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                     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 
 

 
            
 
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            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 
 

 
            
 
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            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 
 

 
            
 
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            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 
 

 
            
 
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            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 
 

 
            
 
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            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 
 

 
            
 
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            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 
 

 
            
 
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            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
 
            
 
            
 
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            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, 
 

 
            
 
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            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.