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.