BEFORE THE IOWA INDUSTRIAL COMMISSIONER ALICE WILLIAMS, JOSHUA WILLIAMS, JESSICA WILLIAMS, ZECHARIAH WILLIAMS, Claimants, File No. 861962 VS. A R B I T R A T I O N WILSON CERTIFIED EXPRESS, INC., D E C I S I O N Employer, Self-Insured, Defendant. STATEMENT OF THE CASE This is a proceeding in arbitration brought by Alice Williams, Joshua Williams, Jessica Williams and Zechariah Williams, wife and children of decedent Michael. Williams, against defendant self-insured employer Wilson Certified Express, Inc., to recover benefits under the Iowa Workers' Compensation Act as the result of the death of Michael Williams on June 18, 1986. This matter came on for hearing before the undersigned deputy industrial commissioner on April 4, 1989, in Sioux City, Iowa. The record in this case consists of the testimony of Alice Williams and Douglas McCall and joint exhibits A through K. ISSUES Pursuant to the prehearing report submitted April 4, 1989, the issues to be resolved include whether Michael Williams was an employee of Wilson Certified Express, Inc., at the time of his death and if so, the rate of compensation. REVIEW OF THE EVIDENCE Alice Williams testified that she was married to Michael Williams at the time of his death on June 18, 1986, and that Joshua, Jessica and Zechariah were children of the marriage, all dependent upon Mr. Williams. Ms. Williams testified further that her husband drove a truck for defendant and was compensated on the basis of approximately $300 per week plus $100 road expenses. She testified that decedent was paid in con-checks when Kenny Williams (Michael Williams' brother) received his payments from defendant. She agreed that the tractor driven by decedent was owned by Kenny Williams and leased to defendant. WILLIAMS V. WILSON CERTIFIED EXPRESS, INC. Page 2 Ms. Williams testified that decedent was dispatched by defendant and was on a trip from Kansas City to Arkansas, Des Moines and points unknown in the west at the time of his fatal accident. Ms. Williams testified that decedent started with Wilson Certified Express in October, 1985, and had a safety certification issued by defendant. Further, decedent had advised her that he took a test to obtain the certification. On cross-examination, Ms. Williams agreed that her husband received advances on the road that were credited against Kenny Williams' charges. She also agreed that the 1099 tax form issued to decedent to show his income originated from Kenny Williams. She agreed that Kenny Williams owns another tractor and for some time drove together with her husband as codrivers. Decedent was driving alone at the time of his death. Douglas McCall testified that he is defendant's controller and has been for three years. He maintains records of leasing operations. Mr. McCall testified that joint exhibit A (a contract between Kenneth Williams and defendant) was in effect at the time of decedent's death. Further, that defendant had no agreement with decedent personally. He agreed that the tractor was owned by Kenny Williams and driven by claimant. Mr. McCall testified that license plates were listed with defendant pursuant to Interstate Commerce Commission and various state requirements. The vehicle maintained numerous license plates and permits. For consistency in freighting, all vehicles leased to defendant are plated and registered through it, but this does not change ownership. In Iowa, defendant and Kenny Williams were each registered. Mr. McCall agreed that defendant maintains advertising on the sides of trucks leased to it. He testified that claimant drove the vehicle for Kenny Williams and was not employed by defendant. Mr. McCall further pointed out exhibit B indicated that decedent agreed he was not an employee of defendant. As to qualifications, Mr. McCall indicated that drivers are required to be qualified pursuant to Interstate Commerce Commission rules and that defendant "qualifies" drivers to guarantee that they will be suitable. Mr. McCall indicated that Kenneth Williams was paid a percentage of the revenue earned by his truck and that advances could be drawn on a given trip against the revenue due to the WILLIAMS V. WILSON CERTIFIED EXPRESS, INC. Page 3 owner. It was shown that way in accounting, where specific amounts known in advance to Kenny Williams could be advanced on a given trip. Drivers were not informed of this agreement unless authorized by owners. McCall testified that defendant makes no effort to control the actions of various drivers except in terms of guaranteeing that they are "qualified." This is understood by defendant to include a test scored by defendant, but otherwise simply documents that a given driver is legally qualified to drive. Mr. McCall testified that Kenny Williams had the ability to decline trips and that this was not a "forced dispatch" agreement. Backhauls are handled the same way, but defendant does attempt to arrange backhaul freight loads. Mr. McCall specified further that compensation was paid only to Kenny Williams and not at all to decedent, although advances on Kenny Williams' account could be made to drivers such as decedent. He also indicated that both Kenny Williams and decedent knew that defendant provided no workers' compensation insurance coverage. On cross-examination, Mr. McCall agreed that defendant has safety regulations and a department that qualifies and helps trains drivers and keeps drivers acquainted with policy or law changes. He agreed that contractors such as Kenny Williams worked on a 30-day cancellable but otherwise permanent lease and that defendant obtains license registration pursuant to the permanent lease. He also agreed that defendant carries liability and cargo insurance for freight. However, contractors are also expected to carry collision insurance, although it is not mandated. Bobtail or deadhead insurance can be obtained by defendant, but is deducted from revenues owed to contractors. McCall further testified that pursuant to contract, contractors such as Kenny Williams were required to maintain workers' compensation insurance, but in violation of the contract, Williams apparently did not. Mr. McCall also agreed that defendant does not itself own any tractors or trailers. Mr. McCall agreed that he had never met decedent or Kenny Williams. He also agreed that defendant requires logs to be kept by drivers, explaining that this is to avoid being fined by governmental agencies. He agreed that drivels must turn in logs, trip sheets and bills of lading in order for revenue to be released to the contractors. He agreed that drivers call in for available backloads, but could also find their own. If they do find their own, drivers are expected to have those loads approved by defendant for credit worthiness. Drivers are permitted to sign trip leases on defendant's behalf. WILLIAMS V. WILSON CERTIFIED EXPRESS, INC. Page 4 On redirect-examination, McCall stated that defendant does not attempt to control routes driven by drivers and that Kenny Williams and other contractors have full freedom to substitute qualified drivers at their will. While defendant does bookkeeping for fuel taxes, operators are required to pay all taxes and expenses. Alice Williams was recalled to the stand and testified that decedent was told by defendant in advance what a given load would pay and that he never refused loads because of fear that he might not be offered future work. Exhibit A is a contractor operating agreement entered into by defendant and Kenneth Williams. In paragraph 3C, it requires operators to hire for operation of the equipment only those drivers who are properly qualified under all applicable regulations. Under paragraph 4A, the contractor has responsibility for hiring, setting the wages, hours, working conditions and adjusting the grievances of, supervising, training, disciplining and firing all driver, driver's helpers and other workers. Further, that all such workers are and shall remain the employees of contractor. In paragraph 6A, the contract specifies that equipment is to be insured at the expense of the contractor. In 6E, it is specified that contractor is responsible for obtaining and maintaining workers' compensation insurance. In paragraph 8A, it is specified that contractor agrees to permit advertising on the vehicles owned by contractor. In sections 9A and 9B, contractor bears the cost of all licenses and the like, but these may be purchased by and issued in defendant's name to comply with applicable state or federal laws and regulations. In paragraph 18, it is specified that the parties' intent is that carrier and contractors are in a relationship of carrier and independent contractor and not employer and employee. Further, that neither the contractor nor its employees of any type are to be considered employees of the carrier. Joint exhibit B shows that Michael Williams signed a document indicating his agreement that he was not employed by defendant and that his wages would be set and paid by the owner of the equipment. 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 employment. Iowa Code section 85.3(l). The burden of proof is initially upon the claimant to show the existence of an employer-employee relationship. Everts v. Jorgensen, 227 Iowa 818, 289 N.W. 11 (1939). Five factors must be considered in determining whether there is an employer-employee relationship in existence: 1. The right of selection or to employ at will; WILLIAMS V. WILSON CERTIFIED EXPRESS, INC. Page 5 2. Responsibility for the payment of wages by the employer; 3. The right to discharge or terminate the relationship; 4. The right to control the work; and, 5. Is the party sought to be held as the employer the responsible authority in charge of the work or for whose benefit the work is performed? Hjerleid v. State, 229 Iowa 818, 295 N.W. 139 (1940); Funk v. Bekins Van Lines Company, I Iowa Industrial Commissioner Report 82 (App. Decn. 1980). The status of an owner-operator has been discussed in Augustine v. Bullocks, Inc., 1-3 Iowa Industrial Commissioner's Decisions, 502 (1985). That decision notes the previously-mentioned factors and recognizes that the overriding issue is the intention of the parties. McClure v. Union, et al., Counties, 188 N.W.2d 283 (Iowa 1971); Caterpillar Tractor Company v..Shook, 313 N.W.2d 503 (Iowa 1981). If it be shown that Kenneth Williams was actually an employee of defendant, his employees might also be considered employed by defendant. Crane v. Meier, 332 N.W.2d 344 (Iowa App. 1982). Based on the foregoing principles, it must be found that claimants have failed to establish that decedent was employed by Wilson Certified Express, Inc., at the time of his death or at any other time. He at no time entered into a contract of hire for employment with that defendant. Reviewing the factors set forth in Everts v. Jorgensen, the evidence discloses that except for guaranteeing qualification of drivers, defendant did not have or exercise the right of selection or to employ at will, did not have responsibility for payment of wages, did not maintain the right to discharge or terminate the relationship, did not have or exercise the right to control the work, and was not the responsible authority in charge of the work, although it was an entity for whose benefit the work was performed. It has not been shown that Kenneth Williams was an employee of Wilson Certified Express, Inc. Williams was responsible for the maintenance of the vehicle and bore the principal burden of its operating cost. He was responsible for providing the necessary personnel to operate the vehicle (and there is no showing other than that such employees were so considered in good faith by defendant), he was himself paid a percentage of the revenue for trips (and bore the responsibility for paying claimant pursuant to such agreement as they may have had), that he was responsible for determining the details and means of performing the services, and that he entered into a contract which clearly specified that the relationship was that of independent contractor. WILLIAMS V. WILSON CERTIFIED EXPRESS, INC. Page 6 There is no showing in this record that defendant had the right to control the manner in which the work was performed as opposed to simply dispatching Kenneth Williams or his employees. Further, there is no evidence in this record to show that the contract was actually a sham or fraud or in any way not honored in terms of control of the work, or that defendant in any way actually did control the manner in which the work was performed. The fact that defendant exercised authority to dispatch loads is not conclusive as indicating an employment relationship. It is equally consistent with a theory of delegated authority on the part of the owner-operator to the lessee for the purpose of promoting the expeditious flow of business and resources. As owner of the truck, Kenneth Williams might well have chosen to himself dispatch the driver as well as having delegated that authority to defendant's dispatcher. In any event, the dispatch merely showed the destination, and defendant exercised no control over the route to be driven by decedent or Kenneth Williams. Since claimants have failed to establish that decedent was employed by defendant at the time of his death, the issue of compensation rate is moot. FINDINGS OF FACT THEREFORE, based on the evidence presented, the following ultimate facts are found: 1. Michael Williams died of injuries suffered in a motor vehicle accident on June 18, 1986. 2. Michael Williams did not have an employment relationship with Wilson Certified Express, Inc., at the time of his death. CONCLUSION OF LAW WHEREFORE, based on the principles of law previously stated, the following conclusion of law is made: 1. Claimants have failed to establish by their burden of proof that decedent Michael Williams suffered injuries and death arising out of and in the course of employment with Wilson Certified Express, Inc., because it has not been established that Michael Williams had an employment relationship with that defendant. ORDER THEREFORE, IT IS ORDERED: Claimants shall take nothing from this proceeding. WILLIAMS V. WILSON CERTIFIED EXPRESS, INC. Page 7 Costs of this action are assessed against claimants pursuant to Division of Industrial Services Rule 343-4.33. Signed and filed this 22nd day of May, 1989. DAVID RASEY DEPUTY INDUSTRIAL COMMISSIONER Copies To: Mr. David E. Vohs Attorney at Law Suite 340, Insurance Center 507 7th Street Sioux City, Iowa 51101 Mr. David L. Sayre Attorney at Law 223 Pine Street P.O. Box 535 Cherokee, Iowa 51012 1504 Filed May 22, 1989 DAVID RASEY BEFORE THE IOWA INDUSTRIAL COMMISSIONER ALICE WILLIAMS, JOSHUA WILLIAMS, JESSICA WILLIAMS, ZECHARIAH WILLIAMS, Claimants, : VS. : File No. 861962 : WILSON CERTIFIED EXPRESS, INC., : A R B I T R A T I O N Employer, : D E C I S I O N Self-Insured, : Defendant. : 1504 Claimant's decedent was shown to be employed only by independent owner/operator. As he was not employed by freight company to which truck was rented, his death did not arise out of employment with that company. Page 1 before the iowa industrial commissioner ____________________________________________________________ : SAMUEL FLOURNOY, : : Claimant, : File No. 861972 : vs. : A R B I T R A T I O N : T & S TRANSPORTATION INC., : D E C I S I O N and CTB, INC., : : Employers, : Defendants. : ____________________________________________________________ statement of the case This is a proceeding in arbitration upon claimant's petition filed February 4, 1988. Claimant alleges that as an employee of defendants CTB, Inc., ("CTB") and/or T & S Transportation, Inc., ("T & S"), he was injured in a motor vehicle accident arising out of and in the course of his employment on February 6, 1986. He now seeks benefits under the Iowa Workers' Compensation Act from those alleged employers. By Order of a deputy industrial commissioner filed July 18, 1988, the record was closed to further evidence or activity on the part of either defendant. A hearing was thereafter held in Des Moines, Iowa, on July 13, 1990. The record consists of claimant's exhibits 1 through 15. Pursuant to previous permission, claimant, a severe stutterer, testified by means of deposition incorporated into the record as an exhibit. No witnesses testified at hearing. issues Because defendants were barred from further activity in the case, there was no stipulation between the parties. Claimant seeks to establish: the existence of an employment relationship with one or both defendants; that he sustained an injury on or about February 6, 1986 arising out of and in the course of that employment; that the injury caused temporary and permanent disability, the extent of each and the nature and commencement date of the latter; the rate of weekly compensation; entitlement to medical benefits. findings of fact The undersigned deputy, having considered all of the evidence, finds: Claimant testified by deposition on July 12, 1990. He was born on March 29, 1925 and was then 65 years of age (60 years of age on the date of injury). He has completed the eleventh grade and does not have a high school diploma. He Page 2 has no problems reading or writing. On February 6, 1986, claimant lived at home with his wife and two dependent children. Claimant's work history is limited. He worked as a common laborer in a steel mill for 10 or 15 years and then as an over-the-road truck driver for 33 years until (but not after) February 6, 1986. Claimant underwent back surgery in October 1974, but was left with no residual problems. He returned to driving a truck and was under no medical restrictions whatsoever. On February 6, 1986, claimant was driving a truck owned by Richard Davis or CTB and a trailer owned or rented to T & S when he was involved in a motor vehicle accident in Story County, Iowa while driving a load on behalf of T & S to Marshalltown, Iowa. Claimant's truck and an oncoming van both slipped on icy spots in the road in freezing rain conditions and collided. Claimant was taken by ambulance to Mary Greeley Hospital in Ames, Iowa, with complaints of pain to the back, both legs (worse to the left) and head. He also had developed blindness in the right eye, with which he had no problems prior to the accident (chart notes of Michael Kitchell, M.D., note blurred vision to the right eye, but erroneously state, "he has had the visual difficulty prior to the accident"). Mr. Flournoy was discharged on February 10 and returned to Chicago, where he was treated by David D. Chube, M.D., and subsequently admitted to a Veterans Administration hospital on February 17. Claimant has had continued treatment, including other hospitalizations through the VA, but has never recovered. His condition has not worsened, but has remained the same. Current symptoms include headaches, left arm and shoulder pain, back pain radiating to the left leg and pain in the left knee. Lower back pain occurs daily and is apparently aggravated by activity. Claimant suffers stiffness to the back and can walk only 20 feet at a time; the left leg becomes numb and painful. He can sit only approximately 10 minutes without squirming. He has trouble climbing steps and has no vision in the right eye. He has never been released to return to work by his physicians. Dr. Chube's notes of August 4, 1988 indicate that claimant has been unable to resume his normal activities due to low back pain "and in my opinion he is completely incapacitated." Dr. Chube's diagnostic impression is of herniated vertebral disc--possibly superimposed over previously herniated disc, hypertensive cardiovascular disease, congestive heart failure and transischemic attack. Claimant suffered a number of cardiovascular problems after the work injury, but apparently not causally related thereto. Claimant was also seen for evaluation by Barry Lake Fischer, M.D. Dr. Fischer wrote on March 13, 1990 that an x-ray examination of the lumbosacral spine revealed marked Page 3 narrowing of the L4-5 disc space with laminectomy changes. His diagnosis was of a lumbosacral strain injury with radiation spasm to the left and the posterior aspect of the left leg with right radiation also, loss of motion to the lumbar spine in flexion, extension and lateral bending, bilateral positive straight leg raising and an injury to the left knee with marked limitation of range of motion, crepitus in flexion and extension and atrophy of the left thigh. Dr. Fischer concluded with his opinion that claimant was currently totally disabled from his job as an over-the-road truck driver as a result of the lower back condition, that he was further disabled from performing any substantial gainful employment due to both knee and lower back conditions, and that, to a reasonable degree of medical certainty, the February 6, 1986 motor vehicle accident was a cause or contributing factor to the current lower back symptomatology and disability. No contrary medical evidence appears of record. Claimant was paid on the basis of $.18 per mile. He worked only 12 weeks before the work injury, driving 25,870 miles for an average gross weekly wage of $388.05. C. Richard Davis is identified on stationary of CTB as President of that company. His letter of March 6, 1986 asserted that claimant was a "independent contractor" driving a truck for CTB, Inc., on February 6, 1986. Davis and Judy Davis entered into a "Contractor Operating Agreement" with T & S on September 23, 1985 wherein they contracted to furnish certain equipment on a lease basis to T & S "together with drivers and all other necessary labor to transport, load and unload" on behalf of T & S. In return, Davis was to receive 80 percent of the revenue generated on each trip. The contract assigned Davis numerous responsibilities, including maintenance of equipment, operation of equipment, hiring or allowing to operate the equipment only drivers qualified by T & S under all applicable regulations and generally following various governmental regulations applicable to the trucking industry. Davis was assigned the means and methods of performance of all transportation services including: A. Hiring, setting the wages, hours and working conditions and adjusting the grievance of, supervising, training, disciplining, and firing all drivers, drivers' helpers and other workers necessary for the performance of CONTRACTOR'S obligations under the terms of this Agreement. Drivers, drivers' helpers and other workers are and shall remain employees of CONTRACTOR; B. Obtaining any and all insurance for Workmen's [sic] Compensation that may be required under the laws of the State of Virginia, or any other applicable state's laws, including sole, total and absolute responsibility for paying any and all premiums; and CONTRACTOR understands and agrees Page 4 that failure to do so is at CONTRACTOR'S peril and that CARRIER assumes absolutely no responsibility or liability for any Workmen's [sic] Compensation matters relating to employees of CONTRACTOR; Davis also undertook sole financial responsibility for withholding any employment taxes due to various governments on account of drivers and other workers. Operation by Davis or his employees in a reckless or intoxicated condition or the transportation of unauthorized passengers was deemed a material breach of the agreement. The agreement, by its terms, was to be governed by the laws of the State of Virginia, both as to interpretation and performance. It was specified that the parties intended to create the relationship of carrier and independent contractor, and not an employment relationship. Neither party was the agent of the other and neither party had the right to bind the other by contract. T & S and CTB, Inc., entered into a similar contract on March 15, 1986, CTB by its president, Richard Davis. Apparently in response to a newspaper ad, claimant met with Davis on September 17, 1985 and filled out an application for employment showing both T & S and CTB as employer. Claimant was given a driving test administered by Davis, who apparently "qualified" him on behalf of T & S. The sheaf of materials in claimant's exhibit 2 also show a number of responsibilities the driver would have to T & S, including vehicle inspection, details of accident reporting requiring "a good positive safety attitude," instructions always to use wheel chocks, instructions to keep the floor board of the vehicle free of debris, proscribing the use of alcoholic beverages or drugs (violation of this rule "will result in immediate dismissal") and the like. On the following day, claimant entered into a sham agreement between himself and CTB in which claimant was referred to as an independent contractor, but in which it was made clear his responsibility was to CTB and, pursuant to paragraph 32, would operate a truck-tractor owned by CTB "as designated by the carrier" to which the trailer was leased. Claimant was dispatched by Richard Davis. The equipment he drove was owned by Davis or CTB, probably CTB by virtue of the September 18 agreement. Logs and inspection sheets (for T & S) were filled out daily and turned in to Davis, who presumably forwarded at least the inspection sheets to T & S. Claimant's home terminal was operated by Davis or CTB. Claimant turned his travel vouchers to Davis and was paid by Davis or CTB. Nonetheless, it was his understanding that he was employed by T & S. Following the injury, however, he reported the accident to Davis. Asked in his deposition whether he knew whether Davis was the owner of CTB, claimant replied that he did not know. It seems clear that claimant lacked the legal sophistication to distinguish between the two corporate entities, or Davis as a sole proprietor or partner. Page 5 conclusions of law Claimant has the burden of proving by a preponderance of the evidence that he received an injury on February 6, 1986 which arose out of and in the course of his employment. McDowell v. Town of Clarksville, 241 N.W.2d 904 (Iowa 1976); Musselman v. Cent. Tel. 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. School Dist., 246 Iowa 402, 68 N.W.2d 63 (1955) and cases cited at pp. 405-406 of the Iowa Report. See also Sister Mary Benedict v. St. Mary's Corp., 255 Iowa 847, 124 N.W.2d 548 (l963) and Hansen v. State of Iowa, 249 Iowa 1147, 91 N.W.2d 555 (1958). The words "out of" refer to the cause or source of the injury. Crowe v. DeSoto Consol. School Dist., 246 Iowa 402, 68 N.W.2d 63 (1955). The words "in the course of" refer to the time and place and circumstances of the injury. McClure v. Union, et al., Counties, 188 N.W.2d 283 (Iowa 1971); Crowe v. DeSoto Consol. School Dist., 246 Iowa 402, 68 N.W.2d 63 (1955). The claimant has the burden of proving by a preponderance of the evidence that the injury of February 6, 1986 is causally related to the disability on which he now bases his claim. Bodish v. Fischer, Inc., 257 Iowa 516, 133 N.W.2d 867 (1965). Lindahl v. L. O. Boggs, 236 Iowa 296, 18 N.W.2d 607 (1945). A possibility is insufficient; a probability is necessary. Burt v. John Deere Waterloo Tractor Works, 247 Iowa 691, 73 N.W.2d 732 (1955). The question of causal connection is essentially within the domain of expert testimony. Bradshaw v. Iowa Methodist Hosp., 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. Cent. Tel. Co., 261 Iowa 352, 154 N.W.2d 128 (1967). It is first necessary to consider whether claimant has established an employment relationship with either CTB, Inc., or T & S Transportation, Inc. This is his burden of proof. Nelson v. Cities Serv. Oil Co., 259 Iowa 1209, 146 N.W.2d 261 (1967). Five factors should be considered in determining whether there is an employment relationship in Page 6 existence: 1. The right of selection or to employ at will; 2. Responsibility for the payment of wages by the employer; 3. The right to discharge or terminate the relationship; 4. The right to control the work; and, 5. Is the party sought to be held as the employer the responsible authority in charge of the work or for whose benefit the work is performed? Hjerleid v. State, 229 Iowa 818, 295 N.W. 139 (1940); Funk v. Beacons Van Lines Co., I Iowa Industrial Commissioner Report 82 (App. Decn. 1980). The overriding issue is the intention of the parties. Caterpillar Tractor Co. v. Shook, 313 N.W.2d 503 (Iowa 1981); Augustine v. Bullocks, Inc., I-3 Iowa Industrial Commissioner Decisions 502 (1985). In Mallinger v. Webster City Oil Co., 211 Iowa 847, 234 N.W. 254 (1929), the court set forth an eight-part test to determine whether an independent contractor relationship existed: An independent contractor, under the quite universal rule, may be defined as one who carries on an independent business, and contracts to do a piece of work according to his own methods, subject to the employer's control only as to results. The commonly recognized tests of such a relationship are, although not necessarily concurrent, or each in itself controlling: (1) the existence of a contract for the performance by a person of a certain piece or kind of work at a fixed price; (2) independent nature of his business or of his distinct calling; (3) his employment of assistants, with the right to supervise their activities; (4) his obligation to furnish necessary tools, supplies, and materials; (5) his right to control the progress of the work, except as to final results; (6) the time for which the workman is employed; (7) the method of payment, whether by time or by job; (8) whether the work is part of the regular business of the employer. If the workman is using the tools or equipment of the employer, it is understood and generally held that the one using them, especially if they are of substantial value, is a servant. Id. at 851. Although no one factor is controlling in the test of whether the relationship is that of employer-employee or that of an independent contractor, the first inquiry is to Page 7 which party has the right to control the physical conduct of the service being performed. D & C Express, Inc. v. Sperry, 450 N.W.2d 842 (Iowa 1990). Other factors may include responsibility for payment of the wages, intention of the parties and such things as withholding of federal, income and Social Security taxes. Iowa Code section 85.61(3)(c) provides: c. An owner-operator who as an individual or partner owns a vehicle licensed and registered as a truck, road tractor, or truck tractor by a governmental agency, is an independent contractor while performing services in the operation of the owner-operator's vehicle if all of the following conditions are substantially present: (1) The owner-operator is responsible for the maintenance of the vehicle. (2) The owner-operator bears the principal burden of the vehicle's operating costs, including fuel, repairs, supplies, collision insurance, and personal expenses for the operator while on the road. (3) The owner-operator is responsible for supplying the necessary personnel to operate the vehicle, and the personnel are considered the owner-operator's employees. (4) The owner-operator's compensation is based on factors related to the work performed, including a percentage of any schedule of rates or lawfully published tariff, and not on the basis of the hours or time expended. (5) The owner-operator determines the details and means of performing the services, in conformance with regulatory requirements, operating procedures of the carrier, and specifications of the shipper. (6) The owner-operator enters into a contract which specifies the relationship to be that of an independent contractor and not that of an employee and requires the owner-operator to provide and maintain a certificate of workers' compensation insurance with the carrier. The statute was effective July 1, 1986, and therefore not applicable as a matter of law to the subject work injury. However, the statute is of some guidance to the extent it is a recitation of then-existing law. At the time of the work injury, claimant was without question an employee of CTB, Inc. He was paid strictly by output on a per-mile basis. All equipment was furnished by CTB or Davis (except trailers owned or rented by T & S). Claimant was dispatched from a home terminal operated by Page 8 Davis or CTB. Following the accident, claimant reported to Davis, whom he obviously considered to be the person controlling his conduct of the work. With the sole exception of the "independent contractor" agreement entered into between claimant and CTB in which he was referred to as an independent contractor, all indices indicate that an employment relationship existed between claimant and CTB, Inc., apparently an alter-ego of Richard Davis. Claimant has met his burden of proof on this issue. But, it does not necessarily follow that an employment relationship also existed between claimant and T & S Transportation, Inc. Richard Davis apparently wore a number of hats, as he "qualified" claimant as a driver for T & S. The record does not show whether Davis had any relationship with T & S other than as a contractor for the provision of tractors and drivers. If Davis was an employee of T & S, his employees might also be considered employees of T & S. Crane v. Meier, 332 N.W.2d 344 (Iowa App. 1982). However, the record in this case does not establish that Richard Davis was an employee of T & S Transportation, Inc. Davis or CTB contracted to furnish equipment on a lease basis together with drivers and other necessary labor and received a percentage of the revenue generated on each trip. Maintenance of equipment, operation of equipment, hiring and the like were assigned to Davis. The mere fact that T & S had the right to qualify prospective drivers, such as claimant, does not create an employment relationship. Facially, the contracts entered into between Davis or CTB and T & S create independent contractor relationships, not an employment relationship. The record does not show that T & S, as opposed to Davis or CTB, selected or employed claimant at will, was responsible for the payment of his wages, had the right to discharge or terminate the relationship (that is, the relationship between claimant and his employer, CTB), or the right to control the work, although that work was performed in large part for its benefit. The overriding issue may be the intention of the parties, McClure v. Union, et al., Counties, 188 N.W.2d 285 (Iowa 1971), but the record does not disclose that claimant entered into any contractual relationship whatsoever with T & S subject to the intention of those parties, as opposed to his relationship with CTB, Inc. See also Janssen v. Smithway Motor Xpress, file number 830524 (App. Decn., July 27, 1989). In a similar fact situation, that appeal decision adopted the applicable law and analysis set forth in an earlier arbitration decision in which an employee of a tractor lessor also sought to establish an employment relationship with the lessee carrier. Claimant has failed to meet his burden of proof in establishing that an employment relationship existed between T & S Transportation, Inc., and himself. Functional impairment is an element to be considered in determining industrial disability which is the reduction of earning capacity, but consideration must also be given to the injured employee's age, education, qualifications, expe rience and inability to engage in employment for which he is fitted. Olson v. Goodyear Service Stores, 255 Iowa 1112, Page 9 125 N.W.2d 251 (1963). Barton v. Nevada Poultry, 253 Iowa 285, 110 N.W.2d 660 (1961). A finding of impairment to the body as a whole found by a medical evaluator does not equate to industrial disabil ity. This is so as impairment and disability are not syn onymous. Degree of industrial disability can in fact be much different than the degree of impairment because in the first instance reference is to loss of earning capacity and in the latter to anatomical or functional abnormality or loss. Although loss of function is to be considered and disability can rarely be found without it, it is not so that a degree of industrial disability is proportionally related to a degree of impairment of bodily function. Factors to be considered in determining industrial dis ability include the employee's medical condition prior to the injury, immediately after the injury, and presently; the situs of the injury, its severity and the length of healing period; the work experience of the employee prior to the injury, after the injury and potential for rehabilitation; the employee's qualifications intellectually, emotionally and physically; earnings prior and subsequent to the injury; age; education; motivation; functional impairment as a result of the injury; and inability because of the injury to engage in employment for which the employee is fitted. Loss of earnings caused by a job transfer for reasons related to the injury is also relevant. These are matters which the finder of fact considers collectively in arriving at the determination of the degree of industrial disability. There are no weighting guidelines that indicate how each of the factors are to be considered. There are no guidelines which give, for example, age a weighted value of ten percent of the total value, education a value of fifteen percent of total, motivation - five percent; work experience - thirty percent, etc. Neither does a rating of functional impairment directly correlate to a degree of industrial disability to the body as a whole. In other words, there are no formulae which can be applied and then added up to determine the degree of industrial disability. It therefore becomes necessary for the deputy or commissioner to draw upon prior experience, general and specialized knowledge to make the finding with regard to degree of industrial dis ability. See Peterson v. Truck Haven Cafe, Inc., (Appeal Decision, February 28, 1985); Christensen v. Hagen, Inc., (Appeal Decision, March 26, 1985). Claimant has worked as a common laborer and for 33 years as an over-the-road truck driver. The medical evidence in this case indicates that for the foreseeable future he will be unable to return to that work due to his back injury. All of the medical evidence establishes that claimant is wholly disabled from performing any substantial gainful employment. Given claimant's education and age, it is unlikely that he can be retrained for any substantial employment. Add to that, claimant is a severe stutterer and may well be foreclosed from a reasonable opportunity to obtain work involving public contact. On the current state of the record, claimant has met his burden of proof in Page 10 establishing that he is permanently and totally disabled. Claimant was married with three exemptions at the time of his injury and had average weekly earnings of $388.05 pursuant to Iowa Code section 85.36(6) in that he was paid by his output. Even though he worked only 12 weeks, this is the fairest way of determining rate. An examination of the Guide to Iowa Workers' Compensation Claim Handling effective July 1, 1985 shows that an individual so situated is entitled to a weekly compensation rate of $244.90. order THEREFORE, IT IS ORDERED: Claimant shall take nothing from T & S Transportation, Inc. Defendant CTB, Inc., shall pay unto claimant permanent total disability benefits at the rate of two hundred forty-four and 90/100 dollars ($244.90) per week commencing February 6, 1986 and continuing during such time as he shall remain totally disabled. All accrued weekly benefits shall be paid in a lump together with statutory interest thereon pursuant to Iowa Code section 85.30. The costs of this action shall be assessed to defendant CTB, Inc., pursuant to rule 343 IAC 4.33. Defendant CTB, Inc., shall file claim activity reports as requested by this agency pursuant to rule 343 IAC 3.1. Defendant CTB, Inc., shall file a first report of injury within thirty (30) days of the filing of this decision. Signed and filed this ______ day of ____________, 1991. ______________________________ DAVID RASEY DEPUTY INDUSTRIAL COMMISSIONER Copies To: Mr. Gregory T. Racette Attorney at Law Suite 111, Terrace Center 2700 Grand Avenue Des Moines, Iowa 50312 CTB, Inc. P.O. Box 363 Lansing, Illinois 60438 CERTIFIED AND REGULAR MAIL Page 11 Mr. Barry Moranville Attorney at Law West Bank Building, Suite 212 1601 22nd Street W. Des Moines, Iowa 50265 1402.10; 1504; 2001 Filed February 13, 1991 DAVID RASEY before the iowa industrial commissioner ____________________________________________________________ : SAMUEL FLOURNOY, : : Claimant, : File No. 861972 : vs. : A R B I T R A T I O N : T & S TRANSPORTATION INC., : D E C I S I O N and CTB, INC., : : Employers, : Defendants. : ____________________________________________________________ 1402.10; 1504; 2001 Claimant, over-the-road driver, was found employee as to owner/lessor of tractor, but not as to carrier/lessee. BEFORE THE IOWA INDUSTRIAL COMMISSIONER _________________________________________________________________ GILBERT MILLER, Claimant, vs. File No. 861983 HALLETT MATERIALS, A P P E A L Employer, D E C I S I O N and UNITED STATES FIDELITY & GUARANTY, 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 July 31, 1991 is affirmed and is adopted as the final agency action in this case. Defendants shall pay the costs of the appeal, including the preparation of the hearing transcript. Signed and filed this ____ day of November, 1992. ________________________________ BYRON K. ORTON INDUSTRIAL COMMISSIONER Copies To: Ms. Erin E. McCullough Attorney at Law P.O. Box 207 Lake View, Iowa 51450 Ms. Iris J. Post Mr. Ross H. Sidney Mr. Mark W. Thomas Attorneys at Law P.O. Box 10434 Des Moines, Iowa 50306 9998 Filed November 23, 1992 Byron K. Orton BEFORE THE IOWA INDUSTRIAL COMMISSIONER ____________________________________________________________ GILBERT MILLER, Claimant, vs. File No. 861983 HALLETT MATERIALS, A P P E A L Employer, D E C I S I O N and UNITED STATES FIDELITY & GUARANTY, Insurance Carrier, Defendants. ____________________________________________________________ 9998 Summary affirmance of deputy's decision filed July 31, 1992. Page 1 before the iowa industrial commissioner ____________________________________________________________ : GILBERT MILLER, : : Claimant, : : File No. 861983 vs. : : A R B I T R A T I O N HALLETT MATERIALS, : : D E C I S I O N Employer, : : and : : UNITED STATES FIDELITY & : GUARANTY : : Insurance Carrier, : Defendants. : ____________________________________________________________ introduction This is a proceeding in arbitration brought by Gilbert Miller, claimant, against Hallett Materials, employer, and United States Fidelity & Guaranty Company, insurance carrier, defendants, for benefits as the result of an alleged injury which occurred on October 22, 1987. A hearing was held in Fort Dodge, Iowa, on April 2, 1990 and the case was fully submitted at the close of the hearing. Claimant was represented by Erin E. McCullough. Defendants were represented by Iris J. Post. The record consists of the testimony of Gilbert Miller, claimant; Sharon Miller, claimant's daughter-in-law; Herman Brockschmidt, co-employee; Murlin Garrels, co-employee; Blaine Blessington, co-employee; Mark Auen, foreman; claimant's exhibits A and B; and, defendants' exhibits 1 through 7. At the time of hearing, claimant presented claimant's written contentions on each disputed issue and defendants presented defendants' written description of disputes. The deputy ordered a transcript of the hearing. Both attorneys submitted excellent post-hearing briefs. issues The parties submitted the following issues for determination at the time of the hearing. Whether claimant sustained an injury on October 22, 1987 which arose out of and in the course of employment with employer. Whether the injury was caused by the willful act of a Page 2 third party directed against the employee for reasons personal to such employee (Iowa Code section 85.16(3)) has been asserted as an affirmative defense by defendants. Whether the injury was the cause of either temporary or permanent disability. Whether claimant is entitled to temporary or permanent disability benefits, and if so, the extent of benefits to which he is entitled. Whether claimant is entitled to medical benefits. findings of fact injury/willful injury personal to claimant It is determined that claimant sustained an injury on October 22, 1987 which arose out of and in the course of his employment with employer when he was kicked in the right chest by Murlin Garrels, a co-employee. It is further determined that the injury was not caused by a willful act of a third party (Murlin Garrels) directed against the employee (Gilbert Miller) for reasons personal to such employee. It is further determined that the behavior of Murlin Garrels of losing his temper, becoming angry, jumping over the belt, and kicking Gilbert Miller in the right chest when Miller was on his knees after coming through the make-shift windbreak did constitute a willful act of Murlin Garrels, but that it was not directed against Gilbert Miller for reasons personal to Miller as a person or individual, arising outside of their employment; but rather the behavior arose out of, had its origin in, and was caused by the circumstances of the employment situation that existed at that time. Employer operated a gravel pit operation which mined and processed gravel. This is an outdoor operation. October 22, 1987 was a very cold, windy day. Garrels testified that the temperature was 24 degrees and that there was a strong wind out of the northwest. The employees worked eight feet off the ground and were exposed to the wind. Several witnesses testified that the employees themselves brought articles of canvas, plywood, carpeting, and Plexiglass from home to make a make-shift windbreak to protect themselves from the north wind. There was further evidence that this was the first real cold day of the winter season. Claimant was the plant operator in overall charge of the operation. Murlin Garrels and Herman Brockschmidt were clay pickers. The responsibility of a clay picker is to stand on either side of a conveyor belt transporting gravel which has passed through the crusher and to remove large Page 3 rocks, mud, clay and other foreign objects from the belt. The plant operated generally from March to November of each year. The employees worked in close quarters and it was difficult for two persons to pass by each other. Claimant and Garrels had worked together for approximately 3-5 years prior to this incident. Mark Auen, foreman, testified for defendants that claimant and Garrels argued about everything, but that neither party had complained or requested not to work with the other person and that there had never been any assaults or injury. Blaine Blessington testified that nothing physical had ever transpired at the plant, but verbal things were quite common at times. After claimant's injury, Blessington became plant operator and installed steps so that it was not necessary to pass through the windbreak in order to adjust the belt (transcript, pages 113 and 114). Claimant testified that he did not exchange any words with Garrels on the date of the injury. He did not argue with Garrels about anything on the date of the injury. He did not discuss the incident with Garrels before, during or after the incident. Claimant testified that he had worked with Garrels for five years, but he never had any problems with him other than to argue a little bit, but it was nothing serious, and there was never any physical encounter. Claimant testified that he did not socialize with Garrels outside of work. Claimant testified that he never asked not to work with Garrels and that he never complained about working with Garrels. Claimant testified that, as he came through the windbreak after straightening the belt, while he was on his knees and getting up, Garrels suddenly and unexpectedly kicked him in the right chest. Claimant testified that he was completely surprised by this assault. Herman Brockschmidt testified that it was necessary for claimant to adjust the belt several times that day. Each time he passed through the windbreak, Brockschmidt and Garrels had to close it because they got a big blast of cold air which made them chilly. Brockschmidt said the cold air affected them more because they were standing in one place as they worked. Brockschmidt said that he did not hear or see claimant and Garrels talk to each other or argue about anything prior to the incident which caused the injury. He did see Garrels jump over the belt and then he saw claimant lying down on the floor. He said there was no argument before or after the incident. Probably the best explanation of what occurred is supplied by Murlin Garrels. He testified that he had no words with claimant prior to the incident which occurred that morning prior to the noon meal. Garrels explained what happened as follows: Page 4 A. Well, it was cold and Gibb tore the plywood down, and I don't know whether he heard me or not, but I told him to get the hell out of there and he didn't do it. And he come back and he tore it down again and, Herman, he put the plywood up and he kept tearing it down and I shouldn't have, but I lost my temper and I kicked him. (Transcript, page 104, lines 5 through 11) At this point in the hearing, Garrels broke down and cried. Garrels further explained that when it is cold, the stuff freezes to the belt. The belt then runs off to one side or the other and claimant had to run back and reset the belt so that it did not get ruined. Garrels indicated that every time claimant went through the windbreak, he became colder. He further explained that when it is cold, the clay sticks to the gloves and makes the work more difficult. Garrels admitted that he was angry because claimant removed the windbreak, but he did not mean to hurt him when he kicked him. Garrels testified that he did it because he was mad (transcript, page 107). Garrels testified that he had never argued with claimant in the past and he has not argued with him since the injury. He further testified that he has never had a physical fight with claimant and has never had any confrontation with him outside of work. He said when they meet occasionally, they might have a beer or a Pepsi (transcript, page 109), but they did not discuss this incident (transcript, page 110). Garrels denied that he had ever assaulted anyone else (transcript, page 111). The parties agreed that the primary issue is whether the injury arose out of claimant's employment or whether the injury was caused by the willful act of a third party directed against the employee for reasons personal to the employee. A review of the known cases finalized by either the Supreme Court of Iowa, the industrial commissioner, or a deputy industrial commissioner demonstrates that claimant sustained an injury which arose out of and in the course of his employment and that it was not caused by the willful act of a third party directed against the employee for reasons personal to the employee. In the first known case to address the willful injury defense, a hotel clerk was assaulted by an irate guest and was awarded benefits. O'Callahan v. Dermedy, 197 Iowa 632, 196 N.W. 10, 197 N.W. 456 (1923). The court stated that the statute should be liberally interpreted in favor of the employee. As in O'Callahan, this case does not provide evidence to support a spite or grudge or ill will that the third person (Garrels) harbored against the employee personally. Both men denied that any such circumstance existed between them. The helpful part of this decision is Page 5 that the court pointed out that there may be a willful intent to injure without it being directed at the employee for reasons personal to the particular individual injured. O'Callahan, 197 Iowa at 635. In Everts v. Jorgensen, 227 Iowa 818, 289 N.W. 11 (1939), a hotel clerk was assaulted by a co-employee for unknown reasons and the clerk was awarded benefits. The court again condoned a liberal interpretation of the Act. Everts, 227 Iowa at 828. The court added that the willful injury defense was in the nature of a confession and avoidance and the burden of proving it to be true falls upon the defendants. Like Everts and O'Callahan, the facts of this case do not establish a spite, enmity, or grudge arising out of their nonemployment life, but only occasional arguments at work which were not uncommon at the plant in general. In Cedar Rapids Community School v. Cady, 278 N.W.2d 298 (Iowa 1979), benefits were awarded on account of an employee who was killed as the result of an insane delusion by a co-employee. Again, the court stated that, in keeping with the humanitarian objectives of the workers' compensation statute, it was to be applied broadly and liberally. They said the legislation is primarily for the benefit of the worker and the worker's dependents. Its beneficent purpose is not to be defeated by reading something into it which is not there or by a narrow and strained construction. Cady, 278 N.W.2d at 299. The court stated that the injury must be a natural incident of the work. This means that it must be a rational consequence of a hazard connected with the employment. The court cited from another case that the possibility that a fellow servant may be or might become insane and run amuck is a condition under which one employed with fellow servants is required to perform his work. The same can be said for the possibility that a co-employee might lose his temper, become angry and impulsively injure another employee. Cady, 278 N.W.2d at 300. There was no evidence in this case that the assault resulted from an off-the-job quarrel which merely erupted at the place of employment. Cady, 278 N.W.2d at 301. The court concluded: An employee who associates with other employees is exposed to the risk of injury arising from their acts or omissions. No difference in principle exists when the injury is caused by conduct resulting from an insane delusion rather than negligence or chance mishap. The resulting injury is equally a rational consequence of a hazard connected with the employment. Cady, 278 N.W.2d at 302-3. Page 6 These same principles should apply when the injury arises out of a fit of temper rather than an insane delusion. The case of Sheerin v. Holin Co., 380 N.W.2d 415 (Iowa 1986), in the dissent, reiterated the holding in Cady, and stressed that it is not required that the perpetrator be deranged in order for the injury to be the rational consequence of a hazard connected with the employment. The court repeated that this view comports with the broad reading of the workers' compensation statute demanded by Caterpillar Tractor Co. v. Shook, 313 N.W.2d 503, 506 (Iowa 1981) and is supported by the observations of Professor Larson. "Assaults arise out of the employment either if the risk of assault is increased because of the nature or setting of the work, or if the reason for the assault was a quarrel having its origin in the work." 1A Larson Workmen's Compensation Law, section 11.00 at page 3-178. Larson further comments that an increasing number of jurisdictions accept the idea that the strain of enforced close contact may in itself provide the necessary work connection. Supervisory jobs such as the plant operator job that claimant performed fall within the caption of Larson at section 11.11, "Increased risk due to nature of job" and section 11.11(a), "Dangerous duties." Larson further provides: "We have seen that an assault is work connected if it grows out of a quarrel whose subject matter is related to work." 1A Larson Workmen's Compensation Law, section 11.16(a) entitled "Friction and strain as work connection" at page 3-261. Larson then cites a case which states the general principle that the causal connection may be supplied by a showing that the environment increased the likelihood of assault. Larson relates that this rule draws heavily upon the positional-risk doctrine which was adopted by the Iowa Supreme Court in Cady. 1A Larson Workmen's Compensation Law, sections 11.16(a) and 11.16(c) at pages 3-261 and 3-270. Larson states that, under the positional-risk doctrine, assaults by co-workers are compensable as long as they are not motivated by personal vengeance stemming from contact with the employee outside of the employment. 1A Larson Workmen's Compensation Law, section 11.16(c) at page 3-271. In this case, both claimant and Garrels denied any personal animosity or vengeance outside of their employment situation, either before or after the injury and there is no evidence of it from any other source. There was no evidence that claimant filed criminal or civil charges against Garrels for the assault. On the contrary, Garrels said they might have a beer or a Pepsi if they should happen to chance meet in the community. Both men denied any personal animosity, spite, vengeance, or quarrels either at work or Page 7 outside of work prior to or subsequent to this incident. In the case of Goss v. Sharkey Transp., I Iowa Industrial Commissioner Report 93 (1980), a trucker who was assaulted by an unknown assailant was awarded benefits by Deputy Industrial Commissioner E. J. Kelly. In Mai v. Olan Mills, I Iowa Industrial Commissioner Report 222 (App. Decn. 1980), an employee was awarded benefits where Acting Industrial Commissioner Barry Moranville determined that the injury grew out of an argument between co-employees rather than a romantic involvement between them. In Smith v. Collins Radio, I Iowa Industrial Commissioner Report 312 (1981), Deputy Industrial Commissioner Joseph M. Bauer awarded benefits to a claimant who was kicked in the buttocks after refusing to give a co-employee a Christmas kiss. The deputy found that whatever contact was previously had between the claimant and the assailant was work related and that any and all contact of a social nature was at work. The same can be said of the instant case. Almost 100 percent of the contact between the claimant and the assailant occurred at work. They had very limited and only occasional social contact outside of work. In a fairly recent case, defendants did not prove the willful injury defense when claimant developed heart symptoms after being menaced and frightened by a supervisor at work. Schaapveld v. Univ. of Iowa, file number 814525 (App. Decn., August 15, 1989). Defendants failed to prove the willful injury defense when claimant was injured in an altercation which occurred at work with a co-employee where the long-standing animosity between the two individuals had its origin in the employment. Bell v. John Deere Waterloo Works, file number 865895 (Arb. Decn., December 18, 1989). Moreover, defendants failed to prove the willful injury defense when claimant was struck by a co-employee in what might have been a disagreement over claimant's work performance. Reed v. Dawdy, file number 871076 (Arb. Decn., July 16, 1990). In conclusion, it should be noted that, of all the known willful injury defense cases in Iowa which have been finalized either at the supreme court level or at the industrial commissioner level or at the deputy level, there is not one single case where this defense has prevailed. Defendants' contention that there was an altercation between claimant and Garrels is not supported by the evidence (transcript, page 13). There was no evidence of an altercation between these two employees. One simply suddenly and unexpectedly attacked the other one as a complete surprise to the victim. Defendants contended that Iowa Code section 85.16 is to prevent the employer from being responsible for fights and arguments which occur between employees. However, there is Page 8 not only no evidence of a fight, there is no evidence of an argument between the employees on the date of the injury or at the time of the injury. There is evidence of arguments between claimant and Garrels, but there is also evidence that arguments of this nature were common and that they were never physical. Claimant testified that the arguments were not serious. Garrels testified that he had never argued with claimant in the past (transcript, page 108). Brockschmidt testified that he did not either hear or see any disagreement of any kind between the parties prior to the incident. Furthermore, defendants' contention that section 85.16 is to prevent employers from being responsible for fights or arguments which occur between employees is not supported by any known Iowa common law or administrative law decision. On the contrary, the opposite is true based on the cases reviewed. Wherefore, relying on the cases and authorities cited as applied to the facts of this case, it is determined that claimant sustained an injury which arose out of and in the course of his employment with employer on October 22, 1987. It is further determined that the injury was not caused by the willful act of a third party directed against the employee for reasons personal to such employee. It is further determined that the assault, although willful, was not directed at claimant for reasons personal to claimant either as a person or as an individual arising outside of employment, but that the assaulting behavior arose out of, had its origin in, and was caused by the circumstances of the employment which existed at the time of the injury. causal connection It is determined that the injury was the cause of both temporary and permanent disability. Claimant was kicked in the right upper chest on Thursday, October 22, 1987. He finished working that day, but has not returned to work since then. He saw Joseph P. McNerney, D.O., on Saturday, October 24, 1987, giving this assault as the history for his right upper chest pain which had gotten progressively worse. Claimant had point tenderness over the third, fourth and fifth ribs and palpation of the anterior rib cage on the right elicited pain in his back. A chest x-ray by radiologist Martin McKinney, M.D., revealed a nondisplaced rib fracture posteriorly of the fifth rib and possibly the seventh rib consistent with his injury. Dr. McNerney testified that he has treated claimant for severe chest pain and right shoulder pain continuously since the date of the injury and that claimant has been unable to work since the date of the injury. Page 9 Peter D. Wirtz, M.D., a board-certified orthopaedic surgeon, who performed an independent examination of claimant for defendants, proceeded on the history of this injury, and even though he did not find any permanent impairment, he did not suggest any other cause other than this injury to explain claimant's right chest and right shoulder pain. Wherefore, it is determined that the injury of October 22, 1987 is the cause and the only cause considered by the doctors for claimant's temporary and permanent disability. entitlement/healing period benefits It is determined that claimant is entitled to healing period benefits from the date of the injury, October 22, 1987, until August 5, 1988, the date on which Dr. McNerney gave claimant a permanent impairment rating, a period of 41.143 weeks. Iowa code section 85.34(1) provides that claimant is entitled to healing period benefits from the date of the injury until he (1) returns to work, (2) attains maximum medical improvement, or (3) becomes medically capable of returning to substantially similar employment. Claimant has not returned to work. Claimant is not capable of returning to substantially similar employment because it causes pain when he lifts his arms. This approximate 10-month period is within Dr. McNerney's guideline for healing period in this case. When asked how long it would take the ribs to heal, Dr. McNerney replied: A. I would think within six weeks they were fairly well together and certainly by a year remolding, et cetera has all taken place, so they should be completely healed at a year. (Exhibit 2, page 20, lines 6 through 9) Dr. Wirtz estimated that claimant's recovery should have been 4-6 weeks, but that was based on the erroneous conclusion that claimant had sustained only a contusion of the right chest rather than a rib fracture as confirmed by Dr. McKinney, the radiologist. It was also noted by Dr. McNerney that, when one ages, they do not heal as well as they did when they were younger (exhibit 2, page 23). On April 12, 1988, Dr. McNerney commented that eventually the patient's temporary total disability would resolve into some degree of permanent partial disability (exhibit B, page 36). On August 5, 1988, Dr. McNerney stated that claimant was treated with various physical therapy modalities, muscle relaxants, anti-inflammatory drugs and had obtained considerable relief as compared to the original injury. It would appear that claimant improved until this date, August 5, 1988, at which time Dr. McNerney Page 10 gave a permanent impairment rating (exhibit B, pages 31 and 32). Healing period generally terminates at the time that the attending physician determines that the employee has recovered as far as possible from the effects of the injury. Armstrong Tire & Rubber Co. v. Kubli, 312 N.W.2d 60, 65 (Iowa App. 1981). Stated another way, it is only at the point at which a permanent disability can be determined that a permanent disability award can be made. Until such time, healing period benefits are awarded to the injured worker. Thomas v. William Knudson & Son, Inc., 394 N.W.2d 124, 126 (Iowa App. 1984); Iowa Code section 85.34(1). Consequently, it is determined that claimant is entitled to 41.143 weeks of healing period benefits from the date of the injury, October 22, 1987, to the date on which the treating physician determined a permanent impairment rating, August 5, 1988. entitlement/permanent disability benefits It is determined that claimant has sustained a 15 percent industrial disability to the body as a whole and is entitled to 75 weeks of permanent partial disability benefits. Claimant, born September 1, 1916, was 71 years old at the time of the injury, 73 years old at the time of the hearing, and 74 years old at the time of this decision. Since claimant was working beyond the point in time that most persons retire, then his earning capacity is naturally reduced over what it would be for a younger worker still engaged in work prior to the normal age of retirement at approximately age 65. Even though claimant intimates that he is permanently and totally disabled from this injury, claimant's age places some limitations on the amount of industrial disability. The legislature did not intend to provide lifetime benefits through workers' compensation awards as a supplement to normal retirement benefits. Keifer v. Iowa Public Serv. Co., file number 830461 (Arb. Decn., June 27, 1991). Also, claimant's age of 71 at the time of the injury likewise places limits upon a long-term award of benefits. At the same time, it must be considered in this case that claimant started to work for this employer at age 51, an age when many persons are taking early retirement, and since that time has been a career employee of this employer for 20 years. But for this injury, claimant possibly and probably would have worked for this employer or some other employer into the indefinite future. Therefore, his age does not preclude him from entitlement to some industrial disability, even though he had also been drawing $904 in Social Security retirement benefits since age 65 in 1981, and has a current balance of $10,354.16 in retirement benefits being held by employer (transcript, page 38). Claimant's education, training and past employments are Page 11 limited. Claimant attended school only through the eighth grade. There is no evidence of a GED. Claimant's education is therefore limited. His limited education would increase his industrial disability over a person with a high school education or higher education. Claimant's past employments were limited to farm work and working for a popcorn company unloading ear corn, shelling it and boxing it. Claimant's inability to raise his arms without pain would preclude him from performing these former employments. Claimant contends he does not have the strength in his right arm and shoulder to operate the long iron pole on the crusher or to do farm work. Likewise, claimant is foreclosed from performing the plant operator job at the crusher for employer because he can no longer lift the iron rod and poke it through the lathe and he can no longer pick up the big boulders which have to be handled by hand (transcript, page 58). Thus, claimant is foreclosed from performing his former employment for employer. Michael v. Harrison County, Thirty-Fourth Biennial Report of the Industrial Commissioner 218, 220 (App. Decn., January 30, 1979); Rohrberg v. Griffin Pipe Products Co., I Iowa Industrial Commissioner Report 282 (1984). Claimant applied for his old job on the crusher on February 1, 1988 (exhibit 4), but was not reemployed. Normally, an employer's inability to find any work which an employee can perform is an indication of a substantial degree of disability. 2A Larson Workmen's Compensation Law, section 57.61(b) page 10-173. Likewise, an employer's refusal to give any sort of work to an injured claimant may justify an award of disability. McSpadden v. Big Ben Coal Co., 288 N.W.2d 181 (Iowa 1980). Larson further states: It is hardly necessary to labor the inconsistency of permitting an employer to fire a man for physical defects caused by his own employment conditions, and then to disclaim compensation liability by presenting medical evidence that the man is not really disabled after all. 2A Larson Workmen's Compensation Law, section 57.61(b) page 10-176. Employer did not fire claimant, but they did not rehire him and were not able to find any work which this 20-year career employee could do. It is also noted that after claimant's application for employment of February 1, 1988--in which he declined to answer the question of whether he had any physical, mental or medical impairments or disability that would limit his job performance--claimant has contended and Dr. McNerney has Page 12 stated that claimant is unable to perform the job he was performing at the time of the injury or any other job. Therefore, claimant's sincerity in applying for work is questioned. Claimant's age in the early 70s coupled with his eighth grade education and a work career primarily of manual labor makes claimant a poor candidate for retraining. Conrad v. Marquette School, Inc., IV Iowa Industrial Commissioner Report 74, 89 (1984). Furthermore, the fact that claimant is at retirement age and appears to have yielded to the urging of his family to retire is also taken into consideration. Swan v. Indus. Eng'g Equip. Co., IV Iowa Industrial Commissioner Report 353 (1984); McDonough v. Dubuque Packing Co., Vol. 1, No. 1 State of Iowa Industrial Commissioner Decisions 152 (1984). Claimant has treated for hypertension for several years, but it has been controlled with medication and he was always able to work. Also, since this injury, claimant developed pain in the left side of his chest which was diagnosed as coronary artery disease for which he received the angioplasty (balloon) procedure on June 17, 1988. There is no evidence, however, that claimant is unable to work due to his hypertension or his coronary artery disease. Claimant denied that he has never suffered any pain from the hypertension or the coronary artery disease. There are numerous people working in full-time employment everyday with hypertension and coronary artery disease. At the same time, these health problems coupled with the pain in his chest and shoulder, his inability to raise his arms without pain, and the chronic pain syndrome which he developed as a result of this injury have all been factors influencing his motivation about continuing to work. Sharon Miller, claimant's daughter-in-law, stated that claimant suffers from shortness of breath and depression because of the change in lifestyle brought about by this injury. The fact that the Lake View plant closed and was dismantled at the end of the 1989 season in no way affects claimant's entitlement to permanent partial disability for industrial disability (transcript, pages 93 and 113). Dr. McNerney, claimant's treating physician, determined that claimant had sustained a ten percent permanent disability from this injury (exhibit B, page 32; exhibit 2, page 26). Dr. McNerney based his impairment rating upon the Guides to the Evaluation of Permanent Impairment published by the American Medical Association and based upon claimant's continuing problem that restricts the use of his upper extremities because he is unable to lift any significant amount without having pain in his upper extremities. Dr. McNerney acknowledged that he did not take Page 13 measurements in arriving at his impairment rating, but Dr. Wirtz also acknowledged that he did not take measurements in arriving at his conclusions. Even though Dr. McNerney inadvertently used the term "disability" in his impairment rating, he explained in his testimony that his rating was based upon claimant's physical problems (exhibit 2, pages 29 and 30). Dr. Wirtz determined that claimant had sustained a contusion to the right chest area because he found no evidence of abnormal bony anatomy to the rib cage or the shoulder on x-rays which he took in March of 1989 (exhibit 5, pages 1 and 2). Dr. Wirtz acknowledged that he did not examine the x-ray that was taken by Dr. Martin McKinney at the time of the injury (exhibit 1, page 15). Dr. Wirtz did not find any anatomical or functional change; however, his range of motion tests were not complete. He measured flexion and extension, internal and external rotation, but failed to measure abduction and adduction. The shoulder has three motion planes, each contributing a relative value to its function--flexion and extension, abduction and adduction, and internal and external rotation. Guides to the Evaluation of Permanent Impairment, Third Edition, section 3.1(g), pages 31-35. Thus, Dr. Wirtz' range of motion testing was incomplete because he did not measure abduction and adduction and one of claimant's chief complaints is that it causes pain when he raises his arms. Dr. Wirtz would not place any restrictions on claimant. In addition, Dr. Wirtz found that claimant had no anatomical or functional change that would restrict normal function and physiologic activity within his own strength and dexterity. Thus, Dr. Wirtz is comparing claimant's capability with claimant's capability; whereas he should be comparing claimant's capability with the objective standards set out in the AMA guides. Dr. Wirtz' conclusion that there was no objective evidence of a chronic pain syndrome is not significant because frequently there is no objective evidence for chronic pain syndrome. For the foregoing reasons, it is determined that the evaluation of Dr. Wirtz is not as reliable as the evaluation of claimant's treating physician, even though Dr. Wirtz is a board-certified orthopaedic surgeon. The opinion of Dr. McNerney is preferred over the opinion of Dr. Wirtz because, as the treating physician, he had the longest, closest and best opportunity to evaluate claimant. Moreover, Dr. McNerney, as the treating physician, is charged with the success or failure of claimant's treatment and recovery; whereas Dr. Wirtz saw claimant for only ten minutes on one occasion to make an evaluation for defendants for the purpose of litigation. Rockwell Graphics Systems, Inc. v. Page 14 Prince, 366 N.W.2d 187, 192 (Iowa 1985). Wherefore, based upon claimant's age of 71 years; his eighth grade education; the fact he cannot return to his former employment for employer; the fact he is precluded from his other past employments; the fact that claimant was working and had planned to work indefinitely at the time of the injury; employer's inability to find any work for claimant; claimant's proximity to retirement age and diminishing health; the ten percent permanent impairment to the body as a whole; claimant's inability to lift his arms without pain; the development of claimant's chronic pain syndrome in the right chest and right shoulder and all of the factors used to determine industrial disability, Christensen v. Hagen, Inc., Vol. 1, No. 3, State of Iowa Industrial Commissioner Decisions 529 (App. Decn., March 26, 1985); Peterson v. Truck Haven, Inc., Vol. 1, No. 3, Iowa Industrial Commissioner Report 654, 658 (App. Decn., February 28, 1985) and based upon agency expertise (Iowa Administrative Procedure Act 17A.14(5)), it is determined that claimant has sustained a 15 percent industrial disability to the body as a whole and that claimant is entitled to 75 weeks of permanent partial disability benefits at the stipulated rate of $176.39 per week. medical benefits It is determined that claimant is entitled to $691.00 in medical benefits. It is further determined that the fees charged are reasonable and that the treatment was reasonable and necessary for the work injury. Defendants dispute the use of osteopathic manipulative therapy for broken ribs. Dr. Wirtz stated that osteopathic manipulative therapy would not be indicated for fractured ribs (exhibit 1, page 14). Dr. McNerney explained that osteopathic manipulative therapy to various parts of the body other than the ribs were part of a holistic osteopathic perspective to align the entire structural component of the body. It involves everything. It would not be delivered simply to the ribs (exhibit 2, pages 15 and 16). If a patient visits a doctor of medicine, there is a strong probability that the patient will end up with a prescription for medicine. If a patient visits a doctor of chiropractic, there is a strong probability that the patient will receive chiropractic adjustments and/or other chiropractic physical therapy modes of treatment. If a patient consults a doctor of osteopathy, it is very likely that the patient will receive osteopathic manipulative therapy. Each medical discipline is entitled to practice its own form of medical treatment. Therefore, the osteopathic manipulative therapy treatments which occurred on dates when claimant was treated for chest pain or right Page 15 shoulder pain had been allowed. Claimant submitted several itemized bills. The one used by this deputy is exhibit A, page 17. Several of the dates on the itemized bills do not match up with an office note from Dr. McNerney. Any itemized charge that does not match an office note is not allowed. Furthermore, the dates with an office note which demonstrate that claimant was not treated for chest pain or right shoulder pain were not allowed. The charges that have been allowed are as follows: 10-24-87 $ 68.00 10-31-87 30.00 11-14-87 29.00 04-29-88 30.00 05-16-88 30.00 05-27-88 30.00 07-01-88 20.00 07-18-88 30.00 08-05-88 30.00 08-29-88 30.00 09-29-88 56.00 10-24-88 30.00 11-09-88 30.00 11-23-88 30.00 01-04-89 20.00 02-16-89 30.00 03-13-89 30.00 04-01-89 30.00 04-22-89 26.00 05-13-89 18.00 05-20-89 36.00 08-11-89 28.00 Total $691.00 Claimant's counsel should have had the doctor identify the charges related to the treatment for this injury, either by a written document or by his testimony in his deposition. If she had done so, it is possible that claimant would have been awarded more of the medical expenses. Wherefore, it is determined that claimant is entitled to $691.00 in medical expenses. conclusions of law WHEREFORE, based upon the foregoing and following principles of law, these conclusions of law are made. That claimant sustained an injury which arose out of and in the course of his employment with employer on October 22, 1987. Iowa Code section 85.3(1). That the injury was not caused by the willful act of a third party (Murlin Garrels) directed against the employee Page 16 (Gilbert Miller) for reasons personal to such employee. Iowa Code section 85.16(3). That the origin of the assault and the cause of the assault arose out of the employment circumstances and did not arise out of the personal lives of the employees. Cedar Rapids Community School v. Cady, 278 N.W.2d 298 (Iowa 1979); O'Callahan v. Dermedy, 197 Iowa 632, 196 N.W. 10, 197 N.W. 456 (1923); Everts v. Jorgensen, 227 Iowa 818, 289 N.W. 11 (1939). That the injury was the cause of both temporary and permanent disability. 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). That claimant is entitled to 41.143 weeks of healing period benefits. Iowa Code section 85.34(1). That claimant sustained an industrial disability of 15 percent of the body as a whole and is entitled to 75 weeks of permanent partial disability benefits. Iowa Code section 85.34(2)(u). That claimant is entitled to $691.00 in medical expenses. Iowa Code section 85.27. order THEREFORE, IT IS ORDERED: That defendants pay to claimant forty-one point one four three (41.143) weeks of healing period benefits at the stipulated rate of one hundred seventy-six and 39/100 dollars ($176.39) per week in the total amount of seven thousand two hundred fifty-seven and 21/100 dollars ($7,257.21) payable commencing on October 22, 1987. That defendants pay to claimant seventy-five (75) weeks of permanent partial disability benefits at the stipulated rate of one hundred seventy-six and 39/100 dollars ($176.39) per week in the total amount of thirteen thousand two hundred twenty-nine and 25/100 dollars ($13,229.25) payable commencing on August 5, 1988. That these amounts are to be paid in a lump sum. That interest will accrue pursuant to Iowa Code section 85.30. That defendants pay to claimant or the provider of medical services six hundred ninety-one and 00/100 dollars ($691.00) in medical expenses. That the costs of this action, including the costs of the attendance of the court reporter at hearing and the transcript of hearing, are charged to defendants pursuant to Page 17 rule 343 IAC 4.33; Iowa Code section 86.19(1). That defendants file claim activity reports as requested by this agency pursuant to rule 343 IAC 3.1. Signed and filed this ______ day of ____________, 1991. ______________________________ WALTER R. McMANUS, JR. DEPUTY INDUSTRIAL COMMISSIONER Copies To: Ms. Erin E. McCullough Attorney at Law 326 Fourth Street P.O. Box 207 Lake View, Iowa 51450 Ms. Iris J. Post Mr. Ross H. Sidney Mr. Mark W. Thomas Attorneys at Law 2222 Grand Avenue P.O. Box 10434 Des Moines, Iowa 50306 Page 1 5-1106; 1108.50; 5-1401 1402.20; 1402.30; 1402.40 5-1402.60; 1403.30; 1603 5-1802; 1803; 2501; 2700 Filed July 31, 1991 WALTER R. McMANUS, JR. before the iowa industrial commissioner ____________________________________________________________ : GILBERT MILLER, : : Claimant, : : File No. 861983 vs. : : A R B I T R A T I O N HALLETT MATERIALS, : : D E C I S I O N Employer, : : and : : UNITED STATES FIDELITY & : GUARANTY : : Insurance Carrier, : Defendants. : ____________________________________________________________ 5-1106; 1108.50; 5-1401; 1402.20; 1402.30; 1403.30; 1603 Claimant was kicked in the chest by a co-employee who lost his temper and became angry because claimant accidently knocked down the makeshift windbreak protecting the employees on a cold and windy day. It was determined that claimant sustained an injury arising out of and in the course of employment from this intentional assault. It was determined that this was not the willful act of a third party for reasons personal to such employee. More specifically, it was determined to be a willful act, as all assaults are, but that it was not directed against claimant for reasons personal to the employee, as a person and individual, arising out of their personal relations from matters outside of employment; but rather the incident arose out of, had its origin in, and was caused by the circumstances of the employment. Page 2 All known Iowa Supreme Court, industrial commissioner and deputy industrial commissioner decisions were reviewed and the willful injury defense has not prevailed in one single case. Larson was also cited extensively. 1402.40; 5-1802 Claimant awarded healing period benefits from the date of the injury until the treating physician awarded an impairment rating, implying that maximum medical improvement had been attained. 1402.40; 1803 Claimant, age 71, eighth grade education, foreclosed from employment with this employer and all past employments, who was a 20-year career employee of this employer, who began that employment at age 51, and who planned to work indefinitely, but also who had hypertension and coronary artery disease and did not seek any other employment, was awarded 15 percent industrial disability. Defendants failed to provide claimant with employment after the injury. Industrial disability for elderly employees discussed. Treating physician awarded 10 percent permanent impairment and defendants' evaluator did not find any permanent impairment or the need for any restrictions. Treating osteopathic physician preferred over defendants' board-certified orthopaedic surgeon whose evaluation was flawed in several respects. 5-1402.60; 2501; 2700 Osteopathic manipulative therapy was found to be reasonable and necessary for fractured ribs and shoulder injury. Charges were determined to be reasonable. Claimant allowed payment for charges that matched up with treatment for the chest pain and shoulder injury. Claimant's attorney failed to have the treating physician identify the charges related to this injury, either by a separate document or in his deposition. The charges that could be identified as treatment for this injury were allowed and other charges were not allowed because there was no evidence to support them. Page 1 before the iowa industrial commissioner ____________________________________________________________ : CANDACE HOLMES, : : Claimant, : : vs. : : File Nos. 844544 GLENWOOD STATE HOSPITAL- : 861984 SCHOOL, : : A P P E A L Employer, : : D E C I S I O N and : : STATE OF IOWA, : : Insurance Carrier, : Defendants. : ___________________________________________________________ STATEMENT OF THE CASE Defendants appeal from an arbitration decision awarding permanent partial disability benefits as the result of an alleged injury on November 3, 1986. The record on appeal consists of the transcript of the arbitration proceeding; defendants' exhibits 1 through 4; and joint exhibits 1 through 23. ISSUES None of the parties filed a brief on appeal. Therefore, the appeal will be considered generally and without regard to specific issues. REVIEW OF THE EVIDENCE The arbitration decision adequately and accurately reflects the pertinent evidence and it will not be set forth herein. APPLICABLE LAW The citations of law in the arbitration decision are appropriate to the issues and the evidence. ANALYSIS The issues in dispute between the parties at the arbitration hearing concerned whether the medical costs and healing period related to claimant's second surgery were causally connected to her work injury, and the nature and extent of claimant's present disability. Defendants urged a rejection of claimant's testimony as not credible. It is noted that claimant did apparently either conceal or minimize her condition in her job Page 2 application for rehiring. Although this may affect the weight given to claimant's testimony, it does not justify a total rejection of her testimony. The medical evidence consists of the testimony of two physicians. Schuyler Gooding, M.D., performed a left L4-5 interlaminal discectomy. At that time, Dr. Gooding noted: She underwent a total myelogram with Isovue M-300 under light general anesthesia on 2/3/87. This revealed a moderate bulging of the C5-C6 disc in the cervical region which was not felt to be surgically significant at this time. There was a more striking bulging of the L4-L5 disc in the lumbar region -- especially when the patient was raised to an erect posture. There was minimal bulging of the L5-S1 disc in the lumbar region. This was not felt to be surgically significant... (Exhibit 16) Leslie Hellbusch, M.D., examined claimant some time later, and performed a partial hemilaminectomy at L4-5 on the left, and a micro-lumbar discectomy at L5-S1, on the left. Claimant testified that she initially felt better after both surgeries, then her condition deteriorated after each surgery. Claimant gained weight after her first surgery, but Dr. Gooding reported a significant weight loss later as a result of a weight loss program. Claimant's symptoms continued after her weight loss. Claimant also described a 1979 automobile accident in which she suffered cervical and thoracic spine injuries. However, there is no evidence to indicate that claimant's present condition or her L5-S1 condition is causally connected to her 1979 automobile accident. Dr. Gooding did not operate on claimant's L5-S1 disc, and stated that it was not, at the time he was treating claimant, a significant injury: That that disc problem was the direct result of the original on-the-job injury, which brought this patient to my attention initially, I have no objective evidence (in the form of diagnostic studies that I obtained), or subjective evidence (in the form of my examination of her upon the occasion of her 11/19/87 visit), that she had a significant L5-S1 disc abnormality upon the occasion of her release from my care on 1/16/88... (Ex. 21) Dr. Gooding does not clearly state that claimant's L5-S1 disc condition, later operated on by Dr. Hellbusch, is not related to claimant's work injury. A reading of Dr. Gooding's statement yields no definite opinion by him on whether claimant's L5-S1 condition is causally connected to Page 3 her work injury. Dr. Gooding merely states that although the condition existed when he treated claimant, he did not regard it as significant at that time. Dr. Hellbusch stated, in a letter dated August 31, 1988, that the surgical procedure he performed was related to claimant's work injury. Dr. Hellbusch operated on both the L4-5 level and the L5-S1 level in that surgery. Thus, Dr. Hellbusch appears to causally connect both conditions to claimant's work injury. Dr. Gooding's statement is ambiguous as to causal connection between the L5-S1 condition and claimant's work injury. Dr. Hellbusch's statement as to causal connection is more definite. In addition, Dr. Hellbusch's conclusion is corroborated by claimant's lack of symptoms prior to her work injury, and the lack of evidence of any intervening cause for her present complaints. It is concluded that claimant has shown by a preponderance of the evidence that her L5-S1 condition is causally connected to her work injury of November 3, 1986. As a result, defendants are responsible for claimant's medical costs, including the second surgery. Claimant is also entitled to a healing period from August 1, 1988 to November 24, 1988. Claimant's injury is to the body as a whole, and thus claimant has suffered an industrial disability. Claimant was 39 years old at the time of the hearing on January 31, 1989. Claimant was injured on November 3, 1986. Claimant's age puts her at a time of her life when normally her earnings would be at a maximum. Claimant is also young enough to be retrained, and in fact claimant is training to become a chemical dependency counselor, although claimant has doubts she will be able to perform this job due to an inability to drive a car because of her injury. Dr. Gooding rated claimant's permanent partial impairment as 15 percent of the body as a whole, and imposed a maximum lifting restriction of 40 pounds, and a repetitive lifting restriction of 25 pounds. Dr. Hellbusch rated claimant's permanent partial impairment as 20-25 percent of the body as a whole, with a restriction against lifting more than 20 pounds and no repetitive back bending. Claimant's education consists of a high school diploma and two years of college. Claimant has worked in both the advertising and insurance industries, and claimant is a certified medication aide and obstetrics technician. Claimant has experience as a residential treatment worker, but cannot return to that occupation. Claimant applied to return to work for her former employer in a light duty capacity, but the employer did not rehire her. However, claimant has not demonstrated good motivation in that she has not made any other job applications. Based on these and all other appropriate factors for determining industrial disability, claimant is determined to have an industrial disability of 40 percent. FINDINGS OF FACT Page 4 1. Claimant suffered an injury to her back arising out of and in the course of her employment on November 3, 1986. 2. Claimant was born on February 11, 1949. 3. Claimant has received ratings of permanent partial impairment of 15 percent of the body as a whole and 20-25 percent of the body as a whole; and a repetitive lifting restriction of 25 pounds from Dr. Gooding, and a lifting restriction of 20 pounds and no repetitive back bending by Dr. Hellbusch. 4. Claimant has a high school education and two years of college, including training as a chemical dependency counselor. 5. Claimant has work experience in advertising, in insurance, and as a residential treatment worker. Claimant is a certified medication aide and obstetrics technician. 6. Claimant applied to return to her former job but her employer did not rehire her. 7. Claimant did not apply for any other jobs. 8. The November 3, 1986 injury to claimant's low back was a substantial factor in producing the need for the surgery and other medical treatment which claimant received under the direction of Dr. Leslie Hellbusch. 9. Claimant has experienced a 40 percent loss of her earning capacity as a result of the physical impairment and limitations which were produced by the November 3, 1986 injury. Page 5 CONCLUSIONS OF LAW The injury of November 3, 1986 was a proximate cause of the surgery and treatment provided to Candace Holmes by Dr. Leslie Hellbusch and the period of recuperation following surgery and medical expenses incurred in the course of that treatment. Defendants are responsible for the costs of medical treatment incurred under the direction of Dr. Hellbusch. Defendants are responsible to pay healing period compensation to claimant for the period of August 1, 1988 to November 24, 1988, a period of 16 4/7 weeks. Claimant is entitled to recover 200 weeks of compensation for permanent partial disability under the provisions of Code section 85.34(2)(u). WHEREFORE, the decision of the deputy is affirmed. ORDER THEREFORE, it is ordered: That defendants pay claimant sixteen and four-sevenths (16 4/7) weeks of healing period compensation at the stipulated rate of one hundred eighty-two and 73/100 dollars ($182.73) per week payable commencing August 1, 1988. That defendants pay claimant two hundred (200) weeks of compensation for permanent partial disability at the stipulated rate of one hundred eighty-two and 73/100 dollars ($182.73) per week payable commencing January 27, 1988. The permanent partial disability compensation is to be interrupted by the sixteen and four-sevenths (16 4/7) weeks of healing period payable commencing August 1, 1988 and then resumed to be paid commencing November 25, 1988 until the entire amount is fully paid. That defendants pay claimant's medical expenses associated with her surgery and treatment under Dr. Hellbusch. That defendants pay the costs of this action pursuant to Division of Industrial Services Rule 343-4.33 in the amount of one hundred twenty and 00/100 dollars ($120.00) as shown in items B and C of the costs statement submitted by claimant. That defendants file claim activity reports as requested by this agency pursuant to Division of Industrial Services Rule 343-3.1. Page 6 Signed and filed this ____ day of August, 1990. ________________________________ CLAIR R. CRAMER ACTING INDUSTRIAL COMMISSIONER Copies To: Mr. Sheldon M. Gallner Attorney at Law 803 Third Avenue P.O. Box 1588 Council Bluffs, Iowa 51502 Mr. Robert D. Wilson Assistant Attorney General Tort Claims Division Hoover State Office Building Des Moines, Iowa 50319 5-2500; 5-1803 Filed August 30, 1990 CLAIR R. CRAMER before the iowa industrial commissioner ____________________________________________________________ : CANDACE HOLMES, : : Claimant, : : vs. : : File Nos. 844544 GLENWOOD STATE HOSPITAL : 861984 SCHOOL, : : A P P E A L Employer, : : D E C I S I O N and : : STATE OF IOWA, : : Insurance Carrier, : Defendants. : ___________________________________________________________ 5-2500 Medical benefits awarded where one doctor gave a definitive opinion as to causal connection to the work injury, and second doctor's statement was ambiguous as to causal connection. 5-1803 Claimant, 39 years old, with ratings of permanent partial impairment of 15 percent and 20-25 percent of the body as a whole, lifting restriction of 40 pounds, high school education, and two years of college, work experience in insurance, residential treatment, and as an obstetrics aide and medication aide, but who had not sought alternative employment, awarded 40 percent industrial disability. BEFORE THE IOWA INDUSTRIAL COMMISSIONER RICK HATCHER, File No. 861992 Claimant A R B I T R A T I O N vs. D E C I S I O N DRENNEN TRUCKING, F I L E D Employer, Defendant. JAN 20 1989 IOWA INDUSTRIAL COMMISSIONER INTRODUCTION This is a proceeding brought by Richard Hatcher, claimant, against Drennen Trucking, employer, to recover benefits as a result of an injury sustained on January 13, 1988. This matter came on for hearing before the undersigned deputy industrial commissioner in Council Bluffs, Iowa, on November 18, 1988. Defendant employer failed to appear personally or by an attorney. The file indicated employer did not file an answer even after being ordered to do so and sanctions were ordered on May 5, 1988 closing the record to further evidence by defendant. The record in this proceeding consists of the testimony of claimant, Richard Hatcher, and claimant's exhibits 1 through 8. ISSUES 1. Whether claimant's injury arose out of and in the course of his employment on January 13, 1988; 2. Whether claimant's disability is causally connected to his injury of January 13, 1988; and 3. Whether claimant is entitled to healing period, temporary total disability or permanent partial disability benefits. REVIEW OF THE EVIDENCE Claimant testified that on January 13, 1988, he received an injury when, while working for defendant, he slipped on ice located on the bed of defendant's truck and fell to the ground. Claimant testified that when he fell from the truck, his right foot was twisted back under him. He was taken to the nearest hospital by the owner of the house where the lumber was delivered. At approximately 10:30 or 11:00 a.m., claimant called the employer from the hospital. Claimant said the employer told him to get everything done and do what the doctor said. Claimant testified he was told by the doctor to stay off his feet for three or four days and then he could try to go home. The doctor told him to go to a hotel and not a hospital to see how he got along. Claimant said he stayed at the home where he was unloading the lumber and then on January 17, 1988 drove the defendant's truck back to the defendant's place of business. Claimant testified he had trouble driving and had to stop a lot because of pain in his right foot which he used for the brakes and stepping on the gas. It took four days to drive back to defendant. Claimant testified that the employer said to see a doctor of claimant's choice to obtain the medical attention he needed. On January 22 or 23, 1988, claimant first saw Jack A. McCarthy, M.D., at Mercy Hospital, in Omaha, the earliest that claimant could get into the doctor's office for an appointment. Dr. McCarthy wrote on January 21, 1988 in an office record, "Because of the severity of his pain and limitation in range of motion, I will place him in a short leg walking cast, follow him up with removal of such in approximately two weeks." (Claimant's Exhibit 2) The medical records of Dr. McCarthy indicate that claimant complained of increasing discomfort in his right ankle but repeat x-rays were negative. This doctor's notes of March 16, 1988 continues to indicate claimant's complaint of pain to the right ankle and suggestion of possible arthroscope to determine if an osteochondral fragment may be present. An injection of lidocaine and cortisone occurred. On March 1, 1988, claimant testified that he went to work at Action Trucking Company, South Dakota. He did not go back to his former employer, the defendant, as claimant concluded at this time defendant had no insurance. Claimant indicated the defendant fired him January 25, 1988 because defendant was upset with the medical bills that resulted from claimant's injury. The employer got mad at the doctor bills and said to claimant that defendant had no more use for claimant. Claimant testified that he worked from March 1, 1988 to April 9, 1988 at Action Trucking as an over-the-road driver, but the pains were so bad that it was hard to drive. Claimant stated that instead of driving the normal eight hours and then taking his rest, claimant could only drive five hours and had to rest one and one-half to two hours because of severe pain. Claimant testified he continued to see Dr. McCarthy or Dr. McCarthy's partner, Timothy C. Fitzgibbons, M.D. Dr. McCarthy;s and Dr. Fitzgibbons' notes continued to indicate claimant's complaint of same symptoms. On May 31, 1988, claimant discussed with his doctor the setting of an appointment for an outpatient arthroscopic exam which in fact took place on June 10, 1988. Claimant testified that on August 1, 1988 everything has healed and he has had no problems at all. Claimant testified he was off work due to the injury from January 21, 1988 to March 1, 1988 and from April 9, 1988 to August 1, 1988. On June 10, 1988, Dr. Timothy C. Fitzgibbons wrote in the medical report, "brief examination of the right ankle under anesthesia. Arthroscopy. Extensive subtotal synovectomy and removal of fibrous bands from the right ankle." (Cl. Ex. 2) On June 17, 1988 Dr.Fitzgibbons wrote in his medical notes: The patient's wounds look fine. They were a little concerned about some redness last night, but in general both wounds look just fine now. He still has some more healing to go through, but I think that in general we are pleased. We did spend some time going through his videotape and I showed him the extensive synovitis of synovial thickening. I really think this was a clear-cut case of anterior and anterolateral impingement, but he also had some bony impingement and some early degenerative changes. We released all of these adhesions and all of this thickened synovium and now we're going to start him in therapy and just see how he responds....He will do therapy for about six weeks, three times a week for three weeks and then once a week for three weeks.... (Cl. Ex. 2) APPLICABLE LAW AND ANALYSIS Claimant has the burden of proving by a preponderance of the evidence that he received an injury on January 13, 1988 which arose out of and in the course of his employment. McDowell v. Town of Clarksville, 241 N.W.2d 904 (Iowa 1976); Musselman v. Central Telephone Co., 261 Iowa 352, 154 N.W.2d 128 (1967). An employee is entitled to compensation for any and all personal injuries which arise out of and in the course of the employment. Section 85.3(1). The injury must both arise out of and be in the course of the employment. Crowe v. DeSoto Consol. Sch. Dist., 246 Iowa 402, 68 N.W.2d 63 (1955) and cases cited at pp. 405-406 of the Iowa Report. See also Sister Mary Benedict v. St. Mary's Corp., 255 Iowa 847, 124 N.W.2d 548 (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. "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; Musselman, 261 Iowa 352, 154 N.W.2d 128. It is apparent from the file that claimant served the defendant with a copy of the original notice and petition and defendant has failed to respond. Claimant's testimony is uncontroverted. It is apparent from claimant's testimony that his injury arose out of and in the course of his employment with defendant and nothing is indicated otherwise. The claimant has the burden of proving by a preponderance of the evidence that the injury of January 13, 1988 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). Claimant has sustained his burden. Iowa subsection 85.33(1) provides: Except as provided in subsection 2 of this section, the employer shall pay to an employee for injury producing temporary total disability weekly compensation benefits, as provided in section 85.32, until the employee has returned to work or is medically capable of returning to employment substantially similar to the employment in which the employee was engaged at the time of injury, whichever occurs first. Claimant has not shown evidence of any permanent disability. Claimant testified that on August 1, 1988 everything was healed and he has no problem at all. Claimant stated that from January 21, 1988 to March 1, 1988 and April 9, 1988 to August 1, 1988 he was off work due to the January 13, 1988 injury. The evidence presented indicates the claimant has a gross weekly wage of $353.04 and is entitled to a rate of $215.50. As a result of claimant's injuries, claimant has had medical bills of $1,866. FINDINGS OF FACT 1. On January 13, 1988, claimant was injured while working for defendant. 2. As a result of his injury, claimant was off work from January 21, 1988 to March 1, 1988 and April 9, 1988 to August 1, 1988. 3. As a result of his injury, claimant had medical bills of $1,866.70. 4. That the weekly rate is $215.50. CONCLUSIONS OF LAW THEREFORE, it is ordered: Defendant shall pay unto claimant twenty-two point two eighty-six (22.286) weeks of temporary total disability benefits at the stipulated rate of two hundred fifteen and 50/100 dollars ($215.50) per week. Defendant shall reimburse claimant for medical expenses in the total amount of one thousand eight hundred sixty-six and 70/100 dollars ($1,866.70). Defendant shall pay the weekly benefits in a lump sum. Defendant shall pay interest on benefits awarded herein as set forth in Iowa Code section 85.30. Defendant shall pay the costs of this action pursuant to Division of Industrial Services Rule 343-4.33. Defendant shall file a first report of injury. Defendant shall file an activity report upon payment of this award as required by this agency pursuant to Division of Industrial Services Rule 343-3.1. Signed and filed this 20th day of January, 1989. BERNARD J. O'MALLEY DEPUTY INDUSTRIAL COMMISSIONER Copies To: Mr. Verd R. Bailey Attorney at Law Dahil Bldg. 109 E. Main P.O. Box 166 Clarinda, IA 51632 Drennen Trucking, Inc. Box 94 Clarinda, IA 51632 CERTIFIED & REGULAR MAIL 1801 Filed January 20, 1989 Bernard J. O'Malley BEFORE THE IOWA INDUSTRIAL COMMISSIONER RICK HATCHER, Claimant, File No. 861992 vs. DRENNEN TRUCKING, A R B I T R A T I O N Employer, D E C I S I O N Defendant. 1801 Claimant slipped and fell from truck while unloading lumber. Defendant never filed a first report of injury. Defendant did not file an answer nor came to court. Temporary total disability benefits for 22.286 weeks awarded. BEFORE THE IOWA INDUSTRIAL COMMISSIONER ELDON L. KRAGER & ELDON L. KRAGER ESTATE BY LORRAINE KRAGER, EXECUTOR & LORRAINE KRAGER, SURVIVING SPOUSE, Claimant, File No. 861998 vs. A R B I T R A T I O N HOWARD EHLERS d/b/a D E C I S I O N FARMERS AG SUPPLY, Employer, F I L E D and SEP 26 1989 FARMLAND MUTUAL INSURANCE INDUSTRIAL SERVICES COMPANY, Insurance Carrier, Defendants. STATEMENT OF THE CASE This is a proceeding in arbitration brought by the Eldon L. Krager estate against defendant employer Howard Ehlers, d/b/a Farmers Ag Supply, and defendant insurance carrier Farmland Mutual Insurance Company to recover benefits under the Iowa Workers' Compensation Act as the result of the death of Eldon L. Krager subsequent to an injury sustained on September 1, 1987. This matter came on for hearing before the undersigned in Council Bluffs, Iowa, on August 31, 1989. The matter was considered fully submitted at the close of hearing. Defendant Farmland filed a brief at hearing. By order of Deputy Industrial Commissioner Michelle A. McGovern dated February 3, 1989, the cause was bifurcated for hearing. The issue to be determined was whether a contract of insurance entered into between defendant Howard Ehlers and defendant Farmland Mutual Insurance Company should be reformed to include workers' compensation coverage. The record in the proceeding consists of joint exhibits 1 through 14 and the testimony of Scott Randall, Howard Ehlers and Sharon Ehlers. ISSUE Pursuant to the hearing assignment order filed May 17, 1989, the sole issue to be determined in this bifurcated hearing is whether the contract of insurance entered into between Howard Ehlers and Farmland Mutual Insurance Company should be reformed to include workers' compensation coverage. REVIEW OF THE EVIDENCE Howard Ehlers testified that he and his wife Sharon Ehlers were partners in a family business known as Farmers Ag Supply in September, 1987. The business has since been incorporated. Mr. Ehlers testified that when he took over the business (a feed grain supply business) he sought advice from his principal supplier as to where he should seek insurance coverage. As a result, he entered into an insurance agreement with an insurance carrier known as IGF Insurance Company, sometimes referred to in the evidence as Iowa Grain and Feed. The policy with IGF included a number of coverages including workers' compensation coverage. However, IGF eventually made a business decision to cease providing such insurance coverage to small businesses such as Farmers Ag Supply, and Ehlers received notice that the policy would not be renewed effective June 9, 1986. Thereafter, Mr. Ehlers contacted insurance agency Paul Larson of Grinnell Mutual Reinsurance Company. Mr. Larson was asked to write a replacement policy, and Ehlers actually gave Larson the IGF policy to take with him as a sample. Ehlers testified that he relied upon Mr. Larson to provide adequate coverage for this business. The record shows that Grinnell Mutual Reinsurance Company did issue a business policy effective June 1, 1986. However, the policy was at substantial variance from the IGF policy in that no workers' compensation coverage was written. This omission was not pointed out to Ehlers, and he also failed to notice the omission when he personally reviewed the policy. Thereafter, Ehlers believed that he had continuing workers' compensation insurance coverage, but in fact no such policy was in effect. Ehlers also testified that his son-in-law, Scott Randall, approached him on behalf of Farmland Mutual Insurance Company with a request that he allow Randall's boss to give him a competitive price quotation for business coverage. Mr. Randall's boss was Mr. John Larson, a district manager for Farmland Mutual Insurance Company. Mr. Ehlers believed that John Larson and Randall visited him three times, once for an interview, once to sign the application, and once to deliver the policy. He specifically testified that he asked Randall and Larson to provide a price quote to "replace" his current policy. Mr. Ehlers still believed his then-current policy with Grinnell Mutual Reinsurance included workers' compensation coverage and believed that the "replacement" policy from Farmland would do likewise. He testified further that he was not informed by Randall or Larson that the proposed Farmland policy did not include workers' compensation coverage, and in fact never discussed with those two individuals whether or not the business even had employees. Mr. Ehlers did not read the Farmland policy when he received it and did not realize that workers' compensation coverage was not included. He characterized himself as unsophisticated in matters of insurance and an individual who relies upon insurance agents to advise as to what coverage is needed. He testified in his deposition that he relied upon Paul Larson of Grinnell Mutual to provide workers' compensation coverage and stated at page 50 of his deposition that he relied upon both John Larson and Scott Randall to provide him with suitable and adequate coverage for his business. However, he also specified that his dealings with Mr. Randall were to determine "whether or not he could provide (Ehlers) with the same insurance that Grinnell had for less money" (exhibit 3, pages 70-71) and that his instructions to the agents were to "just write the business and the liability policy as it was" (exhibit 3, page 74). Mr. Ehlers further testified on cross-examination that he was given quotes by Farmland Mutual for business and business automobile coverage and that he accepted the business coverage while rejecting the business auto coverage. He stated that this was strictly a price decision based on the lower rate and better coverage for the business policy, but that the business auto policy was more expensive and that this was why it was rejected. He agreed that the issue of workers' compensation coverage was never discussed with John Larson or Scott Randall. Sharon Ehlers testified that she had no real disagreement with her husband's testimony. Scott Randall testified that he was in the Farmland preemployment program in September, 1986, and that this was his first work in the insurance industry. He agreed that at that time he had only a very general understanding of insurance. He testified that he is related as a son-in-law to Howard and Sharon Ehlers and that he himself solicited the Ehlers to sell insurance. Mr. Randall agreed that he was aware that Farmers Ag Supply had employees, but that his instructions from Mr. Ehlers were to "give me a quote based on what I have." He believed that the Grinnell policy was the sum total of Farmers Ag Supply's business insurance, and that the Grinnell policy was actually given to John Larson for review. He did not recall any discussion of workers' compensation coverage and did not recall whether the issue of employees was raised in conversation. In any event, he did not tell John Larson that the Ehlers had employees. He did not realize that workers' compensation coverage was omitted from the Grinnell policy. On cross-examination, Mr. Randall agreed that his understanding of his job was simply to attempt to provide a price quotation lower than that of Grinnell Mutual. Mr. Randall agreed on redirect examination that the Ehlers were not specifically advised that he lacked a grounding in workers' compensation insurance, but it was his belief that the Ehlers pretty much knew how limited his knowledge of the insurance industry was at that early stage in his career. John Larson testified through the admission of his deposition taken April 18, 1989. He agreed that he accompanied Mr. Randall to the first meeting with Mr. Ehlers because it was part of his responsibility as a trainer or supervisor to see that he was doing the job correctly. He understood the point of the meeting was to provide Farmland with the opportunity simply to beat the cost of the Grinnell Mutual policy. Further, he indicated that this is a common method of competing with other insurance carriers. Mr. Larson agreed that he was not aware that Farmers Ag Supply had employees or a need for workers' compensation coverage. He thought it was a "Mom and Pop" operation. Mr. Larson indicated that he had been asked only to provide a quote for replacing the Grinnell Mutual coverage and felt no responsibility to inquire or to determine whether Farmers Ag Supply was in need of workers' compensation coverage or any other kind of insurance coverage. As workers' compensation coverage was never discussed, he believed that he had completely fulfilled his responsibilities by providing price quotes for coverage essentially identical to that of Grinnell Mutual (with slightly higher liability limits in at least one area). APPLICABLE LAW AND ANALYSIS Reformation of contract is an equitable remedy applied when the remedy is essential to the ends of justice. Facts and circumstances must be sufficiently compelling to appeal to the conscience of the adjudicator to mitigate the rigorous rules of law. Merle 0. Milligan Co., Inc., v. Lott, 220 Iowa 1043, 263 N.W. 262 (1936). The Iowa Supreme Court,has discussed reformation of instruments in Kufer v. Carson, 230 N.W.2d 500 (Iowa 1975): The rules governing reformation of an instrument are well established. One who seeks reformation contending the instrument does not reflect the real agreement between the parties has the burden of establishing his contention by clear, satisfactory and convincing proof. Akkerman v. Gersema, 260 Iowa 432, 149 N.W.2d 856; Wallace v. Spray, 248 Iowa 100, 78 N.W.2d 406; Clingerman v. Koehler, 247 Iowa 105, 73 N.W.2d 185. The term clear and convincing has been held to connote establishment of facts by more than a preponderance of evidence but something less than establishing a factual situation beyond a reasonable doubt. In re Henderson, 199 N.W.2d 111 (Iowa 1972). Reformation of course does not mean changing terms of an instrument but refers to a change in the instrument to reflect the real agreement of the parties. Baldwin v. Equitable Life Assur. Soc. of U. S., 252 Iowa 639, 108 N.W.2d 66. See 76 C.J.S. Reformation of Instruments, Section 30. * * * Generally, a writing will be reformed only if the party seeking reformation clearly and convincingly establishes that it does not express the true agreement of the parties because of fraud or duress, mutual mistake of fact, mistake of law, mistake of one party and fraud or inequitable conduct on the part of the other. Ultimately equity will grant relief if an instrument as written fails to express the true agreement between the parties without regard to the cause of the failure to express the agreement as actually made, whether it is due to fraud, mistake in the use of language, or anything else which prevented the instrument from expressing the true intention of the parties. Walnut Street Baptist Church v. Oliphant, 257 Iowa 879, 135 N.W.2d 97; In re Estate of Jenkins, 201 Iowa 423, 205 N.W. 772; Costello v. Stokely Grain Co., 193 Iowa 203, 186 N.W. 842; see Thompson, Reformation of Written Instruments in Iowa, 23 Drake L.Rev. 327. See generally, Corbin on Contracts, 1960 Ed., Vol. 3, SS 614, page 713 and Section 615, p. 735. The evidence is undisputed that the written contract of insurance did not fail to express the true agreement between the parties. The agreement between the parties was that the agents of Farmland Mutual were to provide a price quotation for the same insurance coverage that Farmers Ag Supply had with Grinnell Mutual. While Mr. and Ms. Ehlers clearly misunderstood what coverage Grinnell Mutual provided in its policy, that misunderstanding was never communicated to either Scott Randall or John Larson. There is no evidence whatsoever of fraud or duress, there was no mutual mistake of fact (only the Ehlers were not aware that workers' compensation coverage was not provided in the Grinnell Mutual policy), there was no mistake of law, and even though there was a mistake on the part of one party, there was no fraud or inequitable conduct on the part of Farmland Mutual Insurance Company or its agents. The instrument as written does express the true agreement between the parties. As such, it is not subject to reformation. As Farmland Mutual sets forth in its brief, 17 Couch on Insurance 2d Section 66.16 states: The unexpressed intent of the insured cannot be the basis for reformation of the contract issued by the insurer in ignorance of any such intention. All of the parties to the conversations leading to the issuance of this insurance contract agree that the agents of Farmland Mutual were never advised that Farmers Ag Supply desired workers' compensation coverage. While equity does not demand a reformation of this contract on these facts, it is evident that the relief sought would actually operate to create a clear and intolerable inequity. For the reasons stated, the contract of insurance between Farmland Mutual Insurance Company and Howard Ehlers, d/b/a Farmers Ag Supply, cannot be reformed to provide for workers' compensation insurance coverage. The contract agreed to by the parties does represent their true and complete agreement. FINDINGS OF FACT THEREFORE, based on the evidence presented, the following ultimate facts are found: 1. Defendant.employer purchased insurance originally from an insurance carrier known as IGF Insurance Company. The policy included workers' compensation coverage. 2. After IGF Insurance Company ceased carrying the small business line of insurance, defendant employer obtained a policy from an insurance carrier known as Grinnell Mutual Reinsurance Company. Apparently through error or misunderstanding, that policy did not contain workers' compensation coverage. 3. Agents of Farmland Mutual Insurance Company gave defendant employer price quotes on insurance intended to exactly replace the Grinnell Mutual policy. It was never made known to agents of Farmland Mutual that defendant employer desired workers' compensation coverage. 4. Farmland Mutual Insurance Company did issue a contract of business liability insurance without workers' compensation coverage, although defendant employer rejected an offered insurance policy for business automobile coverage. 5. Although Howard Ehlers intended to purchase workers compensation coverage from Farmland Mutual Insurance Company, this was never made known to agents of Farmland Mutual. 6. The agents of Farmland Mutual Insurance Company, John Larson and Scott Randall, did not engage in fraud or misrepresentation of any kind in dealing with Howard Ehlers or Sharon Ehlers. CONCLUSION OF LAW WHEREFORE, based on the principles of law previously stated, the following conclusion of law is made: 1. The contract of insurance between Farmland Mutual Insurance Company and Howard Ehlers, d/b/a Farmers Ag Supply, is not subject to reformation because it does reflect the real and complete agreement between the parties. ORDER THEREFORE, IT IS ORDERED: The contract of insurance between Farmland Mutual Insurance Company and Howard Ehlers, d/b/a Farmers Ag Supply, is not subject to reformation. Defendant Farmland Mutual Insurance Company is dismissed as a party defendant because it has no insurance coverage or resulting liability in this case. The costs of this matter shall be assessed to claimant. Because this matter has been bifurcated, the matter shall be returned to the assignment docket for further proceedings. Signed and filed this 26th day of September, 1989. DAVID RASEY DEPUTY INDUSTRIAL COMMISSIONER Copies To: Mr. Mark R. Cozine Attorney at Law 427 West Main P.O. Box 100 Cherokee, Iowa 51012 Mr. Willis J. Hamilton Attorney at Law 606 Ontario Street P.O. Box 188 Storm Lake, Iowa 50588 Mr. Cecil L. Goettsch Attorney at Law 1100 Des Moines Building Des Moines, Iowa 50309 Mr. David L. Sayre Attorney at Law 223 Pine Street P.O. Box 535 Cherokee, Iowa 51012 2105 Filed September 26, 1989 DAVID RASEY BEFORE THE IOWA INDUSTRIAL COMMISSIONER ELDON L. KRAGER & ELDON L. KRAGER ESTATE BY LORRAINE KRAGER, EXECUTOR & LORRAINE KRAGER, SURVIVING SPOUSE, Claimant, vs. File No. 861998 HOWARD EHLERS d/b/a A R B I T R A T I O N FARMERS AG SUPPLY, D E C I S I O N Employer, and FARMLAND MUTUAL INSURANCE COMPANY, Insurance Carrier, Defendants. 2105 Insurance Carrier provided insurance coverage essentially coterminous with previous policy as per employer's request. Due to error, previous policy did not include workers' compensation coverage. Reformation of the insurance contract was denied, because the contract did represent the actual intent of the parties.