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  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, . 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.