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.