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                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            TIM BROWN,                    :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :      File No. 834047
 
            REINSCHMIDT FLOOR             :
 
            SPECIALISTS,                  :
 
                                          :        A P P E A L
 
                 Employer,                :
 
                                          :      D E C I S I O N
 
            and                           :
 
                                          :
 
            ST. PAUL PROPERTY AND         :
 
            LIABILITY INSURANCE,          :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
            
 
                              statement of the case
 
            
 
                 Defendants appeal from an arbitration decision 
 
            determining that claimant was an employee of the alleged 
 
            defendant employer and awarding claimant 50 percent 
 
            industrial disability as a result of an alleged work injury 
 
            on July 31, 1986.
 
            
 
                 The record on appeal consists of the transcript of the 
 
            arbitration hearing; claimant's exhibit 1; and joint 
 
            exhibits 1 through 27.  Both parties filed briefs on appeal 
 
            and defendants filed a reply brief.
 
            
 
                                      issues
 
            
 
                 Defendants state the issues on appeal are:
 
            
 
                 1.  Whether an employer-employee relationship 
 
                 existed between Claimant and the alleged Defendant 
 
                 Employer at the time of the alleged injury;
 
            
 
                 2.  Whether Claimant received an injury arising 
 
                 out of and in the course of his employment;
 
            
 
                 3.  Whether there is a causal relationship between 
 
                 the alleged work injury and the claimant's 
 
                 disability;
 
            
 
                 4.  The extent of Claimant's entitlement to weekly 
 
                 benefits for disability; and
 
            
 
                 5.  The extent of Claimant's entitlement to 
 
                 medical benefits.
 
            
 
                              review of the evidence
 

 
            
 
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                 Claimant was born April 4, 1944 and obtained his GED 
 
            following his alleged July 31, 1986 work injury.  In 
 
            addition, claimant received vocational rehabilitation 
 
            through Southeastern Community College in the area of 
 
            robotics but was unable to complete the program.  The 
 
            majority of claimant's work experience has been in the field 
 
            of installation of floor covering.  Claimant had been 
 
            employed by defendant employer previously but left in 1978.  
 
            Claimant had been self-employed as a floor installer and 
 
            once operated a tavern.  Claimant also worked as a 
 
            commercial carpenter.  Claimant returned to defendant 
 
            employer from 1982 until November 15, 1986 as a floor 
 
            installer.  Claimant testified that he terminated his 
 
            employment with defendant employer as a result of a dispute 
 
            concerning a job assignment.  Claimant was paid by defendant 
 
            employer $20,044.78 in 1985 and $18,586.89 until he left in 
 
            1986 for his work as a carpet installer.
 
            
 
                 James Rheinschmidt, the president and officer in charge 
 
            of the day-to-day operations of defendant employer, 
 
            testified that claimant was an independent contractor.  No 
 
            withholding taxes or social security taxes were deducted 
 
            from amounts paid claimant.  Claimant filed a business 
 
            schedule to report his income from defendant employer on his 
 
            tax returns.  Rheinschmidt testified that claimant agreed to 
 
            this arrangement.  According to Rheinschmidt, other 
 
            installers who objected to a subcontracting arrangement were 
 
            paid by the hour and were considered employees of the 
 
            defendant employer.  
 
            
 
                 Claimant was paid by the square yard for carpet 
 
            installed.  Claimant testified that he was also paid by the 
 
            hour for moving furniture.  Claimant and Peter Beyers, a 
 
            former employee of the defendant employer, testified that no 
 
            bidding or negotiating process determined the amount the 
 
            installer would be paid by defendant employer.  Claimant 
 
            would submit a piece of paper to defendant employer with 
 
            claimed expenses.  Rheinschmidt testified that adjustments 
 
            would be made to reflect corrections of errors in arithmetic 
 
            and fees which failed to comply with the fee schedule.  
 
            Claimant received one check at the end of the week for jobs 
 
            completed.  Claimant was not paid for each job individually.  
 
            
 
                 Claimant furnished his own tools, however, the 
 
            defendant employer furnished specialized tools that were not 
 
            used regularly by the installers.  Claimant furnished his 
 
            own truck to drive to assignments and was reimbursed $.10 a 
 
            mile for out-of-town installation.  Claimant testified that 
 
            he hired his sons as assistants and claimant's tax return in 
 
            1986 indicated that claimant paid his assistants $3,000 in 
 
            wages.  Claimant was required by defendant employer to 
 
            furnish general liability insurance.  The general insurance 
 
            policy was in claimant's name doing business as Browns 
 
            Carpet Service.  Claimant testified that the general 
 
            liability insurer needed a business name to fill out the 
 
            policy and unilaterally put that name on the policy.
 
            
 
                 Claimant offered into evidence a copy of an 
 
            advertisement published by defendant employer which stated 
 

 
            
 
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            that their carpet was installed by their "own 
 
            professionals."  Claimant testified that customer complaints 
 
            were handled by the defendant employer.  In addition, 
 
            claimant was to contact the defendant employer for guidance 
 
            if problems developed during installation.  The installer 
 
            received a layout plan and pre-cut carpeting for each 
 
            installation job.  Installers received assignments on a 
 
            daily basis according to the defendant employer's work 
 
            schedule.  
 
            
 
                 Claimant testified that it was understood that 
 
            installers were not to work for competitors.  Rheinschmidt 
 
            testified the defendant employer attempted to keep the 
 
            installers busy so they would have no need to seek other 
 
            employment with competitors.  Installers, however, were not 
 
            directed not to work for the competitors.  
 
            
 
                 Claimant testified that in April 1986, claimant felt a 
 
            "tear" in his low back and low back pain ensued while 
 
            loading carpeting into his truck.  Claimant continued to 
 
            work but eventually sought medical treatment at a local 
 
            hospital or emergency room two weeks later.  The hospital 
 
            records indicate that claimant denied that he sustained an 
 
            injury.  X-rays taken on April 22, 1986 revealed narrowing 
 
            of the L4-5 disc space and minimal marginal spurring at 
 
            several levels.  Joint Exhibit 5, page 26.   
 
            
 
                 Claimant testified that on July 31, 1986, claimant 
 
            injured his back again when he felt pain following another 
 
            "tear" after turning or twisting to reach for a tool while 
 
            installing floor covering.  Office records from Orthopaedic 
 
            & Reconstructive Surgery Association, P.C., dated July 25, 
 
            1986 states: "Called the office requesting prescription for 
 
            APAP #3, for back pain.   The patient has a [sic] 
 
            appointment on August 5th, Dr. Nelson okays APAP #3."  Jt. 
 
            Ex. 2, p. 8.  Claimant was examined by Dwayne Nelson, M.D., 
 
            on August 5, 1986.  Medical records state: "[m]y impression 
 
            is that his low back pain is secondary to irritation and 
 
            degenerative breakdown of the lumbar discs."  Jt. Ex. 2, p. 
 
            8.  A six-week release was written.  
 
            
 
                 Claimant was off work due to his back pain from August 
 
            5 through October 13, 1986.  Claimant returned to Dr. Nelson 
 
            on September 15, 1986 for a follow-up appointment for his 
 
            low back pain.  Dr. Nelson diagnosed degenerative disc 
 
            disease at L4-5 level and opined that there is no surgical 
 
            treatment for the condition.  During this time, claimant 
 
            received medication, a back brace, and physical therapy 
 
            exercise.
 
            
 
                 Also at this time, claimant developed left cubital 
 
            tunnel syndrome.  Claimant previously had problems with his 
 
            wrist and received surgical treatment for bilateral carpal 
 
            tunnel syndrome.  Claimant was scheduled for cubital tunnel 
 
            release on February 17, 1987.  
 
            
 
                 Claimant testified that he returned to work on October 
 
            14, 1986.  Claimant testified that he left work on November 
 
            15, 1986 when defendant employer assigned a job to another 
 
            employee.  Claimant did not return to work with defendant 
 

 
            
 
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            employer.  
 
            
 
                 In December 1986, claimant worked for two weeks for 
 
            Messer Carpet.  Sandra Messer, the co-manager of Messer 
 
            Carpet, testified that claimant worked for them for eleven 
 
            days in December 1986 laying floors.  Messer testified that 
 
            her husband told her that claimant left their employment 
 
            because he wanted more money.  Claimant earned $12.50 an 
 
            hour as a carpet installer at Messer Carpet.  Claimant 
 
            testified that he was compelled to quit his job with Messer 
 
            Carpet because of continuing back pain.  
 
            
 
                 Claimant was evaluated on January 14, 1987 by Thomas 
 
            Lehman, M.D., at the University of Iowa Hospitals and 
 
            Clinics in Iowa City, Iowa.  Dr. Lehman opined: 
 
            
 
                    This 42-year-old white male has what most 
 
                 likely appears to be a ruptured nucleus pulposus 
 
                 (mild to moderate) at the level of 5-6 and 4-5.  
 
                 He has had a work related injury and is presently 
 
                 temporarily totally disabled with 10 percent body 
 
                 impairment since 12-19-86.  If his pain and 
 
                 symptoms worsen, he may be a surgical candidate in 
 
                 the future.  However, at the present time patient 
 
                 complains of decreased back pain and leg pain 
 
                 because he has not been working.  The patient is 
 
                 to return to clinic PRN and continue using his 
 
                 Naprosyn and flexion exercises.
 
              
 
            Jt. Ex. 6, p. 1.  
 
            
 
                 Claimant returned to the University of Iowa Hospitals 
 
            and Clinics on September 6, 1987 but his chart could not be 
 
            produced for the visit.  Rather than receiving treatment 
 
            that day, claimant left.  The medical record states that:
 
            
 
                 The patient was unwilling to discuss his case 
 
                 today, fearing that some of the fact [sic] might 
 
                 be different from prior visits and this might have 
 
                 an effect on his litigation and so that [sic] 
 
                 rather than be seen today and rediscuss his 
 
                 history to any extent at all he elected to come 
 
                 back when the chart could be produced.
 
            
 
            Jt. Ex. 6, p. 2.
 
            
 
                 On September 17, 1987, claimant was seen by William R. 
 
            Miley, M.D., at the University of Iowa Hospitals and 
 
            Clinics.  Dr. Miley reported that after his evaluation of 
 
            claimant he found that claimant was suffering from chronic 
 
            low back pain possibly secondary to a herniated disc with 
 
            only moderate amount of leg pain.  Dr. Miley opined that 
 
            claimant suffers from a 10 percent permanent partial 
 
            impairment.  
 
            
 
                 In November 1986, Dr. Nelson left the employ of the 
 
            professional corporation and another orthopedic surgeon from 
 
            that corporation, Jerry Jochims, M.D., began treating 
 
            claimant.  His treatment essentially consisted of 
 
            prescriptions for pain medication.  In July 1988, Dr. 
 

 
            
 
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            Jochims performed a disability evaluation on claimant.  Upon 
 
            a final diagnosis of "failed disc syndrome" claimant was 
 
            rated by Dr. Jochims as having a 10 percent permanent 
 
            partial impairment to the body as a whole.  Dr. Jochims did 
 
            not feel that surgery was warranted and recommended 
 
            conservative management with job modification including 
 
            vocational retraining.
 
            
 
                 At the hearing, defendants' attorney asked claimant 
 
            whether he had back problems prior to 1986, claimant 
 
            testified that he had hip problems but his back was real 
 
            good.   The records of Raymond Hanks, D.C., accounted 
 
            claimant's extensive history of back treatments. 
 
            
 
                 He was cared for by me previous to that time but I 
 
                 sold my office and left all my records.  I moved 
 
                 to Oklahoma for approximately 2 years and 
 
                 returned.  His previous records have been 
 
                 destroyed.  During that period he was treated 
 
                 mostly for low back and knee problems.  
 
            
 
                 TX - 9-29-75, 10-27-75, 10-31-75, 11-11-75, 
 
                 11-24-75, 12-3-75, 12-24-75 (lower back) (MAN)
 
            
 
                 ____________________
 
            
 
                 TX - 2-3-76, 2-9-76, 5-28-76, 6-25-76, (6-30-76 
 
                 Occipital headache on the right side), 7-2-76, 
 
                 8-27-76, 9-3-76, 11-12-76, 11-24-76 (lower back) 
 
                 (MAN)
 
            
 
                 ___________________
 
            
 
                 TX - 2-10-77, 4-15-77, 4-20-77, 5-17-77, 5-25-77, 
 
                 53177, 6-20-77, 10-27-77, 10-28-77, 11-8-77, 
 
                 12-7-77 (lower back) (MAN)
 
            
 
                 ___________________
 
            
 
                 TX - 2-14-78, 2-20-78, 3-2-78, 3-15-78, 4-12-78, 
 
                 51778, 7-21-78, 7-25-78, 8-10-78, 8-16-78, 
 
                 8-23-78, 8-30-78 (carpet laying problem left 
 
                 shoulder) as well as 9-1-78 --- 9-5-78, 9-13-78, 
 
                 9-20-78, 9-28-78, 10278, 10-6-78, 10-18-78, 
 
                 11-7-78, 12-1-78, 121878. (No insurance -- MAN 
 
                 lower back) (high blood pressure 8-10-78 - TX MD)
 
            
 
                 ___________________
 
            
 
                 TX - 3-5-79, 3-13-79, 4-2-79, 4-20-79, 4-26-79, 
 
                 5-8-79, 5-25-79, 6-7-79, 6-27-79 (No insurance - 
 
                 MAN - lower back)
 
            
 
                 ___________________
 
            
 
                 TX - (4-20-80 slipped off a ladder at home) TX on 
 
                 42180 for low back - Ins: Carpenters Welfare. 
 
                 7-1-80, 7-8-80, 7-11-80, 7-14-80 (muscle spasms in 
 
                 his neck - wry neck) and on 7-17-80, 7-25-80 - 
 
                 MAN.  10-18-80 fell down steps at home and on 
 

 
            
 
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                 10-20-80 leaned over to pick up quarter - 
 
                 resultant pain DX, muscle spasm lower thoracic 
 
                 spine and L-S sprain and TX on: 10-29-80, 1031-80, 
 
                 11-3-80, 11-5-80, 11-11-80, 11-14-80 (US & MAN - 
 
                 Ins: Carpenters Welfare).  11-21-83 [sic], 112380 
 
                 - Slight headache over left eye and lower back.  
 
                 11-26-80, 11-28-80 - Slight headache over left eye 
 
                 and lower back.  12-16-80
 
            
 
                 ___________________
 
            
 
                 TX - 1/8/81 (started smoking again) 2-9-81, 
 
                 3-19-81, 825-81, 10-13-81, 11-25-81; 12-27-81 
 
                 twisted lower back lifting on wood - 12-29-81, 
 
                 12-30-81, 12-31-81, 15-82, 1-7-82, 1-8-82 DX 
 
                 Acute, severe, post traumatic lumbar sprain/strain 
 
                 with associated deep and superficial muscle spasms 
 
                 radiating the trajectory of the lumbosacral 
 
                 plexus, bilaterally. 
 
            
 
            Jt. Ex. 1, pp. 1-2.
 
            
 
                 In 1982, claimant suffered a neck injury following an 
 
            automobile accident and was rated by Dr. Hanks as suffering 
 
            from a 40 percent permanent partial disability due to these 
 
            injuries.  Dr. Jochims also rated claimant's neck impairment 
 
            following the 1982 accident and according to him, claimant 
 
            suffered only a two percent permanent partial impairment due 
 
            to the neck problems and a one percent permanent partial 
 
            impairment due to a thumb problem.
 
            
 
                 Claimant was seen on July 15, 1988 for an evaluation of 
 
            claimant's back problem by Dr. Jochims.  Dr. Jochims 
 
            testified that the x-rays indicated that claimant had "mild 
 
            signs of disk degeneration in the lower lumber levels, 
 
            consistent with and normal for the patient's age."  Ex. 8, 
 
            p. 15.  Dr. Jochims opined that claimant's potential for 
 
            employment in physically demanding jobs was low.  As a 
 
            result of claimant's back injury, Dr. Jochims rated claimant 
 
            as 10 percent permanency to the whole man.  Dr. Jochims 
 
            opined that claimant's condition is non-operative.  On 
 
            cross-examination, Dr. Jochims indicated that he was not 
 
            aware that claimant had an extensive history of chiropractic 
 
            adjustment care for low back pain beginning sometime in the 
 
            1960's.  
 
            
 
                 Claimant states that after the July 1986 incident, he 
 
            no longer lifts heavy objects, sits or stands for prolonged 
 
            periods of time, and can no longer crawl, twist or bend in 
 
            the manner necessary to install floor coverings.  Claimant 
 
            said that he is improved when he does not exert himself.  
 
            Neither physician at the University of Iowa Hospitals and 
 
            Clinics prescribed any work restrictions.  Dr. Miley 
 
            encouraged claimant to continue college.  Dr. Jochims did 
 
            not place restrictions upon claimant but recommended job 
 
            retraining.
 
            
 
                                  applicable law
 
            
 
                 Claimant has the burden of proving an employee-employer 
 

 
            
 
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            relationship between himself and defendant employer at the 
 
            time of the alleged injury.  Only employees are entitled to 
 
            compensation for work related injuries and occupational 
 
            diseases under Chapters 85 and 85A of the Iowa Code.  Iowa 
 
            Code subsections 85.61(2) and (3) define employee as 
 
            follows:
 
            
 
                 2. "Worker" or "employee" means a person who as 
 
                 entered into the employment of, or works under 
 
                 contract of service, express or implied, ... for 
 
                 an employer;...
 
            
 
                    ....
 
            
 
                 3.  The following persons shall not be deemed 
 
                 "workers" or "employees":
 
            
 
                    ....
 
            
 
                    b.  An independent contractor.
 
            
 
                 The Iowa Supreme Court stated in Nelson v. Cities 
 
            Service Oil Co., 259 Iowa 1209, 1213, 146 N.W.2d 261 (1966) 
 
            as follows:
 
            
 
                    This court has consistently held it is a 
 
                 claimant's duty to prove by a preponderance of the 
 
                 evidence he or his decedent was a workman or 
 
                 employee within the meaning of the law, and he or 
 
                 his decedent received an injury which arose out of 
 
                 and in the course of employment.
 
            
 
                    And, if a compensation claimant establishes a 
 
                 prima facie case the burden is then upon defendant 
 
                 to go forward with the evidence and overcome or 
 
                 rebut the case made by claimant.  He must also 
 
                 establish by a preponderance of the evidence any 
 
                 pleaded affirmative defense or bar to 
 
                 compensation.  (Citations omitted.)
 
            
 
                 The Iowa Supreme Court has recognized five factors in 
 
            determining whether or not an employee-employer relationship 
 
            exists: (1) the right of selection, or to employ at will; 
 
            (2) responsibility for payment of wages by the employer; (3) 
 
            the right of discharge or termination of the relationship; 
 
            (4) the right to control the work; and (5) identity of the 
 
            employer as the authority in charge or for whose benefit it 
 
            is performed.  The overriding issue is the intention of the 
 
            parties.  Caterpillar Tractor Co. v. Shook, 313 N.W.2d 503 
 
            (Iowa 1981).  In the Caterpillar Tractor case, the court 
 
            added that the primary practice of the workers' compensation 
 
            statute is to benefit the workers as far as the statute 
 
            permits and should be interpreted liberally with the view 
 
            toward that objective.  The court stated as follows at 506:
 
            
 
                 [T]he statute is intended to cast upon the 
 
                 industry in which the worker is employed a share 
 
                 of the burden resulting from industrial 
 
                 accidents.... As a result, "any worker whose 
 
                 services form a regular and continuing part of the 
 

 
            
 
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                 cost of the product, and whose method of operation 
 
                 is not such an independent business that it forms 
 
                 in itself a separate route through which his own 
 
                 costs of industrial accident can be channeled, is 
 
                 within the presumptive area of intended 
 
                 protection." (Citations omitted.)
 
            
 
                 If then a claimant has established a prima facie case 
 
            for employee-employer relationship, the defendant may assert 
 
            an affirmative defense that claimant was an independent 
 
            contractor.  The Iowa Supreme Court has provided the 
 
            following tests to determine independent contractor status:
 
            
 
                 ... An independent contractor, under the quite 
 
                 universal rule, may be defined as one who carries 
 
                 on an independent business, and contracts to do a 
 
                 piece of work according to his own methods, 
 
                 subject to the employer's control only as to 
 
                 results.  The commonly recognized tests of such a 
 
                 relationship are, ...: (1) the existence of a 
 
                 contract for the performance by a person of a 
 
                 certain piece or kind of work at a fixed price; 
 
                 (2) independent nature of his business or of his 
 
                 distinct calling; (3) his employment of 
 
                 assistants, with the right to supervise their 
 
                 activities; (4) his obligation to furnish 
 
                 necessary tools, supplies, and materials; (5) his 
 
                 right to control the progress of the work, except 
 
                 as to final results; (6) the time for which the 
 
                 workman is employed; (7) the method of payment, 
 
                 whether by time or by job; (8) whether the work is 
 
                 part of the regular business of the employer.
 
            
 
            Mallinger v. Webster City Oil Co., 211 Iowa 847, 851; 234 
 
            N.W. 254 (1931).
 
            
 
                 It is for triers of fact to determine whether or not 
 
            there is a sufficient group of favorable factors to 
 
            establish a relationship of independent contractors.  
 
            Hassebroch v. Weaver Construction Co., 246 Iowa 622, 67 
 
            N.W.2d 549, 553 (1955).
 
            
 
                 Claimant has the burden of proving by a preponderance 
 
            of the evidence that he received an injury on July 31, 1986 
 
            which arose out of and in the course of his employment.  
 
            McDowell v. Town of Clarksville, 241 N.W.2d 904 (Iowa 
 
            1976); Musselman v. Central Telephone Co., 261 Iowa 352, 154 
 
            N.W.2d 128 (1967). 
 
            
 
                 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 (l963) 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 
 

 
            
 
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            injury.  Crowe, 246 Iowa 402, 68 N.W.2d 63.  The words "in 
 
            the course of" refer to the time and place and circumstances 
 
            of the injury.  McClure v. Union et al. Counties, 188 N.W.2d 
 
            283 (Iowa 1971); Crowe, 246 Iowa 402, 68 N.W.2d 63.
 
            
 
                 The claimant has the burden of proving by a 
 
            preponderance of the evidence that the injury of July 31, 
 
            1986 is causally related to the disability on which he now 
 
            bases his claim.  Bodish v. Fischer, Inc., 257 Iowa 516, 133 
 
            N.W.2d 867 (1965).  Lindahl v. L. O. Boggs, 236 Iowa 296, 18 
 
            N.W.2d 607 (1945).  A possibility is insufficient; a 
 
            probability is necessary.  Burt v. John Deere Waterloo 
 
            Tractor Works, 247 Iowa 691, 73 N.W.2d 732 (1955).  The 
 
            question of causal connection is essentially within the 
 
            domain of expert testimony.  Bradshaw v. Iowa Methodist 
 
            Hospital, 251 Iowa 375, 101 N.W.2d 167 (1960). 
 
            
 
                 However, expert medical evidence must be considered 
 
            with all other evidence introduced bearing on the causal 
 
            connection.  Burt, 247 Iowa 691, 73 N.W.2d 732.  The opinion 
 
            of experts need not be couched in definite, positive or 
 
            unequivocal language.  Sondag v. Ferris Hardware, 220 N.W.2d 
 
            903 (Iowa 1974).  However, the expert opinion may be 
 
            accepted or rejected, in whole or in part, by the trier of 
 
            fact.  Id., at 907.  Further, the weight to be given to such 
 
            an opinion is for the finder of fact, and that may be 
 
            affected by the completeness of the premise given the expert 
 
            and other surrounding circumstances.  Bodish, 257 Iowa 516, 
 
            133 N.W.2d 867.  See also Musselman, 261 Iowa 352, 154 
 
            N.W.2d 128.
 
            
 
                 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.2d 756, 760-61 (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, 815 
 
            (1962).
 
            
 
                 To be a preexisting condition, an actual health 
 
            impairment must exist, even if it is dormant.  Blacksmith v. 
 
            All-American, Inc., 290 N.W.2d 348, 354 (Iowa 1980).
 
            
 
                 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 Hosp. 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).
 
            
 
                 An employer takes an employee subject to any active or 
 
            dormant health impairments, and a work connected injury 
 

 
            
 
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            which more than slightly aggravates the condition is 
 
            considered to be a personal injury.  Ziegler, 252 Iowa 613, 
 
            620, 106 N.W.2d 591, and cases cited.
 
            
 
                 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, 255 Iowa 1112, 125 N.W.2d 251; Yeager, 253 
 
            Iowa 369, 112 N.W.2d 299; Ziegler, 252 Iowa 613, 106 N.W.2d 
 
            591.  See also Barz, 257 Iowa 508, 133 N.W.2d 704; Almquist, 
 
            218 Iowa 724, 254 N.W. 35.
 
            
 
                 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, 255 Iowa 1112, 125 N.W.2d 251.  Barton 
 
            v. Nevada Poultry, 253 Iowa 285, 110 N.W.2d 660 (1961).
 
            
 
                 A finding of impairment to the body as a whole found by 
 
            a medical evaluator does not equate to industrial 
 
            disability.  This is so as impairment and disability are not 
 
            synonymous.  Degree of industrial disability can in fact be 
 
            much different than the degree of impairment because in the 
 
            first instance reference is to loss of earning capacity and 
 
            in the latter to anatomical or functional abnormality or 
 
            loss.  Although loss of function is to be considered and 
 
            disability can rarely be found without it, it is not so that 
 
            a degree of industrial disability is proportionally related 
 
            to a degree of impairment of bodily function.
 
            
 
                 Factors to be considered in determining industrial 
 
            disability include the employee's medical condition prior to 
 
            the injury, immediately after the injury, and presently; the 
 
            situs of the injury, its severity and the length of healing 
 
            period; the work experience of the employee prior to the 
 
            injury, after the injury and potential for rehabilitation; 
 
            the employee's qualifications intellectually, emotionally 
 
            and physically; earnings prior and subsequent to the injury; 
 
            age; education; motivation; functional impairment as a 
 
            result of the injury; and inability because of the injury to 
 
            engage in employment for which the employee is fitted.  Loss 
 
            of earnings caused by a job transfer for reasons related to 
 
            the injury is also relevant.  These are matters which the 
 
            finder of fact considers collectively in arriving at the 
 
            determination of the degree of industrial disability.
 
            
 
                 There are no weighting guidelines that indicate how 
 
            each of the factors are to be considered.  There are no 
 
            guidelines which give, for example, age a weighted value of 
 
            ten percent of the total value, education a value of fifteen 
 
            percent of total, motivation - five percent; work experience 
 
            - thirty percent, etc.  Neither does a rating of functional 
 
            impairment directly correlate to a degree of industrial 
 
            disability to the body as a whole.  In other words, there 
 
            are no formulae which can be applied and then added up to 
 
            determine the degree of industrial disability.  It therefore 
 
            becomes necessary for the deputy or commissioner to draw 
 
            upon prior experience, general and specialized knowledge to 
 

 
            
 
            Page  11
 
            
 
            
 
            
 
            
 
            make the finding with regard to degree of industrial dis
 
            ability.  See Peterson v. Truck Haven Cafe, Inc., (Appeal 
 
            Decision, February 28, 1985); Christensen v. Hagen, Inc., 
 
            (Appeal Decision, March 26, 1985).
 
            
 
                                     analysis
 
            
 
                 The issue of odd-lot was asserted by claimant at the 
 
            hearing but denied because it was not timely raised.  
 
            Claimant did not assert odd-lot on appeal, therefore, it 
 
            will not be considered.
 
            
 
                 1.  Whether an employer-employee relationship 
 
                 existed between the Claimant and the alleged 
 
                 Defendant Employer at the time of the alleged 
 
                 injury?
 
            
 
                 Claimant has the burden of proving an employee-employer 
 
            relationship.  Claimant could terminate the relationship 
 
            with defendant employer at any time regardless of the 
 
            completeness of the job.  Defendant employer paid claimant 
 
            one check for weekly wages on both work claimant did by the 
 
            yard and the hourly work claimant performed.  The rates 
 
            which claimant was paid were set out on a payment schedule 
 
            and there was no negotiation or bidding that took place 
 
            between the installers and the defendant employer.  If there 
 
            were errors in the arithmetic or the fees did not correspond 
 
            to the rate schedule, defendant employer would make the 
 
            changes unilaterally.  
 
            
 
                 Installers picked up pre-cut carpet and instructions on 
 
            how the carpet should be laid out for each particular job.  
 
            Although claimant worked unsupervised, if problems developed 
 
            he was expected to call defendant employer for instructions.  
 
            Claimant was permitted to hire assistants to help with the 
 
            installations.  Claimant was responsible for the supervision 
 
            and the compensation of the assistants hired.  Sales were 
 
            made by defendant employer who then assigned installers to 
 
            the particular jobs.  Defendant employer controlled the 
 
            assignment of work.  Installers were able to request time 
 
            off by either telling defendant employer or marking their 
 
            name off the calendar for the particular day.  If claimant 
 
            completed a job early he was able to leave and was not 
 
            required to return to the defendant employer's place of 
 
            business.
 
            
 
                 Defendant employer represented to the public that the 
 
            carpet was installed by their "own professionals."  
 
            Furthermore, the installation of carpet by professionals, 
 
            with which defendant employer had an on going relationship, 
 
            was an integral part of the defendant employer's business.  
 
            Customers purchased carpet through the defendant employer 
 
            relying upon the expertise of the defendant employer's 
 
            installers.  
 
            
 
                 It is difficult to determine the intent of the parties 
 
            as to whether an employee-employer relationship was 
 
            established.  When it came to paying social security and 
 
            unemployment taxes or workers' compensation insurance 
 
            premiums, claimant was treated as an independent contractor.  
 

 
            
 
            Page  12
 
            
 
            
 
            
 
            
 
            On the other hand, defendant employer represented to the 
 
            public that the carpet was installed by their "own 
 
            professionals."  Obviously, this implies that the defendant 
 
            employer had the installers under their supervision.  
 
            Claimant was paid by the yard of carpet installed or by the 
 
            hour in certain circumstances.  Many employees in the 
 
            industrial setting are paid on a piece work basis and still 
 
            considered employees.  While intent of the parties is 
 
            unclear as to whether claimant was an employee, the greater 
 
            weight of the evidence supports the conclusion that claimant 
 
            is an employee.
 
            
 
                 Defendant employer asserts that claimant is an 
 
            independent contractor.  Defendant employer has the burden 
 
            of proving that claimant is an independent contractor.  
 
            There was no written contract between the claimant and 
 
            defendant employer.  Claimant had an on going relationship 
 
            with defendant employer from 1982 to 1986.  The installation 
 
            of the carpet which the defendant employer sold is a regular 
 
            part of the business of the employer.
 
            
 
                 It is clear the defendant employer controlled the 
 
            progress of work.  Defendant employer provided claimant 
 
            pre-cut carpet and a lay out of the place where the carpet 
 
            was to be laid.  Assignments were made on a daily basis 
 
            according to prescheduled calendars.  If there were any 
 
            problems, claimant was to call the defendant employer to get 
 
            instructions.  
 
            
 
                 Claimant has proven by the greater weight of the 
 
            evidence that an employee-employer relationship existed.  
 
            Defendants failed to prove that claimant was an independent 
 
            contractor.
 
            
 
                 2.  Whether Claimant received an injury arising 
 
                 out of and in the course of his employment.
 
            
 
                 The uncontroverted evidence is that in April 1986 
 
            claimant sustained an injury to his lower back.  Claimant 
 
            testified that he was loading a roll of carpet into his 
 
            truck and when he leaned over to pick up the carpet he felt 
 
            a tear in his back with pain radiating down his legs.  
 
            Claimant reported this incident to his employer.  Claimant 
 
            received treatment for this incident but did not miss work. 
 
            
 
                 Claimant testified that he re-injured his back on July 
 
            31, 1986 when he turned to reach some tools.  Claimant 
 
            testified that he felt a tear in his back and pain in his 
 
            legs.  Claimant completed his work that day.  Claimant 
 
            continued to work until August 5, 1986 when he was taken off 
 
            work by Dr. Nelson.  Claimant proved by the greater weight 
 
            of the evidence that he sustained an injury which arose out 
 
            of and in the course of his employment.
 
            
 
                   3.  Whether there is a causal relationship 
 
                 between the alleged work injury and the claimant's 
 
                 disability.
 
            Claimant had been treated by a number of physicians for low 
 
            back pain following the July 1986 incident.  Claimant, 
 
            however, did not receive continuing treatment from any one 
 

 
            
 
            Page  13
 
            
 
            
 
            
 
            
 
            physician.  In addition, claimant provided an inaccurate 
 
            medical history to his physicians.  Claimant failed to tell 
 
            his physicians, Dr. Jochims, Dr. Lehman and Dr. Miley, about 
 
            his prior lower back problems that were treated by Dr. 
 
            Hanks.
 
            Dr. Jochims prescribed medication to patient and performed 
 
            an evaluation on claimant's lower back on July 15, 1988.  
 
            Dr. Jochims opined that claimant's x-rays indicated that 
 
            claimant suffered mild signs of disc degeneration consistent 
 
            with a person claimant's age.  Dr. Jochims also opined that 
 
            claimant's work history is the type that could aggravate a 
 
            preexisting back condition.  Dr. Jochims was unable to 
 
            equivocally relate claimant's work injuries to his permanent 
 
            impairment.
 
            Claimant has the burden of proving a causal relationship 
 
            between his work injury and his alleged disability.  The 
 
            record is devoid of any reliable medical evidence to 
 
            establish a causal connection between claimant's work injury 
 
            and his permanent impairment.  Claimant failed to tell his 
 
            physicians that he had been treated before for low back 
 
            pains.  The work injuries in April and July 1986 were merely 
 
            symptoms of an ongoing degenerative condition.  Claimant 
 
            established a temporary aggravation of a preexisting 
 
            condition in April and July 1986.  Claimant failed to prove 
 
            a causal connection between his work injury and his 
 
            permanent impairment.
 
               4.  The extent of Claimant's entitlement to weekly 
 
            benefits for disability.
 
            Claimant is not entitled to permanent partial disability 
 
            benefits.  He failed to prove a causal connection between 
 
            his work injuries and his disability.  Claimant proved a 
 
            temporary aggravation of a preexisting condition as a result 
 
            of the work injuries in April and July 1986.  Claimant is 
 
            entitled to temporary total disability benefits from August 
 
            5, 1986 through October 13, 1986.  Claimant returned to work 
 
            on October 14, 1986.
 
            
 
                   5.  The extent of Claimant's entitlement to 
 
                 medical benefits.
 
            
 
                 Pursuant to Iowa Code section 85.27, claimant is 
 
            entitled to payment of reasonable medical expenses incurred 
 
            for treatment of work injury.  Claimant is entitled to an 
 
            order of reimbursement only if he has paid those expenses.  
 
            Otherwise, claimant is entitled to an order directing the 
 
            responsible defendants to make the payment directly to the 
 
            providers.  See Krohn v. State, 420 N.W.2d 463 (Iowa 1988).  
 
            
 
                 Defendants stipulated that the requested medical 
 
            expenses contained in claimant's exhibit 1 were causally 
 
            connected to the back condition upon which the claim was 
 
            based but that the issue of the causal connection remained 
 
            an issue.  As it has been determined that there is a causal 
 
            connection between claimant's lower back treatment and his 
 
            employment with defendant employer, claimant is entitled to 
 
            payment of the medical expenses in exhibit 1.
 
            
 
                                 findings of fact
 
            
 
                 1.  Claimant was born April 4, 1944.
 

 
            
 
            Page  14
 
            
 
            
 
            
 
            
 
            
 
                 2.  Claimant had only a ninth grade education but has 
 
            received his GED and some vocational rehabilitation since 
 
            sustaining his work-related injury.  Claimant, through no 
 
            fault of his own, has been unable to complete his vocational 
 
            rehabilitation.  Claimant is motivated for retraining.
 
            
 
                 3.  The majority of claimant's work experience has been 
 
            in floor covering installation.  Claimant has been employed 
 
            as a carpenter and has been a self-employed owner of a 
 
            tavern.
 
            
 
                 4.  Claimant was paid by the yard of carpet which he 
 
            installed and by the hour for moving furniture.  Claimant 
 
            submitted a statement to the defendant employer on Friday 
 
            morning and was paid in one check later in the day.  
 
            
 
                 5.  Sale of the carpet was made by defendant employer 
 
            who scheduled an installer for a particular job.  The 
 
            installation of carpet was an integral part of defendant 
 
            employer's business.  
 
            
 
                 6.  Claimant picked up pre-cut carpet and instructions 
 
            on how the carpet should be laid out for each job.  Claimant 
 
            was unsupervised when he went to install the carpet but if 
 
            problems developed he would contact his employer for 
 
            instructions.  
 
            
 
                 7.  Claimant supplied his own tools and drove his own 
 
            truck to assignments.  Defendant employer reimbursed 
 
            claimant $.10 for each mile when claimant drove his truck 
 
            out-of-town.  Defendant employer supplied speciality tools 
 
            which claimant used occasionally.
 
            
 
                 8.  Claimant was permitted to hire assistants and paid 
 
            for their compensation.  Claimant was treated as an 
 
            independent contractor for tax purposes. 
 
            
 
                 9.  Claimant worked for friends and relatives and at 
 
            times received compensation for his work.  Claimant was free 
 
            to work for competitors.
 
            
 
                 10.  Claimant had a preexisting lower back condition, 
 
            however, this back condition did not cause claimant to miss 
 
            work.
 
            
 
                 11.  In April 1986 claimant sustained an injury which 
 
            arose out of and in the course of his employment with 
 
            defendant employer.  Claimant was attempting to lift a roll 
 
            of carpet.  Claimant did not miss work and later sought 
 
            medical treatment.  
 
            
 
                 12.  On July 31, 1986 claimant sustained another work 
 
            related injury to his lower back when he reached for a tool 
 
            while installing floor covering.  
 
            
 
                 13.  The work injury of July 31, 1986 caused a period 
 
            of temporary total disability from work beginning on August 
 
            5, 1986 through October 13, 1986, at which time claimant 
 
            returned to work.
 

 
            
 
            Page  15
 
            
 
            
 
            
 
            
 
            
 
                 14.  Claimant voluntarily quit working for defendant 
 
            employer due to an unrelated misunderstanding.
 
            
 
                 15.  Claimant worked for another carpet installer for 
 
            two weeks in December and voluntarily quit.  Claimant has 
 
            not worked since December 1986.  
 
            
 
                 16.  Claimant suffered mild signs of disc degeneration 
 
            consistent with a patient claimant's age.
 
            
 
                 17.  Claimant failed to tell physicians who treated him 
 
            after the April and July 1986 incidents that he had been 
 
            treated before for low back pains.
 
            
 
                 18.  Claimant sought medical treatment after an 
 
            incident in December 1986 which occurred with an employer 
 
            other than the defendant employer.
 
            
 
                 19.  There is no reliable medical evidence to establish 
 
            a causal connection between the incidents in April and July 
 
            1986 and a permanent impairment.
 
            
 
                 20.  Dr. Jochims opined that claimant's work history is 
 
            the type that could aggravate a preexisting back condition.
 
            
 
                 21.  Medical expenses listed in claimant's exhibit 1 
 
            are fair and reasonable and were incurred by claimant for 
 
            reasonable and necessary treatment of his lower back 
 
            condition as a result of the work injury on July 31, 1986.
 

 
            
 
            Page  16
 
            
 
            
 
            
 
            
 
            
 
                                conclusions of law
 
            
 
                 Claimant has proven by the greater weight of the 
 
            evidence that an employee-employer relationship existed 
 
            between claimant and the alleged defendant employer at the 
 
            time of the July 31, 1986 work injury.
 
            
 
                 Defendants failed to prove that claimant was an 
 
            independent contractor.
 
            
 
                 Claimant has proven by the greater weight of the 
 
            evidence that he sustained a work injury on July 31, 1986.
 
            
 
                 Claimant has failed to prove a causal relationship 
 
            between his July 31, 1986 work injury and his permanent 
 
            impairment.
 
            
 
                 Claimant proved entitlement to temporary total 
 
            disability benefits from August 5, 1986 through October 13, 
 
            1986 as a result of his aggravation of a preexisting 
 
            condition.
 
            
 
                 Claimant has proven by the greater weight of the 
 
            evidence entitlement to payment of the medical expenses in 
 
            exhibit 1.
 
            
 
                 WHEREFORE, the decision of the deputy is affirmed and 
 
            modified.
 
            
 
                                      order
 
            
 
                 THEREFORE, it is ordered:
 
            
 
                 That defendants shall pay to claimant temporary total 
 
            disability benefits from August 5, 1986 through October 13, 
 
            1986 at the rate of three hundred fifty-eight and 87/100 
 
            dollars ($358.87) per week.
 
            
 
                 That defendants shall pay claimant the medical expenses 
 
            listed in claimant's exhibit 1 totaling one thousand seven 
 
            hundred ninety and 95/100 dollars ($1,790.95).  Claimant 
 
            shall be reimbursed for any portion of these expenses he has 
 
            paid.  Otherwise, the defendants are ordered to pay the 
 
            provider directly less any attorney lien the claimant's 
 
            attorney may have upon this award.
 
            
 
                 That defendants shall pay accrued weekly benefits in a 
 
            lump sum and shall receive credit against this award for all 
 
            benefits previously paid.
 
            
 
                 That defendants shall pay interest on weekly benefits 
 
            awarded herein as set forth in Iowa Code section 85.30.
 
            
 
                 That defendants shall pay the costs of this action 
 
            including the costs of transcribing the arbitration hearing 
 
            pursuant to rule 343 IAC 4.33.
 
            
 
                 That defendants shall file activity reports on the 
 
            payment of this award as requested by this agency pursuant 
 

 
            
 
            Page  17
 
            
 
            
 
            
 
            
 
            to rule 343 IAC 3.1.
 
            
 
                 Signed and filed this ____ day of March, 1991.
 
            
 
            
 
            
 
                                          
 
            ________________________________
 
                                                   CLAIR R. CRAMER
 
                                           ACTING INDUSTRIAL 
 
            COMMISSIONER
 
            
 
            Copies To:
 
            
 
            Mr. Craig D. Warner
 
            Mr. Patrick L. Woodward
 
            Attorneys at Law
 
            321 North Third Street
 
            Burlington, Iowa 52601
 
            
 
            Mr. Greg A. Egbers
 
            Mr. Mark W. Woollums
 
            Attorneys at Law
 
            600 Union Arcade Building
 
            111 East Third Street
 
            Davenport, Iowa 52801-1596
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
            5-2001; 5-2002; 5-1108.50
 
            5-1803; 5-2700
 
            LPW
 
            Filed March 28, 1991
 
            Clair R. Cramer
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            TIM BROWN,                    :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :      File No. 834047
 
            REINSCHMIDT FLOOR             :
 
            SPECIALISTS,                  :
 
                                          :        A P P E A L
 
                 Employer,                :
 
                                          :      D E C I S I O N
 
            and                           :
 
                                          :
 
            ST. PAUL PROPERTY AND         :
 
            LIABILITY INSURANCE,          :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
            5-2001, 5-2002
 
            Claimant proved by a preponderance of the evidence that an 
 
            employee-employer relationship existed.  Defendants failed 
 
            to prove that claimant was an independent contractor at the 
 
            time of the injury.
 
            
 
            5-1108.50
 
            The uncontroverted evidence established that claimant 
 
            sustained an injury that arose out of and in the course of 
 
            his employment with defendants. 
 
            
 
            5-1803
 
            Claimant failed to prove by preponderance of the evidence a 
 
            causal connection between claimant's work injury and his 
 
            permanent impairment.  Claimant failed to inform his 
 
            physicians that he had a prior history of low back pain.  
 
            Claimant suffered a temporary aggravation of a preexisting 
 
            condition in April and July of 1986.  Claimant failed to 
 
            prove a causal connection between his work injury and his 
 
            permanent impairment.  Claimant is not entitled to permanent 
 
            partial disability benefits.
 
            
 
            5-2700
 
            Claimant is entitled to reimbursement of reasonable medical 
 
            expenses incurred in the treatment of his temporary 
 
            aggravation of a preexisting condition.
 
            
 
 
        
 
 
 
 
 
        
 
                                             2000; 5-1803
 
                                             Filed July 31, 1989
 
                                             LARRY P. WALSHIRE
 
        
 
                    BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
        
 
        
 
        TIM BROWN,
 
             
 
             Claimant,
 
                                                    File No. 834047
 
        vs.
 
                                                 A R B I T R A T I O N
 
        RHEINSCHMIDT FLOOR SPECIALISTS,
 
                                                    D E C I S I O N
 
            Employer,
 
        
 
        and
 
        
 
        ST. PAUL PROPERTY AND
 
        LIABILITY INSURANCE,
 
        
 
            Insurance Carrier,
 
            Defendants.
 
        
 
        
 
        200
 
        
 
            Held claimant established a prima facie case of 
 
        employer-employee relationship although he was paid on a piece 
 
        work basis and payments were treated by both parties for tax 
 
        purposes as nonwages. Held that the issue of whether claimant 
 
        was an independent contractor was an affirmative defense and that 
 
        defendants failed to carry their burden with reference to this 
 
        defense.
 
        
 
        5-1803 - Nonprecedential - extent of disability and medical 
 
        benefits.
 
        
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         _________________________________________________________________
 
         
 
         ROBERT SNYDER,
 
         
 
              Claimant,
 
                                                 File 834049
 
         VS.
 
                                               A R B I T R A T I 0 N
 
         FIRESTONE TIRE & RUBBER
 
         COMPANY,
 
                                                 D E C I S I 0 N
 
         
 
              Employer,
 
         
 
         and
 
         
 
         CIGNA,
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         _________________________________________________________________
 
         
 
                              STATEMENT OF THE CASE
 
         
 
              This is a proceeding in arbitration brought by Robert 
 
         Snyder, claimant, against Firestone Tire & Rubber Company, 
 
         employer, and Cigna, insurance carrier, to recover benefits under 
 
         the Iowa Workers' Compensation Act as a result of an injury 
 
         sustained December 28, 1983.  This matter came on for hearing 
 
         before the undersigned deputy industrial commissioner September 
 
         17, 1987.  The record was considered fully submitted at the close 
 
         of the hearing.  Both parties have submitted briefs.  The record 
 
         in this case consists of the testimony of the claimant, joint 
 
         exhibits 1 through 3, inclusive, and defendants' exhibit B. 
 
         (Defendants' exhibit A was included as part of the joint 
 
         exhibits.)
 
         
 
                                   ISSUES
 
         
 
              Pursuant to the prehearing report submitted and approved 
 
         September 17, 1987, the issues that remain for determination are 
 
         whether or not the claimant's permanent disability is confined to 
 
         the upper extremity or extends to the body as a whole and the 
 
         extent of the disability that is present.
 
         
 
                              FACTS PRESENTED
 
         
 
              Thirty-eight year old claimant both at hearing and by 
 
         deposition, testified: He graduated from Dowling High School in 
 
         1967 with no specialized training.  He had no other formal 
 
         education until approximately January 1987, when he attended
 
         classes at Area 11 in automotive training to update his skills in 
 
         newer technology.  He received, after approximately 100 hours of 
 
         training, a certificate of completion in what he termed a crafts 
 
         course for car computers.
 
         
 

 
              Claimant explained that after graduating from high school he 
 
         worked as a tire buster in the service department at Goodyear for 
 
         approximately $5 per hour.  He described the work of mounting, 
 
         dismounting, delivering, and servicing tires as heavy and very 
 
         physical requiring that he lift varying weights.  He explained he 
 
         then worked for International Harvester as a warehouseman for 
 
         about $6.50 per hour where he drove a jeep to load trucks and did 
 
         some manual lifting.  Claimant recalled that he quit this job to 
 
         begin working at Armstrong as a quality control auditor where he 
 
         received on-the-job training to learn how to check specifications 
 
         for tolerance of the tires.  Claimant explained that he was laid 
 
         off after approximately two years and did odd jobs until he was 
 
         hired by Firestone January 12, 1976, as a quality control 
 
         auditor.  For over three years, his job duties remained the same 
 
         and he recalled he very seldom any lifting.
 
         
 
              Claimant testified he was then promoted to shift leader 
 
         (supervisor of the quality control auditors) and was responsible 
 
         for the quality of work produced plantwide during the 11:00 to 
 
         7:00 shift.  He described his job duties as "lightened" in that 
 
         he no longer had to make certain specification checks himself, 
 
         but rather was a "troubleshooter" and reviewed the checks made by 
 
         the auditors.  Other than off and on picking up a tire, there was 
 
         essentially no lifting or manual labor in the job which last paid 
 
         him $2,405 per month.
 
         
 
              Claimant recalled that it was in approximately September 
 
         1983 that lifting became a regular part of his responsibilities 
 
         when he was told to assist on the TSIS job.  He described TSIS as 
 
         a tire that has a problem with bulging or bumps in the side.  The 
 
         tires are lifted off of a pallet or conveyor and put on a quick 
 
         mount machine (a two piece tire machine that goes together) where 
 
         they are inflated, checked, then removed and stacked back on the 
 
         pallet or conveyor.  This was the only manual labor claimant felt 
 
         he did on a regular basis.  From September through December 1983, 
 
         claimant offered he began experiencing inflammation of his upper 
 
         left arm and elbow.  He testified he never missed any work as a 
 
         result of any problems with his left arm or elbow but was removed 
 
         from the TSIS job by Dr. Gustafson in late December 1983.  He 
 
         then returned to his regular supervisory job until he was laid 
 
         off January 30, 1985.
 
         
 
              Since then, claimant has devoted his time and effort to 
 
         self-employment doing what he described as light pain and body 
 
         work and light mechanical work.  For definition, claimant 
 
         asserted such work is anything which can be done by one person 
 
         working alone (tune-up, distributor cap replacement, oil and 
 
         filter changes, and minor body repair) and which would not 
 
         require heavy lifting (valve, transmission, clutch, ball joint or 
 
         suspension work or major crash body repair).  Claimant 
 
         acknowledged that outside the training he recently received from 
 
         Area 11, he has no formal training in automotive work.  He 
 
         testified he owns this business himself, fully intends to 
 
         continue with it, and is able to carry out all the duties 
 
         required of it.  He described his business as good, increasing, 
 
         providing full-time steady work with regular customers and 
 
         getting new customers "constantly."  He has not gone into debt 
 
         and it is providing him with sufficient income to meet all of his 
 
         obligations.
 
         
 
              Claimant began seeing Marshall Flapan, M.D., in January 
 
         1984, whose office notes reflects he should continue treatment of 
 
         the left shoulder, elbow, and wrist discomfort with Feldene, 
 
         Nalfon, tennis elbow splint, and injection of Depo Medrol and 
 

 
         
 
         
 
         
 
         SNYDER V. FIRESTONE TIRE & RUBBER COMPANY
 
         Page   3
 
         
 
         
 
         Lidocaine. (Exhibit 1, pages 1-5)   Claimant was sent to the 
 
         hospital (after evaluation on March 4, 1985) for an arthrogram of 
 
         his left shoulder.  Performed March 5, 1985, it did not reflect 
 
         any evidence of a rotator cuff tear.  Dr. Falpan wrote: "He's 
 
         been having trouble long enough with this that we need to 
 
         schedule him for an excisional arthroplasty of the left 
 
         acromioclavicular joint."  (Jt. Ex. 1, p.7) Following surgery, 
 
         claimant was released to return to work June 14, 1985.  He 
 
         testified the surgery as helping somewhat in that the aching is 
 
         gone and he can now use his arm and elbow, but maintained he 
 
         still has difficulty when he attempts to move his arm in front of 
 
         this face or over his head and that he does not have full 
 
         strength in it.  He alleges pain from his shoulder to his body to 
 
         his neck and elbow with some numbness in his hand up to three 
 
         times per week and that this can last up to five seconds.  
 
         Claimant described that the pain comes and goes and is not 
 
         associated with any particular activity or inactivity.  He 
 
         testified the particular activities which are still troublesome 
 
         to him are lifting, leaning on his left arm, softball and golf 
 
         (neither of which he plays anymore).  Notwithstanding his present 
 
         conditions, claimant testified he could perform his regular 
 
         supervisory job at Firestone if it were available.
 
         
 
              Dr. Flapan's assessment, reflected in his office notes of 
 
         June 13, 1985, (Jt. Ex.1, p.10) was "impingement syndrome left 
 
         shoulder.  Degenerative arthritis, left A/C joint."  At the time 
 
         of final evaluation November 1, 1985, Dr. Flapan wrote: "As a 
 
         result of this work related injury, I believe that he has 
 
         sustained a permanent partial impairment of 10% of the left upper 
 
         extremity." (Jt. Ex.1, p.11)
 
         
 
              Claimant was later seen by physical therapy consultants for 
 
         impairment evaluation as well as Cybex evaluation.  Thomas W. 
 
         Bower, L.P.T., wrote to claimant's counsel March 17, 1986: "In 
 
         terms of a disability, the range of motion loss accounted for in
 
         
 
         the AMA guides would be a 6 percent impairment to the left upper 
 
         extremity which would convert to a 4 percent body as a whole." 
 
         (Jt.  Ex. 1, p. 19) In a letter to defendants' counsel, dated 
 
         February 4, 1987, the same individual wrote "[S]ince this problem 
 
         is an impingement type of problem and does not encompass the 
 
         rotator cuff area, it should be left in an upper extremity rating 
 
         of 6 percent.  Therefore, the 4 percent should be excluded or 
 
         ignored at this time and the 6 percent should be considered for 
 
         the impairment rating of this gentleman." (Jt. Ex.1, p.20)
 
         
 
                                  APPLICABLE LAW
 
         
 
              An employee is entitled to compensation for any and all 
 
         personal injuries which arise out of and in the course of the 
 
         employment.  Section 85.3(l)
 
         
 
              Permanent partial disabilities are classified as either 
 
         scheduled or unscheduled.  A specific scheduled disability is 
 
         evaluated by the functional method; the industrial method is used 
 
         to evaluate an unscheduled disability.  Martin v. Skelly Oil Co., 
 
         252 Iowa 128, 133, 106 N.W.2d 95, 98 (1960); Graves v Eagle Iron 
 
         Works, 331 N.W.2d 116 (Iowa 1983); Simbro v. DeLong's Sportswear, 
 
         332 N.W.2d 886, 887 (Iowa 1983).
 

 
         
 
         
 
         
 
         SNYDER V. FIRESTONE TIRE & RUBBER COMPANY
 
         Page   4
 
         
 
         
 
         
 
              If a claimant contends he has industrial disability, he has 
 
         the burden of proving his injury results in an ailment extending 
 
         beyond the scheduled loss.  Kellogg v. Shute and Lewis Coal 
 
         Company, 256 Iowa 1257, 130 N.W.2d 667 (1964).   A shoulder 
 
         injury, however, is not scheduled, being an injury to the body as 
 
         a whole.  Alm v. Morris Barrack Cattle Company, 240 Iowa 1174, 38 
 
         N.W.2d 161 (1949).
 
         
 
              Functional disability is an element to be considered in 
 
         determining industrial disability which is the reduction of 
 
         earning capacity, but consideration must also be given to the 
 
         injured employee's age, education, qualifications, experience and 
 
         inability to engage in employment for which he is fitted.  Olson 
 
         v. Goodyear Service Stores, 255 Iowa 1112, 125 N.W.2d 251 (1963).  
 
         Barton v. Nevada Poultry, 253 Iowa 285, 110 N.W.2d 660 (1961).
 
         
 
              A finding of impairment to the body as a whole found by a 
 
         medical evaluator does not equate to industrial disability.  This 
 
         is so as impairment and disability are not synonymous.  Degree of 
 
         industrial disability can in fact be much different than the 
 
         degree of impairment because in the first instance reference is 
 
         to loss of earning capacity and in the later to anatomical or 
 
         functional abnormality or loss.  Although loss of function is to 
 
         be considered and disability can rarely be found without it, it 
 
         is not so that a degree of industrial disability is 
 
         proportionally related to a degree of impairment of bodily 
 
         function.
 
         
 
              Factors to be considered in determining industrial 
 
         disability include the employee's medical condition prior to the 
 
         injury, immediately after the injury, and presently; the situs of 
 
         the injury, its severity and the length of healing period; the 
 
         work experience of the employee prior to the injury, after the 
 
         injury and potential for rehabilitation; the employee's 
 
         qualifications intellectually, emotionally and physically; 
 
         earnings prior and subsequent to the injury; age; education; 
 
         motivation; functional impairment as a result of the injury; and 
 
         inability because of the injury to engage in employment for which 
 
         the employee is fitted.   Loss of earnings caused by a job 
 
         transfer for reasons related to the injury is also relevant.  
 
         These are matters which the finder of fact considers collectively 
 
         in arriving at the determination of the degree of industrial 
 
         disability.
 
         
 
              There are no weighting guidelines that indicate how each of 
 
         the factors are to be considered.   There are no guidelines which 
 
         give, for example, age a weighted value of ten percent of the 
 
         total value, education a value of fifteen percent of total, 
 
         motivation - five percent; work experience - thirty percent, etc.  
 
         Neither does a rating of functional impairment directly correlate 
 
         to a degree of industrial disability to the body as a whole.     
 
         In other words, there are no formula which can be applied and 
 
         then added up to determine the degree of industrial disability.  
 
         It therefore becomes necessary for the deputy or commissioner to 
 
         draw upon prior experience, general and specialized knowledge to 
 
         make the finding with regard to degree of industrial disability. 
 
         See Christensen v. Hagen, Inc., (Appeal Decision, March 26, 
 
         1985); Peterson V. Truck Haven Cafe, Inc., (Appeal Decision, 
 

 
         
 
         
 
         
 
         SNYDER V. FIRESTONE TIRE & RUBBER COMPANY
 
         Page   5
 
         
 
         
 
         February 28, 1985).
 
         
 
                                 ANALYSIS
 
         
 
              It has been stipulated that the claimant suffered a 
 
         permanent partial disability.  What is in dispute is whether 
 
         claimant's disability is limited to the upper extremity or 
 
         extends to the body as a whole.    Based upon the situs of the 
 
         injury and the surgery (excision of the outer end of the 
 
         clavicle), as well as claimant's own testimony of subjective 
 
         symptoms beyond the upper extremity, it is found claimant 
 
         sustained an injury to his shoulder which constitutes, under Alm 
 
         supra, an injury to the body as a whole.  See also Nazarenus-v. 
 
         Oscar Mayer & Co., II Iowa Industrial Commissioner Reports 281 
 
         (Appeal Decision 1982).  In Alm, claimant had a rating of 25-30 
 
         percent impairment to the arm and the court, noting the 
 
         anatomical location of the injury extended from the arm into the 
 
         shoulder, ruled that the injury was not restricted to a schedule, 
 
         thus, by law, an injury to the shoulder which produces permanent 
 
         impairment entitled the claimant to an industrial disability.  
 
         See also Lauhoff Grain
 
         Co., v. McIntosh, 395 N.W.2d 834 (Iowa 1986).
 
         
 
              The mere fact that the rating pertains to a scheduled member 
 
         does not mean the disability is restricted to a schedule.  Pullen 
 
         v. Brown & Lambrecht Earthmoving, Incorporated, II Iowa 
 
         Industrial Commissioner Reports 303 (Appeal Decision 1982).  
 
         There are two impairment ratings in the record.  Dr. Flapan, who 
 
         was the treating physician and operated on the injury, rated the 
 
         claimant as having a 10 percent permanent partial impairment of 
 
         the upper left extremity; Thomas Bower, L.P.T., rated the 
 
         claimant's impairment at 6 percent of the upper left extremity.
 
         
 
              Functional impairment, however, is but one factor used to 
 
         determine industrial disability.  Claimant's prior medical 
 
         history is scant with the exception of some athletic/recreational 
 
         injuries to other parts of his body.  Until he began working for 
 
         Armstrong in 1973, the claimant made his way exclusively as a 
 
         manual laborer but, since then, his positions as a quality 
 
         control auditor/supervisor have not required the same physical 
 
         exertion although they have required some.  Claimant acknowledged 
 
         that were it not for the reduction in force at Firestone, he 
 
         feels capable of performing his job as supervisor of the 
 
         auditors.  Claimant is 38 years old and appears to be well 
 
         motivated as evidenced by his initiative in opening an auto 
 
         repair business without any prior formal training.  Clearly, 
 
         claimant's income has decreased, however, it is difficult, at 
 
         best, to attribute this loss of earnings to claimant's injury 
 
         since he was affected by a reduction in force and therefore could 
 
         not return to his regular job and has not sought any type of 
 
         comparable work, devoting his attention instead, to his own 
 
         business endeavor.  Claimant's capacity to earn has, however, 
 
         been hampered as a result of his injury.  It is accepted he 
 
         cannot now perform to the same degree as before his injury.  
 
         Considering the elements of industrial disability in light of the 
 
         medical evidence as well as the testimony, it is found claimant 
 
         sustained a permanent partial disability of 10 percent for 
 
         industrial purposes.
 
         
 
                              FINDINGS OF FACT
 

 
         
 
         
 
         
 
         SNYDER V. FIRESTONE TIRE & RUBBER COMPANY
 
         Page   6
 
         
 
         
 
         
 
              WHEREFORE, based on the evidence presented, the following 
 
         facts are found:
 
         
 
              1.  Claimant is 38 years old and has worked in manual labor, 
 
         supervision, and a combination of both.
 
         
 
              2.  Claimant incurred an injury to his shoulder as a result 
 
         of repetitive use between September and December 1983.
 
         
 
              3.  Claimant underwent excisional arthroplasty of the left 
 
         acromiac clavicular joint as a result of the injury.
 
         
 
         
 
              4.  Claimant has a permanent partial disability to the body
 
         
 
         as a whole.
 
         
 
              5.  Claimant is limited in the use of his left arm but is 
 
         capable of performing the job he held at the time of his layoff 
 
         from Firestone.
 
         
 
              6.  Claimant has limited training in the auto repair 
 
         business.
 
         
 
              7.  Claimant is currently employed in his own auto repair 
 
         business but is limited in the type of work he can accept because 
 
         of his injury.
 
         
 
              8.  Claimant's capacity to earn has been hampered.
 
         
 
              9.  Claimant's decrease in earnings cannot be attributed 
 
         exclusively to his injury since he was laid off from Firestone 
 
         and he has not sought work outside of his self-employment 
 
         endeavor.
 
         
 
              10.  Claimant has a 10 percent industrial disability as a 
 
         result of his injury.
 
         
 
                              CONCLUSIONS OF LAW
 
         
 
              WHEREFORE, based on the principles of law previously stated, 
 
         the following conclusions of law are made:
 
         
 
              1.  Claimant has met his burden of proving an injury to the 
 
         body as a whole.
 
         
 
              2.  Claimant has established an industrial disability of ten 
 
         percent (10%) as a result of his injury.
 
         
 
                                   ORDER
 
         
 
              THEREFORE, IT IS ORDERED:
 
         
 
              Defendants are to pay unto claimant fifty (50) weeks of 
 
         permanent partial disability benefits at a rate of three hundred 
 
         six and 04/100 dollars ($306.04) per week commencing August 20, 
 
         1985.
 
         
 

 
         
 
         
 
         
 
         SNYDER V. FIRESTONE TIRE & RUBBER COMPANY
 
         Page   7
 
         
 
         
 
              Defendants shall receive full credit for all permanent 
 
         partial disability benefits previously paid.
 
         
 
              Payments that have accrued shall be paid in a lump sum 
 
         together with statutory interest thereon pursuant to Iowa Code 
 
         section 85.30.
 
         
 
              A final report shall be filed upon payment of this award.
 
         
 
              Costs of this action are assessed against the defendants
 
         pursuant to Division of Industrial Services Rule 343-4.33.
 
              
 
              Signed and filed this 26th day of October, 1987.
 
         
 
         
 
         
 
         
 
                                            DEBORAH A. DUBIK 
 
                                            DEPUTY INDUSTRIAL COMMISSIONER
 
         
 
         
 
         Copies to:
 
         
 
         Mr. David D. Drake
 
         Attorney at Law
 
         P.O. Box 65355
 
         West Des Moines, Iowa 50265
 
         
 

 
         
 
         
 
         
 
         SNYDER V. FIRESTONE TIRE & RUBBER COMPANY
 
         Page   8
 
         
 
         
 
         Mr. Marvin E. Duckworth
 
         Attorney at Law
 
         Terrace Center, Suite 111
 
         2700 Grand Avenue
 
         Des Moines, Iowa 50312
 
         
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                                      1802; 1803.1
 
                                                      Filed 10-26-87
 
                                                      Deborah A. Dubik
 
         
 
         
 
                    BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         _________________________________________________________________
 
         
 
         ROBERT SNYDER,
 
         
 
              Claimant,
 
                                                 File No. 834049
 
         FIRESTONE TIRE & RUBBER
 
         COMPANY,                             A R B I T R A T I 0 N
 
         
 
                                                 D E C I S I 0 N
 
              Employer,
 
         
 
         and
 
         
 
         CIGNA,
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         _________________________________________________________________
 
         
 
         
 
         1803; 1803.1
 
         
 
              Claimant's injury by repetitive movement which resulted in 
 
         excisional arthroplasty of the left acromioclavicular joint held 
 
         to be an injury to the shoulder and, thus, to the body as a whole 
 
         under Alm.  Claimant awarded 10% industrial disability.
 
 
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                      5-1801
 
                      Filed May 15, 1991
 
                      PATRICIA J. LANTZ
 
            before the iowa industrial commissioner
 
            ____________________________________________________________
 
                      :
 
            KAREN LOVE,    :
 
                      :
 
                 Claimant, :
 
                      :
 
            vs.       :      File No. 860475
 
                      :               834098
 
            EARLHAM MANOR CARE CENTER,    :
 
                      :    A R B I T R A T I O N
 
                 Employer, :
 
                      :      D E C I S I O N
 
            and       :
 
                      :
 
            IOWA HEALTH CARE ASSOCIATION, :
 
                      :
 
                 Insurance Carrier,  :
 
                 Defendants.    :
 
            ___________________________________________________________
 
            
 
            5-1801
 
            Claimant is 46 years old.  She was working as a nurse's aide 
 
            and sustained a low back strain/sprain.
 
            Minimal education (10th grade); low motivation; transferable 
 
            skills exists.  She received a 15 percent impairment rating 
 
            and a 20-lb. lifting restriction.
 
            Claimant had not tried to secure employment after her 
 
            injury.
 
            Claimant awarded 35 percent industrial disability.
 
            
 
 
            
 
            Page   1
 
            
 
            
 
            
 
            
 
                    BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
            
 
                        
 
            GARY FINNEMAN,   
 
                        
 
                 Claimant,   
 
                        
 
            vs.         
 
                                            File Nos. 834479/913590
 
            WILSON FOODS CORPORATION,       
 
                                                 A P P E A L
 
                 Employer,   
 
                 Self-Insured,                 D E C I S I O N
 
                        
 
            and         
 
                        
 
            SECOND INJURY FUND OF IOWA,     
 
                        
 
                 Insurance Carrier,    
 
                 Defendants.      
 
            ____________________________________________________________
 
            
 
            The record, including the transcript of the hearing before 
 
            the deputy and all exhibits admitted into the record, has 
 
            been reviewed de novo on appeal.
 
            
 
                                    ISSUES
 
            
 
            This is a de novo review of a proposed decision in a 
 
            contested case proceeding.  The industrial commissioner has 
 
            all the power which is necessary to make the final decision, 
 
            Iowa Code section 17A.15(3).  The industrial commissioner in 
 
            this case takes jurisdiction of this matter and will decide 
 
            those issues necessary to resolve this matter.
 
            The issues on appeal are:  whether claimant is precluded 
 
            from asserting occupational disease as a theory of recovery 
 
            against the employer; whether claimant sustained injuries 
 
            that arose out of and in the course of his employment; the 
 
            nature and extent of the employer's liability, if any; and 
 
            whether claimant is entitled to Second Injury Fund benefits.
 
            
 
                             FINDINGS OF FACT
 
            
 
            The findings of fact contained in the proposed agency 
 
            decision filed October 2, 1991 are adopted as set forth 
 
            below.  Segments designated by asterisks (*****) indicate 
 
            portions of the language from the proposed agency decision 
 
            that have been intentionally deleted and do not form a part 
 
            of this final agency decision.  Segments designated by 
 
            brackets ([ ]) indicate language that is in addition to the 
 
            language of the proposed agency decision.
 
            
 
                 Gary Finneman is a 40-year-old high school graduate who 
 
            had been employed by Wilson Foods Corporation since 
 
            graduating from high school in 1968 up until March 30, 1991, 
 
            when he resigned.
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            
 
                 [When claimant last worked for defendant employer he 
 
            was earning $9.02 per hour.  There is no evidence properly 
 
            in the record regarding claimant's activity, earnings or 
 
            work following his termination of employment with defendant 
 
            employer.  The record is silent on claimant's prospects for 
 
            rehabilitation or retraining.  Claimant was an average 
 
            student when he was in high school.]
 
            
 
                 Gary started in the hide cellar for approximately one 
 
            year, performed night sanitation work for approximately one 
 
            year, loaded boxes of meat on the loading dock for 
 
            approximately eight years and then moved into the boning 
 
            room.  Gary boned hams, picnics, loins and butts.  He was 
 
            required to work at a competitive speed according to 
 
            established standards.  The hog kill operation at the plant 
 
            was terminated and Gary then was assigned to cut meat which 
 
            was purchased from other packers.  He described the meat as 
 
            being colder, stiffer and requiring more strenuous exertion.  
 
            Gary began noticing pain in his arm before the hog kill 
 
            process was terminated.  Gary feels that his arm problems 
 
            started when he worked in the boning room.
 
            
 
                 On May 28, 1986, Gary began treating with Keith O. 
 
            Garner, M.D., the Wilson plant physician, for complaints of 
 
            pain in his right elbow.  After conservative treatment was 
 
            unsuccessful, Gary was referred to orthopaedic surgeon Oscar 
 
            M. Jardon, M.D., and underwent surgery in the form of 
 
            release of the right common extensor tendon of his right 
 
            elbow, removal of the lateral epicondyle bursa and 
 
            reinsertion of the common extensor tendon into the lateral 
 
            epicondyle (exhibit 58, page 1; exhibit 59).  The surgery 
 
            was performed on April 22, 1987.  Up to that point in time, 
 
            only Gary's right arm had been symptomatic (exhibits 71, 74, 
 
            75, 77, 79 and 81).
 
            
 
                 After recuperating approximately five months, Gary 
 
            returned to work.  [He was released to work without 
 
            restriction on August 17, 1987 (exhibit 51).]  He bid to a 
 
            job where he was not required to use a knife and the demands 
 
            on his right arm were reduced.
 
            
 
                 During late 1988, Gary began to experience problems in 
 
            his left elbow which were similar to what he had previously 
 
            experienced on the right.  December 21, 1988 is the date 
 
            entered on the accident report, although it appears as 
 
            though the report was actually made on February 15, 1989 
 
            (exhibits 40, 81 and 82).  The record does not show how the 
 
            date of December 21, 1988 was arrived at or determined to be 
 
            a date of injury.  It is noted that, with regard to the 
 
            right elbow problem, the date of injury on the employer's 
 
            records is May 28, 1986, even though disability did not 
 
            begin until September 26, 1986.  It appears as though May 
 
            28, 1986 was the last work day which was two months prior to 
 
            the date that the accident was entered on the accident 
 
            report, namely July 30, 1986 (exhibit 79).  Apparently the 
 
            parties have used the estimated date of onset of symptoms as 
 
            the date of injury.  The record reflects that Gary did not 
 
            miss work on account of his left elbow until April 3, 1989, 
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            when he was hospitalized for surgery (exhibit 41).  It 
 
            appears as though December 21, 1988 may have been the last 
 
            day of work which was two months prior to the date that the 
 
            injury was reported.
 
            
 
                 On April 3, 1989, Dr. Jardon performed lateral 
 
            epicondyle release on Gary's left elbow (exhibit 27; exhibit 
 
            30, page 32).  Dr. Jardon released claimant to return to 
 
            work effective July 31, 1989 and he did so return (exhibits 
 
            14, 39 and 41).  *****
 
            
 
                 Gary worked with few absences, but had continuing 
 
            symptoms and problems (exhibits 5 and 81).  In a report 
 
            dated November 27, 1990, Dr. Jardon recommended that 
 
            claimant reduce the use of his left arm with regard to 
 
            repetitive backhand motions.  He even suggested that it 
 
            might be advantageous for claimant to get into a different 
 
            line of work which did not require the motions of the meat 
 
            packing industry (exhibit 2).  Dr. Jardon originally 
 
            assigned a five percent impairment rating for claimant's 
 
            right arm following the 1987 surgery (exhibit 49).  Once 
 
            claimant's left arm also became affected by the condition, 
 
            he raised his impairment to ten percent of each arm 
 
            (exhibits 2, 4, 8, 9 and 12).  The increase was due to the 
 
            fact that both of claimant's arms were impaired.  [The 
 
            impairment rating for each upper extremity was five percent 
 
            (exhibit 8).]
 
            
 
                 At hearing, Gary quite credibly testified that Drs. 
 
            Jardon and Garner had both suggested that he seek a 
 
            different type of work.  He resigned from his employment on 
 
            March 30, 1991.  At hearing, he expressed a desire to return 
 
            to school to get into a line of work which required less use 
 
            of his hands.
 
            
 
                 Gary also has had back problems and shoulder problems, 
 
            but the record does not show either of those problems to 
 
            contribute significantly to his disability.
 
            
 
                 In response to a questionnaire from the Second Injury 
 
            Fund of Iowa, Dr. Jardon agreed that Gary's physical 
 
            complaints involving his arms were a result of repetitive 
 
            use of his hands, wrists and arms while working at Wilson 
 
            Foods Corporation, that the bilateral condition had a direct 
 
            causal connection with claimant's employment at Wilson 
 
            Foods, and that the condition followed as a natural incident 
 
            to that employment and not independent of the employment.  
 
            Dr. Jardon further agreed that the condition falls under the 
 
            broad category of "overuse syndrome," that there was not any 
 
            single traumatic incident at work that caused the condition, 
 
            and that the problems were simultaneously developing 
 
            bilaterally, but became manifest in each arm on different 
 
            occasions.  Dr. Jardon also agreed that claimant used his 
 
            arms more extensively at work than would an individual in 
 
            the general population (exhibit 1).  In a report dated March 
 
            12, 1990, Dr. Jardon confirmed that the lateral 
 
            epicondylitis occurred as a result of repetitive motion 
 
            which Gary performed while he was at work at Wilson Foods 
 
            (exhibit 4).
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
            
 
                 It is found that the lateral epicondylitis which Gary 
 
            Finneman developed on both of his elbows occurred as a 
 
            direct consequence of the repetitive work activities he 
 
            performed at Wilson Foods.  The assessment of this case as 
 
            made by Dr. Jardon is accepted and found to be correct.
 
            
 
                 [The record in this matter shows that during the 
 
            prehearing in this matter claimant was instructed to amend 
 
            his pleading to include Iowa Code chapter 85A (occupational 
 
            disease) as a theory or recovery.  Claimant did not amend 
 
            his pleading.  The hearing assignment order listed chapter 
 
            85A as an issue.]
 
            conclusions of law
 
            
 
                 The first issue to be resolved is whether claimant is 
 
            precluded from asserting an occupational disease as a theory 
 
            of recovery against the employer.  Claimant was directed to 
 
            amend his pleading to include the theory of occupational 
 
            disease at the prehearing.  He failed to do so.  Claimant's 
 
            failure to comply with an agency order may result in 
 
            sanctions.  Rule 343 IAC 4.36 provides:
 
               If any party to a contested case or an attorney 
 
            representing such party shall fail to comply with these 
 
            rules or any order of a deputy commissioner or the 
 
            industrial commissioner, the deputy commissioner or 
 
            industrial commissioner may dismiss the action.  Such 
 
            dismissal shall be without prejudice.  The deputy 
 
            commissioner or industrial commissioner may enter an order 
 
            closing the record to further activity or evidence by any 
 
            party for failure to comply with these rules or an order of 
 
            a deputy commissioner or the industrial commissioner.
 
            
 
            The result of claimant's failure to properly amend his 
 
            pleading was to leave the employer without proper notice of 
 
            claimant's theory of recovery.  Claimant should not be 
 
            allowed to assert occupational disease as a theory of 
 
            recovery against the employer.  It should be noted that this 
 
            determination is purely academic.  As will be discussed 
 
            below, claimant did not suffer an occupational disease.
 
            The next issue to be resolved is whether claimant sustained 
 
            injuries that arose out of and in the course of his 
 
            employment.
 
            
 
                 The claimant has the burden of proving by a 
 
            preponderance of the evidence that the alleged injury 
 
            actually occurred and that it arose out of and in the course 
 
            of employment.  McDowell v. Town of Clarksville, 241 N.W.2d 
 
            904 (Iowa 1976); Musselman v. Cent. Tel. Co., 261 Iowa 352, 
 
            154 N.W.2d 128 (1967).  The words "arising out of" refer to 
 
            the cause or source of the injury.  The words "in the course 
 
            of" refer to the time, place and circumstances of the 
 
            injury.  Sheerin v. Holin Co., 380 N.W.2d 415 (Iowa 1986); 
 
            McClure v. Union County, 188 N.W.2d 283 (Iowa 1971).
 
            
 
                 The claimant has the burden of proving by a 
 
            preponderance of the evidence that the injury is a proximate 
 
            cause of the disability on which the claim is based.  A 
 
            cause is proximate if it is a substantial factor in bringing 
 

 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
            about the result; it need not be the only cause.  A 
 
            preponderance of the evidence exists when the causal 
 
            connection is probable rather than merely possible.  
 
            Blacksmith v. All-American, Inc., 290 N.W.2d 348 (Iowa 
 
            1980); Holmes v. Bruce Motor Freight, Inc., 215 N.W.2d 296 
 
            (Iowa 1974).
 
            
 
                 A personal injury contemplated by the workers' 
 
            compensation law means an injury, the impairment of health 
 
            or a disease resulting from an injury which comes about, not 
 
            through the natural building up and tearing down of the 
 
            human body, but because of trauma.  The injury must be 
 
            something which acts extraneously to the natural processes 
 
            of nature and thereby impairs the health, interrupts or 
 
            otherwise destroys or damages a part or all of the body.  
 
            Although many injuries have a traumatic onset, there is no 
 
            requirement for a special incident or an unusual occurrence.  
 
            Injuries which result from cumulative trauma are 
 
            compensable.  McKeever Custom Cabinets v. Smith, 379 N.W.2d 
 
            368 (Iowa 1985); Olson v. Goodyear Serv. Stores, 255 Iowa 
 
            1112, 125 N.W.2d 251 (1963); Ford v. Goode, 240 Iowa 1219, 
 
            38 N.W.2d 158 (1949); Almquist v. Shenandoah Nurseries, 
 
            Inc., 218 Iowa 724, 254 N.W. 35 (1934).  An occupational 
 
            disease covered by chapter 85A is specifically excluded from 
 
            the definition of personal injury.  Iowa Code section 
 
            85.61(5); Iowa Code section 85A.8.
 
            
 
                 When the disability develops gradually over a period of 
 
            time, the "cumulative injury rule" applies.  For time 
 
            limitation purposes, the compensable injury is held to occur 
 
            when because of pain or physical disability, the claimant 
 
            can no longer work.  McKeever Custom Cabinets v. Smith, 379 
 
            N.W.2d 368 (Iowa 1985).
 
            
 
            Dr. Jardon was claimant's treating 
 
            physician and it was his opinion that claimant's physical 
 
            complaints were a result of repetitive use of his hands, 
 
            wrists and arms while working for defendant employer.  
 
            Claimant was doing a repetitive type work that eventually 
 
            resulted in leaving work to have surgery on his right arm 
 
            and later his left arm.  Claimant has proved that he 
 
            suffered injuries to both his right arm and his left arm.  
 
            Claimant's injury to his right arm occurred on April 22, 
 
            1987 when he was forced to miss work to have surgery.  
 
            Claimant's injury to his left arm occurred on April 3, 1989 
 
            when he was forced to miss work because of surgery.
 
            
 
                 The next issue to be resolved is the employer's 
 
            liability for claimant's injuries.
 
            
 
                 The right of an employee to receive compensation for 
 
            injuries sustained is statutory. The statute conferring this 
 
            right can also fix the amount of compensation payable for 
 
            different specific injuries.  The employee is not entitled 
 
            to compensation except as the statute provides.  Soukup v. 
 
            Shores Co., 222 Iowa 272, 268 N.W. 598 (1936).
 
            
 
                 Compensation for permanent partial disability begins at 
 
            termination of the healing period.  Iowa Code section 
 
            85.34(2).  Permanent partial disabilities are classified as 
 
            either scheduled or unscheduled.  A specific scheduled 
 

 
            
 
            Page   6
 
            
 
            
 
            
 
            
 
            disability is evaluated by the functional method; the 
 
            industrial method is used to evaluate an unscheduled 
 
            disability.  Simbro v. Delong's Sportswear, 332 N.W.2d 886 
 
            (Iowa 1983); Graves v. Eagle Iron Works, 331 N.W.2d 116 
 
            (Iowa 1983); Martin v. Skelly Oil Co., 252 Iowa 128, 106 
 
            N.W.2d 95 (1960).
 
            
 
                 Iowa Code section 85.34(1) provides that healing period 
 
            benefits are payable to an injured worker who has suffered 
 
            permanent partial disability until (1) the worker has 
 
            returned to work; (2) the worker is medically capable of 
 
            returning to substantially similar employment; or (3) the 
 
            worker has achieved maximum medical recovery.  The healing 
 
            period can be considered the period during which there is a 
 
            reasonable expectation of improvement from the disabling 
 
            condition.  See Armstrong Tire & Rubber Co. v. Kubli, 312 
 
            N.W.2d 60 (Iowa App. 1981).  Healing period benefits can be 
 
            interrupted or intermittent.  Teel v. McCord, 394 N.W.2d 405 
 
            (Iowa 1986).
 
            Dr. Jardon's opinions will be reconciled and relied upon to 
 
            determine claimant's disability.  Dr. Jardon gave claimant a 
 
            five percent impairment rating for each arm.  He changed 
 
            claimant's right arm impairment rating from five to ten 
 
            percent after the left arm injury.  It appears that Dr. 
 
            Jardon increased impairment ratings because both arms were 
 
            impaired.  He clearly, properly gave an impairment rating of 
 
            five percent of each of the arms.  See exhibit 8.  
 
            Claimant's disability to each arm is five percent.  A five 
 
            percent disability entitles claimant to 12.5  and also less the 
 
            compensable value of the preexisting disability.  Iowa Code 
 
            section 85.64.  Second Injury Fund of Iowa v. Braden, 459 
 
            N.W.2d 467 (Iowa 1990); Second Injury Fund v. Neelans, 436 
 
            N.W.2d 335 (Iowa 1989); Second Injury Fund v. Mich. Coal 
 
            Co., 274 N.W.2d 300 (Iowa 1970).
 
            
 
                 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 
 
            the employee is fitted.  Olson v. Goodyear Serv. Stores, 255 
 
            Iowa 1112, 125 N.W.2d 251 (1963); Barton v. Nevada Poultry, 
 
            253 Iowa 285, 110 N.W.2d 660 (1961).
 
            
 
                 A finding of impairment to the body as a whole found by 
 
            a medical evaluator does not equate to industrial 
 
            disability.  Impairment and disability are not synonymous.  
 
            The degree of industrial disability can be much different 
 
            than the degree of impairment because industrial disability 
 
            references to loss of earning capacity and impairment 
 
            references to anatomical or functional abnormality or loss.  
 
            Although loss of function is to be considered and disability 
 
            can rarely be found without it, it is not so that a degree 
 
            of industrial disability is proportionally related to a 
 
            degree of impairment of bodily function.
 
            
 
                 Factors to be considered in determining industrial dis
 
            ability include the employee's medical condition prior to 
 
            the injury, immediately after the injury, and presently; the 
 
            situs of the injury, its severity and the length of the 
 
            healing period; the work experience of the employee prior to 
 
            the injury and after the injury and the potential for 
 
            rehabilitation; the employee's qualifications 
 
            intellectually, emotionally and physically; earnings prior 
 
            and subsequent to the injury; age; education; motivation; 
 
            functional impairment as a result of the injury; and 
 
            inability because of the injury to engage in employment for 
 
            which the employee is fitted.  Loss of earnings caused by a 
 
            job transfer for reasons related to the injury is also 
 
            relevant.  Likewise, an employer's refusal to give any sort 
 
            of work to an impaired employee may justify an award of 
 
            disability.  McSpadden v. Big Ben Coal Co., 288 N.W.2d 181 
 
            (Iowa 1980).  These are matters which the finder of fact 
 
            considers collectively in arriving at the determination of 
 
            the degree of industrial disability.
 
            
 
                 There are no weighting guidelines that indicate how 
 
            each of the factors are to be considered.  Neither does a 
 
            rating of functional impairment directly correlate to a 
 
            degree of industrial disability to the body as a whole.  In 
 
            other words, there are no formulae which can be applied and 
 
            then added up to determine the degree of industrial 
 
            disability.  It therefore becomes necessary for the deputy 
 
            or commissioner to draw upon prior experience as well as 
 

 
            
 
            Page   8
 
            
 
            
 
            
 
            
 
            general and specialized knowledge to make the finding with 
 
            regard to degree of industrial disability.  See Christensen 
 
            v. Hagen, Inc., Vol. 1 No. 3 State of Iowa Industrial 
 
            Commissioner Decisions 529 (App. March 26, 1985); Peterson 
 
            v. Truck Haven Cafe, Inc., Vol. 1 No. 3 State of Iowa 
 
            Industrial Commissioner Decisions 654 (App. February 28, 
 
            1985).
 
            
 
                 Compensation for permanent partial disability shall 
 
            begin at the termination of the healing period.  
 
            Compensation shall be paid in relation to 500 weeks as the 
 
            disability bears to the body as a whole.  Iowa Code section 
 
            85.34.
 
            
 
                 Interest accrues on benefits the Fund pays commencing 
 
            on the date of the decision.  Second Injury Fund of Iowa v. 
 
            Braden, 459 N.W.2d 467 (Iowa 1990).
 
            Claimant sustained a loss of a five percent impairment to 
 
            his right arm.  He later sustained a work related loss of 
 
            use to his left arm.  Claimant is eligible for Second Injury 
 
            Fund benefits.
 
            
 
            Claimant sustained a repetitive motion disorder or an 
 
            "overuse syndrome."  This injury is not an occupational 
 
            disease.  See Noble v. Lamoni Products, Appeal Decision, May 
 
            7, 1992, File nos. 657575 and 851309.  The reasoning of 
 
            Noble is incorporated by reference as if set out in full in 
 
            this decision.
 
            
 
            The next issue to be resolved is the Second Injury Fund's 
 
            liability.  Claimant has sustained a five percent disability 
 
            to each of his arms.  He was an average student.  His 
 
            motivation and chances for rehabilitation appear to be 
 
            average.  He was 40 years old at the time of the hearing.  
 
            When all the relevant factors are considered claimant has 
 
            suffered a cumulative industrial disability of 10 percent as 
 
            a result of his two injuries.  The Second Injury Fund's 
 
            liability is 25 weeks.  [10% x 500 weeks minus (12.5 + 
 
            12.5)].  The Second Injury Fund liability begins at the end 
 
            of the employer's liability for weekly benefits.  The 
 
            employer's liability ended 12.5 weeks after July 31, 1989.  
 
            All weekly benefits in this matter have accrued.
 
            WHEREFORE, the decision of the deputy is affirmed in part 
 
            and reversed in part.
 
            
 
                                       ORDER
 
            
 
            THEREFORE, it is ordered:
 
            
 
            That defendant employer is to pay unto claimant healing 
 
            period benefits from April 22, 1987 through August 17, 1987, 
 
            at the rate of two hundred forty-one and 43/100 dollars 
 
            ($241.43) per week.
 
            
 
            That defendant employer is to pay unto claimant twelve point 
 
            five (12.5) weeks of permanent partial disability benefits 
 
            at the rate of two hundred forty-one and 43/100 dollars 
 
            ($241.43) per week for the injury to claimant's right arm.
 
            
 
            That defendant employer is to pay unto claimant healing 
 
            period benefits from April 3, 1989 through July 31, 1989, at 
 
            the rate of two hundred sixty-six and 23/100 dollars 
 
            ($266.23) per week.
 

 
            
 
            Page   9
 
            
 
            
 
            
 
            
 
            That defendant employer is to pay unto claimant twelve point 
 
            five (12.5) weeks of permanent partial disability benefits 
 
            at the rate of two hundred sixty-six and 23/100 dollars 
 
            ($266.23) per week for the injury to the left arm.
 
            
 
            That defendant employer shall pay accrued weekly benefits in 
 
            a lump sum.
 
            
 
            That defendant employer shall pay interest on unpaid weekly 
 
            benefits awarded herein as set forth in Iowa Code section 
 
            85.30.
 
            
 
            That defendant Second Injury Fund is to pay claimant 
 
            twenty-five (25) weeks of benefits beginning 12.5 weeks 
 
            after July 31, 1989 at the rate of two hundred sixty-six and 
 
            23/100 dollars ($266.23) per week.
 
            
 
            That defendant Second Injury Fund is to pay accrued weekly 
 
            benefits in a lump sum.
 
            
 
            That defendant Second Injury Fund is to pay interest on 
 
            unpaid weekly benefits beginning on the date of this 
 
            decision.
 
            
 
                 That defendant employer and defendant Second Injury 
 
            Fund shall share equally the costs of this matter including 
 
            transcription of the hearing and shall reimburse claimant 
 
            for the filing fee if previously paid by claimant.
 
            
 
            Signed and filed this ____ day of March, 1993.
 
            
 
            
 
            
 
            
 
                                     ________________________________
 
                                              BYRON K. ORTON
 
                                         INDUSTRIAL COMMISSIONER
 
            
 
            Copies To:
 
            
 
            Mr. Steve Hamilton
 
            Attorney at Law
 
            606 Ontario Street
 
            P.O. Box 188
 
            Storm Lake, Iowa  50588
 
            
 
            Mr. David L. Sayre
 
            Attorney at Law
 
            233 Pine Street
 
            P.O. Box 535
 
            Cherokee, Iowa  51012