BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         DOROTHY JARR,
 
         
 
              Claimant,                              File No. 865310
 
         
 
         vs.                                      A R B I T R A T I O N
 
         
 
         KELLER INDUSTRIES, INC.,                    D E C I S I O N
 
         
 
              Employer,                                 F I L E D
 
         
 
         and                                           NOV 30 1989
 
         
 
         CIGNA PROPERTY & CASUALTY CO.,            INDUSTRIAL SERVICES
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
                                   INTRODUCTION
 
         
 
              This is a proceeding in arbitration brought by Dorothy Jarr 
 
         against Keller Industries, Inc., her former employer, and its 
 
         insurance carrier, Cigna Property & Casualty Company.
 
         
 
              Claimant alleges that she sustained injury to her neck and 
 
         shoulder girdle which arose out of and in the course of her 
 
         employment.  Claimant seeks compensation for temporary total 
 
         disability or healing period, permanent partial disability and 
 
         payment of medical expenses.
 
         
 
              The case was heard and fully submitted on March 28, 1989 at 
 
         Davenport, Iowa.  The record in the proceeding consists of 
 
         testimony from Dorothy Jarr and Mary Matthias.  The record 
 
         contains jointly offered exhibits 1 through 49 and 51.
 
         
 
                                   ISSUES
 
         
 
              The issues presented by the parties for determination are: 
 
         Whether claimant sustained any injury which arose out of and in 
 
         the course of employment; determination of whether any alleged 
 
         injury produced any temporary or permanent disability; the extent 
 
         of any entitlement to compensation for temporary total 
 
         disability, healing period or permanent partial disability; and, 
 
         whether any causal connection exists between the alleged injury 
 
         and the medical expenses which claimant incurred.
 
         
 
                             SUMMARY OF EVIDENCE
 
         
 
              The following is a summary of evidence presented in this 
 
         case.  Only the evidence most pertinent to this decision is 
 
                                                
 
                                                         
 
         discussed, but all of the evidence received at the hearing was 
 
         considered in arriving at this decision.  Conclusions about what 
 
         the evidence showed are inevitable with any summarization.  The 
 
         conclusions in the following summary should be considered to be 
 
         preliminary findings of fact.
 
         
 
              Dorothy Jarr is a 28-year-old married lady who has three 
 
         children, the last of whom was born on December 21, 1986.
 
         
 
              Claimant's formal education ended six months before high 
 
         school graduation when she quit school in order to get married, 
 
         but she has subsequently obtained a GED.
 
         
 
              Jarr is presently employed by Rockwell International 
 
         Corporation at Fairfield, Iowa.  According to exhibit 44, 
 
         claimant was hired on February 15, 1988 and has progressed from a 
 
         starting wage of $3.92 per hour to $5.67 per hour.  Her first two 
 
         weeks of employment were spent attending courses at Indian Hills 
 
         Community College.  When applying for the job,.claimant denied 
 
         having any condition which might limit her ability to perform any 
 
         work assignment.  She denied ever receiving treatment or 
 
         consultation for back pains or back injury.  She denied having 
 
         recurrent joint pains or arthritis.  A preemployment physical 
 
         examination conducted by Terry J. Sutton, M.D., disclosed no 
 
         abnormalities affecting claimant's upper extremities or spine 
 
         (exhibit 47). Claimant stated that she did not disclose her 
 
         physical problems on the application because she wanted the job 
 
         and was afraid that she would not be hired if the condition were 
 
         disclosed.  Claimant also testified that she obtained the job 
 
         through the Ottumwa Job Service office where she had disclosed 
 
         her physical restrictions.
 
         
 
              Claimant described her work history as consisting of driving 
 
         a school bus, performing cleanup work at a packing plant and 
 
         working for a janitorial service.
 
         
 
              Claimant testified that she had no major medical problems 
 
         prior to the time she commenced employment with Keller.  She 
 
         related an automobile accident which had occurred in 1978 or 1979 
 
         which she stated did not cause any permanent problems.
 
         
 
              Claimant testified that she began employment with Keller 
 
         Industries on April 23, 1986.  On cross-examination, claimant 
 
         stated that she would not dispute records which showed her 
 
         employment to have started June 23, 1986.
 
         
 
              Claimant stated that her first job with Keller was operating 
 
         a rivet gun to rivet steps into ladders.  She stated that the 
 
         work required her to pull down on the rivet gun which was mounted 
 
         on a cable and hold both the gun and the ladder down while 
 
         riveting. Claimant stated that she held the gun with her right 
 
         hand and the ladder with her left.  She reported that she began 
 
         to develop soreness between her shoulders and reported it to her 
 
         supervisor. Claimant stated that she was then moved to the wooden 
 
         ladder line where she ran rods under the steps of ladders and 
 
                                                
 
                                                         
 
         then tightened them.  Claimant stated that at times she worked 
 
         alone and at times with other workers.  Claimant stated that she 
 
         was required to move, lift and carry ladders.  Claimant stated 
 
         that she worked at a table which was higher than her waist and 
 
         that the job required use of her upper body, arms and shoulders.
 
         
 
              Claimant testified that she developed a pain and burning 
 
         sensation between her shoulders and that the pain spread to her 
 
         head, neck, arms and hands.  Claimant stated that she reported 
 
         her discomfort to her supervisors on several occasions, but that 
 
         nothing was done.
 
         
 
              Eventually, on October 3, 1986, claimant sought treatment on 
 
         her own from William Catalona, M.D., (exhibit 2).  According to 
 
         exhibit 2, Dr. Catalona contacted Keller and was directed to 
 
         refer claimant to the company physician.  Claimant then saw P. A. 
 
         Tranmer, M.D., also on October 3, 1986.  When seen by Dr. 
 
         Catalona, claimant exhibited pain at the extremes of neck motion 
 
         as well as tenderness along the trapezius muscle on the right 
 
         side of her neck and shoulder.  Shoulder elevation against 
 
         resistance also elicited complaints of discomfort.  Dr. Catalona 
 
         felt that claimant was suffering from a strain caused by motions 
 
         she performed at work.  Dr. Tranmer found claimant to have right 
 
         shoulder and back pain and placed claimant on light duty. 
 
         Medications were not prescribed at that time because claimant was 
 
         six months pregnant (exhibit 1, page 1).
 
         
 
              Claimant was assigned to work placing paper stickers on 
 
         ladders commencing October 7, 1986.  Dr. Tranmer indicated that 
 
         labeling the ladders should not aggravate claimant's condition 
 
         (exhibit 1, page 2).  Claimant continued to complain and was 
 
         eventually referred to neurologist James Worrell, M.D.  On 
 
         October 13, 1986, Dr. Worrell examined claimant and determined 
 
         that she had a cervical strain disorder.  EMG tests were 
 
         completely normal. He recommended that claimant continue to work 
 
         in a light-duty status (exhibit 3).  On October 21, 1986, 
 
         claimant was seen by Richard F. Neiman, M.D., a neurologist who 
 
         practices with Dr. Worrell.  Dr. Neiman recommended that claimant 
 
         be taken off work for two weeks (exhibit 6).  Drs. Tranmer and 
 
         Catalona also recommended that claimant be taken off work for two 
 
         weeks (exhibits 4 and 5).  Thereafter claimant remained off work 
 
         until January 27, 1987.  She delivered her third child on 
 
         December 21, 1986.
 
         
 
              During the time claimant was off work she was placed in 
 
         physical therapy.  By November 14, 1986, claimant had experienced 
 
         a decrease in her pain level and improvement of her range of 
 
         motion, although complete pain relief had not been accomplished 
 
         (exhibit 10).  Further treatment was deferred until after the 
 
         delivery of her child (exhibits 11 and 12).  On January 19, 1987, 
 
         Dr. Worrell recommended that claimant start an exercise program 
 
         (exhibit 14).  On January 26, 1987, he released her to return to 
 
         work with a 20-pound lifting restriction (exhibit 17).  Claimant 
 
         testified that when she returned to work on January 27, she was 
 
         assigned to operate a machine.  Claimant stated that the person 
 
                                                
 
                                                         
 
         who was supposed to teach her how to operate the machine was 
 
         fired for talking to her.  Claimant stated that she worked only 
 
         that one day, that her symptoms returned, and that she then again 
 
         contacted Dr. Worrell.  At that point, Dr. Worrell again took her 
 
         off work (exhibit 18).
 
         
 
              Claimant was then seen by D. L. Miller, M.D.  Dr. Miller 
 
         formed the impression that claimant had a chronic cervical 
 
         strain. He found no indication of any permanent impairment and no 
 
         indication that any further studies or further therapy would be 
 
         beneficial.  His report indicates that claimant's prognosis for 
 
         returning to work was poor (exhibit 20).  In a report dated March 
 
         3, 1987, Dr. Worrell indicated that claimant may need 
 
         occupational retraining (exhibit 22).
 
         
 
              Claimant testified that between January and July of 1987, 
 
         she was placed back into physical therapy.  Dr. Worrell continued 
 
         to report that claimant was disabled from work.  In May of 1987, 
 
         rehabilitation specialist John C. Suter became involved in 
 
         claimant's case.  On June 27, 1987, Dr. Worrell recommended that 
 
         claimant obtain a TENS unit (exhibit 28).  In June of 1987, 
 
         claimant expressed that she felt that Suter was hassling her 
 
         about returning to work (exhibit 29).  On July 13, 1987, Dr. 
 
         Worrell indicated that claimant could return to restricted work 
 
         activities with a 15-pound limit (exhibit 30).
 
 
 
                             
 
                                                         
 
         
 
              Claimant resumed work on July 27, 1987 as a janitor's 
 
         assistant.  The employer felt that the job duties complied with 
 
         Dr. Worrell's restrictions, but claimant felt that they did not. 
 
         Claimant stated that she worked three days the first week and the 
 
         following Monday, but then again contacted Dr. Worrell because 
 
         she felt that the restrictions were not being met.  Claimant 
 
         stated that she was then again taken off work and placed back 
 
         into physical therapy.
 
         
 
              Claimant met with Suter again on August 31, 1987 following 
 
         further medical treatment.  Claimant indicated that she would 
 
         again try to return to work.  A release to return to restricted 
 
         work was obtained from Dr. Worrell and claimant was scheduled to 
 
         return to the modified job on September 14, 1987 (exhibit 38). 
 
         Claimant phoned Keller and resigned.  She stated at hearing that 
 
         her husband had been called back to his job in Ottumwa after 
 
         being on a four-year layoff.  The record does not contain any 
 
         information regarding claimant's activities between September of 
 
         1987 and February of 1988, except that claimant stated she 
 
         applied for and received unemployment commencing in December 
 
         1987.
 
         
 
              Claimant stated that when she left Keller, her rate of pay 
 
         was $3.50 per hour.  She stated that at Rockwell she is in the 
 
         middle of the three different pay scales.  She stated that she is 
 
         unable to perform the kind of physical labor which is necessary 
 
         in order to be in the highest pay scale.  Claimant stated that 
 
         she has missed some work at Rockwell due to the pain in her neck 
 
         and shoulder.
 
         
 
              Claimant testified that during her first week of working at 
 
         Rockwell, she operated a chucker and then moved to a grinder for 
 
         approximately three months.  Claimant stated that at Rockwell 
 
         most of the work is done by machines and that when operating the 
 
         grinder, she would pick up a part, place it in the machine, clamp 
 
         it, wait 5-30 minutes for the machine to perform its function, 
 
         and then remove the part from the machine.  Claimant testified 
 
         that she was then moved to a crossbore machine which was an older 
 
         manual machine and caused a lot of pain.  Claimant stated that 
 
         the pain was the same as what she had experienced at Keller.  
 
         Claimant stated that she reported her discomfort to her foreman 
 
         and that when more people were hired she moved to a machine where 
 
         she merely pushed buttons.  Claimant stated that she had to move 
 
         quickly, that the buttons were at head level and that her same 
 
         problems recurred.
 
         
 
              Claimant stated that she eventually obtained a job as an 
 
         auditor.  She stated that the job involves a lot of walking, but 
 
         no physical labor or repetitious motion with her upper body. 
 
         Claimant testified that she has held the job for six or seven 
 
         months.  She stated that a seniority system is at place at 
 
         Rockwell and that she is uncertain if she will be able to 
 
         maintain the current position if any layoffs occur.
 
         
 
                                                
 
                                                         
 
              Mary Matthias, a 19-year employee of Keller Industries, 
 
         Inc., and a supervisor for the last 12 of those years, stated 
 
         that Keller Industries manufactures wooden and aluminum ladders. 
 
         Matthias stated that claimant had worked only on stepladders and 
 
         that the manufacturing process is such that claimant would never 
 
         have handled a completely assembled ladder.  Matthias stated that 
 
         the heaviest weight claimant would have handled when working with 
 
         aluminum ladders would have been 11 pounds and that the heaviest 
 
         component claimant would have handled when working on wooden 
 
         ladders was 20 pounds.
 
         
 
              Matthias stated that the paper labels which claimant placed 
 
         on ladders were self-adhesive stickers which were on a roll that 
 
         was held on an A-frame type device.
 
         
 
              Following her return to work at Rockwell in February, 1988, 
 
         claimant returned to Dr. Worrell on May 18, 1988.  At that time 
 
         she reported considerable discomfort, but did not demonstrate any 
 
         deterioration of her condition.  At that point in time, Dr. 
 
         Worrell assigned claimant an impairment rating of four percent of 
 
         the body as a whole (exhibit 45).  On March 2, 1988, Dr. Worrell 
 
         confirmed his previous impairment rating, stated that claimant 
 
         reached maximum healing in May of 1988, and confirmed that he had 
 
         specifically prescribed a TENS unit for claimant's use (exhibit 
 
         46).  On September 9, 1987 Dr. Worrell had indicated that he 
 
         declined claimant's request for an impairment rating because her 
 
         healing had not yet been completed (exhibit 39).
 
         
 
                           APPLICABLE LAW AND ANALYSIS
 
         
 
              Claimant has the burden of proving by a preponderance of the 
 
         evidence that she received an injury which arose out of and in 
 
         the course of her employment.  McDowell v. Town of Clarksville, 
 
         241 N.W.2d 904 (Iowa 1976); Musselman v. Central Telephone Co., 
 
         261 Iowa 352, 154 N.W.2d 128 (1967).
 
         
 
              The work which claimant performed at Keller Industries did 
 
         not appear to be particularly strenuous when compared to many 
 
         occupations, although the rate at which work is performed can be 
 
         as important a factor in determining the overall strenuousness of 
 
         a job as is the weights which are handled.  In any manufacturing 
 
         process, the manufacturer's profits are affected by productivity. 
 
         Normally an effort is made to maximize production.  One common 
 
         method of doing so is by having the employees work as rapidly as 
 
         they are capable of working.  It appears from the record of this 
 
         case that claimant's work for Keller involved repetitious 
 
         movements of the type which could produce a chronic strain or 
 
         overuse syndrome type of condition.  The four physicians who have 
 
         evaluated claimant, namely, Drs. Catalona, Tranmer, Worrell and 
 
         Miller all felt that claimant had suffered a strain type of 
 
         injury as the result of her employment activities.  It is 
 
         therefore determined that claimant has met the burden of proving 
 
         that she sustained injury which arose out of and in the course of 
 
         her employment at Keller Industries, Inc.
 
         
 
                                                
 
                                                         
 
              The injury in this case is one which resulted from 
 
         cumulative trauma rather than a single incident.  In this case, 
 
         it appears that the condition was disabling on October 3, 1986 
 
         since that is the date when claimant sought medical treatment and 
 
         would have been taken off work by Dr. Catalona and Dr. Tranmer if 
 
         the light job of applying stickers to ladders had not been 
 
         provided. Claimant was at that time medically diagnosed as being 
 
         incapable of performing the normal duties of her employment.  It 
 
         is therefore determined that October 3, 1986 is the correct date 
 
         of injury in this case.  McKeever Custom Cabinets v. Smith, 379 
 
         N.W.2d 368 (Iowa 1985).  Claimant was then taken off work 
 
         effective October 21, 1986 and remained off work until January 
 
         27, 1987, a span of 14 weeks.  On January 27, 1987, claimant 
 
         returned to work, but for only one day.  She then left work again 
 
         and returned to further therapy and treatment under the direction 
 
         of Dr. Worrell.  It was at this point that claimant was evaluated 
 
         by Dr. Miller whose report indicates that he found no indication 
 
         to perform any further studies or any further therapy.  He 
 
         further stated that her prognosis for returning to work was poor, 
 
         that she had no evidence of permanent impairment and that it 
 
         would be appropriate to settle her workers' compensation claim.  
 
         His report indicates that claimant's responses to palpation 
 
         seemed exaggerated (exhibit 20).
 
         
 
              Claimant's appearance and demeanor was observed while she 
 
         testified.  It was considered together with all the other 
 
         evidence in the case.  In this case, all diagnostic tests which 
 
         have been performed have failed to identify any abnormality.  
 
         While such is frequently the situation in cases which deal with 
 
         an overuse or repetitive trauma type of injury, the fact remains 
 
         that claimant's complaints regarding her symptoms are essentially 
 
         uncorroborated. It is recognized that in this case claimant's 
 
         gross earnings were approximately $140 per week, while her weekly 
 
         compensation was nearly $100 per week.  Claimant would have had 
 
         at least two young children at home commencing in January of 
 
         1987.  After claimant moved, she obtained employment at Rockwell.  
 
         Some of the jobs which she described there appeared to be as 
 
         strenuous as those she had performed at Keller.  For whatever 
 
         reason, claimant's statements regarding her physical condition on 
 
         her Rockwell application are totally irreconcilable with those 
 
         complaints which are the basis of this proceeding.  It is 
 
         determined that claimant's credibility is not well established.  
 
         Since Dr. Worrell treated her symptoms and complaints, rather 
 
         than any objectively determinable injury, his statements 
 
         regarding her need to be off work are not accepted.  In this case 
 
         the assessment made by Dr. Miller with regard to there being no 
 
         need for further treatment subsequent to January of 1987 is 
 
         accepted as being correct, rather than the continuation of 
 
         disability for recuperation which Dr. Worrell presented.  It is 
 
         specifically noted that Dr. Worrell had released claimant to 
 
         return to light work effective January 27, 1987.  It is 
 
         recognized that Dr. Worrell did not place claimant's maximum 
 
         healing until May of 1988.  Claimant's own testimony does not 
 
         support any extension of healing or recuperation into May of 
 
         1988.  There is really nothing in the record which could even 
 
                                                
 
                                                         
 
         arguably be used to extend claimant's period of recuperation 
 
         beyond September of 1987.  A close look at the record in the case 
 
         shows, in retrospect, that Dr. Miller was correct.  Claimant's 
 
         condition has not changed appreciably since January of 1987.  It 
 
         is therefore determined that claimant's entitlement to 
 
         compensation for healing period was ended by her return to work 
 
         on January 27, 1987.
 
         
 
              Claimant expressed symptoms and complaints which affect her 
 
         ability to make use of her arms.  Those symptoms and complaints 
 
         have not changed appreciably since January of 1987.  Claimant's 
 
         credibility regarding the severity of her symptoms, and in 
 
         particular the effect of the January 27, 1987 attempt to return 
 
         to work, is not well established.  In this regard, however, Dr. 
 
         Worrell's assessment of the case as being one which has produced 
 
         some impairment is accepted as being correct.  Any aggravation of 
 
         claimant's condition which occurred on January 27, 1987 is deemed 
 
         to have been a manifestation of the existing permanent 
 
         disability. Claimant's testimony regarding her continuing 
 
         problems is consistent with the types of problems commonly seen 
 
         in cases which deal with overuse syndrome or repetitive motion 
 
         types of injuries. Normally, the individual affected is 
 
         relatively symptom-free so long as the aggravating activities.are 
 
         not performed.  Resumption of those aggravating activities, 
 
         however, commonly brings on a recurrence of symptoms which again 
 
         becomes disabling until the offending activities are 
 
         discontinued.  It is therefore determined that Dr. Worrell's 
 
         explanations are accepted as being correct. Claimant does have a 
 
         permanent impairment in the range of four percent of the body as 
 
         a whole as explained by Dr. Worrell.
 
         
 
              If claimant has an impairment to the body as a whole, an 
 
         industrial disability has been sustained.  Industrial disability 
 
 
 
                           
 
                                                         
 
         was defined in Diederich v. Tri-City Railway Co., 219 Iowa 587, 
 
         593, 258 N.W.2d 899, 902 (1935) as follows:  "It is therefore 
 
         plain that the legislature intended the term 'disability' to mean 
 
         'industrial disability' or loss of earning capacity and not a 
 
         mere 'functional disability' to be computed in the terms of 
 
         percentages of the total physical and mental ability of a normal 
 
         man."
 
         
 
              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, experience and 
 
         inability to engage in employment for which he is fitted.  Olson 
 
         v. Goodyear Service Stores, 255 Iowa 1112, 1121, 125 N.W.2d 251, 
 
         257 (1963).
 
         
 
              Industrial disability or loss of earning capacity is a 
 
         concept that.is quite similar to impairment of earning capacity, 
 
         an element of damage in a tort case.  Impairment of physical 
 
         capacity creates an inference of lessened earning capacity.  The 
 
         basis element to be determined, however, is the reduction in 
 
         value of the general earning capacity of the person, rather than 
 
         the loss of wages or earnings in a specific occupation.  
 
         Post-injury earnings create a presumption of earning capacity.  
 
         The earnings are not synonymous with earning capacity and the 
 
         presumption may be rebutted by evidence showing the earnings to 
 
         be an unreliable indicator.  Carradus v. Lange, 203 N.W.2d 565 
 
         (Iowa 1973); Holmquist v. Volkswagon of America, Inc., 261 N.W.2d 
 
         516 (Iowa App. 1977) A.L.R.3d 143; Michael v. Harrison County, 
 
         34th Biennial Report, 218 (1979); 2 Larson Workmen's Compensation 
 
         Law, sections 57.21 and 57.31.
 
         
 
              Claimant is incapable of performing the type of repetitive 
 
         activities which resulted in her injury at Keller.  She is not, 
 
         however, incapable of performing other types of work as is 
 
         evidenced by her current employment situation.  She does not have 
 
         a background in office work and it is readily apparent that she 
 
         has lost access to a number of jobs which she was previously 
 
         capable of performing.  Her increased earnings at Rockwell are a 
 
         result of obtaining better-paying employment.  They do not 
 
         indicate any increase in claimant's earning capacity.  When all 
 
         the appropriate factors of industrial disability are considered, 
 
         it is determined that claimant has a ten percent permanent 
 
         partial disability as a result of her Keller Industries injury.
 
         
 
              Claimant's claim for reimbursement of the expenses 
 
         concerning the TENS unit is allowed.  It was recommended by Dr. 
 
         Worrell and is considered to be reasonable treatment.  There is 
 
         no evidence in the record to the contrary.  Claimant's additional 
 
         charges incurred with Dr. Worrell were for follow-up evaluations 
 
         which are a normal part of treatment.  Dr. Worrell was the 
 
         primary treating physician and follow-up evaluations are common 
 
         following an extended course of medical treatment.  In view of 
 
         the fact that claimant has a permanent condition, her entitlement 
 
         to medical treatment is not limited by the dates for which 
 
                                                
 
                                                         
 
         healing period compensation was allowed.  The expenses of 
 
         treatment which is primarily maintenance in nature is recoverable 
 
         under Iowa Code section 85.27.
 
         
 
                              FINDINGS OF FACT
 
         
 
              1.  Dorothy Jarr injured her cervical spine and shoulder 
 
         girdle through the activities she performed as a part of the 
 
         duties of her employment at Keller Industries, Inc.
 
         
 
              2.  Those injuries rendered claimant incapable of performing 
 
         work in employment substantially similar to that which she 
 
         performed at the time of injury from October 21, 1986 until 
 
         January 27, 1987 when claimant's recuperation reached the point 
 
         that it was medically indicated that further significant 
 
         improvement from the injury was not anticipated and claimant 
 
         returned to work.
 
         
 
              3.  Claimant has sustained permanent impairment in the range 
 
         of approximately four percent of the body as a whole as a result 
 
         of her injury.
 
         
 
              4.  Claimant has experienced a ten percent loss of her 
 
         earning capacity as a result of the injuries she sustained while 
 
         employed by Keller Industries, Inc.
 
         
 
              5.  Claimant's credibility is not well established and the 
 
         severity of her complaints is not corroborated by objective 
 
         medical evidence.
 
         
 
                            CONCLUSIONS OF LAW
 
         
 
              1.  This agency has jurisdiction of the subject matter of 
 
         this proceeding and its parties.
 
         
 
              2.  Claimant is entitled to recover 14 weeks of compensation 
 
         for healing period payable at the stipulated rate of $97.26 per 
 
         week commencing October 21, 1986.
 
         
 
              3.  Claimant has a ten percent permanent partial disability 
 
         which entitles her to receive 50 weeks of compensation under the 
 
         provisions of Iowa Code section 85.34(2)(u).
 
         
 
              4.  Claimant is entitled to recover $535.00 for the charges 
 
         with Ntron International Sales Company and $115.00 for the 
 
         expenses incurred with Dr. Worrell.
 
         
 
                                   ORDER
 
         
 
              IT IS THEREFORE ORDERED that defendants pay claimant 
 
         fourteen (14) weeks of compensation for healing period at the 
 
         stipulated rate of ninety-seven and 26/100 dollars ($97.26) per 
 
         week payable commencing October 21, 1986.
 
         
 
              IT IS FURTHER ORDERED that defendants pay claimant fifty 
 
                                                
 
                                                         
 
         (50) weeks of compensation for permanent partial disability 
 
         payable at the stipulated rate of ninety-seven and 26/100 dollars 
 
         ($97.26) per week commencing January 27, 1987.
 
         
 
              IT IS FURTHER ORDERED that defendants are granted credit for 
 
         the fifty (50) weeks of compensation previously paid pursuant to 
 
         Iowa Code section 85.34(4) and that the remaining fourteen (14) 
 
         weeks of compensation shall be paid to claimant in a lump sum 
 
         together with interest from the date each payment came due 
 
         pursuant to Iowa Code section 85.30.
 
         
 
              IT IS FURTHER ORDERED that defendants pay claimant's charges 
 
         with Ntron International Sales Company in the amount of five 
 
         hundred thirty-five and 00/100 dollars ($535.00) and with James 
 
         Worrell, M.D., in the amount of one hundred fifteen and 00/100 
 
         dollars ($115.00).
 
         
 
              IT IS FURTHER ORDERED that defendants pay the costs of this 
 
         proceeding pursuant to Division of Industrial Services Rule 
 
         343-4.33.
 
         
 
              IT IS FURTHER ORDERED that defendants file claim activity 
 
         reports as requested by this agency pursuant to Division of 
 
         Industrial Services Rule 343-3.1.
 
         
 
              Signed and filed this 30th day of November, 1989.
 
         
 
         
 
         
 
         
 
         
 
         
 
                                            MICHAEL G. TRIER
 
                                            DEPUTY INDUSTRIAL 
 
                                            COMMISSIONER
 
         
 
         Copies To:
 
         
 
         Mr. Thomas H. Preacher
 
         Attorney at Law
 
         2535 Tech Drive, Suite 200
 
         Bettendorf, Iowa  52722
 
         
 
         Mr. Craig A. Levien
 
         Attorney at Law
 
         600 Union Arcade Building
 
         111 East Third Street
 
         Davenport, Iowa 52801
 
         
 
         
 
         
 
 
 
 
 
 
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                            51402.20, 51802, 51803
 
                                            52209
 
                                            Filed November 30, 1989
 
                                            MICHAEL G. TRIER
 
         
 
         
 
                   BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         DOROTHY JARR,
 
         
 
              Claimant,
 
         
 
         vs.
 
                                                    File No. 865310
 
         KELLER INDUSTRIES, INC.,
 
                                                 A R B I T R A T I 0 N
 
              Employer,
 
                                                    D E C I S I 0 N
 
         and
 
         
 
         CIGNA PROPERTY & CASUALTY CO.,
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
         51402.20, 51802, 51803, 52209
 
         
 
              Claimant's evidence was sufficient to establish injury 
 
         resulting from repetitive activity, fourteen weeks of healing 
 
         period compensation and ten percent permanent partial disability. 
 
         Claimant's credibility was not well established and her claim for 
 
         more than an additional year of healing period and a large amount 
 
         of permanent partial disability was rejected.
 
         
 
         
 
         
 
 
 
 
 
 
 
 
            
 
            Page   1
 
            
 
            
 
            
 
            
 
            
 
            
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            PAUL H. MAYHEW,               :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :         File No. 865315
 
            PAUL H. MAYHEW and            :
 
            ACE WORLDWIDE #17,            :      A R B I T R A T I O N
 
                                          :
 
                 Employers,               :         D E C I S I O N
 
                                          :
 
            and                           :
 
                                          :
 
            AMERICAN HOME INSURANCE       :
 
            COMPANY, THE INSURANCE COMPANY:
 
            OF THE STATE OF PENNSYLVANIA, :
 
            and CNA INSURANCE COMPANY,    :
 
                                          :
 
                 Insurance Carriers,      :
 
                 Defendants.              :
 
            ____________________________________________________________
 
            
 
                                   introduction
 
            
 
                 This is a proceeding in arbitration brought by the 
 
            claimant, Paul H. Mayhew, against his alleged employers, Ace 
 
            Worldwide Movers and Paul Mayhew, and alleged insurers, 
 
            American Home Insurance Company, The Insurance Company of 
 
            Pennsylvania, and CNA Insurance Company, to recover benefits 
 
            under the Iowa Workers' Compensation Act as a result of an 
 
            alleged injury of March 7, 1986.  At hearing, claimant's 
 
            counsel orally stated he would dismiss the Insurance Company 
 
            of Pennsylvania.  To date, he has not done so.  This matter 
 
            came on for hearing before the undersigned deputy industrial 
 
            commissioner at Sioux City, Iowa on September 18, 1990.  A 
 
            first report of injury was received on October 7, 1988.  The 
 
            record consists of the testimony of claimant, of Teresa 
 
            Mayhew, of Bruce Bleil, as well as of joint exhibits 1 
 
            through 61 and defendants' exhibits F, G, H, and I.
 
            
 
                                      issues
 
            
 
                 Pursuant to the prehearing order and the oral 
 
            stipulations of the parties at hearing, the parties 
 
            stipulated that claimant's entitlement to temporary 
 
            disability or healing period benefits, should an injury 
 
            arising out of and in the course of be found, runs from 
 
            March 7, 1986 through April 24, 1986 with permanency to 
 
            commence on April 25, 1986.  The parties further agreed that 
 
            medical costs were fair and reasonable and that, at the time 
 
            of the alleged injury, claimant was married and entitled to 
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            
 
            
 
            six exemptions.
 
            
 
                 The issues remaining to be decided are:
 
            
 
                 1.  Whether claimant received an injury arising out of 
 
            and in the course of his employment on March 7, 1986;
 
            
 
                 2.  Whether an employer-employee relationship existed 
 
            between claimant and the alleged employer;
 
            
 
                 3.  Whether a causal relationship exists between 
 
            claimant's claimed injury and the claimed disability;
 
            
 
                 4.  The nature and extent of any benefit entitlement;
 
            
 
                 5.  Whether claimant is entitled to payment of certain 
 
            medical costs pursuant to section 85.27; and,
 
            
 
                 6.  Claimant's rate of weekly compensation.
 
            
 
                                 findings of fact
 
            
 
                 The deputy, having heard the testimony and considered 
 
            the evidence, finds:
 
            
 
                 Claimant is 45 years old and has completed the ninth 
 
            grade.  He does not have a GED or other formal education or 
 
            training.  Claimant has worked in the household moving 
 
            industry as a driver since 1964.  Claimant drove to the old 
 
            home, inventoried and loaded household goods, drove to the 
 
            new home and set up the household goods there.  Claimant 
 
            hired lumpers to assist him.  Claimant's business expenses 
 
            for lumpers in 1985, 1986 and 1987 equalled approximately 16 
 
            percent of his gross income.
 
            
 
                 On March 7, 1986, claimant was inspecting his load 
 
            before departure from Sioux City, Iowa.  A picnic table and 
 
            related household items became partially dislodged from load 
 
            straps on the back of his trailer and hit claimant on the 
 
            mid-back and head.
 
            
 
                 Claimant and Ace Worldwide had entered a contract or 
 
            agreement on March 30, 1984.  The contract was terminated 
 
            effective April 8, 1986.  The contract specified that 
 
            claimant was a contractor and not an employee.  The contract 
 
            did not permit claimant to trip lease without Ace's consent; 
 
            the contract required claimant to wear Ace/Atlas uniforms 
 
            and paint his truck with the Ace/Atlas insignia.  Claimant 
 
            was free to reject or accept Ace-dispatched loads.  Claimant 
 
            believed rejecting loads would jeopardize his chances of 
 
            getting other loads early on, however.  Claimant generally 
 
            hired his own lumpers and claimant was responsible for their 
 
            wages.  Ace did not withhold taxes from claimant's disbursed 
 
            income, did not provide training and did not direct or 
 
            control claimant's business year or business activities.  
 
            Claimant was free to travel to a destination by any route he 
 
            chose.  Ace did require claimant to arrive at his 
 
            destination on or before a date certain, however.
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            
 
            
 
            
 
                 The contract required claimant to purchase workers' 
 
            compensation insurance for his employees.  Claimant had 
 
            purchased workers' compensation insurance for himself as an 
 
            employer with American Home Insurance, although payments 
 
            were withheld for that insurance per an agreement with Ace.  
 
            Claimant could have purchased his workers' compensation 
 
            insurance elsewhere, but found it cheaper to purchase 
 
            through Ace.  Claimant represented himself as self-employed 
 
            in his tax returns.  Ace hired hourly drivers who drove 
 
            Ace-owned trucks.  The hourly drivers did not sign an 
 
            owner-operator contract.
 
            
 
                 Claimant testified that claimant called Bruce Bleil, 
 
            vice president of operations and secretary of Ace Worldwide, 
 
            on March 7, 1986 and described claimant's injury to Bleil.  
 
            Bleil testified that claimant spoke with Bleil on March 7, 
 
            1986 and demanded additional money stating claimant could 
 
            not continue hauling previously loaded household goods to 
 
            their destination unless additional money were wired.  Bleil 
 
            testified that claimant did not mention any injury.  Bleil 
 
            reported claimant was terminated at that time on account of 
 
            the money request incident.  Bleil testified that he first 
 
            heard claimant claiming an injury to Ace's safety office 
 
            approximately one week later.  Bleil's testimony is accepted 
 
            as more credible than claimant's in this regard.
 
            
 
                 Under the Ace contract, claimant received 53 percent of 
 
            the gross revenue on hauls, minus 2-3 percent public safety 
 
            liability insurance.  Claimant testified that his earnings 
 
            or net income equalled between 30 and 35 percent of gross 
 
            receipts.  Tax receipts reflect the following:
 
            
 
              Year    Gross Receipts   Deductions    Net Profit or Loss
 
            
 
              1983      $ 62,681        $ 62,002        $    679
 
              1984      $ 57,891        $ 60,360        $  2,469-
 
              1985      $101,268        $ 98,552        $  2,716
 
              1986      $ 83,159        $ 80,349        $  2,810
 
              1987      $ 95,379        $ 90,468        $  4,911
 
              1988      $ 68,091        $ 63,366        $  4,725
 
            
 
                 Claimant's expenses included meals, fuel, oil, truck 
 
            maintenance and repairs and costs for lumpers.  Claimant 
 
            claimed additional expenses for lumpers and sleeping 
 
            accommodations subsequent to his alleged March 7, 1986 
 
            injury.  Those claims are not consistent with his tax 
 
            records.
 
            
 
                 Claimant's log books reflect that claimant worked 289 
 
            hours in the 13 weeks immediately preceding March 7, 1986.  
 
            In 1986, company-paid drivers earned a maximum of $8.50 per 
 
            hour and a minimum of between $6.70 and $7.00 per hour.  
 
            Bruce Bleil testified that a company driver working 289 
 
            hours in a 13-week period would have earned $2,312.00 (or 
 
            $8.00 per hour).  Hauls are not regularly assigned.  The 
 
            amount of work done within a 13-week period may vary.
 
            
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
            
 
            
 
                 Claimant reported back pain, headaches, nausea, muscle 
 
            spasms and weakness as well as dizziness, blurred vision, 
 
            tendonitis and numbness from the thoracic back to the head.  
 
            He denied he had had these symptoms prior to March 7, 1986.  
 
            Claimant agreed that at his deposition in 1988 he has stated 
 
            his only complaints were of back numbness produced by truck 
 
            bouncing and heavy physical work, however.
 
            
 
                 On April 24, 1986, claimant returned to work for United 
 
            Van Lines.  He reported that his initial trip for United 
 
            took considerably longer than it normally would have on 
 
            account of his symptomatology.  Claimant also reported that 
 
            log books so reflecting were destroyed when his basement was 
 
            flooded.  Older log books were not destroyed in the basement 
 
            flood, however.  The credibility of claimant's testimony in 
 
            this regard is, therefore, suspect.
 
            
 
                 Claimant continued driving for various trucking 
 
            companies through August 1989.  He switched to straight 
 
            freight hauling as this did not involve the loading and 
 
            unloading which he believed caused him physical difficulty.
 
            
 
                 Claimant was injured on May 14, 1989 when a bed rail 
 
            hit him behind the right ear and on the top of the head.  
 
            Claimant denied his symptoms changed subsequent to that 
 
            incident.  Claimant was also injured on August 21, 1989 when 
 
            he strained back muscles trying to help two lumpers with a 
 
            piano they had lost on a walk board.
 
            
 
                 Claimant stopped driving truck after the August 1989 
 
            incident.  Claimant feels unqualified to do any work at 
 
            present and states he cannot drive for extended periods, 
 
            lift or sleep.
 
            
 
                 Frederick J. Lohr, M.D., claimant's family physician 
 
            since approximately 1976, passed claimant on DOT and 
 
            Interstate Commerce physicals both prior to and subsequent 
 
            to March 7, 1986.
 
            
 
                 Claimant was seen in the emergency room on March 8, 
 
            1986.  Emergency room notes report no blurred vision, no 
 
            loss of consciousness, no dizziness and no paresthesia.  
 
            Claimant was tender with palpation of the cervical spine; 
 
            his neck was a little sore with movement.  Claimant was 
 
            diffusely tender to palpation of the left anterior chest 
 
            wall and shoulder and diffusely tender across back 
 
            musculature.  X-rays showed some straightening of the 
 
            cervical spine without fractures or dislocations.
 
            
 
                 Dr. Lohr saw claimant on March 11, 1986, March 21, 
 
            1986, and April 24, 1986.  On March 11, claimant complained 
 
            of headaches which he reported as being better on March 21, 
 
            1986.  On April 24, 1986, claimant reported still having 
 
            some headache as well as upper and lower back complaints.  
 
            Claimant then had full range of motion and was feeling much 
 
            better than previously.  Dr. Lohr next saw claimant in 
 
            February 1988 when he passed claimant on a DOT physical.  
 
            Claimant then saw Dr. Lohr apparently at his attorney's 
 

 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
            
 
            
 
            direction on December 28, 1988.
 
            
 
                 Claimant next saw a physician, Thomas Kail, M.D., on an 
 
            undetermined date in either 1987 or early 1988 in Colorado.  
 
            Claimant then gave a history of right scapular discomfort 
 
            for the past week, but no history of an injury or 
 
            longer-term problems.
 
            
 
                 Claimant has treated with James A. Bjork, D.C. who 
 
            subsequently referred claimant to Quentin J. Durward, M.D., 
 
            who then referred claimant to Leonel H. Herrera, M.D., 
 
            claimant's current treating physician.
 
            
 
                 In May 1989, claimant was hospitalized at the Southern 
 
            Nevada University Hospital for three days.  Medical reports 
 
            at that time give no history of the March 7, 1986 alleged 
 
            injury, but do reflect a history consistent with the May 14, 
 
            1989 incident and vision difficulties for approximately 5-6 
 
            weeks.
 
            
 
                 On March 2, 1989, Dr. Lohr felt claimant continued to 
 
            have cervical strain involving the trapezius muscles and 
 
            cervical ligaments and support structures.  Claimant 
 
            complained of approximately a dollar-sized numbness 
 
            overlying the third and fourth dorsal vertebrae and also 
 
            complained of headaches and vision disturbance.  Claimant 
 
            had normal blood pressure and responses.  Claimant's numb 
 
            spot had definite feeling when hit with a sharp object.  
 
            Claimant continued to have a reversal in the normal cervical 
 
            lordosis.  Dr. Lohr felt that, as that had continued [since 
 
            March 8, 1986], the reversal in the lordosis accounted for 
 
            some permanent "disability" from the March 7, 1986 incident.  
 
            On July 28, 1989, Dr. Lohr opined that claimant had five 
 
            percent permanent "disability."  He opined that "[p]rognosis 
 
            for a full recovery is still a probability but in view of 
 
            the fact that it is taking this long and shows no 
 
            significant improvement it is possibly permanent."
 
            
 
                 Dr. Herrera evaluated claimant on April 17, 1990.  He 
 
            reported claimant's symptoms listed in order of severity as:
 
            
 
                 1.  Mid-back pain with associated numbness present 
 
            since 1986 and apparently increasing with activity.
 
            
 
                 2.  Migraine attacks occurring primarily every 2-3 days 
 
            and lasting about 15 minutes after he lies down.  Not so 
 
            much a headache as a fortification phenomenon.
 
            
 
                 3.  Low back pain which is daily and constant made 
 
            worse with sitting and improved with exercise and movement.  
 
            The pain is bilateral and involves both the buttocks and the 
 
            lumbosacral region.
 
            
 
                 4.  Weakness in the legs, tingling in the legs which 
 
            occurs after walking one and one-half miles.
 
            
 
                 5.  Bilateral neck pain, upper back pain with radiation 
 
            into the upper trapezi.
 

 
            
 
            Page   6
 
            
 
            
 
            
 
            
 
            
 
            
 
            
 
                 The doctor then stated:  "Neck pain dominates the 
 
            clinical picture."
 
            
 
                 Claimant reported standing, sitting, driving and nights 
 
            seem to be the worse times and walking, lying down, sneezing 
 
            and coughing seem to make his pain better.  Claimant was not 
 
            taking medications and denied any significant medical 
 
            problems.  Claimant had a somatized pain diagram.  
 
            Successive groaning and pain behavior was noted on physical 
 
            examination.  On examination, claimant had full cervical 
 
            range of motion and forward flexion and was able to extend 
 
            18.5 cm. measured from external notch to chin.  Right side 
 
            bending was approximately 20 degrees and left side bending 
 
            was approximately 15 degrees.  Rotation was approximately 80 
 
            degrees bilaterally.  Neck compression did not produce pain 
 
            nor radiation into the shoulder or arm.  Neck distraction 
 
            did not relieve any of his symptoms.  Sensation to both pin 
 
            prick and light touch were subjectively decreased slightly, 
 
            primarily involving the left ulnar pad and the deltoids.  
 
            Strength in the upper extremities was graded at 5/5 in the 
 
            hand grip, pinch, finger abduction, wrist flexion/extension, 
 
            elbow flexion/extension and shoulder abduction and external 
 
            rotation.  Deep tendon reflexes are 2/4 at the patellar and 
 
            Achilles tendons and 2/4 at the brachioradialis and biceps 
 
            symmetrically.  Triceps are 1/4 symmetrically.  Diffuse 
 
            tenderness along the apex of the thoracic kyphosis and into 
 
            the cervical spine was noted.  No muscle spasms were 
 
            palpated.  Straight leg raising was negative bilaterally at 
 
            90 degrees.  On deep palpation, the left sacroiliac junction 
 
            was tender.  Trunk twisting produced a positive pain 
 
            response.  Claimant was unable to lie prone and raise his 
 
            arm up over his head, but when his arms were placed in that 
 
            position, he was able to hold them there.  Claimant 
 
            demonstrated significant weakness of his mid-back and 
 
            shoulder/scapular adductor strength.
 
            
 
                 The impression was of chronic pain syndrome, 
 
            particularly involving the mid-back as well as the cervical 
 
            spine; normal objective neurological examination; chronic 
 
            muscle and myoligamentous injury to the cervical spine and 
 
            lumbar region; chronic deconditioning syndrome.  Dr. Herrera 
 
            felt that claimant was a marginal candidate for 
 
            rehabilitation, but on a belief that he deserved a chance to 
 
            get better, was willing to work with claimant to help him 
 
            return to wage earning status.  He recommended a back 
 
            rehabilitation program with emphasis on strengthening the 
 
            scapular adductors, thoracic extenders and cervical 
 
            extensor.
 
            
 
                 On May 10, 1990, Dr. Herrera opined that claimant's 
 
            deconditioning syndrome and chronic back pain dated back to 
 
            "a 1986 injury and that recent injuries had produced 
 
            exacerbations of that condition."
 
            
 
                 L. W. Sellers, M.D., saw claimant on June 27, 1989 for 
 
            poor balance, dizziness, decreased hearing, ringing in the 
 
            ears, as well as fluctuation of his visual acuity and eye 
 

 
            
 
            Page   7
 
            
 
            
 
            
 
            
 
            
 
            
 
            pain present since approximately May 14, 1989 when claimant 
 
            was struck in the vertex of the head while unloading the 
 
            moving van he operated.  The diagnosis was of 
 
            post-concussion syndrome expected to improve with time.
 
            
 
                 D. C. Schenk, M.D., interpreted both a cervical and a 
 
            brain MRI of September 25, 1989 as within normal limits.
 
            
 
                 James L. Case, M.D., a neurologist, saw claimant on 
 
            August 7, 1989.  Claimant then gave a history of no specific 
 
            incident.  Dr. Case suspected claimant's syndrome components 
 
            reflected some constitutional factors such as a migraine 
 
            tendency which were undoubtedly exacerbated by the unique 
 
            demands of trucking.  A medical report of Dr. Case of July 
 
            21, 1989 notes complaints of visual disturbance and nausea 
 
            present since March [1989] as well as complaints of 
 
            weakness, lightheadedness, fuzziness in side vision, 
 
            persistent dizziness, poor hand-eye coordination, neck pain 
 
            and tightness, and a band-like sensation extending from the 
 
            occiput to the vertex or around the temples.  A September 5, 
 
            1989 note of Dr. Case indicates that claimant pointed to the 
 
            C7 spinus process as the sore spot that he bumped several 
 
            weeks ago.  The patient had given further history that most 
 
            of his symptoms, especially his lightheaded feeling, 
 
            dizziness and neck pain followed a work-related injury 
 
            occurring on May 2, [1989].  On October 10, 1989, Dr. Case 
 
            reported that claimant felt symptomatically worse and gave 
 
            an almost overwhelming litany of symptoms.  There was no 
 
            diagnostic explanation for the numerous symptoms and 
 
            comprehensive neurologic examination and subsequent 
 
            laboratory evaluations had revealed no findings accounting 
 
            for the symptoms.  The doctor discussed psychologic 
 
            contributions such as stress, anxiety and depression with 
 
            claimant and recommended a psychiatric referral.
 
            
 
                 On July 23, 1990, Quentin J. Durward, M.D., opined that 
 
            claimant's March 7, 1986 incident caused claimant to be off 
 
            work until April 24, 1986, but did not produce persisting 
 
            "disability."  On March 27, 1990, Dr. Durward reported that 
 
            claimant related a numb feeling in the mid-back only to an 
 
            incident where a picnic table hit him on the back of the 
 
            neck and upper back in 1986.  Dr. Durward reported that, in 
 
            July 1989, claimant was struck by a bed rail in his truck 
 
            and that his symptoms are further exacerbated when he bumped 
 
            his head on the roof of his truck in August 1989 and that 
 
            claimant had not driven truck since the August 1989 
 
            incident.  Physical examination showed full range of motion 
 
            of the neck and full range of motion of the lower back with 
 
            a patchy area of apparently reduced sensation over the left 
 
            shoulder blade.  Claimant again had numerous complaints with 
 
            no objective neurological abnormality.  Psychiatric referral 
 
            was again recommended.
 
            
 
                 Susan M. Kehne, M.D., examined claimant on May 15, 
 
            1989.  A medical note reflects that claimant was seen for 
 
            evaluation of new onset of vertigo and that claimant had had 
 
            symptoms for four or five weeks and earlier for about one 
 
            day.  Claimant gave a history of a couple of serious blows 
 

 
            
 
            Page   8
 
            
 
            
 
            
 
            
 
            
 
            
 
            to the head when [apparently he was hit] with a 25-pound bar 
 
            on his truck.  The impression was of vertigo, new onset 
 
            associated with mild decreased hearing in the right ear and 
 
            tendonitis for about six years.
 
            
 
                 In his deposition, Dr. Lohr revealed that he is a 
 
            board-certified family practitioner.  He stated that 
 
            reversal of the lordosis on x-ray indicates musculoskeletal 
 
            strain.  He agreed that the x-ray is neutral as to the cause 
 
            of the reversal, however.  Dr. Lohr opined that the fact 
 
            that claimant complained after March 7, 1986 of 
 
            musculoligamentous problems and the x-rays showing a loss of 
 
            lordotic curve leads to the conclusion that the loss of the 
 
            lordotic curve was a function of the musculoligamentous 
 
            strain.  He further opined that, if muscle relaxants 
 
            relieved claimant's headaches, the headaches would be 
 
            consistent with muscle contraction headaches.  Dr. Lohr 
 
            described his final diagnosis as musculoskeletal strain of 
 
            the cervical and upper dorsal areas and opined that 
 
            claimant's condition was aggravated by driving a semi.  The 
 
            doctor opined that, as of April 1986, he believed that 
 
            claimant's condition was improving.  Dr. Lohr reported that 
 
            his five percent rating was his alone and was not based on 
 
            either the AMA or the orthopaedic guides.
 
            
 
                 Deborah Determan, a rehabilitation consultant, issued a 
 
            report on June 14, 1990.  She opined that if claimant is 
 
            unable to return to truck driving, he is restricted to light 
 
            and sedentary work activity.  She opined that claimant had a 
 
            pre-injury labor market access of 12.17 percent and had a 
 
            post-injury labor market access of 2.86 percent, or a 77 
 
            percent loss of labor market access.  She felt claimant 
 
            retained the capacity to perform lower level, semi-skilled 
 
            jobs in hand packaging, production assembly, cashiering or 
 
            order clerking.  Starting pay in such jobs would range from 
 
            $3.87 to $7.35 per hour.  Ms. Determan erroneously reported 
 
            claimant's gross earnings in 1986 as $42,000.
 
            
 
                                conclusions of LAW
 
            
 
                 Our first concern is whether claimant received an 
 
            injury which arose out of and in the course of his 
 
            employment.
 
            
 
                 Claimant has the burden of proving by a preponderance 
 
            of the evidence that he received an injury on March 7, 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 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. 
 

 
            
 
            Page   9
 
            
 
            
 
            
 
            
 
            
 
            
 
            DeSoto Consol. School Dist., 246 Iowa 402, 68 N.W.2d 63 
 
            (1955).
 
            
 
                 "An injury occurs in the course of the employment when 
 
            it is within the period of employment at a place the 
 
            employee may reasonably be, and while he is doing his work 
 
            or something incidental to it."  Cedar Rapids Community 
 
            School Dist. v. Cady, 278 N.W.2d 298 (Iowa 1979), McClure v. 
 
            Union, et al., Counties, 188 N.W.2d 283 (Iowa 1971); 
 
            Musselman v. Cent. Tel. Co., 261 Iowa 352, 154 N.W.2d 128 
 
            (1967). 
 
            
 
                 While claimant was not an altogether credible witness 
 
            in his own behalf, claimant's testimony, his wife's 
 
            testimony, and the medical evidence relative to his 
 
            emergency room visit on March 8, 1986 present sufficient 
 
            credible evidence to establish that claimant did have a work 
 
            incident on that date as described in his testimony.
 
            
 
                 We now reach defendants' affirmative defense that 
 
            claimant was an independent contractor and not an employee 
 
            when injured.
 
            
 
                 Iowa Code section 85.61(1) provides in part:
 
            
 
                 2.  "Worker" or "employee" means a person who has 
 
                 entered into employment of, or works under 
 
                 contract of service, express or implied, or 
 
                 apprenticeship, for an employer. . . .
 
            
 
                 The Iowa Supreme Court stated in Nelson v. Cities 
 
            Service Oil Co., 259 Iowa 1209, 1213, 146 N.W.2d 261 (1967):
 
            
 
                    This court has consistently held it is a 
 
                 claimant's duty to prove by a preponderance of the 
 
                 evidence he or his decedent was a workman or 
 
                 employee within the meaning of the law. . . .
 
            
 
                 And, if a compensation claimant establishes a 
 
                 prima facie case the burden is then upon defendant 
 
                 to go forward with the evidence and overcome or 
 
                 rebut the case made by claimant.  He must also 
 
                 establish by a preponderance of the evidence any 
 
                 pleaded affirmative defense or bar to 
 
                 compensation.  [Citations omitted.]
 
            
 
                 Given the above, the court set forth its latest 
 
            standard for determining an employer-employee relationship 
 
            in Caterpillar Tractor Co. v. Shook, 313 N.W.2d 503 (Iowa 
 
            1981).  The court stated in part:
 
            
 
                 I.  The employer-employee relationship.  As 
 
                 defined in section 85.61(2), The Code, an 
 
                 "employee" is a "person who has entered into the 
 
                 employment of, or works under contract of service 
 
                 . . . for an employer."  Factors to be considered 
 
                 in determining whether this relationship exists 
 
                 are:  (1) the right of selection, or to employ at 
 

 
            
 
            Page  10
 
            
 
            
 
            
 
            
 
            
 
            
 
                 will, (2) responsibility for payment of wages by 
 
                 the employer, (3) the right to discharge or 
 
                 terminate the relationship, (4) the right to 
 
                 control the work, and (5) identity of the employer 
 
                 as the authority in charge of the work or for 
 
                 whose benefit it is performed.  The overriding 
 
                 issue is the intention of the parties.  McClure v. 
 
                 Union, et al., Counties, 188 N.W.2d 285 (Iowa 
 
                 1971).  [Emphasis added.]
 
            
 
                 In this case, Ace had the right of selection and the 
 
            right to employ at will.  Ace was responsible for payment of 
 
            earned income to claimant.  Ace could terminate the 
 
            relationship after giving the specified contractual notice.  
 
            The work was performed for Ace's benefit.  The above facts 
 
            are sufficient to show a prima facie case of 
 
            employer-employee relationship.
 
            
 
                 Once the worker has proven that the worker was 
 
            rendering services for the employer at the time of the 
 
            injury, the burden then shifts to the employer to prove that 
 
            the worker was an independent contractor and not an 
 
            employee.  Daggett v. Nebraska-Eastern Express, Inc., 252 
 
            Iowa 341, 107 N.W.2D 102 (1961).  Iowa Code section 
 
            85.61(3)(b) provides that an independent contractor is not 
 
            an employee.
 
            
 
                 In Mallinger v. Webster City Oil Co., 211 Iowa 847, 
 
            851, 234 N.W. 254, 257 (1929), the Iowa Supreme Court 
 
            defined independent contractor and presented an eight-factor 
 
            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 [sic] 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 [the] 
 
                 business or of [the] distinct calling; (3) [the] 
 
                 employment of assistants, with the right to 
 
                 supervise their activities; (4) [the] obligation 
 
                 to furnish necessary tools, supplies, and 
 
                 materials; (5) [the] right to control the progress 
 
                 of the work, except as to final results; (6) the 
 
                 time for which the workman [sic] 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.
 
            
 
                 Additionally, in D & C Express, Inc. v. Sperry, 450 
 
            N.W.2d 842, 844 (Iowa 1990), the Supreme Court reiterated 
 
            that, although no one factor is controlling in the test of 
 

 
            
 
            Page  11
 
            
 
            
 
            
 
            
 
            
 
            
 
            whether a relationship is that of an employer-employee or 
 
            that of an independent contractor, the first inquiry is to 
 
            who has the right to control the physical conduct of the 
 
            service being performed.  The court noted that other factors 
 
            include, but are not limited to, responsibility for payment 
 
            of wages, intention of the parties, and such things as 
 
            withholding of federal income and Social Security taxes.  
 
            The Sperry court in dicta stated that, in that case which is 
 
            factually similar to the one sub judice, there were many, 
 
            perhaps more, indicia of an independent contractor 
 
            relationship.  The Court stated, however, that it could not 
 
            say as a matter of law that the record presented the 
 
            commissioner would support only a finding that Sperry was an 
 
            independent contractor.
 
            
 
                 Additionally, in 1986, the Iowa Legislature amended 
 
            section 85.61(3) to include the lettered paragraph (c) which 
 
            states as follows:
 
            
 
                 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.
 

 
            
 
            Page  12
 
            
 
            
 
            
 
            
 
            
 
            
 
            
 
                 We note that lettered paragraph (c) is a substantial 
 
            change in the law and therefore can properly be applied 
 
            prospectively only.  The effective date of subsection (c) 
 
            was July 1, 1986.  Therefore, it is not applicable as a 
 
            matter of law to an injury of March 7, 1986.  We believe 
 
            that we can fairly look to the current statute in assessing 
 
            the weight to be given the factual evidence before us, 
 
            however.
 
            
 
                 When all the above are considered, claimant is found to 
 
            be an independent contractor.  Ace's only control of the 
 
            physical conduct of the service performed was that claimant 
 
            arrive at his destination by a date certain.  Additionally, 
 
            claimant was responsible for maintenance of his vehicle and 
 
            bore the burden of its operating costs.  He generally hired 
 
            his own lumpers and they were considered his employees.  
 
            Claimant was paid a percentage of his truck's gross 
 
            receipts, and not on the basis of hours or time expended.  
 
            Claimant, as noted above, determined the details and means 
 
            of performing his services, including the route to be taken.  
 
            Claimant and Ace had entered a contract which specified the 
 
            relationship to be that of an independent contractor and 
 
            under that contract claimant was required to maintain a 
 
            certificate of workers' compensation insurance with Ace.  
 
            Additionally, claimant supplied his own truck and, as noted 
 
            above, was responsible for its operation and maintenance.
 
            
 
                 All of the above, when weighed in light of the 1986 
 
            statutory enactment, suggests that claimant is properly 
 
            classified as an independent contractor and not as an 
 
            employee.
 
            
 
                 As claimant has been found to be an independent 
 
            contractor and not an employee, Ace Worldwide and its 
 
            insurance carrier, CNA, are not liable for compensation 
 
            resulting from his March 7, 1986 injury.  Any liability for 
 
            compensation to claimant would rest with claimant in his 
 
            capacity as employer and with his insurance carrier or 
 
            carriers in that capacity, American Home Insurance and 
 
            Insurance Company of Pennsylvania.
 
            
 
                 As noted, the parties stipulated that claimant's injury 
 
            was a cause of temporary disability from March 7, 1986 
 
            through April 24, 1986.  The question before us, therefore, 
 
            is whether claimant's injury is a cause of permanent 
 
            disability to claimant.
 
            
 
                 The claimant has the burden of proving by a 
 
            preponderance of the evidence that the injury of March 7, 
 
            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 
 

 
            
 
            Page  13
 
            
 
            
 
            
 
            
 
            
 
            
 
            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).
 
            
 
                 A treating physician's testimony is not entitled to 
 
            greater weight as a matter of law than that of a physician 
 
            who later examines claimant in anticipation of litigation.  
 
            Weight to be given testimony of physician is a fact issue to 
 
            be decided by the industrial commissioner in light of the 
 
            record the parties develop.  In this regard, both parties 
 
            may develop facts as to the physician's employment in 
 
            connection with litigation, if so; the physician's 
 
            examination at a later date and not when the injuries were 
 
            fresh; his arrangement as to compensation; the extent and 
 
            nature of the physician's examination; the physician's 
 
            education, experience, training, and practice; and all other 
 
            factors which bear upon the weight and value of the 
 
            physician's testimony.  Both parties may bring all this 
 
            information to the attention of the factfinder as either 
 
            supporting or weakening the physician's testimony and 
 
            opinion.  All factors go to the value of the physician's 
 
            testimony as a matter of fact not as a matter of law.  
 
            Rockwell Graphic Systems, Inc. v. Prince, 366 N.W.2d 176, 
 
            192 (Iowa 1985).
 
            
 
                 An expert's opinion based on an incomplete history is 
 
            not necessarily binding on the commissioner, but must be 
 
            weighed with other facts and circumstances.  Musselman v. 
 
            Central Telephone Co., 261 Iowa 352, 360, 154 N.W.2d 128, 
 
            133 (1967).  Dr. Lohr has opined that claimant has a five 
 
            percent permanent "disability" relating back to his March 7, 
 
            1986 incident.  Dr. Herrera has opined that claimant's 
 
            deconditioning syndrome and chronic back pain dates back to 
 
            a 1986 injury with more recent injuries producing 
 
            exacerbations of the pain.  Dr. Durward has opined that 
 
            claimant's March 7, 1986 incident did not cause persisting 
 
            disability, but only caused claimant to be off work from the 
 
            date of the injury through April 24, 1986.  Dr. Durward's 
 
            opinion is accepted over that of Drs. Lohr and Herrera as 
 
            more consistent with the evidence presented.
 
            
 
                 Claimant returned to work as of April 25, 1986.  He did 
 
            not seek medical care for a substantial period thereafter.  
 
            When he did seek medical care, he did not in any manner 
 
            relate his problem to the March 7, 1986 incident.  Indeed, 
 
            numerous medical histories either relate claimant's problems 
 

 
            
 
            Page  14
 
            
 
            
 
            
 
            
 
            
 
            
 
            to incidents within several weeks of the history or to 
 
            longstanding problems as in Dr. Kehne's report of May 15, 
 
            1989 that claimant had had mild decreased hearing in the 
 
            right ear and tendonitis for approximately six years.  
 
            Additionally, claimant did not ultimately leave work until 
 
            after reported incidents in May, August and possibly July 
 
            1989.  That fact and the fact that the substantial portion 
 
            of claimant's medical examination and evaluation occurred 
 
            after May 1989 suggests that the incidents of 1989 are more 
 
            related to claimant's current condition than the incident of 
 
            March 7, 1986.  We note that Dr. Lohr opined that the 
 
            persistence of reversal of lordosis on x-ray indicated 
 
            claimant had musculoskeletal strain.  We give that opinion 
 
            less weight, however, in that the record is silent as to 
 
            x-rays taken prior to March 7, 1986 and, therefore, it 
 
            cannot fairly be concluded that the loss of lordotic curve 
 
            relates wholly or solely to the March 7, 1986 incident.  We 
 
            note also that claimant's complaints when Dr. Lohr saw him 
 
            in December 1988 of headaches and peripheral vision problems 
 
            are inconsistent with claimant's self-report of having but a 
 
            small bit of back numbness during the same period.  Further, 
 
            other medical evidence suggests claimant has a migraine 
 
            syndrome, possibly aggravated by truck driving, but does not 
 
            relate the condition to the March 7, 1986 incident.   Again, 
 
            the significant time lapse between claimant's medical visits 
 
            with Dr. Lohr or with any other physician from April 24, 
 
            1986 through December 28, 1988 makes it highly improbable 
 
            that claimant's current complaints can be directly traced to 
 
            the March 7, 1986 incident such that that incident might be 
 
            considered a proximate cause of any current disability.  See 
 
            Holmes v. Bruce Motor Freight, Inc., 215 N.W.2d 296, 297 
 
            (Iowa 1974).
 
            
 
                 Given all the above, claimant has not established that 
 
            the injury of March 7, 1986 is a cause of the disability on 
 
            which he now bases his claim for permanency.
 
            
 
                 As claimant has not established an entitlement to 
 
            permanency, we need not reach the question of the nature and 
 
            extent of any permanent partial disability or industrial 
 
            disability.
 
            
 
                 We determine whether claimant is entitled to payment of 
 
            certain medical costs pursuant to section 85.27.
 
            
 
                 The section requires the employer to pay reasonable 
 
            costs related to a compensable injury.  The parties 
 
            stipulated that exhibits 33, 34, 35 and 42 relate to medical 
 
            expenses that have already been paid.  Disputed medical 
 
            expenses then are contained in exhibits 26 through 32, 36 
 
            through 41, and 43 through 45.  All such exhibits relate to 
 
            services provided or prescriptions given after April 24, 
 
            1986.  The earliest appears to be a January 30, 1987 
 
            statement from Dr. Kail.  As discussed above, claimant has 
 
            not shown the existence of any permanent condition related 
 
            to his March 7, 1986 incident.  As the medical costs in 
 
            dispute were incurred substantially after the end of 
 
            claimant's temporary total disability period, namely, April 
 

 
            
 
            Page  15
 
            
 
            
 
            
 
            
 
            
 
            
 
            24, 1986, the disputed medical costs cannot properly be 
 
            related to claimant's claimed injury and therefore are not 
 
            costs for which the defendants are liable under section 
 
            85.27.
 
            
 
                 We are left to determine claimant's rate of weekly 
 
            compensation for temporary total disability benefits.
 
            
 
                 Section 85.61(12) provides:
 
            
 
                 "Gross earnings" means recurring payments by 
 
                 employer to the employee for employment, before 
 
                 any authorized or lawfully required deduction or 
 
                 withholding of funds by the employer, excluding 
 
                 irregular bonuses, retroactive pay, overtime, 
 
                 penalty pay, reimbursement of expenses, expense 
 
                 allowances, and the employer's contribution for 
 
                 welfare benefits.
 
            
 
                 Section 85.36 provides in part:
 
            
 
                 The basis of compensation shall be the weekly 
 
                 earnings of the injured employee at the time of 
 
                 injury.  Weekly earnings means gross salary, 
 
                 wages, or earnings of an employee to which such 
 
                 employee would have been entitled had the employee 
 
                 worked the customary hours for the full pay period 
 
                 in which the employee was injured, as regularly 
 
                 required by the employee's employer for the work 
 
                 or employment for which the employee was employed, 
 
                 computed or determined as follows and then rounded 
 
                 to the nearest dollars:
 
            
 
                 * * *
 
            
 
                 5.  In the case of an employee who is paid on a 
 
                 yearly pay period basis, the weekly earnings shall 
 
                 be the yearly earnings divided by fifty-two.
 
            
 
                 6.  In the case of an employee who is paid on a 
 
                 daily, or hourly basis, or by the output of the 
 
                 employee, the weekly earnings shall be computed by 
 
                 dividing by thirteen the earnings, not including 
 
                 overtime or premium pay, of said employee earned 
 
                 in the employ of the employer in the last 
 
                 completed period of thirteen consecutive calendar 
 
                 weeks immediately preceding the injury.
 
            
 
                 * * *
 
            
 
                 8.  If at the time of the injury the hourly 
 
                 earnings have not been fixed or cannot be 
 
                 ascertained, the earnings for the purpose of 
 
                 calculating compensation shall be taken to be the 
 
                 usual earnings for similar services where such 
 
                 services are rendered by paid employees.
 
            
 
                 In Sperry, at 845, the Court rejected the mechanical 
 

 
            
 
            Page  16
 
            
 
            
 
            
 
            
 
            
 
            
 
            application of the statutes to include all expenses and 
 
            costs of an owner-operator.  The Court adopted as its own 
 
            the district court's language in rejecting that view, 
 
            stating:
 
            
 
                 It is not absurd to deduct known expenses to 
 
                 arrive at actual wages.  It seems quite 
 
                 unreasonable to pay the same amount whether or not 
 
                 expenses are incurred.  There is no basis to say 
 
                 that [Sperry] would receive no compensation 
 
                 because he showed a net loss on his tax return.  
 
                 Many factors, such as interest paid, depreciation, 
 
                 [and other matters] enter into a determination of 
 
                 taxable income that would not be applicable to 
 
                 determine actual wages. * * *
 
            
 
                 Defendants apparently argue that, as claimant's hourly 
 
            earnings have not been fixed or cannot be ascertained, his 
 
            earnings should be taken to be the usual earnings for 
 
            salaried drivers of Ace Worldwide.
 
            
 
                 We reject that argument.  Claimant is an 
 
            owner-operator.  He is required to supply and maintain his 
 
            own truck.  Virtually all his expenses are his own.  Given 
 
            his greater obligations and responsibilities, it is only 
 
            reasonable that his compensation should be greater than that 
 
            of a paid company driver who need not supply and maintain 
 
            his own truck or deal with expenses related to his travel.  
 
            While claimant was paid by his output, nothing in the record 
 
            reflects his weekly earnings during the last completed 
 
            period of 13 consecutive calendar weeks immediately 
 
            preceding the injury.  Indeed, the best evidence of 
 
            claimant's earnings during any given period are his tax 
 
            returns.  For that reason, claimant shall be treated as an 
 
            employee who is paid on a yearly pay period basis with the 
 
            last completed full pay period being the year of 1985.  We 
 
            agree with the Sperry court that many factors enter into a 
 
            determination of taxable income that would not be applicable 
 
            to determine actual wages.  Therefore, we reject any 
 
            argument that claimant's rate should be computed using his 
 
            taxable net income.  Claimant's statement that his actual 
 
            spendable income amounted to approximately 30-35 percent of 
 
            his gross receipts is the best evidence of the usual 
 
            earnings for similar services where such are rendered by 
 
            paid employees.  Given such, it appears reasonable to assume 
 
            that one-third (33 1/3 percent) of claimant's gross receipts 
 
            in 1985 represent his actual earnings for that year.  Gross 
 
            receipts for 1985 were $101,268.  One-third of that sum is 
 
            $33,756.  That amount, when divided by 52, represents weekly 
 
            earnings of $649.15.  Under the rate schedule effective as 
 
            of July 1, 1985, that weekly earning for an individual who 
 
            was married and entitled to six exemptions on March 7, 1986 
 
            results in a compensation rate of $390.54.
 
            
 
                                      order
 
            
 
                 THEREFORE, IT IS ORDERED:
 
            
 

 
            
 
            Page  17
 
            
 
            
 
            
 
            
 
            
 
            
 
                 Defendants American Home Insurance and Insurance 
 
            Company of Pennsylvania pay claimant temporary total 
 
            disability benefits at the rate of three hundred ninety and 
 
            54/100 dollars ($390.54) per week from March 7, 1986 through 
 
            April 24, 1986.
 
            
 
                 The above-named defendants pay accrued amounts in a 
 
            lump sum.
 
            
 
                 The above-named defendants pay interest pursuant to 
 
            Iowa Code section 85.30, as amended.
 
            
 
                 Claimant pay costs pursuant to rule 343 IAC 4.33.
 
            
 
                 The above-named defendants file a final report when 
 
            this award is paid pursuant to rule 343 IAC 3.1.
 
            
 
                 Signed and filed this ______ day of ____________, 1991.
 
            
 
                 
 
            
 
                 
 
                 
 
                                          ______________________________
 
                                          HELENJEAN WALLESER
 
                                          DEPUTY INDUSTRIAL COMMISSIONER
 
            
 
            Copies To:
 
            
 
            Mr. William G. Deck
 
            Attorney at Law
 
            635 Frances Building
 
            Sioux City, Iowa  51101
 
            
 
            Mr. Roger L. Ferris
 
            Attorney at Law
 
            1900 Hub Tower
 
            699 Walnut Street
 
            Des Moines, Iowa  50309
 
            
 
            Mr. William J. Rawlings
 
            Mr. Michael P. Jacobs
 
            Attorneys at Law
 
            300 Toy National Bank Building
 
            Sioux City, Iowa  51101
 
            
 
            
 
 
            
 
 
 
 
 
                           1108; 1803; 1504; 2001
 
                           2002; 3001; 3002
 
                           Filed January 31, 1991
 
                           HELENJEAN WALLESER
 
            before the iowa industrial commissioner
 
            ____________________________________________________________
 
                      :
 
            PAUL H. MAYHEW,     :
 
                      :
 
                 Claimant, :
 
                      :
 
            vs.       :
 
                      :         File No. 865315
 
            PAUL H. MAYHEW and  :
 
            ACE WORLDWIDE #17,  :      A R B I T R A T I O N
 
                      :
 
                 Employers,     :         D E C I S I O N
 
                      :
 
            and       :
 
                      :
 
            AMERICAN HOME INSURANCE  :
 
            COMPANY, THE INSURANCE COMPANY:
 
            OF THE STATE OF PENNSYLVANIA, :
 
            and CNA INSURANCE COMPANY,    :
 
                      :
 
                 Insurance Carriers, :
 
                 Defendants.    :
 
            ____________________________________________________________
 
            
 
            1108; 1803
 
            Claimant awarded no permanent partial disability where 
 
            substantial period lapsed between claimant's initial 
 
            incident and later complaints; where claimant did not 
 
            actually leave work until after two subsequent incidents; 
 
            and, where medical records reflected that complaints were 
 
            either longstanding, constitutional, or psychological in 
 
            origin.
 
            
 
            1504; 2001; 2002
 
            Owner-operator found to be an independent contractor.  Where 
 
            injury occurred on March 7, 1986, section 85.61(3)(c) did 
 
            not apply as the section's effective date was July 1, 1986.  
 
            The section could (and was) fairly looked to in assessing 
 
            the weight to be given the evidence presented on the 
 
            employment relationship issue, however.
 
            
 
            3001; 3002
 
            Sperry rationale used to determine weekly rate of 
 
            owner-operator.  Claimant's tax return for year prior to 
 
            injury and claimant's testimony that actual earnings were 
 
            30%-35% of gross supported a finding that one-third of gross 
 
            represented actual earnings from similar services.  
 
            Defendants' argument that wages to company drivers 
 
            represented wages for similar services rejected since 
 
            company drivers did not incur the ownership, operational and 
 
            maintenance costs of owner-operator.
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                  BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         RICKIE D. KOOB,
 
         
 
              Claimant,
 
                                                     File Nos. 865318
 
         vs.                                                 & 865319
 
         
 
         HUMBOLDT CONCRETE PRODUCTS,              A R B I T R A T I O N
 
         
 
              Employer,                              D E C I S I O N
 
         
 
         and                                            F I L E D
 
         
 
         NATIONAL UNION FIRE INSURANCE                 JUL 31 1989
 
         COMPANY,
 
                                              IOWA INDUSTRIAL COMMISSIONER
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
                                  INTRODUCTION
 
         
 
              These are proceedings in arbitration brought by Rickie D. 
 
         Koob, claimant, against Humboldt Concrete Products, employer, and 
 
         National Union Fire Insurance Company, insurance carrier, 
 
         defendants.  The cases were heard by the undersigned on June 28, 
 
         1989, in Fort Dodge, Iowa.
 
         
 
              The record consists of the testimony of claimant.  The 
 
         record also consists of the testimony of Lawrence Joe Purcell, a 
 
         vocational rehabilitation counselor with the Department of 
 
         Vocational Rehabilitation, and the testimony of Renee Koob, wife 
 
         of claimant.  Further, the record consists of the testimony of 
 
         Barney Simmons, President of Humboldt Concrete, and the testimony 
 
         of Mike Neppl, plant manager.  Finally, the record consists of 
 
         claimant's exhibits 1-14 and defendants' exhibits A through E.
 
         
 
                                     ISSUES
 
         
 
              As a result of the prehearing report and order submitted and 
 
         approved on June 28, 1989, the issues presented by the parties 
 
         are:
 
         
 
              1.  Whether claimant sustained injuries on September 14, 
 
         1987 and October 15, 1987, which arose out of and in the course 
 
         of employment with employer;
 
         
 
              2.  Whether the alleged injuries are causes of temporary and 
 
         permanent disabilities;
 
         
 
              3.  The extent of entitlement, if any, to weekly 
 
         compensation for temporary total disability or healing period, if 
 
                                                
 
                                                         
 
         defendants are liable for the alleged injuries;
 
         
 
              4.  The extent of entitlement to weekly compensation for 
 
         permanent disability, if defendants are liable for the alleged 
 
         injuries are disputed; and,
 
         
 
              5.  Whether claimant is entitled to medical benefits under 
 
         Iowa Code section 85.27.
 
         
 
                                 STIPULATIONS
 
         
 
              Prior to the hearing, the parties have entered into a number 
 
         of stipulations.  The stipulations are as follows:
 
         
 
              1.  The existence of an employer-employee relationship 
 
         between claimant and employer at the time of the alleged 
 
         injuries;
 
         
 
              2.  That the type of permanent disability, if the injury is 
 
         found to be a cause of permanent disability, is stipulated to be 
 
         an industrial disability to the body as a whole;
 
         
 
              3.  The commencement date for permanent partial disability, 
 
         in the event such benefits are awarded, is stipulated to be the 
 
         4th day of April, 1988;
 
         
 
              4.  In the event of an award of weekly benefits, the rate of 
 
         weekly compensation is stipulated to be $209.74 per week;
 
         
 
              5.  With reference to disputed medical expenses, the parties 
 
         stipulated that:
 
         
 
                   a.  The fees charged for the medical services or 
 
                       supplies rendered are fair and reasonable;
 
         
 
                   b.  The expenses were incurred for reasonable and 
 
                       necessary medical treatment; and,
 
         
 
                   c.  The causal connection of the expenses to treatment 
 
                       for a medical condition upon which claimant is now 
 
                       basing his claim is admitted but that the causal 
 
                       connection of this condition to a work injury 
 
                       remains an issue to be decided in these 
 
                       proceedings.
 
         
 
              6.  That defendants paid claimant 40 weeks of compensation 
 
         at the rate of $209.74 per week prior to hearing.
 
         
 
                                FACTS PRESENTED
 
         
 
              Claimant is 31-years-old, married and has one child.  
 
         Claimant testified he completed the ninth grade.  For the duration 
 
         of his work history, claimant has engaged in manual labor.
 
         
 
              Claimant testified that on September 14, 1987, he fell from 
 
                                                
 
                                                         
 
         a ladder while he was pouring manhole covers.  Claimant stated he 
 
         lost his grip and fell backwards approximately 4 feet but there 
 
         were no witnesses to this incident.  Claimant testified he never 
 
         reported this incident to his superiors.
 
         
 
              With respect to the alleged injury on October 15, 1987, 
 
         claimant testified he was stripping concrete pipe while working. 
 
         At the time, the pipe was 7 1/2 feet long and 36 inches in 
 
         diameter and claimant was attempting to lift the pipe above his 
 
         head.  Claimant testified.the pipe weighed 80 pounds, and while 
 
         he was lifting a pipe, he experienced a sharp pain in his back 
 
         and down his left leg.  The time of day was approximately 3:00 
 
         p.m. and one-half hour prior to the ending of his shift.  
 
         Claimant stated he reported the incident to a foreman, Delbert 
 
         Abess.  He advised claimant to switch jobs but to remain working 
 
         for the duration of the shift.
 
         
 
              Claimant testified subsequent to the incident on October 
 
         15th, he sought medical treatment as well as chiropractic 
 
         treatment.  Eventually claimant indicated he had a laminectomy in 
 
         December of 1987.  Claimant reported he had not worked since his 
 
         surgery.
 
         
 
              Dennis L. Musselman, D.C., testified by way of deposition.  
 
         He testified he first treated claimant on November 16, 1987, for 
 
         low back pain and leg discomfort.  Dr. Musselman testified that 
 
         claimant indicated he had hurt his back while trapping.  According 
 
         to Dr. Musselman, claimant reported he fell down a creek bank.  
 
         Dr. Musselman indicated claimant stated he did not injure his back 
 
         while at work.
 
         
 
              During his deposition, Dr. Musselman testified concerning a 
 
         health insurance form.  Apparently, it was completed by claimant 
 
         and his wife.
 
         
 
              Dr. Musselman stated as follows:
 
         
 
              Q.  Doctor, I'm going to hand you what has been marked as 
 
              Deposition Exhibit 1.  Can you tell me what that is?
 
         
 
              A.  Looks like an insurance form.
 
         
 
              Q.  Is that something that you fill out?
 
         
 
              A.  No.
 
         
 
              Q.  Who fills that out?
 
         
 
              A.  The patient.
 
         
 
              Q.  Okay.  Did the patient do all of the work in regard to 
 
              this form that you're aware of?
 
         
 
              A.  Yes, he did.
 
         
 
                                                
 
                                                         
 
              Q.  I note that on Line 5 on the form, there is an inquiry 
 
              as to the disability was due to an accident, and there's a 
 
              response indicating a no?
 
         
 
              A.  Uh-huh.
 
         
 
              Q.  And then it said, "Did it occur on the job?"  And the 
 
              response says no?
 
         
 
              A.  Uh-huh.
 
         
 
              Q.  And then on Number 6, there's inquiry, "If not due to 
 
              accident, is disability in any way job-related?"  And once 
 
              again the box is checked no; is that correct?
 
         
 
              A.  Right.
 
         
 
              Q.  Would Mr. Koob have checked those boxes?
 
         
 
              A.  Yes.
 
         
 
              Q.  Okay.  And then on Number 5 in Section 2, there's an 
 
              inquiry, "Is injury or sickness due to patient's employment 
 
              or occupation?"  And once again the box is marked no; is 
 
              that correct?
 
 
 
                                
 
                                                         
 
         
 
              A.  Yes, it is.
 
         
 
              Q.  Once again would he have done that?
 
         
 
              A.  Yes.
 
         
 
              Q.  All right.  Then I'd like to hand you what has been 
 
              marked as Deposition Exhibit Number 2.  Can you identify 
 
              that?
 
         
 
              A.  That's our copy of our office notes.
 
         
 
              Q.  And would you have filled out these office notes?
 
         
 
              A.  Yes.
 
         
 
              Q.  All right.  I note that there's a designation of 
 
              11-17-87.  Can you read that, what's written behind that?
 
         
 
              A.  OC is our abbreviation for office call, and low is sore, 
 
              says he fell down the creek bank.
 
         
 
              Q.  Okay.  Did Mr. Koob ever indicate to you that he had 
 
              been injured while he was on the job?
 
         
 
              A.  Not to my knowledge.
 
         
 
         (Exhibit B, page 7, line 3 to page 8, line 21)
 
         
 
              Robert A. Hayne, M.D., testified by way of deposition.  He 
 
         testified he was a neurosurgeon and that he performed a lumbar 
 
         laminectomy at the fifth lumbar level in December of 1987.  Dr. 
 
         Hayne testified that claimant's maximum medical recovery occurred 
 
         approximately April 4, 1988.  Dr. Hayne also testified that 
 
         according to reports he received from the Department of Neurology 
 
         at the University of Iowa Hospitals and Clinics, claimant had:
 
         
 
              ..."Our impression is this young man has residual left S1 
 
              deficit as evidenced by his ankle jerk being diminished, but 
 
              otherwise he has no definite neurologic or musculoskeletal 
 
              abnormalities on examination.  We do not have a good 
 
              explanation for his complaints of leg tiredness.  He does 
 
              have a workmen's compensation case pending at this time.  We 
 
              plan to review his outside x-rays....
 
         
 
              Dr. Hayne testified that according to the results of 
 
         claimant's MRI, claimant had postoperative changes subsequent to 
 
         his surgery in December of 1987.  The changes, Dr. Hayne 
 
         testified, were:
 
         
 
              ...Generally it is some thickening of the facet joint 
 
              region, both ligament and bone, and some narrowing of the 
 
              intervertebral disk space and perhaps some lipping of the 
 
              bone of the adjacent vertebral bodies at that level.
 
                                                
 
                                                         
 
         
 
              Dr. Hayne also stated that as of the date of the deposition, 
 
         he did not anticipate any additional treatment for claimant.
 
         
 
              Ms. Renee Koob testified at the hearing.  She provided 
 
         hearsay testimony that she was told by the union steward to 
 
         designate health insurance forms as nonwork related since 
 
         claimant desired treatment while he was on his annual leave.
 
         
 
              Lawrence Purcell testified on behalf of claimant.  He 
 
         testified as to the vocational testing which had been conducted. 
 
         Mr. Purcell also testified concerning the type of jobs which were 
 
         available to claimant.
 
         
 
                                APPLICABLE LAW
 
         
 
              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).
 
         
 
              Claimant has the burden of proving by a preponderance of the 
 
         evidence that he received injuries on September 14, 1987 and 
 
         October 15, 1987 which.arose out of and in the course of his 
 
         employment.  McDowell v. Town of Clarksville, 241 N.W.2d 904 
 
         (Iowa 1976); Musselman v. Central Telephone Co., 261 Iowa 352, 
 
         154 N.W.2d 128 (1967).
 
         
 
              The injury must both arise out of and be in the course of 
 
         the employment.  Crowe v. DeSoto Consol. Sch. Dist., 246 Iowa 
 
         402, 68 N.W.2d 63 (1955) and cases cited at pp. 405-406 of the 
 
         Iowa Report.  See also Sister Mary Benedict v. St. Mary's Corp., 
 
         255 Iowa 847, 124 N.W.2d 548 (1963) and Hansen v. State of Iowa, 
 
         249 Iowa 1147, 91 N.W.2d 555 (1958).
 
         
 
              The words "out of" refer to the cause or source of the 
 
         injury.  Crowe, 246 Iowa 402, 68 N.W.2d 63 (1955).
 
         
 
              The words "in the course of" refer to the time and place and 
 
         circumstances of the injury.  McClure v. Union et al. Counties, 
 
         188 N.W.2d 283 (Iowa 1971); Crowe, 246 Iowa 402, 68 N.W.2d 63 
 
         (1955).
 
         
 
              "An injury occurs in the course of the employment when it is 
 
         within the period of employment at a place the employee may 
 
         reasonably be, and while he is doing his work or something 
 
         incidental to it."  Cedar Rapids Comm. Sch. Dist. v. Cady, 278 
 
         N.W.2d 298 (Iowa 1979); McClure, 188 N.W.2d 283 (Iowa 1971). 
 
         Musselman, 261 Iowa 352, 154 N.W.2d 128 (1967).
 
         
 
              The supreme court of Iowa in Almquist v. Shenandoah 
 
         Nurseries, 218 Iowa 724, 254 N.W. 35 (1934) at 731-32, discussed 
 
         the definition of personal injury in workers' compensation cases 
 
         as follows:
 
         
 
              While a personal injury does not include an occupational 
 
                                                
 
                                                         
 
                   disease under the workmen's Compensation Act, yet an injury 
 
              to the health may be a personal injury [Citations omitted.] 
 
              Likewise a personal injury includes a disease resulting from 
 
              an injury....The result of changes in the human body 
 
              incident to the general processes of nature do not amount to 
 
              a personal injury.  This must follow, even though such 
 
              natural change may come about because the life has been 
 
              devoted to labor and hard work.  Such result of those 
 
              natural changes does not constitute a personal injury even 
 
              though the same brings about impairment of health or the 
 
              total or partial incapacity of the functions of the human 
 
              body.
 
         
 
                  ....
 
         
 
              A personal injury, contemplated by the Workmen's 
 
              Compensation Law, obviously means an injury to the body, the 
 
              impairment of health, or a disease, not excluded by the act, 
 
              which comes about, not through the natural building up and 
 
              tearing down of the human body, but because of a traumatic 
 
              or other hurt or damage to the health or body of an 
 
              employee.  (Citations omitted.]  The injury to the human 
 
              body here contemplated must be something, whether an 
 
              accident or not, that acts extraneously to the natural 
 
              processes of nature and thereby impairs the health, 
 
              overcomes, injures, interrupts, or destroys some function of 
 
              the body, or otherwise damages or injures a part or all of 
 
              the body.
 
         
 
              The claimant has the burden of proving by a preponderance of 
 
         the evidence that the injuries of September 14, 1987 and October 
 
         15, 1987 are causally related to the disability on which he now 
 
         bases his claim.  Bodish v. Fischer, Inc., 257 Iowa 516, 133 
 
         N.W.2d 867 (1965).  Lindahl v. L.O. Boggs, 236 Iowa 296, 18 
 
         N.W.2d 607 (1945).  A possibility is insufficient; a probability 
 
         is necessary.  Burt v. John Deere Waterloo Tractor Works, 247 
 
         Iowa 691, 73 N.W.2d 732 (1955).  The question of causal 
 
         connection is essentially within the domain of expert testimony.  
 
         Bradshaw v. Iowa Methodist Hospital, 251 Iowa 375, 101 N.W.2d 167 
 
         (1960).
 
         
 
              However, expert medical evidence must be considered with all 
 
         other evidence introduced bearing on the causal connection.  
 
         Burt, 247 Iowa 691, 73 N.W.2d 732.  The opinion of experts need 
 
         not be couched in definite, positive or unequivocal language.  
 
         Sondag v. Ferris Hardware, 220 N.W.2d 903 (Iowa 1974).  However, 
 
         the expert opinion may be accepted or rejected, in whole or in 
 
         part, by the trier of fact.  Id. at 907.  Further, the weight to 
 
         be given to such an opinion is for the finder of fact, and that 
 
         may be affected by the completeness of the premise given the 
 
         expert and other surrounding circumstances.  Bodish, 257 Iowa 
 
         516, 133 N.W.2d 867.  See also Musselman, 261 Iowa 352, 154 
 
         N.W.2d 128 (1967).
 
         
 
              If a claimant contends he has industrial disability he has 
 
                                                
 
                                                         
 
         the burden of proving his injury results in an ailment extending 
 
         beyond the scheduled loss.  Kellogg v. Shute and Lewis Coal Co., 
 
         256 Iowa 1257, 130 N.W.2d 667 (1964).
 
         
 
              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, experience and 
 
         inability to engage in employment for which he is fitted.  Olson 
 
         v. Goodyear Service Stores, 255 Iowa 1112, 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 disability.  This 
 
         is so as impairment and disability are not synonymous.  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 
 
         disability 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 disability.  
 
         See Peterson v. Truck Haven Cafe, Inc., (Appeal Decision, 
 
         February 28, 1985); Christensen v. Hagen, Inc., (Appeal Decision, 
 
         March 26, 1985).
 
         
 
              For example, a defendant employer's refusal to give any sort 
 
         of work to a claimant after he suffers his affliction may justify 
 
         an award of disability.  McSpadden v. Big Ben Coal Co., 288 
 
         N.W.2d 181 (Iowa 1980).
 
         
 
              Similarly, a claimant's inability to find other suitable 
 
         work after making bona fide efforts to find such work may 
 
         indicate that relief would be granted.  McSpadden, 288 N.W.2d 181 
 
         (Iowa 1980)
 
         
 
                                 ANALYSIS
 
         
 
              Claimant has established that he sustained two injuries 
 
         which arose out of and in the course of his employment.
 
         
 
              There is claimant's uncontroverted testimony that he fell 
 
         off a ladder on September 14, 1987.  There is the testimony of 
 
         claimant that he injured his back while lifting headers. 
 
         Additionally, there is claimant's exhibit 12 which is a 
 
         handwritten statement of J. R. Haas, a supervisor at defendant's 
 
         establishment.  Exhibit 12 provides in relevant portion:
 
         
 
              I recall Rick Koob - Oct 15, 1987 working in the steam room, 
 
              stripping 36" Pipe.  Rick told me he hurt his back taking 
 
              off the headers.  I took him off the job and replaced him 
 
              with another man.  Nothing more was said about his back.
 
         
 
              The aforementioned incidents occurred while claimant was 
 
         performing services on behalf of his employer.  These incidents 
 
         happened while claimant was performing his prescribed duties.
 
         
 
              Claimant has also established that his injury on October. 
 
                                                
 
                                                         
 
         15, 1987, is causally related to claimant's condition.  Dr. 
 
         Hayne, in his report of February 3, 1988, substantiates the 
 
         requisite causal connection.  He writes:
 
         
 
              There is a causal relationship between the onset of his 
 
              symptoms and his accident at work in mid October of 1987.  
 
              The findings at the time of surgery would be compatible with 
 
              his history.
 
         
 
              There is no medical testimony which causally connects 
 
         claimant's injury on September 14, 1987, to claimant's claimed 
 
         condition.  The undersigned determines there was no temporary or 
 
         permanent disability as a result of the injury on September 14, 
 
         1987.
 
         
 
              Medical testimony from Dr. Hayne not only causally connects 
 
         the October 15, 1987 incident to claimant's condition, but it 
 
         also establishes a functional impairment on the part of claimant.  
 
         Dr. Hayne, in his letter of April 4, 1988, determines claimant 
 
         has a functional impairment of approximately 8-9 percent of the 
 
         body as a whole.  In addition, Dr. Hayne, as of March 24, 1988, 
 
         determined claimant was physically incapable of returning to his 
 
         former position.  No other physician refutes his rating.
 
         
 
              Claimant argues he has sustained an industrial disability.  
 
         He maintains he has a loss of earning capacity as a result of his 
 
         injury.  Claimant has not worked since Friday, November 6, 1987, 
 
         his last day at defendant's establishment.,
 
         
 
              Claimant has been making a sincere effort to rehabilitate 
 
         himself subsequent to his laminectomy.  He has successfully 
 
         completed a program to receive his GED.  Claimant has also 
 
         participated in a program offered to him by the Division of 
 
         Vocational Rehabilitation Services.
 
         
 
              June Herrington, evaluator at the Assessment Center at Iowa 
 
         Central Community College, has determined that as of June 8, 
 
         1988, claimant might be successful as:
 
         
 
              An aptitude score of 100 is considered to be average for the 
 
              general working population.  The general learning aptitude 
 
              score is sometimes used as a predictor of success in school. 
 
              Rickie's score suggests that he might be best successful at 
 
              an on the job training program or possibly a vocational 
 
              training program in which practical skills are emphasized 
 
              rather than formal classroom training.  His highest scoring 
 
              aptitude was in the area of spatial perception.  When 
 
              Rickie's aptitude scores were compared with the suggested 
 
              aptitude levels for 66 occupational groups, he met or 
 
              exceeded the suggested aptitude levels for 1 occupational 
 
              group.  Some occupations included within that group are as 
 
              follows:  metal fabricating inspector, taster, and gauge and 
 
              instrument inspector.  When one standard error of 
 
              measurement was added on to Rickie's score, he met the 
 
              suggested aptitude levels for an additional 19 occupational 
 
                                                
 
                                                         
 
                   groups.  Some occupations included within those groups are 
 
              as follows: museum technician, photo engraver, picture 
 
              framer, auto body repairer, auto mechanic, dental laboratory 
 
              technician, machinist, dispensing optician, inventory clerk, 
 
              production coordination, electrical appliance repairer, 
 
              dispatcher, hotel clerk, medical records technician, auto 
 
              sales, parts sales, occupational therapy assistant, 
 
              psychiatric aide, and film rental clerk.
 
         
 
              Larry Purcell has recommended vocational training for 
 
         claimant at Iowa Central Community College in the area of 
 
         computer aid draftman.  Mr. Purcell has testified that claimant 
 
         has only limited potential in the academic fields.  Mr. Purcell 
 
         has also advised claimant to seek positions in auto parts sales, 
 
         tractor farm sales, and counter work.  To date, claimant has been 
 
         unsuccessful in obtaining employment.
 
         
 
              Defendant-employer has no position available to claimant, 
 
         given claimant's 40 pound lifting restriction.  Dr. Hayne has 
 
         restricted claimant from lifting concrete forms all day.. The 
 
         physician has advised claimant to obtain a more sedentary 
 
         position.
 
         
 
              Claimant has presented a list of approximately 36 business 
 
         names where he has submitted job applications since February 7, 
 
         1987.  Claimant has been unable to secure employment at any one 
 
         of the aforementioned establishments.  It is not clear whether 
 
         claimant has been refused employment because of his back 
 
         condition.  However, it is easy to understand why employers may 
 
         be reluctant to hire.individuals with back conditions.
 
         
 
              Claimant's job prospectives do not look promising.  His work 
 
         career looks bleak, at best.  In light of the foregoing, it is the 
 
         decision of the undersigned that claimant, as a result of his work 
 
         injury on October 15, 1987, has an industrial disability.  
 
         Claimant has sustained a permanent partial disability in the sum 
 
         of 22 percent.
 
         
 
              With respect to claimant's claim for permanent partial 
 
         disability benefits, claimant alleges he should be reimbursed 
 
         $122.98.  Said sum was deducted from his weekly benefits check as 
 
         an off-set for vacation pay.  The only basis for the deduction 
 
         was that the president of the company thought that offsets were 
 
         used for unemployment payments.  Therefore, offsets should be 
 
         used with workers' compensation benefit check.  It is the 
 
         decision of the undersigned that claimant is entitled to the 
 
         reimbursement.  There is no statutory authority for making such a 
 
         deduction.  There is no justifiable excuse for making a deduction 
 
         for vacation pay.
 
         
 
              The next issue to address is the extent of claimant's 
 
         healing period.  Healing period is defined in section 85.34(1).  
 
         The section provides:
 
         
 
              If an employee has suffered a personal injury causing 
 
                                                
 
                                                         
 
                   permanent partial disability for which compensation is 
 
              payable as provided in subsection 2 of this section, the 
 
              employer shall pay to the employee compensation for a 
 
              healing period, as provided in section 85.37, beginning on 
 
              the date of injury, and until the employee has returned to 
 
              work or it is medically indicated that significant 
 
              improvement from the injury is not anticipated or until the 
 
              employee 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.
 
         
 
              In his deposition, Dr. Hayne testified he would have 
 
         expected the healing period to have ended two to three months 
 
         after surgery.  Claimant's diary indicates he received his 
 
         medical release from Dr. Hayne on that date.  Claimant was able 
 
         to return to work so long as he complied with the restrictions.  
 
         It is the determination of the undersigned that claimant's 
 
         healing period commenced on November 24, 1987 and ended on March 
 
         16, 1988.
 
         
 
              The next issue to address is whether claimant is entitled to 
 
         benefits under section 85.27.  Claimant has requested payment for 
 
         the following medical costs.:
 
         
 
              Defendants are liable for:
 
         
 
              12/01/87  Blakestad Drugs          $ 9.95
 
         
 
              Medical care costs:
 
         
 
              11/  /87  Dr. Musselman Billing   $157.00
 
         
 
                                 
 
                                                         
 
               1/16/89  Maurice Northup           23.00
 
          
 
               4/06/89  William Boulden          200.00
 
          
 
               3/02/89  Humboldt Co. Memorial
 
                        Hospital                  10.00
 
          
 
               1/21/89  Robert A. Hayne           25.00
 
          
 
               5/08/89  Robert A. Hayne           25.00
 
          
 
               2/03/89  Iowa Methodist for
 
                        Enhanced CT              533.85
 
          
 
               5/08/89  Iowa Methodist for
 
                          MRI
 
          
 
               TOTAL OUTSTANDING MEDICAL COSTS  $983.80
 
         
 
         Mileage:
 
         
 
               Mileage for medical care
 
          
 
               12/04/87  Fort Dodge            40 miles
 
          
 
               12/17/87  Humboldt               8 miles
 
          
 
                2/03/88  Des Moines           220 miles
 
          
 
                3/18/88  Des Moines           220 miles
 
          
 
                7/25/88  Humboldt               8 miles
 
          
 
                7/31/88  Fort Dodge            40 miles
 
          
 
                1/16/89  Humboldt               8 miles
 
          
 
                1/23/89  Des Moines           220 miles
 
          
 
                2/03/89  Des Moines           220 miles
 
          
 
                4/06/89  Des Moines           220 miles
 
          
 
                5/08/89  Des Moines           220 miles
 
          
 
                6/06/89  Iowa City            494 miles
 
         
 
         Total miles (1,918) at $ .22/mile is $421.96.  Amount
 
         
 
              The evidence does not support a finding that D. L. 
 
         Musselman, D.C., is an authorized medical practitioner.  Mr. 
 
         Barry Simmons, president, specifically instructed claimant to see 
 
         Maurice L. Northup, M.D., and not to receive chiropractic 
 
         treatments. Defendants are not liable for Dr. Musselman's 
 
         charges.  Dr. Northup referred claimant to Dr. Hayne.  Dr. 
 
                                                
 
                                                         
 
         Northup also referred claimant to Rod Johnson.  He, in turn, 
 
         referred claimant to Dr. Boulden.  Dr. Hayne requested the MRI 
 
         and the enhanced cat scan. Dr. Northup prescribed the medication 
 
         on December 1987.  These charges are all for authorized 
 
         treatment.
 
         
 
              Defendants are liable for:
 
         
 
              12/01/87  Blakestad Drugs          $ 9.95
 
         
 
              Medical care costs:
 
         
 
               1/16/89  Maurice Northup           23.00
 
         
 
               4/06/89  William Boulden          200.00
 
               
 
               3/02/89  Humboldt Co. Memorial
 
                         Hospital                 10.00
 
         
 
               1/21/89  Robert A. Hayne           25.00
 
               
 
               5/08/89  Robert A. Hayne           25.00
 
         
 
               2/03/89  Iowa Methodist for
 
                         Enhanced CT              533.85
 
               
 
               5/08/89  Iowa Methodist for
 
                        MRI
 
         
 
              TOTAL OUTSTANDING MEDICAL COSTS $  826.80
 
         
 
              Defendants are also liable for mileage at the rate of $.21 
 
         per mile.  The requested rate of $.22 per mile exceeds the 
 
         permissible amount.  The total number of miles is 1,918.  
 
         Claimant is entitled to $402.78 in mileage.
 
         
 
              Finally, there is the issue whether claimant is entitled to 
 
         benefits under section 86.13.
 
         
 
              Section 86.13 of the Iowa Code provides in relevant 
 
              portion:
 
         
 
                   If a delay in commencement or termination of benefits 
 
              occurs without reasonable or probable cause or excuse, the 
 
              industrial commissioner shall award benefits in addition to 
 
              those benefits payable under this chapter, or chapter 85, 
 
              85A, or 85B, up to fifty percent of the amount of benefits 
 
              that were unreasonably delayed or denied.
 
         
 
              Under section 86.13 benefits are not awarded for medical 
 
         expenses.  The section 86.13 benefits are only applicable to 
 
         weekly compensation benefits.  Zahn v. Iowa State Men's 
 
         Reformatory, IV Iowa Industrial Commissioner Report 409 (1983).
 
         
 
              If it is alleged that an employer wrongfully withholds 
 
                                                
 
                                                         
 
         weekly compensation benefits from a claimant, the claimant must 
 
         establish the benefits are withheld unreasonably in order for the 
 
         claimant to receive additional benefits under section 86.13.  
 
         Curtis v. Swift Independent Packing, IV Iowa Industrial 
 
         Commissioner Report 88 at 93 (1983).  In a previous decision 
 
         before the Division of Industrial Services, a hearing deputy has 
 
         ruled that it is reasonable for an employer to withhold benefits 
 
         when the employer is not alerted to occurrences which would 
 
         notify a reasonable person that benefits will be due or when 
 
         there is not work time lost.  McCormick v. Sunsprout, I-1 Iowa 
 
         Industrial Commissioner Decisions 142 at 144 (1984).
 
         
 
              In a separate decision before the Division of Industrial 
 
         Services, the same deputy industrial commissioner has awarded 
 
         benefits under section 86.13.  There was an unreasonable delay 
 
         since there were no contradictions in the claimant's claim.  
 
         Willis v. Ruan Transport Corporation, IV Iowa Industrial 
 
         Commissioner Report 395 at 396 (1984).  In the Willis case at 396 
 
         the deputy wrote:
 
         
 
              .....Reports and letters from the doctor are consistent with 
 
              claimant's statements regarding his injury.
 
         
 
                   There were no ambiguities and inconsistencies in 
 
              claimant's claim.  Withholding benefits was arbitrary and 
 
              unreasonable.  The five percent award based on Iowa Code 
 
              section 86.13 will be attached to healing period only. 
 
              Although the evidence presented clearly relates claimant's 
 
              permanent impairment to his injury, defendants will be given 
 
              the benefit of the doubt as to whether or not a failure to 
 
              pay permanent disability also was unreasonable.  Claimant 
 
              had prior back troubles and conceivably some portion of his 
 
              impairment might have been related to those difficulties or 
 
              to a preexisting arthritis rather than to his injury.
 
         
 
              It is the decision of the undersigned that claimant should be 
 
         awarded benefits under section 86.13 in the amount of $61.49.  
 
         Said sum represents 50 percent of the amount deducted.  There is 
 
         no justification for the deduction made from claimant's benefit 
 
         check of February 3, 1989.  The deduction was unreasonable.
 
         
 
                   FINDINGS OF FACT AND CONCLUSIONS OF LAW
 
         
 
              WHEREFORE, based upon the evidence presented and the 
 
         principles of law previously stated, the following findings of 
 
         fact and conclusions of law are made:
 
         
 
              FINDING 1.  Claimant sustained a back injury arising out of 
 
         and in the course of his employment on September 14, 1987.
 
         
 
              CONCLUSION A.  Claimant's injury on September 14, 1987, did 
 
         not result in any temporary or permanent disability.
 
         
 
              FINDING 2.  Claimant sustained a back injury on October 15, 
 
         1987, which arose out of and in the course of his employment.
 
                                                
 
                                                         
 
         
 
              FINDING 3.  As a result of the injury on October 15, 1987, 
 
         claimant has an attributable functional impairment of 8-9 percent 
 
         of the body as a whole.
 
         
 
              FINDING 4.  Claimant was unable to continue his employment 
 
         with defendant.
 
         
 
              FINDING 5.  Claimant is currently unemployed.
 
         
 
              CONCLUSION B.  Claimant has met his burden of proving he has 
 
         a 22 percent permanent partial disability attributable to his 
 
         work injury on October 15, 1987.
 
         
 
              FINDING 6.  Claimant.has incurred medical expenses and 
 
         mileage as a result of his work injury on October 15, 1987.
 
         
 
              CONCLUSION C.  Medical expenses in the sum of $826.80 and 
 
         mileage in the sum of $402.78 are due under section 85.27.
 
         
 
              FINDING 7.  Defendant-employer deducted $122.98 from 
 
         claimant's weekly benefits on February 3, 1989.
 
         
 
              FINDING 8.  Defendant-employer's deduction in the sum of 
 
         $122.98 was unreasonable.
 
         
 
              CONCLUSION D.  Claimant is entitled to $61.49 in penalty 
 
         benefits under section 86.13.
 
         
 
                                      ORDER
 
         
 
              THEREFORE, defendants are to pay unto claimant one hundred 
 
         ten (110) weeks of permanent partial disability benefits at the 
 
 
 
                                      
 
                                                         
 
         stipulated rate of two hundred nine and 74/100 dollars ($209.74) 
 
         per week.
 
         
 
              Defendants are to reimburse claimant one hundred twenty-two 
 
         and 98/100 dollars ($122.98) for vacation pay which was deducted 
 
         from claimant's weekly benefits on February 3, 1989.
 
         
 
              Defendants are to pay unto claimant sixteen point 
 
         one-four-three (16.143) weeks of healing period benefits at the 
 
         stipulated rate of two hundred nine and 74/100 dollars (209.74) 
 
         per week.
 
         
 
              Payments that have accrued shall be paid in a lump sum 
 
         together with statutory interest thereon pursuant to Iowa Code 
 
         section 85.30.
 
         
 
              Defendants are to pay unpaid medical expenses in the sum of 
 
         eight hundred twenty-six and 80/100 dollars ($826.80) and mileage 
 
         in the sum of four hundred two and 78/100 dollars ($402.78).
 
         
 
              Defendants are to be given credit for any benefits 
 
         previously paid to claimant.
 
         
 
              Under section 86.13 defendants are to pay claimant sixty-one 
 
         and 49/100 dollars ($61.49).
 
         
 
              Costs are assessed against defendants pursuant to Division 
 
         of Industrial Services Rule 343-4.33.
 
         
 
              Defendants shall file a claim activity report upon payment 
 
         of this award.
 
         
 
         
 
              Signed and filed this 31st day of July, 1989.
 
         
 
         
 
         
 
         
 
         
 
                                       MICHELLE A. McGOVERN
 
                                       DEPUTY INDUSTRIAL COMMISSIONER
 
         
 
         
 
         Copies To:
 
         
 
         Mr. Tito Trevino
 
         Attorney at Law
 
         503 Snell Bldg.
 
         P. 0. Box 1680
 
         Fort Dodge, Iowa  50501
 
         
 
         Mr. Kurt L. Wilke
 
         Mr. Paul D. Stenhaug
 
         Attorneys at Law
 
         704 Central Ave.
 
                                                
 
                                                         
 
         Fort Dodge, Iowa  50501
 
         
 
         
 
         
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                                    5-1803
 
                                                    Filed July 31, 1989
 
                                                    MICHELLE A. McGOVERN
 
                                        
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         RICKIE D. KOOB,
 
         
 
              Claimant,
 
                                                    File Nos. 865318
 
         vs.                                                  865319
 
         
 
         HUMBOLDT CONCRETE PRODUCTS,             A R B I T R A T I O N
 
         
 
              Employer,                             D E C I S I O N
 
         
 
         and
 
         
 
         NATIONAL UNION FIRE INSURANCE
 
         COMPANY,
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
         5-1803
 
         
 
              Claimant was awarded a 22 percent permanent partial 
 
         disability after he sustained a second injury to his back which 
 
         arose out of and in the course of his employment.  It was 
 
         determined the first of two injuries did not result in any 
 
         temporary or permanent disability.