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.