BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
            
 
            KAJ SINCLAIR, DANE SINCLAIR,    :
 
            and MAREN SINCLAIR,             :
 
                                            :
 
                 Claimant,                  :
 
                                            :
 
            vs.                             :
 
                                            :       File No. 840779
 
            ELLSWORTH FREIGHT LINES,        :
 
                                            :          A P P E A L
 
                 Employer,                  :
 
                                            :        D E C I S I O N
 
            and                             :
 
                                            :
 
            LIBERTY MUTUAL INSURANCE        :
 
            COMPANY,                        :
 
                                            :
 
                 Insurance Carrier,         :
 
                 Defendants.                :
 
            ____________________________________________________________
 
           
 
                 Following an appeal by defendants and cross-appeal by 
 
            claimants, an appeal decision was filed January 31, 1992.  
 
            That appeal decision determined the following:  The 
 
            testimony of defendants' witness Elston should be allowed; 
 
            claimant's exhibits II, JJ, KK, LL, MM, NN, OO, and PP; and 
 
            claimant's witnesses Hill and Sally Sinclair should be 
 
            excluded.
 
            
 
                 The reasons for allowing the testimony given in the 
 
            appeal decision filed January 31, 1992 are incorporated in 
 
            this decision and is reaffirmed.  Since the filing of the 
 
            appeal the defendants have filed the deposition of Steven 
 
            Elston taken May 12, 1992.
 
            
 
                 The appeal decision filed January 31, 1992 indicated 
 
            that defendants had preserved the right to object to the 
 
            admission of claimant's exhibits II, JJ, KK, LL, MM, NN, OO, 
 
            and PP.  These exhibits were copies of correspondence 
 
            between claimant's attorney and the defendant insurance 
 
            company.  It would not be prejudicial to allow these 
 
            exhibits in evidence.  Given the nature of the exhibits, 
 
            defendants would have had copies of these exhibits at or 
 
            about the time of the correspondence (January 27, 1987 
 
            through August 18, 1987).  It should be noted that these 
 
            exhibits have little probative value relative to the 
 
            substantive issues involved and the determination of the 
 
            substantive issues discussed below would be the same whether 
 
            these exhibits were considered or not.  The appeal decision 
 
            dated January 31, 1992 is modified to the extent these 
 
            exhibits will be considered.
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            
 
                 Because claimant's witness list was not timely served 
 
            and was in violation of the hearing assignment order, 
 
            claimant's witnesses Hill and Sally Sinclair should be 
 
            excluded.
 
            
 
                 The record, including the transcript of the hearing 
 
            before the deputy and all exhibits admitted into the record 
 
            as discussed in part above, has been reviewed de novo on 
 
            appeal.
 
            
 
                                     ISSUES
 
            
 
                 The issues on appeal are:  Whether David Sinclair's 
 
            death on November 13, 1986 arose out of and in the course of 
 
            his employment; the rate of compensation; whether claimants 
 
            are dependents; and whether penalty should be assessed for 
 
            an unreasonable delay in commencement of benefits.
 
            
 
                                FINDINGS OF FACT
 
            
 
                 David Sinclair was an employee for Ellsworth Freight 
 
            Lines, Inc. (hereinafter employer).  Mr. Sinclair worked as 
 
            a truck driver beginning in September 1986.  Mr. Sinclair 
 
            was to drive a shipment of "petrop. prod." from Cincinnati, 
 
            Ohio to Deer Park, Texas.  (Claimant's Exhibit J; and Elston 
 
            deposition taken May 12, 1992).  The shipment was to begin 
 
            on November 12, 1986 and the load was due in Deer Park at 
 
            7:00 a.m. on November 14, 1986.  The route between the 
 
            origin and destination of the trip includes Highway 59.
 
            
 
                 Highway 59 is a four lane road which runs in a north 
 
            and south direction in the area of New Caney, Texas.  New 
 
            Caney is approximately 30 miles north of Deer Park.  Access 
 
            roads parallel Highway 59.  These access roads are one way 
 
            roads which are on either side of Highway 59.  The access 
 
            road to the west of Highway 59 carries two lanes of one way 
 
            running south.  At approximately 6:00 p.m. on November 13, 
 
            1986 there was a pickup-pedestrian accident on the south 
 
            bound access road in which the pedestrian was fatally 
 
            injured.  The pedestrian had no identification on his person 
 
            at the time of the accident.  State Trooper Ronald Walker 
 
            investigating the accident found only a bar of soap, some 
 
            money and a pack of matches in the pedestrian's pockets.  
 
            The pedestrian was later identified as David Sinclair 
 
            (hereinafter decedent).
 
            
 
                 According to the trooper's investigation, the decedent 
 
            was heading north on foot walking a few feet within the left 
 
            lane of the service road.  A driver of a pickup truck had 
 
            just entered the service road heading south.  The driver 
 
            looked into his rearview mirror to check for traffic prior 
 
            to changing lanes.  After changing to the left lane, the 
 
            driver looked forward and immediately saw the decedent in 
 
            his path only a few seconds before striking him with the 
 
            front of his pickup.  The decedent's body was thrown several 
 
            feet and landed on the right lane of the service road.  
 
            According to Trooper Walker, the point of impact was 
 
            approximately .2 to .3 of a mile from a convenience store 
 
            and approximately one-half mile from a truck stop where 
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            showers and a restaurant are available for truckers.
 
            
 
                 Decedent's truck was parked under an overpass on the 
 
            shoulder of Highway 59 approximately a quarter mile south of 
 
            the accident scene.  Although the truck trailer was sealed, 
 
            the cab doors to the tractor were unlocked.
 
            
 
                 The employer gave instructions to decedent when making 
 
            one or more stops during driving time of a ten hour period 
 
            for meal stops and other routine stops, the time spent was 
 
            to be logged as "off duty."  The instructions were:
 
            
 
                 1.  Unit or units have been properly and safely 
 
                 parked in an off-road parking location.
 
            
 
                 2.  The parking brake has been set and the engine 
 
                 has been turned off.
 
            
 
                 3.  The key has been removed from the ignition 
 
                 switch and the doors secured.
 
            
 
                 4.  The trailer doors are sealed and locked.
 
            
 
            (Claimant's Exhibit C, p. 34)
 
            
 
                 Because claimant died almost immediately from the 
 
            accident, there is no direct evidence from him what he was 
 
            doing when the accident occurred.  From the evidence here it 
 
            can be safely assumed that claimant was going to attend to a 
 
            personal need of some sort.  The personal need could have 
 
            been going to get cigarettes, stopping to go to the 
 
            bathroom, going to call his cohabitator (Lillian Hill), or 
 
            going to take a shower.  He did not intend to be gone from 
 
            the vehicle for very long and most likely had not been gone 
 
            for very long when the accident occurred.
 
            
 
                 Decedent worked for the employer for 9.43 weeks.  
 
            During that time he worked for this employer he drove 14,571 
 
            miles.  He was paid a rate of 13 cents per mile.  (Cl. Ex. 
 
            A, pp. 3-8)  The drivers' wages paid by the employer was 
 
            dependent upon whether they were "student" drivers or 
 
            "experienced" drivers and how long they had driven for this 
 
            employer.  (Cl. Ex. B, p. 11)  After 120 days working for 
 
            this employer both classes of drivers were paid the same 
 
            rate.
 
            
 
                 The decedent married in 1961.  Three children were born 
 
            to this marriage.  Kaj was born August 21, 1962 (Cl. Ex. R).  
 
            Dane was born January 24, 1968 (Cl. Ex. S).  Maren was born 
 
            March 8, 1970 (Cl. Ex. T).  The decedent was divorced in 
 
            1979 and the divorce decree specified that the decedent was 
 
            to pay child support for each of the three children until 
 
            the "child graduates from high school, becomes 
 
            self-supporting, permanently leaves school or dies, 
 
            whichever event occurs first."  (Cl. Ex. U, p. 72)  The 
 
            divorce decree granted custody of the couple's three 
 
            children to their mother.  The date of decedent's death was 
 
            November 13, 1986.  Kaj was 24 years old on that date, Dane 
 
            was 18 years old.  Maren was 16 years old.
 
            
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
                 Maren testified that she was eighteen years old at the 
 
            time of the hearing and was a full-time student at the 
 
            University of Iowa.  She also testified that at the time of 
 
            the hearing Dane was a full-time student at Kirkwood in 
 
            Cedar Rapids.  She also testified that Kaj had graduated 
 
            from the University of Iowa and was living in California.  
 
            (Tr., pp. 54, 60 and 61)  She stated that the decedent had 
 
            sent checks to herself and her brothers.  The amount of 
 
            money the decedent sent was "a good sum."  She didn't know 
 
            whether the decedent regularly provided child support 
 
            according to the terms of the divorce decree.  (Tr., p. 79) 
 
            
 
                 In a letter dated December 29, 1986 from Morton Claim 
 
            Service to Liberty Mutual Insurance Company, the author 
 
            wrote:
 
            
 
                 Mr. Elston did advise me that it was his 
 
                 understanding that the claimant was divorced, but 
 
                 he had several children, one of which may be a 
 
                 minor.
 
            
 
                 Your office advised that there also was a 21 year 
 
                 old child who was still in college.
 
            
 
            (Cl's Ex. GG, p. 100)
 
            
 
            That letter also gave the author's theories as to what 
 
            decedent was doing at the time of the fatal accident.
 
            
 
                 A letter from Leonard O. Weaver, III, a claims adjuster 
 
            to claimant's counsel dated April 9, 1987 states the 
 
            following:  "From our review of the driver's log which was 
 
            incomplete and improperly filled out on 11/12/86 and in 
 
            review with the fuel stops which he has made on 11/13/86 it 
 
            appears that the driver was 8 hours ahead of schedule and 
 
            should have been in Nacodoches, Texas at the time of his 
 
            fatal accident not in New Caney, Texas."  (C. Ex. LL, p. 
 
            119)
 
            
 
                 In a letter dated August 17, 1987 Mr. Weaver wrote:
 
            
 
                    As you are aware Liberty Mutual feels Mr. 
 
                 Sinclair was not in the active course and scope of 
 
                 his job at the time of his fatal accident.  In 
 
                 review of the records it indicates that Mr. 
 
                 Sinclair was approximately 120 miles ahead of 
 
                 schedule at the time he was killed.  It is based 
 
                 on this information that we have not voluntarily 
 
                 accepted this as a Workers' Compensation claim.
 
            
 
            (Cl. Ex. OO, p. 121)
 
            
 
                                CONCLUSIONS OF LAW
 
            
 
                 The first issue to be resolved is whether decedent's 
 
            death arose out of and in the course of his employment.
 
            
 
                 Iowa Code section 85.61(7) provides in pertinent part:
 
            
 
                    The words "personal injury arising out of and 
 

 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
                 in the course of the employment" shall include 
 
                 injuries to employees whose services are being 
 
                 performed on, in, or about the premises which are 
 
                 occupied, used, or controlled by the employer, and 
 
                 also injuries to those who are engaged elsewhere 
 
                 in places where their employer's business requires 
 
                 their presence and subjects them to dangers 
 
                 incident to the businey 
 
            a work rule.)
 
            
 
                 Defendants' argument is not convincing.  The decedent's 
 
            attending to his personal needs did not substantially 
 
            deviate from his employment.  The alleged violation of the 
 
            work rules did not amount to abandonment of his employment.
 
            
 
                 The next issue to be resolved is whether the claimants 
 
            in this matter are dependents.
 
            
 
                 Iowa Code section 85.31(1) provides in relevant part:
 
            
 
                 1.  When death results from the injury, the 
 
                 employer shall pay the dependents who were wholly 
 
                 dependent on the earnings of the employee for 
 
                 support at the time of the injury, during their 
 
                 lifetime, compensation upon the basis of eighty 
 
                 percent per week of the employee's average weekly 
 
                 spendable earnings, commencing from the date of 
 

 
            
 
            Page   6
 
            
 
            
 
            
 
            
 
                 death as follows:
 
            
 
                 ....
 
            
 
                 b.  To any child of the deceased until the child 
 
                 shall reach the age of eighteen, provided that a 
 
                 child beyond eighteen years of age shall receive 
 
                 benefits to the age of twenty-five if actually 
 
                 dependent, and the fact that a child is under 
 
                 twenty-five years of age and is enrolled as a 
 
                 full-time student in any accredited educational 
 
                 institution shall be a prima facie showing of 
 
                 actual dependency.
 
            
 
                 Iowa Code section 85.42 provides in relevant part:
 
            
 
                    The following shall be conclusively presumed to 
 
                 be wholly dependent upon the deceased employee:
 
            
 
                    ....
 
            
 
                 2.  A child or children under eighteen years of 
 
                 age, and over said age if physically or mentally 
 
                 incapacitated from earning, whether actually 
 
                 dependent for support or not upon the parent at 
 
                 the time of the parent's death.  An adopted child 
 
                 or children shall be regarded the same as issue of 
 
                 the body.  A child or children, as used herein, 
 
                 shall also include any child or children conceived 
 
                 but not born at the time of the employee's injury, 
 
                 and any compensation payable on account of any 
 
                 such child or children shall be paid from the date 
 
                 of their birth.  A stepchild or stepchildren shall 
 
                 be regarded the same as issue of the body only 
 
                 when the stepparent has actually provided the 
 
                 principal support for such child or children.
 
            
 
                 Children under the age of 18 are presumed dependent.  
 
            Maren is presumed to be a dependent as she was 16 years old 
 
            at the time of her father's death.  Also, the decedent 
 
            contributed a "good sum" to support Maren.  Maren was the 
 
            decedent's dependent on the date of his death.
 
            
 
                 Both Dane and Kaj were eighteen years of age or older 
 
            (18 and 24 respectively) on the date of the decedent's fatal 
 
            accident.  Enrollment as a full-time student is a prima 
 
            facie showing of actual dependency for a child under age 25.  
 
            Maren's testimony indicates that both Dane and Kaj pursued 
 
            education beyond high school.  That pursuit occurred after 
 
            they turned eighteen and before the hearing.  This testimony 
 
            is not specifically contradicted in the record.  Given the 
 
            statutory presumption and the evidence in this case it is 
 
            reasonable to conclude that both Dane and Kaj were 
 
            dependents when decedent's fatal accident occurred.  
 
            However, it should be noted that the statutory presumption 
 
            is no longer applicable when individuals cease to be 
 
            full-time students.  All three of these dependents would 
 
            cease to be dependents when they were no longer full-time 
 
            students.  Their right to weekly benefits would cease when 
 
            they are no longer full-time students.
 

 
            
 
            Page   7
 
            
 
            
 
            
 
            
 
            
 
                 The next issue to be resolve is the rate of 
 
            compensation.  The first step in determining the rate is to 
 
            determine the decedent's gross weekly earnings. 
 
            
 
                 The decedent was a probationary employee and was paid a 
 
            per mile rate of a "student driver."  However, the decedent 
 
            was performing his work without direct supervision.  He 
 
            apparently was fully licensed to drive the equipment he was 
 
            driving.  From the record in this case it cannot be said 
 
            that the decedent was an apprentice or trainee.  Therefore, 
 
            Iowa Code section 85.36(10)(b) is not applicable.  
 
            Furthermore, even if the decedent were to be considered an 
 
            apprentice or a trainee, the subsection merely allows using 
 
            expected earnings to be used.  It does not require the use 
 
            of expected earnings.
 
            
 
                 The decedent's gross weekly earnings should be computed 
 
            pursuant to Iowa Code section 85.36(7).  There is no 
 
            reliable evidence in the record of the amount the decedent 
 
            would have earned had he been employed in the 13 weeks 
 
            preceding his death.  Because of this the decedent's gross 
 
            weekly earnings is to be calculated by dividing the gross 
 
            amount earned by the number of weeks he did work.  See 
 
            Anderson v. High Rise Construction Specialists, Inc., file 
 
            No. 850096, Appeal Decision July 31, 1990 and Barker v. City 
 
            Wide Carthage, I Iowa Industrial Commissioner Reports 12, 15 
 
            (Appeal Decision 1980).
 
            
 
                 The gross amount the decedent was paid is 13 cents 
 
            times 14,751 miles for a total of $1,917.63.  The gross 
 
            amount ($1,917.63) divided by the number of weeks worked 
 
            (9.43) equals gross weekly earnings of $203.35.  Decedent 
 
            was single.  It is unknown whether the decedent was entitled 
 
            to any other exemptions other than the natural children as 
 
            dependents.  Therefore, the decedent was entitled to four 
 
            exemptions.  The proper rate of weekly workers' compensation 
 
            benefits is $137.44.
 
            
 
                 The last issue to be resolved is whether penalty should 
 
            be assessed for an unreasonable delay in commencement of 
 
            benefits.  Iowa Code section 86.13 provides in relevant 
 
            part:  "If a delay in commencement or termination of 
 
            benefits occurs without reasonable or probable cause or 
 
            excuse, the industrial commissioner shall award benefits in 
 
            addition to those benefits payable under this chapter, or 
 
            chapter 85, 85A, or 85B, up to fifty percent of the amount 
 
            of benefits that were unreasonably delayed or denied."  If 
 
            the delay in commencement of benefits is without reasonable 
 
            or probable cause or excuse a penalty may be added to the 
 
            weekly benefits.  In this case the reason for the failure to 
 
            pay weekly benefits was that the insurance company 
 
            representative indicated that the decedent was not in the 
 
            scope of his employment at the time of the accident.  The 
 
            reason given for the conclusion that decedent was not in the 
 
            scope of his employment was that he was "120 miles ahead of 
 
            schedule."  If the decedent were otherwise in the course of 
 
            his employment at the time of the accident, the fact that he 
 
            was ahead of schedule would not remove him from the course 
 
            of his employment.  It is not fairly debatable that the 
 

 
            
 
            Page   8
 
            
 
            
 
            
 
            
 
            decedent was not in the course of his employment for the 
 
            reason the insurance company gave.  Penalty is appropriate 
 
            in this case.  The reason for failure to pay any benefits 
 
            was not fairly debatable and the defendants have given no 
 
            legal justification for the position taken by the insurance 
 
            company.  Other possible reasons for denying compensation 
 
            such as claimants were not dependents, suicide, decedent's 
 
            abandonment of his employment were not the reason for 
 
            failure to commence benefits.  These issues were raised for 
 
            purposes of adjudication but the record shows that the 
 
            reason for denial was that decedent was ahead of schedule.
 
            
 
                 WHEREFORE, the decision of the deputy is affirmed and 
 
            modified.
 
            
 
                                      ORDER
 
            
 
                 THEREFORE, it is ordered:
 
            
 
                 That defendants pay claimants weekly benefits at the 
 
            rate of one hundred thirty-seven and 44/100 dollars 
 
            ($137.44) per week from November 13, 1986 so long as the 
 
            claimants were full-time students or until they reach age 
 
            25, whichever occurs first.
 
            
 
                 That defendants shall pay interest on unpaid weekly 
 
            benefits awarded herein as set forth in Iowa Code section 
 
            85.30.
 
            
 
                 That defendants shall pay penalty benefits consisting 
 
            of fifty percent (50%) of all unpaid weekly benefits until 
 
            the date of commencement of those benefits.
 
            
 
                 That defendants shall pay accrued weekly benefits in a 
 
            lump sum.
 
            
 
                 That defendants shall pay burial expenses of up to one 
 
            thousand dollars ($1,000).
 
            
 
                 That defendants shall pay the costs of this matter 
 
            including the transcription of the hearing.  
 
            
 
                 That defendants shall file claim activity reports as 
 
            required by this agency pursuant to rule 343 IAC 3.1(2).
 
            
 
                 Signed and filed this ____ day of July, 1993.
 
            
 
            
 
            
 
            
 
                                          
 
                                      ________________________________
 
                                                   BYRON K. ORTON
 
                                              INDUSTRIAL COMMISSIONER
 
            
 
            Copies To:
 
            
 
            Mr. Paul J. McAndrew, Jr.
 
            Attorney at Law
 
            122 S. Linn St.
 

 
            
 
            Page   9
 
            
 
            
 
            
 
            
 
            Iowa City, Iowa 52240
 
            
 
            Mr. Tito Trevino
 
            Attorney at Law
 
            P.O. Box 1680
 
            Fort Dodge, Iowa 50501
 
            
 
                 
 
 
            
 
            
 
            
 
            
 
                                      1103; 1110; 1402.30; 5-1901;
 
                                      3001; 4000.2
 
                                      Filed July 29, 1993
 
                                      Byron K. Orton
 
                          
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
            
 
            KAJ SINCLAIR, DANE SINCLAIR,    :
 
            and MAREN SINCLAIR,             :
 
                                            :
 
                 Claimant,                  :
 
                                            :
 
            vs.                             :
 
                                            :       File No. 840779
 
            ELLSWORTH FREIGHT LINES,        :
 
                                            :          A P P E A L
 
                 Employer,                  :
 
                                            :        D E C I S I O N
 
            and                             :
 
                                            :
 
            LIBERTY MUTUAL INSURANCE        :
 
            COMPANY,                        :
 
                                            :
 
                 Insurance Carrier,         :
 
                 Defendants.                :
 
            ____________________________________________________________
 
         
 
            1103; 1110; 1402.30
 
            Decedent truck driver, parked his vehicle on route to a 
 
            delivery, left the vehicle, and was killed in a pickup 
 
            pedestrian accident on an access road adjacent to the 
 
            highway where the truck was parked.  The truck was left 
 
            unlocked and running.  It was found that the decedent was 
 
            attending to his personal needs at the time of the accident.  
 
            This traveling employee had not deviated from employment and 
 
            his death was found to be in the course of his employment.
 
            
 
            5-1901
 
            Decedent was divorced.  The claimant's were the two sons and 
 
            a daughter of the decedent.  The daughter was sixteen on the 
 
            date of death and was a student at the time of the hearing.  
 
            She was found to be a dependent.
 
            The two sons were both 18 or older on the date of death.  
 
            Based upon the statutory presumption and the evidence of 
 
            this case, the sons were found to be dependents.
 
            The claimants were awarded benefits.
 
            
 
            3001
 
            Decedent was a probationary truck driver who had worked 9-43 
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            weeks for the employer and was compensated at 13> a mile.  
 
            Gross earnings was determined by determining gross pay (rate 
 
            of 13> times miles driven) and dividing by number of weeks 
 
            worked.  Iowa Code section 85.36(7) applied to determine the 
 
            gross earnings.
 
            
 
            4000.2
 
            
 
            The reason the insurance company did not pay benefits was 
 
            that decedent truck driver was ahead of schedule.  It was 
 
            not fairly debatable that decedent was in the course of his 
 
            employment.  Delay in commencement of benefits was 
 
            unreasonable and a 50 percent penalty was assessed.
 
            
 
 
         
 
 
 
 
 
 
 
 
 
 
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         KAJ SINCLAIR, DANE SINCLAIR,
 
          and MAREN SINCLAIR,
 
          
 
               Claimant,
 
                                             File No. 840779
 
          VS.
 
                                             A B I T R A T I 0 N
 
          ELLSWORTH FREIGHT LINES, INC.,
 
                                             D E C I S I 0 N
 
               Employer,
 
          
 
          and
 
          
 
          LIBERTY MUTUAL INSURANCE
 
          COMPANY,
 
          
 
               Insurance Carrier,
 
               Defendants.
 
         
 
         
 
         
 
                              STATEMENT OF THE CASE
 
                                        
 
              This is a proceeding in arbitration brought by Kaj Sinclair, 
 
         Dane Sinclair and Maren Sinclair, claimants, against Ellsworth 
 
         Freight Lines, Inc., employer (hereinafter referred to as 
 
         Ellsworth), and Liberty Mutual Insurance Company, insurance 
 
         carrier, defendants, for workers' compensation benefits as a 
 
         result of the death of David Sinclair on November 13, 1986.  On 
 
         February 23, 1989, a hearing was held on claimant's petition and 
 
         the matter was considered fully submitted at the close of this 
 
         hearing.
 
         
 
              The parties have submitted a prehearing report of contested 
 
         issues and stipulations which was approved and accepted as a part 
 
         of the record of this case at the time of hearing. oral testimony 
 
         and written exhibits were received during the hearing.  It was 
 
         stipulated in the prehearing report that an employer-employee 
 
         relationship existed between Ellsworth and David Sinclair at the 
 
         time of his death.
 
         
 
                                      ISSUES
 
                                        
 
              The parties submitted the following issues for determination 
 
         in this proceeding:
 
         
 
              I.  Whether the death of David Sinclair arose out of and in 
 
         the course of his employment at Ellsworth.
 
         
 
              II.  The extent of claimants' entitlement to death benefits.
 
         
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
         SINCLAIR V. ELLSWORTH FREIGHT LINES, INC.
 
         Page 2
 
         
 
         
 
                                STATEMENT OF FACTS
 
         
 
              The following is a brief statement highlighting some of the 
 
         more pertinent evidence presented.  Whether or not specifically 
 
         referred to in this statement, all of the evidence received at 
 
         the hearing was independently reviewed and considered in arriving 
 
         at this decision.  Any conclusions about the evidence received 
 
         contained in the following statement should be viewed as 
 
         preliminary findings of fact.
 
         
 
              David Sinclair only worked for Ellsworth for 9.43 weeks 
 
         before his death.  Claimant was a probationary truck driver at 
 
         the time.  Drivers at Ellsworth earned $.08 a mile for the first 
 
         30 days and $.15 per mile until completion of a 90 day 
 
         probationary/training period.  At the completion of the 
 
         probationary period, drivers earned $.20 per mile.  Ellsworth 
 
         management indicated that claimant was becoming a good solid 
 
         driver at the time of his death.  Sinclair drove an average of 
 
         1,564 miles per week prior to his death and earned $1,875.26 
 
         during his Ellsworth employment prior to his death.  At the 
 
         request of the insurance adjustor the safety director at the time 
 
         of Sinclair's death, Steve Elston stated in a letter marked 
 
         exhibit MM that another driver hired at the same time as Sinclair 
 
         earned $4,281.30 over the first 13 weeks of employment.  In his 
 
         deposition, Elston responded in the affirmative to a question as 
 
         to whether exhibit MM states Sinclair's gross earnings and weekly 
 
         average earnings while he worked at Ellsworth.  There is nothing 
 
         in exhibit MM which refers to Sinclair's actual earnings, only 
 
         those of this fellow driver.
 
         
 
              State Trooper Ronald Walker testified that on the evening of 
 
         November 13, 1986, at approximately 6:14 p.m., he arrived at an 
 
         auto-pedestrian accident scene located on a service road running 
 
         adjacent to a four lane highway known as U.S. 59 in New Caney, 
 
         Texas.  This one way service road contained two lanes of 
 
         southbound traffic.  According to Trooper Walker, the night of 
 
         the accident was unusually cold for that time of year requiring 
 
         him to wear his winter parka.  The trooper said that the accident 
 
         scene was dark.  When the trooper arrived, paramedics had already 
 
         arrived on the scene and informed the trooper that the pedestrian 
 
         died instantly from a collision with a pickup truck due primarily 
 
         to massive head injuries.  The trooper placed the time of 
 
         accident at 6:00 p.m. The pedestrian had no identification on his 
 
         person at the time of the accident and it was initially thought 
 
         that he was a transient.  Trooper Walker found only a bar of 
 
         soap, some money and a pack of matches in the pedestrian's 
 
         pockets.  Identification by Trooper Walker of the pedestrian was 
 
         delayed until his wallet and identification were found the next 
 
         day in a nearby semi tractor trailer truck.  The pedestrian was 
 
         then identified as David Sinclair, a driver for Ellsworth.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
         
 
         
 
         SINCLAIR V. ELLSWORTH FREIGHT LINES, INC.
 
         Page 3
 
         
 
         
 
              According to the trooper's investigation, Sinclair was 
 
         heading north on foot walking a few feet within the left lane of 
 
         the service road.  A driver of a pickup truck had just entered 
 
         the service road heading south.  The driver looked into his 
 
         rearview mirror to check for traffic prior to changing lanes.  
 
         After changing to the left lane, the driver looked forward and 
 
         immediately saw Sinclair in his,path only a few seconds before 
 
         striking him with the front of his pickup.  Sinclair's body was 
 
         thrown several feet and landed on the right lane of the service 
 
         road.  According to Trooper Walker, the point of impact was 
 
         approximately .2 to .3 of a mile from a convenience store and 
 
         approximately one-half mile from a truck stop where showers and a 
 
         restaurant are available for truckers.
 
         
 
              Sinclair's truck was parked under an overpass on the 
 
         shoulder of U.S. 59 approximately a quarter mile from.the 
 
         accident scene.  Although the truck trailer was sealed, the cab 
 
         doors to the tractor were unlocked.  Although Trooper Walker 
 
         noticed this truck earlier, he did not immediately connect the 
 
         truck to Sinclair until he searched the cab of the truck the next 
 
         day and found Sinclair's identification.  Trooper Walker 
 
         testified that it was common for truckers to park on that roadway 
 
         and especially at underpasses where the shoulders are wider.  In 
 
         .addition to two wallets which Trooper Walker stated were 
 
         "hidden" under a mattress pad in the sleeper portion of the cab, 
 
         Walker found in the truck some of Sinclair's clothes, a memo 
 
         booklet, a log book and some oranges.  There is reference in the 
 
         evidence to a letter among Sinclair's effects to a girlfriend in 
 
         which he expressed a wish to be home with her and to "get smashed 
 
         or stoned." Sinclair was wearing insulated coveralls at the time 
 
         of the accident which was appropriate for a walk on a cold 
 
         evening according to Trooper Walker.
 
         
 
              Both the trooper and the paramedics stated that neither the 
 
         driver of the pickup truck or Sinclair had the smell of alcoholic 
 
         beverages about their person and no beverage containers were 
 
         found at the accident scene or in Sinclair's truck.  A person who 
 
         observed Sinclair walking on the roadway only minutes before the 
 
         accident indicated that Sinclair was walking normally and did not 
 
         appear drunk.  Although a local justice of the peace ordered an 
 
         autopsy, no autopsy or blood alcohol test was performed on 
 
         Sinclair's body after the accident due to a mix-up following a 
 
         change in policy where such autopsies in that area would be 
 
         taken.  Trooper Walker and the paramedics at the scene concluded 
 
         that neither Sinclair or the driver of the pickup was at fault 
 
         and that neither person could have avoided the accident due to a 
 
         set of unfortunate circumstances and inattentiveness by both the 
 
         driver and Sinclair.  The pickup truck driver was not charged 
 
         with any violations of law.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
         
 
         
 
         SINCLAIR V. ELLSWORTH FREIGHT LINES, INC.
 
         Page 4
 
         
 
         
 
              The exact reason for Sinclair's presence at the location of 
 
         the accident scene was unknown.  Trooper Walker and an insurance 
 
         company claims investigator and personnel all rejected the idea 
 
         that Sinclair had committed suicide by walking in the roadway.  
 
         Trooper Walker surmised from the location of the truck and the 
 
         proximity of the convenience store and truck stop, that Sinclair 
 
         may have missed an exit and simply parked his rig under the next 
 
         underpass to walk to the store or truck stop rather than drive to 
 
         the next exit to turn around.  Given the presence of a bar of 
 
         soap on his person and the fact that he left all of the valuables 
 
         in his truck, Trooper Walker thought that Sinclair was on his way 
 
         to get cleaned up and eat dinner and had planned on returning to 
 
         the truck to sleep.  According to his logs, Sinclair was only 30 
 
         miles from his destination and was not scheduled to deliver his 
 
         load until the next morning.  The insurance investigator, 
 
         Benjamin Apple, retained by defense insurance carrier, initially 
 
         agreed with Trooper Walker's theory of Sinclair's purpose for 
 
         being on the roadway prior to his death.  Apple, however, stated 
 
         in his deposition that he now does not believe this scenario of 
 
         events but offered no other theory.  Sinclair's daughter 
 
         testified that Sinclair was an athletic type who would normally 
 
         take long walks. .
 
         
 
              According to correspondence sent to claimant's attorneys, 
 
         the defense insurance carrier denied the workers' compensation 
 
         claim of Sinclair's dependents on the grounds that according to 
 
         his log, Sinclair was eight hours ahead of his schedule and 
 
         should have been in Nacodoches and not New Caney, Texas.  At 
 
         hearing defendants argued in addition that claimant was not in 
 
         the course of his employment at the time of the accident as he 
 
         had violated company work rules pertaining to compliance with DOT 
 
         regulations and the manner in which his truck was parked.  They 
 
         further argued that Sinclair deviated from his route at the time 
 
         of the accident by walking from his truck in a direction opposite 
 
         (northerly) from his next delivery point (southerly).  They 
 
         stated that there was no business reason for this deviation.
 
         
 
              According to Trooper Walker, a managerial person at 
 
         Ellsworth indicated to him during his initial investigation that 
 
         it would not be unusual for Sinclair to park his rig on the road 
 
         and walk back to a convenience store.  Elston, the safety 
 
         director at Ellsworth, admitted that drivers at Ellsworth run 
 
         ahead of their logs.  He also admitted that it was fair to 
 
         assume, given all of the circumstances, that Sinclair was on his 
 
         way to a convenience store or truck stop to get cleaned up, eat 
 
         dinner or make a phone call when he was killed.  Scott Sampler, a 
 
         manager for another trucking firm not connected to Ellsworth, 
 
         testified that it was common for truckers to run ahead of their 
 
         logs.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
         
 
         
 
         SINCLAIR V. ELLSWORTH FREIGHT LINES, INC.
 
         Page 5
 
         
 
         
 
              David Sinclair died with three surviving children, namely 
 
         Kaj age 23, Dane age 17, and Maren age 15.  David Sinclair was 
 
         divorced from the mother of these children.  Maren Sinclair 
 
         testified without contradiction that all of the children at the 
 
         time of Sinclair's death were dependent upon the support of their 
 
         father, even Kaj who was a student at the University of Iowa.  
 
         She stated that Kaj has since graduated and is working in 
 
         California.  Dane is currently a student at a community college 
 
         and he has been a full time student either in high school or 
 
         college since her father's death.  She stated that Dane, at the 
 
         time of her father's death, was a student but since the death 
 
         changed enrollment to another institution.
 
         
 
                           APPLICABLE LAW AND ANALYSIS
 
                                        
 
              I.  Claimants are seeking benefits as a result of the death 
 
         of their father.  Such benefits are available under Chapter 85, 
 
         Code of Iowa, because a work injury is defined in the statute to 
 
         include death as a result of injury.  Iowa Code section 
 
         85.61(5)(a). However, an employer is liable for death benefits 
 
         only if claimant establishes by a preponderance of the evidence 
 
         that the death arose out of and in the course of employment.
 
         
 
              The words "out of" refer to the cause or source of the 
 
         injury.  The words "in the course of" refer to the time and place 
 
         and circumstances of the injury.  See Cedar Rapids Community Sch. 
 
         v. Cady, 278 N.W.2d 298 (Iowa 1979); Crowe v. DeSoto Consol. Sch. 
 
         Dist., 246 Iowa 402, 68 N.W.2d 63 (1955).  An employer takes an 
 
         employee subject to any active or dormant health impairments, and 
 
         a work connected injury which more than slightly aggravates the 
 
         condition is considered to be a personal injury.  Ziegler v. 
 
         United States Gypsum Co., 252 Iowa 613, 620, 106 N.W.2d 591 
 
         (1960) and cases cited therein.
 
         
 
              Defendants raise two affirmative defenses to this claim.  
 
         They contend that Sinclair was not in the course of his 
 
         employment due to numerous violations of work rules pertaining to 
 
         his time schedule and logs and the manner in which he parked and 
 
         operated his vehicle.  They cite no authority for their arguments 
 
         but such a defense is discussed in Lawyer & Higgs, Iowa Workers' 
 
         Compensation -- Law & Practice, section 6-9, page 49-51.  
 
         However, such a defense clearly has no application to the facts 
 
         of this case.
 
         
 
              First, the defense, as recognized by current law, is limited 
 
         to violations of work rules which takes the injured worker out of 
 
         the scope of his employment, not simply rules which serve only to 
 
         regulate the manner of rendering the employment service.  In the 
 
         case at bar, all of the alleged rules govern the employee's 
 
         manner of driving and caring for the equipment.  Secondly, there 
 
         must be a causal connection between the alleged violation and the 
 
         injury.  In this case, there was clearly no such causal
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
         
 
         
 
         SINCLAIR V. ELLSWORTH FREIGHT LINES, INC.
 
         Page  6
 
         
 
         
 
         connection.  Claimant's death in the case had nothing to do with 
 
         the alleged work rule violations or violations of law or the 
 
         manner in which Sinclair parked his truck.
 
         
 
              The defense that Sinclair left his scope,of employment or 
 
         deviated from his employment by walking in an opposite direction 
 
         than his route is ludicrous.  Claimant was only a quarter of a 
 
         mile from his truck while he was enroute to a convenience store 
 
         or truck stop.  The presence of his clothes and valuables in his 
 
         truck and that the truck was running is a clear indication that 
 
         he was planning on returning.  Defendants correctly cite Larson 
 
         1A Workmen's Compensation Law, section 20:
 
         
 
              A compensable injury must arise not only within the time and 
 
              space limits of the employment, but also in the course of an 
 
              activity related to the employment.  An activity is related 
 
              to the employment if it carries out the employer's purposes 
 
              or advances his interests directly or indirectly.  Under the 
 
              modern trend of decisions, even if the activity cannot be 
 
              said in any sense to advance the employer's interests, it 
 
              may still be in the course of employment if, in view of the 
 
              nature of the employment environment, ...
 
         
 
              Larson also is correctly quoted in defendants' brief for 
 
         section 21 which states as follows:
 
         
 
              Employees who, within the time and space limits of their 
 
              employment, engage in acts which minister to personal 
 
              comfort do not thereby leave the course of employment, 
 
              unless the extent of the departure is so great that an 
 
              intent to abandon the job temporarily may be inferred, or 
 
              unless, in some jurisdictions, the method chosen is so 
 
              unusual and unreasonable that the conduct cannot be 
 
              considered an incident of the employment.
 
         
 
              Claimant cites Larson with reference to unexplained deaths 
 
         of injured workers:
 
         
 
                 When an employee is found dead under circumstances 
 
              indicating that death took place within the time and space 
 
              limits of the employment, in the absence of any evidence of 
 
              what caused the death, most courts will indulge a 
 
              presumption or inference that the death arose out of the 
 
              employment.
 
         
 
              It would appear that if anything, this state follows the 
 
         majority rule by inferring or presuming, absent contrary 
 
         evidence, a deceased employee is in the scope of his employment 
 
         as long as he is at the approximate time and place that he is 
 
         expected to be in his employment, Casey v. Hansen, 238 Iowa 62, 
 
         26 N.W.2d
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
         
 
         
 
         SINCLAIR V. ELLSWORTH FREIGHT LINES, INC.
 
         Page 7
 
         
 
         
 
         50 (1947); Walker v. Speeder Mach. Corp., 213 Iowa 1134, 140 N.W. 
 
         725 (1932).  From the facts, it is concluded that it is more 
 
         likely than not that Sinclair was walking to an adjacent 
 
         convenience store or to a truck stop either to wash up, eat or 
 
         both.  Both of these purposes kept Sinclair in the course of his 
 
         employment under the so-called "dual purpose" or "personal 
 
         comfort" doctrines.  These doctrines hold that an employee does 
 
         not leave the course of his employment when he travels to perform 
 
         bathroom or eating activity, especially when he is in a traveling 
 
         status and in continuous employment.  Walker, 140 N.W. 725 
 
         (1932).  Defendants have offered no evidence nor does any 
 
         evidence exist to the knowledge of the undersigned to support 
 
         their affirmative defense that claimant was outside the scope of 
 
         his employment.
 
         
 
              II.  As claimants have shown that the death arose out of and 
 
         in the course of his employment, the extent of such benefits must 
 
         be determined.  First, the employer is liable for expenses of the 
 
         deceased employee's last illness.  Iowa Code section 85.27 and 
 
         85.29, and for burial expenses of decedent not to exceed the sum 
 
         of $1,000, Iowa Code section 85.28. Defendants are also liable to 
 
         the second injury fund in the amount of $4,000 as Sinclair died 
 
         with dependents.  Iowa Code section 85.65. Secondly, weekly 
 
         benefits are also available from the employer to the surviving 
 
         dependents of a deceased employee.  Such benefits are paid in the 
 
         same amount and manner as work injuries except that the benefits 
 
         are paid to the dependent children absent a surviving spouse.  
 
         Iowa Code section 85.3.  A deceased employee's incapacitated 
 
         children or children of decedent under 18 years of age are 
 
         conclusively presumed dependent.  Iowa Code section 85.41(2), 
 
         85A.6. Children under the age of 25 and enrolled full time in an 
 
         accredited education institution are likewise deemed dependent 
 
         absent contrary evidence.  Iowa Code section 85.31(l)(b).
 
         
 
              There is no question that Maren and Dane are entitled to 
 
         benefits from the time of the death and continuously while they 
 
         are students and under the age of 25.  There appears to be some 
 
         break in Dane's enrollment but only to change schools.  Transfer 
 
         to another school is not a break in enrollment.
 
         
 
              III.  The parties' dispute as to rate involves the 
 
         computation of decedent's gross weekly earnings.  Defendants 
 
         argue that there should be an averaging of the earnings over the 
 
         weeks worked which would result in a gross weekly rate of 
 
         $198.86. Claimants argue that the wages of a fellow driver should 
 
         be used and also claim that Sinclair was a trainee or apprentice 
 
         driver and that the rate should be calculated under Iowa Code 
 
         section 85.36(b) using the $.20 per mile rate of earnings for 
 
         those who complete the probationary period.  Claimants have 
 
         failed to show that the wages of the fellow driver in exhibit MM 
 
         were representative of customary earnings.  However, claimants
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
         
 
         
 
         SINCLAIR V. ELLSWORTH FREIGHT LINES, INC.
 
         Page 8
 
         
 
         
 
         have shown that Sinclair was in a training phase of his 
 
         employment and upon completion would receive the normal rate of 
 
         $.20 per mile.  Therefore, his average miles driven per week 
 
         multiplied by the $.20 per hour rate will be utilized to compute 
 
         Sinclair's gross weekly rate.  This results in a gross rate of 
 
         $312.80 and a weekly rate for compensation purposes given the 
 
         stipulation of single status and four exemptions of $200.48.
 
         
 
              IV.  Finally, claimants seek additional weekly benefits 
 
         under Iowa Code section 86.13. The unnumbered last paragraph of 
 
         Iowa Code section 86.13 states as follows:
 
         
 
                 If a delay in commencement or termination of benefits 
 
              occurs without reasonable or probable cause or excuse, the 
 
              industrial commissioner shall award benefits in addition to 
 
              those benefits payable under this chapter, or chapter 85, 
 
              85A, or 85B, up to fifty percent of the amount of benefits 
 
              that were unreasonably delayed or denied.
 
         
 
              The Iowa Supreme Court has not set forth the precise legal 
 
         tests to be utilized in applying this statutory language.  
 
         However, guidance can be gleaned from Iowa Supreme Court 
 
         decisions involving actions against insurance carriers for a "bad 
 
         faith" denial of an insurance claim in the law of torts.  Pirkl 
 
         v. Northwestern Mut. Ins. Ass'n, 348 N.W.2d 633 (Iowa 1984); M-Z 
 
         Enterprises v. Hawkeye-Security Ins.  Co., 318 N.W.2d 408, 414-15 
 
         (Iowa 1982).  In M-Z Enterprises, although the court denied the 
 
         opportunity to create a separate cause of action in this state 
 
         for a bad faith denial of a claim, the court stated that in those 
 
         states which recognize such causes of action, in order to 
 
         prevail, the insured must show the absence of a reasonable basis 
 
         for denying benefits and the insurer's knowledge or reckless 
 
         disregard of a lack of reasonable basis for denying the claim.  
 
         When the claim is "fairly debatable" the insurer is entitled to 
 
         debate it, whether the debate concerns matter of fact or law.  
 
         M-Z Enterprises at 415 quoting favorably Anderson v. Continental 
 
         Insurance Company, 85 Wis.2d 675.
 
         
 
              Application of the bad faith theory to workers' compensation 
 
         cases was dealt with by the Wisconsin Supreme Court who 
 
         recognizes a cause of action for bad faith denial and who 
 
         instructed their Wisconsin hearing officers as follows in 
 
         applying its own statutory bad faith provisions in the workers' 
 
         compensation statutes:
 
         
 
              As we read sec.102.18(l)(bp), Stats., the issue of bad faith 
 
              is reached only after a final award has been made to the 
 
              claimant.  A hearing examiner then examines the record to 
 
              determine if there was any credible evidence which would 
 
              demonstrate that the claim was fairly debatable.  If the 
 
              examiner finds that there is no credible evidence which the
 

 
              
 
 
 
 
 
 
 
 
 
 
 
         
 
         
 
         
 
         SINCLAIR V. ELLSWORTH FREIGHT LINES, INC.
 
         Page 9
 
         
 
         
 
              employer or insurer could rely upon to conclude that the 
 
              claim was fairly debatable, the examiner then determines if 
 
              the employer's or insurer's actions in denying payment were 
 
              reasonable.  The test is an objective one from the 
 
              standpoint of the employer or insurer: Would a reasonable 
 
              employer or insurer under like or similar circumstances have 
 
              denied or delayed payment on the claim.
 
              
 
              When deciding whether the employer's actions were 
 
              reasonable, it is necessary to determine if the claim was 
 
              properly investigated and if the results of the 
 
              investigation were subject to a reasonable evaluation and 
 
              review.  The examiner must base the decision on the 
 
              information or data that the employer or insurer had in its 
 
              possession at the time the claim for benefits was denied and 
 
              how that information was used.
 
         
 
         Kimberly-Clark v. Labor & Ind. Rev. Com'n, 138 Wis.2d 58, 405 
 
         N.W.2d 684, 688 (1987).
 
         
 
              The above approach by the State of Wisconsin is a logical 
 
         and objective approach to bad faith issues.  Therefore, in 
 
         absence of any other precise tests delineated by higher authority 
 
         in this state, the Wisconsin tests will be used.  Turning to the 
 
         case sub judice, defendants have asserted two affirmative 
 
         defenses, namely violations of work rules in the manner of the 
 
         operation and parking of the truck and deviation from employment 
 
         for nonbusiness reasons.  As set forth above the problem with the 
 
         work rule defense is that it is not fairly debatable due to the 
 
         lack of causal connection between the alleged violations and 
 
         Sinclair's death while walking on the roadway.  The mere fact 
 
         that claimant would have been somewhere else when the accident 
 
         occurred had he strictly complied with DOT rules is much too 
 
         remote of a connection to constitute reasonable grounds to deny 
 
         claim.  Defendants have no legal authority for taking such a 
 
         position.
 
         
 
              With reference to the deviation argument, it is almost 
 
         ludicrous to argue that Sinclair had deviated from his route by 
 
         walking only a quarter of a mile from his truck in a direction 
 
         opposite to the direction of his destination.  Simple legal 
 
         research on the issue would have shown that national law with 
 
         reference to the presumption or inference of compensability in 
 
         unexplained death cases and that Iowa case law supports the claim 
 
         especially in absence of contrary evidence.  Defendants denied 
 
         this claim without a shred of evidence that Sinclair may have 
 
         been doing something unexpected or unusual as an over-the-road 
 
         truck driver.  Claim practices are contrary to the humanitarian 
 
         principles of the workers' compensation laws which were enacted 
 
         to alleviate the economic hardships of a worker's family caused 
 
         by a work related death.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
         
 
         
 
         SINCLAIR V. ELLSWORTH FREIGHT LINES, INC.
 
         Page 10
 
         
 
         
 
              Any good lawyer can come up with arguments (albeit contrary 
 
         to current law and practice) in attempts to justify the actions 
 
         of his or her client and employers and insurance carriers are 
 
         certainly free to make whatever convoluted arguments their 
 
         lawyers can create in hopes of changing or modifying the law.  
 
         However, in a workers' compensation context, they should do so 
 
         only while paying benefits if penalties and interest assessments 
 
         are to be avoided.  Given the nature of the practices in this 
 
         case, the maximum penalty of 50 percent will be imposed.
 
         
 
                                 FINDINGS OF FACT
 
         
 
              1.  Maren Sinclair was a credible witness.
 
         
 
              2.  On November 13, 1986, David Sinclair died at 
 
         approximately 6:00 p.m. from injuries arising out of and in the 
 
         course of his employment with Ellsworth.  Sinclair was struck by 
 
         a pickup truck while walking from his semi truck to a local 
 
         convenience store or truck stop.  Sinclair left his truck with 
 
         the engine running and hid his wallets in the cab.  Claimant was 
 
         carrying money, a bar of soap and a pack of matches when he was 
 
         struck by the pickup truck.  It is likely that the claimant was 
 
         walking to wash up, eat dinner or both.  Defendants have not 
 
         shown by any evidence that Sinclair's death was a result of any 
 
         work rule violation or that Sinclair was violating any work rules 
 
         which took him from the normal scope of his employment or that he 
 
         deviated from his route of employment.
 
         
 
              3.  At the time of his death David Sinclair was survived by 
 
         three of his children namely Kaj age 26, Dane age 17 and Maren 
 
         age 15.  All were David Sinclair's dependents at the time of his 
 
         death including Kaj who was a full time college student.  Since 
 
         the time of his death, Kaj has graduated from college and is now 
 
         currently employed.  Dane and Maren are currently full time 
 
         students and have been so since the date of death of their 
 
         father.  Defendants have failed to show that the brief 
 
         interruption in Dane's status was anything other than a transfer 
 
         to another institution.
 
         
 
              4.  David Sinclair's average gross weekly earnings was 
 
         $312.80 during the time of his employment at Ellsworth.  Sinclair 
 
         drove an average of 1,564 miles each.week and Sinclair was a 
 
         trainee and eligible for full pay of $.20 per mile at the 
 
         completion of his probationary/training period.
 
         
 
              5.  The burial expenses of David Sinclair exceeded the sum 
 
         of $1,000.
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
              6.  Defendants denied the claim of David Sinclair by his 
 
         children for death and weekly benefits for reasons which were not 
 
         fairly debatable.  Defendants established no causal con-
 
         
 
         
 
         
 
         SINCLAIR V. ELLSWORTH FREIGHT LINES, INC.
 
         Page 11
 
         
 
         
 
         nection between any alleged work rule violations and at 
 
         Sinclair's death.  Defendants had no evidence to suggest that 
 
         Sinclair was acting outside the normal and customary scope of his 
 
         employment.  Defendants have acted unreasonably in withholding 
 
         death and weekly benefits while they pursued unique arguments in 
 
         litigation, unsupported by current law and practice.
 
         
 
                                CONCLUSIONS OF LAW
 
         
 
              Claimants have established under law entitlement to death 
 
         and weekly benefits during their dependency.  That claimants have 
 
         established entitlement to penalty benefits for an unreasonable 
 
         denial of benefits.
 
         
 
                                      ORDER
 
         
 
              1.  Defendants shall pay to claimants, Kaj Sinclair, Dane 
 
         Sinclair and Maren Sinclair, weekly benefits at the rate of two 
 
         hundred and 48/100 dollars ($200.48) per week during the term of 
 
         their dependency from November 13, 1986 until the completion of 
 
         their post-high school education or until they reach age 25, 
 
         whichever occurs first.
 
         
 
              2.  Defendants shall pay penalty benefits consisting of a 
 
         lump sum payment equivalent to fifty percent (50%) of all unpaid 
 
         weekly benefits from November 13, 1986 until the first day of 
 
         commencement of payment of those benefits.
 
         
 
              3.  Defendants shall pay David Sinclair's burial expenses to 
 
         the extent of one thousand and no/100 dollars ($1,000.00).  If 
 
         those expenses are unpaid, defendants shall pay the provider 
 
         directly.  Otherwise, defendants shall reimburse whomever paid 
 
         those expenses.
 
         
 
              4.  Defendants shall pay accrued weekly benefits in a lump 
 
         sum.
 
         
 
              5.  Defendants shall pay the sum of four thousand and no/100 
 
         dollars ($4,000.00) to the second injury fund established under 
 
         the laws of the State of Iowa.
 
         
 
              6.  Defendants shall pay interest on weekly benefits awarded 
 
         herein from November 13, 1986.
 
         
 
              7.  Defendants shall pay all of the costs of this action 
 
         pursuant to Division of Industrial Services Rule 343-4.33.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              8.  Defendants shall file activity reports on the payment of 
 
         this award as requested by this agency pursuant to Division of 
 
         Industrial Services Rule 343-3.1.
 
         
 
         
 
         
 
         SINCLAIR V. ELLSWORTH FREIGHT LINES, INC.
 
         Page 12
 
         
 
         
 
              Signed and filed this 13th day of September, 1989.
 
         
 
         
 
         
 
         
 
         
 
                                         LARRY P. WALSHIRE
 
                                         DEPUTY INDUSTRIAL COMMISSIONER
 
         
 
         Copies To:
 
         
 
         Mr. Paul J. McAndrew, Jr.
 
         Attorney at Law
 
         122 S. Linn St.
 
         Iowa City, Iowa 52240
 
         
 
         Mr. Tito Trevino
 
         Attorney at Law
 
         503 Snell Bldg.
 
         P. 0. Box 1680
 
         Fort Dodge, Iowa 50501
 
         
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
 
         
 
 
 
 
 
 
 
 
 
 
 
                                                 4000.2
 
                                                 Filed September 13, 1989
 
                                                 LARRY P. WALSHIRE
 
         
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         KAJ SINCLAIR, DANE SINCLAIR, 
 
         and MAREN SINCLAIR,
 
         
 
              Claimant,
 
                                                 File No. 840779
 
         VS.
 
                                                 A R B I T R A T I 0 N
 
         ELLSWORTH FREIGHT LINES, INC.,
 
                                                 D E C I S I 0 N
 
              Employer,
 
         
 
         and
 
         
 
         LIBERTY MUTUAL INSURANCE COMPANY,
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
         
 
         4000.2 - Penalty Benefits
 
         
 
              It was held that the use of two affirmative defenses to deny 
 
         the claim was not fairly debatable and constituted an 
 
         unreasonable denial of benefits.  The claim by decedent's three 
 
         children was based upon his death from a pedestrian-auto accident 
 
         while decedent was walking on the roadway approximately one 
 
         quarter mile from his parked semi truck.  Officers on the scene 
 
         concluded that the decedent was walking to a nearby convenience 
 
         store or truck stop and that the parking of trucks on the roadway 
 
         was customary in that area.  The truck was left running and 
 
         contained decedent's wallets.  Defense argued that the decedent 
 
         was not within the scope of his employment at the time of his 
 
         death because he was running ahead of his logs and should have 
 
         been somewhere else.  Defense also argued without any supportive 
 
         evidence that the decedent deviated from his employment.  Defense 
 
         argued that decedent left his employment by walking in a 
 
         direction which was opposite to the direction of his next 
 
         destination.  A full 50% penalty for all unpaid benefits was 
 
         imposed.
 
         
 
              The decision states:
 
         
 
              Any good lawyer can come up with arguments (albeit contrary 
 
         to current law and practice) in attempts to justify the actions 
 
         of his or her client and defendants' employers and insurance 
 
         carriers are certainly free to make whatever convoluted arguments 
 
         their lawyers can create in hopes of changing or modifying the 
 
         law.  However, in a workers' compensation context, they should do 
 
         so only while paying benefits if penalties and interest 
 
         assessments are to be avoided.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
         
 
         
 
 
            
 
            
 
            
 
            
 
            
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
                                          :
 
            JAMES R. SHIPMAN,             :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :      File No. 840842
 
            THE DES MOINES REGISTER,      :
 
                                          :     A R B I T R A T I O N
 
                 Employer,                :
 
                                          :       D E C I S I O N
 
            and                           :
 
                                          :
 
            LIBERTY MUTUAL INS. COMPANY,  :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
                              STATEMENT OF THE CASE
 
            
 
                 These are proceedings in arbitration upon the petitions 
 
            of claimant, James Shipman, against his employer, The Des 
 
            Moines Register, and its insurance carrier, Liberty Mutual 
 
            Insurance Company, defendants.  The case, numbered 840842, 
 
            was heard on August 17, 1993 at the office of the industrial 
 
            commissioner in Des Moines, Iowa.  The record consists of 
 
            the testimony of claimant.  The record also consists of the 
 
            testimony of Cheryl Shipman, spouse of claimant.  
 
            Additionally, the record consists of Joint exhibit 1.
 
            
 
                 At the start of the proceedings, claimant, through his 
 
            attorney, dismissed case number 988070.  The alleged date of 
 
            that injury was listed as April 12, 1990. 
 
            
 
                                      ISSUE
 
            
 
                 The sole issue for determination is the nature and 
 
            extent of claimant's permanent disability.
 
            
 
                                 FINDINGS OF FACT
 
            
 
                 The deputy, having heard the testimony and considered 
 
            all the evidence, finds:
 
            
 
                 Claimant is 42 years old.  He is the married father of 
 
            three minor children.  He has been married for 16 years.  
 
            Claimant left high school while he was in the 12th grade.  
 
            After leaving high school, claimant worked at a local 
 
            restaurant.  
 
            
 
                 In 1980 or 1981, claimant commenced his employment with 
 
            defendant-employer.  The company is engaged in the operation 
 
            of publishing a newspaper.  Claimant started as a janitor 
 
            and he was assigned cleaning tasks.  His performance was 
 
            good and he was encouraged to study and take training for an 
 
            operating engineer's license.  Claimant satisfied the 
 

 
            
 
            Page   2
 
             
 
            
 
            
 
            requirements necessary to becoming an operating engineer.  
 
            At the time he was preparing for his license, claimant could 
 
            read and write.  Mrs. Shipman testified claimant was a good 
 
            worker.  He presented no discipline problems for his then 
 
            employer.
 
            
 
                 On August 25, 1986, claimant sustained a work-related 
 
            injury involving a blow to his head.  A door weighing 
 
            approximately 60 pounds fell onto claimant's head.   The 
 
            work injury required claimant to seek medical attention.  
 
            Claimant received 9 stitches to the front part of his head.  
 
            
 
                 After claimant's work injury, his wife testified 
 
            claimant experienced very severe headaches.  Claimant, too, 
 
            described his headaches as very bad ones.  Subsequent to his 
 
            head injury, claimant returned to work.  He worked for 
 
            approximately one and one-half months.
 
            
 
                 Ms. Shipman testified that her husband began to 
 
            complain to her that people at work were spying on him.  
 
            Claimant testified that he began to "hear stuff".  He also 
 
            testified that he began to think that "his life would be 
 
            better if he killed himself."  Claimant also testified that 
 
            "Communists were after him."  
 
            
 
                 Ms. Shipman testified that claimant was "paranoid and 
 
            delusional".  She stated that during one holiday season, 
 
            claimant believed the Christmas packages contained 
 
            surveillance cameras which were being used to track 
 
            claimant's activities. 
 
            
 
                 The medical evidence indicated that claimant suffered 
 
            from both visual and auditory delusions, post work injury.  
 
            His behavior became bizarre.  He exhibited aggression 
 
            towards his spouse and children.  Eventually, claimant was 
 
            referred to a psychiatrist, Gaylord Nordine, M.D.  Dr. 
 
            Nordine ordered various tests for claimant.  The tests 
 
            confirmed Dr. Nordine's diagnosis of "incapacitating brain 
 
            injury."  The psychiatrist causally related claimant's work 
 
            injury to claimant's emotional and organic symptoms.  In his 
 
            report of September 8, 1987, Dr. Nordine's partner, Richard 
 
            Dill, Ph.D., opined:
 
            
 
                 My professional opinion at this point in time is 
 
                 that the patient's head trauma while in employment 
 
                 at the Des Moines Register was directly related to 
 
                 his current emotional and organic symptoms.  
 
                 Similar symptoms in psychiatric cases generally 
 
                 develop over a long period of time and are 
 
                 reflected in a past psychological and psychiatric 
 
                 history, which Mr. Shipman does not have according 
 
                 to self and wife's report.  Although similar 
 
                 symptoms may be aggravated by a blow to the head, 
 
                 it appears that the head trauma occurred prior to 
 
                 emergence of symptoms and consequently is causally 
 
                 related.  Unfortunately, Mr. Shipman has displayed 
 
                 very slow progress and currently displays marginal 
 
                 stability and impulse control.  Dr. Nordine has 
 
                 begun him on a trial of different medication due 
 
                 to continued self-destructive and retributive 
 

 
            
 
            Page   3
 
            
 
                
 
            
 
                 feelings as well as recurrent visual 
 
                 hallucinations.
 
            
 
                 In December of 1987, Dr. Nordine issued a comprehensive 
 
            report to defendant insurance carrier.  The psychiatrist 
 
            opined in relevant portion:
 
            
 
                    The patient has recently been in the hospital 
 
                 and was discharged last week.  My opinion is that 
 
                 his current emotional and organic symtoms (sic) 
 
                 are directly related to the head trauma sustained 
 
                 while he was working at the Des Moines Register.  
 
                 Rather than enclose office notes as you requested, 
 
                 I am sending you a copy of hospital evaluations 
 
                 and progress notes covering the patient's recent 
 
                 admission to the Psychiatry Unit at Iowa Methodist 
 
                 Medical Center.  Hospitalization was necessitated, 
 
                 incidentally, by a violent assault on his wife.  
 
                 The assault was directly related to acute 
 
                 hallucinatory activity.  Treatment in the hospital 
 
                 involved milieu therapy, group psychotherapy, 
 
                 individual supportive and cognitive therapies, 
 
                 plus neuroleptic medication.  His neuroleptic was 
 
                 changed from thiothixene to haloperidol.  We 
 
                 started carbamazepine as well in an effort to 
 
                 achieve better control over his hallucinatory 
 
                 activity and impulses.
 
            
 
                    Current diagnosis is organic hallucinosis with 
 
                 associated organic affective disturbance plus 
 
                 reactive anxiety and depression.  Prognosis is 
 
                 very poor.  It is unlikely Mr. Shipman will be 
 
                 able to work again in any competitive employment 
 
                 situation.  At this time I am recommending 
 
                 supportive treatment with rehabilitative efforts 
 
                 to be organized either through the assistance of 
 
                 Dan BrBruflodt working in conjunction with our 
 
                 office and Iowa Methodist Medical Center or an 
 
                 organized rehabilitation program outside the Des 
 
                 Moines area.  Based on my assessment as well as 
 
                 that of Dr. Dill and others who have recently 
 
                 worked with Mr. Shipman, there is doubt whether 
 
                 more could be achieved in an institutional setting 
 
                 outside of Des Moines than through supportive 
 
                 measures taken here.
 
            
 
                    While vocational rehabilitation work cannot 
 
                 categorically be dismissed as unlikely to provide 
 
                 any benefits, I would recommend whatever 
 
                 vocational rehabilitation work is done be 
 
                 undertaken cautiously with careful evaluation of 
 
                 its effectiveness because of our general 
 
                 impression that this patient is unlikely to 
 
                 re-develop employment capabilities.
 
            
 
                 In a later report which was authored by Dr. Nordine, he 
 
            wrote that:
 
            
 
                    I am writing to summarize our discussion 
 
                 January 21 at the Midwest Clinical Associates 
 

 
            
 
            Page   4
 
                  
 
            
 
            
 
                 office regarding the above-named patient.  Dr. 
 
                 Dill and I who discussed the patient's needs with 
 
                 Ms. Marlene Foster and you reported in the 
 
                 conference we believe the patient is incapacitated 
 
                 by his visual and auditory hallucinations at this 
 
                 time.  Without better control of the hallucinosis 
 
                 the likelihood of his deriving meaningful benefit 
 
                 from the new medical program is minimal.  In fact, 
 
                 we suspect the potential gains at a new medical 
 
                 program, even after good control of the patient's 
 
                 hallucinosis, could be very limited because of the 
 
                 nature of his dysfunction which is strongly 
 
                 oriented to perceptual versus abnormality.  We are 
 
                 very concerned that this patient may require 
 
                 sustaining care rather than a rehabilitation 
 
                 program.  The probability a rehabilitation program 
 
                 would fail is 80 percent or greater in our 
 
                 opinion.  It is very likely the patient will need 
 
                 sustaining care and will be limitedly employed 
 
                 after participation in the new medical program for 
 
                 a period of nine months to a year is very high.  
 
                 Given the perceptual dysfunction as a 
 
                 predominating feature of his disability, an 
 
                 effective program for him could start with 
 
                 sustaining care including provisions for living 
 
                 away from home followed by vocational training 
 
                 here in Des Moines if such training can be 
 
                 tolerated.  An alternative would be stabilization 
 
                 via sustaining care in Des Moines followed by a 
 
                 specific vocational rehabilitation program at a 
 
                 facility like New Medico.
 
            
 
                    To summarize our opinion, this patient is not a 
 
                 good candidate for New Medico treatment at the 
 
                 present time.  We would recommend further medical 
 
                 stabilization and possible involvement in a 
 
                 sustaining care program here in Des Moines prior 
 
                 to his involvement in a New Medico program.
 
            
 
                 In a subsequent report dated February 23, 1988, Dr. 
 
            Nordine wrote the following:
 
            
 
                    As you recall, Dr. Dill and I met with you and 
 
                 Marlene Foster at the Midwest Clinical Associates 
 
                 office regarding Mr. Shipman on January 21.  In 
 
                 that conference we reported our clinical opinions 
 
                 that this patient is incapacitated by visual and 
 
                 auditory hallucinations.  These hallucinatory 
 
                 experiences are very distracting to him.  Without 
 
                 better control of them the likelihood of his 
 
                 deriving meaningful benefit from participation in 
 
                 the New Medico program minimal.  We recommend, and 
 
                 I am sure you can recall, our clear statement that 
 
                 this patient should not be treated in a New Medico 
 
                 program until his hallucinations has been 
 
                 controlled.
 
            
 
                    During the meeting with you and Mrs. Foster, 
 
                 Dr. Dill and I further stated that we feel the 
 
                 potential for gain through Mr. Shipman's 
 

 
            
 
            Page   5
 
                   
 
            
 
            
 
                 participation in a New Medico program, even after 
 
                 adequate control of his hallucinosis, could be 
 
                 very limited because of the nature of his 
 
                 dysfunction.  The reason for this opinion is that 
 
                 we find his dysfunction strongly oriented to 
 
                 perceptual rather than behavioral abnormality.  If 
 
                 a post head injury patient can perceive the 
 
                 elements of a rehabilitation program, that program 
 
                 may produce definite improvement.  If the patient 
 
                 cannot perceive the program inputs adequately, 
 
                 there is a high probability the rehabilitation 
 
                 program will fail.  Dr. Dill and I told you we are 
 
                 concerned this patient cannot improve in a New 
 
                 Medico program, and that he will require 
 
                 sustaining care rather than rehabilitation.  In 
 
                 response to your request that we place a 
 
                 percentage estimate on our opinion, we replied the 
 
                 probability a rehabilitation program would fail is 
 
                 80 percent or greater.
 
            
 
                    Given the perceptual dysfunction we have cited 
 
                 as the predominating feature of this patient's 
 
                 disability, we believe an effective program for 
 
                 him should start with sustaining care which would 
 
                 include provisions for his living away from the 
 
                 family home where episodes of violence have taken 
 
                 place.  Once the patient has been established in 
 
                 an appropriate sustaining care program, efforts to 
 
                 introduce him to vocational training here in Des 
 
                 Moines could be started.  An alternative to this 
 
                 plan would be stabilization in a sustaining care 
 
                 program here in Des Moines followed by a specific 
 
                 vocational rehabilitation program at a New Medico 
 
                 facility.
 
            
 
                    To summarize our opinion once more, we stated 
 
                 in the January 21 meeting that we believe this 
 
                 patient is not a good candidate for New Medico 
 
                 treatment at the present time.  We recommend 
 
                 further medical stabilization and involvement in a 
 
                 sustaining care program here in Des Moines prior 
 
                 to any involvement with a New Medico program.
 
            
 
                 Claimant's progress did not improve after the above 
 
            reports were written.   His condition deteriorated and 
 
            claimant was hospitalized on several occasions.  In a report 
 
            issued subsequent to his hospitalizations, Dr. Nordine 
 
            opined that as of February 17, 1989:
 
            
 
                    The above named patient continues to be treated 
 
                 by our team of therapists.  He required 
 
                 hospitalization twice during the last six months 
 
                 and notes from these admissions are included with 
 
                 this letter.  Jim continues to have periods of 
 
                 increased paranoia and agitation with threatened 
 
                 loss of impulse control that require stabilization 
 
                 in the hospital.  No significant changes have 
 
                 occurred in his condition during the last six 
 
     
 
            
 
            
 
            Page   6
 
            
 
                  
 
            
 
                 months in terms of cognitive ability, organic 
 
                 hullacuonosis, or impulse control difficulty.
 
            
 
                    Jim did develop a new condition that was 
 
                 diagnosed during his August hospitalization.  He 
 
                 was found to have a hysterical conversion reaction 
 
                 that manifested itself in right arm weakness.
 
            
 
                    Since he was discharged from Iowa Lutheran 
 
                 Hospital on December 2, 1988, he continues to have 
 
                 visual and auditory hallucinations and to 
 
                 experience anxiety.  He has not shown any overt 
 
                 paranoia or loss of impulse control.  His current 
 
                 medications are as follows:  Inderal 40 mg TID, 
 
                 Mellaril 100 mg. BID, and L-tryptophan 1 gram at 
 
                 H.S.
 
            
 
                 Several months later, Dr. Nordine again issued a report 
 
            relative to claimant's condition.  The psychiatrist wrote:
 
            
 
                    After considerable delay for which I sincerely 
 
                 apologize, I am writing to respond to your 
 
                 questions about the above-named patient who you 
 
                 and I discussed several weeks ago in my office 
 
                 immediately prior to his being admitted to the 
 
                 hospital once again for stabilization of impulse 
 
                 control after he struck and injured his wife at 
 
                 home.
 
            
 
                    The hospitalization noted above was not 
 
                 anticipated at the time you and I talked.  We 
 
                 discussed the possibility of a violent episode in 
 
                 the home not realizing an attack by the patient on 
 
                 his wife was imminent.  Such is the case with 
 
                 victims of brain injury like Mr. Shipman.
 
            
 
                    I first became acquainted with the needs of 
 
                 this patient when asked to evaluate him for 
 
                 problems with his return top work after what had 
 
                 seemed to be an inconsequential head injury.  In 
 
                 fact the patient was initially evaluated by a 
 
                 member of our staff who does not specialize in 
 
                 brain injury problems and the patient was 
 
                 diagnosed as having a form of schizophrenia.  
 
                 However, when I later evaluated him and asked John 
 
                 Ehrfurth, PhD., a neuropsychologist with expertise 
 
                 in brain injury to see him in consultation, it 
 
                 became clear the patient has sustained disabling 
 
                 brain injury in the work accident despite his 
 
                 having not lost consciousness at the time of the 
 
                 accident.
 
            
 
                    Mr. Shipman presents clinical and 
 
                 neuropsychological findings of severe brain 
 
                 injury.  He is alert, but not well oriented to 
 
                 situations.  His perceptual function is distorted 
 
                 with the result being persistent visual 
 
                 hallucinations which are very distressing to the 
 
                 patient.  He reports frequent visual distortions 
 
                 and illusions suggestive of occipital lobe 
 

 
            
 
            Page   7
 
                   
 
                   
 
                 dysfunction.  He lacks concentration and attention 
 
                 capabilities, manifests poor abstract reasoning, 
 
                 and has an unreliable fund of information for 
 
                 problem solving.  Short term memory functions are 
 
                 markedly attenuated.  Intermediate and long term 
 
                 recall functions are satisfactory.  [I]mprovement, 
 
                 tangentially and illogicality.  Thought content 
 
                 features bewilderment about his condition and 
 
                 themes of loss with reference to capabilities he 
 
                 cannot reclaim.
 
            
 
                    Mood is one of chronic depression interrupted 
 
                 by affective discharges which lead to losses of 
 
                 impulse control.  Affect is diminished in range 
 
                 and increased in intensity...often to a 
 
                 frightening or intimidating extent.  Affect is 
 
                 marginally stable and marginally appropriate.  
 
                 Psychological insight is virtually non-existent.  
 
                 Judgement (sic) is marginal to poor at all times.
 
            
 
                    My impression is that Mr. Shipman will remain 
 
                 essentially as I have described above 
 
                 indefinitely.  He has reached the end of healing 
 
                 changes.  Significant improvement from his injury 
 
                 is not anticipated.  The patient is left 
 
                 completely unable to work competitively in any 
 
                 capacity.  He is totally and permanently disabled.
 
            
 
                    In our opinion this patient needs help for 
 
                 himself and his family very badly.  They have 
 
                 endured the aftermath of his injury without 
 
                 appropriate compensation for more than two years.  
 
                 Other family members have taken Mr. Shipman to 
 
                 live with them so that a recurrence of the attack 
 
                 on his wife will be unlikely.  However, I am 
 
                 concerned that his brother who is taking care of 
 
                 him at this time may be unable to provide the 
 
                 structure Mr. Shipman needs and may himself become 
 
                 the target of a violent assault sooner or later.  
 
                 We feel Mr. Shipman needs supportive placement in 
 
                 Des Moines where professional staff will be able 
 
                 to provide sufficient structure to minimize the 
 
                 danger of assaultive behaviors.
 
            
 
                 Defendants desired another opinion relative to 
 
            claimant's condition and his prognosis for improvement.  As 
 
            a consequence, defendants sent claimant to the Menninger 
 
            Clinic in Topeka, Kansas.  Claimant was evaluated by Jon G. 
 
            Allen, Ph.D., Section Psychologist, and by Linda K. Norman, 
 
            D.O.
 
            
 
                 Dr. Allen authored a lengthy neuropsychological test 
 
            report.  He opined in relevant portion that:
 
            
 
                 VI.  TREATMENT IMPLICATIONS
 
            
 
                    The etiology of the patient's pervasive 
 
                 cognitive limitations is not entirely clear, but 
 
                 likely involves a combination of limited native 
 
                 endowment and adaptive skills that led to his 
 

 
            
 
            Page   8
 
            
 
                  
 
            
 
                 suffering a pronounced and protracted 
 
                 psychological regression in relation to the 
 
                 accident and its sequela.  Whatever its etiology, 
 
                 the patient's impairment is severe.  
 
            
 
                    Even when he makes a major effort to succeed at 
 
                 a relatively simple task, he is liable to perform 
 
                 poorly and to encounter major frustration in the 
 
                 process.  Even apart from experiencing failure at 
 
                 specific tasks, the patient feels persecuted, for 
 
                 example, by the hallucinatory companion who 
 
                 concretizes his self-condemnation.  He is clearly 
 
                 unable to function independently, and he will 
 
                 continue to need a great deal of support from the 
 
                 environment.  To avert further exacerbation of his 
 
                 difficulties, expectations should be kept 
 
                 extremely low; specifically, the patient should 
 
                 start with the simplest of tasks and work up, 
 
                 rather than being exposed to repeated failure and 
 
                 progressively deteriorating.  To the extent that 
 
                 frustration and humiliation can be minimized, the 
 
                 patient's paranoid defenses are likely to be 
 
                 alleviated.
 
            
 
                 In response to the report of Dr. Allen, Dr. Nordine 
 
            wrote in his report of March 21, 1990:
 
            
 
                    My review of the March second report to Mr. 
 
                 Mike Raymond by Linda K. Norman, D.O., is highly 
 
                 consistent with our findings of about three years 
 
                 ago.  As apparently reported by Dr. Herbert 
 
                 Modlin, Mr. Shipman is "severely impaired with the 
 
                 impairment appearing to be precipitated by a 
 
                 work-related injury...no structural lesions can be 
 
                 identified by MRI of (sic) EEG...and Mr. Shipman 
 
                 at this time is not capable of acquiring and 
 
                 holding gainful employment."  Other findings of 
 
                 impaired family functioning attributable to the 
 
                 effects of closed head injury are as we have 
 
                 reported to you and your company a number of 
 
                 times.
 
            
 
                   I see nothing in the Menninger report to 
 
                 dissuade me from my opinion regarding the 
 
                 unlikelihood of significant recovery in a 
 
                 rehabilitation facility.  Mr. Shipman is well 
 
                 beyond the time for maximal physical recovery from 
 
                 the effects of brain injury.  While there may be 
 
                 some partially correctable personality 
 
                 (psychological) and family system factors 
 
                 contributing to his instability, I see little 
 
                 potential for achieving such influence through 
 
                 rehabilitation services requiring him to acquire, 
 
                 integrate, and retain new cognitive material, then 
 
                 apply learned principles following return to the 
 
                 Des Moines area.  A long term supportive facility 
 
                 could achieve as much at substantially lower cost.  
 
                 In any case, whether he spends time at a costly 
 
                 rehabilitation facility or not, Mr. Shipman will 
 
                 need chronic supportive care here in Des Moines 
 

 
            
 
            Page   9
 
                 
 
            
 
                 and his family, if they elect to continue 
 
                 extensive involvement with him, will need active 
 
                 professional assistance to learn more about 
 
                 managing his impulsive, irrational responses.
 
            
 
                 Defendants next referred claimant to W. H. Verduyn, 
 
            M.D., at the Traumatic Brain Injury Rehabilitation Systems 
 
            of Iowa, Inc.  Dr. Verduyn developed a program for 
 
            claimant's rehabilitation.  The plan was drafted to:
 
            
 
                    The rehabilitation plan initially was as 
 
                 follows:  The primary rehabilitation goal is to 
 
                 provide Jim with a highly structured cognitive and 
 
                 behavioral management program.  This involves 
 
                 improving executive function for planning and 
 
                 decision making.
 
            
 
                    The secondary goal is to provide Jim with a 
 
                 situational assessment incorporating the aspects 
 
                 of interest in employment for the development of 
 
                 vocational skills; cognitive skills, evaluation of 
 
                 endurance, tolerance, and functional capabilities 
 
                 necessary for return to an improved quality of 
 
                 life with gainful employment.
 
            
 
                    ....
 
            
 
                    Jim's behavior has improved.  He is socially 
 
                 acceptable in most instances, is not in the 
 
                 general rocking motion that he was previously in 
 
                 unless he is under great stress.  He can sit still 
 
                 for longer periods of time.  His attention span 
 
                 has improved.  His hallucinations are no longer a 
 
                 major problem.  In fact, at times, he states he 
 
                 may have them once a week and describes them as 
 
                 seeing something but not the specific of violent 
 
                 hallucinations he was having before.  This has 
 
                 been accomplished with medication management.  I 
 
                 am now gradually decreasing his Inderal also and 
 
                 will eventually discontinue this altogether.  
 
            
 
                    Cognitively his printing has significantly 
 
                 improved with his journalizing.  His reading has 
 
                 shown significant improvement.  He is able to read 
 
                 and follow directions in a recipe and enjoys 
 
                 baking.  He is currently reading at the 5-7th 
 
                 grade level and scored 100%, 85%, and 75% 
 
                 correctly.  Currently Jim can remember changes in 
 
                 his journal with 1-2 cues.
 
            
 
                    ....
 
            
 
                    Mr. Shipman was injured on October 5, 1986, 
 
                 which is now almost 4 years past injury.  He has 
 
                 had placement in multiple facilities with 
 
                 long-term psychiatric management in Des Moines as 
 
                 well as at Menniger Clinic.  It is unrealistic to 
 
                 expect a structured brain-injury rehabilitation 
 
                 program to create rapid changes in a brain-injured 
 
                 patient's behavior after extended stay in 
 

 
            
 
            Page  10
 
                  
 
                 
 
                 psychiatric facilities as well as the fact that he 
 
                 had major problems in behavior while living at 
 
                 home. 
 
            
 
                    On a recent neuropsychological report conducted 
 
                 by John Bayless, Ph.D., dated 7/19/90,:  "Jim 
 
                 scored in the mentally defective range on a 
 
                 battery of intelligence tests (WAIS verbal IQ=69) 
 
                 which is obviously below the expectations given 
 
                 his educational and occupational achievement, 
 
                 though reflective of his current level of 
 
                 disability."
 
            
 
                    In conclusion, Mr. Shipman has made some 
 
                 progress toward accomplishing his short-term goal.  
 
                 Due to his recurring back problems which was 
 
                 preexisting to his admission to TBI and has 
 
                 apparently flared up during his stay at TBI.  His 
 
                 participation in the program has been limited at 
 
                 times.
 
            
 
                    From my observation, Mr. Shipman is currently 
 
                 disabled and will need some form of supervised 
 
                 living arrangements as well as supervised 
 
                 employment.
 
            
 
                 While claimant was engaged in rehabilitation at the 
 
            Traumatic Brain Injury Rehabilitation Systems of Iowa, Inc., 
 
            he was kicked in the back by a cow.   Claimant had 
 
            experienced pre-existing back pain.  The incident with the 
 
            cow aggravated claimant's back and leg pain.  His back 
 
            injury prevented him from participating in some physical 
 
            activities.  There is no indication that the back injury 
 
            resulted in any functional impairment, of permanent 
 
            duration.
 
            
 
                 In January of 1993, claimant experienced some problems 
 
            relative to his closed head injury.  He was again 
 
            hospitalized at Iowa Lutheran Hospital.  He admitted to 
 
            experiencing visual hallucinations in the form of 
 
            "lizard-like creatures."  He also indicated he had been 
 
            hearing voices.  Claimant informed the hospital staff that 
 
            he had some suicidal ideation.
 
            
 
                 Dr. Nordine treated claimant with medication, therapy, 
 
            and group therapy.  Claimant was diagnosed as having:
 
            
 
                 1.  Hallucinations as well as depression for which 
 
                 the patient has previous thorough evaluation for 
 
                 any secondary etiology that may be causing this 
 
                 with thyroid functions, etc, and head CT which had 
 
                 been negative and he remains to require 
 
                 adjustments of his medications per psychiatry.
 
            
 
                 2.  History of organic brain syndrome secondary to 
 
                 head trauma for his chronic headaches.
 
            
 
                 Since his most recent hospitalization, claimant has 
 
            been seeing Dr. Nordine monthly.  In addition, he is seeing 
 
            Sally Watson, M.S.W., on a weekly basis for counseling.
 

 
            
 
            Page  11
 
                  
 
                
 
            
 
                 Mrs. Shipman testified that claimant does not do much 
 
            throughout the day.  He does do some vacuuming but he can no 
 
            longer work on his automobile.  Claimant's spouse testified 
 
            that claimant has temper outbursts as well as violent 
 
            behavior which is directed towards Mrs. Shipman and the 
 
            children.
 
            
 
                                CONCLUSIONS OF LAW
 
            
 
                 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 
 
            injury.  Crowe, 246 Iowa 402, 68 N.W.2d 63. 
 
            
 
                 When a worker sustains an injury, later sustains 
 
            another injury, and subsequently seeks to reopen an award 
 
            predicated on the first injury, he or she must prove one of 
 
            two things: (a) that the disability for which he or she 
 
            seeks additional compensation was proximately caused by the 
 
            first injury, or (b) that the second injury (and ensuing 
 
            disability) was proximately caused by the first injury.  
 
            DeShaw v. Energy Manufacturing Company, 192 N.W.2d 777, 780 
 
            (Iowa 1971). 
 
            
 
                 Without even considering claimant's injury to his back, 
 
            it is the conclusion of this deputy that claimant is 
 
            permanently and totally disabled.  Claimant is not 
 
            employable in any capacity at the present time.  During the 
 
            hearing, claimant rocked back and forth throughout his 
 
            testimony.  His testimony and behavior were inappropriate 
 
            for the situation.  Claimant accused defense counsel of 
 
            being "a Communist."  Claimant, under cross-examination, 
 
            discussed "blowing up a building."  Claimant discussed his 
 
            thoughts of suicide.  He testified that he "hears stuff." 
 
            Claimant appeared agitated and he was distressed throughout 
 
            the proceeding.  The undersigned viewed copies of claimant's 
 
            signature.  He prints his name, but the signature appears to 
 
            be like the signature of a very young elementary school 
 
            student.  
 
            
 
                 Claimant's treating psychiatrist opines that claimant 
 
            is unable to work in any type of meaningful employment, even 
 
            a sheltered workshop.  No physician holds a contrary 
 
            opinion.    Claimant has attempted rehabilitation.  While 
 
            the rehabilitation has helped claimant, claimant did not 
 
            progress to the point where he could hold down a job, either 
 
            full or part time.  It has been nearly seven years since 
 
            claimant's work injury, nevertheless, claimant is not 
 
            prepared for any employment.
 
            
 
                 According to claimant's spouse, claimant still has 
 
            difficulty controlling his temper.  On occasion, law 
 
            enforcement officials have been called to claimant's home in 
 
            order to quell his violent behavior.
 

 
            
 
            Page  12
 
                
 
            
 
                 Mrs. Shipman must remind claimant to bathe, shave and 
 
            to take his medication.  The medication is such that 
 
            claimant has been advised not to drive a car.  He should not 
 
            be operating machinery.  Therefore, in light of the 
 
            foregoing, as well as in light of the observations made by 
 
            the undersigned deputy, it is the determination of the 
 
            undersigned that claimant is permanently and totally 
 
            disabled.
 
            
 
                                      ORDER
 
            
 
                 THEREFORE, it is ordered:
 
            
 
                 Defendants are to pay unto claimant weekly benefits for 
 
            the duration of claimant's period of permanent total 
 
            disability with said benefits commencing on May 1, 1989 and 
 
            running continuously at the rate of two hundred two and 
 
            28/100 dollars ($202.28) per week.
 
            
 
                 Accrued benefits are to be paid in a lump sum together 
 
            with statutory interest at the rate of ten percent (10%) per 
 
            year pursuant to section 85.30, Iowa Code, as amended.
 
            
 
                 Defendants are also liable for reasonable and necessary 
 
            medical expenses which are causally related to the work 
 
            injury.
 
            
 
                 Costs are taxed to defendants pursuant to rule 343 IAC 
 
            4.33.
 
            
 
                 Defendants shall file a claim activity report as 
 
            requested by this division pursuant to rule 343 IAC 3.1.
 
            
 
                 Signed and filed this ____ day of October, 1993.
 
            
 
                                    
 
                                          ______________________________
 
                                          MICHELLE A. McGOVERN
 
                                          DEPUTY INDUSTRIAL COMMISSIONER
 
            
 
            Copies to:
 
            
 
            Mark S. Pennington
 
            Attorney at Law
 
            620 Fleming Building
 
            218 Sixth Avenue
 
            Des Moines, Iowa 50309
 
            
 
            James C. Huber
 
            Attorney at Law
 
            500 Liberty Building
 
            418-6th Avenue
 
            Des Moines, Iowa 50309-2421
 
            
 
 
            
 
 
 
 
 
 
 
                                            1804; 3100
 
                                            Filed October 21, 1993
 
                                            Michelle A. McGovern
 
            
 
                    BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
                      
 
            JAMES R. SHIPMAN,   
 
                      
 
                 Claimant, 
 
                      
 
            vs.       
 
                                                  File No. 840842
 
            THE DES MOINES REGISTER, 
 
                                              A R B I T R A T I O N
 
                 Employer, 
 
                                                  D E C I S I O N
 
            and       
 
                      
 
            LIBERTY MUTUAL INS. COMPANY,  
 
                      
 
                 Insurance Carrier,  
 
                 Defendants.    
 
            ___________________________________________________________
 
            
 
            1804, 3100
 
            
 
            In October of 1986, claimant was hit on the head with a 
 
            sixty pound door while claimant was working.  Claimant had 
 
            medical treatment, including stitches.  No x-rays of the 
 
            head were taken.
 
            
 
            Subsequent to the work injury, claimant began to experience 
 
            headaches.  He also suffered from visual and auditory 
 
            hallucinations.  Claimant believed surveillance cameras were 
 
            placed in the family's Christmas packages which were under 
 
            the Christmas tree.  Claimant also suspected various members 
 
            of his family to be members of the "Communist Party and out 
 
            to get him."
 
            
 
            Claimant became violent.  He exhibited aggressive behavior 
 
            towards his wife and son.  On several occasions,  claimant 
 
            was hospitalized in a psychiatric hospital.  The last 
 
            hospitalization occurred in January of 1993.  
 
            
 
            Claimant's psychiatrist opined that claimant was so impaired 
 
            that he was not employable in the labor market, either for 
 
            full or part-time employment.  No physician has provided an 
 
            opinion to the contrary.  
 
            
 

 
            
 
 
 
 
 
            During the hearing, claimant exhibited some very bizarre 
 
            behavior.  Claimant continually rocked back and forth in his 
 
            chair.  He called the defense witness, "a Communist+.  
 
            Claimant also discussed suicide and "blowing up this 
 
            building."  Many of his verbal responses were inappropriate 
 
            for the proceeding at hand.
 
            
 
            The undersigned had an opportunity to view claimant's 
 
            written signature.  It resembled the printing of a very 
 
            young elementary school student.  
 
            
 
            Nearly seven years have transpired since the date of the 
 
            work injury.  Claimant has participated in rehabilitation, 
 
            however, he is not capable of returning to employment.  
 
            Claimant's spouse must remind claimant to bathe, shave and 
 
            to take his medication.  Claimant has been advised not to 
 
            drive a vehicle because of his medication.
 
            HELD:  Claimant is permanently and totally disabled.
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         VIOLA E. KING,
 
         
 
              Claimant,                               File No. 840912
 
         
 
         vs.                                            A P P E A L
 
         
 
         CITY OF MOUNT PLEASANT, IOWA,                D E C I S I O N
 
         
 
              Employer,                                  F I L E D
 
         
 
         and                                            AUG 31 1989
 
         
 
         NORTHWESTERN NATIONAL                 IOWA INDUSTRIAL COMMISSIONER
 
         INSURANCE CO.,
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
                            STATEMENT OF THE CASE
 
         
 
              Claimant appeals from an arbitration decision which 
 
         determined claimant's rate of compensation.  In a ruling dated 
 
         March 17, 1989 the undersigned reinstated claimant's appeal 
 
         because the only issue on appeal is the rate of compensation.  
 
         The determination of that issue is dispositive of this contested 
 
         case.
 
         
 
              The record on appeal consists of the stipulations in this 
 
         matter.  Claimant filed a brief on appeal.
 
         
 
                                  ISSUE
 
         
 
              The issue on appeal is the rate of compensation.
 
                                        
 
                              REVIEW OF THE EVIDENCE
 
         
 
              The arbitration decision dated January 30, 1989 adequately 
 
         and accurately reflects the pertinent evidence and it will not be 
 
         reiterated herein.
 
         
 
                                 APPLICABLE LAW
 
         
 
              The citations of law in the arbitration decision are 
 
         appropriate to the issues and evidence.
 
         
 
                                   ANALYSIS
 
         
 
              One preliminary matter needs to be discussed.  In claimant's 
 
         appeal brief the argument is made that the deputy erred in 
 
         rejecting a part of the stipulation.  The part of the stipulation 
 
                                                
 
                                                         
 
         in question is the statement that claimant's decedent was 
 
         employed on a part-time basis by defendant employer.  While it is 
 
         normally true that stipulations are accepted, there are instances 
 
         when stipulations will be rejected.  Stipulations that are 
 
         contrary to the law or that resolve the conclusion of law at 
 
         issue in a contested case proceeding can be rejected.  The 
 
         determination whether claimant's decedent was "part-time" thus 
 
         possibly making Iowa Code section 85.36(10) applicable is the 
 
         question at issue. The stipulation should be rejected to the 
 
         extent that it would resolve the conclusion of law at issue in 
 
         this case.  Furthermore, while a deputy industrial commissioner 
 
         may not overrule another deputy industrial commissioner, the 
 
         industrial commissioner has the authority to overrule a deputy 
 
         industrial commissioner. Therefore, the industrial commissioner 
 
         could, if necessary, overrule a deputy who determined that the 
 
         stipulations were to be accepted.  The deputy who made the 
 
         arbitration decision made no error in his treatment of the 
 
         stipulations.
 
         
 
              The issue to be resolved in this case is the rate of 
 
         compensation.  Claimant argues on appeal that Iowa Code section 
 
         85.36(10) is applicable and that as a result, income earned from 
 
         other employment should be included in calculating the proper 
 
         rate of compensation.
 
         
 
              Claimant's argument is not persuasive for a variety of 
 
         reasons.  Claimant cites no legal authority on point in support of 
 
         claimant's argument.  Claimant attempts to argue that an elected 
 
         city official who is paid an annual salary regardless of the hours 
 
         worked is in the same line of industry as other employees of the 
 
         government such as someone who works for the Department of 
 
         Corrections and is paid on a biweekly basis for presumedly working 
 
         forty hours a week.  The line of industry involved in this matter 
 
         is an elected city official who is paid on an annual salary.  
 
         There is no indication in the record nor no argument made that 
 
         this claimant's decedent's earnings as an elected official were 
 
         less than the earnings of other similar elected officials.  The 
 
         deputy correctly discussed that an elected city official may well 
 
         be considered a full-time position because of the demands placed 
 
         on the official.  Even if one were to assume for the sake of 
 
         argument that claimant's decedent worked less than full time for 
 
         defendant employer, there is no indication from the record in this 
 
         matter that claimant's decedent earned less than someone who 
 
         worked "full-time.  That is, there is no indication in the record 
 
         what an elected city official who worked "full-time" would earn.
 
         
 
              The deputy correctly stated:
 
         
 
                   It as [sic] not been shown that section 85.36(10) is as 
 
              applicable to claimant's situation as is section 85.36(5). 
 
              The latter section clearly applies, while the former 
 
              requires strained construction at best.  While the statute 
 
              should be liberally construed in favor of claimants, 
 
              Caterpillar Tractor Company v. Shook, 313 N.W.2d 503 (Iowa 
 
              1981), that construction must be within reason.  Barton v. 
 
                                                
 
                                                         
 
                   Nevada Poultry Co., 253 Iowa 285, 110 N.W.2d 660 (1961).
 
         
 
              It has not been shown that Iowa Code section 85.36(10) is 
 
         applicable in this case.  By contrast, it is clear that Iowa Code 
 
         section 85.36(5) does apply.  Claimant's decedent was paid an 
 
         annual salary.  The annual salary should be divided by fifty-two 
 
         in calculating the weekly compensation in this case.
 
         
 
                              FINDINGS OF FACT
 
         
 
              1.  Claimant's decedent was assassinated on December 10, 
 
         1986.
 
         
 
              2.  At the time of his death, claimant's decedent was mayor 
 
         of the city of Mount Pleasant, Iowa, and earned an annual salary 
 
         of $4,800.
 
         
 
              3.  At the time of his death, claimant's decedent was 
 
         survived as a dependent only by his widow, claimant Viola E. 
 
         King.
 
         
 
                              CONCLUSION OF LAW
 
         
 
              Claimant's rate of weekly compensation must be calculated 
 
         under Iowa Code section 85.36(5).
 
         
 
              WHEREFORE, the decision of the deputy is affirmed.
 
         
 
                                      ORDER
 
         
 
              THEREFORE, it is ordered:
 
         
 
              That compensation shall be paid to claimant on the basis of 
 
         a weekly benefit amount of seventy-six and 91/100 dollars 
 
         ($76.91).
 
         
 
              Signed and filed this 31st day of August, 1989.
 
         
 
         
 
         
 
         
 
         
 
         
 
                                               DAVID E. LINQUIST
 
                                            INDUSTRIAL COMMISSIONER
 
         
 
         Copies To:
 
         
 
         Mr. Dennis L. Hanssen
 
         Attorney at Law
 
         2700 Grand Ave., Suite 111
 
         Des Moines, Iowa  50312
 
         
 
         Mr. Larry L. Shepler
 
         Attorney at Law
 
                                                
 
                                                         
 
         Suite 102, Executive Square
 
         400 Main Street
 
         Davenport, Iowa  52801
 
 
 
         
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                            3001, 3003
 
                                            Filed August 31, 1989
 
                                            DAVID E. LINQUIST
 
         
 
                   BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         VIOLA E. KING,
 
         
 
              Claimant,
 
         
 
         VS.                                         File No. 840912
 
         
 
         CITY OF MOUNT PLEASANT, IOWA,                 A P P E A L
 
         
 
              Employer,                              D E C I S I 0 N
 
         
 
         and
 
         
 
         NORTHWESTERN NATIONAL
 
         INSURANCE CO.,
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
         
 
         3001, 3003
 
         
 
         
 
              Rate for mayor (claimant's decedent) was determined on basis 
 
         of annual salary.  Mayor was employed full time in another job. 
 
         Rate calculated pursuant to Iowa Code section 85.36(5) using only 
 
         the annual salary paid for services as mayor.  Iowa Code section 
 
         85.36(10) which would have included income earned from occupation 
 
         in calculating rate was not applicable.
 
         
 
         
 
 
            
 
 
 
              
 
                 
 
                     
 
         
 
                        BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         VIOLA E. KING,
 
         
 
              Claimant,
 
                                                       File No. 840912
 
         vs.
 
                                                   A R B I T R A T I O N
 
         CITY OF MOUNT PLEASANT, IOWA,
 
                                                      D E C I S I O N
 
              Employer,
 
                                                         F I L E D
 
         and
 
                                                         JAN 30 1989
 
         NORTHWESTERN NATIONAL
 
         INSURANCE CO.,                              INDUSTRIAL SERVICES
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
                              STATEMENT OF THE CASE
 
         
 
              This is a proceeding in arbitration brought by claimant, 
 
         Viola E. King, against defendant employer, city of Mount 
 
         Pleasant, Iowa, and defendant insurance carrier, Northwestern 
 
         National Insurance Company, to recover benefits under the Iowa 
 
         Workers' Compensation Act as the result of the death of 
 
         claimant's decedent, Edward M. King, on December 10, 1986.  This 
 
         matter and two companion cases involving similarly situated 
 
         claimants was scheduled for hearing on May 10, 1988 in 
 
         Burlington, Iowa.  At that time, the matter was bifurcated and 
 
         the only issue to be determined was that of claimant's weekly 
 
         rate of compensation.
 
         
 
              By order of August 4, 1988, Deputy Industrial Commissioner 
 
         Helenjean Walleser indicated that a telephone conference call of 
 
         May 9, 1988 resulted in the parties agreeing that the matter 
 
         would be submitted by stipulated record in lieu of evidentiary 
 
         hearing. Deputy Walleser ruled that ample time had been available 
 
         for preparation of such stipulations and ordered the parties to 
 
         submit stipulated records or show cause as to why such 
 
         stipulations could not be timely made within sixty (60) days of 
 
         the order.
 
         
 
              Subsequently, claimant filed a response to that order on 
 
         October 5, 1988, including a proposed stipulation of facts and 
 
         allegations that defendants had failed to respond to the proposed 
 
         stipulations and subsequent correspondence.
 
         
 
              Deputy Walleser entered another order on November 7, 1988 
 
         finding that defendants had failed to comply with the August 4 
 
                                                
 
                                                         
 
         order and closing the record as to further evidence regarding the 
 
         rate issue on defendants' part.  The proposed stipulations 
 
         submitted by claimant were accepted and the parties given 
 
         forty-five (45) days from the filing of that order in which to 
 
         file briefs.
 
         
 
              Neither party having favored this office with briefs, the 
 
         rate issue is now ripe for determination on the stipulated facts 
 
         submitted by claimant.
 
         
 
                                  ISSUE
 
         
 
              Because this matter has been bifurcated, the only issue to 
 
         be determined is that of claimant's appropriate rate of weekly 
 
         compensation.
 
         
 
                          REVIEW OF THE EVIDENCE
 
         
 
              On December 10, 1986, Edward M. King, claimant's decedent, 
 
         was mayor of the city of Mount Pleasant, Iowa.  In a tragic 
 
         incident that received great statewide publicity, Mr. King and 
 
         two council members were shot by a gunman disrupting the council 
 
         meeting, Ralph 0. Davis.  Mr.. King's wounds were fatal.
 
         
 
              Claimant's decedent was survived by his widow, claimant 
 
         Viola E. King.  They had no dependants on December 10, 1986.
 
         
 
              Claimant's decedent was acting in his capacity as mayor at 
 
         the time of his fatal injuries.  Claimant's decedent received an 
 
         annual salary of $4,800 from the city of Mount Pleasant as 
 
         mayor.
 
         
 
              Claimant's decedent was also employed at the time of his 
 
         death by Metro Mail Corporation as administrative manager, at an 
 
         annual salary of $38,868.  He apparently also received director 
 
         fees of $2,200 per annum from Hawkeye Bank (although the 
 
         director's fees have not been set forth as a stipulated fact, but 
 
         only as a part of claimant's contention as to the appropriate 
 
         benefit rate).
 
         
 
                       APPLICABLE LAW AND ANALYSIS
 
         
 
              In pertinent part, Iowa Code section 85.36 provides:
 
         
 
              The basis of compensation shall be the weekly earnings of 
 
              the injured employee at the time of the injury.  Weekly 
 
              earnings means gross salary, wages, or earnings of an 
 
              employee to which such employee would have been entitled had 
 
              the employee worked the customary hours for the full pay 
 
              period in which the employee was injured, as regularly 
 
              required by the employee's employer for the work or 
 
              employment for which the employee was employed, computed or 
 
              determined as follows and then rounded to the nearest 
 
              dollar:
 
         
 
                                                
 
                                                         
 
              * * *
 
         
 
              5.  In the case of an employee who is paid on a yearly pay 
 
              period basis, the weekly earnings shall be the yearly 
 
              earnings divided by fifty-two.
 
         
 
              * * * 
 
         
 
              10.  If an employee earns either no wages or less than the 
 
              usual weekly earnings of the regular full-time adult laborer 
 
              in the line of industry in which the employee is injured in 
 
              that locality, the weekly earnings shall be one-fiftieth of 
 
              the total earnings which the employee has earned from all 
 
              employment during the twelve calendar months immediately 
 
              preceding the injury.
 
         
 
              It is clear that the fighting issue to be determined is 
 
         whether claimant's rate would be most appropriately determined 
 
         under section 85.36(5) or 85.36(10).  Guidance comes from the 
 
         first, unnumbered paragraph of the section.  Weekly earnings are 
 
         defined as gross salary to which claimant would have been 
 
         entitled had he worked the customary hours for the full pay 
 
         period in which he was injured as regularly required by his 
 
         employer "for the work or employment for which the employee was 
 
         employed."  Since it is stipulated that claimant was paid on the 
 
         basis of an annual salary, it is evident that subparagraph 5 is 
 
         applicable. Therefore, it must be determined whether subparagraph 
 
         10 is equally applicable, and if so, whether it should be given 
 
         precedence in the rate determination.
 
         
 
              Subparagraph 10 has been discussed in several published 
 
         cases.  One authority has commented that the subsection is 
 
         typically used to figure the rate for part-time workers, and is 
 
         beneficial to the worker who holds two jobs and whose injury 
 
         (death) on the part-time job causes an inability to work at 
 
         either job.  Lawyer & Higgs, Iowa Workers' Compensation Law and 
 
         Practice, section 12-8, page 100.  In Winters v. Te Slaa, I Iowa 
 
         Industrial Commissioner Report, 367 (1981), the industrial 
 
         commissioner determined that the rate for a fatally injured 
 
         part-time truck driver (claimant's decedent) was correctly to be 
 
         determined under section 85.36(10) where he had other wages 
 
         earned during the year prior to his death (although other 
 
         earnings that were not wages from employment were excluded).  The 
 
         published decision does not set forth the basis upon which 
 
         claimant was paid by Te Slaa, but only the total wages received 
 
         during the calendar year prior to the fatal injury.
 
         
 
              In Ladd v. Ford Brothers Van & Storage Co., Thirty-fourth 
 
         Biennial Report of the Industrial Commissioner, 177 (1979), a 
 
         review-reopening decision determined by a deputy, claimant was 
 
         hired to load a truck as a spot laborer and broke his wrist on 
 
         the one day that he worked.  He was held to be a part-time 
 
         laborer and section 85.36(10) was applied; the deputy questioned 
 
         whether claimant's line of industry would be spot labor or truck 
 
         loader and noted that no evidence was presented regarding what 
 
                                                
 
                                                         
 
         would be considered "full-time" or "usual weekly earnings" for 
 
         either employment.  In Tomlinson v. Langille, Thirty-fourth 
 
         Biennial Report of the Industrial Commissioner, 333 (1978), an 
 
         arbitration decision filed by a deputy, the parties disputed 
 
         whether claimant was paid on a weekly pay period basis, 
 
         defendants producing evidence reflecting that claimant appeared 
 
         to be a part-time employee.  The deputy concluded that claimant 
 
         had failed to establish a full-time employment relationship and 
 
         applied section 85.36(10).
 
         
 
              A similar result was reached in Leslie v. Lucky Stores, 
 
         Inc., Thirty-third Biennial Report of the Industrial 
 
         Commissioner, 55 (1978).  The fighting issue was whether claimant 
 
         was a full-time employee to be classed under 85.36(1) or 
 
         85.36(6).  The review-reopening decision determined that the 
 
         first inquiry is to whether claimant was a part-time employee, 
 
         and thus required to have the weekly rate determined under 
 
         section 85.36(10).  Although the deputy noted that the record was 
 
         inadequate, it was inferred that claimant was not a full-time 
 
         employee since he worked less than 40 hours per week and was 
 
         classified by the employer as a part-time employee.  Claimant was 
 
         in that case relegated to the "lower" classification of section 
 
         85.36(10).  Lang v. Humboldt Community School, IV Report of the 
 
         Iowa Industrial Commissioner, 220 (1984) was a determination of 
 
         the industrial commissioner involving a similar issue.  Claimant 
 
 
 
                       
 
                                                         
 
         was injured while driving a school bus, but contended that he was 
 
         an employee of a separate business and that his income from both 
 
         sources should be combined in calculating his rate under 
 
         85.36(10).  The commissioner determined that claimant's argument 
 
         implied that his wages as a school bus driver were less than the 
 
         regular full-time earnings for that line of industry, but 
 
         determined that the line of industry in question was school bus 
 
         driving and that the regularly scheduled hours claimant worked 
 
         did not represent part-time employment within that category, but 
 
         were full-time wages for that particular line of industry.  The 
 
         stipulated facts indicate that claimant's decedent was employed 
 
         "on a part-time basis" as either a council member or mayor for 
 
         the city of Mount Pleasant from 1970 through the date of his 
 
         death.  However, this is a legal conclusion for the purpose of 
 
         determining rate and is not subject to a binding stipulation, 
 
         since that would usurp the authority of the industrial 
 
         commissioner.  Under the strictures of subparagraph 10, the 
 
         deputy must consider the full-time earnings "in the line of 
 
         industry in which the employee is injured in that locality."  If 
 
         the "locality" is construed as meaning Mount Pleasant, Iowa, 
 
         there is presumably only one mayor and the earnings of that mayor 
 
         must by definition be the "usual weekly earnings of the regular 
 
         full-time adult laborer in the line of industry."  If "locality" 
 
         should be more broadly construed to include, for example, 
 
         similarly situated mayors in cities of equivalent size either 
 
         within a given geographical radius, judicial district or even 
 
         statewide basis, there is a lack of evidence by which this deputy 
 
         could determine what the regular full-time hours might be.  The 
 
         position of mayor in a smaller community such as Mount Pleasant 
 
         is not necessarily directly equivalent to, for example, the mayor 
 
         of a city the size of Des Moines, where the position is more 
 
         clearly a full-time one. It is also noteworthy that the position 
 
         of mayor may well be considered a full-time position, even if the 
 
         salary be only in the nature of a token.  Surely a political 
 
         creature such as a mayor is expected to be accessible to the 
 
         citizenry at all sorts of irregular hours, not only through 
 
         council meetings, but also in dealing with complaints about city 
 
         government departments, award ceremonies, public speaking 
 
         invitations and the like.  It might well be said that a mayor is 
 
         never off duty.  If so, such a person might never be deemed a 
 
         truly part-time employee.
 
         
 
              It is apparently claimant's position from the stipulated 
 
         facts that the proper line of industry category to be used is 
 
         that of public administration managers and officials as defined 
 
         by the Dictionary of Occupational Titles published by the United 
 
         States Department of Labor.  Yet, Lang v. Humboldt Community 
 
         School, supra., would indicate otherwise.  The claimant in that 
 
         case was not classified as a bus driver in general, but a school 
 
         bus driver in particular.
 
         
 
              It as not been shown that section 85.36(10) is as applicable 
 
         to claimant's decedent's situation as is section 85.36(5).  The 
 
         latter section clearly applies, while the former requires 
 
         strained construction at best.  While the statute should be 
 
                                                
 
                                                         
 
         liberally construed in favor of claimants, Caterpillar Tractor 
 
         Company v. Shook, 313 N.W.2d 503 (Iowa 1981), that construction 
 
         must be within reason.  Barton v. Nevada Poultry Co., 253 Iowa 
 
         285, 110 N.W.2d 660 (1961).
 
         
 
              This deputy is aware that common and long-standing usage in 
 
         the Office of the Industrial Commissioner is to treat the 
 
         subparagraphs of section 85.36 as a descending ladder.  That is, 
 
         that the appropriate approach is to begin with the first 
 
         subsection and work down, classifying a given claimant in the 
 
         first or "highest" subsection which appears applicable.  However, 
 
         this deputy has discovered no published authority that would 
 
         support this approach and in fact, it is difficult to conceive of 
 
         how the "part-time" provisions of 85.36(10) might ever be applied 
 
         if this is the proper interpretation.  A review of the statute 
 
         does not persuade this deputy that the legislature intended that 
 
         "higher" subsections be given preference or precedence over 
 
         "lower" subsections.  Therefore, this approach is expressly 
 
         rejected.  It is held that each subsection of Iowa Code section 
 
         85.36 should be considered in classifying a given claimant, and 
 
         the subsection most nearly encompassing the facts of the given 
 
         case should be employed.  In this case, that is section 
 
         85.36(5).
 
         
 
              The deputy freely concedes that he is not entirely satisfied 
 
         with this result.  However, it appears to be mandated by the 
 
         statute.  It is arguable that this decision could have the effect 
 
         of acting as a disincentive for public-spirited citizens to 
 
         accept public service positions in city governments.  However, 
 
         the legislature has clearly shown the ability to make special 
 
         provisions for classifications such as volunteer firefighter, 
 
         advanced emergency medical care provider or reserve peace officer 
 
         where public policy demands.  Iowa Code section 85.36(10)(a).
 
         
 
              Benefits in a death case are calculated under Iowa Code 
 
         section 85.31.  Pursuant to the first subsection, defendants 
 
         shall pay dependents who were wholly dependent upon the earnings 
 
         of the deceased employee compensation upon the basis of 80% per 
 
         week of the employee's average weekly spendable earnings.  
 
         Pursuant to an unnumbered subparagraph under (d), the minimum 
 
         weekly benefit amount shall be equal to the weekly benefit amount 
 
         of a person whose gross weekly earnings are 35% of the statewide 
 
         average weekly wage, or to the spendable weekly earnings of the 
 
         employee, whichever are less.
 
         
 
              Claimant's decedent met his death on December 10, 1986.  The 
 
         "Guide to Iowa Workers' Compensation Claim Handling" published 
 
         July 1, 1986, and therefore applicable to this case, is used to 
 
         calculate the benefit amount.  The "Guide" incorporates the 
 
         concept of minimum weekly benefit amount.  On page IV of the 
 
         "Guide", it is set forth that death benefits are determined in 
 
         the same manner as disability benefits.  Rounding claimant's 
 
         gross weekly wage to the nearest dollar, the table, at page 9 
 
         thereof, discloses that the rate for a married individual with 
 
         two exemptions averaging $92.00 per week is $76.91.
 
                                                
 
                                                         
 
         
 
                                   FINDINGS OF FACT
 
         
 
              THEREFORE, based on the evidence presented, the following 
 
         ultimate facts are found:
 
         
 
              1.  Claimant's decedent was assassinated on December 10, 
 
         1986.
 
         
 
              2.  At the time of his death, claimant's decedent was mayor 
 
         of the city of Mount Pleasant, Iowa, and earned an annual salary 
 
         of $4,800.
 
         
 
              3.  At the time of his death, claimant's decedent was 
 
         survived as a dependent only by his widow, claimant Viola E. 
 
         King.
 
         
 
                                   CONCLUSION OF LAW
 
         
 
              WHEREFORE, based on the principles of law previously stated, 
 
         the following conclusion of law is made:
 
         
 
              1.  Claimant's rate of weekly compensation must be 
 
         calculated under Iowa Code section 85.36(5).
 
         
 
                                   ORDER
 
         
 
              THEREFORE, IT IS ORDERED:
 
         
 
              Compensation shall be paid to claimant on the basis of a 
 
         weekly benefit amount of seventy-six and 91/100 dollars 
 
         ($76.91).
 
         
 
              Because this matter has been bifurcated, the matter shall be 
 
         returned to the assignment docket for further proceedings.
 
         
 
              Signed and filed this 30th day of January, 1989.
 
         
 
         
 
         
 
         
 
         
 
         
 
                                            DAVID RASEY
 
                                            DEPUTY INDUSTRIAL 
 
                                            COMMISSIONER
 
         
 
         Copies To:
 
         
 
         Mr. Dennis L. Hanssen
 
         Attorney at Law
 
         Suite 111, Terrace Center
 
         2700 Grand Avenue
 
         Des Moines, Iowa  50312
 
         
 
                                                
 
                                                         
 
         Mr. Larry L. Shepler
 
         Attorney at Law
 
         Suite 102, Executive Square
 
         400 Main Street
 
         Davenport, Iowa  52801
 
 
 
         
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                            3002, 3003
 
                                            Filed January 30, 1989
 
                                            DAVID RASEY
 
         
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         VIOLA E. KING,
 
         
 
              Claimant,
 
         
 
         vs.
 
                                                     File No. 840912
 
         CITY OF MOUNT PLEASANT, IOWA,
 
                                                 A R B I T R A T I 0 N
 
              Employer,
 
                                                     D E C I S I 0 N
 
         and
 
         
 
         NORTHWESTERN NATIONAL
 
         INSURANCE CO.,
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
         3002, 3002
 
         
 
              Rate for Mayor and councilpersons was determined on basis of 
 
         annual salary, not Iowa Code section 85.36(10).