BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         TONY JOHNSON,
 
                                                       File No. 865838
 
              Claimant,
 
                                                    A R B I T R A T I O N
 
         vs.
 
                                                       D E C I S I O N
 
         FRUEHAUF CORPORATION,
 
         
 
              Employer,                                   F I L E D
 
         
 
         and                                             AUG 29 1989
 
         
 
         CNA,                                        INDUSTRIAL SERVICES
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
                              STATEMENT OF THE CASE
 
         
 
              This is a proceeding in arbitration brought by claimant Tony 
 
         Johnson against defendant employer Fruehauf Corporation and 
 
         defendant insurance carrier CNA Insurance Companies to recover 
 
         benefits under the Iowa Workers' Compensation Act as the result 
 
         of an injury allegedly sustained on October 9, 1986.  This matter 
 
         came on for hearing before the undersigned deputy industrial 
 
         commissioner in Burlington, Iowa, on August 15, 1989.  The matter 
 
         was considered fully submitted at the close of hearing.
 
         
 
              The record in the proceeding consists of the testimony of 
 
         claimant, Steve Dowell, Dale Snyder, and Judith Johnson along 
 
         with defendants' exhibits 1 through 16 and plaintiff's exhibits 
 
         A, D, E, F, G, H, and I.
 
         
 
                                   ISSUES
 
         
 
              Pursuant to the prehearing report submitted by the parties 
 
         and approved by the deputy at hearing, the parties have 
 
         stipulated:  That an employment relationship existed between 
 
         claimant and employer at the time of the alleged injury; that if 
 
         the injury is found to have caused permanent disability, it is an 
 
         industrial disability to the body as a whole; that if permanent 
 
         partial disability benefits are awarded (if it be determined that 
 
         claimant's healing period has ended and he is otherwise eligible 
 
         for benefits) the commencement date is March 3, 1987; that the 
 
         appropriate rate of weekly compensation is $262.16; that 
 
         defendants are entitled to credit for 140 weeks of compensation 
 
         at the stipulated rate through August 12, 1989.
 
         
 
              The issues to be resolved include:  Whether claimant 
 
                                                
 
                                                         
 
         sustained an injury on October 9, 1986 arising out of and in the 
 
         course of his employment; whether the alleged injury caused 
 
         temporary or permanent disability; the extent of claimant's 
 
         entitlement to compensation for temporary total disability or 
 
         healing period; the extent of claimant's entitlement to 
 
         compensation for permanent disability; claimant's entitlement to 
 
         medical benefits; taxation of costs.
 
         
 
                           REVIEW OF THE EVIDENCE
 
         
 
              Claimant testified that he is 30 years old with a birthdate 
 
         of August 28, 1958.  His educational background includes a high 
 
         school diploma and a welding course of approximately one and 
 
         one-half years duration.
 
         
 
              Claimant testified to a limited work history:  He was a 
 
         cheese factory laborer, a part-time gas station attendant, a road 
 
         crew maintenance worker as an adolescent, a guard at the Iowa 
 
         State Penitentiary, and began employment with defendant in 
 
         November, 1977.  Claimant's work history with defendant is that 
 
         of an all-purpose welder.
 
         
 
              Claimant indicated that he was working the bulkhead line 
 
         (working on the front part of semitrailers) at the time of his 
 
         injury.  In approximately June, 1986, certain bearings on rollers 
 
         used in the bulkhead line began to deteriorate, causing large 
 
         steel items to scrape instead of moving smoothly.  This problem 
 
         continued until the date of the injury, October 9, 1986.  
 
         Claimant indicated that he was required to push around items 
 
         weighing up to 800 pounds on those rollers, which required a 
 
         great deal of effort.
 
         
 
              Claimant testified that on the morning of his injury, he had 
 
         worked on two or three bulkheads, but then needed to change a 
 
         60-pound roll of wire overhead.  After doing so when he next 
 
         started rolling a bulkhead, claimant suffered a surge of heat and 
 
         pain which continued worsening throughout the day.  He 
 
         demonstrated at hearing that the pain afflicted his lower back in 
 
         what appeared to the writer to be his lumbar spine area.
 
         
 
              Claimant did not recall whether he immediately visited the 
 
         plant nurse after suffering the injury and believed that he 
 
         finished his shift.  Claimant saw a chiropractor within a day or 
 
         so after the injury (Richard Brockman, D.C.), but after obtaining 
 
         no relief, visited the nurse's station.  The company nurse 
 
         referred him to Miles Archibald, M.D.  Dr. Archibald treated 
 
         claimant with medications and placed him on light duty, where he 
 
         continued working until he saw Keith W. Riggins, M.D., and was 
 
         taken off work after December 7, 1986.  Dr. Riggins hospitalized 
 
         claimant for approximately one week, during which time he 
 
         underwent heat treatment and traction.
 
         
 
              Claimant testified further that he did not dramatically 
 
         improve during his hospitalization.  At various times he also saw 
 
         Don K. Gilchrist, M.D., Trevert Couden, M.D., Robert P. Randolph, 
 
                                                
 
                                                         
 
         M.D. , and physicians at the University of Iowa Hospitals and 
 
         Clinics.  He indicated that Dr. Couden treated him with 
 
         medications and physical therapy, including swimming, for two 
 
         weeks.  Claimant did not feel the therapy was of assistance.
 
         
 
              Claimant also testified to what he referred to as a 
 
         "relapse" when he took a misstep of approximately six inches to 
 
         the dirt at his grandfather's house, suffering immediate pain and 
 
         a loss of mobility.  Following this incident, claimant called 
 
         defendant and was again referred to Dr. Couden.  After treatment 
 
         including traction, medications and complete rest, claimant 
 
         testified that he returned to his pre- "relapse" condition.
 
         
 
              Claimant described his current condition as involving a 
 
         sense of numbness in his right leg with continuing pain in his 
 
         back.  He testified that the pain is easily aggravated and that 
 
         he has good and bad days.  He testified that he is unable to work 
 
         for long without fear of aggravating his injury and further 
 
         stated that there are numerous activities he has had to curtail.  
 
         These include working in his home auto body shop, bowling, horse 
 
         riding, and cutting fire wood (he can pick up small pieces and 
 
         run a chain saw for a limited time if he stays on his knees).  
 
         Claimant is unable to either sit or stand for longer than about 
 
         fifteen minutes without pain, has problems walking up and down 
 
         steps, and suffers pain associated with extensive bending.
 
         
 
              Claimant stated that he has not looked for other work since 
 
         his injury. and believes that he still maintains an employment 
 
         relationship with defendant; he hopes to return to work, perhaps 
 
         as a janitor or in a like position.
 
         
 
              Claimant also testified that he personally paid medical 
 
         bills shown on exhibits F, G, and H, except for the $25.00 charge 
 
         of January, 1989, shown on exhibit H.  Also, claimant stated that 
 
         all the medical care was related to his injury and "relapse."
 
         
 
              On cross-examination, claimant testified that he began his 
 
         home auto body shop business in approximately 1985, that 1988 was 
 
         the first year in which that business turned a profit, and that 
 
         he now contents himself with "supervising" the work done in the 
 
         shop along with some light chores that he performs himself.  
 
         Claimant stated that he worked approximately 40 hours per week at 
 
         his auto body shop before his injury, and now works varying hours 
 
         up to a maximum of 4-6 hours on as many as 6 or 7 days per week.
 
         
 
              Claimant also testified to the effects of an automobile 
 
         accident he suffered in the 1970's.  He agreed that he was 
 
         hospitalized for a back injury in the state of Missouri for 
 
         approximately one week after that accident, but has not had back 
 
         problems since that hospitalization.  Nonetheless, he agreed on 
 
         cross-examination that he has continued to seek chiropractic care 
 
         for back and shoulder adjustments.
 
         
 
              Also on cross-examination, claimant agreed that he first saw 
 
         Dr. Archibald only approximately twenty days after his alleged 
 
                                                
 
                                                         
 
         work injury.
 
         
 
              Steve Dowell testified that he is a neighbor of claimant and 
 
         has known him for some years.  He believed that claimant was an 
 
         energetic and constant worker before his injury, that he cut 
 
         wood, pulled motors, and was otherwise industrious.  Mr. Dowell 
 
         contrasted claimant's present condition, indicating that claimant 
 
         is unable to maintain his active work habits because of an 
 
         inability to lift items such as wood, buckets, car parts, or the 
 
         like.  Mr. Dowell also testified that claimant does not perform 
 
         extensive physical work in his home auto body shop, and that he 
 
         devotes fewer than 40 hours per week to that pursuit.
 
         
 
              Clarence Dale Snyder testified to knowing claimant both 
 
         before and after his injury.  Mr. Snyder indicated that claimant 
 
         was a hard worker who did not appear to suffer lower back 
 
         problems before his injury, and that claimant had personally 
 
         worked with him in hay baling jobs when both were in high school.  
 
         Mr. Snyder also contrasted claimant's present condition, 
 
         indicating that claimant is now unable to cut firewood as he used 
 
         to do or generally work at all in a physical sense.  On 
 
         cross-examination, Mr. Snyder agreed that he recalled claimant's 
 
         automobile accident and that he had injured his back.  Mr. Snyder 
 
         also stated that claimant does very little work in his home auto 
 
         body shop, although he had personally seen claimant pick up an 
 
 
 
                           
 
                                                         
 
         automobile. battery.
 
         
 
              Judith Johnson testified to being claimant's wife for the 
 
         last twelve years.  She stated that claimant returned home on 
 
         October 9, 1986, complaining of having suffered an injury at 
 
         work. She believed that claimant had seen the company nurse on 
 
         that date, and agreed that claimant soon saw Dr. Brockman.  She 
 
         also agreed that claimant had made a practice of visiting his 
 
         chiropractor prior to the work injury.  Ms. Johnson also 
 
         testified to claimant's current condition as opposed to his 
 
         condition prior to the injury.  She specified that claimant is no 
 
         longer able to move furniture and that he is unable to lift his 
 
         child or otherwise provide as much care as would be desirable.
 
         
 
              The record includes two surgeon's reports prepared by Dr. 
 
         Archibald on December 2, 1986 and January 19, 1987.  In each case, 
 
         Dr. Archibald had an impression of chronic lumbar strain with 
 
         possible disc disease and answered a question to the effect that 
 
         the work injury was the only cause of claimant's condition.  The 
 
         first treatment given by Dr. Archibald was on October 29, 1986.  
 
         He referred claimant to Dr. Gilchrist.  Dr. Gilchrist's report of 
 
         December 2, 1986, and progress report of November 25 through 
 
         December 5, 1986, noted that claimant complained of pain in the 
 
         lower back that was worse with lifting, pushing, pulling, bending 
 
         or prolonged sitting.  Claimant also complained of radiation in 
 
         sciatic distribution to the right leg as far as the knee, but not 
 
         below.  He described claimant's "two slipped discs" at L4,5 and 
 
         L5,S1 as showing up beautifully on an MRI.  Dr. Gilchrist's note 
 
         of December 4, 1986 included the following:  "I don't think there 
 
         is any question but what this herniation was caused by 
 
         work-related accident that he describes happening on 10/9/86."
 
         
 
              Dr. Riggins' consultation report of December 17, 1986, notes 
 
         that claimant reported having been involved in a motor vehicle 
 
         accident in 1978 at which time he was advised of "jammed 
 
         vertebrae" and was hospitalized for approximately one week.  He 
 
         notes that claimant gave a history of symptoms resolving at one 
 
         month subsequent to the accident, but of "strain" two to three 
 
         times per year in the intervening years treated by chiropractic 
 
         means.  He noted that claimant related having lost no work time 
 
         from 1978 through the work injury due to back pain.  Dr. Riggins 
 
         diagnosed intervertebral disc disease L4-5, L5-S1 with strain, 
 
         but noted that computer axial tomography of the lumbar spine 
 
         demonstrated no evidence of herniated nucleus pulposus.
 
         
 
              Dr. Riggins wrote to defendant Fruehauf Corporation on 
 
         December 26, 1986.  He noted that MRI studies demonstrate 
 
         degenerative disc disease present at both L4-5 and L5-S1 with 
 
         protrusion of disc material into the neural canal.  He stated 
 
         that claimant had underlying intervertebral degenerative disc 
 
         disease "which has been aggravated by the episode of strain noted 
 
         and produced a chronic lumbar pain syndrome."  Dr. Riggins 
 
         further noted that the presence of that disc disease would 
 
         preclude claimant returning to work requiring repeated forward 
 
         bending or significant lifting.
 
                                                
 
                                                         
 
         
 
              Dr. Riggins wrote defendant Fruehauf again on March 3, 1987. 
 
         Claimant's symptoms at that time were primarily those of back 
 
         pain with only occasional radiating pain into the lower 
 
         extremities associated with bending and lifting.  Dr. Riggins 
 
         indicated that surgical treatment at that time would be unlikely 
 
         to produce significant improvement.  Dr. Riggins' diagnoses of 
 
         intervertebral disc disease with strain and sciatica secondary to 
 
         episode of strain:
 
         
 
              . . .are considered as pre-existing disease aggravated by 
 
              the episode of injury described on the 9th of October, 1986.  
 
              The patient is considered unlikely to be able to return to 
 
              occupational activities which require repeated forward 
 
              bending and heavy lifting whether or not surgical treatment 
 
              is provided.
 
         
 
         Dr. Riggins at that time opined that claimant's "period of 
 
         temporary/total disability" was ended and rated claimant's 
 
         impairment at 26 percent of the whole man:
 
         
 
              Impairment is rated at 22% impairment of the whole man 
 
              secondary to restriction of range of motion of the lumbar 
 
              spine and 10% impairment of the whole man due to presence of 
 
              intervertebral disc disease unoperated with these values 
 
              combining to a total impairment of the whole man of 26%.
 
         
 
              Dr. Couden's notes of March 30, 1987, note that claimant did 
 
         not really have much radiation of pain down his legs as long as 
 
         he was not working.  He noted that a CT scan revealed some 
 
         central bulging of the bottom two disc spaces, but no 
 
         encroachment of the foramina.  He opined that claimant had a 
 
         significant lumbar syndrome and would probably be unable to do 
 
         heavy work in the future.  On May 29, 1987, Dr. Couden noted that 
 
         claimant still had some discomfort and would return PRN if he had 
 
         any difficulty.  However, Dr. Couden's note of August 10, 1987, 
 
         specified that claimant would continue with exercise and 
 
         medication and would return in about three weeks.
 
         
 
              As shown by the records of McDonough District Hospital, 
 
         claimant's "relapse" when he stepped off a platform and suddenly 
 
         had a jamming type sensation in the low back occurred on July 17, 
 
         1987.  Dr. Couden's note on the discharge summary indicated that 
 
         claimant had been having pain in his low back for several weeks 
 
         before the "relapse."  Dr. Couden's letter of September 21, 1987 
 
         to defendant CNA Insurance Companies stated:
 
         
 
              Mr. Johnson's herniated nucleus pulposus which was found to 
 
              be extruded on an MRI on 9-2-87 was protruding on an MRI 
 
              done on 12-1-86.  It showed evidence of further herniation. 
 
              However, I feel that the problem he is now experiencing is 
 
              only an aggravation of an injury which was incurred back in 
 
              October of 1986.
 
         
 
              George Eversman, M.D., issued an x-ray report on December 1, 
 
                                                
 
                                                         
 
         1986 finding that the lumbosacral disc space is narrow, that 
 
         there was a spina bifida of S1, that there was no evidence of 
 
         spondylolysis nor spondylolisthesis, and that there were mild 
 
         hypertrophic changes in the included lower thoracic spine.  He 
 
         concluded:  "Narrow lumbosacral intervertebral disc space.  Mild 
 
         lower thoracic spondylosis."
 
         
 
              Radiologist C. G. Wagner, M.D., issued an MRI report on 
 
         December 1, 1986, finding degenerated L4-L5 and lumbosacral discs 
 
         associated with protrusion of disc material at both levels.
 
         
 
              Dr. Couden wrote to claimant's attorney on March 3, 1988.  
 
         He noted that claimant was still having a lot of pain in the 
 
         lower back with some radiation down the right leg, but not as 
 
         severe as the previous September.  He still suffered marked 
 
         limitation of motion of the lumbar spine.  Dr. Couden believed 
 
         then that surgery was still advisable, and opined that all of 
 
         claimant's present complaints date back and are directly 
 
         referable to the alleged work injury.  Dr. Couden wrote 
 
         claimant's attorney again on November 22, 1988.  He felt that the 
 
         July 21, 1987 incident when he stepped from a six-inch platform 
 
         and felt a sudden increase in pain in the lower back and legs was 
 
         only an aggravation and increase in the previously existing 
 
         problem dating back to October 9, 1986, and "certainly not a 
 
         separate injury of any significance. I feel that this was by all 
 
         means directly related to his previously work related injury."  
 
         In that letter, Dr. Couden agreed with Dr. Riggins' evaluation of 
 
         claimant's permanent partial disability rating.  He was at that 
 
         time unsure whether surgery would give claimant some decrease to 
 
         his symptoms since he had not seen claimant since February, 
 
         1988.
 
         
 
              Dr. Couden's deposition was taken on April 5, 1988.  Dr. 
 
         Couden described himself as an orthopaedic surgeon who had been 
 
         board certified since 1969 and in private practice in Macomb, 
 
         Illinois since 1974.
 
         
 
              At page 5 of the deposition, Dr. Couden stated that he had 
 
         no record of being advised of claimant's history of an automobile 
 
         accident back injury in 1978 or 1979, and also had no record that 
 
         claimant had been having regular chiropractic treatments or 
 
         adjustments prior to the work injury.  However, Dr. Couden was 
 
         not asked if this additional history would change his opinion as 
 
         to the causal relationship between the work injury and claimant's 
 
         disability.
 
         
 
              Dr. Couden did opine that the process of disc degeneration 
 
         had probably begun prior to October, 1986.
 
         
 
              When questioned directly concerning the end of claimant's 
 
         healing period, Dr. Couden indicated that at first there had been 
 
         some misunderstanding as to where claimant was suffering his 
 
         continued problems, whether at work or in his home auto shop.  
 
         Dr. Couden "did not necessarily release him to go to work.  I did 
 
         not necessarily tell him he couldn't go to work either."  
 
                                                
 
                                                         
 
         However, Dr. Couden opined that claimant had reached a plateau 
 
         and had gone about as far as he could go as far as Dr. Couden was 
 
         concerned and that he had reached a point where Dr. Couden as a 
 
         physician would anticipate no significant improvement would be 
 
         made in the future.
 
         
 
              As to claimant's "relapse" when he stepped off a platform at 
 
         his grandfather's farm, Dr. Couden agreed that this incident was 
 
         the precipitating cause of claimant's subsequent hospitalization. 
 
         However, he believed that claimant's physical findings were 
 
         essentially the same when comparing his condition after his 
 
         discharge from earlier that year in May.  Claimant had greater 
 
         restriction of motion to the back when seen in.August, 1987.  Dr. 
 
         Couden then agreed that he had caused a second MRI to be done on 
 
         September  2, 1987.  The MRI revealed that "whereas, previously 
 
         there was a posterior protrusion of disc material at the 4,5 and 
 
         the L5,S-1 level, there is at this time a large extruded L4,5 
 
         disc."  Dr. Couden explained that protrusion is a bulging and 
 
         extrusion means that the material has come through the overlying 
 
         ligament and is loose in the spinal canal with the nerves and can 
 
         be more severe than a protrusion, and appeared to be in 
 
         claimant's case.  He at that time recommended a lumbar 
 
         laminectomy, but did not see claimant again until February 29, 
 
         1988.
 
         
 
              A third MRI was done in January, 1989, and revealed 
 
         "protruded" disc material which Dr. Couden believed was intended 
 
         to mean "extruded."  In an examination of January 31, 1989, Dr. 
 
         Couden found claimant had normal and active deep tendon reflexes 
 
         at the knees and ankles, that he was almost able to touch his 
 
         toes, and had no evidence of motor weakness.  His recommendation 
 
         was that if claimant did not feel he was getting along well or 
 
         was having sufficient pain, that surgery at the two lower levels 
 
 
 
                           
 
                                                         
 
         might be indicated.  "Not that he necessarily needed to have it, 
 
         but that I would be willing to do it if he asked me to do it."  
 
         Dr. Couden further opined that claimant will probably require 
 
         surgery in the future.  He was unsure whether claimant's 
 
         impairment would be improved in the event of later surgery.
 
         
 
              At page 21 of his deposition, Dr. Couden  noted that he did 
 
         not at that time have an opinion as to claimant's impairment 
 
         rating.  He did not believe that claimant could return to his 
 
         previous job as a welder with defendant, but was unprepared at 
 
         that time to specify guidelines as to claimant's physical 
 
         limitations or what jobs he might be physically able to do.
 
         
 
              On examination by claimant's counsel, Dr. Couden indicated 
 
         that the work injury may have aggravated the preexisting disc 
 
         degeneration condition and that the injury he found in August, 
 
         1987 was probably related to the work injury of October 9, 1986. 
 
         The incident of July, 1987 was described as such a minor 
 
         occurrence that Dr. Couden did not believe it would have 
 
         initiated the number of problems that claimant was having 
 
         subsequent to that without a preexisting problem.  Further, on 
 
         examination by Mr. Wright, Dr. Couden again agreed with Dr. 
 
         Riggins' permanent impairment rating evaluation of 26 percent to 
 
         the body as a whole.
 
         
 
              When asked as to claimant's limitations, Dr. Couden 
 
         testified:
 
         
 
              Q.  In your opinion you also indicated that he can not 
 
              return to his previous job at Fruehauf as a welder.
 
         
 
              What type of work must he avoid with his present condition?
 
         
 
              A.  Basically I would think heavy lifting, twisting-type 
 
              activities, repeated bending, and squating-type [sic] 
 
              activities.
 
         
 
              Q.  Is his the type of condition that would also bother him 
 
              if he had a job where he had to sit for long periods of 
 
              time?
 
         
 
              A.  If he had to sit uninterrupted for long periods of time, 
 
              yes.  But if he could get up and move around he could 
 
              tolerate it fairly well.
 
         
 
              Q.  Can you give us the types of jobs or the general fields 
 
              of work where you would expect he would not be able to do 
 
              given those limitations?
 
         
 
              A.  Heavy construction work where he had to sit for long 
 
              periods, like driving a truck or sitting at a machine where 
 
              he had to stay in one position for a long period of time.
 
         
 
              Loading and unloading-type activities, even if it was rather 
 
              light weight, if he had to turn and twist a lot it would not 
 
                                                
 
                                                         
 
                   be very satisfactory.
 
         
 
              Q.  And why is that, Doctor?
 
         
 
              A.  Twisting activities or turning activities seem to 
 
              increase the pressure within the intervertebral discs a 
 
              great deal, even as much or more than lifting.
 
         
 
              Simple things such as raking or sweeping can be just as 
 
              aggravating to a back problem as heavy lifting.
 
         
 
              Q.  Can you think of any type of employment that Tony might 
 
              be able to do?
 
         
 
              A.  Oh, I think he could do some kind of work where he could 
 
              work on electronic equipment where he could get up and move 
 
              around, sit down.  Work on some bench work.
 
         
 
              Q.  Assuming that he had the education and training for such 
 
              work?
 
         
 
              A.  That's true.
 
         
 
              Q.  Did the most recent MRI confirm your findings about 
 
              Tony's condition?
 
         
 
              A.  It confirmed that he had some disc problems at the lower 
 
              two disc levels.  It did not confirm that he had extruded 
 
              disc material as they found in Quincy in the one MRI in 
 
              September of 1987.
 
         
 
              Q.  Do you have an opinion as to whether or not Tony's 
 
              condition will continue for an indefinite time into the 
 
              future and, therefore, be permanent?
 
         
 
              A.  I think it will be, yes.
 
         
 
              MR. WRIGHT:  I believe that's all I have, Doctor.  Thanks.
 
         
 
              REDIRECT EXAMINATION
 
         
 
              BY MR. McDONALD:
 
         
 
              Q.  Doctor, when you were talking about Tony not doing any 
 
              heavy lifting, can you give me an idea what you mean by 
 
              "heavy lifting"?  Where is the dividing line?
 
         
 
              A.  I think probably no more than 25 or 30 pounds.
 
         
 
              Q.  Would his impairment be described as a nonoperated 
 
              clinically established disc derangement with residuals?
 
         
 
              A.  Yes.
 
         
 
         (Couden deposition, page 26, line 9 through page 28, line 25)
 
                                                
 
                                                         
 
         
 
              Defendant Fruehauf's first aid records are also in evidence. 
 
         They show that claimant complained of back problems on February 
 
         6, 1979 and May 22, 1984.  Further, entries of October 9, 1986 
 
         show that claimant made complaints of injuring his back 
 
         consistent with his testimony and that he left work to visit his 
 
         chiropractor on that date.
 
         
 
                       APPLICABLE LAW AND ANALYSIS
 
         
 
              An employee is entitled to compensation for any and all 
 
         personal injuries which arise out of and in the course of the 
 
         employment.  Section 85.3(1).
 
         
 
              Claimant has the burden of proving by a preponderance of the 
 
         evidence that he received an injury on October 9, 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. 
 
         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 v. DeSoto Consol. Sch. Dist., 246 Iowa 402, 68 
 
         N.W.2d 63 (1955).
 
         
 
              The words "in the course of" refer to the time and place and 
 
         circumstances of the injury.  McClure v. Union et al. Counties, 
 
         188 N.W.2d 283 (Iowa 1971); Crowe v. DeSoto Consol. Sch. 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 Comm. Sch. 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. Central Telephone Co., 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 injury of October 9, 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 
 
 
 
                       
 
                                                         
 
         Hospital, 251 Iowa 375, 101 N.W.2d 167 (1960).
 
         
 
              However, expert medical evidence must be considered with all 
 
         other evidence introduced bearing on the causal connection.  
 
         Burt, 247 Iowa 691, 73 N.W.2d 732.  The opinion of experts need 
 
         not be couched in definite, positive or unequivocal language.  
 
         Sondag v. Ferris Hardware, 220 N.W.2d 903 (Iowa 1974).  However, 
 
         the expert opinion may be accepted or rejected, in whole or in 
 
         part, by the trier of fact.  Id. at 907.  Further, the weight to 
 
         be given to such an opinion is for the finder of fact, and that 
 
         may be affected by the completeness of the premise given the 
 
         expert and other surrounding circumstances.  Bodish, 257 Iowa 
 
         516, 133 N.W.2d 867.  See also Musselman v. Central Telephone 
 
         Co., 261 Iowa 352, 154 N.W.2d 128 (1967).
 
         
 
              While a claimant is not entitled to compensation for the 
 
         results of a preexisting injury or disease, the mere existence at 
 
         the time of a subsequent injury is not a defense.  Rose v. John 
 
         Deere Ottumwa Works, 247 Iowa 900, 908, 76 N.W.2nd 756 (1956).  
 
         If the claimant had a preexisting condition or disability that is 
 
         aggravated, accelerated, worsened or lighted up so that it 
 
         results in disability, claimant is entitled to recover.  Nicks v 
 
         Davenport Produce Co., 254 Iowa 130, 115 N.W.2d 812 (1962).
 
         
 
              Our supreme court has stated many times that a claimant may 
 
         recover for a work connected aggravation of a preexisting 
 
         condition.  Almquist v. Shenandoah Nurseries, 218 Iowa 724, 254 
 
         N.W. 35 (1934).  See also Auxier v. Woodward State Hospital Sch., 
 
         266 N.W.2d 139 (Iowa 1978); Gosek v. Garmer and Stiles Co., 158 
 
         N.W.2d 731 (Iowa 1968); Barz v. Oler, 257 Iowa 508, 133 N.W.2d 
 
         704 (1965); Olson v. Goodyear Service Stores, 255 Iowa 1112, 125 
 
         N.W.2d 251 (1963); Yeager v. Firestone Tire & Rubber Co., 253 
 
         Iowa 369, 112 N.W.2d 299 (1961); Ziegler v. United States Gypsum 
 
         Co., 252 Iowa 613, 106 N.W.2d 591 (1960).
 
         
 
              Claimant testified to sharp pain while handling a heavy 
 
         bulkhead and immediately after changing a 60-pound roll of wire 
 
         overhead.  That testimony is found credible.  Claimant made 
 
         complaint to the employer as shown by first aid records, 
 
         apparently saw a chiropractor on the same day, and complained of 
 
         the injury to his wife that evening.  Subsequent radiological 
 
         examination disclosed protruded and extruded disc material.  This 
 
         evidence is all consistent with the theory that claimant did 
 
         suffer an injury while at work on October 9, 1986.  There is no 
 
         evidence in the record showing otherwise.  Claimant was 
 
         performing his normal job duties at his normal station when his 
 
         injury occurred.
 
         
 
              Dr. Archibald filled out a form to the effect that the work 
 
         injury was the only cause of claimant's condition.  Dr. Gilchrist 
 
         felt there was no question but that claimant's disc herniation 
 
         was caused by the work-related incident of October 9, 1986.  Dr. 
 
         Riggins found intervertebral degenerative disc disease aggravated 
 
         by the episode of strain under review, producing a chronic lumbar 
 
         pain syndrome.  Dr. Couden has expressed the view that claimant 
 
                                                
 
                                                         
 
         suffered a back injury as alleged, and that his "relapse" in 1987 
 
         was a minor occurrence, although the precipitating cause of a 
 
         subsequent hospitalization.  In his deposition, he stated that 
 
         the 1987 injury was "probably related" to the work injury.  
 
         Although Dr. Couden may have been given a somewhat inadequate 
 
         history in that he was unaware of claimant's old automobile back 
 
         injury and the subsequent recurrent episodes of strain requiring 
 
         chiropractic adjustment, he was never asked whether these defects 
 
         in the history would influence his opinion as to causal 
 
         connection between the work injury and claimant's disability.
 
         
 
              Claimant did suffer a back injury in the late 1970's that 
 
         was serious enough to cause hospitalization.  He has also had 
 
         subsequent back problems for which he has sought chiropractic 
 
         care, although his hearing testimony was rather 
 
         self-contradictory on this point.  Nonetheless, claimant was able 
 
         to actively maintain his employment until the time of his work 
 
         injury.  He has not been able to return to the same position 
 
         subsequent to the work injury.
 
         
 
              Based on the foregoing considerations, it is held that 
 
         claimant has met his burden of proof in establishing an injury of 
 
         October 9, 1986 arising out of and in the course of his 
 
         employment with Fruehauf Corporation and that the work injury is 
 
         causally related to subsequent disability.
 
         
 
              Claimant takes the position that his healing period has not 
 
         yet ended.  Under Iowa Code section 85.34(1), a healing period 
 
         begins on the date of injury and continues until the employee has 
 
         returned to work, it is medically indicated that significant 
 
         improvement from the injury is not anticipated, or until the 
 
         employee is medically capable of returning to substantially 
 
         similar employment, whichever first occurs.
 
         
 
              At the time of his deposition on April 5, 1988, Dr. Couden 
 
         testified that claimant had reached a plateau and a point where 
 
         the doctor would anticipate no significant improvement.  Dr. 
 
         Riggins opined in a letter of March 3, 1987, that claimant's 
 
         "period of temporary/total disability" was ended and issued an 
 
         impairment rating.  It is held that the issuance of a permanent 
 
         impairment rating, particularly when joined with an opinion that 
 
         the period of temporary/total disability has ended, implies a 
 
         medical indication that it is not anticipated that significant 
 
         improvement will occur in the future.  This was the first 
 
         indication that healing period had ended under 85.34(1), and 
 
         should end the healing period unless it is considered extended by 
 
         claimant's "relapse" in July, 1987.
 
         
 
              As to that "relapse," it is to be noted that Dr. Couden 
 
         believed it was a minor occurrence that would not have initiated 
 
         the problems claimant was having.  However, healing period can be 
 
         interrupted or intermittent, and may terminate and later begin 
 
         again.  Willis v. Lehigh Portland Cement Co., 2-1 Iowa Industrial 
 
         Commissioner Decisions 485 (1984); Riesselman v. Carroll Health 
 
         Center, III Iowa Industrial Commissioner Reports 209 (1982). 
 
                                                
 
                                                         
 
         Therefore, it is held that claimant's healing period ended on 
 
         March 3, 1987 with the opinion of Dr. Riggins.  However, it is 
 
         further held that claimant had additional healing period during 
 
         the time of his hospitalization following his fall at his 
 
         grandfather's residence from July 17, 1987 through July 26, 1987. 
 
         Based on Dr. Couden's opinion as to the causal connection between 
 
         the original work injury and this minor aggravation, claimant has 
 
         met his burden of proof in establishing additional healing period 
 
         entitlement during his hospitalization.  However, although 
 
         claimant may have in fact been temporarily disabled for a time 
 
         after July 26, the record is not such as to permit a 
 
         determination as to such additional time as may be appropriate, 
 
         if any.  That is to say, claimant has not met his burden of proof 
 
         in establishing entitlement to further healing period benefits 
 
         following the July 17-26, 1987 hospitalization.
 
         
 
              The medical benefits in dispute relate to a number of visits 
 
         to Dr. Couden and charges relating to the hospitalization in 
 
         July, 1987.  Claimant's testimony established that all of these 
 
         charges related either to his original back injury or to what he 
 
         has referred to as a "relapse."  Although claimant's evidence on 
 
         this score cannot be regarded as overwhelming, it is nonetheless 
 
         held that claimant has established that all of these medical 
 
         charges are causally related to the work injury or to the 
 
         "relapse," which is itself causally related to the work injury.  
 
         Therefore, an award shall be made as to those medical benefits.
 
         
 
              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).
 
         
 
              The evidence is undisputed that claimant has suffered a 
 
         physical impairment by reason of his work-related injury.  Dr. 
 
         Riggins assigned a permanent impairment rating of 26 percent.  
 
         This impairment rating was a combined rating based upon a 22 
 
         percent impairment secondary to restriction of range of motion and 
 
         10 percent impairment due to presence of unoperated intervertebral 
 
         disc disease.  A review of the combined values chart published in 
 
         the American Medical Association Guides to the Evaluation of 
 
         Permanent Impairment reflects that a 22 percent impairment to the 
 
 
 
                       
 
                                                         
 
         whole body combined with a 10 percent impairment of the whole body 
 
         is 30 percent.  It is unclear what factors Dr. Riggins considered 
 
         in reaching the 26 percent combined value.  It should also,be 
 
         noted that Dr. Couden has expressed his agreement with that 
 
         evaluation. Nonetheless, it should be clear that the vast bulk of 
 
         claimant's impairment is directly attributable to the work injury, 
 
         since claimant was able to perform heavy work before the injury 
 
         and is unable to do so now.  In any event, the impairment rating 
 
         is but one of the factors to be reviewed in determining industrial 
 
         disability.
 
         
 
              The record does not reflect that claimant has been medically 
 
         issued physical limitations or restrictions in any formal sense. 
 
         Dr. Riggins has noted that claimant is precluded from returning to 
 
         work requiring repeated forward bending or significant lifting. 
 
         This is so whether or not surgical treatment is provided.  
 
         Although Dr. Couden opined in his deposition that he was 
 
         unprepared to specify guidelines as to claimant's physical 
 
         limitations, he did eventually express some views.  He believed 
 
         that claimant should avoid heavy,lifting, twisting-type 
 
         activities, squatting and repeated bending.  In addition, he 
 
         should not sit uninterrupted for long periods of time and would be 
 
         foreclosed from heavy construction work or truck driving or other 
 
         jobs where he would be required to remain sitting.  By "heavy 
 
         lifting," Dr. Couden was referring to probably no more than 25 or 
 
         30 pounds.  Dr. Couden believed that claimant could do such work 
 
         as repairs on electronic equipment or other benchwork where he 
 
         could get up and move around, assuming that he had the education 
 
         and training to qualify him for such work.  Such does not now 
 
         appear to be the case.
 
         
 
              It seems clear that claimant is for all practical purposes 
 
         foreclosed from returning to his work as a general welder.  The 
 
         record is somewhat unclear as to whether claimant would be able 
 
         to perform any of the other jobs in which he has experience, 
 
         although it would appear that he should not be foreclosed from a 
 
         position as a gas station attendant.  Nonetheless, it appears 
 
         that claimant has suffered a substantial diminution of his 
 
         earning capacity by reason of this work injury.
 
         
 
              On the other hand, claimant is only 30 years old as of the 
 
         date of hearing and has attained a high school diploma.  At 
 
         hearing, claimant gave every indication of being of at least 
 
         average intelligence.  Therefore, retraining certainly appears 
 
         feasible.  Claimant's coursework and experience in welding does 
 
         not appear to be particularly significant or helpful at this 
 
         time, because of his restrictions against lifting, squatting or 
 
         twisting.  Claimant has also testified to the difficulty he has 
 
         in doing chores at his auto body repair business or in cutting 
 
         firewood.  Yet, his business is now showing a profit and claimant 
 
         apparently has adequate supervisory skills that have enabled this 
 
         to come to pass.
 
         
 
              Evidence as to the question of claimant's motivation to 
 
         return to work is susceptible of mixed interpretation.  Claimant 
 
                                                
 
                                                         
 
         has not looked for any work whatsoever since his injury, but is 
 
         putting in substantial hours in his home business.  Therefore, 
 
         the undersigned concludes that while claimant may have 
 
         substantial motivation to stay busy at a remunerative pursuit, he 
 
         has not shown motivation to return to work so as to mitigate 
 
         defendants' liability.  Therefore, his motivation is deemed low 
 
         for purposes of this decision.
 
         
 
              Finally, it is noteworthy that defendants have been unable 
 
         to keep claimant employed given his current condition.  This 
 
         factor does tend to show industrial disability.  McSpadden v. Big 
 
         Ben Coal Co., 288 N.W.2d 181 (Iowa 1980)
 
         
 
              Given generally the record made by the parties and the above 
 
         considerations in particular, this writer finds and concludes 
 
         that claimant has, by reason of his work-related injury of 
 
         October 9, 1986, sustained an industrial disability of 40 percent 
 
         of the body as a whole, the commencement date for permanent 
 
         partial disability being March 4, 1987.  However, no permanent 
 
         disability benefits are payable during the intermittent healing 
 
         period of July 17-26, 1987.  Claimant is entitled to healing 
 
         period benefits from October 9, 1986 through March 3, 1987 and 
 
         again from July 17-26, 1987.  Defendants shall be given credit 
 
         for all benefits voluntarily paid through the date of this 
 
         decision.
 
         
 
                              FINDINGS OF FACT
 
         
 
              THEREFORE, based on the evidence presented, the following 
 
         ultimate facts are found:
 
         
 
              1.  As stipulated, claimant was an employee of defendant 
 
         Fruehauf Corporation on October 9, 1986.
 
         
 
              2.  Claimant suffered a work injury on October 9, 1986, 
 
         while handling bulkheads immediately after changing a 60-pound 
 
         overhead roll of wire.  The injury involved a substantial 
 
         aggravation of claimant's preexisting degenerative disc disease.
 
         
 
              3.  Claimant's injury caused him to be disabled for a 
 
         healing period from October 9, 1986 through March 3, 1987 and 
 
         July 17, 1987 through July 26, 1987 (21 weeks, 6 days).
 
         
 
              4.  Claimant's injury includes protruded and extruded disc 
 
         material at the L4,5 and L5,S1 levels of the spine.
 
         
 
              5.  Claimant's injury has been stipulated to be an 
 
         industrial disability to the body as a whole.
 
         
 
              6.  Claimant's rate of weekly compensation has been 
 
         stipulated to be $262.16.
 
         
 
              7.  Claimant's work injury has caused him permanent 
 
         impairment, disability and a diminution of his earning capacity.
 
         
 
                                                
 
                                                         
 
              8.  Claimant was a credible witness.
 
         
 
              9.  Although claimant has not been given formal limitations, 
 
         Dr. Couden has opined that he cannot return to his previous job 
 
         as a welder, that he should avoid heavy lifting (25-30 pounds), 
 
         twisting, squatting, repeated bending, and sitting uninterrupted 
 
         for long periods.
 
         
 
              10.  That of disputed medical bills, claimant has personally 
 
         paid $2,321.33 to McDonough District Hospital, $180.00 to Robert 
 
         P. Randolph, M.D., and $370.00 to Dr. Couden; a $25.00 bill from 
 
         Dr. Couden remains unpaid.
 
         
 
                              CONCLUSIONS OF LAW
 
         
 
              WHEREFORE, based on the principles of law previously stated, 
 
         the following conclusions of law are made:
 
         
 
              1.  Claimant suffered an injury arising out of and in the 
 
         course of his employment with Fruehauf Corporation on October 9, 
 
         1986.
 
         
 
              2.  Claimant's injury was an injury to the body as a whole.
 
         
 
              3.  Claimant's injury directly caused a healing period from 
 
         October 9, 1986 through March 3, 1987 and from July 17, 1987 
 
         through July 26, 1987 (21.857 weeks) and permanent partial 
 
         disability.
 
         
 
              4.  Claimant has established a permanent partial disability 
 
         of 40 percent of the body as a whole, the commencement date being 
 
         March 4, 1987, and continuing for 200 weeks except for the period 
 
         from July 17 through July 26, 1987.
 
         
 
              5.  Claimant is entitled to reimbursement for medical 
 
         expenses as set forth below.
 
         
 
                                     ORDER
 
         
 
              THEREFORE, IT IS ORDERED:
 
         
 
              Defendants are to pay unto claimant twenty-one point eight 
 
         five seven (21.857) weeks of healing period benefits at the rate 
 
         of two hundred sixty-two and 16/100 dollars ($262.16) per week, 
 
         totalling five thousand seven hundred thirty and 03/100 dollars 
 
         ($5,730.03).
 
         
 
              Defendants are to pay unto claimant two hundred (200) weeks 
 
         of permanent partial disability benefits at the rate of two 
 
         hundred sixty-two and 16/100 dollars ($262.16) per week, 
 
         totalling fifty-two thousand four hundred thirty-two and 00/100 
 
         dollars ($52,432.00).
 
         
 
              Defendants shall be entitled to credit for all compensation 
 
         paid to claimant as of the date of this decision.
 
                                                
 
                                                         
 
         
 
              Defendants are also to pay unto claimant medical expenses 
 
         totalling two thousand five hundred eighty-six and 33/100 dollars 
 
         ($2,586.33) and to Dr. Trevert Couden in the sum of twenty-five 
 
         and 00/100 dollars ($25.00).
 
         
 
              Any benefits which have accrued as of the date of this 
 
         decision shall be paid in a lump sum together with statutory 
 
         interest pursuant to Iowa Code section 85.30.
 
         
 
              The costs of this action shall be assessed to defendants 
 
         pursuant to Division of Industrial Services Rule 343-4.33.
 
         
 
              Defendants shall file a claim activity report pursuant to 
 
         Division of Industrial Services Rule 343-3.1.
 
         
 
         
 
              Signed and filed this 29th day of August, 1989.
 
         
 
         
 
         
 
         
 
         
 
         
 
                                            DAVID RASEY
 
                                            DEPUTY INDUSTRIAL 
 
                                            COMMISSIONER
 
         
 
         Copies To:
 
         
 
         Mr. George E. Wright
 
         Attorney at Law
 
         607 Eighth Street
 
                                     
 
                                                         
 
         Marquette Building
 
         Fort Madison, Iowa  52627
 
         
 
         Mr. Elliott R. McDonald, Jr.
 
         Attorney at Law
 
         P.O. Box 2746
 
         Davenport, Iowa  52809
 
 
 
 
 
         
 
         
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                            51803
 
                                            Filed August 29, 1989
 
                                            DAVID RASEY
 
         
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         TONY JOHNSON,
 
         
 
              Claimant,
 
         
 
         vs.                                       File No. 865838
 
         
 
         FRUEHAUF CORPORATION,                  A R B I T R A T I 0 N
 
         
 
              Employer,                            D E C I S I 0 N
 
         
 
         and
 
         
 
         CNA,
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
         51803
 
         
 
              Claimant awarded 40 percent of the body as a whole permanent 
 
         partial disability by reason of his unoperated back condition.
 
         
 
         
 
         
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                    BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         TONY JOHNSON,
 
         
 
              Claimant,                            File No. 865838
 
          
 
         vs.                                      R U L I N G   0 N
 
         
 
         FRUEHAUF CORPORATION,                  A P P L I C A T I 0 N
 
         
 
              Employer,                                 F 0 R
 
         
 
         and                                      R E H E A R I N G
 
         
 
         CNA,                                         F I L E D
 
         
 
              Insurance Carrier,                     OCT 17 1989
 
              Defendants.
 
                                                 INDUSTRIAL SERVICES
 
         
 
         
 
              Defendants filed an Application for Rehearing on September 
 
         18, 1989.  Claimant filed a resistance.
 
         
 
              The application sets forth that claimant should not have 
 
         been awarded healing period benefits in the Arbitration Decision 
 
         filed August 29, 1989, from October 9, 1986 through December 5, 
 
         1986, because claimant continued working from the date of injury 
 
         until December 5.
 
         
 
              The resistance sets forth no grounds for why the application 
 
         should be denied.  A review of the Arbitration Decision reflects 
 
         that claimant continued working after October 9, 1986.  The first 
 
         aid report submitted in evidence reflects that claimant was to be 
 
         admitted per Dr. Archibald's instructions on December 8, 1986. 
 
         Medical records reflect that claimant was hospitalized on 
 
         December 8, 1986.  Claimant worked until then.
 
         
 
              Because the application correctly points out that healing 
 
         period benefits were incorrectly awarded, but since the record is 
 
         sufficiently complete to determine healing period, the 
 
         application should be sustained and the arbitration decision 
 
         herein modified.
 
         
 
              IT IS THEREFORE ORDERED that the Arbitration Decision issued 
 
         herein on August 29, 1989 should be and is hereby modified to 
 
         reflect that claimant's healing period is from December 8, 1986 
 
         through March 3, 1987 and from July 17, 1987 through July 26, 
 
         1987.  This is a period of thirteen (13) weeks five (5).days. 
 
         Therefore, defendants are to pay unto claimant thirteen point 
 
         seven one four (13.714) weeks of healing period benefits at the 
 
         rate of two hundred sixty-two and 16/100 dollars ($262.16) per 
 
         week, totalling three thousand five hundred ninety-five and 
 
         26/100 dollars ($3,595.26).
 
                                                
 
                                                         
 
         
 
              Signed and filed this 17th day of October, 1989.
 
         
 
         
 
         
 
         
 
         
 
         
 
                                            DAVID RASEY
 
                                            DEPUTY INDUSTRIAL 
 
                                            COMMISSIONER
 
         
 
         Copies To:
 
         
 
         Mr. George E. Wright
 
         Attorney at Law
 
         607 Eighth Street
 
         Marquette Building
 
         Fort Madison, Iowa  52627
 
         
 
         Mr. Elliott R. McDonald, Jr.
 
         Attorney at Law
 
         P.O. Box 2746
 
         Davenport, Iowa  52809
 
         
 
         
 
         
 
 
 
 
 
 
 
 
 
 
 
 
            
 
            Page   1
 
            
 
            
 
            
 
            
 
            
 
            
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            ELLEN WILLIAMS, f/k/a         :
 
            ELLEN ASKEW,                  :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :         File No. 865845
 
            FOURTH AVENUE ASSOCIATES,     :
 
                                          :      A R B I T R A T I O N
 
                 Employer,                :
 
                                          :         D E C I S I O N
 
            and                           :
 
                                          :
 
            NORTHWESTERN NATIONAL         :
 
            INSURANCE COMPANY,            :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ____________________________________________________________
 
            
 
                              statement of the case
 
            
 
                 This is a proceeding brought by Ellen Williams, 
 
            formerly known as Ellen Askew, against Fourth Avenue 
 
            Associates.  She seeks additional compensation for permanent 
 
            partial disability based upon an injury that occurred on 
 
            March 7, 1985.  The only issue for determination is the 
 
            extent of permanent partial disability of her right arm.  
 
            The evidence in the case consists of testimony from the 
 
            claimant, claimant's exhibits 1 through 4 and defendants' 
 
            exhibits E through Z, AA through ZZ, AAA through ZZZ, AAAA 
 
            and BBBB.
 
            
 
                                 findings of fact
 
            
 
                 Having considered all the evidence received together 
 
            with the appearance and demeanor of the witnesses, the 
 
            following findings of fact are made.
 
            
 
                 Ellen Askew injured her right arm on March 7, 1985 
 
            while transferring a patient from a bed to a chair at the 
 
            nursing home where she was employed.  Claimant received 
 
            medical treatment, including two surgeries.
 
            
 
                 Claimant has not experienced relief of her symptoms.  
 
            She continues to have difficulties with her right arm.  At 
 
            hearing, she demonstrated very little use of the right arm.  
 
            Claimant has experienced emotional difficulties in 
 
            connection with her condition.  The employer, Fourth Avenue 
 
            Associates, is owned by a group of doctors which claimant 
 
            believes includes the surgeons who operated on her arm, 
 
            though she was not certain if they did or of their 
 
            interests, if any, in the business.
 
            
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            
 
            
 
                 William W. Eversmann, M.D., one of claimant's surgeons, 
 
            has rated her as having a 5 percent permanent partial 
 
            impairment of her right arm (exhibit RRR; exhibit BBBB, page 
 
            28).  Claimant's responses were somewhat erratic when the 
 
            testing used to arrive at the impairment rating was 
 
            performed.  Claimant was also evaluated by James E. Crouse, 
 
            M.D., who found claimant to have a 28 percent impairment of 
 
            the right upper extremity (claimant's exhibits 3 and 4).
 
            
 
                 After observing claimant's demeanor as she testified 
 
            and considering all the evidence in the record, including 
 
            her prior problems with her extremities, it is found that 
 
            claimant has a 10 percent permanent partial impairment of 
 
            her right arm which was proximately caused by the March 7, 
 
            1985 injury.  The 5 percent rating found by Dr. Eversmann 
 
            appears to have been arrived at due to inconsistencies in 
 
            her tests rather than specifically through precise 
 
            measurement.  On the other hand, the rating from Dr. Crouse 
 
            seems somewhat high in comparison to ratings normally seen 
 
            in cases of this type in individuals who have had a similar 
 
            medical problem and with similar residual symptoms.
 
            
 
                                conclusions of law
 
            
 
                 The right of a worker to receive compensation for 
 
            injuries sustained which arose out of and in the course of 
 
            employment is statutory. The statute conferring this right 
 
            can also fix the amount of compensation to be paid for 
 
            different specific injuries, and the employee is not 
 
            entitled to compensation except as provided by the statute.  
 
            Soukup v. Shores Co., 222 Iowa 272, 268 N.W. 598 (1936).
 
            
 
                 Permanent partial disabilities are classified as either 
 
            scheduled or unscheduled.  A scheduled disability is 
 
            evaluated by the functional method.  Graves v. Eagle Iron 
 
            Works, 331 N.W.2d 116 (Iowa 1983).
 
            
 
                 It was stipulated by the parties in the prehearing 
 
            report that the disability is a scheduled disability of 
 
            claimant's right arm.
 
            
 
                 Ellen Askew is entitled to receive 25 weeks of 
 
            compensation for permanent partial disability representing a 
 
            10 percent permanent partial disability of her right arm 
 
            under the provisions of Iowa Code section 85.34(2)(m).  
 
            
 
                                      order
 
            
 
                 IT IS THEREFORE ORDERED that defendants pay claimant 
 
            twenty-five (25) weeks of compensation for permanent partial 
 
            disability at the stipulated rate of one hundred twenty-two 
 
            and 03/100 dollars ($122.03) per week payable commencing 
 
            August 25, 1986.
 
            
 
                 IT IS FURTHER ORDERED that defendants be given credit 
 
            for all amounts of permanent partial disability compensation 
 
            previously paid, including that paid as a result of making 
 
            payments at the incorrect rate.  The remaining past due 
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            
 
            
 
            amount shall be paid to claimant in a lump sum together with 
 
            interest computed from the date each payment came due until 
 
            the date of actual payment pursuant to Iowa Code section 
 
            85.30.
 
            
 
                 IT IS FURTHER ORDERED that the costs of this proceeding 
 
            are assessed against defendants 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 ______ day of ____________, 1990.
 
            
 
                 
 
            
 
                 
 
                 
 
                                          ______________________________
 
                                          MICHAEL G. TRIER
 
                                          DEPUTY INDUSTRIAL COMMISSIONER
 
            
 
            Copies To:
 
            
 
            Mr. Charles H. Nadler
 
            Attorney at Law
 
            Suite 420, Paramount Building
 
            Cedar Rapids, Iowa  52401
 
            
 
            Mr. Richard C. Garberson
 
            Attorney at Law
 
            500 MNB Building
 
            P.O. Box 2107
 
            Cedar Rapids, Iowa  52406-2107
 
            
 
            
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                               5-1803
 
                                               Filed August 16, 1990
 
                                               MICHAEL G. TRIER
 
            before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            ELLEN WILLIAMS, f/k/a         :
 
            ELLEN ASKEW,                  :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :         File No. 865845
 
            FOURTH AVENUE ASSOCIATES,     :
 
                                          :      A R B I T R A T I O N
 
                 Employer,                :
 
                                          :         D E C I S I O N
 
            and                           :
 
                                          :
 
            NORTHWESTERN NATIONAL         :
 
            INSURANCE COMPANY,            :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ____________________________________________________________
 
            
 
            5-1803
 
            Non-precedential scheduled permanent partial disability 
 
            award.
 
            
 
 
            
 
            Page   1 
 
            
 
            
 
            
 
            
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            GLORIA DECKER,                :
 
                                          :
 
                 Claimant,                :  File Nos.  856157 & 865851
 
                                          :
 
            vs.                           :
 
                                          :  A R B I T R A T I O N
 
            WILSON FOODS, INC.,           :
 
                                          :      D E C I S I O N
 
                 Employer,                :    
 
                 Self-Insured,            :      
 
                 Defendant.               :
 
            ___________________________________________________________
 
            
 
                                   INTRODUCTION
 
            
 
                 This is a proceeding in arbitration brought by Gloria 
 
            Decker, claimant, against Wilson Foods, Inc., employer and 
 
            self-insured defendant, for benefits as the result of an 
 
            alleged injury to the neck, shoulders and upper back which 
 
            occurred on January 2, 1987 (file number 856851) and an 
 
            injury to her right hand which occurred on March 18, 1987 
 
            (file number 856157).  The record consists of the testimony 
 
            of Gloria Decker, claimant; joint exhibits 1 through 13; 
 
            claimant's exhibits 1 and 2 and employer's exhibits A 
 
            through C.  Both attorneys submitted excellent briefs.  
 
            
 
                         alleged injury of January 2, 1987
 
            
 
                                   stipulations
 
            
 
                 The parties stipulated that an employer-employee 
 
            relationship existed at the time of the alleged injury; that 
 
            the rate of compensation, in the event of an award, is 
 
            $232.27; and that claimant's entitlement to medical benefits 
 
            is not in dispute.
 
            
 
                                      issues
 
            
 
                 The parties submitted the following issues for 
 
            determination at the time of the hearing:
 
            
 
                 Whether claimant sustained an injury on January 2, 
 
            1987, which arose out of and in the course of employment 
 
            with employer.
 
            
 
                 Whether the injury was the cause of permanent 
 
            disability.
 
            
 
                 Whether claimant is entitled to permanent disability 
 
            benefits, and if so, the nature and extent of benefits to 
 
            which she is entitled.
 
            
 
                              injury of March 18, 1987
 
            
 
                                   stipulations
 
            
 

 
            
 
            Page   2 
 
            
 
            
 
            
 
            
 
                 The parties stipulated to the following matters at the 
 
            time of the hearing:
 
            
 
                 That an employer-employee relationship existed between 
 
            claimant and employer at the time of the injury.
 
            
 
                 That claimant sustained an injury on March 18, 1987, 
 
            which arose out of and in the course of employment with 
 
            employer.
 
            
 
                 That the injury was the cause of both temporary and 
 
            permanent disability.
 
            
 
                 That the extent of entitlement to temporary disability 
 
            benefits has already been paid and is not a matter in 
 
            dispute between the parties at this time.
 
            
 
                 That the type of permanent disability, if the injury is 
 
            found to be a cause of permanent disability, is scheduled 
 
            member disability to the right hand.
 
            
 
                 That the commencement date of permanent partial 
 
            disability benefits is February 10, 1988.
 
            
 
                 That the rate of compensation, in the event of an 
 
            award, is $232.27 per week.
 
            
 
                 That claimant's entitlement to medical benefits is not 
 
            in dispute.
 
            
 
                 That defendant makes no claim for employee 
 
            nonoccupational group health plan benefits paid to claimant 
 
            prior to hearing.
 
            
 
                 That defendant has paid claimant 4.75 weeks of 
 
            permanent partial disability benefits prior to hearing at 
 
            the rate of $232.27 per week.
 
            
 
                 That there are no bifurcated claims.
 
            
 
                                      issues
 
            
 
                 The parties submitted the following issues for 
 
            determination at the time of the hearing:
 
            
 
                 Whether the injury was the cause of permanent 
 
            disability.
 
            
 
                 Whether claimant is entitled to permanent disability 
 
            benefits, and if so, the extent of benefits to which she is 
 
            entitled.
 
            
 
                         alleged injury of January 2, 1987
 
            
 
                                 findings of fact
 
            
 
                 Claimant testified that on January 2, 1987, she slipped 
 
            on a piece of fat and fell on her bottom and jammed her 
 
            shoulders.  She testified that she hurt her low back, 
 
            shoulders, and neck.  She reported the injury to her 
 

 
            
 
            Page   3 
 
            
 
            
 
            
 
            
 
            foreman; saw Keith O. Garner, M.D., the plant physician; was 
 
            referred to Walter O. Carlson, M.D., an orthopedic surgeon; 
 
            Mark E. Wheeler, M.D., an orthopedic surgeon; A.J. Wolbrink, 
 
            M.D., an orthopedic surgeon; and received physical therapy 
 
            from a licensed physical therapist.  She saw Pat Luse, D.C., 
 
            for an evaluation also.  Claimant testified that she still 
 
            has headache pain, neck pain and hip pain precipitated by 
 
            lifting and knife work.  Strenuous activity either at home 
 
            or at work also triggers the pain.  She has a particularly 
 
            sharp lower neck pain.  
 
            
 
                 The medical records of Dr. Garner verify that claimant 
 
            did report a fall at work on January 2, 1987 and complained 
 
            of lower back pain.  A week later, on January 9, 1987, she 
 
            complained of right shoulder muscles being sore and was 
 
            authorized to see a chiropractor.  Claimant continued to 
 
            complain of neck and shoulder pain in March, April and May 
 
            according to the entries on the company medical records.  
 
            Employer referred claimant to Dr. Carlson in April of 1987 
 
            and to Dr. Wheeler, at her request, in August of 1987 
 
            (exhibit 1, pages 1-4).
 
            
 
                 Dr. Carlson examined and treated the cervical and 
 
            thoracic regions and found no objective evidence for 
 
            decreased range of motion or neurologic change in her arms 
 
            and neck to merit taking her off work.  He prescribed 
 
            medication and a cervical collar.  Dr. Carlson gives no 
 
            opinion on causal connection of the employment to the 
 
            complaints of injury (ex. 4, p. 1 and ex. 5).  On August 11, 
 
            1987, he said there was nothing more that he could do for 
 
            her neck and shoulder and that she was able to work (ex. 7).  
 
            Dr. Carlson's diagnosis was muscle-ligament strain in neck 
 
            and shoulder.  He indicated gradual improvement should be 
 
            expected (ex. 10).  
 
            
 
                 Dr. Wheeler said that claimant gave a history that she 
 
            slipped and fell at work, but was uncertain whether the fall 
 
            actually caused her problems because she had had continued 
 
            trouble for quite some time.  He did find tenderness over 
 
            the trapezius muscles over C3, C4 and C6 and in both 
 
            paraspinal muscle groups.  She had a full range of motion of 
 
            the cervical spine and the shoulder.  His neurological 
 
            examination was normal.  X-rays of the cervical spine showed 
 
            no abnormality.  Dr. Wheeler diagnosed chronic muscle strain 
 
            pattern about the shoulders.  Dr. Wheeler concluded as 
 
            follows:  
 
            
 
                 I have advised her I have little to offer.  I am 
 
                 sure her work is aggravating her condition but I 
 
                 do not feel that leaving her off work for a short 
 
                 period of time is going to solve anything.  Have 
 
                 advised her she can work as long as she tolerates 
 
                 the pain.  I have not placed her on any 
 
                 medications.  She has a zero percent permanent 
 
                 partial impairment rating because of this.  She 
 
                 has full range of motion of all joints.
 
            
 
            (ex. 3)
 
            
 
                 Dr. Wolbrink noted that claimant slipped and fell at 
 

 
            
 
            Page   4 
 
            
 
            
 
            
 
            
 
            work and continued to have pain in the right trapezius area 
 
            from the cervical spine to the periscapular area and 
 
            somewhat into the right shoulder.  He stated, "In my 
 
            opinion, Mrs. Decker did suffer mild, cervical strain in the 
 
            above incident.  She has some persistent muscular problems 
 
            because of this."  (ex. 12, p. 2).  He expected to see 
 
            improvement with a good exercise program.  His final remark 
 
            was, "It is also my opinion, that with a good exercise 
 
            program, she will have a good recovery, and so will not have 
 
            any permanent impairment due to her cervical spine injury." 
 
            (ex. 12, p. 2).
 
            
 
                 Dr. Luse, claimant's evaluator, found that claimant did 
 
            receive an injury as a result of the fall of chronic 
 
            cervical sprain/strain with myositis and cephalgia 
 
            (claimant's ex. 1, p. 3).
 
            
 
                 In conclusion, Dr. Carlson gives no guidance on causal 
 
            connection.  Dr. Wheeler said that claimant reported a fall 
 
            at work, but was not sure whether this actually caused her 
 
            problems.  Dr. Wheeler, like Dr. Carlson, did not give his 
 
            own personal professional medical opinion on whether the 
 
            fall at work was the cause of her medical complaints.  He 
 
            did say that her work aggravated her condition.  
 
            
 
                 The weight of the evidence, however, does support a 
 
            work-related injury.  The employer's medical records show 
 
            that Dr. Garner recorded a fall on January 2, 1987 and 
 
            ensuing shoulder and neck pain shortly thereafter.  Dr. 
 
            Wolbrink clearly states that the fall did cause claimant's 
 
            cervical and shoulder complaints.  Dr. Luse also 
 
            unequivocally states that the fall caused claimant's 
 
            cervical sprain/strain, myositis and cephalgia.  Therefore, 
 
            it is determined that claimant sustained an injury to her 
 
            shoulders, neck and upper back on January 2, 1987 which 
 
            arose out of and in the course of employment with employer.
 
            
 
                causal connection-entitlement-permanent disability
 
            
 
                 Dr. Carlson found no permanent impairment or 
 
            disability, but only muscle-ligament strain in the neck and 
 
            shoulder (ex. 10) and that it did not impair claimant's 
 
            ability to work (exs. 4, 5 & 7).  Dr. Wheeler found that 
 
            work was aggravating her shoulder and neck condition and 
 
            probably would continue to do so, but determined, "She has a 
 
            zero percent permanent partial impairment..."  Dr. 
 
            Wolbrink's cervical spine x-ray reads as follows:
 
            
 
                 The cervical spine is intact with no fractures.  
 
                 Vertebral alignment is normal and intervertebral 
 
                 discs are adequately maintained.  No encroachment 
 
                 on intervertebral foraminae can be seen.
 
            
 
                 IMPRESSION:  NEGATIVE CERVICAL SPINE.
 
            
 
            (ex. 11)
 
            
 
                 After careful consideration, Dr. Wolbrink stated, 
 
            "...that with a good exercise program, she will have a good 
 
            recovery, and so will not have any permanent impairment due 
 

 
            
 
            Page   5 
 
            
 
            
 
            
 
            
 
            to her cervical spine injury." (ex. 12, p. 2).
 
            
 
                 Dr. Luse found some mild impairments in claimant's left 
 
            and right lateral flexion--1 percent on the right and 1 
 
            percent on the left, but did not find any particular 
 
            impairment rating for the cervical spine itself (cl. ex. 1, 
 
            p. 3).
 
            
 
                 Therefore, it is determined that the injury to 
 
            claimant's neck and shoulders and upper back was not the 
 
            cause of any permanent impairment and claimant is not 
 
            entitled to any permanent partial disability benefits.  It 
 
            is determined that claimant sustained an injury to the body 
 
            as a whole, rather than a scheduled member injury.
 
            
 
                               injury of March 18, 1987
 
            
 
                causal connection-entitlement-permanent disability
 
            
 
                 Following the trigger finger releases performed by Dr. 
 
            Carlson on June 25, 1987, claimant contended, "...that when 
 
            she has her fingers wrapped around a knife at work they 
 
            trigger and snap on her." (ex. 7).  Claimant also asserted a 
 
            lack of grip strength in her right hand (ex. 8).  
 
            Nevertheless, Dr. Carlson concluded:
 
            
 
                 She had full range of motion of the fingers and 
 
                 patient requested a permanency rating based on 
 
                 grip strength.  The patient was advised that there 
 
                 was no information allowing to relate disability 
 
                 to decreased grip strength.
 
            
 
                 It is our opinion that the patient has no 
 
                 permanent partial physical impairment rating 
 
                 related to her injury.  She is back to full work 
 
                 duty.
 
            
 
            (ex. 9)
 
            
 
                 Dr. Wheeler refused to treat the right hand complaint 
 
            and makes no comment about it (ex. 1, p. 4; ex. 3).  Dr. 
 
            Wolbrink recorded that she still had problems with the right 
 
            hand, especially if she is using the "whizzer" knife.  He 
 
            further recorded, "weakness of the right hand."  He found 
 
            right hand scars and slight crepitation along the flexor 
 
            tendons as she flexed her fingers.  He felt that she had 
 
            good relief from the surgery.  He recommended an exercise 
 
            program for her hands, which he found were of just marginal 
 
            strength, to tolerate the highly repetitive work that she 
 
            was doing without changing jobs throughout the day.  His 
 
            final impairment rating was worded as follows:
 
            
 
                 In my opinion, in using the Guides to the 
 
                 Evaluation of Permanent Impairment, AMA, 2nd 
 
                 edition, Mrs. Decker has an impairment at the 
 
                 present time, of 10% of the right hand, due to the 
 
                 persistent weakness from her trigger finger and 
 
                 the tendinitis.  I do think that she will continue 
 
                 to see improvement, but I think that she will have 
 
                 a permanent impairment of about 5% of the right 
 

 
            
 
            Page   6 
 
            
 
            
 
            
 
            
 
                 hand due to this problem.
 
            
 
            (ex. 12, p. 2)
 
            
 
                 Dr. Luse found that the repetitive motion job which 
 
            claimant was performing was the cause of her right trigger 
 
            finger release and paresthesia of the right hand (ex. 1, p. 
 
            3).  He awarded a 4 percent impairment of the right upper 
 
            extremity due to loss of function, sensory defect, pain and 
 
            discomfort and another 4 percent impairment to the right 
 
            upper extremity for loss of function due to loss of 
 
            strength.  He combines these two ratings and arrives at an 8 
 
            percent combined impairment.  The impairment is to a 
 
            scheduled member, however, rather than to the whole person 
 
            as stated by Dr. Luse.  Four percent and 4 percent do 
 
            combine to 8 percent on the combined values chart of the AMA 
 
            Guides.
 
            
 
                 In conclusion, Dr. Wolbrink found a 10 percent 
 
            permanent impairment to the right hand.  Dr. Luse's 8 
 
            percent of the right upper extremity converts to 7 percent 
 
            of the hand (table 2, page 19, AMA Guides).  There is no 
 
            evidence that claimant's impairment extends beyond the hand.  
 
            The wrist has been determined to be a part of the hand.  
 
            Elam v. Midland Manufacturing, II Iowa Industrial 
 
            Commissioner Reports 141 (Appeal Decision 1981).  Dr. 
 
            Wolbrink's statement, "...that she will continue to see 
 
            improvement, but I think she will have a permanent 
 
            impairment of about 5% of the right hand due to this 
 
            problem." is speculative in nature.  He awarded 10 percent 
 
            for the condition as he found it.  There has been no 
 
            evidence that the condition improved to 5 percent subsequent 
 
            to his rating.  Claimant testified that her hands and 
 
            knuckles still swell from using them at work.  There is no 
 
            evidence that either Dr. Wolbrink or Dr. Luse included the 
 
            tennis elbow which developed subsequent to this injury, in 
 
            their evaluation or determination of an impairment rating.  
 
            In conclusion, Dr. Carlson's determination that claimant 
 
            suffered no permanent impairment as a result of the third 
 
            and fourth finger releases is out weighed by the testimony 
 
            of Dr. Wolbrink and Dr. Luse.  
 
            
 
                 Therefore, based on claimant's testimony and the 
 
            evaluations of Dr. Wolbrink and Dr. Luse, it is determined 
 
            that claimant has sustained a 7 percent permanent partial 
 
            impairment to the right hand.  Iowa Code section 
 
            85.34(2)(l).  Seven percent of 190 weeks equals 13.3 weeks 
 
            of entitlement to permanent partial disability benefits.
 
            
 
                         alleged injury of January 2, 1987
 
            
 
                                conclusions of law
 
            
 
                 Claimant did sustain the burden of proof by a 
 
            preponderance of the evidence that she sustained an injury 
 
            to her neck, shoulders and upper back when she fell on 
 
            January 2, 1987, which arose out of and in the course of 
 
            employment with employer.  Iowa Code section 85.3(1); 
 
            McDowell v. Town of Clarksville, 241 N.W.2d 904 (Iowa 
 
            1976); Musselman v. Central Telephone Co., 261 Iowa 352, 154 
 

 
            
 
            Page   7 
 
            
 
            
 
            
 
            
 
            N.W.2d 128 (1967).
 
            
 
                 Causal connection to temporary disability and 
 
            entitlement to temporary disability were not issues in this 
 
            case because claimant lost no time from work because of this 
 
            injury.
 
            
 
                 Claimant did not sustain the burden of proof by a 
 
            preponderance of the evidence that the injury was the cause 
 
            of permanent disability.  Bodish v. Fischer, Inc., 257 Iowa 
 
            516, 133 N.W.2d 867 (1965); Lindahl v. L.O. Boggs Co., 236 
 
            Iowa 296 18 N.W.2d 607 (1945).
 
            
 
                 Claimant, therefore, is not entitled to permanent 
 
            disability benefits because she did not prove that the 
 
            injury was the cause of permanent disability.  Furthermore, 
 
            Dr. Carlson, Dr. Wheeler and Dr. Wolbrink determined that 
 
            claimant had not sustained any permanent impairment from 
 
            this injury.
 
            
 
                 The injury is determined to be an injury to the body as 
 
            a whole rather than an injury to a scheduled member.  Iowa 
 
            Code section 85.34(2)(u).
 
            
 
                               injury of March 18, 1987
 
            
 
                 That claimant did sustain the burden of proof by a 
 
            preponderance of the evidence that the injury of March 18, 
 

 
            
 
            Page   8 
 
            
 
            
 
            
 
            
 
            1987, to the right hand, was the cause of permanent 
 
            impairment.
 
            
 
                 That the parties stipulated that the type of permanent 
 
            disability, if the injury was found to be a cause of 
 
            permanent disability, was scheduled member disability to the 
 
            right hand.  Iowa Code section 85.34(2)(l).
 
            
 
                 That claimant sustained a 7 percent permanent 
 
            impairment and functional disability to the right hand.
 
            
 
                 That claimant is entitled to 13.3 weeks of permanent 
 
            partial disability benefits.
 
            
 
                                       order
 
            
 
                 THEREFORE, IT IS ORDERED:
 
            
 
                 That defendant pay to claimant thirteen point three 
 
            (13.3) weeks of permanent partial disability benefits at the 
 
            rate of two hundred thirty-two and 27/100 dollars ($232.27) 
 
            per week in the total amount of three thousand eighty-nine 
 
            and 19/100 dollars ($3,089.19) commencing on February 10, 
 
            1988 as stipulated to by the parties.
 
            
 
                 That all accrued benefits are to be paid in a lump sum.
 
            
 
                 That interest will accrue pursuant to Iowa Code section 
 
            85.30. 
 
            
 
                 That defendant is entitled to a credit for four point 
 
            seven five (4.75) weeks of workers' compensation benefits 
 
            paid to claimant prior to hearing at the rate of two hundred 
 
            thirty-two and 27/100 dollars ($232.27) per week in the 
 
            total amount of one thousand one hundred three and 28/100 
 
            dollars ($1,103.28).
 
            
 
                 That the costs of this action are charged to defendant 
 
            pursuant to Division of Industrial Services Rule 343-4.33.
 
            
 
                 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 ____ day of June, 1990.
 
            
 
            
 
            
 
            
 
                                          ______________________________
 
                                          WALTER R. McMANUS, JR.
 
                                          DEPUTY INDUSTRIAL COMMISSIONER    
 
            
 
            Copies to:
 
            
 
            Mr. Harry Smith
 
            Mr. MacDonald Smith
 
            Attorneys at Law
 
            632-640 Badgerow Bldg.
 
            PO Box 1194
 

 
            
 
            Page   9 
 
            
 
            
 
            
 
            
 
            Sioux City, Iowa  51102
 
            
 
            Mr. David Sayre
 
            Attorney at Law
 
            223 Pine
 
            PO Box 535
 
            Cherokee, Iowa  51012
 
            
 
            
 
 
            
 
            Page   1
 
            
 
            
 
            
 
            
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            MARK W. BAXTER,               :
 
                                          :
 
                 Claimant,                :         File No. 865866
 
                                          :
 
            vs.                           :      A R B I T R A T I O N
 
                                          :
 
            YELLOW CAB COMPANY,           :         D E C I S I O N
 
                                          :
 
                 Employer,                :
 
                 Self-Insured,            :
 
                 Defendant.               :
 
            ____________________________________________________________
 
            
 
                              statement of the case
 
            
 
                 This is a proceeding in arbitration brought by claimant 
 
            Mark W. Baxter against defendant self-insured employer 
 
            Yellow Cab Company to recover benefits under the Iowa 
 
            Workers' Compensation Act as the result of injuries 
 
            sustained on November 21, 1987.  This matter came on for 
 
            hearing before the undersigned in Des Moines, Iowa, on 
 
            September 13, 1989.  The cause was considered fully 
 
            submitted at the close of hearing.
 
            
 
                 The record in this proceeding consists of joint 
 
            exhibits 1 through 11 and the testimony of the following 
 
            witnesses:  claimant, Evelyn Jean Lewis and John R. Wilson.
 
            
 
                                      issues
 
            
 
                 Pursuant to the prehearing report submitted by the 
 
            parties and approved at hearing, the following issues have 
 
            been stipulated:  claimant is single and entitled to one 
 
            exemption; the fees charged for medical services or supplies 
 
            are fair and reasonable; the causal connection of those 
 
            expenses to treatment for the medical condition upon which 
 
            claimant is now basing his claim is admitted.
 
            
 
                 Issues presented for determination include:  whether an 
 
            employment relationship existed between claimant and Yellow 
 
            Cab Company at the time of the alleged injury; whether 
 
            claimant sustained an injury on November 21, 1987, arising 
 
            out of and in the course of employment; whether the injury 
 
            caused temporary or permanent disability, the extent of 
 
            each, the type of permanent disability, if any, and the 
 
            commencement date for permanent partial disability; the rate 
 
            of weekly compensation and the amount of claimant's gross 
 
            weekly earnings; whether claimant failed to give notice of 
 
            his injury pursuant to Iowa Code section 85.23; the extent 
 
            of claimant's entitlement to medical benefits, whether 
 
            expenses were incurred for reasonable and necessary medical 
 
            treatment, whether the expenses are causally connected to 
 
            the work injury, and whether the expenses were authorized by 
 
            defendants; taxation of costs.
 
            
 
                              review of the evidence
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            
 
                 Claimant, age 27 at time of hearing, was engaged in 
 
            driving a taxicab on November 21, 1987.  The cab collided 
 
            with a utility pole, although claimant has no memory of the 
 
            accident itself.
 
            
 
                 Claimant testified to his work history.  This included 
 
            approximately 6-7 months driving a taxicab owned by Joannie 
 
            Hansen in 1984.  That cab, as was the one involved in the 
 
            present case, bore the markings of and was dispatched by 
 
            defendant Yellow Cab Company (hereinafter "Yellow Cab").  
 
            Claimant left that employment when he was laid off by Ms. 
 
            Hansen.
 
            
 
                 Claimant also testified by deposition taken June 14, 
 
            1988.  In his deposition he indicated that he had also 
 
            driven for another cab owner (again associated with Yellow 
 
            Cab) in approximately 1980, but lost that employment when 
 
            the vehicle was destroyed in an accident and was apparently 
 
            not replaced by its owner.
 
            
 
                 The cab driven by claimant at the time of the subject 
 
            incident was owned by Evelyn Jean Lewis (hereinafter 
 
            "Lewis").  Claimant began his relationship with Lewis in 
 
            March, 1987.  He drove approximately 11 or 12 hours per day, 
 
            5 or 6 days per week.  Claimant was not given any training 
 
            by Yellow Cab when he began driving the Lewis cab, but he 
 
            did fill out an information sheet for Yellow Cab and gave 
 
            proof that he had a chauffeur's license.  Claimant testified 
 
            that he was given a Yellow Cab badge, but admitted on 
 
            cross-examination that the badge was issued by the city of 
 
            Des Moines rather than defendant.
 
            
 
                 Claimant's compensation agreement was made with Evelyn 
 
            Jean Lewis.  She and claimant split proceeds on a 50/50 
 
            basis after deducting gasoline costs, although claimant 
 
            retained all his tips.  Claimant conceded on 
 
            cross-examination that he was never paid wages by Yellow 
 
            Cab.
 
            
 
                 Yellow Cab operates a zone system for dispatching cabs.  
 
            Procedure was that when a driver had a vacant cab in any 
 
            zone, he or she was to contact the dispatcher by radio to 
 
            check in.  The dispatcher would then assign incoming trips 
 
            to the first vacant cab in a particular zone.  Claimant 
 
            testified on direct examination that he did not have the 
 
            right to refuse dispatches, but admitted on 
 
            cross-examination that he did have the right to "pass" or 
 
            refuse a given trip call.  In such a case the dispatcher 
 
            would either call another driver or "bid out" the trip by 
 
            asking for volunteers generally.  Claimant testified he was 
 
            not free to go off the radio to find his own fares, but 
 
            testified further that he was unsure if he had been given 
 
            that specific instruction by anyone at all.  He did agree 
 
            that he at all times had the option of going to a cab stand 
 
            (at the airport or elsewhere) and go off the radio while 
 
            awaiting trips there.
 
            
 
                 When asked specifically if Yellow Cab or its 
 
            dispatchers issued directions as to how to perform his work, 
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            claimant responded in the negative.
 
            
 
                 Claimant testified to his belief that Yellow Cab had 
 
            the right to discharge him.  He indicated that he understood 
 
            his duties as including courtesy to customers and indicated 
 
            that he had been trained to use the radio by a Mr. Shaffer 
 
            of Yellow Cab when he first drove in 1980.  He further 
 
            testified that a supervisor, Mark Grove, enjoined him to be 
 
            careful as a driver.
 
            
 
                 On cross-examination, claimant testified that he did 
 
            not sign any agreement with Yellow Cab, although he filled 
 
            out an application or information sheet before driving.  
 
            Further, he admitted that he never went to defendant's 
 
            premises for any purpose, that Yellow Cab did not set hours, 
 
            shifts, or prescribe routes, speed or otherwise advise him 
 
            how to perform the job (although he was instructed to 
 
            generally take the quickest route possible).  He agreed that 
 
            he had never driven a cab owned by Yellow Cab and had never 
 
            been reimbursed for gasoline or maintenance by defendant.
 
            
 
                 Claimant at one time was himself an owner/operator in 
 
            partnership with his step-father and in association with 
 
            Yellow Cab.
 
            
 
                 Claimant agreed that he felt he was "his own boss."  He 
 
            knew that he could quit the job any time he desired and also 
 
            knew that he could be discharged by Lewis for any reason.  
 
            On one occasion claimant abandoned his cab at a bus terminal 
 
            and took a bus to a distant city for personal reasons and 
 
            without notice.  Upon his return, claimant admitted that he 
 
            contacted Lewis and not defendant, and that Lewis gave him 
 
            another chance to drive, advising him to "make sure it 
 
            doesn't happen again."
 
            
 
                 Although claimant testified that Mark Grove told him to 
 
            be courteous to customers, at his deposition he was asked if 
 
            any representative of Yellow Cab Company had ever told him 
 
            what to say to customers, and he responded "No."
 
            
 
                 Evelyn Jean Lewis testified to being an owner/operator 
 
            of six cabs, four of which bear the markings of and are 
 
            dispatched by Yellow Cab and two of which bear the markings 
 
            of and are dispatched by another taxicab company.  She 
 
            testified that she had hired claimant personally, although 
 
            she did so against the advice of claimant's step-father, a 
 
            long-time driver.  She indicated that she never reserved a 
 
            cab for claimant's use because he was not sufficiently 
 
            dependable, only when she had a cab available.  She said 
 
            that claimant was often absent for weeks at a time.
 
            
 
                 Lewis indicated that claimant's hours varied 
 
            substantially, as he would sometimes leave early and 
 
            sometimes stay out for extra hours.  Claimant simply called 
 
            when he wanted work and had no set shifts.  If she had a cab 
 
            available, claimant would be sent out.
 
            
 
                 Lewis described the incident when claimant abandoned 
 
            his cab to take a bus trip.  Upon his return she elected not 
 
            to let claimant drive for a substantial time.
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
            
 
                 Lewis described her relationship with Yellow Cab 
 
            Company as a fee arrangement.  She was required to provide 
 
            the cab (she purchased cabs from Yellow Cab since they were 
 
            already prepared, but was free to use any car so long as it 
 
            passed inspection) and paid a fee of $250 per cab per week.  
 
            For this fee she received dispatching services, meters, 
 
            radios, and collision and liability insurance (required by 
 
            city ordinance).
 
            
 
                 John (Jack) Wilson testified to being a general manager 
 
            of Ruan Automotive Group with much of his time assigned to 
 
            the taxicab operation.  He described Yellow Cab as an owner/ 
 
            operator taxicab company.  Most owner/operators own one cab, 
 
            although some own several and have various arrangements with 
 
            their drivers.
 
            
 
                 Wilson testified that the car an individual wishes to 
 
            use must be inspected before approval and must be painted 
 
            and identified as a Yellow Cab.  Owner/operators pay fees 
 
            for services based on the hours of operation.
 
            
 
                 Wilson described dispatchers assigning trips in some 20 
 
            different zones in the city of Des Moines.  However, drivers 
 
            are permitted to operate on their own, particularly when 
 
            there is a convention in town or, drivers can negotiate 
 
            delivery arrangements with other businesses and simply tell 
 
            the dispatcher they are on "personal business."  Drivers 
 
            have the right to refuse trips, but dispatchers generally 
 
            choose to understand a refusal as indicative of the driver 
 
            wishing to do his or her own dispatching on that day, and 
 
            the driver will be generally forgotten about until the next 
 
            day.  However, it is generally understood that a driver can 
 
            claim to have a flat tire and dispatcher will "wink at" the 
 
            excuse.  Some drivers choose to spend all of their time at 
 
            the airport cab stand and are allowed to do so.
 
            
 
                 Wilson indicated that although Yellow Cab does not hire 
 
            drivers, it does assist owner/operators and drivers in 
 
            getting together and assists drivers in obtaining proper 
 
            licenses.  Yellow Cab does not offer training for drivers, 
 
            but does spend time with owner/operators.
 
            
 
                 The only requirements of drivers are a copy of the 
 
            individual's driving record and a badge for operation of 
 
            cabs.  However, Yellow Cab does retain the right to refuse 
 
            to dispatch abusive drivers and advises operators that the 
 
            insurance carrier will not be responsible for such 
 
            individuals.  However, an owner/operator does have the right 
 
            to hire any driver desired and obtain their own liability 
 
            insurance and "self-dispatch."  This has actually happened.
 
            
 
                 In general, Wilson testified that Yellow Cab does not 
 
            have the right to fire drivers, does not regulate drivers' 
 
            hours or the hours of owner/operators, and does not direct 
 
            drivers where or how to drive.
 
            
 
                 Exhibit 10 is a taxicab owner's agreement form.  Under 
 
            the agreement, owners are to provide vehicles to be painted 
 
            and decaled with Yellow Cab's colors and insignia at the 
 

 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
            owner's expense.  Yellow Cab agrees to provide meter, radio 
 
            and any other equipment required by state statute or local 
 
            ordinance relating to taxicabs.  Yellow Cab agrees to make 
 
            available telephone call service and radio service in 
 
            connection with the operation of cabs and handles billing 
 
            for charge accounts in its name.  Yellow Cab does not 
 
            provide gasoline, oil, or other vehicle maintenance or 
 
            repair.  Owners agree to a prior review of driving records 
 
            for themselves and of any other drivers of the taxicab.
 
            
 
                 By the agreement, Yellow Cab and owner/operators 
 
            acknowledge and agree that there does not exist an 
 
            employment relationship, either express or implied, but that 
 
            the relationship is that of independent 
 
            contractor-contractee, the owner "being an independent 
 
            contractor free from the interference or control on the part 
 
            of Yellow in the operation of said taxicab."  Yellow Cab 
 
            makes no withholding of income taxes or Social Security, or 
 
            for any other taxes.  The term of the agreement is for six 
 
            months, and may be renewed by the parties upon such terms 
 
            and conditions as may be negotiated at that time.
 
            
 
                           applicable law and analysis
 
            
 
                 The evidence is undisputed that claimant was injured in 
 
            a vehicular accident while driving an taxicab.  The key 
 
            issue in this case is whether or not he was employed by 
 
            Yellow Cab at the time, or at any time.  The owner of the 
 
            cab, Evelyn Jean Lewis, testified that she did not carry 
 
            workers' compensation insurance at the time of this injury.  
 
            Presumably, claimant considered this factor when he selected 
 
            the defendant in this case.  Yellow Cab does not allege that 
 
            claimant was an independent contractor, but merely argues 
 
            that he has failed to meet his burden of proof in 
 
            establishing an employment relationship.  Obviously, Yellow 
 
            Cab believes that claimant was an employee of Evelyn Jean 
 
            Lewis.
 
            
 
                 The factors used to determine whether an employment 
 
            relationship exists were set forth in Henderson v. Jennie 
 
            Edmundson Hospital, 178 N.W.2d 429 (Iowa 1970).  Those 
 
            factors include:  (1) the right of selection, or to employ 
 
            at will; (2) responsibility for the payment of wages by the 
 
            employer; (3) the right to discharge or terminate the 
 
            relationship; (4) the right to control the work; and (5) is 
 
            the party sought to be held as the employer the responsible 
 
            authority in charge of the work or for whose benefit the 
 
            work is performed?  In addition, the intention of the 
 
            parties may be examined insofar as it indicates the parties' 
 
            belief as to the right to control the manner in which the 
 
            work is performed.  In addition, the general belief or 
 
            custom of the community that a particular variety of work is 
 
            performed by employees is a valid consideration in 
 
            determining the existence of an employment relationship.  
 
            Nelson v. Cities Serv. Oil Co., 259 Iowa 1209, 146 N.W.2d 
 
            261 (1966); Fairchild v. Avon, Inc., II Iowa Industrial 
 
            Commissioner Report 147 (1982).  The question of whether 
 
            there are sufficient factors to prove that the claimant is 
 
            an employee is for the finder of fact.  Daggett v. 
 
            Nebraska-Eastern Express, Inc., 252 Iowa 241, 107 N.W.2d 102 
 

 
            
 
            Page   6
 
            
 
            
 
            
 
            
 
            (1961).
 
            
 
                 Iowa Code section 85.61(2) defines a "worker" or 
 
            "employee" as a "person who has entered into the employment 
 
            of, or works under contract of service, express or implied, 
 
            or apprenticeship, for an employer; * * *."  The definition 
 
            includes a person holding an official position "or standing 
 
            in a representative capacity of the employer."  In order for 
 
            a person to come within the terms of the Workers' 
 
            Compensation Act as an employee, it is essential that there 
 
            be a contract of service, express or implied, with that 
 
            employer.  Knudson v. Jackson, 191 Iowa 947, 183 N.W. 391 
 
            (1921).
 
            
 
                 The first Henderson factor is the right of selection, 
 
            or to employ at will.  In this case, the right of selection 
 
            or to employ at will was held by Evelyn Jean Lewis, although 
 
            Yellow Cab retained the right to approve or disapprove her 
 
            drivers for dispatching and insurance purposes.  Yellow Cab 
 
            offered assistance in helping drivers and owner/operators 
 
            get together, but the right of selection of those drivers 
 
            remained with the owner/operator.  It was Lewis who made a 
 
            cab available at such times as she chose, not Yellow Cab.  
 
            When claimant abandoned his cab and later returned, he 
 
            contacted Lewis to see if he still had a job, not defendant.  
 
            Claimant lost employment as a Yellow Cab driver twice 
 
            before:  once when he was laid off by an owner/operator (not 
 
            defendant) and once when the owner/operator (not defendant) 
 
            no longer had a vehicle available because of collision 
 
            damage.  Yellow Cab had a contractual arrangement with Lewis 
 
            by which it provided certain limited equipment (not the 
 
            taxicab itself) and dispatching services for a fee.  Yellow 
 
            Cab provided insurance as required by law and guaranteed 
 
            that proposed drivers were properly licensed, but did not 
 
            itself enter into contractual agreements, either express or 
 
            implied, with drivers.  Ms. Lewis did enter into such an 
 
            agreement with claimant.
 
            
 
                 The second Henderson factor is responsibility for the 
 
            payment of wages by the employer.  The evidence is 
 
            undisputed that Yellow Cab paid claimant no wages.  Rather, 
 
            claimant entered into a contract of hire with Evelyn Jean 
 
            Lewis by which claimant and Lewis split proceeds evenly 
 
            after payment of gasoline expenses.  This factor is 
 
            indicative of an employment relationship with Lewis, not 
 
            with Yellow Cab.
 
            
 
                 The third factor is the right to discharge or terminate 
 
            the relationship.  Although testified to his belief that 
 
            defendant Yellow Cab maintained that right, his belief has 
 
            been shown to be incorrect.  John Wilson credibly testified 
 
            that defendant does not have and does not attempt to 
 
            exercise that right.  The contractual agreement between 
 
            Yellow Cab and Evelyn Lewis does not give Yellow Cab the 
 
            right to discharge drivers selected by owner/operators.  As 
 
            has been seen, when claimant was discharged twice in the 
 
            past, it was by the owner/operator and not Yellow Cab; when 
 
            he was obviously facing discharge because he abandoned his 
 
            vehicle at a bus station, he contacted Lewis to seek further 
 
            employment, not Yellow Cab.  Claimant's testimony as to his 
 

 
            
 
            Page   7
 
            
 
            
 
            
 
            
 
            belief that Yellow Cab had the right to discharge him lacks 
 
            credibility.  It is clearly inconsistent with claimant's 
 
            previous experience with owner/operators and defendant.
 
            
 
                 The fourth Henderson factor is the right to control the 
 
            work.  The nature of this particular employment is not 
 
            particularly subject to direct control, as claimant was 
 
            driving an unsupervised taxicab about a metropolitan area.  
 
            Claimant himself testified that he felt he was his own boss.  
 
            Yellow Cab provided dispatch service pursuant to its fee 
 
            agreement with Lewis.  Yellow Cab did not have the right to 
 
            nor did it seek to control the manner in which claimant 
 
            performed his work.  Even if a supervisor once told claimant 
 
            to be courteous in dealing with customers, this is hardly 
 
            indicative of an intent to directly control the manner in 
 
            which the work was performed.  To the extent any control was 
 
            exercised, that control was exercised by Lewis.  It was she 
 
            who elected to utilize the dispatch service rather than 
 
            "self-dispatch."  The evidence on this issue points to Lewis 
 
            as the employer rather than Yellow Cab.
 
            
 
                 The fifth Henderson factor looks at whether the 
 
            purported employer is the responsible authority in charge of 
 
            the work or for whose benefit the work is performed.  By 
 
            electing to utilize the dispatch services of Yellow Cab (as 
 
            opposed to the other cab company in Des Moines or 
 
            self-dispatch), and by making a cab available for claimant 
 
            at such times as she deemed advisable in her own discretion, 
 
            Lewis was the individual in charge of the work.  The work 
 
            was performed for the benefit of both Lewis and Yellow Cab:  
 
            Lewis for her share of the profits and Yellow Cab for the 
 
            furtherance of its dispatching service.  Therefore, there is 
 
            evidence on this factor that supports both claimant's 
 
            position and the theory that Lewis was his true employer.
 
            
 
                 In addition, it is appropriate to look at the intention 
 
            of the parties as to the relationship they created.  In this 
 
            case, claimant and Yellow Cab did not create a relationship.  
 
            Yellow Cab's relationship was with Lewis, by which it 
 
            contracted to furnish certain equipment and dispatching 
 
            services.  Claimant's relationship was with Lewis, and the 
 
            evidence is clear that it was the intent of Lewis and 
 
            claimant that an employment relationship exist between the 
 
            two.  Although claimant alleges an intent to form an 
 
            employment relationship with Yellow Cab, this is 
 
            inconsistent with his actions and history with other owner/ 
 
            operators.  In particular, if one abandons a job but later 
 
            reconsiders and seeks to continue an employment 
 
            relationship, it is absurd to think that such an individual 
 
            will contact anyone other than whom he considers his 
 
            employer to be.  Claimant's intention was clearly 
 
            demonstrated when he contacted Lewis to seek to continue the 
 
            employment relationship after abandoning his cab.  His 
 
            actions "speak louder" than his words.
 
            
 
                 To the extent community custom or belief is a factor, 
 
            it seems clear that the average citizen would believe 
 
            claimant was employed by Yellow Cab by virtue of his driving 
 
            a taxicab dispatched by and bearing the insignia of Yellow 
 

 
            
 
            Page   8
 
            
 
            
 
            
 
            
 
            Cab.  However, claimant has not cited authority to indicate 
 
            that such an easy assumption by the public at large can 
 
            operate to create an employment relationship where none 
 
            exists.  The general public could hardly be expected to know 
 
            that Yellow Cab is in the business of providing dispatching 
 
            services to owner/operators as opposed to maintaining its 
 
            own fleet of taxicabs.
 
            
 
                 Claimant and defendant have each cited case authority 
 
            that is in many ways on all fours with the present facts.  
 
            Both decisions of the Iowa Supreme Court and of the Iowa 
 
            Industrial Commissioner are binding on deputy industrial 
 
            commissioners.  Unfortunately, the authority is in conflict.
 
            
 
                 Defendant points to Eagen v. K & A Truck Lines, Inc., 
 
            254 Iowa 914, 119 N.W.2d 805 (1963).  In that case, a truck 
 
            owned by Harold Eagen was leased to defendant K & A Truck 
 
            Lines, Inc., to be driven by Bernard Eagen.  Bernard was 
 
            subsequently killed in a collision.  K & A Truck Lines was 
 
            an interstate carrier and entered into a written vehicle 
 
            lease and contract with Harold for a five-year period 
 
            subject to 60-day cancellation.  K & A agreed to pay Harold 
 
            for the use of the equipment and the services of the driver 
 
            for a percentage of revenue.  Harold agreed to maintain the 
 
            equipment at a road-worthy level, furnishing gasoline, oil, 
 
            tires, licenses and other incidental expenses.  Harold 
 
            agreed to drive the vehicle personally, except as otherwise 
 
            agreed (the parties agreed Bernard would be the driver) and 
 
            further agreed to comply with the standards of driver 
 
            conduct established by K & A.  The parties agreed that 
 
            Harold was a self-employed independent contractor and that 
 
            any substitute driver would be employed by and responsible 
 
            to Harold.  Bernard actually filed an application for 
 
            employment and took a physical examination, although the 
 
            physical examination was an ICC requirement.  Bernard took 
 
            all his orders from officials of K & A, but was not paid by 
 
            K & A.  The truck company had the right to refuse to permit 
 
            Bernard to continue to drive if he violated safety rules or 
 
            was guilty of improper conduct, and Bernard could have been 
 
            discharged at any time by Harold.  Bernard was actually paid 
 
            one-fourth of the percentage of the gross revenue 
 
            distributable to Harold.  On these facts, which are clearly 
 
            more supportive of an employment relationship between 
 
            Bernard and K & A than is the case at bar, the court held 
 
            that there was sufficient competent evidence to warrant the 
 
            commissioner's decision that Bernard was not an employee of 
 
            K & A, but an employee of Harold.
 
            
 
                 Claimant points to the case of Smid v. Yellow Cab Co., 
 
            file number 680009 (App. Decn. 1984).  This case turns on 
 
            evidentiary facts remarkably similar to this case, although 
 
            Commissioner Landess did not draw the same factual 
 
            conclusions from that evidence as does this writer in the 
 
            case at bar.  Smid was a taxicab driver who made 
 
            arrangements to drive a cab owned by Frank Lester which bore 
 
            the markings of and was dispatched by Yellow Cab, the same 
 
            party defendant as is here the case.  Claimant was required 
 

 
            
 
            Page   9
 
            
 
            
 
            
 
            
 
            to show his driver's license, city cab badge and a copy of 
 
            his driving record to Yellow Cab.  However, while Smid was 
 
            at the office of Yellow Cab, he was apparently told by a 
 
            representative of Yellow Cab to go to work that night and 
 
            call in his name to the dispatcher.  In that case, Smid 
 
            indicated the dispatch service was the only way to get 
 
            business other than waiting in line at the airport or bus 
 
            station.  Frank Lester, the owner of the cab, confirmed that 
 
            the cab was marked with "Yellow Cab" and bore a dome light, 
 
            meter and two-way radio owned by Yellow Cab.  He testified 
 
            that Smid called him to lease the cab for the one night.  
 
            Lester also paid Yellow Cab a lease fee for liability 
 
            insurance and dispatch service.  As is the case at bar, 
 
            Lester and Smid split earnings after payment of gasoline 
 
            expenses.  Smid's claim arose when he was robbed and stabbed 
 
            by a passenger.
 
            
 
                 Former Industrial Commissioner Landess wrote:
 
            
 
                 Claimant was driving a cab which bore the markings 
 
                 of the Yellow Cab Company.  The equipment he used 
 
                 was provided by Yellow Cab Co.  The hours of his 
 
                 shift and the rates he charged were determined for 
 
                 him by Yellow Cab Co.  The company had the 
 
                 authority to approve him as a driver, and in the 
 
                 mind of claimant, would have the authority to 
 
                 sever the driving relationship.  Claimant has 
 
                 testified that he considered himself to be working 
 
                 for Yellow Cab and such belief governed the manner 
 
                 in which he performed his work duties.  He felt 
 
                 obliged to cooperate with the dispatcher, observe 
 
                 the priority system of the Yellow Cab zones, and 
 
                 respond promptly to the trips he received.  
 
                 Although he received no wages from defendant, his 
 
                 sole earnings at the time of the injury had been 
 
                 dependent upon his bookings through the 
 
                 dispatcher.
 
            
 
                 Applying the weight of the evidence to the factors 
 
                 outlined by the court in Henderson, 178 N.W.2d 
 
                 429, establishes that an employer-employee 
 
                 relationship existed between Yellow Cab Company 
 
                 and claimant at the time of injury on August 5, 
 
                 1981.  Defendant Yellow Cab had the right of 
 
                 selection of claimant through the approval process 
 
                 and could terminate the relationship if claimant's 
 
                 work conduct or driving record proved 
 
                 unsatisfactory.  Yellow Cab was in charge of the 
 
                 work, exercising control of claimant's movements 
 
                 through the city, and subsequent earnings, through 
 
                 a regulated system of zones and dispatch.  Since 
 
                 it is Yellow Cab's telephone number that is 
 
                 advertized [sic] for taxi service, and since cabs 
 
                 bearing Yellow Cab markings answer the calls and 
 
                 provide the service, the public may reasonably 
 
                 assume that their drivers are Yellow Cab employees 
 
                 and would look to the company for satisfaction of 
 
     
 
            
 
            
 
            Page  10
 
            
 
            
 
            
 
            
 
                 any problem encountered in the taxi service.
 
            
 
                 In the case at bar, claimant was driving a cab which 
 
            bore the markings of the Yellow Cab Company.  However, the 
 
            equipment he used (the taxicab itself) was provided by 
 
            Lewis, although Yellow Cab provided incidental equipment:  a 
 
            meter and two-way radio.  The hours that claimant worked 
 
            were determined by Lewis, not Yellow Cab.  Yellow Cab had 
 
            the authority to approve claimant as a driver, but 
 
            claimant's behavior showed that he believed Lewis to have 
 
            the authority to sever the driving relationship, not Yellow 
 
            Cab.  This writer believes claimant's testimony to the 
 
            contrary to be false.  Claimant did feel obliged to 
 
            cooperate with the dispatcher, observe the priority system 
 
            of the cab zones and respond promptly to trips he was 
 
            assigned.  Claimant received his wages from Lewis, not 
 
            Yellow Cab.  His earnings were dependent upon his bookings 
 
            through the dispatcher, but this was at the election of 
 
            Lewis, the owner of the cab.  Yellow Cab did exercise a 
 
            degree of control over claimant's movements through the city 
 
            by dispatching him to various trips, but this was solely at 
 
            the election of Lewis (other owner/operators had elected to 
 
            self-dispatch in the past); the fact that dispatching 
 
            services were provided to Lewis by contract and for a fee is 
 
            equally consistent with the theory that Lewis merely 
 
            delegated the right to control her employee at various times 
 
            as it is with establishing the existence of an employment 
 
            relationship between claimant and Yellow Cab.  It is true 
 
            that the public might reasonably assume that drivers are 
 
            employed by Yellow Cab, but this factor cannot operate to 
 
            create an employment relationship where none exists in fact 
 
            or law.
 
            
 
                 Claimant's brief sets forth that the Smid case was 
 
            eventually appealed to the Supreme Court but settled prior 
 
            to oral argument.
 
            
 
                 Claimant takes the position that defendant should be 
 
            estopped from asserting that claimant was not its employee 
 
            because of the previous holding in Smid v. Yellow Cab Co.  
 
            He notes that the doctrine of issue preclusion prevents 
 
            parties to a prior lawsuit from relitigating in a subsequent 
 
            action issues resolved in the previous suit.  Hunter v. City 
 
            of Des Moines, 300 N.W.2d 121 (Iowa 1981).  Of course, 
 
            claimant here was a stranger to the Smid action.  Yet, 
 
            claimant asserts that the doctrine of collateral estoppel 
 
            may be employed by a party lacking mutuality or privity in 
 
            the prior case where the party adversely affected had a full 
 
            and fair opportunity to litigate the relevant issue 
 
            effectively in the prior action.  Goolsby v. Derby, 189 
 
            N.W.2d 909 (Iowa 1971).  In that case, the issue held 
 
            binding was whether defendant's decedent's negligence in 
 
            making a U-turn was the proximate cause of a collision 
 
            involved in lawsuits by a passenger against decedent's 
 
            administratrix and by administratrix against the employer of 
 
            the driver of the other vehicle.  However, Goolsby is not 
 
            applicable to the facts here because different issues are 
 

 
            
 
            Page  11
 
            
 
            
 
            
 
            
 
            involved.  While there are obvious similarities between the 
 
            Smid case and the case at bar, this writer has reached 
 
            ultimate conclusions of fact which differ from the facts 
 
            found in Smid as set forth above:  equipment was provided by 
 
            Lewis, the hours were determined by Lewis, claimant did not 
 
            believe Yellow Cab had the authority to sever the driving 
 
            relationship, claimant did not in good faith consider 
 
            himself to be working for Yellow Cab, Lewis was in charge of 
 
            the work, Lewis had the right of selection of claimant as an 
 
            employee and could terminate the employment relationship, 
 
            and claimant's sole earnings at the time of the injury were 
 
            dependent upon Lewis and her election to utilize the 
 
            dispatch service offered by Yellow Cab.  Obviously, then, 
 
            the issues presented are not identical and issue preclusion 
 
            or collateral estoppel cannot be successfully invoked in 
 
            this cause.
 
            
 
                 To the extent to which Eagen and Smid are inconsistent, 
 
            this writer is obligated to follow the teachings of Eagen, 
 
            as it was issued by a higher authority.  It might also be 
 
            noted that Eagen was an affirmance of the industrial 
 
            commissioner's decision, which would itself be of equal 
 
            weight with the appeal decision in Smid.
 
            
 
                 Based upon the foregoing analysis, it is found that 
 
            claimant has failed to establish by his burden of proof that 
 
            an employment relationship existed between himself and 
 
            Yellow Cab Company on November 21, 1987.  Other issues are 
 
            therefore rendered moot.
 
            
 
                                 findings of fact
 
            
 
                 THEREFORE, based on the evidence presented, the 
 
            following ultimate facts are found:
 
            
 
                 1.  Claimant was injured in a one-vehicle collision on 
 
            November 21, 1987.  At the time, he was driving a taxicab 
 
            owned by Evelyn Jean Lewis.
 
            
 
                 2.  By contract, Lewis as owner/operator marked the 
 
            subject taxicab with the insignia and colors of Yellow Cab 
 
            and paid a weekly fee in exchange for a meter, radio and 
 
            dispatching services provided by Yellow Cab.
 
            
 
                 3.  Lewis had and exercised the right of selection or 
 
            to employ at will with respect to claimant, although Yellow 
 
            Cab retained the right to approve or disapprove her drivers 
 
            for dispatching and insurance purposes.
 
            
 
                 4.  Pursuant to claimant's agreement with Lewis, wages 
 
            were paid by her (claimant and Lewis divided metered fares 
 
            after payment of gasoline expenses).
 
            
 
                 5.  Lewis, not Yellow Cab, had the right to discharge 
 
            or terminate the relationship.
 
            
 
                 6.  Although claimant testified without credibility to 
 
            the contrary, he believed based on previous experience that 
 
            Lewis retained the right to hire and fire drivers, including 
 
            claimant.
 

 
            
 
            Page  12
 
            
 
            
 
            
 
            
 
            
 
                 7.  Lewis, not Yellow Cab, had and exercised the right 
 
            to control the work by electing to utilize the dispatch 
 
            service of Yellow Cab rather than self-dispatch.
 
            8.  Lewis was the responsible authority in charge of the 
 
            work, although both she and Yellow Cab benefited by the 
 
            work.
 
            9.  Despite his testimony to the contrary, claimant intended 
 
            to form an employment relationship with Lewis, not Yellow 
 
            Cab.
 
            
 
                10.  The average citizen would probably believe that 
 
            claimant was employed by Yellow Cab by virtue of his driving 
 
            a taxicab dispatched by and bearing the insignia of that 
 
            company; the general public could hardly be expected to know 
 
            that Yellow Cab is in the business of providing dispatch 
 
            services for a fee to owner/operators as opposed to 
 
            maintaining its own fleet.
 
            
 
                11.  Equipment (the taxicab itself) was provided by 
 
            Lewis, not Yellow Cab.
 
            
 
                12.  Hours of employment were determined by Lewis, not 
 
            Yellow Cab.
 
            
 
                                conclusion of law
 
            
 
                 WHEREFORE, based on the principles of law previously 
 
            cited, the following conclusion of law is made:
 
            
 
                 1.  Claimant has failed to establish that he was 
 
            employed by Yellow Cab Company when he was injured on 
 
            November 21, 1987.
 
            
 
                                      order
 
            
 
                 IT IS THEREFORE ORDERED:
 
            
 
                 Claimant shall take nothing from this proceeding.
 
            
 
                 Costs of this action shall be assessed to claimant 
 
            pursuant to Division of Industrial Services Rule 343-4.33.
 
            
 
                 Signed and filed this ______ day of ____________, 1990.
 
            
 
                 
 
            
 
                 
 
                 
 
                                          ______________________________
 
                                          DAVID RASEY
 
                                          DEPUTY INDUSTRIAL COMMISSIONER
 
            
 
            Copies To:
 
            
 
            Mr. Joseph M. Bauer
 
            Attorney at Law
 
            309 Court Avenue
 
            500 Saddlery Building
 
            Des Moines, Iowa  50309
 

 
            
 
            Page  13
 
            
 
            
 
            
 
            
 
            
 
            Mr. Fred L. Morris
 
            Attorney at Law
 
            Suite 300, Fleming Building
 
            P.O. Box 9130
 
            Des Moines, Iowa  50306-9130
 
            
 
            
 
            
 
 
            
 
            Page   1
 
            
 
            
 
            
 
            
 
                           2001
 
                           Filed March 22, 1990
 
                           DAVID RASEY
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            MARK W. BAXTER,               :
 
                                          :
 
                 Claimant,                :         File No. 865866
 
                                          :
 
            vs.                           :      A R B I T R A T I O N
 
                                          :
 
            YELLOW CAB COMPANY,           :         D E C I S I O N
 
                                          :
 
                 Employer,                :
 
                 Self-Insured,            :
 
                 Defendant.               :
 
            ____________________________________________________________
 
            
 
            2001
 
            Distinguishing facts found in Smid v. Yellow Cab, driver of 
 
            cab owned by nonparty owner/operator was found not an 
 
            employee of taxicab dispatching company.  Henderson v. 
 
            Jennie Edmundson Hospital factors discussed.  Owner/ 
 
            operator, not defendant, had the right of selection or to 
 
            employ at will, the responsibility for the payment of wages, 
 
            the right to discharge, the right to control the work and 
 
            was the responsible authority in charge of the work; the 
 
            work was performed for the benefit both of owner/operator 
 
            and defendant.
 
            
 
 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
                                                 
 
         
 
         MICHAEL SHAFFER,
 
                                            :
 
              Claimant,                     :
 
                                                      File No. 865882:
 
          VS.                               :
 
                                            :    A R B I T R A T I O N
 
          KAST KEOKUK STEEL CASTINGS CO., :
 
                                                    D E C I S I O N
 
              Employer,
 
         
 
         and
 
         
 
         BITUMINOUS INSURANCE COMPANIES,
 
         :
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
                                   INTRODUCTION
 
                                        
 
              This is a proceeding in arbitration brought by Michael 
 
         Shaffer against his former employer, Keokuk Steel Castings, and 
 
         its insurance carrier, Bituminous Insurance Companies.  The case 
 
         was heard at Burlington, Iowa on July 13, 1989 and was fully 
 
         submitted.  The evidence in the case consists of testimony from 
 
         Michael Shaffer and jointly offered exhibits 1 through 13.
 
         
 
                                      ISSUES
 
                                        
 
              Claimant seeks compensation for permanent partial disability 
 
         and payment of expenses under Iowa Code section 85.27.
 
         
 
                               SUMMARY OF EVIDENCE
 
                                        
 
              The following is a summary of evidence presented in this 
 
         case.  Of all the evidence received at the hearing, only that 
 
         considered most pertinent to this decision is discussed.  
 
         Conclusions about what the evidence showed are inevitable with 
 
         any summarization.  The conclusions in the    following.summary 
 
         should be considered to be preliminary findings of fact.
 
         
 
              Mike Shaffer was employed at Keokuk Steel Castings on March 
 
         24, 1988 when a 2,500-pound steel rack fell on his legs.  He was 
 
         diagnosed as having a fracture of the distal one-third of his 
 
         right tibia and fracture of the proximal navicular bone in his 
 
         left foot.  Casts were applied.  By August 31, 1988, it was 
 
         determined that he had recovered sufficiently to resume 
 
         employment.
 
         
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
         SHAFFER V. KAST KEOKUK STEEL CASTINGS CO.
 
         Page 2
 
         
 
         
 
              Shaffer testified that he continues to experience discomfort 
 
         in his right leg with activities such as going down stairs.  He 
 
         stated that if he tries to run, it starts hurting badly.  
 
         Claimant is presently employed at a tire and battery shop.  He 
 
         stated that due to the injury, he is unable to work with 
 
         semi-truck tires because it requires getting into a position 
 
         which the injury has made him unable to assume.  Shaffer stated 
 
         that it is part of the job, but that his employer has not 
 
         required him to do it.
 
         
 
              Claimant testified that, while he was initially hospitalized 
 
         following the injury, he spoke with the treating doctors 
 
         requesting authorization to obtain a hospital bed.  Claimant 
 
         stated that his residence was a two-story with the sleeping 
 
         arrangements being on the second floor in a waterbed.  He stated 
 
         that he was unable to go up and down stairs with casts on both 
 
         legs.
 
         
 
              Dr. Kemp and Rouben Mirbegian, M.D., were claimant's primary 
 
         treating physicians.  Dr. Kemp authorized use of a wheelchair for 
 
         claimant as shown in exhibits 4 and 11.  There is no 
 
         documentation that either physician authorized or recommended a 
 
         hospital bed with trapeze apparatus for claimant's use.  It was 
 
         stipulated by the parties that, when Dr. Mirbegian was deposed, 
 
         he denied recommending or authorizing a hospital bed for 
 
         claimant's use in his home and further stated he did not feel 
 
         claimant needed a hospital bed.  Dr. Mirbegian reported that 
 
         claimant has no permanent impairment as a result of either of the 
 
         fractures (exhibit 13).
 
         
 
                           APPLICABLE LAW AND ANALYSIS
 
                                        
 
              Claimant seeks to recover permanent partial disability.  The 
 
         fractures of his legs are scheduled member injuries.  There is no 
 
         rating of permanent impairment in the record of this case.  
 
         Further, the case shows no medically-advised activity 
 
         restrictions.  There is no evidence in this case of any 
 
         anatomical abnormality affecting claimant's legs other than, of 
 
         course, the callous formation from the healing of the fractures.  
 
         Callous is not necessarily a disabling condition.  Claimant's 
 
         claim for permanent partial disability compensation is therefore 
 
         denied.
 
         
 
              Claimant was apparently sufficiently impaired  to  require 
 
         the use of a wheelchair during the initial phases of his recovery 
 
         from the injury.  He further testified that he was unable to go 
 
         up and down stairs with casts on both legs.  His testimony in 
 
         that regard is corroborated by the doctor providing a wheelchair.   
 
         A short period of hospital bed use on the first floor of 
 
         claimant's residence, together,with the trapeze apparatus, would 
 
         not be unreasonable or extravagant in view of the nature of the 
 
         injuries that claimant sustained.  The progress notes of 
 
         treatment indicate that on April 18, 1988, claimant was advised 
 
         to begin walking and on April 19, 1988, he was observed to be 
 
         walking well with
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
         
 
         
 
         SHAFFER V. KAST KEOKUK STEEL CASTINGS CO.
 
         Page 3
 
         
 
         
 
         the use of crutches.  It is determined that any use of a hospital 
 
         bed would have ceased to be reasonable following the time 
 
         claimant became ambulatory.  It is therefore determined that use 
 
         of a hospital bed in claimant's home for one month would have 
 
         been reasonable under the circumstances of the case, even though 
 
         a hospital bed was not necessary for actual treatment of the 
 
         injury.  It was, however, a reasonable accommodation for the 
 
         temporary disability that resulted from the injury.  Its use is 
 
         no different than the use of crutches or a wheelchair.
 
         
 
              The total amount of the bill for the hospital bed rental 
 
         appears to be $248.00 (exhibit 7).  The statement is dated August 
 
         2, 1988.  There is no itemization or explanation in the record 
 
         with regard to how long claimant retained or used the hospital 
 
         bed.  Since most businesses normally issue billings or statements 
 
         shortly after the goods or services are provided, it is 
 
         determined that the hospital bed bill covers the period from late 
 
         March through late July, a span of four months.  This is 
 
         equivalent to a monthly rental charge of $62.00. Claimant is 
 
         therefore entitled to recover the cost of hospital bed rental for 
 
         one month in the amount of $62.00.
 
         
 
                                 FINDINGS OF FACT
 
                                        
 
              1. Mike Shaffer has no identified residual physical 
 
         impairment which has resulted from the March 24, 1988 injury to 
 
         his right leg and left foot.
 
         
 
              2. Claimant's use of a hospital bed for one month following 
 
         the injury was reasonable to enable him to function during the 
 
         first month of his recuperation following the injury.
 
         
 
              3. Sixty-two dollars is a reasonable charge for a monthly 
 
         rental of a hospital bed with trapeze apparatus.
 
         
 
                                CONCLUSIONS OF LAW
 
                                        
 
              1. This agency has jurisdiction of the subject matter of 
 
         this proceeding and its parties.
 
         
 
              2. Claimant is not entitled to recover any compensation for 
 
         permanent partial disability.
 
         
 
              3. Claimant is entitled to recover $62.00 under the 
 
         provisions of section 85.27.
 
         
 
                                      ORDER
 
                                        
 

 
         
 
 
 
 
 
 
 
 
 
 
 
              IT IS THEREFORE ORDERED that defendants pay Keokuk Area 
 
         Medical Equipment and Supply, Inc., sixty-two and 00/100 dollars 
 
         ($62.00).
 
         
 
         
 
         
 
         SHAFFER V. KAST KEOKUK STEEL CASTINGS CO.
 
         Page 4
 
         
 
         
 
              IT IS FURTHER ORDERED that defendants pay the costs of this 
 
         action pursuant to Division of Industrial Services Rule 343-4.33 
 
         including fifty and 00/100 dollars ($50.00) for court reporter 
 
         fees as shown in exhibit 10.
 
         
 
              Signed and filed this 24th day of July, 1989.
 
         
 
         
 
         
 
                                         MICHAEL G. TRIER
 
                                         DEPUTY INDUSTRIAL COMMISSIONER
 
         
 
         
 
         
 
         Copies To:
 
         
 
         Mr. James P. Hoffman
 
         Attorney at Law
 
         Middle Road
 
         P.O. Box 1066
 
         Keokuk, Iowa 52632
 
         
 
         Ms. Vicki L. Seeck
 
         Attorney at Law
 
         600 Union Arcade Building
 
         111 East Third Street
 
         Davenport, Iowa 52801
 
         
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
 
         
 
 
 
 
 
 
 
 
 
 
 
                                                 1402.40, 1402.60, 2505
 
                                                 Filed July 24, 1989
 
                                                 MICHAEL G. TRIER
 
         
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         MICHAEL SHAFFER, :
 
                          :
 
               Claimant,  :
 
                          :                      File No.  865882
 
          VS.             :
 
                          :                      A R B I T R A T I O N
 
         
 
         KAST KEOKUK STEEL CASTINGS CO., :       D E C I S I O N
 
                                            :
 
              Employer,                     :
 
                                            :
 
          and                               :
 
                                            :
 
         
 
         BITUMINOUS INSURANCE COMPANIES, 
 
                                                 
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
         1402.40
 
         
 
              Where there was no rating of permanent impairment by any 
 
         physician and no physical abnormality, claimant's subjective 
 
         complaints were insufficient to support an award of permanent 
 
         partial disability.
 
         
 
         1402.60, 2505
 
         
 
              Claimant obtained and used a hospital bed during a period of 
 
         time when he was not ambulatory and was able to move about onLy 
 
         through use of a wheelchair.  Claimant was allowed to recover the 
 
         cost of a hospital bed rental, with trapeze, in order to aid his 
 
         mobility during the period of time that he was not ambulatory.  
 
         Further, the fact that claimant's normal sleeping arrangement had 
 
         been in a waterbed on the second floor of his residence further 
 
         supported the allowance of hospital bed rental during the period 
 
         that he was not ambulatory.