BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         ANDREA E. PETERSON,
 
         
 
              Claimant,                              File Nos. 831489
 
                                                               848690
 
         vs.
 
                                                  A R B I T R A T I O N
 
         GOOD SHEPHERD HEALTH CENTER,
 
                                                     D E C I S I O N
 
              Employer,
 
         
 
         and                                             F I L E D
 
         
 
         CONTINENTAL INSURANCE COMPANY,                 FEB 06 1989
 
          
 
              Insurance Carrier,                    INDUSTRIAL SERVICES
 
              Defendants.
 
         
 
         
 
                                INTRODUCTION
 
         
 
              This decision concerns two proceedings in arbitration brought 
 
         by Andrea E. Peterson against her former employer, Good Shepherd 
 
         Health Center, and the employer's insurance carrier, Continental 
 
         Insurance Company.  The case was heard and fully submitted at 
 
         Mason City, Iowa on May 26, 1988.  The record in the proceeding 
 
         consists of testimony from Andrea E. Peterson and Susan Jones.  
 
         The record also contains claimant's exhibits 1 through 35 and 
 
         defendants' exhibits 1 and 2.
 
         
 
                                  ISSUES
 
         
 
              Claimant alleges that she sustained injuries which arose out 
 
         of and in the course of her employment on May 7, 1986 and on 
 
         February 16, 1987.  She seeks compensation for healing period, 
 
         permanent partial disability, payment of medical expenses and 
 
         penalty benefits under the provisions of Iowa Code section 86.13. 
 
         The defense disputes the claim and the issues for determination 
 
         include whether or not claimant sustained an injury which arose 
 
         out of and in the course of employment, determination of 
 
         claimant's entitlement to compensation for healing period, 
 
         permanent partial disability, section 85.27 benefits and penalty 
 
         under the provisions of Iowa Code section 86.13.
 
         
 
                           SUMMARY OF EVIDENCE
 
         
 
              The following is a summary of evidence presented in this 
 
         case.  Of all the evidence received at the hearing, only that 
 
         considered most pertinent to this decision is discussed. 
 
         Conclusions about what the evidence showed are inevitable with 
 
         any summarization.  The conclusions in the following summary 
 
         should be considered to be preliminary findings of fact.
 
         
 
                                                
 
                                                         
 
              Andrea E. Peterson is a 42-year-old woman who is a 1965 high 
 
         school graduate.  Since high school, she has taken a few courses 
 
         at the local community college.  She has started both a medical 
 
         secretary course and licensed practical nurse course, but did not 
 
         complete either.  Claimant is a certified medication aide and 
 
         also has been trained as a geriatric aide.
 
         
 
              Claimant's work history includes a few months of work as a 
 
         waitress and a few months when she operated a sewing machine in a 
 
         factory.  The balance of her employment history is work as a 
 
         nurse's aide.  She has two extended periods of unemployment, the 
 
         first commencing with the death of her husband and the second 
 
         commencing when her boyfriend was involved in a serious 
 
         motorcycle accident.  Claimant's most recent employment was with 
 
         Good Shepherd Health Center which commenced in 1981 and ended in 
 
         September, 1987.  She stated that the work involved a lot of 
 
         lifting, turning, repositioning, feeding, bathing and general 
 
         care of elderly patients.
 
         
 
              Peterson has had a number of physical complaints for which 
 
         she sought medical treatment during the time she was employed at 
 
         Good Shepherd Health Center.  These include her right arm, left 
 
         arm and shoulder, and her neck (claimant's exhibits 1 and 22).  
 
         In 1985, it was indicated that claimant has degenerative changes 
 
         in her cervical spine (claimant's exhibit 1, page 9).
 
         
 
              Andrea Peterson testified that, in the early afternoon of 
 
         May 7, 1986, she was trying to lift an elderly, obese patient 
 
         when she felt a sharp pain in her right scapula, shoulder and 
 
         neck. Claimant stated that the pain radiated throughout the right 
 
         side of her body.  Claimant reported the incident and was taken 
 
         off work by James K. Coddington, M.D., her personal physician.
 
         
 
              Claimant was off work from the time she saw Dr. Coddington 
 
         on May 9 until she was returned to work on or about May 24, 1986. 
 
         Claimant stated that she did not seem to get any better while she 
 
         was off work and then worked with the complaints until June 18 
 
         when she returned taken off work.
 
         
 
              Dr. Coddington referred claimant to specialists, namely, 
 
         Sant M. S. Hayreh, M.D., a neurologist, and A. J. Wolbrink, M.D., 
 
         an orthopaedic surgeon.  Dr. Hayreh felt that claimant had 
 
         musculoskeletal cervical pain due to underlying degenerative 
 
         arthritis without clear evidence of radiculopathy.  He also found 
 
         her to have possible mild thoracic outlet syndrome and a possible 
 
         depressive neurosis with functional overlay (claimant's exhibit 
 
         4).
 
         
 
              Dr. Wolbrink formed the impression that claimant had a 
 
         cervical strain with residual fibrositis type of symptoms and 
 
         discomfort (claimant's exhibit 9).  Claimant was treated with 
 
         physical therapy and was then released to return to work on 
 
         August 18, 1986 (claimant's exhibit 13).  Claimant testified that 
 
         she still had the same pain when she was released to return to 
 
         work as she had been experiencing ever since the injury.
 
                                                
 
                                                         
 
         
 
              Claimant testified that, when she returned to work, she did 
 
         not get along well and that she was also experiencing pain in her 
 
         right back and right leg.  On January 11, 1987, claimant was 
 
         involved in a motor vehicle accident and missed one day from work 
 
         (claimant's exhibits 16).
 
         
 
              In February, 1987, claimant was evaluated and treated by 
 
         David O. Wiebers, M.D., of the Mayo Clinic.  Dr. Wiebers took 
 
         claimant off work from February 13, 1987 through March 16, 1987 
 
         (claimant's exhibits 17 and 18).  Dr. Wiebers felt that 
 
         claimant's pains were largely musculoskeletal in nature, but that 
 
         she also had an old right C-7 radiculopathy.  Claimant apparently 
 
         related an accident at work having occurred in February, 1985 to 
 
         which Dr. Wiebers related claimant's neck and shoulder 
 
         complaints.  He was unable to relate claimant's carpal tunnel 
 
         syndrome or low back pain to that incident, however (claimant's 
 
         exhibit 21).
 
         
 
              Claimant thereafter resumed her work at Good Shepherd and 
 
         continued to work until September 1, 1987 when she was again 
 
         taken off work by Dr. Coddington.  Claimant has not resumed 
 
         employment since that time.
 
         
 
              After last being taken off work, claimant was referred to 
 
         Timothy Mead, M.D., an orthopaedic surgeon who examined her on 
 
         October 5, 1987.  Dr. Mead stated that he had no further 
 
         treatment to offer her and returned her to the care of Dr. 
 
         Coddington (claimant's exhibit 34, page 26).  Dr. Mead felt that 
 
         claimant's neck and shoulder complaints were causally related to 
 
         her May, 1986 injury, but he was unwilling to relate either any 
 
         lumbar strain or carpal tunnel condition to that employment.  Dr. 
 
         Mead rated claimant as having a nine percent impairment of upper 
 
         extremity function due to the May, 1986 injury (claimant's 
 
         exhibit 34, pages 10-26).
 
         
 
              Claimant was evaluated on February 17, 1988 by John R. 
 
         Walker, M.D.  Dr. Walker determined that claimant had an 
 
         aggravation of a preexisting degenerative condition in her 
 
         cervical spine with a resulting radiculitis of her right upper 
 
         extremity and that she also has a moderately severe chronic 
 
         sprain of her right sacroiliac joint.  Dr. Walker assigned a 10% 
 
         impairment of the body as a whole for each condition, providing a 
 
         total of 20% of the body as a whole (claimant's exhibit 30).
 
         
 
              Dr. Coddington, claimant's primary treating physician, 
 
         relates claimant's neck, arm and shoulder complaints to the May, 
 
         1986 injury.  He related her carpal tunnel syndrome to prolonged 
 
         repetitive use of her arm and hand in her employment at Good 
 
         Shepherd (claimant's exhibit 33, pages 42-52).  Dr. Coddington 
 
         felt that the injury also aggravated claimant's low back.  Dr. 
 
         Coddington deferred to Dr. Wolbrink's diagnosis (claimant's 
 
         exhibit 33, pages 37-41).
 
         
 
              The records show claimant to have some emotional disturbance 
 
                                                
 
                                                         
 
         as indicated by references to her appearing to be depressed 
 
         (claimant's exhibit 30, page 6; claimant's exhibit 28).  Claimant 
 
         was evaluated by M. R. Peltan, Ph.D., at St. Joseph Mercy 
 
         Hospital where it was determined that her psychological distress 
 
         was not of sufficient degree to clearly indicate hysteria or a 
 
         conversion reaction (claimant's exhibits 5 and 7).
 
         
 
              Claimant testified that, at the present time, she has pain 
 
         at the base of her neck which runs down her entire right side to 
 
         the back of her right leg.  She described her neck as being 
 
         tight, stiff and achy.  She stated that her right arm feels like 
 
         it is asleep and that at times it is numb, tingles and that she 
 
         drops things.  She complained that the pain in her right leg is 
 
         constant and that she has pain in her mid-back on the right side 
 
         and pain in her low back which is also constant.  Claimant feels 
 
         that her condition is getting worse.  She stated that she has had 
 
         emotional difficulties.  She stated that her inability to do 
 
         things.is very depressing.  Claimant stated that she would like 
 
         to return to work and feels that she could perform some types of 
 
         work, but that she has not sought any employment because Dr. 
 
         Coddington has not released her to return to work.
 
         
 
                        APPLICABLE LAW AND ANALYSIS
 
         
 
              Claimant has the burden of proving by a preponderance of the 
 
 
 
                    
 
                                                         
 
         evidence that she received injuries on May 7, 1986 and on 
 
         February 16, 1987 which arose out of and in the course of her 
 
         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).
 
         
 
              Claimant's testimony regarding the onset of her symptoms on 
 
         May 7, 1986 is accepted as being correct.  While the injury was 
 
         likely an aggravation of a preexisting condition, such does not 
 
         prevent it from being compensable.
 
         
 
              Our supreme court has stated many times that a claimant may 
 
         recover for a work connected aggravation of a preexisting 
 
         condition.  Almquist v. Shenandoah Nurseries, 218 Iowa 724, 254 
 
         N.W. 35 (1934).  See also Auxier v. Woodward State Hospital Sch., 
 
         266 N.W.2d 139 (Iowa 1978); Gosek v. Garmer and Stiles Co., 158 
 
         N.W.2d 731 (Iowa 1968); Barz v. Oler, 257- Iowa 508, 133 N.W.2d 
 
         704 (1965); Olson v. Goodyear Service Stores, 255 Iowa 1112, 125 
 
         N.W.2d 251 (1963); Yeager v. Firestone Tire & Rubber Co., 253 
 
         Iowa 369, 112 N.W.2d 299 (1961); Ziegler v. United States Gypsum 
 
         Co., 252 Iowa 613, 106 N.W.2d 591 (1960).
 
         
 
              The evidence in the case does not disclose any particular 
 
         incident of injury occurring on or about February 16, 1987.  She 
 
         was off work at that time for the purpose of treatment and 
 
         evaluation at the Mayo Clinic, which treatment had been arranged 
 
         well in advance of February 16, 1987.  Accordingly, no new or 
 
         separate injury has been established and the remaining portion of 
 
         this decision deals only with the May 7, 1986 injury.
 
         
 
              Claimant is entitled to receive compensation for healing 
 
         period from the date of injury until she returns to work, becomes 
 
         medically capable of performing employment substantially similar 
 
         to that in which she was engaged at the time of injury or until 
 
         such time as it is medically indicated that further significant 
 
         improvement from the injury is not anticipated.  A healing period 
 
         may be interrupted for intervening periods of employment which 
 
         occur during the recovery process.  Teel v. McCord, 392 N.W.2d 
 
         405 (Iowa 1986).
 
         
 
              The activity of handling and lifting patients is likely 
 
         something which would aggravate claimant's condition.  As 
 
         indicated by Dr. Coddington, a short period of recuperation is 
 
         normally sufficient for aggravations and minor strains. 
 
         Accordingly, claimant is entitled to receive healing period 
 
         compensation commencing May 9, 1986 and running through May 23, 
 
         1986, a period of two and one-seventh weeks.  She is again 
 
         entitled to further healing period when she was off work from 
 
         June 18, 1986 through August 18, 1986, a period of eight and 
 
         six-sevenths weeks.  Claimant is entitled to receive healing 
 
         period compensation when she was off work under the direction of 
 
         Dr. Wiebers from February 13 until March 16, 1987, a period of 
 
         four and four-sevenths weeks.  Finally, she is entitled to 
 
         receive compensation for healing period when she was taken off 
 
         work by Dr. Coddington on September 1, 1987 and running through 
 
                                                
 
                                                         
 
         October 5, 1987 when Dr. Mead determined that he had no further 
 
         treatment to offer, a period of five weeks.  Accordingly, the 
 
         total entitlement to compensation for healing period is 20 4/7 
 
         weeks.  The healing period is determined to have finally ended 
 
         with Dr. Mead's evaluation on October 5, 1987.  There is no 
 
         showing of any further substantial treatment, other than that 
 
         which is maintenance in nature, subsequent to that date.
 
         
 
              Drs. Mead and Walker both evaluated claimant as having 
 
         permanent impairment related to the May, 1986 injury.  The injury 
 
         was an aggravation of a preexisting degenerative condition in 
 
         claimant's cervical spine.  The evidence does not establish that 
 
         the carpal tunnel syndrome or that the low back and leg 
 
         complaints are related to the May, 1986 injury or any other 
 
         cumulative type of injury from claimant's employment.  In this 
 
         regard, the evidence from Drs. Mead and Wiebers is determined to 
 
         be the most reliable.  Further, the evidence fails to establish 
 
         that the carpal tunnel syndrome is, by itself, disabling, rather 
 
         than merely aggravating.  The opinion of Dr. Coddington is not 
 
         sufficient to establish proximate cause because the evidence 
 
         fails to show that claimant performed repetitive grasping of the 
 
         type commonly seen in carpal tunnel cases.
 
         
 
              When an aggravation occurs in the performance of an 
 
         employer's work and a causal connection is established, claimant 
 
         may recover to the extent of the impairment.  Ziegler v. United 
 
         States Gypsum Co., 252 Iowa 613, 620, 106 N.W.2d 591, (1960).
 
         
 
              An employee is not entitled to recover for the results of a 
 
         preexisting injury or disease but can recover for an aggravation 
 
         thereof which resulted in the disability found to exist.  Olson 
 
         v. Goodyear Service Stores, 255 Iowa 1112, 125 N.W.2d 251 (1963); 
 
         Yeager v. Firestone Tire & Rubber Co., 253 Iowa 369, 112 N.W.2d 
 
         299 (1961); Ziegler v. United States Gypsum Co., 252 Iowa 613, 
 
         106 N.W.2d 591 (1960).  See also Barz v. Oler, 257 Iowa 508, 133 
 
         N.W.2d 704 (1965); Almquist v. Shenandoah Nurseries, 218 Iowa 
 
         724, 254 N.W. 35 (1934).
 
         
 
              As 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, 1121 125 N.W.2d 251, 
 
         257 (1963).
 
                                                
 
                                                         
 
         
 
              Industrial disability or loss of earning capacity is a 
 
         concept that is quite similar to impairment of earning capacity, 
 
         an element of damage in a tort case.  Impairment of physical 
 
         capacity creates an inference of lessened earning capacity.  The 
 
         basic element to be determined, however, is the reduction in 
 
         value of the general earning capacity of the person, rather than 
 
         the loss of wages or earnings in a specific occupation.  
 
         Post-injury earnings create a presumption of earning capacity.  
 
         The earnings are not synonymous with earning capacity and the 
 
         presumption may be rebutted by evidence showing the earnings to 
 
         be an unreliable indicator.  Carradus v. Lange, 203 N.W.2d 565 
 
         (Iowa 1973); Holmquist v. Volkswagon of America, Inc., 261 N.W.2d 
 
         516 (Iowa App. 1977) A.L.R.3d 143; Michael v. Harrison County, 
 
         34th Biennial Report, 218 (1979): 2 Larson Workmen's Compensation 
 
         Law, sections 57.21 and 57.31.
 
         
 
              Since claimant's injury and symptoms originate in her 
 
         cervical spine and shoulder, the injury is to the body as a whole 
 
         rather than a scheduled member injury to her right arm, despite 
 
         the fact that most of the symptoms are manifested in her right 
 
         arm.  The physicians who have examined claimant seem to agree 
 
         that claimant has a degenerative condition in her cervical spine.  
 
         Such conditions are typically of longstanding origin.  Claimant's 
 
         degenerative condition had been diagnosed in February, 1985 and 
 
         it probably preexisted that date by several years.  Claimant's 
 
         education is essentially that of a high school graduate since the 
 
         record fails to disclose any significant number of post-high 
 
         school academic achievements.  Her work history is quite limited. 
 
         Based upon claimant's degenerative condition, it is not 
 
         surprising that work in the nature of handling patients is 
 
         something which would aggravate her condition and which she 
 
         should probably avoid. The restrictions recommended by Dr. 
 
         Coddington in claimant's exhibit 33 at page 57 seem reasonable.
 
         
 
              Claimant has not resumed employment and has not attempted to 
 
         resume employment.  This makes accurate evaluation of her earning 
 
         capacity difficult.  She stated that she feels she is capable of 
 
         being employed.  When all the various factors of industrial 
 
         disability are considered, it is determined that Andrea Peterson 
 
         has a 25% permanent partial disability as a result of the 
 
         injuries she sustained on May 7, 1986.  This entitles her to 
 
         receive 125 weeks of compensation for permanent partial 
 
         disability.
 
         
 
              Claimant seeks to recover medical expenses as set forth in 
 
         claimant's exhibit 31.  A review of the bills together with the 
 
         medical records and reports in evidence shows that the expenses 
 
         charged were incurred by claimant seeking treatment for the 
 
         symptoms which resulted from the May 7, 1986 injury.  
 
         Accordingly, defendants are responsible for payment of the 
 
         following medical expenses:
 
         
 
               James K. Coddington, M.D.      $  224.00
 
               Forest Park Pharmacy               98.00
 
                                                
 
                                                         
 
               Mayo Clinic                     2,229.30
 
               T. C. Mead,  M.D.                  72.00
 
               St. Joseph Mercy Hospital         373.25
 
               Total                          $2,996.55
 
         
 
         Defendants are entitled to credit against this amount for all 
 
         amounts previously paid on the bills as indicated on exhibit 31 
 
         or as may have otherwise been paid.  At hearing, it was 
 
         stipulated that the charges from Dr. Walker were for a section 
 
         85.39 evaluation and that defendants would pay the same without 
 
         further order.
 
         
 
              In view of the subjective nature of claimant's complaints 
 
         and the fact that she was able to work for approximately a year 
 
         following her recovery from the initial injury, it is determined 
 
         that claimant has failed to establish, by a preponderance of the 
 
         evidence, that defendants' failure to pay further compensation 
 
         for permanent disability or further compensation for healing 
 
         period was unreasonable.  Accordingly, it is determined that 
 
         claimant is not entitled to recover any penalty benefits under 
 
         the fourth unnumbered paragraph of Code section 86.13.
 
         
 
              While claimant likely suffers from some emotional distress 
 
         as a result of her current situation, the evidence fails to show 
 
         that such reaches the level of severity which is sufficient to 
 
         have any significant bearing upon the degree of claimant's 
 
         permanent disability.
 
         
 
                            FINDINGS OF FACT
 
         
 
              1.  On May 7, 1986, Andrea Peterson was a resident of the 
 
         state of Iowa employed as a nurse's aide at Good Shepherd Health 
 
         Center at Mason City, Iowa.
 
                      
 
                                                         
 
         
 
              2.  Andrea Peterson injured her cervical spine on May 7, 
 
         1986 while lifting a patient as part of the duties of her 
 
         employment.
 
         
 
              3.  Following the injury, Peterson was medically incapable 
 
         of performing work in employment substantially similar to that 
 
         she performed at the time of injury from May 9, 1986 until 
 
         October 5, 1987 at which time it was medically indicated that 
 
         further significant improvement from the injury was not 
 
         anticipated, except for those dates when claimant was actually 
 
         employed.
 
         
 
              4.  The expenses that claimant incurred with James K. 
 
         Coddington, M.D., Forest Park Pharmacy, Mayo Clinic, T. C. Mead, 
 
         M.D., and St. Joseph Mercy Hospital, as set forth in claimant's 
 
         exhibit 31, are reasonable expenses incurred in obtaining 
 
         treatment for the injury that she sustained on May 7, 1986.
 
         
 
              5.  The injury which claimant sustained was an aggravation 
 
         of a preexisting degenerative condition in her cervical spine.  
 
         The injury was, however, permanent in nature and has left 
 
         claimant with residual symptoms limiting her ability to lift, 
 
         carry and use her right arm, as indicated by Drs. Mead and 
 
         Coddington.
 
         
 
              6.  Claimant has suffered a 25% loss of her earning capacity 
 
         as a result of the injury she sustained on May 7, 1986.
 
         
 
              7.  The evidence fails to show that claimant sustained any 
 
         injury on February 16, 1987.
 
         
 
              8.  The evidence fails to establish that claimant's carpal 
 
         tunnel syndrome is disabling or that it arose out of her 
 
         employment.
 
         
 
                           CONCLUSIONS OF LAW
 
         
 
              1.  This agency has jurisdiction of the subject matter of 
 
         this proceeding and its parties.
 
         
 
              2.  Andrea Peterson sustained an injury to her cervical 
 
         spine, which was an aggravation of a preexisting condition, on 
 
         May 7, 1986, which injury arose out of and in the course of her 
 
         employment with Good Shepherd Health Center.
 
         
 
              3.  Claimant is entitled to receive 20 4/7 weeks of 
 
         compensation for healing period for the periods as follows:.
 
         
 
              5/9/86 -- 5/23/86             2 1/7 weeks
 
              6/18/86 -- 8/18/86            8 6/7 weeks
 
              2/13/87 -- 3/16/87            4 4/7 weeks
 
              9/l/87 -- 10/5/87             5     weeks
 
         
 
              4.  Claimant has a permanent partial disability of the body 
 
                                                
 
                                                         
 
         as a whole which when evaluated industrially is a 25% permanent 
 
         partial disability.
 
         
 
              5.  Defendants are responsible for payment of the following 
 
         medical expenses under the provisions of Iowa Code section 
 
         85.27:
 
         
 
               James K. Coddington, M.D.       $   224.00
 
               Forest Park Pharmacy                 98.00
 
               Mayo Clinic                       2,229.30
 
               T. C. Mead, M.D.                     72.00
 
               St. Joseph Mercy Hospital           373.25
 
               Total                            $2,996.55
 
         
 
              6.  Claimant has failed to prove, by a preponderance of the 
 
         evidence, that the defendants' failure to pay compensation was 
 
         unreasonable and she is therefore not entitled to receive an 
 
         award for penalty benefits under the fourth unnumbered paragraph 
 
         of Code section 86.13.
 
         
 
              7.  Claimant failed to prove, by a preponderance of the 
 
         evidence, that she sustained an injury on February 16, 1987 which 
 
         arose out of and in the course of her employment.
 
         
 
                                 ORDER
 
         
 
              IT IS THEREFORE ORDERED that defendants pay claimant twenty 
 
         and four-sevenths (20 4/7) weeks of compensation for healing 
 
         period at the stipulated rate of one hundred seven and 99/100 
 
         dollars ($107.99) with two and one-seventh (2 1/7) weeks thereof 
 
         payable commencing May 9, 1986, with eight and six-sevenths (8 
 
         6/7) weeks thereof payable commencing June 18, 1986, with four 
 
         and four-sevenths (4 4/7) weeks thereof payable commencing 
 
         February 13, 1987 and with five (5) weeks thereof payable 
 
         commencing September 1, 1987.  Defendants shall receive credit 
 
         for the eleven (11) weeks of compensation which was previously 
 
         paid and the remaining unpaid balance of nine and four-sevenths 
 
         (9 4/7) weeks shall be paid in a lump sum together with interest 
 
         from the date each payment came due under the provisions of Iowa 
 
         Code section 85.30.
 
         
 
              IT IS FURTHER ORDERED that defendants pay claimant one 
 
         hundred twenty-five (125) weeks of compensation for permanent 
 
         partial disability at the stipulated rate of one hundred seven 
 
         and 99/100 dollars ($107.99) per week payable commencing May 24, 
 
         1986 and continuing each week thereafter, except as interrupted 
 
         for the healing period benefits previously awarded.  The healing 
 
         period compensation interrupts the payment of permanent partial 
 
         disability, but is not credited toward the permanent partial 
 
         disability entitlement.  The entire amount of compensation for 
 
         permanent partial disability is past due and owing and shall be 
 
         paid in a lump sum together with interest pursuant to Code 
 
         section 85.30.
 
         
 
              IT IS FURTHER ORDERED that defendants pay the following 
 
                                                
 
                                                         
 
         medical expenses:
 
         
 
              James K. Coddington, M.D.        $  224.00
 
              Forest Park Pharmacy                 98.00
 
              Mayo Clinic                       2,229.30
 
              T. C. Mead,  M.D.                    72.00
 
              St. Joseph Mercy Hospital           373.25
 
              Total                            $2,996.55
 
         
 
              IT IS FURTHER ORDERED that the costs of this proceeding are 
 
         assessed against defendants pursuant to Division of Industrial 
 
         Services Rule 343-4.33.
 
         
 
              IT IS FURTHER ORDERED that defendants file Claim Activity 
 
         Reports as requested by this agency pursuant to Division of 
 
         Industrial Services Rule 343-3.1.
 
         
 
              IT IS FURTHER ORDERED that claimant's claim concerning an 
 
         alleged injury of February 16, 1987 is denied.
 
         
 
         
 
              Signed and filed this 6th day of February, 1989.
 
         
 
         
 
         
 
         
 
         
 
         
 
                                            MICHAEL G. TRIER
 
                                            DEPUTY INDUSTRIAL 
 
                                            COMMISSIONER
 
         
 
         Copies To:
 
         
 
         Mr. Robert S. Kinsey III
 
         Attorney at Law
 
         214 North Adams
 
         P.O. Box 679
 
         Mason City, Iowa  50401
 
         
 
         Mr. Paul C. Thune
 
         Attorney at Law
 
         Suite 300, Fleming Building
 
         P.O. Box 9130
 
         Des Moines, Iowa  50306-9130
 
 
 
         
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                            1402.20, 1402.30, 1802,
 
                                            1803, 1803.1, 2206, 4000.2 
 
                                            Filed February 6, 1989
 
                                            MICHAEL G. TRIER
 
         
 
                 BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         ANDREA E. PETERSON,
 
         
 
              Claimant,
 
                                                     File Nos. 831489
 
         vs.                                                   848690
 
         
 
         GOOD SHEPHERD HEALTH CENTER,             A R B I T R A T I 0 N
 
         
 
              Employer,                              D E C I S I 0 N
 
         
 
         and
 
         
 
         CONTINENTAL INSURANCE COMPANY,
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
         1402.20, 1402.30, 1802, 1803, 1803.1, 2206, 4000.2
 
         
 
              Claimant suffered a strain which aggravated a preexisting 
 
         degenerative condition in her cervical spine.  She was off work 
 
         for a period of recuperation and then resumed regular employment 
 
         for approximately a year at which time she was again taken off 
 
         work by her physician and has not since returned.  It was held 
 
         that the claimant was entitled to compensation for four separate 
 
         periods of healing period when she was under active medical 
 
         treatment.  The final healing period was ended when a physician 
 
         determined that he had no further treatment to offer for her. 
 
         Claimant awarded 25% permanent partial disability where she was 
 
         unable to resume the duties of her previous employment as a 
 
         nurse's aide.
 
 
 
         
 
 
        
 
 
 
 
 
        
 
        
 
        
 
        
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
        
 
        
 
        JEFFREY BAILEY,
 
        
 
            Claimant,                          File No. 831897
 
        
 
        vs.                                       A P P E A L
 
        
 
        FOX CONSTRUCTION,                       D E C I S I O N
 
        
 
            Employer,                             F I L E D
 
            Defendant.
 
                                                  NOV 30 1989
 
        
 
                                         IOWA INDUSTRIAL COMMISSIONER
 
                                                
 
                                                
 
                                 STATEMENT OF THE CASE
 
        
 
             Defendant appeals from an arbitration decision awarding 
 
             claimant temporary total disability benefits based upon 
 
             claimant's injury on September 26, 1986 which arose out of and in 
 
             the course of his employment with defendant.
 
        
 
            The record on appeal consists of the transcript of the 
 
        arbitration hearing and joint exhibits 1 through 6. Neither 
 
        party filed a brief on appeal.
 
        
 
                                      ISSUES
 
        
 
             As neither party has filed a brief, no issues are specific 
 
             on appeal. The appeal will be considered generally and without 
 
             regards to specific issues.
 
        
 
                                 REVIEW OF THE EVIDENCE
 
        
 
             The arbitration decision filed July 5, 1989 adequately and 
 
             accurately reflects the pertinent evidence and it will not be 
 
             reiterated herein.
 
        
 
                                 APPLICABLE LAW
 
        
 
             The citations of law in the arbitration decision are 
 
             appropriate to the issues and evidence.
 
        
 
                                      ANALYSIS
 
        
 
             The analysis of the evidence in conjunction with the law in 
 
             the arbitration decision is adopted.
 
        
 
                                 FINDINGS OF FACT
 
        
 
             1. Claimant began work for the defendant in July of 1986 
 
             selling fruits and vegetables. In August and September 1986 
 
             claimant drove a dump truck, operated a back hoe and performed 
 
             welding for the defendant.
 
        
 
            2. Claimant was paid by the hour.
 

 
        
 
 
 
 
 
        
 
            3. Claimant was employed to perform a number of different 
 
        tasks, rather than any certain specified piece of work.
 
        
 
            4. Claimant was able to set his own days and hours of work.
 
        
 
            5. There was no contract which specified a fixed price for 
 
        a certain piece of work.
 
        
 
            6. Defendant told claimant what to do and how it should be 
 
        done on a recurrent basis.
 
        
 
            7. Claimant was not free to employ others to assist him.
 
        
 
            8. Defendant furnished the bulk of the necessary tools, 
 
        equipment and supplies for the work which claimant performed.
 
        
 
            9. The work claimant performed was a regular part of 
 
        defendant's business.
 
        
 
            10. Claimant was free to perform work for other individuals 
 
        at times when he was not actually working for defendant.
 
        
 
            11. Either claimant or defendant could have terminated 
 
        their relationship at any time.
 
        
 
            12. Claimant was an employee of George and Juanita Fox 
 
        doing business as Fox Construction on September 26, 1986.
 
        
 
            13. Claimant burned his foot while welding for Fox 
 
        Construction at its place of business on September 26, 1986.
 
        
 
            14. Claimant was medically incapable of returning to work 
 
        substantially similar to that he performed at the time of injury 
 
        from the date of injury until October 16, 1986, a period of three
 
        weeks.
 
        
 
             15. In obtaining reasonable treatment for the injury, 
 
             claimant incurred expenses with Broadlawns Hospital in the total 
 
             amount of $2,828.94.
 
        
 
            16. During the five weeks preceding the injury, claimant 
 
        was paid a total of $520.50.
 
        
 
                                 CONCLUSIONS OF LAW
 
        
 
             The greater weight of evidence indicates claimant was an 
 
             employee of defendant on September 26, 1986.
 
        
 
            Defendant has failed to prove that claimant was an 
 
        independent contractor.
 
        
 
            Claimant sustained an injury on September 26, 1986 which 
 
        arose out of and in the course of his employment with defendant.
 
        
 
            Claimant's work injury of September 26, 1986 was the cause 
 
        of three weeks temporary total disability.
 
        
 
            Claimant has proved entitlement to medical benefits of 
 
        $2,828.94.
 
        
 
            Claimant's rate of compensation is $72.67 per week.
 
        
 
            WHEREFORE, the decision of the deputy is affirmed.
 
        
 
                                      ORDER
 

 
        
 
 
 
 
 
        
 
             THEREFORE, it is ordered:
 
        
 
            That defendant pay claimant three (3) weeks of compensation 
 
        for temporary total disability at the rate of seventy-two and 
 
        67/100 dollars ($72.67) per week commencing September 26, 1986 as 
 
        stipulated.
 
        
 
            That defendant shall pay interest on weekly benefits awarded 
 
        herein as set forth in Iowa Code section 85.30.
 
        
 
            That defendant is to pay Broadlawns Hospital two thousand 
 
        eight hundred twenty-eight and 94/100 dollars ($2,828.94) 
 
        together with any cost of increase as resulting from lack of 
 
        prompt payment pursuant to Iowa Code section 85.27.
 
        
 
            That defendant is to pay the costs of this action and the 
 
        costs of preparation of a transcription on appeal.
 
        
 
            That defendant shall file claim activity reports pursuant to 
 
        Division of Industrial Services Rule 343-3.1(2).
 
        
 
            That defendant shall file a first report of injury pursuant 
 
        to Iowa Code section 86.11.
 
        
 
        
 
             Signed and filed this 30th day of November, 1989.
 
             
 
             
 
             
 
             
 
                                            DAVID E. LINQUIST
 
                                         INDUSTRIAL COMMISSIONER
 
        
 
        Copies To:
 
        
 
        Mr. Phillip Vonderhaar
 
        Attorney at Law
 
        840 Fifth Avenue
 
        Des Moines, Iowa 50309-1398
 
        
 
        Mr. Melio A. Tonini
 
        Attorney at Law
 
        518 Midland Financial Bldg.
 
        Sixth and Mulberry
 
        Des Moines, Iowa 50309
 
        
 
        
 
 
        
 
 
 
 
 
        
 
        
 
        
 
                                     2001 - 2002
 
                                     Filed November 30, 1989
 
                                     DAVID E. LINQUIST
 
        
 
                    BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
        
 
        
 
        JEFFREY BAILEY,
 
        
 
            Claimant,                        File No. 831897
 
        
 
        vs.                                     A P P E A L
 
        
 
        FOX CONSTRUCTION,                           D E C I S I O N
 
        
 
             Employer,
 
             Defendant.
 
             
 
             
 
             
 
        2001 - 2002
 
        
 
             Affirmed deputy's decision that claimant was an employee of 
 
             defendants and entitled to temporary total disability benefits 
 
             for a compensable injury.
 
             
 
        
 
 
        
 
 
 
 
 
        
 
        
 
        
 
        
 
                    BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
        
 
        
 
        JEFFREY BAILEY,
 
        
 
            Claimant,                                File No. 831897
 
        
 
        vs.                                        A R B I T R A T I O N
 
        
 
        FOX CONSTRUCTION,                             D E C I S I O N
 
        
 
            Employer,
 
            Defendant.                                  F I L E D
 
        
 
                                                        JUL 5 1989
 
        
 
                                                    INDUSTRIAL SERVICES
 
        
 
                                      INTRODUCTION
 
        
 
             This is a proceeding in arbitration brought by Jeffrey 
 
             Bailey against Fox Construction, his alleged uninsured employer. 
 
             The case was heard and fully submitted at Des Moines, Iowa on 
 
             December 1, 1988. The record in the proceeding consists of 
 
             testimony from Jeffrey Bailey, George Fox, and Juanita Fox. The 
 
             record also contains jointly offered exhibits 1 through 6. 
 
             Exhibit 8, purportedly an affidavit from Linda Bennett, was not 
 
             listed as an exhibit on the exhibit list made by either party and 
 
             therefore the evidence is excluded. Linda Bennett was listed as 
 
             a witness on a witness list, but no provision was made for 
 
             cross-examination.
 
        
 
                                      ISSUES
 
        
 
             The issues presented by the parties for determination are 
 
             whether Jeffrey Bailey was an employee, rather than an 
 
             independent contractor, of Fox Construction; whether Bailey 
 
             sustained an injury which arose out of and in the course of his 
 
             employment on September 26, 1986; whether the alleged injury 
 
             proximately caused any temporary disability and, if so, 
 
             determination of claimant's entitlement to temporary total 
 
             disability compensation; determination of claimant's weekly rate 
 
             of compensation; and, determination of claimant's entitlement to 
 
             payment of medical expenses under Iowa Code section 85.27.
 
        
 
                                 SUMMARY OF EVIDENCE
 
        
 
             The following is a summary of evidence presented in this 
 
             case. Of all the evidence received at the hearing, only that 
 
             considered most pertinent to this decision is discussed. 
 
             Conclusions about what the evidence showed are inevitable with 
 
             any summarization. The conclusions in the following summary 
 
             should be considered to be preliminary findings of fact.
 
        
 
            Jeffrey Bailey was unmarried on September 26, 1986. He 
 
        described his work history as involving restoration of antique 
 
        juke boxes and welding.
 
        
 
             Bailey testified that he began working for George and 
 

 
        
 
 
 
 
 
             Juanita Fox in July of 1986 selling fruit and vegetables at a 
 
             corner in Des Moines for which he was paid $4.00 per hour. 
 
             Bailey stated that, in August and September, 1986, he drove a 
 
             dump truck, operated a back hoe and performed welding for the 
 
             Foxes. Bailey stated that one of the projects was constructing a 
 
             heating stove for George Fox and performing welding on trailers.
 
        
 
            Bailey testified that, with regard to the day of his alleged 
 
        injury, he had been previously instructed by George Fox 
 
        concerning what Fox wanted him to do. Bailey stated that he 
 
        started the day working on a trailer. He testified that, at the 
 
        time of his injury, he was cutting out one end of a barrel when 
 
        slag fell onto his foot and severely burned it. Bailey stated 
 
        that the task involved welding two big barrels together to 
 
        construct a wood stove to be used in Fox's shop. Bailey 
 
        testified that he went into the house at Fox's place of business 
 
        and that George Fox's daughter-in-law was there. Bailey stated 
 
        that a person by the name of Harold who was at the house then 
 
        took him to Broadlawns Hospital where he received medical 
 
        treatment.
 
        
 
            Bailey testified that he was treated at the hospital and 
 
        then released on the day of injury, but went back a few days 
 
        later and was seen by Anthony J. Leo, M.D. Claimant testified 
 
        that eventually skin grafting was done which required four days 
 
        of hospitalization. Subsequently there were return check-ups and 
 
        visits.
 
        
 
            Bailey testified that he was unable to do anything for a 
 
        period of time as he was on crutches for six weeks and that his 
 
        doctor told him he could not do anything for six to eight weeks.
 
        
 
            Bailey testified that exhibit 3 contains the bills incurred 
 
        in treating the burn injury and that the bills are unpaid. 
 
        Bailey stated that he never received a separate bill from Dr. 
 
        Leo, but that a collection agency has been seeking to collect 
 
        $500 from him for Dr. Leo's services.
 
        
 
            Bailey testified that he was hired by George Fox to drive a 
 
        dump truck, operate a back hoe and do odd jobs around the farm 
 
        ,including maintaining equipment. He stated that one of the 
 
        things was to hang doors on a pole barn in which equipment was 
 
        kept. Bailey stated that George Fox had instructed him 
 
        concerning what do do, how to do it, and in what order.
 
        
 
            Bailey testified that he was paid by the hour, namely $4.00 
 
        per hour for work in the shop and $5.00 per hour for other types 
 
        of work. Bailey testified that, at the end of the day, everyone 
 
        that worked for Fox, including himself, went to the office where 
 
        their work hours were kept on a calendar. Exhibit 6 is a copy of 
 
        that calendar which shows claimant's name and the name of other 
 
        workers.
 
        
 
             Bailey testified that Juanita Fox had laid him off for 
 
             approximately three days, but that George phoned and asked him to 
 
             come back to work as George was going into the hospital and 
 
             wanted someone to be at the shop. Bailey stated that he returned 
 
             to work at the location where he worked with George and was 
 
             instructed by George Fox concerning what he was to do. Bailey 
 
             testified that the trailers he worked on were used in Fox's 
 
             business and that he was paid in the same manner as he had been 
 
             paid previously.
 
        
 
            Bailey testified that the hand tools, welder and welding rod 
 
        that he used were all supplied by Fox, but that claimant used his 
 
        own helmet and leather welding gloves.
 

 
        
 
 
 
 
 
        
 
            Bailey testified that he had no accounts for equipment or 
 
        material at any supply stores and that, on one occasion, he took 
 
        tanks to R & R Welding and signed for Fox on Fox's account.
 
        
 
            Bailey testified that, after leaving the hospital on 
 
        September 26, he returned to Fox's place in order to pick up his 
 
        truck. He stated that it was payday and that he was paid $100, 
 
        as shown on exhibit 5, for working 20 hours that pay period. 
 
        Bailey testified that he was required to sign the receipt which 
 
        appears at page 4 of exhibit 5 as a condition of being given the 
 
        paycheck. Bailey testified that the check stubs shown at page 3 
 
        of exhibit 5 were from his payroll checks and showed the 
 
        withholding of taxes. Bailey stated that, when he received the 
 
        last check on the day of his injury, there was no pay stub and no 
 
        taxes withheld. Bailey stated that he did not object to having 
 
        no taxes taken out of his last check.
 
        
 
            Bailey testified that exhibit 1, which was dated September 
 
        2, 1986, was signed by himself at the request of Juanita Fox. 
 
        Bailey testified that Juanita asked everyone who worked for them 
 
        to sign a document of that type. She told him that it would be 
 
        better for the company and that he would get more money because 
 
        no taxes would be taken out. Bailey stated that after signing 
 
        it, however, nothing changed with regard to his pay, work hours, 
 
        method of keeping track of his work hours or withholding of 
 
        taxes. Bailey testified that he asked about why taxes were still 
 
        being taken out and was advised that the agreement was to be 
 
        disregarded.
 
        
 
            Bailey testified that he considered himself to be an 
 
        employee, not an independent contractor, and that he had never 
 
        operated a welding business on his own.
 
        
 
            Bailey testified that he was supposed to report for work at 
 
        8 o'clock every day, but that he was some times late and that 
 
        there were also days when he did not work at all.
 
        
 
             George Fox, co-owner of Fox Excavating & Trucking, formerly 
 
             known as "Fox Construction," stated that the businesses were 
 
             operated as proprietorships by himself and his wife. Fox 
 
             confirmed that on exhibit 6 the name "Jeff" refers to Jeff 
 
             Bailey.
 
        
 
            George Fox testified that Jeff Bailey represented that he 
 
        knew how to weld. George testified that Jeff got there when he 
 
        wanted to, did the welding and was paid for his time. George 
 
        stated that he would pick out a job for Jeff to do and then 
 
        "contract it to him." George testified that he told Jeff he 
 
        would be working on his own and that Jeff should do the work and 
 
        turn in his time. George stated that he could not depend on Jeff 
 
        to be at work on time and would not hire him as an employee. 
 
        George stated that his policy was that if someone was late on 
 
        three occasions, they were fired. George stated that the 
 
        agreement to contract the work by contract labor meant that Jeff 
 
        Bailey could come and do the job on his own and would be paid by 
 
        the hour. George stated that there were days when Jeff did not 
 
        come to work and that exhibit 6 shows the days and hours that 
 
        Jeff worked. George stated that Jeff never denied being an 
 
        independent contractor or contract laborer.
 
        
 
            Juanita Fox testified that she keeps the company records and 
 
        that the words "contract labor" were on the August 30 and 
 
        September 2, checks issued to Bailey. Juanita stated that 
 
        exhibit 1, the independent contractor agreement, was prepared 
 
        because Bailey stated that he was self-employed and wanted no 
 

 
        
 
 
 
 
 
        taxes taken out of his wages. Juanita stated that, with regard 
 
        to September 26, she had not asked Jeff to be there on that day, 
 
        but that many times he came to work on his own.
 
        
 
            Juanita testified that Bailey used his own truck when he 
 
        sold produce for them.
 
        
 
            Juanita confirmed that, before George went to the hospital, 
 
        he needed some welding done and that Jeff had agreed to do it. 
 
        Juanita stated that Jeff never said anything about wanting to end 
 
        or destroy the written agreement, exhibit 1. Juanita testified 
 
        that Bailey had no set time to come to work or to leave.
 
        
 
            Exhibit 1 is a document entitled "Relationship of Parties" 
 
        which states that Jeff Bailey is an independent contractor. The 
 
        agreement appears to be dated September 2, 1986.
 
        
 
            Exhibit 2 is a collection of medical records showing 
 
        treatment Bailey received. Exhibit 2 indicates that Bailey 
 
        underwent skin grafting for the burn to his foot on October 6, 
 
        1986 and was released from the hospital on October 9, 1986 (pages 
 
        36 and 37). Page 50 of exhibit 2 indicates that, when claimant 
 
        was seen following the graft surgery on October 16, 1986, no 
 
        particular return appointment was scheduled for him.
 
        
 
             Exhibit 3 contains charges from Broadlawns Hospital in the 
 
             amount of $417.69 for claimant's initial emergency room visit and 
 
             $2,411.25 for the hospitalization and skin grafting procedure. 
 
             No statement was presented with regard to charges from Dr. Leo.
 
        
 
                            APPLICABLE LAW AND ANALYSIS
 
        
 
             The first issue to be determined is whether claimant was an 
 
             employee or an independent contractor. In making this 
 
             determination, eight factors are considered. An independent 
 
             contractor is one who carries on an independent business. 
 
             Henderson v. Jennie Edmundson Hospital, 178 N.W.2d 429 (Iowa 
 
             1970); Nelson v. Cities Service Co., 259 Iowa 1209, 146 N.W.2d 
 
             201 (1967); Mallinger v. Webster City Oil Co., 21 Iowa 847, 234 
 
             N.W. 254 (1929).
 
        
 
            In this case, Bailey was paid by the hour. This is a very 
 
        strong indication that he was an employee rather than an 
 
        independent contractor.
 
        
 
            Bailey had no accounts with suppliers. There is no evidence 
 
        that he operated a welding business on his own. There has been 
 
        no evidence to the effect that Bailey held himself out to be a 
 
        welding contractor, only that he knew how to weld. This is an 
 
        indication that he was an employee.
 
        
 
            From the evidence, it appears that Fox employed Bailey to 
 
        perform specific tasks and that Bailey would not have had the 
 
        right to substitute some other individual to perform those tasks. 
 
        This indicates that Bailey was an employee.
 
        
 
            Fox provided all the tools, supplies and materials used by 
 
        Bailey, except that Bailey had used his own truck when selling 
 
        produce and that Bailey used his own welding helmet and leather 
 
        gloves. This factor indicates that Bailey was an employee.
 
        
 
            Bailey worked as needed and was able to set his own hours. 
 
        This would be consistent with Bailey being an independent 
 
        contractor, but it is not totally inconsistent with Bailey being 
 
        an employee.
 
        
 

 
        
 
 
 
 
 
            Bailey performed a number of tasks for Fox. While Fox 
 
        specified what it was that Bailey was to do, there was no process 
 
        of bidding or setting a fixed price for each task. The fact that 
 
        there were a number of different tasks, and that the tasks were 
 
        changed from time to time, indicates that Bailey was an employee 
 
        since he was not contracted to provide a specific piece of work 
 
        at a specific, fixed price.
 
        
 
            The work of welding as well as truck driving and the other 
 
        services which Bailey had performed for Fox during the course of 
 
        their relationship was part of Fox's regular business. This 
 
        factor indicates that Bailey was an employee.
 
        
 
             Bailey testified that he considered himself to be an 
 
             employee. Fox testified that he considered Bailey to be an 
 
             independent contractor. It appears that neither has a good 
 
             understanding of the legal significance of the positions. To 
 
             many, an independent contractor is simply one from whom taxes are 
 
             not withheld. It is found that Bailey specifically requested 
 
             that the Fox's not withhold taxes from his wages and that the 
 
             agreement, exhibit 1, was prepared by the Fox's as a result of 
 
             that request. It is also found that the document was prepared as 
 
             a means of attempting to operate without workers' compensation 
 
             insurance coverage.
 
        
 
            While the intent of the parties is a factor, the law of this 
 
        state requires employers to provide workers' compensation 
 
        coverage for their employees. The law also provides that no 
 
        contract, rule or device shall operate to relieve the employer 
 
        from any of the liability created by Chapter 85 of The Code (Code 
 
        section 85.18). While independent contractors are not entitled to 
 
        benefits under Chapter 85 of The Code, that exclusion applies 
 
        only when the person is in fact a bona fide independent 
 
        contractor. Where the purported independent contractor status is 
 
        merely a sham, as exists in this case, any written agreement is 
 
        void since it violates the laws of this state, in particular Code 
 
        section 85.18.
 
        
 
            It is therefore concluded that Jeff Bailey was an employee 
 
        of Fox Construction on September 26, 1986.
 
        
 
            Bailey's testimony regarding burning his foot while 
 
        performing a welding project which George Fox had wanted him to 
 
        perform is accepted as being correct. It is therefore determined 
 
        that the injury arose out of and in the course of Bailey's 
 
        employment with Fox Construction.
 
        
 
            Dr. Leo indicated that the charges made by Broadlawns 
 
        Hospital are fair and reasonable. It is apparent when exhibits 2 
 
        and 3 are compared in connection with exhibit 4 and claimant's 
 
        testimony that the treatment was for the burn injury. The 
 
        employer is therefore responsible for those expenses with 
 
        Broadlawns Hospital in the total amount of $2,828.94 as shown in 
 
        exhibit 3. Defendant is also responsible for payment of the 
 
        reasonable charges made by Dr. Leo for the services he provided 
 
        to Bailey in treating the burn injury.
 
        
 
            The only remaining issue is claimant's entitlement to 
 
        compensation for temporary total disability. He specifically 
 
        denied having any permanent disability from the injury. Since 
 
        claimant is making the claim, he has the burden of establishing 
 
        the length of time that he was disabled from work. The injury 
 
        occurred on September 26, 1986. He apparently last received 
 
        medical treatment on October 16, 1986. This span is only three 
 
        weeks. A close review of exhibits 3 and 4 fails to provide any 
 
        specific guidance or directive to claimant regarding returning to 
 

 
        
 
 
 
 
 
        work. Most importantly, it is noted that no return visits were 
 
        scheduled subsequent to October 16, 1986. While claimant's 
 
        testimony could support a longer period, the issue of temporary 
 
        total disability is essentially a medical issue to be established 
 
        by evidence from medical practitioners. Since that evidence is 
 
        absent in this case, the temporary total disability compensation 
 
        ends October 16, 1986.
 
        
 
             The rate of compensation must be determined. According to 
 
             exhibit 5, Bailey was paid gross wages in the amount of $520.50 
 
             during the five weeks preceding the injury. This computes to an 
 
             average of $104.10 per week. Since he was single, the 
 
             appropriate rate of compensation would be $72.67 per week. 
 
             Bailey's rate of compensation is therefore $72.67 per week under 
 
             Code sections 85.36(6) and (7).
 
        
 
                                 FINDINGS OF FACT
 
        
 
             1. Jeff Bailey was an employee of George and Juanita Fox 
 
             doing business as Fox Construction on September 26, 1986.
 
        
 
            2. Jeff Bailey burned his foot while welding for Fox 
 
        Construction at its place of business on September 26, 1986.
 
        
 
            3. Bailey was medically incapable of returning to work 
 
        substantially similar to that he performed at the time of injury 
 
        from the date of injury until October 16, 1986, a period of three 
 
        weeks.
 
        
 
            4. In obtaining reasonable treatment for the injury, Bailey 
 
        incurred expenses with Broadlawns Hospital in the total amount of 
 
        $2,828.94.
 
        
 
            5. During the five weeks preceding the injury, Bailey was 
 
        paid a total of $520.50.
 
        
 
            6. Jeff Bailey was paid by the hour.
 
        
 
            7. Jeff Bailey was employed to perform a number of 
 
        different tasks, rather than any certain specified piece of work.
 
        
 
            8. Bailey was able to set his own days and hours of work.
 
        
 
            9. There was no contract which specified a fixed price for 
 
        a certain piece of work.
 
        
 
             10. Fox told Bailey what to do and how it should be done on 
 
             a recurrent basis.
 
        
 
            11. Bailey was not free to employ others to assist him.
 
        
 
            12. George Fox furnished the bulk of the necessary tools, 
 
        equipment and supplies for the work which Bailey performed.
 
        
 
             13. The work Bailey performed was a regular part of Fox's 
 
             business.
 
        
 
            14. Bailey was free to perform work for other individuals 
 
        at times when he was not actually working for Fox.
 
        
 
            15. Either Bailey or Fox could have terminated their 
 
        relationship at any time.
 
        
 
                                 CONCLUSIONS OF LAW
 
        
 
             1. This agency has jurisdiction of the subject matter of 
 

 
        
 
 
 
 
 
             this proceeding and its parties.
 
        
 
            2. Jeff Bailey was an employee of Fox Construction, not an 
 
        independent contractor.
 
        
 
            3. Bailey sustained a burn injury to his left foot which 
 
        arose out of and in the course of his employment with Fox 
 
        Construction.
 
        
 
            4. In obtaining medical treatment for that burn injury, 
 
        Bailey incurred expenses with Broadlawns Hospital in the amount 
 
        of $2,828.94 which the employer is responsible for paying under 
 
        the provisions of Code section 85.27.
 
        
 
            5. Bailey is entitled to recover three weeks of 
 
        compensation for temporary total disability under the provisions 
 
        of Code section 85.33.
 
        
 
            6. Bailey's rate of compensation is $72.67 per week.
 
        
 
                                      ORDER
 
        
 
             IT IS THEREFORE ORDERED that George and Juanita Fox, doing 
 
             business as Fox Construction, pay Jeff Bailey three (3) weeks of 
 
             compensation for temporary total disability at the rate of 
 
             seventy-two and 67/100 dollars ($72.67) per week payable 
 
             commencing September 26, 1986. The entire amount is past due and 
 
             owing and shall be paid in a lump sum together with interest at 
 
             the rate of ten percent (10%) per annum computed from the date 
 
             each payment came due until the date of actual payment in 
 
             accordance with Code sections 85.32 and 85.30.
 
        
 
            IT IS FURTHER ORDERED that George and Juanita Fox, doing 
 
        business as Fox Construction, pay Broadlawns Hospital two 
 
        thousand eight hundred twenty-eight and 94/100 dollars 
 
        ($2,828.94), together with any costs of increase resulting from 
 
        the lack of prompt payment, under the provisions of Code section 
 
        85.27.
 
        
 
            IT IS FURTHER ORDERED that George and Juanita Fox, doing 
 
        business as Fox Construction, pay the costs of this action 
 
        pursuant to Division of Industrial Services Rule 343-4.33.
 
        
 
             IT IS FURTHER ORDERED that George and Juanita Fox, doing 
 
             business as Fox Construction, file claim activity reports as 
 
             requested by this agency pursuant to Division of Industrial 
 
             Services Rule 343-3.1.
 
        
 
            IT IS FURTHER ORDERED that George and Juanita Fox, doing 
 
        business as Fox Construction, file a first report of injury 
 
        pursuant to Code section 86.11 no later than July 27, 1989.
 
        
 
            Signed and filed this 5th day of July, 1989.
 
        
 
        
 
        
 
        
 
                                       MICHAEL G. TRIER
 
                                       DEPUTY INDUSTRIAL COMMISSIONER
 
        
 
        
 
        Copies To:
 
        
 
        Mr. Phil Vonderhaar
 
        Attorney at Law
 
        840 Fifth Avenue
 

 
        
 
 
 
 
 
        Des Moines, Iowa 50309
 
        
 
        Mr. Melio Tonini
 
        Attorney at Law
 
        518 Midland Financial Building
 
        Des Moines, Iowa 50309
 
        
 
        
 
 
        
 
 
 
 
 
        
 
                                            51402.10, 51801
 
                                            Filed July 5, 1989
 
                                            MICHAEL G. TRIER
 
        
 
                    BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
        
 
        
 
        JEFFREY BAILEY,
 
        
 
             Claimant,
 
                                              File No. 831897
 
        vs.
 
                                           A R B I T R A T I O N
 
        FOX CONSTRUCTION,
 
                                              D E C I S I O N
 
             Employer,
 
             Defendant.
 
             
 
             
 
        51402.10
 
        
 
             Claimant, who was paid by the hour and worked at various 
 
             tasks as assigned by the employer on a day-to-day basis, was 
 
             determined to be an employee, despite a written agreement wherein 
 
             he was characterized as an independent contractor. The agreement 
 
             was held to violate Code section 85.18 and was therefore held to 
 
             be void.
 
        
 
        51801
 
        
 
             Claimant awarded three weeks temporary total disability, to 
 
             the date he last received medical treatment, despite his 
 
             testimony that he was disabled for six or eight weeks. There was 
 
             no medical evidence to corroborate his testimony of continuing 
 
             disability and all indicators in the records presented were that 
 
             when he was last seen, no further care was indicated.
 
             
 
        
 
 
        
 
 
 
 
 
        
 
        
 
                       BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
        
 
        LAVERN R. BAHR,
 
        
 
                  Claimant,
 
                                                       File No. 832000
 
        vs.
 
                                                    A R B I T R A T I O 
 
        N
 
        MEINERZ CREAMERY, a Division of
 
        Beatrice Foods, Co., a/k/a                     D E C I S I O N
 
        Beatrice U.S. Food Corp., a/k/a 
 
        Beatrice Companies, Inc.,
 
                                                          F I L E D
 
            Employer,
 
                                                         JUL 14 1989
 
        and
 
                                                     INDUSTRIAL SERVICES
 
        GALLAGHER BASSETT INSURANCE,
 
        
 
            Insurance Carrier,
 
            Defendants.
 
        
 
        
 
                                 STATEMENT OF THE CASE
 
             
 
             This is a proceeding in arbitration brought by claimant 
 
             Lavern R. Bahr against defendant employer Meinerz Creamery (also 
 
             known as Beatrice Foods) and defendant insurance carrier 
 
             Gallagher Bassett Insurance (as shown by the caption used by each 
 
             party in the filing of briefs) as the result of an injury 
 
             allegedly sustained in March, 1985. This matter came on for 
 
             hearing before the undersigned deputy industrial commissioner in 
 
             Dubuque, Iowa, on December 7, 1988. The matter was considered 
 
             fully submitted at the close of hearing. Both parties 
 
             subsequently filed briefs.
 
             
 
             The record in this proceeding consists of claimant's 
 
             exhibits 1 through 4, defendants' exhibits 1 through 4, and the 
 
             testimony of the following witnesses: Claimant, Jerald Erickson 
 
             and David Bormann.
 
             
 
                                      ISSUES
 
             
 
             Pursuant to the prehearing report submitted by the parties 
 
             and approved by the deputy, the following issues have been 
 
             stipulated: Claimant is married and is entitled to two 
 
             exemptions; that the provider of medical services would testify 
 
             that the fees were reasonable and defendants did not offer 
 
             contrary evidence; that defendants are entitled to credit under 
 
             Iowa Code section 85.38(2) for sick pay/disability income in the 
 
             amount of $9,100.
 
        
 
             The following issues were presented for resolution: Whether 
 
             an employment relationship existed between claimant and employer 
 
             at the time of the alleged injury; whether claimant sustained an 
 
             injury in March, 1985, arising out of and in the course of that 
 
             employment; whether the alleged injury caused temporary or 
 
             permanent disability; the extent of claimant's entitlement to 
 
             compensation for temporary total disability or healing period 
 
             benefits and the dates thereof; whether claimant is entitled to 
 

 
        
 
 
 
 
 
             compensation for permanent disability and the commencement date 
 
             thereof; whether the alleged injury caused a scheduled member 
 
             disability or an industrial disability to the body as a whole; 
 
             the rate of weekly compensation if benefits are awarded; 
 
             claimant's entitlement to medical benefits; taxation of costs.
 
        
 
            Defendants attempted to assert a defense of lack of notice 
 
        under Iowa Code section 85.23. Because this issue was not 
 
        identified on the hearing assignment order as an issue for 
 
        hearing, it is waived.
 
        
 
                                 REVIEW OF THE EVIDENCE
 
        
 
             Claimant testified that he began his employment with this 
 
             defendant as a route driver on November 2, 1978. Since claimant 
 
             graduated from high school in 1948, he had worked only as a 
 
             farmer and truck driver. He worked an eight-hour day, driving 
 
             approximately 400 miles. He had no loading or unloading 
 
             responsibilities (this was a milk tanker truck) but did have the 
 
             responsibility for frequently washing the truck with a bucket, 
 
             brush and hose beginning in approximately 1982 or 1983.
 
        
 
            Claimant testified that before 1984, he had no history of 
 
        back pain and had never required treatment. However, in an 
 
        admittedly non-work injury, he slipped on the ice on March 20, 
 
        1984, landing on his hip and shoulder. Claimant saw his family 
 
        physician, Dr. Cahill, and was treated with medication and rest. 
 
        After one week, he was released to return to his work without 
 
        further treatment. Claimant was at that time feeling much better 
 
        and continued to do his job with some pain. Claimant continued 
 
        working until seeing Eugene Herzberger, M.D., after he gradually 
 
        developed great right arm and shoulder pain. Dr. Herzberger took 
 
        claimant off work effective October 22, 1984 (defendants' exhibit 
 
        1). Claimant then of his own volition visited the Mayo Clinic in 
 
        Minnesota and saw Donald C. Campbell, M.D., in February and 
 
        September, 1985.
 
        
 
            Dr. Herzberger released claimant to return to work on 
 
        January 4, 1985 (as per office notes on the letterhead of Dubuque 
 
        Neurology-Neurosurgery Service, P.C., included with his 
 
        deposition, defendants' exhibit 2). However, the employer 
 
        apparently did not accept him back on a trial basis to see if he 
 
        could physically perform the work.
 
        
 
            Claimant eventually returned to work for one and one-half 
 
        days on May 6 and 7, 1985 in a much lighter job. However, 
 
        claimant felt unable to do the work and the employment came to an 
 
        end. The parties dispute whether claimant quit his job or was 
 
        discharged.
 
        
 
             Claimant also testified that he fell down his basement steps 
 
             (three or four steps) in January, 1985, landing on his hip, but 
 
             that he felt better in a couple of weeks. On cross-examination, 
 
             claimant conceded that the fall caused some additional pain to 
 
             his back and more yet to his hips.
 
        
 
             Claimant eventually accepted a full-time position as an 
 
             over-the-road driver with another company in June, 1986. He 
 
             testified that he was suffering no back pain at that time and 
 
             that he probably could have returned to work a few months 
 
             earlier. Claimant also agreed that he currently suffers no pain 
 
             and that he continues to drive a truck and farm tractor.
 
        
 
            Claimant also operates a farm with 140 tillable acres and 
 
        stated on direct examination that he drove his tractor during 
 
        1984, but not since May of that year. Still, he conceded on 
 

 
        
 
 
 
 
 
        cross-examination that he might have been seen driving his farm 
 
        tractor in fall, 1984 or spring, 1985. Claimant still farms and 
 
        helps his son-in-law, although duties have been cut down because 
 
        they have many set-aside acres. Claimant admitted that he might 
 
        have been seen lifting a bale of hay, but only after September, 
 
        1985, and agreed that he was wrong in his deposition when he 
 
        testified that he did no physical labor.
 
        
 
           Claimant testified that in March, 1985, when he worked only 
 
        one and one-half days, he was earning $7.635 per hour, and was 
 
        scheduled to work a regular 40-hour week. He earned "about" $400 
 
        per week as a driver.
 
        
 
            Jerald Erickson testified that he was plant manager of a 
 
        Creston cheese plant and has known claimant as a dependable and 
 
        good employee since 1980. He testified that he saw claimant 
 
        apparently driving a tractor (his pickup truck was parked nearby) 
 
        in fall, 1984, and that he saw claimant handing a bale of hay to 
 
        his cattle in March or April, 1985. Neither sighting resulted 
 
        from surveillance. He described claimant's short-term job in 
 
        March, 1985, as involving no heavy lifting. He testified that 
 
        claimant quit his job because of his back, although claimant had 
 
        earlier testified that Mr. Erickson had told him he was "through" 
 
        because of his inability to perform the work.
 
        
 
            David Bormann testified to being a plant superintendent who 
 
        has known claimant since 1978. He testified that he had seen 
 
        claimant on his tractor twice in the spring of 1985 after the 
 
        employment relationship was terminated.
 
        
 
            In his deposition, Dr. Herzberger testified that claimant's 
 
        history was that of slipping and falling in spring, 1984, and 
 
        thereafter developing pain between the shoulder blades. A bone 
 
        scan was performed, showing only degenerative changes. Dr. 
 
        Herzberger stated further that trauma such as falling can cause 
 
        an exacerbation or lighting up of such a degenerative condition. 
 
        Claimant was described as suffering from osteoarthritis of the 
 
        thoracic spine with minor compressions and wedging (the anterior 
 
        portion of the vertebral bodies becoming smaller than the 
 
        exterior portion, forming the shape of a wedge). Dr. Herzberger 
 
        did take claimant off work when he was first seen on October 22, 
 
        1984.
 
        
 
             At page 6 of his deposition, Dr. Herzberger noted that 
 
             claimant had stated that he "cannot do his usual work which 
 
             requires heavy lifting."
 
        
 
            Dr. Herzberger also testified that claimant was advised to 
 
        return to his work and "test himself" effective January 4, 1985. 
 
        This was the last time claimant was seen. Dr. Herzberger has not 
 
        rendered any opinion as to whether claimant suffers permanent 
 
        disability:
 
        
 
             Q. I take it you have not rendered any opinions on any 
 
             permanent partial disability?
 
             
 
             A. No.
 
             
 
             Q. I take it would it be fair to say you're not in any 
 
             position at this time to do so?
 
             
 
             A. I think that would be quite fair because I feel that if 
 
             it was a muscle strain or an aggravation of his arthritis, 
 
             then it shouLd have healed itself. That's 1985, January 
 
             '85, we're in '88, so it should have healed itself over a 
 
             period of several months.
 

 
        
 
 
 
 
 
             
 
             But it is my routine that if a patient is expected to heal, 
 
             that when he complains of persistent symptoms I like to go 
 
             beyond the regular x-ray or bone scan, I want to have a 
 
             myelogram or CAT scan, perhaps even an MRI scan.
 
             
 
        (Defendants' exhibit 2, page 9, line 19 through page 10, line 8)
 
        
 
             When asked whether he was concerned that claimant's 
 
             over-the-road driving would further complicate his situation, Dr. 
 
             Herzberger testified that "among other things, because of the 
 
             lifting that he had to do as a part of his job" he was concerned. 
 
             He also testified that over-the-road driving where the driver is 
 
             at the wheel for an extended time is stressful to the driver's 
 
             neck and back. He was unable to agree with the proposition that 
 
             claimant in January, 1985, should avoid over-the-road truck 
 
             driving as a career decision.
 
        
 
            Asked if it would be a fair statement that claimant's 
 
        continuing to work from spring until fall, 1984 as an 
 
        over-the-road driver would tend to exacerbate muscle injury or 
 
        arthritis in the back, Dr. Herzberger responded in the 
 
        affirmative. Questioned by defendants' attorney, Dr. Herzberger 
 
        testified:
 
        
 
             Q. Doctor, was there anything you can say based on the 
 
             history that you have that would in any way say that his 
 
             work either made him worse or better after the fall in the 
 
             spring of 1984?
 
             
 
             A. Well, it was my impression that his work and using his 
 
             arms and all of that could have kept alive symptoms that 
 
             perhaps would have subsided if he wouldn't have worked for 
 
             awhile. And that's the reason I kept him off work at that 
 
             time, in an attempt to give him a chance to heal.
 
             
 
             Q. And I take it then if he returned to work as an 
 
             over-the-road truck driver, the rest would have allowed his 
 
             symptoms to go away?
 
             
 
             A. That's what I hoped.
 
             
 
        (Defendants' exhibit 2, page 16, lines 10 through 23)
 
        
 
             Dr. Campbell wrote to Dr. Herzberger on February 8, 1985. 
 
             He stated that x-rays of the thoracic spine showed osteophyte 
 
             formation laterally with wedging of multiple thoracic vertebrae 
 
             and irregular disc spaces. He suspected that these abnormalities 
 
             had been present for a long time and might be developmental, and 
 
             that in any event it was probably a condition that was aggravated 
 
             by the fall in March of 1984. Mr. Bahr had degenerative 
 
             arthritis involving the thoracic spine with interscapular tension 
 
             myalgias. Dr. Campbell further expressed the opinion that 
 
             claimant would not be able to return to a job involving driving 
 
             heavy trucks and doing lifting activities such as is required in 
 
             loading and unloading such trucks. Further, Dr. Campbell stated 
 
             that if claimant could not return to work on a light-duty basis, 
 
             he should change his employment.
 
        
 
            Dr. Campbell made a similar recommendation in a "To Whom It 
 
        May Concern" letter of February 14, 1985 and again on March 22, 
 
        1985. He also made a similar statement in a similar letter dated 
 
        September 17, 1985.
 
        
 
            Dr. Campbell also wrote to claimant's attorney on June 2, 
 
        1986. In pertinent part, he stated:
 

 
        
 
 
 
 
 
        
 
             Although Mr. Bahr's occupational activities probably 
 
             represent an aggravation of this developmental problem, it 
 
             seems more likely that his occupational duties constitute an 
 
             aggravation of the injury in which he fell, in 1984. Mr. 
 
             Bahr's considerable weight is another important factor, 
 
             unrelated to his occupation.
 
        
 
             The x-rays which were taken in February, 1985, and 
 
             September, 1985 reveal anterior wedging of multiple 
 
             mid-thoracic vertebral bodies with hypertrophic changes 
 
             involving the low thoracic and upper lumbar spine.
 
             
 
             The diagnosis is developmental anterior wedging, 
 
             mid-thoracic lumbar vertebrae with hypertrophic changes, 
 
             degenerative arthritis, thoracic spine with interscapular 
 
             tension myalgias, and chronic lumbar strain. The prognosis 
 
             is for intermittent discomfort involving the back which will 
 
             be most likely aggravated by activities such as lifting or 
 
             spending long hours in a car or truck.
 
             
 
             You have asked my opinion regarding the degree in permanency 
 
             of any disability. As is often the case, this is a very 
 
             difficult question to answer. In Minnesota, we have a very 
 
             specific permanent partial disability schedule. In the 
 
             absence of objective findings, such as chronic muscle spasm, 
 
             there would be no provision for a permanent disability 
 
             rating. I'm not familiar [sic] with the requirements in 
 
             Iowa, but I would certainly be pleased to look over any 
 
             schedule which the state of Iowa has established. In any 
 
             event, the amount of permanent impairment will be low.
 
             
 
             You have also asked about my opinion regarding whether Mr. 
 
             Bahr's back condition is causally related to his work. I 
 
             believe that it is. There are two other factors, however, 
 
             that enter in, and it is difficult to assign any relative 
 
             degree to each of these elements. These elements are the 
 
             developmental changes in the thoracic spine, and Mr. Bahr's 
 
             obesity.
 
             
 
        (Plaintiff's exhibit 1, pages 7 and 8)
 
        
 
             Dr. Campbell reported on September 24, 1986, that claimant 
 
             had a permanent "disability" rating of 2.5 percent of the whole 
 
             man with respect to his back, and on January 20, 1987, that 
 
             claimant had a 10 percent impairment of the whole body.
 
        
 
                            APPLICABLE LAW AND ANALYSIS
 
        
 
             An employee is entitled to compensation for any and all 
 
             personal injuries which arise out of and in the course of the 
 
             employment. Section 85.3(1).
 
        
 
            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).
 
        
 
            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.
 
             
 
             The claimant has the burden of proving by a preponderance of 
 
             the evidence that the injury in March of 1985 is causally related 
 
             to the disability on which he now bases his claim. Bodish v. 
 
             Fischer, Inc., 257 Iowa 516, 133 N.W.2d 867 (1965). Lindahl v. 
 
             L.O. Boggs, 236 Iowa 296, 18 N.W.2d 607 (1945). A possibility is 
 
             insufficient; a probability is necessary. Burt v. John Deere 
 
             Waterloo Tractor Works, 247 Iowa 691, 73 N.W.2d 732 (1955). The 
 
             question of causal connection is essentially within the domain of 
 
             expert testimony. Bradshaw v. Iowa Methodist Hospital, 251 Iowa 
 
             375, 101 N.W.2d 167 (1960).
 
        
 
             The opinions of experts need not be couched in definite, 
 
             positive or unequivocal language. Sondag v. Ferris Hardware, 220 
 
             N.W.2d 903 (Iowa 1974). An opinion of an expert based upon an 
 
             incomplete history is not binding upon the commissioner, but must 
 
             be weighed together with the other disclosed facts and 
 
             circumstances. Bodish, 257 Iowa 516, 133 N.W.2d 867 (1965). The 
 
             expert medical evidence must be considered with all other 
 
             evidence introduced bearing on the causal connection between the 
 
             injury and the disability. Burt, 247 Iowa 691, 73 N.W.2d 732 
 
             (1955). In regard to medical testimony, the commissioner is 
 
             required to state the reasons on which testimony is accepted or 
 
             rejected. Sondag, 220 N.W.2d 903 (1974).
 
        
 
            While a claimant is not entitled to compensation for the 
 
        results of a preexisting injury or disease, the mere existence at 
 
        the time of a subsequent injury is not a defense. Rose v. John 
 
        Deere Ottumwa Works, 247 Iowa 900, 908, 76 N.W.2nd 756 (1956). 
 

 
        
 
 
 
 
 
        If the claimant had a preexisting condition or disability that is 
 
        aggravated, accelerated, worsened or lighted up so that it 
 
        results in disability, claimant is entitled to recover. Nicks v. 
 
        Davenport Produce Co., 254 Iowa 130, 115 N.W.2d 812 (1962).
 
        
 
            An employee is not entitled to recover for the results of a 
 
        preexisting injury or disease but can recover for an aggravation 
 
        thereof which resulted in the disability found to exist. Olson 
 
        v. Goodyear Service Stores, 255 Iowa 1112, 125 N.W.2d 251 (1963); 
 
        Yeager v. Firestone Tire & Rubber Co., 253 Iowa 369, 112 N.W.2d 
 
        299 (1961); Ziegler v. United States Gypsum Co., 252 Iowa 613, 
 
        106 N.W.2d 591 (1960). See also Barz v. Oler, 257 Iowa 508, 133 
 
        N.W.2d 704 (1965); Almquist v. Shenandoah Nurseries, 218 Iowa 
 
        724, 254 N.W. 35 (1934).
 
        
 
            While the parties have indicated a dispute as to whether an 
 
        employment relationship existed at the time of the alleged 
 
        injury, this appears really to be a dispute as to when the injury 
 
        occurred, if at all. Although claimant's petition and the 
 
        prehearing report indicate claimant's belief that the injury 
 
        occurred in May, 1985, when he was unable to perform (in his own 
 
        opinion) a different light-duty job, it appears to the 
 
        undersigned that the injury occurred, if at all, on a cumulative 
 
        basis between claimant's return to work from the 1984 off-duty 
 
        fall and October 22, 1984, when Dr. Herzberger took him off duty. 
 
        There is no indication whatsoever of any incident during 
 
        claimant's day and a half at work in May, 1985, except for his 
 
        expressed belief that he was unable to perform the job 
 
        responsibilities. There appears no argument that claimant was 
 
        not an employee during the months preceding October 22, 1984.
 
        
 
             Then, did claimant suffer an injury arising out of and in 
 
             the course of that employment during that time? This is 
 
             fundamentally a question of causation, where we have a claimed 
 
             cumulative injury and no specific incident, such as a traumatic 
 
             injury. As has been seen, causation is essentially within the 
 
             domain of expert testimony. Unfortunately, claimant did not give 
 
             an accurate history to the two physicians whose opinions are in 
 
             the record. Both were of the belief that claimant's job as a 
 
             driver entailed heavy lifting, loading and unloading, and the 
 
             like, while in fact this was not the case. Claimant merely drove 
 
             and on frequent occasions washed his truck.
 
        
 
            However, Dr. Herzberger did opine that claimant's work as an 
 
        over-the-road driver would tend to exacerbate muscles he might 
 
        have injured in his back or his preexisting arthritis. Dr. 
 
        Campbell agreed that claimant's back condition was causally 
 
        related to his work, but also noted that two other factors were 
 
        involved, being claimant's developmental changes and claimant's 
 
        obesity. Neither Dr. Herzberger nor Dr. Campbell was apparently 
 
        aware of claimant's January, 1985 fall down his basement stairs, 
 
        and each lacked the opportunity to express an opinion as to 
 
        whether this was a causative factor in any temporary or permanent 
 
        disability.
 
        
 
            Although the question is close, the undersigned believes 
 
        that these imperfect opinions (imperfect because of faulty 
 
        history) combined with claimant's testimony that he had no back 
 
        problems prior to his 1984 fall, and that he was thereafter able 
 
        to return to work while suffering a gradual worsening over a 
 
        period of months, indicates that there is a causal relationship 
 
        between claimant's employment prior to October 22, 1984 and 
 
        temporary disability subsequent thereto. Claimant's treating 
 
        physician released him to return to his regular position on 
 
        January 4, 1985. This ended the period of temporary disability. 
 
        Armstrong Tire & Rubber Company v. Kubli, 312 N.W.2d 60 (Iowa 
 

 
        
 
 
 
 
 
        App. 1981).
 
        
 
               However, a different result must be reached as to the issue 
 
             of claimant's alleged permanent disability. Dr. Herzberger 
 
             specifically refused to express an opinion on that issue, but did 
 
             note in his deposition his expectation that claimant would heal, 
 
             and that rest would have allowed his symptoms to go away. Dr. 
 
             Campbell felt that the degree of permanency was a difficult 
 
             question to answer and that permanent impairment would be low. 
 
             However, Dr. Campbell noted that there were at least two other 
 
             factors relating to claimant's disability, he incorrectly 
 
             believed that claimant was involved in heavy lifting in his job, 
 
             and was not aware that claimant was continuing to function as an 
 
             active farmer in 1984 and 1985. It might also be noted that Dr. 
 
             Campbell issued two separate ratings of claimant's disability, 
 
             one being four times higher than the other. Based on the 
 
             foregoing, claimant has failed to meet his burden of proof in 
 
             establishing any causal connection between his work injury and 
 
             permanent disability. Rather, he suffered a temporary 
 
             aggravation or exacerbation of a preexisting condition that was 
 
             originally lighted up by his 1984 fall. Therefore, only 
 
             temporary total disability benefits shall be awarded for the 
 
             period from October 22, 1984 through January 4, 1985.
 
        
 
             Evidence as to claimant's rate of compensation was somewhat 
 
             unsatisfactory. However, it is found based on claimant's 
 
             testimony that he had an average weekly wage of $400.00 as of 
 
             October 22, 1984, which is found to be the date of injury (when 
 
             claimant was taken off work by Dr. Herzberger). The workers' 
 
             compensation benefit schedule published by this office and 
 
             effective July 1, 1984 indicates that a married individual with 
 
             two exemptions and an average weekly gross wage of $400.00 has a 
 
             compensation rate of $249.36.
 
        
 
            Although the parties identified medical expenses as a 
 
        disputed issue, claimant testified that his medical expenses had 
 
        been paid through the employer's private health insurance 
 
        carrier. Claimant did not present evidence as to any additional 
 
        medical bills for which reimbursement is sought.
 
        
 
                                 FINDINGS OF FACT
 
        
 
             THEREFORE, based on the evidence presented, the following 
 
             ultimate facts are found:
 
        
 
            1. Claimant was employed by defendant Meinerz Creamery on 
 
        October 22, 1984 and prior thereto.
 
        
 
            2. Claimant suffers from degenerative arthritis involving 
 
        the thoracic spine; x-rays have shown osteophyte formation 
 
        laterally with wedging of multiple thoracic vertebrae and 
 
        irregular disc spaces.
 
        
 
            3. Claimant suffered a non-work injury in a fall on March 
 
        20, 1984; after returning to work, he gradually developed right 
 
        arm and shoulder pain.
 
        
 
            4. Claimant was advised by Dr. Herzberger to go off work 
 
        effective October 22, 1984.
 
        
 
            5. Claimant was released to return to work by Dr. 
 
        Herzberger on January 4, 1985, although the employer did not 
 
        accept him back to work on a trial basis at that time.
 
        
 
            6. Claimant returned to work for only one and one-half days 
 
        in May, 1985, but felt unable to perform his duties. The 
 

 
        
 
 
 
 
 
        employment relationship came to an end at that time.
 
        
 
             7. Claimant's work as an over-the-road driver would tend to 
 
             exacerbate preexisting muscle strains or arthritis, at least on a 
 
             temporary basis.
 
        
 
             8. Although two physicians have opined that claimant 
 
             suffers permanent disability relating to his work, each 
 
             physician's opinion is based in part on a faulty history given by 
 
             claimant in terms of whether or not he was required to do heavy 
 
             lifting on the job. Dr. Campbell was not aware that claimant was 
 
             continuing to function as an active farmer in 1984 and 1985.
 
        
 
            9. As of October 22, 1984, claimant earned an average of 
 
        $400 per week as a gross average weekly wage.
 
        
 
                                 CONCLUSIONS OF LAW
 
        
 
             WHEREFORE, based on the principles of law previously stated, 
 
             the following conclusions of law are made:
 
        
 
            1. Claimant suffered a temporary aggravation of a 
 
        preexisting condition on October 22, 1984, and remained 
 
        temporarily disabled until his release on January 4, 1985.
 
        
 
            2. Claimant's rate of compensation is $249.36 per week.
 
        
 
            3. Claimant has failed to establish permanent disability 
 
        resulting from his cumulative work injury.
 
        
 
            4. As stipulated, defendants are entitled to credit under 
 
        Iowa Code section 85.38(2) in the sum of $9,100.00.
 
        
 
                                      ORDER
 
        
 
             THEREFORE, IT IS ORDERED:
 
        
 
            Claimant is entitled to temporary total disability of ten 
 
        (10) weeks, five (5) days at the rate of two hundred forty-nine 
 
        and 36/100 dollars ($249.36) per week totalling two thousand six 
 
        hundred seventy-one and 64/100 dollars ($2,671.64).
 
        
 
            Because defendants are entitled to credit under Iowa Code 
 
        section 85.38(2) in the sum of nine thousand one hundred and 
 
        00/100 dollars ($9,100.00), no award is appropriate.
 
        
 
            The costs of this action shall be assessed to defendants 
 
        pursuant to Division of Industrial Services Rule 343-4.33.
 
        
 
            Defendants shall file a first report of injury as required 
 
        under Iowa Code section 86.11.
 
        
 
            Signed and filed this 14th day of July, 1989.
 
        
 
        
 
        
 
        
 
        
 
        
 
                                         DAVID RASEY
 
                                         DEPUTY INDUSTRIAL COMMISSIONER
 
        
 
        Copies To:
 
        
 
        Mr. Stephen J. Juergens
 
        Attorney at Law
 

 
        
 
 
 
 
 
        200 Security Building
 
        Dubuque, Iowa 52001
 
        
 
        Mr. Jay P. Roberts
 
        Attorney at Law
 
        528 West Fourth
 
        P.O. Box 1200
 
        Waterloo, Iowa 50704
 
        
 
        
 
 
        
 
 
 
 
 
        
 
                                            51402.40, 51801, 51803
 
                                            Filed July 14, 1989
 
                                            DAVID RASEY
 
        
 
                    BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
        
 
        
 
        LAVERN R. BAHR,
 
        
 
             Claimant,
 
             
 
        vs.                                                  File No. 
 
        832000
 
        
 
        MEINERZ CREAMERY, a Division of                      A R B I T R 
 
        A T I O N
 
        Beatrice Foods, Co., a/k/a
 
        Beatrice U.S. Food Corp., a/k/a                      D E C I S I 
 
        O N
 
        Beatrice Companies, Inc.,
 
        
 
            Employer,
 
        
 
        and
 
        
 
        GALLAGHER BASSETT INSURANCE,
 
        
 
            Insurance Carrier,
 
            Defendants.
 
        
 
        
 
        51402.40, 51801, 51803
 
        
 
             Claimant established entitlement to temporary total 
 
             disability, but not permanent disability.