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).