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.