BEFORE THE IOWA INDUSTRIAL COMMISSIONER DENNIS JANSSEN, Claimant, vs. File No. 830524 SMITHWAY MOTOR XPRESS, A R B I T R A T I O N Employer, D E C I S I O N and LIBERTY MUTUAL INSURANCE COMPANY, Insurance Carrier, Defendants. STATEMENT OF THE CASE This is a proceeding in arbitration brought by Dennis Janssen, claimant, against Smithway Motor Xpress, Inc., employer, and Liberty Mutual Insurance Company, insurance carrier, defendants, to recover benefits under the Iowa Workers' Compensation Act as the result of an injury occurring June 18, 1986. This matter came on for hearing before the undersigned deputy industrial commissioner on August 22, 1988. The record was held open for submission of an additional exhibit, a June 5, 1986 letter from John A. Grant, M.D., to David Sterr, Liberty Mutual Insurance claims adjustor. The document was received on August 29, 1988 marked as claimant's exhibit 34, and is hereby received into evidence. The matter is now fully submitted. The record in this case consists of hie testimony of the claimant, Shelby Swain, Janice Janssen, Darrell Garret and Louis Vierling. In addition to claimantOs exhibit 34, exhibits 1 through 33 inclusive were received into evidence, except for exhibit 31. The employer's objection to that exhibit, ruling on which was reserved until this time, is hereby sustained. ISSUES Pursuant to the pre-hearing report submitted August 22, 1988, the issues that remain for adjudication include whether the existence of an employment relationship existed between the parties, whether claimant's injuries arose out of and in the course of employment, whether claimant is entitled to temporary total disability or healing period benefits, whether claimant is entitled to permanent partial disability and whether claimant is totally and permanently disabled under the odd-lot doctrine. JANSSEN V. SMITHWAY MOTOR XPRESS PAGE 2 REVIEW OF THE EVIDENCE Claimant entered into a business relationship whereby a tractor-trailer vehicle was leased by owner-operator Jerry Layman to Smithway Motor Xpress. At all times relevant, the claimant performed services as a driver. Jerry Layman entered into a written "independent contractor agreement" with defendant Smithway on June 12, 1985 (exhibit 30). Layman contracted to furnish a truck to Smithway and agreed in paragraph 5.1 to furnish drivers, the cost of fuel, fuel taxes, permits, tolls, ferries, base plates and licenses. It was agreed that Layman would be compensated by payment of a percentage of the gross revenue for each shipment transported by the vehicle. Section 10.2 of the contract provided: It is understood and agreed that Contractor has and shall assume all responsibility for the direction and control of its employees including hiring, firing, supervising and the directing, setting wages, hours and working conditions, pay and adjust grievances of its employees. It is also understood that the Carrier may set minimum requirements of ability and character of Contractor Employees to ensure safe and dependable performance of this contract. Claimant testified that Mr. Layman owned three such vehicles, but did not know if they were all leased to defendant Smithway. He agreed that any vehicles he himself drove were leased to Smithway. In furtherance of his contract, Jerry Layman contacted the claimant in approximately November or December, 1985. Claimant testifies that Layman wanted him to "drive his truck." He asked the claimant to apply to Smithway, which the claimant understood to mean to make application for employment. Claimant did make application to Smithway pursuant to Mr. Layman's request. Smithway did use a form to request information from previous employers; the preprinted form identified Smithway Motor Xpress as "prospective employer." Claimant began driving after the investigation was completed. It was claimant's understanding that the vehicle he drove was leased to Smithway at the time he began his work. At the time, Layman was also driving his own truck for Smithway. Claimant's agreement for compensation was specifically with Jerry Layman and not with Smithway Motor Xpress. It was agreed that he would be paid 27% of the gross, and that he would be paid directly by Mr. Layman on a weekly basis. Claimant turned most of his paperwork in to Smithway, but forwarded fuel bills to Jerry Layman. Mr. Layman withheld taxes and Social Security from the paychecks, which were commonly written to the claimant at Mr. Layman's home upon request. Road expenses were paid by credit card in the name of Smithland, but issued specifically to Jerry Layman and identified as to the truck number. As is of course common in the trucking industry, the claimant and other drivers were dispatched through Smithway Motor Xpress. Smithway operates through approximately 60 full-time drivers employed directly by it, and also through approximately JANSSEN V. SMITHWAY MOTOR XPRESS PAGE 3 165 owner-operators, approximately six of whom have employee drivers of their own. Even though the contract appears to disallow use of trucks for business other than Smithway's, by usage owner-operators are permitted in fact to work for other carriers. Claimant interviewed with Smithway for approval as a driver under the agreement between Smithway and Layman. When he was approved, he understood this as constituting an agreement to hire him as an employee. Smithway felt otherwise, as it did not enter into negotiations concerning his compensation, and as policy does not seek to monitor the payment arrangements reached between owner-operators and their drivers. Smithway does no maintenance or other repair work on leased trucks owned by owner-operators, but does perform monthly inspections for safety purposes. APPLICABLE LAW An employee is entitled to compensation for any and all personal injuries which arise out of and in the course of employment. Iowa Code section 85.3(l). The burden of proof is initially on the claimant to show an employer-employee relationship. Everts v. Jorgensen, 227 Iowa 818, 289 N.W. 11 (1939). Five factors must be considered in determining whether there is an employer-employee relationship in existence: 1. The right of selection or to employ at will; 2. Responsibility for the payment of wages by the employer; 3. The right to discharge or terminate the relationship; 4. The right to control the work; and, 5. Is the party sought to be held as the employer the responsible authority in charge of the work or for whose benefit the work is performed. Hjerleid v. State, 229 Iowa 818, 295 N.W. 139 (1940); Funk v. Bekins Van Lines Co., I Iowa Industrial Commissioner Report, 82 (App. Decn. 1980). The status of an owner-operator has been previously discussed in Augustine v. Bullocks, Inc., 1-3 Iowa Industrial CommissionerOs Decisions, 502 (1985). The decision notes the previously-mentioned factors, and recognizes that the overriding issue is the intention of the parties. McClure v. Union, et al., Counties, 188 N.W.2d 283 (Iowa 1971); Caterpillar Tractor Company v. Shook, 313 N.W.2d 503 (Iowa 1981). ANALYSIS Based on the foregoing principles, it is found that claimant has failed to establish his claim that he was employed by Smithway Motor Xpress, Inc., on June 18, 1986 or at any other time. He at no time entered into a contract of hire for employment with that defendant. JANSSEN V. SMITHWAY MOTOR XPRESS PAGE 4 If it be shown that Jerry Layman was an employee of Smithway, Layman's employees might also be considered employees of Smithway. Crane v. Meier, 332 N.W.2d 344 (Ia. App. 1982). However, it has not been shown that Layman was an employee of defendant Smithway. The record in this case shows Layman was responsible for the maintenance of the vehicle, that he bore the principle burden of its operating costs, that he was responsible for providing the necessary personnel to operate the vehicle (and such personnel were considered his employees in good faith by Smithway), that his compensation was based on factors related to the work performed, that he determined the details and means of performing the services, and that he entered into a contract which specified the relationship to be that of independent contractor. There is no showing that Smithway had the right to control the manner in which the work was performed as opposed to simply dispatching Layman (or his employees). Even though claimant understood from a conversation when he was approved as a driver that he was actually an employee, this understanding does not operate to constitute an actual employment agreement. Layman had instructed claimant to seek approval from Smithway to be a driver pursuant to section 10.2 of the independent contractor agreement. The record shows that Smithway does not have or seek to exercise the right to hire or fire employees of owner-operators, although retaining the option of rejecting unsatisfactory individuals as drivers. While claimant was dispatched through Smithway and took certain orientation and safety classes, these factors are not inconsistent with an employment relationship with Jerry Layman as opposed to Smithway. The fact that Smithway exercised dispatching authority is not conclusive as indicating an employment relationship. It is equally consistent with a theory of delegated authority on the part of the owner-operator to the lessee for the purpose of promoting the expeditious flow of business and resources. As owner of the truck, Layman might well have himself dispatched the driver or delegated that authority to Smithway's dispatcher. Claimant has not met his initial burden of proof to show an employer-employee relationship with defendant Smithway Motor Xpress. Therefore, since he has not been shown to be defendant's employee, he did not suffer an injury arising out of and in the course of employment with Smithway Motor Xpress, Inc. FINDINGS OF FACT Therefore, based on the evidence presented, the following facts are found: 1. Claimant suffered an injury on June 18, 1986. 2. Claimant did not have an employment relationship with Smithway Motor Xpress at the time of ms injury. CONCLUSION OF LAW Wherefore, based on the principles of law previously stated, the following conclusion of law is made: JANSSEN V. SMITHWAY MOTOR XPRESS PAGE 5 1. Claimant has failed to establish by his initial burden of proof that he suffered an injury arising out of and in the course of employment with Smithway Motor Xpress because he has failed to establish an employment relationship with that defendant. ORDER THEREFORE, IT IS ORDERED: Claimant shall take nothing from this proceeding. Costs of this action are assessed against the claimant pursuant to Division of Industrial Services Rule 343-4.33. Signed and filed this 16th day of September, 1988. DAVID RASEY DEPUTY INDUSTRIAL COMMISSIONER Copies To: Mr. Neven J. Mulholland Mr. Stuart J. Cochrane Attorneys at Law 600 Boston Centre P.O. Box 1396 Fort Dodge, Iowa 50501 Mr. Tito Trevino Attorney at Law P.O. Box 1680 Fort Dodge, Iowa 50501 1402.10, 2001, 2002 Filed September 16, 1988 DAVID RASEY BEFORE THE IOWA INDUSTRIAL COMMISSIONER DENNIS JANSSEN, Claimant, vs. File No. 830524 SMITHWAY MOTOR XPRESS, A R B I T R A T I O N Employer, D E C I S I O N and LIBERTY MUTUAL INSURANCE COMPANY, Insurance Carrier, Defendants. 1402.10, 2001, 2002 Claimant suffered injury while employed by truck owner (operator who leased truck and supplied driver to defendant employer). Where owner-operator was not shown to be employed by defendant, claimant failed to show employment relationship with employer. BEFORE THE IOWA INDUSTRIAL COMMISSIONER RANDY A. SIMONDS, Claimant, vs. File No. 830598 MT. VERNON STEEL AND WIRE, A R B I T R A T I 0 N Employer, D E C I S I 0 N and U. S. F. & G., Insurance Carrier, Defendants. INTRODUCTION This is a proceeding in arbitration brought by Randy A. Simonds against Mt. Vernon Steel and Wire, employer, and U. S. F. & G., insurance carrier. The case was heard and fully submitted on November 6, 1987 at Cedar Rapids, Iowa. The record in this proceeding consists of testimony from Randy A. Simonds, David Langer, Bryon Wood, William Sindlinger, Edwin Clark, Paul Robinson and Robert Young. The record also contains joint exhibits numbered 1 through 16 and claimant's exhibits 1, 3 and 4. ISSUES Simonds alleges that he sustained an injury on or about July 31, 1986 which arose out of and in the course of his employment. He seeks compensation for healing period, permanent partial disability, section 85.27 benefits and penalty benefits under the fourth unnumbered paragraph of Iowa Code section 86.13. The issues for determination are whether claimant sustained an injury which arose out of and in the course of his employment on or about the date alleged; determination of claimant's entitlement to weekly compensation for healing period and permanent partial disability; determination of claimant's entitlement to section 85.27 benefits; and, determination of claimant's entitlement to additional benefits under the fourth unnumbered paragraph of Iowa Code section 86.13. For affirmative defenses, the defendants contend that claimant failed to give notice under section 85.23 of The Code and also that claimant's alleged injuries occurred as a result of his willful intent to injure himself and/or from intoxication in accordance with Code section 85.16. SUMMARY OF EVIDENCE The following is a summary of evidence presented in this case. Only the evidence most pertinent to this decision is discussed, but all of the evidence received at the hearing was considered in arriving at this decision. Conclusions about what the evidence showed are inevitable with any summarization. The SIMONDS V. MT. VERNON STEEL AND WIRE Page 2 conclusions in the following summary should be considered to be preliminary findings of fact. Randy A. Simonds is a 30-year-old man who lives at Mt. Vernon, Iowa. Simonds went through the eleventh grade in high school, obtained a GED and has attended one year at Kirkwood Community College where he obtained a diploma from a machinist course. Simonds denied having any other formal vocational training. Claimant's employment history includes work as a grocery store carryout, dishwasher in a restaurant, nurse's aide at a nursing home and a number of short-term machinist jobs. Simonds was in the Navy for approximately four months, but was honorably discharged for a medical disorder. Claimant denied injuring his back at any time prior to the injuries which are the subject of this proceeding. Simonds testified that he commenced employment with Mt. Vernon Steel and Wire on May 14, 1986 and that his primary assignment was operating a small turret lathe, but that he also operated various other machines on occasion. Claimant testified that, on July 30, 1986, he was assigned to cut steel rods. He stated that, in order to do so, he had to get out the machine and set it up and that he used a pallet, which was placed at the proper height, to feed the material into the machine. Claimant stated that the material he was handling was one-inch rods of steel, which were 20 feet long and weighed approximately 100 pounds. He stated that the rods were in a pile under other material and that it was necessary to bend over and pull with both hands in order to free each rod from the pile to feed it into the band saw used to cut it. Simonds did not describe any particular incident of injury on that date, but stated that his back was a little sore when he ended work at the end of the day. Claimant could not recall what he had done during the evening of July 30, 1986. He testified that his back was quite sore when he awoke on the morning of July 31, 1986. He testified that he went to work as usual and was assigned to run rods through the turret lathe. He testified that, in order to do so, he had to move rods a distance of approximately two to three feet to the turret. He stated that, as he worked, his back worsened and that, at approximately 10:00 a.m., he reported to his foreman, Bill Sindlinger, that his back hurt and that he could not work. Claimant testified that Sindlinger asked him what had happened and he replied that he must have hurt his back while working the prior day. Claimant testified that, on July 31, 1986, the materials he used were already at the work station and the machine was prepared and set up for use. He stated that his back popped on the 31st, but that, prior to the time it popped, it was sore. Claimant stated that he did not tell Sindlinger his back had popped while operating the turret lathe that morning. Claimant testified that he was unable to see his family doctor and that he went to L. E. Cornelius, D.C., where x-rays were taken, he was treated with chiropractic manipulations and was advised to refrain from working. Claimant testified that he also saw Steven Young, M.D., on the following Monday for a second SIMONDS V. MT. VERNON STEEL AND WIRE Page 3 opinion and that he also obtained treatment from Dr. Young. Claimant testified that he was taken by a friend to St. Lukes Hospital Emergency Room one evening when he was in severe pain and was then sent to see Fred Pilcher, M.D., an orthopaedic surgeon. Claimant testified that Dr. Pilcher examined him, prescribed medication and treated him with physical therapy. Claimant became dissatisfied with the apparent lack of progress he was making under Dr. Pilcher and then sought care from G. Douglas Valentine, D.C. Claimant continues to treat with Dr. Valentine. During the weeks subsequent to July 31, 1986, claimant had several episodes of brief returns to work. He testified that he received letters from David Langer which informed him that workers' compensation would not be paying his claim (exhibits 8 and 9). Claimant stated that, on October 29, 1986, he met at the Mt. Vernon Steel and Wire office with Mr. Moore and Mr. Langer. He stated that they questioned him and did not approve his claim (exhibit 10). Claimant stated that his employment with Mt. Vernon Steel and Wire has been terminated. Claimant testified that he contacted vocational rehabilitation and was referred to the Kirkwood Community College. He has taken courses in the business fields. Claimant testified that he needs to improve his academic skills. He estimates that it will take approximately one year to do so to enable him to enter into a four-year degree program. Claimant testified that he would like to get into something technical, such as mechanical engineering or electronic technology. Claimant testified that he has not received any workers' compensation benefits and has not been employed since leaving Mt. Vernon Steel and Wire. He stated that his only income is from unemployment and food stamps. Claimant testified that he has constant back pain that is worse on some days than on others. He stated that he feels his restrictions are that he cannot engage in bending, twisting or heavy lifting of more than 50 pounds. He stated that he is unable to sit for longer than a couple of hours and that sometimes he is limited to sitting for only a few minutes. He stated that he can stand for one half hour to forty-five minutes or longer if he is able to move about. Claimant testified that his primary means of transportation was a moped at the time of injury and continuing up until August, 1987 when he completed repair of his automobile. He stated he was able to operate the moped without difficulty. Claimant acknowledged that he has had a problem with excess consumption of alcoholic beverages and that he has had accidents with the moped while under the influence. Claimant recalled one incident when he had an accident with the moped where he fell on a gravel road and scraped his right elbow and right side (exhibit 2A, page 11). David Langer, vice-president of Mt. Vernon Steel and Wire Company, testified that Bill Sindlinger is the plant foreman and is in charge of production, daily schedule, setting up machines SIMONDS V. MT. VERNON STEEL AND WIRE Page 4 and putting material to be run next to the machines. Langer stated that Ed Clark, a leadman, may also perform the machine setup. Langer testified that he became aware of Simonds' claim on approximately August 10, 1986 when he began receiving bills from Dr. Cornelius. Langer's investigation revealed that Sindlinger knew claimant had left work due to a sore back, but had no knowledge that it was being claimed to be work-related. Langer testified that he wrote to claimant and told him he did not believe his injury was covered by workers' compensation. Langer stated he thought the matter was ended, but, when claimant returned to work in September, he again asked about workers' compensation and a first report of injury was filed. Langer testified that, on October 15, he received a telephone call from Jim Mozingo and received a message from Mozingo that, on the night of July 30, 1986, claimant had an accident with his moped and that on the following day, claimant had indicated to Mozingo he was going to file for workers' compensation. Langer testified that he notified the workers' compensation insurance representative of the call. A meeting with claimant was held on October 29, 1986. Langer stated that claimant did not dispute or deny he had injured himself while riding the moped when claimant was confronted with the statement from Mozingo. Langer testified that claimant's employment was terminated on October 29, 1986 due to an accumulation of things. Langer testified that, since July 31, 1986, he has observed claimant riding a moped on a number of occasions and that he appeared to ride it without any difficulty. William Sindlinger, foreman at Mt. Vernon Steel and Wire, testified that he was claimant's supervisor in July, 1986. Sindlinger stated that he was never advised by claimant that claimant had an injury which was related to work. He acknowledged that, on or about July 30, 1986, claimant asked to see a chiropractor and was given permission to do so. Sindlinger stated that, prior to requesting to make the call, claimant was operating a turret lathe and that claimant's main job was of a turret lathe operator. Sindlinger testified that the job involves picking up five or six rods at a time, which weigh approximately one and one-quarter pounds each. Sindlinger testified that the 20-foot long, one-inch steel rods weigh approximately 53 pounds each. Sindlinger agreed that it is not unusual for people who work as machinists to go to the chiropractor for treatments, but that those visits are not generally treated as a workers' compensation event. Edwin Clark testified that he is a leadman and setup man at Mt. Vernon Steel and Wire and that he was in that position during the summer of 1986, working the same shift as the claimant. Clark testified that he had observed claimant at the band saw, but never observed him pick up stock from the floor. He stated that, when the band saw is set up, the bar stock is placed on top of pallets at the same height as the saw table. Clark testified that claimant never reported any on-the-job SIMONDS V. MT. VERNON STEEL AND WIRE Page 5 back injury to him, but that one day, at the break table, claimant commented he had hurt his back rolling over in bed to shut off the alarm. Clark stated that the conversation occurred shortly before claimant ceased working. Paul Robinson was the second shift acting foreman at Mt. Vernon Steel and Wire in the summer of 1986. Robinson stated that, on occasion, he set up the band saw and that it was done by putting a bundle of one-inch bar stock on a pile of pallets. Robinson testified that he never observed claimant lift the stock from the floor up to the pallets and that he does not put any other material on top of the one-inch bar stock. Robinson testified that he and claimant went to school and Alcoholics Anonymous together. Robinson stated that claimant had told him he was suing Mt. Vernon Steel and Wire and asked Robinson if he would work for him when he took over the company. Robert Young, another Mt. Vernon Steel and Wire employee, testified that, on July 4, 1986, he observed claimant have an accident with the moped. Bryon Wood testified that he formerly lived in the same trailer court as claimant and observed claimant operating a moped. He recalled an incident where claimant had an accident with the moped. He stated that it was in warm weather, on a Saturday and that it was later in the year than April. The deposition of James Mozingo appears in the record as exhibit 7. Mozingo testified that, during the summer of 1986, (he was unsure of whether it was in July), he observed claimant fall from his moped onto his left side (exhibit 7, pages 5-13). Mozingo testified that, on another occasion during the summer of 1986, claimant advised him he had flipped the moped and exhibited a pavement burn on his arm (exhibit 7, pages 14-16). Mozingo testified that he became aware claimant was making a workers' compensation claim the day claimant came over to his residence with a twelve-pack of beer after having been to the chiropractor. Mozingo stated that claimant told him his back had popped while getting out of bed, but that he had gone to work and reported an injury. Mozingo testified that claimant was wearing a brace or wrap on that day (exhibit 7, pages 17 and 18). Exhibit 1A is a collection of records from Dr. Cornelius. The first page, which is dated July 31, 1986, contains the following wording at the lower portion where the term "Accidents" is printed on the form, "Rolled over in bed to Lt [sic]. Wed. pulling rodds [sic] at work.O Exhibit 1C indicates that claimant was evaluated, treated and provided with an orthopaedic support (belt) on July 31, 1986. This is confirmed by the first entry on the reverse side of exhibit 1B. Exhibit 1E indicates that Dr. Cornelius diagnosed claimant's injury as an acute subluxation strain of the right sacroiliac joint and L-5 with severe lumbar myofascitis. Exhibits 2A and 2B are a collection of records from John Ware, M.D. The fourth page of exhibit 2A indicates that claimant was seen by Dr. Ware on March 31, 1986 with abrasions on his right arm. In exhibit 2B, Dr. Ware indicates that he has been SIMONDS V. MT. VERNON STEEL AND WIRE Page 6 claimant's doctor since 1971 and that he had never treated him for a back problem. Exhibits 3A through 3G are a collection of records from other physicians at Mt. Vernon, Iowa. The second and third pages of exhibit 3A are records from Steven Young, M.D. On August 4, 1986, Dr. Young indicated that claimant had a back strain. In exhibit 3C, Dr. Young indicates that, when claimant was seen on August 4, 1986, he observed no skin abrasions or other signs of recent injury. Exhibit 5E is a report from G. Douglas Valentine, D.C., dated April 21, 1987. The report summarizes Dr. Valentine's treatment of claimant. On the third page, Dr. Valentine expresses the opinion that claimant sustained a severe lumbosacral sprain/strain resulting in a posterior inferior slip of the fifth lumbar vertebra, compressing the intervertebral disc, causing nerve root irritation as a result of an injury that occurred on the job. Dr. Valentine went on to indicate that claimant's prognosis is guarded, but that, with regular chiropractic treatment, the condition of his back could be restored to approximately 90% of normal. He assigned a 10% permanent partial disability rating. Claimant was evaluated by Fred J. Pilcher, M.D., on October 6, 1986. At the initial evaluation, Dr. Pilcher found claimant to be very rigid and stiff with diffuse tenderness over the thoracolumbar spine and both sacroiliac joints. Claimant exhibited a restricted range of spinal motion. He exhibited an abnormal straight leg raising test on the right side, but the left was normal. Dr. Pilcher's initial impression was that claimant had a probable acute musculoligamentous strain of the low back, but he doubted claimant had a ruptured disc (exhibit 4A; exhibit 12, pages 4-10). X-rays, which had been taken on August 15, 1986, were interpreted as normal (exhibit 6B; exhibit 12, page 6). When conservative treatment and therapy did not improve claimant's condition, a CT scan was ordered. Dr. Pilcher indicated that the CT scan showed no abnormalities (exhibit 4B; exhibit 12, pages 7 and 14; exhibit 6G). Dr. Pilcher declined to assign any permanent impairment rating to claimant based upon the information which was available to him (exhibit 12, pages 22-26). When questioned, Dr. Pilcher stated that the condition he diagnosed in claimant could arise from a fall from a moped or from a number of other types of movements of the body (exhibit 12, pages 11-13). The defense raised by defendants of lack of notice under the provisions of section 85.23 of The Code is at best, frivolous, and at worst, an issue raised in bad faith without any evidentiary support. It detracts from the credibility of defendants' position in the remaining issues in the case. The employer, acting through David Langer, had written letters to claimant regarding the claim and had met with a representative of the insurance carrier, all within 90 days from the date of the occurrence of the alleged injury. The claim is clearly not SIMONDS V. MT. VERNON STEEL AND WIRE Page 7 barred by the provisions of section 85.23. APPLICABLE LAW AND ANALYSIS Claimant has the burden of proving by a preponderance of the evidence that he received injuries on July 30 or July 31, 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 v. DeSoto Consol. Sch. Dist., 246 Iowa 402, 68 N.W.2d 63 (1955). The words "in the course of" refer to the time and place and circumstances of the injury. McClure v. Union et al. Counties, 188 N.W.2d 283 (Iowa 1971); Crowe v. DeSoto Consol. Sch. Dist., 246 Iowa 402, 68 N.W.2d 63 (1955). Claimant's testimony regarding his work activities of July 30 and 31, 1986 is corroborated by other employees with regard to the machines he was operating on those days, but it is disputed SIMONDS V. MT. VERNON STEEL AND WIRE Page 8 with regard to the manner in which he would have been operating the band saw on July 30, 1986. Claimant's testimony that he reported to Bill Sindlinger he hurt his back on July 30, is contradicted by testimony from Sindlinger. There is evidence in the record from Edwin Clark and Jim Mozingo that claimant made statements that he had hurt his back while in bed. Corroboration of their testimony is found on the first page of exhibit 1A. The testimony from Mozingo does not establish that claimant was in a motorcycle accident on the evening of July 30, 1986. It does not establish that it was on the day following the motorcycle accident of which Mozingo testified that claimant appeared at Mozingo's residence wearing a back brace or support, carrying a twelve-pack of beer and stating that he was filing a workers' compensation claim. The evidence in this case does not establish that claimant had a motorcycle accident on the evening of July 30, 1986, although it does show that claimant had a number of moped accidents on various occasions. As indicated by the authorities previously cited, the claimant has the burden of proving he sustained an injury which arose out of and in the course of his employment. Claimant's appearance and demeanor was observed as he testified at the hearing. The appearance and demeanor of the other witnesses who testified at the hearing was likewise observed. In view of the conflicts between claimant's testimony and that of the other witnesses in combination with the claimant's appearance and demeanor,it is determined that claimant's credibility is not sufficiently strong to establish that it is probable he was injured at his place of employment on July 30 or July 31, 1986. The most likely scenario of injury is that he did, in fact, injure his back in some way between the time he left work on July 30, 1986 and the time he reported to work on July 31, 1986. It is therefore concluded that claimant has failed to carry the burden of proving an entitlement to any benefits under the provisions of Chapter 85 of The Code of Iowa. FINDINGS OF FACT 1. On July 30 and July 31, 1986, Randy A. Simonds was a resident of the state of Iowa, employed by Mt. Vernon Steel and Wire Company in the state of Iowa. 2. Claimant has failed to establish the credibility of his testimony. 3. It is possible that claimant was injured at work in the manner of which he testified, but the evidence in the case is sufficiently conflicting and controverted to make it impossible to find that it is probable (more likely than not) that claimant was injured in the manner he described. 4. It is probable that claimant was injured by some movement he made while in his bed on the morning of July 31, 1986. CONCLUSIONS OF LAW 1. This agency has jurisdiction of the subject matter of SIMONDS V. MT. VERNON STEEL AND WIRE Page 9 this proceeding and its parties. 2. Randy A. Simonds has failed to prove, by a preponderance of the evidence, that he sustained an injury which arose out of and in the course of his employment with Mt. Vernon Steel and Wire Company on or about July 31, 1986. ORDER IT IS THEREFORE ORDERED that claimant take nothing from this proceeding. IT IS FURTHER ORDERED that each party pay the costs incurred by that party in participating in this proceeding in accordance with the provisions of Division of Industrial Services Rule 343-4.33. Signed and filed this 29th day of April, 1988. MICHAEL G. TRIER DEPUTY INDUSTRIAL COMMISSIONER Copies To: Mr. Thomas M. Wertz Attorney at Law 4089 21st Avenue SW Suite 114 Cedar Rapids, Iowa 52404 Mr. Raymond R. Stefani Attorney at Law 200 American Building 101 Second Street SE Cedar Rapids, Iowa 52401 1402.30 Filed April 29, 1988 MICHAEL G. TRIER BEFORE THE IOWA INDUSTRIAL COMMISSIONER RANDY A. SIMONDS, Claimant, vs. File No. 830598 MT. VERNON STEEL AND WIRE, A R B I T R A T I 0 N Employer, D E C I S I 0 N and U. S. F. & G., Insurance Carrier, Defendants. 1402.30 Claimant's credibility was found to be lacking. It was held that he had failed to prove he sustained injury which arose out of and in the course of his employment. BEFORE THE IOWA INDUSTRIAL COMMISSIONER DALE L. BAKKER, Claimant, File No. 830625 vs. A R B I T R A T I O N WILSON FOODS, INC., D E C I S I O N Employer, Self-Insured, F I L E D Defendant. AUG 29 1989 I0WA INDUSTRIAL COMMISSIONER INTRODUCTION This is a proceeding for arbitration brought by Dale L. Bakker, claimant, against Wilson Foods, Inc., self-insured employer. The case was heard by the undersigned on June 1, 1989, in Storm Lake, Iowa. The record consists of joint exhibits 1, 2, 4-19, 23, 24, 26, 27, 30, 31, and 35-48. The record also consists of the testimony of claimant and his wife, Lauren Bakker. ISSUE As a result of the prehearing report and order submitted on June 1, 1989, the issue presented by the parties is: The extent of entitlement to weekly compensation for permanent disability. STIPULATIONS Prior to the hearing, the parties have entered into a number of stipulations. The stipulations are as follows: 1. The existence of an employer-employee relationship between claimant and employer at the time of the alleged injury; 2. That claimant sustained an injury on August 4, 1986, which arose out of and in the course of employment with employer; 3. That the alleged injury is a cause of temporary disability during a period of recovery; that the work injury is a cause of permanent disability; 4. That the extent of entitlement to weekly compensation for temporary total disability or healing period, if defendant is liable for the injury, is stipulated to be from: 08-15-86 to 09-07-86 03-12-87 to 03-15-87 06-02-87 to 12-06-87 07-12-88 to 08-02-88 34 weeks 5. That the type of permanent disability, if the injury is found to be a cause of permanent disability, is stipulated to be an industrial disability to the body as a whole. The commencement date for permanent partial disability, in the event such benefits are awarded, is stipulated to be the 7th day of December, 1987. 6. In the event of an award of weekly benefits, the rate of weekly compensation is stipulated to be $259.29 per week; and, 7. Defendant paid claimant 34 weeks healing period benefits and 45 weeks permanent partial disability benefits at the rate of $258.29 per week prior to hearing. FACTS PRESENTED Claimant is currently employed by defendant removing inner shanks. He has been employed there since October 23, 1975. Claimant is married and has two children. He is left handed. Claimant testified he is making a claim for a left shoulder injury which occurred at work on August 4, 1986. Claimant was pushing a 3,000 pound vat at the time. After conservative treatment for his shoulder, claimant had surgery performed on June 10, 1987. Subsequent to the date of the surgery, claimant returned to work in December of 1987. Claimant remained working until July 12, 1988, when he was off work again because of left shoulder problems. Claimant remained off work through August 2, 1988. Currently, claimant removes inner shanks while standing. Claimant uses a straight knife and performs his job without raising his arm above the shoulder level. Claimant reports he experiences dull pain whenever he performs his job duties and he must resort to taking various pain medications. Claimant states he plans to attend Western Iowa Technical School in the fall of 1989 for a course in electronics. The record establishes that 0. Max Jardon, M.D., performed a resection of the acromioclavicular joint with suspension of the coracoacromial ligament to the distal clavicle. As of July 15, 1987, Dr. Jardon determined: Resesctin [sic] of the distal clavicle does carry some partial permanent disability of about 15 percent of the upper extremity. I would feel that this is appropriate in this instance. The symptomatology has disappeared. I do not believe it will be necessary to see this [sic] again unless some complication should intervene which is highly unlikely.... Later, Dr. Jardon provided the following restrictions relative to claimant's work practices: "You can return him to work with one restriction, that being not doing a great deal of heavy work above the shoulder level...." In January of 1988, Dr. Jardon explained how he arrived at claimant's impairment rating. He opined: Mr. Bakker still has a few symptoms of pain in the outer shoulder and I would recommend that you continue with the physical therapy in an attempt to control this. Of course, he does have some partial permanent disability related to the resection of the clavicle. According to "The Manual for Orthopaedic Surgeons in Evaluating Partial Permanent Physical Impairment", it would be 5 percent for the resection of the distal end of the clavicle alone, an additional 5 percent for residual symptomatology and some loss of abduction at another 5 percent, making a total of 15 percent partial permanent disability to the upper extremity. In February of 1988, Dr. Jardon wrote: Mr. Dale Bakker was seen on January 26, 1988 for follow-up of his left shoulder. He was complaining of pain over the left shoulder that had increased since he had returned to work. I still believe, though that he is sufficiently recovered. You can return him to work, but should restrict any type of work involving overhead liftIng.... Several months later, Dr. Jardon opined: Dale was seen today with a problem of both shoulders. There seems to be a painful area over the rhomboideus muscles with excursion of the scapulae and it is not related to the previously operated shoulder problem. Ideally, the solution would be to move into a job where he doesn't have to make such an excursion with the scapulae for a period of time and allow this to quiet down, however, that may not be practical. What would be the ideal solution is to find a different motion for the shoulder for a period of time. The other treatment that should be continued is phonophoresis with 10 percent Cortisone cream and ultrasound over that area to drive in some Cortisone over the rhomboideus muscles [sic] of the trigger point. I wish I had a magic answer. It is not a surgical problem, but it is related to tired sore muscles and muscle fatigue, much like one gets with a tennis elbow at the insertion of the rhomboideus into the scapula. You might explore the possibility of having him placed in a different kind of employment, if it is possible, at the plant. He should also try phonophoresis with 10 percent cortisone over the insertion of the rhomboideus muscles which might quiet down the problem. It very definitely is not a surgical problem. If it continues, he may have to be off work for awhile. I will leave that to your judgement. I don't have a magic answer other than reduction in the particular motion that exacerbates it for a period of time. It isn't particularly dangerous, but it is painful. If you have any further questions please feel free to contact me. Claimant was once again evaluated by Dr. Jardon in July of 1988. The treating physician wrote in his report of the 12th of July: Mr. Dale Bakker was seen again today. He still has complaints referrable [sic] to the posterior aspect of his shoulder where [sic] he has alot [sic] of popping and pain in the inferior aspect of the scapula. On physical examination, he has a full range of motion. He has normal supraspinatus strength, normal deltoid strength and normal biceps strength, although he has a biceps tendonitis. He is tender to palpation anteriorly in the shoulder. He has some signs of impingement where he is more symptomatic posteriorly. He has a great amount of popping in the region of the levator scapula tendon even though this causes symptoms much lower down in his scapula. He additionally, has the complaint of numbness at night, but neurologically no objective findings are found. He is also being followed for a carpal tunnel on the left. EMG are consistent with this, but at this time, it really isn't his main problem. It is our impression that Mr. Bakker has a levator scapulae tendonitis. We recommended that Mr. Bakker be off work for three weeks as his work is aggravating his condition. At the end of the three weeks he will return to work. We called Mr. Dan Hastings, R.P.T., in Cherokee, Iowa to redirect Mr. Bakker's therapy to the levator scapulae. We will see Dale back in clinic in four or five weeks to see how the therapy program has helped him. He will continue his Orudis. We told him to stop his Talwin and we gave him 30 Darvocet-N 200 It is possible that if the shoulder pain does not improve that we may need to get Mr. Bakker involved in a pain management program. As of April of 1989, Dr. Jardon again discussed claimant's left shoulder. He wrote in his report, "...He had removal of a portion of the acromion and some loss of motion of the left shoulder which was previously rated at 15 percent of the left upper extremity...." Dr. Jardon also restricted claimant at that time from: "MEDIUM WORK Lifting 50 lbs. maximum with frequent lifting and/or carrying of objects weighing up to 25 lbs." Dr. Jardon, in his report of May 3, 1989, opined: "I think the disability to the left shoulder was substantially caused by his employment. However, I cannot determine what, if any, relationship or previous trauma to the shoulder to his problems." Claimant was also examined for purposes of evaluation by A. J. Wolbrink, M.D., on January 31, 1989. With respect to his left shoulder only, Dr. Wolbrink opined: ...The left shoulder had well healed incisions over the acromioclavicular joint. He was able to move the shoulder through normal,range of motion so that he could put his hand behind his head, and also could internally rotate to the midline reaching about T-9 with his thumb. This motion was similar to the opposite side. He was able to forward flex 180 degrees, extend at least 30 degrees, abduct 150 degrees, externally rotate 90 degrees, and internally rotate 60 degrees. There was some discomfort with abduction, especially with stress of the abductors at about 90 degrees. Impingement sign with forward flexion and external rotation caused only mild apparent pain. Strength was really symmetrical and good, although it may have been slightly less than the opposite shoulder. The right shoulder also had a normal range of motion, a negative impingement sign, and normal strength throughout, but there was some crepitation with motion. I should note that he was able to make some crepitation with abduction of the shoulders, as the scapulae would slide over the thoracic cage. He could do this with both shoulders and related that that was where he would develop the soreness....X-ray of the left shoulder showed a metallic fragment within the distal end of the clavicle. This appeared to be entirely embedded within the bone. There was some shortening of the clavicle, which was a result of his previous surgery. There did seem to be a reasonable space between the acromion and humeral head and minimal degenerative changes about the head of the humerus. X-ray of the lumbar spine showed considerable degenerative spurring about the discs at T-11, T-12, and L-3 with some narrowing of the discs at L-4 and L-5. In my opinion, Mr. Bakker has some persistent tendonitis of the rotator cuff of the left shoulder. This specifically involves the supraspinatus muscle. He also has some bursitis of the scapular thoracic bursa. This was predominantly in the left shoulder with some early symptoms in the right shoulder.... In my opinion, Mr. Bakker does have a permanent impairment of about 15 percent of the left upper extremity due to his shoulder problem and the surgical reconstruction of the acromioclavicular joint. Since this involves the clavicle, it is really impairment of the whole person, and 15 percent of the upper extremity is equivalent to 9 percent impairment of the whole person. APPLICABLE LAW An employee is entitled to compensation for any and all personal injuries which arise out of and in the course of the employment. Section 85.3(1). Claimant has the burden of proving by a preponderance of the evidence that he received an injury on August 4, 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 supreme court of Iowa in Almquist v. Shenandoah Nurseries, 218 Iowa 724, 254 N.W. 35 (1934) at 731-32, discussed the definition of personal injury in workers' compensation cases as follows: While a personal injury does not include an occupational disease under the workmen's Compensation Act, yet an injury to the health may be a personal injury [Citations omitted.] Likewise a personal injury includes a disease resulting from an injury.... The result of changes in the human body incident to the general processes of nature do not amount to a personal injury. This must follow, even though such natural change may come about because the life has been devoted to labor and hard work. Such result of those natural changes does not constitute a personal injury even though the same brings about impairment of health or the total or partial incapacity of the functions of the human body. ..... A personal injury, contemplated by the Workmen's Compensation Law, obviously means an injury to the body, the impairment of health, or a disease, not excluded by the act, which comes about, not through the natural building up and tearing down of the human body, but because of a traumatic or other hurt or damage to the health or body of an employee. [Citations omitted.] The injury to the human body here contemplated must be something, whether an accident or not, that acts extraneously to the natural processes of nature and thereby impairs the health, overcomes, injures, interrupts, or destroys some function of the body, or otherwise damages or injures a part or all of the body. An injury is the producing cause; the disability, however, is the result, and it is the result which is compensated. Barton v. Nevada Poultry Co., 253 Iowa 285, 110 N.W.2d 660 (1961); Dailey v. Pooley Lumber Co., 233 Iowa 758, 10 N.W.2d 569 (1943). As a claimant has an impairment to the body as a whole, an industrial disability has been sustained. Industrial disability was defined in Diederich v. Tri-City Railway Co., 219 Iowa 587, 593, 258 N.W. 899, 902 (1935) as follows: "It is therefore plain that the legislature intended the term 'disability' to mean 'industrial disability' or loss of earning capacity and not a mere 'functional disability' to be computed in the terms of percentages of the total physical and mental ability of a normal man." Functional impairment is an element to be considered in determining industrial disability which is the reduction of earning capacity, but consideration must also be given to the injured employee's age, education, qualifications, experience and inability to engage in employment for which he is fitted. Olson v. Goodyear Service Stores, 255 Iowa 1112, 125 N.W.2d 251 (1963). Barton, 253 Iowa 285, 110 N.W.2d 660 (1961). A finding of impairment to the body as a whole found by a medical evaluator does not equate to industrial disability. This is so as impairment and disability are not synonymous. Degree of industrial disability can in fact be much different than the degree of impairment because in the first instance reference is to loss of earning capacity and in the latter to anatomical or functional abnormality or loss. Although loss of function is to be considered and disability can rarely be found without it, it is not so that a degree of industrial disability is proportionally related to a degree of impairment of bodily function. Factors to be considered in determining industrial disability include the employee's medical condition prior to the injury, immediately after the injury, and presently; the situs of.the injury, its severity and the length of healing period; the work experience of the employee prior to the injury, after the injury and potential for rehabilitation; the employee's qualifications intellectually, emotionally and physically; earnings prior and subsequent to the injury; age; education; motivation; functional impairment as a result of the injury; and inability because of the injury to engage in employment for which the employee is fitted. Loss of earnings caused by a job transfer for reasons related to the injury is also relevant. These are matters which the finder of fact considers collectively in arriving at the determination of the degree of industrial disability. There are no weighting guidelines that indicate how each of the factors are to be considered. There are no guidelines which give, for example, age a weighted value of ten percent of the total value, education a value of fifteen percent of total, motivation - five percent; work experience - thirty percent, etc. Neither does a rating of functional impairment directly correlate to a degree of industrial disability to the body as a whole. In other words, there are no formulae which can be applied and then added up to determine the degree of industrial disability. It therefore becomes necessary for the deputy or commissioner to draw upon prior experience, general and specialized knowledge to make the finding with regard to degree of industrial disability. See Peterson v. Truck Haven Cafe, Inc., (Appeal Decision, February 28, 1985); Christensen v. Hagen, Inc., (Appeal Decision, March 26, 1985). For example, a defendant employer's refusal to give any sort of work to a claimant after he suffers his affliction may justify an award of disability. McSpadden v. Big Ben Coal Co., 288 N.W.2d 181 (Iowa 1980). Similarly, a claimant's inability to find other suitable work after making bona fide efforts to find such work may indicate that relief would be granted. McSpadden, 288 N.W.2d 181 (Iowa 1980). ANALYSIS The sole issue to address here is the nature and extent of claimant's permanent partial disability. The medical testimony is undisputed. Both orthopaedic physicians opine claimant has a functional impairment to the upper extremity in the amount of 15 percent. This figure converts to a nine percent impairment rating to the body as a whole. Claimant contends his disability rating is greater than the nine percent figure. Defendant maintains claimant has no disability greater than the nine percent functional impairment rating. Claimant has been able to return to employment with defendant. Claimant has been provided with a position where he is not required to work above shoulder level. This job is within the restrictions placed upon him by Dr. Jardon. Claimant admits that with the exception of the period from July 12, 1988 to August 2, 1988, claimant has worked continuously since his post operation healing period. There is no evidence to establish that claimant has suffered an actual loss of earnings due to his left shoulder injury. Likewise, claimant has not presented evidence to establish there is a loss of earning capacity. He has, however, provided written documentation that both Dr. Jardon and Gregory Hansen, M.D., have recommended claimant change careers. Defendant argues the physicians' recommendations are not due solely to claimant's left shoulder injury. Nevertheless, they do advise career modifications. There is also claimant's testimony that he has begun the process of enrolling in vocational training at a technical school. Claimant is a high school graduate. From the testimony presented, it is unclear whether claimant will earn more or less money if he completes a training program and obtains different employment. It is also unclear from the evidence presented whether claimant will continue to work for defendant if claimant returns to school. The length of the vocational training program is also unclear. The availability of jobs is indefinite. After reviewing the evidence presented and after observing the claimant, it is the determination of the undersigned that claimant has a permanent partial disability to the body as a whole in the amount of 15 percent. FINDINGS OF FACT AND CONCLUSIONS OF LAW FINDING 1. As a result of his work injury on August 4, 1986, claimant sustained an injury to his left shoulder. FINDING 2. Claimant as a result of his work injury on August 4, 1986, has a nine percent functional impairment to the body as a whole. FINDING 3. Claimant is currently employed at defendant's establishment. FINDING 4. Claimant is enrolled in the fall of 1989 in a vocational training program. CONCLUSION A. As a result of his work injury on August 4, 1986, claimant has a 15 percent permanent partial disability to the body as a whole. ORDER THEREFORE, defendant is to pay unto claimant seventy-five (75) weeks of permanent partial disability benefits at the stipulated rate of two hundred fifty-nine and 29/100 dollars ($259.29) per week as a result of the injury on August 4, 1986. Defendant is to pay unto claimant thirty-four (34) weeks of healing period benefits at the stipulated rate of two hundred fifty-nine and 29/100 dollars ($259.29) per week as a result of the injury on August 4, 1986. Payments that have accrued shall be paid in a lump sum together with statutory interest thereon pursuant to Iowa Code section 85.30. Defendant shall take credit for benefits previously paid. Defendant shall file a claim activity report upon payment of this award. Costs are assessed against defendant pursuant to Division of Industrial Services Rule 343-4.33.ge 11 Signed and filed this 29th day of August, 1989. MICHELLE A. McGOVERN DEPUTY INDUSTRIAL COMMISSIONER Copies To: Mr. Harry H. Smith Mr. Dennis M. McElwain Attorneys at Law P. 0. Box 1194 Sioux City, Iowa 51102 Mr. David L. Sayre Attorney at Law 223 Pine St. P. O. Box 535 Cherokee, Iowa 51012 BEFORE THE IOWA INDUSTRIAL COMMISSIONER ____________________________________________________________ DALE L. BAKKER, Claimant, File No. 830625 vs. A P P E A L WILSON FOODS CORPORATION, D E C I S I O N Employer, Self-Insured, Defendant. ____________________________________________________________ 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 January 15, 1992 is affirmed and is adopted as the final agency action in this case. Claimant shall pay the costs of the appeal, including the preparation of the hearing transcript. Signed and filed this ____ day of October, 1992. ________________________________ BYRON K. ORTON INDUSTRIAL COMMISSIONER Copies To: Mr. Dennis M. McElwain Attorney at Law P.O. Box 1194 Sioux City, Iowa 51102 Mr. David L. Sayre Attorney at Law P.O. Box 535 Cherokee, Iowa 51012 BEFORE THE IOWA INDUSTRIAL COMMISSIONER ____________________________________________________________ : DALE L. BAKKER, : : Claimant, : File No. 830625 : vs. : A P P E A L : WILSON FOODS, INC., : D E C I S I O N : Employer, : Self-Insured, : Defendant. : ___________________________________________________________ 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. However, the following statement in the deputy's decision is in error: "Likewise, claimant has not presented evidence to establish there is a loss of earning capacity." The arbitration decision awarded claimant benefits. Benefits for permanent partial disability of the body as a whole cannot be awarded unless there is a loss of earning capacity. The assessment of industrial disability is a determination of the loss of earning capacity. Industrial disability is not a calculation, but an evaluation. The claimant's medical evidence shows a functional impairment of the shoulder. This functional impairment, along with the recommendations of claimant's physicians that he change occupations, does establish a loss of earning capacity. The decision of the deputy is affirmed in all other respects. Signed and filed this ____ day of April, 1990. ________________________________ DAVID E. LINQUIST INDUSTRIAL COMMISSIONER Page 2 Copies To: Mr. Harry H. Smith Mr. Dennis M. McElwain Attorneys at Law P.O. Box 1194 Sioux City, Iowa 51102 Mr. David L. Sayre Attorney at Law 223 Pine St. P.O. Box 535 Cherokee, Iowa 51012 9998 Filed October 22, 1992 Byron K. Orton BEFORE THE IOWA INDUSTRIAL COMMISSIONER ____________________________________________________________ DALE L. BAKKER, Claimant, File No. 830625 vs. A P P E A L WILSON FOODS CORPORATION, D E C I S I O N Employer, Self-Insured, Defendant. ____________________________________________________________ 9998 Summary affirmance of deputy's decision filed January 15, 1992. 5-9999 Filed April 18, 1990 DAVID E. LINQUIST BEFORE THE IOWA INDUSTSRIAL COMMISSIONER ____________________________________________________________ : DALE L. BAKKER, : : Claimant, : File No. 830625 : vs. : A P P E A L : WILSON FOODS, INC., : D E C I S I O N : Employer, : Self-Insured, : Defendants. : ___________________________________________________________ 5-9999 Deputy's decision summarily affirmed on appeal, with only minor additional analysis. 5-1804 Filed August 29, 1989 MICHELLE A. McGOVERN BEFORE THE IOWA INDUSTRIAL COMMISSIONER DALE L. BAKKER, Claimant, File No. 830625 vs. A R B I T R A T I O N WILSON FOODS, INC., D E C I S I O N Employer, Self-Insured, Defendant. 5-18-4 Claimant established he has a 15 percent permanent partial disability to the body as a whole as a result of a left shoulder injury which was traumatic in nature.