BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         KEITH W. GARDNER,
 
         
 
              Claimant,
 
                                                 File No. 853620
 
         vs.
 
         
 
         ARMSTRONG TIRE COMPANY,             A R B I T R A T I 0 N
 
         
 
              Employer,                          D E C I S I 0 N
 
         
 
         and
 
                                                    F I L E D
 
         TRAVELERS INSURANCE COMPANY,
 
                                                   MAY 15 1989
 
         
 
              Insurance Carrier,          IOWA INDUSTRIAL COMMISSIONER
 
              Defendants.
 
         
 
         
 
                                INTRODUCTION
 
         
 
              This is a proceeding in arbitration brought by the claimant, 
 
         Keith Gardner, against Armstrong Rubber Company, employer, and 
 
         Travelers Insurance Company, insurance carrier, to recover benefits as 
 
         a result of an alleged injury sustained on February 23, 1987.  This 
 
         matter came on for hearing before the undersigned deputy industrial 
 
         commissioner in Des Moines, Iowa, on March 15, 1989.  The record 
 
         consists of the testimony of the claimant, Roger Franklin Marquardt, 
 
         Jack Edward Reynolds, Martin Ruvoldt, Jack Salsbury, and Bill Brown 
 
         II; claimant's exhibit A, B and C; and defendants' exhibits 1 through 
 
         29.
 
         
 
                                  ISSUES
 
         
 
              The issues for resolution are:
 
         
 
              1.  Whether claimant's alleged injury arose out of and in the 
 
         course of his employment;
 
         
 
              2.  Whether there is a causal relationship between the alleged 
 
         injury and the disability;
 
         
 
              3.  The nature and extent of claimant's disability;
 
         
 
              4.  Claimant's entitlement to medical benefits under 85.27; and
 
         
 
              5.  Whether the odd-lot doctrine is applicable.
 
         
 
              The parties on their prehearing report put as an issue the 
 
         defendants' affirmative defense of lack of notice under 85.23. Both 
 
         parties understood that this was discussed at the time of the hearing 
 
         assignment order and that this was understood to be an issue pursuant 
 
                                                   
 
                                                            
 
         to said hearing that was preserved for the time of trial.  This deputy 
 
         is bound by the hearing assignment order which did not have the 85.23 
 
         issue set out therein.  Under the rule of the agency and prior 
 
         decision of this agency, no deputy can hear an issue at the time of 
 
         hearing that has not been set out on the hearing assignment order.  
 
         The undersigned deputy cannot overrule a prior deputy's order.  85.23 
 
         is not an issue that will be decided by the undersigned.  The parties 
 
         have the responsibility to read the hearing assignment order and raise 
 
         the question of an issue not being stated therein.
 
         
 
                            REVIEW OF THE EVIDENCE
 
         
 
              Claimant began employment with the defendant employer in 1946 and 
 
         for 33 of those years, 1947 to 1980, he was specifically in the tire 
 
         building department.  Claimant testified that work as a tire builder 
 
         involves a substantial amount of lifting, pushing racks of tires in 
 
         and out, and working on the concrete floors and being unable to sit 
 
         down during the work hours.  Claimant testified that his last full 
 
         year of work he made $22,183.
 
         
 
              Claimant testified that he had back surgery in 1974, performed by 
 
         David McClain, D.O.  Claimant stated that in 1980, he negotiated 
 
         through the union to change his job to a tire technician since he was 
 
         having back trouble.  Claimant indicated that he had a letter from Dr. 
 
         McClain suggesting a change. Claimant stated that this tire technician 
 
         job basically involved going out on the floor and getting materials 
 
         for check-tires, checking the components out, going to the tire 
 
         building machine, instructing a builder on building a tire and write 
 
         down his findings.  After the tire was built claimant would take it to 
 
         curing and get it cured and bring it back to the lab.  Claimant 
 
         contended there was frequent lifting in connection with this tire 
 
         technician job, some days there would be no lifting and others there 
 
         would be considerable lifting, and that the heaviest tread that would 
 
         require lifting was a tractor tread weighing up to 120 pounds.  
 
         Claimant further described the necessity of the job to load carts with 
 
         up to twelve tires and take them back to the laboratory.  Claimant 
 
         stated that there is a lot of walking and bending required of this 
 
         tire technician job.  Claimant stated that he was required to lift up 
 
         to 50 pounds frequently in this job, which he performed until February 
 
         20, 1987.
 
         
 
              Claimant also indicated that he was holding a position with the 
 
         collective bargaining unit as secretary of the local union until late 
 
         1986, which required considerable time from his job. Claimant 
 
         acknowledged when he was referred to company records that he had no 
 
         reason to disagree with the fact that in the seven or eight years that 
 
         he was in a negotiated job as a tire technician, 1980 to 1987, he was 
 
         away from his job as a tire technician 40 to 60 percent of the time 
 
         doing union duties at the plant as opposed to the tire technician 
 
         duties.  Claimant admitted that these duties as a collective 
 
         bargaining representative-union representative would be classified as 
 
         nonmanual labor.
 
         
 
              Claimant contended that in January 1987, his back began hurting 
 
         and that he asked the foreman if he could see the doctor and the 
 
                                                   
 
                                                            
 
         foreman indicated no because he had not reported an injury.  Claimant 
 
         contended he then talked to a Mr. Wentzel, the assistant industrial 
 
         relations manager for the employer, who also denied him medical 
 
         attention.  Claimant then proceeded to call his own doctor, Dr. 
 
         McClain, because Dr. McClain operated on the claimant in 1974.
 
         
 
              Claimant testified that on February 23, 1987, after having 
 
         previously seen Dr. McClain, he took a note to defendant employer 
 
         indicating that he was to be kept off work.  Claimant stated that he 
 
         then went to a chiropractor, Dr. Evans, for therapy treatment through 
 
         the advice of Dr. McClain and indicated he received some relief.  
 
         Claimant indicated that he had received various notes from Dr. McClain 
 
         as to staying off work.  Claimant indicated he was not getting any 
 
         better and so on April 14, 1987, he switched from Dr. McClain to 
 
         Sinesio Misol, M.D., who recommended that claimant have a myelogram 
 
         and a CT scan.  Claimant testified that pursuant to the tests by Dr. 
 
         Misol, he had back surgery on April 22, 1987 which gave him some 
 
         relief of pain in his low back and right leg.  Claimant indicated he 
 
         had taken a note to the employer, which was the first note from Dr. 
 
         Misol, and claimant indicated that no one at defendant employer said 
 
         anything about claimant now having a different doctor.  The claimant 
 
         emphasized that he received a good result from the surgery and 
 
         received a lot of relief from his pain.
 
         
 
              Claimant contends that he is not able to bowl, play golf, tennis, 
 
         and must be very careful lifting, bending and stooping since his 
 
         February 1987 injury.
 
         
 
              Claimant testified that in August 1987, the defendant employer 
 
         wanted the claimant to return to work.  Claimant testified that he 
 
         then went for another examination with Dr. Misol at the end of 
 
         September 1987, and subsequent thereto claimant acknowledged receipt 
 
         of a letter from defendant employer requesting him to take a 
 
         return-to-work physical at Armstrong on Friday, October 2, and that he 
 
         should be expected to return to work on Monday, October 5, to a job 
 
         consistent with the restrictions stated by Dr. Misol.  Claimant stated 
 
         that he met with defendant employer's representative who indicated to 
 
         him that he was going to be placed on a grinding machine.  Claimant 
 
         stated that he told the representative that the job did not meet Dr. 
 
         Misol's restrictions in reference to standing.  Claimant acknowledged 
 
         that the employer representative then stated that she would get him a 
 
         stool to sit on.  Claimant contended that he could not do the job 
 
         sitting on a stool, but that the employer indicated that it would work 
 
         out.  Claimant then stated that he told the employer that "Well, I 
 
         can't do that job.  And so if you'll leave me on A and S until the 1st 
 
         of November, I'll take the retirement the 1st of November."  Claimant 
 
         stated that A and S refers to accident and sickness benefits.  
 
         Claimant acknowledged that he was left on accident and sickness until 
 
         November 1, 1987, at which time he retired and took his pension at 
 
         Armstrong, which amounted to $823 approximately a month.  Claimant 
 
         contended that he did not go back to work at the grinder job because 
 
         he didn't want to take a chance of injuring his back again on a job 
 
         that did not suit him.  Claimant indicated that he felt the grinder 
 
         job would injure his back again.
 
         
 
                                                   
 
                                                            
 
              Claimant admitted that he did not go back to Dr. Misol again 
 
         until October of 1988, which resulted from the claimant lying under 
 
         his boat trailer to change a spring.  Claimant admitted that in 
 
         February 1987, when the claimant saw Dr. McClain, Dr. McClain 
 
         indicated he had arthritis in his back and that he had spondylolysis.  
 
         Claimant stated that he was approximately fifth on the seniority list 
 
         at the defendant employer and that those who had fifteen years 
 
         seniority were eligible to be considered for a negotiated job.  
 
         Claimant acknowledged that he did not ask the employer for a different 
 
         job other than the grinder or tire section buffer-type jobs being 
 
         offered by defendant employer. Claimant acknowledged that he had a 
 
         discussion with Dr. Misol in the summer of 1987 as to getting social 
 
         security and that the claimant has made no applications for employment 
 
         since February 20, 1987, nor has he worked anyplace since that date.  
 
         The claimant acknowledged that when he retired in November 1987, he 
 
         was eligible for regular retirement benefits under social security due 
 
         to his age, alone, but that his social security benefits would be 
 
         reduced if he became employed.
 
         
 
              Claimant testified that he got married in October of 1988 and 
 
         prior to that time he took care of his own cleaning, cooking, buying 
 
         groceries, cleaning the apartment, and taking out the garbage.
 
         
 
              Claimant stated that at the time of hearing, he was receiving 
 
         $843 per month from his Armstrong pension and $840 per month from his 
 
 
 
                            
 
                                                            
 
         social security disability.  Claimant acknowledged that if it hadn't 
 
         been for his injury in February 1987, he would have left his 
 
         employment to retire in September 1988.
 
         
 
              Jack Salsbury testified that he was an approximate 30 year 
 
         employee at Armstrong and, also, was the collective bargaining agent 
 
         for United Rubber Local 164 at Armstrong.  Salsbury acknowledged that 
 
         he was an officer with the claimant in the union.  Salsbury 
 
         acknowledged that he had talked to the employer's representative, a 
 
         Joyce Kain, in October 1987, as to the claimant coming back to work 
 
         and what he could do.  Salsbury indicated that Kain stated there was 
 
         work that the claimant could do at Armstrong as there were jobs 
 
         available.  Kain indicated that she could find something in the area 
 
         where he worked before.  Salsbury testified that the claimant received 
 
         full benefits at the time of retirement, and that the defendant 
 
         employer was under a closure notice in October 1987.  Salsbury stated 
 
         that there were certain incentives under the closure notice where one 
 
         could take early retirement if they had worked there 25 to 30 years, 
 
         and that claimant had over 30 years.  Salsbury acknowledged that the 
 
         claimant had seniority as to the several jobs at the plant and that he 
 
         could not think of any reason why the union would not negotiate a job 
 
         for the claimant.  Salsbury indicated that the claimant's seniority of 
 
         41 years would be the top six out of 750 to 800 employees.  He 
 
         indicated that the claimant could have retired in September 1976 with 
 
         30 years seniority.
 
         
 
              Joyce Kain's deposition was taken on March 8, 1988, and she 
 
         testified that she was acquainted with the claimant as far back as 
 
         1972 when she began working at Armstrong, as the claimant had always 
 
         been involved with the union.  Kain testified that in 1980, claimant 
 
         brought in restrictions from Dr. McClain stating that the claimant 
 
         could not do repetitive twisting, bending, and lifting, and at that 
 
         time the claimant requested the job of tire technician.  Kain 
 
         indicated that the claimant was then negotiated to a job consistent 
 
         with his medical restrictions and his seniority.  Kain indicated that 
 
         under the section of the union contract an employee with more than 15 
 
         years of service can be negotiated to a job consistent with their 
 
         seniority and restrictions, and they can replace other employees in 
 
         the plant, if necessary.  Kain indicated that on April 7, 1980, the 
 
         claimant officially became a technician as opposed to his former job 
 
         of a tire builder.  Kain indicated that the claimant also worked 
 
         numerous hours with the union as union secretary, which work involved 
 
         taking notes of grievance meetings, discipline hearings, and 
 
         arbitration hearings.  Kain testified that the years 1981 through 
 
         1986, the claimant was away from his tire technician duties and on 
 
         union business from 41.7 percent to 63.6 percent of his work hours and 
 
         that the employee gets paid for this time just as if working at his 
 
         tire job, and that the company must allow a union representative so 
 
         much time per week off for such duties.
 
         
 
              Kain testified that when an employee receives a work injury on 
 
         the job, the employee is to instruct the supervisor, who then sends 
 
         the employee to the medical department for notification and the 
 
         supervisor then follows as to what happens and how the injury 
 
         occurred.  Kain indicated that the claimant never discussed with her 
 
                                                   
 
                                                            
 
         that he injured himself at work, but stated that she received a copy 
 
         of a change of status form that placed the claimant on leave of 
 
         absence effective March 3, 1987.  Kain indicated that claimant's last 
 
         day of work was February 20, 1987 and that the personal leave of 
 
         absence was due to lumbar spondylosis as indicated on a slip from Dr. 
 
         McClain indicating that as a diagnosis.  Kain stated that there was no 
 
         indication on Dr. McClain's note requesting the claimant to be excused 
 
         from work as a result of any work injury.  Kain testified that on the 
 
         employment or change of status payroll form dated March 3, 1987, if 
 
         the leave of absence was for a work-related injury there is a place to 
 
         mark indicating this.  Kain emphasized that this space was not marked 
 
         and that she did not have any idea that the claimant was claiming that 
 
         his injury was work related until the company received a notice that a 
 
         petition was filed in October of 1987.  Kain acknowledged that she had 
 
         received a similar note from Dr. McClain about every thirty days, 
 
         which is required when an employee is placed on a medical absence.  
 
         Kain stated that in each of those instances there was no indication 
 
         that the reason for the leave of absence was due to an injury he had 
 
         received to his back at work.
 
         
 
              Kain acknowledged that she wrote a letter to the claimant on 
 
         September 29, 1987 after having received a letter from Dr. Misol which 
 
         indicated that the claimant could return to a job that does not 
 
         involve any bending or lifting, that is, a sedentary position. Kain 
 
         testified that her September 29th letter stated that the claimant 
 
         should plan to take a return-to-work physical on Friday, October 2, 
 
         around 8:30 a.m., and that he would be expected to return to work on 
 
         Monday, October 5, to a job consistent with restrictions stated by Dr. 
 
         Misol.  Kain stated that the claimant did not come for his physical on 
 
         October 2, but came to work on October 5 accompanied by a union 
 
         official and indicated to her that he did not feel he could return to 
 
         work and asked her what job she had for him.  Kain testified that she 
 
         told the claimant that the job was a buffing tire section job that he 
 
         could do and that the company could make modifications to the job by 
 
         adding a stool, if necessary, if he needed to sit down, or he could 
 
         also stand on the job.  Kain stated that the claimant then told her 
 
         that "he would rather go ahead and retire."  Kain indicated that it 
 
         was claimant who mentioned first that he wanted to retire and 
 
         indicated that he wasn't interested in returning to work.  Kain 
 
         indicated that claimant did not ask for a different job other than the 
 
         tire section buffer job that they had discussed.  Kain then indicated 
 
         that after the claimant said he would retire, she stated that she 
 
         would allow him to stay on accident and sickness benefits the 
 
         remainder of the month if he would sign the paper that he was going to 
 
         retire and she, therefore, would not require him to return to work on 
 
         that date.
 
         
 
              Kain indicated that claimant had been receiving accident and 
 
         sickness benefits since the time of his initial leave of absence in 
 
         February 1987 up to this date,and further emphasized that the claimant 
 
         could not continue to receive accident and sickness benefits in 
 
         October 1987 if he had not chosen to retire.
 
         
 
              Kain testified that she was generally familiar with those jobs in 
 
         the Armstrong plant that a Dr. Bunten testified that he believed that 
 
                                                   
 
                                                            
 
         claimant could have performed, namely, as a lab attendant-stock 
 
         rubber, lab attendant-chemical, lab attendant-fabric stock, and as a 
 
         tire technician and tire section buffer. Kain emphasized that the 
 
         claimant would have had the opportunity to work at any of those jobs 
 
         and could have worked in just nearly any job at Armstrong in October 
 
         of 1987.  Kain indicated that contractually, the claimant could 
 
         replace an employee consistent with his seniority, and she believed 
 
         that claimant was the most senior person in the plant at that time so 
 
         that he could have picked any job in the plant he wanted and replace 
 
         the employee. Kain referred to the union employer contract and in 
 
         particular part 39B.  Claimant indicated that the claimant, having 
 
         over 15 years seniority and with the permanent work restrictions, 
 
         could have bumped any person less senior than he in the plant.  Kain 
 
         admitted that when they negotiate for jobs, they try not to bump out 
 
         other employees.  She emphasized that in this particular case the 
 
         employee on this particular job as a tire section buffer was going to 
 
         retire so it would have been an available job at that time, therefore, 
 
         he would not have had to bumped anyone.  Kain emphasized that if, in 
 
         fact, the claimant returned to his old job as a tire technician, and 
 
         if it was necessary to handle tires that would violate his weight 
 
         restriction, they could have modified this job so that he would not 
 
         have to be moving or handling the larger tractor tire tread, or they 
 
         could have even limited his job duties to the lighter weight tires.
 
         
 
              Kain testified that had the claimant taken the job of tire 
 
         section buffer, also referred to as the test wheel technician, he 
 
         actually would have been making slightly more per hour than on the job 
 
         he had at the time of his alleged injury, namely, the tire building 
 
         technician job ($13.138 vs. $13.078 per hour).
 
         
 
              Bill Brown, II, testified that he was an Armstrong employee for 
 
         24 years and manager of the industrial engineering department, which 
 
         is involved in job review, work standards, and equipment. Brown 
 
         indicated that he has known the claimant since 1971 and sits across 
 
         from the claimant at grievance hearings and union negotiations.  Brown 
 
         testified that claimant had indicated to him that the claimant had 
 
         planned to retire before the next term as a union officer had expired. 
 
          The term of office was 1987 to 1990. Brown indicated that the 
 
         claimant told him in the fail of 1986 that since he was going to 
 
         retire, he was not going to run for another term as it was not good to 
 
         have someone run for office and not finish their term.
 
         
 
              David B. McClain, D.O., in a report in September of 1974 
 
         describing the surgical and medical services performed, wrote the 
 
         following:  "9-10-74...Total lumbar laminectomy L-4 and L-5 with 
 
         excision of herniated nucleus pulposis L-3 and L-5."  (Defendants' 
 
         Exhibit 19, page 48)  On this same report, Dr. McClain diagnosis and 
 
         concurrent condition stated as follows:  "Herniated lumbar 
 
         intervertebral disc L-3 L-4" and "Degenerative disc disease L-5 S-1."  
 
         (Def. Ex. 19, p. 49)  On February 10, 1987, Dr. McClain wrote in his 
 
         history regarding the claimant:  "Pt. states he has pain in r. hip.  
 
         Pain extends down leg.  Pain is sharp, when working.  Leg goes numb 
 
         when sitting.  Pain sometimes extends to r. foot.  Pt. denies any 
 
         injury."  (Def. Ex. 20, p. 70)  Pursuant to his physical exam, Dr. 
 
         McClain wrote:  "X-ray - L - spondylosis = laminectomy defect.  Imp. 
 
                                                   
 
                                                            
 
         Lumbar spondylosis."  (Def. Ex. 20, p. 70)  On February 15, 1980, Dr. 
 
         McClain wrote to whom it may concern:  "The above is under my care and 
 
         being treated for long standing back complaints.  It would certainly 
 
         be to Mr. Gardner's advantage to be assigned duties which do not 
 
         require repetitive (sic] lifting and twisting."  (Def. Ex. 20, p. 73)
 
         
 
              Claimant went to Senesio Misol, M.D., on April 14, 1987, for an 
 
         opinion as to his condition.  Dr. Misol performed a right lumbar 
 
         laminectomy and discectomy right 3/4 level on April 22, 1987.  On June 
 
         1, 1987, Dr. Misol's notes indicate that "[t] patient did well post 
 
         surgery and his leg pain disappeared and he's still doing well without 
 
         sciatica."  (Def. Ex. 24, p. 117) On June 29, 1987, Dr. Misol wrote 
 
         this in his history:
 
         
 
              HISTORY:  ...He does not have any pain neither in the back or the 
 
              leg and the main question now has been whether he should go back 
 
              to work at Armstrong or rather try to retire from his occupation 
 
              and this has been recommendation.  His attorney, Mr. Pratt is 
 
              trying to obtain for him Social Security and Disability benefits 
 
              and at this time, he's receiving some financial compensation from 
 
              Armstrong as well.
 
         
 
              PHYSICAL EXAMINATION:  Has very good mobility of the lumbosacral 
 
              spine.  He moves about the room without limp. SLR is negative.  
 
              His ability to walk on heels and toes and has normal knee and 
 
              ankle reflexes.  Sensation also appears to be intact.
 
         
 
              IMPRESSION:  Doing well post laminectomy, right 3-4 level, in a 
 
              patient that has had another surgery performed in '74, different 
 
              location.
 
         
 
              PLAN:  Activities as tolerated.  Return to see me in 2 months.  
 
              Mostly see what is happening with his request for Social Security 
 
     
 
                            
 
                                                            
 
              and Retirement from Armstrong.
 
         
 
         (Def. Ex. 24, p. 118)
 
         
 
              Dr. Misol's notes on July 27, 1987, reflect:  "The patient is 
 
         here to have some disability forms from Armstrong rechecked again 
 
         where it says that he is not going to be able to do his regular work 
 
         anymore."  (Def. Ex. 24, p. 118.)  On August 31, 1987, Dr. Misol 
 
         wrote:
 
         
 
                   It has been my opinion that.the best type of job for him, if 
 
              available, would be one that would allow a sedentary position 
 
              because of the risk or possibility that he may again start to 
 
              have symptoms if he goes back to his regular tire building job.
 
         
 
                   The patient tells me that he has not received any notice 
 
              from Social Security yet and that the Armstrong Insurance will 
 
              cover him the way it is at least until about December, at which 
 
              time he may be approved for the retirement based on his inability 
 
              to perform his regular job.
 
         
 
                   Again, I would like to state that this man is doing well.  
 
              He is pretty much asymptomatic or pain-free at this time, but I 
 
              certainly would not recommend that he go back to his usual job 
 
              for fear that he may again incur a similar symptomatology.
 
         
 
         (Def. Ex. 24, P. 119)
 
         
 
              On September 9, 1987, Dr. Misol wrote:  "The patient is eligible 
 
         for a negotiated job at Armstrong if he has permanent work 
 
         restrictions."  (Def. Ex. 24, p. 120)
 
         
 
              On August 7, 1987, in response to claimant's attorney's letter, 
 
         Dr. Misol wrote:
 
         
 
                   It is my belief that the conditions that led to the first 
 
              operation probably accounted for the second.  That is, on one 
 
              hand, he was no longer a young adult, he was doing a job that 
 
              involved bending, lifting, and straining, and he was born with 
 
              the particular connective tissue that made him more prone to 
 
              develop disc herniations.  To support this last point, it is well 
 
              known that the black race is less likely to have problems with 
 
              disc herniations even if they do the same job or have the same 
 
              age.
 
         
 
                   In summary, it is my opinion that the type of work that he 
 
              has been doing, in part, may have contributed to the difficulty, 
 
              that it is more than that in this case with no one definite 
 
              trauma preceding the onset of symptoms.
 
         
 
                   As to how long it takes for a man to recover after a back 
 
              operation and before he should be allowed to return to work or 
 
              discharged from medical care, it is also difficult to say but I 
 
              would estimate it to begin in about six months.
 
         
 
                                                   
 
                                                            
 
         (Def. Ex. 24, p. 123-124)
 
         
 
              On August 1, 1988, pursuant to a request from claimant's 
 
         attorney, who enclosed a suggested letter for Dr. Misol to adopt or 
 
         incorporate, Dr. Misol attempted to expand on his letter of August 7, 
 
         1987, and opined:
 
         
 
                   It is my opinion, based upon a reasonable degree of medical 
 
              certainty, that his work activities leading up to his visits to 
 
              me were a substantial factor in bring [sic] about the condition 
 
              that I found on April 14 and that caused the subsequent surgery.
 
         
 
                   It is my opinion that this aggravation did result in a 
 
              healing period from the time of the surgery (April 22, 1987) 
 
              until approximately six months after that and that based upon 
 
              this aggravation, Mr. Gardner would have a 10 to 15 percent 
 
              impairment of the body as a whole based upon this work activity 
 
              aggravation.
 
         
 
         (Def. Ex. 24, P. 125)
 
         
 
              On February 8, 1989, Dr. Misol wrote:  "I do feel he is able to 
 
         undergo a functional capacity test."  (Def. Ex. 24, p. 127)
 
         
 
              Ronald K. Bunten, M.D., an orthopedic surgeon, testified that he 
 
         examined the claimant on August 19, 1988, and that he had reviewed the 
 
         medical records of the claimant, the deposition of the claimant, 
 
         records from Dr. Evans, Dr. Misol, various job descriptions on certain 
 
         jobs at the defendant employer, and video tape of certain jobs at 
 
         Armstrong Tire & Rubber Company.  Dr. Bunten testified as follows:
 
         
 
              Q.  Well, Doctor, did you take a history from Mr. Gardner about 
 
              his work activities?
 
         
 
              A.  Yes, we discussed his work at the factory.
 
         
 
              Q.  Okay.  And what did he tell you about that?
 
         
 
              A.  Well, he told me he worked as a tire technician and that that 
 
              involved some bending and stooping and lifting and that most of 
 
              his work was fairly -- was not what I would call heavy manual 
 
              labor.
 
         
 
              Q.  Okay.  Based upon that information then I'm going to repeat 
 
              the question.  Based upon the history you took from Mr. Gardner 
 
              and your review of the medical records that we've talked about, 
 
              his deposition where he discussed his job and your training and 
 
              experience, do you believe that the work activity as a tire 
 
              technician would have played a significant or substantial factor 
 
              in the need for the surgery in April 1987?
 
         
 
              A.  No, I don't.
 
         
 
              Q.  And why is that, Doctor?
 
         
 
                                                   
 
                                                            
 
              A.  Well, I don't,think there was ever any clear, specific events 
 
              that occurred while working that directly relate to aggravation 
 
              of his symptoms, and the cumulative effects of carrying out these 
 
              work activities would have to be over and above those activities 
 
              that would be carried out were he not working, and it's in the 
 
              absence of some specific events occurring, it's difficult for me 
 
              to attribute significant aggravation with his work activities 
 
              over and above activities that he would carry out when not 
 
              working just in the course of his daily living.
 
         
 
              Q.  As I understand your answer you would say -- you would not 
 
              say that work caused this person's underlying degenerative disk 
 
              disease.
 
         
 
              A.  That's correct.
 
         
 
              Q.  Are you really separating the condition, the underlying 
 
              condition of degenerative disk disease from an aggravation of 
 
              symptoms of that condition?
 
         
 
              A.  Well, I don't -- I was unable to document a history of 
 
              aggravation of symptoms of his underlying disorders specifically 
 
              related to his work activity.
 
         
 
              Q.  We did, you remember, talk about aggravation of symptoms 
 
              related to non-work activities as evidenced by Dr. Evans' notes.
 
         
 
              A.  Yes I couldn't document similar activities occurring at work 
 
              either from review of his records or from my interview with him.
 
         
 
              Q.  Would it be correct that in your opinion across the spectrum 
 
              of human beings you see degenerative disk disease in all 
 
              different kinds of people?
 
         
 
              A.  Yes, it s almost universal.
 
         
 
              Q.  Does that necessarily correlate with the type of labor that 
 
              these people are engaged in?
 
         
 
              A.  Existence of same does not correlate.  The amount of symptoms 
 
              produced from the disorder may correlate some depending upon work 
 
              activity or leisure activity.
 
         
 
                 ....
 
         
 
              Q.  In this case can you state to a reasonable degree of medical 
 
              certainty that it was Mr. Gardner's work activities that was a 
 
              substantial factor of the -- that led to the April 1987 surgery 
 
              performed by Dr. Misol?
 
         
 
              A.  No, I can't.
 
         
 
              Q.  And tell me the reasons for that again, Doctor.
 
         
 
              A.  Well, I don't think there's anything in the history that 
 
                                                   
 
                                                            
 
                   suggests there was a significant on-the-job injury that may have 
 
              aggravated his symptoms sufficiently to require surgical 
 
              treatment.
 
         
 
         (Def. Ex. 27, Ronald Bunten, M.D., Deposition, pp. 19-21)
 
         
 
              On September 9, 1988, Dr. Bunten wrote:
 
         
 
                   I have reviewed his medical records and deposition.  It is 
 
              my opinion that he continues to have mild symptoms of  his 
 
              degenerative disc disease, lumbar spine, but no longer has 
 
              sciatic symptoms.  I would regard him as having a 15% permanent 
 
              partial impairment of his total body function based on the 
 
              condition of his lumbar spine.  I would have regarded him as 
 
              having a 10% permanent partial impairment following his surgical 
 
              treatment in 1974.  I think his condition and treatment in 1974 
 
              put him at risk for additional difficulty subsequently.  I would 
 
              feel that he likely reached his point of maximum improvement six 
 
              to twelve months postoperatively from his April 1987 
 
              intervention.  I would presently consider him suited for 
 
              sedentary sorts of work activities, work that did not require 
 
              protracted sitting or standing in one position or a lot of 
 
              stooping, bending, and lifting sorts of activities.
 
         
 
         (Def. Ex. 25, pp. 128-129)
 
         
 
              On January 18, 1989, Dr. Bunten wrote:  "There was no specific 
 
         history of on-the-job injury obtained from Mr. Gardner or on review of 
 
         the medical records provided.  I do not know of any specific work 
 
         activity that occurred that may have precipitated or aggravated his 
 
         symptoms in February 1987."  (Def. Ex. 25, p. 130) Dr. Bunten reviewed 
 
         various job analyses and video tapes of five different jobs with the 
 
         Armstrong Rubber plant.  Dr. Bunten opined that the claimant could 
 
 
 
                            
 
                                                            
 
         have gone back to the lab attendant-chemical and lab attendant-fabric 
 
         dock job without a problem or modification, and that the lab 
 
         attendant-stock rubber job involved too much lifting, but if the job 
 
         was modified it would be safe for the claimant.  As to claimant's job 
 
         as tire technician at the time of his alleged injury, Dr. Bunten 
 
         indicated that if lifting of tractor tread was eliminated in that job, 
 
         and if the claimant was limited to tractor tires weighing 20 to 25 
 
         pounds, claimant could have returned to that job.
 
         
 
              On December 22, 1988, Thomas W. Bower, L.P.T., wrote after having 
 
         seen the claimant on that day:
 
         
 
                   When the patient was told what we planned to do today, he 
 
              was completely resistent (sic] to the functional testing. One of 
 
              the reasons is that his physician, Dr. Sinesio Misol, has told 
 
              this patient that he is on a 10 pound weight restriction, cannot 
 
              bend, twist, or squat.  He has even gone so far as to tell this 
 
              patient that he cannot play tennis, cannot golf, or bowl amongst 
 
              many other recreational activities.  The patient is [sic] in his 
 
              own words states that he is a cripple and states that his friends 
 
              refer to him as this as well.
 
         
 
                   At this point, I do not foresee any recommendations that can 
 
              be made on behalf of this patient.  The 10 pound weight 
 
              restriction which was not clearly defined to the patient nor 
 
              arrived at through any functional testing.  Clearly these appear 
 
              to be guesses and there is no documentable data to substantiate 
 
              those findings.  Never-the-less, this has created a very 
 
              difficult situation and certainly the patient is resistent (sic] 
 
              for us to evaluate him.  Interestingly, it would seem, that if 
 
              the patient were motivated to improve, he may well deny those 
 
              restrictions and ask for updated ones. This is not the case, 
 
              however, in this matter.
 
         
 
                   I have nothing further to offer in terms of testing this 
 
              patient since he will not allow us to do to [sic].
 
         
 
         (Def. Ex. 26, pp. 131-132)
 
         
 
              Roger Franklin Marquardt testified on behalf of claimant that he 
 
         is in private business as vocational rehabilitation consultant. 
 
         Marquardt testified that he had reviewed claimant's attorney's file 
 
         and the medical generated by the claimant's care and treatment, and 
 
         also the independent medical examination and evaluation by Dr. Bunten. 
 
          Marquardt also indicated that he had seen the job descriptions; 
 
         namely, the stock rubber, the chemical, fabric stock, buffer, and tire 
 
         technician.  MarquArdt acknowledged that he had not read Dr. Bunten's 
 
         deposition per se, nor had he read Ms. Kain's deposition or talked to 
 
         her at Armstrong, nor had he asked her what modifications could have 
 
         been done to any of the different jobs so as to meet claimant's 
 
         restrictions.  Marquardt admitted that he had never viewed the video 
 
         tapes of the jobs, nor did he discuss the claimant's restrictions with 
 
         either Dr. Misol or Dr. Bunten, nor had he gone out to Armstrong to 
 
         observe either the claimant's job as tire technician or any of the 
 
         four other jobs that have been previously referred to.  Marquardt did 
 
                                                   
 
                                                            
 
         not disagree with any judgments concerning the jobs that Dr. Bunten 
 
         had made and indicated that jobs of stock rubber, chemical, fabric 
 
         stock, buffer, and tire technician could be performed by the claimant 
 
         with the modifications that were indicated could or would be done by 
 
         the employer and if they were okayed with Dr. Bunten.
 
         
 
              Jack Edward Reynolds, a vocational rehabilitation consultant, 
 
         testified on behalf of the defendants.  Reynolds testified that when 
 
         he was working toward his Masters, he was, in fact, also working 
 
         during those six years at Firestone Tire & Rubber and was familiar 
 
         with and, in fact, supervised at some time a job at Firestone that was 
 
         similar to the tire technician job that the claimant had.  Reynolds 
 
         testified that he went to the Armstrong plant and looked at the 
 
         various jobs available or offered to the claimant that has been 
 
         previously referred to, namely, the three lab attendant jobs, the tire 
 
         section buffer, and the tire technician job.  Reynolds testified that 
 
         he had gone out to the Armstrong plant on two occasions regarding this 
 
         case and met with the claimant's supervisor, Mr. Ruvoldt, and 
 
         completely walked through each operation and then went back and video 
 
         taped the job. Reynolds also indicated that he met with the particular 
 
         employee that was performing the job duties at the time of his visit 
 
         and talked to him about the job and what it involved.  Reynolds stated 
 
         that he specifically discussed the job of tire section buffer with Mr. 
 
         Ruvoldt and also with the employee performing the job.  The following 
 
         questions and answers then evolved:
 
         
 
              Q.  Can the job be performed with the operator sitting on a 
 
              stool?
 
         
 
              A.  Oh, I think definitely, yes.
 
         
 
              Q.  I think Mr. Gardner said his reaction to Ms. Kain's 
 
              suggestion for modification of that job by using a stool--Mr. 
 
              Gardner's reaction was that the job cannot be done that way. Did 
 
              you see any evidence of that?
 
         
 
              A.  No.  I feel it can definitely be done, and I can speak from 
 
              firsthand experiences, because when I worked for Firestone, part 
 
              of my job duties were buffing tires.  I've probably buffed 
 
              hundreds of tires sitting on a stool, and that was pretty much 
 
              the way we did it.'
 
         
 
              Q.  The employee that you had simulate his job, of course, was he 
 
              using a stool?
 
         
 
              A.  He wasn't until we asked him to.
 
         
 
              Q.  But he could do' it standing up or he could use stool?
 
         
 
              A.  Yes.  There was one within ten feet, I believe, of the job.
 
         
 
              Q.  Okay.  Could you look at Exhibit 12?  Can you identify that 
 
              document?
 
         
 
              A.  Well, this is a job analysis of the tire section buffer.
 
                                                   
 
                                                            
 
         
 
              Q.  And who drew up that job analysis?
 
         
 
              A.  Well, I wrote it up.  I did.
 
         
 
              Q.  Was that after discussion with Mr. Ruvoldt and the employee 
 
              that was actually performing the job?
 
              A.  That's correct.
 
 
 
         (Jack Edward Reynolds Deposition, pp. 15-16)
 
         
 
              Reynolds testified as to the lab-attendant chemical job and the 
 
         tire buffer job that claimant would have no problem performing and 
 
         that the job of stock rubber and fabric stock could be done by the 
 
         claimant with some modification.  Reynolds indicated that the job as 
 
         tire technician would not be suitable for the claimant to.perform.
 
         
 
         LAW AND ANALYSIS
 
         
 
              Claimant has the burden of proving by a preponderance of the 
 
         evidence that he received an injury on February 23, 1987 which arose 
 
         out of and in the course of his employment.  McDowell v. Town of 
 
         Clarksville, 241 N.W.2d 904 (Iowa 1976); Musselman v. Central 
 
         Telephone Co., 261 Iowa 352, 154 N.W.2d 128 (1967).
 
         
 
              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, 24 
 
         N.W.2d 548 (1963) and Hansen v. State of Iowa, 249 Iowa 1147, 91 
 
         N.W.2d 555.(1958).
 
         
 
              The supreme court of Iowa in Almquist v. Shenandoah Nurseries, 
 
         218 Iowa 724, 254 N.W. 35 (1934) at 731-32, discussed the definition 
 
         of personal injury in workers' compensation cases as follows:
 
         
 
              While a personal injury does not include an occupational disease 
 
              under the workmen's Compensation Act, yet an injury to the health 
 
              may be a personal injury [Citations omitted.] Likewise a personal 
 
              injury includes a disease resulting from an injury....The result 
 
              of changes in the human body incident to the general processes of 
 
              nature do not amount to a personal injury.  This must follow, 
 
              even though such natural change may come about because the life 
 
              has been devoted to labor and hard work.  Such result of those 
 
              natural changes does not constitute a personal injury even though 
 
              the same brings about impairment of health or the total or 
 
              partial incapacity of the functions of the human body.
 
         
 
                 ....
 
         
 
              A personal injury, contemplated by the Workmen's Compensation 
 
              Law, obviously means an injury to the body, the impairment of 
 
              health, or a disease, not excluded by the act, which comes about, 
 
              not through the natural building up and tearing down of the human 
 
              body, but because of a traumatic or other hurt or damage to the 
 
                                                   
 
                                                            
 
                   health or body of an employee. [Citations omitted.]  The injury 
 
              to the human body here contemplated must be something, whether an 
 
              accident or not, that acts extraneously to the natural processes 
 
              of nature and thereby impairs the health, overcomes, injures, 
 
              interrupts, or destroys some function of the body, or otherwise 
 
              damages or injures a part or all of the body.
 
         
 
         
 
              The claimant has the burden of proving by a preponderance of the 
 
         evidence that the injury of February 23, 1987 is causally related to 
 
         the disability on which he now bases his claim.  Bodish v. Fischer, 
 
         Inc., 257 Iowa 516, 133 N.W.2d 867 (1965).  Lindahl v. L.O. Boggs, 236 
 
         Iowa 296, 18 N.W.2d 607 (1945). "A possibility is insufficient; a 
 
         probability is necessary.  Burt v. John Deere Waterloo Tractor Works, 
 
         247 Iowa 691, 73 N.W.2d 732 (1955).  The question of causal connection 
 
         is essentially within the domain of expert testimony.  Bradshaw v. 
 
         Iowa Methodist Hospital, 251 Iowa 375, 101 N.W.2d 167 (1960).
 
         
 
              However, expert medical evidence must be considered with all 
 
         other evidence introduced bearing on the causal connection.  Burt, 247 
 
         Iowa 691, 73 N.W.2d 732.  The opinion of experts need not be couched 
 
         in definite, positive or unequivocal language.  Sondag v. Ferris 
 
         Hardware, 220 N.W.2d 903 (Iowa 1974).  However, the expert opinion may 
 
         be accepted or rejected, in whole or in part, by the trier of fact.  
 
         Id. at 907.  Further, the weight to be given to such an opinion is 
 
         for the finder of fact, and that may be affected by the completeness 
 
         of the premise given the expert and other surrounding circumstances.  
 
         Bodish, 257 Iowa 516, 133 N.W.2d 867.  See also Musselman v. Central 
 
         Telephone Co., 261 Iowa 352, 154 N.W.2d 128 (1967).
 
         
 
              This claimant was 62 years old at the date of his alleged injury 
 
         in February of 1987.  It is obvious from the record that the claimant 
 
         himself did not really believe that he had a work-related injury.  It 
 
 
 
                            
 
                                                            
 
         appears that this alleged injury date was the date picked out of the 
 
         claimant's earlier plans to seek retirement and picking what he 
 
         thought might be the right circumstances to support his retirement due 
 
         to his seniority and many years which built up a nice right to a 
 
         pension.  Although whether there was a notice of injury given is not 
 
         an issue in this case, the testimony of notice or lack thereof was 
 
         important to show that this claimant did not believe he had an injury 
 
         that required the normal type of notice.  Claimant was relying upon 
 
         the fact that he had asked to see a doctor and that this was actual 
 
         notice.  This claimant was a union official and obviously familiar 
 
         with the procedures when there is a work-related injury.  He has past 
 
         experiences of filing for workers' compensation and has a history of 
 
         medical problems, many or most of which are nonwork-related.
 
         
 
              Joyce Kain was the senior personnel and benefits administrator, 
 
         who was familiar with this claimant and had sat in with him on various 
 
         management union matters and testified that the first time she knew 
 
         the claimant was alleging a work-related injury was when the petition 
 
         filed by the claimant in October 1987 was served upon the defendant 
 
         employer.  Ms. Kain indicated that she had contact with the claimant 
 
         after February or March 3, 1987, when he was placed on a medical leave 
 
         of absence.  Kain indicated that the claimant had brought a note 
 
         signed by Dr. McClain indicating a diagnosis of lumbar spondylosis 
 
         around February 23, 1987, and indicated he needed time off from work 
 
         due to this diagnosis.  Ms. Kain referred to the employment or change 
 
         of status payroll, which was filled out on march 3, 1987, and it was 
 
         noted thereon the reason for leave of absence or return from leave was 
 
         personal, not industrial.  Ms. Kain indicated that if it had been 
 
         indicated to be a work-related injury, the square in front of 
 
         industrial would have been marked.
 
         
 
              The evidence is undisputed that the claimant had a total lumbar 
 
         laminectomy L-4 and L-5 with excision of herniated nucleus pulposis 
 
         L-3 and L-5 on September 10, 1974, performed by Dr. David McClain.  
 
         The evidence shows that because of this condition, it was anticipated 
 
         in the future claimant would have problems, and that he had, in fact, 
 
         at that time a degenerative disc situation. The evidence shows that 
 
         the claimant had had problems resulting from his September 10, 1974 
 
         injury up to the present, and that the genus of those problems began 
 
         with his September 10, 1974 surgery and conditions then existing and 
 
         brought about by this surgery and the conditions that preceded the 
 
         surgery.  Although Dr. McClain was familiar with the claimant and 
 
         performed the first surgery, the claimant was obviously not satisfied 
 
         with the diagnoses and conclusions that Dr. McClain was giving him 
 
         into the early part of 1987.
 
         
 
              Claimant then sought the opinion of Dr. Misol.  Dr. Misol saw the 
 
         claimant on April 14, 1987, and on or around April 22, 1987, performed 
 
         a post-right lumbar laminectomy discectomy on the 3-4 level on April 
 
         22, 1987.  Dr. Misol attempted to draw some medical opinions and 
 
         conclusions but it is obvious Dr. Misol did not have the benefit of a 
 
         full medical history of this claimant.  In fact, it is obvious from 
 
         some of the history Dr. Misol took that he didn't fully realize the 
 
         extent and nature of claimant's September 10, 1974 surgery and the 
 
         total disc area involved.  Dr. Misol indicated it was his belief that 
 
                                                   
 
                                                            
 
         the conditions that led to the first operation probably accounted for 
 
         the second.  The undersigned believes what the doctor means was that 
 
         the second surgery was caused by the first.  Dr. Misol also indicated 
 
         that it was his opinion that the type of work the claimant had been 
 
         doing in part may have contributed to the difficulty the claimant was 
 
         having.  A possibility is insufficient, a probability is necessary.  
 
         It appeared that claimant's counsel may have interpreted Dr. Misol's 
 
         August 7, 1987 report similarly and, therefore, on July 21, 1988, 
 
         claimant's attorney wrote Dr. Misol enclosing a suggested medical 
 
         report on blank paper requesting that the doctor's secretary type it 
 
         on the doctor's stationery and mail it back if it conforms with the 
 
         attorney's and doctor's conversation.  On August 1, 1988, Dr. Misol 
 
         wrote Mr. Pratt a letter (exhibit 24, page 125) which is identical, 
 
         word for word except for clarifying an English error, as the letter 
 
         proposed by Mr. Pratt to Dr. Misol on July 21, 1988 (see exhibit 3, 
 
         page 16). In Morrison v. Century Engineering, No. 87-934, January 25, 
 
         1989, the Iowa Supreme Court frowned upon the preparation of medical 
 
         reports by counsel litigant.  The undersigned feels that Dr. Misol's 
 
         original understanding is represented by his August 7, 1987 letter, 
 
         which does not causally connect the claimant's current alleged 
 
         disability to a work-related injury and particularly any injury on 
 
         February 23, 1987.
 
         
 
              Even more important concerning the suggested letter by claimant's 
 
         attorney and ultimate August 1, 1988 letter of Dr. Misol is that there 
 
         is reference to "a previous surgery performed by Dr. McClain at 
 
         L5-Sl."  In fact, Dr. McClain's surgery referred to "herniated lumbar 
 
         intervetebral disc L-3, L-4, degenerative disc disease L-5, S-l."  Dr. 
 
         Misol performed surgery on the claimant on April 22, 1987 and 
 
         performed a discectomy of the 3-4 disc interspace for acute sciatica.  
 
         It appears that Dr. Misol did not even know that the claimant had 
 
         previous problems in this same area, and that his operation was a new 
 
         surgery in a new area and apparently arising from anew cause.
 
         
 
              The greater weight of medical evidence indicates that Dr. Bunten 
 
         performed a more thorough examination, which was based on claimant's 
 
         complete medical history beginning in 1971 and through the 1974 
 
         surgery to the time of his deposition March 6, 1989, and also involved 
 
         Dr. Bunten reviewing various depositions, exhibits, job descriptions, 
 
         and certain other factors in connection with claimant's employment.  
 
         Dr. Bunten testified that the claimant's work activity as a technician 
 
         would not have played a significant or substantial factor in the need 
 
         for the surgery in April 1987. Dr. Bunten could not determine any 
 
         clear or specific events that occurred while the claimant was working 
 
         that would directly relate to any aggravation of claimant's symptoms 
 
         or any cumulative effect of carrying out these work activities over 
 
         and above those activities that would be carried were he not working.  
 
         Dr. Bunten indicated it was difficult for him to attribute significant 
 
         aggravation with claimant's work activities over and above activities 
 
         that the claimant would carry out when not working just in the course 
 
         of his daily living.  Dr. Bunten testified that claimant's work would 
 
         not cause claimant's underlying degenerative disc disease.  Dr. Bunten 
 
         could not opine any causal connection between claimant's disability or 
 
         his need for surgery in April 1987 to any work-related injury and in 
 
         particular any work-related injury on August 23, 1987.  The 
 
                                                   
 
                                                            
 
         undersigned finds that there is no causal connection between any 
 
         disability that claimant has and in particular any work-related injury 
 
         of February 23, 1987.
 
         
 
              There were several other issues which have been disposed of by 
 
         the above finding and will not be further discussed herein.
 
         
 
                              FINDINGS OF FACT
 
         
 
              WHEREFORE, it is found:
 
         
 
              1.  Claimant did not receive a work-related injury on February 
 
         23, 1987.
 
         
 
              2.  Claimant did not have a cumulative trauma to his back as a 
 
         result of his work.
 
         
 
              3.  Claimant's disability is not a result of an injury on 
 
         February 23, 1987.
 
         
 
                              CONCLUSIONS OF LAW
 
         
 
              THEREFORE, it is concluded:
 
         
 
              Claimant failed to prove an injury on February 23, 1987 that 
 
         arose out of and in the course of his employment.
 
         
 
              Claimant has not proved by the greater weight of evidence that 
 
         there is a causal relationship between the work injury on February 23, 
 
         1987 and his alleged disability.
 
         
 
                                   ORDER
 
         
 
              THEREFORE, it is ordered:
 
         
 
              That claimant take nothing from these proceedings.
 
         
 
              That the claimant and defendants equally share in the division of 
 
         the costs of this action.
 
         
 
              Signed and filed this 15th day of May, 1989.
 
         
 
         
 
         
 
         
 
         
 
                                            BERNARD J. O'MALLEY
 
                                            DEPUTY INDUSTRIAL COMMISSIONER
 
         
 
         Copies to:
 
         
 
         Mr. Robert W. Pratt
 
         Attorney at Law
 
         1913 Ingersoll Avenue
 
         Des Moines, IA  50309
 
                                                   
 
                                                            
 
         
 
         Ms. Patricia J. Martin
 
         Attorney at Law
 
         100 Court Ave Ste 600
 
         Des Moines,  IA 50309
 
         
 
         
 
         
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
                                                   
 
 
         
 
 
 
 
 
 
 
 
 
 
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         KEITH W. GARDNER,
 
         
 
              Claimant,
 
                                                 File No. 853620
 
         vs.
 
         
 
         ARMSTRONG TIRE COMPANY,             A R B I T R A T I 0 N
 
         
 
              Employer,                         D E C I S I 0 N
 
         
 
         and
 
                                                    F I L E D
 
         TRAVELERS INSURANCE COMPANY,
 
                                                   MAY 15 1989
 
         
 
              Insurance Carrier,          IOWA INDUSTRIAL COMMISSIONER
 
              Defendants.
 
         
 
         
 
                                   INTRODUCTION
 
         
 
              This is a proceeding in arbitration brought by the claimant, 
 
         Keith Gardner, against Armstrong Rubber Company, employer, and 
 
         Travelers Insurance Company, insurance carrier, to recover 
 
         benefits as a result of an alleged injury sustained on February 
 
         23, 1987.  This matter came on for hearing before the undersigned 
 
         deputy industrial commissioner in Des Moines, Iowa, on March 15, 
 
         1989.  The record consists of the testimony of the claimant, 
 
         Roger Franklin Marquardt, Jack Edward Reynolds, Martin Ruvoldt, 
 
         Jack Salsbury, and Bill Brown II; claimant's exhibit A, B and C; 
 
         and defendants' exhibits 1 through 29.
 
         
 
                                      ISSUES
 
         
 
              The issues for resolution are:
 
         
 
              1.  Whether claimant's alleged injury arose out of and in 
 
         the course of his employment;
 
         
 
              2.  Whether there is a causal relationship between the 
 
         alleged injury and the disability;
 
         
 
              3.  The nature and extent of claimant's disability;
 
              
 
              4.  Claimant's entitlement to medical benefits under 85.27; 
 
         and
 
              
 
              5.  Whether the odd-lot doctrine is applicable.
 
              
 
              The parties on their prehearing report put as an issue the 
 
         defendants' affirmative defense of lack of notice under 85.23. 
 
         Both parties understood that this was discussed at the time of 
 
         the hearing assignment order and that this was understood to be 
 
         an issue pursuant to said hearing that was preserved for the time 
 
         of trial.  This deputy is bound by the hearing assignment order 
 
         which did not have the 85.23 issue set out therein.  Under the 
 
         rule of the agency and prior decision of this agency, no deputy 
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         can hear an issue at the time of hearing that has not been set 
 
         out on the hearing assignment order.  The undersigned deputy 
 
         cannot overrule a prior deputy's order.  85.23 is not an issue 
 
         that will be decided by the undersigned.  The parties have the 
 
         responsibility to read the hearing assignment order and raise the 
 
         question of an issue not being stated therein.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
                              REVIEW OF THE EVIDENCE
 
         
 
              Claimant began employment with the defendant employer in 
 
         1946 and for 33 of those years, 1947 to 1980, he was specifically 
 
         in the tire building department.  Claimant testified that work as 
 
         a tire builder involves a substantial amount of lifting, pushing 
 
         racks of tires in and out, and working on the concrete floors and 
 
         being unable to sit down during the work hours.  Claimant 
 
         testified that his last full year of work he made $22,183.
 
         
 
              Claimant testified that he had back surgery in 1974, 
 
         performed by David McClain, D.O.  Claimant stated that in 1980, 
 
         he negotiated through the union to change his job to a tire 
 
         technician since he was having back trouble.  Claimant indicated 
 
         that he had a letter from Dr. McClain suggesting a change. 
 
         Claimant stated that this tire technician job basically involved 
 
         going out on the floor and getting materials for check-tires, 
 
         checking the components out, going to the tire building machine, 
 
         instructing a builder on building a tire and write down his 
 
         findings.  After the tire was built claimant would take it to 
 
         curing and get it cured and bring it back to the lab.  Claimant 
 
         contended there was frequent lifting in connection with this tire 
 
         technician job, some days there would be no lifting and others 
 
         there would be considerable lifting, and that the heaviest tread 
 
         that would require lifting was a tractor tread weighing up to 120 
 
         pounds.  Claimant further described the necessity of the job to 
 
         load carts with up to twelve tires and take them back to the 
 
         laboratory.  Claimant stated that there is a lot of walking and 
 
         bending required of this tire technician job.  Claimant stated 
 
         that he was required to lift up to 50 pounds frequently in this 
 
         job, which he performed until February 20, 1987.
 
         
 
              Claimant also indicated that he was holding a position with 
 
         the collective bargaining unit as secretary of the local union 
 
         until late 1986, which required considerable time from his job. 
 
         Claimant acknowledged when he was referred to company records 
 
         that he had no reason to disagree with the fact that in the seven 
 
         or eight years that he was in a negotiated job as a tire 
 
         technician, 1980 to 1987, he was away from his job as a tire 
 
         technician 40 to 60 percent of the time doing union duties at the 
 
         plant as opposed to the tire technician duties.  Claimant 
 
         admitted that these duties as a collective bargaining 
 
         representative-union representative would be classified as 
 
         nonmanual labor.
 
         
 
              Claimant contended that in January 1987, his back began 
 
         hurting and that he asked the foreman if he could see the doctor 
 
         and the foreman indicated no because he had not reported an 
 
         injury.  Claimant contended he then talked to a Mr. Wentzel, the 
 
         assistant industrial relations manager for the employer, who also 
 
         denied him medical attention.  Claimant then proceeded to call 
 
         his own doctor, Dr. McClain, because Dr. McClain operated on the 
 
         claimant in 1974.
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
              Claimant testified that on February 23, 1987, after having 
 
         previously seen Dr. McClain, he took a note to defendant employer 
 
         indicating that he was to be kept off work.  Claimant stated that 
 
         he then went to a chiropractor, Dr. Evans, for therapy treatment 
 
         through the advice of Dr. McClain and indicated he received some 
 
         relief.  Claimant indicated that he had received various notes 
 
         from Dr. McClain as to staying off work.  Claimant indicated he 
 
         was not getting any better and so on April 14, 1987, he switched 
 
         from Dr. McClain to Sinesio Misol, M.D., who recommended that 
 
         claimant have a myelogram and a CT scan.  Claimant testified that 
 
         pursuant to the tests by Dr. Misol, he had back surgery on April 
 
         22, 1987 which gave him some relief of pain in his low back and 
 
         right leg.  Claimant indicated he had taken a note to the 
 
         employer, which was the first note from Dr. Misol, and claimant 
 
         indicated that no one at defendant employer said anything about 
 
         claimant now having a different doctor.  The claimant emphasized 
 
         that he received a good result from the surgery and received a 
 
         lot of relief from his pain.
 
         
 
              Claimant contends that he is not able to bowl, play golf, 
 
         tennis, and must be very careful lifting, bending and stooping 
 
         since his February 1987 injury.
 
         
 
              Claimant testified that in August 1987, the defendant 
 
         employer wanted the claimant to return to work.  Claimant 
 
         testified that he then went for another examination with Dr. 
 
         Misol at the end of September 1987, and subsequent thereto 
 
         claimant acknowledged receipt of a letter from defendant employer 
 
         requesting him to take a return-to-work physical at Armstrong on 
 
         Friday, October 2, and that he should be expected to return to 
 
         work on Monday, October 5, to a job consistent with the 
 
         restrictions stated by Dr. Misol.  Claimant stated that he met 
 
         with defendant employer's representative who indicated to him 
 
         that he was going to be placed on a grinding machine.  Claimant 
 
         stated that he told the representative that the job did not meet 
 
         Dr. Misol's restrictions in reference to standing.  Claimant 
 
         acknowledged that the employer representative then stated that 
 
         she would get him a stool to sit on.  Claimant contended that he 
 
         could not do the job sitting on a stool, but that the employer 
 
         indicated that it would work out.  Claimant then stated that he 
 
         told the employer that "Well, I can't do that job.  And so if 
 
         you'll leave me on A and S until the 1st of November, I'll take 
 
         the retirement the 1st of November."  Claimant stated that A and 
 
         S refers to accident and sickness benefits.  Claimant 
 
         acknowledged that he was left on accident and sickness until 
 
         November 1, 1987, at which time he retired and took his pension 
 
         at Armstrong, which amounted to $823 approximately a month.  
 
         Claimant contended that he did not go back to work at the grinder 
 
         job because he didn't want to take a chance of injuring his back 
 
         again on a job that did not suit him.  Claimant indicated that he 
 
         felt the grinder job would injure his back again.
 
         
 
              Claimant admitted that he did not go back to Dr. Misol again 
 
         until October of 1988, which resulted from the claimant lying 
 
         under his boat trailer to change a spring.  Claimant admitted 
 
         that in February 1987, when the claimant saw Dr. McClain, Dr. 
 
         McClain indicated he had arthritis in his back and that he had 
 
         spondylolysis.  Claimant stated that he was approximately fifth 
 
         on the seniority list at the defendant employer and that those 
 
         who had fifteen years seniority were eligible to be considered 
 
         for a negotiated job.  Claimant acknowledged that he did not ask 
 
         the employer for a different job other than the grinder or tire 
 
         section buffer-type jobs being offered by defendant employer. 
 
         Claimant acknowledged that he had a discussion with Dr. Misol in 
 
         the summer of 1987 as to getting social security and that the 
 
         claimant has made no applications for employment since February 
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         20, 1987, nor has he worked anyplace since that date.  The 
 
         claimant acknowledged that when he retired in November 1987, he 
 
         was eligible for regular retirement benefits under social 
 
         security due to his age, alone, but that his social security 
 
         benefits would be reduced if he became employed.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              Claimant testified that he got married in October of 1988 
 
         and prior to that time he took care of his own cleaning, cooking, 
 
         buying groceries, cleaning the apartment, and taking out the 
 
         garbage.
 
         
 
              Claimant stated that at the time of hearing, he was 
 
         receiving $843 per month from his Armstrong pension and $840 per 
 
         month from his social security disability.  Claimant acknowledged 
 
         that if it hadn't been for his injury in February 1987, he would 
 
         have left his employment to retire in September 1988.
 
         
 
              Jack Salsbury testified that he was an approximate 30 year 
 
         employee at Armstrong and, also, was the collective bargaining 
 
         agent for United Rubber Local 164 at Armstrong.  Salsbury 
 
         acknowledged that he was an officer with the claimant in the 
 
         union.  Salsbury acknowledged that he had talked to the 
 
         employer's representative, a Joyce Kain, in October 1987, as to 
 
         the claimant coming back to work and what he could do.  Salsbury 
 
         indicated that Kain stated there was work that the claimant could 
 
         do at Armstrong as there were jobs available.  Kain indicated 
 
         that she could find something in the area where he worked before.  
 
         Salsbury testified that the claimant received full benefits at 
 
         the time of retirement, and that the defendant employer was under 
 
         a closure notice in October 1987.  Salsbury stated that there 
 
         were certain incentives under the closure notice where one could 
 
         take early retirement if they had worked there 25 to 30 years, 
 
         and that claimant had over 30 years.  Salsbury acknowledged that 
 
         the claimant had seniority as to the several jobs at the plant 
 
         and that he could not think of any reason why the union would not 
 
         negotiate a job for the claimant.  Salsbury indicated that the 
 
         claimant's seniority of 41 years would be the top six out of 750 
 
         to 800 employees.  He indicated that the claimant could have 
 
         retired in September 1976 with 30 years seniority.
 
         
 
              Joyce Kain's deposition was taken on March 8, 1988, and she 
 
         testified that she was acquainted with the claimant as far back 
 
         as 1972 when she began working at Armstrong, as the claimant had 
 
         always been involved with the union.  Kain testified that in 
 
         1980, claimant brought in restrictions from Dr. McClain stating 
 
         that the claimant could not do repetitive twisting, bending, and 
 
         lifting, and at that time the claimant requested the job of tire 
 
         technician.  Kain indicated that the claimant was then negotiated 
 
         to a job consistent with his medical restrictions and his 
 
         seniority.  Kain indicated that under the section of the union 
 
         contract an employee with more than 15 years of service can be 
 
         negotiated to a job consistent with their seniority and 
 
         restrictions, and they can replace other employees in the plant, 
 
         if necessary.  Kain indicated that on April 7, 1980, the claimant 
 
         officially became a technician as opposed to his former job of a 
 
         tire builder.  Kain indicated that the claimant also worked 
 
         numerous hours with the union as union secretary, which work 
 
         involved taking notes of grievance meetings, discipline hearings, 
 
         and arbitration hearings.  Kain testified that the years 1981 
 
         through 1986, the claimant was away from his tire technician 
 
         duties and on union business from 41.7 percent to 63.6 percent of 
 
         his work hours and that the employee gets paid for this time just 
 
         as if working at his tire job, and that the company must allow a 
 
         union representative so much time per week off for such duties.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              Kain testified that when an employee receives a work injury 
 
         on the job, the employee is to instruct the supervisor, who then 
 
         sends the employee to the medical department for notification and 
 
         the supervisor then follows as to what happens and how the injury 
 
         occurred.  Kain indicated that the claimant never discussed with 
 
         her that he injured himself at work, but stated that she received 
 
         a copy of a change of status form that placed the claimant on 
 
         leave of absence effective March 3, 1987.  Kain indicated that 
 
         claimant's last day of work was February 20, 1987 and that the 
 
         personal leave of absence was due to lumbar spondylosis as 
 
         indicated on a slip from Dr. McClain indicating that as a 
 
         diagnosis.  Kain stated that there was no indication on Dr. 
 
         McClain's note requesting the claimant to be excused from work as 
 
         a result of any work injury.  Kain testified that on the 
 
         employment or change of status payroll form dated March 3, 1987, 
 
         if the leave of absence was for a work-related injury there is a 
 
         place to mark indicating this.  Kain emphasized that this space 
 
         was not marked and that she did not have any idea that the 
 
         claimant was claiming that his injury was work related until the 
 
         company received a notice that a petition was filed in October of 
 
         1987.  Kain acknowledged that she had received a similar note 
 
         from Dr. McClain about every thirty days, which is required when 
 
         an employee is placed on a medical absence.  Kain stated that in 
 
         each of those instances there was no indication that the reason 
 
         for the leave of absence was due to an injury he had received to 
 
         his back at work.
 
         
 
              Kain acknowledged that she wrote a letter to the claimant on 
 
         September 29, 1987 after having received a letter from Dr. Misol 
 
         which indicated that the claimant could return to a job that does 
 
         not involve any bending or lifting, that is, a sedentary 
 
         position. Kain testified that her September 29th letter stated 
 
         that the claimant should plan to take a return-to-work physical 
 
         on Friday, October 2, around 8:30 a.m., and that he would be 
 
         expected to return to work on Monday, October 5, to a job 
 
         consistent with restrictions stated by Dr. Misol.  Kain stated 
 
         that the claimant did not come for his physical on October 2, but 
 
         came to work on October 5 accompanied by a union official and 
 
         indicated to her that he did not feel he could return to work and 
 
         asked her what job she had for him.  Kain testified that she told 
 
         the claimant that the job was a buffing tire section job that he 
 
         could do and that the company could make modifications to the job 
 
         by adding a stool, if necessary, if he needed to sit down, or he 
 
         could also stand on the job.  Kain stated that the claimant then 
 
         told her that "he would rather go ahead and retire."  Kain 
 
         indicated that it was claimant who mentioned first that he wanted 
 
         to retire and indicated that he wasn't interested in returning to 
 
         work.  Kain indicated that claimant did not ask for a different 
 
         job other than the tire section buffer job that they had 
 
         discussed.  Kain then indicated that after the claimant said he 
 
         would retire, she stated that she would allow him to stay on 
 
         accident and sickness benefits the remainder of the month if he 
 
         would sign the paper that he was going to retire and she, 
 
         therefore, would not require him to return to work on that date.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              Kain indicated that claimant had been receiving accident and 
 
         sickness benefits since the time of his initial leave of absence 
 
         in February 1987 up to this date,and further emphasized that the 
 
         claimant could not continue to receive accident and sickness 
 
         benefits in October 1987 if he had not chosen to retire.
 
         
 
              Kain testified that she was generally familiar with those 
 
         jobs in the Armstrong plant that a Dr. Bunten testified that he 
 
         believed that claimant could have performed, namely, as a lab 
 
         attendant-stock rubber, lab attendant-chemical, lab 
 
         attendant-fabric stock, and as a tire technician and tire section 
 
         buffer. Kain emphasized that the claimant would have had the 
 
         opportunity to work at any of those jobs and could have worked in 
 
         just nearly any job at Armstrong in October of 1987.  Kain 
 
         indicated that contractually, the claimant could replace an 
 
         employee consistent with his seniority, and she believed that 
 
         claimant was the most senior person in the plant at that time so 
 
         that he could have picked any job in the plant he wanted and 
 
         replace the employee. Kain referred to the union employer 
 
         contract and in particular part 39B.  Claimant indicated that the 
 
         claimant, having over 15 years seniority and with the permanent 
 
         work restrictions, could have bumped any person less senior than 
 
         he in the plant.  Kain admitted that when they negotiate for 
 
         jobs, they try not to bump out other employees.  She emphasized 
 
         that in this particular case the employee on this particular job 
 
         as a tire section buffer was going to retire so it would have 
 
         been an available job at that time, therefore, he would not have 
 
         had to bumped anyone.  Kain emphasized that if, in fact, the 
 
         claimant returned to his old job as a tire technician, and if it 
 
         was necessary to handle tires that would violate his weight 
 
         restriction, they could have modified this job so that he would 
 
         not have to be moving or handling the larger tractor tire tread, 
 
         or they could have even limited his job duties to the lighter 
 
         weight tires.
 
         
 
              Kain testified that had the claimant taken the job of tire 
 
         section buffer, also referred to as the test wheel technician, he 
 
         actually would have been making slightly more per hour than on 
 
         the job he had at the time of his alleged injury, namely, the 
 
         tire building technician job ($13.138 vs. $13.078 per hour).
 
         
 
              Bill Brown, II, testified that he was an Armstrong employee 
 
         for 24 years and manager of the industrial engineering 
 
         department, which is involved in job review, work standards, and 
 
         equipment. Brown indicated that he has known the claimant since 
 
         1971 and sits across from the claimant at grievance hearings and 
 
         union negotiations.  Brown testified that claimant had indicated 
 
         to him that the claimant had planned to retire before the next 
 
         term as a union officer had expired.  The term of office was 1987 
 
         to 1990. Brown indicated that the claimant told him in the fail 
 
         of 1986 that since he was going to retire, he was not going to 
 
         run for another term as it was not good to have someone run for 
 
         office and not finish their term.
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
              David B. McClain, D.O., in a report in September of 1974 
 
         describing the surgical and medical services performed, wrote the 
 
         following:  "9-10-74...Total lumbar laminectomy L-4 and L-5 with 
 
         excision of herniated nucleus pulposis L-3 and L-5."  
 
         (Defendants' Exhibit 19, page 48)  On this same report, Dr. 
 
         McClain diagnosis and concurrent condition stated as follows:  
 
         "Herniated lumbar intervertebral disc L-3 L-4" and "Degenerative 
 
         disc disease L-5 S-1."  (Def. Ex. 19, p. 49)  On February 10, 
 
         1987, Dr. McClain wrote in his history regarding the claimant:  
 
         "Pt. states he has pain in r. hip.  Pain extends down leg.  Pain 
 
         is sharp, when working.  Leg goes numb when sitting.  Pain 
 
         sometimes extends to r. foot.  Pt. denies any injury."  (Def. Ex. 
 
         20, p. 70)  Pursuant to his physical exam, Dr. McClain wrote:  
 
         "X-ray - L - spondylosis = laminectomy defect.  Imp. Lumbar 
 
         spondylosis."  (Def. Ex. 20, p. 70)  On February 15, 1980, Dr. 
 
         McClain wrote to whom it may concern:  "The above is under my 
 
         care and being treated for long standing back complaints.  It 
 
         would certainly be to Mr. Gardner's advantage to be assigned 
 
         duties which do not require repetitive (sic] lifting and 
 
         twisting."  (Def. Ex. 20, p. 73)
 
         
 
              Claimant went to Senesio Misol, M.D., on April 14, 1987, for 
 
         an opinion as to his condition.  Dr. Misol performed a right 
 
         lumbar laminectomy and discectomy right 3/4 level on April 22, 
 
         1987.  On June 1, 1987, Dr. Misol's notes indicate that "[t] 
 
         patient did well post surgery and his leg pain disappeared and 
 
         he's still doing well without sciatica."  (Def. Ex. 24, p. 117) 
 
         On June 29, 1987, Dr. Misol wrote this in his history:
 
         
 
              HISTORY:  ...He does not have any pain neither in the back 
 
              or the leg and the main question now has been whether he 
 
              should go back to work at Armstrong or rather try to retire 
 
              from his occupation and this has been recommendation.  His 
 
              attorney, Mr. Pratt is trying to obtain for him Social 
 
              Security and Disability benefits and at this time, he's 
 
              receiving some financial compensation from Armstrong as 
 
              well.
 
         
 
              PHYSICAL EXAMINATION:  Has very good mobility of the 
 
              lumbosacral spine.  He moves about the room without limp. 
 
              SLR is negative.  His ability to walk on heels and toes 
 
              and has normal knee and ankle reflexes.  Sensation also 
 
              appears to be intact.
 
         
 
              IMPRESSION:  Doing well post laminectomy, right 3-4 level, 
 
              in a patient that has had another surgery performed in '74, 
 
              different location.
 
         
 
              PLAN:  Activities as tolerated.  Return to see me in 2 
 
              months.  Mostly see what is happening with his request for 
 
              Social Security and Retirement from Armstrong.
 
         
 
         (Def. Ex. 24, p. 118)
 
         
 
              Dr. Misol's notes on July 27, 1987, reflect:  "The patient 
 
         is here to have some disability forms from Armstrong rechecked 
 
         again where it says that he is not going to be able to do his 
 
         regular work anymore."  (Def. Ex. 24, p. 118.)  On August 31, 
 
         1987, Dr. Misol wrote:
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
                   It has been my opinion that.the best type of job for 
 
              him, if available, would be one that would allow a sedentary 
 
              position because of the risk or possibility that he may 
 
              again start to have symptoms if he goes back to his regular 
 
              tire building job.
 
         
 
                   The patient tells me that he has not received any 
 
              notice from Social Security yet and that the Armstrong 
 
              Insurance will cover him the way it is at least until about 
 
              December, at which time he may be approved for the 
 
              retirement based on his inability to perform his regular 
 
              job.
 
         
 
                   Again, I would like to state that this man is doing 
 
              well.  He is pretty much asymptomatic or pain-free at this 
 
              time, but I certainly would not recommend that he go back to 
 
              his usual job for fear that he may again incur a similar 
 
              symptomatology.
 
         
 
         (Def. Ex. 24, P. 119)
 
         
 
              On September 9, 1987, Dr. Misol wrote:  "The patient is 
 
         eligible for a negotiated job at Armstrong if he has permanent 
 
         work restrictions."  (Def. Ex. 24, p. 120)
 
         
 
              On August 7, 1987, in response to claimant's attorney's 
 
         letter, Dr. Misol wrote:
 
         
 
                   It is my belief that the conditions that led to the 
 
              first operation probably accounted for the second.  That is, 
 
              on one hand, he was no longer a young adult, he was doing a 
 
              job that involved bending, lifting, and straining, and he 
 
              was born with the particular connective tissue that made him 
 
              more prone to develop disc herniations.  To support this 
 
              last point, it is well known that the black race is less 
 
              likely to have problems with disc herniations even if they 
 
              do the same job or have the same age.
 
         
 
                   In summary, it is my opinion that the type of work that 
 
              he has been doing, in part, may have contributed to the 
 
              difficulty, that it is more than that in this case with no 
 
              one definite trauma preceding the onset of symptoms.
 
                   
 
                   As to how long it takes for a man to recover after a 
 
              back operation and before he should be allowed to return to 
 
              work or discharged from medical care, it is also difficult 
 
              to say but I would estimate it to begin in about six months.
 
         
 
         (Def. Ex. 24, p. 123-124)
 
         
 
              On August 1, 1988, pursuant to a request from claimant's 
 
         attorney, who enclosed a suggested letter for Dr. Misol to adopt 
 
         or incorporate, Dr. Misol attempted to expand on his letter of 
 
         August 7, 1987, and opined:
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
                   It is my opinion, based upon a reasonable degree of 
 
              medical certainty, that his work activities leading up to 
 
              his visits to me were a substantial factor in bring [sic] 
 
              about the condition that I found on April 14 and that caused 
 
              the subsequent surgery.
 
         
 
                   It is my opinion that this aggravation did result in a 
 
              healing period from the time of the surgery (April 22, 1987) 
 
              until approximately six months after that and that based 
 
              upon this aggravation, Mr. Gardner would have a 10 to 15 
 
              percent impairment of the body as a whole based upon this 
 
              work activity aggravation.
 
         
 
         (Def. Ex. 24, P. 125)
 
         
 
              On February 8, 1989, Dr. Misol wrote:  "I do feel he is able 
 
         to undergo a functional capacity test."  (Def. Ex. 24, p. 127)
 
         
 
              Ronald K. Bunten, M.D., an orthopedic surgeon, testified 
 
         that he examined the claimant on August 19, 1988, and that he had 
 
         reviewed the medical records of the claimant, the deposition of 
 
         the claimant, records from Dr. Evans, Dr. Misol, various job 
 
         descriptions on certain jobs at the defendant employer, and video 
 
         tape of certain jobs at Armstrong Tire & Rubber Company.  Dr. 
 
         Bunten testified as follows:
 
         
 
              Q.  Well, Doctor, did you take a history from Mr. Gardner 
 
              about his work activities?
 
         
 
              A.  Yes, we discussed his work at the factory.
 
              
 
              Q.  Okay.  And what did he tell you about that?
 
              
 
              A.  Well, he told me he worked as a tire technician and that 
 
              that involved some bending and stooping and lifting and that 
 
              most of his work was fairly -- was not what I would call 
 
              heavy manual labor.
 
              
 
              Q.  Okay.  Based upon that information then I'm going to 
 
              repeat the question.  Based upon the history you took from 
 
              Mr. Gardner and your review of the medical records that 
 
              we've talked about, his deposition where he discussed his 
 
              job and your training and experience, do you believe that 
 
              the work activity as a tire technician would have played a 
 
              significant or substantial factor in the need for the 
 
              surgery in April 1987?
 
         
 
              A.  No, I don't.
 
              
 
              Q.  And why is that, Doctor?
 
              
 
              A.  Well, I don't,think there was ever any clear, specific 
 
              events that occurred while working that directly relate to 
 
              aggravation of his symptoms, and the cumulative effects of 
 
              carrying out these work activities would have to be over and 
 
              above those activities that would be carried out were he not 
 
              working, and it's in the absence of some specific events 
 
              occurring, it's difficult for me to attribute significant 
 
              aggravation with his work activities over and above 
 
              activities that he would carry out when not working just in 
 
              the course of his daily living.
 

 
              
 
 
 
 
 
 
 
 
 
 
 
         
 
              Q.  As I understand your answer you would say -- you would 
 
              not say that work caused this person's underlying 
 
              degenerative disk disease.
 
         
 
              A.  That's correct.
 
              
 
              Q.  Are you really separating the condition, the underlying 
 
              condition of degenerative disk disease from an aggravation 
 
              of symptoms of that condition?
 
         
 
              A.  Well, I don't -- I was unable to document a history of 
 
              aggravation of symptoms of his underlying disorders 
 
              specifically related to his work activity.
 
         
 
              Q.  We did, you remember, talk about aggravation of symptoms 
 
              related to non-work activities as evidenced by Dr. Evans' 
 
              notes.
 
              
 
              A.  Yes I couldn't document similar activities occurring at 
 
              work either from review of his records or from my interview 
 
              with him.
 
              
 
              Q.  Would it be correct that in your opinion across the 
 
              spectrum of human beings you see degenerative disk disease 
 
              in all different kinds of people?
 
         
 
              A.  Yes, it s almost universal.
 
              
 
              Q.  Does that necessarily correlate with the type of labor 
 
              that these people are engaged in?
 
         
 
              A.  Existence of same does not correlate.  The amount of 
 
              symptoms produced from the disorder may correlate some 
 
              depending upon work activity or leisure activity.
 
         
 
                 ....
 
         
 
              Q.  In this case can you state to a reasonable degree of 
 
              medical certainty that it was Mr. Gardner's work activities 
 
              that was a substantial factor of the -- that led to the 
 
              April 1987 surgery performed by Dr. Misol?
 
         
 
              A.  No, I can't.
 
              
 
              Q.  And tell me the reasons for that again, Doctor.
 
         
 
              A.  Well, I don't think there's anything in the history that 
 
              suggests there was a significant on-the-job injury that may 
 
              have aggravated his symptoms sufficiently to require 
 
              surgical treatment.
 
         
 
         (Def. Ex. 27, Ronald Bunten, M.D., Deposition, pp. 19-21)
 
         
 
              On September 9, 1988, Dr. Bunten wrote:
 

 
              
 
 
 
 
 
 
 
 
 
 
 
         
 
                   I have reviewed his medical records and deposition.  It 
 
              is my opinion that he continues to have mild symptoms of    his degenerative disc disease, lumbar spine, but no longer has sciatic symptoms.  I would regard him as having a 15% permanent partial impairment of his total body function based on the condition of his lumbar spine.  I would have regarded him as having a 10% permanent partial impairment following his surgical treatment in 1974.  I think his condition and treatment in 1974 put him at risk for additional difficulty subsequently.  I would feel that he likely reached his point of maximum improvement six to twelve months postoperatively from his April 1987 intervention.  I would presently consider him suited for sedentary sorts of work activities, work that did not require protracted sitting or standing in one position or a lot of stooping, bending, and lifting sorts of activities.
 
         
 
         (Def. Ex. 25, pp. 128-129)
 
         
 
              On January 18, 1989, Dr. Bunten wrote:  "There was no 
 
         specific history of on-the-job injury obtained from Mr. Gardner 
 
         or on review of the medical records provided.  I do not know of 
 
         any specific work activity that occurred that may have 
 
         precipitated or aggravated his symptoms in February 1987."  (Def. 
 
         Ex. 25, p. 130) Dr. Bunten reviewed various job analyses and 
 
         video tapes of five different jobs with the Armstrong Rubber 
 
         plant.  Dr. Bunten opined that the claimant could have gone back 
 
         to the lab attendant-chemical and lab attendant-fabric dock job 
 
         without a problem or modification, and that the lab 
 
         attendant-stock rubber job involved too much lifting, but if the 
 
         job was modified it would be safe for the claimant.  As to 
 
         claimant's job as tire technician at the time of his alleged 
 
         injury, Dr. Bunten indicated that if lifting of tractor tread was 
 
         eliminated in that job, and if the claimant was limited to 
 
         tractor tires weighing 20 to 25 pounds, claimant could have 
 
         returned to that job.
 
         
 
              On December 22, 1988, Thomas W. Bower, L.P.T., wrote after 
 
         having seen the claimant on that day:
 
         
 
                   When the patient was told what we planned to do today, 
 
              he was completely resistent (sic] to the functional testing. 
 
              One of the reasons is that his physician, Dr. Sinesio Misol, 
 
              has told this patient that he is on a 10 pound weight 
 
              restriction, cannot bend, twist, or squat.  He has even gone 
 
              so far as to tell this patient that he cannot play tennis, 
 
              cannot golf, or bowl amongst many other recreational 
 
              activities.  The patient is [sic] in his own words states 
 
              that he is a cripple and states that his friends refer to 
 
              him as this as well.
 
         
 
                   At this point, I do not foresee any recommendations 
 
              that can be made on behalf of this patient.  The 10 pound 
 
              weight restriction which was not clearly defined to the 
 
              patient nor arrived at through any functional testing.  
 
              Clearly these appear to be guesses and there is no 
 
              documentable data to substantiate those findings.  
 
              Never-the-less, this has created a very difficult situation 
 
              and certainly the patient is resistent (sic] for us to 
 
              evaluate him.  Interestingly, it would seem, that if the 
 
              patient were motivated to improve, he may well deny those 
 
              restrictions and ask for updated ones. This is not the case, 
 
              however, in this matter.
 
         
 
                   I have nothing further to offer in terms of testing 
 
              this patient since he will not allow us to do to [sic].
 
         
 
         (Def. Ex. 26, pp. 131-132)
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              Roger Franklin Marquardt testified on behalf of claimant 
 
         that he is in private business as vocational rehabilitation 
 
         consultant. Marquardt testified that he had reviewed claimant's 
 
         attorney's file and the medical generated by the claimant's care 
 
         and treatment, and also the independent medical examination and 
 
         evaluation by Dr. Bunten.  Marquardt also indicated that he had 
 
         seen the job descriptions; namely, the stock rubber, the 
 
         chemical, fabric stock, buffer, and tire technician.  MarquArdt 
 
         acknowledged that he had not read Dr. Bunten's deposition per se, 
 
         nor had he read Ms. Kain's deposition or talked to her at 
 
         Armstrong, nor had he asked her what modifications could have 
 
         been done to any of the different jobs so as to meet claimant's 
 
         restrictions.  Marquardt admitted that he had never viewed the 
 
         video tapes of the jobs, nor did he discuss the claimant's 
 
         restrictions with either Dr. Misol or Dr. Bunten, nor had he gone 
 
         out to Armstrong to observe either the claimant's job as tire 
 
         technician or any of the four other jobs that have been 
 
         previously referred to.  Marquardt did not disagree with any 
 
         judgments concerning the jobs that Dr. Bunten had made and 
 
         indicated that jobs of stock rubber, chemical, fabric stock, 
 
         buffer, and tire technician could be performed by the claimant 
 
         with the modifications that were indicated could or would be done 
 
         by the employer and if they were okayed with Dr. Bunten.
 
         
 
              Jack Edward Reynolds, a vocational rehabilitation 
 
         consultant, testified on behalf of the defendants.  Reynolds 
 
         testified that when he was working toward his Masters, he was, in 
 
         fact, also working during those six years at Firestone Tire & 
 
         Rubber and was familiar with and, in fact, supervised at some 
 
         time a job at Firestone that was similar to the tire technician 
 
         job that the claimant had.  Reynolds testified that he went to 
 
         the Armstrong plant and looked at the various jobs available or 
 
         offered to the claimant that has been previously referred to, 
 
         namely, the three lab attendant jobs, the tire section buffer, 
 
         and the tire technician job.  Reynolds testified that he had gone 
 
         out to the Armstrong plant on two occasions regarding this case 
 
         and met with the claimant's supervisor, Mr. Ruvoldt, and 
 
         completely walked through each operation and then went back and 
 
         video taped the job. Reynolds also indicated that he met with the 
 
         particular employee that was performing the job duties at the 
 
         time of his visit and talked to him about the job and what it 
 
         involved.  Reynolds stated that he specifically discussed the job 
 
         of tire section buffer with Mr. Ruvoldt and also with the 
 
         employee performing the job.  The following questions and answers 
 
         then evolved:
 
         
 
              Q.  Can the job be performed with the operator sitting on a 
 
              stool?
 
         
 
              A.  Oh, I think definitely, yes.
 
         
 
              Q.  I think Mr. Gardner said his reaction to Ms. Kain's 
 
              suggestion for modification of that job by using a 
 
              stool--Mr. Gardner's reaction was that the job cannot be 
 
              done that way. Did you see any evidence of that?
 

 
              
 
 
 
 
 
 
 
 
 
 
 
         
 
              A.  No.  I feel it can definitely be done, and I can speak 
 
              from firsthand experiences, because when I worked for 
 
              Firestone, part of my job duties were buffing tires.  I've 
 
              probably buffed hundreds of tires sitting on a stool, and 
 
              that was pretty much the way we did it.'
 
         
 
              Q.  The employee that you had simulate his job, of course, 
 
              was he using a stool?
 
         
 
              A.  He wasn't until we asked him to.
 
              
 
              Q.  But he could do' it standing up or he could use stool?
 
         
 
              A.  Yes.  There was one within ten feet, I believe, of the 
 
              job.
 
         
 
              Q.  Okay.  Could you look at Exhibit 12?  Can you identify 
 
              that document?
 
         
 
              A.  Well, this is a job analysis of the tire section buffer.
 
         
 
              Q.  And who drew up that job analysis?
 
              
 
              A.  Well, I wrote it up.  I did.
 
              
 
              Q.  Was that after discussion with Mr. Ruvoldt and the 
 
              employee that was actually performing the job?
 
              A.  That's correct.
 
         (Jack Edward Reynolds Deposition, pp. 15-16)
 
         
 
              Reynolds testified as to the lab-attendant chemical job and 
 
         the tire buffer job that claimant would have no problem 
 
         performing and that the job of stock rubber and fabric stock 
 
         could be done by the claimant with some modification.  Reynolds 
 
         indicated that the job as tire technician would not be suitable 
 
         for the claimant to.perform.
 
         
 
                                 LAW AND ANALYSIS
 
         
 
              Claimant has the burden of proving by a preponderance of the 
 
         evidence that he received an injury on February 23, 1987 which 
 
         arose out of and in the course of his employment.  McDowell v. 
 
         Town of Clarksville, 241 N.W.2d 904 (Iowa 1976); Musselman v. 
 
         Central Telephone Co., 261 Iowa 352, 154 N.W.2d 128 (1967).
 
         
 
              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, 24 N.W.2d 548 (1963) and Hansen v. State of Iowa, 
 
         249 Iowa 1147, 91 N.W.2d 555.(1958).
 
         
 
              The supreme court of Iowa in Almquist v. Shenandoah 
 
         Nurseries, 218 Iowa 724, 254 N.W. 35 (1934) at 731-32, discussed 
 
         the definition of personal injury in workers' compensation cases 
 
         as follows:
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              While a personal injury does not include an occupational 
 
              disease under the workmen's Compensation Act, yet an injury 
 
              to the health may be a personal injury [Citations omitted.] 
 
              Likewise a personal injury includes a disease resulting from 
 
              an injury....The result of changes in the human body 
 
              incident to the general processes of nature do not amount to 
 
              a personal injury.  This must follow, even though such 
 
              natural change may come about because the life has been 
 
              devoted to labor and hard work.  Such result of those 
 
              natural changes does not constitute a personal injury even 
 
              though the same brings about impairment of health or the 
 
              total or partial incapacity of the functions of the human 
 
              body.
 
         
 
                 ....
 
         
 
              A personal injury, contemplated by the Workmen's 
 
              Compensation Law, obviously means an injury to the body, the 
 
              impairment of health, or a disease, not excluded by the act, 
 
              which comes about, not through the natural building up and 
 
              tearing down of the human body, but because of a traumatic 
 
              or other hurt or damage to the health or body of an 
 
              employee. [Citations omitted.]  The injury to the human body 
 
              here contemplated must be something, whether an accident or 
 
              not, that acts extraneously to the natural processes of 
 
              nature and thereby impairs the health, overcomes, injures, 
 
              interrupts, or destroys some function of the body, or 
 
              otherwise damages or injures a part or all of the body.
 
         
 
         
 
              The claimant has the burden of proving by a preponderance of 
 
         the evidence that the injury of February 23, 1987 is causally 
 
         related to the disability on which he now bases his claim.  
 
         Bodish v. Fischer, Inc., 257 Iowa 516, 133 N.W.2d 867 (1965).  
 
         Lindahl v. L.O. Boggs, 236 Iowa 296, 18 N.W.2d 607 (1945). "A 
 
         possibility is insufficient; a probability is necessary.  Burt v. 
 
         John Deere Waterloo Tractor Works, 247 Iowa 691, 73 N.W.2d 732 
 
         (1955).  The question of causal connection is essentially within 
 
         the domain of expert testimony.  Bradshaw v. Iowa Methodist 
 
         Hospital, 251 Iowa 375, 101 N.W.2d 167 (1960).
 
         
 
              However, expert medical evidence must be considered with all 
 
         other evidence introduced bearing on the causal connection.  
 
         Burt, 247 Iowa 691, 73 N.W.2d 732.  The opinion of experts need 
 
         not be couched in definite, positive or unequivocal language.  
 
         Sondag v. Ferris Hardware, 220 N.W.2d 903 (Iowa 1974).  However, 
 
         the expert opinion may be accepted or rejected, in whole or in 
 
         part, by the trier of fact.  Id. at 907.  Further, the weight to 
 
         be given to such an opinion is for the finder of fact, and that 
 
         may be affected by the completeness of the premise given the 
 
         expert and other surrounding circumstances.  Bodish, 257 Iowa 
 
         516, 133 N.W.2d 867.  See also Musselman v. Central Telephone 
 
         Co., 261 Iowa 352, 154 N.W.2d 128 (1967).
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
              This claimant was 62 years old at the date of his alleged 
 
         injury in February of 1987.  It is obvious from the record that 
 
         the claimant himself did not really believe that he had a 
 
         work-related injury.  It appears that this alleged injury date 
 
         was the date picked out of the claimant's earlier plans to seek 
 
         retirement and picking what he thought might be the right 
 
         circumstances to support his retirement due to his seniority and 
 
         many years which built up a nice right to a pension.  Although 
 
         whether there was a notice of injury given is not an issue in 
 
         this case, the testimony of notice or lack thereof was important 
 
         to show that this claimant did not believe he had an injury that 
 
         required the normal type of notice.  Claimant was relying upon 
 
         the fact that he had asked to see a doctor and that this was 
 
         actual notice.  This claimant was a union official and obviously 
 
         familiar with the procedures when there is a work-related injury.  
 
         He has past experiences of filing for workers' compensation and 
 
         has a history of medical problems, many or most of which are 
 
         nonwork-related.
 
         
 
              Joyce Kain was the senior personnel and benefits 
 
         administrator, who was familiar with this claimant and had sat in 
 
         with him on various management union matters and testified that 
 
         the first time she knew the claimant was alleging a work-related 
 
         injury was when the petition filed by the claimant in October 
 
         1987 was served upon the defendant employer.  Ms. Kain indicated 
 
         that she had contact with the claimant after February or March 3, 
 
         1987, when he was placed on a medical leave of absence.  Kain 
 
         indicated that the claimant had brought a note signed by Dr. 
 
         McClain indicating a diagnosis of lumbar spondylosis around 
 
         February 23, 1987, and indicated he needed time off from work due 
 
         to this diagnosis.  Ms. Kain referred to the employment or change 
 
         of status payroll, which was filled out on march 3, 1987, and it 
 
         was noted thereon the reason for leave of absence or return from 
 
         leave was personal, not industrial.  Ms. Kain indicated that if 
 
         it had been indicated to be a work-related injury, the square in 
 
         front of industrial would have been marked.
 
         
 
              The evidence is undisputed that the claimant had a total 
 
         lumbar laminectomy L-4 and L-5 with excision of herniated nucleus 
 
         pulposis L-3 and L-5 on September 10, 1974, performed by Dr. 
 
         David McClain.  The evidence shows that because of this 
 
         condition, it was anticipated in the future claimant would have 
 
         problems, and that he had, in fact, at that time a degenerative 
 
         disc situation. The evidence shows that the claimant had had 
 
         problems resulting from his September 10, 1974 injury up to the 
 
         present, and that the genus of those problems began with his 
 
         September 10, 1974 surgery and conditions then existing and 
 
         brought about by this surgery and the conditions that preceded 
 
         the surgery.  Although Dr. McClain was familiar with the claimant 
 
         and performed the first surgery, the claimant was obviously not 
 
         satisfied with the diagnoses and conclusions that Dr. McClain was 
 
         giving him into the early part of 1987.
 
         
 
              Claimant then sought the opinion of Dr. Misol.  Dr. Misol 
 
         saw the claimant on April 14, 1987, and on or around April 22, 
 
         1987, performed a post-right lumbar laminectomy discectomy on the 
 
         3-4 level on April 22, 1987.  Dr. Misol attempted to draw some 
 
         medical opinions and conclusions but it is obvious Dr. Misol did 
 
         not have the benefit of a full medical history of this claimant.  
 
         In fact, it is obvious from some of the history Dr. Misol took 
 
         that he didn't fully realize the extent and nature of claimant's 
 
         September 10, 1974 surgery and the total disc area involved.  Dr. 
 
         Misol indicated it was his belief that the conditions that led to 
 
         the first operation probably accounted for the second.  The 
 
         undersigned believes what the doctor means was that the second 
 
         surgery was caused by the first.  Dr. Misol also indicated that 
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         it was his opinion that the type of work the claimant had been 
 
         doing in part may have contributed to the difficulty the claimant 
 
         was having.  A possibility is insufficient, a probability is 
 
         necessary.  It appeared that claimant's counsel may have 
 
         interpreted Dr. Misol's August 7, 1987 report similarly and, 
 
         therefore, on July 21, 1988, claimant's attorney wrote Dr. Misol 
 
         enclosing a suggested medical report on blank paper requesting 
 
         that the doctor's secretary type it on the doctor's stationery 
 
         and mail it back if it conforms with the attorney's and doctor's 
 
         conversation.  On August 1, 1988, Dr. Misol wrote Mr. Pratt a 
 
         letter (exhibit 24, page 125) which is identical, word for word 
 
         except for clarifying an English error, as the letter proposed by 
 
         Mr. Pratt to Dr. Misol on July 21, 1988 (see exhibit 3, page 16). 
 
         In Morrison v. Century Engineering, No. 87-934, January 25, 1989, 
 
         the Iowa Supreme Court frowned upon the preparation of medical 
 
         reports by counsel litigant.  The undersigned feels that Dr. 
 
         Misol's original understanding is represented by his August 7, 
 
         1987 letter, which does not causally connect the claimant's 
 
         current alleged disability to a work-related injury and 
 
         particularly any injury on February 23, 1987.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              Even more important concerning the suggested letter by 
 
         claimant's attorney and ultimate August 1, 1988 letter of Dr. 
 
         Misol is that there is reference to "a previous surgery performed 
 
         by Dr. McClain at L5-Sl."  In fact, Dr. McClain's surgery 
 
         referred to "herniated lumbar intervetebral disc L-3, L-4, 
 
         degenerative disc disease L-5, S-l."  Dr. Misol performed surgery 
 
         on the claimant on April 22, 1987 and performed a discectomy of 
 
         the 3-4 disc interspace for acute sciatica.  It appears that Dr. 
 
         Misol did not even know that the claimant had previous problems 
 
         in this same area, and that his operation was a new surgery in a 
 
         new area and apparently arising from anew cause.
 
         
 
              The greater weight of medical evidence indicates that Dr. 
 
         Bunten performed a more thorough examination, which was based on 
 
         claimant's complete medical history beginning in 1971 and through 
 
         the 1974 surgery to the time of his deposition March 6, 1989, and 
 
         also involved Dr. Bunten reviewing various depositions, exhibits, 
 
         job descriptions, and certain other factors in connection with 
 
         claimant's employment.  Dr. Bunten testified that the claimant's 
 
         work activity as a technician would not have played a significant 
 
         or substantial factor in the need for the surgery in April 1987. 
 
         Dr. Bunten could not determine any clear or specific events that 
 
         occurred while the claimant was working that would directly 
 
         relate to any aggravation of claimant's symptoms or any 
 
         cumulative effect of carrying out these work activities over and 
 
         above those activities that would be carried were he not working.  
 
         Dr. Bunten indicated it was difficult for him to attribute 
 
         significant aggravation with claimant's work activities over and 
 
         above activities that the claimant would carry out when not 
 
         working just in the course of his daily living.  Dr. Bunten 
 
         testified that claimant's work would not cause claimant's 
 
         underlying degenerative disc disease.  Dr. Bunten could not opine 
 
         any causal connection between claimant's disability or his need 
 
         for surgery in April 1987 to any work-related injury and in 
 
         particular any work-related injury on August 23, 1987.  The 
 
         undersigned finds that there is no causal connection between any 
 
         disability that claimant has and in particular any work-related 
 
         injury of February 23, 1987.
 
         
 
              There were several other issues which have been disposed of 
 
         by the above finding and will not be further discussed herein.
 
         
 
                                 FINDINGS OF FACT
 
         
 
              WHEREFORE, it is found:
 
         
 
              1.  Claimant did not receive a work-related injury on 
 
         February 23, 1987.
 
         
 
              2.  Claimant did not have a cumulative trauma to his back as 
 
         a result of his work.
 
         
 
              3.  Claimant's disability is not a result of an injury on 
 
         February 23, 1987.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
                                CONCLUSIONS OF LAW
 
         
 
              THEREFORE, it is concluded:
 
         
 
              Claimant failed to prove an injury on February 23, 1987 that 
 
         arose out of and in the course of his employment.
 
         
 
              Claimant has not proved by the greater weight of evidence 
 
         that there is a causal relationship between the work injury on 
 
         February 23, 1987 and his alleged disability.
 
         
 
                                      ORDER
 
         
 
              THEREFORE, it is ordered:
 
              
 
              That claimant take nothing from these proceedings.
 
         
 
              That the claimant and defendants equally share in the 
 
         division of the costs of this action.
 
         
 
              Signed and filed this 15th day of May, 1989.
 
         
 
         
 
         
 
         
 
         
 
                                            BERNARD J. O'MALLEY
 
                                            DEPUTY INDUSTRIAL COMMISSIONER
 
         
 
         Copies to:
 
         
 
         Mr. Robert W. Pratt
 
         Attorney at Law
 
         1913 Ingersoll Avenue
 
         Des Moines, IA  50309
 
         
 
         Ms. Patricia J. Martin
 
         Attorney at Law
 
         100 Court Ave Ste 600
 
         Des Moines,  IA 50309
 
         
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
 
                                            
 
 
 
 
 
 
 
 
 
 
 
                                            51100
 
                                            Filed May 15, 1989
 
                                            Bernard J. O'Malley
 
         
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         KEITH W. GARDNER,
 
         
 
              Claimant,
 
                                               File No. 853620
 
         vs.
 
         
 
         ARMSTRONG TIRE COMPANY,           A R B I T R A T I 0 N
 
         
 
              Employer,                       D E C I S I 0 N
 
         
 
         and
 
         
 
         TRAVELERS INSURANCE COMPANY,
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
         51100
 
         
 
              Claimant failed to prove that his alleged injury arose out 
 
         of and in the course of his employment.
 
         
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
                        BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
          MICHAEL JON TAIT,
 
          
 
               Claimant,
 
          
 
          VS.                                    File  No.  853624
 
          
 
          LARRY HACKETT CONSTRUCTION, INC.,:                      A R B I T R A T I 0 N
 
          
 
               Employer,                            D E C I S I 0 N
 
          
 
          and
 
          
 
          GRINNELL MUTUAL INSURANCE CO.,
 
          
 
               Insurance Carrier,
 
               Defendants.
 
         
 
                                   INTRODUCTION
 
                                        
 
              This is a proceeding in arbitration brought by Michael Jon 
 
         Tait.  The case was heard and fully submitted at Council Bluffs, 
 
         Iowa on November 22, 1988.  The record in this proceeding 
 
         consists of testimony from Michael Jon Tait and Larry Hackett.  
 
         The record also contains defendants' exhibits 1 through 8.
 
         
 
                                      ISSUES
 
                                        
 
              The sole.issue to be determined is whether Michael Jon Tait 
 
         was an employee of Larry Hackett Construction, Inc., rather than 
 
         an independent contractor.
 
         
 
                               SUMMARY OF EVIDENCE
 
                                        
 
              The following is a summary of evidence presented in this 
 
         case.  Of all the evidence received at the hearing, only that 
 
         considered most pertinent to this decision is discussed.  
 
         Conclusions about what the evidence showed are inevitable with 
 
         any summarization.  The conclusions in the following summary 
 
         should be considered to be preliminary findings of fact.  The 
 
         evidentiary facts are substantially the same regardless of 
 
         whether the claimant's or the defendants' version is adopted.  
 
         The primary issue is determining the intent of the parties and 
 
         also the conclusions to be drawn from the evidentiary facts.
 
         
 
              Larry Hackett, doing business as Larry Hackett Construction, 
 
         Inc., had contracted to perform work as part of a remodeling 
 
         project at the Mike D'Angelo residence in Oakland, Iowa (exhibit 
 
         5).  Hackett contracted out much of the work to subcontractors.  
 
         In making his initial bid, Hackett obtained a proposal from 
 
         Central States Roofing which included materials and labor 
 
         (exhibit
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
         
 
         
 
         TAIT V. LARRY HACKETT CONSTRUCTION, INC.
 
         Page 2
 
         
 
         
 
         6).Under the arrangement with D'Angelo, Hackett did not supply 
 
         materials for the job.  Materials were provided directly by 
 
         D'Angelo.
 
         
 
              When Hackett contacted Central States Roofing regarding 
 
         performing the roofing work, Central States declined, but 
 
         indicated to Hackett that they would have someone call who would 
 
         be capable of doing the work.  Tait contacted Hackett.
 
         
 
              There is some discrepancy between the evidence from Tait and 
 
         Hackett with regard to the manner in which the price was 
 
         determined and the time at which Hackett and Tait initially met.  
 
         It is clear, however, that the price was based upon a fixed price 
 
         per square of roofing work performed with some possible 
 
         adjustment for work around dormers.
 
         
 
              After working on the job for approximately a week, Tait fell 
 
         from the roof and this action resulted.
 
         
 
              Both parties agree that Tait had what was essentially a full 
 
         compliment of roofing tools, including a.power saw, hand tools, 
 
         toe brackets and ladders.  Hackett left some of his ladders and 
 
         toe brackets on the D'Angelo job site with instructions to Tait 
 
         to leave them in place so they would be available for use when 
 
         siding the dormers after the roofing was completed.
 
         
 
              Hackett checked Tait's work frequently.  Hackett testified 
 
         that he wanted to be certain that Tait was doing the work 
 
         properly.
 
         
 
              Hackett explained that he understood Tait to e a 
 
         subcontractor who would be paid by the job and that the price 
 
         would be $1,650.00, an amount specified by Tait as representing 
 
         50 squares of roofing at $30.00 per square with an additional 
 
         $150.00 for work around the dormers.  Tait testified that the 
 
         work was strictly piecework at the rate of $25.00 per square 
 
         without any total price for the job.  Hackett testified that he 
 
         pays his employees by the hour.
 
         
 
              Tait testified that his hours were not set by Hackett, but 
 
         that Mrs. D'Angelo would not allow him to start work before was 
 
         living in the house.  Tait stated 6:00 a.m. as the family that he 
 
         did work later than 5:00 p.m. on some days.  Tait testified that, 
 
         despite the fact that Hackett did not set his hours, he would 
 
         have been fired if he had not been working there all day, every 
 
         day when weather permitted.
 
         
 
              Hackett testified that, with employees, the employer 
 
         commonly provides power tools, but the employees provide their 
 
         own hand tools.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              Tait assisted Hackett in loading out materials for another 
 
         job.
 
         
 
         
 
         
 
         TAIT V. LARRY HACKETT CONSTRUCTION, INC.
 
         Page 3
 
         
 
         
 
              Tait has filed his income tax returns as an independent 
 
         contractor (exhibit 1).  Tait explained that employers are unable 
 
         to compute withholding taxes when the work is paid on a piecework 
 
         basis rather than based upon an hourly wage.
 
         
 
              There was no separate written bid or proposal from Tait made 
 
         to Hackett and no written contract of any type between them.
 
         
 
              Tait maintained telephone listings wherein he represented 
 
         himself as a roofing contracting with Central States Roofing and 
 
         Siding (exhibit 7).  Tait also, subsequent to the accident now 
 
         under consideration, ran newspaper ads indicating that he was a 
 
         roofing contractor (exhibit 8).
 
         
 
              Tait testified that Hackett was the general contractor for 
 
         the D'Angelo project, but Hackett testified that D'Angelo himself 
 
         acted as the general contractor.
 
         
 
                           APPLICABLE LAW AND ANALYSIS
 
                                        
 
              An independent contractor is one who carries on an 
 
         independent business.  Mallinger v. Webster City Oil Co., 21 Iowa 
 
         847, 851, 234 N.W.  There are eight factors  which are 
 
         considered.  Henderson v. Jennie Edmundson Hospital, 178 N.W.2d 
 
         429 (Iowa 1970); Nelson v. Cities Service Oil Co., 259 Iowa 1209, 
 
         146 N.W.2d 201 (Iowa 1967).
 
         
 
              In this case, the work was to be paid based upon a fixed 
 
         price.  Regardless of whether Hackett's testimony.of a total 
 
         price of $1,650.00 is used or whether Tait's testimony regarding 
 
         a price of.$25.00 per square is used, the fact remains that the 
 
         roof of the building was of a fixed size and converting the price 
 
         per square into a total price is simply a matter of mathematical 
 
         calculations.  It is therefore determined that there was a fixed 
 
         price for the work which is an indication that Tait was an 
 
         independent contractor.
 
         
 
              Tait used the telephone listings and other media to 
 
         represent to the public that he was engaged in the business of a 
 
         roofing contractor.  He testified that this was in essence a 
 
         sham, but he nevertheless held himself out to others to be a 
 
         contractor.  The business of a roofing contractor.is an 
 
         independent business.  Tait was not under any obligation to 
 
         perform other jobs where Hackett had roofing to be done.  He 
 
         could have simply left following the D'Angelo job.  There was no 
 
         exclusiveness in the arrangement between Tait and Hackett.. On 
 
         the second factor, it indicates that Tait was an independent 
 
         contractor.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              Hackett testified that he was surprised that Tait began 
 
         working without having any assistants.  There is nothing in the 
 
         evidence which indicates that, if Tait had chosen to employ 
 
         assistants, such would have been subject to Hackett's approval or 
 
         in any other manner subject to Hackett's control.  Tait
 
         
 
         
 
         
 
         TAIT V. LARRY HACKETT CONSTRUCTION, INC.
 
         Page 4
 
         
 
         
 
         was to be paid by the job, regardless of which version of the 
 
         method of computing the payment is accepted.  Under either 
 
         version, the payment would be the same regardless of whether Tait 
 
         performed all the work individually or employed others to assist 
 
         him.  On this third factor, the indications are that Tait was an 
 
         independent contractor.
 
         
 
              Tait brought with him what was essentially a full compliment 
 
         of tools for performing roofing work.  Tait primarily used his 
 
         own tools, although he did use ladders and toe bars provided by 
 
         Hackett.  The fact that Tait used Hackett's equipment is not 
 
         particularly probative since, according to Hackett, the intent 
 
         was to leave the toe bars in place for Hackett's later use on the 
 
         project.  Again, the indications are that Tait was an independent 
 
         contractor.
 
         
 
              D'Angelo had apparently specified limits on the hours during 
 
         which the work could be performed due to the fact that the 
 
         D'Angelo family continued to reside in the residence while the 
 
         work was ongoing.  There is no indication that Hackett ever 
 
         attempted to specify Tait's precise hours of work beyond the 
 
         limitations imposed by D'Angelo.  There was no specified 
 
         completion date for Tait's work, but it appears that it was 
 
         implied that the work should be completed as soon as reasonably 
 
         possible in order to coincide with work being performed on the 
 
         premises by others.  It is also quite common for roofing work to 
 
         be performed quickly since an unroofed building is vulnerable to 
 
         damage.  Setting requirements such as requiring work to be done 
 
         in a workman like manner, limiting the hours within which work 
 
         can be performed or requiring the work to be completed within a 
 
         reasonable amount of time is, not inconsistent with independent 
 
         contractor status.
 
         
 
              Tait was employed only for one project.  There is evidence 
 
         that there was a possibility that he might perform other projects 
 
         for Hackett, but there was no certainty or guarantee of continued 
 
         work or employment.  This factor is indicative of independent 
 
         contractor status.
 
         
 
              Tait's method of payment was to be by the job.  This is true 
 
         regardless of whether it was a fixed price or based upon the 
 
         number of squares.  The fact that Hackett made an advance is not 
 
         persuasive of employee status since it is common for independent 
 
         contractors to be paid as the work progresses based upon the 
 
         percentage of the entire project that has been completed.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              Roofing work is part of the regular business of Larry 
 
         Hackett Construction, Inc.  This fact is evidence of an 
 
         employer-employee relationship.
 
         
 
              It appears that it was intended by Hackett that Tait be an 
 
         independent contractor.  Tait's own testimony is not particularly 
 
         strong since he apparently started work without filling out any 
 
         tax withholding forms or completing any other types of
 
         
 
         
 
         
 
         TAIT V. LARRY HACKETT CONSTRUCTION, INC.
 
         Page  5
 
         
 
         
 
         documents or procedures which are commonly completed when an 
 
         employee is hired by an employer.
 
         
 
              Work in the construction industry is  commonly  performed by 
 
         independent contractors, rather than employees.  As indicated by 
 
         Hackett, they are often faster and less expensive due to their 
 
         specialized skills.  It is common for subcontractors to cooperate 
 
         with and assist each other since they sometimes have a continuing 
 
         relationship and may work together on a series of jobs, despite 
 
         the fact that they are independent.  When a general contractor is 
 
         satisfied with the price and quality of work performed by a 
 
         subcontractor, that general contractor will often seek to have 
 
         that same subcontractor perform other jobs.  The goal of any 
 
         general contractor is to complete the job in a proper manner, in 
 
         a reasonable amount of time, and at a minimum of cost.  The fact 
 
         that he uses the same independent contractor on more than one 
 
         project does not create an employer-employee relationship.
 
         
 
              When all the appropriate factors are considered, it is 
 
         determined that Michael Jon Tait was an independent contractor 
 
         when he performed roofing services on the D'Angelo project for 
 
         Larry Hackett Construction, Inc.
 
         
 
                                 FINDINGS OF FACT
 
                                        
 
              1. The work which Tait was to perform for Hackett was a 
 
         certain piece of work for which there was a fixed price.
 
         
 
              2. Tait held himself out to be a roofing contractor.
 
         
 
              3. Tait had the right to employ assistance without 
 
         consulting
 
         Hackett.
 
         
 
              4. Tait was responsible to furnish his own tools.
 
         
 
              5. Tait had the right to control his days and hours of work, 
 
         within the limits imposed by the property owner and Hackett for 
 
         prompt performance.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              6. Tait was employed for a single project, although there 
 
         was a possibility of other projects in the future.
 
         
 
              7.Tait was paid by the job, rather than by the hour.
 
         
 
              8. The work of roofing is part of the regular business of 
 
         Larry Hackett Construction, Inc.
 
         
 
              9. Hackett intended to employ aft independent contractor to 
 
         perform the roofing on the D'Angelo project.
 
         
 
              10.Tait's intent at the onset of the D'Angelo project is 
 
         unclear.
 
         
 
         
 
         
 
         TAIT V. LARRY HACKETT CONSTRUCTION, INC.
 
         Page 6
 
         
 
         
 
              11. Roofing work is commonly performed by independent 
 
         contractors in the construction industry.
 
         
 
                                CONCLUSIONS OF LAW
 
                                        
 
              1. This agency has jurisdiction of the subject matter of 
 
         this proceeding and its parties.
 
         
 
              2. Michael Jon Tait was an independent contractor for Larry 
 
         Hackett Construction, Inc., at the time he fell from the D'Angelo 
 
         roof.
 
         
 
              3. Since Tait was an independent contractor, he is not 
 
         entitled to any recovery under the Iowa workers' compensation 
 
         laws.
 
         
 
                                      ORDER
 
                                        
 
              IT IS THEREFORE ORDERED that Michael Jon Tait take nothing 
 
         from this proceeding.
 
         
 
              IT IS FURTHER ORDERED that the costs of this action are 
 
         assessed against claimant pursuant to Division of Industrial 
 
         Services Rule 343-4.33.
 
         
 
              Signed and filed this 28th day of June, 1989.
 
         
 
         
 
         
 
         
 
         
 
         
 
                                         MICHAEL G. TRIER
 
                                         DEPUTY INDUSTRIAL COMMISSIONER
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
         Copies To:
 
         
 
         Mr. James A. Pratt
 
         Attorney at Law
 
         508 South 8th Street
 
         Council Bluffs, Iowa 51501
 
         
 
         Mr. Robert C. Landess
 
         Attorney at Law
 
         Suite 111, Terrace Center
 
         2700 Grand Avenue
 
         Des Moines, Iowa 50312
 
         
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
 
         
 
 
 
 
 
 
 
 
 
 
 
                                                   51504
 
                                                 Filed June 28, 1989
 
                                                 MICHAEL G. TRIER
 
         
 
                        BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         MICHAEL JON TAIT,
 
          
 
               Claimant,
 
          
 
          VS.                               File No. 853624
 
          
 
          LARRY HACKETT CONSTRUCTION, INC.,:                     A R B I T R A T I 0 N
 
          
 
               Employer,                    D E C I S I 0 N
 
          
 
          and
 
          
 
          GRINNELL MUTUAL INSURANCE CO.,
 
          
 
               Insurance Carrier,
 
               Defendants.
 
         
 
         
 
         51504
 
         
 
              Claimant, who had held himself out to be an independent 
 
         roofing contractor, was determined to be an independent 
 
         contractor and benefits were denied.
 
         
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
 
         
 
 
 
 
 
 
 
 
 
 
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         MARK A. YOUNKER,
 
         
 
              Claimant,                                File No. 853628
 
         
 
         vs.                                        A R B I T R A T I O N
 
         
 
         OAKVIEW CONSTRUCTION CO.,                     D E C I S I O N
 
         
 
              Employer,
 
                                                          F I L E D
 
         and
 
                                                         APR 19 1990
 
         IOWA CONTRACTORS WORKERS'
 
         COMPENSATION GROUP,                         INDUSTRIAL SERVICES
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
                                   INTRODUCTION
 
         
 
              This is a proceeding in arbitration brought by Mark A. 
 
         Younker against his former employer Oakview Construction Company 
 
         and its insurance carrier the Iowa Contractors Workers' 
 
         Compensation Group.
 
         
 
              The case was heard and fully submitted at Council Bluffs, 
 
         Iowa on October 2, 1989.  The record in the proceeding consists 
 
         of jointly offered exhibits 1 through 12, claimant's exhibit C, 
 
         and testimony from Mark A. Younker, Michael O'Brien, Steven 
 
         Herrick, Gary Shannon and Kim Haas.
 
         
 
                                      ISSUES
 
         
 
              The issues identified by the parties for determination are 
 
         whether claimant sustained an injury on or about October 9, 1985 
 
         which arose out of and in the course of his employment; 
 
         determination of the date of occurrence of the alleged injury; 
 
         determination of claimant's entitlement, if any, to compensation 
 
         for temporary total disability or healing period for the time 
 
         running from October 12, 1985 to October 22, 1985; and, 
 
         determination of claimant's entitlement to compensation for 
 
         permanent partial disability which was proximately caused by the 
 
         alleged injury.  The weekly rate of compensation was stipulated 
 
         to be $374.40.  Claimant.seeks to recover medical benefits under 
 
         Iowa Code section 85.27.
 
         
 
              Defendants rely upon affirmative defenses of lack of notice 
 
         under Iowa Code section 85.23 and lack of timely commencement of 
 
         the action under Iowa Code section 85.26(1).  Defendants also 
 
         seek credit under Iowa Code section 85.38(2).
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
                               SUMMARY OF EVIDENCE
 
         
 
              All the evidence referred to in the Introduction, as well as 
 
         the demeanor of those who testified at hearing, was considered 
 
         when deciding this case.  The lack of a reference to any 
 
         particular part of the record does not indicate that it was 
 
         overlooked.  Many of the underlying facts in the case are not in 
 
         serious dispute.  The following paragraphs are taken from 
 
         claimant's trial brief with certain modifications deemed 
 
         appropriate by the undersigned.
 
         
 
              Mark A. Younker is 41 years of age.  He is married to Ann 
 
         Younker, age 36.  They have two children, Christopher, age 17, 
 
         and Holly, age 14.
 
         
 
              Mark was born with cerebral palsy.  This condition affects 
 
         his upper and lower extremities.  The cerebral palsy is not 
 
         progressive.  His medical condition resulting from the disease of 
 
         cerebral palsy has not changed appreciably since the time of his 
 
         birth.
 
         
 
              In addition to suffering from cerebral palsy, Mark had a 
 
         preexisting congenital defect in his left hip.  Mark had his 
 
         first surgery relative to the left hip condition in approximately 
 
         1957 (age 10 years) when he was operated on by William R. Hamsa, 
 
         Sr., M.D.  This operation was to release muscles in the area of 
 
         the left hip.  Because of his cerebral palsy, Mark's muscles from 
 
         time to time spasm.  These spasms aggravated the congenital 
 
         problem with his left hip.  In 1960, Dr. Hamsa did surgery on the 
 
         left hip in an attempt to rebuild the hip joint and socket.  This 
 
         surgery was not a complete success.  Mark has progressive 
 
         degenerative arthritis in the hip.
 
         
 
              Although Mark has suffered from cerebral palsy as well as a 
 
         congenital left hip condition, he was pain free and led a 
 
         relatively normal life.  He attended high school.  He completed a 
 
         two-year course in trade school.  He has held several different 
 
         jobs on a full-time basis and supported his family.
 
         
 
              In 1979, Mark went to work for Oakview Construction company 
 
         as an estimator.  He walked on crutches at the time, however, he 
 
         was very mobile and able to perform all the duties required of 
 
         him.  At the time of Mark's hire, Oakview was a small southwest 
 
         Iowa construction firm.  Mark was hired to do estimating work 
 
         from the company's offices in Red Oak, Iowa.  Approximately two 
 
         years after going to work for Oakview Construction Company, the 
 
         scope of Oakview's business changed.  Mark was then required to 
 
         travel throughout the United States.  Mark developed pain in the 
 
         hip during the summer of 1985.  The pain became severe in late 
 
         August of 1985.  Mark took accumulated vacation time around Labor 
 
         Day assuming that a little rest would alleviate the pain.  Mark 
 
         had experienced a minor episode of similar pain approximately 12 
 
         years earlier in 1973.  The pain did not reoccur until the latter 
 
         part of August, 1985, some 12 years later.
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
              The pain in Mark's left hip did not subside on this occasion 
 
         so on October 3, 1985, he sought the assistance of a doctor.  He 
 
         was examined by Dwight W. Burney, Jr., M.D., who suggested that 
 
         he go into the hospital on October 9, 1985, under the care and 
 
         supervision of Dr. Burney's partner, William R. Hamsa, Jr., M.D.
 
         
 
              Mark was admitted to Clarkson Hospital from October 9, 1985 
 
         through October 12, 1985.  He was discharged on October 12 
 
         somewhat improved, but still in pain.  William R. Hamsa, Jr., 
 
         M.D., Mark's treating physician, related that it was advisable 
 
         for Mark to limit his travel, limit his walking, and purchase and 
 
         use a wheelchair.  Mark stated that on the last day of 
 
         hospitalization Dr. Hamsa advised him that his work activities 
 
         were the cause of his pain.
 
         
 
              Mark remained off work until approximately October 22, 1985. 
 
         When he returned to work he visited with his immediate 
 
         supervisor, Gary Shannon, and told him that he needed to limit 
 
         his travel and obtain a wheelchair.  At that point, Mr. Shannon 
 
         agreed that the company would pay for an electric wheelchair and 
 
         he agreed to limit Mark's travel schedule.
 
         
 
              Mark Younker has been confined to a wheelchair since the 
 
         latter part of October, 1985.  He continues to be in pain on a 
 
         daily basis.  He was fired by Oakview Construction Company in 
 
         August of 1987.  He had difficulty finding subsequent employment; 
 
         however, he is now employed and has been employed since August 1, 
 
         1988, with a small construction company, KAT Construction, 
 
         located in Omaha, Nebraska.
 
         
 
              Mark Younker is likely to require surgery at some point in 
 
         the future as his condition further deteriorates.  The surgery 
 
         will be very risky and its chances of success are not good.
 
         
 
                           APPLICABLE LAW AND ANALYSIS
 
         
 
              The burden of proving that a claim is barred by section 
 
         85.23 or section 85.26 rests on the employer.  Mefferd v. Ed 
 
         Miller & Sons, Inc., 33rd Biennial Report of the Industrial 
 
         Commissioner 191 (App. Decn. 1977); Smith v. French & Hecht, file 
 
         number 750419 (App. Decn. August 23, 1988).
 
         
 
              Section 85.23 of The Code of Iowa requires an employee to 
 
         give notice of the occurrence of an injury to the employer within 
 
         ninety days from the date of the occurrence, unless the employer 
 
         has actual knowledge of the occurrence of the injury.  The time 
 
         period for giving notice does not begin to run until the 
 
         claimant, as a reasonable man, should recognize the nature, 
 
         seriousness and probable compensable character of his injury.  
 
         Robinson v. Dept of Transp., 296 N.W.2d 809, 812 (Iowa 1980).  
 
         The "actual knowledge" exception to the requirement that the 
 
         employee give notice was refined in Robinson.  Robinson provided 
 
         that it is not necessary for there to be a physician's diagnosis 
 
         which relates the physical ailment to the employment.  It further 
 
         provided that legal advice from an attorney to the effect that 
 
         the injury may be covered by Chapter 85 of The Code is not 
 
         necessary.  The correct test for determining when the requirement 
 
         to give notice arises is that the employee must have some 
 
         understanding of the nature of the medical problem, the employee 
 
         must have reason to believe that the medical problem is in some 
 
         manner a result of the employment, and the employee must have 
 
         reason to believe that the ailment is sufficiently serious to 
 
         disable the employee from performing his normal work.  Since the 
 
         theory of recovery in this case is one of cumulative trauma, the 
 
         onset of disability is the appropriate standard for holding tho 
 
         employee to have realized the seriousness of the condition.  
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         McKeever Custom Cabinets v. Smith, 379 N.W.2d 368 (Iowa 1985).  
 
         Claimant certainly knew the condition was serious on October 3, 
 
         1985 when Dr. Burney recommended that he enter the hospital.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              Claimant's alleged injury date is October 9, 1985.  The date 
 
         alleged is consistent with his admission to Bishop Clarkson 
 
         Memorial Hospital where he remained until October 12, 1985 
 
         (exhibit 3, pages 5-7).  Claimant had initially sought medical 
 
         treatment on October 3, 1985 for his hip problem.  Claimant 
 
         stated that he had taken time off from work around Labor Day, 
 
         1985, in order to rest the hip.  He had also taken off work in 
 
         September, 1985 at the request of his supervisor and also to rest 
 
         his hip. Claimant's testimony that he took time off work in order 
 
         to rest the hip clearly establishes that he believed that the 
 
         pain in his hip which he had been experiencing over the summer of 
 
         1985 was related to his employment activities.  The notes of the 
 
         October 3, 1985 medical appointment indicate that claimant was 
 
         off work primarily due to pain.  It appears as though the doctor 
 
         considered him to be disabled from his employment at that time, 
 
         even though no specific statement regarding disability appears in 
 
         the notes. When claimant applied for group disability benefits, 
 
         he indicated that the date of commencement of disability was 
 
         September 25, 1985 (exhibit 7).  When applying for disability and 
 
         medical insurance benefits, it was indicated that the physical 
 
         condition was not related to claimant's employment (exhibits 7 
 
         and 8).
 
         
 
              The actual knowledge exception avoids the necessity of 
 
         giving notice when the employer, as a reasonably conscientious 
 
         manager, becomes aware of facts which connect the injury to the 
 
         employment. Merely being aware of the claimant's affliction does 
 
         not satisfy the actual knowledge criteria.  Robinson v. Dept of 
 
         Transp., 296 N.W.2d 809, 811 (Iowa 1980).  Claimant stated that 
 
         he told Gary Shannon, his supervisor, that the work was 
 
         aggravating his condition and that he needed to restrict travel 
 
         and obtain a wheelchair.  Shannon acknowledged that claimant had 
 
         told him that he needed to restrict his travel and obtain a 
 
         wheelchair, but he did not acknowledge being told by claimant 
 
         that the work had caused a worsening of his condition.  Claimant 
 
         had the hip condition at all times during which he had been 
 
         employed by Oakview Construction and supervised by Shannon.  
 
         Shannon had previously offered a wheelchair to claimant, but 
 
         claimant had declined.  Kim Haas, a coemployee with whom claimant 
 
         confided, testified that claimant never asserted in her presence 
 
         that the work had worsened his condition.  Neither of the other 
 
         witnesses recalled claimant ever asserting that his employment 
 
         had worsened his preexisting condition.
 
         
 
              It is therefore determined that Mark A. Younker knew the 
 
         nature, seriousness and probable compensable character of his 
 
         condition on October 3, 1985.  The.condition caused disability 
 
         prior to October 3, 1985.  Based upon exhibit 7, it is determined 
 
         that the disability actually commenced September 25, 1985.  The 
 
         fact that claimant was in a vacation status does not change the 
 
         date that the disability commenced or the time at which the 
 
         requirement to give notice arose.  It is therefore concluded that 
 
         claimant's obligation to give notice of injury under Code section 
 
         85.23 arose on.October 3, 1985, the date the final element of the 
 
         serious nature of the condition was disclosed by Dr. Burney's 
 
         recommendation for hospitalization.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              The testimony from Gary Shannon, Kim Haas, Michael O'Brien 
 
         and Steven Herrick fails to give any indication that claimant had 
 
         informed his supervisor, or even any coemployees, that he 
 
         believed his condition or its worsening was a result of his 
 
         employment activities.  Their testimony in that regard is given 
 
         greater weight than the claimant's testimony.  In view of 
 
         claimant's long-standing condition and the lack of any known or 
 
         identified trauma, the employer cannot be held to have actual 
 
         knowledge which would relieve claimant from the obligation to 
 
         give notice.  Notice was not given until this action was 
 
         commenced in October, 1987.
 
         
 
              It is therefore found and concluded that Mark A. Younker 
 
         failed to give notice of the occurrence of injury within ninety 
 
         days from the occurrence and that his claim is therefore barred 
 
         by the provisions of Code section 85.23.  The result is the same 
 
         regardless of whether the date of occurrence is fixed at 
 
         September 25, 1985, October 3, 1985, or even as late as October 
 
         16, 1985.
 
         
 
              Although the previous ruling would dispose of this case, it 
 
         should be noted that claimant's petition was filed on October 9, 
 
         1987.  Accordingly, any date of injury which is fixed at October 
 
         9, 1985 or any subsequent date would make the commencement of the 
 
         action timely under Code section 85.26.  Any earlier date, 
 
         however, would likewise result in a bar of the claim.  The 
 
         previous findings as to the date of occurrence of injury are 
 
         applicable for determining the section 85.26 issue.  The actual 
 
         date of occurrence under the discovery rule and cumulative trauma 
 
         rule is found to be October 3, 1985 since claimant was disabled 
 
         at that time, knew his condition to be serious, and believed it 
 
         to be related to his employment activities.  He has always been 
 
         aware of the nature of his condition.  If the claim were not 
 
         barred by Code section 85.23, it would be barred by section 
 
         85.26.
 
         
 
              This is a claim based upon a theory of cumulative trauma 
 
         injury.  That theory has not been completely refined as it 
 
         relates to those situations where injury results from normal, 
 
         non-traumatic activities being imposed upon a very fragile 
 
         preexisting condition.  This case is one in which the employment 
 
         trauma is miniscule.  It certainly does not exceed the degree of 
 
         trauma experienced in normal nonemployment life of even the most 
 
         sedentary individuals.  Claimant is afflicted with a condition 
 
         which his treating physician has characterized as one which would 
 
         be progressive despite the activities in which claimant engaged. 
 
         Even if considered on the merits, this claim would be quite 
 
         tenuous.
 
         
 
                                 FINDINGS OF FACT
 
         
 
              1.  Mark A. Younker did not give Oakview Construction 
 
         Company any notice that he claimed the change in his hip 
 
         condition which occurred during the summer and fall of 1985 was a 
 
         result of his work activities until the time he commenced this 
 
         action in October, 1987.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              2.  Mark A. Younker believed in September of 1985 that his 
 
         work activities were aggravating his preexisting hip condition.
 
         
 
              3.  Claimant knew the nature of his hip condition and 
 
         increased symptoms during September 1985 and at all times 
 
         subsequent thereto.
 
         
 
              4.  Mark A. Younker was disabled by the hip condition 
 
         commencing on September 25, 1985.  He knew the condition was 
 
         serious on October 3, 1985 when Dr. Burney recommended that he 
 
         enter the hospital.
 
         
 
              5.  The date of occurrence of injury under the discovery 
 
         rule is October 3, 1985.
 
         
 
              6.  Mark A. Younker did not tell his employer that the 
 
         change in his hip condition was a result of his work activities 
 
         although he did tell the employer that he needed to restrict his 
 
         travel and obtain a wheelchair due to his hip condition.
 
         
 
              7.  Where Younker's hip condition was well known to the 
 
         employer, of long-standing origin and generally perceived as a 
 
         preexisting condition, there was no basis for the employer, as a 
 
         reasonably conscientious manager, to recognize the potential for 
 
         a workers' compensation claim since there was no known trauma to 
 
         claimant or his hip other than the normal activities of the 
 
         employment which would generally not be considered to be 
 
         traumatic and since claimant had expressly denied any employment 
 
         connection on the group insurance forms.
 
         
 
              8.  The employer did not have actual knowledge of the 
 
         occurrence of the alleged injury.
 
         
 
                                CONCLUSIONS OF LAW
 
         
 
              1.  This agency has jurisdiction of the subject matter of 
 
         this proceeding and its parties.
 
         
 
              2.  Mark A. Younker's claim is barred by the provisions of 
 
         Iowa Code section 85.23 regardless of whether the date of 
 
         occurrence of injury is fixed at September 25, 1985, October 3, 
 
         1985, or October 16, 1985.
 
         
 
                                      ORDER
 
         
 
              IT IS THEREFORE ORDERED that claimant take nothing from this 
 
         proceeding.
 
         
 
              IT IS FURTHER ORDERED that the costs of this action are 
 
         assessed against claimant pursuant to Division of Industrial 
 
         Services Rule 343-4.33.
 
         
 
              Signed and filed this 19th day of April, 1990.
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
         
 
         
 
         
 
         
 
         
 
                                            MICHAEL G. TRIER
 
                                            DEPUTY INDUSTRIAL COMMISSIONER
 
         
 
         Copies To:
 
         
 
         Mr. Roger Sawatzke
 
         Attorney at Law
 
         25 Main Place, Suite 200
 
         P.O. Box 248
 
         Council Bluffs, Iowa  51502-0248
 
         
 
         Mr. John A. Templer, Jr.
 
         Ms. Ann M. Ver Heul
 
         Attorneys at Law
 
         3737 Woodland, Suite 437
 
         W. Des Moines, Iowa  50265
 
         
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
 
                                            
 
 
 
 
 
 
 
 
 
 
 
                                            2401, 2802
 
                                            Filed April 19, 1990
 
                                            MICHAEL G. TRIER
 
         
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         MARK A. YOUNKER,
 
         
 
              Claimant,
 
         
 
         vs.
 
                                                   File No. 853628
 
         OAKVIEW CONSTRUCTION CO.,
 
                                                 A R B I T R A T I 0 N
 
              Employer,
 
                                                   D E C I S I 0 N
 
         and
 
         
 
         IOWA CONTRACTORS WORKERS'
 
         COMPENSATION GROUP,
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
         2401, 2802
 
         
 
              It was found that claimant had failed to give timely 
 
         notice of injury and that the employer did not have actual 
 
         knowledge. The claim was barred.
 
         
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
 
            
 
 
 
 
 
 
 
 
 
 
 
            before the iowa industrial commissioner
 
            ____________________________________________________________
 
                      :
 
            KEVIN L. BARKLEY,   :
 
                      :
 
                 Claimant, :      File No. 853629
 
                      :
 
            vs.       :        A P P E A L
 
                      :
 
            STONER FARMS,  :      D E C I S I O N
 
                      :
 
                 Employer, :
 
                 Defendant.     :
 
            ___________________________________________________________
 
            The record before the deputy has been reviewed de novo on 
 
            appeal.  The decision of the deputy filed June 14, 1990, 
 
            which denied claimant's motion to set aside dismissal is 
 
            affirmed and is adopted as the final agency action in this 
 
            case.
 
            Claimant shall pay the costs of this proceeding.
 
            Signed and filed this ____ day of November, 1990.
 
            
 
            
 
            
 
                      ________________________________
 
                               CLAIR R. CRAMER
 
                       ACTING INDUSTRIAL COMMISSIONER
 
            
 
            Copies To:
 
            
 
            Mr. Keith Ferguson
 
            Attorney at Law
 
            P.O. Box 67
 
            35 South Main
 
            Dayton, Iowa 50530
 
            
 
            Mr. Robert Holliday
 
            Attorney at Law
 
            2910 Grand Avenue
 
            Des Moines, Iowa 50312
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
            9998
 
            Filed November 29, 1990
 
            HJW
 
            Clair R. Cramer
 
            before the iowa industrial commissioner
 
            ____________________________________________________________
 
                      :
 
            KEVIN L. BARKLEY,   :
 
                      :
 
                 Claimant, :      File No. 853629
 
                      :
 
            vs.       :        A P P E A L
 
                      :
 
            STONER FARMS,  :      D E C I S I O N
 
                      :
 
                 Employer, :
 
                 Defendant.     :
 
            ___________________________________________________________
 
            
 
            9998
 
            
 
                 Summary affirmance of deputy's decision filed June 14, 
 
            1990.
 
            
 
 
            
 
            Page   1
 
            
 
            
 
            
 
            
 
            before the iowa industrial commissioner
 
            ____________________________________________________________
 
            _____
 
                                          :
 
            ORLA JANE SMITH,              :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :      File Nos. 853642/773001
 
            FLEETGUARD, INC.,             :
 
                                          :            A P P E A L
 
                 Employer,                :
 
                                          :          D E C I S I O N
 
            and                           :
 
                                          :
 
            LIBERTY MUTUAL INSURANCE      :
 
            COMPANY,                      :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ____________________________________________________________
 
            _____
 
            The record, including the transcript of the hearing before 
 
            the deputy and all exhibits admitted into the record, has 
 
            been reviewed de novo on appeal.  The decision of the deputy 
 
            filed September 10, 1990 is affirmed and is adopted as the 
 
            final agency action in this case with the following 
 
            additional analysis:
 
            Claimant has clearly suffered a change of condition since 
 
            the prior award of benefits.  Claimant's condition has 
 
            worsened physically, as evidenced by medical testimony that 
 
            she cannot perform clerical work now.  At the time of the 
 
            prior award, it was contemplated that claimant could and 
 
            would perform clerical work.  Claimant has suffered a 
 
            physical change of condition since the prior award in that 
 
            her condition has worsened or has failed to improve as 
 
            anticipated.
 
            The testimony of the vocational rehabilitation expert was 
 
            properly admitted.  Although vocational rehabilitation 
 
            testimony that goes to claimant's condition and 
 
            employability at the time of an arbitration decision cannot 
 
            be admitted in a later review-reopening proceeding for the 
 
            purpose of redetermining the claimant's disability at the 
 
            time of the earlier award, such evidence can be admitted in 
 
            review-reopening for the limited purpose of showing a change 
 
            of condition or employability since the award.  Such 
 
            vocational rehabilitation evidence will not change the prior 
 
            determination of claimant's disability at the time of the 
 
            prior hearing; that has already been legally determined in 
 
            the prior arbitration decision.  But such testimony may shed 
 
            light on events and changes occurring since the prior award, 
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            which is the proper focus of a review-reopening proceeding.  
 
            The testimony of the vocational rehabilitation expert in 
 
            this case is viewed in that light and used for that purpose 
 
            only.
 
            In addition, it is noted that the vocational rehabilitation 
 
            assessment in this case was not actually performed until 
 
            after the prior hearing.  Certainly evidence coming into 
 
            existence after the prior award is not barred by an argument 
 
            that the assessment could have been conducted prior to the 
 
            hearing.  However, the weight to be given the evidence is 
 
            lessened by the fact that it was accumulated after the prior 
 
            determination.  The evidence is only relevant in 
 
            review-reopening to the extent it shows a change of 
 
            condition since the prior award.  If the vocational 
 
            rehabilitation assessment seeks to compare claimant's 
 
            present condition with her condition as the time of the 
 
            prior hearing, but the claimant did not begin working with 
 
            the expert until a point in time after the prior hearing, 
 
            the value of such evidence is diminished.  The expert's 
 
            statements as to claimant's employability at the time of the 
 
            prior hearing would not be based on actual knowledge of her 
 
            condition at that time, but would be based on an assessment 
 
            after the fact.  It is also noted that in this case, 
 
            claimant has shown a change of condition primarily by 
 
            medical, rather than vocational, evidence.  
 
            Defendants shall pay the costs of the appeal, including the 
 
            preparation of the hearing transcript.
 
            Signed and filed this ____ day of December, 1991.
 
            
 
            
 
            
 
            
 
                      ________________________________
 
                               BYRON K. ORTON
 
                          INDUSTRIAL COMMISSIONER
 
            
 
            Copies To:
 
            
 
            Mr. Robert S. Kinsey III
 
            Attorney at Law
 
            P.O. Box 679
 
            Mason City, Iowa 50401
 
            
 
            Mr. Tito Trevino
 
            Attorney at Law
 
            P.O. Box 1680
 
            Fort Dodge, Iowa 50501
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                          2905; 1805, 51501, 52700,51707
 
                                          Filed September 10, 1990
 
                                          Walter R. McManus, Jr.
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            ORLA JANE SMITH,              :
 
                                          :
 
                 Claimant,                :        File Nos. 853642
 
                                          :                  773001
 
            vs.                           :
 
                                          :
 
            FLEETGUARD, INC.,             :          R E V I E W
 
                                          :
 
                 Employer,                :        R E O P E N I N G
 
                                          :
 
            and                           :         D E C I S I O N
 
                                          :
 
            LIBERTY MUTUAL INSURANCE,     :
 
            COMPANY,                      :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
            2905
 
            On review-reopening claimant proved a nonphysical change of 
 
            condition.  There was some evidence of a physical change of 
 
            condition but the decision rests more solidly on the fact 
 
            there is a definite, proven nonphysical change of condition.  
 
            At the time of the first hearing, employer, doctor and 
 
            claimant all anticipated claimant would return to work and 
 
            perform clerical work.  At this hearing, it was established 
 
            she was unable to do so.  Her doctor, the treating 
 
            physician, and the only doctor to testify said she could not 
 
            do any work.  Claimant proved she did not recover as well as 
 
            anticipated.  A vocational rehabilitation specialist said 
 
            she was unemployable.  Defendants introduced no opposing 
 
            doctor or rehabilitation specialist.
 
            
 
            1804
 
            Claimant awarded permanent total disability.
 
            
 
            51501; 52700
 
            Claimant awarded medical benefits claimed and medical 
 
            mileage.  Claimant was not given a change of care order 
 
            because she did not prove it was reasonable by any medical 
 
            evidence.
 
            
 
            51707
 
            Claimant awarded costs requested.
 
            
 
 
         
 
 
 
 
 
 
 
 
 
 
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         SHELLY SEDLACEK,
 
          
 
               Claimant,
 
                                               File No. 853643
 
          VS.
 
                                            A R B I T R A T I 0 N
 
          ERIN, LTD. d/b/a
 
          GODFATHER'S PIZZA,                  D E C I S I 0 N
 
          
 
               Employer,
 
          
 
          and
 
          
 
          ST. PAUL GUARDIAN INSURANCE
 
          COMPANY,
 
          
 
               Insurance Carrier,
 
               Defendants.
 
         
 
         
 
         
 
                                   INTRODUCTION
 
                                        
 
              This is an arbitration proceeding brought by Shelly 
 
         Sedlacek, claimant, against Erin, Ltd. d/b/a Godfather's Pizza, 
 
         employer, and St. Paul Guardian Insurance Company, insurance 
 
         carrier, defendants.  The case was heard by the undersigned in 
 
         Council Bluffs, Iowa on April 3, 1989.
 
         
 
              The record consists,of the testimony of claimant.  The 
 
         record also consists of joint exhibits 1 to 18 inclusively.
 
         
 
                                      ISSUE
 
                                        
 
              As a result of the prehearing report and order submitted and 
 
         approved on April 3, 1989, the issue presented by the parties is:
 
         
 
              1. Whether claimant received an injury which arose out of 
 
         and in the course of employment.
 
         
 
                                   STIPULATIONS
 
                                        
 
              As a result of the prehearing report, the parties entered 
 
         into a number of stipulations.  They are as follows:
 
         
 
              1. The existence of an employer-employee relationship 
 
         between claimant and employer at the time of the alleged injury.
 
         
 
         
 
         
 
         SEDLACEK V. ERIN, LTD. d/b/a GODFATHER'S PIZZA
 
         Page 2
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
         
 
              2. That the alleged injury is a cause of temporary 
 
         disability during a period of recovery.
 
         
 
              That the injury is a cause of permanent disability.
 
         
 
              3. The extent of entitlement to weekly compensation for 
 
         temporary total disability or healing period, if defendant is 
 
         liable for the injury, is stipulated to be from July 6, 1986 to 
 
         July 13, 1986 = 1 week and from June 11, 1987 to July 20, 1987 = 
 
         5.571 weeks.
 
         
 
              4. The extent of entitlement to weekly compensation for 
 
         permanent disability, if defendant is liable for injury, is 
 
         stipulated to be 22 weeks for a 10 percent loss of use of the 
 
         right leg.
 
         
 
              The commencement date for permanent partial disability, in 
 
         the event such benefits are awarded, is stipulated to be the 21st 
 
         day of July, 1987.
 
         
 
              5. In the event of an award of weekly benefit's, the rate of 
 
         weekly compensation is stipulated to be $57.25 per week.
 
         
 
                                 FACTS PRESENTED
 
                                        
 
              Claimant testified she was hired as a part-time cashier and 
 
         counter person on May 6, 1986.  Claimant reported her job duties 
 
         included collecting the money for goods and guarding the money in 
 
         the cash register.  When claimant was not assisting customers, 
 
         she stated she stood around in the restaurant and visited with 
 
         co-employees.  Claimant also testified employees of the 
 
         restaurant were allowed to make and receive personal calls during 
 
         business hours.
 
         
 
              On the evening of July 5, 1986, claimant testified she was 
 
         scheduled to work from 5:00 p.m. to 1:00 a.m.  On that date, the 
 
         owner of the restaurant, Mr. Michael O'Hara was not present on 
 
         the premises.  However, Ms. Linda Aldredge was working as the 
 
         night manager.  Also working with claimant was Ms. Jeannie 
 
         O'Donnell, a co-employee hired as a cashier.
 
         
 
              Claimant stated that at approximately 7:00 p.m., she, 
 
         Aldredge and O'Donnell heard over the radio there was a forecast 
 
         of hail.  According to claimant, she and Ms. Aldredge desired to 
 
         move their cars from the "west parking lot" where employees 
 
         usually parked their vehicles, to the "carport" behind the 
 
         building where employees, usually managers, occasionally parked 
 
         their cars.
 
         
 
              Claimant testified no employee clocked out while the 
 
         employees left the building to move the cars, and that under 
 
         normal circumstances the cars could have been moved within five 
 
         or ten minutes.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
         
 
         
 
         SEDLACEK V. ERIN, LTD. d/b/a GODFATHER'S PIZZA
 
         Page 3
 
         
 
         
 
         The time frame involved, according to claimant, was about the 
 
         same time as it would take to use the restroom.
 
         
 
              Claimant stated she moved her car under the awning of the 
 
         "carport." Claimant then stood east of her car on the right side.  
 
         She began to direct Ms. Aldredge who was driving her car 
 
         underneath the awning.  Claimant stated, she was using hand 
 
         signals and attending to the task when Ms. O'Donnell hollered, 
 
         there was a telephone call for claimant.  Claimant reported her 
 
         attention was diverted for a moment and that Ms. Aldredge's car 
 
         hit claimant on the right knee and trapped claimant between the 
 
         two vehicles.  Ms. Aldredge moved her vehicle.  Claimant reported 
 
         her knee became numb and when Ms. Aldredge moved her vehicle, 
 
         claimant fell to the ground.  Claimant testified Ms. Aldredge 
 
         jumped from her car, began kicking claimant lightly, and 
 
         laughingly said, "Get up or I'll think I hit you."
 
         
 
              Claimant reported about an hour after the incident, she 
 
         sought medical attention at the emergency room at the Jennie 
 
         Edmundson Memorial Hospital in Council Bluffs, Iowa.
 
         
 
              Ms. Linda Aldredge testified by way of deposition.  She 
 
         described the incident in question in substantially the same 
 
         detail as did claimant.  Ms. Aldredge also testified she believed 
 
         there was another car parked in front of claimant's vehicle.  Ms. 
 
         Aldredge stated she believed the car belonged to Ms. O'Donnell.
 
         
 
              Ms. Aldredge testified that prior to the incident on the 
 
         fifth of July, she had seen other employees park their vehicles 
 
         directly behind the building.  Ms. Aldredge testified that if 
 
         employees had purchased new cars or if employees had driven 
 
         motorcycles, the employees would park the vehicles directly 
 
         behind the building.  Ms. Aldredge, in her deposition, referred 
 
         to the area directly behind the building as a carport.  She 
 
         stated she had previously parked her car under the carport when 
 
         it had stormed.
 
         
 
              Additionally, Ms. Aldredge testified hourly employees did 
 
         not need to "go off the clock" when the employees wanted to leave 
 
         the premises to pick up fast food at other establishments.  Ms. 
 
         Aldredge also testified that it was permitted conduct for 
 
         employees to leave the dining room, to get their cars parked on 
 
         the west lot, and to move the cars to the carport while the 
 
         employees were working.
 
         
 
              Ms. Aldredge also testified she never heard Mr. O'Hara ever 
 
         address the issue whether employees were allowed to park on the 
 
         carport.. Finally, Ms. Aldredge also stated there was an employee 
 
         policy handbook which covered rules, regulations, time cards, 
 
         etc.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
         
 
         
 
         SEDLACEK V. ERIN, LTD. d/b/a GODFATHER'S PIZZA 
 
         Page 4
 
         
 
         
 
              R.Michael Gross, M.D., the treating physician, opined the 
 
         following in his report of January 12, 1988:
 
         
 
              Shelly Sedlacek saw me on 7 July 1986.  She injured the 
 
              right knee on 5 July 1986 when she was bumped .by an 
 
              automobile.  Apparently, the right knee was trapped between 
 
              two cars.  The knee did swell and was quite painful.  Her 
 
              pain at that time was global but I thought that the knee was 
 
              stable and that she would respond with just conservative 
 
              measures.  She was given physical therapy, anti-inflammatory 
 
              medications and rest.  She improved but the problem waxed 
 
              and waned over the course of the next year.
 
              
 
              Ultimately in June 1987, she had the knee arthroscoped at 
 
              which time the diagnosis of a torn medial meniscus was made 
 
              and hypertrophied fat pad.  Both of these were dealt with.
 
              
 
              The postoperative course from that was really quite slow but 
 
              ultimately the patient recovered.  At the time of my last 
 
              evaluation on 4 November 1987, she was feeling quite well.  
 
              She had a full range of motion and good strength.  She did, 
 
              however, have a 5 percent permanent disability of the knee 
 
              associated with the injury and subsequent surgery.
 
              
 
              Dr. Gross later modified his opinion concerning claimant's 
 
         functional impairment.  He writes in his letter of May 3, 1988:
 
         
 
              Shelley [sic] Sedlacek had a chance to see me again on 27 
 
              April 1988.  Her knee still hurts her it still gives out.  
 
              The patient was doing well for a while and now her symptoms 
 
              are starting to come back.  The patient has retropatellar 
 
              discomfort.  She had a full range of motion, stable 
 
              ligaments, no effusion, pain over the anteromedial portion 
 
              of the knee but not acute.
 
              
 
              X-rays of the knee were normal.  MRI was ordered and failed 
 
              to reveal any avascular necrosis.
 
              
 
              In light of her poor result from the partial medial 
 
              meniscectomy, I feel that the patient does have a 10 percent 
 
              permanent disability of the right knee.
 
              
 
                           APPLICABLE LAW AND ANALYSIS
 
                                        
 
              An employee is entitled to compensation for any and all 
 
         personal injuries which arise out of and in the course of the 
 
         employment.  Section 85.3(l).
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         SEDLACEK V. ERIN, LTD. d/b/a GODFATHER'S PIZZA
 
         Page 5
 
         
 
         
 
              Claimant has the burden of proving by a preponderance of the 
 
         evidence that she received an injury on July 5, 1986, which arose 
 
         out of and in the course of her employment.  McDowell v.Town of 
 
         Clarksville, 241 N.W.2d 904 (Iowa 1976); Musselman v.Central 
 
         Telephone Co., 261 Iowa 352, 154 N.W.2d 128 (1967).
 
         
 
              The injury must both arise out of and be in the course of 
 
         the employment.  Crowe v. DeSoto Consol. Sch. Dist., 246 Iowa 
 
         402, 68 N.W.2d 63 (1955) and cases cited at pp. 405-406 of the 
 
         Iowa Report.  See also Sister Mary Benedict v. St. Mary's 
 
         Corp., 255 Iowa 847, 124 N.W.2d 548 (1963) and Hansen v. State of 
 
         Iowa, 249 Iowa 1147, 91 N.W.2d 555 (1958).
 
         
 
              The words "out of" refer to the cause or source of the 
 
         injury.  Crowe, 246 Iowa 402, 68 N.W.2d 63 (1955).
 
         
 
              The words "in the course of" refer to the time and place and 
 
         circumstances of the injury.  McClure v. Union et al.  Counties, 
 
         188 N.W.2d 283 (Iowa 1971); Crowe, 246 Iowa 402, 68.N.W.2d 63 
 
         (1955).
 
         
 
              "An injury occurs in the course of the employment when it is 
 
         within the period of employment at a place the employee may 
 
         reasonably be, and while he is doing his work or something 
 
         incidental to it."  Cedar Rapids Comm. Sch.  Dist. v. 
 
         Cady, 278 N.W.2d 298 (Iowa 1979); McClure, 188 N.W.2d 283 (Iowa 
 
         1971); Musselman, 261 Iowa 352, 154 N.W.2d 128 (1967).
 
         
 
              Claimant requests benefits for her knee injury.  Defendants 
 
         maintain the injury is not compensable.  According to defendants' 
 
         position, "claimant was doing nothing to further the employer's 
 
         business." Therefore, the injury is not covered by workers' 
 
         compensation.
 
         
 
              Whether an injury is in the course of employment is an issue 
 
         which is discussed in Chapter 6 of Lawyer & Higgs, Iowa Workers' 
 
         Compensation -- Law & Practice, Section 6-5, pages 43-44.  The 
 
         section provides that:
 
         
 
              Employees usually do not leave the course of their 
 
              employment by seeking personal comfort through such things 
 
              as smoking, using bathroom facilities or eating.  Some cases 
 
              in this category may entail consideration of whether an 
 
              employer prohibition against the activity exists.
 
              
 
              In Rish v. Iowa Portland Cement Co., claimant was injured 
 
              when he commenced.smoking while wearing a pair of overalls 
 
              that had dynamite caps in the pockets.  Although not finding 
 
              smoking a necessity, the Iowa Supreme Court recognized it as 
 
              a "quite universal
 
              
 

 
              
 
 
 
 
 
 
 
 
 
 
 
              
 
              
 
         SEDLACEK V. ERIN, LTD. d/b/a GODFATHER'S PIZZA 
 
         Page 6
 
         
 
         
 
              habit among workmen and an indulgence reasonably to be 
 
              anticipated by  employers.  Benefits were awarded.
 
              
 
              Reasonableness of the action of the employee was considered 
 
              in Sachleben v. Gjellefald Co. Claimant was working on a 
 
              sewer line near a railroad track when he went between two 
 
              cars to have a bowel movement.  The train started to move 
 
              and his legs were crushed.  Claimant's injury was 
 
              compensable.
 
              
 
              The situation at hand, is analagous to the situations 
 
         enumerated above.  Claimant was seeking personal comfort.  Here, 
 
         both claimant and her manager testified employee cars had been 
 
         parked on the "carport" on previous occasions.  Moreover, Ms. 
 
         Aldredge reported the area directly behind the building was 
 
         referred to as a "carport" rather than as a "patio." Ms. Aldredge 
 
         testified the owner, Mike O'Hara would have to have noticed 
 
         employee cars parked on the carport on previous occasions.  Ms. 
 
         Aldredge, the night manager, allowed claimant to move her 
 
         vehicle.  She was acting with at least apparent authority.  There 
 
         were no written rules prohibiting the activity.  Claimant 
 
         testified she was never verbally informed employees could not 
 
         park on the carport.  No signs were posted prohibiting employees 
 
         from parking there.
 
         
 
              Next, claimant testified the entire incident should not have 
 
         taken longer than the time to use the restroom.  Employees were 
 
         not required to "punch out," even when they left the premises to 
 
         purchase food for their lunch breaks.  It would not be 
 
         unreasonable for the employer to anticipate that employees would 
 
         occasionally move their vehicles from one portion of the premises 
 
         to the other.  Therefore, it is.,the determination of the 
 
         undersigned that claimant was in the course of her employment.  
 
         The injury arose out of claimant's employment.
 
         
 
              Since claimant was  within  the  course  of  her  
 
         employment, her injury is compensable.  Claimant is also entitled 
 
         to medical benefits under section 85.27. The parties have 
 
         stipulated that the fees charged for medical services or supplies 
 
         were stipulated to be fair and reasonable.  The parties further 
 
         stipulated that the provider of the services would testify that 
 
         the fees were reasonable and the defendants would not offer 
 
         contrary evidence: The parties additionally stipulated that the 
 
         causal connection of the expenses to treatment for a medical 
 
         condition upon which claimant was now basing his claim was 
 
         admitted but the causal connection of the condition to a work 
 
         injury remained an issue to be decided at the proceedings.
 
         
 
              The undersigned finds the.following medical expenses are 
 
         compensable under section 85.27:
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
         
 
         
 
         SEDLACEK V. ERIN,  LTD. d/b/a GODFATHER'S PIZZA
 
         Page 7
 
         
 
         
 
         Dr. R. Michael Gross            7-07-86        $   80.00
 
         Gross.Iwersen Kratochvil        7-29-86            15.00
 
           & Klein, P.C.                 5-12-87            95.00
 
         7710 Mercy Rd., Suite 500       5-22-87            15.00
 
         Omaha, NE 68124                 6-11-87         1,250.00
 
                                         6-17-87            15.00
 
                                         7-01-87            15.00
 
                                         7-15-87            35.00
 
                                         7-29-87            15.00
 
                                         8-26-87            15.00
 
                                         9-23-87            15.00
 
                                         11-04-87           15.00
 
                                                       $ 1,580 00
 
          
 
          Jennie Edmundson Hospital      7-05-86             122.05
 
          933 E. Pierce St.              7-08-86 -7-21-86    210.10
 
          Council Bluffs, IA             7-23-86 -7-25-86     61.40
 
                                         6-18-87 -7-10-87    529.00
 
                                         7-13-87 -7-22-87     88.75
 
                                         7-24-87 -8-19-87    362.50
 
                                         8-21-87 -9-01-87    176.25
 
                                         9-04-87 -9-23-87    270.00
 
                                         9-22-87 -9-25-87     78.50
 
                                         10-05-87-11-03-87    444.95
 
                                                           $2,343.50
 
          
 
          Bergan Outpatient Surgery      6-11-87           560.50
 
          Bergan Phys. Therapy Dept.     6-11-87             9.50
 
          P.O. Box 3612                                    570.00
 
         .Omaha, NE 68103
 
          
 
          Professional Anesthesia        6-11-87          270.00    270.00
 
          P.O. Box 3443
 
          Omaha, NE   68103
 
          
 
          Diagnostic Pathology           6-11-87           50.00     50.00
 
          P.O. Box 241127
 
          Omaha, NE   68124
 
          
 
          Magnetic Imaging Centre        4-28-88,         750.00    750.00
 
          7911 West Center Road
 
          Omaha, NE   68124
 
          
 
          Prescription Drugs             7-07-86.-8-26-87  82.64     
 
         82.64
 
          
 
          
 
                                                      TOTAL        
 
         $5,646.14
 

 
         
 
 
 
 
 
 
 
 
 
 
 
                                        
 
                                        
 
         SEDLACEK V. ERIN, LTD. d/b/a GODFATHER'S PIZZA
 
         Page 8
 
         
 
         
 
                     FINDINGS OF FACT AND CONCLUSIONS OF LAW
 
                                        
 
              WHEREFORE, based on the evidence presented and the 
 
         principles of law previously cited, the following findings of 
 
         fact and conclusions of law are made:
 
         
 
              FINDING 1. Claimant suffered an injury to her right knee on 
 
         July 5, 1986.
 
         
 
              CONCLUSION A. Claimant's injury arose out of and in the 
 
         course of her employment.
 
         
 
              FINDING 2. As a result of her work injury, claimant incurred 
 
         medical expenses.
 
         
 
              CONCLUSION B. The following medical expenses are compensable 
 
         under section 85.27:
 
         
 
         Dr. R. Michael Gross            7-07-86       $    80.00
 
          Gross, Iwersen, Kratochvil     7-29-86.           15.00
 
            & Klein, P.C.                5-12-87            95.00
 
          7710 Mercy Rd., Suite 500      5-22-87            15.00
 
          Omaha, NE 68124                6-11-87         1,250.00
 
                                         6-17-87            15.00
 
                                         7-01-87            15.00
 
                                         7-15-87            35.00
 
                                         7-29-87            15.00
 
                                         8-26-87            15.00
 
                                         9-23-87            15.00
 
                                         11-04-87           15.00
 
                                                                   
 
         $1,580.00
 
          
 
          Jennie Edmundson Hospital      7-05-86             122.05
 
          933 E. Pierce St.              7-08-86 -7-21-86    210.10
 
          Council Bluffs, IA             7-23-86 -7-25-86     61.40
 
                                         6-18-87 -7-10-87    529.00
 
                                         7-13-87 -7-22-87     88.75
 
                                         7-24-87 -8-19-87    362.50
 
                                         8-21-87 -9-01-87    176.25
 
                                         9-04-87 -9-23-87    270.00
 
                                         9-22-87 -9-25-87     78.50
 
                                         10-05-87-11-03-87   444.95
 
                                                                                                        
 
         $2,343.50
 
          
 
          Bergan  Outpatient   Surgery   6-11-87           560.50
 
          Bergan Phys. Therapy Dept.     6-11-87             9.50
 
          P.O. Box 3612                                                                
 
         .Omaha, NE 68103                                            
 
         570.00
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
         
 
         
 
         
 
          Professional Anesthesia        6-11-87                                                  
 
         270.00$         270.00
 
          P.O. Box 3443
 
          Omaha, NE  68103
 
                                        
 
                                        
 
         SEDLACEK V. ERIN, LTD. d/b/a GODFATHER'S PIZZA
 
         Page 9
 
         
 
         
 
         Diagnostic Pathology            6-11-87         50.00      $50.00
 
          P.O. Box 241127
 
          Omaha,  NE  68124
 
          
 
          Magnetic  Imaging Centre       4-28-88        750.00   $  750.00
 
          7911 West  Center Road
 
          Omaha,  NE  68124
 
          
 
          Prescription Drugs             7-07-86 -8-26-87  82.64   $ 
 
         82.64
 
          
 
          
 
                                         TOTAL                   $5,646.14
 
          
 
                                      ORDER
 
                                        
 
              THEREFORE, IT IS ORDERED:
 
         
 
              Defendants are to pay unto claimant six point five-seven-one 
 
         (6.571) weeks of healing period benefits at the stipulated rate 
 
         of fifty-seven and 25/100 dollars ($57.25) per week.
 
         
 
              Defendants are to also pay unto claimant twenty-two (22) 
 
         weeks of permanent partial disability benefits to claimant for a 
 
         ten percent (10%) loss of the use of the right leg at the 
 
         stipulated rate of fifty-seven and 25/100 dollars ($57.25) per 
 
         week.
 
         
 
              Defendants are to also pay medical expenses in the sum of 
 
         five thousand six hundred forty-six and 14/100 dollars 
 
         ($5,646.14).
 
         
 
              Defendants shall receive credit for benefits previously 
 
         paid.
 
         
 
              Benefits that have accrued are to be paid in a lump sum as 
 
         well as the statutory interest as provided by section 85.30.
 
         
 
              Defendants shall pay the costs of these proceedings pursuant 
 
         to Division of Industrial Services Rule 343-4.33 including costs 
 
         for:
 

 
         
 
 
 
 
 
 
 
 
 
 
 
          
 
               Dr. R. Michael Gross      $ 25.00
 
               Costs of deposition of
 
               Linda  L.  Aldredge-Blair  102.00
 
               and Associates
 
          
 
                                               $127.00
 
         
 
              Defendants shall file a claim activity report upon payment 
 
         of this award.
 
         
 
         
 
         
 
         SEDLACEK V. ERIN, LTD. d/b/a GODFATHER'S PIZZA
 
         Page 10
 
         
 
         
 
         Signed and filed this 20th day of April, 1989.
 
         
 
         
 
         
 
         
 
         
 
         
 
                                         MICHELLE A. McGOVERN
 
                                         DEPUTY INDUSTRIAL COMMISSIONER
 
         
 
         Copies To:
 
         
 
         Mr. W. Curtis Hewett
 
         Attorney at Law
 
         P. 0. Box 249
 
         Council Bluffs, Iowa  51502
 
         
 
         Mr. James E. Thorn
 
         Attorney at Law
 
         P. 0. Box 398
 
         Council Bluffs, Iowa 51502
 
         
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
 
         
 
 
 
 
 
 
 
 
 
 
 
                                                  1100; 1103
 
                                                 Filed April 20, 1989
 
                                                 MICHELLE A. McGOVERN
 
         
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         SHELLY SEDLACEK,
 
         
 
              Claimant,
 
                                                 File No. 853643
 
         
 
         VS.
 
                                                 A R B I T R A T I 0 N
 
         
 
         ERIN, LTD. d/b/a
 
         GODFATHER'S PIZZA,                       D E C I S I 0 N
 
         
 
              Employer,
 
         
 
         and
 
         
 
         ST. PAUL GUARDIAN INSURANCE COMPANY,
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
         
 
         1100; 1103
 
         
 
              Claimant's right leg was injured when she was struck by a 
 
         co-employee's automobile.  The two employees were moving their 
 
         personal vehicles from the regular employee parking lot to a 
 
         carport behind the employer's building.  The purpose for moving 
 
         the vehicles was for purely personal reasons.  Held: The injury 
 
         arose out of and in the course of the employee's employment.