.  Defendants did not 
 
         file a brief on appeal.
 
         
 
                                  ISSUES
 
         
 
              Claimant states the following issues on appeal:
 
         
 
                     I.  The failure of defendants to timely supplement 
 
              their answers to interrogatories raises the question whether 
 
              their expert testimony should be admitted and the 
 
              commissioner would be within the scope of his discretion in 
 
              denying admission of testimony.
 
         
 
                    II.  Claimant has carried his burden of proof with 
 
              respect to the incident of June 25, 1986, being the cause of 
 
              his present disability and even if the expert testimony of 
 
              the defendants is admitted, it should be given little 
 
              weight.
 
         
 
                   III.  The Commissioner should adopt a "positional risk" 
 
              for employees whose employment subjects them to greater 
 
              stress than ordinary living.
 
         
 
                              REVIEW OF THE EVIDENCE
 
         
 
              The arbitration decision adequately and accurately reflects 
 
         the pertinent evidence and it will not be set forth herein.
 
                                                    
 
                                                             
 
         
 
                               APPLICABLE LAW
 
         
 
              Iowa Division of Industrial Services Rule 343-4.35
 
         states:
 
         
 
                   Rules of Civil Procedure.  The rules of civil procedure 
 
              shall govern the contested case proceedings before the 
 
              industrial commissioner unless the provisions are in 
 
              conflict with these rules and Iowa Code chapters 85, 85A, 
 
              85B, 86, 87 and 17A, or obviously inapplicable to the 
 
              industrial commissioner.  In those circumstances, these 
 
              rules or the appropriate Iowa Code section shall govern.  
 
              Where appropriate, reference to the word "court" shall be 
 
              deemed reference to the "industrial commissioner."
 
         
 
              Iowa Division of Industrial Services Rule 343-4.36 states:
 
         
 
                   Compliance with order or rules.  If any party to a 
 
              contested case or an attorney representing such party shall 
 
              fail to comply with these rules or any order of a deputy 
 
              commissioner or the industrial commissioner, the deputy 
 
              commissioner or industrial commissioner may dismiss the 
 
              action.  Such dismissal shall be without prejudice.  The 
 
              deputy commissioner or industrial commissioner may enter an 
 
              order closing the record to further activity or evidence by 
 
              any party for failure to comply with these rules or an order 
 
              of a deputy commissioner or the industrial commissioner.
 
         
 
              Iowa Rule of Civil Procedure 125 provides, in pertinent 
 
         part:
 
         
 
              Discovery of Experts....
 
         
 
              ....
 
         
 
              (c)  Duty to supplement discovery as to experts.  If a party 
 
              expects to call an expert witness when the identity or the 
 
              subject of such expert witness' testimony has not been 
 
              previously disclosed in response to an appropriate inquiry 
 
              directly addressed to these matters, such response must be 
 
              supplemented to include the information described in 
 
              subdivisions "a"(1)(A)-(C) of this rule, as soon as 
 
              practicable, but in no event less than thirty days prior to 
 
              the beginning of trial except on leave of court.  If the 
 
              identity of an expert witness and the information described 
 
              in subdivisions "a"(1)(A)-(C) are not disclosed in 
 
              compliance with this rule, the court in its discretion may 
 
              exclude or limit the testimony of such expert, or make such 
 
              orders in regard to the nondisclosure as are just.
 
         
 
                                     ANALYSIS
 
         
 
              Claimant's initial issue on appeal concerns the admission of 
 
         defendants' expert witness testimony.  Defendants were served 
 
                                                    
 
                                                             
 
         with interrogatories on January 21, 1987, which, among other 
 
         things, requested identification of any expert witnesses 
 
         defendants intended to rely on.  A prehearing conference was held 
 
         on January 22, 1988.  Subsequent to that conference, a hearing 
 
         assignment order was issued setting the hearing for April 27, 
 
         1988.  The order also required service of witness lists no later 
 
         than 15 days prior to the hearing.
 
         
 
              On February 23, 1988, claimant filed a motion to compel 
 
         answers to interrogatories.  On March 17, 1988, defendants filed 
 
         answers to the interrogatories, but did not identify expert 
 
         witnesses.
 
         
 
              On March 28, 1988, the parties orally agreed on a date and 
 
         time for an examination of claimant by defendants, expert in 
 
         question, Alan H. Fruin, M.D.  This conversation was later 
 
         confirmed by letter, and the examination took place on April 8, 
 
         1988.  On April 11, 1988, defendants received Dr. Fruin's report, 
 
         which was then served on claimant.  On April 13, 1988, claimant 
 
         received a list of defendants' witnesses, including Dr. Fruin. 
 
         Defendants did not formally supplement the interrogatory dealing 
 
         with expert witnesses until three days before the hearing.
 
         
 
              The parties appear to regard defendants' service of witness 
 
         lists on claimant on April 13, 1988, as timely and in compliance 
 
         with the hearing assignment order.  Claimant, however, argues 
 
         that defendants also had a duty to comply with Iowa Rule of Civil 
 
         Procedure 125(c), and supplement the interrogatory answers with 
 
         the name of Dr. Fruin no later than 30 days before the hearing. 
 
         Defendants clearly did not do so.
 
         
 
              The question then becomes whether defendants, having 
 
         provided claimant with Dr. Fruin's name as an expert witness for 
 
         the defense pursuant to the hearing assignment order, were also 
 
         obligated to comply with Iowa Rule of Civil Procedure 125(c) and 
 
         supplement the interrogatory answer dealing with expert 
 
         witnesses.
 
         
 
              It should be noted that claimant is not claiming surprise or 
 
         prejudice.  Claimant would not be able to do so, in light of the 
 
         formal notice of Dr. Fruin's testimony that was given to claimant 
 
         under the hearing assignment order, and claimant's own 
 
         participation in the scheduling of the examination by Dr. Fruin. 
 
         Rather, claimant relies on a technical noncompliance with Iowa 
 
         R.Civ.P. 125.
 
         
 
              Division of Industrial Services Rule 343-4.35 incorporates 
 
         the Iowa Rules of Civil Procedure for agency proceedings.  
 
         However, rule 4.35 also states that when a conflict between agency 
 
         rules and the rules of civil procedure exists, the agency rule 
 
         shall prevail.
 
         
 
              In the instant case, the 15 days before hearing requirement 
 
         is not set forth in an agency rule, so there is not a direct 
 
         conflict between an agency rule and a rule of civil procedure. 
 
                                                    
 
                                                             
 
         However, Division of Industrial Services Rule 343-4.36 provides 
 
         sanctions, including the exclusion of evidence, for noncompliance 
 
         with the order of a deputy.  Thus, the hearing assignment order 
 
         is given the force and effect of a rule under rule 4.36.
 
         
 
              Are Iowa R.Civ.P. 125(c) and the hearing assignment order 
 
         pursuant to Division of Industrial Services Rule 343-4.36 in 
 
         conflict with each other?  Both provide for discovery between 
 
         litigants.  Both relate to apprising opposing parties of expert 
 
         witnesses intended to be relied upon at the hearing.  It is clear 
 
         that the hearing assignment order requirement of exchanging 
 
         expert witness lists no later than 15 days before the hearing is 
 
         the functional corollary of Iowa R.Civ.P. 125(c).  Both rules 
 
         serve the same purpose, but impose differing time frames.  It 
 
         therefore appears that Iowa R.Civ.P. 125(c) and the hearing 
 
         assignment order pursuant to Division of Industrial Services Rule 
 
         343-4.36 are in conflict.  Pursuant to Division of Industrial 
 
         Services Rule 343-4.35, that conflict is resolved in favor of the 
 
         agency rule.  Rule 4.35 supplants rule of civil procedure 125(c) 
 
         for workers' compensation proceedings.
 
         
 
              It is noted that even if Iowa Rule of Civil Procedure 125(c) 
 
         were controlling, that rule provides that "the court in its 
 
         discretion may exclude or limit the testimony of such expert..." 
 
         (emphasis added).  Thus, the deputy was entitled to admit such 
 
 
 
 
 
                               
 
                                                             
 
         testimony even if rule 125(c) were applicable.  "Exclusion is 
 
         justified only when prejudice would result.  [The purpose of the 
 
         rule] is to avoid surprise to the litigants and to allow the 
 
         parties to formulate their positions on as much evidence as is 
 
         available."  Lambert v. Sisters of Mercy Health Corp., 369 N.W.2d 
 
         417 (Iowa 1985).  The deputy properly refused to exclude 
 
         defendants' expert witness for noncompliance with Iowa R.Civ.P. 
 
         125(c).
 
         
 
              The deputy made a finding that the blackout incident did not 
 
         arise out of the employment.  Claimant, however, states as an 
 
         issue on appeal whether claimant has shown a causal connection 
 
         between his present disability and the blackout incident.  In his 
 
         appeal brief, claimant appears to address the arising out of 
 
         issue.  Claimant's second issue on appeal is read to concern 
 
         whether his work injury arose out of his employment.
 
         
 
              The record contains the testimony of three physicians. 
 
         William Abraham, M.D., a resident internist, stated that no 
 
         causal connection between claimant's stroke and his work existed.  
 
         David G. Windsor, M.D., a psychiatrist, found a causal 
 
         connection.  Alan H. Fruin, M.D., a neurosurgeon, testified there 
 
         was no causal connection.  Dr. Fruin based his conclusion on the 
 
         claimant's history of mild strokes before the work injury, as 
 
         well as radiographic evidence of past cerebral vascular problems.  
 
         Dr. Abraham also noted the evidence of prior strokes in forming 
 
         his conclusion.  There is no indication in the record as to 
 
         whether Dr. Windsor has expertise or experience with strokes and 
 
         seizures.
 
         
 
              Dr. Fruin stated he had read claimant's depositions and was 
 
         familiar with claimant's activities leading up to the incident.  
 
         It can therefore be presumed that Dr. Fruin did not regard 
 
         claimant's sleep activities prior to the incident as a "prolonged" 
 
         deprivation of sleep.  The opinion of Dr. Fruin will be given the 
 
         greater weight.  Claimant has failed to establish a causal 
 
         connection between his present condition and his work injury.
 
         
 
              Claimant's final issue on appeal urges this agency to adopt 
 
         a "positional risk" approach.  Claimant appears to argue that 
 
         stress and anxiety connected with his work led to his blackout on 
 
         June 15, 1986.  Claimant's argument that "the normal person on 
 
         the street need not be concerned with overweight trailers, 
 
         loading procedures or time schedules" once again addresses the 
 
         question of whether claimant's blackout incident arose out of his 
 
         employment. The physicians whose testimony is in the record, 
 
         particularly that of Dr. Fruin, were based on medical histories 
 
         that related claimant's activities, including the stress of 
 
         adhering to a time schedule.  The greater weight of the medical 
 
         evidence fails to establish that these factors caused claimant's 
 
         blackout, as discussed above.
 
         
 
                               FINDINGS OF FACT
 
         
 
              1.  Claimant was an employee of defendant employer on June 
 
                                                    
 
                                                             
 
         25, 1986.
 
         
 
              2.  On June 25, 1986, claimant suffered a stroke or seizure 
 
         while employed by defendant employer.
 
         
 
              3.  Claimant had a history of strokes prior to June 25, 
 
         1986.
 
         
 
              4.  Claimant's stroke on June 25, 1986, was not caused by 
 
         his employment.
 
         
 
                             CONCLUSION OF LAW
 
         
 
              Claimant has failed to establish by the greater weight of 
 
         the evidence that the stroke he suffered on June 25, 1986, arose 
 
         out of his employment.
 
         
 
              WHEREFORE, the decision of the deputy is affirmed.
 
 
 
                                      ORDER
 
 
 
              THEREFORE, it is ordered:
 
 
 
              That claimant shall take nothing from these proceedings.
 
         
 
              That claimant shall pay the costs pursuant to Division of 
 
         Industrial Services Rule 343-4.33.
 
         
 
         
 
              Signed and filed this 17th day of October, 1989.
 
         
 
         
 
         
 
         
 
         
 
         
 
                                               DAVID E. LINQUIST
 
                                            INDUSTRIAL COMMISSIONER
 
         
 
         Copies To:
 
         
 
         Mr. C. R. Hannan
 
         Attorney at Law
 
         215 S. Main St.
 
         P.O. Box 1016
 
         Council Bluffs, Iowa  51502
 
         
 
         Mr. James E. Thorn
 
         Attorney at Law
 
         310 Kanesville Blvd.
 
         P.O. Box 398
 
         Council Bluffs, Iowa  51502
 
         
 
         
 
                                                             
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                            2906
 
                                            Filed October 17, 1989
 
                                            DAVID E. LINQUIST
 
         
 
                   BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         EUGENE CLARENCE NAMANNY,
 
         
 
              Claimant,
 
         
 
         vs.
 
                                                 File No. 828860
 
         STELLCO,
 
                                                   A P P E A L
 
              Employer,
 
                                                 D E C I S I 0 N
 
         and
 
         
 
         LIBERTY MUTUAL INS. CO.,
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
         2906
 
         
 
              Claimant served interrogatories on defendants which asked 
 
         for, among other items, the names of any experts to be relied on 
 
         at trial.  A hearing assignment order was also issued, requiring 
 
         defendants to identify witnesses within 15 days of the hearing. 
 
         Iowa Rule of Civil Procedure 125 provides, in part, that 
 
         defendants must supplement interrogatory answers in regards to 
 
         expert witnesses within 30 days of trial.
 
         
 
              Defendants complied with the hearing assignment order and 
 
         served notice of their expert on claimant within 15 days of the 
 
         hearing, but failed to supplement the interrogatory within 30 
 
         days.  Claimant acknowledged he had not been prejudiced by the 
 
         failure to supplement, but nevertheless asserted that technical 
 
         noncompliance justified barring the testimony.  Claimant appealed 
 
         the deputy's refusal to deny admission of the expert's 
 
         testimony.
 
         
 
              It was held that Division of Industrial Services Rule 
 
         343-4.36 and the hearing assignment order issued thereunder were 
 
         in conflict with Iowa R.Civ.P. 125.  Pursuant to rule 4.35, that 
 
         conflict was resolved in favor of the agency rule.  Compliance 
 
         with the agency rule negates the requirement to comply with rule 
 
         125 in respect to notice of expert witnesses.
 
         
 
         
 
         
 
 
 
                                                
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                  BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         
 
         EUGENE CLARENCE NAMANNY,
 
         
 
              Claimant,
 
         
 
         vs.
 
                                                    File No. 828860
 
         STELLCO,
 
                                                A R B I T R A T I O N
 
              Employer,
 
                                                    D E C I S I O N
 
         and
 
         
 
         LIBERTY MUTUAL INS.,CO.,
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
                              STATEMENT OF THE CASE
 
         
 
              This is a proceeding in arbitration brought by Eugene 
 
         Clarence Namanny, claimant, against Stellco, employer, and 
 
         Liberty Mutual Insurance Company, insurance carrier, for workers' 
 
         compensation benefits as a result of an alleged injury on June 
 
         25, 1986.  On April 27, 1988 a hearing was held on claimant's 
 
         petition and the matter was considered fully submitted at the 
 
         close of this hearing.
 
         
 
              The parties have submitted a prehearing report of: contested 
 
         issues and stipulations which was approved and accepted as a part 
 
         of the record of this case at the time of hearing.  Oral 
 
         testimony was received during the hearing from claimant and his 
 
         wife, LaDonna Namanny.  The exhibits received into the evidence 
 
         at the hearing are listed in the prehearing report.  According to 
 
         the prehearing report, the parties have stipulated to the 
 
         following matters:
 
         
 
              1.  Claimant is seeking temporary total disability or 
 
         healing period benefits from June 26, 1986 through the present 
 
         time and the defendants agree that claimant has not worked since 
 
         June 26, 1986.
 
         
 
              2.  If the injury is found to have caused permanent 
 
         disability, the type of disability is an industrial disability to 
 
         the body as a whole.
 
         
 
              3.  In the event of an award of weekly benefits, claimant's 
 
         rate of compensation shall be $194.38 per week.
 
         
 
              4.  All medical service providers whose bills were submitted 
 
         by claimant at the hearing would testify their charges and 
 
         treatments were fair and reasonable and defendants are not 
 
         offering contrary evidence.  It was also stipulated that the 
 
         bills submitted at hearing are causally connected to the medical 
 
         condition upon which the claim is based but that the issue of 
 
         their causal connection to any work injury remained an issue to 
 
         be decided.
 

 
         
 
         NAMANNY V. STELLCO     
 
         PAGE 2
 
 
 
              
 
              At hearing, ruling on claimant's motion to exclude from 
 
         consideration certain medical reports and depositions was taken 
 
         under advisement.  Claimant claims an alleged failure to timely 
 
         supplement a response to interrogatories seeking identification 
 
         of expert witnesses to be called at trial.  This interrogatory 
 
         was served upon defense counsel on January 21, 1987.  According 
 
         to Iowa Rule of Civil Procedure 125, a party must supplement such 
 
         responses within 30 days before trial or be subject to sanctions 
 
         which can include the exclusion of the expert witness evidence at 
 
         trial or such other orders as are just.  Claimant does not claim 
 
         surprise however.  According to the statements at hearing the 
 
         following chronology of events took place in the weeks prior to 
 
         the hearing in this case:
 
         
 
              On January 17, 1988 claimant informed defendants that they 
 
         would be obtaining an expert witness to support their claim, 
 
         however, they did not have such a witness at that time.  
 
         Defendants informed claimant at that time that should such 
 
         evidence materialize, they would secure their own expert.
 
         
 
              On January 22, 1988 a prehearing conference was held.  
 
         According to the notes of the prehearing deputy, the parties 
 
         indicated at that time that all medical reports were received and 
 
         exchanged and that ail depositions had been taken.  The matter 
 
         was then set for hearing on April 27, 1988 and an assignment 
 
         order was issued directing the parties to serve witness lists 
 
         upon each other no later than 15 days prior to hearing.
 
         
 
              At some time after February 6, 1988, claimant received a 
 
         favorable report from David Windsor, M.D., and served this report 
 
         upon defendants on February 22, 1988.
 
         
 
              On February 23, 1988 claimant filed a motion to compel 
 
         answers to interrogatories posed in January, 1987.
 
         
 
              On March 17, 1988 defendants answered the interrogatory but 
 
         failed to identify expert witnesses.
 
         
 
              On March 28, 1988 the parties orally set a time and place 
 
         for an independent medical examination of claimant by a physician 
 
         chosen by defendants, Alan Fruin, M.D.  The time and place of 
 
         examination was confirmed by letter dated March 29, 1988.  The 
 
         examination then took place on April 8, 1988.  On April 11, 1988 
 
         a report was sent by Dr. Fruin to defense counsel favorable to 
 
         the defense and it was served in accordance with agency rules.
 
         
 
              On April 13, 1988 claimant received a list of defendants' 
 
         witnesses to be called at hearing which included the expert 
 
         testimony of Dr. Fruin.
 
         
 
              On April 20, 1988 the deposition of William Abraham, M.D., 
 
         was taken by defendants and on April 22, 1988 the deposition of 
 
         Dr. Fruin was taken for purposes of offering the testimony at 
 
         trial.
 
         
 
              On April 26, 1988 defendants supplemented his responses to 
 
         interrogatories answered in February, 1988 by including Dr. Fruin 
 
         as an expert witness.
 
         
 
              In their resistance to claimant's motion, defendants contend 
 
         that the hearing assignment order concerning the service of 
 
         witness lists replaces the requirement of Rule 125 to identify 
 
         expert witnesses.  The defendants contend that according to 
 
         agency rules the the Iowa Rules of Civil Procedure are only 
 
         applicable if they are not inconsistent with agency rules and 
 
         orders.  Division of Industrial Services Rule 343-4.35.  In any 
 
         event, defendants claim that exclusion of such evidence would not 
 

 
         
 
         
 
         
 
         NAMANNY V. STELLCO
 
         PAGE   3
 
         
 
         
 
         be just under the circumstances considering claimant's belated 
 
         discovery of a favorable expert witness.
 
         
 
              The undersigned agrees with the defense and does not feel 
 
         that the exclusion of the evidence on the basis of noncompliance 
 
         with Rule 125 is appropriate or just in this case.  Defendants' 
 
         complaint that the hearing assignment order pertaining to service 
 
         of witness lists misled him as to the application of Rule 125 is 
 
         justified.  The current assignment order is confusing in light of 
 
         the newness of the rule and its possible application to workers' 
 
         compensation proceedings.  This agency should amend the 
 
         assignment order to clarify the apparent conflict between Rule 
 
         125 and the current order.
 
         
 
              Second, to the extent that claimant was prejudiced, the 
 
         source of the problem stems from claimant's own actions.  Despite 
 
         informing this agency otherwise at the prehearing conference, 
 
         claimant's discovery was not completed until after the prehearing 
 
         conference and after the hearing was scheduled which unfairly 
 
         restricted the time available to defendants to locate opposing 
 
         points of view.  This case has been pending before this agency 
 
         since October of 1986 and claimant chose not to seek responses to 
 
         discovery or a supportive medical opinion until February, 1988, 
 
         approximately 20 months after the filing of the petition.  
 
         Therefore, the motion to exclude defendants' evidence on the 
 
         basis of Rule 125 is denied.
 
         
 
              What concerns the undersigned the most, however, is not the 
 
         supplementation of response issue but the manner in which the 
 
         parties misled this agency in the assignment process.  Both 
 
         counsel indicated to the prehearing deputy, according to that 
 
         deputy's written notes contained in the agency file, that on 
 
         January 22, 1988, all medical reports were received and exchanged 
 
         and all depositions were taken.  In reliance upon those 
 
         statements, the matter was set for hearing. in actuality, 
 
         discovery was far from over and problems raised by claimant in 
 
         his motion are the result of this deception.  Had the parties 
 
         indicated the correct status of the case at the time of the 
 
         prehearing conference, the matter either would not have been 
 
         assigned or would have been assigned with further orders 
 
         governing subsequent discovery to ensure fairness to both 
 
         parties.
 
         
 
              The parties should be advised, especially claimant, that the 
 
         undersigned seriously contemplated, on his own motion, the 
 
         exclusion of ail evidence obtained after the prehearing 
 
         conference.  It was felt that deceiving this agency as to the 
 
         status of discovery in order to obtain a hearing date is not 
 
         conduct that should be condone.  However, the prehearing deputy 
 
         who conducted the conference has left this agency and he could 
 
         not be consulted on this matter.  Therefore, for this reason and 
 
         this reason alone, the undersigned will reluctantly allow the 
 
         evidence obtained subsequent to the prehearing conference into 
 
         the record.
 
         
 
                                      ISSUES
 
         
 
              The parties submitted the following issues for determination 
 
         in this proceeding:
 
         
 
              I.  Whether claimant received an injury arising out of and 
 
         in the course of employment;
 
         
 

 
         
 
         
 
         
 
         NAMANNY V. STELLCO
 
         PAGE   4
 
         
 
         
 
             II.  Whether there is a causal relationship between the work 
 
         injury and the claimed disability;
 
         
 
            III.  The extent of weekly disability benefits to which 
 
         claimant is entitled; and,
 
         
 
             IV.  The extent of claimant's entitlement to medical benefits 
 
         under Iowa Code section 65.27.
 
         
 
                             SUMMARY OF THE EVIDENCE
 
         
 
              The following is a summary of evidence presented in this 
 
         case.  For the sake of brevity, only the evidence most pertinent 
 
         to this decision is discussed.  Whether or not specifically 
 
         referred to in this summary, all of the evidence received at the 
 
         hearing was considered in arriving at this decision.  As will be 
 
         the case in any attempted summarization, conclusions about what 
 
         the evidence offered may show are inevitable.  Such conclusions, 
 
         if any, in the following summary should be considered as 
 
         preliminary findings of fact.
 
         
 
              Claimant testified that he worked for Stellco from July, 
 
         1985 until the date of the alleged injury on June 25, 1986.  He 
 
         stated that his duties consisted of interstate truck driving of 
 
         an 18 wheeled semi tractor trailer truck.  Claimant drove as a 
 
         part of a two person team consisting of himself and his wife.
 
         
 
              Claimant and his wife testified as follows with reference to 
 
         the events leading up to a loss of consciousness while operating 
 
         the truck on the evening of June 25, 1986:
 
         
 
              On the afternoon of June 23, 1986, claimant and his wife 
 
         arrived at a loading dock at Davenport, Iowa.  Claimant's truck 
 
         was then loaded with freight but claimant felt that the loading 
 
         was done improperly.  After an argument ensued in which claimant 
 
         threatened to complain to the dispatcher, the truck was reloaded 
 
         and claimant left the dock at 1:00 or 2:00 a.m. for Denver, 
 
         Colorado.  Claimant testified that he would have left around 6:00 
 
         or 7:00 p.m. earlier that evening had the loading been properly 
 
         done the first time.  Enroute to Denver claimant stopped at his 
 
         residence in Iowa which is located only 25 miles from the 
 
         interstate.  Claimant and his wife testified that they stopped 
 
         for the purpose of changing and washing their clothes.  Claimant 
 
         and his wife stated that they left their residence for Denver at 
 
         4:30 p.m. in the afternoon of June 24 and arrived the next day 
 
         after driving all night in Denver at 5:00 a.m.  Claimant said 
 
         that his truck was unloaded around 8:00 a.m. on June 25, 1986 and 
 
         claimant and his wife waited at a truckstop for orders to the 
 
         next destination.  As claimant and his wife were driving as a 
 
         team, they shared their driving responsibilities on the 24th and 
 
         25th of June.
 
         
 
              Claimant and his wife stated that at approximately 1:00 in 
 
         the afternoon on June 25, 1986 after claimant and his wife had 
 
         eaten a noon lunch, they received orders to return to the dock 
 
         where he had been that morning.  Claimant said that he then 
 
         attempted to sleep in the truck sleeper but could not because of 
 
         the hot and humid temperatures.  Claimant testified that he 
 
         arrived at the loading dock at 5:00 p.m.  He stated that he again 
 
         had an argument or discussion with the dock personnel as he 
 
         believed that the load was again loaded improperly and that he 
 
         was overweight.  After leaving the dock at 7:30 p.m. claimant 
 
         stated that he weighed his truck on a nearby scale and found, as 
 

 
         
 
         
 
         
 
         NAMANNY V. STELLCO
 
         PAGE   5
 
         
 
         
 
         he had suspected, that the truck was overweight.  He then cranked 
 
         the dolly down on the trailer to remove weight from the back of 
 
         the truck and adjusted, with the help of his wife, the location 
 
         of the "fifth wheel" or the connection between the truck trailer 
 
         and tractor.  According to claimant this adjustment would place 
 
         more of the trailer weight on the front wheels and remove the 
 
         excess load on the rear wheels of the tractor.  After adjusting 
 
         the fifth wheel, claimant returned the truck and drove only a few 
 
         feet before he blacked out.  Claimant's wife who was riding in 
 
         the truck observed claimant lose consciousness and after 
 
         attempting to revive him, sought help.  Claimant was then 
 
         transported to the hospital.
 
         
 
              Testing and treatment of claimant at the hospital was 
 
         received from William Abraham, M.D., a resident internist "in 
 
         training" at the time.  Dr. Abraham in his reports indicated that 
 
         claimant suffered a "first time seizure or epileptic fit" which 
 
         the doctor explained is an electrical dysfunction of the brain.  
 
         Dr. Abraham stated in his report and in his deposition that there 
 
         was no clear medical cause for such seizures.  The doctor 
 
         observed from diagnostic imaging that claimant had small lacunes 
 
         or small strokes, which appear to have preexisted June 25, 1986 
 
         and were probably a predisposing factor to the seizure.  The 
 
         doctor found no evidence of any recent cerebral vascular incident 
 
         or blood clot.  The doctor also stated that symptoms of right 
 
         sided weakness, facial droop and visual field dysfunction were 
 
         not apparent at the time claimant left the hospital after this 
 
         first seizure incident.  In his reports and deposition Dr. 
 
         Abraham does not find a causal link between claimant's employment 
 
         activities before the seizure and the seizure as he felt that 
 
         such event occurred on a random basis.
 
         
 
              Claimant was examined by David G. Windsor, M.D., a 
 
         psychiatrist, on May 30, 1987.  According to his report of 
 
         February 6, 1988, Dr. Windsor found a causal relationship of 
 
         claimant's seizure to his work and labeled the event of June 25, 
 
         1986 as a stroke causes by excessive, unusual exertion on the job 
 
         which aggravated and accelerated his prior existing condition.
 
         
 
              Claimant was also examined by a board certified 
 
         neurosurgeon, Alan H. Fruin, M.D.  Dr. Fruin is the associate 
 
         dean of the Creighton University School of Medicine and teaches 
 
         neurosurgery.  It was Dr. Fruin's diagnosis that claimant did not 
 
         suffer a cerebral vascular accident on June 25, 1986 but 
 
         generalized spontaneous seizure unrelated to his work activity or 
 
         any other activity or stress.  His opinion is based upon a 
 
         history of mild strokes before June, 1986 and radiographic 
 
         evidence which revealed old but not any recent cerebral vascular 
 
         problems.  The doctor explained that claimant's high blood 
 
         pressure at the time of the seizure was due to the seizure and 
 
         not the cause of the seizure.  The doctor also stated that there 
 
         was no history or prolonged sleep deprivation or prolonged 
 
         fasting prior to the incident.  The doctor stated that he read 
 
         all of claimant's depositions and past medical reports and the 
 
         report from Dr. Windsor.
 
         
 
              Claimant's appearance and demeanor at the hearing indicated 
 
         that he and his wife were testifying truthfully.
 
         
 
              I.  Claimant has the burden of proving by a preponderance of 
 
         the evidence that claimant received an injury which arose out of 
 
         and in the course of employment.  The words "out of" refer to the 
 
         cause or source of the injury.  The words "in the course of" 
 

 
         
 
         
 
         
 
         NAMANNY V. STELLCO
 
         PAGE   6
 
         
 
         
 
         refer to the time and place and circumstances of the injury.  
 
         See Cedar Rapids Community Sch. v. Cady, 278 N.W.2d 298 (Iowa 
 
         1979); Crowe v. DeSoto Consol. Sch. Dist., 246 Iowa 402, 68 
 
         N.W.2d 63 (1955).  An employer takes an employee subject to any 
 
         active of dormant health impairments, and a work connected injury 
 
         which more than slightly aggravates the condition is considered 
 
         to be a personal injury.  Ziegler v. United States Gypsum Co., 
 
         252 Iowa 613, 620, 106 N.W.2d 591 (1960) and cases cited 
 
         therein.
 
         
 
              In the case sub judice, the preponderance of the evidence 
 
         does not favor claimant's case.  Although the views of Dr. 
 
         Windsor were considered and viewed as important, they cannot 
 
         outweigh the views of Dr. Abraham and especially those of Dr. 
 
         Fruin.  Dr. Fruin is a board certified specialist in surgical 
 
         diseases of the brain.  What background and experience Dr. 
 
         Windsor may have in the field of neurosurgery or seizures or 
 
         strokes.is unknown.  Therefore, although claimant and his wife 
 
         were certainly credible and obviously worthy, hard working 
 
         citizens, the medical evidence presented was simply too scant to 
 
         support their claim.  Claimant contends that Dr. Fruin's opinions 
 
         should be rejected due to an incorrect history of no sleep or 
 
         food deprivation before the seizure.  The undersigned cannot 
 
         agree.  Dr. Fruin was well aware of the facts leading up to 
 
         seizure because he had read claimant's deposition.  Dr. Fruin 
 
         used the words "no prolonged" sleep or food deprivation.  It is 
 
         clear that he considered the events prior to claimant's seizure 
 
         as insufficient to precipitate the event.
 
         
 
              Therefore, this deputy commissioner, no matter how much he 
 
         would like to award benefits to all persons who come before him 
 
         especially to the type of people exhibited by claimant and his 
 
         wife, he has an obligation to people of Iowa and his profession 
 
         to make decisions on the record presented.  This deputy has no 
 
         choice but deny claimant's claim.
 
         
 
              However, as claimant and his wife appeared credible and 
 
         their case was at least arguable, the cost of this action will be 
 
         awarded to them.
 
         
 
                                 FINDINGS OF FACT
 
         
 
              1.  Claimant was a credible witness.
 
         
 
              2.  Claimant was in the employ of Stellco at all times 
 
         material herein.
 
         
 
              3.  On June 25, 1986, claimant suffered a seizure or 
 
         epileptic fit, the cause of which is unknown and probably a 
 
         spontaneous event or a spontaneous electrical disturbance of the 
 
         brain as a result of prior mild strokes and prior cerebral 
 
         vascular incidents which occurred before June 25, 1986.
 
         
 
              4.  It could not be found that claimant's seizure arose out 
 
         of and in the course of his employment.
 
         
 
                                CONCLUSIONS OF LAW
 
         
 
              Claimant has failed to establish by a preponderance of the 
 
         evidence entitlement to disability or medical benefits.
 
         
 
                                      ORDER
 
         
 

 
         
 
         
 
         
 
         NAMANNY V. STELLCO
 
         PAGE   7
 
         
 
         
 
              1.  Claimant's petition is denied.
 
         
 
              2.  Defendants shall pay the cost of this action pursuant to 
 
         Division of Industrial Services Rule 343-4.33.
 
         
 
         
 
              Signed and filed this 5th day of August, 1988.
 
         
 
         
 
         
 
         
 
                                           LARRY P. WALSHIRE
 
                                           DEPUTY INDUSTRIAL COMMISSIONER
 
         
 
         
 
         
 
         Copies To:
 
         
 
         Mr. C. R. Hannan
 
         Attorney at Law
 
         215 South Main St.
 
         P. O. Box 1016
 
         Council Bluffs, Iowa 51502
 
         
 
         Mr. James E. Thorn
 
         Attorney at Law
 
         P. O. Box 398
 
         Council Bluffs, Iowa 51502
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                                  1108
 
                                                  Filed August 5, 1988
 
                                                  LARRY P. WALSHIRE
 
         
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         EUGENE CLARENCE NAMANNY,
 
          
 
             Claimant,
 
         
 
         vs.
 
                                                   File No. 828860
 
         STELLCO,
 
                                                A R B I T R A T I O N
 
              Employer,
 
                                                   D E C I S I O N
 
         and
 
         
 
         LIBERTY MUTUAL INS. CO.,
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
         
 
         1108
 
         
 
              Claimant failed to demonstrate that his seizure was work 
 
         related due to insufficient medical evidence to provide a causal 
 
         link between the seizure and his work activities immediately 
 
         prior to the seizure.
 
         
 
 
         
 
 
 
 
 
 
 
 
 
 
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         DONALD C. STOUT,
 
         
 
              Claimant,                                File No. 829156
 
         
 
         vs.                                        A R B I T R A T I O N
 
         
 
         VIVIAN'S TAP,                                 D E C I S I O N
 
         
 
              Employer,
 
                                                         F I L E D
 
         and
 
                                                         MAR 27 1990
 
         UNITED FIRE AND CASUALTY,
 
                                                     INDUSTRIAL SERVICES
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
                                   INTRODUCTION
 
         
 
              This is a proceeding in arbitration brought by Donald C. 
 
         Stout, claimant, against Vivian's Tap, employer, and United Fire 
 
         and Casualty Company, insurance carrier, defendants, for benefits 
 
         as the result of an alleged injury which occurred on July 25, 
 
         1986.  A hearing was held in Davenport, Iowa, on August 14, 1989, 
 
         and the case was fully submitted at the close of the hearing. 
 
         Claimant was represented by John O. Moeller.  Defendants were 
 
         represented by Larry L. Shepler.  The evidence consists of the 
 
         testimony of Donald C. Stout, claimant; joint exhibits 1 through 
 
         12 and 14 through 33; and claimant's exhibits 34 to 40.  The 
 
         deputy ordered a transcript of the hearing.  Claimant's attorney 
 
         submitted a good posthearing brief.  Defendants' attorney did not 
 
         submit a posthearing brief.
 
         
 
                              OBJECTION TO EXHIBITS
 
         
 
              Defendants' counsel objected to joint exhibits 13 and 13A 
 
         because they were not served until August 11, 1989, three days 
 
         prior to the hearing, in violation of paragraph six of the 
 
         hearing assignment order which requires that all written exhibits 
 
         are to be served on opposing parties not later than 15 days prior 
 
         to hearing.  Claimant's counsel admitted that the exhibits were 
 
         served late due to the oversight of both parties.  Defendants' 
 
         objection was sustained and joint exhibits 13 and 13A were not 
 
         admitted into evidence.  Claimant's counsel requested that they 
 
         remain with the record as an offer of proof and this request was 
 
         granted; however, they will not be considered in the 
 
         determination of the issues in this case.
 
         
 
                                   STIPULATIONS
 
         
 
              The parties stipulated to the following matters at the time 
 
         of the hearing:
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              That an employer-employee relationship existed between 
 
         claimant and employer at the time of the alleged injury.
 
         
 
              That the injury was the cause of temporary disability; that 
 
         claimant was off work from July 25, 1986 to December 6, 1986; and 
 
         that in the event it is determined that claimant sustained a 
 
         compensable injury, then claimant is entitled to temporary 
 
         disability benefits for that period of time.
 
         
 
              That the type of permanent disability, if the injury is 
 
         found to be a cause of permanent disability, is industrial 
 
         disability to the body as a whole.
 
         
 
              That the commencement date for permanent disability 
 
         benefits, in the event such benefits are awarded, is December 7, 
 
         1986.
 
              
 
              That the rate of compensation, in the event of an award, is 
 
         $139.06 per week.
 
              
 
              That the provider of medical supplies and services would 
 
         testify that their charges are reasonable and were incurred for 
 
         reasonable and necessary medical treatment and defendants are not 
 
         offering contrary evidence.
 
         
 
              That the causal connection of the medical expenses to 
 
         treatment for a medical condition upon which claimant is now 
 
         basing his claim is admitted, but that the causal connection of 
 
         this condition to a work injury remains an issue to be decided in 
 
         these proceedings.
 
         
 
              That defendants make no claim for credit for employee 
 
         nonoccupational group health plan benefits or workers' 
 
         compensation benefits paid to claimant prior to hearing.
 
         
 
              That there are no bifurcated claims.
 
         
 
                                      ISSUES
 
         
 
              The parties submitted the following issues for determination 
 
         at the time of the hearing:
 
         
 
              Whether claimant sustained an injury on July 25, 1986, which 
 
         arose out of and in the course of employment with employer.
 
         
 
              Whether the alleged injury was the cause of permanent 
 
         disability.
 
         
 
              Whether claimant is entitled to either temporary or 
 
         permanent disability benefits, and if so, the extent of benefits 
 
         to which he is entitled.
 
         
 
              Whether claimant is entitled to medical benefits.
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
                             SUMMARY OF THE EVIDENCE
 
         
 
              Claimant, born August 23, 1925, was 60 years old at the time 
 
         of the alleged injury and 63 years old at the time of the 
 
         hearing. He testified that he was 6 feet 6 inches tall and 
 
         weighed 212 pounds.  He completed, "11--12 and a half grades high 
 
         school."  He started to work for employer, Vivian Conklin, when 
 
         she took over this business in September or October of 1974; he 
 
         has continued to work there for some 15 years; and he was still 
 
         employed there at the time of the hearing.  Prior employments are 
 
         parts man, parts assistant manager, and service manager for an 
 
         automobile dealership; machinist work and machinist shop foreman 
 
         work; and construction work (transcript pages 15-18).  Claimant 
 
         described his duties on July 25, 1986, as a general manager, 
 
         bartender and general repairman at this neighborhood bar.  He 
 
         took care of all the money, purchased food and supplies, repaired 
 
         things which. broke, and prepared free lunches for weekends and 
 
         Monday nights. He worked directly for the owner.  His home was 20 
 
         blocks north and 8 blocks east of the tavern.  The bar did not 
 
         have adequate facilities and therefore, he laundered the towels, 
 
         prepared the free lunches and handled the money at his home.
 
         
 
              Employer provided a payroll check cashing service for their 
 
         patrons primarily on Thursday and Friday and some on Saturday of 
 
         each week.  The volume of these checks amounted to $20,000 to 
 
         $25,000 per weekend.  On Friday mornings, claimant would go to 
 
         the tavern and pick up the checks that had been cashed Thursday 
 
         night and Friday morning.  He took these home, ran tapes on them, 
 
         and determined how much cash and what denominations employer 
 
         would need for the rest of the weekend and communicated these 
 
         money needs to the bank.  He then picked up the money at the 
 
         bank, the sandwiches and laundry at his home and took them to the 
 
         bar.  On Thursdays, the amount of money needed to cash checks 
 
         amounted to between $8,000 and $10,000 each week (tr. pp. 18-26).
 
         
 
              On Friday, July 25, 1986, claimant made a trip to the store 
 
         and picked up groceries.  He made another trip to pick up 
 
         automobile parts.  He made a third trip to the bank where he 
 
         picked up $4,000 to $4,300 in cash for the bar and returned home. 
 
         He left this money locked up in his truck  There was another 
 
         $2,300 in cash that he intended to use at the bar on the weekend 
 
         which was hidden in a chair in his kitchen.
 
         
 
              Claimant testified that his house was double locked.  It 
 
         showed no signs of forced entry after he returned home the third 
 
         time on that Friday morning.  Nevertheless, when he entered his 
 
         house, a person, "...stepped out of my bedroom and says where is 
 
         the money and he had a chrome 25 automatic in my face."  (tr. pp. 
 
         26-29).  This individual was wearing a brown ski mask, brown knit 
 
         wool gloves, a coat and dark colored pants.
 
         
 
              The intruder made him take off his clothes and lie down on 
 
         the floor while he searched his clothing.  The intruder could not 
 
         find any money.  This individual then zapped him with an electric 
 
         zapper to try to force him to tell him where the money was, but 
 
         claimant did not disclose where the money was.  Claimant said 
 
         that the robber had already found the $2,300 in cash in the 
 
         kitchen before he came home the third time.  However, the robber 
 
         did not take his truck which had the other $4,000 to $4,300 in 
 
         cash in it.  The robber then took all of his keys and locked him 
 
         out of the kitchen into an upstairs hallway.  When it sounded 
 
         like the robber had left, claimant kicked the door open and 
 
         reached for his gun, which he kept on the refrigerator; however, 
 
         the gun was gone.  When claimant turned around the robber was 
 
         still there and fired three shots, one of which struck claimant 
 
         in the left shoulder.  The robber then fled the scene (tr. pp. 29 
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         & 30).
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              Claimant put on his shorts and put a towel on his gunshot 
 
         wound and ran down the street a half a block to his daughter's 
 
         house.  She called the police and called an ambulance for 
 
         claimant and he was taken to the hospital.
 
         
 
              Claimant asserted that the same man attempted to rob him in 
 
         a similar manner outside his house in December of 1985, just 
 
         before Christmas.  On that occasion the man made him strip, but 
 
         again found no money in his clothes.  Claimant believed the man 
 
         had the same brown mask, same brown gloves and the same weapon 
 
         (tr. pp. 30 & 31).
 
         
 
              Claimant related that nothing else was taken other than the 
 
         cash and three of his guns.  None of his other personal property 
 
         was missing or taken.  The intruder removed the three guns and 
 
         cash in a plastic Eagles shopping bag.  The assailant specified 
 
         that he wanted the "money" as opposed to "give your wallet." 
 
         Claimant testified that he had a lot of other valuable personal 
 
         property in his house which was easily transportable (tr. p. 34).
 
         
 
              Claimant acknowledged that he also injured his left shoulder 
 
         in a boating accident in 1984, but he was 98 percent healed and 
 
         about to be released from the doctor.  The boating accident 
 
         injured the outer portion whereas the gunshot wound injured the 
 
         midclavicle portion of his shoulder (tr. pp. 36-38).
 
         
 
              Claimant states that he earns less money now because he took 
 
         early retirement two years ago (tr. pp. 37-38).  Claimant 
 
         asserted that he still has pain, difficulty in reaching and 
 
         lifting, and a decrease of strength in his left hand (tr. p. 40).  
 
         Claimant testified that his treatment for the gunshot wound 
 
         stopped near the end of 1986 and he has not sought any treatment 
 
         for the gunshot wound since then (tr. pp. 40 & 41).
 
         
 
              Claimant related that employer approved his activities of 
 
         food preparation, laundering the bar towels and money handling at 
 
         his home and the insurance carriers were advised of this method 
 
         of operation (tr. pp. 41-42).
 
         
 
              Claimant said he only bruised his left shoulder at the time 
 
         of the boating accident, but did acknowledge that eventually an 
 
         arthrogram was done (tr. pp. 56-60).
 
         
 
              Claimant estimated that he worked approximately 20 hours at 
 
         the bar on the premises and approximately another 30 or 40 hours 
 
         off the premises (tr. p. 75).  Claimant further testified that 
 
         they have handled the money and the laundry in this fashion ever 
 
         since the bar opened in 1974.  The lunch procedure was only about 
 
         five years old.  Claimant and employer still follow that same 
 
         procedure with respect to money handling, but some of the food 
 
         preparation procedures were reduced (tr. pp. 76 & 77).
 
         
 
              The hospital records verify that claimant was treated for a 
 
         gunshot wound on July 25, 1986 (Jt. ex. 1-3).
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              Claimant's personal physician, L.J. Twyner, M.D., had 
 
         claimant evaluated by Edwin A. Day, M.D.  As a result of this 
 
         consultation, an arch aortogram, left subclavian angiogram and 
 
         left upper extremity venogram, performed by R.W. Hartung, M.D., 
 
         concluded, "No vascular abnormality demonstrated."  (jt. ex., 
 
         48). Dr. Twyner also had claimant evaluated by R. Roski, M.D., a 
 
         neurosurgeon (jt. ex. 9).
 
         
 
              R.G. Collier, M.D., a general surgeon, excised the bullet 
 
         and debrided the point of exit (jt. exs. 10 & 11).  When claimant 
 
         was discharged from the hospital on July 29, 1986, Dr. Twyner 
 
         stated, "At the time of discharge it was felt by Dr. Roski that 
 
         the patient should get complete or near complete return of 
 
         function of the left arm."  (jt. ex. 12).
 
         
 
              The medical records show the injury from the boating 
 
         accident which occurred in August of 1984 as well as the gunshot 
 
         injury (jt. exs. 16 & 16a & 19a).  Claimant contended the left 
 
         shoulder injury was caused by the boating accident, but Dr. 
 
         Sinning said claimant was not receptive to the idea of changes 
 
         caused by aging and degeneration (jt. ex. 19d).  On April 9, 
 
         1985, John R. Sinning, M.D., a neurosurgeon, diagnosed 
 
         subacromial bursitis, left shoulder (jt. ex. 19c).  Dr. Sinning 
 
         continued to diagnose subacromial bursitis of the left shoulder 
 
         on September 6, 1985 (jt. exs. 25 & 25a).  There was limitation 
 
         of motion in the left shoulder on March 19, 1986 (jt. ex. 19f).  
 
         Dr. Sinning recommended a left shoulder arthrogram on May 2, 1986 
 
         (jt. ex. 23).  The radiologist said that the left shoulder 
 
         arthrogram performed for Dr. Sinning on June 11, 1986 showed,a 
 
         "normal left shoulder arthrogram." (jt. ex. 29).  On June 23, 
 
         1986, Dr. Sinning said it disclosed some anterior impingement 
 
         (jt. ex. 24).
 
         
 
              On May 16, 1985, Stephen C. Rasmus, M.D., a neurologist, 
 
         reported to Dr. Twyner that his neurological examination showed 
 
         limitation of neck movement and shoulder pain with passive range 
 
         of motion.  Dr. Rasmus said, "I am sure he has some arthritis of 
 
         the left shoulder." (jt. exs. 26 & 26a).  On August 27, 1985, Dr. 
 
         Rasmus said, "There is pain in the left shoulder with crepitus."
 
         
 
              Claimant's long-standing complaints of lumbar pain and 
 
         cervical pain for which he first saw Dr. Sinning initially on 
 
         June 27, 1979, were treated extensively and evaluated by D.D. 
 
         Stierwalt, D.C., on June 10, 1986, but claimant's left shoulder 
 
         was not included in this treatment or evaluation (jt. exs. 19, 30 
 
         & 32).
 
         
 
              Dr. Twyner completed a surgeon's report on October 22, 1986, 
 
         in which he answered the question, "Permanent defect?" by writing 
 
         a question mark in the blank space behind the question (jt. ex. 
 
         17).  Dr. Collier completed a surgeon's report on August 20, 
 
         1986, in which he answered this question, "No" indicating that he 
 
         did not expect any permanent defect (jt. ex. 18).
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
              Claimant submitted the following medical expenses for the 
 
         alleged injury of July 25, 1986:
 
         
 
            PAYEE                                              AMOUNT
 
         
 
         Mercy Hospital                                     $ 3,062.97
 
         July 25-29, 1986
 
         Hospitalization and surgery
 
         
 
         Mercy Hospital                                         415.00
 
         October 8-27, 1986
 
         Physical Therapy
 
         
 
         Mercy Hospital                                         215.00
 
         November 20, 1987
 
         EMG
 
         
 
         Robert S. Collier, M.D.                                170.00
 
         July 25, 1986
 
         Surgical Services
 
         
 
         Radiology Group, P.C., S.C.                            826.50
 
         July 25, 1986
 
         Radiology Services
 
         
 
         Richard A. Roski, M.D.                                 189.00
 
         July 26, 1986 - November 3, 1986
 
         Neurological Consultation
 
         
 
         L.J. Twyner, M.D.                                      244.00
 
         July 30, 1986 - October 28, 1986
 
         Office Visits.
 
         
 
                                                  TOTAL      $5,122.47
 
                                            
 
                           APPLICABLE LAW AND ANALYSIS
 
         
 
              An employee is entitled to compensation for any and all 
 
         personal injuries which arise out of and in the course of the 
 
         employment.  Section 85.3(1).
 
         
 
              Claimant has the burden of proving by a preponderance of the 
 
         evidence that he received an injury on July 25, 1986, which arose 
 
         out of and in the course of his employment.  McDowell v. Town of 
 
         Clarksville, 241 N.W.2d 904 (Iowa 1976); Musselman v. Central 
 
         Telephone Co., 261 Iowa 352, 154 N.W.2d 128 (1967).
 
         
 
              The injury must both arise out of and be in the course of 
 
         the employment.  Crowe v. DeSoto Consol. Sch. Dist., 246 Iowa 
 
         402, 68 N.W.2d 63 (1955) and cases cited at pp. 405-406 of the 
 
         Iowa Report.  See also Sister Mary Benedict v. St. Mary's Corp., 
 
         255 Iowa 847, 124 N.W.2d 548 (1963) and Hansen v. State of Iowa, 
 
         249 Iowa 1147, 91 N.W.2d 555 (1958).
 
         
 
              The words "out of" refer to the cause or source of the 
 
         injury.  Crowe, 246 Iowa 402, 68 N.W.2d 63 (1955).
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              The words "in the course of" refer to the time and place and 
 
         circumstances of the injury.  McClure v. Union et al. Counties, 
 
         188 N.W.2d 283 (Iowa 1971); Crowe, 246 Iowa 402, 68 N.W.2d 63 
 
         (1955).
 
         
 
              "An injury occurs in the course of the employment when it is 
 
         within the period of employment at a place the employee may 
 
         reasonably be, and while he is doing his work or something 
 
         incidental to it."  Cedar Rapids Comm. Sch. Dist. v. Cady, 278 
 
         N.W.2d 298 (Iowa 1979), McClure, 188 N.W.2d 283 (Iowa 1971); 
 
         Musselman, 261 Iowa 352, 154 N.W.2d 128 (1967).
 
         
 
              Iowa Code section 85.61(6) provides as follows:
 
         
 
              The words "personal injury arising out of and in the course 
 
              of the employment" shall include injuries to employees whose 
 
              services are being performed on, in, or about the premises 
 
              which are occupied, used, or controlled by the employer, and 
 
              also injuries to those who are engaged elsewhere in places 
 
              where their employer's business requires their presence and 
 
              subjects them to dangers incident to the business.
 
         
 
              Lawyer and Higgs, Iowa Workers' Compensation--Law & 
 
         Practice, 6-1, provides, "Emphasis is placed on whether the 
 
         employee is furthering the employer's business; whether or not 
 
         the task is common to the job or outside the usual employment 
 
         duties."
 
         
 
              An injury occurs in the course of employment when it is 
 
         within the period of employment at a place where the employee 
 
         reasonably may be performing his duties, and while he is 
 
         fulfilling those duties or engaged in doing something incidental 
 
         thereto.  McMullin v. Department of Revenue, 437 N.W.2d 596 (Iowa 
 
         Appeals 1989).
 
         
 
              With respect to arising out of employment or caused by 
 
         employment, the evidence is clear that claimant was performing 
 
         his normal duties for employer at the time of the robbery.  
 
         Employer and claimant had followed this method of handling the 
 
         money and laundry since the tavern opened in 1974.  Claimant had 
 
         picked up the money at the bank which was to be used to cash 
 
         checks on Friday.  He returned home to pick up the clean towels 
 
         which he had laundered and the lunches he had prepared to serve 
 
         at the bar. Claimant had been performing these same tasks in the 
 
         same manner, since the bar opened and he went to work for 
 
         employer in 1974 and there was absolutely no evidence that this 
 
         was unauthorized or unusual in any way.  Claimant clearly was not 
 
         performing any personal business or any business for anyone else 
 
         at the time of the robbery.
 
         
 
              The fact that employer handled large amounts of money on 
 
         Thursday and Friday to cash payroll checks for employees of 
 
         several employers in the vicinity was a well known fact to 
 
         several people simply from observation alone.  The fact that 
 
         claimant handled this money and transported it to and from the 
 
         bar and to and from the bank was equally as well known.  The fact 
 
         that the robber said give me the money, rather than give me your 
 
         wallet, or give me your valuables, shows that he was looking for 
 
         employer's money.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              The fact that the robber continued to wait for claimant to 
 
         come home, even after he had found the $2,300 in cash indicates 
 
         that he was waiting to find even more of employer's money which 
 
         claimant was taking to the bar to use to cash payroll checks on 
 
         Friday.  The fact that he put claimant's guns in the bag would 
 
         indicate that he did not want them available for claimant to use 
 
         against him and furthermore, since the intruder is engaged in 
 
         criminal activities, i.e., robbery, this demonstrates his 
 
         proclivity for weapons.  Claimant testified that there are 
 
         numerous other valuable possessions in the house which the robber 
 
         did not put in the bag either before or after claimant returned 
 
         home.  When allegedly the same man made a robbery attempt in 
 
         December of 1985, he asked for the money again at that time.
 
         
 
              Therefore, the weight of the evidence establishes that the 
 
         robbery and the injury of being shot in the left shoulder in the 
 
         course of the robbery, arose out of claimant's employment with 
 
         employer as the sole person in the enterprise which handled the 
 
         money for the business establishment.  The fact that the robbery 
 
         occurred on Friday, which was a payroll check cashing day, 
 
         further establishes that the injury arose out of claimant's 
 
         employment. The fact that claimant handled as much as $20,000 to 
 
         $25,000 on a weekend and $8,000 to $10,000 in one day adds to the 
 
         conclusion that claimant was a target of this robber due to his 
 
         employment. There was no evidence that the assailant asked for or 
 
         stole any of claimant's personal money or personal property, 
 
         other than the three guns.
 
         
 
              With respect to in the course of employment or place of 
 
         employment, the fact that the robbery occurred at claimant's 
 
         house is not significant because claimant testified that he has 
 
         been counting the money and making up the deposit at his home as 
 
         well as estimating the next days cash needs for cashing checks 
 
         since the business began in 1974.  He explained that there is no 
 
         appropriate place at the bar to lay out, sort, count and handle 
 
         such large sums of money.  He further testified that there are no 
 
         laundry facilities at the bar and there is no place to adequately 
 
         prepare food at the bar.  Claimant's testimony was not rebutted, 
 
         controverted, contradicted or refuted.  Defendants called no 
 
         witnesses and introduced no separate exhibits.  Consequently, it 
 
         is determined that this injury occurred in the course of 
 
         claimant's employment with employer.  Claimant was injured while 
 
         engaged elsewhere in places where his employer's business 
 
         required his presence and subjected him to dangers incident to 
 
         the business within the context of Iowa Code section 85.61(6).  
 
         Claimant was furthering employer's business by performing tasks 
 
         common to the job and usual to his employment duties within the 
 
         context of Lawyer and Higgs, section 6.1.  Claimant was in the 
 
         course of his employment within the context of the recent holding 
 
         of the supreme court in the McMullin case.
 
         
 
              An employee who handles and transports large sums of money 
 
         for an employer is definitely at risk of being robbed in the 
 
         course of his employment.  The robbery was not focused on 
 
         claimant's personal money or property.  Claimant testified that 
 
         20 hours of his employment was carried out at the tavern, but 
 
         another 30 or 40 hours of his work was performed off the premises 
 
         (tr. p. 75).  In conclusion, claimant sustained the burden of 
 
         proof by a preponderance of the evidence that the injury both 
 
         arose out of and in the course of his employment with employer 
 
         when he was robbed on July 25, 1986 at his home while 
 
         transporting money, food and clean towels to the business 
 
         establishment.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              The parties have stipulated that the injury was the cause of 
 
         temporary disability, and that claimant was off work from July 
 
         25, 1986 to December 6, 1986, a period of 19 weeks and 1 day.  It 
 
         is determined that the injury was the cause of this temporary 
 
         disability and that claimant is entitled to 19.143 weeks of 
 
         temporary disability benefits for this period of time.
 
         
 
              Claimant saw several physicians--Dr. Twyner, Dr. Day, Dr. 
 
         Roski and Dr. Collier.  There is no evaluation from any of these 
 
         four physicians which award a permanent impairment rating or 
 
         which imposes any permanent restrictions.  There are no final 
 
         evaluation reports from any of these doctors.  None of these 
 
         doctors were deposed.  None of these doctors testified at the 
 
         hearing in person.  The record is devoid of any professional 
 
         medical opinion establishing any permanent impairment or 
 
         disability.  By putting a question mark behind the words 
 
         permanent defect, Dr. Twyner indicated that he did not have an 
 
         opinion on whether there was a permanent defect or he did not 
 
         know.  Dr. Collier unequivocally stated no there was no permanent 
 
         defect anticipated.  Claimant asserted by way of his testimony 
 
         that he still has pain, difficulty in reaching and lifting and a 
 
         decrease of strength in the left hand (tr. p. 40).  As shown 
 
         above, claimant's testimony is not supported by any professional 
 
         medical opinion from any one of his four doctors.
 
         
 
              In addition, claimant's prior medical history shows that he 
 
         has had substantial problems with his left shoulder since April 
 
         9, 1985, when Dr. Sinning diagnosed subacromial bursitis of the 
 
         left shoulder (jt. ex. p. 19c).  He told Dr. Sinning and 
 
         demonstrated to him his limited ability to bring his arm up 
 
         overhead at that time.  On February 25, 1986, prior to this 
 
         injury, Dr. Sinning recorded:
 
         
 
                   Don notices a change that he could handle a 24 pack of 
 
              beer easily and now can barely lift a 12 pack and lift it. 
 
              Difference both in grip and ability to lift.  Finds it 
 
              difficult bringing the left arm up over shoulder level.  
 
              Some night pain especially as he turns.  Difficulty putting 
 
              his coat on because the shoulder seems stiff.
 
         
 
         (jt. ex. 19e)
 
         
 
              On March 19, 1986, prior to this injury, Dr. Sinning 
 
         reported a limited range of motion of the left shoulder (jt. ex. 
 
         19f).
 
         
 
              Consequently, it must be determined that claimant has not 
 
         sustained the burden of proof by a preponderance of the evidence 
 
         that he sustained any permanent impairment or disability as a 
 
         result of the gunshot wound to his midleft clavicle area. 
 
         Claimant's testimony that he was 98 percent recovered from any 
 
         previous left shoulder problems must be severely discounted.
 
         
 
              Claimant is entitled to the medical expenses enumerated in 
 
         the summary of the evidence which total $5,122.47.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
                                 FINDINGS OF FACT
 
         
 
              Wherefore, based upon the evidence presented, the following 
 
         findings of fact are made:
 
         
 
              That claimant has been employed by employer since 1974, 
 
         until the date of the hearing in 1989, a period of approximately 
 
         15 years.
 
         
 
              That claimant performed the duties of bartender, general 
 
         repairman and general manager.
 
         
 
              That claimant's responsibilities for 15 years included 
 
         handling the money for employer's operation at his personal 
 
         residence because there was no place where it could be 
 
         appropriately done at employer's place of business.
 
         
 
              That claimant handled large sums of money, more 
 
         specifically, $20,000 to $25,000 per weekend and $8,000 to 
 
         $10,000 per day on the weekend.
 
         
 
              That claimant's procedure for handling these large,sums of 
 
         money was easily observable to the patrons at the tavern and the 
 
         public in general.
 
         
 
              That claimant prepared the bank deposit at his home and 
 
         phoned in the cash denomination needs for the business for the 
 
         following day to the bank from his home.
 
         
 
              That claimant transported large sums of money in his truck 
 
         from the business to his home, to the bank and back again.  That 
 
         claimant temporarily stored large sums of money in his home and 
 
         his vehicle in the process of handling employer's cash funds.
 
         
 
              That on July 25, 1986, claimant was confronted by a masked 
 
         intruder, who forced him to strip naked, and zapped him with an 
 
         electrical zapper to try to find out where claimant had concealed 
 
         the money.
 
         
 
              That in the course of the robbery, the intruder fired a shot 
 
         which struck claimant in the left shoulder in the midclavical 
 
         area.
 
         
 
              That claimant sustained an injury from this gunshot wound on 
 
         July 25, 1986 which arose out of and in the course of employment 
 
         with employer.
 
         
 
              That claimant was off work from July 25, 1986 to December 6, 
 
         1986,a period of 19.143 weeks.
 
         
 
              That none of the four medical professionals who treated 
 
         claimant awarded any permanent impairment or imposed any 
 
         permanent restrictions.
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
              That even though claimant contended he had pain, decrease of 
 
         strength, and difficulty in reaching and lifting with his left 
 
         hand, claimant had these same problems and had been treated for 
 
         them for over a year prior to this injury.
 
         
 
              That claimant incurred $5,122.47 in medical expense for care 
 
         and treatment of the gunshot wound to his left shoulder.
 
         
 
                                CONCLUSIONS OF LAW
 
         
 
              Wherefore, based on the evidence presented and the foregoing 
 
         principles of law, the following conclusions,of law are made:
 
         
 
              That claimant sustained the burden of proof by a 
 
         preponderance of the evidence that he sustained an injury on July 
 
         25, 1986 which arose out of and in the course of employment with 
 
         employer.
 
         
 
              That the injury was the cause of temporary disability.
 
         
 
              That claimant is entitled to 19.143 weeks of temporary total 
 
         disability benefits.
 
         
 
              That claimant did not sustain the burden of proof by a 
 
         preponderance of the evidence that the injury was the cause of 
 
         any permanent disability.
 
         
 
              That claimant is not entitled to any permanent disability 
 
         benefits.
 
         
 
              That claimant is entitled to $5,122.47 in medical benefits.
 
         
 
                                      ORDER
 
         
 
              THEREFORE, IT IS ORDERED:
 
         
 
              That defendants pay to claimant nineteen point one four 
 
         three (19.143) weeks of temporary total disability benefits at 
 
         the rate of one hundred thirty-nine and 06/100 dollars ($139.06) 
 
         per week in the total amount of two thousand six hundred 
 
         sixty-two and 03/100 dollars ($2,662.03) for the period from July 
 
         25, 1986 to December 6, 1986.
 
         
 
              That defendants are to pay this amount in a lump sum.
 
         
 
              That interest will accrue pursuant to Iowa Code section 
 
         85.30.
 
         
 
              That defendants pay to claimant or the provider of medical 
 
         services, five thousand one hundred twenty-two and 47/100 dollars 
 
         ($5,122.47) in medical expenses as itemized in the summary of the 
 
         evidence.
 
         
 
              That the costs of this action, including the cost of the 
 
         transcript, are charged to defendants pursuant to Division of 
 
         Industrial Services Rule 343-4.33.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              That defendants file claim activity reports as requested by 
 
         this agency pursuant to Division of Industrial Services Rule 343- 
 
         3.1.
 
         
 
              Signed and filed this 27th day of March, 1990.
 
         
 
         
 
         
 
                                        
 
         
 
                                            WALTER R. McMANUS, JR.
 
                                            DEPUTY INDUSTRIAL COMMISSIONER
 
         
 
         Copies To:
 
         
 
         Mr. John Moeller
 
         Attorney at Law
 
         601 Brady Street, STE 303
 
         Davenport, Iowa  52801
 
         
 
         Mr. G. David Binegar
 
         Attorney at Law
 
         1503 Brady Street
 
         Davenport, Iowa  52803
 
         
 
         Mr. Larry Shepler
 
         Attorney at Law
 
         102 Executive Square
 
         400 Main Street
 
         Davenport, Iowa  52801
 
         
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
 
                                       
 
 
 
 
 
 
 
 
 
 
 
                                       1107; 1108.50; 1401; 1402.20; 
 
                                       1402.30; 1402.40; 1402.60; 51801; 
 
                                       51801; 52501; 52700
 
                                       Filed March 27, 1990
 
                                       Walter R. McManus, Jr.
 
         
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         DONALD C. STOUT,
 
         
 
              Claimant,
 
         
 
         vs.
 
                                                 File No. 829156
 
         VIVIAN'S TAP,
 
                                              A R B I T R A T I 0 N
 
              Employer,
 
                                                 D E C I S I 0 N
 
         and
 
         
 
         UNITED FIRE AND CASUALTY,
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
         1107; 1108.50; 1401; 1402.20; 1402.30; 1402.40; 1402.60
 
         
 
              Claimant was a bartender, general repairman and general 
 
         manager of a bar.  He handled money, food and laundry for the bar 
 
         at his home because of inadequate facilities at the bar.  This 
 
         had been the method of operation since the bar opened in 1974.  
 
         The bar cashed payroll checks on the weekend and claimant handled 
 
         large sums of money at his home on the way to and from the bar 
 
         and the bank.  An intruder robbed claimant at his home and in the 
 
         course of the robbery shot claimant in the left shoulder.  It was 
 
         determined, based on an application of the facts of this case, 
 
         that claimant sustained an injury that both arose out of and in 
 
         the course of employment with employer.
 
         
 
         51801
 
         
 
              Claimant paid temporary total disability based on the 
 
         stipulated dates for the period of recovery.
 
         
 
         51803
 
         
 
              The only evidence of permanent disability was claimant's 
 
         testimony of left arm difficulties; however, he had the same 
 
         problems prior to being shot from a degenerative condition as 
 
         well as from a boat accident.  None of four physicians awarded an 
 
         impairment rating or imposed any permanent restrictions.  No 
 
         permanent partial disability awarded.
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         52501; 52700
 
         
 
              Claimant awarded medical benefits.
 
         
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
 
            
 
            Page   1
 
            
 
            
 
            
 
            
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            JIM H. PIEART,                :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :         File No. 829208
 
            RICH JONES CONSTRUCTION,      :
 
                                          :      A R B I T R A T I O N
 
                 Employer,                :
 
                                          :         D E C I S I O N
 
            and                           :
 
                                          :
 
            JOHN DEERE INSURANCE,         :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
            
 
                              statement of the case
 
            
 
                 This is a proceeding in arbitration upon the petition 
 
            of claimant, Jim H. Pieart, against his employer, Rich Jones 
 
            Construction, and its insurance carrier, John Deere 
 
            Insurance, defendants.  The case was heard on September 11, 
 
            1989, in Des Moines, Iowa at the office of the industrial 
 
            commissioner.  The record consists of the testimony of 
 
            claimant and the testimony of Rich Jones.  Additionally, the 
 
            record consists of joint exhibits 1-6.
 
            
 
                                      issues
 
            
 
                 The sole issues to be determined are:  1) whether there 
 
            is a causal relationship between the alleged injury and the 
 
            disability; 2) whether claimant is entitled to temporary 
 
            disability/ healing period benefits or permanent partial 
 
            disability benefits; and, 3) whether claimant is entitled to 
 
            medical benefits under section 85.27.
 
            
 
                                 findings of fact
 
            
 
                 The deputy, having heard the testimony and considered 
 
            all the evidence, finds:
 
            
 
                 At the time of the hearing, claimant was 30 years old.  
 
            He had completed the tenth grade but he had never obtained 
 
            his GED.
 
            
 
                 Claimant commenced his employment with 
 
            defendant-employer in 1983.  He was hired as a construction 
 
            foreman for the framing crew.  His duties included working 
 
            above ground on ladders and beams.  Claimant was considered 
 
            by the owner, Rich Jones, to be a working foreman.
 
            
 
                 On July 30, 1986, claimant sustained a work related 
 
            injury to his right knee and leg when he was cut by a 
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            skilsaw.  The injury resulted in a deep laceration at the 
 
            medial aspect of the right knee through the skin, 
 
            subcutaneous tissue, the muscles, and the quadriceps tendon.  
 
            Claimant was initially treated by Ala Daghestani, M.D., at 
 
            Mercy Hospital.
 
            
 
                 X-rays were taken.  Dr. Armstrong (first name unknown), 
 
            the radiologist, diagnosed claimant's condition as follows:
 
            
 
                 RIGHT KNEE & PATELLA, PORTABLE (1030):
 
            AP AND LATERAL BEDSIDE RADIOGRAPHS OF THE RIGHT 
 
            KNEE FOLLOWING SKILL SAW SOFT TISSUE INJURY ON THE 
 
            MEDIAL KNEE SHOW NO EVIDENCE OF FRACTURE OR 
 
            ABNORMALITY RELATED TO THE PATELLA, THE FEMUR OR 
 
            THE PROXIMAL TIBIA ABOUT THE KNEE.  SOFT TISSUE 
 
            WOUND IS PRESENT MEDIALLY AND THERE IS NO EVIDENCE 
 
            OF RADIODENSE FOREIGN BODY.
 
            
 
                 Claimant had a debridement and a closure.  He was 
 
            hospitalized for four days and released.
 
            
 
                 Claimant returned to Dr. Daghestani for follow-up 
 
            treatment.  On September 19, 1986, the surgeon released 
 
            claimant to return to work with certain restrictions.  
 
            Claimant was advised not to work above ground and to work on 
 
            a flat surface.  In his report of September 23, 1986, Dr. 
 
            Daghestani opined:
 
            
 
                 [I] feel Mr. Pieart can perform most of the 
 
                 carpentry work if he is on a flat solid surface 
 
                 and I do not recommend for him to go up into the 
 
                 rafters at this stage, until he regains full 
 
                 control and strength of his right knee.
 
            
 
                 Claimant contacted Mr. Jones relative to light duty 
 
            type work.  There was disputed testimony whether light duty 
 
            work was offered to claimant.  The undersigned finds light 
 
            duty work was offered to claimant.  Claimant, nevertheless, 
 
            did not report to work.  He indicated his leg was still 
 
            hurting him.  He remained off work.
 
            
 
                 Claimant did not return to work until April 30, 1987, 
 
            when he commenced his employment with Maury Haye.  Since 
 
            that date, claimant has been employed as a journeyman 
 
            carpenter.
 
            
 
                 Claimant sought the opinion of Martin D. Rosenfeld, 
 
            D.O., on March 17, 1987.  In his report of March 21, 1988, 
 
            Dr. Rosenfeld opined:
 
            
 
                 When I examined Mr. Pieart in March, 1987 I found 
 
                 that the quadriceps tendon and patellar tendons 
 
                 were both intact but it was obvious that atrophic 
 
                 changes were present.  At that time my feeling was 
 
                 a post-traumatic quadriceps weakness on the right 
 
                 with a possible internal derangement.
 
            
 
                 We started him on physical therapy with [sic] gave 
 
                 him some benefit but he is still having problems 
 
                 with the knee.
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            
 
                 I feel that knee internal derangement to the knee 
 
                 is as a result of the July, 1986 injury and that 
 
                 the knee has not returned to its pre-injury status 
 
                 since the time of the injury.  It is my feeling 
 
                 that Mr. Pieart has sustained a ten (10) to 
 
                 fifteen (15) percent permanent physical impairment 
 
                 to the right leg as a result of this injury and 
 
                 this may or may not be improved with arthroscopic 
 
                 surgery.  Hopefully his symptoms would be improved 
 
                 even if his impairment is not.
 
            
 
                 Estimated expense for surgery would be 
 
                 approximately $2500.00 to $3000.00 with an 
 
                 approximate six to eight week recovery time.
 
            
 
                 If I can be of further assistance, please feel 
 
                 free to contact me.
 
            
 
                 Dr. Daghestani, in his deposition, disagreed with the 
 
            opinion of Dr. Rosenfeld.  Dr. Daghestani did not believe 
 
            claimant's knee derangement was due to claimant's 
 
            laceration.  The basis for his opinion was that:
 
            
 
                    A.  Medically speaking it is very hard for me 
 
                 to justify that such a laceration will cause 
 
                 derangement of the knee structure.  It would be 
 
                 very difficult to explain.
 
            
 
                    Q.  Why do you say that?  What is the basis for 
 
                 your view?
 
            
 
                    A.  The reason for that is the joint space was 
 
                 not involved the first time, the first thing.  The 
 
                 capsule was completely intact.  That means the 
 
                 joint structure was completely unharmed.  The 
 
                 second thing is derangement of the knee does 
 
                 require a severe blow to the knee if you like.
 
            
 
                 We see it quite a bit with football players.  We 
 
                 see it after car accidents, severe car accidents.  
 
                 We see it with people who play softball, baseball, 
 
                 this type of severe blow to the knee if you like, 
 
                 not only just a little kick in the knee, but a 
 
                 laceration of a tendon will not cause such thing, 
 
                 and to give you an example, if they are going to 
 
                 do any surgery on the knee for, say, removing 
 
                 cartilage or repair a tendon they go almost with 
 
                 the same incision.  They have to cut that ligament 
 
                 to go in to repair the knee, so this is very 
 
                 difficult for me to relate this type of laceration 
 
                 causing such pathology.
 
            
 
                    Q.  Now, if I understand the theory, the theory 
 
                 would be that the weakness and atrophy of the 
 
                 muscle in the thigh somehow resulted indirectly in 
 
                 the internal derangement problem.  Do you 
 
                 subscribe to that?
 
            
 
                    A.  It would be very difficult to explain.  It 
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
                 would be very difficult to justify such pathology 
 
                 related to just atrophy.  Furthermore, the atrophy 
 
                 was temporary, and the physical therapy was 
 
                 initiated shortly after we removed the splint.  It 
 
                 would be very difficult -- derangement means 
 
                 destruction of the inner structure of the knee.
 
            
 
                    We are not talking about a cut.  There would be 
 
                 some destruction.
 
            
 
            (Exhibit 2, pages 18-19)
 
            
 
                 Claimant was also examined by Marshall Flapan, M.D.  
 
            Dr. Flapan examined claimant on July 9, 1987.  Dr. Flapan 
 
            opined in relevant portion:
 
            
 
                 OBJECTIVE:  Right knee:  He has no effusion.  He 
 
                 has a                 well healed scar across the 
 
                 dorsal medial                   aspect of his knee 
 
                 but does not involve the                  joint.  
 
                 The range of motion of his knee is                  
 
                 full, complete and normal.  The circum-                  
 
                 ferential measurements of the thighs                          
 
                 reveals that the right thigh is one inch                   
 
                 less in circumference than the left.  There              
 
                 is no detectable ligamentous laxity, no                       
 
                 drawer sign and no pivot shift.  He does                      
 
                 have tenderness at the medial joint line                      
 
                 and it is not aggravated by rotary move-                      
 
                 ments of tibia on femur.
 
            
 
     
 
            
 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
             X-RAYS:    I did review the x-rays of his knee 
 
            from                  Mercy Hospital dated 
 
            the thirtieth of July                of 1986 and 
 
            these are within normal limits.                
 
            Repeat x-rays of his right knee today are                     
 
            also normal.
 
            
 
                 ASSESSMENT: 1) Status post repair laceration 
 
                 quadriceps                    mechanism, right 
 
                 knee
 
                        2) Quadriceps insufficiency secondary 
 
            to                  above.
 
                        3) Possible internal derangement of 
 
            the                 right knee unrelated to 
 
            this worker's                      compensation 
 
            injury.
 
            
 
                 PLAN:       Dr. Rosenfeld who has seen him has 
 
                 sug-                  gested that he undergo 
 
                 arthroscopy and I                    believe that 
 
                 this is a reasonable approach                  in 
 
                 order to rule out meniscal damage.                       
 
                 However, it is my opinion that the sawing                     
 
                 injury described which occurred apparently               
 
                 on the thirtieth of July, of 1986 is not                      
 
                 the cause of this internal derangement.                       
 
                 Whether or not it occurred subsequent to                      
 
                 this because of weakness of his quadriceps               
 
                 is unknown.
 
            
 
                                conclusions of law
 
            
 
                 The claimant has the burden of proving by a 
 
            preponderance of the evidence that the injury of July 30, 
 
            1986, is causally related to the disability on which he now 
 
            bases his claim.  Bodish v. Fischer, Inc., 257 Iowa 516, 133 
 
            N.W.2d 867 (1965).  Lindahl v. L. O. Boggs, 236 Iowa 296, 18 
 
            N.W.2d 607 (1945).  A possibility is insufficient; a 
 
            probability is necessary.  Burt v. John Deere Waterloo 
 
            Tractor Works, 247 Iowa 691, 73 N.W.2d 732 (1955).  The 
 
            question of causal connection is essentially within the 
 
            domain of expert testimony.  Bradshaw v. Iowa Methodist 
 
            Hospital, 251 Iowa 375, 101 N.W.2d 167 (1960). 
 
            
 
                 The opinions of experts need not be couched in 
 
            definite, positive or unequivocal language.  Sondag v. 
 
            Ferris Hardward, 220 N.W.2d 903 (Iowa 1974).  An opinion of 
 
            an expert based upon an incomplete history is not binding 
 
            upon the commissioner, but must be weighed together with the 
 
            other disclosed facts and circumstances.  Bodish, 257 Iowa 
 
            516, 133 N.W.2d 867 (1965).  The expert medical evidence 
 
            must be considered with all other evidence introduced 
 
            bearing on the causal connection between the injury and the 
 
            disability.  Burt, 247 Iowa 691, 73 N.W.2d 732 (1955).  In 
 
            regard to medical testimony, the commissioner is required to 
 
            state the reasons on which testimony is accepted or 
 
            rejected.  Sondag, 220 N.W.2d 903 (1974).
 
            
 
                 The right of a worker to receive compensation for 
 
            injuries sustained which arose out of and in the course of 
 

 
            
 
            Page   6
 
            
 
            
 
            
 
            
 
            employment is statutory.  The statute conferring this right 
 
            can also fix the amount of compensation to be paid for 
 
            different specific injuries, and the employee is not 
 
            entitled to compensation except as provided by the statute.  
 
            Soukup v. Shores Co., 222 Iowa 272, 268 N.W. 598 (1936).
 
            
 
                 In the instant case, claimant has proven by a 
 
            preponderance of the evidence that he has sustained a 
 
            temporary total disability but not a permanent partial 
 
            disability.  Claimant's treating physician did not causally 
 
            relate any possible right knee derangement to claimant's 
 
            work injury of July 30, 1986.  Nor did Dr. Flapan causally 
 
            connect claimant's knee derangement to the work injury in 
 
            question.  Both physicians disputed the theory of Dr. 
 
            Rosenfeld.  The greater weight of the testimony is given to 
 
            the treating physician, Dr. Daghestani.  He performed the 
 
            surgery on claimant's leg.  He saw claimant on six separate 
 
            occasions.  He returned claimant to work as a carpenter with 
 
            certain restrictions.  The restrictions were not permanent.  
 
            Claimant was able to resume duties as a journeyman 
 
            carpenter.
 
            
 
                 Dr. Daghestani's opinion was corroborated by the 
 
            opinion of Dr. Flapan, an orthopedic surgeon.  As of July 9, 
 
            1987,  Dr. Flapan found full range of motion of the knee.  
 
            He only found the circumference of the right thigh to be one 
 
            inch less than the left.
 
            
 
                 It is acknowledged that Dr. Rosenfeld, another 
 
            orthopedic surgeon, holds a different opinion.  He believes 
 
            claimant has a 10 to 15 percent impairment to the right leg.  
 
            However, Dr. Rosenfeld did not examine claimant until March 
 
            17, 1987.  This was nearly eight months after the work 
 
            injury.  Furthermore, Dr. Rosenfeld is not even certain that 
 
            claimant has a right knee derangement.
 
            
 
                 Therefore, it is the determination of the undersigned 
 
            that claimant has only a temporary total disability.  
 
            Section 85.33(1) governs the payment of temporary total 
 
            disability benefits.  The section provides:
 
            
 
                 Except as provided in subsection 2 of this 
 
                 section, the employer shall pay to an employee for 
 
                 injury producing temporary total disability weekly 
 
                 compensation benefits, as provided in section 
 
                 85.32, until the employee has returned to work or 
 
                 is medically capable of returning to employment 
 
                 substantially similar to the employment in which 
 
                 the employee was engaged at the time of injury, 
 
                 whichever occurs first.
 
            
 
                 Claimant was off work as of July 30, 1986.  He was 
 
            released to return to work per Dr. Daghestani's letter to 
 
            Rich Jones of September 23, 1986.  Claimant was advised to 
 
            contact his employer relative to light duty work.  Rich 
 
            Jones had light duty work available.  Claimant voluntarily 
 
            terminated his employment with defendant-employer, even 
 
            though claimant was capable of performing the light duty 
 
            work available.  Therefore, it is the determination of the 
 
            undersigned that claimant was entitled to temporary total 
 

 
            
 
            Page   7
 
            
 
            
 
            
 
            
 
            disability benefits from July 30, 1986 through September 23, 
 
            1986.  The period consisted of eight weeks at the stipulated 
 
            rate of $180.54 per week.  Claimant was paid 13.143 weeks at 
 
            the rate of $193.63.
 
            
 
                 The final issue to address is whether claimant is 
 
            entitled to additional medical expenses under section 85.27.  
 
            Claimant has asked for the payment of:
 
            
 
                 Walgreen's Pharmacy           $ 24.59
 
                 Des Moines Bone & Joint        155.00
 
                                               $179.59
 
            
 
                 Claimant is entitled to be reimbursed for the naprosyn 
 
            at $24.59.  The treatment claimant received from Dr. 
 
            Rosenfeld at Des Moines Bone & Joint was unauthorized.  
 
            Defendants are not liable for the same.  Additionally, 
 
            defendants are not liable for any arthroscopic surgery on 
 
            the right knee.  That procedure would not be causally 
 
            related to claimant's work injury.
 
            
 
                                      order
 
            
 
                 THEREFORE, IT IS ORDERED:
 
            
 
                 Claimant is entitled to eight (8) weeks of temporary 
 
            total disability benefits at the stipulated rate of one 
 
            hundred eighty and 54/l00 dollars ($180.54).
 
            
 
                 Payments that have accrued shall be paid in a lump sum 
 
            together with statutory interest thereon pursuant to Iowa 
 
            Code section 85.30.
 
            
 
                 Defendants shall receive credit for all benefits paid 
 
            and not previously credited.
 
            
 
                 Costs of this action shall be assessed to defendants 
 
            pursuant to Division of Industrial Services Rule 343-4.33.
 
            
 
                 Defendants shall reimburse claimant for out of pocket 
 
            medical expenses in the sum of twenty-four and 59/l00 
 
            dollars ($24.59).
 
            
 
                 Defendants shall file a claim activity report as 
 
            requested by this division pursuant to Division of 
 
            Industrial Services Rule 343-3.l.
 
            
 
            
 
            
 
                 Signed and filed this ____ day of September, 1990.
 
            
 
            
 
            
 
            
 
            
 
                                          ______________________________               
 
            MICHELLE A. McGOVERN
 
                                          DEPUTY INDUSTRIAL COMMISSIONER
 
            
 
            Copies To:
 

 
            
 
            Page   8
 
            
 
            
 
            
 
            
 
            
 
            Mr. Dennis L. Hanssen
 
            Attorney at Law
 
            2700 Grand Ave
 
            Suite 111  Terrace Center
 
            Des Moines  IA  50312
 
            
 
            Mr. Roger L. Ferris
 
            Attorney at Law
 
            1900 Hub Tower
 
            699 Walnut
 
            Des Moines  IA  50309
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                               5-1801
 
                                               Filed September 4, 1990
 
                                               MICHELLE A. McGOVERN
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            JIM H. PIEART,                :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :         File No. 829208
 
            RICH JONES CONSTRUCTION,      :
 
                                          :      A R B I T R A T I O N
 
                 Employer,                :
 
                                          :         D E C I S I O N
 
            and                           :
 
                                          :
 
            JOHN DEERE INSURANCE,         :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
            
 
            5-1801
 
            Claimant was entitled to eight weeks of temporary total 
 
            disability benefits for a laceration to his right leg.