Page 1 before the iowa industrial commissioner ____________________________________________________________ : GARY SPROUSE, : : Claimant, : : File Nos. 888072 vs. : 880941 : CHURCHILL TRUCK LINES, : : A R B I T R A T I O N Employer, : : D E C I S I O N and : : LIBERTY MUTUAL INSURANCE, : : Insurance Carrier, : Defendants. : ___________________________________________________________ STATEMENT OF THE CASE This case came on for hearing on July 2, 1991, at Des Moines, Iowa. This is a proceeding in arbitration wherein claimant seeks compensation for permanent partial disability benefits as a result of an alleged injury occurring on March 1, 1988, and another injury on September 21, 1988. The record in the proceedings consists of the testimony of the claimant, Jeff Downing and Allan Fuller; and claimant's exhibit 1, defendants' exhibit A and joint exhibit 1. issues The issues for resolution as to both injuries are: 1. The nature and extent of claimant's disability and entitlement to disability benefits. In all instances, the benefits would begin on December 30, 1988; 2. Whether claimant is entitled to 85.27 medical benefits. The issue being as to casual connection and authorization; and findings of fact The undersigned deputy having heard the testimony and considered all the evidence, finds that: Claimant testified at the hearing and by way of his deposition taken on April 11, 1991 (Defendants' Exhibit A). Claimant is a 51-year-old high school graduate. After high school, claimant farmed a year and then went to California to do seasonal work in a cotton gin for two months, and then went to work in highway construction. Claimant also got some on-the-job mechanical training at this job with Peter Kiewit. Claimant continued to relate his work history which basically involved construction, truck driving and mechanic labor jobs until he began working with defendant employer in Page 2 April 1968. Claimant had no significant period of unemployment between his high school graduation in 1958 and the beginning of his job with defendant employer in 1968. Claimant said his health was excellent when he began working with defendant employer and, in particular, his back and neck area was very good. The defendant employer had given claimant a physical when he began his job. Claimant was first hired by defendant employer as an over-the-road driver hauling general freight. Mostly, he un loaded his cargo. Claimant is still employed by defendant employer. Claimant said he returned to work in March 1991 making 39.525 cents per mile and pedal time of $15.71 per hour plus fringe benefits. Claimant indicated he was an over-the-road driver for defendant employer for approximately his first twelve years and then moved from the Missouri to Des Moines jurisdiction where he could bid back and forth between the city work and the over-the-road driving due to his seniority and the state of Iowa's combination board. Claimant explained in Iowa they have what is called a combination board which enables one to work the city or over-the-road. Claimant indicated that working the city is a combination of working on the dock and then going out into the street delivering and picking up, whereby over-the-road is the long hauls. Claimant said his number one seniority allows him to bid on whatever he wants as to over-the-road or city. He said he has bid back and forth several times. Claimant related a few work injuries that he incurred over the years prior to March 1, 1988, but there is no evidence as to any residue from those injuries that affected the injuries that are at question in this decision herein. Claimant testified that he was wheeling a heavy drum across the terminal dock on March 1, 1988, when the cart hit a floor crack and jerked causing him to be jerked several ways. Claimant noticed excruciating pain in his back, leg and neck. He said the pain eased up. He continued to work until March 15, 1988, when the pain got to a point where he needed help as he did not think he was going to get any better. Claimant was sent by defendant employer to Thomas A. Carlstrom, M.D. Claimant said he became scared when he found out that Dr. Carlstrom was a neurosurgeon. Claimant requested to go to an osteopath, Dr. Fraser, in Missouri, for an adjustment. He said Dr. Carlstrom said this was okay. Claimant felt he only needed an adjustment. Claimant went to this osteopath the next day and the back adjustment helped to some extent. Claimant returned to work on March 21, 1988, per a work release from Dr. Carlstrom. On March 22, 1988, while pulling an 1800 pound skid out, claimant aggravated his back some more. Claimant continued to work until April 26, 1988, but his back kept getting worse and he said he was unable to sleep. On April 26, 1988, claimant re quested from defendant employer to go to the doctor because his back hurt. Claimant said defendant employer refused Page 3 permission until claimant got off work that day. Claimant finished his work shift and the employer did not provide the company medical slip for him to see a doctor so claimant said he called Dr. Fraser and made an appointment since defendants refused him a doctor. Claimant was off April 27, 1988 through May 16, 1988. Claimant had a couple of treatments during this time. Claimant was released and returned to work on May 17, 1988. Claimant said his back was still bothering him so he took a week's vacation from May 29 until June 4, 1988. Claimant was released to go back to work and returned to work on June 7, 1988, and bid to go on the road again to get away from the lifting that is involved in the city dock job. Claimant worked the over-the-road job until July 18, 1988, at which time he returned to the city dock job until August 4, inclusive, and then took off one week for vacation. Claimant contends he took off vacation days because of his physical condition and he wasn't getting paid workers' compensation benefits. Claimant returned to work on August 15, 1988, at the city dock job. Claimant said his back continued to bother him and it was not getting better. Claimant said that on September 21, 1988, he hurt his back in Ames, Iowa, lifting a 536 pound crate with the help of several others. He called his supervisor and went to the doctor. He said the doctor took him off work for two days but he was still hurting so he took two weeks vacation. Therefore, claimant was off from September 22, 1988 through October 9, 1988. Claimant returned to his Des Moines city dock position on October 10, 1988. Claimant worked until October 28, 1988, at which time he took off work because his back was bothering him so bad he could not sleep and it was hard for him to work. Claimant said he also missed November 3 and 4 because of his back and the pain going down into his left leg. Claimant was sent to the low back institute at the Iowa Methodist Neighbor Clinic on November 10, 1988 and was off until March 1991. Claimant related Dr. Carlstrom told him he could not go back doing the work he had been doing. The doctor suggested that claimant do Cybex exercises but the insurance company would not authorize him to treat claimant. Claimant said he did not get the therapy because the insurance refused. Claimant indicated that the calls for authorization were made from the doctor's or therapist's office. Dr. Carlstrom returned claimant to work on November 28, 1988. Claimant said he wasn't any better and was unable to return to work. Claimant saw Dr. Carlstrom again on December 29, 1988 for an appointment the doctor made for him and the doctor indicated claimant was maximally healed (Joint Exhibit 1, page 23). As of that time, claimant never received any Cybex exercises suggested by Dr. Carlstrom and concerning which the insurance company would not authorize. Claimant acknowledged that the treatment he had between Page 4 December 29, 1988 and the date of the hearing was not authorized by the insurance company or defendant employer except for his visit on March 9, 1991 to David J. Boarini, M.D., Dr. Carlstrom's partner. The reason claimant saw Dr. Boarini rather than Carlstrom was that Carlstrom was in Saudi Arabia. Claimant emphasized that he sought his own relief after defendants refused the care suggested by their doctor. Claimant said he then eventually went to a Dr. Wilson who examined him on September 5, 1989, and he had diagnosed a herniated disc most likely at L4 and 5. Claimant said his problem was basically the same that he has been having all along. Claimant acknowledged he has been dabbling in farming 102 acres of his own and 27 of his uncle's. He indicated farming is light duty as to what he does. He also indicated he gets help doing any farming work. Claimant said he began feeling better and approached defendant employer about returning to work in early 1991. Claimant was sent to the doctor and received a return-to-work slip from Dr. Boarini on March 11, 1991. Defendant employer would not accept this slip and said that claimant would have to go to the low back institute for a functional capacity test, which he did on March 11, 1991. The low back institute issued a report dated March 12, 1991 (Jt. Ex. 1, p. 39), which indicated claimant could return to work. Claimant said defendant employer still had to talk to Michael J. Makowsky, M.D., who wanted to talk to Allan Fuller of defendant employer to make sure what claimant was going to be doing before he would release claimant. Claimant said he told the doctor he would be at the Kansas City turn job as he was number one in seniority. This route is a straight route to Kansas City and back and is different than what claimant had described before. It required no loading or unloading. Subsequently, Dr. Makowsky wrote to defendant employer that claimant could return to work. This was basically based on the doctor's understanding of what claimant would be doing (Jt. Ex. 1, p. 43). Claimant returned on March 18, 1991 and drove straight to Kansas City and returned to Des Moines Monday through Thursday and on Friday claimant said he had to break the double bottom apart. He explained what breaking doubles apart entails. Claimant testified that around April 6, 1991, a Saturday, he was operating with a wide trailer and in trying to park and secure it, he hand pushed a dolly 30 feet back against the fence and strained his back, resulting in a severe pain. He worked the next three days and then was unable to work the next two days. Claimant acknowledged that defendant employer had equipment to help move these dollys but he did not use one of them. Claimant indicated he went to a Dr. Stilley, a company authorized doctor, pursuant to this April 1991 injury as he was unable to work. Claimant was unable to work after April 16, 1991 at his job. Claimant indicated he was given a desk duty restriction. He said there was nothing at defendant Page 5 employer in this category until recently so he never returned to work. Claimant contends he is not able to return to work now and has to wear a TENS unit and is unable to drive a truck because of the bouncing, jostling and vibrations. Claimant testified as to his current problems. He indicates he can do no physical work now without hurting so bad he has to go to bed. He said he only gets relief by lying down. Besides his TENS unit, he also takes medicine. Claimant has been prescribed a back brace (Jt. Ex. 1, p. 46) but said he cannot wear it at the same time he wears the TENS unit. Claimant indicated he would return to either of the jobs that he had with defendant employer if he was able. Claimant said he is unable to do any job with defendant employer. He said he has been sent to paint an office at defendant employer's Chillacothe, Missouri office or do light desk duty and security work but he gets down there and they don't want him to do any light duty or desk work. On cross-examination, claimant acknowledged he harvested 30 acres of wheat around the middle of June 1991 using a combine. He also rides a power mower to cut his grass. He also rotary hoed his beans. Of the 102 acres that claimant owns, he indicated eighty acres are tillable. As to the weight of the dolly claimant was using on April 6, 1991, to move his trailer, claimant does not dispute the dolly weighed 2,750 pounds. Claimant agreed he never looked for work from the period of November 10, 1988 to March 1991 (two years four months) when he was off work from defendant employer. It is apparent claimant is injured now and in observing him it would be doubtful he could do any of the truck jobs he had been doing, namely, the over-the-road truck driving or the city dock job nor the Kansas City turn job that he appears to have been able to do as of March 11, 1991. The latter job did not require any loading or unloading or lifting but strictly driving straight to and from Kansas City to Des Moines and back. The undersigned believes claimant is not faking when walking in a hurt manner and in observing claimant getting up and down from his chair while testifying. Jeff Downing, claimant's supervisor at defendant employer, worked with claimant in 1988. He said he does not remember any conversation he had with claimant in April or May 1988, as to claimant leaving work to go to the doctor. He explained defendant employer's procedure when there is an injury. He indicated claimant would be given an option to see a doctor immediately, if needed. He said he would recall such a conversation if it occurred. Downing said claimant returned to work on March 18, 1991 through April 6, 1991 and said claimant's attitude was good and claimant was talkative. Downing indicated nothing was said to him by claimant up to April 6, 1991 as to his injury. He said Page 6 claimant appeared to be feeling good up to that point. He said claimant did not indicate he continued to hurt up to April 6, 1991. Downing understood that on April 6, 1991, claimant was trying to move a dolly on a Saturday morning when there wasn't anyone around. He said a person is supposed to use another piece of equipment or trailer, if needed, to move the dolly into position as claimant was doing. Downing indicated he understood "on the cuff" that claimant was also farming but he did not know the extent of his farming nor has he any knowledge of claimant incurring a farm injury. Downing said claimant appeared to be fair and honest. He was working on the dock with claimant on March 1, 1988, when claimant hit a joint crack while pushing a cart but he did not see the actual accident but does know about it. He did not know if it was serious. He said claimant did not seek medical care or authorization for that event. Downing said either he or two others would have had the authority for claimant to see a doctor. He didn't know if medical care was authorized as a result of claimant's March 1, 1988 injury or not, by him or the other authorized personnel, but he would have authorized it if he had been asked. He does not believe there is an authorization dispute because he would have authorized claimant to see a doctor. Allan Fuller, the terminal manager for defendant employer since September 1986, described the nature of defendant employer's business. Basically, defendant employer moves commodities through a system of terminals through the Churchill Truck Lines. There are two jurisdictions, the city route requiring driver to load and unload the trailer and make city deliveries, pick up and do work around the terminal. The second jurisdiction is over- the-road driver. He said normally the over-the-road drivers are not expected to load and unload or break apart a load but it does happen depending on the circumstances. He said in this jurisdiction a person must be qualified to perform both jobs. Fuller indicated that under the union contract once a person has left with an injury and desires a return, he must obtain a work release from defendant with no restrictions. Fuller acknowledged that December 29, 1988 letter of Dr. Carlstrom indicated claimant reached maximum improvement on that date. Fuller could not answer why claimant did not return to work from December 29, 1988 to March 18, 1991, a two year, four month period. Fuller indicated he did not have communication with claimant during the time and understood any communication was to be handled through his attorney. He did not know when he was informed that he couldn't communicate with claimant but only through his attorney. He indicated this communication came on April 6, 1989. It is obvious he made no effort to contact claimant or his attorney. Fuller testified that for claimant to come back to work in March 1991, a current DOT physical and drug screen would be necessary. Defendant employer also requested claimant to Page 7 see their own doctor due to the nature of claimant's injuries and the lapse in time. He agreed that Dr. Boarini issued a return-to-work release on March 11, 1989. He said claimant was then sent to the company doctor, Dr. Makowsky, for further opinion. Upon claimant returning to work, the employer said claimant had told them that claimant's financial requirements were increasing and he needed to return to work for monetary reasons. Fuller reaffirmed that claimant related no back problems or other problems to him between March 18, 1991 and April 6, 1991, when claimant injured himself again. He said claimant bid on the job he currently holds, namely, over-the-road truck driving. He said as the senior man on the board claimant has the prerogative to take any position he wishes. Fuller said the dolly claimant was trying to move by hand on April 6, 1991 weighed 2,750 pounds. He understood that after the April 6, 1991 injury, Dr. Makowsky has recently placed ten pound restrictions on claimant and no repetitive motions, bending or twisting. He understands claimant has been doing routine farming since April 6, 1991 from a conversation with Dr. Makowsky. He said the doctor has related his frustration with claimant who is not following his instructions. Joint Exhibit 1, page 1 through 16 basically covers claimant's medical problems involving his right elbow. As referred to earlier, this problem has no bearing nor is there any residue concerning this problem on issues on this current decision. Claimant was off work March 15, 1988 and was given a no restrictions release for his return to work on March 21, 1988 (Jt. Ex. 1, p. 18). On April 21, 1989, Scott B. Neff, D.O., wrote a report which seems basically to involve claimant's problem with his arm and shoulder that would keep him up at night. The doctor also mentioned that, although claimant did not give him a specific date, he felt that claimant hurt his arm and shoulder when he was lifting a manure spreader on his farm. He indicated claimant probably has a myofascial syndrome with reference to his back. He suggested it might be reasonable for claimant to perform a functional capacity evaluation to document his back lifting capacity (Jt. Ex. 23). On April 27, 1989, Dr. Carlstrom wrote that "I think that his symptoms seem to have begun after the "crack" incident early in 1988 and therefore would relate it back to that. He would probably warrant an impairment rating of about 6-8% of the body as a whole based upon diminished range of motion in his back and neck." (Jt. Ex. 24). It is surprising to the undersigned the differences in these two reports of two specialists that are only seven days apart. Joint Exhibit 1, page 32, reflects a September 5, 1989 history and diagnosis of G.S. Russell, M.D., who issued a report on that date, indicating that claimant's back revealed the presence of mild muscle spasms and that there Page 8 was a 20 percent loss of normal range of motion in his back. He indicated there was soreness over the lumbosacral junction with some soreness over the left sacrosciatic notch. X-rays revealed some settling of the L5-S1 disc and his diagnosis was herniated disc, most likely L4-5, mild. He indicated a more aggressive evaluation of claimant's condition needs to be performed and that he should have an MRI with a possible epidural steroid. Somewhere between September 5, 1989 and November 28, 1989, claimant had an epidural steroid which gave some relief but his pain returned with radiculopathy down both lower extremities. It was again suggested that he needed an MRI (Jt. Ex. 1, p. 33). Joint Exhibit 1, page 29, indicates that pursuant to claimant's examination on March 4, 1991 by Boarini, claimant was released to return to work on March 11, 1991 with no restrictions. Page 30 of that exhibit is an occupational therapy functional capacity assessment of Iowa Methodist Low Back Institute dated March 12, 1991, pursuant to a functional capacity of claimant on March 11, 1991. The report indicated: In my opinion, this patient should be able to tolerate a wide variety of work. I feel that truck driving is certainly within that realm. I do question whether he would be able to tolerate the loading and unloading of repetitive materials to and from the truck trailer. .... 2. This gentleman reported due to his seniority, he was going to bid for the Des Moines/Kansas City/Des Moines run where he will pick up a load at the Des Moines terminal, go to Kansas City, change trucks, and return to Des Moines five nights a week. In my Page 9 opinion, I feel this patient would have no difficulty tolerating this job. (Jt. Ex. 1, p. 41) On March 15, 1991, Dr. Makowsky issued a report which was basically a second opinion requested by the employer to make sure claimant could return to work. Defendants' testimony is clear that they would not allow claimant to return to work if he had any restrictions. It is for that reason that, notwithstanding Dr. Boarini's release for claimant to work on March 11, 1991, that defendants wanted the opinion of their doctor, Dr. Makowsky, to make sure claimant could return to work with no restrictions. Defendants, in their testimony, emphasized that claimant was released with no restrictions and referred to this report also. Dr. Makowsky's report indicates: Patient told Jean Gaskell as well as myself that because of his seniority (he indicated he was No. 1 on the list) he was going to bid on the Des Moines to Kansas City to Des Moines route. He said there was very little lifting involved in this particular job. He is anxious to return to work. P. With an essentially normal examination and no recent symptoms as well as a normal FCE, I would consider that he may return to his job as a driver for Churchill. I am assuming that he is not going to have to repetitively lift more than 70-80 lbs floor to knuckle and he would not have to carry loads weighing more than 50-60 lbs repetitively. I will thereby notify Alan Fuller at Churchill Trucking that I agree with Dr. Boarini that he can return to full duty without restrictions. The defendants also emphasized (Jt. Ex. 1, p. 44), which is Dr. Makowsky's letter written on March 18, 1991, obviously after his March 15, 1991 examination and report which was previously referred to on page 43 of joint exhibit 1. In this March 18 letter the doctor indicated that: "Upon the results of the functional capacity assessment, the medical records sent to me, my clinical history and examination, and Dr. Boarini's comments from his evaluation, I have determined that Gary Sprouse may return to his job as a truck driver for Churchill Trucking without restrictions." Joint Exhibit 1, page 45, indicates that on April 16, 1991, Dr. Stilley issued a medical authorization indicating that claimant returned to work at desk duty with no driving until April 19, 1991. It indicates there is a recurrence of low back pain. On March 19, 1991, Dr. Makowsky prescribed a back brace for claimant. Claimant contends has two injuries for which he desires compensation. One is for March 1, 1988 and the other is September 21, 1988. The evidence indicates that there was another incident on March 22, 1988, in which claimant was pulling a skid. There is also another incident on April 6, Page 10 1991, in which claimant incurred either a new injury or an aggravation of a prior injury. The parties have stipulated that an injury arose out of and in the course of claimant's employment on March 1, 1988 and September 21, 1988. The parties have stipulated that the March 1, 1988 and September 21, 1988 injuries are the cause of some temporary and permanent disability and it is the extent of the temporary and permanent disability that the parties are arguing over. The evidence seems to indicate a close call as to whether there may have been a distinct September 21, 1988 injury of some kind that would be considered a separate injury or whether the incident on that date actually was an aggravation of claimant's March 1, 1988 injury, in which case we actually would have an injury of March 1, 1988 rather than two injuries. The end result in this decision as to the distinction of an aggravation or another separate injury may be the same or a minor consequence as to benefits taking into consideration this decision as a whole. The undersigned believes that the greater weight of evidence would indicate that claimant incurred a low back injury on March 1, 1988, and that this injury left claimant in such a vulnerable condition that with his continued problems, the incident on September 21, 1988 was of such a nature that it aggravated claimant's March 1, 1988 injury because of the vulnerable condition that claimant was left in, thereby not really being a new and separate injury compensable by itself but, in fact, a sequela of the March 1, 1988 injury. The undersigned so finds. The parties are disputing the claimant's entitlement to healing period as to both incidents. Claimant contends that he incurred a healing period beginning March 15, 1988 through March 20, 1988, which was paid by the defendants and for which period it appears they do not contest. The claimant further contends that claimant incurred additional healing periods of April 27, 1988 through May 16, 1988, May 30, 1988 through July 6, 1988, and August 5, 1988 through August 14, 1988, particularly as to the March 1, 1988 injury. Claimant further contends that he incurred a healing period of September 22, 1988 through October 9, 1988 and October 28, 1988, November 3 and November 4, 1988. Claimant also contends that he incurred a healing period again beginning November 10, 1988 through December 29, 1988. These latter periods, beginning September 22, claimant relates to a September 21, 1988 injury. It appears defendants do not contest a healing period of September 21, 1988 through September 25, 1988. In light of the above finding, any healing period that may be found that the parties are contesting to as a September 21, 1988 injury would, in fact, be subsequent or additional healing periods as to the March 1, 1988 injury of which there was an aggravation on September 21, 1988, resulting in additional healing periods. Within some of those alleged healing periods claimant took vacation. It is obvious to the undersigned that the Page 11 reason claimant took a vacation was because he was getting no benefits and felt that he was still healing to which the medical records seem to indicate, and that he needed some money to live on and that the only way he could obtain same was to take his vacation with pay. The undersigned finds that within those healing period times in which claimant took vacation, they were, in fact, still times claimant was healing and should be included within a healing period. Joint Exhibit 1, page 23, a December 29, 1988 letter of Dr. Carlstrom, indicates claimant reached maximum benefits at least as of that date at which time he also opined that claimant had a permanent impairment of about 6 to 8 percent of his body as a whole. The undersigned finds that claimant incurred the healing periods that have been previously referred to above with the claimant reaching maximum healing period on December 29, 1988. The undersigned finds that the healing periods were causally connected to claimant's March 1, 1988 work injury and the aggravation on September 21, 1988 of claimant's March 1, 1988 injury. The undersigned finds that claimant incurred a permanent impairment of his body as a whole as a result of the March 1, 1988 injury. The parties are arguing over the extent of claimant's permanent disability. Claimant contends there were restrictions as a result of said injury and defendants contend that there were no restrictions and if, in fact, there are, they are the result of another injury. On March 11, 1991, it is undisputed that claimant was issued a return-to-work slip and it appears that claimant desired to return to work and felt he was able. Defendant employer disputed that and desired a second opinion from the doctor, Dr. Makowsky. it is obvious that Dr. Makowsky questioned claimant's ability to return without knowing more specifically the nature of claimant's work and what, in fact, his duties were going to be. It seems apparent to the undersigned that Dr. Makowsky did not think claimant could return to the type of work he was previously doing that required certain lifting, etc. It is clear from defendants' witnesses' testimony that defendants would not allow claimant to return with restrictions. It is further obvious that defendants are relying upon Joint Exhibit 1, page 44 (a letter from Dr. Makowsky) that indicates claimant could return as a truck driver for defendant employer without restrictions. This exhibit must be read along with Joint Exhibit 1, page 43, in which it is obvious to the undersigned that the doctor understood that claimant was not going to have to repetitively lift more than 70 or 80 pounds floor to knuckle and he would not have to carry loads weighing more than 50 to 60 pounds repetitively. It is further obvious that claimant was motivated and desired to return to work, possibly at all costs, particularly since financially he was needing some income. The record was also very clear that defendants would not take claimant back with Page 12 any restrictions and if, in fact, the restrictions were limited to those weights just previously referred to, claimant would not be allowed to return to work. The undersigned finds that on March 18, 1991 that claimant did, in fact, have restrictions which prevented him from doing certain jobs that he was able to do prior to his March 1, 1988 injury and subsequent sequela on September 21, 1988. So that there is no misunderstanding, the undersigned wants to make it clear that when the undersigned refers to claimant's March 1, 1988 injury, he is including the September 21, 1988 aggravation as part of the same in light of the above findings. The undersigned finds that claimant did, in fact, have a loss of earning capacity as a result of his March 1, 1988 injury and that claimant was no longer able to perform many of the jobs that he was doing and able to perform prior to March 1, 1988. Claimant had first seniority. It is undisputed that he bid back and forth and pretty much could decide what type of work he wanted to do for defendant employer. Claimant can no longer do this. It is fortunate that his seniority enables him to have certain rights when it comes to availability on light duty work but claimant's ability to choose jobs of which he is restricted from doing or which the employer will not allow him to do indicates claimant does have a loss of earning capacity. It appears that claimant is making basically the same or similar income and hourly wage that he would be making at other positions at defendant employer taking all other situations into consideration. It is his loss of earning capacity and not loss of income that determines industrial disability. Loss of income is only one element to consider. On April 6, 1991, claimant incurred another injury. The undersigned at this time has the same dilemma before him in determining whether this is a new injury or aggravation of another prior injury and, in particular, the March 1, 1988 injury. The record is clear that claimant was able to go back to work and did, in fact, start working until the April 6, 1991 incident. It is obvious from observation of claimant that the April 6, 1991 injury has severely injured claimant. Claimant has not worked since April 16, 1991, and he is not presently working. However, he does perform some work and activities regarding his farm. It is apparent to the undersigned in observing claimant that he is substantially injured to the extent that the jobs as described by the witnesses and other records would indicate that claimant would not be able to return and perform those jobs for defendant employer. The undersigned finds that claimant's current condition as far as being unable to work is not the result of claimant's March 1, 1988 injury but is the result of an April 6, 1991 injury, a new injury. The April 6, 1991 new injury is not the subject of this decision. Any compensation for the same will have to be dealt with in proceedings other than this current decision. This current decision is dealing only with claimant's Page 13 condition found herein resulting from a March 1, 1988 injury and the sequela of September 21, 1988, referred to herein. Claimant is 51 years old and has only a high school graduation. His transferable skills are very limited. He has basically been a truck driver or dock worker for the last 20 plus years and prior to that he was in other manual- type labor jobs through which he would have no meaningful transferable skills taking into consideration his March 1, 1988 injury and restrictions found herein. Claimant is doing some farming but his condition affects the extent to which he can do that. Although defendants seemed to indicate that he is able to farm, he is not able to do most other medium or heavy duty jobs. In addition, thereto, claimant has to survive and eat. He is not totally disabled as a result of the March 1, 1988 injury and, therefore, it would be expected he would be able to do certain work notwithstanding the pain and problems he would have doing it. It is undisputed that claimant was able to do all of the jobs at defendant employer prior to March 1, 1988. Taking into consideration claimant's age, his pre- injury and post-injury medical, his work experience, his education, vocation, the severity of injury, the healing period, motivation, functional impairment, restrictions, and all other criteria used in deciding one's industrial disability, the undersigned finds that claimant has a 30 percent industrial disability. The undersigned would like to emphasize that claimant's present condition is substantially worse than the condition which the undersigned relates to claimant's March 1, 1988 injury and sequela of September 21, 1988. The industrial disability determined herein basically takes into consideration claimant's condition prior to April 6, 1991, at which time claimant incurred another work injury which is not involved in this case at bar. The only other remaining issue is claimant's entitlement to certain 85.27 medical benefits. The defendants contend there was no causal connection to the same nor authorization. There is an 85.27 exhibit attached to the prehearing report to which the parties refer as to those bills being in dispute. It appears to the undersigned from the evidence herein that all of these bills were incurred prior to April 6, 1991. It appears that these bills have to do with certain care and treatment of the claimant as a result of the problems he was having as a result of the March 1, 1988 injury and sequela as found herein. Claimant was seeking treatment and it appeared that under the circumstances herein that he is entitled to take the action that he took. The parties stipulated and seem to indicate that defendants were paying nothing concerning a March 1, 1988 injury and what they did pay as far as benefits involved a September 21, 1988 injury that has been considered already herein. Any treatment or services claimant obtained seemed to help him or give him some relief or helped further enable proper determination to be made Page 14 herein. The undersigned finds that all those bills set out on claimant's 85.27 exhibit list shall be paid by defendants, including any mileage set out therein, except for the $58.38 mileage bill to see Dr. Neff, which trip seemed to have been mainly for or involving claimant's elbow problem and an upper extremity rating (Transcript, pages 95-96). It is further found that when claimant saw a Dr. Fraser for the first time he rightly had reason to believe that Dr. Carlstrom, who was authorized by the defendants, in fact, okayed claimant seeing that doctor. CONCLUSIONS OF LAW If claimant has an impairment to the body as a whole, an industrial disability has been sustained. Industrial disability was defined in Diederich v. Tri-City Railway Co., 219 Iowa 587, 593, 258 N.W.2d 899, 902 (1935) as follows: "It is therefore plain that the legislature intended the term `disability' to mean `industrial disability' or loss of earning capacity and not a mere `functional disability' to be computed in the terms of percentages of the total physical and mental ability of a normal man." The opinion of the supreme court in Olson v. Goodyear Service Stores, 255 Iowa 1112, 1121, 125 N.W.2d 251 (1963), cited with approval a decision of the industrial commissioner for the following proposition: Disability * * * as defined by the Compensation Act means industrial disability, although functional disability is an element to be considered....In determining industrial disability, consideration may be given to the injured employee's age, education, qualifications, experience and his inability, because of the injury, to engage in employment for which he is fitted. * * * * Functional impairment is an element to be considered in determining industrial disability which is the reduction of earning capacity, but consideration must also be given to the injured employee's age, education, qualifications, experience and inability to engage in employment for which he is fitted. Olson v. Goodyear Service Stores, 255 Iowa 1112, 1121, 125 N.W.2d 251, 257 (1963). Iowa Code section 85.34(1) provides that if an employee has suffered a personal injury causing permanent partial disability, the employer shall pay compensation for a healing period from the day of the injury until (1) the employee returns to work; or (2) it is medically indicated that significant improvement from the injury is not anticipated; or (3) until the employee is medically capable of returning to substantially similar employment. A healing period may be interrupted by a return to work. Riesselman v. Carroll Health Center, III Iowa Industrial Commissioner Report 09 (Appeal Decision 1982). Page 15 Iowa Code section 85.27 provides, in part: For purposes of this section, the employer is obliged to furnish reasonable services and supplies to treat an injured employee, and has the right to choose the care. The treatment must be offered promptly and be reasonably suited to treat the injury without undue inconvenience to the employee. If the employee has reason to be dissatisfied with the care offered, the employee should communicate the basis of such dissatisfaction to the employer, in writing if requested, following which the employer and the employee may agree to alternate care reasonably suited to treat the injury. If the employer and employee cannot agree on such alternate care, the commissioner may, upon application and reasonable proofs of the necessity therefor, allow and order other care. In an emergency, the employee may choose the employee's care at the employer's expense, provided the employer or the employer's agent cannot be reached immediately. It is further concluded that: Claimant incurred a work-related injury that arose out of and in the course of his employment on March 1, 1988, to his low back, which injury caused claimant to incur an impairment to his body as a whole and certain restrictions. Claimant's March 1, 1988 work injury left claimant in such a vulnerable and injured condition that he again aggravated his back on September 21, 1988, resulting in a continuation and increase in claimant's medical problems originally caused March 1, 1988. Claimant did not incur a new and separate work injury on September 21, 1988, but incurred a work-related aggravation of a medical problem caused by a March 1, 1988 injury and, consequently, the result of the September 21, 1988 aggravation is considered and compensated as a part of and as a sequela of claimant's March 1, 1988 injury. Claimant had restrictions as a result of his March 1, 1988 injury in which he was not to repetitively lift more than 70 or 80 pounds floor to knuckle and would not carry loads weighing more than 50 to 60 pounds repetitively. Claimant incurred multiple healing periods that were caused by his work-related March 1, 1988 injury, said periods being as follows: March 5, 1988 through March 20, 1988; April 27, 1988 through May 16, 1988; May 30, 1988 through July 6, 1988; August 5, 1988 through August 14, 1988; September 21, 1988 through October 9, 1988; October 28, November 3 and November 4, 1988; and November 10, 1988 through December 29, 1988, all totaling 24.571 weeks. Claimant has incurred a loss of earning capacity as claimant's March 1, 1988 injury has foreclosed claimant to Page 16 various positions that he was able to do and was successful through his seniority that have now been foreclosed to him because of said work injury. Claimant has a 30 percent industrial disability. Claimant incurred a work injury on or about April 6, 1991, which has resulted in further injury to claimant which is not being considered herein. Claimant's current inability to return to work with defendant employer is not the result of claimant's March 1, 1988 injury or any September 21, 1988 aggravation as found herein but is the result of an April 6, 1991 injury that is not the subject of this decision herein. Claimant is entitled to have all those bills set out in claimant's 85.27 exhibit, including mileage except for the mileage in reference to a trip to Dr. Neff's office in the amount of $58.38. The net total of which defendants shall pay the claimant in reference to the 85.27 exhibit is $2,833.61, which includes mileage. order THEREFORE, it is ordered: That the claimant is entitled to one hundred fifty (150) weeks of permanent partial disability benefits at the weekly stipulated rate of three hundred seventy and 37/100 dollars ($370.37), beginning at the stipulated date of December 30, 1988. That defendants shall pay unto claimant healing periods at the rate of three hundred seventy and 37/100 dollars ($370.37) for the following periods: March 5, 1988 through March 20, 1988 (2.286 weeks); April 27, 1988 through May 16, 1988 (2.857 weeks); May 30, 1988 through July 6, 1988 (7.857 weeks); August 5, 1988 through August 14, 1988 (1.429 weeks); September 21, 1988 through October 9, 1988 (2.571 weeks); October 28, November 3 and November 4, 1988; and November 10, 1988 through December 29, 1988 (7.143 weeks); all totaling twenty-four point five seven one (24.571) weeks. That defendants shall pay accrued weekly benefits in a lump sum and shall receive credit against the award for weekly benefits previously paid. Defendants have paid approximately four (4) days of healing period benefits at a rate lower and different from the stipulated rate and have paid twenty-five (25) weeks of permanent partial disability benefits, as stipulated by the parties. Permanent partial disability was also paid at a lower rate ($237.70). Defendants shall pay all the medical bills and mileage as set out on claimant's 85.27 exhibit except for the fifty- eight and 38/100 dollars ($58.38) mileage in reference to Dr. Neff. Said net amount, per exhibit, that defendants shall pay is two thousand eight hundred thirty-three and 61/100 dollars ($2,833.61). Page 17 That defendants shall pay interest on benefits awarded herein as set forth in Iowa Code section 85.30. That defendants shall pay the costs of this action, pursuant to rule 343 IAC 4.33. That defendants shall file an activity report upon payment of this award as required by this agency, pursuant to rule 343 IAC 3.1. Signed and filed this ____ day of July, 1991. ______________________________ BERNARD J. O'MALLEY DEPUTY INDUSTRIAL COMMISSIONER Copies to: Mr Robert W Pratt Attorney at Law 6959 University Ave Des Moines IA 50311 Mr Richard G Book Attorney at Law 500 Liberty Bldg Des Moines IA 50309 Page 1 before the iowa industrial commissioner ____________________________________________________________ : RICKY L. BORG, : : Claimant, : : vs. : : File No. 881019 KING OF CLUBS, INC., : : A P P E A L Employer, : : D E C I S I O N and : : MARYLAND CASUALTY COMPANY, : : Insurance Carrier, : Defendants. : ___________________________________________________________ statement of the case Defendants appeal from an arbitration decision holding that claimant was an employee of the defendant employer and awarding claimant medical benefits and temporary total benefits as a result of claimant's September 14, 1987 work injury. The record on appeal consists of the transcript of the arbitration decision; claimant's exhibits A through F and defendants' exhibits 1 through 6. Both parties filed briefs on appeal. issue The issue on appeal is whether claimant was an employee of defendant employer. review of the evidence The arbitration decision dated January 5, 1990 adequately and accurately reflects the pertinent evidence and it will not be reiterated herein. applicable law The citations of law in the arbitration decision are appropriate to the issue and evidence. The following additional citations are appropriate. Iowa Code section 85.61(2) provides: "Worker" or "employee" means a person who has entered into the employment of, or works under contract of service, express or implied, or apprenticeship, for an employer; anexecutive Page 2 officer elected or appointed and empowered under and in accordance with the charter and bylaws of a corporation, including a person holding an official position, or standing in a representative capacity of the employer... Iowa Code section 85.61(3)(b) lists an "independent contractor" one of the persons who shall not be deemed as a "worker" or "employee." In the event a prima facie case is established, the burden is upon the employer to go forward with the evidence to overcome or rebut the case. An independent contractor allegation is an affirmative defense which must be established by the employer by a preponderance of the evidence. Daggett v. Nebraska-Eastern Exp., Inc., [252 Iowa 341, 346 (Iowa 1961)]. The term "independent contractor" is not defined in the Workers' Compensation Act and resort must be had to the common law to give the term its meaning. Norton v. Day Coal Co., 192 Iowa 160 (1921). Funk v. Bekins Van Lines Company, I Iowa Indus. Comm'r Rep. 82, 83 (1980). analysis The analysis of the evidence in conjunction with the law in the arbitration decision is adopted. The following additional analysis is appropriate. Claimant has the burden of proof as to employer-employee relationship. Defendant employer advertised for softball umpires in the newspaper. A general meeting was held to select umpires which defendant, along with the head umpire, attended. Defendant through the head umpire selected people to umpire the softball games at their complex. In addition, defendant scheduled when the teams would play and defendant, through the head umpire, scheduled umpires to the particular game. Claimant was required to be at a particular field at the assigned time. Finally, defendant received benefit from having people umpire the games as the defendant entered into to an agreement with the teams that umpires would be provided by the defendant. The right to control work, rather than the actual exercise of the right to control, is decisive. While claimant was free to call the softball game as he saw fit, the ultimate control of his conduct remained with the defendant. Defendant testified that if an umpire arrived at the park intoxicated they would terminate him or her. In addition, if there was a dispute between a team and an umpire and head umpire failed to take care of it to the defendant's satisfaction, they would talk to the umpire. Under the facts of this case, the greater weight of the evidence supports the conclusion that claimant was an employee of the defendant. The burden of proof then shifts to the defendants to Page 3 prove that claimant was not an employee but an independent contractor. Of particular note to the analysis of the evidence in this particular case is the method of payment. Claimant was paid by the number of games that he umpired, and not by the hour. Defendant employer testified that the monies which the softball teams paid to play were placed into defendant's checking account and the umpires paid from that account. The teams did not directly pay claimant nor were the funds set aside strictly for the payment of the umpires as the funds in the checking account were used for other purposes. Defendant controlled the rate of payment. Defendant controlled the duration and progress of claimant's work. It was the defendant who scheduled the length of the softball season and defendant who scheduled the games. Defendant scheduled multiple teams at different times and claimant was then directed by the head umpire to the particular game. Defendant provided the base markers and the softball complex, while claimant provided his own umpiring equipment. For these reasons and those laid out in the deputy's proposed decision, it is determined that defendants failed to meet their burden of proof that claimant was an independent contractor under the facts of this case. findings of fact 1. On September 14, 1987, claimant was working as an umpire at defendant's softball park near Sioux City, Iowa. 2. While working as an umpire, claimant was struck in the mouth by a bat, resulting in a fractured jaw. He subsequently developed an infection which led to loss of one of his front teeth. 3. Claimant started his employment with defendant in 1981 when he was hired by the head umpire which defendant selected and continued to umpire in the summer and fall until the time of his injury on September 14, 1987. 4. Claimant was paid by the game and worked at times designated by the defendant through their head umpire. 5. Defendant determined claimant's rate of payment. 6. The work which claimant performed as an umpire for defendant was a part of the entire package of facilities and services which defendant provided to the softball teams which paid to use the facility. 7. Defendant received benefit from furnishing the softball teams with the service which claimant performed. 8. Defendant paid claimant from the corporation's checking account where the fees which the softball team paid were placed. 9. Claimant provided his own uniform and equipment to umpire the games. Defendant provided the base markers. Page 4 10. Claimant was free to work for other softball complexes or terminate his employment at any time. 11. Defendants were in control of the park where the services which the claimant provided were performed and were responsible for providing the services which claimant performed to the teams which used the facility. 12. The evidence does not contain any express written or oral agreement between the parties to this proceeding or an expression of intent made prior to the time of the injury which characterized claimant as being an independent contractor rather than an employee. 13. Claimant did not claim the income which he received from defendant in any manner on his income tax return. 14. Defendant did not provide claimant with either a W-2 form or a statement of nonemployee compensation (form 1099). conclusions of law Claimant proved that he was an employee of defendants when he was injured on September 14, 1987. Defendants failed to prove that claimant was an independent contractor when he was injured on September 14, 1987. WHEREFORE, the decision of the deputy is affirmed. order THEREFORE, it is ordered: That defendants pay claimant two (2) weeks of compensation for temporary total disability at the rate of eighty-eight and 01/100 dollars ($88.01) per week payable commencing September 15, 1987. That defendants pay the cost of this proceeding including the costs of transcription of the arbitration hearing. That defendants file claim activity report pursuant to Division of Industrial Services Rule 343-3.1(2). Signed and filed this ____ day of August, 1990. ________________________________ CLAIR R. CRAMER ACTING INDUSTRIAL COMMISSIONER Page 5 Copies To: Mr. P. D. Furlong Attorney at Law 401 Commerce Building Sioux City, Iowa 51101 Mr. Michael P. Jacobs Attorney at Law 300 Toy National Bank Building Sioux City, Iowa 51101 1402;1043.30;1504 Filed August 23, 1990 CLAIR R. CRAMER before the iowa industrial commissioner ____________________________________________________________ : RICKY L. BORG, : : Claimant, : : vs. : : File No. 881019 KING OF CLUBS, INC., : : A P P E A L Employer, : : D E C I S I O N and : : MARYLAND CASUALTY COMPANY, : : Insurance Carrier, : Defendants. : ___________________________________________________________ 1402 Claimant has the burden of proof as to employer-employee relationship. The right to control work, rather than the actual exercise of the right to control, is decisive. While claimant was free to call the softball game as he saw fit, the ultimate control of his conduct remained with the defendant. Defendant testified that if an umpire arrived at the park intoxicated they would terminate him or her. In addition, if there was a dispute between a team and an umpire and the head umpire failed to take care of it to defendant's satisfaction, they would talk to the umpire. Under the facts of this case, the greater weight of the evidence supports the conclusion that claimant was an employee of the defendant. 1403.30 and 1504 The burden then shifts to the defendants to prove that claimant was not an employee but an independent contractor. Defendant controlled the duration and progress of claimant's work. It was the defendant who scheduled the length of the softball season and defendant who scheduled the games. Defendant scheduled multiple teams at different times and claimant was then directed by the head umpire to the particular game. Defendant failed to meet their burden of proof that claimant was an independent contractor under the facts of this case. BEFORE THE IOWA INDUSTRIAL COMMISSIONER RICKY L. BORG, Claimant, File No. 881019 vs. A R B I T R A T I O N KING OF CLUBS, INC., D E C I S I O N Employer, F I L E D and JAN 05 1990 MARYLAND CASUALTY COMPANY, INDUSTRIAL SERVICES Insurance Carrier, Defendants. INTRODUCTION This is a proceeding in arbitration brought by Ricky L. Borg against his former employer, King of Clubs, Inc., and the Maryland Casualty Company, its insurance carrier. The case was heard and fully submitted on December 7, 1989, at Sioux City, Iowa. The record in the proceeding consists of testimony from Ricky L. Borg and Karen Quist. The record also contains claimant's exhibits A, B, C, D, E, and F and defendants' exhibits 1, 2, 3, 4, 5, and 6. ISSUES Claimant seeks compensation for temporary total disability and payment of expenses under the provisions of Iowa Code section 85.27. The issues for determination include whether an employer-employee relationship existed at the time of injury. Defendants contend that claimant was an independent contractor. An issue exists with regard to claimant's entitlement to temporary total disability compensation. No permanent partial disability compensation was claimed. Expenses under Iowa Code section 85.27 were claimed. The rate of compensation was identified as an issue. Defendants also sought credit for disability income benefits and medical expenses which had been paid by insurance which was provided through claimant's other employment. SUMMARY OF EVIDENCE The following is a summary of evidence presented in this case. Only the evidence most pertinent to this decision is discussed, but all of the evidence received at the hearing was considered in arriving at this decision. Conclusions about what the evidence showed are inevitable with any summarization. The conclusions in the following summary should be considered to be preliminary findings of fact. The evidentiary facts in this case do not appear to be in substantial dispute when the testimony of the claimant is considered with the testimony from Karen Quist. Karen Quist testified that the King of Clubs, Inc., is a corporation which was owned by herself and her husband Robert Quist. The nature of the business was a softball complex which contained four fields and a concession stand. The Quists operated the business from June of 1981 to January of 1988. Karen Quist testified that the major revenue was from the concession sales, but that other revenue was received from ball teams and players who conducted softball league play on the fields. Karen Quist stated that the business employed five or ten people who worked at a concession stand and a groundskeeper who were all paid by the hour and that taxes were withheld from their pay. Quist stated that the groundskeeper and concession employees were listed as employees when workers' compensation insurance was purchased. Karen Quist also stated that the business provided umpires as well as the ball diamonds for the use of the teams which had paid a fee to play at the ballpark. Quist stated that umpires were obtained through a newspaper ad that was placed in a local newspaper each spring. She stated that it announced an organizational meeting which both she and her husband normally attended. Quist stated that Denny Trizila was considered to be the head umpire and was in charge of the other umpires. Trizila was paid $1.00 per game more than the other umpires when he actually umpired at a game. He was also paid a weekly fee for managing the scheduling of the umpires. Quist stated that the organizational meeting was conducted by Trizila. Quist went on to state that she felt that she and her husband, as owners of the park, had authority to take action to ensure that umpires acted properly. She stated that if complaints were made about the conduct of an umpire, she felt that she would contact Trizila to have him resolve the matter. Quist stated that she and her husband did not supervise the umpires directly or in any manner evaluate the quality of their performance with regard to the accuracy of calls or in directing them how to actually perform as an umpire. Quist stated that during the first year of operation of the park, umpires were paid $6.00 per game, but that the rate was subsequently raised to $7.00 for some and $8.00 for others. During the summer, two umpires were provided per game, but during the fall, only one umpire was provided for each game and that umpire was then paid $10.00 per game. Quist testified that umpires were paid weekly, but that no taxes were deducted from their wages and that they were not listed as employees on the workers' compensation insurance policy application. Quist stated that employees in the concession stand were authorized to receive free food, but that umpires were not entitled to free food from the stand. Quist stated that she felt she and her husband never fired an umpire and never stopped a game because of the umpire's conduct because an occasion which required that type of activity had never arisen. Quist stated that Trizila consulted with her regarding problems with umpires, but that she had always left it up to him to handle it. Quist stated that it was to her benefit to have everything at the park operate smoothly. Ricky Borg testified that he normally works as a construction laborer and was so employed during 1986 and 1987. He stated that his normal rate of pay was $8.95 per hour. Borg stated that between the dates of September 14, 1986 and September 14, 1987, he received $1,196.00 in unemployment compensation, $4,572.80 in wages from the Klinger Construction Company. He stated that his total income from all sources during that year was $6,248.80. Borg testified that he learned of the umpire jobs at the park through a friend and attended the organizational meeting. Claimant stated that the head umpire contacted him and scheduled the dates and times when claimant was assigned to act as an umpire at games. Claimant stated that he generally worked two nights each week and two or four games per night, but that it sometimes varied. He stated that he had worked there since 1981 and worked regularly every year through 1987 up to the time of his injury. Claimant testified that he did not report the income from his umpire activities on his income tax returns and none appears on the returns which were introduced into evidence. Claimant stated that he was not given a W-2 form from the King of Clubs, but that he was told by Bob and Karen Quist that he did not have to report his income as long as it did not exceed $600.00 per year. The record shows that claimant clearly exceeded $600.00 of income from umpiring in 1987, but that source of income is, nevertheless, not reported on his 1987 income tax return. Claimant testified that he provided his own uniform, tennis shoes and other equipment and that all umpires always provide their own uniforms and equipment. He estimated the cost of his equipment to be $90. Claimant was umpiring a game on September 14, 1987 when a batter swung the bat after making a hit and accidentally struck claimant in the mouth. After reporting the incident to Karen Quist, claimant's wife was called and took him to the hospital. Claimant was hospitalized overnight and underwent surgery the following morning to repair a fractured jaw. Claimant also eventually lost a front tooth as a result of the incident. Among the expenses he seeks to recover is the cost of obtaining an implant or other type of replacement for that tooth which was still missing at the time of hearing. Claimant testified that the doctor who wired his jaw told him he would be off work for six weeks. Claimant stated that he could not recall how long he was actually off work. The medical expenses claimant seeks to recover are found in exhibits A through F. APPLICABLE LAW AND ANALYSIS The first issue to be determined is whether an employer-employee relationship existed. The burden of proving its existence is on the claimant. Everts v. Jorgensen, 227 Iowa 818, 822-826, 289 N.W. 11 (1939); Reddick v. Grand Union Tea Co., 230 Iowa 108, 114-116, 296 N.W. 800 (1951); Nelson v. Cities Service Oil Co., 259 Iowa 1209, 1213, 146 N.W.2d 261, 265 (1966). Five factors are weighed in determining whether there is an employer-employee relationship. Hjerleid v. State, 229 Iowa 818, 826, 827, 296 N.W. 139, 143 (1940); Usgaard v. Silver Crest Golf Club, 256 Iowa 453, 4551, 456, 127 N.W.2d 636 (1964); Nelson, 259 Iowa 1209, 1216, 146 N.W.2d 261, 265 .(1966); Henderson v. Jennie Edmondson Hosp., 178 N.W.2d 429, 431 (Iowa 1970); Floyd L. Hawkins v. The Messenger Newspaper, file number 750428, filed February 13, 1984. (affirmed by the district court October 31, 1984). These factors are: 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? No single factor is determinative. The question of whether there are sufficient factors to prove that the claimant is an employee is one for the finder of fact. Lawyer and Higgs, Iowa Workers' Compensation -- Law and Practice, section 2-1, pages 5 and 6; Daggett v. Nebraska-Eastern Exp., Inc., 252 Iowa 341, 348, 107 N.W.2d 102, 107 (1961). As to the law, the Iowa Supreme Court has decreed that the Workers' Compensation Act is to be liberally construed to extend its beneficent purpose to every employee who can fairly be brought within it. Usgaard, 256 Iowa 453, 459, 127 N.W.2d 636, 639; Daggett, 252 Iowa 341, 346, 107 N.W.2d 102. An employee is a person who has entered into the employment of or works for an employer. Iowa Code section 85.61(2); Lawyer and Higgs, Iowa Workers' Compensation Law and Practice, section 2-2, page 6. Once the worker has proven that at the time of the injury the worker was rendering services for the employer, the burden then shifts to the employer to prove the worker was an independent contractor and not an employee. Daggett, 252 Iowa 341, 344, 345, 346, 107 N.W.2d 102, 105 and numerous cases cited therein. An independent contractor by definition carries on an independent business. The Iowa Supreme Court has adopted an eight factor test which is considered in determining whether a worker is an independent contractor. Mallinger v. Webster City Oil Co., 211 Iowa 847, 851, 234 N.W. 254, 257 (1929). Again no single factor is determinative. Daggett, 252 Iowa 341, 107 N.W.2d 102. As with the determination of employer-employee relationship, the court will attempt to bring every employee under the protection of the Workers' Compensation Act who can be fairly brought within its coverage. Usgaard, 256 Iowa 453, 459, 127 N.W.2d 636, 639. An independent contractor is one who carries on an independent business and contracts to do a piece of work according to his own methods, subject to the employer's control only as to the results. The eight factors considered are: 1. The existence of a contract for the performance by a person of a certain piece or kind of work at a fixed price; 2. The independent nature of the business or calling; 3. The person's right to employee assistance and to supervise their activities; 4. The person's responsibility to furnish his own tools, supplies and materials; 5. The right to control the progress of the work, rather than merely the final results; 6. The duration of time for which the workman is employed; 7. The method of payment, whether it be by the job or on the basis of time; and, 8. Whether the work is a regular part of the business of the employer. In this case, the role of Dennis Trizila must be considered. From Quists testimony, it appears that Trizila was in fact the head umpire and was paid a special fee by the employer for his services in managing the remaining umpires. This made Trizila an agent of the Quists and their corporation. From the evidence introduced, Trizila selected those who would work as umpires. The Quists considered him to be primarily responsible for supervising and scheduling the umpires. Nothing was introduced into evidence which assured or guaranteed any umpire that Trizila would actually schedule them for any particular number of games. It appears that Trizila could have ceased using the services of any individual umpire if he had chosen to do so. Karen Quist was responsible for and paid the payments to the umpires on a weekly basis. Either party to the relationship could have terminated the relationship, claimant by simply leaving or failing to show up at the assigned time. As previously stated, Trizila could have ceased using the services of any particular umpire at any time. The King of Clubs, Inc., acting through Karen Quist, scheduled games. She then had Trizila schedule the various umpires to cover the various games. The umpires were required, apparently by Trizila, to have uniforms and other equipment. It is noted that it is possible to act as an umpire without wearing a uniform. The King of Clubs, Inc., provided softball teams with a field on which to play, complete with umpires, lights, bases and other amenities. If something in that package was not in order or was for some reason unsatisfactory, it would be expected that the King of Clubs, Inc., would be held responsible by its customers. The teams who played during the week when claimant umpired did not choose, select or provide their own umpires. It is therefore determined that the King of Clubs, Inc., acting through its representative Dennis Trizila, selected those who would be umpires, selected the date and time the umpires would work, and prescribed a particular uniform to be worn by the umpires. The employer, acting through Karen Quist, was responsible for the payment of wages to the umpires and the employer, King of Clubs, Inc., acting through its owners Karen and Bob Quist were the individuals generally considered to be in charge of and responsible for the functioning of the ballpark. Upon considering all these factors that claimant has made a prima facie showing that an employer-employee relationship existed. The burden then shifts to the defendants to establish that claimant was an independent contractor. Claimant did perform a particular service at a fixed price. It does not appear, however, that he performed this work as an umpire for others, although he could possibly have done so. Claimant did not employ assistants. He did, however, furnish his own uniforms and equipment. Claimant did have the right to control the progress of the game when he was working as an umpire, although he did not have control of the time or place at which the games were to be conducted. Claimant was employed for the duration of each game, although there was no indication that there was any express or implied assurance of how many games would be available. Claimant was paid by the job. His work was a regular part of the business of King of Clubs, Inc. One of the primary issues when dealing with an independent contractor issue is the intent of the parties. Henderson v. Jennie Edmundson Hosp., 178 N.W.2d 429, 431 (Iowa 1970). The record in this case does not contain a single incident where claimant was informed or advised that the employer considered him to be an independent contractor. There is not a single event or incident in the record wherein claimant indicated that he considered himself to be an independent contractor. There is no written agreement of any type. There is nothing in the rules and regulations of the sanctioning organization which had sanctioned the ballpark during the first year of its operation which specifies the employment status of umpires. There is nothing in the record which makes any assertion regarding whether umpires are normally considered in the industry to be independent contractors or employees. The fact that major league umpires in professional baseball have engaged in a widely publicized strike makes it apparent that umpires are not exclusively independent contractors. With regard to the issue of control of the umpires' activities, the proper conduct of an umpire is governed by the rules of the game of softball itself. Neither the King of Clubs nor the claimant has authority to alter those rules and still have the game constitute a normal game of softball. Since the employer was in the business of providing diamonds upon which softball was to be played, in particular league play, it could be said that the choice or adoption of the normal rules of the game of softball, which controlled claimant's activities, were adopted and chosen by the employer and were therefore an exercise of control by the employer. In this particular case, however, the issue of control as far as the rules of the game, is not really a good indicator of employment status. The fact that the King of Clubs, Inc., scheduled the times and places at which the umpires worked is a much stronger indication of control. The umpires apparently worked as work was assigned to them. There is no indication that there was any guarantee or fixed amount of work. There is no indication that at the time of the organizational meeting the umpires in any manner bid for the games that they would umpire. There is no indication that the umpires had any part in determining what the rate of pay would be. The evidence shows that it was set by the employer. The fact that the rate of pay was established on a per game basis is not particularly controlling since the duration of a softball game is normally somewhat predictable. There is also evidence in the record that the rules of the ballpark permitted only a limited number of time for a game since the same ball diamond was commonly scheduled for more than one game per night. The fact that the umpires were paid by the game, rather than by the hour, is again not particularly indicative of the actual employment status. The following factors are considered to be the most indicative of the employment status. The employer selected those who would work as an umpire. The employer was responsible for the payment of wages. The employer scheduled the times and places at which each umpire would work. The employer was generally held to be responsible for the entire operation of the ballpark, including the services of the umpires. Further indications are that working as an umpire is not necessarily exclusively performed by independent contractors, claimant did not appear to be entitled to employ assistants or substitutes. It is of particular note that claimant was not held responsible for finding his replacement on the night he was injured. Presumably, the employer handled that. It is particularly important that umpires for games were a part of the package which King of Clubs, Inc., provided to its customers. It is important to note that the record of this case does not contain any indication that there was any agreement between the parties, express or implied, that claimant was to have the status of an independent contractor, rather than an employee. The unilateral act of an employer in failing to withhold taxes, possibly illegally, does not have any significant bearing upon determining the employment status. There is evidence in the record of this case that claimant made inquiry to Quists regarding the manner in which he should report the income. While both claimant and the employer may all be guilty of violations of the tax laws, such is not an indicator of employment status. It is therefore determined that Ricky Borg was an employee of the King of Clubs, Inc., and was acting within the course and scope of his employment when he was struck in the mouth by the bat and injured. With regard to claimant's income tax returns, he did not claim the income in any form. He did not list it as income from employment nor did he list it as income from self-employment. Claimant seeks to recover compensation for temporary total disability and payment of his medical expenses. A review of claimant's exhibits A, B, C, D, and E are all expenses which were incurred on September 14 and 15, 1987 in the course of providing the initial treatment for the injury, except that $35.00 of the charges from Drs. Hinds and Dohrmann was incurred on a follow-up visit of September 23, 1987. That follow-up visit is also clearly related to the initial trauma. In cases such as this where the causal connection between the injury and the medical expense is clear, there is no need for expert testimony. The charge of $18.00 as made in exhibit F appears from the exhibit to have been incurred by claimant as a fee for consultation with Donna L. Gardner, D.D.S., concerning replacing the tooth which was extracted on September 23, 1987. The physician's notes from that procedure appear to read, "[Patient] [with] infected #8, Class III instability from prior trauma. 1.8 cc lido 2%, ext. #8, debride, place into .018 I.M.F., stress hygiene, [prescribe] Tylenol #3 codeine . . . [follow-up] 1 wk." The prior office note of September 21, 1987 appears to state in part, "looks like may have had old fistula." From the notes it appears that a possibility exists that claimant had a preexisting fistula. There is no evidence in the record, however, which determines with any degree of certainty that there was in fact a preexisting fistula, the source of the fistula, or which explains the relationship between the trauma and the fistula. From the record in the case, it appears that if there was a preexisting fistula, it was asymptomatic and was not causing any problem for claimant until the trauma occurred. It is therefore determined that the trauma aggravated any preexisting condition. Defendants are therefore responsible for treatment relating to that aggravation, including extraction of the tooth and obtaining a reasonable replacement for that tooth. Reasonable treatment under section 85.27 is that which is promptly furnished and that which restores anatomy and function as near as may be done using conventional methods of medical treatment. Askelson v. J & M Inc. of Badger, file number 771130 (Arb. Decn. March 29, 1989). Since defendants have denied liability, they were not entitled to rely upon any defense of lack of authorization for the treatment that was selected by the claimant. Barnhart v. MAQ, Inc., I Iowa Industrial Commissioner Report 16 (App. Decn. 1981); Zimmerman v. L. L. Pelling Co., II Iowa Industrial Commissioner Report 462 (App. Decn. 1982). Claimant seeks a tooth replacement procedure which was recommended by Dr. Gardner following the May 12, 1988 consultation. Since the treatment has been recommended by a licensed professional, the recommendation is deemed to be an expression of professional opinion that the treatment is reasonable for the condition which exists. It is therefore determined that defendants are responsible to pay the reasonable cost of the tooth replacement procedure recommended by Dr. Gardner. Claimant seeks to recover compensation for temporary total disability. The record of this case contains no express indication from any of the treating physicians with regard to the amount of time when claimant was or should have been restricted from performing the normal duties of his employment. The record does not contain a release to return to work. The evidence must therefore be considered using agency expertise as permitted by Iowa Code section 17A.14(5) in order to determine the temporary total disability entitlement. Claimant was clearly disabled on the date of surgery, September 15, 1987. Claimant remained under active medical treatment on September 23, 1987 when the tooth was extracted. The record indicates that on September 28, 1987 claimant was healing well and no further active treatment was employed. In view of the heavy nature of claimant's work, his explanation that having his jaw wired shut affected his ability to breath and impaired his ability to perform heavy exertion is accepted. It is therefore determined that the entitlement to temporary total disability compensation ended on September 28, 1987 when active treatment ended (exhibit 4). The entitlement to temporary total disability compensation therefore runs from September 15, 1987 through September 28, 1987, a span of two weeks. The absence of a medical confirmation of disability limits the award to the period of active medical treatment. Defendants seek credit under Iowa Code section 85.38(2) for disability income payments paid by insurance which was provided to claimant through his employment as a construction laborer. The first requirement for credit to be awarded under that Code section is that the employer, in this case the King of Clubs, Inc., must have contributed to the cost of obtaining the group insurance benefit. It clearly did not and therefore no credit can be allowed. Further, if credit were allowed, it would interfere with any rights of subrogation which might be held by that group insurance provider. Nothing in this decision is to be construed in a manner which avoids or interferes with any contractual subrogation rights. According to claimant, his total earnings from employment during the twelve months preceding his injury were $4,572.80 and he also received an additional sum of $1,196.00 from unemployment compensation. In this case, it is apparent that claimant's employment at King of Clubs, Inc., was not full-time since the amount of time he worked was far less than that which is generally considered to be full-time employment and his earnings were not sufficient to make him self-supporting. His rate of compensation should therefore be computed under either subsection 9 or subsection 10 of Iowa Code section 85.36. The rate computed would be identical regardless of which of each of the two subsections were used. An issue which exists is whether the unemployment compensation should be considered to be earnings. The statute provides no express guidance. Code section 85.61(12) defines "gross earnings" as recurring payments by employer to the employee. It is therefore determined that unemployment compensation is not used when computing the rate of compensation even though the unemployment compensation is a substitute for wages and provides support for the employee and his family in lieu of wages during periods of unemployment. It is therefore determined that the earnings to be used to compute the rate of compensation are $4,572.80 and the amounts he was paid by the King of Clubs, Inc., which the employer, on page 1 of exhibit 6 showed to have been $1,443.00. The total earnings are therefore $6,015.80. One-fiftieth of that amount is $120.32. Since claimant was married with two children, his rate of compensation is therefore $88.01 per week. FINDINGS OF FACT 1. On September 14, 1987, Ricky L. Borg was working as an umpire at the King of Clubs, Inc., ballpark near Sioux City, Iowa. 2. While so working, claimant was struck in the mouth by a bat, resulting in a fractured jaw. He subsequently developed an infection which led to loss of one of his front teeth. 3. Ricky L. Borg was paid by the game and provided his own uniforms and equipment for working as an umpire. He was able to work, however, only at the times and places designated by the King of Clubs' owners, acting through the head umpire which they had selected. The amount claimant was paid was set by the employer and was not arrived at through any negotiation or bid process. Claimant was not required to find his own replacement when he left the game after being injured on September 14, 1987. 4. The work which claimant performed as an umpire for the King of Clubs, Inc., was a part of the entire package of facilities and services which the King of Clubs, Inc., provided to the softball teams which paid to use its facility. 5. The owners of the King of Clubs, Inc., were in control of the park where the services which claimant provided were performed and were responsible for providing the services which claimant performed to the teams which used the facility. 6. The evidence does not contain any express written or oral agreement between the parties to this proceeding or an expression of intent made prior to the time of the injury which characterized claimant as being an independent contractor rather than an employee. 7. Claimant did not claim the income which he received from the King of Clubs, Inc., in any manner on his income tax returns. 8. The,King of Clubs, Inc., did not provide claimant with either a W-2 form or a statement of nonemployee compensation (form 1099). 9. Claimant was an employee of the King of Clubs, Inc., at the time of his injury. 10. The reasonable amount of the expenses which claimant incurred in obtaining treatment for the injuries he sustained on September 14, 1987 total $2,893.38. 11. The trauma from the injury was a substantial factor in producing the loss of claimant's front tooth. 12. Obtaining a replacement for the lost tooth is reasonable treatment for the injury. 13. Claimant was medically incapable of performing work in employment substantially similar to that he performed at the time of injury from September 15, 1987 through September 28, 1987 when active medical treatment ended. 14. Claimant's earnings during the twelve months preceding September 14, 1987 were $4,572.80 from W. A. Klinger, Inc., and $1,443.00 from King of Clubs, Inc., for a total of $6,015.80. CONCLUSIONS OF LAW 1. This agency has jurisdiction of the subject matter of this proceeding and its parties. 2. Ricky L. Borg made a prima facie showing that the status of his relationship with the King of Clubs, Inc., was that of employer-employee. 3. The King of Clubs, Inc., and its insurance carrier have failed to introduce evidence which, when considered with all the evidence in the case, demonstrates that Borg was an independent contractor. 4. Ricky L. Borg was an employee of the King of Clubs, Inc., for purposes of workers' compensation coverage. 5. Claimant is entitled to receive two weeks of compensation for temporary total disability payable commencing September 15, 1987. 6. Claimant is entitled to recover medical expenses under the provisions of Code section 85.27 in the total amount of $2,893.38. 7. Defendants are not entitled to receive any credit under Iowa Code section 85.38(2) since they did not pay any of the cost of obtaining the group benefit. 8. Claimant's rate of compensation is $88.01. ORDER IT IS THEREFORE ORDERED that defendants pay claimant two (2) weeks of compensation for temporary total disability at the rate of eighty-eight and 01/100 dollars ($88.01) per week payable commencing September 15, 1987. IT IS FURTHER ORDERED that all past due amounts of weekly compensation be paid to claimant in a lump sum together with interest pursuant to the provisions of Iowa Code section 85.30. IT IS FURTHER ORDERED that defendants pay the following medical expenses: St. Luke's Medical Center $1,636.38 Anesthesia Consultants, P.C. 324.00 Sioux City Radiology Group 41.50 Drs. Hinds and Dohrmann 765.00 Dr. Guy Posey 108.50 Dr. Donna Gardner 18.00 Total $2,893.38 IT IS FURTHER ORDERED that defendants pay the reasonable cost of the tooth replacement procedure recommended by Dr. Gardner. IT IS FURTHER ORDERED that defendants pay the costs of this action 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 5th day of January, 1990. MICHAEL G. TRIER DEPUTY INDUSTRIAL COMMISSIONER Copies To: Mr. P. D. Furlong Attorney at Law 401 Commerce Building Sioux City, Iowa 51101 Mr. Michael P. Jacobs Attorney at Law 300 Toy National Bank Building Sioux City, Iowa 51101 1402.10, 1504, 1701, 1801 2001, 2501, 2504, 3001 3002 Filed January 5, 1990 MICHAEL G. TRIER BEFORE THE IOWA INDUSTRIAL COMMISSIONER RICKY L. BORG, Claimant, vs. File No. 881019 KING OF CLUBS, INC., A R B I T R A T I 0 N Employer, D E C I S I 0 N and MARYLAND CASUALTY COMPANY, Insurance Carrier, Defendants. 1402.10, 1504, 2001, 3001, 3002 Claimant worked as an umpire for a privately owned and operated softball park. He was held to be an employee, rather than an independent contractor, primarily because the employer told him when and where to work, set the wages, and prescribed the uniform he was to wear, despite the fact that he was paid by the game. There was no evidence of either parties' intent or of an agreement which would have designated claimant as an independent contractor. 1801 Claimant's testimony was accepted to determine the extent of his entitlement to temporary total disability. It was fixed at the end of the period of active medical treatment. 3001, 3002 Claimant's rate of compensation was determined based upon either section 85.36(9) or (10). Unemployment compensation benefits were not included in determining his gross total earnings for the preceding twelve months. 2501, 2504 Treatment in the nature of a replacement for a tooth was ordered. 1701 Defendant was denied credit for group disability income payments made by a group plan provided by one of claimant's other employers. Page 1 before the iowa industrial commissioner ____________________________________________________________ : MATT CHASE, : : Claimant, : File No: 881020 : vs. : A R B I T R A T I O N : WILSON FOODS CORPORATION, : D E C I S I O N : Employer, : Self-Insured, : Defendant. : ___________________________________________________________ statement of the case This is a proceeding in arbitration brought by Matt Chase, claimant, against Wilson Foods, Inc., employer and self insured as the defendant. Claimant alleges an injury arising out of and in the course of his employment on January 5, 1988. The matter came on for hearing on March 29, 1991 at Storm Lake, Iowa. The record consists of testimony from the claimant; claimant exhibits 1-3; 5-11; 12-19; and, 22-24; and defendant's exhibits A and B. issues In accordance with the prehearing report and hearing assignment order, the following issues were presented for resolution: 1. Whether claimant received an injury which arose out of and in the course of his employment; 2. Whether there is a causal relationship between the alleged injury and the disability; 3. Whether claimant is entitled to temporary disability benefits; 4. Whether claimant is entitled to medical care pursuant to Iowa Code section 85.27; and, Page 2 findings of fact The undersigned deputy, having heard the testimony and having reviewed all of the evidence received, finds the following facts: Claimant, Matthew Chase, was 35 years old at the time of the hearing. He is a high school graduate, and served in the Marine Corp for four years after graduation from high school. He has been employed by defendant Wilson Foods, Inc., as a production worker, for a total of eight years. At the time of the hearing, his position was that of relief person on the pace boning line. Claimant has sustained no workers' compensation injuries other than the injury which brought rise to the filing of his original notice and petition in this case. In the fall of 1987, claimant was working on the floor of the plant in a position which required him to push a wheelbarrow cart filled with inedible parts of carcasses, and unloading or dumping the remains down a chute. These carts weighed between 500 to 600 pounds. Claimant felt pain in his left wrist as he was performing his job. Claimant visited the plant nurse, and was provided both rubber and mesh gloves with an arm guard. He continued to work. (Claimant Exhibit 1, Page 1) Claimant also went an x-ray of the left wrist. (Cl. Ex. 1, P. 2) On January 5, 1988, claimant again visited the plant nurse and complained of left wrist pain and swelling. At this time, he was in a job position which required him to skin and bone hams. (Cl. Ex. 2, P. 1) Claimant stated that wearing the necessary equipment to perform the job aggravated his symptoms. Claimant was referred to Keith Garner, M.D., for treatment. He was treated with pain relievers and anti-inflammatories, and was sent to Thomas P. Ferlic, M.D., a surgeon in Omaha, Nebraska. Dr. Ferlic initially saw the claimant on February 24, 1988: DIAGNOSIS: Ganglion cyst, volar aspect, left wrist. This is a very pleasant 23 yr. old who has been having intermittent swelling in the lower aspect of his left wrist since Nov. 1987. The onset was insidious. It did bother him a great deal. The patient works in a meat packing plant and uses his wrist quite often. The patient does not complain of numbness or tingling into his finger tips. This is not the type of pain that wakes him up at night. It is more described as an aching which is worse with activity, better with rest. He has no history of having any significant disorder such as diabetes mellitus, heart disease or cancer. He is right hand dominant. Page 3 PHYSICAL EXAM: Shows that he has good ROM of his wrist. Fingers and elbow are normal. He has mild amount of swelling on the volar aspect just on the lateral aspect of the flexo carpi radiolus where a volar ganglion is normally noted. He is point tender in this spot. His median, radial and ulnar nerves are intact. Pulse and sensation are intact. IMPRESSION: Ganglion cyst, volar aspect, left wrist. DISCUSSION: After discussing with him the options and reviewing his X-rays which were normal, I offered him a corticoid steroid injection. He accepted. This was done under sterile conditions. He will call me back in 1 week and tell me how he is doing. May return to work as of the 26th. (Cl. Ex. 14, P. 1) Claimant again visited Dr. Ferlic on March 28, 1988, and was again provided a corticoseroid injection, and was to return to work on April 4, 1988. (Cl. Ex. 14, P. 1) On June 30, 1988, claimant sought treatment from Dr. Ferlic, and it was decided that claimant would undergo a release of the volar ganglion, which was eventually performed on July 5, 1988. (Cl. Ex. 14, P. 2; Cl. Ex. 13, PP. 1-2) analysis and conclusions of law The first issue to be addressed is whether claimant received an injury which arose out of and in the course of his employment. 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 January 5, 1988 which arose out of and in the course of his employment. McDowell v. Town of Clarksville, 241 N.W.2d 904 (Iowa 1976); Musselman v. Central Telephone Co., 261 Iowa 352, 154 N.W.2d 128 (1967). 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 (l963) and Hansen v. State of Iowa, 249 Iowa 1147, 91 N.W.2d 555 (1958). The words "out of" refer to the cause or source of the injury. Crowe, 246 Iowa 402, 68 N.W.2d 63. The words "in the course of" refer to the time and Page 4 place and circumstances of the injury. McClure v. Union et al. Counties, 188 N.W.2d 283 (Iowa 1971); Crowe, 246 Iowa 402, 68 N.W.2d 63. The evidence shows that although claimant's volar ganglion was not caused by work, the condition may be exacerbated by activity performed on the job. Specifically, Dr. Ferlic made the following assessment on June 30, 1988: Patient wished that his volar ganglion be released and this will be done on Tuesday, the patient understands, however, this may not totally relieve his symptoms. This is not caused by work. It may be exacerbated by activity according to historically [sic], but is not caused by work. Claimant was evaluated by Pat Luse, D.C., who made the following assessment on February 13, 1990: It is my opinion, based on the available information, that Matt Chase did receive an injury as a result of the repetitive motion job he was performing. (Cl. Ex. 18, P. 3) An employer takes an employee subject to any active or dormant health impairments, and a work connected injury which more than slightly aggravates the condition is considered to be a personal injury. Ziegler v. United States Gypsum Co., 252 Iowa 613, 620, 106 N.W.2d 591 (1960), and cases cited. There is no evidence which indicates that claimant lost time from work due to the condition of his wrist prior to the injury date of January 5, 1988. Although it is recognized that claimant had a preexisting condition, that being the volar ganglion, his description of the work he performed while on the job, coupled with Dr. Ferlic's opinion stated above, provides the basis for finding that claimant sustained an injury which arose out and in the course of his employment. The next issue to be resolved is whether claimant is entitled to temporary total disability benefits. Iowa Code section 85.33 provides, in pertinent part: 1. . . . the employer shall pay to an employee for injury producing temporary total disability weekly compensation benefits, until the employee has returned to work or is medically capable of returning to employment substantially similar to the employment in which the employee was engaged at the time of injury, whichever occurs first. As claimant sustained an injury which arose out of and in the course of his employment, but has not made claim for any permanent disability benefits, claimant is entitled to temporary total disability payments for the time he was off Page 5 work while seeking treatment for his work-related condition. The next issue to be addressed is whether claimant is entitled to medical benefits pursuant to Iowa Code section 85.27. The Code provides guidance as to when an employer is responsible for payment of medical bills incurred for treatment of a work-related injury: The employer, for all injuries compensable under this chapter or chapter 85A, shall furnish reasonable surgical, medical, dental, osteopathic, chiropractic, podiatric, physical rehabilitation, nursing, ambulance and hospital services and supplies therefor and shall allow reasonably necessary transportation expenses incurred for such services. Therefore, it is found that defendant shall pay for the costs of the medical and surgical treatment and transportation expenses incurred by claimant to treat his injury of January 5, 1988. order THEREFORE, it is ordered: That defendant shall pay unto claimant temporary total disability benefits at the rate of two hundred fourteen and 82/100 dollars ($214.82) beginning June 30, 1988 through August 1, 1988. That defendant shall pay unto claimant the medical benefits incurred to treat his injury of January 5, 1988. That defendant shall pay the accrued weekly benefits in a lump sum, and shall receive credit against the award for weekly benefits previously paid. That defendant shall pay interest on benefits awarded herein as set for in Iowa Code section 85.30. That defendant shall pay the costs of this action pursuant to rule 343 IAC 4.33. That defendant shall file an activity report upon payment of this award as required by this agency pursuant to rule 343 IAC 3.1. Signed and filed this ____ day of May, 1991. ________________________________ PATRICIA J. LANTZ DEPUTY INDUSTRIAL COMMISSIONER Page 6 Copies To: Mr Harry H Smith Attorney at Law PO Box 1194 Sioux City Iowa 51102 Mr David L Sayre Attorney at Law 223 Pine Street PO Box 535 Cherokee Iowa 51012 5-1801; 5-2206 Filed May 23, 1991 PATRICIA J. LANTZ before the iowa industrial commissioner ____________________________________________________________ : MATT CHASE, : : Claimant, : File No: 881020 : vs. : A R B I T R A T I O N : WILSON FOODS CORPORATION, : D E C I S I O N : Employer, : Self-Insured, : Defendants. : ___________________________________________________________ 5-1801; 5-2206 Claimant had a volar ganglion cyst on his left wrist, a condition which had previously not caused any problems. He changed jobs at the Wilson plant, and had to wear cotton/mesh gloves, which irritated the cyst. Claimant eventually underwent surgery to remove the cyst. Claimant awarded temporary total benefits for time off of work and medical benefits due to exacerbation of a preexisting condition.